JUL 21 1995

Technical assistance review of

proposed amendments to the
Maine Human Rights Act
John L. Wodatch Eve L. Hill
Chief Attorney
Disability Rights Section Disability Rights Section

I. Background and Recommendation

By letter dated January 11, 1995, the Maine Human Rights

Commission (Commission) requested the Department's comments on
proposed amendments to the Maine Human Rights Act(law). The
proposed amendments are intended to incorporate requirements of
title III of the Americans with Disabilities Act (ADA) into the
Maine law.

Since the letter was sent, the amendments have been

submitted to the State legislature and hearings have been
completed. The amendments are currently being addressed by the
legislature's Judiciary Committee. Staff of the Commission are
anxious to receive our comments in order to address them in
working sessions with the Judiciary Committee.

Todd Andersen and I have reviewed the Maine law and the
proposed amendments. This review indicates that a number of
potential problems exist in the proposed amendments as they are
currently drafted. I recommend that we point out the major
issues and encourage the Commission to address them in its work
with the Judiciary Committee and then to submit the final code
for certification. A proposed draft response to the Commission
is attached. It is important that we move quickly in order to
respond before the proposed amendments are finalized. If we wait
until they are finalized it will be much more difficult to make
the needed changes.

II. Analysis

Maine's approach is significantly different from the

approaches taken by the other jurisdictions whose codes we have
reviewed. Rather than create its own accessibility code, Maine
has chosen to incorporate the ADA construction standards into its
human rights code and involve the Fire Marshall in the
enforcement of that code. This is more similar to the ADA's
approach than to a building code approach. This approach was
most likely chosen because Maine has no pre-existing statewide
building code. Instead, the cities that have adopted building

cc: Records, Chrono, Wodatch, Hill, FOIA

n:\udd\hille\maine\tal.mem\sc. young-parran
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codes use the Building Officials and Code Administrators
International (BOCA) code. The State Fire Marshall apparently
applies the National Fire Protection Association (NFPA) code.

A. Current Law

The Maine Human Rights Act prohibits discrimination on the

basis of race, color, sex, disability, religion, ancestry,
national origin, or familial status. It covers employment,
housing, public accommodations, credit extension, and education.
A person who feels he or she has been discriminated against may
file a complaint with the Commission within six months after the
discrimination occurs. The Commission will investigate and, if
it finds discrimination, it may file suit seeking injunctive
relief, reinstatement, back pay, damages, civil penalties, and
attorneys' fees. The individual may also sue on his or her own
behalf, without seeking relief through the Commission.

The law currently includes accessibility requirements for

new construction and alterations of places of public
accommodation (defined as places open to the general public) and
places of employment (undefined) when the construction or
alteration costs exceed $100,000. It currently uses American
National Standards Institute (ANSI) standard A117.1-1986 as its
construction standard. It requires covered construction or
alterations to comply with the ANSI accessibility requirements
for accessible routes, doors, detectable warnings at doors to
hazardous areas, parking spaces, and toilet stalls.

The only review mechanism currently in place is a

requirement that the builder obtain a certificate from a design
professional stating that the plans comply. The builder must
submit the certification and the plans to the Fire Marshall and
to the municipality where the building is located. The Fire
Marshall can provide technical assistance, but it is unclear
whether he or she has any authority to actually require
compliance. This authority may be addressed in the fire code,
which has not been submitted.
B. Proposed Amendments

The proposed amendments are intended to make the Maine law

more consistent with the ADA, while retaining the current State
law remedies. While the proposed amendments do improve the Maine
law as it applies to new construction and alterations, several
significant issues remain.

1. Inspection

There is no statewide across-the-board system of building

inspection in Maine and the proposed amendments do not attempt to
create one. The proposed amendments require a covered builder to
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obtain a design professional's certification of compliance if the
construction or alteration cost is $50,000 or more. The builder
must provide the building plans and the certification to the Fire
Marshall and the municipality where the building is located. It
is not clear whether the Fire Marshall has any ability to prevent
construction if the plans do not comply.

In addition, all newly constructed restaurants, hotels,

government buildings, and schools must submit plans to the Fire
Marshall, who must certify compliance before a municipality may
issue a building permit. If the municipality in which such a
building is located conducts inspections, the proposed amendments
require it to include accessibility as part of its inspection.

Builders of buildings that do not fall within the two

categories described above may seek voluntary review by the Fire
Marshall.

