Title III also suffers from problems with clarity.

Readily Achievable Removal of Architectural Barriers

The legislation requires that public accommodations remove architectural barriers, effective upon enactment, if the removal is "readily achievable". "Readily achievable" is described as "easily accomplishable and able to be achieved without much difficulty or expense". Additional criteria for determining whether the removal is readily achievable include the size and type of the operation and the number of its employees and facilities. The provision fails to distinguish clearly between the cost and difficulty of removing a single barrier, and many barriers of the same type in a single facility. For example, the Senate report concludes that the installation of grab bars fits the readily achievable standard. The absence of a grab bar in a bathroom is evidently a barrier. The installation of a grab bar in a single bathroom is not much of a problem, but the installation of many grab bars in many bathrooms in a large office or hotel is a different matter entirely. The legislation should provide that if a facility has many architectural barriers that singly aren't difficult or costly to remove, the removal of all these barriers should either be phased in, or should occur when the facility is renovated.

Alterations and Major Structural Alterations

Title III also contemplates "alteration" of a facility which is more expensive and complex than the readily achievable removal of an architectural barrier. The legislation indicates that an alteration occurs at the choice of the facility owner. Title III does a better job than Title II in handling the distinction between accessibility improvements required upon enactment in existing facilities, and those that take place only when owners choose to initiate them. The legislation still suffers from the recurring problem of no clear distinction between a readily achievable removal of an architectural barrier and an alteration of a facility. Also, as in Title II, the legislation gives no clue as to what differentiates a major structural alteration from an alteration. The reason the legislation contains two types of alterations was so that a small or inexpensive alteration would not impose more costly renovation of an accessible route through the building. The legislation implies that changes to windows or to partitions, but not load-bearing walls could trigger the requirement for an accessible path of travel. This doesn't make any sense.

State laws already in existence provide better guidance. Pennsylvania law, for example, adopted in December 1988, provides that alterations valued less than 30 percent of the worth of a building must make only the altered area readily accessible and usable. Alterations valued at 30 to 50 percent of the building's worth must also include an accessible route to the altered area. Alterations valued more than 50 percent of the worth of the building must make the entire facility readily accessible and usable. For example, if the threshold for a major "structural" alteration is set too low, then many owners may simply delay or even refuse renovations in situations where building values are low. Referring again to the new Pennsylvania law, I believe it can be a useful guide in clarifying terms and distinguishing between major and

minor renovations. A copy of Pennsylvania's Act 166 of 1988 has been submitted to the subcommittee.

The AIA is concerned that the ADA bill does not adequately take into account the special nature of historic properties. The Uniform Federal Accessibility Standards (UFAS) in Section 4.17 sets forth standards for historic properties. It allows the Advisory Council on Historic Preservation to determine whether accessiblity requirements of UFAS would "threaten or destroy" the historic integrity of a qualified building or facility. If so, then special accessibility rules would apply. The ADA bill should require a standard of this type for all qualified properties including those listed on or eligible for the National Register of Historic Places, or designated historic by a state statute or local ordinance.

The alterations section of Title III also establishes a "maximum extent feasible" test. This phrase is too vague, although the Senate report attempts a definition.

New Construction

The legislation imposes requirements for new construction, which apply to facilities open for first occupancy more than 30 months after the date of enactment. It makes a distinction between public accommodations, which are defined in a list of facilities and establishments, and "potential places of employment" which appear to be all those facilities not considered "public" in the limited sense of being used or visited by customer, patient, client or patron. The AIA firmly agrees with the premise that accessibility features can be easily incorporated at little or no additional cost into the original design if universal accessibility for all is a conscious goal of the architect from the first day of design.

"Potential places of employment", however, is a new term. It is unclear in the legislation whether all spaces within potential places of employment must be made readily accessible and usable, such as a rarely visted utility or store-room. The legislation's requirements should cover all those spaces within an establishment or facility that would be generally used by the public, either as consumers or employees, and exempt accessibility of other special purposes spaces such as catwalks, elevator shafts and electrical panel closets as is done in the ANSI Standards, UFAS and PA Act 166.

