202-PL-358

DEC 4 1992 Ms. Martha L. Mann Special Legislative Counsel Division of Legal Counsel The City of New York Law Department 100 Church Street New York, New York 10007 Dear Ms. Mann: This letter responds to your request for guidance concerning the application of title II of the Americans with Disabilities Act (ADA) to a proposed franchise for the installation and operation of public toilet facilities in the City of New York. It does not address any obligations that a private provider or operator of these toilet facilities may have under title III of the ADA. By the end of this year, the Architectural and Transportation Barriers Compliance Board (Access Board) will issue proposed accessibility guidelines for newly constructed or altered facilities covered by title II of the ADA (Title II Accessibility Guidelines). Among other things, these proposed Guidelines will address scoping and technical standards for fixed public toilets on public streets. The title II regulation issued by the Department of Justice currently allows public entities to choose between the Uniform Federal Accessibility Standards (UFAS) and the ADA Accessibility Guidelines adopted in the Department's title III regulations (without the elevator exemption). When final Title II Accessibility Guidelines are issued, the Department of Justice will eliminate this choice and those Guidelines will be the sole standard for title II compliance. Neither of the current UFAS or ADAAG provisions for single user portable toilet units would appear to apply to your proposed fixed toilet facilities. cc: Records, Chrono, Wodatch, Breen, FOIA, Friedlander Udd:Breen:toilets.nyc

01-01781 -2The Access Board has announced its intention to provide a 90-day period for public comment on the proposed Title II Accessibility Guidelines. It also intends to hold public hearings at five locations throughout the country during the second half of the comment period. After analyzing the comments received, the Access Board will issue final Title II Accessibility Guidelines that will have legal effect once the Department of Justice issues an amendment incorporating the Guidelines into its title II regulation. We believe that this title II rulemaking process will provide the appropriate forum for addressing the concerns raised in your letter. We invite and encourage you to participate fully in this process so that this important issue may be resolved in the fairest and most comprehensive manner possible.

Sincerely,

John L. Wodatch Chief Public Access Section

01-01782​

LAW DEPARTMENT

100 CHURCH STREET NEW YORK, N.Y. 10007 O. PETER SHERWOOD (212) 788Corporation Counsel October 6, 1992 John Wodatch, Director Office on the Americans with Disabilities Act Civil Rights Division U.S. Department of Justice P.O. Box 66738 Washington, D.C. 20035-9998 Dear Mr. Wodatch: We are writing to request guidance as to how the Americans with Disabilities Act (the "ADA") applies to a proposed franchise for public toilets that is under consideration in the City of New York. On June 30, 1992, the City of New York commenced a four month pilot project for which three pairs of public toilets were installed at three designated sites in the City -- West 34th Street across from Macy's Department Store; Chambers Street at City Hall Park; and 125th Street in front of the Adam Clayton Powell Jr. State Building. The public toilets come in two models, one of which is accessible to persons who use wheelchairs, and were donated and installed by their French manufacturer, J.C. Decaux International. J.C. Decaux International is also servicing the units during the pilot project's duration. After the pilot project is completed, the City of New York's Department of Transportation will make public a written evaluation of the pilot project. This evaluation will be considered for purposes of making a determination as to whether to proceed through the franchise process set forth in the New York City Charter for the permanent installation of pay toilets throughout the City of New York. It is with this anticipated franchise process in mind that we currently request the Department of Justice to comment upon the City of New York's obligations under the ADA.

As already noted, three pairs of public toilets manufactured and donated by J.C. Decaux International have been installed for the pilot project. The smaller, kiosk-size units are self-cleaning and coin-operated. The larger, wheelchair accessible units are not self-cleaning, but are monitored by 01-01783 attendants who clean the units after each use. Users can only gain access to the wheelchair accessible units with card keys that have been distributed free of charge to disabled persons by the City of New York. The card keys are distributed at sites near each wheelchair accessible facility during all hours that the facilities are in operation. The attendants at the three sites also have card keys on hand to assist users in gaining access. For the pilot project, the City of New York used the two different types of Decaux units available because of public safety concerns triggered by the larger size of the wheelchair accessible models. Since more than one person can occupy the larger models, which contain 29.7 square feet of public room compared to the 8.5 square feet of public room contained in the kiosk-size models, the larger models might be used for criminal or other improper activities. In order to prevent abuse of the larger models, they are made accessible only to persons who have received card keys. These card keys have been distributed to individuals whose disabilities preclude them from using the kiosk-size models. Use of the card keys was also made necessary because J.C. Decaux indicated that it would not provide coinoperated wheelchair accessible models because of potential tort liability. Thus far, the pilot project has proven to be enormously successful as well as popular with both residents and visitors. J.C. Decaux International has reported that the smaller, kiosk-size units are averaging 100 to 150 flushes per day whereas in Paris they only average 70 flushes. These statistics indicate that the units are meeting a substantial need in our community, and it is likely that the City of New York will want to proceed with a permanent installation. Any franchise granted by the City of New York must comply with all applicable federal, state and local laws relating to accessibility for persons with disabilities. If during the

