OCR Letter: University of North Carolina at Pembroke

University of North Carolina at , 11-05-YYYY
August 11, 2006


This Complaint was filed on October 19, 2005, against the University of North Carolina at Pembroke (UNCP). There were three allegations accepted and investigated. Among them was the allegation that UNCP’s buildings, facilities, communications, and routes between buildings are inaccessible to persons with disabilities, including but not limited to inaccessible restrooms, inaccessible building entrances, and a lack of Telecommunications Devices for the Deaf. Most of the concerns identified by our review were straightforward and UNCP will likely agree to address them.

UNCP is a public entity and a recipient of Federal financial assistance and therefore is subject to Section 504 of the Rehabilitation Act of 1973 (Section 504) and Title II of the Americans with Disabilities Act of 1990 (Title II). For the applicable accessibility standard, UNCP has elected to use the North Carolina State Building Code – Accessibility Code (NCSBC). The NCSBC has been approved by the U.S. Department of Justice as an acceptable accessibility code for purposes of Title III of the Americans with Disabilities Act. The pertinent provisions of the NCSBC are the same as or more stringent than the corresponding provisions of the Americans with Disabilities Accessibility Guidelines (ADAAG); therefore, UNCP can use the NCSBC to fulfill the requirements of Section 504 and Title II.

During on-sites on December 12 –15, 2005, and March 7, 2006, OCR inspected the campus observatory, which was constructed in 2004. The building is a freestanding structure and is new construction for purposes of Title II and Section 504. A picture of this structure is located at http://www.uncp.edu/observatory/index_observatory1.htm. The building has two levels, the ground floor and the roof. Located on the roof, there is a high-power 16-inch telescope under a retractable silver dome. The only way to access the roof/dome is by a metal open-grate staircase. Additionally the dome in which the telescope is located has a threshold of at least 6 inches and little maneuvering space around the telescope. This space is not accessible to persons with mobility impairments, nor does the staircase comply with ADAAG. The observatory does not comply with ADAAG because there is no accessible means to access the roof. However, even if it was possible for a person with a mobility impairment to access the roof, it is not possible to enter the domed area with the telescope because of the 6-inch threshold; further, there is no accessible aisle around the telescope once inside the observatory dome.

At the time of the on-site, the campus observatory was open to the public two nights a week and was used by classes; to date, UNCP’s website still indicates it is open to the public. The Professor who is primarily responsible for the observatory (Professor) said that when the building was constructed, it was meant to give students access to the high-power telescope. He further explained that when he worked on the planning of the building, he had asked the architects how a person with a disability would access the telescope, and they said that less-powerful telescopes on the ground would be adequate for persons with disabilities to have the same experience.

UNCP provided OCR a February 7, 2006, memo from the architectural firm which designed the building to UNCP’s in house architect, that stated that to construct a space with total access would have been an undue burden in terms of both design and cost and that there were other ways to provide access to the program in alternate locations. These are not defenses in new construction. The program access standard is for buildings built prior to June 3, 1977, for Section 504 and prior to January 26, 1992, for Title II, not the standard for new construction. August 12, 2002 and February 25, 2003, letters from the architects who designed the building dated to an architect in the State Property Plan Review Section of the North Carolina Department of Insurance explained that the building was not intended for public use:

the Observatory is a non-occupied, equipment enclosure with electronics connection to accessible viewing locations in the building. It is accessed for maintenance and adjustment, occasionally by faculty. Under North Carolina Accessibility Code Section, non-occupiable spaces are not required to be accessible.

Section (similar to ADAAG Section 4.1.1(4)) provides an exemption to compliance for construction sites, which the Observatory is not. However, in an OCR interview with the architect for the firm who was involved in the planning of the building and who was responsible for accessibility in the building, the architect was unclear as to exactly which provision was applied. When questioned, he tended to focus on areas that could not be occupied and that could only be accessed by a ladder. These fall under NCSBC Section (or ADAAG Section 4.1.1(5)(b)(ii), discussed below), concerning non-occupiable space due to limited ways to access, where compliance with the code is not required. Based on this conversation it was clear that the architect charged with working with accessibility was unsure of the exact code provisions which would allow the building to be inaccessible, and relied heavily on the fact that the state had approved the plans.1

It appears that the architectural firm decided on its own that, due to fiscal restraints, the observatory wasn’t going to be built to be accessible. On the other hand, the Professor told OCR that he had informed the architects that he intended for the building to be accessible to all persons so they could go up and look through the telescope and he was unsure where the architects got the idea that the building was to be used as a remote facility. The Professor did recall telling the architects he would include the telescope as part of a consortium of telescopes that are available world wide through the Internet, but his primary objective for the building was to bring the public into the space.