Although the legislation attempts to accommodate projects already in the design process by delaying their effective date of compliance (a year after enactment for alterations, 30 months for new construction), there will be serious transition problems for some projects that are or will be under contract for design prior to the effective date of the bill. These projects must comply by the effective dates. They will therefore be subjected to

costly, often complicated redesign, yet architects will not know with any certainty what they must do to comply. In its section estimating the bill's cost for state and local government, the Senate report acknowledges the significant added costs of re-design. One way to handle this problem is to

retain the effective dates in the legislation for alteration and new construction, but have the law apply only to those projects that receive a contract for design after the date of enactment. After much discussion in Pennsylvania it was determined that any design contract for renovations or new construction dated later than sixty (60) days after enactment of the accessibility law was a fair and efficient way to make a transition into the new law's requirements, without the delay and cost of re-design being involved. The burden of proof was put upon the architect or building owner. If he or she could show that design work began on the project before the effective date, that project did not have to comply with the new law. Projects currently on the drawing board would not be affected. New or altered buildings escaping early compliance, however, would eventually come under the alteration requirements. Our suggestion is also similar to, but we believe more effective than, the approach instituted in the Fair Housing Act Amendments regulations which exempt from compliance those projects whose final building permits are issued on or after January 14, 1990.

To provide a "safe harbor" for architects, particularly necessary during the transition from enactment to final regulations, the legislation should provide in the statute language that compliance with the requirements of the American National Standards Institute ANSI Standard Al17.1 1986 or an equivalent standard would be sufficient, though not necessary, for compliance with the legislation. ANSI A117.1 is a national model accessibility standard adopted throughout the country, and known to many architects. Given the uncertainty of the ADA's requirements, and of the nature of the regulations, architects need a readily accepted standard to which they can refer with confidence. Since ANSI no longer prescribes the scope of the standard, such as how many accessible bathrooms should be placed in a new office project as opposed to what an accessible bathroom must include, the legislation as an alternative could instead refer to the Uniform Federal Accessibility Standard (UFAS), which contains a scoping element. In the new fair housing law enacted last year, ANSI is deemed a sufficient standard to follow in complying with accessibility requirements for housing.

Because the report makes it clear that the Architecural and Transportation Barriers Compliance Board shall extend and make necessary revisions to the federal Minimum Guidelines and Requirements for Accessible Design (MGRAD), a question is raised about the relationship of this provision to current ANSI Standards. Is the revised MGRAD supposed to supplant ANSI as the standard for the details of handicapped accessibility design? MGRAD now relies on the ANSI standard. The legislation should specify this continued reliance, except, ́ to the extent that a scoping element is required. Incidentally the ANSI A117 Committee, of which I am a member, will be considering re-adoption of a scoping standard in its 1991 Edition.

The ADA's new construction provisions also exempt from compliance those new projects where it is "structurally impracticable to comply. The Senate report makes it clear that structural impracticability does not pertain to conditions involving a "hilly" site but only to those conditions that would prevent accessibility or destroy the physical integrity of a structure. It is meant to be a very limited exemption involving such buildings as those built on stilts in marshland or in a floodplain. The issue of economic feasibility

should not be overlooked, especially since such feasibility is inherent in the idea of structural inpractibility. The sections of the ADA dealing with readily achievable removal of architectural barriers and with alterations already acknowledge the cost of compliance and seek to ensure that the legislation's costs are not unreasonable.

The new construction requirements should do the same. The AIA supports the legislation's intent to require the incorporation of accessibility features which are not prevented by structural impracticability or economic infeasibility. The ADA should also incorporate the term "equivalent facilitation" to allow alternative access means where conventional

accessibility is impracticable and an alternative means can be demonstrated to achieve an equivalent accessibility result.

