T.

6-15-93 JUN 17 693 DJ 202-47-2

Mr. Michael D. Jenkins Executive Director Governor's Commission on Disability State of New Hampshire 57 Regional Drive Concord, New Hampshire 03301-8506 Dear Mr. Jenkins: This letter is in response to your request that this Section review the proposed New Hampshire Barrier Free Design Code to determine if it meets or exceeds the requirements of title II of the Americans with Disabilities Act (ADA). The State of New Hampshire is proposing to adopt a modified version of the standards for accessible design established by the Department's title III regulation as the State accessibility requirements for places of public accommodation that are now subject to the State's prohibition on discrimination based on physical disability. The proposed code has yet to be adopted. As we have discussed with you, only codes that have been adopted under State law may be certified. It would, therefore, be premature for us to undertake a formal review of your proposed code. Because the ADA does authorize the Department to provide technical assistance to individuals and entities that have rights or responsibilities under the Act, this letter provides technical assistance to assist you in understanding how New Hampshire's proposed code compares to the ADA requirements. This technical assistance does not constitute a determination by the Department of Justice of the State's rights or responsibilities under the ADA, and it is not binding on the Department. Please note that it is our policy generally to limit this type of technical assistance to comments on the scoping provisions of a proposed code. We have not considered the technical requirements of your code. In addition, we have not considered the application of the proposed code to government facilities because title II of the ADA applies only to private entities.

cc: Records, Chorono, Wodatch, Bowen, Blizard, FOIA, Friedlander n:\udd\blizard\cert\newhamp.ltr 01-02413 -2We do not consider the proposed New Hampshire Architectural Barrier Free Design Code to be equivalent to the ADA for Several reasons, including: 1) Under New Hampshire law, places of public accommodation for purposes of the proposed code include only places of transient lodging, places where food and drink are served, and theaters, concert halls, and other places of public gathering or places of exhibition. The ADA applies to any private entity that owns, operates, leases (or leases to), a private entity whose operations fall within one of twelve categories identified in the statute. In addition, the new construction and alterations requirements of the ADA apply to all commercial facilities; the proposed State code does not. The ADA permits the Department to certify a State's accessibility requirements if they meet or exceed the requirements of the ADA. If a State's accessibility requirements do not apply to all of the public accommodations and commercial facilities that are subject to title III, we cannot certify that the State's requirements are equivalent. I have enclosed copies of the Department of Justice regulation implementing title III and our Title III Technical Assistance Manual for your information. The ADA coverage provisions are contained in section 36.104 of the Department's regulation. The requirement is further explained in the preamble to the regulation (pp. 35547-35555), and in sections III1.1000 through III-1.3100 of the Technical Assistance Manual. 2) The proposed code will apply only to people with physical disabilities, while the ADA prohibits discrimination against any individual who has a physical or mental impairment that substantially limits one or more major life activities. The scope of this requirement is established in section 36.104 of the enclosed regulation. It is discussed in the preamble to the

rule (pp. 35547-35555), and in sections III-2.1000 through III2.7000 of the Technical Assistance Manual. In our view, the accessibility requirements of building codes should afford protection to all people with disabilities, to the extent that protection is provided by the ADA standards. 3) The proposed code will apply only to new construction of and substantial alterations to places of public accommodation. The ADA applies to all new construction of, and any additions or alterations to, places of public accommodation and commercial facilities, regardless of whether the addition or alteration is considered "substantial." These requirements are contained in sections 36.401-36.404 of the enclosed regulation. They are discussed in the preamble to the rule (pp. 35574-35584), and in sections III-5.1000 through III-6.3000 of the Technical Assistance Manual. -34) The proposed code recognizes the possibility of waivers" due to economic reasons or historic considerations in both new construction and alterations. Title III of the ADA does not permit waivers based on economic considerations in any new construction or alterations. The Department's title III regulation recognizes that historic buildings and facilities present unique challenges that may require the use of alternative methods of providing access; however, there is no provision for a "waiver" of the requirements for historic properties. This requirement is contained in section 36.405 of the enclosed regulation and in section 4.1.7 of the ADA standards. It is discussed in the preamble to the rule (pp. 35584 and 35588), and in section III-6.4000 of the Technical Assistance Manual. In addition, we note that the proposed code purports to "amend" the requirements of the ADA. Any action taken by the State of New Hampshire with respect to its State code is effective only as a matter of State law. The State does not have the authority to amend the ADA regulations, or to excuse any person or entity subject to the ADA from full compliance with these Federal requirements. If you have any questions about this letter, please contact Janet Blizard, Supervisory Attorney, Public Access Section at (202) 307-0847.

Sincerely,

John L. Wodatch Chief Public Access Section Enclosures 01-02415