T. 4/15/92 SBO:MF:NM:hb DJ# 192-06-00013 APR 21 1992 Mr. C.J. Morrow-Fundin Assistant City Attorney City of Mobile P.O.

Box 1827 Mobile, Alabama 36633-1827 Dear Mr. Morrow-Fundin: This is in response to your letter concerning the applicability of the Americans with Disabilities Act (ADA) to the City of Mobile's Convention Center construction project. The ADA authorizes the Department of Justice to provide technical assistance to entities that are subject to the Act. This letter provides informal guidance to assist you in understanding how the ADA may apply to you. However, this technical assistance does not constitute a determination by the Department of Justice of your rights or responsibilities under the ADA and does not constitute a binding determination by the Department of Justice. Because the City began construction of the Convention Center before January 26, 1992, there is no obligation under the ADA to follow either the Uniform Federal Accessibility Standards (UFAS) or the ADA Accessibility Guidelines (ADAAG) in your construction project. However, because the Center, when completed, will be an "existing facility" under the Act, there is an obligation to make the Center's programs accessible. Constructing the Center in compliance with an accessibility standard will increase the probability that the programs offered in the Center will be accessible to all. cc: Records; CRS; Oneglia; Friedlander; bb

-2The enclosed technical assistance manual for title II of the ADA at page 28 describes the different standards for assembly areas under UFAS and ADAAG. You will note that the ADAAG requirements are more detailed and more stringent than the UFAS requirements. I hope this discussion has been helpful. Sincerely, Stewart B. Oneglia Chief Coordination and Review Section Civil Rights Division Enclosure

January 15, 1992

U.S. Department of Justice Civil Rights Division Office of the Americans With Disabilities Act P. O. Box 66118 Washington, D.C. 20035-6118 Dear Director: On January 9, 1992, I discussed the City of Mobile's Convention Center

construction project with your office requesting a written confirmation of the City's legal position regarding the Americans with Disabilities Act (ADA) relative to this project. I was informed this request would take four to six weeks to complete. The City of Mobile would be most appreciative of whatever assistance you can provide to expedite the forwarding of this information to my attention in the City Legal Department, P. O. Box 1827, Mobile, Alabama 36633. Attached for your information is a letter to Convention Center Project Manager Garry Johnson advising him of the conversation I had with your office. It is imperative the City of Mobile receive written confirmation as soon as possible. Thank you for your assistance in this matter. Yours truly, C. J. Morrow-Fundin Assistant City Attorney City of Mobile CJM-F:vjw ATTACHMENT

January 15, 1992

U.S. Department of Justice Civil Rights Division Office of the Americans With Disabilities Act P. O. Box 66118 Washington, D.C. 20035-6118 Dear Director: On January 9, 1992, I discussed the City of Mobile's Convention Center construction project with your office requesting a written confirmation of the City's legal position regarding the Americans with Disabilities Act (ADA) relative to this project. I was informed this request would take four to six weeks to complete. The City of Mobile would be most appreciative of whatever assistance you can provide to expedite the forwarding of this information to my attention in the City Legal Department, P. O. Box 1827, Mobile, Alabama 36633. Attached for your information is a letter to Convention Center Project Manager Garry Johnson advising him of the conversation I had with your office. It is imperative the City of Mobile receive written confirmation as soon as possible. Thank you for your assistance in this matter. Yours truly, C. J. Morrow-Fundin Assistant City Attorney City of Mobile CJM-F:vjw

January 15, 1992 Mr. Garry Johnson Convention Center Project Manager City of Mobile P. O. Box 1827 Mobile, Alabama 36633-1827 Re: Americans With Disabilities Act Mobile Convention Center Construction Project

Dear Garry: I was successful in discussing the City of Mobile's Convention Center construction project with the Justice Department on the telephone January 9, 1992. By copy of this letter to the Justice Department, I am seeking a written confirmation of the following legal position with regards to the Americans with Disabilities Act (ADA). I was informed this request would take four to six weeks to complete. First, a brief history on the topic. On July 29, 1990, President George Bush signed the ADA into law. The City of Mobile received bids from general contractors for the Convention Center project on January 9, 1991. On March 19, 1991, the City of Mobile entered into a contract for construction of the Convention Center with Harbert International of Birmingham, Alabama.

