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National Association of Home Builders 15th and M Streets, N.W., Washington, D.C.

20005 (202) 822-0401 Fax No: (202) 822-0374 Kent W. Colton, Ph.D. Executive Vice President & Chief Executive Officer

August 3, 1992

Mr. John Wodatch Office on Americans with Disabilities U.S. Department of Justice 10th St. and Constitution Ave. Washington, D.C. 20530 Dear Mr. Wodatch: Last October, we wrote your office requesting the Department to clarify that model homes are not covered under the Americans with Disabilities Act (ADA). We are pleased that the Department addressed this issue in its Technical Assistance Manual issued earlier this year. While this document provides necessary clarification, it appears that there is still some confusion on how the regulations apply to model homes used as sales offices. Based on our reading of the ADA and the Department's regulations, as well as on conversations we have had with attorneys in your office, it appears that the obligation to provide accessibility to a sales office in a model is subject to the barrier removal regulations found at 28 C.F.R. Sections 36.304 and 36.305. We would appreciate it if your office could formally confirm our understanding an this issue. On page four of the January 24, 1992, Technical Assistance Manual, a copy of which is attached, the Department stated that model homes are not places of public accommodation, and therefore are not covered under ADA. In the same paragraph, the Department stated "(i)f, however, the sales office for a residential housing development were located in a model home, the area used for the sales office would be considered a place of public accommodation." What is missing from this paragraph, however, is a reference to the barrier removal requirements of ADA. The manual does not explain that while the area would be considered a place of public accommodation, accessibility to the area in question would be subject to the barrier removal rules. Thus, an individual reading

the Technical Assistance Manual with little understanding of the ADA regulations could interpret this paragraph to mean that a builder would have to reconstruct the sales area to provide accessibility in all cases regardless of cost or difficulty. This result is inconsistent with the ADA.

01-02237 Mr. John Wodatch July 30, 1992 Page two We believe that the builder's obligation to provide accessibility to the sales area should be analyzed in light of the Department's barrier removal regulations, specifically, 28 C.F. R. Sections 36.304 and 36.305. While accessibility to the area used as a sales office should be provided, builders are only required to provide accessibility if it is reasonable to do so given the particular circumstances. If it is not reasonable to provide accessibility because of the cost or because it is structurally not practicable, the regulations provide that it is acceptable to relocate sales activities to an accessible location. The following examples illustrate these principles. An accessible route to the front door should be provided, if it can be done easily and without much cost. If it is not reasonable to provide accessibility to the model, then an alternative solution should be used. This could mean relocating the sales activity to another location. For example, if there are one or two steps to the front door, a ramp could be provided without much cost. If, however, there is a flight of stairs to the front door, then it may not be reasonable or practical to provide an accessible entrance. In that case, it would be acceptable to relocate the sales activity to an accessible location. An accessible location could be the customer's residence, another office of the builder, or any mutually agreeable location. Within the model, an accessible route to the sales area should be provided if this can be easily accomplished. If a desk is provided for sales purposes, then the furniture should be usable by someone with a disability. If an accessible route or accessible furniture is not readily achievable, then a builder can

meet his obligations under ADA by relocating sales activities to an accessible location. With respect to restrooms, there is no requirement that a public restroom be provided. However, if a restroom is open to the public, then it should be accessible subject to the barrier removal requirements. This means that if the restroom is not accessible, it should be made accessible if accessibility can be achieved without much difficulty or expense. For example, a ramp can easily be installed if there are a few steps up to the restroom. If, however, the measures necessary to provide accessibility would be too costly or too difficult, a builder is not required to construct an accessible restroom. In that situation, a builder can meet his obligation to provide an accessible restroom by directing persons to the closest accessible facility. Such a restroom might be in another model on the site, or could be the closest public restroom in the area. 01-02238 Mr. John Wodatch July 30, 1992 Page three We believe this interpretation is consistent with the Department' s regulations. Because of the importance of this issue to the building industry, we would appreciate it if you would formally confirm our understanding on this issue as soon as possible. We would also like to request the Department to clarify this issue in the Technical Guidance Document by inserting a statement indicating that the obligation to provide accessibility to the sales office area of a model home is subject to the barrier removal rules set forth in 28 C.F.R. Sections 36.304 and 36.305. We believe these actions will greatly assist our members as well as other interested parties in complying with ADA. Sincerely

Kent W. Colton

Executive Vice President and Chief Executive Officer Attachment 01-02239