The only people on the campus who may have been aware of the architects’ intent, prior to OCR’s investigation, were two employees from UNCP’s facilities group. The in-house engineer was copied on the August 12, 2002, and February 25, 2003, memos. Additionally, the in-house engineer and the in-house architect were copied on a September 3, 2002, Conference Memorandum from UNCP’s architect to the same state architect who had received the two earlier letters. The meeting occurred on August 27, 2002. This memo contained similar language to the earlier letters, stating that the building was non-occupiable space consistent with the NCSBC (the construction site exemption) and therefore did not need to be accessible. These employees never brought the issue of public use of the building to anyone’s attention prior to OCR’s investigation. All faculty who worked closely with the architects to plan the renovation of the science building (which included construction of the observatory) were unaware that the observatory was not designed or intended to be used by the public.

In sum, there are conflicting reports as to whether the telescope was to be a remote access piece of equipment or whether the public was to be able to go up and use it. The architects claimed that the intent was to use the telescope remotely and that the faculty were made aware of this. However, the faculty claim that they were never made aware that the observatory could be used only remotely. Additionally the Professor claims that if the observatory was to be a remote access facility, then the observatory should have been located in a different part of campus where it is darker and quieter. Since its completion in 2004, UNCP has made no real progress toward operating the observatory as a remote facility, as the architects had planned. According to UNCP, it will be two years until the observatory can be made fully remotely accessible, assuming it decides to do so (see next paragraph) and determines how to do so. For example, UNCP does not currently own the software to remotely control the telescope. The Professor still has to purchase the software to do this. Only in the last few months has he even been able to take a picture with the telescope. He was unclear on the extent to which he would have to access the observatory to achieve remote access and the extent to which the observatory would have to be accessed to maintain the remote access of the telescope. In his proposed plan, he would need two student assistants to do this, who would be paid through a grant to further student research. Apparently, these would have to be students without mobility impairments.

At the time of the on-site, there was no way to access the high-power telescope other than by going up to the observatory dome. In an interview, the Professor further explained that a video camera would be installed on the telescope. This would permit a person whose disability prevents access to the dome to see via a screen on the lower level of the observatory what those who can access the dome can see through the telescope. In later documents, the Professor changed his position and no longer proposes using the video camera with a screen. It is still not clear how UNCP will achieve full access for all to the observatory.

ADAAG/NCSBS Provisions

NCSBC and ADAAG define non-occupiable space in Section (2) and Section 4.1.1(5)(b)(ii), respectively, as follows:

non-occupiable spaces accessed only by ladders, catwalks, crawl spaces, very narrow passageways, tunnels, or freight (non-passenger) elevators, and frequented only by service personnel for maintenance, repair, or occasional monitoring of equipment; such spaces may include, but are not limited to, elevator pits, elevator penthouses, piping or equipment catwalks, water or sewage treatment pump rooms and stations, electric substations and transformer vaults, and highway and tunnel utility facilities.

A space that is non-occupiable under this provision does not have to be accessible. There are several similar documents, dating back to the time the observatory was being designed, that support the architects’ intent to use this standard for the construction of the building. However, the roof of the building does not conform to this section for several reasons. First, the roof is accessed by a staircase, which is not a method of access in conformity with this provision. Additionally, if and when the observatory is operational as a fully remote facility,2 it is unclear whether it will be accessed only by service personnel for maintenance, repair, or occasional monitoring. Representatives from the U.S. Access Board and the Disability Rights Section, Civil Rights Division of the Department of Justice (DOJ) do not view accessing the observatory to open the dome and position the telescope as maintenance consistent with the regulation. Additionally, it is arguable the Professor is not service personnel. Based on this reasoning, the building does not fall within the non-occupiable space exception.

However, there are other NCSBC and ADAAG provisions that bear on whether the dome would be considered occupiable space, and also whether the building would need an elevator. ADAAG 3.5 defines occupiable space as:

A room or enclosed space designed for human occupancy in which individuals congregate for amusement, educational or similar purposes, or in which occupants are engaged at labor, and which is equipped with means of egress, light, and ventilation.

