Complete Home & Office Legal Guide/Complete Home and Office Legal Guide (Chestnut) (1993).ISO/stat/eeoc/reg2.asc

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Section 36.305 Alternatives to barrier removal.

 (a) General.  Where a public accommodation can demonstrate
that barrier removal is not readily achievable, the public
accommodation shall not fail to make its goods, services,
facilities, privileges, advantages, or accommodations available
through alternative methods, if those methods are readily
achievable.

 (b) Examples.  Examples of alternatives to barrier removal
include, but are not limited to, the following actions--

 (1) Providing curb service or home delivery;

 (2) Retrieving merchandise from inaccessible shelves or
racks;

 (3) Relocating activities to accessible locations;

 (c) Multiscreen cinemas.  If it is not readily achievable
to remove barriers to provide access by persons with mobility
impairments to all of the theaters of a multiscreen cinema, the
cinema shall establish a film rotation schedule that provides
reasonable access for individuals who use wheelchairs to all
films.  Reasonable notice shall be provided to the public as to
the location and time of accessible showings.


Section 36.306 Personal devices and services.

 This part does not require a public accommodation to
provide its customers, clients, or participants with personal
devices, such as wheelchairs; individually prescribed devices,
such as prescription eyeglasses or hearing aids; or services of a
personal nature including assistance in eating, toileting, or
dressing.

Section 36.307 Accessible or special goods.

 (a) This part does not require a public accommodation to
alter its inventory to include accessible or special goods that
are designed for, or facilitate use by, individuals with
disabilities.

 (b) A public accommodation shall order accessible or
special goods at the request of an individual with disabilities,
if, in the normal course of its operation, it makes special
orders on request for unstocked goods, and if the accessible or
special goods can be obtained from a supplier with whom the
public accommodation customarily does business.

 (c) Examples of accessible or special goods include items
such as Brailled versions of books, books on audio cassettes,
closed-captioned video tapes, special sizes or lines of clothing,
and special foods to meet particular dietary needs.

Section 36.308 Seating in assembly areas.

 (a) Existing facilities.  (1) To the extent that it is
readily achievable, a public accommodation in assembly areas
shall- -

 (i) Provide a reasonable number of wheelchair seating
spaces and seats with removable aisle-side arm rests; and

(ii) Locate the wheelchair seating spaces so that they--

 (A) Are dispersed throughout the seating area;

 (B) Provide lines of sight and choice of admission prices
comparable to those for members of the general public;

 (C) Adjoin an accessible route that also serves as a means
of egress in case of emergency; and

 (D) Permit individuals who use wheelchairs to sit with
family members or other companions.

 (2) If removal of seats is not readily achievable, a
public accommodation shall provide, to the extent that it is
readily achievable to do so, a portable chair or other means to
permit a family member or other companion to sit with an
individual who uses a wheelchair.

 (3) The requirements of paragraph (a) of this section
shall not be interpreted to exceed the standards for alterations
in subpart D of this part.

 (b) New construction and alterations.  The provision and
location of wheelchair seating spaces in newly constructed or
altered assembly areas shall be governed by the standards for new
construction and alterations in subpart D of this part.

Section 36.309 Examinations and courses.

 (a) General.  Any private entity that offers examinations
or courses related to applications, licensing, certification, or
credentialing for secondary or postsecondary education,
professional, or trade purposes shall offer such examinations or
courses in a place and manner accessible to persons with
disabilities or offer alternative accessible arrangements for
such individuals.

 (b) Examinations.  (1) Any private entity offering an
examination covered by this section must assure that --

 (i) The examination is selected and administered so as to
best ensure that, when the examination is administered to an
individual with a disability that impairs sensory, manual, or
speaking skills, the examination results accurately reflect the
individual's aptitude or achievement level or whatever other
factor the examination purports to measure, rather than
reflecting the individual's impaired sensory, manual, or speaking
skills (except where those skills are the factors that the
examination purports to measure);

 (ii) An examination that is designed for individuals with
impaired sensory, manual, or speaking skills is offered at
equally convenient locations, as often, and in as timely a manner
as are other examinations; and

 (iii) The examination is administered in facilities that
are accessible to individuals with disabilities or alternative
accessible arrangements are made.

 (2) Required modifications to an examination may include
changes in the length of time permitted for completion of the
examination and adaptation of the manner in which the examination
is given.

