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DEC 4 1992

Ms. Martha L. Mann

Special Legislative Counsel
Division of Legal Counsel
The City of New York
Law Department
100 Church Street
New York, New York 10007

Dear Ms. Mann:

This letter responds to your request for guidance concerning

the application of title II of the Americans with Disabilities
Act (ADA) to a proposed franchise for the installation and
operation of public toilet facilities in the City of New York.
It does not address any obligations that a private provider or
operator of these toilet facilities may have under title III of
the ADA.

By the end of this year, the Architectural and

Transportation Barriers Compliance Board (Access Board) will
issue proposed accessibility guidelines for newly constructed or
altered facilities covered by title II of the ADA (Title II
Accessibility Guidelines). Among other things, these proposed
Guidelines will address scoping and technical standards for fixed
public toilets on public streets. The title II regulation issued
by the Department of Justice currently allows public entities to
choose between the Uniform Federal Accessibility Standards (UFAS)
and the ADA Accessibility Guidelines adopted in the Department's
title III regulations (without the elevator exemption). When
final Title II Accessibility Guidelines are issued, the
Department of Justice will eliminate this choice and those
Guidelines will be the sole standard for title II compliance.
Neither of the current UFAS or ADAAG provisions for single user
portable toilet units would appear to apply to your proposed
fixed toilet facilities.

cc: Records, Chrono, Wodatch, Breen, FOIA, Friedlander



The Access Board has announced its intention to provide a

90-day period for public comment on the proposed Title II
Accessibility Guidelines. It also intends to hold public
hearings at five locations throughout the country during the
second half of the comment period. After analyzing the comments
received, the Access Board will issue final Title II Accessi-
bility Guidelines that will have legal effect once the Department
of Justice issues an amendment incorporating the Guidelines into
its title II regulation.

We believe that this title II rulemaking process will

provide the appropriate forum for addressing the concerns raised
in your letter. We invite and encourage you to participate fully
in this process so that this important issue may be resolved in
the fairest and most comprehensive manner possible.


John L. Wodatch
Public Access Section


NEW YORK, N.Y. 10007

O. PETER SHERWOOD (212) 788-

Corporation Counsel

October 6, 1992

John Wodatch, Director

Office on the Americans with Disabilities Act
Civil Rights Division
U.S. Department of Justice
P.O. Box 66738
Washington, D.C. 20035-9998

Dear Mr. Wodatch:

We are writing to request guidance as to how the

Americans with Disabilities Act (the "ADA") applies to a proposed
franchise for public toilets that is under consideration in the
City of New York.

On June 30, 1992, the City of New York commenced a

four month pilot project for which three pairs of public toilets
were installed at three designated sites in the City -- West 34th
Street across from Macy's Department Store; Chambers Street at
City Hall Park; and 125th Street in front of the Adam Clayton
Powell Jr. State Building. The public toilets come in two
models, one of which is accessible to persons who use
wheelchairs, and were donated and installed by their French
manufacturer, J.C. Decaux International. J.C. Decaux
International is also servicing the units during the pilot
project's duration.

After the pilot project is completed, the City of New

York's Department of Transportation will make public a written
evaluation of the pilot project. This evaluation will be
considered for purposes of making a determination as to whether
to proceed through the franchise process set forth in the New
York City Charter for the permanent installation of pay toilets
throughout the City of New York. It is with this anticipated
franchise process in mind that we currently request the
Department of Justice to comment upon the City of New York's
obligations under the ADA.
As already noted, three pairs of public toilets
manufactured and donated by J.C. Decaux International have been
installed for the pilot project. The smaller, kiosk-size units
are self-cleaning and coin-operated. The larger, wheelchair
accessible units are not self-cleaning, but are monitored by


attendants who clean the units after each use. Users can only
gain access to the wheelchair accessible units with card keys
that have been distributed free of charge to disabled persons by
the City of New York. The card keys are distributed at sites
near each wheelchair accessible facility during all hours that
the facilities are in operation. The attendants at the three
sites also have card keys on hand to assist users in gaining