While NCSBC doesn’t define occupiable space, it relies on the definition in the North Carolina Building Code, which is essentially the same as this definition.3 After reviewing the blueprints, DOJ suggested that it might be possible to argue that the second level of the observatory is non-occupiable space because there is no ventilation.

Ventilation is not defined within ADAAG or other applicable DOJ documents. However, DOJ suggested that, since the space does not contain a heating or cooling system, there is no ventilation. The panels on the dome open to permit the telescope to view the sky, but DOJ does not view this as ventilation.

However, even if the dome is viewed as non-occupiable space because it has no ventilation, it still must be accessible. A non-occupiable space does not have to be accessible only if it is non-occupiable under the definition in NCSBC (2) and ADAAG 4.1.1(5)(b)(ii) -- it can be accessed only by ladders, catwalks, etc., and is frequented only by service personnel. If a space doesn’t meet this definition but is considered non-occupiable due to lack of ventilation, it must still be accessible. As the dome is accessed by stairs and used by people other than service people, it must be accessible even though it is non-occupiable space because there is no ventilation. The principal significance of considering the dome as non-occupiable space due to lack of ventilation is as to whether or not the building needs an elevator (which would be costly to install).

ADAAG 4.1.3(5) requires that “one passenger elevator … shall serve each level, including mezzanines, in all multi-story buildings and facilities….” The comparable NCSBC provision, 15.2.1, provides that “all buildings…two (2) stories or more in height” must have elevators; 15.2.2 specifically requires that a publicly owned university building must have an elevator if it is two or more stories in height. DOJ suggested that it could be argued the observatory is not a multi-story building because the level on which the dome and telescope are located, the roof, does not conform to the ADAAG definition of a story. ADAAG 3.5 defines a story as:

That portion of a building included between the upper surface of a floor and upper surface of the floor or roof next above. If such portion of a building does not include occupiable space, it is not considered a story for purposes of these guidelines. There may be more than one floor level within a story as in the case of a mezzanine or mezzanines.

While the NCSBC doesn’t define “story,” it relies on the definition in the NC Building Code, which consists of the first sentence of the above definition (with a cross reference to “basement” and “mezzanine”). For the second level of the building to conform to this definition, the space must be occupiable. If the dome is considered non-occupiable space due to a lack of ventilation, then the second level of the building would not be considered a story and an elevator would not be required. However, according to DOJ, this leads to the somewhat anomalous result that, while the building wouldn’t have to have an elevator, the building itself would still have to conform to ADAAG/NCSBC. This would include, but not be limited to, the staircase, the dome, and all thresholds within the building. To be clear, the dome would have to be accessible even though there might not be any way for a person in a wheelchair, for example, to get to it.

While DOJ has suggested that this approach might be legally supportable, it does not favor it as it generally favors providing full access. Moreover, the North Carolina Department of Insurance’s Office of the State Fire Marshal (NCDOI) has a different
position.4 OCR consulted with the accessibility code consultant at NCDOI, who spoke with several other technical experts to determine if the observatory has ventilation under applicable North Carolina codes. Three state codes--the 2002 Accessibility Code (NCSBC), the North Carolina 2002 Building Code, and the 2002 Mechanical Code—are read together to provide a definition of ventilation. The 2002 Building Code defines ventilation in its definition section as “the natural or mechanical process of supplying conditioned or unconditioned air to, or removing such air from, any space.” The Mechanical Code further defines space-heating systems as follows: Interior spaces intended for human occupancy shall be provided with space-heating systems capable of maintaining a minimum indoor temperature of 68°F (20°C) at a point 3 feet (914 mm) above the floor on the design heating day. Exception: Interior spaces where the primary purpose is not associated with human comfort. The consultant thought the space would fall under the exception for interior spaces not designed for human comfort, and thus turned to the definition of natural ventilation contained in the Mechanical Code: “the movement of air into and out of a space through intentionally provided openings, such as windows and doors, or through nonpowered ventilators.” Based on these definitions the consultant believed the space is ventilated. Therefore, it is occupiable space, which is a story, which would then require an elevator.