Thompson, Ventulett, Stainback & Associates of Atlanta, Georgia, had previously been chosen as the architects for the project. The local architectural consultant is TAG Architects - The Architects Group. Manhattan - Ogden Joint Venture is the City's local construction consultant. The City of Mobile's Inspection Services Department issued a building permit to Harbert International for the Mobile Convention Center on April 4, 1991. In the meantime, on July 26, 1991, the Department of Justice acting pursuant to the ADA, issued its ADA Rules and Regulations which included an appendix with the ADA Accessibility Guidelines. Obviously, much planning and design of the Convention Center had been completed prior to July 26, 1991 when the Department of Justice ADA Rules and Regulations were issued. The July, 1991 Justice Department regulations determined the compliance date for municipal governmental buildings under Title II of the Act to be January 26, 1992. The scope of Title II's coverage

Garry Johnson January 15, 1992 A.D.A. Page 2 of public entities is broad. Title II coverage is not limited to "executive" agencies, but includes activities of the legislative and judicial branches of state and local governments. All governmental activities of public entities are covered even if they are carried out by contractors. The private, nongovernmental entity operating a public facility would also be subject to

the obligations of public accommodations under the standards set out by Title III of the Act, not Title II like the City of Mobile. Under Title II of the ADA, "New Construction and Alterations" of facilities under design on January 26, 1992 will be governed by the ADA if the date the bids were invited falls after January 26, 1992. Since the bids for the Mobile Convention Center were received on January 9, 1991, over a year prior to the effective date of Title II of the ADA, the Mobile Convention Center would be classified as an "Existing Facility". The requirements under the ADA for an "Existing Facility" are as follows: "Unlike Title III of the Act, which requires public accommodations to remove architectural barriers where such removal is 'readily achievable,' or to provide goods and services through alternative methods, where those methods are 'readily achievable,' Title II requires a public entity to make its programs accessible in all cases, except where to do so would result in a fundamental alteration in the nature of the program or in 'undue financial and administrative burdens'. Congress intended the 'undue burden' standard in Title II to be significantly higher than the 'readily achievable' standard in Title III. Thus, although Title II may not require removal of barriers in some cases where removal would be required under Title III, the program access requirement of Title II should enable individuals with disabilities to participate in and benefit from the services, programs or activities of public entities in all but the most unusual cases." [56 F.R. 35708] Emphasis added. Therefore, it is my legal opinion it would be in the City of Mobile's best interest to abide by the ADA's less ambiguous, more clear "New Construction and Alterations" Standards whereby public entities, like the City are allowed to choose to comply with either the ADAAG (ADA Accessibility Guidelines for Buildings and Facilities - Appendix "A" to Department of Justice's Regulation on Title III, 7/26/91) or UFAS (Uniform Federal Accessibility Standards-1988) if construction or an alteration on a governmental facility is to begin after the effective date of the Act January 26, 1992.

Garry Johnson January 15, 1992 A.D.A. Page 3 Practically speaking, the UFAS Standards, which are the old military construction guidelines which have been codified, are better defined and more certain than the ADAAG Standards. Plus, the UFAS Standards do not differ greatly from the ANSI Standards [ANSI A117.1 American National Standard for Buildings and Facilities - Providing Accessibility and Usability for Physically Handicapped People - 1986], which the architects abided by in drafting the original plans for the Convention Center, whereas the ADAAG Standards do differ significantly from the ANSI Standards. In light of these considerations, I recommend that the construction team for the Mobile Convention Center abide by the UFAS guidelines and in my opinion that will more than cover compliance with the ADA. Attached you will find copies of an "ADA - Title II - Public Entity Facilities Compliance Fact Sheet and Timetable", note the "self-evaluation" requirement. Please contact me if I can be of further assistance regarding this issue. Yours truly, C. J. Morrow-Fundin Assistant City Attorney City of Mobile CJM-F:vjw ATTACHMENT cc: Mayor City Council City Attorney City Council Attorney TAG - Robert Krchak Manhattan-Ogden - John Jamison TVS - Don Benz

