DJ 202-PL-100 Mr. David Kessler Project Manager Katherine McGuiness and Associates, Inc.

267 Moody Street Waltham, Massachusetts 02154 Dear Mr. Kessler: This is in response to your letter requesting information about the Americans with Disabilities Act (ADA). The ADA authorizes the Department of Justice to provide technical assistance to individuals and entities having rights or obligations under the Act. This letter provides informal guidance to assist you in understanding the ADA's requirements. However, it does not constitute a legal interpretation and it is not binding on the Department. You inquire whether UFAS or ADAAG should be used for the design and construction of a parking garage built and owned by a state authority but to be operated by a private company. In the situation you describe, the garage should be built in accordance with ADAAG, but without the elevator exemption. Title III governs the operations of private entities that provide services to the general public, such as parking. If the private entity leases its facilities from a state or local government, the private entity remains subject to Title III requirements. State and local governments, however, are never subject to Title III, even when leasing to a private entity operating a place of public accommodation. Title III requires alterations and new construction to comply with ADAAG. Title II governs the operations of state and local government entities, including services or operations it provides through contract with a private entity. Title II permits covered entities to choose whether to use ADAAG (without the elevator exemption) and UFAS. cc: Records Chrono Wodatch Magagna.PL.100 Beard arthur T. 6/3/92

01-00881

-2In the circumstance you describe, the private entity, as operator of the facility, will be subject to Title III; the state, because it is contracting out what would otherwise be a state function, is subject to Title II. Given the joint nature of the project it would be advisable to use ADAAG, without the elevator exemption. In order to comply with both Titles, you must use ADAAG, without the elevator exemption. I have enclosed copies of the Department's Title II and Title III Technical Assistance Manuals. I hope this information will be useful to you. Sincerely, Joan A. Magagna Deputy Director Office on the Americans with Disabilities Act 01-00882

Katherine McGuinness and Associates, Inc. Architectural Accessibility Programs Space Planning 25 September 1991 Office for the ADA Civil Rights Division U.S. Department of Justice P.O. Box 66118 Washington, DC 20035-6118 Dear Sir/Madam, Re: Use of UFAS vs. ADDAG in the design and construction of a state facility operated by a for profit private company as an agent for the public authority, for example: Does a newly constructed addition to a parking garage built and owned by a state authority, to be run by a private company acting as an agent for the authority, come under Title III (as a public accommodation). This sort of scenario is coming up repeatedly. Subpart B, paragraph 36.201, prohibits discrimination by any private entity

who owns leases, or operates a place of public accommodation. This appears to indicate that the above described facility would come under Title III. Yet, in the discussion of paragraph [b] of 36.201 it states, "Although the statutory language could be interpreted as placing equal responsibility on all private entities, whether lessor, lessee...." The reference to "all private entities" makes me question whether the public authority would be included. Whether to comply with ADAAG or UFAS in the design and construction of the facilities appears to rests on this determination. I would greatly appreciate your expediting a response to this issue. Sincerely, David Kessler Project Manager 01-00883