DJ 202-PL-00111
                                                  APR 21 1992
Mr. James C. Hanna
Director
Department of Housing and
  Community Development
100 Community Place
Crownsville, MD 21032-2023
Dear Mr. Hanna:
        We are responding to your letter of February 5, 1992, to
Irene Bowen inviting the Civil Rights Division to comment on
Maryland Senate Bill No. 469, and asking us to respond to certain
questions concerning the enforcement 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.
        Before we address your specific questions, we must clarify
the scope of this response. The Department of Justice is
authorized by law to provide legal opinions only to the President
and to the heads of Federal Executive agencies; therefore we can
not provide a legal opinion with respect to a pending State
legislative proposal.
        The ADA authorizes the Department of Justice to provide
technical assistance to individuals and entities that are subject
to that Act; therefore, we may provide 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.
        You have asked whether the State of Maryland has the
authority to enforce the ADA. The ADA does not authorize State
officials to enforce the ADA's accessibility standards. The ADA
will be enforced at the Federal level through litigation or
through Federal administrative enforcement proceedings. The
specific enforcement mechanism varies according to the provision
cc: Records Chrono Wodatch Blizard arthur.ada.interpre.hanna
01-00627
- 2 -
of the Act that is being enforced. The ADA may also be enforced
by private litigants. However, if the State enacts legislation
adopting accessibility requirements based on the ADA as State
law, those provisions may be enforced by State officials to the
same extent that they would enforce any other provision of State
law.
        You have also asked if State officials may interpret the ADA
accessibility standards, or if requests for such interpretations
should be referred to the Department of Justice or to the
Architectural and Transportation Barriers Compliance Board. We
reiterate that State or local officials do not have the authority
to enforce the ADA. If a State adopts an accessibility code that
duplicates or is based on the ADA, State or local officials may
interpret the provisions of that State code to the extent that
State law permits them to do so. Such interpretations do not,
however, constitute interpretations of the ADA.
        Neither the Department of Justice nor the Architectural and
Transportation Barriers Compliance Board plans to provide
interpretations of the accessibility standards with respect to
individual projects in the way that State or local agencies do.
However, both agencies plan to respond to requests for technical
assistance with respect to the accessibility standards to the
extent that their resources permit.
        We hope that this information is helpful to you.
                                        Sincerely,
                                        John L. Wodatch
                                           Director
                        Office on the Americans with Disabilities Act
01-00628
Mr. Hanna -
        This note is intended to provide to you my own general and
informal answer to the two questions raised in your letter of
February 5. We are not able to give you a more formal response
due to staffing limitations and our own time constraints. We
have numerous requests from all over the country. Partly because
of our limited staff resources, it takes a while to answer the
letters, and we try to answer them in the order in which they are
received.
        In response to your second concern stated in your letter,
your State does not have the authority to enforce the ADA as a
Federal statute. You do have the authority to enforce the same
provisions as are in the ADA, if you make them part of your State
code. But you are then enforcing the State code, not the ADA as
such.
        As to your first concern, the answer is similar. If you
have a State code that is identical to or like the ADA, the State
is able to interpret that code as a State code. That doesn't
mean you are interpreting the ADA as such. DOJ will not have
staff to provide interpretations about individual projects in the
way that State or local agencies do. We will not do plan
approvals.
        Also, we are not necessarily encouraging the States and
localities to incorporate the ADA regulations by reference; it
may be more appropriate to include the substance of the ADA
provisions in the existing code in language that is more familiar
to those working with the codes. But if you do use the approach
of incorporating by reference, it is very important to include
not only the ADA accessibility guidelines (ADAAG) that the ATBCB
issued, but also the other parts of the DOJ regulation that
relate to new construction and alterations (subpart D of our
title III rule for private entities' buildings).
        I hope this is helpful. I'm glad to see the progress you're
making in your State. I'm sorry that we can't give you guidance
right now that is more official. We'll go ahead and answer your
letter officially as soon as we can.
