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Chapter 9: Certification

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.

III-9.2000 Relationship to State and local enforcement efforts.

There are tens of thousands of code jurisdictions in the United States that enforce some combination of State and local building codes. Some, but not all, of these include accessibility requirements. Although many are based on a model code, there are major variations among the State codes, and among local codes within some States. Design and construction to these codes will not constitute compliance with the ADA, unless the codes impose requirements equal to or greater than those of the ADA.

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.

Why should code officials seek certification of local accessibility codes? If the code in a local jurisdiction is certified, the designers, contractors, and building owners will have some assurance that compliance with those regulations will also satisfy ADA requirements. Through knowledgeable and professional plan review and inspection services, a covered entity may benefit from the technical assistance available from the local code official. Also, if there is an effective procedure for handling complaints at the local level, litigation will be minimized.