MAY 14 1998 The Honorable Henry Bonilla Member, U.S.

House of Representatives 11120 Wurzbach, Suite 300 San Antonio, Texas 78230 Dear Congressman Bonilla: I am responding to your letter on behalf of your constituent, XXX , who asked about the application of the new construction and alteration requirements of the Americans with Disabilities Act of 1990 (ADA). Mr. XXX has recently received a waiver of the Texas Accessibility Standards to permit the installation of strobe alarms in a manner that differs from that prescribed by either the Texas Accessibility Standards or the ADA Standards for Accessible Design (28 C.F.R. pt. 36, App. A) (ADA Standards). Mr. XXX has asked you to determine why he cannot also receive a waiver of the ADA's new construction requirements. Basically, Mr. XXX cannot receive a waiver of the ADA requirements because, in contrast to the State of Texas which, in the course of enforcing its State building code, can give advance approval of variances, the Federal government is not authorized to make ADA building inspections and grant waivers absent a complaint that the ADA is being violated. To understand this more fully, it is important to remember that the ADA is a comprehensive civil rights act that prohibits discrimination on the basis of disability in employment, transportation, public services, and public accommodations. To achieve the objectives of the Act, the ADA also requires that public buildings and facilities, places of public accommodation, and commercial facilities be designed, constructed, and altered in compliance with the ADA Standards. The ADA Standards, therefore, constitute only one small part of a much broader piece of Federal civil rights legislation that is intended to enable people with disabilities to participate in society. The enforcement of building codes is the responsibility of State or local officials - usually through plan reviews and building inspections prior to (and during) construction. Most local building regulations include a process through which a cc: Records; Chrono; Wodatch; McDowney; Blizard; FOIA. Spinckne\myfiles\bonilla.wpd -2-

builder or building owner may seek advance approval of variances from the code requirements. The ADA, like other Federal civil rights statutes, relies on case-by-case enforcement in response to complaints. The statutory enforcement process does not include any mechanism for Federal ADA building inspections or plan reviews analogous to those in the State code enforcement process. Because each compliance determination is unique, the Department is unable to determine if a building complies with the ADA without conducting a full investigation, and the Department is authorized to investigate only when there is reason to believe that a violation of the ADA has occurred. Therefore, the Department cannot approve plans prior to construction or waive the requirements of the ADA Standards. To mitigate the tension between State code enforcement and the ADA, title III of the ADA authorizes the Attorney General to certify State or local building codes that are equivalent to the ADA Standards. Enforcement of a certified code facilitates compliance with the ADA. However, State and local officials enforcing a certified code do not have the authority to enforce the ADA on behalf of the Federal government. The Texas Accessibility Standards have been certified by the Department of Justice. Therefore, the State of Texas is in a position to assist owners and builders in the State by using the expertise of building officials to guide them in applying the law. Building elements constructed pursuant to a State waiver or modification are not certified - but that does not mean that waivers or modifications are prohibited. It only means that the burden will be on the covered entity in any enforcement action to prove that any modification approved by the State complies with the ADA. I hope that this information is helpful to you in responding to your constituent. Sincerely, Bill Lann Lee Acting Assistant Attorney General Civil Rights Division