        Thanks,
        Irene Bowen
01-00629
February 5, 1992
L. Irene Bowen, Esquire
Coordination and Review, Civil Rights Division
Department of Justice
Washington DC 20530
Dear Ms. Bowen:
In re:  Senate Bill 469 - Disabled Persons -
        Maryland Accessibility Code
Enclosed is a copy of Maryland Senate Bill No. 469, which was
introduced on January 30, 1932, and assigned to the Senate Economic
and Environmental Affairs Committee.
In view of our short legislative session, the bill will soon be
scheduled for hearing by the assigned committee. Any specific
comments from you will be invaluable in understanding our role in
interpretation and enforcement of two provisions in the bill.
The first concern: SB 469 makes the State responsible for
interpretation of accessibility guidelines for buildings and
facilities of the Americans with Disabilities Act of 1990. Do we
have that authority or should requests for interpretation be
forwarded to the Department of Justice or the ATBCB?
Our second concern: Does the State have the authority to enforce
the provisions of the ADA in the legislation or is that done
through the Department of Justice?
Because of our limited response time, we should appreciate hearing
from you as quickly as possible.
Sincerely,
James C. Hanna, Director
JCH:grh
Enclosure
cc: Michael Seipp
    Pat Sylvester
                                SENATE OF MARYLAND
2lr2361                               No. 469                           03
                                                                CF 2lr2424
By: Senators Stone and Garrott
Introduced and read first time: January 30, 1992
Assigned to: Economic and Environmental Affairs
                                A BILL ENTITLED
1 AN ACT concerning
2                     Disabled Persons-Maryland Accessibility Code
3    FOR the purpose of requiring the Department of Housing and Community Development
4    to develop, adopt regulations for, and administer the Maryland Accessibility Code;
5    requiring the Department to incorporate certain guidelines in the Code; specifying
6    certain procedures regarding the Code, including: interpretation, jurisdiction
7    preparation of regulations, investigations of violations, and enforcement remedies;
8    defining a term; establishing certain penalties; making stylistic changes; and
9    generally relating to access for individuals with disabilities to buildings and
10  facilities.
11   BY repealing and reenacting, with amendments,
12         Article 83B- Department of Housing and Community Development
13         Section 6-102
15    Annotated Code of Maryland
15         (1991 Replacement Volume)
16         SECTION 1.  BE IT ENACTED BY THE GENERAL ASSEMBLY OF
17 MARYLAND, That the Laws of Maryland read as follows:
18 Article 83B- Department of Housing and Community Development
19 6-102
20    [(a)(1)  the Department, or an appropriate division of the Department, shall
21 promulgate and adopt a State building code for the  purpose of developing rules and
22 regulations for making building and facilities accessible and usable by the physically
23 handicapped to the extent feasible.
24   (2) The rules and regulations shall be developed in conjunction with
25 the Governor's Committee for Employment of the Handicapped, the
26 Maryland Rehabilitation Association, and the Maryland Society of Architects.
EXPLANATION:  CAPITALS INDICATE MATTERS ADDED TO EXISTING LAW.
      [BRACKETS] indicate matter deleted from existing law
2               SENATE BILL No. 469
1       (3) (i) In addition to any other penalty for a violation of the State
2  building code for the handicapped, the Secretary shall investigate to determine the
3  existence of any violation.]
4       (A) IN THIS SECTION "CODE" MEANS THE MARYLAND
5  ACCESSIBILITY CODE.
6       (B) THERE IS A MARYLAND ACCESSIBILITY CODE ADMINISTERED
7  BY THE DEPARTMENT.
8       (C) (1) THE DEPARTMENT SHALL DEVELOP THE CODE AND ADOPT
9  REGULATIONS TO MAKE BUILDINGS AND FACILITIES ACCESSIBLE AND
10 USABLE BY INDIVIDUALS WITH DISABILITIES TO THE EXTENT FEASIBLE.
11          (2) THE DEPARTMENT SHALL INCORPORATE BY REFERENCE IN
12 THE CODE THE ACCESSIBILITY GUIDELINES FOR BUILDINGS AND
13 FACILITIES OF THE AMERICANS WITH DISABILITIES ACT OF 1990 AS PART
14 OF THE MINIMUM STANDARDS OF THE CODE.
15          (3) THE DEPARTMENT SHALL PREPARE THE REGULATIONS
16 WITH THE:
17              (I) MARYLAND ADVISORY COUNCIL FOR INDIVIDUALS
18 WITH DISABILITIES;
19              (II) GOVERNOR'S COMMITTEE FOR EMPLOYMENT OF
20 PEOPLE WITH DISABILITIES:
21              (III) MARYLAND STATE INDEPENDENT LIVING COUNCIL;
22              (IV) MARYLAND REHABILITATION ASSOCIATION; AND
23              (V) MARYLAND SOCIETY OF ARCHITECTS.
