DEC 13 1995 Mr. David F.

Tufaro Executive Vice President Summit Properties 1629 Thames Street Suite 200 Baltimore, Maryland 21231 Dear Mr. Tufaro: I am responding to your letter to Attorney General Reno commenting on the Americans with Disabilities Act (ADA) as applied to public libraries. You state that improvements cannot be made to the Roland Park Public Library in Baltimore City because any alterations would have to be in compliance with the ADA, which would be prohibitively expensive. Please excuse the delay in responding. Title II of the ADA prohibits discrimination on the basis of disability in State and local government services. The Department of Justice's regulation implementing title II (enclosed) attempts to balance the rights of individuals with disabilities to participate in government programs, services, and activities, with government entities' legitimate concerns about cost and administrative difficulty. To achieve this balance, the title II regulation provides flexible, performance-based standards of accessibility for programs occurring in existing facilities, where the cost of physical accessibility may be high. For new or altered facilities, on the other hand, where access can often be provided without significantly increased cost, the title II regulation requires newly constructed or altered areas to meet specific standards of accessible construction set out in the ADA Standards for Accessible Design (Standards) or the Uniform Federal Accessibility Standards (UFAS). Sections 35.149 and 35.150 of the title II regulation require accessibility to State and local government programs, 01-04115 ​ -2services, and activities in facilities existing on the effective date of the statute, January 26, 1992. The principal focus of the program accessibility standard is access to programs, services, and activities, as opposed to access to physical

structures. Therefore, not every area of an existing public library would have to be made accessible, as long as there is access to the library's programs, services, and activities. For existing facilities, every building does not necessarily have to be made accessible if all of the programs located inside that building can be made accessible by alternative means. Section 35.150(b)(1) of the title II regulation does not require that a public library eliminate structural barriers if it provides access to its programs through alternative methods such as redesign of equipment, reassignment of services to accessible buildings, assignment of aides to beneficiaries, delivery of services at alternate accessible sites, alteration of existing facilities and construction of new facilities, or any other methods that result in making the services, programs, or activities readily accessible to and usable by individuals with disabilities. Thus, for instance, if a public library's open stacks are located on upper floors having no elevator, as an alternative to making the upper floors accessible, library staff may retrieve books for patrons who use wheelchairs as long as the aides are available during the operating hours of the library. Or, if a public library has an entrance with several steps, the library can make its services accessible in several ways. It may construct a simple wooden ramp quickly and at relatively low cost. Alternatively, individuals with mobility impairments may be provided access to the library's services through a bookmobile, by special messenger service, through use of clerical aides, or by any other method that makes the resources of the library "readily accessible." Priority should be given, however, to methods that offer library services to individuals with and without disabilities in the same setting. If structural alterations are necessary to provide program accessibility, such alterations must be undertaken. However, a public entity does not have to take any action that it can demonstrate would result in a fundamental alteration in the nature of its program or activity or in undue financial and administrative burdens. This determination can only be made by the head of the public entity or his or her designee and must be accompanied by a written statement of the reasons for reaching that conclusion. The determination that undue burdens would result must be based on all resources available for use in the program. If an action would result in such an alteration or such

burdens, the public entity must take any other action that would not result in such an alteration or such burdens but would 01-04116 -3nevertheless ensure that individuals with disabilities receive the benefits and services of the program or activity. You have correctly noted that if Baltimore City undertakes structural alterations in order to provide program accessibility or for any other reason, the title II regulation requires that the altered areas comply with either the ADA Standards or the UFAS. The Department of Justice believes this approach will ensure full accessibility to people with disabilities in the long term while allowing State and local governments to control and minimize short-term costs. Your letter also raises issues pertaining to the implementation of the Fair Housing Act. Please note that the Fair Housing Act is enforced by the Department of Housing and Urban Development. If you wish to contact that agency regarding the law, you may write to: Ms. Bonnie Milstein, Director, Office of Program Compliance and Disability Rights, Department of Housing and Urban Development, 451 7th Street, S.W., Room 5112, Washington, D.C 20410. I hope this information is helpful. Sincerely, John L. Wodatch Chief Disability Rights Section Civil Rights Division Enclosure 01-04117 SUMMIT PROPERTIES November 10, 1995

The Honorable Janet Reno Attorney General of the United States U.S. Department of Justice Constitution Avenue & 10th Street, N.W. Washington, D.C. 20530

