JUL 8 1992 202-PL-00020 T. 7/7/92 Ms. Mary E. Bruno Littler, Mendelson, Fastif & Tichy 400 Capitol Mall Sacramento, California 95814-4410 Dear Ms. Bruno: This letter responds to your correspondence requesting technical assistance with respect to the provisions of the Americans with Disabilities Act, 42 U.S.C. S 12101-12213 (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. Specifically, your letter inquires whether a public accommodation -- a pre-school not otherwise controlled or operated by a religious entity -- that leases facilities from a religious organization is within the exemption granted to religious entities under Section 307 of the ADA, and, if not, what are the respective obligations of the pre-school, as tenant, and the religious organization, as landlord, under the ADA. Title III of the ADA establishes requirements for private entities that own, operate, lease (or lease to) places of public accommodation. A private entity has no Title III obligations, however, if it is a religious entity. A religious entity is a religious organization or a private entity controlled by a religious organization. A non-religious entity that operates a place of public accommodation in space donated by a religious entity is itself exempt from title III's requirements. The nonreligious tenant entity is subject to title III only if a contract exists under which rent or other consideration is paid. cc: Records Chrono Wodatch Magagna.pl.20 FOIA Library arthur T. 7/7/92 01-01009 - 2 - On the other hand, a private entity that rents the religious entity's facilities to operate a place of public accommodation is not exempt, unless it is also a religious entity. If it is not a religious entity, then its activities would be covered by title III. The religious entity, however, would remain exempt, even if its tenant is covered. That is, the obligations of a landlord for a place of public accommodation do not apply if the landlord is a religious entity. Compliance with the requirements of the ADA are the sole responsibility of the tenant, and this would include compliance with respect to common areas of the leased facility. Neither a religious entity nor a tenant in donated space, however, is exempt from the employment requirements of Title I of the ADA, which go into effect on July 26, 1992, for employers with 25 or more employees. Moreover, if a religious entity receives Federal funds, as may child care facilities do, it is subject to section 504 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. Section 794, which prohibits disability discrimination in federally assisted programs. I have enclosed a copy of the Department's Title III Technical Assistance Manual. I hope that this information is useful to you in evaluating your rights and obligations under the ADA. Sincerely, Joan A. Magagna Deputy Director Office on the Americans with Disabilities Act 01-01010 SAN JOSE February 6, 1992 WASHINGTON, D.C. Ms. Barbara S. Drake Deputy Assistant Attorney General Civil Rights Division U. S. Department of Justice Washington, D.C. 20530 Re: Request for an Advisory Opinion Regarding the Applicability of Public Accommodation Section of The Americans with Disabilities Act Dear Ms. Drake: I am writing this letter to request an opinion regarding the applicability of Title III of the Americans with Disabilities Act ("ADA") regarding public accommodations and services operated by private entities. Specifically, I am requesting an opinion regarding the interaction of Section 307 of the ADA, which states that the provisions of Title III of the ADA shall not apply to religious organizations or entities controlled by religious organizations and of public accommodations otherwise subject to Title III, who lease facilities from religious organizations. The specific situation we are concerned with involves the operation of a pre-school by a private entity in a facility that is leased from a religious organization. The pre-school itself is not otherwise controlled or operated by the religious organization. The nature of the relationship between the religious organization and the pre-school is one of landlord and tenant. The religious organization leases classrooms located on the religious organization's premises, in buildings adjacent to the place of worship, to the pre-school. We are concerned with the dichotomy created by the specific exemption from the provisions of Title III for religious organizations and the mandates of the ADA applicable to private entities that operate public accommodations such as day care centers/pre-schools/nurseries. 01-01011 LITTLER, MENDELSON, FASTIFF & TICHY Ms. Barbara S. Drake February 6, 1992 Page 2 While it is clear that Section 307 of the ADA exempts religious organizations, Section 301(7) (k) specifically states that private entities are considered public accommodations for purposes of the Act if the operation of such entities affects commerce. Section 301(7) (k) includes nurseries as a public accommodation. Section 301(7) (j) specifically includes a day care center or social service center establishment in the list of public accommodations affecting commerce. Here, it is assumed that the pre-school is, in fact, a public accommodation under either Section 301(7)(j) or (k) of the Act. Pursuant to the comments accompanying the regulations at page S-45, it appears that there is a distinction between the place of public accommodation (in this case the religious organization's premises) and the public accommodation itself (here; the pre-school). . The comments state that "it is the public accommodation and not the place of public accommodation" that is subject to the nondiscrimination requirements of Title III. However, the regulations state that in cases of landlord/tenant responsibilities under Section 36.201(b), both the landlord, who owns the building that houses a place of public accommodation, and the tenant, who owns or operates the place of public accommodation, are public accommodations subject to the Act's requirements. Religious entities are exempt from Title III of the ADA however, and, therefore, cannot be considered public accommodations. Thus, we question whether this situation is to be handled similarly to situations where there are places of public accommodation located in private residences. Section 36.207 of the Regulations indicates that the private residences, like the religious organizations, are not covered by the provisions of the Act. However, when a place of public accommodation is located in a private residence, the portion of the residence used exclusively in the operation of the public accommodation is covered by the Act. Thus, we ask your opinion as to whether this is an analogous situation. Our questions are as follows: 1. As the landlord of the public accommodation, does the religious organization have any responsibilities under Title III of the ADA or is it specifically exempt from coverage pursuant to Section 307 of the ADA? 2. If the religious organization is specifically exempt pursuant to Section 307 of the ADA, which we believe to be the case, are all operations on its premises, including those leased to entities that would otherwise be considered public accommodations, exempt from coverage under Title III of the ADA. 3. Is the pre-school, which may otherwise be considered a public accommodation, exempt from the responsibilities under 01-01012 LITTLER, MENDELSON, FASTIFF & TICHY Ms. Barbara S. Drake February 6, 1992 Page 3 Title III of the ADA because it operates a place of public accommodation at a religious organization and/or leases facilities from a religious organization, which is otherwise exempt? 4. If the religious organization is otherwise exempt as appears to be the case from Section 307 of the ADA, is it the sole responsibility of the pre-school, a public accommodation, to meet the requirements of Title III of the ADA with regard to the facility operated by the pre-school and leased from the religious organization? 5. In this situation whose responsibility is it to ensure compliance with Title III of the ADA? 6. Would the pre-school be obligated to ensure that the portion of the religious organization's premises it leases must comply with Title III of the ADA? 7. What is the responsibility and to whom does the responsibility for compliance with Title III belong for common areas used both by the religious organization and the pre-school, such as bathrooms, hallways, stairwells, lobbies, parking lots, etc.? I would appreciate your consideration of these issues and a written advisory response at your earliest convenience. Very truly yours, MARY E. BRUNO MEB:ed 1069C.477 01-01013