DJ 202-PL-367 SEP 10 1993 Mr.

Kent Lee Woodman ADAAG Compliance Services 12920 Hillside Drive Anchorage, Alaska 99516-3260 Dear Mr. Woodman: This letter responds to your inquiry about the obligations of public accommodations to remove architectural barriers to access or to provide alternatives to barrier removal. We apologize for the delay in responding. The 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. Your letter asks about the obligations of landlords who own facilities with inaccessible levels, and whether a landlord may rent space to a public accommodation on an upper or lower level not served by an elevator. You correctly point out that elevators are not required in buildings that are less than three stories or less than 3,000 square feet per story if they do not house shopping centers, offices of a health care provider, or transportation depots. There is nothing in the title III regulation that prohibits the owner of a building from renting a second floor space to a place of public accommodation, even if the building has no elevator. Public accommodations located on the second floor of an existing building are subject to the same barrier removal requirements as are entities located on ground floors -- that is, they must remove architectural barriers to access where it is readily achievable to do so. This requirement may mean that a second floor establishment must install grab bars in its restrooms, rearrange its furniture to provide maneuvering room, cc: Records, Chrono, Wodatch, Magagna, Contois, FOIA, MAF

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-2install accessible door hardware, or otherwise remove barriers to access to its facility if such modifications are readily achievable -- that is, able to be accomplished without much difficulty or expense. However, neither the business nor the landlord would be required to provide an elevator or other means of vertical access to the second floor of a building that qualifies for the elevator exemption. For more information on the removal of architectural barriers, see section 36.304 of the enclosed title III regulation at pages 35597-98 and the discussion of that section at pages 35568-69. I hope this information is useful to you in understanding the requirements of the ADA. Sincerely, John L. Wodatch Chief Public Access Section

Enclosures (2) Title III Technical Assistance Manual Title III Regulations 01-02586

ADAG* COMPLIANCE SERVICES 12920 Hillside Drive Anchorage, Alaska 99516-3260 Phone: (907)345-1356 FAX: (907) 345-1626 OFFICE ON THE AMERICANS WITH DISABILITIES ACT Civil Rights Division U.S. Department of Justice Post Office Box 66118 Washington, D.C. 20035-6118 Gentlepersons, 07 October 1992

I write to communicate a concern about ADA that has surfaced locally, and to request if you folks have been party to any discussions or have any knowledge of the principals noted below. Let me begin by telling you that I have no position. I am an independent consulting engineer who specializes in helping landlords and owners perform facility Surveys and to write PLANS to help them comply with the provisions of Title III of the ADA with minimum disruption and maximum efficiency. As I work with owners, I frequently find that they were much more worried and concerned about what the impact was going to be on them fiscally before I do my work, than after. This is in part simply because there is so much misinformation out there. However, Alaska has been in a financial bust for about 6 years, and most building owners have lost many, many dollars in

lowered rents and empty facilities. There have been thousands of foreclosures on buildings where they could not rent due to the economy. I tell you this to set the stage. Several months ago there was a Supreme Court case that involved a couple in California. (Sorry I do not have the cite) It seems they had been paying for a lovely piece of Pacific Ocean beach front property for years and finally got it paid off and put enough away to build their retirement dream home. In the interim, their local jurisdiction, which controls architectural details, determined that there was too much construction out that way and that their pristine ocean views were disappearing, and they refused them a building permit. The couple complained that that constituted a "taking" without compensation, for they now owned the most expensive piece of private park property on the Coast. The Supreme Court agreed and it was a landmark case for realtors and local jurisdictions. Now let us apply the principal as it is being discussed locally with the ADA: Let us imagine that someone owns a 2 story building of say 10,000 SF/floor. It is composed of general office spaces and would variously rent out to as few as 2 or as many as a dozen renters, depending on their space requirements. Let us go further and stipulate that the building has NO health care providers. Accordingly, EXEMPTION I of ADA Guide 4.1.3(5) applies, and there is an exemption which tells the landlord that he/she need NOT spend $100,000 to retrofit the aging and fiscally losing facility with a 2 story elevator. (notwithstanding the test of "readily achievable") *Americans with Disabilities Act Guidelines 1 01-02587 Now let us assume that the second floor of the building has been empty for 2 years; a circumstance not the least bit unusual locally, but the owner has somehow managed to hang on, perhaps using up all his/her savings. In good faith, the owner has been trying hard to rent the upper floor; has listed it continuously and has showed it frequently. He/she finds the market very soft, as competitors all over town offer their space for less just to fill it and get some cash flow. Enter ADA. EXCEPTION I to ADA Guide 4.1.3(5) indicates that even with the Exception in place, that there is NO reduction of the duty to offer services to the public on the part of the 2nd floor occupancies. Specifically: The elevator exemption set forth in this paragraph does not ob-

viate or limit in any way the obligation to comply with the other accessibility requirements established in section 4.1.3.... In our hypothetical building, let us assume that there is minimum common area, so setting up a desk in the lobby to offer "Alternate service", is not practical. And so the landlord goes searching for tenants. Because of publicity surrounding the ADA implementation, tenants are now a little better educated and they ask specifically how the landlord will facilitate the alternate service if they rent upstairs. The landlord has no answer. The landlord then meets with a consultant like me and his Realtor and we brainstorm. Obvious answer is to rent the upper floor only to those type of rentals which do not constitute a PUBLIC ACCOMMODATION; i.e. an office for a consultant like me who never sees the public in the office, or storage, or an employee-only area for someone renting on the first floor. It does not take the gathered brainstormers long to recognize that they have thus limited their potential renting clientele to about ten percent (10%) of the public. The building owner is disturbed, because when he built the place he completely complied, and now he perceives A GREATLY REDUCED VALUE due to the inability to successfully market the 2nd floor to the same public as in the past. (not to mention problems when trying to sell it) Though he/she is protected by the elevator exemption, his/her lessees are NOT exempted from providing the accesses required for a Public Accommodation, and they do not see how they can comply if they rent the sample building. BOTTOM LINE: How is this not a "public taking" without compensation? What do you tell this building owner as he/she laments and torments, all the while not renting his/her facility, and ultimately going into a chapter proceeding to attempt to buy time? I find this an intriguing scenario, and I would be very pleased to read anything you may already have, or to share your thoughts and observations. Thank you in advance! KENT LEE WOODMAN, Principal [ws7.0a:\D:\WSFILES\ADA\JUSTICE] 01-02588