# 145 III-9.

0000 July 22, 1994

Mr. Gene Colin Chair State Building Code Council State of Washington 906 Columbia Street SW P.O. Box 48300 Olympia, Washington 98504-8300 Dear Mr. Colin: Thank you for your supplemental submissions of August 20, 1993, and March 23, 1994, in support of your request for certification that the Washington State Regulations for Barrier Free Design (WSR), as adopted on November 8, 1991, and amended on November 13, 1992, meet or exceed the new construction and alterations requirements of title III of the Americans with Disabilities Act (ADA). We greatly appreciate your thorough responses to our initial review of the WSR. We are still awaiting written confirmation from your staff of the legal effect of the State Building Code Council's (Council) "interpretations" of the WSR, and without such confirmation we are unable to issue a preliminary determination regarding certification. However, in order to avoid any unnecessary delay, we have proceeded to review the WSR and the additional information, explanations, interpretations, and amendments provided in your recent submissions. Our analysis of the material you have submitted is discussed in detail in the attached side-by-side comparison. That analysis addresses only the issues raised in our initial response to your certification request and those raised by the 1992 amendments to

the WSR. For each issue, the side-by-side comparison contains the relevant ADA provision in the left column, the WSR provision, with any amendments, in the center column, and the Department's original (May 1993) comment in the right column. Following that, the comparison provides, in the center column, the Council's "comment" (italicized) and, in the right column, our response (underlined and bracketed) to the Council's comment. Following that, the analysis provides, in the center column, any interpretation (italicized and underlined) issued by the Council to address the issue, and, in the right column, our response (underlined and bracketed) to the interpretation. Based on this analysis, we have determined that in only a very few areas does the WSR not meet or exceed the relevant requirements of title III of the ADA. Therefore, upon correction of these few remaining problems, we propose to recommend that the Assistant Attorney General issue a preliminary determination of equivalency pursuant to 42 U.S.C. 12188(b)(1)(A)(ii) and 28 C.F.R. ​36.601 et seq. The remaining areas of nonequivalency are discussed below and noted in the right column of the side-by-side analysis in underlined and bracketed text. Many of these issues may be addressed through further interpretations of the WSR. A few others may require amendments to the WSR. A number of items that do not necessarily pose obstacles to certification require further discussion: 1) A number of items that are addressed by the ADA Standards for Accessible Design (ADA Standards), 28 C.F.R. Part 36 Appendix A, are not addressed by the WSR, including limitedflow toilet paper dispensers (Standard 4.16.6), telephone books (Standard 4.31.7), and audible alarms (Standard 4.28.2). These omissions from the WSR are based, in part, on the difficulty of regulating such items at the pre-construction/pre-occupancy stage. Because the omissions are limited to such "non-code" items, they will not prevent certification. Rather, the certification determination will not apply to those omitted items at all. Therefore, if such equipment is installed in a building, the certification determination will not constitute evidence of ADA compliance with respect to such equipment. 28 C.F.R. ​36.607(a)(1). This limitation of the certification determination should be noted in any publication of the WSR if certification is issued.

2) The certification determination will be limited to the version of the WSR, including the amendments and interpretations, that has been submitted to the Department. The certification determination will not apply to amendments or interpretations that have not been submitted to and reviewed by the Department. This limitation should be noted in any publication of the WSR if certification is issued. In addition, any future uncertified amendments should be distinguished from the certified version of the WSR. Finally, because the certification determination will be based, in part, on official interpretations of the WSR, those interpretations should be made public and published together with the WSR. 3) The certification determination will not apply to waivers granted under the WSR by local building officials. 56 Fed. Reg. 35592 (July 26, 1991), 28 C.F.R. Part 36, Appendix B. Therefore, if a builder receives a waiver, modification, variance, or other exemption from the requirements of the WSR for any element of construction or alterations, the certification determination will not constitute evidence of ADA compliance with respect to that element. Examples of such waiver provisions include WAC 51-20-3101(e) (allowing modifications where full compliance is impractical), WAC 51-20-3113 and 51-20-3114 (allowing modifications when full compliance would threaten or destroy the historic value of a historic building), and WAC 5120-3112(a)(2) (allowing a 20% cost limit on provision of access in the path of travel to altered primary function areas). This limitation of the certification determination should be noted in any publication of the WSR if certification is issued. 4) The WSR relies on building classifications that differ from those used by the ADA. This will not prevent certification of the WSR because the effects of these differences on accessibility have been substantially eliminated by the Council's interpretations. It should be made clear to building code enforcement officials that the WSR's general classifications should be applied flexibly in the context of accessibility to ensure full ADA compliance. 5) The Appendix to the WSR contains the "U.S. Architectural and Barriers Compliance Board Americans with Disabilities Act Guidelines for Automated Teller Machines," WAC ​51-20-93120. These provisions contain the former ADA Standards for ATMs. On January 18, 1994, however, the Department amended

