T. 5-13-93
     DJ  202-82-1
                                          MAY 20 1993
Mr. Gene J. Colin
Chair
State Building Code Council
State of Washington
Ninth and Columbia Building, MS/GH-51
Olympia, Washington 98504-4151
Dear Mr. Colin:
      This letter is an initial response to your request that the
Department of Justice certify that the State Regulations for
Barrier Free Design adopted by the Washington State Building Code
Council ("Council") on November 8, 1991, meet or exceed the new
construction and alterations requirements of title III of the
Americans with Disabilities Act of 1990 (ADA), 42 U.S.C.
 12101 et seq., and this Department's regulation implementing
title III, 28 C.F.R. Part 36 (1992).
      I would like to thank the Council and its staff for the
cooperation and patience shown over the past several months. The
review process has been a lengthy one with considerable telephone
conversations, meetings, and exchanges of information. The
Council and its staff, especially Willy O'Neill, have responded
to our questions quickly and professionally. This lengthy review
process is attributable to your request's status as our first
certification review and the likelihood that it will establish a
precedent for all future reviews. Further, in an effort to carry
out our responsibilities under the ADA and to provide helpful and
responsive feedback to the Council, we have undertaken a
comprehensive and detailed review of materials submitted.
      After reviewing the material submitted to the Department of
Justice, we have determined that the information the Council has
provided to us is incomplete. We, therefore, request additional
information as well as clarification of some provisions before we
make a preliminary determination as to whether the materials
submitted meet or exceed the requirements of the ADA.
      To assist you in this process, we have prepared a side-by-
side comparison of the Washington State Regulations (WSR)
cc: Records, Chrono, Wodatch, Blizard, Lusher, FOIA, Library
n:\udd\mercado\plcrtltr\colin.rhl
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submitted and the applicable sections of the 1991 Uniform
Building Code (UBC) to the ADA title III regulations (including
the ADA Accessibility Guidelines for Buildings and Facilities
("ADAAG")). A copy of the side-by-side analysis, which is
enclosed, identifies those elements that do not appear to satisfy
the requirements of the ADA. The side-by-side comparison
identifies sections of the ADAAG for which we could find no
equivalent provision in the WSR. They are identified by the
characters "NE." Other sections are designated "possibly not
equivalent" (PNE). Some elements of the WSR that have been
identified as "possibly not equivalent" appear to be
typographical errors, e.g., references to the wrong section of
the regulation. Other elements designated "possibly not
equivalent" simply require further clarification by the Council
regarding their intent and meaning.
      While the side-by-side comparison should give the Council a
comprehensive picture of the areas of concern, I would like to
highlight some of the major differences between the submitted
code and the ADA. These differences are as follows:
      1) There are no technical requirements for accessible
elevators or platform lifts. The WSR incorporates by reference
the requirements of Chapter 296-81 of the Washington
Administrative Code, which was not submitted for certification.
(See  51-20-3105(c) 2 and 51-20-3105(c) 3.)
      2) The WSR provides that where "full compliance is
impractical due to unique characteristics of the terrain, the
building official may grant modifications . . . provided that any
portion of the building or structure that can be made accessible
shall be made accessible to the greatest extent practical." This
provision appears to apply a lower standard than the ADA, which
requires new construction to comply with the requirements of
ADAAG unless it is structurally impracticable to comply. (See
 51-20-3101(e)
      3) The WSR allows an exemption for "floors or portions of
floors that are not customarily occupied (emphasis added)
including but not limited to . . . machinery, mechanical and
electrical equipment rooms." The use of the phrase "not
customarily occupied" and the use of machinery, mechanical and
electrical equipment rooms as examples applies this exemption to
areas not generally exempt under ADA. Under ADA, unless
machinery, mechanical, and electrical equipment rooms are non-
occupiable spaces accessed only by ladders, catwalks, crawl
spaces, very narrow passageways, or freight (non-passenger)
elevators, they must comply Pith the requirements of 4.1.1(3)
Areas Used Only by Employees as Work Areas. (See  51-20-3103(a)
1. EXCEPTIONS:1.)
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      4) The WSR includes a provision that permits construction
of inaccessible elements and spaces on floors of less than 3000
square feet, which are located above or below the accessible
ground floor and where no elevator access is required by the WSR
or the ADA, if the facility provides accessible services on an
accessible floor. (See  51-20-3103(a) 2.) The title III
regulations require elements and spaces on such floors to meet
the same accessibility requirements as those applicable to the
accessible ground floor or those floors connected by elevators.
