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Chapter 9: Certification

Regulatory references: 28 CFR 36.601-36.608.

III-9.1000 General.

The ADA authorizes the Attorney General to certify that State laws, local building codes, or similar ordinances meet or exceed the title III accessibility requirements. Certification is advantageous for the following reasons --
  1. When an entity is designing, constructing, or altering a building in accordance with an applicable State or local code that has been certified by the Department, the designer or contractor will need to consult only that one code, in order to determine the applicable Federal, State, and local requirements.
  2. The covered entity will have some degree of assurance in advance of construction or alteration that the ADA requirements will be met.
  3. If a covered entity is subject to a lawsuit, compliance with a certified code will be rebuttable evidence of compliance with the ADA.
  4. A State or local agency enforcing a certified code is for practical, but not legal, purposes facilitating compliance with the ADA and helping to eliminate confusion and possible inconsistencies in standards.
  5. The amount of unnecessary litigation can be reduced, particularly if a State or local code agency has an administrative method of effectively handling complaints concerning violations of its code.

Does this mean that if an architectural firm follows a certified State or local code, it will be safe from any Federal lawsuits because the State or local government will be implementing the ADA? No, but the firm will be less likely to face a lawsuit; and if it is sued, it has the advantage of rebuttable evidence of compliance. Keep in mind that State and local agencies are not authorized to enforce the ADA -- which is a Federal civil rights statute -- on behalf of the Federal government. This is true even when those agencies are implementing a certified code.

Moreover, the existence of a certified code does not ensure that facilities will be constructed in accordance with the code. In addition, even if a building is built to a certified code, that does not prevent a lawsuit concerning the building's accessibility by the Department or by an individual.