the ADA Standards regarding ATMs. The amended version is enclosed. The WSR Appendix, therefore, should be amended to reflect the current ADA Standards. 6) The WSR does not address transportation facilities. The ADA provides special accessibility requirements for such facilities (by amendment dated January 18, 1994, enclosed). This difference between the WSR and ADA will not prevent certification. However, the certification determination will not apply to any elements in transportation facilities that are subject to section 10 of the ADA Standards and, therefore, will not constitute evidence of ADA compliance with respect to such elements. This limitation on the certification determination should be noted in any publication of the WSR if certification is issued. If the Council were to adopt accessibility requirements for transportation facilities, those requirements could be submitted to the Department for certification at a later date. The following issues need to be corrected before a certification determination can be issued (page references are to the side-by-side comparison): 1) Maneuvering clearances at doors (Standard 4.13.6, p. 77). The WSR fails to address the different requirements for different approaches to doors (i.e., hinge-side and latch-side). Instead, the code addresses only front approaches, assuming that providing the maneuvering clearance required for front approach will be sufficient, even if a side approach is required. This assumption is not valid. The size, shape, and placement of maneuvering clearances must change when the approach changes. Nor is it always possible to provide a front approach. In addition, the WSR assumes that the size of the maneuvering space is the only important factor. To the contrary, the shape and placement of the maneuvering space are also essential. In order to meet the ADA Standard, the WSR will need to be amended to provide the different space configurations needed for different approaches. 2) Grab bars (Standard 4.16.4, p. 86). The WSR does not correctly address all aspects of the required placement of grab bars at water closets. The WSR fails to require side grab bars to begin no more than 12 inches from the back wall and to extend at least 54 inches from the back wall (WSR would require only extension to 48 inches from the back wall). This extension is necessary for people who need to reach far forward to pull to a

standing position. The WSR also fails to require back grab bars to extend at least 12 inches beyond the center of the water closet and at least 24 inches toward the open side of the water closet. This placement is necessary to allow a diagonal transfer to the toilet when needed. An amendment will be necessary to meet the ADA Standard. 3) Food service shelves (Standard 5.5, p. 108). The WSR generally requires at least one shelf to be accessible. However, for food service lines, the ADA requires 50% of shelves to be accessible. The Council has issued an interpretation purporting to require 50% to be accessible. However, because this interpretation contradicts the code provision, the "interpretation" approach fails to provide appropriate guidance of the requirement. An amendment to the WSR is needed here. 4) Tableware and condiment areas (Standard 5.6, p. 109). The WSR provision references another code provision. However, the reference is erroneous. The Council has issued an interpretation directing readers to the correct provision. However, simply issuing an interpretation does not provide effective notice of the change and does not effectively correct the error in the code. ​ 5) Elements in showers and bathtubs: a) Shower seats (Standard 4.21.3, p. 92). The WSR fails to require that shower seats be L-shaped. The L shape permits people to sit in the corner of the shower and use both walls for support. b) Shower controls (Standard 4.21.5, p. 93). The WSR addresses placement of shower controls only in an interpretation. That interpretation fails to specify that such controls must be located at specific points on the wall, but, instead, simply requires them to be offset. Offsetting controls is not sufficient to ensure that they are always reachable. If a shower were built to the minimum accessibility requirements, offsetting may be acceptable, but if a shower were built larger than the minimum, offset controls may not be reachable. c) Bathtub controls (Standard 4.20.5, p. 90). The WSR requires bathtub controls to be placed no more than 24 inches from the clear side of the tub. The ADA requires them to be offset between the midpoint of the tub and the outer edge.

Although in very wide tubs (over 48 inches), the Washington requirement may exceed the ADA requirement, in standard tubs the ADA provision is better, because the midpoint of the tub will likely be 15-16 inches from the edge. d) Clear floor space (Standard 4.21.2, p. 91). The WSR does not require the clear floor space at a transfer shower to extend 12 inches beyond the seat wall, as ADA Figure 35 does. This space is necessary to allow a wheelchair to be placed to permit transfer without obstructing the seat. 6) Parking at medical care facilities (Standard 4.1.2(5), p. 26). The ADA requires accessible parking in increased percentages at medical care facilities - 10% at outpatient facilities and 20% at (inpatient and outpatient) facilities that specialize in mobility impairments. The WSR requires 10% at all outpatient facilities and doctors' offices and 20% only at inpatient mobility-specialty facilities. Thus, outpatient mobility specialists are required to provide 20% accessible parking under the ADA, but only 10% under the WSR. The WSR requires provision of 10% accessible spaces at physicians' offices; the ADA does not. However, outpatient mobility specialists create the greatest need for accessible parking, while physicians' offices create a lesser such need. Although the WSR approach may result in a larger total number of accessible spaces in the State of Washington, the spaces will be not be placed where they are most needed. 7) Elevator exception (Standard 4.1.3(5), p. 28; see also pp. 21 and 24). The ADA provides that, generally, no elevator is required in multi-story buildings (1) that are less than three stories or (2) that have less than 3000 square feet per story. The comparable WSR provision provides an exception to the general requirement to install an elevator for "floors above and below accessible levels that have areas of less than 3000 square feet per floor." ​51-20-3103(b)(2). This language is ambiguous because it is not clear that all floors must be less than 3000 square feet (not just the accessible floor). This language raises the possibility that if one floor is accessible and has less than 3000 square feet, the Washington code would allow all other floors to have no elevator access, regardless of the size of the floors. Although the WSR exceeds the ADA in that it does not extend

