10-2-92 OCT 22 1992 DJ 202-PL-257 Michael Reynolds, Esq. St.

John & King 500 Australian Avenue South West Palm Beach, Florida 33401 Dear Mr. Reynolds: This letter is in response to your letter requesting information about the Americans with Disabilities Act (ADA). The ADA authorizes the Department of Justice to provide technical assistance to individuals and entities having rights or responsibilities under the Act. This letter provides informal guidance to assist you in understanding the ADA. However, it does not constitute a legal opinion or legal advice, and it is not binding on the Department. You have asked about the certification process under the ADA. Section 308(b)(1)(A)(ii) of the ADA permits State and local governments to ask the Department of Justice to certify that the accessibility requirements of a State or local building code that applies to places of public accommodation or commercial facilities meet or exceed the requirements of the ADA. In ADA enforcement actions, compliance with a certified State or local code will constitute rebuttable evidence of compliance with the ADA. State laws other than those that govern the construction or alteration of facilities subject to title III of the ADA are not eligible for certification. Requests for certification must be made by an authorized State or local government official. The Department's review will be limited to the accessibility requirements that apply to new construction or alteration of places of public accommodation and commercial facilities subject to title III of the ADA. This includes any interpretations of the code by a State Attorney General or State courts that is included in the request for certification. Certification will apply to the State or local code as it has been formally interpreted prior to the request for certification. Subsequent interpretations that alter the way the code is applied would not be certified unless a new request for

c: Records, Chrono, Wodatch, Breen, Blizard, FOIA, Library dd:mercado:policy.letters.certif:blizard.wodatch.reynolds 01-01625​ -2certification is made. Individual "interpretations" or variances permitted by building inspectors reviewing specific buildings or building plans under the certified code are not certified. The procedures for applying for certification are established in subpart F of the Department's regulation implementing title III of the ADA (28 C.F.R. SS 36.601-36.608) and explained on pages 68-73 of our Title III Technical Assistance Manual. Copies of the regulation and the Manual are enclosed for your information. You also asked what procedure an entity should follow to determine if it is in compliance with the ADA if the State or local code has not been certified. In addition, you inquired whether there is State enforcement of the ADA. There is no Federal procedure for "preclearance" of a covered entity's operation. Title III enforcement will be carried out through case-by-case adjudication. Enforcement litigation may be initiated in the U.S. District Court by private parties or by the Department of Justice. No title III enforcement authority is delegated to State or local agencies. The enforcement procedures for title III are addressed in subpart E of the enclosed regulation (28 C.F.R. SS 36.501-36.508) and at pages 64-67 of the Technical Assistance Manual. Finally, you have asked about the application of the ADA to private multifamily residences such as condominiums. Title III of the ADA imposes certain obligations on places of public accommodation. The Act lists twelve types of entities as places of public accommodation; strictly residential facilities are not among the listed categories. In addition, strictly residential facilities do not qualify as commercial facilities. Because strictly residential facilities are neither places of public accommodation nor commercial facilities, they are not covered by title III of the ADA. Portions of residential facilities that are used for a business purpose that would fall within the definition of place of public accommodation, such as the professional office of a health care provider, are subject to the requirements of title III. In addition, strictly residential facilities may have obligations under the Federal Fair Housing Act.

Common areas in residential facilities are not subject to title III if their use is restricted exclusively to residents and their guests. However, if a residential facility makes its common areas available for general use by nonresidents, it may lose its strictly residential character and be subject to the requirements of title III, if the common area facilities fall within one of the statutory categories of public accommodation. Please refer to pages 35,551-35,552 of the enclosed regulation to find the twelve categories of public accommodation 01-01626 -3and a discussion of the circumstances in which a residential facility may be covered under title III. Some further discussion may be found at pages 1-3 of the enclosed Technical Assistance Manual. I hope that this information is helpful to you. Sincerely, John L. Wodatch Chief Public Access Section Enclosures (2) 01-01627​ LAW OFFICES ST. JOHN & KING SUITE 600 500 AUSTRALIAN AVENUE SOUTH WEST PALM BEACH, FLORIDA 33401 DAVID ST. JOHN, P.A. WM. REEVES KIN LEON ST. JOHN, P.A. EDWARD DICKER LOUIS CAPLAN GEORGE SCHWIND STEVE PRESS TELEPHONE (407) 655-8994 TELECOPIER (407) 659-0850 July 13, 1992 Office on the Americans with Disabilities Act

Civil Rights Division U.S. Department of Justice P.O. Box 66118 Washington, D.C. 20035-6118 re: the certification of state laws and the ADA's application to condominiums and other cooperative housing associations

To whom it may concern: I have just recently begun investigating the ADA, specifically its effects on housing associations such as condominiums. I have some specific questions about the application of the bill's public accommodations section and possible state laws' certification, however my phone conversations haven't yielded any answers (when I can actually get through). I realize how busy your office must be at this time, but any assistance you could provide in response to these questions would be greatly appreciated. 1. What agency would have knowledge or be in charge of the certification of existing Florida laws under the ADA? la. If a state law was properly certified, would previously-issued state attorney general opinions interpreting that law be valid under the ADA? This question specifically relates to a 1980 opinion issued by the Florida attorney general which exempted condominiums as private residences from the thenexisting accessibility standards for the disabled. If those laws were certified (and, truthfully, I have not yet received any confirmation of the opinion's continuing validity in Florida), would the exemptions be rebuttable evidence against charges of discrimination? Extend the question to include court interpretations of existing state laws. Basically I would like to know: when a state law is certified, do all of the state's interpretations of that law, in courts and regulations, continue to govern the implementation and effect of the laws, or will those interpretations have to be reconsidered in light of the ADA? 01-01628​Office on the Americans with Disabilities Act Dept. of Justice July 13, 1992 Page Two

3. Can a private entity request the certification of existing state laws? Could a condominium ask the state of Florida to certify the aforementioned accessibility standards and the existing exemptions? This question, if answered in the positive, also brings up the issue of correct procedure for such a request. 4. If no state laws have been certified, what is the correct procedure for an entity to determine if its actions and accommodations comply with the ADA's standards? 5. How do the ADA's public accommodations standards apply to private multi-family residences such as condominiums? Under the Federal Fair Housing Act Amendments of 1988, condominiums have followed certain standards. Will these change? I am specifically interested in the ADA's application to the non-housing sections of a condominium or any other kind of private housing association. Most of these associations have recreational facilities where members can assemble for association meetings or for social activities. Where such a facility is open to the public (a golf course, for example), I understand the law to require appropriate accommodation. However, where the facility is only for the members of the association, is strict compliance with public accommodation standards required? Any information you can provide will be very helpful. Further, if you could direct me to the proper state agencies in charge of Florida's implementation and interpretation of the ADA, I will direct all further inquiries to them. Thank you very much for your time and assistance. Sincerely yours, Michael Reynolds 01-01629