DJ 202-PL-367

SEP 10 1993

Mr. Kent Lee Woodman

ADAAG Compliance Services
12920 Hillside Drive
Anchorage, Alaska 99516-3260

Dear Mr. Woodman:

This letter responds to your inquiry about the obligations

of public accommodations to remove architectural barriers to
access or to provide alternatives to barrier removal. We
apologize for the delay in responding.

The ADA authorizes the Department of Justice to provide

technical assistance to individuals and entities having rights or
obligations under the Act. This letter provides informal
guidance to assist you in understanding the ADA's requirements.
However, it does not constitute a legal interpretation or legal
advice, and it is not binding on the Department of Justice.

Your letter asks about the obligations of landlords who own

facilities with inaccessible levels, and whether a landlord may
rent space to a public accommodation on an upper or lower level
not served by an elevator. You correctly point out that
elevators are not required in buildings that are less than three
stories or less than 3,000 square feet per story if they do not
house shopping centers, offices of a health care provider, or
transportation depots.

There is nothing in the title III regulation that prohibits

the owner of a building from renting a second floor space to a
place of public accommodation, even if the building has no
elevator. Public accommodations located on the second floor of
an existing building are subject to the same barrier removal
requirements as are entities located on ground floors -- that is,
they must remove architectural barriers to access where it is
readily achievable to do so. This requirement may mean that a
second floor establishment must install grab bars in its
restrooms, rearrange its furniture to provide maneuvering room,

cc: Records, Chrono, Wodatch, Magagna, Contois, FOIA, MAF

 Udd:Flynnsm:Policy:Takings.2

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install accessible door hardware, or otherwise remove barriers to

access to its facility if such modifications are readily
achievable -- that is, able to be accomplished without much
difficulty or expense. However, neither the business nor the
landlord would be required to provide an elevator or other means
of vertical access to the second floor of a building that
qualifies for the elevator exemption. For more information on
the removal of architectural barriers, see section 36.304 of the
enclosed title III regulation at pages 35597-98 and the
discussion of that section at pages 35568-69.

I hope this information is useful to you in understanding

the requirements of the ADA.

Sincerely,

John L. Wodatch
Chief
Public Access Section

Enclosures (2)
Title III Technical Assistance Manual
Title III Regulations

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 ADAG* COMPLIANCE SERVICES
12920 Hillside Drive
Anchorage, Alaska 99516-3260
Phone: (907)345-1356 FAX: (907) 345-1626

OFFICE ON THE AMERICANS WITH DISABILITIES ACT

Civil Rights Division
U.S. Department of Justice
Post Office Box 66118
Washington, D.C. 20035-6118

Gentlepersons, 07 October 1992

I write to communicate a concern about ADA that has surfaced locally, and to
request if you folks have been party to any discussions or have any knowl-
edge of the principals noted below. Let me begin by telling you that I have
no position. I am an independent consulting engineer who specializes in
helping landlords and owners perform facility Surveys and to write PLANS to
help them comply with the provisions of Title III of the ADA with minimum
disruption and maximum efficiency.

As I work with owners, I frequently find that they were much more worried
and concerned about what the impact was going to be on them fiscally before
I do my work, than after. This is in part simply because there is so much
misinformation out there. However, Alaska has been in a financial bust for
about 6 years, and most building owners have lost many, many dollars in
lowered rents and empty facilities. There have been thousands of fore-
closures on buildings where they could not rent due to the economy. I tell
you this to set the stage.

Several months ago there was a Supreme Court case that involved a couple in
California. (Sorry I do not have the cite) It seems they had been paying
for a lovely piece of Pacific Ocean beach front property for years and finally
got it paid off and put enough away to build their retirement dream home.
In the interim, their local jurisdiction, which controls architectural
details, determined that there was too much construction out that way and
that their pristine ocean views were disappearing, and they refused them
a building permit.

The couple complained that that constituted a "taking" without compensation,

for they now owned the most expensive piece of private park property on the
Coast. The Supreme Court agreed and it was a landmark case for realtors
and local jurisdictions.

Now let us apply the principal as it is being discussed locally with the ADA:
Let us imagine that someone owns a 2 story building of say 10,000 SF/floor.
It is composed of general office spaces and would variously rent out to as few
as 2 or as many as a dozen renters, depending on their space requirements.
Let us go further and stipulate that the building has NO health care provid-
ers. Accordingly, EXEMPTION I of ADA Guide 4.1.3(5) applies, and there is
an exemption which tells the landlord that he/she need NOT spend $100,000 to
retrofit the aging and fiscally losing facility with a 2 story elevator. (not-
withstanding the test of "readily achievable")

*Americans with Disabilities Act Guidelines

1
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Now let us assume that the second floor of the building has been empty for 2
years; a circumstance not the least bit unusual locally, but the owner has
somehow managed to hang on, perhaps using up all his/her savings. In good
faith, the owner has been trying hard to rent the upper floor; has listed it
continuously and has showed it frequently. He/she finds the market very
soft, as competitors all over town offer their space for less just to fill it
and get some cash flow.

Enter ADA. EXCEPTION I to ADA Guide 4.1.3(5) indicates that even with the
Exception in place, that there is NO reduction of the duty to offer services
to the public on the part of the 2nd floor occupancies. Specifically:

The elevator exemption set forth in this paragraph does not ob-
 viate or limit in any way the obligation to comply with the other
accessibility requirements established in section 4.1.3....

In our hypothetical building, let us assume that there is minimum common

area, so setting up a desk in the lobby to offer "Alternate service", is not
practical.

And so the landlord goes searching for tenants. Because of publicity sur-
rounding the ADA implementation, tenants are now a little better educated
and they ask specifically how the landlord will facilitate the alternate
service if they rent upstairs. The landlord has no answer.

The landlord then meets with a consultant like me and his Realtor and we
brainstorm. Obvious answer is to rent the upper floor only to those type of
rentals which do not constitute a PUBLIC ACCOMMODATION; i.e. an office
for a consultant like me who never sees the public in the office, or storage,
or an employee-only area for someone renting on the first floor.

It does not take the gathered brainstormers long to recognize that they have
thus limited their potential renting clientele to about ten percent (10%) of
the public. The building owner is disturbed, because when he built the place
he completely complied, and now he perceives A GREATLY REDUCED VALUE
due to
the inability to successfully market the 2nd floor to the same public as in
the past. (not to mention problems when trying to sell it) Though he/she is
protected by the elevator exemption, his/her lessees are NOT exempted from
providing the accesses required for a Public Accommodation, and they do not
see how they can comply if they rent the sample building.

BOTTOM LINE: How is this not a "public taking" without compensation?

What do you tell this building owner as he/she laments and torments, all the
while not renting his/her facility, and ultimately going into a chapter
proceeding to attempt to buy time?

I find this an intriguing scenario, and I would be very pleased to read any-
thing you may already have, or to share your thoughts and observations.
Thank you in advance!

KENT LEE WOODMAN, Principal

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