Harbert International - Gary Savage Department of Justice

01-00642

Americans with Disabilities Act Title II-Public Entity Facilities Compliance Fact Sheet General Rule: No qualified individual with a disability shall be discriminated against or excluded from participation in or the benefits of the services, programs, or activities of a public entity. Program Accessibility: No qualified individual with a disability shall, because of inaccessible or unusable facilities of a public entity, be excluded from participation in, or be denied the benefits of the services, programs, or activities of a public entity or be subject to discrimination by any public entity. Limitations: It is not required that a public entity take any action that it can demonstrate would constitute a fundamental alteration in the nature of the service, program or activity, or would cause an undue administrative or

financial burden. Regardless of that, a public entity is required to take some action that would not trigger this limitation and ensure program accessibility. Existing Facilities: A public entity is required to make structural changes to existing facilities only when program accessibility is not feasible any other way (i.e.: reassignment of services to accessible building, or provision of auxiliary aids). Although unable to protect a public entity from complaint or civil suit if programs are not readily accessible to and usable by persons with disabilities by Jan. 26, 1992, each public entity in the U.S. is required to complete a "self-evaluation" of its current policies and practices to identify any non-compliant policies or practices. (See the timetable for Title II facilities compliance on the other side of this sheet). Where "structural changes" to existing facilities are the only way to arrive at program accessibility, a "transition plan" (only for public entities with 50 employees or more) outlining the steps necessary to complete the structural changes is required. Comments must be invited from disabled persons or organizations representing such individuals. The "transition plan" must be completed by July 26, 1992 and must include the identification of barriers (architectural and communication) to program accessibility, detailed methods for making the facilities accessible, a schedule for implementation and the official responsible for implementation. New Construction: All new facilities constructed by, on behalf of or for the use of a public entity shall be designed and constructed to be readily accessible to and usable by persons with disabilities if construction is started or if the invitation for bids is after Jan. 26, 1992. Alterations: Alterations to facilities of a public entity must also meet the "readily accessible" standard, to the maximum extent feasible.

Effective Date: The effective date of this Title is Jan. 26, 1992. Regulations and Standards: The Department of Justice issued regulations on July 26, 1991 for all portions of Title II except those portions dealing with Public Transportation which have been issued by the Department of Transportation. The regulations associated with Title II of the Act and printed in the Federal Register on July 26, 1991 state that compliance with the Uniform Federal Accessibility Standards (UFAS) or the ADAAG (without the elevator exemption) shall satisfy the accessibility requirements of this Title for new and altered buildings and facilities. This publication also states that "departures from particular requirements of those standards by use of other methods shall be permitted when it is clearly evident that equivalent access to the facility or part of the facility is thereby provided." Most facilities constructed or altered with Federal funds are presently required to comply with UFAS under the Architectural Barriers Act of 1968. Facilities constructed or altered by recipients of Federal financial assistance are presently required to comply with UFAS under Section 504 of the Rehabiliation Act of 1973. Enforcement: Those who believe themselves discriminated against may file a civil lawsuit in Federal District Court. Individuals may file complaints with the designated Federal agencies concerning matters of Title II discrimination or contact the Department of Justice who will direct the complaints as required. The Federal agency specified in the regulations will then investigate the complaint (if made within 180 days of the alleged discrimination), attempt to resolve complaints on a voluntary compliance basis and then, if unsuccessful, refer case to the Department of Justice for civil suit. Remedies are the same as available under Section 505 of the Rehabilitation Act of 1973. Courts may order an

entity to make facilities accessible, provide auxiliary aids or services, modify policies, and pay attorneys' fees. Notes: Unless stated otherwise, information presented above was taken from the Title II regulations published by the D.O.J. in the Federal Register July 26, 1991. This is not legal advice. A competent lawyer should be consulted regarding any specific legal questions. August 1991