Approval by the Fire Marshall will constitute rebuttable

evidence of compliance with the Maine law. This provision refers
only to mandatory review by the Fire Marshall, not to voluntary
submissions. We need to consider whether a situation in which
Fire Marshall approval constitutes rebuttable evidence with State
law and compliance with State law, in turn, constitutes
rebuttable evidence of ADA compliance gives too much authority to
the Fire Marshall. Because the evidence is rebuttable, and
because areas of real discretion (e.g., waivers) are not
certified, I recommend that we accept this. I believe it is
essentially just an explicit statement of actual practice under
most building inspection and permitting systems.

We must also consider whether certification should be

available for codes under which not all buildings are subject to
mandatory plan review/inspection and under which the Fire
Marshall may not have authority to prevent construction of non-
complying buildings that he or she does review. Although the
limitations on Fire Marshall review will limit the effectiveness
of certification somewhat, the unreviewed buildings will still be
legally required to comply and noncompliance will give rise to an
additional State law cause of action. Furthermore, notice by the
Fire Marshall that a plan does not comply may persuade builders
to comply, even if the Fire Marshall cannot prevent construction.

We have several options in this regard. We could:

a) limit the effect of any future certification

determination to construction costing over $50,000 and,
therefore, reviewed by the Fire Marshall;

b) limit the effect of any future certification

determination to construction that is both reviewed and approved

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by the Fire Marshall (i.e., restaurants, hotels, public
buildings, and schools);

c) provide technical assistance indicating that the

code is equivalent while refusing certification because of the
lack of enforcement; or

d) apply any future certification determination to

the entire code.

Although any of these options may be justified, I recommend that

we not limit any certification determination based on the limits
of Fire Marshall review. Although one of the purposes of
certification is to increase pre-construction review of
buildings, other purposes include increasing ease of compliance
for builders and increasing the level of enforcement and the
number of available remedies. By incorporating the ADA
requirements into the State law and by providing a State law
cause of action with appropriate enforcement mechanisms and
remedies, the State of Maine has accomplished most of the
purposes of certification. In addition, by providing for some
review, the State has also addressed the remaining purpose of
certification to a large extent.

2. Alterations

The proposed amendments require altered areas in existing

buildings to comply with ADAAG to the maximum extent feasible.
The proposed amendments also require alterations costing over
$100,000 that affect areas normally open to the public to meet
the requirements of ADAAG § 4.3 (accessible routes), § 4.13
(doors), § 4.29.3 (detectable warnings at hazardous areas),
§ 4.1.2 (parking), and § 4.17 (toilet stalls). These
requirements must be met "regardless of cost." This requirement
appears to be in addition to the general requirement that altered
areas and paths of travel must be made accessible. This
understanding needs to be confirmed. It is also unclear whether
the builder must meet the five requirements for every area in the
building or just those serving the altered area or only one of
each.

Some of the five requirements referenced for large

alterations are only technical provisions of ADAAG, without
scoping. This is true of § 4.13 (doors). Because the ADAAG
scoping provision is not referenced, the Maine requirement would
appear to require all doors to comply. This exceeds the ADA. In
addition, the Maine reference to § 4.17 provides its own scoping,
requiring one standard stall and requiring that all additional
stalls in the same toilet room be accessible as well. This also
exceeds the ADA. It is unclear whether the proposed amendments
actually intend to exceed the ADA in these ways. The requirement
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for parking, on the other hand, refers only to the ADA scoping
provision without technical specifications.

The proposed amendments also provide a path of travel

requirement for alterations to primary function areas. The 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 standards of disproportionality apply to
small alterations as apply to large ones.

The proposed path of travel requirement for large

alterations includes a prohibition against evasion of the
obligations "by performing a series of small alterations...."
The evasion provision does not specify the three-year time period
used by the ADA. The path of travel provision for small
alterations does not address evasion at all.

The proposed amendments exceed the requirements of the ADA

by requiring any reconstruction affecting 80% or more of the
internal structure to be treated as new construction.

3. Waivers

The proposed amendments provide a waiver procedure for

builders of facilities subject to mandatory plan review
(restaurants, hotels, etc.). The Fire Marshall may grant a
waiver if compliance would be structurally impracticable.
Certification will not apply to such a waiver. The waiver is
confusing, however, when applied with the referenced ADAAG
standard of construction. ADAAG already includes a structural
impracticability exception that applies without the need to
formally seek a waiver.

