T. 6/18/92 DJ 202-CON-8 JUN 25 1992 The Honorable Joe Skeen U.S.

House of Representatives 2447 Rayburn House Office Building Washington, D.C. 20515-3102 Dear Congressman Skeen: I am responding to your letter to Janet Blizard, of my staff, in which you expressed concern about two matters that pertain to the implementation of the Americans with Disabilities Act of 1990 (ADA): the State of New Mexico's plans to amend its statewide building code to incorporate the ADA accessibility requirements prior to seeking ADA certification from this Department; and the national model building code organizations' plans to revise the model codes to make them consistent with the ADA. You have suggested that for the State or the national code groups to adopt the ADA Accessibility Guidelines without limiting their application to situations in which accessibility is "readily achievable" or "economically feasible" may be inconsistent with the intent of the ADA. In enacting the ADA, Congress endeavored to strike a balance between the right of people with disabilities to participate fully in American society and the legitimate economic concerns of business owners who are subject to the ADA. The ADA provides that public accommodations subject to the Act are required to remove architectural and structural communication barriers in existing facilities only when it is "readily achievable" to do so. However, this limitation applies only to barrier removal in existing facilities that are not otherwise being altered. When a place of public accommodation or a commercial facility is newly constructed or altered, a stricter standard applies. New construction of and alterations to places of public accommodation and commercial facilities must be readily cc: Records, Chrono, Wodatch, Russell udd: Blizard.cert.ltr.skeen 01-00957

-2accessible to and usable by individuals with disabilities. New construction must be accessible unless it is "structurally impracticable"; alterations must be accessible to the maximum extent feasible. This rationale for this stricter standard is found in the report of the House Committee on the Judiciary which notes that: The ADA is geared to the future -- the goal being that, over time, access will be the rule rather than the exception. Thus, the [ADA] only requires modest expenditures to provide access in existing facilities, while requiring all new construction to be accessible. The provision governing alterations is akin to new construction because it is only applicable to situations where the commercial facility itself has chosen to alter the premises. H.R. Rep. No. 485, 101st Cong., 2d Sess., pt. 3, at 63 (1990). The ADA directs the Architectural and Transportation Barriers Compliance Board (Access Board) to develop guidelines for the design and construction of accessible buildings and facilities, and requires this Department to adopt regulations that are consistent with the Access Board's guidelines. Pursuant to this requirement, in July 1991, the Access Board published the ADA Accessibility Guidelines, which have been adopted by this Department as enforceable standards. Places of public accommodation and commercial facilities subject to the ADA are, therefore, required by Federal law to comply with the ADA accessibility standards in all new construction and alteration projects. To the extent that State or local codes provide for a lower standard of accessibility,

those codes are preempted by the ADA. State or local laws that provide equal or greater access may still be enforced, and if these laws have been certified by the Department of Justice to meet or exceed the requirements of the ADA, building owners, architects, and design professionals will have the assurance that compliance with the certified code will be considered evidence of compliance with the ADA in any litigation to enforce the Act. The certification process is not mandatory. Nevertheless, many States have expressed their intent to revise their codes to be consistent with the ADA, and to seek ADA certification, because it will facilitate the design and construction process for people working on commercial facilities and places of public accommodation. Certification will not change an entity's obligations under State or Federal law, but it will streamline 01-00958 -3the process of design and construction by permitting a covered entity to rely on the State or local code provisions to determine what is required, rather than having to consult both State and Federal regulations. I believe that the certification of State and local codes will, over the course of time, prove to be an effective mechanism for achieving the goals of the ADA because the incorporation of the ADA requirements into State and local codes will ensure that accessibility is considered at the earliest stages of the construction process. This Department is, therefore, actively working to educate State and local officials about the certification process and to encourage these officials to seek certification of their codes. Because the ADA limits certification to State and local codes, model codes cannot be certified. However, the Division has established a procedure through which the national model code organizations can seek technical assistance from the Division to determine whether, and in what respects, the model codes are consistent with the requirements of the ADA. We view the attempts by the national model code organizations to develop of model accessibility codes that are consistent with the ADA as a commendable effort to ensure that future construction is accessible to all Americans. We are prepared to provide

assistance to the code groups in this endeavor. I hope that this information is responsive to your inquiry. Sincerely, John R. Dunne Assistant Attorney General Civil Rights Division Enclosures (3) 01-00959

Congress of the United States House of Representatives June 2, 1992 Janet Blizzard, Attorney Public Access Section P.O. Box 66738 Washington, D.C. 20035-9998 Dear Janet: I am writing because I have concerns with respect to efforts being made to bring stringent handicapped access requirements into our building codes. This is apparently happening in response to the Americans with Disabilities Act becoming law. New Mexico is on the verge of adopting Americans with Disability

Accessibility Guidelines, taken out of context, into their building codes in order to obtain "certification" from the Department of Justice. Various provisions such as "readily achievable" and "economically feasible" are an important part of ADA. I believe congress intended that these provisions be preserved, especially under Title Three of the Act, in order to give affected businesses a chance to provide reasonable accommodation. If building codes simply absorb the building design sections of ADA without any provision for other features such as "readily achievable" then I believe we have lost the original intent of ADA. Our national model building code organizations are rushing to modify their documents, as evidenced by the new Chapter 31 and the appendix on Site Accessibility contained in the Uniform Building Code which we use in New Mexico. Apparently they all feel compelled, or pressured, to modify their model codes, even though this action moves their codes away from their own stated philosophy, which is "The purpose of this code is to provide minimum standards to safeguard life or limb, health, property and public welfare by regulation and controlling the design, construction, quality of materials, use and occupancy, location and maintenance of all buildings and structures within this jurisdiction and certain equipment specifically regulated herein. "The purpose of this code is not to create or otherwise 01-00960

establish or designate any particular class or group of persons who will or should be especially protected or benefited by the terms of this code" - Part 1, Chapter, Sec. 102 of the 1991 Uniform Building Code. This codification of handicapped access guidelines may well be counter to the spirit and intent of the Americans with Disabilities Act as passed by Congress. Before you proceed with

"certification" of any building codes, I would appreciate discussing this with you further. Sincerely, Joe Skeen Member of Congress JS/jr 01-00961