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U.S. Department of Justice Civil Rights Division Disability Rights Section P.O.

Box 66738 Washington, DC 20035-6738 OCT 31 1996 Ms. Patricia Ryan Executive Director Maine Human Rights Commission State House Station 51 Augusta, Maine 04333-0051 Dear Ms. Ryan: I am responding to your letter of July 21, 1995, submitting the Maine Human Rights Act, as amended ("law"), for review and possible certification under title III of the Americans with Disabilities Act ("ADA"). I apologize for the delay in responding to your request and I thank you for your patience. In an effort to carry out our responsibilities under the ADA and to provide helpful information to you, we have undertaken a detailed and comprehensive review of the materials submitted. Our review of the submitted materials indicates that the Maine law's construction requirements are very nearly equivalent to the construction and alterations requirements of title III of the ADA. You and your team have done an excellent job adapting the ADA requirements to the Maine enforcement system. However, a number of issues need further clarification. We, therefore, request clarification before we make a preliminary determination regarding whether the Maine law meets or exceeds the requirements of the ADA. Our analysis of the material you submitted is discussed in detail in the attached side-by-side comparison of the Maine law with the ADA title III regulations (including the ADA Standards for Accessible Design (Standards)). The side-by-side comparison identifies those elements that do not appear to meet the requirements of the ADA. Sections of the ADA Standards for which we could find no equivalent Maine law provision are designated

"not equivalent" ("NE"). Other sections are identified as "possibly not equivalent" ("PNE"), indicating that further clarification is needed regarding the Maine law's intent and meaning. N:\UKK\HILLE\MAINE\TAZ.LTR Records Chrono Wodatch Blizard Hill 01-04346 2 It is important to note that, although the Maine law covers both public and private facilities, ADA certification applies only to title III (i.e., privately owned) facilities. Our analysis does not address the Maine law's application to publicly owned facilities. In addition, certification applies only to new construction and alterations requirements. Therefore, our analysis does not address the Maine law's requirements regarding existing buildings or businesses' policies and practices. As we have previously noted, no transcript of hearings was included in your submission, as called for by the title III regulation, 28 C.F.R. S 36.603(c)(3). The reason for this omission is unclear. While the side-by-side comparison should provide a comprehensive picture of the areas of concern, I would like to highlight some of the areas about which we are concerned. 1. Definitions Cert File FO1A

The Maine law uses the term "primary function" in its alterations provision without including a definition. A definition is needed. 2. Structural impracticability (28 C.F.R. S 36.401(c)(3))

The Maine law does not specify that when it is structurally impracticable to make a facility accessible for people with one type of disability, it must, nevertheless, be made accessible for people with other types of disabilities, to the extent it is not structurally impracticable. 3. Elevator Exception (4.1.2(5) Exception 1)

The Maine law is unclear regarding whether it includes ADA Standard 4.1.3(5) Exception 1 or whether it relies only on Maine law S 4594-F3C. The two are substantially similar in most respects. However, Maine law S 4595-F3C does not specify that non-elevator buildings must comply with all other accessibility requirements, even on upper floors. 01-04347 3 4. Path of Travel (4.1.6(2))

The Maine law addresses requirements separately for alterations costing more than $100,000 and alterations costing $100,000 or less. Maine's path of travel requirement for large (>$100,000) alterations is largely equivalent. However, for smaller alterations, the Maine law requires provision of accessible path of travel elements when the cost is not "disproportionate." Because the Maine law does not specify that disproportion only applies if path of travel costs exceed 20% of alterations costs, Maine's provision is potentially not equivalent. In addition, the Maine law requirement for smaller alterations fails to address priority of accessible path of travel elements in the event of disproportionate cost. For large alterations, the Maine law prohibits evasion of path of travel requirements by performing a series of small alterations. However, the Maine law does not address this issue for smaller alterations. Furthermore, for both large and small alterations, the Maine law does not specify inclusion of alterations undertaken in previous years as part of the total alterations cost in figuring disproportion. 5. Historic Buildings (4.1.7)

It is unclear whether the Maine law adopts the Uniform Federal Accessibility Standards ("UFAS") requirements for alterations to historic buildings, or the ADA Standards, or both. Based on Maine law S 4594-F5, our analysis has assumed the Maine law uses UFAS. The Maine law does not address the ADA

requirements for buildings not covered by section 106 of the National Historic Preservation Act, or for consultation with interested persons. The UFAS requirements used by Maine law do not require a notification system to be provided when the accessible entrance is not the entrance used by the general public. The ADA Standards (S 4.1.7(3) (b)) require such a system. 6. Toilet Rooms (4.22.4)

The Maine law does not specifically address the ADA requirement that a 36-inch wide toilet stall be provided in addition to the accessible stall whenever 6 or more toilet stalls are provided. Because Maine law includes a specific provision for toilet stalls, it is unclear whether it also adopts the ADA requirement for stalls. 01-04348 4 I believe a meeting on these issues will be very useful. I appreciate your willingness to set aside time on November 4 to meet with Eve Hill. You may also contact Ms. Hill at (202) 3070663 with any questions you may have about our analysis. Sincerely, John L. Wodatch Chief Disability Rights Section Enclosure cc: U.S. Architectural and Transportation Barriers Compliance Board 01-04349