Americans with Disabilities Act Title II-Public Entity Facilities Compliance Timetable 7-26-1990 Signing of the Americans with Disabilities Act of 1990 by President George Bush. 2-28-1991 Draft Regulations issued by the Department of Justice for implementing Title II. 4-29-1991 Final comments on draft regulations due at DOJ. 7-26-1991 Final regulations for implementing Title II published by the Department of Justice. 1-26-1992 Effective Date of Title II. 1.) Ensure that the operation of each service, program and activity is operating so that each, when viewed in its entirety, is readily accessible to and usable by individuals with disabilities. (35.150(a) Even though the following required procedures will not shield a public entity from a discrimination complaint, they are mandatory if programs are not readily accessible to and usable by people with disabilities: A. Begin self-evaluation process for those areas of services, policies and practices not previously evaluated (and on file) for section 504 of the Rehabilitation Act of 1973. (35.105)

B. Begin transition plan outlining structural changes required for program accessibility and proceed with structural changes, as required, to facilities "as expeditiously as possible". (35.150(e)) 2.) New construction starting after this date must be readily accessible. (35.151(a)) 3.) The altered portions of alterations beginning construction after this date must, to the maximum extent feasible, meet the "readily accessible to and usable by individuals with disabilities" standard set by the Uniform Federal Accessibility Standard or, at the public entity's option, the ADAAG. (35.151(b)) 4.) Date a complaint or civil law suit may be filed by an individual based on ADA discrimination by a public entity. 7-26-1992 Transition plan complete where structural changes to facilities will be undertaken to provide program access. Transition plan must identify obstacles, describe in detail the methods that will be used to make facilities accessible, specify the schedule for taking the steps identified and indicate the official responsible for implementation of the plan. (35.150(d)) 1-26-1994 Self-evaluation complete. (35.105(a)) 1-26-1995 Completion of last structural changes to facilities where such changes were undertaken for program accessibility.(35.150(c)) This is not legal advice. A competent lawyer should be consulted regarding any specific legal questions. Information presented above was taken from D.O.J. Regulation (28CFR Part 35) on Title II of ADA. This Document May Be Reproduced Without Permission IF Credit is Given to Evan Terry Associates, P.C. Evan Terry Associates P.C. 2129 Montgomery Highway Birmingham, Alabama 35209 (205)871-9765 FAX(205)871-9766 Architecture...Space Planning...Land Planning...Landscape Architecture

January 15, 1992

U.S. Department of Justice Civil Rights Division Office of the Americans With Disabilities Act P.O. Box 66118 Washington, D.C. 20035-6118 Dear Director: On January 9, 1992, I discussed the City of Mobile's Convention Center construction project with your office requesting a written confirmation of the City's legal position regarding the Americans with Disabilities Act (ADA) relative to this project. I was informed this request would take four to six weeks to complete. The City of Mobile would be most appreciative of whatever assistance you can provide to expedite the forwarding of this information to my attention in the City Legal Department, P.O. Box 1827, Mobile, Alabama 36633. Attached for your information is a letter to Convention Center Project Manager Garry Johnson advising him of the conversation I had with your office. It is imperative the City of Mobile receive written confirmation as soon as possible. Thank you for your assistance in this matter. Yours truly, C. J. Morrow-Fundin Assistant City Attorney City of Mobile CJM-F:vjw ATTACHMENT 01-00645