For the pilot project, the City of New York used the
two different types of Decaux units available because of public
safety concerns triggered by the larger size of the wheelchair
accessible models. Since more than one person can occupy the
larger models, which contain 29.7 square feet of public room
compared to the 8.5 square feet of public room contained in the
kiosk-size models, the larger models might be used for criminal
or other improper activities. In order to prevent abuse of the
larger models, they are made accessible only to persons who have
received card keys. These card keys have been distributed to
individuals whose disabilities preclude them from using the
kiosk-size models. Use of the card keys was also made necessary
because J.C. Decaux indicated that it would not provide coin-
operated wheelchair accessible models because of potential tort

Thus far, the pilot project has proven to be

enormously successful as well as popular with both residents and
visitors. J.C. Decaux International has reported that the
smaller, kiosk-size units are averaging 100 to 150 flushes per
day whereas in Paris they only average 70 flushes. These
statistics indicate that the units are meeting a substantial need
in our community, and it is likely that the City of New York will
want to proceed with a permanent installation.

Any franchise granted by the City of New York must

comply with all applicable federal, state and local laws relating
to accessibility for persons with disabilities. If during the
solicitation process the City obtains a proposal for a single
model toilet that would be accessible for use by all members of
the population without posing risks to public safety or being
susceptible to improper uses, that proposal, provided it met
other requirements, would be awarded the franchise. However, in
the event that we do not receive such a proposal, we are seeking
guidance as to whether and how a franchise allowing for two
models of public toilets could be implemented in a manner
consistent with the ADA.

Our own analysis of the final rules implementing

Titles II and III of the ADA leads us to analogies premised upon
single user portable toilets and restrooms. The Title III
regulations, which incorporate the final guidelines issued by the
Architectural and Transportation Barriers Compliance Board

("ATBCB"), provide that "[f]or single user portable toilet ...

units clustered at a single location, at least 5% but no less
than one toilet unit ... complying with 4.22 or 4.23 shall be
installed at each cluster whenever typical inaccessible units are
provided." Americans with Disabilities Act Accessibility
Guidelines for Buildings and Facilities ("ADAAG") 4.1.2(6). The
ADAAG rules also provide that where less than six toilet stalls
are provided in a common and public use toilet room, only one
toilet stall is required to be accessible. 1

With respect to the final rules issued under Title II

of the ADA, Section 35.151(c) establishes two standards for
accessible new construction and alteration. Design, construction
or alteration of facilities in conformance with either the ADAAG
rules, discussed supra, or the Uniform Federal Accessibility
Standards ("UFAS"), contained in Appendix A to 41 C.F.R. S101-
19.6, is deemed to comply with the requirements of the section
with respect to the particular facilities. 2

The UFAS rules contain specific provisions related to

toilet rooms that are similar to the ADAAG rules. These rules
state that toilet facilities required to be accessible must,
inter alia, have doors that do not swing into the clear floor
space required for any fixture. Appendix A 4.22.2. This and
other applicable provisions are not mandatory for "single user
portable toilets ... clustered at a single location," as to which
"at least one toilet unit complying with 4.22 ... should be
installed at each location whenever standard units are provided."
Appendix A 4.1.1(6).

The ATBCB has announced its intention to issue Title

II guidelines in the future. However, for the time being, either
UFAS or ADAAG compliance presently satisfies the Title II
requirements. Finally, the Title II rules also recognize that
"[d]epartures from particular requirements of those standards by
the use of other methods shall be permitted when it is clearly
evident that equivalent access to the facility or part of the
facility is thereby provided." Id. (emphasis added).

1 ADAAG 4.22.4 and 4.23.4; see also Federal Register, Volume

56, No. 144, July 26, 1991 at page 35421. In response to the
different needs of persons with mobility impairments, the final
ADAAG guidelines also state that where six or more toilet stalls
are provided, a 36 inch wide alternate stall with parallel grab
bars will be provided in addition to the 60 inch wide standard
stall. Id.

