202-PL-00019 Mr. Philip E. Kremer, Property Manager J. R. Parrish, Inc. 1960 The Alameda: No.

100 San Jose, California 95126 Dear Mr. Kremer: This responds to your letter requesting information about the provisions of 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 accessibility standards. However, it does not constitute a legal interpretation and it is not binding on the Department. Your letter requests an exemption from the requirements of the ADA for a an office building located in a converted mansion that is 85 years old. You also indicate that the facility is currently generating a negative cash flow. Title III of the ADA applies to privately owned or operated places of public accommodations and commercial facilities. There is no provision under the ADA for granting exemptions to Title III. Neither the historic nature of a building nor its poor financial condition is a basis for avoiding the requirements of the ADA. However, the obligations imposed by the statute are not onerous. Your letter does not specify, but I am assuming that the businesses located in your building are places of public accommodation within the meaning of the ADA. Among the types of businesses considered places of public accommodation are those providing services to the public (attorneys, accountants, physicians, travel agencies, etc.) and sales and rental operations. A more extensive list is found in the enclosed Title III Technical Assistance manual. cc: Records Chrono Wodatch Magagna.PL.19 Beard arthur T. 6/4/92 01-00884 ​ -2For existing facilities of places of public accommodations, the ADA requires the removal of architectural access barriers and structural communication barriers where such removal is "readily achievable." The statute defines readily achievable to mean easily accomplishable without much difficulty or expense. A number of factors are considered to determine whether a measure JUN 4 1992

is readily achievable. These include: the nature and cost of the action; the financial resources available both to the site and the parent organization; the size and number of employees at the site and overall; and the relationship of the sites to the parent organization. The historic nature of the building in which the place of public accommodation is located is relevant to several of these factors. Where barrier removal is not readily achievable, alternative steps must be taken to provide access if such measures are themselves readily achievable. However, the obligation to remove barriers is a continuing one. In other words, if removal of a particular barrier is not presently readily achievable because of cost factors, it must be undertaken at whatever point in the future the financial situation improves and makes removal readily achievable. The ADA imposes additional obligations for making alterations to a building and for new construction. These requirements are described in the enclosed Manual. We hope that this information is useful to you in evaluating your rights and obligations under the ADA. Sincerely, Joan A. Magagna Deputy Director Office on the Americans with Disabilities Act 01-00885 ​ Littler, Mendelson, Fastiff & Tichy A PROFESSIONAL CORPORATION ATTORNEYS AT LAW 400 CAPITOL MALL, 16TH FLOOR SACRAMENTO, CALIFORNIA 95814-4410 (916) 448-7164 FAX (916) 448-7741 February 6, 1992 Ms. Barbara S. Drake Deputy Assistant Attorney General Civil Rights Division U.S. Department of Justice Washington, D.C. 20530 Re: Request for an Advisory Opinion Regarding the Applicability of Public Accommodation Section of The Americans with Disabilities Act

Dear Ms. Drake: I am writing this letter to request an opinion regarding the applicability of Title III of the Americans with Disabilities Act ("ADA") regarding public accommodations and services operated by private entities. Specifically, I am requesting an opinion regarding the interaction of Section 307 of the ADA, which states that the provisions of Title III of the ADA shall not apply to religious organizations or entities controlled by religious organizations and of public accommodations otherwise subject to Title III, who lease facilities from religious organizations. The specific situation we are concerned with involves the operation of a pre-school by a private entity in a facility that is leased from a religious organization. The pre-school itself is not otherwise controlled or operated by the religious organization. The nature of the relationship between the religious organization and the pre-school is one of landlord and tenant. The religious organization leases classrooms located on the religious organization's premises, in buildings adjacent to the place of worship, to the pre-school. We are concerned with the dichotomy created by the specific exemption from the provisions of Title III for religious organizations and the mandates of the ADA applicable to private entities that operate public accommodations such as day care centers/pre-schools/nurseries. 01-00886

Littler, Mendelson, Fastiff & Tichy Ms. Barbara S. Drake February 6, 1992 Page 2 While it is clear that Section 307 of the ADA exempts religious organizations, Section 301(7) (k) specifically states that private entities are considered public accommodations for purposes of the Act if the operation of such entities affects commerce. Section 301(7) (k) includes nurseries as a public accommodation. Section 301(7) (j) specifically includes a day care center or social service center establishment in the list of public accommodations affecting commerce. Here, it is assumed that the pre-school is, in fact, a public accommodation under either Section 301(7) (j) or (k) of the Act.

Pursuant to the comments accompanying the regulations at page S-45, it appears that there is a distinction between the place of public accommodation (in this case the religious organization's premises) and the public accommodation itself (here, the pre-school). The comments state that "it is the public accommodation and not the place of public accommodation" that is subject to the nondiscrimination requirements of Title III. However, the regulations state that in cases of landlord/tenant responsibilities under Section 36.201(b), both the landlord, who owns the building that houses a place of public accommodation, and the tenant, who owns or operates the place of public accommodation, are public accommodations subject to the Act's requirements. Religious entities are exempt from Title III of the ADA however, and, therefore, cannot be considered public accommodations. Thus, we question whether this situation is to be handled similarly to situations where there are places of public accommodation located in private residences. Section 36.207 of the Regulations indicates that the private residences, like the religious organizations, are not covered by the provisions of the Act. However, when a place of public accommodation is located in a private residence, the portion of the residence used exclusively in the operation of the public accommodation is covered by the Act. Thus, we ask your opinion as to whether this is an analogous situation. Our questions are as follows: 1. As the landlord of the public accommodation, does the religious organization have any responsibilities under Title III of the ADA or is it specifically exempt from coverage pursuant to Section 307 of the ADA? 2. If the religious organization is specifically exempt pursuant to Section 307 of the ADA, which we believe to be the case, are all operations on its premises, including those leased to entities that would otherwise be considered public accommodations, exempt from coverage under Title III of the ADA. 3. Is the pre-school, which may otherwise be considered a public accommodation, exempt from the responsibilities under Littler, Mendelson, Fastiff & Tichy Ms. Barbara S. Drake February 6, 1992 Page 3 Title III of the ADA because it operates a place of public accommodation at a religious organization and/or leases facilities from a religious organization, which is otherwise exempt? 4. If the religious organization is otherwise exempt as

appears to be the case from Section 307 of the ADA, is it the sole responsibility of the pre-school, a public accommodation, to meet the requirements of Title III of the ADA with regard to the facility operated by the pre-school and leased from the religious organization? 5. In this situation whose responsibility is it to ensure compliance with Title III of the ADA? 6. Would the pre-school be obligated to ensure that the portion of the religious organization's premises it leases must comply with Title III of the ADA? 7. What is the responsibility and to whom does the responsibility for compliance with Title III belong for common areas used both by the religious organization and the pre-school, such as bathrooms, hallways, stairwells, lobbies, parking lots, etc.? I would appreciate your consideration of these issues and a written advisory response at your earliest convenience. Very truly yours, MARY E. BRUNO MEB:ed 1069C.477 01-00888