 (3) A private entity offering an examination covered by
this section shall provide appropriate auxiliary aids for persons
with impaired sensory, manual, or speaking skills, unless that
private entity can demonstrate that offering a particular
auxiliary aid would fundamentally alter the measurement of the
skills or knowledge the examination is intended to test or would
result in an undue burden.  Auxiliary aids and services required
by this section may include taped examinations, interpreters or
other effective methods of making orally delivered materials
available to individuals with hearing impairments, Brailled or
large print examinations and answer sheets or qualified readers
for individuals with visual impairments or learning disabilities,
transcribers for individuals with manual impairments, and other
similar services and actions.

 (4) Alternative accessible arrangements may include, for
example, provision of an examination at an individual's home with
a proctor if accessible facilities or equipment are unavailable.
Alternative arrangements must provide comparable conditions to
those provided for nondisabled individuals.

 (c) Courses.  (1) Any private entity that offers a course
covered by this section must make such modifications to that
course as are necessary to ensure that the place and manner in
which the course is given are accessible to individuals with
disabilities.

 (2) Required modifications may include changes in the
length of time permitted for the completion of the course,
substitution of specific requirements, or adaptation of the
manner in which the course is conducted or course materials are
distributed.

 (3) A private entity that offers a course covered by this
section shall provide appropriate auxiliary aids and services for
persons with impaired sensory, manual, or speaking skills, unless
the private entity can demonstrate that offering a particular
auxiliary aid or service would fundamentally alter the course or
would result in an undue burden.  Auxiliary aids and services
required by this section may include taped texts, interpreters or
other effective methods of making orally delivered materials
available to individuals with hearing impairments, Brailled or
large print texts or qualified readers for individuals with
visual impairments and learning disabilities, classroom equipment
adapted for use by individuals with manual impairments, and other
similar services and actions.

 (4) Courses must be administered in facilities that are
accessible to individuals with disabilities or alternative
accessible arrangements must be made.

 (5) Alternative accessible arrangements may include, for
example, provision of the course through videotape, cassettes, or
prepared notes.  Alternative arrangements must provide comparable
conditions to those provided for nondisabled individuals.

Section 36.310 Transportation provided by public accommodations.

 (a) General.  (1) A public accommodation that provides
transportation services, but that is not primarily engaged in the
business of transporting people, is subject to the general and
specific provisions in subparts B, C, and D of this part for its
transportation operations, except as provided in this section.

 (2) Examples.  Transportation services subject to this
section include, but are not limited to, shuttle services
operated between transportation terminals and places of public
accommodation, customer shuttle bus services operated by private
companies and shopping centers, student transportation systems,
and transportation provided within recreational facilities such
as stadiums, zoos, amusement parks, and ski resorts.

 (b) Barrier removal.  A public accommodation subject to
this section shall remove transportation barriers in existing
vehicles and rail passenger cars used for transporting
individuals (not including barriers that can only be removed
through the retrofitting of vehicles or rail passenger cars by
the installation of a hydraulic or other lift) where such removal
is readily achievable.

 (c) Requirements for vehicles and systems.  A public
accommodation subject to this section shall comply with the
requirements pertaining to vehicles and transportation systems in
the regulations issued by the Secretary of Transportation
pursuant to section 306 of the Act.

Section 36.311-36.400 [Reserved]

Subpart D--New Construction and Alterations

Section 36.401 New construction.

 (a) General.  (1) Except as provided in paragraphs (b) and
(c) of this section, discrimination for purposes of this part
includes a failure to design and construct facilities for first
occupancy after January 26, l993, that are readily accessible to
and usable by individuals with disabilities.

 (2) For purposes of this section, a facility is designed
and constructed for first occupancy after January 26, l993,
only--

 (i) If the last application for a building permit or
permit extension for the facility is certified to be complete, by
a State, County, or local government after January 26, l992 (or,
in those jurisdictions where the government does not certify
completion of applications, if the last application for a
building permit or permit extension for the facility is received
by the State, County, or local government after January 26,
1992); and

 (ii) If the first certificate of occupancy for the
facility is issued after January 26, l993.

 (b) Commercial facilities located in private residences.
(1) When a commercial facility is located in a private residence,
the portion of the residence used exclusively as a residence is
not covered by this subpart, but that portion used exclusively in
the operation of the commercial facility or that portion used
both for the commercial facility and for residential purposes is
covered by the new construction and alterations requirements of
this subpart.

 (2) The portion of the residence covered under paragraph
(b)(1) of this section extends to those elements used to enter
the commercial facility, including the homeowner's front
sidewalk, if any, the door or entryway, and hallways; and those
portions of the residence, interior or exterior, available to or
used by employees or visitors of the commercial facility,
including restrooms.

 (c) Exception for structural impracticability.  (1) Full
compliance with the requirements of this section is not required
where an entity can demonstrate that it is structurally
impracticable to meet the requirements.  Full compliance will be
considered structurally impracticable only in those rare
circumstances when the unique characteristics of terrain prevent
the incorporation of accessibility features.

