DJ 202-PL-100

Mr. David Kessler

Project Manager
Katherine McGuiness and
Associates, Inc.
267 Moody Street
Waltham, Massachusetts 02154

Dear Mr. Kessler:

This is in response to your letter requesting information

about the Americans with Disabilities Act (ADA).

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 and it is
not binding on the Department.

You inquire whether UFAS or ADAAG should be used for the

design and construction of a parking garage built and owned by a
state authority but to be operated by a private company.

In the situation you describe, the garage should be built in

accordance with ADAAG, but without the elevator exemption.

Title III governs the operations of private entities that

provide services to the general public, such as parking. If the
private entity leases its facilities from a state or local
government, the private entity remains subject to Title III
requirements. State and local governments, however, are never
subject to Title III, even when leasing to a private entity
operating a place of public accommodation. Title III requires
alterations and new construction to comply with ADAAG.

Title II governs the operations of state and local

government entities, including services or operations it provides
through contract with a private entity. Title II permits covered
entities to choose whether to use ADAAG (without the elevator
exemption) and UFAS.

cc: Records Chrono Wodatch Magagna.PL.100 Beard

arthur T. 6/3/92
01-00881

-2-
In the circumstance you describe, the private entity, as
operator of the facility, will be subject to Title III; the
state, because it is contracting out what would otherwise be a
state function, is subject to Title II. Given the joint nature
of the project it would be advisable to use ADAAG, without the
elevator exemption. In order to comply with both Titles, you
must use ADAAG, without the elevator exemption.

I have enclosed copies of the Department's Title II and

Title III Technical Assistance Manuals. I hope this information
will be useful to you.
Sincerely,

Joan A. Magagna
Deputy Director
Office on the Americans with Disabilities Act
01-00882
Katherine McGuinness and Associates, Inc.
Architectural
Accessibility
Programs
Space Planning
25 September 1991

Office for the ADA

Civil Rights Division
U.S. Department of Justice
P.O. Box 66118
Washington, DC 20035-6118

Dear Sir/Madam,

Re: Use of UFAS vs. ADDAG in the design and construction of a state facility
operated by a for profit private company as an agent for the public
authority, for example:

Does a newly constructed addition to a parking garage built and owned by a

state authority, to be run by a private company acting as an agent for the
authority, come under Title III (as a public accommodation).

This sort of scenario is coming up repeatedly.

Subpart B, paragraph 36.201, prohibits discrimination by any private entity

who owns leases, or operates a place of public accommodation. This appears to
indicate that the above described facility would come under Title III. Yet, in
the discussion of paragraph [b] of 36.201 it states, "Although the statutory
language could be interpreted as placing equal responsibility on all private
entities, whether lessor, lessee...." The reference to "all private entities"
makes me question whether the public authority would be included. Whether to
comply with ADAAG or UFAS in the design and construction of the facilities
appears to rests on this determination.

I would greatly appreciate your expediting a response to this issue.

Sincerely,

David Kessler
Project Manager
01-00883