DJ No. 202-35-62

Mr. James C. Hanna
Community Assistance Administration
Maryland Codes Administration
Department of Housing and Community Development
100 Community Place
Crownsville, Maryland 21032-2023

Dear Mr. Hanna:

Thank you for submitting the amendments adopted in February 2002 to the Maryland Accessibility Code (Maryland Code), under .05.02.02 of the Code of Maryland Regulations (COMAR), for our review in support of your request for certification under title III of the Americans with Disabilities Act (ADA).

I am very pleased to inform you that, upon careful review of the Maryland Code, the Department of Justice has determined that the Maryland Code, as amended in February 2002, is substantially equivalent to the new construction and alterations requirements of Title III of the ADA. This letter constitutes the Department's preliminary determination of equivalency pursuant to 42 U.S.C. § 12188(b)(1)(A)(ii) and 28 C.F.R. § 36.604.

I congratulate the Maryland Department of Housing and Community Development for preparing a code that, I believe, will be a model to other states developing accessibility codes. I would also like to thank you for your cooperation and patience during the certification review process. Your staff have been particularly helpful and responsive to our questions.

The Department's determination, if it becomes final, will formally certify that the Maryland Code meets or exceeds the new construction and alterations requirements of title III of the ADA. The effect of such certification will be to provide rebuttable evidence, in any ADA enforcement action, that a building constructed or altered in compliance with the certified code complies with the ADA.

Certification does not apply to buildings constructed by or for state or local governmental entities, which are subject to title II of the ADA. Nor does certification apply to accessibility requirements that are addressed by the Maryland Code, but are not addressed by the new construction and alterations requirements of title III of the ADA, including the ADA Standards for Accessible Design. In addition, while we are aware that the Maryland Code reserves to the state the right to approve waiver and exemption requests, and that it limits the exercise of this authority to those instances in which state accessibility requirements are more restrictive (i.e., more stringent) than the state-adopted ADA minimum accessibility requirements, we must point out that should state or local officials approve variances or waivers to ADA required minimum accessibility requirements, certification will not apply. This would mean that in any ADA enforcement action, a builder who receives a variance, waiver, modification, or other exemption for any element of new construction or alterations from the requirements of the Maryland Code that are not more restrictive than the ADA, would not be able to benefit from certification’s rebuttable evidence of ADA compliance with respect to that element. Finally, certification applies only to the version of the Maryland Code submitted to and reviewed by the Department, including the amendments to the code submitted in April 2002. Later amendments may be submitted to the Department for updated certification as appropriate. These limitations should be noted in any publication of the Maryland Code.

Procedurally, this notification letter constitutes an important step towards final certification of the Maryland Code. The next step in the process requires the publication of a notice in the Federal Register advising the public of our preliminary determination to certify the Maryland Code. The public will have 60 days to submit written comments. During the public comment period, the Department will hold an informal hearing in Maryland on the preliminary determination. After considering the submitted comments and publishing another notice in the Federal Register, the Department will hold another informal hearing in Washington, D.C. After consultation with the Architectural and Transportation Barriers Compliance Board, the Department will issue its final determination and publish a notice thereof in the Federal Register. See 28 C.F.R. § 36.605. We will, of course, keep you informed of the progress of this process. If you have any questions about this process or about our preliminary determination, please contact Jonathan Hahm in the Disability Rights Section at (202) 616-5577.

Once again, congratulations on having created a code that I believe sets a fine example for other jurisdictions and that I believe is most deserving of certification by the Department of Justice.


Ralph F. Boyd, Jr.
Assistant Attorney General

cc: Mr. Lawrence W. Roffee
U.S. Architectural and Transportation
Barriers Compliance Board

Certification of State and Local Building Codes

August 20, 2003