 (2) If full compliance with this section would be
structurally impracticable, compliance with this section is
required to the extent that it is not structurally impracticable.
In that case, any portion of the facility that can be made
accessible shall be made accessible to the extent that it is not
structurally impracticable.

 (3) If providing accessibility in conformance with this
section to individuals with certain disabilities (e.g., those who
use wheelchairs) would be structurally impracticable,
accessibility shall nonetheless be ensured to persons with other
types of disabilities (e.g., those who use crutches or who have
sight, hearing, or mental impairments) in accordance with this
section.

 (d) Elevator exemption. (1) For purposes of this paragraph
(d) --

 (i) Professional office of a health care provider means a
location where a person or entity regulated by a State to provide
professional services related to the physical or mental health of
an individual makes such services available to the public.  The
facility housing the "professional office of a health care
provider" only includes floor levels housing at least one health
care provider, or any floor level designed or intended for use by
at least one health care provider.

 (ii) Shopping center or shopping mall means--

 (A) A building housing five or more sales or rental
establishments; or

 (B) A series of buildings on a common site, either under
common ownership or common control or developed either as one
project or as a series of related projects, housing five or more
sales or rental establishments.  For purposes of this section,
places of public accommodation of the types listed in paragraph
(5) of the definition of "place of public accommodation" in
section Section 36.104 are considered sales or rental
establishments.  The facility housing a "shopping center or
shopping mall" only includes floor levels housing at least one
sales or rental establishment, or any floor level designed or
intended for use by at least one sales or rental establishment.

 (2) This section does not require the installation of an
elevator in a facility that is less than three stories or has
less than 3000 square feet per story, except with respect to any
facility that houses one or more of the following:

 (i) A shopping center or shopping mall, or a professional
office of a health care provider.

 (ii) A terminal, depot, or other station used for
specified public transportation, or an airport passenger
terminal.  In such a facility, any area housing passenger
services, including boarding and debarking, loading and
unloading, baggage claim, dining facilities, and other common
areas open to the public, must be on an accessible route from an
accessible entrance.

 (3) The elevator exemption set forth in this paragraph (d)
does not obviate or limit in any way the obligation to comply
with the other accessibility requirements established in
paragraph (a) of this section.  For example, in a facility that
houses a shopping center or shopping mall, or a professional
office of a health care provider, the floors that are above or
below an accessible ground floor and that do not house sales or
rental establishments or a professional office of a health care
provider, must meet the requirements of this section but for the
elevator.

Section 36.402 Alterations.

 (a) General.  (1) Any alteration to a place of public
accommodation or a commercial facility, after January 26, 1992,
shall be made so as to ensure that, to the maximum extent
feasible, the altered portions of the facility are readily
accessible to and usable by individuals with disabilities,
including individuals who use wheelchairs.

 (2) An alteration is deemed to be undertaken after
January 26, 1992, if the physical alteration of the property
begins after that date.

 (b) Alteration.  For the purposes of this part, an
alteration is a change to a place of public accommodation or a
commercial facility that affects or could affect the usability of
the building or facility or any part thereof.

 (1) Alterations include, but are not limited to,
remodeling, renovation, rehabilitation, reconstruction, historic
restoration, changes or rearrangement in structural parts or
elements, and changes or rearrangement in the plan configuration
of walls and full-height partitions.  Normal maintenance,
reroofing, painting or wallpapering, asbestos removal, or changes
to mechanical and electrical systems are not alterations unless
they affect the usability of the building or facility.

 (2) If existing elements, spaces, or common areas are
altered, then each such altered element, space, or area shall
comply with the applicable provisions of Appendix A to this part.

 (c) To the maximum extent feasible.  The phrase "to the
maximum extent feasible," as used in this section, applies to the
occasional case where the nature of an existing facility makes it
virtually impossible to comply fully with applicable
accessibility standards through a planned alteration.  In these
circumstances, the alteration shall provide the maximum physical
accessibility feasible.  Any altered features of the facility
that can be made accessible shall be made accessible.  If
providing accessibility in conformance with this section to
individuals with certain disabilities (e.g., those who use
wheelchairs) would not be feasible, the facility shall be made
accessible to persons with other types of disabilities (e.g.,
those who use crutches, those who have impaired vision or
hearing, or those who have other impairments).

Section 36.403 Alterations:  Path of travel.

