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Title III Technical Assistance Manual (with 1994 supplement)

Regulatory references: 28 CFR 36.601-36.608.

III−9.1000 General. The ADA authorizes the Attorney General to certify that State laws, local building codes, or similar ordinances meet or exceed the title III accessibility requirements.

Certification is advantageous for the following reasons --

1) When an entity is designing, constructing, or altering a building in accordance with an applicable State or local code that has been certified by the Department, the designer or contractor will need to consult only that one code, in order to determine the applicable Federal, State, and local requirements.

2) The covered entity will have some degree of assurance in advance of construction or alteration that the ADA requirements will be met.

3) If a covered entity is subject to a lawsuit, compliance with a certified code will be rebuttable evidence of compliance with the ADA.

4) A State or local agency enforcing a certified code is for practical, but not legal, purposes facilitating compliance with the ADA and helping to eliminate confusion and possible inconsistencies in standards.

5) The amount of unnecessary litigation can be reduced, particularly if a State or local code agency has an administrative method of effectively handling complaints concerning violations of its code.

Does this mean that if an architectural firm follows a certified State or local code, it will be safe from any Federal lawsuits because the State or local government will be implementing the ADA? No, but the firm will be less likely to face a lawsuit; and if it is sued, it has the advantage of rebuttable evidence of compliance. Keep in mind that State and local agencies are not authorized to enforce the ADA -- which is a Federal civil rights statute -- on behalf of the Federal government. This is true even when those agencies are implementing a certified code.

Moreover, the existence of a certified code does not ensure that facilities will be constructed in accordance with the code. In addition, even if a building is built to a certified code, that does not prevent a lawsuit concerning the building's accessibility by the Department or by an individual.

III−9.2000 Relationship to State and local enforcement efforts. There are tens of thousands of code jurisdictions in the United States that enforce some combination of State and local building codes. Some, but not all, of these include accessibility requirements. Although many are based on a model code, there are major variations among the State codes, and among local codes within some States. Design and construction to these codes will not constitute compliance with the ADA, unless the codes impose requirements equal to or greater than those of the ADA.

The enforcement of these codes is the responsibility of State or local officials. They usually review building plans and inspect projects at specific intervals during construction to ensure that the construction complies with State and local laws. State and local officials do not have the authority to enforce the ADA on behalf of the Federal government.

Architects, builders, and others involved with design and construction are accustomed to the State and local enforcement system, which lets them know before construction whether they need to make changes to their plans in order to achieve compliance. The ADA relies on the traditional method of case-by-case civil rights enforcement in response to complaints. It does not contemplate Federal ADA inspections similar to those done at the State or local level. The ADA certification provisions will help to moderate the effects of these differences in enforcement procedures and standards.

May code officials issue binding interpretations of ADA accessibility provisions at the local level? No. Code officials may not take any action that purports to relieve a public accommodation or commercial facility of its obligation to comply fully with the ADA.

May code officials be sued to challenge their implementation of a certified code? The certification process is not intended to impose greater liabilities on State or local officials toward private parties than they now have in carrying out their responsibilities under State law. Title III of the ADA does not alter the personal liability of State or local officials enforcing State or local laws. The Department of Justice anticipates that State and local officials enforcing a certified code will continue to enforce that code under the same standard of care that would apply if the code was not certified.

Why should code officials seek certification of local accessibility codes? If the code in a local jurisdiction is certified, the designers, contractors, and building owners will have some assurance that compliance with those regulations will also satisfy ADA requirements. Through knowledgeable and professional plan review and inspection services, a covered entity may benefit from the technical assistance available from the local code official. Also, if there is an effective procedure for handling complaints at the local level, litigation will be minimized.

If a building has been designed, built, or altered in accordance with a certified code, and a lawsuit concerning violation of the ADA standards is brought, the defendant will be able to point to compliance with the certified code as "rebuttable evidence" of compliance with the ADA.

