T. 1/25/93 SBO:SK:ca DJ 202-80-0 FEB 1 1993 The Honorable Charles S.

Robb United States Senator 1001 East Broad Street Richmond, Virginia 23219 Dear Senator Robb: This responds to your inquiry on behalf of your constituent, (b)(6) , concerning a Virginia statute that authorizes issuance of a special hunting permit that allows individuals with disabilities to shoot game animals from a stationary vehicle. Eligibility for the special permit is limited to individuals who are permanently unable to walk. XX asked whether, under the Americans with Disabilities Act (ADA), eligibility for the special permit would be extended to all individuals with mobility impairments. 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 the question raised by your constituent. This technical assistance, however, does not constitute a determination by the Department of Justice of your constituent's rights or responsibilities under the ADA and does not constitute a binding determination by the Department of Justice. The Department's regulation implementing title II of the ADA, which applies to all programs, services, and activities of State and local governments, prohibits a public entity from discriminating against qualified individuals with disabilities in the benefits and services that it provides. 28 C.F.R. pt. 35. Section 35.130(c) of the regulation, however, permits a public entity to offer benefits to individuals with disabilities, or a particular class of individuals with disabilities, that it does not offer to individuals without disabilities. The purpose of this provision is to allow State and local governments to provide special benefits, beyond those required by the ADA, that are limited to individuals with disabilities or a particular class of individuals with disabilities, without thereby incurring

additional obligations to persons without disabilities or to other classes of individuals with disabilities. cc: Records, CRs Friedlander, Kaltenborn.robb, FOIA, Breen, McDowney

01-01890 -2Where a benefit is limited to individuals with disabilities or a particular class of individuals with disabilities, discrimination is determined by comparing the treatment of an individual with a disability to the treatment provided to similarly situated individuals without disabilities. Because individuals without disabilities are not eligible for the special permit, denial of that permit to individuals with disabilities who are not permanently unable to walk does not constitute discrimination prohibited by title II. The State is free to limit eligibility for the special permit to the particular class of individuals with disabilities who are permanently unable to walk, because the limitation does not deny a benefit to individuals with disabilities that is provided to similarly situated individuals without disabilities. I hope this information is helpful to you in responding to (b)(6). Sincerely, James P. Turner Acting Assistant Attorney General Civil Rights Division

01-01891 Dear Senator Robb, This is in reference to a disabile permit. The virginia game commision has such a permit, but it states that you must be unable to walk. Under the new Americans with disabilty Act wouldn't this intitle people that are disabled due to a mobility impartment. Under the new law could some one get this permit if they were disabled. Thank you 14. Shooting wild birds and wild animals from stationary vehicle by disabled person. Any person, upon application to a game warden and the presentation of a medical doctor's written statement that such person is permanently unable to walk, may, in the discretion of such game warden, be issued a permit to shoot wild birds and wild animals from a stationary vehicle during established open hunting seasons and in accordance with other existing laws and regulations. Such permit will be issued on a form provided by the commission, which may authorize shooting from a stationary vehicle not less than 300 feet from nor across any public road or highway, and only when the bearer is properly

licensed to hunt. Such permit shall be nontransferable, and any permit found in the possession of any person not entitled to such permit shall be subject to immediate confiscation by a game warden. Deer of either sex may be taken under the provisions of this permit in those counties where deer hunting is permitted. (Added 5-3-74: amended 5-7-76: 5-3-85, effective 7-1-85.) 01-01892