JUL 21 1995 Technical assistance review of proposed amendments to the Maine Human Rights Act John L.

Wodatch Eve L. Hill Chief Attorney Disability Rights Section Disability Rights Section I. Background and Recommendation By letter dated January 11, 1995, the Maine Human Rights Commission (Commission) requested the Department's comments on proposed amendments to the Maine Human Rights Act(law). The proposed amendments are intended to incorporate requirements of title III of the Americans with Disabilities Act (ADA) into the Maine law. Since the letter was sent, the amendments have been submitted to the State legislature and hearings have been completed. The amendments are currently being addressed by the legislature's Judiciary Committee. Staff of the Commission are anxious to receive our comments in order to address them in working sessions with the Judiciary Committee. Todd Andersen and I have reviewed the Maine law and the proposed amendments. This review indicates that a number of potential problems exist in the proposed amendments as they are currently drafted. I recommend that we point out the major issues and encourage the Commission to address them in its work with the Judiciary Committee and then to submit the final code for certification. A proposed draft response to the Commission is attached. It is important that we move quickly in order to respond before the proposed amendments are finalized. If we wait until they are finalized it will be much more difficult to make the needed changes. II. Analysis Maine's approach is significantly different from the approaches taken by the other jurisdictions whose codes we have reviewed. Rather than create its own accessibility code, Maine has chosen to incorporate the ADA construction standards into its human rights code and involve the Fire Marshall in the enforcement of that code. This is more similar to the ADA's approach than to a building code approach. This approach was

most likely chosen because Maine has no pre-existing statewide building code. Instead, the cities that have adopted building cc: Records, Chrono, Wodatch, Hill, FOIA n:\udd\hille\maine\tal.mem\sc. young-parran 01-03664 ​ -2codes use the Building Officials and Code Administrators International (BOCA) code. The State Fire Marshall apparently applies the National Fire Protection Association (NFPA) code. A. Current Law The Maine Human Rights Act prohibits discrimination on the basis of race, color, sex, disability, religion, ancestry, national origin, or familial status. It covers employment, housing, public accommodations, credit extension, and education. A person who feels he or she has been discriminated against may file a complaint with the Commission within six months after the discrimination occurs. The Commission will investigate and, if it finds discrimination, it may file suit seeking injunctive relief, reinstatement, back pay, damages, civil penalties, and attorneys' fees. The individual may also sue on his or her own behalf, without seeking relief through the Commission. The law currently includes accessibility requirements for new construction and alterations of places of public accommodation (defined as places open to the general public) and places of employment (undefined) when the construction or alteration costs exceed $100,000. It currently uses American National Standards Institute (ANSI) standard A117.1-1986 as its construction standard. It requires covered construction or alterations to comply with the ANSI accessibility requirements for accessible routes, doors, detectable warnings at doors to hazardous areas, parking spaces, and toilet stalls. The only review mechanism currently in place is a requirement that the builder obtain a certificate from a design professional stating that the plans comply. The builder must submit the certification and the plans to the Fire Marshall and to the municipality where the building is located. The Fire Marshall can provide technical assistance, but it is unclear whether he or she has any authority to actually require compliance. This authority may be addressed in the fire code, which has not been submitted.

B. Proposed Amendments The proposed amendments are intended to make the Maine law more consistent with the ADA, while retaining the current State law remedies. While the proposed amendments do improve the Maine law as it applies to new construction and alterations, several significant issues remain. 1. Inspection There is no statewide across-the-board system of building inspection in Maine and the proposed amendments do not attempt to create one. The proposed amendments require a covered builder to 01-03665 -3obtain a design professional's certification of compliance if the construction or alteration cost is $50,000 or more. The builder must provide the building plans and the certification to the Fire Marshall and the municipality where the building is located. It is not clear whether the Fire Marshall has any ability to prevent construction if the plans do not comply. In addition, all newly constructed restaurants, hotels, government buildings, and schools must submit plans to the Fire Marshall, who must certify compliance before a municipality may issue a building permit. If the municipality in which such a building is located conducts inspections, the proposed amendments require it to include accessibility as part of its inspection. Builders of buildings that do not fall within the two categories described above may seek voluntary review by the Fire Marshall. Approval by the Fire Marshall will constitute rebuttable evidence of compliance with the Maine law. This provision refers only to mandatory review by the Fire Marshall, not to voluntary submissions. We need to consider whether a situation in which Fire Marshall approval constitutes rebuttable evidence with State law and compliance with State law, in turn, constitutes rebuttable evidence of ADA compliance gives too much authority to the Fire Marshall. Because the evidence is rebuttable, and because areas of real discretion (e.g., waivers) are not certified, I recommend that we accept this. I believe it is essentially just an explicit statement of actual practice under