ILLUSTRATION: The JKL Hotel chain builds hotels to a standard plan throughout the United States. The State of C has had its code certified by the Department, and JKL has designed a hotel, according to its standard plan, to be built in that State. The State has approved the plans, with no waivers or modifications. If the Department brings a lawsuit challenging the hotel's compliance with ADAAG, JKL has the advantage of being able to introduce the approved plans as evidence that the design complies with the ADA. A hotel designed to the same plans in the State of S, which does not have a code with accessibility requirements, would also have that advantage because the hotel was designed in compliance with a certified code.

If a builder follows a State's certified code, and the building official grants a waiver of certain requirements, does that mean the waiver is good for ADA purposes too? No. State or local officials have no authority to waive ADA requirements. Many State or local codes allow the building official to grant waivers, variances, or other types of exceptions (e.g. , in cases of "undue hardship," "impossibility," or "impracticability"). They may also allow compliance by means other than those required by the code if "equivalent facilitation" is provided.

The ADA standards also include some exceptions (e.g. , for structural impracticability in new construction) and allow for equivalent facilitation. But no individual is authorized under the ADA to grant the exceptions in advance; and the defendant in a lawsuit would have to justify the use of any of those ADA exceptions.

The Department would not refuse to certify a code merely because it includes authority for or procedures for waivers and variances. A defendant, however, would not be entitled to rely on certification as rebuttable evidence of compliance, if a local or State official had granted a waiver or other type of exception on the point at issue.

III−9.3000 Procedure: Application and preliminary review. The certification process begins with an application to the Department by a "submitting official. " The submitting official is one who has principal responsibility for administration of a code or who is authorized to submit a code on behalf of a jurisdiction.

In some States, the local jurisdictions are required to follow and enforce the State code. Can the State submit a single application on behalf of the State as well as on behalf of all the local jurisdictions? Yes, the State can submit one application on behalf of the State and on behalf of any local jurisdiction that has authorized the State to do so.

What does the State or local agency have to do before it applies for certification? Four things are required:

1) The code or law must have been formally approved by the issuing body. In those States where

an administrative agency (rather than the legislature) is charged with developing a code, and it

becomes law on a certain date if it is not modified by the legislature before that time, the

Department will accept an application based on the code as approved by the agency.

2) The agency has to give public notice of its intent to request certification and notice of a hearing.

3) The agency has to hold a hearing within the State or locality at which the public is invited to comment on the proposed request for certification. The hearing must be held after adequate notice to the public and must be on the record (that is, a transcript of the hearing must be produced). This procedure ensures input from the public at the State or local level.

4) The agency has to make the materials and the certification request available for public examination and copying.

What should the application include? The submitting official must include two copies of --

1) The code;

2) Standards or other documents referenced in the code;

3) The law creating the agency;

4) Any relevant manuals, guides, or other interpretive information;

5) Any formal legal opinions that pertain to the code;

6) Any model code or statute on which the code is based, along with an explanation of any differences between the model and the code being submitted for certification;

7) The transcript of the public hearing; and

8) Any other information that the submitting official wants to be considered.

III−9.4000 Preliminary determination. After receiving the application, the Office of the Assistant Attorney General for Civil Rights will determine whether or not to begin considering the application for certification. If the Assistant Attorney General's office decides to proceed, the office will consult with the Architectural and Transportation Barriers Compliance Board. After that consultation, the office will make a preliminary determination to either --

1) Find that the code is equivalent (make a "preliminary determination of equivalency"); or

2) Deny certification.

The next step depends on which of these preliminary determinations is made.

III−9.5000 Procedure following preliminary determination of equivalency. If the AAG makes a preliminary determination of equivalency, he or she will --

1) Inform the submitting official in writing;

2) Publish a notice in the Federal Register informing the public of the preliminary determination and inviting comment for 60 days;

3) Consider the comments, and then hold an informal hearing in Washington. In many cases, this "hearing" may consist of a meeting with those who are interested;

4) Consult again with the ATBCB and make a final determination of equivalency or a final determination to deny the request for certification.

5) Publish a notice of the final determination in the Federal Register.

III−9.6000 Procedure following preliminary denial of certification. If the preliminary determination is to deny certification, then there will be no hearing.

The Department will notify the submitting official of the preliminary determination. In the notification, the Department may specify how the code could be modified so that it could receive a preliminary determination of equivalency.

