Italicized text was added to the original Title III Technical
Assistance
Manual through supplements issued in 1993 and 1994.
Regulatory references: 28 CFR 36.601-36.608.
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.
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.
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.