 (a) General.  An alteration that affects or could affect
the usability of or access to an area of a facility that contains
a primary function shall be made so as to ensure that, to the
maximum extent feasible, the path of travel to the altered area
and the restrooms, telephones, and drinking fountains serving the
altered area, are readily accessible to and usable by individuals
with disabilities, including individuals who use wheelchairs,
unless the cost and scope of such alterations is disproportionate
to the cost of the overall alteration.

 (b) Primary function.  A "primary function" is a major
activity for which the facility is intended.  Areas that contain
a primary function include, but are not limited to, the customer
services lobby of a bank, the dining area of a cafeteria, the
meeting rooms in a conference center, as well as offices and
other work areas in which the activities of the public
accommodation or other private entity using the facility are
carried out.  Mechanical rooms, boiler rooms, supply storage
rooms, employee lounges or locker rooms, janitorial closets,
entrances, corridors, and restrooms are not areas containing a
primary function.

 (c) Alterations to an area containing a primary function.
(1) Alterations that affect the usability of or access to an area
containing a primary function include, but are not limited to --

 (i) Remodeling merchandise display areas or employee work
areas in a department store;

 (ii) Replacing an inaccessible floor surface in the
customer service or employee work areas of a bank;

(iii) Redesigning the assembly line area of a factory; or

(iv) Installing a computer center in an accounting firm.

 (2) For the purposes of this section, alterations to
windows, hardware, controls, electrical outlets, and signage
shall not be deemed to be alterations that affect the usability
of or access to an area containing a primary function.

 (d) Landlord/tenant:  If a tenant is making alterations as
defined in Section 36.402 that would trigger the requirements of
this section, those alterations by the tenant in areas that only
the tenant occupies do not trigger a path of travel obligation
upon the landlord with respect to areas of the facility under the
landlord's authority, if those areas are not otherwise being
altered.

 (e) Path of travel.  (1) A "path of travel" includes a
continuous, unobstructed way of pedestrian passage by means of
which the altered area may be approached, entered, and exited,
and which connects the altered area with an exterior approach
(including sidewalks, streets, and parking areas), an entrance to
the facility, and other parts of the facility.

 (2) An accessible path of travel may consist of walks and
sidewalks, curb ramps and other interior or exterior pedestrian
ramps; clear floor paths through lobbies, corridors, rooms, and
other improved areas; parking access aisles; elevators and lifts;
or a combination of these elements.

 (3) For the purposes of this part, the term "path of
travel" also includes the restrooms, telephones, and drinking
fountains serving the altered area.

 (f) Disproportionality.  (1) Alterations made to provide
an accessible path of travel to the altered area will be deemed
disproportionate to the overall alteration when the cost exceeds
20% of the cost of the alteration to the primary function area.

 (2) Costs that may be counted as expenditures required to
provide an accessible path of travel may include:

 (i) Costs associated with providing an accessible entrance
and an accessible route to the altered area, for example, the
cost of widening doorways or installing ramps;

 (ii) Costs associated with making restrooms accessible,
such as installing grab bars, enlarging toilet stalls, insulating
pipes, or installing accessible faucet controls;

 (iii) Costs associated with providing accessible
telephones, such as relocating the telephone to an accessible
height, installing amplification devices, or installing a
telecommunications device for deaf persons (TDD);

 (iv) Costs associated with relocating an inaccessible
drinking fountain.

 (g) Duty to provide accessible features in the event of
disproportionality.  (1) When the cost of alterations necessary
to make the path of travel to the altered area fully accessible
is disproportionate to the cost of the overall alteration, the
path of travel shall be made accessible to the extent that it can
be made accessible without incurring disproportionate costs.

 (2) In choosing which accessible elements to provide,
priority should be given to those elements that will provide the
greatest access, in the following order:

 (i) An accessible entrance;

 (ii) An accessible route to the altered area;

 (iii) At least one accessible restroom for each sex or a
single unisex restroom;

 (iv) Accessible telephones;

 (v) Accessible drinking fountains; and

 (vi) When possible, additional accessible elements such
as parking, storage, and alarms.

 (h) Series of smaller alterations.  (1) The obligation to
provide an accessible path of travel may not be evaded by
performing a series of small alterations to the area served by a
single path of travel if those alterations could have been
performed as a single undertaking.

 (2) (i) If an area containing a primary function has been
altered without providing an accessible path of travel to that
area, and subsequent alterations of that area, or a different
area on the same path of travel, are undertaken within three
years of the original alteration, the total cost of alterations
to the primary function areas on that path of travel during the
preceding three year period shall be considered in determining
whether the cost of making that path of travel accessible is
disproportionate.


 (ii) Only alterations undertaken after January 26, 1992,
shall be considered in determining if the cost of providing an
accessible path of travel is disproportionate to the overall cost
of the alterations.

