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U.S. Department of Justice Civil Rights Division Coordination and Review Section DJ 204-012-00034 P.O.

Box 66118 Washington, D.C. 20035-6118 JAN 27 1994 Mr. Barry M. Vuletich Manager of Consumer Affairs Division of Rehabilitation Services Department of Human Services P.O. Box 3781 Little Rock, Arkansas 72203 Dear Mr. Vuletich: This letter is in response to your letter of May 25, 1993, requesting our formal opinion on various issues that arise under the Americans with Disabilities Act of 1990 (ADA) when a State agency leases a building or facility from a private entity. The ADA authorizes the Department of Justice to provide technical assistance to individuals and entities with rights or obligations under the Act. This letter does not, however, constitute a legal interpretation or a formal legal opinion, and is not binding on the Department of Justice. Although your letter is not completely clear, we assume you are referring to the issues that arise when a State agency, subject to title II of the ADA, leases a building or facility from a private landlord. These issues are discussed, in some detail, in the preamble to section 35.151 of Department's regulation implementing title II of the ADA (the Preamble). See page 35711 of the enclosed copy of the title II regulation. As noted in the Preamble, existing buildings leased by a public entity are not required to meet accessibility standards simply by virtue of being leased. The activities that the State conducts within such buildings are, however, like all services, programs, and activities conducted by the State, subject to the "program access" requirement set forth in section 35.150 of the title II regulation and further discussed in section II-5.0000 of

the Department's title II Technical Assistance Manual, a copy of which has been enclosed for your convenience.


2 Under the "program access" requirement, a public entity, such as the State of Arkansas, must operate each of its services, programs, and activities, so that when viewed in its entirety, that service, program, or activity is readily accessible to and usable by individuals with disabilities. See section 35.150(a) of the title II regulation. Although it is not necessary for a public entity to make each of its existing facilities accessible, and the regulations provide other methods by which the entity may comply with the "program access" requirement, see section 35.150(b)(1), the Department encourages public entities to lease the most accessible space available. At a minimum, public entities are encouraged to lease space that complies with the minimum standard applicable to the Federal government when it leases space. That standard is discussed in the Preamble to section 35.151, cited above. The three elements of the standard are: (i) an accessible route from an accessible entrance to the areas where the primary activities for which the building was leased take place; (ii) accessible toilet facilities; and (iii) accessible parking facilities. Leasing space that complies with this minimum standard, while not required, will greatly facilitate the State's obligation to provide program access. Thus, in response to your first question, the State retains all of its title II responsibilities for providing program access, and for otherwise complying with title II, when it leases a building or facility from a private entity. In response to your second question, this would, of course, include its

responsibility for identifying barriers to program access as part of the process of preparing the State's transition plan. Finally, even if the State's landlord is "not agreeable" to making the necessary changes, the State continues to be the party responsible for complying with all aspects of title II. We assume that by the phrase "agreeable to" making changes, you are referring to the landlord's willingness to pay for such changes. Whether a private landlord is willing to make changes (or to permit changes to be made) to its buildings or facilities that would assist a State in complying with its obligations under title II is likely to be largely determined by the provisions of the lease. By virtue of the definition of "public accommodation" under the regulation implementing title III of the ADA (ie., a private entity that owns, leases (or leases to), or operates a place of public accommodation), a private landlord leasing to a public entity does not have any independent obligation to modify (or to permit the public entity to modify) buildings or facilities owned by the private entity. 01-02899 3 If the landlord refuses to pay for, or even to allow the State to make the modifications needed for compliance with the ADA, whether or not its refusal violates the terms of its lease with the State, the State retains an independent obligation to provide program access by some other method. (The State would, however, retain any rights against the landlord provided by the lease.) I hope this information has been of assistance to you. If you require further assistance or advice, please do not hesitate to write. The Department can also be reached through its ADA Information Line at (202) 514-0301 (Voice) and (202) 514-0383 (TDD) 1:00 p.m. to 5:00 p.m., Monday through Friday. Sincerely, Stewart B. Oneglia Chief

Coordination and Review Section Civil Rights Division Enclosures (2)