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JUL 21 1995

Ms. Patricia E. Ryan


Executive Director
Maine Human Rights Commission
State House Station 51
Augusta, Maine 04333-0051

Dear Ms. Ryan:

This letter is in response to your letter requesting that


the Department of Justice preliminarily review the proposed
amendments to the Maine Human Rights Act (law) and provide
technical assistance regarding their equivalency to the new
construction and alterations requirements of title III of the
Americans with Disabilities Act (ADA).

Our preliminary review of the Maine law indicates that you


have made significant progress toward an ADA-equivalent law. We
appreciate your efforts, as well as your patience in awaiting our
response. Our review has also raised several potential problems
and ambiguities, described in detail below.

In order to provide a timely response, we have limited our


review to major issues that might arise if the Maine law were
submitted for a certification determination pursuant to the
regulation implementing title III. 28 C.F.R. § 36.601 et seq.
Our analysis is not intended to address comprehensively all
potential ways in which the Maine law compares with the ADA's
construction requirements.

We have reviewed only the new construction and alterations


provisions of the Maine law. Certification does not apply to
other aspects of human rights laws. In addition, we have
evaluated the Maine law's consistency with title III of the ADA
only. Certification does not apply to facilities subject to
title II of the ADA or to purely residential facilities.

cc: Records, Chrono, Wodatch, Hill, FOIA


n:\udd\hille\maine\tal.ltr\sc. young-parran

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1. General Concerns
The limited availability of plan review and pre-construction
enforcement does not prevent certification but it does
significantly limit builders' ability to take advantage of the
full benefits of certification. For example, without any
mechanism for official approval by the Fire Marshall, builders of
facilities other than restaurants, hotels, government buildings,
and schools will have to specifically prove compliance with the
State law before they can gain the benefit of certification's
rebuttable evidence of ADA compliance. In addition, lack of
mandatory plan review will increase the burdens on individuals
and on the Commission to enforce the law through litigation.
Increased mandatory plan review could avoid such litigation as
well the increased costs of providing accessible features after
construction is completed.

2. Ambiguous Provisions

A number of the provisions of the Maine law are unclear.


While these issues will not necessarily prevent certification,
clarification would facilitate our review.

a. Enforcement

The Fire Marshall's authority regarding voluntary


submissions (costing less then $50,000) and submissions of plans
for buildings other than restaurants, hotels, government
buildings, and schools, is unclear. The Maine law does not
specify whether the Fire Marshall has a duty to identify
violations or what the Fire Marshall's responsibility is when a
violation is found.

b. Alterations

The requirements for alterations impose five specific


requirements for alterations costing over $100,000 that affect
areas open to the public. It is unclear whether these
requirements must be met in addition to the general requirement
that the altered area and the path of travel be accessible. In
addition, it is unclear whether the builder must satisfy the five
requirements for every area of the building, for only the altered
area, or for some other number of areas.

Because the requirement for accessible doors refers only to


technical specifications without scoping, it is unclear how many
doors are required to be accessible. Because the requirement for
toilet stalls requires all the stalls in a toilet room to be
accessible, it substantially exceeds the ADA's general
requirement that one stall be accessible. Finally, because the
requirement for parking refers only to the ADA scoping provision
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without technical specifications, it does not require the
reserved space to be usable by individuals with disabilities.

The Maine law's path of travel requirement is split into two


provisions; one for alterations over $100,000 and one for smaller
alterations. In the provision for large alterations, the 20%
cost limit is correctly addressed, as are priorities for
providing access. The provision for smaller alterations simply
requires an accessible path of travel when it is "not
disproportionate to the overall alterations in terms of cost and
scope." It needs to be made clear that the same standard of
disproportionality (20%) applies to small alterations as applies
to large ones.

c. Waivers

Certification will not apply to waivers of ADA requirements


that may be granted by reviewing officials. Therefore, if a
builder applies for a waiver of an ADA accessibility requirement
for an element of a building, he or she will not be entitled to
certification's rebuttable evidence of compliance for that
element.