Again, if OCR adopts the approach identified by DOJ, meaning that the space is not viewed as a story and an elevator is unnecessary, the facility must still be accessible; therefore, all other features of the building must conform to ADAAG/NCSBC. Both ADAAG and NCSBC contain provisions specifically stating that, if an elevator is not required, “the floors above and below the accessible ground floor shall comply with the applicable code requirements…except for the elevator service. NCSBC ADAAG 4.1.3(5) has similar language. These features include, but are not limited to, the staircase, the dome, and all thresholds within the building. Changes to these features would have to be made regardless of whether OCR adopts the approach identified by DOJ or the NCDOI opinion. By adopting the NCDOI opinion, the building would apparently not meet the ADAAG requirements under Title II. However, by adopting the approach identified by DOJ, the observatory would apparently not meet the NCSBC requirements. Again, it should also be noted that DOJ prefers ensuring accessibility rather than using an exemption, as the approach it identified would permit; thus, DOJ would prefer the NCDOI approach.


The observatory is a program or activity operated by UNCP. As long as the observatory is in its current state, with the dome and telescope located on the inaccessible roof, persons with mobility impairments will not be able to access the program/activity of use of the high-power telescope. This denial of access is inconsistent with the new construction requirements of Section 504 and Title II regulations, as well as the program access standards. At this time, the entire observatory is open to the public, meaning that persons with mobility impairments are being denied access to a program or activity. UNCP initially claimed there were other, lower-power telescopes located on the ground level for persons with disabilities (apparently offering a program access defense); however, based on an interview with the Professor, the high-power telescope on the roof provides a unique experience to users. A person with a mobility impairment reported to OCR that she attended a public viewing while this case was pending and that even a lower-power telescope was not readily available. Arguably, some sense of what use of the high-power telescope is like may be replicated through photographs taken with that telescope and potentially through future remote access, but the experience of going up to the telescope is unique, and that, according to the Professor, is the purpose for which the observatory was built. Consistent with this, remote access is not the same experience as going up to the observatory, and persons with and without disabilities should be provided the same access to the facility. By providing differentiated access to the observatory based on disability, UNCP is discriminating in violation of Section 504 and Title II.


OCR’s resolution of this situation may either significantly restrict or eliminate use of the observatory or result in considerable cost to UNCP. The following options are available for resolution. All options would provide two years for UNCP to complete the renovation/transition. Also it should be noted that, while providing different access for persons without disabilities (complete access to the telescope) and an alternative form of access to persons with disabilities (such as through a video screen or pictures) may eventually be feasible (although even this could take some time for UNCP to arrange), OCR is rejecting this as an option because, as to new construction, it is unlawful under Section 504 and Title II to discriminate in the type of access based on whether a person has a disability.5 In negotiations with UNCP OCR can present only one option, any of the four options, or several of the options.

Option 1: UNCP will ensure the observatory is accessible to persons with disabilities by ensuring the building is constructed consistent with NCSBC and ADAAG.

This will include, but is not limited to:

  1. Installing a method to access the roof level (for example, a lift or elevator) and therefore the dome and telescope;
  2. Ensuring the staircase is in compliance with applicable NCSBC requirements; and
  3. Making the dome in which the telescope is located accessible to persons with disabilities by providing a means of free egress and room for a wheelchair to maneuver consistent with the applicable NCSBC requirements.

This option assumes that the building, including the dome, is occupiable space under and does not conform with the exemption in NCSBC and ADAAG 4.1.1(5)(b)(ii) (regarding access and who uses it), and falls within the definition in ADAAG 3.5 (for occupiable because it has ventilation) and will ensure the building is usable by all persons with and without disabilities. UNCP may be very resistant to this option because of the cost of adding the elevator/lift and replacing the dome. However, because there is evidence that the building was intended to be open to the public by those responsible for the operation of the Observatory and because it has been used in that way since it opened, and to ensure the long-term accessibility of the facility, we believe this option is the most appropriate. DOJ has a preference for accessibility and will support this position, even though it is arguable that the space is non-occupiable space under 3.5 and therefore doesn’t require an elevator (but must otherwise be accessible). During the time it will take to make the space accessible the building will have to be closed to use by all (unless remote use for all can be arranged in the interim).

Option 2: UNCP will develop remote access for the telescope for all. The telescope will be accessed only by authorized personnel (not to include students or members of the public) for designated purposes. UNCP will post signage and develop policies and procedures to ensure this occurs. The current observatory must comply with all aspects of NCSBC, except that an elevator is not required because it is not a multi-story building. During the period of transition UNCP will suspend use of the observatory by students and members of the public.

