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8-3-93

AUG 23 l993
DJ 202-PL-565

Mr. James C. Bagley


Goodwyn, Mills & Cawood, Inc.
125 Interstate Park Drive
P.O. Box 3605
Montgomery, Alabama 36109-0605

Dear Mr. Bagley:

I am responding to your letter inquiring about the


certification of State and local accessibility codes pursuant to
the Americans with Disabilities Act (ADA). Specifically, your
letter asks if the adoption of a model code by a State or local
government requires the approval of the Department of Justice.

The ADA authorizes the Department of Justice to provide


technical assistance to individuals and entities that have rights
or responsibilities under the Act. This letter provides informal
guidance to assist you to understand the ADA. However, this
technical assistance does not constitute a determination by the
Department of your rights or responsibilities under the ADA, and
it is not binding on the Department.

The ADA does not preempt all State regulation in the area of
accessible design. States may continue to enact and enforce
State accessibility codes. These codes do not require Department
of Justice approval. However, if the State code provisions
differ from the ADA requirements in a way that may result in less
accessibility, then a covered entity is required to comply with
the ADA standards in addition to the State code.

The ADA requirements that govern the new construction or


alteration of facilities subject to the ADA are contained in the
Department of Justice regulations implementing titles II and III
of the ADA. Title II of the ADA prohibits discrimination on the
basis of disability by public entities, including all State and
local governments. Title III of the ADA prohibits discrimination
on the basis of disability by places of public accommodation, and
it requires all new construction of, or alterations to, places of
public accommodation and commercial facilities to be readily
accessible to people with disabilities.

cc: Records, Chrono, Wodatch, Breen, Blizard, FOIA, Friedlander


n:\udd\blizard\cert\alabama.ta

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The Department of Justice regulation implementing title II


(28 C.F.R. pt. 35) requires all new construction of, or
alterations to, public buildings after January 26, 1992, to
comply with either the Uniform Federal Accessibility Standards or
the Standards for Accessible Design published as Appendix A to
the Department's regulation implementing title III (28 C.F.R.
pt. 36). The Department's title III regulation requires all
places of public accommodation and commercial facilities designed
and constructed for first occupancy after January 26, 1993, or
altered after January 26, 1992, to be designed in compliance with
the requirements of Subpart D of the regulation and the Standards
for Accessible Design.

The ADA recognizes that individuals involved in the design


and construction of facilities subject to title III of the Act
may want to be able to rely on compliance with State or local
codes as a means of complying with the ADA. Therefore, title III
permits the Department of Justice, in response to a request from
a State or local government, to certify that the accessibility
provisions of a State or local building code that apply to places
of public accommodation or commercial facilities meet or exceed
the requirements of the ADA. Certification of a code by the
Department does not ensure that a facility constructed in
compliance with the code will comply with the ADA, but it does
enable a party in litigation that alleges a violation of title
III to point to compliance with a certified code as rebuttable
evidence of compliance with the ADA. The ADA does not authorize
the Department to certify State or local code requirements that
apply only to the construction of public buildings or facilities.

For your information, I am enclosing copies of the


Department's regulations implementing titles II and III of the
ADA, and the Department's technical assistance manuals. I hope
that this information is helpful to you.

Sincerely,

John L. Wodatch
Chief
Public Access Section

Enclosures

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Goodwyn, Mills & Cawood, Inc.


ENGINEERS ARCHITECTS SURVEYORS

May 10, 1993

THE OFFICE OF THE AMERICANS


WITH DISABILITIES ACT
CIVIL RIGHTS DIVISION
U.S. DEPARTMENT OF JUSTICE
Post Office Box 6618
Washington, D.C. 20035-6118

REFERENCE: CERTIFICATION OF LOCAL CODES - Request for Written


Response

TO WHOM IT MAY CONCERN:

The State of Alabama Fire Marshall, who has the legal authority to
promulgate and enforce regulations regarding accessibility, adopted UFAS-88 as
Alabama's ADA Standard, in conjunction with or at least with endorsement of
the State Building Commission. This has been in place for over a year, and is
now relied upon across the state.
My understanding from numerous ADA meetings, seminars, convention
activities, research, etc., and discussion with several lawyers where this has
come up, is that the Department of Justice must endorse our State Fire
Marshal's action before it is acceptable, 'official," later admissible as
factual evidence, etc.

QUESTION: Does the adoption of a "Model Code" by a State or municipality


require the endorsement, acceptance, or similar action by the

Department of Justice and/or other authority?

Thank you for your time in attention to this request. We will be


looking forward to your response very soon.

Sincerely yours,

GOODWYN, MILLS & CAWOOD, INC.

James Bagley, AIA, CDT, CSI

JCB:mh:6400-ADA.ARC

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