solicitation process the City obtains a proposal for a single model toilet that would be accessible for use by all members of the population without posing risks to public safety or being susceptible to improper uses, that proposal, provided it met other requirements, would be awarded the franchise. However, in the event that we do not receive such a proposal, we are seeking guidance as to whether and how a franchise allowing for two models of public toilets could be implemented in a manner consistent with the ADA. Our own analysis of the final rules implementing Titles II and III of the ADA leads us to analogies premised upon single user portable toilets and restrooms. The Title III regulations, which incorporate the final guidelines issued by the Architectural and Transportation Barriers Compliance Board -201-01784 ("ATBCB"), provide that "[f]or single user portable toilet ... units clustered at a single location, at least 5% but no less than one toilet unit ... complying with 4.22 or 4.23 shall be installed at each cluster whenever typical inaccessible units are provided." Americans with Disabilities Act Accessibility Guidelines for Buildings and Facilities ("ADAAG") 4.1.2(6). The ADAAG rules also provide that where less than six toilet stalls are provided in a common and public use toilet room, only one toilet stall is required to be accessible. 1 With respect to the final rules issued under Title II of the ADA, Section 35.151(c) establishes two standards for accessible new construction and alteration. Design, construction or alteration of facilities in conformance with either the ADAAG rules, discussed supra, or the Uniform Federal Accessibility Standards ("UFAS"), contained in Appendix A to 41 C.F.R. S10119.6, is deemed to comply with the requirements of the section with respect to the particular facilities. 2 The UFAS rules contain specific provisions related to toilet rooms that are similar to the ADAAG rules. These rules state that toilet facilities required to be accessible must, inter alia, have doors that do not swing into the clear floor space required for any fixture. Appendix A 4.22.2. This and other applicable provisions are not mandatory for "single user portable toilets ... clustered at a single location," as to which "at least one toilet unit complying with 4.22 ... should be

installed at each location whenever standard units are provided." Appendix A 4.1.1(6). The ATBCB has announced its intention to issue Title II guidelines in the future. However, for the time being, either UFAS or ADAAG compliance presently satisfies the Title II requirements. Finally, the Title II rules also recognize that "[d]epartures from particular requirements of those standards by the 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." Id. (emphasis added). _______________________ 1 ADAAG 4.22.4 and 4.23.4; see also Federal Register, Volume 56, No. 144, July 26, 1991 at page 35421. In response to the different needs of persons with mobility impairments, the final ADAAG guidelines also state that where six or more toilet stalls are provided, a 36 inch wide alternate stall with parallel grab bars will be provided in addition to the 60 inch wide standard stall. Id. 2 S35.151(c) The only limitation is that the elevator exemption contained in section 4.1.3(5) and 4.1.6(1)(j) of ADAAG shall not apply under Title II of the ADA. Id. -301-01785 If the analogies to single user portable toilets and/or public restrooms are appropriate, the installation of accessible and smaller size units, if pursued for the permanent installation by a prospective franchisee, would appear to meet existing requirements under the ADA. Regardless of the appropriateness of these analogies, however, it is our view that safety concerns may still warrant a permanent installation of two different types of units. The final rules under Title III of the ADA recognize that "[a] public accommodation may impose legitimate safety requirements that are necessary for safe operation [provided] [s]afety requirements [are] based on actual risks and not on mere speculation, stereotypes, or generalizations about individuals with disabilities." S36.301(b). The City's concerns about the risks posed by the larger accessible models are not based on stereotypes or generalizations about individuals with disabilities. Rather, based on unfortunate past experience with public restrooms in subways and parks, the City is concerned that facilities larger

than kiosk-size increase the risk of criminal and other improper activity, and threaten the safety of their users. These safety concerns also support a system of limiting access to the larger, wheelchair accessible units to persons who have been issued card keys based on a determination that a disability prevents their use of the smaller facility. The card keys would be issued through government offices and organizations in the disability community, and it is also contemplated that they would be available at sites at or near the accessible units. By limiting access to those persons with disabilities who cannot patronize the kiosk-size units, the City hopes to ensure legitimate usage of the wheelchair accessible units and the safety and well-being of all the City's residents and visitors. 3 One question that neither the ADA nor its implementing regulations address is how close a kiosk-size unit and a wheelchair accessible unit would have to be to constitute a "cluster" of portable toilets or to fit within the analogy of multiple stalls in a single public use toilet room. It is our belief that the two units could be placed within several blocks of one another and still fall within either of these analogies. ________________________ 3 The report to be published by the City's Department of Transportation will evaluate the safety of the facilities used during the pilot project. However, the presence of attendants at the wheelchair accessible models during the pilot project may undermine the utility of the safety data collected. It will be difficult to predict, based on the experiences the City has had while attendants have been present, the extent to which accessible models that are self-cleaning and not watched by attendants might be abused. -401-01786 The constraints of site selection in a geographic area as densely populated as the City of New York warrant a several block radius for placement of the two units. The City has many rules and regulations limiting placement of facilities on its streets for reasons including, but not limited to, provision of a clear path for pedestrians, freeing busy intersections and eliminating blockage of bus shelters and subway entrances. Sewer and water connections also place limitations on the siting of such units.

If the City of New York does not get a satisfactory proposal for a single model toilet unit, the City believes that it would be in compliance with the ADA and its implementing regulations if it awards a franchise for the permanent installation of two different models of toilets, one of which is accessible to persons who use wheelchairs. The City also believes that it would be in compliance with the ADA and its implementing regulations if it limited access to the larger units to those persons whose disabilities prevented them from using the kiosk-size facilities. The City of New York would ensure that all qualified persons could obtain card keys to gain access to the wheelchair accessible units through government offices and organizations in the disability community. It is also contemplated that the card keys would be available at sites at or near the wheelchair accessible units. The City of New York asks for the Department of Justice's opinion on these matters. If the Department of Justice confirms that the use of two different units complies with the ADA, the City of New York also hereby seeks the Department of Justice's guidance with respect to the issues of (1) placement of the facilities, and (2) the permissibility of using special security measures such as card keys to prevent abuse of the larger facilities. We appreciate your assistance in this matter. If you would like further information, please call me at 212-788-1084, or Assistant Corporation Counsel Nancy Batterman, at 212-7881104. Sincerely yours,

Martha L. Mann Special Legislative Counsel Division of Legal Counsel -501-01787