28 November 2005
Laurel W. Wright
Chief Accessibility Code Consultant
Office of State Fire Marshal
North Carolina Department of Insurance
322 Chapanoke Road
Raleigh, North Carolina 27603
Re: DJ No. 202-54-43
Dear Ms. Wright and Mr. Kanner:
As you know, on March 17, 2005, the Department of Justice issued a preliminary determination that the North Carolina Accessibility Code (NCAC) was substantially equivalent to the new construction and alterations requirements of title III of the Americans with Disabilities Act (ADA). After consulting with the U.S. Access Board and reviewing comments received on the preliminary determination, I am pleased to inform you that the Department has determined that final certification is appropriate for the NCAC. This letter constitutes the Department's final determination of equivalency, which is issued pursuant to 42 U.S.C. § 12188(b)(1)(A)(ii) and 28 C.F.R. § 36.605(b). The Department will also publish a notice in the Federal Register of its final determination regarding the NCAC.
We remind you that in any ADA enforcement action, final certification constitutes rebuttable evidence that a building constructed or altered in compliance with the North Carolina Accessibility Code complies with the requirements of title III of the ADA. However, 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 NCAC, 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 NCAC allows for the approval of waiver and exemption requests, we must point out that should state or local officials approve variances or waivers to ADA required minimum accessibility requirements, certification will not apply.
Certification will also not apply if other North Carolina building codes provide an exemption from the ADA required minimum accessibility requirements. This would mean that in any ADA enforcement action, a builder who receives a variance, waiver, modification, or other exemption from the requirements of the NCAC for any element of new construction or alterations would not be in compliance with the ADA and 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 NCAC submitted to and reviewed by the Department, which is the 2002 North Carolina Accessibility Code with 2004 amendments (the 2002 NCAC consists of the 1999 edition of the NCAC with 2002 revisions). Subsequent amendments should be submitted to the Department for updated certification as appropriate. These limitations should be noted in any publication of the NCAC.
I congratulate the North Carolina Department of Insurance for its work in helping North Carolina become the sixth State in the Country to receive ADA certification. I would also like to thank you and Mr. Kanner for your cooperation and patience during the certification review process. The State of North Carolina has set a fine example for other jurisdictions to follow and its efforts will make a lasting difference in the lives of individuals with disabilities.
Wan J. Kim
Assistant Attorney General