the elevator exception to most two-story buildings, this is not sufficient to make up for the nonequivalency of the exception for small floors. 8) Alterations. Because the WSR requires all routes in new construction to be accessible, a number of the ADA Standards' requirements that items be placed on an accessible route are superfluous in the context of new construction under WSR. However, such requirements are necessary under WSR for alterations, where not all routes may be accessible: a) Protruding objects (Standard 4.1.2(3), p. 25; Standard 4.4, p. 58). The WSR provision regarding protruding objects limits protrusions into an "accessible route of travel, corridor, pathway, or aisle." 51-20-3106(e). This appears to apply only to routes that are accessible to people who use wheelchairs. However, the ADA protrusion limits serve primarily people with vision impairments. Therefore, protrusions cannot be allowed in any route. b) Self-service shelves (Standard 5.5, p. 108). The WSR was amended to remove the requirement that self-service shelves be on an accessible route. 9) Unisex toilet rooms (Standard 4.1.6(3)(e), p. 48). The WSR fails to require that, when a unisex toilet room is installed in alterations, it must be placed in the same area as the existing toilet facilities. 10) Companion seating (Standard 4.33.3, p. 104). The WSR fails to require companion seats to be adjacent to accessible seats. The Council states that the code's requirement that accessible seating be "an integral part of any fixed seating plan" is sufficient. However, it is not clear that "integral" means that every accessible seat must be next to a companion seat. That meaning needs to be made more clear. ​ 11) Location of lavatories: a) Water closets (Standard 4.16.2, p. 85). The WSR allows a lavatory to be installed in the clear floor space at a water closet. The ADA does not permit such a lavatory if the water closet is in a stall. The Council responded to this issue by stating that a lavatory could not be put in a stall because such a lavatory would reduce the required width of the stall.

The reasoning behind this statement is unclear and needs to be explained. b) Bathtubs (Standard 4.20.2, p. 88). The WSR fails to specify that, if a lavatory is placed in the clear floor space of a bathtub, it can never be placed at the end of the tub where the seat is located, but may only be placed at the control end of the tub. 12) Diagonal curb ramps (Standard 4.7.10, p. 63). The ADA provides special standards for diagonal curb ramps; the WSR does not. The Council argues that it is not necessary to address diagonal curb ramps because they are rarely used in private development. The WSR would require such ramps to be accessible if they were in an accessible route. However, the standards for accessibility would be the same as that for curb ramps generally. Therefore, the bottom of the ramp would not be required to have 48 inches of clear space. This clear space limitation is necessary at diagonal ramps to allow people to maneuver out of the intersection. In addition, 24 inches of straight curb on either side would not be required if the ramp had flared sides. This straight space is needed to lessen foot traffic on diagonal ramps. 13) Tactile signage (Standard 4.30.4, p. 101). The WSR technical requirements for raised characters have been amended. The amendment has removed the requirement that such characters be in simple typeface. Therefore, the amended code is not equivalent to the ADA. 14) Knee clearance at tables (Standard 4.32.3, p. 103). The WSR fails to require that knee clearance be at least 19 inches deep at tables and counters. 15) Transient lodging (Standard 9.2.2(6), p. 116). The WSR does not specifically require carports that serve accessible hotel rooms to be accessible. It only addresses such facilities if they serve type A (residential) dwelling units. We understand from your letter of March 23, 1994, that the Council is currently in the process of updating the WSR and we hope that our analysis will be helpful in that effort. Our staff would also be happy to meet with Council representatives to answer any questions that you may have about our analysis.

Our offices have worked diligently together over a long period of time and we stand on the threshhold of achieving the nation's first ADA-certified State code. Almost all of our work is done. I hope that we can reach agreement on the few remaining issues. We look forward to recommending certification of the WSR as soon as the remaining issues can be resolved. If you have any questions concerning this letter, please call Eve Hill at (202) 307-0663. Sincerely,

John L. Wodatch Chief Public Access Section Enclosures: Side-by-side comparison Regulations Regarding ATMs and Transportation Facilities cc: Mr. Lawrence W. Roffee Executive Director U.S. Architectural & Transportation Barriers Compliance Board