# 121


II - 1.3000
II - 5.2000
III - 1.7000
                                             January 27, 1994


DJ 204-012-00034 





Mr. Barry M. Vuletich
Manager of Consumer Affairs
Division of Rehabilitation Services
Department of Human Services
P.O. Box 3781
Little Rock, Arkansas  72203

Dear Mr. Vuletich:

     This letter is in response to your letter of May 25, 1993,
requesting our formal opinion on various issues that arise under
the Americans with Disabilities Act of 1990 (ADA) when a State
agency leases a building or facility from a private entity.

     The ADA authorizes the Department of Justice to provide
technical assistance to individuals and entities with rights or
obligations under the Act.  This letter does not, however,
constitute a legal interpretation or a formal legal opinion, and
is not binding on the Department of Justice.  

     Although your letter is not completely clear, we assume you
are referring to the issues that arise when a State agency,
subject to title II of the ADA, leases a building or facility
from a private landlord.  These issues are discussed, in some
detail, in the preamble to section 35.151 of Department's
regulation implementing title II of the ADA (the Preamble).  See
page 35711 of the enclosed copy of the title II regulation.

     As noted in the Preamble, existing buildings leased by a
public entity are not required to meet accessibility standards
simply by virtue of being leased.  The activities that the State
conducts within such buildings are, however, like all services,
programs, and activities conducted by the State, subject to the
"program access" requirement set forth in section 35.150 of the 
title II regulation and further discussed in section II-5.0000 of
the Department's title II Technical Assistance Manual, a copy of
which has been enclosed for your convenience.

     Under the "program access" requirement, a public entity,
such as the State of Arkansas, must operate each of its services,
programs, and activities, so that when viewed in its entirety,
that service, program, or activity is readily accessible to and
usable by individuals with disabilities.  See section 35.150(a)
of the title II regulation.

     Although it is not necessary for a public entity to make
each of its existing facilities accessible, and the regulations
provide other methods by which the entity may comply with the
"program access" requirement, see section 35.150(b)(1), the
Department encourages public entities to lease the most
accessible space available.

     At a minimum, public entities are encouraged to lease space
that complies with the minimum standard applicable to the Federal
government when it leases space.  That standard is discussed in
the Preamble to section 35.151, cited above.  The three elements
of the standard are:  (i) an accessible route from an accessible
entrance to the areas where the primary activities for which the
building was leased take place; (ii) accessible toilet
facilities; and (iii) accessible parking facilities.  Leasing
space that complies with this minimum standard, while not
required, will greatly facilitate the State's obligation to
provide program access.

     Thus, in response to your first question, the State retains
all of its title II responsibilities for providing program
access, and for otherwise complying with title II, when it leases
a building or facility from a private entity.  In response to
your second question, this would, of course, include its
responsibility for identifying barriers to program access as part
of the process of preparing the State's transition plan. 
Finally, even if the State's landlord is "not agreeable" to
making the necessary changes, the State continues to be the party
responsible for complying with all aspects of title II.

     We assume that by the phrase "agreeable to" making changes,
you are referring to the landlord's willingness to pay for such
changes.  Whether a private landlord is willing to make changes
(or to permit changes to be made) to its buildings or facilities
that would assist a State in complying with its obligations under
title II is likely to be largely determined by the provisions of
the lease.  By virtue of the definition of "public accommodation"
under the regulation implementing title III of the ADA (ie., a
private entity that owns, leases (or leases to), or operates a
place of public accommodation), a private landlord leasing to a
public entity does not have any independent obligation to modify
(or to permit the public entity to modify) buildings or
facilities owned by the private entity.  

     If the landlord refuses to pay for, or even to allow the
State to make the modifications needed for compliance with the
ADA, whether or not its refusal violates the terms of its lease
with the State, the State retains an independent obligation to
provide program access by some other method.  (The State would,
however, retain any rights against the landlord provided by the
lease.)

     I hope this information has been of assistance to you.  If
you require further assistance or advice, please do not hesitate
to write.  The Department can also be reached through its ADA
Information Line at (202) 514-0301 (Voice) and (202) 514-0383
(TDD) 1:00 p.m. to 5:00 p.m., Monday through Friday.
    
                           Sincerely,          


                     
                        Stewart B. Oneglia
                              Chief
                 Coordination and Review Section
                      Civil Rights Division


Enclosures (2)