Section 36.404 Alterations:  Elevator exemption.

 (a) This section does not require the installation of an
elevator in an altered facility that is less than three stories
or has less than 3,000 square feet per story, except with respect
to any facility that houses a shopping center, a shopping mall,
the professional office of a health care provider, a terminal,
depot, or other station used for specified public transportation,
or an airport passenger terminal.

 (1) For the purposes of this section, "professional
office of a health care provider" means a location where a person
or entity regulated by a State to provide professional services
related to the physical or mental health of an individual makes
such services available to the public.  The facility that houses
a "professional office of a health care provider" only includes
floor levels housing by at least one health care provider, or any
floor level designed or intended for use by at least one health
care provider.

 (2) For the purposes of this section, shopping center or
shopping mall means--

 (i) A building housing five or more sales or rental
establishments; or

 (ii) A series of buildings on a common site, connected by
a common pedestrian access route above or below the ground floor,
that is either under common ownership or common control or
developed either as one project or as a series of related
projects, housing five or more sales or rental establishments.
For purposes of this section, places of public accommodation of
the types listed in paragraph (5) of the definition of "place of
public accommodation" in Section 36.104 are considered sales or
rental establishments.  The facility housing a "shopping center
or shopping mall" only includes floor levels housing at least one
sales or rental establishment, or any floor level designed or
intended for use by at least one sales or rental establishment.

 (b) The exemption provided in paragraph (a) of this
section does not obviate or limit in any way the obligation to
comply with the other accessibility requirements established in
this subpart.  For example, alterations to floors above or below
the accessible ground floor must be accessible regardless of
whether the altered facility has an elevator.

Section 36.405 Alterations:  Historic preservation.

 (a) Alterations to buildings or facilities that are
eligible for listing in the National Register of Historic Places
under the National Historic Preservation Act (16 U.S.C. 470 et
seq.), or are designated as historic under State or local law,
shall comply to the maximum extent feasible with section 4.1.7 of
Appendix A to this Part.

 (b) If it is determined under the procedures set out in
section 4.1.7 of Appendix A that it is not feasible to provide
physical access to an historic property that is a place of public
accommodation in a manner that will not threaten or destroy the
historic significance of the building or facility, alternative
methods of access shall be provided pursuant to the requirements
of subpart C of this part.

Section 36.406 Standards for new construction and alterations.

 (a) New construction and alterations subject to this part
shall comply with the standards for accessible design published
as Appendix A to this part (ADAAG).

 (b) The chart in the appendix to this section provides
guidance to the user in reading Appendix A to this part (ADAAG)
together with subparts A through D of this part, when determining
requirements for a particular facility.

Appendix to section 36.406

 This chart has no effect for purposes of compliance or
enforcement.  It does not necessarily provide complete or
mandatory information.

 SUBPARTS A-D
ADAAG
APPLICATION, 36.102(b)(3): 1, 2,
3, 4.1.1
GENERAL public accommodations
 36.102(c):
 commercial facilities
 36.102(e):
 public entities
 36.103 (other laws)
 36.401 ("for first
 occupancy")
36.402(a) (alterations)

DEFINITIONS 36.104:3.5 Definitions, commercial
facilities,including:  facility,addition
 place of public accommodation,
alteration
 private club,building
public accommodation,element public entity,facility space
 story

religious entity4.1.6(j), 36.401(d)(1)(ii),technical
36.404(a)(2):  infeasibility shopping center or shopping
 mall
36.401(d)(1)(i), 36.404(a)(1):  professional office of a health
care provider
 36.402:
 alteration; usability
 36.402(c): to the maximum
extent feasible

SUBPARTS A-DADAAG

NEW CONSTRUCTION:  36.401(a) General4.1.2

GENERAL 36.401(b) Commercial facilities4.1.3
in private residences
36.207 Places of public accommodation in private residences

WORK AREAS
4.1.1(3)

STRUCTURAL 36.401(c)
 IMPRACTICABILITY 4.1.1(5)(a)

ELEVATOR EXEMPTION 36.401(d)4.1.3(5)
 36.404

OTHER EXCEPTIONS 4.1.1(5);
 4.1.3(5)
and throughout

ALTERATIONS: GENERAL 36.401(b):
commercial facilities in private residences
36.4024.1.6(1)

ALTERATIONS
 AFFECTING 36.4034.1.6(2)
 AN AREA CONTAINING
 A PRIMARY FUNCTION;
 PATH OF TRAVEL;
 DISPROPORTIONALITY

ALTERATIONS: SPECIAL 4.1.6(3)
 TECHNICAL PROVISIONS

ADDITIONS 36.401-36.4054.1.5

HISTORIC
 PRESERVATION 36.4054.1.7

TECHNICAL
 PROVISIONS 4.2 through
 4.35
RESTAURANTS AND
 CAFETERIAS 5

MEDICAL CARE
 FACILITIES 6

SUBPARTS A-DADAAG

BUSINESS AND
 MERCANTILE 7

LIBRARIES 8

TRANSIENT LODGING
 (HOTELS, HOMELESS
 SHELTERS, ETC.) 9

TRANSPORTATION
 FACILITIES [10, Reserved]

Section 36.407 - 36.500 [Reserved]
Subpart E - Enforcement.

