T. 5-13-93 DJ 202-82-1 MAY 20 1993 Mr. Gene J.

Colin Chair State Building Code Council State of Washington Ninth and Columbia Building, MS/GH-51 Olympia, Washington 98504-4151 Dear Mr. Colin: This letter is an initial response to your request that the Department of Justice certify that the State Regulations for Barrier Free Design adopted by the Washington State Building Code Council ("Council") on November 8, 1991, meet or exceed the new construction and alterations requirements of title III of the Americans with Disabilities Act of 1990 (ADA), 42 U.S.C. ​ 12101 et seq., and this Department's regulation implementing title III, 28 C.F.R. Part 36 (1992). I would like to thank the Council and its staff for the cooperation and patience shown over the past several months. The review process has been a lengthy one with considerable telephone conversations, meetings, and exchanges of information. The Council and its staff, especially Willy O'Neill, have responded to our questions quickly and professionally. This lengthy review process is attributable to your request's status as our first certification review and the likelihood that it will establish a precedent for all future reviews. Further, in an effort to carry out our responsibilities under the ADA and to provide helpful and responsive feedback to the Council, we have undertaken a comprehensive and detailed review of materials submitted. After reviewing the material submitted to the Department of Justice, we have determined that the information the Council has provided to us is incomplete. We, therefore, request additional information as well as clarification of some provisions before we make a preliminary determination as to whether the materials submitted meet or exceed the requirements of the ADA. To assist you in this process, we have prepared a side-byside comparison of the Washington State Regulations (WSR)

cc: Records, Chrono, Wodatch, Blizard, Lusher, FOIA, Library n:\udd\mercado\plcrtltr\colin.rhl 01-02087

-2submitted and the applicable sections of the 1991 Uniform Building Code (UBC) to the ADA title III regulations (including the ADA Accessibility Guidelines for Buildings and Facilities ("ADAAG")). A copy of the side-by-side analysis, which is enclosed, identifies those elements that do not appear to satisfy the requirements of the ADA. The side-by-side comparison identifies sections of the ADAAG for which we could find no equivalent provision in the WSR. They are identified by the characters "NE." Other sections are designated "possibly not equivalent" (PNE). Some elements of the WSR that have been identified as "possibly not equivalent" appear to be typographical errors, e.g., references to the wrong section of the regulation. Other elements designated "possibly not equivalent" simply require further clarification by the Council regarding their intent and meaning. While the side-by-side comparison should give the Council a comprehensive picture of the areas of concern, I would like to highlight some of the major differences between the submitted code and the ADA. These differences are as follows: 1) There are no technical requirements for accessible elevators or platform lifts. The WSR incorporates by reference the requirements of Chapter 296-81 of the Washington Administrative Code, which was not submitted for certification. (See ​ 51-20-3105(c) 2 and 51-20-3105(c) 3.) 2) The WSR provides that where "full compliance is impractical due to unique characteristics of the terrain, the building official may grant modifications . . . provided that any portion of the building or structure that can be made accessible shall be made accessible to the greatest extent practical." This provision appears to apply a lower standard than the ADA, which

requires new construction to comply with the requirements of ADAAG unless it is structurally impracticable to comply. (See ​ 51-20-3101(e) 3) The WSR allows an exemption for "floors or portions of floors that are not customarily occupied (emphasis added) including but not limited to . . . machinery, mechanical and electrical equipment rooms." The use of the phrase "not customarily occupied" and the use of machinery, mechanical and electrical equipment rooms as examples applies this exemption to areas not generally exempt under ADA. Under ADA, unless machinery, mechanical, and electrical equipment rooms are nonoccupiable spaces accessed only by ladders, catwalks, crawl spaces, very narrow passageways, or freight (non-passenger) elevators, they must comply Pith the requirements of 4.1.1(3) Areas Used Only by Employees as Work Areas. (See 51-20-3103(a) 1. EXCEPTIONS:1.) 01-02088 -34) The WSR includes a provision that permits construction of inaccessible elements and spaces on floors of less than 3000 square feet, which are located above or below the accessible ground floor and where no elevator access is required by the WSR or the ADA, if the facility provides accessible services on an accessible floor. (See 51-20-3103(a) 2.) The title III regulations require elements and spaces on such floors to meet the same accessibility requirements as those applicable to the accessible ground floor or those floors connected by elevators. 5) The WSR provides that "the path of travel need not be made accessible if the cost of compliance with this part would exceed 20% of the total project cost, inclusive of the cost of eliminating barriers, within a 36 month period" (emphasis added). (See 51-20-3114(a) 2. EXCEPTION.) This provision appears to include all costs of removing barriers within a 36 month period in the 20% formula for disproportionality. (See 36.403(h)(2).) The ADA requires a covered entity to spend up to 20% of the cost of each alteration to an area containing a primary function on accessibility modifications to the path of travel. These funds must be spent at the time that the primary function alteration is done. The only situation in which the costs of alterations over a three-year period are considered is when a covered entity

