DJ 202-PL-757 MAY 23 1994 Ms. Sue Maxwell Alpena Civic Theatre 10039 U.S.

23 South Ossineke, Michigan 49766 Dear Ms. Maxwell: I am responding to your letter to Ms. Sheila Foran regarding the Americans with Disabilities Act (ADA). The ADA authorizes the Department of Justice to provide technical assistance to individuals and entities that have rights or responsibilities under the Act. Pursuant to that authority, this letter provides informal guidance to assist you in understanding the ADA. However, this technical assistance does not constitute a legal interpretation of the statute, and it is not binding on the Department. You have asked about the requirements of the ADA in regard to providing access to persons with disabilities in an existing city-owned building that is leased to a volunteer theater group. According to your letter, the building has three stories, all of which are accessible only by use of stairs. Your letter expresses concern that an elevator may have to be installed between the stories. The first issue raised by your letter is whether the building is covered by title II, which prohibits discrimination on the basis of disability in programs offered by public entities, or title III, which prohibits discrimination on the basis of disability by private entities that own, operate, lease, or lease to places of public accommodation, including theaters, or both. The factors to consider in determining if a private entity such as your theater group is operating a program subject to title II are discussed in section II-1.2000 of the enclosed Title II Technical Assistance Manual. It is possible that both title II and title III may apply to this building, because the theater group may be seen as providing its program on behalf of the city. In that case, each covered

entity would be responsible for ensuring compliance with the title to which that entity is subject. Thus, the city would be responsible for ensuring program accessibility under title II 01-03105

-2its program on behalf of the city. In that case, each covered entity would be responsible for ensuring compliance with the which that entity is subject. Thus, the city would be responsible for ensuring program accessibility under title II and, at the same time, the theater group would be responsible for ensuring accomplishment of readily achievable barrier removal under title III. If the theater group is operating a city program, the city must ensure that the program, when viewed in its entirety, is readily accessible to and usable by individuals with disabilities, but it is not required to take any action that it can demonstrate would result in a fundamental alteration in the nature of the program or in undue financial and administrative burdens. 28 C.F.R. 35.150. If the installation of ramps or elevators in the theater at issue would create such undue burdens, the ramps or elevators need not be installed, but the city would be required to find other ways to provide access to its program, including, for example, moving some performances to an accessible location and advertising such performances as being accessible. Under title III, if applicable, the theater group, as the operator of a place of public accommodation located in an existing building, would be required to remove architectural barriers to the extent such removal is readily achievable, i.e., easily accomplishable and able to be carried out without much difficulty or expense. 28 C.F.R. 36.304. Replacing stairs

with a ramp or elevator would constitute barrier removal. Whether removal of any particular barrier is readily achievable is determined on a case-by-case basis and will depend on a number of factors that are discussed in section III-4.4200 of the enclosed Title III Technical Assistance Manual. A public accommodation generally would not be required to remove a long flight of stairs if such barrier removal would require extensive ramping or installation of an elevator. Therefore, if removal of the stairs in your theater would require installation of an elevator and such installation would be very difficult and expensive in comparison to the theater's size and financial resources, the theater would not be required to install the elevator. If only a few stairs at the entrance needed to be ramped in order to provide an accessible entrance, on the other hand, the balance might shift to the point where, in light of the theater's resources, that form of barrier removal would be required. If removal of stairs were found not to be readily achievable, the theater would not have to be demolished or closed. Nor, however, would it be completely exempted from the ADA. The theater would still be required to perform whatever barrier removal was readily achievable. For example, the lack of 01-03106

-3an accessible entrance would not excuse the theater from providing accessible seating or accessible restrooms to the extent such measures are readily achievable. In addition, the lack of an accessible route to the upper floor would not excuse the theater from providing an accessible entrance or making the facilities on the upper floor accessible, to the extent those measures are readily achievable. The distinction between title II and title III may also affect the elevator requirement in other ways. Under title III, an elevator will generally not be required in a building that has fewer than three stories or less than 3,000 square feet per story. Therefore, if your theater building had less than 3,000

square feet per story, it would be exempt from the requirement to provide an elevator between floors under title III (although all other accessibility requirements would still apply), even if installation of an elevator were readily achievable. This elevator exemption is not provided under title II. More stringent requirements may apply to your building under either title II or title III if any alterations have been undertaken since the effective date of the Act, January 26, 1992. Your letter also asks whether the city could obtain a determination of ADA compliance in advance of the filing of a formal complaint. The ADA does not provide such a procedure. Finally, your letter asks what the enforcement procedures are under title II and what the deadlines are for compliance with title II. The applicable procedures under title II depend, to a certain extent, on the size of the covered entity. The final deadline for making structural changes to achieve program access is January 26, 1995. However, such structural changes must be completed as expeditiously as possible. The procedures and deadlines under title II are described in detail in the enclosed regulations at pp. 35718-35721. I am enclosing the Department's regulations implementing title II and title III, and the Department's Technical Assistance Manuals for your further reference. I hope that this information is helpful to you. Sincerely,

John L. Wodatch Chief Public Access Section Enclosures