Enforcement

The Senate bill also provides that courts should consider a good faith effort to comply when hearing complaints brought against a covered entity or individual. We support a stronger provision. State or local building officials should be able to certify that an architect has complied with the Act. Certification by such officials that an architect has complied should then constitute a strong defense against complaints of discrimination. This can be accomplished by permitting the Department of Justice to certify, on the application of a state or locality, that its building code complies with or exceeds the federal standard established by the ADA. When the building official of a jurisdiction with a DOJ-certified statute inspects a renovation or new construction project covered by the ADA, his or her enforcement of the state or local statute would ensure compliance with the ADA. It is only fair that if a state or local building official assures an architect that a project complies with DOJ certified handicapped access statutes, then the architect should have confidence that any liability will be sharply limited.

Technical Assistance

Finally, the Senate bill establishes a program of technical assistance for affected segments of the public to inform them about the act and its details. This is a worthwhile provision aimed at encouraging compliance through better understanding and information, rather than through the heavy hand of the courts. Specifically, in reference to architects, the AIA urges that the technical assistance program give major attention and resources to the education of architects in the new law and in design for universal accessibility.

The American with Disabilities Act is far-reaching legislation aimed at opening doors for a segment of our society shut out of the mainstream for too long. The legislation's significance demands that its crafting advance rather than impede achievement of its objectives. We hope that our suggestions will help this bill become what it deserves to be.

Mr. Chairman, I would close by saying that we architects, the designers, and builders of the environment of man must broaden our spectrum of design parameters to help improve the quality of life for those of us who cannot walk or talk, see or hear.

Our creative skills must be applied, as well, to design for the small and the tall, those who are frail or spastic and those who are head-injured or mentally challenged. It is a modern day and unique challenge we should engage with enthusiasm and vigor.

Mr. EDWARDS. Mr. Roth, I want to assure you that we want more communication with theater people because these problems can be resolved and we are going to write our legislative history very carefully, which will help to resolve some of your concerns.

Now, Mr. Roth, what about removable seats as one way to accommodate the disabled? Do you have any history of that? Are you acquainted with that procedure?

Mr. ROTH. Yes, sir, I am. I think it is an excellent way to accommodate varieties of handicaps. However, if we are talking about 9:10 and we have 250 people leaving an auditorium and 250 people trying to get in and I arrive in a wheelchair and ask, can you take out those two removable seats, that is a pretty good sized problem. Mr. EDWARDS. Well, what do you do when a disabled person arrives?

Mr. ROTH. In every auditorium, when we have removable seats, we have open spaces for wheelchair seating.

Mr. EDWARDS. Have you ever turned one away?

Mr. ROTH. No, sir.

Mr. EDWARDS. So you feel you accommodate the people in wheelchairs now?

Mr. ROTH. What would happen was, you would call and say "I am coming to the 9:20 show and I am bringing my wife and my sister who is confined to a chair. We have been in your theater before and we know in a certain area you have the removable chairs. Is it possible that you can have them taken out before this evening so when we get there they would be available?"

By all means we would do that. If we could do it without any prior notice, we would try, but it poses the problem of discomforting 300, 400, or 500 people while two ushers are trying to dismantle the chair and carry it out.

But, yes, it is a real good way when combined with other good ways to accommodate people with various handicaps.

Mr. EDWARDS. Mr. Roth, you feel that the bill as written with appropriate legislative history that specifically addresses your concerns can assuage your fears as to the effects of this legislation?

Mr. ROTH. Well, sir, the more legislative history, the better, but when you get to the local level and somebody is arguing with you, whether you complied with the act or you don't, those local people whether they be the building inspector, the fire inspector or whoever, they don't have the legislative history readily at hand and the average theater operator does not have the legislative histories in his file cabinet.

So what will happen, somebody will whip out the act which makes it critically important that the act itself be as clear as possible because by the time we research, investigate and adjudicate the legislative history, the lease may have expired.

Mr. EDWARDS. Do you have any specific recommendations for amendments to this legislation?

You don't want to be exempted from it.

Mr. ROTH. No, sir, we don't want to be exempted from it. We have in several instances submitted specific language. If the committee or the subcommittee would like further submissions, we would be delighted to offer them.

36-873 0-91-11