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

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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