AUG 13 1997 Ms. Elisabeth S. Shuster Chief Counsel Human Relations Commission State of Pennsylvania P.O.

Box 3145 Harrisburg, Pennsylvania 17105-3145 Dear Ms. Shuster: I am responding to your recent letter to Attorney General Reno with respect to a complaint now pending before the Pennsylvania Human Relations Commission. Please excuse our delay in responding. The complaint, which was filed by the Eastern Paralyzed Veterans Association (EPVA), alleges violations of the Pennsylvania Human Relations Act by Widener University and the Pennsylvania Department of Labor and Industry. Because the Pennsylvania Human Relations Act requires compliance with the Americans with Disabilities Act of 1990 (ADA), you have asked the Department's advice on the application of the ADA to this matter. The ADA authorizes the Department of Justice to provide technical assistance to assist individuals and entities subject to the Act to understand their rights and responsibilities. Because this response is based solely on the facts presented in your letter, it is intended only as technical assistance to help you to identify pertinent facts. This response does not constitute a legal opinion of the Department with respect to the obligations of the parties to this dispute. The facts, as we understand them, are that Widener University constructed a new football stadium that includes multi-level viewing stands and a press box. It is undisputed that there is no accessible means of vertical access provided to the press box. There is a significant dispute among the parties as to whether the press box is an integral part of the multi-level stadium or a separate single-story facility. cc: Records, Chrono, Wodatch, McDowney, Blizard, FOIA a:\shuster.wpd\sc. YOUNG-PARRAN -2-

The press box is described by EPVA as an integral part of the stadium. It is described by the University as a single-story, 1200 square-foot facility. The University further asserts that it would require an elevator with a lift height of 36 feet to provide access to the press box. When the University applied for a building permit for the stadium construction, it requested a waiver of the State requirement to provide an elevator to the press box. This request was denied by the Pennsylvania Accessibility Advisory Board. The Advisory Board did grant the University a variance that would have permitted the University to provide access to the press box by means of a wheelchair lift or "personal service" elevator rather than a full passenger elevator. The University appealed this decision to the Pennsylvania Department of Labor and Industry, which ultimately determined that the elevator exception set forth in Pennsylvania's Universal Accessibility Act applies to the press box. Therefore, the press box was constructed without an elevator. In your letter, you posed two specific questions: 1) Whether a press box that has three levels is considered to have "stories" such that if those "stories" are less than 3000 square feet, the facility is entitled to claim the elevator exemption under the ADA; and 2) If an elevator is not required, could a covered entity be required to provide vertical access by means of a ramp? The ADA Standards for Accessible Design (ADA Standards), 28 C.F.R. pt. 36, App. A, S 3.5, define a story as: That portion of a building located between the upper surface of a floor and upper surface of the floor or roof next above. If such portion of a building does not include occupiable space, it is not considered a story . . . . The definition goes on to note that "[t]here may be more than one floor level within a story as in the case of a mezzanine or mezzanines." Therefore, a facility that has three floor levels may be entitled to the elevator exemption if one or more of the floor levels does not fall within the ADA definition of a

"story." When a building or structure is entitled to the ADA elevator exemption, it is not required to provide any accessible means of vertical access (e.g., lifts or ramps) between stories. -3However, a facility that qualifies for the ADA elevator exemption is still required to comply with all of the other applicable accessibility requirements in the ADA Standards. See, 28 C.F.R. S 36.401 (3). Therefore, although the ADA may exempt a facility from the obligation to provide an accessible route (elevator, lift, or ramp) to the upper stories of a facility, the facility must still comply with any other applicable accessibility requirements. For example, if fixed seating, restrooms, drinking fountains, or telephones are provided in the press box, these elements must comply with the ADA Standards. I hope that this discussion of the potentially applicable sections of the ADA Standards is helpful to you in resolving this matter. Sincerely, Isabelle Katz Pinzler Acting Assistant Attorney General Civil Rights Division Chairperson COMMISSIONERS ROBERT JOHNSON SMITH JOSEPH J. BORGIA Vice-Chairperson W.D. CHRISNER III RAQUEL OTERO de YIENGST CARL E. DENSON Secretary ALVIN E. ECHOLS, JR. GREGORY J. CELIA, JR. RUSSELL S. HOWELL Executive Director ELIZABETH C. UMSTATTD HOMER C. FLOYD SYLVIA A. WATERS COMMONWEALTH OF PENNSYLVANIA DANIEL D. YUN HUMAN RELATIONS COMMISSION 101 South Second Street, Suite 300 Reply to: P.O. Box 3145 P.O. Box 3145 Harrisburg, PA 17105-3145 Harrisburg, PA 17105-3145 (717) 787-4410 (Voice) (717) 787-4087 (TT)

July 3, 1997 The Honorable Janet Reno Attorney General of the United States Department of Justice Tenth Street & Constitution Avenue N.W. Washington, D.C. 20530 Dear Attorney General Reno: The Pennsylvania Human Relations Commission (PHRC) is the legislatively mandated civil rights enforcement agency in Pennsylvania. Our statute, the Pennsylvania Human Relations Act, 43 P.S. SS951-963 (Act), is unique, in that our housing provisions cover both commercial and non-commercial housing. The Act provides that it is a violation of the Act to construct, operate, offer for sale, lease or rent or otherwise make available housing or commercial property which is not accessible, 43 P.S. S955(h)(7). Accessibility is defined in 43 P.S. S954 (v), as, among other things, being in compliance with the provisions of the Americans with Disabilities Act (ADA). Currently before the PHRC is a complaint filed by the Eastern Paralyzed Veterans Association against Widener University. The allegation is basically that Widener University has built a stadium with an inaccessible press box. Following a determination of probable cause by the PHRC, Widener has raised additional defenses based upon its interpretation of the ADA. Throughout the investigation, the PHRC has attempted to avail itself of information from the ADA/stadium experts at the Justice Department. We have reviewed the May, 1996 release regarding stadium accessibility, and, of course, all the guidance and current case law. While the Commission prosecuting attorney handling the case has interpreted the actions of Widener to violate accessibility laws, the issues currently raised by Widener are unique. Since it is a federal law administered by the Justice Department, we seek your input. July 3, 1997 Page 2 of 2 We have enclosed the documents necessary to understand the issues raised by Respondent. Respondent's first defense included an approval by the Pennsylvania Department of Labor and Industry of its plans. Its second is an argument that the press box is a separate facility from the stadium and thus need not be accessible because of the small size. In general, the most recent defenses all relate to the

elevator exemption for new construction found at 42 U.S.C. 12183(b) and the regulations relating to that section found at 28 C.F.R. S36.401(d). One of the questions that has arisen is, whether, under the elevator exemption, a press box that has three levels and is within a stadium (or separate from the stadium and "next to it") is considered to have "stories", such that if those "stories" are less than 3,000 square feet, the press box falls within the exemption. In addition, if, as the analysis to the elevator exemption regulation states, "lifts to provide access between floors are not required in buildings that are not required to have elevators", could a ramp be required if feasible? I appreciate your prompt attention to this matter. Our contact person in this matter is Assistant Chief Counsel Nancy L. Gippert, the prosecuting attorney on the case. If Ms. Gippert is not available, Director of Housing, Raymond W. Cartwright should be contacted. They may be reached at (717) 783-8132. Ms. Gippert will be looking forward to hearing from your staff. Sincerely, Elisabeth S. Shuster Chief Counsel ESS/NLG/lms cc: Homer C. Floyd, Executive Director Raymond W. Cartwright, Housing Director Nancy L. Gippert, Assistant Chief Counsel