DJ 182-06-00043

APR 24 1992

Mr. Charles E. Scharbrough, AIA, CSI Project Architect Paul I. Cripe, Inc. 7172 Graham Road Indianapolis, Indiana 46250 Dear Mr. Scharbrough: This responds to your request for an interpretation of the Americans with Disabilities Act (ADA) as applied to office buildings. The ADA authorizes the Department 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. Title III of the ADA establishes specific requirements for "places of public accommodation," which are facilities whose operations affect commerce and fall into one or more of twelve specified categories including restaurants, sales or rental establishments, and service establishments. "Commercial facilities" are facilities that are intended for nonresidential use and whose operations affect commerce. Commercial facilities that do not fall into one or more of the listed categories of places of public accommodation are only subject to the requirements of title III for new construction and alterations (subpart D of the Department's regulation implementing title III). The requirements for removal of barriers in existing facilities apply to facilities that are "places of public accommodation" (including common areas serving a place of public accommodation), whether or not those facilities are also included in the definition of "commercial facility." Thus, those areas of cc: Records Chrono Files Oneglia Wodatch Kaltenborn FOIA Breen 01-00654 ​ -2an office building that are places of public accommodation are

subject to the barrier removal requirement as well as the other requirements of title III for places of public accommodation. Areas of an office building that are not places of public accommodation are only subject to the requirements for commercial facilities. We hope that this information is helpful. Sincerely, Stewart B. Oneglia Chief Coordination & Review Section Civil Rights Division 01-00655 ​ 7172 Graham Road Indianapolis, Indiana 46250 317-842-6777 FAX 317-841-4798 PAUL I. CRIPE, INC. December 5, 1991 Ms. Barbara S. Drake Deputy Assistant Attorney General Civil Rights Division US Department of Justice Washington, DC 20530 RE: Question on 28 CFR Part 36 Commercial Facilities Definition Dear Ms. Drake: Can you be more specific about the definition of Commercial Facilities, specifically as it regards Office Buildings? Office buildings are defined as commercial facilities in the middle of the third column of page 35547 of the Federal Register. On page 35551, however, places of public accommodation are defined to include sales and/or service establishments. We have not yet found an office building where sales and/or service do not take place. Is there an intent in the law concerning the "extent" to which sales and/or service take place? If a building qualifies as an office building, and does not house any of the specific places of public accommodation itemized in 36.104, is it then a commercial facility? Is the type of sales and service done in an office

building recognized as inherently different? Why were "office buildings" included in the category of "commercial facilities". We, Paul I. Cripe, Inc. offer architectural services. Our clients want to know the answers to the above questions so they will know if the requirements for removal of barriers in existing facilities apply to them. Thank you for your consideration. Sincerely, PAUL I. CRIPE, INC. Civil Rights Division Charles E. Scharbrough, AIA, CSI Coordination and Review Section Project Architect P.O. Box ILLEGIBLE Washington, D.C. 20035-6118 tp Enclosure DEC 10 1991 c Alex D. Oak Dennis L. Southerland James I. Bradley 01-00656 35594 Federal Register / Vol. 56, No. 144 / Friday, July 26, 1991 / Rules and Regulations (inserted in three columns) from physical impairments, or other sexual behavior disorders; (ii) Compulsive gambling, kleptomania, or pyromania; or (iii) Psychoactive substance use disorders resulting from current illegal use of drugs. Drug means a controlled substance, as defined in schedules I through V of section 202 of the Controlled Substances Act (21 U.S.C. 812). Facility means all or any portion of buildings, structures, sites, complexes, equipment, rolling stock or other conveyances, roads, walks, passageways, parking lots, or other real or personal property, including the site where the building, property, structure,

or equipment is located. Illegal use of drugs means the use of one or more drugs, the possession or distribution of which is unlawful under the Controlled Substances Act (21 U.S.C. 812). The term "illegal use of drugs" does not include the use of a drug taken under supervision by a licensed health care professional, or other uses authorized by the Controlled Substances Act or other provisions of Federal law. Individual with a disability means a person who has a disability. The term "individual with a disability" does not include an individual who is currently engaging in the illegal use of drugs, when the private entity acts on the basis of such use. Place of public accommodation means a facility, operated by a private entity, whose operations affect commerce and fall within at least one of the following categories(1) An inn, hotel, motel, or other place of lodging, except for an establishment located within a building that contains not more than five rooms for rent or hire and that is actually occupied by the proprietor of the establishment as the residence of the proprietor; (2) A restaurant, bar, or other establishment serving food or drink; (3) A motion picture house, theater, concert hall, stadium, or other place of exhibition or entertainment. (4) An auditorium, convention center, lecture hall, or other place of public gathering; (5) A bakery, grocery store, clothing store, hardware store, shopping center, or other sales or rental establishment; (6) A laundromat, dry-cleaner, bank, barber shop, beauty shop, travel service, shoe repair service, funeral parlor, gas station, office of an accountant or