      5) The WSR provides that "the path of travel need not be
made accessible if the cost of compliance with this part would
exceed 20% of the total project cost, inclusive of the cost of
eliminating barriers, within a 36 month period" (emphasis added).
(See  51-20-3114(a) 2. EXCEPTION.) This provision appears to
include all costs of removing barriers within a 36 month period
in the 20% formula for disproportionality. (See  36.403(h)(2).)
The ADA requires a covered entity to spend up to 20% of the cost
of each alteration to an area containing a primary function on
accessibility modifications to the path of travel. These funds
must be spent at the time that the primary function alteration is
done. The only situation in which the costs of alterations over
a three-year period are considered is when a covered entity
undertakes a series of small alterations to primary function
areas served by the same path of travel without making the path
of travel accessible. The cost of readily achievable barrier
removal required by section 302 of the ADA may not be counted
toward meeting the obligation to make the path of travel
accessible.
      6) It is difficult to determine what accessibility
provisions would apply to hotels, motels, inns, resorts, or to
homeless shelters due to the use in differing terminology. These
differences are highlighted in the side-by-side comparison.
      7) The WSR uses the ADAAG table to establish the number of
accessible rooms required in hotels and the number or percentage
of rooms that are required to have roll-in showers. However, the
WSR do not clearly state that the number of accessible rooms with
roll-in showers are in addition to the other required rooms as
required by section 9.1.2 of ADAAG. We have been told by Council
staff that the State code officials interpret the provision to
require rooms with roll-in showers as included in the required 4%
accessible rooms rather than being in addition to the 4%. (.See
 51-20-3103(a) 8.C.)
      8) Some of the definitions used in the submitted materials
differ in some respects from the ADAAG definitions. These
definitional differences are highlighted in the side-by-side
analysis. The most problematic are the definitions of mezzanine,
assembly building, and story.
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      9) The WSR's technical specifications for visible alarms
differ from ADAAG. Certain ADAAG specifications for visible
alarms (including color, intensity, and flash rate) are contained
in the appendix to the WSR. (See  51-20-3106(o).)
      10) The WSR does not contain ATM requirements.
      11) The WSR's procedures for determining when accessibility
modifications would threaten or destroy the historic significance
of a building or a facility do not conform to the ADA
requirements. Specifically, under the WSR, the authority to make
that determination is given to the building official, not the
State Historic Preservation Officer (or certified local historic
preservation program) as provided under the ADA Regulations (See
 51-20-3113(a).)
      We understand that after the Council submitted its request
for certification, the Washington Department of Labor and
Industries continued to work on requirements for elevators and
platform lifts. We have also been informed that the Council
entered into additional rulemaking in July 1992, to correct
technical errors and to make editorial corrections in the 1992
State Regulations for Barrier Free Facilities. If those changes
and any others that are directly related to the request for
certification are now final, we invite you to supplement the
submission with those regulations before we make a final
determination on whether to certify the state's barrier-free
regulations.
     Please include the notice of public hearing, copies of
transcripts from the hearings, and copies of any standards
referenced by the revised sections if not previously submitted.
Please note, pursuant to  36.603(b)(1)-(3) of this Department's
regulation, the entire package submitted for certification,
including copies of the proposed request and supporting
materials, must have been made available for public examination
and subject to comment at hearings.  The elevator code and
interpretations made by the Council should be included.  We also
request that you review the side-by-side comparison to identify
any areas where we may have overlooked relevant comparable
provisions.
     We believe it would greatly facilitate completion of our
review of this matter, if Council representatives would be
willing to meet with our staff.  Such a meeting would serve to
address all of the areas of concern identified in the side-by-
side comparison, to provide additional information about any
provisions of the Washington State Regulations that we may have
overlooked in our analysis, to clarify interpretations of the
regulations, and to otherwise discuss and resolve any questions
that we or the Council may have regarding this matter.  If you
believe that such a conference would be a worthwhile endeavor, we
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would be willing to schedule such a meeting at the Council's
offices at the earliest, mutually acceptable time.
      If you have any questions concerning this letter or if we
can assist you in preparing the requested information, please
call Janet Blizard or Ruth Lusher of our staff at (202) 307-0663.
Please include a reference to DJ number 202-82-1, the number
assigned to this matter, in any further correspondence with us.
                                     Sincerely,
                                   John L. Wodatch
                                       Chief
                                Public Access Section
Enclosure
cc:  Mr. Lawrence W. Roffee
     Executive Director
     U.S. Architectural & Transportation Barriers Compliance
     Board
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