For two-story buildings not to be used by a public entity,

the Fire Marshall may waive accessibility requirements if
installation of an elevator would be technically infeasible or
would result in excessive and unreasonable costs without any
substantial benefit to individuals with disabilities. Shopping
centers, shopping malls, offices of health care providers, and
transportation stations are ineligible for the elevator waiver.
If this waiver is limited to the elevator requirement and does
not waive any other requirements, it is more stringent than the
ADA elevator exception, which generally does not require
elevators in two-story buildings. However, it is not clear that
the waiver is limited to the elevator requirement only.
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In addition, this waiver provision does not make sense as it
is used. Because the proposed amendments incorporate ADAAG,
including the elevator exemption for two-story buildings, there
is no need for a waiver for two-story buildings. If the proposed
amendments are not intended to adopt the ADAAG elevator
exception, they must be more explicit.

4. Conflicts

One significant problem may be conflicts between the ADA

building standards incorporated in the Maine law and the
standards in municipalities' local building codes. In addition,
the NFPA code may conflict. It is unclear how such conflicts
have been addressed in the past.

5. Covered facilities

The proposed amendments add a definition of "commercial

facilities" as "facilities that are intended for nonresidential
use." The definition, itself, is equivalent. However, the term
is only used in the context of alterations (public accommodations
and commercial facilities must comply). In the context of new
construction, public accommodations and "places of employment"
are covered. The term "places of employment" is not defined.

Although the term "places of employment" may provide

sufficient coverage, it should be defined. More importantly, it
is problematic to use two different terms to define coverage of
alterations and new construction. The scope of coverage for both
requirements should be the same.

6. Defenses

The proposed amendments define "readily achievable" and

"undue hardship." However, the proposed amendments do not use
these terms. Including these unused definitions in the law will
cause confusion and may lead builders to believe they have
defenses that do not, in fact, exist.

7. "Disability"

The proposed amendments extend protection to people with

disabilities, people with records of disabilities, and people who
are regarded as having disabilities. However, the amendments
retain the current definition of "disability," which is limited
to disabilities "caused by bodily injury, accident, disease,
birth defect, environmental conditions or illness." The ADA does
not limit the definition based on causation, but, instead, looks
to the effect of the impairment. In addition, the current Maine
definition provides that it includes conditions diagnosed as
"substantial" by a health care provider. The ADA does not
require medical assessment of substantiality.
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8. "Place of public accommodation"

The proposed amendments alter the definition of "place of

public accommodation" to more closely resemble the ADA
definition. The new definition significantly exceeds the twelve
ADA categories by covering elevators in small residential
facilities, State and local government buildings, and "any
establishment which in fact caters to, or offers its goods,
facilities or services to, or solicits or accepts patronage from,
the general public."

9. Existing buildings

The Maine law includes requirements for accessibility of

public accommodations and places of employment that were
constructed between 1974 and 1982. For existing public
accommodations, it requires:

a) at least one public walk at least 48 in. wide with

no greater than 1:12 slope;
b) a 32 in. wide doorway at the primary entrance that
is "operable by a single effort;"
c) at least one stall in rest room facilities that is
at least 4 ft. wide and 5 ft. deep, with an out-swinging or
sliding 32 in. door, with 33 in. high handrails on each side, and
with a 20 in. high toilet;
d) knurled door handles on doors to dangerous areas
that are not intended for normal use;
e) one reserved parking space for every 25 provided
(no technical specification provided).

For existing places of employment, it requires compliance with

the above requirements for walks, entries, restrooms, and doors
(but not parking).

Although certification does not address barrier removal, it

needs to be made clear that these requirements will exceed the
ADA's barrier removal requirement for some facilities, but will
not meet the requirement for other facilities. Further,
buildings built before 1974 must comply with the ADA's barrier
removal requirements as well.

In addition, because the basic accessibility standard for

barrier removal is the new construction/alteration standard, the
technical specifications provided are not sufficient. For
example, they do not address maneuvering clearance at doors or
design of parking spaces. In addition, by requiring the 48 in.
alternate stall, the Maine law limits design choices more than
the ADA does.

These provisions are unclear and the intended application is

uncertain. This intent must be clarified.
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10. Effective date

The Maine law contains construction requirements for

buildings begun before the enactment of the amendments. The
amendments create a separate section (4594-F) applicable to
construction and alterations after January 1, 1995. Any
certification determination must make clear that only the amended
section is subject to certification.

11. Incorporation of ADAAG

The proposed amendments adopt ADAAG as the construction

standard. They need to refer to the ADA Standards instead. In
addition, they need to consider whether they will automatically
incorporate any future amendments that the Department of Justice
makes to the ADA Standards or whether, instead, they will
individually consider each such amendment.
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