lawyer, pharmacy, insurance office, professional office of a health care provider, hospital, or other service establishment; (7) A terminal, depot, or other station used for specified public transportation; (8) A museum, library, gallery, or other place of public display or collection; (9) A park, zoo, amusement park, or other place of recreation; (10) A nursery, elementary, secondary, undergraduate, or postgraduate private school, or other place of education; (11) A day care center, senior citizen center, homeless shelter, food bank, adoption agency, or other social service center establishment; and (12) A gymnasium, health spa, bowling alley, golf course, or other place of exercise or recreation. Private club means a private club or establishment exempted from coverage under title II of the Civil Rights Act of 1964 (42 U.S.C. 2000a(e)). Private entity means a person or entity other than a public entity. Public accommodation means a private entity that owns, leases (or leases to), or operates a place of public accommodation. Public entity means(1) Any State or local government; (2) Any department, agency, special purpose district, or other instrumentality of a State or States or local government; and (3) The National Railroad Passenger Corporation, and any commuter authority (as defined in section 103(8) of the Rail Passenger Service Act). (45 U.S.C. 541) Qualified interpreter means an interpreter who is able to interpret

effectively, accurately and impartially both receptively and expressively, using any necessary specialized vocabulary. Readily achievable means easily accomplishable and able to be carried out without much difficulty or expense. In determining whether an action is readily achievable factors to be considered include-(1) The nature and cost of the action needed under this part; (2) The overall financial resources of the site or sites involved in the action; the number of persons employed at the site; the effect on expenses and resources; legitimate safety requirements that are necessary for safe operation, including crime prevention measures; or the impact otherwise of the action upon the operation of the site; (3) The geographic separateness, and the administrative or fiscal relationship of the site or sites in question to any parent corporation or entity; (4) If applicable, the overall financial resources of any parent corporation or entity; the overall size of the parent corporation or entity with respect to the number of its employees; the number, type, and location of its facilities; and (5) If applicable, the type of operation or operations of any parent corporation or entity, including the composition, structure, and functions of the workforce of the parent corporation or entity. Religious entity means a religious organization, including a place of worship. Service animal means any guide dog, signal dog, or other animal individually trained to do work or perform tasks for the benefit of an individual with a disability, including, but not limited to, guiding individuals with impaired

vision, alerting individuals with impaired hearing to intruders or sounds, providing minimal protection or rescue work, pulling a wheelchair, or fetching dropped items. Specified public transportation means transportation by bus, rail, or any other conveyance (other than by aircraft) that provides the general public with general or special service (including charter service) on a regular and continuing basis. State means each of the several States, the District of Columbia, the Commonwealth of Puerto Rico, Guam, American Samoa, the Virgin Islands, the Trust Territory of the Pacific Islands, and the Commonwealth of the Northern Mariana Islands. Undue burden means significant difficulty or expense. In determining whether an action would result in an undue burden, factors to be considered include-(1) The nature and cost of the action needed under this part; (2) The overall financial resources of the site or sites involved in the action; the number of persons employed at the site; the effect on expenses and resources; legitimate safety requirements that are necessary for safe operation, including crime prevention measures; or the impact otherwise of the action upon the operation of the site; (3) The geographic separateness, and the administrative or fiscal relationship of the site or sites in question to any parent corporation or entity; (4) If applicable, the overall financial resources of any parent corporation or entity; the overall size of the parent corporation or entity with respect to the number of its employees; the number, type, and location of its facilities; and

(5) If applicable, the type of operation or operations of any parent corporation or entity, including the composition, structure, and functions of the workforce of the parent corporation or entity. Federal Register / Vol. 56, No. 144 / Friday, July 26, 1991 / Rules and Regulations 35547 required to meet the "program accessibility" standard in order to comply with section 504, but would not be in violation of the ADA unless it failed to make "readily achievable" modifications. On the other hand, an entity covered by the ADA is required to make "readily achievable" modifications, even if the program can be made accessible without any architectural modifications. Thus, an entity covered by both section 504 and title III of the ADA must meet both the "program accessibility" requirement and the "readily achievable" requirement. Paragraph (b) makes explicit that the rule does not affect the obligation of recipients of Federal financial assistance to comply with the requirements imposed under section 504 of the Rehabilitation Act of 1973. Paragraph (c) makes clear that Congress did not intend to displace any of the rights or remedies provided by other Federal laws or other State or local laws (including State common law) that provide greater or equal protection to individuals with disabilities. A plaintiff may choose to pursue claims under a State law that does not confer greater substantive rights, or even confers fewer substantive rights, if the alleged violation is protected under the alternative law and the remedies are greater. For example, assume that a person with a physical disability seeks

