T. 6-18-92 DJ 202-PL-00050 JUL 28 1992 DIR WODATCH DATE Kevin W. Betz, Esq. Krieg, Devault, Alexander, & Capehart SPECIAL One Indiana Square COUNSEL Suite 2800 BREEN Indianapolis, Indiana 46204-2017 DATE Dear Mr. Betz I am responding to your letter asking for clarification of the requirements of title III of the Americans with Disabilities Act of 1990 (ADA), Pub. L. 101-336, 104 Stat. 327 (July 26, DEPUTY 1990), 42 U.S.C.A. SS 12101 et seq., and this Department's BOWEN regulation implementing title III, 56 Fed. Req. 35544, to be codified at 28 C.F.R. pt. 36. DATE The ADA authorizes the Department to provide technical assistance to individuals and entities that have rights or responsibilities under the Act. This letter provides informal guidance to assist you in understanding the ADA and the BLIZZARD Department's regulation. However, this technical assistance does not constitute a determination by the Department of Justice of DATE your clients' rights or responsibilities under the ADa, and it is not binding on the Department of Justice. You have asked whether a retail business that operates two- story facilities in which all customer service activity is carried out on the first floor is required to provide elevator GYB access to the employee areas on the second floor in either its existing facilities or in the facilities that it is planning to DATE construct. In new construction and alterations, title III generally requires that at least one accessible passenger elevator serve each level of a multistory building. However, there is an exception to this general rule. Elevators are not required in facilities that are less than three stories or have fewer than cc: Records, Chrono, Wodatch, Blizard, Breen udd:Blizard.ada.interpretation.betz 01-01055 - 2 - 3000 square feet per story, unless the building is a shopping center or mall; the professional office of a health care provider; a public transit station; or an airport passenger terminal. Therefore, a newly constructed or altered two-story retail facility would only be required to provide elevator access to the second floor if the store is part of a shopping center or mall, as defined in section 36.401(d)(1)(ii) or section 36.404(a)(2) of the title III rule. If a building does not qualify for the elevator exemption, all floors must be served by elevators, even if the floors are used only by employees. Although areas used only as work areas need not be designed to permit maneuvering within the areas, an accessible approach and entrance to the areas must be provided. In existing facilities that are not otherwise being altered, a public accommodation is required to remove architectural barriers to the extent that it is readily achievable, i.e., easily accomplishable and able to be carried out without much difficulty or expense. The requirements for barrier removal are not to be interpreted to exceed the title III rule's alteration standards. In other words, if an existing building would be eligible for the elevator exemption if it were undergoing alterations, it would never be necessary to install an elevator for purposes of barrier removal. In addition, in most cases installation of an elevator would not be considered "readily achievable" because of the expense. For your information, I am enclosing a copy of this Department's regulation implementing title III of the ADA and the technical assistance manual that we developed to assist individuals and entities subject to the ADA to understand the requirements of title III. I hope that this information is helpful to you. Sincerely, John L. Wodatch Director Office on the Americans with Disabilities Act Enclosures 01-01056 KRIEG * DEVAULT * ALEXANDER & CAPEHART ATTORNEYS AT LAW March 19, 1992 Mr. John Wodatch Director of the Office of The Americans With Disabilities Act Civil Rights Division U.S. Department of Justice Post Office Box 66738 Washington, D.C. 20035-9998 RE: Request For Comment From Department of Justice About Application of Americans With Disabilities Act Dear Mr. Wodatch: Please find attached to this letter a situation that we would appreciate your comments upon in relation to the newly enacted Americans With Disabilities Act. We have attempted to describe all facts of which we are aware, but if you have any questions, please call me at 317-636-4341 or 317-263-9141. Thank you for your assistance. Respectfully, Kevin W. Betz KWB:sbh:870 Attachment 01-01057 SITUATION We understand that Company A is considering the placement of its employees on the upper (second) level of its two-story retail stores. Customers of Company A will not have access to the upper (second) level of the stores inasmuch as all retail activities will be conducted on the first (ground) floor. The functions to be performed by the employees on the second level would include telemarketing, cash-counting and other detail functions. As many as 12 employees may be utilized for these functions. Currently, there is no elevator which serves the upper (second) level of the stores. Moreover, the current design of new stores do not include elevators. Company A has asked whether, under these circumstances, elevators which would serve the second level will be required by the American With Disabilities Act ("ADA") in Company A stores. If you determine that an elevator would be required, what are your suggested alternatives to installing an elevator? KWB:sbh:869 01-01058