DJ 202-PL-00111 APR 21 1992 Mr. James C.

Hanna Director Department of Housing and Community Development 100 Community Place Crownsville, MD 21032-2023 Dear Mr. Hanna: We are responding to your letter of February 5, 1992, to Irene Bowen inviting the Civil Rights Division to comment on Maryland Senate Bill No. 469, and asking us to respond to certain questions concerning the enforcement 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. Before we address your specific questions, we must clarify the scope of this response. The Department of Justice is authorized by law to provide legal opinions only to the President and to the heads of Federal Executive agencies; therefore we can not provide a legal opinion with respect to a pending State legislative proposal. The ADA authorizes the Department of Justice to provide technical assistance to individuals and entities that are subject to that Act; therefore, we may provide 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. You have asked whether the State of Maryland has the authority to enforce the ADA. The ADA does not authorize State officials to enforce the ADA's accessibility standards. The ADA will be enforced at the Federal level through litigation or through Federal administrative enforcement proceedings. The specific enforcement mechanism varies according to the provision cc: Records Chrono Wodatch Blizard arthur.ada.interpre.hanna 01-00627 -2of the Act that is being enforced. The ADA may also be enforced by private litigants. However, if the State enacts legislation

adopting accessibility requirements based on the ADA as State law, those provisions may be enforced by State officials to the same extent that they would enforce any other provision of State law. You have also asked if State officials may interpret the ADA accessibility standards, or if requests for such interpretations should be referred to the Department of Justice or to the Architectural and Transportation Barriers Compliance Board. We reiterate that State or local officials do not have the authority to enforce the ADA. If a State adopts an accessibility code that duplicates or is based on the ADA, State or local officials may interpret the provisions of that State code to the extent that State law permits them to do so. Such interpretations do not, however, constitute interpretations of the ADA. Neither the Department of Justice nor the Architectural and Transportation Barriers Compliance Board plans to provide interpretations of the accessibility standards with respect to individual projects in the way that State or local agencies do. However, both agencies plan to respond to requests for technical assistance with respect to the accessibility standards to the extent that their resources permit. We hope that this information is helpful to you. Sincerely, John L. Wodatch Director Office on the Americans with Disabilities Act 01-00628

Mr. Hanna This note is intended to provide to you my own general and informal answer to the two questions raised in your letter of February 5. We are not able to give you a more formal response due to staffing limitations and our own time constraints. We have numerous requests from all over the country. Partly because of our limited staff resources, it takes a while to answer the

letters, and we try to answer them in the order in which they are received. In response to your second concern stated in your letter, your State does not have the authority to enforce the ADA as a Federal statute. You do have the authority to enforce the same provisions as are in the ADA, if you make them part of your State code. But you are then enforcing the State code, not the ADA as such. As to your first concern, the answer is similar. If you have a State code that is identical to or like the ADA, the State is able to interpret that code as a State code. That doesn't mean you are interpreting the ADA as such. DOJ will not have staff to provide interpretations about individual projects in the way that State or local agencies do. We will not do plan approvals. Also, we are not necessarily encouraging the States and localities to incorporate the ADA regulations by reference; it may be more appropriate to include the substance of the ADA provisions in the existing code in language that is more familiar to those working with the codes. But if you do use the approach of incorporating by reference, it is very important to include not only the ADA accessibility guidelines (ADAAG) that the ATBCB issued, but also the other parts of the DOJ regulation that relate to new construction and alterations (subpart D of our title III rule for private entities' buildings). I hope this is helpful. I'm glad to see the progress you're making in your State. I'm sorry that we can't give you guidance right now that is more official. We'll go ahead and answer your letter officially as soon as we can. Thanks, Irene Bowen 01-00629 February 5, 1992 L. Irene Bowen, Esquire Coordination and Review, Civil Rights Division Department of Justice Washington DC 20530 Dear Ms. Bowen: In re: Senate Bill 469 - Disabled Persons Maryland Accessibility Code

