T.

2/2/93 SBO:AMP:ca DJ 204-11E-0 FEB 16 1993 The Honorable Wally Herger Member, United States House of Representatives 2400 Washington Avenue, Suite 104 Redding, California 96001 Dear Congressman Herger: This letter is in response to your inquiry on behalf of your constituent, Diane Garcia, regarding her request for a waiver under the Americans with Disabilities Act (ADA). The ADA authorizes the Department of Justice to provide technical assistance to individuals and entities that are subject to the Act. This letter provides informal guidance to assist you in responding to your constituent. However, this technical assistance 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 ADA does not provide for the waiver of any of its requirements whether by Federal, State or local authorities. All covered entities are expected to fully comply with all applicable provisions. We are unaware of any waiver granted to San Francisco, but, as stated above, any such waiver would not be valid. In response to Ms. Garcia's concern regarding the requirement for accessible restrooms in State offices, please note that, with respect to existing facilities, title II of the ADA (which covers State and local governments) does not contain any specific requirements for the number of restrooms that must be made accessible. Under title II, a State or local governmental entity must operate its programs and activities so that, when viewed in their entirety, such programs and activities are readily accessible to and usable by individuals with disabilities.

The concept of "program access" is discussed in sections 35.149 and 35.150 of this Department's title II regulation, 28 C.F.R. Part 35, and on pages 19-22 of the title II Technical Assistance Manual (copies enclosed). As stated in section cc: Records CRS Friedlander Pecht.herger.ltr McDowney, FOIA, Breen 01-01908 2 35.150(a)(3) of the title II regulation, a title II entity is not required to take any actions that it can demonstrate would result in a fundamental alteration of its services, programs, or activities, or in undue financial and administrative burdens. In this instance, the public entity should ensure that accessible restroom facilities are available when restrooms are available to other members of the public. In determining how to meet its responsibility to provide "program access", a public entity may look to the requirements of either the Uniform Federal Accessibility Standards (UFAS) (copy enclosed) or the ADA Accessibility Guidelines (Guidelines) for guidance. The Guidelines are attached as Appendix A to the title III regulation (copy enclosed). We would direct your attention to section 4.1.6(3)(e) of the Guidelines, which permits the installation of at least one unisex toilet/bathroom per floor in the same areas as existing toilet facilities where it is technically infeasible to comply with the new construction requirements in an existing facility. It is important, however, to keep in mind that, under title II, program access is the goal and that full compliance with UFAS or the Guidelines is only mandated in the case of new construction or where alterations are being undertaken independently from the requirement for achieving program access. I hope this information is helpful to you in responding to your constituent's inquiry. Sincerely,

James P. Turner Acting Assistant Attorney General Civil Rights Division Enclosures (4)

01-01909

October 28, 1992 Wally Herger, Congressman 2400 Washington Avenue Suite 410 Redding, CA 96001 Dear Congressman Herger: Re: American Disability Act. State Board of Equalization Lease. I represent the owner of the building located at 2400 Washington Avenue and I am currently negotiating an extension of a lease for the State Board of Equalization at 2400 Washington Avenue. The State Board of Equalization has been in this building since January 1977 and wishes to remain. The problem with the negotiations is complying with the American Disability Act. According to the State the ADA requires that we create Handicap restrooms.

On the floor in which the State Board of Equalization's offices are located, we have Men's and a Women's restrooms with two non-Handicap stalls in each. The owner is prepared to remove one stall in each of the existing restrooms and create Handicap restrooms; one for Men and one for Women. However, we are told by the State that in order to comply with the ADA and local codes, we need 2 stalls in each restroom and one has to be handicap. We do not have the space in the building to do this because tenants occupy the spaces on either side of the restrooms. We understand that in San Francisco an exception to the ADA Regulations was given in order to keep the State in a building where stairs were unacceptable, so it appears that exceptions can be made. We need your help in this matter urgently. It is our desire to cooperate and comply with the ADA Regulations to allow equal access to this private building, in which a public entity is located, but the requirement has to be realistic in view of the fact that this is an existing building.

01-01910 October 28, 1992 Page 2 Re: American Disability Act.

To create a Men's and Women's one stall Handicap accessible restroom the costs are prohibitive, approximately $6,000.00. However, the owner has indicated a willingness to cooperate. We need an exception to ADA Regulations from the State and Federal Government to allow the building to have one Men's and one Women's handicap stall only in each restroom with a side transfer in the space available in the building. To reiterate, the State does not have the monies to

relocate the State Board of Equalization. They have occupied this space for Sixteen (16) years and wish to continue their occupancy in this building. We request that you give this matter your prompt attention. Respectfully,

Diane Garcia, Broker Property Manager for Washington Plaza 200 Ridgetop Drive #18 Redding, CA 96003

CC: Stan Stathem; Assemblyman 1st District Gerald Moore; Department of General Services Frank Wilson; Contractor William Lisac;Shasta Associate, Ltd. REF:ADA1092 01-01911