Section 36.501 Private suits.

 (a) General.  Any person who is being subjected to
discrimination on the basis of disability in violation of the
Act or this part or who has reasonable grounds for believing that
such person is about to be subjected to discrimination in
violation of section 303 of the Act or subpart D of this part may
institute a civil action for preventive relief, including an
application for a permanent or temporary injunction, restraining
order, or other order.  Upon timely application, the court may,
in its discretion, permit the Attorney General to intervene in
the civil action if the Attorney General or his or her designee
certifies that the case is of general public importance.  Upon
application by the complainant and in such circumstances as the
court may deem just, the court may appoint an attorney for such
complainant and may authorize the commencement of the civil
action without the payment of fees, costs, or security.  Nothing
in this section shall require a person with a disability to
engage in a futile gesture if the person has actual notice that a
person or organization covered by title III of the Act or this
part does not intend to comply with its provisions.

 (b) Injunctive relief.  In the case of violations of
Section 36.304, Section 36.308, Section 36.310(b), Section
36.401, Section 36.402, Section 36.403, and Section 36.405 of
this part, injunctive relief shall include an order to alter
facilities to make such facilities readily accessible to and
usable by individuals with disabilities to the extent required by
the Act or this part. Where appropriate, injunctive relief shall
also include requiring the provision of an auxiliary aid or
service,  modification of a policy, or provision of alternative
methods, to the extent required by the Act or this part.

Section 36.502 Investigations and compliance reviews.

 (a) The Attorney General shall investigate alleged
violations of the Act or this part.

 (b) Any individual who believes that he or she or a
specific class of persons has been subjected to discrimination
prohibited by the Act or this part may request the Department to
institute an investigation.

 (c) Where the Attorney General has reason to believe that
there may be a violation of this part, he or she may initiate a
compliance review.

Section 36.503 Suit by the Attorney General.

 Following a compliance review or investigation under
Section 36.502, or at any other time in his or her discretion, the
Attorney General may commence a civil action in any appropriate
United States district court if the Attorney General has
reasonable cause to believe that --

 (a) Any person or group of persons is engaged in a
pattern or practice of discrimination in violation of the Act or
this part; or

 (b) Any person or group of persons has been discriminated
against in violation of the Act or this part and the
discrimination raises an issue of general public importance.

Section 36.504 Relief.

 (a) Authority of court.  In a civil action under
Section 36.503, the court --

 (1) May grant any equitable relief that such court
considers to be appropriate, including, to the extent
required by the Act or this part --

 (i) Granting temporary, preliminary, or permanent relief;

 (ii) Providing an auxiliary aid or service, modification
of policy, practice, or procedure, or alternative method; and

 (iii) Making facilities readily accessible to and usable
by individuals with disabilities;

 (2) May award other relief as the court considers to be
appropriate, including monetary damages to persons aggrieved when
requested by the Attorney General; and

 (3) May, to vindicate the public interest, assess a civil
penalty against the entity in an amount --

 (i) Not exceeding $50,000 for a first violation; and

 (ii) Not exceeding $100,000 for any subsequent violation.

 (b) Single violation.  For purposes of paragraph (a)(3)
of this section, in determining whether a first or subsequent
violation has occurred, a determination in a single action, by
judgment or settlement, that the covered entity has engaged in
more than one discriminatory act shall be counted as a single
violation.

 (c) Punitive damages.  For purposes of paragraph (a)(2)
of this section, the terms "monetary damages" and "such other
relief" do not include punitive damages.

 (d) Judicial consideration.  In a civil action under
Section 36.503, the court, when considering what amount of civil
penalty, if any, is appropriate, shall give consideration to any
good faith effort or attempt to comply with this part by the
entity.  In evaluating good faith, the court shall consider,
among other factors it deems relevant, whether the entity could
have reasonably anticipated the need for an appropriate type of
auxiliary aid needed to accommodate the unique needs of a
particular individual with a disability.

Section 36.505 Attorneys fees.