damages under a State law that allows compensatory and punitive damages for discrimination on the basis of physical disability, but does not allow them on the basis of mental disability. In that situation, the State law would provide narrower coverage, by excluding mental disabilities, but broader remedies, and an individual covered by both laws could choose to bring an action under both laws. Moreover, State tort claims confer greater remedies and are not preempted by the ADA. A plaintiff may join a State tort claim to a case brought under the ADA. In such a case, the plaintiff must, of course, prove all the elements of the State tort claim in order to prevail under that cause of action. A commenter had concerns about privacy requirements for banking transactions using telephone relay services. Title IV of the Act provides adequate protections for ensuring the confidentiality of communications using the relay services. This issue is more appropriately addressed by the Federal Communications Commission in its regulation implementing title IV of the Act. Section 36.104 Definitions "Act." The word "Act" is used in the regulation to refer to the Americans with Disabilities Act of 1990, Pub. L. 101-336, which is also referred to as the "ADA." "Commerce." The definition of "commerce" is identical to the statutory definition provided in section 301(1) of the ADA. It means travel, trade, traffic, commerce, transportation, or communication among the several States, between any foreign country or any territory or possession and any State, or between points in the same

State but through another State or foreign country. Commerce is defined in the same manner as in title II of the Civil Rights Act of 1964, which prohibits racial discrimination in public accommodations. The term "commerce" is used in the definition of "place of public accommodation." According to that definition, one of the criteria that an entity must meet before it can be considered a place of public accommodation is that its operations affect commerce. The term "commerce" is similarly used in the definition of "commercial facility." The use of the phrase "operations affect commerce" applies the full scope of coverage of the Commerce Clause of the Constitution in enforcing the ADA. The Constitution gives Congress broad authority to regulate interstate commerce, including the activities of local business enterprises (e.g., a physician's office, a neighborhood restaurant, a laundromat, or a bakery) that affect interstate commerce through the purchase or sale of products manufactured in other States, or by providing services to individuals from other States. Because of the integrated nature of the national economy, the ADA and this final rule will have extremely broad application. "Commercial facilities" are those facilities that are intended for nonresidential use by a private entity and whose operations affect commerce. As explained under S 36.401, "New construction," the new construction and alteration requirements of subpart D of the rule apply to all commercial facilities, whether or not they are places of public accommodation. Those commercial facilities that are not places

of public accommodation are not subject to the requirements of subparts B and C (e.g., those requirements concerning auxiliary aids and general nondiscrimination provisions). Congress recognized that the employees within commercial facilities would generally be protected under title I (employment) of the Act. However, as the House Committee on Education and Labor pointed out, "[t]o the extent that new facilities are built in a manner that make[s] them accessible to all individuals, including potential employees, there will be less of a need for individual employers to engage in reasonable accommodations for particular employees." H.R. Rep. No. 485, 101st Cong., 2d Sess., pt. 2, at 117 (1990) [hereinafter "Education and Labor report"]. While employers of fewer than 15 employees are not covered by title I's employment discrimination provisions, there is no such limitation with respect to new construction covered under title III. Congress chose not to so limit the new construction provisions because of its desire for a uniform requirement of accessibility in new construction, because accessibility can be accomplished easily in the design and construction stage, and because future expansion of a business or sale or lease of the property to a larger employer or to a business that is a place of public accommodation is always a possibility. The term "commercial facilities" is not intended to be defined by dictionary or common industry definitions. Included in this category are factories, warehouses, office buildings, and other buildings in which employment may occur. The phrase, "whose operations affect commerce," is to be read broadly, to include all types of activities reached

under the commerce clause of the Constitution. Privately operated airports are also included in the category of commercial facilities. They are not, however, places of public accommodation because they are not terminals used for "specified public transportation." (Transportation by aircraft is specifically excluded from the statutory definition of "specified public transportation.") Thus, privately operated airports are subject to the new construction and alteration requirements of this rule (subpart D) but not to subparts B and C. (Airports operated by public entities are covered by title II of the Act.) Places of public accommodation located within airports, such as restaurants, shops, lounges, or conference centers, however, are covered by subparts B and C of this part. The statute's definition of "commercial facilities" specifically includes only facilities "that are intended for nonresidential use" and specifically exempts those facilities that are covered or expressly exempted from coverage under the Fair Housing Act of 1968, as amended (42 U.S.C. 3601-3631). The interplay between the Fair Housing Act and the ADA with respect to those facilities that are "places of public accommodation" was the subject of many comments and is addressed in the 01-00658