most building inspection and permitting systems. We must also consider whether certification should be available for codes under which not all buildings are subject to mandatory plan review/inspection and under which the Fire Marshall may not have authority to prevent construction of noncomplying buildings that he or she does review. Although the limitations on Fire Marshall review will limit the effectiveness of certification somewhat, the unreviewed buildings will still be legally required to comply and noncompliance will give rise to an additional State law cause of action. Furthermore, notice by the Fire Marshall that a plan does not comply may persuade builders to comply, even if the Fire Marshall cannot prevent construction. We have several options in this regard. We could: a) limit the effect of any future certification determination to construction costing over $50,000 and, therefore, reviewed by the Fire Marshall; b) limit the effect of any future certification determination to construction that is both reviewed and approved 01-03666 -4by the Fire Marshall (i.e., restaurants, hotels, public buildings, and schools); c) provide technical assistance indicating that the code is equivalent while refusing certification because of the lack of enforcement; or d) apply any future certification determination to the entire code. Although any of these options may be justified, I recommend that we not limit any certification determination based on the limits of Fire Marshall review. Although one of the purposes of certification is to increase pre-construction review of buildings, other purposes include increasing ease of compliance for builders and increasing the level of enforcement and the number of available remedies. By incorporating the ADA requirements into the State law and by providing a State law cause of action with appropriate enforcement mechanisms and remedies, the State of Maine has accomplished most of the

purposes of certification. In addition, by providing for some review, the State has also addressed the remaining purpose of certification to a large extent. 2. Alterations The proposed amendments require altered areas in existing buildings to comply with ADAAG to the maximum extent feasible. The proposed amendments also require alterations costing over $100,000 that affect areas normally open to the public to meet the requirements of ADAAG § 4.3 (accessible routes), § 4.13 (doors), § 4.29.3 (detectable warnings at hazardous areas), § 4.1.2 (parking), and § 4.17 (toilet stalls). These requirements must be met "regardless of cost." This requirement appears to be in addition to the general requirement that altered areas and paths of travel must be made accessible. This understanding needs to be confirmed. It is also unclear whether the builder must meet the five requirements for every area in the building or just those serving the altered area or only one of each. Some of the five requirements referenced for large alterations are only technical provisions of ADAAG, without scoping. This is true of § 4.13 (doors). Because the ADAAG scoping provision is not referenced, the Maine requirement would appear to require all doors to comply. This exceeds the ADA. In addition, the Maine reference to § 4.17 provides its own scoping, requiring one standard stall and requiring that all additional stalls in the same toilet room be accessible as well. This also exceeds the ADA. It is unclear whether the proposed amendments actually intend to exceed the ADA in these ways. The requirement 01-03667 -5for parking, on the other hand, refers only to the ADA scoping provision without technical specifications. The proposed amendments also provide a path of travel requirement for alterations to primary function areas. The path of travel requirement is split into two provisions; one for alterations over $100,000 and one for smaller alterations. In the provision for large alterations, the 20% cost limit is correctly addressed, as are priorities for providing access. The provision for smaller alterations simply requires an accessible path of travel when it is "not disproportionate to the overall

alterations in terms of cost and scope." It needs to be made clear that the same standards of disproportionality apply to small alterations as apply to large ones. The proposed path of travel requirement for large alterations includes a prohibition against evasion of the obligations "by performing a series of small alterations...." The evasion provision does not specify the three-year time period used by the ADA. The path of travel provision for small alterations does not address evasion at all. The proposed amendments exceed the requirements of the ADA by requiring any reconstruction affecting 80% or more of the internal structure to be treated as new construction. 3. Waivers The proposed amendments provide a waiver procedure for builders of facilities subject to mandatory plan review (restaurants, hotels, etc.). The Fire Marshall may grant a waiver if compliance would be structurally impracticable. Certification will not apply to such a waiver. The waiver is confusing, however, when applied with the referenced ADAAG standard of construction. ADAAG already includes a structural impracticability exception that applies without the need to formally seek a waiver. For two-story buildings not to be used by a public entity, the Fire Marshall may waive accessibility requirements if installation of an elevator would be technically infeasible or would result in excessive and unreasonable costs without any substantial benefit to individuals with disabilities. Shopping centers, shopping malls, offices of health care providers, and transportation stations are ineligible for the elevator waiver. If this waiver is limited to the elevator requirement and does not waive any other requirements, it is more stringent than the ADA elevator exception, which generally does not require elevators in two-story buildings. However, it is not clear that the waiver is limited to the elevator requirement only. 01-03668 -6In addition, this waiver provision does not make sense as it is used. Because the proposed amendments incorporate ADAAG,

