T.

2/2/93
SBO:AMP:ca
DJ 204-11E-0
FEB 16 1993

The Honorable Wally Herger

Member, United States House of
Representatives
2400 Washington Avenue, Suite 104
Redding, California 96001

Dear Congressman Herger:

This letter is in response to your inquiry on behalf of your

constituent, Diane Garcia, regarding her request for a waiver
under the Americans with Disabilities Act (ADA).

The ADA authorizes the Department of Justice to provide

technical assistance to individuals and entities that are subject
to the Act. This letter provides informal guidance to assist you
in responding to your constituent. However, this technical
assistance does not constitute a determination by the Department
of Justice of your constituent's rights or responsibilities under
the ADA and does not constitute a binding determination by the
Department of Justice.

The ADA does not provide for the waiver of any of its
requirements whether by Federal, State or local authorities. All
covered entities are expected to fully comply with all applicable
provisions. We are unaware of any waiver granted to San
Francisco, but, as stated above, any such waiver would not be
valid.

In response to Ms. Garcia's concern regarding the

requirement for accessible restrooms in State offices, please
note that, with respect to existing facilities, title II of the
ADA (which covers State and local governments) does not contain
any specific requirements for the number of restrooms that must
be made accessible. Under title II, a State or local
governmental entity must operate its programs and activities so
that, when viewed in their entirety, such programs and activities
are readily accessible to and usable by individuals with
disabilities.
 The concept of "program access" is discussed in sections
35.149 and 35.150 of this Department's title II regulation, 28
C.F.R. Part 35, and on pages 19-22 of the title II Technical
Assistance Manual (copies enclosed). As stated in section

cc: Records CRS Friedlander Pecht.herger.ltr McDowney, FOIA, Breen

01-01908

35.150(a)(3) of the title II regulation, a title II entity is not

required to take any actions that it can demonstrate would result
in a fundamental alteration of its services, programs, or
activities, or in undue financial and administrative burdens. In
this instance, the public entity should ensure that accessible
restroom facilities are available when restrooms are available to
other members of the public.

In determining how to meet its responsibility to provide

"program access", a public entity may look to the requirements of
either the Uniform Federal Accessibility Standards (UFAS) (copy
enclosed) or the ADA Accessibility Guidelines (Guidelines) for
guidance. The Guidelines are attached as Appendix A to the title
III regulation (copy enclosed). We would direct your attention
to section 4.1.6(3)(e) of the Guidelines, which permits the
installation of at least one unisex toilet/bathroom per floor in
the same areas as existing toilet facilities where it is
technically infeasible to comply with the new construction
requirements in an existing facility. It is important, however,
to keep in mind that, under title II, program access is the goal
and that full compliance with UFAS or the Guidelines is only
mandated in the case of new construction or where alterations are
being undertaken independently from the requirement for achieving
program access.

I hope this information is helpful to you in responding to

your constituent's inquiry.

Sincerely,
 James P. Turner
Acting Assistant Attorney General
Civil Rights Division

Enclosures (4)

01-01909

October 28, 1992

Wally Herger, Congressman

2400 Washington Avenue Suite 410
Redding, CA 96001

Dear Congressman Herger:

Re: American Disability Act.

State Board of Equalization Lease.

I represent the owner of the building located at 2400

Washington Avenue and I am currently negotiating an
extension of a lease for the State Board of Equalization
at 2400 Washington Avenue.

The State Board of Equalization has been in this building

since January 1977 and wishes to remain. The problem with
the negotiations is complying with the American Disability
Act. According to the State the ADA requires that we
create Handicap restrooms.
On the floor in which the State Board of Equalization's
offices are located, we have Men's and a Women's restrooms
with two non-Handicap stalls in each. The owner is
prepared to remove one stall in each of the existing
restrooms and create Handicap restrooms; one for Men and
one for Women. However, we are told by the State that in
order to comply with the ADA and local codes, we need 2
stalls in each restroom and one has to be handicap. We do
not have the space in the building to do this because
tenants occupy the spaces on either side of the restrooms.

We understand that in San Francisco an exception to the

ADA Regulations was given in order to keep the State in a
building where stairs were unacceptable, so it appears
that exceptions can be made.

We need your help in this matter urgently. It is our

desire to cooperate and comply with the ADA Regulations to
allow equal access to this private building, in which a
public entity is located, but the requirement has to be
realistic in view of the fact that this is an existing
building.

01-01910

October 28, 1992

Page 2 Re: American Disability Act.

To create a Men's and Women's one stall Handicap

accessible restroom the costs are prohibitive,
approximately $6,000.00. However, the owner has indicated
a willingness to cooperate. We need an exception to ADA
Regulations from the State and Federal Government to allow
the building to have one Men's and one Women's handicap
stall only in each restroom with a side transfer in the
space available in the building.

To reiterate, the State does not have the monies to

relocate the State Board of Equalization. They have
occupied this space for Sixteen (16) years and wish to
continue their occupancy in this building.

We request that you give this matter your prompt

attention.

Respectfully,

Diane Garcia, Broker

Property Manager
for Washington Plaza
200 Ridgetop Drive #18
Redding, CA 96003

CC: Stan Stathem; Assemblyman 1st District

Gerald Moore; Department of General Services
Frank Wilson; Contractor
William Lisac;Shasta Associate, Ltd.

REF:ADA1092

01-01911