2 S35.151(c) The only limitation is that the elevator

exemption contained in section 4.1.3(5) and 4.1.6(1)(j) of ADAAG
shall not apply under Title II of the ADA. Id.

If the analogies to single user portable toilets
and/or public restrooms are appropriate, the installation of
accessible and smaller size units, if pursued for the permanent
installation by a prospective franchisee, would appear to meet
existing requirements under the ADA. Regardless of the
appropriateness of these analogies, however, it is our view that
safety concerns may still warrant a permanent installation of two
different types of units. The final rules under Title III of the
ADA recognize that "[a] public accommodation may impose
legitimate safety requirements that are necessary for safe
operation [provided] [s]afety requirements [are] based on actual
risks and not on mere speculation, stereotypes, or
generalizations about individuals with disabilities."
S36.301(b). The City's concerns about the risks posed by the
larger accessible models are not based on stereotypes or
generalizations about individuals with disabilities. Rather,
based on unfortunate past experience with public restrooms in
subways and parks, the City is concerned that facilities larger
than kiosk-size increase the risk of criminal and other improper
activity, and threaten the safety of their users.

These safety concerns also support a system of

limiting access to the larger, wheelchair accessible units to
persons who have been issued card keys based on a determination
that a disability prevents their use of the smaller facility.
The card keys would be issued through government offices and
organizations in the disability community, and it is also
contemplated that they would be available at sites at or near the
accessible units. By limiting access to those persons with
disabilities who cannot patronize the kiosk-size units, the City
hopes to ensure legitimate usage of the wheelchair accessible
units and the safety and well-being of all the City's residents
and visitors. 3

One question that neither the ADA nor its implementing

regulations address is how close a kiosk-size unit and a
wheelchair accessible unit would have to be to constitute a
"cluster" of portable toilets or to fit within the analogy of
multiple stalls in a single public use toilet room. It is our
belief that the two units could be placed within several blocks
of one another and still fall within either of these analogies.

3 The report to be published by the City's Department of

Transportation will evaluate the safety of the facilities used
during the pilot project. However, the presence of attendants at
the wheelchair accessible models during the pilot project may
undermine the utility of the safety data collected. It will be
difficult to predict, based on the experiences the City has had
while attendants have been present, the extent to which
accessible models that are self-cleaning and not watched by
attendants might be abused.
The constraints of site selection in a geographic area
as densely populated as the City of New York warrant a several
block radius for placement of the two units. The City has many
rules and regulations limiting placement of facilities on its
streets for reasons including, but not limited to, provision of a
clear path for pedestrians, freeing busy intersections and
eliminating blockage of bus shelters and subway entrances. Sewer
and water connections also place limitations on the siting of
such units.
If the City of New York does not get a satisfactory
proposal for a single model toilet unit, the City believes that
it would be in compliance with the ADA and its implementing
regulations if it awards a franchise for the permanent
installation of two different models of toilets, one of which is
accessible to persons who use wheelchairs. The City also
believes that it would be in compliance with the ADA and its
implementing regulations if it limited access to the larger units
to those persons whose disabilities prevented them from using the
kiosk-size facilities. The City of New York would ensure that
all qualified persons could obtain card keys to gain access to
the wheelchair accessible units through government offices and
organizations in the disability community. It is also
contemplated that the card keys would be available at sites at or
near the wheelchair accessible units.

The City of New York asks for the Department of

Justice's opinion on these matters. If the Department of Justice
confirms that the use of two different units complies with the
ADA, the City of New York also hereby seeks the Department of
Justice's guidance with respect to the issues of (1) placement of
the facilities, and (2) the permissibility of using special
security measures such as card keys to prevent abuse of the
larger facilities.

We appreciate your assistance in this matter. If you

would like further information, please call me at 212-788-1084,
or Assistant Corporation Counsel Nancy Batterman, at 212-788-

Sincerely yours,

Martha L. Mann
Special Legislative Counsel
Division of Legal Counsel