# 124

204-012-00045

II-3.6000
II-3.10000
II-5.2000 February 17, 1994

Mr. Paul J. Kelley, Director

Political Reference Service
Post Office Box 2662
Phoenix, Arizona 85002

Dear Mr. Kelley:

This is in response to your letters of August 10 and

September 22, 1993, requesting an opinion as to whether the trash
collection policies of an unnamed city violate title II of the
Americans with Disabilities Act of 1990 (ADA). While we
appreciate your patience in waiting for a letter responding to
the specific circumstances outlined in your letters and your
recognition that we are faced with a challenging number of
individual inquiries, we nevertheless apologize for any
inconvenience caused by our delay in responding.

Shortly after the ADA was enacted, the Department of Justice

established a technical assistance program to aid the public in
obtaining information about the Act. In addition to providing
printed information about the ADA, as part of its technical
assistance efforts, the Department operates both a telephone
information line and a computer bulletin board. The numbers for
the ADA information line are (202) 514-0301 (Voice) and
(202) 514-0383 (TDD) (available 1:00 p.m. through 5:00 p.m.,
Monday through Friday) and the number for the computer bulletin
board is (202) 514-6193. In the future, when you need an
immediate answer to an inquiry, you may wish to contact the
Department through these services. Copies of our Technical
Assistance Manuals, which address many basic issues under titles
II and III of the ADA, are enclosed for your convenience.

The ADA authorizes the Department of Justice to provide

technical assistance to individuals and entities with rights
or obligations under the Act. This letter provides informal
guidance to assist you in understanding the ADA's requirements.
It does not, however, constitute a legal interpretation or a
legal opinion and is not binding on the Department.

Title II of the ADA prohibits discrimination against

qualified individuals with disabilities on the basis of
disability in all programs, activities, and services provided by
or on behalf of State and local governments. Section 35.149 of
the title II regulation (copy enclosed) prohibits a public entity
from denying the benefits of such programs, activities, and
services from qualified individuals with disabilities because the
entity's facilities are inaccessible to or unusable by
individuals with disabilities.

A public entity is required to provide "program access",

that is, the entity is required to operate each service, program,
or activity it provides so that, when viewed in its entirety, the
service, program, or activity is readily accessible to and usable
by individuals with disabilities. See section 35.150 of the
title II regulation. The program access requirement is also
discussed in section II-5.000 of the title II Technical
Assistance Manual. Providing program access does not necessarily
require a public entity to make each of its facilities fully
accessible. For example, program access can be achieved by the
relocation of services from inaccessible to accessible buildings
or by the assignment of aids to program beneficiaries. A public
entity is not required to take any action that it can demonstrate
would result in a fundamental alteration in the nature of its
services, programs, or activities or in undue financial and
administrative burdens. See section 35.150(a)(3) of the title II
regulation.

With respect to the situation you describe, if a public

entity has responsibility for, or authority over, sidewalks or
other public walkways, it must ensure that such sidewalks and
walkways meet the program access requirement and, when viewed in
their entirety, are readily accessible to and usable by
individuals with disabilities. (Please note that special rules
apply to the installation of curb ramps. See section
35.150(c)(2).) To meet the program access requirement, a public
entity may be required to remove dumpsters, trash, or other
objects blocking the passage of persons using wheelchairs or
other devices to assist mobility. The entity would almost
certainly be precluded from deliberately blocking sidewalks by
its choice of trash collection procedures.
 In the hypothetical situation you present in your letter,
because the city historically has been able to collect trash in a
manner that does not disrupt the passage of persons with mobility
impairments, it would seem that the city should be able to modify
its current trash collection procedures to restore access to its
sidewalks, without fundamentally altering the nature of its trash
collection services or incurring undue financial and
administrative burdens.

At least two other sections of the title II regulation may

be applicable, and lead to the same result with respect to
situations where a public entity has responsibility for, or
authority over, sidewalks or other public walkways that are
required under the Act to be readily accessible to and usable by
persons with disabilities. For example, section 35.133 of the
title II regulation requires a public entity to maintain such
facilities in operable working condition. The only exception to
this requirement permits isolated or temporary interruptions in
operation when required for maintenance or repairs. See section
35.133(b). The situation you describe, where sidewalks are
periodically blocked, is not the type of situation contemplated
by this exception.

The title II regulation also requires a public entity to

make reasonable modifications in its policies, practices, or
procedures when "... necessary to avoid discrimination on the
basis of disability, unless the public entity can demonstrate
that making the modifications would fundamentally alter the
nature of the service, program, or activity." See section
35.130(b)(7) of the title II rule. Under this provision, title
II would require the city in your hypothetical example to modify
its trash collection procedures to ensure that, aside from
temporary and unavoidable situations, public sidewalks are not
blocked by dumpsters, trash, or other impediments to travel by
wheelchair. As noted above, in light of its past trash
collection procedures, it is unlikely that the city will be able
to demonstrate that such a modification would result in a
fundamental alteration in the nature of its trash collection
services.

I hope this information will be useful to you.

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

Enclosures (3)