Re: American Disabilities Act Dear Attorney General Reno: I read the article that you and former Attorney General Dick Thornburgh wrote, celebrating the fifth anniversary of the American Disabilities Act. While the intent of ADA is clearly positive, your general statement does not square with the facts. I am going to cite some specific examples. I live in Baltimore City. I have served on the Board of the Friends of the Roland Park Public Library in Baltimore City. This is a two story library sitting in the midst of our community. Although it is a small branch of the Enoch Pratt Public Library System, it is one of the most heavily utilized libraries in the City's system. We have many older citizens of the community who use the library on a regular basis, and many students come here after school gets out in the afternoon. The Friends of the Library was formed several years ago to help address some physical deterioration of the building because of the City's shortage of money, and also to enhance certain resources of the library, i.e. magazine subscriptions and book collections. The library is in need of both renovation and expansion. The building consists of a basement, a ground floor which you have to access by steps, and a second floor. The building is part of a one hundred year old residential community which has been designated a historic district. The library staff and the City are of the view based on ADA that improvements to the building cannot be made without complying with ADA, which would be prohibitively expensive. Your statement in the article that you wrote suggests that if there were librarians available to assist handicapped persons that making the building handicap accessible would not be required. As you well know, Baltimore, like many other communities, does not have adequate funds to service current needs. It is doubtful that one would believe that there are adequate librarians available to provide handicap needs. In any event, who is going to make that determinaton? Can the City make that judgment by itself. or is that 01-04118​ going to be determined in Court when somebody files a lawsuit on behalf of a handicap person? Baltimore can ill afford to have to spend additional money on making a building like this accessible to the physically handicapped. I should add that the library system has recently built a library specifically for handicapped persons adjacent to the main library. Your examples of how matters are being interpreted reasonably are all well and good. However, that in fact is not the way that decisions are made.

There is unlimited opportunity for second guessing. A private owner might determine that a building cannot be made handicap accessible without an inordinate amount of expense. The local jurisdiction, state or federal government may make the determination that judgment is incorrect. A handicapped person or group representing handicapped persons might bring a lawsuit, which could result in substantial amounts of liability and punitive damages. The law and regulations leave it very uncertain as to who is handicapped and what is a reasonable effort made to accommodate handicapped persons. It is left wide open and subject to litigation. This is not in the best interest of society. I am going to turn to another area with similar requirements to the ADA that applies to multifamily housing. That is the Fair Housing Act of 1988. This statute, which preceded ADA, imposed stringent requirements on multifamily housing to make new properties handicap accessible. At least the good thing about this law is that it was not applied retroactively. It applied to building permits being issued after a certain date. The law requires that all elevator apartment buildings allow wheelchair handicap accessibility to 100 percent of the apartments and through 100 percent of the apartments. This includes kitchens, bathrooms, and balconies, as well as all doorways. For non-elevator multifamily buildings, all ground floor units have to be accessible to the wheelchair handicapped. The problem arises with sites with a lot of steepness, and there is a whole set of regulations determing the percentage of accessibility required based on the natural steepness of the site. The law has added considerable cost to new apartments, which is the sector of housing serving the lower echelon of income groups in this country, by requiring wider doorways and doors, larger kitchens, larger bathrooms, and much more grading of sites to accommodate the requirements. Moreover, it has been an anti- environmental piece of legislation in that it has required a lot more removal of trees than we would otherwise have done under normal circumstances. Prior to the federal law being passed, most states had their own requirements for handicap accessible units which were on the order of 2 percent, 4 percent or 5 percent of all of the apartments in an apartment community. The multifamily industry never had sufficient demand to fill the handicap units before the federal law was passed. We tried to get this message across to Congress and ultimately to HUD charged with preparing the regulations implementing the new law, but nobody would listen. The argument was that wheelchair and handicap people should be able to go to the top of the mountain. That may be a noble goal but is not a rationale for the kind of federal requirements that were imposed at any expense. 01-04119

Since the new federal law went into effect, the National Association of Home Builders has done a survey which has shown that the number of handicap persons occupying apartment units is not any higher than it was before. That is also something that we have been telling HUD and our elected members of Congress. The survey showed that out of 695,214 apartments less than 1% are occupied by disabled persons. A copy of the NAHB survey is attached. The issue from the experience of people who are in the business of developing and managing apartments is one of affordability for handicap persons, not accessibility. So the solution imposed by Congress on behalf of certain elements of the handicap community was the wrong one, and it was a very expensive one. If Congress had been willing and open minded enough to listen to the people who manage apartments on a regular basis, they would have known the real statistics and the nature of the problem. I might add that only a portion of the handicap community pushed for the legislation. The net result of the handicap legislation adopted under the fair housing law is just another reason in the litany of reasons the cost of housing have been increased for everybody, making it less affordable to all persons, both handicapped and non-handicapped alike, and we have not in fact, accommodated anymore handicapped persons. It is not an untypical case of federal legislation which, though well intentioned in the broad scheme of things, achieves nothing and in fact imposes greater costs on society (and I might add this does not show up in the federal budget). Further, it leaves the impression that people have been helped without in fact having helped them. To top it all off, when the facts are in, nobody in Congress or the Administration has the integrity or the strength to recommend changes in the legislation to correct the errors. My hope, by writing this letter is that you will play the role of a leader and be an advocate for changes that improve the various forms of handicap legislation I have discussed here. Sincerely yours, David F. Tufaro Executive Vice President DFT/rmc 01-04120