The Maine law's waiver provision for structural


impracticability is an example of an uncertified waiver
provision. This waiver provision does, however, create an
ambiguity that needs to be addressed. The ADA Standards, which
are incorporated into the Maine law as the required construction
standard, already include an exception for structural
impracticability (S 4.1.1(5)). Therefore, the need for the
additional waiver in the Maine law is unclear.

The Maine law also provides a waiver for two-story buildings


if installation of an elevator would be technologically
infeasible or would result in undue costs. It is not clear
whether this waiver would eliminate all accessibility
requirements for eligible buildings, or whether it will only lift
the elevator requirement. If it lifts requirements other than
the elevator requirement, this waiver is less stringent than the
ADA, which requires upper floors to be accessible in non-elevator
buildings. If it lifts only the elevator requirement, this
waiver exceeds the ADA, which generally does not require an
elevator in two-story buildings. Because waivers are
uncertified, these differences between the Maine law and the ADA
will not prevent certification.

More significantly, it is not clear how Maine's elevator


waiver provision is to be reconciled with the incorporated ADA
Standards. Because the ADA Standards include an elevator
exception for two-story buildings, the Maine elevator waiver
seems unnecessary. If the intent of the Maine law is not to
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incorporate the ADA elevator exception, that intent needs to be
clarified.

d. Effective date

Any future certification determination would be limited to


the amended law's requirements in effect as of the date of the
determination (i.e., the provisions applicable to construction
after January 1, 1995). Certification would not apply to the
law's provisions applicable before the 1995 amendments. Because
those provisions are still included in the Maine law and have not
been repealed, there may be some confusion on this point. It
would be more clear if the Maine law explicitly stated that those
earlier provisions were no longer in effect.

e. Incorporation of "ADAAG"

The proposed amendments incorporate the ADA Accessibility


Guidelines (ADAAG) as the applicable construction standard. It
would be more correct to refer to the "ADA Standards for
Accessible Design," which are codified at 28 C.F.R. Part 36,
Appendix A. This reference more accurately describes the
standards adopted and enforced under the ADA, as distinct from
the unenforceable guidelines on which the standards are based.

It is unclear how the Maine law will address future


amendments to the ADA Standards for Accessible Design, i.e.,
whether such amendments will automatically be incorporated into
the Maine law.

3. Specific Problems
a. Conflicts
There may be conflicts between the requirements of the Maine
law and the requirements of other building-related codes (e.g.,
municipal building codes, fire protection codes). It is unclear
how such conflicts will be resolved.

b. Covered facilities

The Maine law requires places of public accommodation and


"places of employment" to comply with the new construction
requirements. Although "places of employment" may provide
equivalent coverage, the term needs to be defined (i.e., whether
it will include volunteer organizations).

In addition, the Maine law's alterations requirements apply


to places of public accommodation and "commercial facilities."
The scope of coverage for new construction and alterations is the
same under the ADA. The use of two different terms in the Maine
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law indicates that the scope of coverage differs for new
construction and alterations.

c. Defenses

The proposed amendments add definitions of "readily


achievable" and "undue hardship." However, those terms do not
appear to be used in the Maine law. Inclusion of those
definitions may lead builders to believe they have defenses that
are not really available.

d. "Disability"

The Maine law limits the definition of covered disabilities


to those caused by certain listed events. The ADA determines
coverage based on the extent of a disability's effect on an
individual's major life activities, not on its cause. In
addition, the Maine law appears to rely on diagnosis by a health
care provider in order to determine whether a person's disability
is covered. The ADA does not restrict coverage to only those
disabilities that are medically diagnosed.

I hope these comments are helpful to you in preparing the


final Maine law and that you will soon be in a position to submit
a request for certification of the Maine law. We would be happy
to discuss our comments with you at your convenience. Feel free
to call Eve Hill at (202) 307-0663 to arrange such a discussion.
Sincerely,

John L. Wodatch
Chief
Disability Rights Section

cc: Mr. Lawrence W. Roffee


Executive Director
U.S. Architectural & Transportation
Barriers Compliance Board

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