including the elevator exemption for two-story buildings, there is no need for a waiver for two-story buildings. If the proposed amendments are not intended to adopt the ADAAG elevator exception, they must be more explicit. 4. Conflicts One significant problem may be conflicts between the ADA building standards incorporated in the Maine law and the standards in municipalities' local building codes. In addition, the NFPA code may conflict. It is unclear how such conflicts have been addressed in the past. 5. Covered facilities The proposed amendments add a definition of "commercial facilities" as "facilities that are intended for nonresidential use." The definition, itself, is equivalent. However, the term is only used in the context of alterations (public accommodations and commercial facilities must comply). In the context of new construction, public accommodations and "places of employment" are covered. The term "places of employment" is not defined. Although the term "places of employment" may provide sufficient coverage, it should be defined. More importantly, it is problematic to use two different terms to define coverage of alterations and new construction. The scope of coverage for both requirements should be the same. 6. Defenses The proposed amendments define "readily achievable" and "undue hardship." However, the proposed amendments do not use these terms. Including these unused definitions in the law will cause confusion and may lead builders to believe they have defenses that do not, in fact, exist. 7. "Disability" The proposed amendments extend protection to people with disabilities, people with records of disabilities, and people who are regarded as having disabilities. However, the amendments retain the current definition of "disability," which is limited to disabilities "caused by bodily injury, accident, disease, birth defect, environmental conditions or illness." The ADA does

not limit the definition based on causation, but, instead, looks to the effect of the impairment. In addition, the current Maine definition provides that it includes conditions diagnosed as "substantial" by a health care provider. The ADA does not require medical assessment of substantiality. 01-03669 -78. "Place of public accommodation" The proposed amendments alter the definition of "place of public accommodation" to more closely resemble the ADA definition. The new definition significantly exceeds the twelve ADA categories by covering elevators in small residential facilities, State and local government buildings, and "any establishment which in fact caters to, or offers its goods, facilities or services to, or solicits or accepts patronage from, the general public." 9. Existing buildings The Maine law includes requirements for accessibility of public accommodations and places of employment that were constructed between 1974 and 1982. For existing public accommodations, it requires: a) at least one public walk at least 48 in. wide with no greater than 1:12 slope; b) a 32 in. wide doorway at the primary entrance that is "operable by a single effort;" c) at least one stall in rest room facilities that is at least 4 ft. wide and 5 ft. deep, with an out-swinging or sliding 32 in. door, with 33 in. high handrails on each side, and with a 20 in. high toilet; d) knurled door handles on doors to dangerous areas that are not intended for normal use; e) one reserved parking space for every 25 provided (no technical specification provided). For existing places of employment, it requires compliance with the above requirements for walks, entries, restrooms, and doors (but not parking). Although certification does not address barrier removal, it needs to be made clear that these requirements will exceed the ADA's barrier removal requirement for some facilities, but will

not meet the requirement for other facilities. Further, buildings built before 1974 must comply with the ADA's barrier removal requirements as well. In addition, because the basic accessibility standard for barrier removal is the new construction/alteration standard, the technical specifications provided are not sufficient. For example, they do not address maneuvering clearance at doors or design of parking spaces. In addition, by requiring the 48 in. alternate stall, the Maine law limits design choices more than the ADA does. These provisions are unclear and the intended application is uncertain. This intent must be clarified. 01-03670 -810. Effective date The Maine law contains construction requirements for buildings begun before the enactment of the amendments. The amendments create a separate section (4594-F) applicable to construction and alterations after January 1, 1995. Any certification determination must make clear that only the amended section is subject to certification. 11. Incorporation of ADAAG The proposed amendments adopt ADAAG as the construction standard. They need to refer to the ADA Standards instead. In addition, they need to consider whether they will automatically incorporate any future amendments that the Department of Justice makes to the ADA Standards or whether, instead, they will individually consider each such amendment. 01-03671