Enclosed is a copy of Maryland Senate Bill No. 469, which was introduced on January 30, 1932, and assigned to the Senate Economic and Environmental Affairs Committee. In view of our short legislative session, the bill will soon be scheduled for hearing by the assigned committee. Any specific comments from you will be invaluable in understanding our role in interpretation and enforcement of two provisions in the bill. The first concern: SB 469 makes the State responsible for interpretation of accessibility guidelines for buildings and facilities of the Americans with Disabilities Act of 1990. Do we have that authority or should requests for interpretation be forwarded to the Department of Justice or the ATBCB? Our second concern: Does the State have the authority to enforce the provisions of the ADA in the legislation or is that done through the Department of Justice? Because of our limited response time, we should appreciate hearing from you as quickly as possible. Sincerely, James C. Hanna, Director JCH:grh Enclosure cc: Michael Seipp Pat Sylvester

SENATE OF MARYLAND No. 469 03 CF 2lr2424 By: Senators Stone and Garrott Introduced and read first time: January 30, 1992 Assigned to: Economic and Environmental Affairs 2lr2361 A BILL ENTITLED 1 AN ACT concerning 2 Disabled Persons-Maryland Accessibility Code

3 FOR the purpose of requiring the Department of Housing and Community Development 4 to develop, adopt regulations for, and administer the Maryland Accessibility

Code; 5 requiring the Department to incorporate certain guidelines in the Code; specifying 6 certain procedures regarding the Code, including: interpretation, jurisdiction 7 preparation of regulations, investigations of violations, and enforcement remedies; 8 defining a term; establishing certain penalties; making stylistic changes; and 9 generally relating to access for individuals with disabilities to buildings and 10 facilities. 11 BY repealing and reenacting, with amendments, 12 Article 83B- Department of Housing and Community Development 13 Section 6-102 15 Annotated Code of Maryland 15 (1991 Replacement Volume) 16 SECTION 1. BE IT ENACTED BY THE GENERAL ASSEMBLY OF 17 MARYLAND, That the Laws of Maryland read as follows: 18 Article 83B- Department of Housing and Community Development 19 6-102 20 [(a)(1) the Department, or an appropriate division of the Department, shall 21 promulgate and adopt a State building code for the purpose of developing rules and 22 regulations for making building and facilities accessible and usable by the physically 23 handicapped to the extent feasible. 24 (2) The rules and regulations shall be developed in conjunction with 25 the Governor's Committee for Employment of the Handicapped, the 26 Maryland Rehabilitation Association, and the Maryland Society of Architects. EXPLANATION: CAPITALS INDICATE MATTERS ADDED TO EXISTING LAW. [BRACKETS] indicate matter deleted from existing law 2 SENATE BILL No. 469

1 (3) (i) In addition to any other penalty for a violation of the State 2 building code for the handicapped, the Secretary shall investigate to determine the 3 existence of any violation.] 4 (A) IN THIS SECTION "CODE" MEANS THE MARYLAND 5 ACCESSIBILITY CODE.

6 (B) THERE IS A MARYLAND ACCESSIBILITY CODE ADMINISTERED 7 BY THE DEPARTMENT. 8 (C) (1) THE DEPARTMENT SHALL DEVELOP THE CODE AND ADOPT 9 REGULATIONS TO MAKE BUILDINGS AND FACILITIES ACCESSIBLE AND 10 USABLE BY INDIVIDUALS WITH DISABILITIES TO THE EXTENT FEASIBLE. 11 (2) THE DEPARTMENT SHALL INCORPORATE BY REFERENCE IN 12 THE CODE THE ACCESSIBILITY GUIDELINES FOR BUILDINGS AND 13 FACILITIES OF THE AMERICANS WITH DISABILITIES ACT OF 1990 AS PART 14 OF THE MINIMUM STANDARDS OF THE CODE. 15 (3) THE DEPARTMENT SHALL PREPARE THE REGULATIONS 16 WITH THE: 17 (I) MARYLAND ADVISORY COUNCIL FOR INDIVIDUALS 18 WITH DISABILITIES; 19 (II) GOVERNOR'S COMMITTEE FOR EMPLOYMENT OF 20 PEOPLE WITH DISABILITIES: 21 22 23 (III) MARYLAND STATE INDEPENDENT LIVING COUNCIL; (IV) MARYLAND REHABILITATION ASSOCIATION; AND (V) MARYLAND SOCIETY OF ARCHITECTS.

