T.

6/18/92
DJ 202-CON-8
JUN 25 1992

The Honorable Joe Skeen

U.S. House of Representatives
2447 Rayburn House Office Building
Washington, D.C. 20515-3102

Dear Congressman Skeen:

I am responding to your letter to Janet Blizard, of my

staff, in which you expressed concern about two matters that
pertain to the implementation of the Americans with Disabilities
Act of 1990 (ADA): the State of New Mexico's plans to amend its
statewide building code to incorporate the ADA accessibility
requirements prior to seeking ADA certification from this
Department; and the national model building code organizations'
plans to revise the model codes to make them consistent with the
ADA. You have suggested that for the State or the national code
groups to adopt the ADA Accessibility Guidelines without limiting
their application to situations in which accessibility is
"readily achievable" or "economically feasible" may be
inconsistent with the intent of the ADA.

In enacting the ADA, Congress endeavored to strike a balance

between the right of people with disabilities to participate
fully in American society and the legitimate economic concerns of
business owners who are subject to the ADA. The ADA provides
that public accommodations subject to the Act are required to
remove architectural and structural communication barriers in
existing facilities only when it is "readily achievable" to do
so. However, this limitation applies only to barrier removal in
existing facilities that are not otherwise being altered.

When a place of public accommodation or a commercial

facility is newly constructed or altered, a stricter standard
applies. New construction of and alterations to places of public
accommodation and commercial facilities must be readily

cc: Records, Chrono, Wodatch, Russell

udd: Blizard.cert.ltr.skeen

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accessible to and usable by individuals with disabilities. New

construction must be accessible unless it is "structurally
impracticable"; alterations must be accessible to the maximum
extent feasible.

This rationale for this stricter standard is found in the

report of the House Committee on the Judiciary which notes that:

The ADA is geared to the future -- the goal being that,

over time, access will be the rule rather than the
exception. Thus, the [ADA] only requires modest
expenditures to provide access in existing facilities,
while requiring all new construction to be accessible.
The provision governing alterations is akin to new
construction because it is only applicable to
situations where the commercial facility itself has
chosen to alter the premises.

H.R. Rep. No. 485, 101st Cong., 2d Sess., pt. 3, at 63 (1990).

The ADA directs the Architectural and Transportation

Barriers Compliance Board (Access Board) to develop guidelines
for the design and construction of accessible buildings and
facilities, and requires this Department to adopt regulations
that are consistent with the Access Board's guidelines. Pursuant
to this requirement, in July 1991, the Access Board published the
ADA Accessibility Guidelines, which have been adopted by this
Department as enforceable standards.

Places of public accommodation and commercial facilities

subject to the ADA are, therefore, required by Federal law to
comply with the ADA accessibility standards in all new
construction and alteration projects. To the extent that State
or local codes provide for a lower standard of accessibility,
those codes are preempted by the ADA. State or local laws that
provide equal or greater access may still be enforced, and if
these laws have been certified by the Department of Justice to
meet or exceed the requirements of the ADA, building owners,
architects, and design professionals will have the assurance that
compliance with the certified code will be considered evidence of
compliance with the ADA in any litigation to enforce the Act.

The certification process is not mandatory. Nevertheless,

many States have expressed their intent to revise their codes to
be consistent with the ADA, and to seek ADA certification,
because it will facilitate the design and construction process
for people working on commercial facilities and places of public
accommodation. Certification will not change an entity's
obligations under State or Federal law, but it will streamline

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the process of design and construction by permitting a covered

entity to rely on the State or local code provisions to determine
what is required, rather than having to consult both State and
Federal regulations.

I believe that the certification of State and local codes

will, over the course of time, prove to be an effective mechanism
for achieving the goals of the ADA because the incorporation of
the ADA requirements into State and local codes will ensure that
accessibility is considered at the earliest stages of the
construction process. This Department is, therefore, actively
working to educate State and local officials about the
certification process and to encourage these officials to seek
certification of their codes.

Because the ADA limits certification to State and local

codes, model codes cannot be certified. However, the Division
has established a procedure through which the national model code
organizations can seek technical assistance from the Division to
determine whether, and in what respects, the model codes are
consistent with the requirements of the ADA. We view the
attempts by the national model code organizations to develop of
model accessibility codes that are consistent with the ADA as a
commendable effort to ensure that future construction is
accessible to all Americans. We are prepared to provide
assistance to the code groups in this endeavor.

I hope that this information is responsive to your inquiry.

Sincerely,

John R. Dunne
Assistant Attorney General
Civil Rights Division

Enclosures (3)

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Congress of the United States

House of Representatives

June 2, 1992

Janet Blizzard, Attorney

Public Access Section
P.O. Box 66738
Washington, D.C. 20035-9998

Dear Janet:

I am writing because I have concerns with respect to efforts

being made to bring stringent handicapped access requirements
into our building codes. This is apparently happening in
response to the Americans with Disabilities Act becoming law.

New Mexico is on the verge of adopting Americans with Disability

Accessibility Guidelines, taken out of context, into their
building codes in order to obtain "certification" from the
Department of Justice.

Various provisions such as "readily achievable" and "economically

feasible" are an important part of ADA. I believe congress
intended that these provisions be preserved, especially under
Title Three of the Act, in order to give affected businesses a
chance to provide reasonable accommodation. If building codes
simply absorb the building design sections of ADA without any
provision for other features such as "readily achievable" then I
believe we have lost the original intent of ADA.

Our national model building code organizations are rushing to

modify their documents, as evidenced by the new Chapter 31 and
the appendix on Site Accessibility contained in the Uniform
Building Code which we use in New Mexico. Apparently they all
feel compelled, or pressured, to modify their model codes, even
though this action moves their codes away from their own stated
philosophy, which is

"The purpose of this code is to provide minimum standards to

safeguard life or limb, health, property and public welfare
by regulation and controlling the design, construction,
quality of materials, use and occupancy, location and
maintenance of all buildings and structures within this
jurisdiction and certain equipment specifically regulated
herein.

"The purpose of this code is not to create or otherwise

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establish or designate any particular class or group of

persons who will or should be especially protected or
benefited by the terms of this code" - Part 1, Chapter, Sec.
102 of the 1991 Uniform Building Code.

This codification of handicapped access guidelines may well be

counter to the spirit and intent of the Americans with
Disabilities Act as passed by Congress. Before you proceed with
"certification" of any building codes, I would appreciate
discussing this with you further.

Sincerely,

Joe Skeen
Member of Congress

JS/jr

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