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Martin Vice President Saxelbye, Powell, Roberts & Ponder, Inc. Architects & Planners The Saxelbye Building 201 Hogan Street, Suite 400 Jacksonville, Florida 32202 Re: Americans with Disabilities Act Accessibility Guidelines Dear Mr. Martin: Thank you for your letter regarding the accessibility standards required by the Americans with Disabilities Act (ADA). I am pleased to hear that you found the Jacksonville seminar useful. I apologize for the delay in responding to your inquiry, which has resulted from the large volume of requests we have received for interpretations of the ADA. The ADA authorizes the Department of Justice to provide technical assistance to entities that are subject to the Act. This letter provides informal guidance to assist you in understanding how the ADA may apply to you. However, this technical assistance does not constitute a determination by the Department of Justice of your rights or responsibilities under the ADA and does not constitute a binding determination by the Department of Justice. We have reviewed the mailing attached to your letter. We have clarified some of the statements therein and referred to the applicable sections of either the title II or title III regulation. Please keep in mind that, in some cases, requirements differ according to whether the facility in question is constructed or altered by, on behalf of, or for the use of an entity covered by this Department's title II regulation, or whether it is a place of public accommodation or a commercial facility covered by the title III regulation. All regulatory references contained in discussions below relating to title II
:udd:pecht:martin.ltr cc: Records, CRS, FOIA, Friedlander (3), Pecht, Breen 01-01544 -2are to the title II regulations to be codified at 28 C.F.R. Part 35. Title III references are to the regulations to be codified at 28 C.F.R. Part 36. Copies of both sets of regulations as well as both the title II and title III Technical Assistance Manuals are enclosed. 1. "All new construction which is begun after January 26, 1992 must comply with these new requirements [referring to the Americans with Disabilities Act Accessibility Guidelines (ADAAG)]." This statement is misleading with respect to both titles II and III, although for different reasons. A. Title II - New construction and alterations that are commenced after January 26, 1992, must meet ADA accessibility requirements. See S 35.151. However, the use of ADAAG is not mandated. Instead, the design must conform to either the Uniform Federal Accessibility Standards (UFAS) or ADAAG, except that the elevator exemption contained in sections 4.1.3(5) and 4.1.6(1)(j) of ADAAG is not available. The preamble to S 35.151 states that facilities under design on January 26, 1992, will be governed by that section if the date that bids were invited falls after that date. B. Title III - Any alteration to a place of public accommodation or commercial facility undertaken after January 26, 1992, must comply, to the maximum extent feasible, with ADAAG. See S 36.402(a)(1). An alteration is undertaken after January 26, 1992, if physical alteration to the property begins after that date. The preamble to S 36.402 notes that the Department will interpret the provision to apply to alterations that require a permit, if physical alterations made pursuant to the terms of the permit begin after January 26, 1992. The requirements for new construction are somewhat more complex. New facilities designed and constructed for first occupancy after January 26, 1993, must be constructed in accordance with ADAAG. As S 36.401(a)(2) states: For purposes of this section, a facility is designed and constructed for first occupancy after January 26, 1993, only
(i) If the last application for a building permit or permit extension for the facility is certified to be complete, by a State, County, or local government after January 26, 1992 (or, in those jurisdictions where the government does not certify completion of applications, if the last application for a building permit or permit extension for the facility is received by the State, County, or local government after January 26, 1992); and 01-01545 -3(ii) If the first certificate of occupancy for the facility is issued after January 26, 1993. Therefore, the actual date construction commenced is irrelevant for purposes of determining whether compliance with ADAAG is required. However, when compliance with UFAS or ADAAG is required as described above, the mailing is correct in stating that "[P]lans reviewed by State and local inspection authorities (for compliance with ANSI 117.1 and the Barrier Free Design Standard) WILL NOT MEET the new requirements!" 2. "All existing buildings and facilities must be brought into compliance with the provisions of ADA by January 26, 1992. Buildings which were constructed in accordance with ANSI 117.1 and/or the Barrier Free Design Standard WILL NOT MEET the new requirements for existing buildings." A. Title II - State and local governmental entities are not required to remove physical barriers in all existing buildings or to bring existing buildings into compliance with any particular design standard as long as they make their programs accessible to individuals who are unable to use an inaccessible existing facility. See, S 35.150. However, such entities may need to make some changes to existing facilities if program access cannot be achieved through alternative methods such as relocating a public service from an inaccessible to an accessible location. Any alterations made must comply with the standards discussed in paragraph 1(a) above. B. Title III - Under title III, public accommodations are