24      (D) (1) THE SECRETARY SHALL INVESTIGATE QUESTIONS OF
25 BUILDING AND FACILITY ACCESSIBILITY AND USABILITY BY
26 INDIVIDUALS WITH DISABILITIES TO DETERMINE THE EXISTENCE OF A
27 VIOLATION OF THE CODE.
28              [(ii)](2) If the Secretary determines that a violation exists, the
29 Secretary may resolve [any] AN issue [in] REGARDING the violation by informal
30 methods of mediation and conciliation.
31              [(iii)](3) In addition to the provisions of[subparagraph (ii) of this
32 paragraph] PARAGRAPH (2) OF THIS SUBSECTION, the Secretary may institute in
33 any court of competent jurisdiction in the subdivision in which the violation occurred an
34 action for equitable relief which may include:
                                SENATE BILL No. 469
1                       (I) [enjoining] ENJOINING the construction, renovation, or
2 occupancy of a building or facility that violates the [Maryland Building] Code [for the
3 Handicapped or to seek]; OR
4                       (II) SEEKING other appropriate relief from the violation.
5                       [(iv)](4) Notwithstanding any other provision of this [paragraph]
6 SUBSECTION, the Secretary may not seek [any] AN injunction under [subparagraph
7 (iii) of this paragraph] PARAGRAPH (3) OF THIS SUBSECTION until 5 working days
8 after the Secretary has sought to seek a resolution through mediation and conciliation
9 under [subparagraph (ii) of this paragraph] PARAGRAPH (2) OF THIS
10 SUBSECTION.
11              (5) IF THE SECRETARY DETERMINES THAT A VIOLATION OF
12 THE CODE IS ALSO A VIOLATION OF THE ACCESSIBILITY GUIDELINES
13 UNDER PARAGRAPH (2) OF THIS SUBSECTION, THE SECRETARY MAY
14 PURSUE AN ACTION OR SUPPORT AN ACTION OF OTHERS FOR
15 ENFORCEMENT UNDER THE APPROPRIATE PROVISIONS OF THE CODE OF
16 FEDERAL REGULATIONS.
17              [(4)](6) The Attorney General is authorized to prosecute all civil cases
18 arising under this section which are referred to the Attorney General by the
Secretary.
19      [(b)](D) (1) Enforcement of the Code shall be the responsibility of local
20 jurisdictions or any other public agencies having authority over buildings or facilities.
21              (2) The Department shall decide questions of interpretation of the Code
22 [and authorize any waivers or exemptions under the Code].
23      [(c)](E) (1) Any person who willfully violates any provision of the
[Maryland
24 Building] Code [for the Handicapped] adopted under subsection [(a)] (C) of this
25 section is guilty of a misdemeanor and on conviction for each violation is
subject to a fine
26 not exceeding $500 for each day that the violation exists or imprisonment not
exceeding 3
27 months[,] or both.
28              (2) Any penalty ordered under paragraph (1) of this subsection is in
29 addition to and is not a substitute for any other penalty ordered under a federal, State, or
30 local law.
31      [(d)](F) (1) Nothing in this section shall limit the authority of the Human
32 Relations Commission to enforce the provisions of Article 49B, S 22 of the
Code.
33              (2) The Department shall cooperate with and provide technical assistance to
34 the Human Relations Commission concerning any action brought by the Commission to
35 enforce the provisions of Article 49B, S 22 of the Code.
36      SECTION 2. AND BE IT FURTHER ENACTED, That this Act shall take effect
37 October 1, 1992.