AUG 11, 1993

The Honorable F. James Sensenbrenner, Jr. Member, U.S. House of Representatives 120 Bishops Way, Room 154 Brookfield, Wisconsin 53005 Dear Congressman Sensenbrenner: This letter is in response to your inquiry on behalf of your constituent, xx . According to your inquiry, xx contacted you regarding the inaccessibility of the second floor of the Sheboygan-area Menards store to persons with disabilities. The Americans with Disabilities Act (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's requirements. However, it does not constitute a legal interpretation or legal advice and it is not binding on the Department of Justice. Retail stores are places of public accommodation under title III of the ADA. The ADA requires public accommodations to remove architectural barriers in existing facilities where such removal is "readily achievable," i.e., easily accomplishable and able to be carried out without much difficulty or expense. Your constituent states that he is unable to gain access to the second floor of the Sheboygan-area Menards store. It is quite possible, however, that the store is not obligated to install an elevator. Under the ADA Standards for Accessible Design, elevators are not required in facilities that are less than three stories or that have less than 3000 square feet per story, unless the building is a shopping center, a shopping mall, or the professional office of a health care provider. See page 35613 of the enclosed Title III regulation. Even if the Sheboygan-area Menards store is located in a building that qualifies as a shopping center or mall under the technical standards, or otherwise does not qualify for the elevator exemption, the store may not have to install an

elevator. Determining if barrier removal in a public cc: Records, Chrono, Wodatch, McDowney, Bowen, Foran, FOIA, MAF Udd: Foran:Sensenbr.Con

01-02517 -2accommodation is readily achievable is necessarily a case-by-case judgment. Whether rendering the second floor of a particular retail store accessible is readily achievable would be determined according to the following factors: (1) the nature and cost of the action needed; (2) the overall financial resources of the site or sites involved in the action; the number of persons employed at the site, the effect on expenses and resources; legitimate safety requirements necessary for safe operation, including crime prevention measures; or any other impact of the action on the operation of the site; (3) the geographic separateness, and the administrative or fiscal relationship of the site or sites in question to any parent corporation or entity with respect to the number of employees; the number, type, and location of its facilities; (4) if applicable, the overall financial resources of any parent corporation or entity; the overall size of the parent corporation or entity with respect to the number of its employees; the number, type, and location of its facilities; and (5) if applicable, the type of operation or operations of any parent corporation or entity, including the composition, structure, and functions of the workforce of the parent

corporation or entity. Generally, a public accommodation would not be required to remove a barrier to physical access posed by a flight of steps if removal would require very extensive ramping or an elevator. In contrast, ramping a single step will likely be readily achievable, and ramping several steps will in many circumstances also be readily achievable. See preamble to enclosed title III regulation at page 35568. As is clear from the foregoing, it is possible that rendering the second floor of the Sheboygan-area Menards store accessible may not be readily achievable under the law. Even if Menards can demonstrate that removal of barriers is not readily achievable, however, it still must make its goods and services available through alternative methods, if such methods are readily achievable. Thus, for example, the store might be obligated to ensure that a clerk is available to retrieve items from the second floor for persons with mobility impairments. See preamble to enclosed title III regulation at page 35570. 01-02518 If xx wishes to pursue his complaint against Menards, he may file a complaint with this office at the following address: Public Access Section Civil Rights Division P.O. Box 66738 Washington, D.C. 20035-9998 The letter should include a full address for the particular Menards store which is the subject of his complaint. Please make XX aware that, due to the volume of complaints received and limited resources of this office, not every complaint is investigated. It is not likely that we would open this complaint for investigation. In light of this, you may want to inform XX that the ADA provides a private right of action and that he is free to obtain private counsel. In addition to contacting a private attorney, there are a number of avenues that XX may wish to pursue in order

to resolve his complaint, including consulting State or local authorities, disability rights organizations, or organizations that provide alternative dispute resolution services (such as arbitration or negotiation). For your convenience, we have enclosed a list of organizations serving your constituent's area. These listings come from various sources, and our office cannot guarantee that the listings are current and accurate. These groups may be able to refer XX to national or regional groups with a focus on a particular type of disability. Your constituent's local or State bar association may be able to give him names of private attorneys or mediation services. Some Better Business Bureaus are also prepared to help settle ADA complaints. Enclosed also please find a copy of the Department's Title III Technical Assistance Manual. I hope this information will assist you in responding to your constituent. Sincerely, Brian K. Landsberg Acting Assistant Attorney General Civil Rights Division Enclosures 01-02519 (Handwritten) Dear Congressman, I was in touch with your office a couple days ago and presented them with a problem I have with Menards. Menards is a building materials place & several other items I'm sure you are familiar with. My concern is this, I believe they are supposed to be handicap accessible. They are to a point but the have a second floor with items displayed up there, lights, ceiling fans, telephones etc, etc. I'm in a wheel chair and cannot get up there to pick out light and ceiling fans as I am remodeling my house. I talked to the manager of the Sheboygon store and asked him if they were going to do something about making that portion handicap accessible. And, if so when he told me we're not going to do anything about it. So, I got the presidents name & address at their corporate headquarters in Eau Claire, WI and wrote him a letter asking him if & when they

were going to make their upstairs handicap accessible and he did not even have the decency to answer my letters. I don't know where else to go but you. Can you help get this problem resolved? Thank You Sheboygon, WI 53081 Telephone xx 01-02520