Under this option, OCR would view the building as non-occupiable space and as not requiring an elevator because the roof/dome has no ventilation and therefore is not a story. However, because the building doesn’t meet the non-occupiable space exemption under NCSBC and ADAAG 4.1.1(5)(b)(ii), except for not having an elevator (which would be a substantial savings to UNCP), it must be accessible in all other aspects – even thought individuals with mobility impairments may have no way to physically access the space. Under this option the dome would still have to be accessible. Under Section 504 and Title II, the programs and activities run by UNCP must not discriminate based on disability in the use of this facility. By using this option, OCR will ensure that there is no differentiation or non-discriminatory use in access and that there is complete compliance with Section 504 and Title II. UNCP can choose to give the Professor an opportunity to “figure out” how to make the telescope remotely accessible or seek consultants to expedite the process of providing remote access, but in either case students could not be included in the process to provide them a “unique” learning experience as suggested by UNCP.

Note that, in suggesting this option, we recognize that there is no basis in the regulations, per se, for drawing a distinction between professors, on the one hand, and students and the public on the other. We are simply trying to minimize the use of the building by limiting its use to the employees who might be considered “essential.”

Option 3: UNCP will either move the existing telescope or purchase a second telescope and ensure it is placed in an accessible location. The original telescope, if kept in the current space, will be for remote use only, and to be accessed only by authorized personnel (not to include students or members of the public) for designated purposes. UNCP will post signage and develop policies and procedures to ensure this occurs. The current observatory must comply with all aspects of NCSBC, except that an elevator is not required because it is not a multi-story building.

This option is the same as Option 2, however, this option provides for further access to a telescope if UNCP determines the access provided remotely is inadequate. An identical telescope to the one in the observatory would cost approximately $11,000, plus perhaps limited costs for installation (the telescope is essentially portable and may not need to be installed). This is significantly less than the cost of Option 1. Note that, if UNCP decides to move the existing telescope to a new location and seals off the second level (the roof) of the observatory building or removes the stairway, then the second level would not have to be made accessible.

Option 4: UNCP will alter the building to conform to the non-occupiable space exemption it was supposed to be constructed under, NCSBC and ADAAG 4.1.1(5)(b)(ii). UNCP will post signage and develop policies and procedures to ensure the space is used consistent with the non-occupiable space exemption.

This option would make the building’s use consistent with the intent of the architects. In order to meet the non-occupiable space exemption of ADAAG/NCSBC, the staircase leading to the observatory will have to be replaced with a ladder or alternating tread stairs (a hybrid of a ladder and a staircase that is not viewed as a staircase for ADAAG purposes). Replacing the staircase with a ladder would make the space accessible only by a ladder and only service personnel would be allowed to access the building for maintenance, repair, or occasional monitoring of equipment and since it conforms with the exemption it does not need to be accessible (OCR notes that designation of the Professor and others as service personnel would be questionable). Under this option, the second level would not have to be made accessible. Of course, under this option, if UNCP wants to continue to use the telescope in this space, it would have to develop remote access.


  1. As will be discussed, NCSBC Section and ADAAG Section 4.1.1(5)(b)(ii) appear to be the only possible applicable exemption.
  2. The observatory has been used in a manner inconsistent with this provision since it was opened. Thus, this provision would not apply to the building as it is currently used and would only apply once it was no longer open to the public, students, faculty, etc.
  3. The commentary to the Building Code’s definition adds that all “habitable” spaces are considered occupiable, but not all occupiable spaces are habitable; moreover, certain spaces are neither habitable nor occupiable, such as closets, toilets, and mechanical equipment rooms. NCSB provides further requirements for when such spaces must be accessible.
  4. NCDOI is a state agency with several different functions and divisions, with two divisions applicable to this situation, the Code Services Section and the State Property Plan Review Section. The Code Services Section has the responsibility of providing formal technical code interpretations. The State Property Plan Review Section reviews and approves plans for new construction and renovations of all state-owned buildings. Therefore, NCDOI was able to provide assistance to UNCP with code interpretations, but also had inspected the construction plans for the observatory because it is a state-owned building. The employee who had reviewed the observatory plan and accepted the non-occupiable space exemption under NCSBC (2) (ADAAG 4.1.1(5)(b)(ii)) could not respond when asked why the space was considered non-occupiable when it had a staircase, other than to say that he considered the roof to be a mezzanine. Other employees within NCDOI disagree with the reviewer’s determination and believe the building should have been constructed with an elevator.
  5. Moreover, at least according to the Professor, the high-power telescope provides a unique experience.