The submitting official will have at least 15 days to submit relevant material in opposition to the preliminary denial. If no more information is received, no further action will be taken.

If more information is received, the Department will consider it. The Department will then make either a final decision to deny certification or a preliminary determination of equivalency. If at that stage the Assistant Attorney General makes a preliminary determination of equivalency, the hearing procedures described in III−9.5000 will be followed.

III−9.7000 Effect of certification. Certification will only be effective concerning those features or elements that are both covered by the certified code and addressed by the Department's regulations.

ILLUSTRATION: The Department's standards currently do not include specific provisions concerning children's facilities. A private elementary school is built to the specifications of a code certified by the Department. Certification will not be effective for those features of the building especially designed to be used by children (e.g. , children's restrooms, water fountains). Will certification be effective only for the particular edition of the code that is certified? Yes. Amendments will not automatically be considered certified, and a submitting official will need to reapply for certification of the changed or additional provisions.

Will certification apply to the process by which a State or local code is administered or enforced? No. In other words, the Department will evaluate and certify only the code itself, not the process by which it is implemented. This is true even though the Department has certified a code with provisions concerning waivers, variances, or equivalent facilitation. Certification of a code with those provisions is not to be interpreted as an endorsement of actions taken pursuant to those provisions. The Department's certification of a code is effective only with respect to the standards in the code; it is not to be interpreted to apply to a State or local government's application of the code. For example, a local official's decision that a particular approach constitutes equivalent facilitation under a local code is not effective for ADA purposes.

Can a code that is consistent with ADAAG be certified if the local enforcement process allows deviations from ADAAG? Yes. The Department expects that many jurisdictions will allow slight variations from a particular code. ADAAG itself permits variations from its standards in certain limited circumstances. ADAAG includes in §2.2 a statement allowing departures from particular requirements where substantially equivalent or greater access and usability is provided. Several sections specifically allow for alternative methods of providing equivalent facilitation and, in some cases, provide examples.

What if a State or local official allows a facility to be constructed or altered in a manner that does not follow the technical or scoping provisions of the certified code? If an official either waives an accessible element or feature or allows a change that does not provide equivalent facilitation, the fact that the Department has certified the code itself will not constitute rebuttable evidence that the facility has been constructed or altered in accordance with the minimum accessibility requirements of the ADA.

III−9.8000 Certification and barrier removal in existing facilities. The Department will measure equivalency against subpart D of the title III rule, New Construction and Alterations. The Department will not require that provisions concerning barrier removal in existing facilities be included in a code in order for it to be certified.

Will the Department certify a code that includes provisions similar to those in the Department's title III rule concerning removal of barriers in existing facilities (e.g. , on priorities, portable ramps, seating in assembly areas)? The Department generally will not review these parts of a code.

III−9.9000 Review of model codes. The Department will not certify model codes, but the Department will review models for equivalency with ADA requirements.

The Department's rule provides for review of model codes in recognition of the fact that many codes are based on, or incorporate, models or consensus standards developed by nationally recognized organizations. These organizations include, for example, the American National Standards Institute (ANSI), Building Officials and Code Administrators (BOCA) International, the Council of American Building Officials (CABO) and its Board for the Coordination of Model Codes (BCMC), Southern Building Code Congress International (SBCCI), and the International Conference of Building Officials (ICBO). The Department wishes to encourage the continued viability of the consensus and model code process consistent with the purposes of the ADA.

The model code review process will be informal. The Department will not necessarily hold a public hearing, but it has the discretion to do so and to ask for public comment. After the review, the Department may issue guidance as to whether and in what respects the model code is consistent with the ADA's requirements.

This guidance will not be binding on any entity or on the Department. It will assist in evaluations of individual State or local codes; and it may also serve as a basis for establishing priorities for consideration of individual codes.

Who can submit a model code for review? It must be submitted by an authorized representative of the private entity responsible for developing the code.

ILLUSTRATION: The ABC model code, which includes both scoping and technical provisions, is followed by 13 States. It contains its own unique scoping requirements, with technical provisions that were developed by XYZ, Inc. , another private group. An authorized representative of ABC can submit the ABC code, including the XYZ technical provisions, for review, even if XYZ has not submitted its standard to the Department for review.


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