24 (D) (1) THE SECRETARY SHALL INVESTIGATE QUESTIONS OF 25 BUILDING AND FACILITY ACCESSIBILITY AND USABILITY BY 26 INDIVIDUALS WITH DISABILITIES TO DETERMINE THE EXISTENCE OF A 27 VIOLATION OF THE CODE. 28 [(ii)](2) If the Secretary determines that a violation exists, the 29 Secretary may resolve [any] AN issue [in] REGARDING the violation by informal 30 methods of mediation and conciliation. 31 [(iii)](3) In addition to the provisions of[subparagraph (ii) of this 32 paragraph] PARAGRAPH (2) OF THIS SUBSECTION, the Secretary may institute in 33 any court of competent jurisdiction in the subdivision in which the violation occurred an 34 action for equitable relief which may include: SENATE BILL No. 469 1 (I) [enjoining] ENJOINING the construction, renovation, or

2 occupancy of a building or facility that violates the [Maryland Building] Code [for the 3 Handicapped or to seek]; OR 4 (II) SEEKING other appropriate relief from the violation.

5 [(iv)](4) Notwithstanding any other provision of this [paragraph] 6 SUBSECTION, the Secretary may not seek [any] AN injunction under [subparagraph 7 (iii) of this paragraph] PARAGRAPH (3) OF THIS SUBSECTION until 5 working days 8 after the Secretary has sought to seek a resolution through mediation and conciliation 9 under [subparagraph (ii) of this paragraph] PARAGRAPH (2) OF THIS 10 SUBSECTION. 11 (5) IF THE SECRETARY DETERMINES THAT A VIOLATION OF 12 THE CODE IS ALSO A VIOLATION OF THE ACCESSIBILITY GUIDELINES 13 UNDER PARAGRAPH (2) OF THIS SUBSECTION, THE SECRETARY MAY 14 PURSUE AN ACTION OR SUPPORT AN ACTION OF OTHERS FOR 15 ENFORCEMENT UNDER THE APPROPRIATE PROVISIONS OF THE CODE OF 16 FEDERAL REGULATIONS. 17 [(4)](6) The Attorney General is authorized to prosecute all civil cases 18 arising under this section which are referred to the Attorney General by the Secretary. 19 [(b)](D) (1) Enforcement of the Code shall be the responsibility of local 20 jurisdictions or any other public agencies having authority over buildings or facilities. 21 (2) The Department shall decide questions of interpretation of the Code 22 [and authorize any waivers or exemptions under the Code]. 23 [(c)](E) (1) Any person who willfully violates any provision of the [Maryland 24 Building] Code [for the Handicapped] adopted under subsection [(a)] (C) of this 25 section is guilty of a misdemeanor and on conviction for each violation is subject to a fine 26 not exceeding $500 for each day that the violation exists or imprisonment not exceeding 3 27 months[,] or both. 28 (2) Any penalty ordered under paragraph (1) of this subsection is in 29 addition to and is not a substitute for any other penalty ordered under a federal, State, or 30 local law.

31 [(d)](F) (1) Nothing in this section shall limit the authority of the Human 32 Relations Commission to enforce the provisions of Article 49B, S 22 of the Code. 33 (2) The Department shall cooperate with and provide technical assistance to 34 the Human Relations Commission concerning any action brought by the Commission to 35 enforce the provisions of Article 49B, S 22 of the Code. 36 SECTION 2. AND BE IT FURTHER ENACTED, That this Act shall take effect 37 October 1, 1992.