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Conrad Executive Director California Building Standards Commission 428 J Street, Suite 450 Sacramento, California 95814 Dear Mr. Conrad: We are responding to your recent letter requesting that the Civil Rights Division respond to certain questions concerning the enforcement of State accessibility codes that are certified by the Department of Justice to meet or exceed the requirements of title III of the Americans with Disabilities Act of 1990 (ADA), Pub. L. 101-336, 104 Stat. 327 (July 26, 1990), 42 U.S.C.A. 12101 et seq., and this Department's regulation implementing title III, 56 Fed. Reg. 35544 (July 26, 1991), to be codified at 28 C.F.R. pt. 36. Before we address your specific questions, we must clarify the scope of this response. The ADA authorizes the Department of Justice to provide technical assistance to individuals and entities that are subject to the Act. This letter provides informal guidance to assist you in understanding the ADA and the ADA regulations. However, this technical assistance does not constitute a determination by the Department of Justice of your rights or responsibilities under the ADA, and it is not binding on the Department. With regard to your specific inquiry: title III of the ADA provides that the Attorney General, in response to a request from a State or local government, may certify that the accessibility provisions of a State or local building code meet or exceed the accessibility requirements of the ADA. Certification of a State or local code by the Attorney General does not guarantee that a building built in compliance with the code will be in compliance with the ADA. In litigation concerning violations of title III, a place of public accommodation or commercial facility can point to compliance with a certified code as rebuttable evidence of
cc: Records Chrono Wodatch Bowen Blizard arthur.ada.interpretation.conrad 01-00572
-2compliance with the ADA. This "protection" applies only to the new construction or alteration of facilities that are subject to title III; it does not apply to barrier removal under title III, or in any litigation to enforce other provisions of the ADA. Title III of the ADA does not alter the responsibility of State or local government officials to enforce existing State laws, and title III does not authorize or require State officials to enforce Federal law. The ADA specifically provides that enforcement of title III will be carried out through litigation initiated by the Department of Justice or by private litigants. The certification process is not intended to impose greater liabilities on State or local officials toward private parties than they now have in carrying out their responsibilities under State law. This Department anticipates that State and local officials enforcing a certified code will continue to enforce that code under the same standard of care that would apply if the code was not certified. State or local officials may interpret the provisions of the State or local code if the State law permits them to do so. These interpretations will continue to be effective with respect to the State or local codes, as they are now. However, if an element of a place of public accommodation or a commercial facility is constructed pursuant to a waiver or a variance from
the provisions of a certified code, a defendant could not necessarily use the fact of construction in accordance with the variance as evidence of compliance with the ADA requirements in any litigation to enforce title III. We hope that this information is helpful to you. Sincerely, John L. Wodatch Director Office on the Americans with Disabilities Act Civil Right Division
January 15, 1992
John Wodatch, Director Office of the ADA U.S. Department of Justice Washington, DC 20530 Dear Mr. Wodatch:
The State of California is in the process of adopting the 1991 editions of the Uniform Building, Mechanical, and Plumbing Codes. As part of that process, the Office of the State Architect/Access Compliance Section (OSA/AC) will be modifying their current disabled access regulations, including the adoption of ADA standards to conform with the Americans with Disabilities Act (ADA). During a recent hearing of the Commission a number of issues were raised relative to this action by OSA/AC. Since the civil rights aspect of the Act places enforcement with the Federal Department of Justice (DOJ), this raises specific questions as to the impact of the enforcement of California's Building Code, containing these standards, by local government. If California's Building Code becomes certified by the DOJ as equivalent to the requirements of the ADA, can local government be authorized to interpret the requirements in the California Building Code, as they currently do with the existing disabled access standards? In carrying out their responsibilities of enforcement, will local government be in conflict by enforcing the ADA standards, or will they be limited only to California requirements? I raise this issue because of concern expressed by representatives of local government who feel that their ability to enforce California's access standards will be limited if they become certified to be equivalent to the ADA. Local government has an obligation by state law to enforce state accessibility standards, yet they have no authority to enforce the ADA standards. The DOJ encourages the adoption of ADA standards in state and local codes to facilitate "voluntary compliance." Does voluntary compliance, through enforcement of the State Building Code, ensure compliance with the ADA? If so, what responsibilities and liabilities rest with local government in performing this function? Currently, OSA/AC provides assistance in interpreting state accessibility standards, but state law mandates enforcement authority for these regulations to local government; including the authority to interpret the regulations. Will local government still have the ability to interpret the state code once it is deemed to comply with the ADA? That is, can local government vary from federal ADA standards when the agency finds the need to adjust such standards due to site conditions?
John Wodatch January 15, 1992 Page Two In summary, answers are needed to the following questions: 1. 2. 3. 4. Will local governments be limited to the enforcement of California standards only? What is the exact scope of enforcement? May local governments interpret, or be authorized to interpret, the ADA-based California Building Code? May local governments vary from the ADA standards dependent on site conditions? What are the responsibilities and liabilities of local government in carrying out their enforcement and interpretive functions of a "certified" state code? Does voluntary compliance, through enforcement of the State Building Code, ensure ADA compliance?
We anticipate having the revised accessibility standards before the Building Standards Commission for approval at the end of February. If you could respond prior to that time, it will assist the Commission in addressing this sensitive subject. Thank you very much for your assistance. Sincerely yours, Richard T. Conrad AIA Executive Director RTC:mag 01-00575