DJ 202-PL-00001

APR 8 1992

Mr. Richard T. Conrad

Executive Director
California Building Standards
Commission
428 J Street, Suite 450
Sacramento, California 95814

Dear Mr. Conrad:

We are responding to your recent letter requesting that the

Civil Rights Division respond to certain questions concerning the
enforcement of State accessibility codes that are certified by
the Department of Justice to meet or exceed the requirements of
title III of the Americans with Disabilities Act of 1990 (ADA),
Pub. L. 101-336, 104 Stat. 327 (July 26, 1990), 42 U.S.C.A.
​ 12101 et seq., and this Department's regulation implementing
title III, 56 Fed. Reg. 35544 (July 26, 1991), to be codified at
28 C.F.R. pt. 36.

Before we address your specific questions, we must clarify

the scope of this response. The ADA authorizes the Department of
Justice to provide technical assistance to individuals and
entities that are subject to the Act. This letter provides
informal guidance to assist you in understanding the ADA and the
ADA regulations. However, this technical assistance does not
constitute a determination by the Department of Justice of your
rights or responsibilities under the ADA, and it is not binding
on the Department.

With regard to your specific inquiry: title III of the ADA

provides that the Attorney General, in response to a request from
a State or local government, may certify that the accessibility
provisions of a State or local building code meet or exceed the
accessibility requirements of the ADA. Certification of a State
or local code by the Attorney General does not guarantee that a
building built in compliance with the code will be in compliance
with the ADA. In litigation concerning violations of title III,
a place of public accommodation or commercial facility can point
to compliance with a certified code as rebuttable evidence of
cc: Records Chrono Wodatch Bowen Blizard
arthur.ada.interpretation.conrad

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compliance with the ADA. This "protection" applies only to the

new construction or alteration of facilities that are subject to
title III; it does not apply to barrier removal under title III,
or in any litigation to enforce other provisions of the ADA.

Title III of the ADA does not alter the responsibility of

State or local government officials to enforce existing State
laws, and title III does not authorize or require State officials
to enforce Federal law. The ADA specifically provides that
enforcement of title III will be carried out through litigation
initiated by the Department of Justice or by private litigants.

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. This Department 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.

State or local officials may interpret the provisions of the

State or local code if the State law permits them to do so.
These interpretations will continue to be effective with respect
to the State or local codes, as they are now. However, if an
element of a place of public accommodation or a commercial
facility is constructed pursuant to a waiver or a variance from
the provisions of a certified code, a defendant could not
necessarily use the fact of construction in accordance with the
variance as evidence of compliance with the ADA requirements in
any litigation to enforce title III.

We hope that this information is helpful to you.

Sincerely,

John L. Wodatch
Director
Office on the Americans with Disabilities Act
Civil Right Division

01-00573

January 15, 1992

John Wodatch, Director

Office of the ADA
U.S. Department of Justice
Washington, DC 20530

Dear Mr. Wodatch:

The State of California is in the process of adopting the 1991 editions of the
Uniform Building, Mechanical, and Plumbing Codes. As part of that process, the
Office of the State Architect/Access Compliance Section (OSA/AC) will be
modifying their current disabled access regulations, including the adoption of
ADA standards to conform with the Americans with Disabilities Act (ADA).
During a recent hearing of the Commission a number of issues were raised
relative to this action by OSA/AC.

Since the civil rights aspect of the Act places enforcement with the Federal
Department of Justice (DOJ), this raises specific questions as to the impact
of the enforcement of California's Building Code, containing these standards,
by local government. If California's Building Code becomes certified by the
DOJ as equivalent to the requirements of the ADA, can local government be
authorized to interpret the requirements in the California Building Code, as
they currently do with the existing disabled access standards? In carrying out
their responsibilities of enforcement, will local government be in conflict by
enforcing the ADA standards, or will they be limited only to California
requirements? I raise this issue because of concern expressed by
representatives of local government who feel that their ability to enforce
California's access standards will be limited if they become certified to be
equivalent to the ADA. Local government has an obligation by state law to
enforce state accessibility standards, yet they have no authority to enforce
the ADA standards.

The DOJ encourages the adoption of ADA standards in state and local codes to
facilitate "voluntary compliance." Does voluntary compliance, through
enforcement of the State Building Code, ensure compliance with the ADA? If so,
what responsibilities and liabilities rest with local government in performing
this function? Currently, OSA/AC provides assistance in interpreting state
accessibility standards, but state law mandates enforcement authority for
these regulations to local government; including the authority to interpret
the regulations. Will local government still have the ability to interpret the
state code once it is deemed to comply with the ADA? That is, can local
government vary from federal ADA standards when the agency finds the need to
adjust such standards due to site conditions?

01-00574
John Wodatch
January 15, 1992
Page Two

In summary, answers are needed to the following questions:

1. Will local governments be limited to the enforcement of California

standards only? What is the exact scope of enforcement?

2. May local governments interpret, or be authorized to interpret, the

ADA-based California Building Code?

3. May local governments vary from the ADA standards dependent on site
conditions?

4. What are the responsibilities and liabilities of local government in

carrying out their enforcement and interpretive functions of a
"certified" state code?

5. Does voluntary compliance, through enforcement of the State Building

Code, ensure ADA compliance?

We anticipate having the revised accessibility standards before the Building

Standards Commission for approval at the end of February. If you could respond
prior to that time, it will assist the Commission in addressing this sensitive
subject.

Thank you very much for your assistance.

Sincerely yours,

Richard T. Conrad AIA

Executive Director

RTC:mag

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