undertakes a series of small alterations to primary function areas served by the same path of travel without making the path of travel accessible. The cost of readily achievable barrier removal required by section 302 of the ADA may not be counted toward meeting the obligation to make the path of travel accessible. 6) It is difficult to determine what accessibility provisions would apply to hotels, motels, inns, resorts, or to homeless shelters due to the use in differing terminology. These differences are highlighted in the side-by-side comparison. 7) The WSR uses the ADAAG table to establish the number of accessible rooms required in hotels and the number or percentage of rooms that are required to have roll-in showers. However, the WSR do not clearly state that the number of accessible rooms with roll-in showers are in addition to the other required rooms as required by section 9.1.2 of ADAAG. We have been told by Council staff that the State code officials interpret the provision to require rooms with roll-in showers as included in the required 4% accessible rooms rather than being in addition to the 4%. (.See ​ 51-20-3103(a) 8.C.) 8) Some of the definitions used in the submitted materials differ in some respects from the ADAAG definitions. These definitional differences are highlighted in the side-by-side analysis. The most problematic are the definitions of mezzanine, assembly building, and story. 01-02089 -49) The WSR's technical specifications for visible alarms differ from ADAAG. Certain ADAAG specifications for visible alarms (including color, intensity, and flash rate) are contained in the appendix to the WSR. (See 51-20-3106(o).) 10) The WSR does not contain ATM requirements. 11) The WSR's procedures for determining when accessibility modifications would threaten or destroy the historic significance of a building or a facility do not conform to the ADA requirements. Specifically, under the WSR, the authority to make that determination is given to the building official, not the State Historic Preservation Officer (or certified local historic preservation program) as provided under the ADA Regulations (See

​ 51-20-3113(a).) We understand that after the Council submitted its request for certification, the Washington Department of Labor and Industries continued to work on requirements for elevators and platform lifts. We have also been informed that the Council entered into additional rulemaking in July 1992, to correct technical errors and to make editorial corrections in the 1992 State Regulations for Barrier Free Facilities. If those changes and any others that are directly related to the request for certification are now final, we invite you to supplement the submission with those regulations before we make a final determination on whether to certify the state's barrier-free regulations. Please include the notice of public hearing, copies of transcripts from the hearings, and copies of any standards referenced by the revised sections if not previously submitted. Please note, pursuant to 36.603(b)(1)-(3) of this Department's regulation, the entire package submitted for certification, including copies of the proposed request and supporting materials, must have been made available for public examination and subject to comment at hearings. The elevator code and interpretations made by the Council should be included. We also request that you review the side-by-side comparison to identify any areas where we may have overlooked relevant comparable provisions. We believe it would greatly facilitate completion of our review of this matter, if Council representatives would be willing to meet with our staff. Such a meeting would serve to address all of the areas of concern identified in the side-byside comparison, to provide additional information about any provisions of the Washington State Regulations that we may have overlooked in our analysis, to clarify interpretations of the regulations, and to otherwise discuss and resolve any questions that we or the Council may have regarding this matter. If you believe that such a conference would be a worthwhile endeavor, we 01-02090 -5would be willing to schedule such a meeting at the Council's offices at the earliest, mutually acceptable time. If you have any questions concerning this letter or if we

can assist you in preparing the requested information, please call Janet Blizard or Ruth Lusher of our staff at (202) 307-0663. Please include a reference to DJ number 202-82-1, the number assigned to this matter, in any further correspondence with us. Sincerely,

John L. Wodatch Chief Public Access Section Enclosure cc: Mr. Lawrence W. Roffee Executive Director U.S. Architectural & Transportation Barriers Compliance Board