required to remove architectural barriers in existing facilities, including communications barriers that are structural in nature, where such removal is readily achievable, that is, "easily accomplishable and able to be carried out without much difficulty or expense." See, S 36.304. The title III regulation lists examples of readily achievable barrier removal such as installing ramps, making curb cuts at sidewalks and entrances, widening doorways, and adding raised letters or braille to elevator control buttons. What is "readily achievable" will be determined on a case-by-case basis in light of the factors listed in the regulation (including the resources available through any parent corporation). See, S 36.104. As with title II, public accommodations are not required to retrofit existing buildings to bring them into compliance with the Accessibility Guidelines. However, any "readily 01-01546 -4achievable" changes made in existing facilities should generally be made in accordance with ADAAG. See, S 36.304(d) (2). I hope this information has been useful. Thank you again for your interest in the successful implementation of the Americans with Disabilities Act. Sincerely, Stewart B. Oneglia Chief Coordination and Review Section Civil Rights Division Enclosures (4) 01-0154723 September 1991 Stewart B. Oneglia Chief, Coordination & Review Section U.S. Department of Justice Civil Rights Division Post Office Box 66118 Washington, DC 20035-6118 RE: Americans With Disability Act Accessibility Guidelines
Dear Ms. Oneglia: I attended the seminar entitled "The ADA: Getting Down To Business" in Jacksonville, Florida on August 16, 1991 which you spoke at. The seminars and my conversation with you during breaks were very helpful in helping me understand the intentions of the ADA Legislation. I am writing for two reasons, the first being a request for the July 26, 1991 issue of ADA. The second reason concerns the attached mailing I received from James G. Munger & Associates, Inc. I am very concerned about the underlined statement since I got the impression from the seminars that compliance with ANSI A117.1 would basically comply with ADA. I understand that there may be some differences and as we discussed the most stringent requirements should be complied with. Our company has been keeping our clients informed about developments concerning the ADA and I am afraid that mailings such as the attached may cause undue alarm. It is obviously an advertisement for their services, but I ask you, is it verging on untruth or at least misleading. I would be very interested in discussing this with you to get your opinions since our company is studying this legislature carefully so that we may provide accurate advice and consulting services to our established clients and others when we feel we have an adequate understanding of it. As yet we have not advertised this service and feel the advertisements like the attached are misleading to the client, possibly scaring him into some service he may not need. Please feel free to call me if you do not have time for a written response. Thank you for your help in this matter and I look forward to hearing from you and reviewing the up-to-date ADA Guidelines. Sincerely, James T. Martin, AIA/CSI/CCS Vice President JIM:re Enclosure cc: Larry N. Ponder JTM File. SUITE 100 * THE SAXELBYE BUILDING * 201 HOGAN ST. * JACKSONVILLE, FL 32202 * 904/354-7728 01-01548 JAMES G. MUNGER AND ASSOCIATES, INC.
P.O. Box 1773 James G. Munger, CFPS,CFPS, Cullman, Alabama 35056 President (205) 739-3755 David Munger, CP Williams J. Munger, PE IMPORTANT CODE UPDATES Consulting Engineer SEPTEMBER 1991 NEW HANDICAPPED REGULATIONS ISSUED The United States Attorney General has issued the final regulations setting out the handicapped accessibility requirements as required by the ADA. The final regulations were issued on July 26, 1991. The ADAAG (American with Disability Act Accessibility Guidelines) apply to virtually all buildings in the United States both new and existing. All new construction which is begun after January 26, 1992 must comply with these new requirements. The enforcement of the provisions of this civil rights legislation is on the FEDERAL LEVEL ONLY. Plans reviewed by state and local inspection agencies (for compliance with ANSI 117.1 and the Barrier Free Design Standard) WILL NOT MEET the new requirements! All existing buildings and facilites must be brought into compliance with the provsions of ADA by January 26, 1992. Buildings which were constructed in compliance with ANSI A117.1 and/or the Barrier Free Design Standard WILL NOT MEET the new requirements for existing buildings. While these regulations affect the construction of buildings and other physical facilities, it should be remembered that the ADA is civil rights legislation. Failure to comply with the requirements can result in a civil lawsuit in Federal District Court. Our firm is qualified to preform the review of our plans and specifications for compliance with the new requirements. Our reviewing process will help assist you and your clients in complying with the new requirements. 01-01549
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