January 26, 1994 Civil Rights Division Office on the Americans with Disabilities Act U.S. Dep't. of Justice P.O.

Box 66118 Washington, D.C. 20035-6118 Atten: Ms. Sheila Foran Dear Ms. Foran: I spoke to you by telephone on January 12 regarding our theater's situation with regard to the ADA. The advisory information you gave was very helpful, as were the publications you forwarded. Thanks so much for your assistance. While members of our theater group are less concerned now, we find that the Council and staff of the City of Alpena, owners of the building, continue to be worried about possible suit. They cannot afford to install an elevator, even if that were possible, and they are investigating terminating our lease or, possibly, razing the building. I'm writing for more help. I've tried to call you again, but, as I'm sure you know well, it's difficult and expensive to get through. To refresh your memory: we're an all-volunteer group with no paid staff, occupying a City-owned building which is not accessible. We are the sole occupants of the building and have been there for 30 years. The building has a basement (down nine steps from the lobby), an office and lobby in the front of the building (up three steps from ground level), and an upstairs auditorium (up 15 steps from the lobby). When you asked us the test questions from the Supplement to the Title II Technical Assistance Manual, our answers were: the City pays approx. $2,000 per year, half of the building's heating costs; we have no employees; the $1.00 per year leased building is critical to our existence; we are governed by a board made up of our officers and the directors of our plays. This board has no connection of any kind to City government and the City is not involved in our operation in any way.

01-03108 Your interpretation, as I understood it, was that the building in question would fall under Title III, even though the City owns the building, because the nexus between the City and the occupant is not close enough for us to be considered to be part of a City program or service. Thus, barrier removal work that is not "readily achievable" would not be required by the ADA. In addition, as I understood you, even if it should be determined that ACT is part of a City program and therefore under Title II, the City could successfully defend itself against a Complaint, if one were filed, by arguing that it would be an "undue burden" to the City to provide accessibility because of the City's size (13,000) and especially because of its previous expenditures to provide access in other City buildings. If the above is a valid statement of your advisory opinion, could you please either initial this letter and return it to us, or write one of your own saying so? We need to have some documentation, even though we know that the opinion is not legally binding. Also, we need further information. If a Complaint were filed against the City, what would happen? What process would be followed" Is a predetermination or waiver of some sort in advance of a Complaint possible or is determination and enforcement dependent upon a Complaint? Is the City required to do anything now if the building would fall under Title II? What deadlines for compliance do they face? Again, thanks so much for your help. Sincerely,

ALPENA CIVIC THEATRE Sue Maxwell 10039 U.S. 23 S. Ossineke, MI 49766 (517) 471-2235