# 92 III-9.2000 III-7.

5145 DJ 202-PL-595

July 21, 1993

Ms. Pat McPartland Code Specialist Office of the State Architect Department of General Services State of California 400 P Street, 5th Floor Sacramento, California 95814 Dear Ms. McPartland: I am responding to your letter concerning the application of title III of the Americans with Disabilities Act (ADA), 42 U.S.C. 12101 et seq., and the Department of Justice regulation implementing title III, 28 C.F.R. pt. 36 (1992), to the design and construction of facilities that are subject to title III and to the requirements of the California State Building Code. The ADA authorizes the Department of Justice to provide technical assistance to individuals and entities that have rights or responsibilities under the Act. This letter provides informal guidance to assist you to understand the ADA. However, this technical assistance does not constitute a determination by the Department of your rights or responsibilities under the ADA, and it is not binding on the Department. Your letter states that the State of California recently amended its State Building Code and that the State plans to seek ADA certification of the amended code. You have asked if, in the interim period between the effective date of the amended State code and the date of this Department's determination on the request for certification, the Department will regard compliance

with the California State Building Code as compliance with the ADA. Title III of the ADA requires all places of public accommodation and commercial facilities that are designed and constructed for first occupancy after January 26, 1993, and those that are altered after January 26, 1992, to comply with the Standards for Accessible Design (28 C.F.R. pt. 36, Appendix A) contained in the Department of Justice regulation implementing title III. Title III does not, however, preempt all State regulation in the area of accessible design. States may enact and enforce code provisions that provide equal or greater access than the ADA Standards. However, if the State code provisions differ from the ADA requirements in a way that results in less accessibility, then an entity subject to title III is required to comply with the Federal standard. Congress recognized that individuals involved in the design and construction of facilities subject to the Act may want to be able to rely on compliance with State or local codes as a "safe harbor." Therefore, title III permits the Department of Justice, in response to a request from a State or local government, to certify that the accessibility provisions of a State or local building code meet or exceed the requirements of the ADA. Certification of a code by the Department does not ensure that a facility constructed in compliance with the code will comply with the ADA, but it does enable a party in litigation that alleges a violation of title III to point to compliance with a certified code as rebuttable evidence of compliance with the ADA. Compliance with a State code can be offered as evidence of compliance with the ADA only after the State code has been certified. Until the code has been certified, individuals responsible for the design, construction, or alteration of facilities subject to title III must ensure that those facilities meet or exceed the minimum requirements of the ADA standards. You have also asked if the Department will undertake an informal review of the State code to identify any areas of conflict with the ADA, so that entities subject to the California code may rely on that code while the State's request for certification is pending. Although the Department does provide technical assistance to State governments that plan to seek certification, the Department does not have the resources available to undertake reviews of completed codes prior to a

formal request for certification. This type of "informal" review cannot be substituted for the formal review process (including the opportunity for public comment) that must precede a preliminary determination of equivalency, and it could not support the use of the State code as a "safe harbor" until certification is obtained. Your letter did ask for technical assistance about one particular issue: the California specifications for a rollin/transfer shower stall in hotel rooms (hereafter referred to as the "California shower"). You asked if the California shower design is equivalent to the accessible shower stalls required by the ADA. The California shower is 42 inches wide and 48 inches deep, with an entrance opening of 36 inches. A folding seat is located on the wall opposite the controls. There is a 36 inch by 48 inch clear space at the entrance to the shower. The design of the California shower varies significantly from the shower designs allowed by the ADA Standards for Accessible Design (28 C.F.R. pt. 36, Appendix A, 4.21 and 9.2). The most significant differences in the designs are the 42 inch width of the shower and the lack of the required 30" by 48" clear floor area adjacent to and perpendicular to the shower seat. The 36 inch width specified for the ADA transfer shower in section 4.21 is absolute; it is not a minimum dimension. The California shower width of 42 inches will make it difficult, if not impossible, for many people to reach and use the controls or the showerhead while seated on the bench. The appendix to the ADA Standards (Fig. A3(a)) illustrates that the maximum forward reach of a person seated in a wheelchair is 31 inches from the centerline of the individual's body and approximately 36 inches from the backrest of a wheelchair. This reach is possible when an individual is able to grasp the wheel rim of the chair and lean forward to extend his/her reach out over his/her feet, which are resting on footplates and support this reach. The required reach to use the California shower could be up to 42 inches from the wall at the back of the seat to the controls and showerhead on the opposite wall. This reach is 6 inches beyond the 36 inch reach allowed in the ADA Standards for a person seated in a wheelchair. The difficulty of achieving this reach would be further complicated by the fact that it occurs in a shower, a wet and generally less supportive environment than an individual's own wheelchair.

The clear floor area required in the California shower is not located adjacent to the transfer seat as required in the ADA Standards. Although the California shower requires a 36 inch by 48 inch clear floor area, the space is allowed to be 12 inches away from the transfer seat, not located immediately adjacent and perpendicular to the bench as required in the standards. These problems are further complicated by the provision in Section 3105.(b.1) 1 B.(1) that states "(c)ompartments shall be 42 inches in width... with an entrance opening width of 36 inches. ..." Although it is unclear where this opening may be located, if it is located between the clear floor area and the shower seat, the 36 inch entrance opening would further obstruct an individual's ability to transfer from a wheelchair to the shower seat. I hope that this information is responsive to your inquiry. Sincerely,

John L. Wodatch Chief Public Access Section