 In any action or administrative proceeding commenced
pursuant to the Act or this part, the court or agency, in its
discretion, may allow the prevailing party, other than the United
States, a reasonable attorney's fee, including litigation
expenses, and costs, and the United States shall be liable for
the foregoing the same as a private individual.

Section 36.506 Alternative means of dispute resolution.

 Where appropriate and to the extent authorized by law,
the use of alternative means of dispute resolution, including
settlement negotiations, conciliation, facilitation, mediation,
factfinding, minitrials, and arbitration, is encouraged to
resolve disputes arising under the Act and this part.

Section 36.507 Effect of unavailability of technical assistance.

 A public accommodation or other private entity shall not
be excused from compliance with the requirements of this
part because of any failure to receive technical assistance,
including any failure in the development or dissemination of any
technical assistance manual authorized by the Act.

Section 36.508 Effective date.

 (a) General.  Except as otherwise provided in this
section and in this part, this part shall become effective on
January 26, 1992.

 (b) Civil actions.  Except for any civil action brought
for a violation of section 303 of the Act, no civil action
shall be brought for any act or omission described in section 302
of the Act that occurs--

 (1) Before July 26, 1992, against businesses with 25 or
fewer employees and gross receipts of $1,000,000 or less.

 (2) Before January 26, 1993, against businesses with 10
or fewer employees and gross receipts of $500,000 or less.

 (c) Transportation services provided by public
accommodations.  Newly purchased or leased vehicles required to
be accessible by Section 36.310 must be readily accessible to and
usable by individuals with disabilities, including individuals
who use wheelchairs, if the solicitation for the vehicle is made
after August 25, 1990.

Section 36.509 - 36.600 [Reserved]

Subpart F--Certification of State Laws or Local Building Codes

Section 36.601 Definitions.

 Assistant Attorney General means the Assistant Attorney
General for Civil Rights or his or her designee.

 Certification of equivalency means a final certification
that a code meets or exceeds the minimum requirements of title
III of the Act for accessibility and usability of facilities
covered by that title.

 Code means a State law or local building code or similar
ordinance, or part thereof, that establishes accessibility
requirements.

 Model code means a nationally recognized document
developed by a private entity for use by State or local
jurisdictions in developing codes as defined in this section.  A
model code is intended for incorporation by reference or adoption
in whole or in part, with or without amendment, by State or local
jurisdictions.

 Preliminary determination of equivalency means a
preliminary determination that a code appears to meet or exceed
the minimum requirements of title III of the Act for
accessibility and usability of facilities covered by
that title.

 Submitting official means the State or local official who
--

 (1) Has principal responsibility for administration of a
code, or is authorized to submit a code on behalf of a
jurisdiction; and

 (2) Files a request for certification under this subpart.

Section 36.602 General rule.

 On the application of a State or local government, the
Assistant Attorney General may certify that a code meets or
exceeds the minimum requirements of the Act for the accessibility
and usability of places of public accommodation and commercial
facilities under this part by issuing a certification of
equivalency. At any enforcement proceeding under title III of the
Act, such certification shall be rebuttable evidence that such
State law or local ordinance does meet or exceed the minimum
requirements of title III.

Section 36.603 Filing a request for certification.

 (a) A submitting official may file a request for
certification of a code under this subpart.

 (b) Before filing a request for certification of a code,
the submitting official shall ensure that --

 (1) Adequate public notice of intention to file a request
for certification, notice of a hearing, and notice of the
location at which the request and materials can be inspected is
published within the relevant jurisdiction;

 (2) Copies of the proposed request and supporting
materials are made available for public examination and
copying at the office of the State or local agency charged with
administration and enforcement of the code; and

 (3) The local or State jurisdiction holds a public
hearing on the record, in the State or locality, at which the
public is invited to comment on the proposed request for
certification.

 (c) The submitting official shall include the following
materials and information in support of the request:

 (1) The text of the jurisdiction's code; any standard,
regulation, code, or other relevant document incorporated by
reference or otherwise referenced in the code; the law creating
and empowering the agency; any relevant manuals, guides, or
any other interpretive information issued that pertain to the
code; and any formal opinions of the State Attorney General or
the chief legal officer of the jurisdiction that pertain to the
code;

 (2) Any model code or statute on which the pertinent code
is based, and an explanation of any differences between
the model and the pertinent code;

 (3) A transcript of the public hearing required by
paragraph (b)(3) of this section; and

 (4) Any additional information that the submitting
official may wish to be considered.

 (d) The submitting official shall file the original and
one copy of the request and of supporting materials with
the Assistant Attorney General.  The submitting official shall
clearly label the request as a "request for certification" of a
code.  A copy of the request and supporting materials will be
available for public examination and copying at the offices of
the Assistant Attorney General in Washington, D.C.  The
submitting official shall ensure that copies of the request and
supporting materials are available for public examination and
copying at the office of the State or local agency charged with
administration and enforcement of the code.  The submitting
official shall ensure that adequate public notice of the
request for certification and of the location at which the
request and materials can be inspected is published within the
relevant jurisdiction.

 (e) Upon receipt of a request for certification, the
Assistant Attorney General may request further information
that he or she considers relevant to the determinations required
to be made under this subpart.

Section 36.604 Preliminary determination.

 After consultation with the Architectural and
Transportation Barriers Compliance Board, the Assistant Attorney
General shall make a preliminary determination of equivalency or
a preliminary determination to deny certification.

Section 36.605 Procedure following preliminary  determination of
equivalency.

 (a) If the Assistant Attorney General makes a preliminary
determination of equivalency under Section 36.604, he or she
shall inform the submitting official, in writing, of that
preliminary determination.  The Assistant Attorney
General shall also --

 (1) Publish a notice in the Federal Register that advises
the public of the preliminary determination of equivalency with
respect to the particular code, and invite interested persons and
organizations, including individuals with disabilities, during a
period of at least 60 days following publication of the notice,
to file written comments relevant to whether a final
certification of equivalency should be issued;

 (2) After considering the information received in response
to the notice described in paragraph (a) of this section, and
after publishing a separate notice in the Federal Register, hold
an informal hearing in Washington, D.C., at which interested
persons, including individuals with disabilities, are provided an
opportunity to express their views with respect to the
preliminary determination of equivalency; and

 (b) The Assistant Attorney General, after consultation
with the Architectural and Transportation Barriers Compliance
Board, and consideration of the materials and information
submitted pursuant to this section and Section 36.603, shall issue
either a certification of equivalency or a final determination to
deny the request for certification.  He or she shall publish
notice of the certification of equivalency or denial of
certification in the Federal Register.

Section 36.606 Procedure following preliminary denial of
certification.

 (a) If the Assistant Attorney General makes a preliminary
determination to deny certification of a code under Section
36.604, he or she shall notify the submitting official of the
determination. The notification may include specification of the
manner in which the code could be amended in order to qualify for
certification.

 (b) The Assistant Attorney General shall allow the
submitting official not less than 15 days to submit data, views,
and arguments in opposition to the preliminary determination to
deny certification.  If the submitting official does not submit
materials, the Assistant Attorney General shall not be required
to take any further action.  If the submitting official submits
materials, the Assistant Attorney General shall evaluate those
materials and any other relevant information.  After evaluation
of any newly submitted materials, the Assistant Attorney General
shall make either a final denial of certification or a
preliminary determination of equivalency.

Section 36.607 Effect of certification.

 (a) (1) A certification shall be considered a
certification of equivalency only with respect to those features
or elements that are both covered by the certified code and
addressed by the standards against which equivalency is measured.

 (2) For example, if certain equipment is not covered by
the code, the determination of equivalency cannot be used as
evidence with respect to the question of whether equipment in a
building built according to the code satisfies the Act's
requirements with respect to such equipment.  By the same token,
certification would not be relevant to construction of a facility
for children, if the regulations against which equivalency is
measured do not address children's facilities.

 (b) A certification of equivalency is effective only with
respect to the particular edition of the code for which
certification is granted.  Any amendments or other changes to the
code after the date of the certified edition are not considered
part of the certification.

 (c) A submitting official may reapply for certification of
amendments or other changes to a code that has already received
certification.

36.608 Guidance concerning model codes.

 Upon application by an authorized representative of a
private entity responsible for developing a model code, the
Assistant Attorney General may review the relevant model code and
issue guidance concerning whether and in what respects the model
code is consistent with the minimum requirements of the Act for
the accessibility and usability of places of public accommodation
and commercial facilities under this part.

Section 36.609 - 36.999 [Reserved]

Appendix A to Part 36 -- Standards for Accessible Design

Appendix B to Part 36 -- Preamble to Regulation on
Nondiscrimination on the Basis of Disability by Public
Accommodations and in Commercial Facilities (Published July 26,
1991)

NOTE:  For the convenience of the reader, this appendix contains
the text of the preamble to the final regulation on
nondiscrimination on the basis of disability by public
accommodations and in commercial facilities beginning at the
heading "Section-by-Section Analysis and Response to Comments"
and ending before "List of Subjects in 28 CFR Part 36" (56 FR
[INSERT FR PAGE CITATIONS]; July 26, 1991).


Date

Dick Thornburgh Attorney General