JUL 21 1992 The Honorable Lloyd Bentsen United States Senator 961 Federal Building Austin, Texas 78701 Attention: Edward Lopez Dear Senator Bentsen: I am responding to your inquiry on behalf of your constituent, Brett Boaz, concerning the implementation of title III of the Americans with Disabilities Act of 1990 (ADA). Mr. Boaz believes that the ADA will become a vehicle for frivolous lawsuits because there is no mechanism through which the Department of Justice or the Architectural and Transportation Barriers Compliance Board (Access Board) provides binding pre- construction review of building designs. In responding to this concern, it is important to keep in mind the nature of the ADA and the remedies it provides. The ADA is a civil rights law, not a building code. Therefore, it is enforced through the traditional civil rights mechanism of administrative complaint investigation and case-by-case enforcement in the Federal courts by individuals or the Department of Justice. However, when the ADA was enacted, President Bush and the Congress took care to ensure that there would be no incentive for private litigants to file "frivolous" lawsuits. The only remedy in private litigation is injunctive relief, i.e., an order requiring that a violation be corrected. No compensatory or punitive damages may be awarded. In addition, attorneys' fees may be awarded to the prevailing party at the discretion of the court. In a situation where a court finds that a plaintiff's claim was frivolous, the court may require the plaintiff to pay the attorneys' fees and litigation costs incurred by the defendant. In addition, the ADA requires that certain Federal agencies provide technical assistance to individuals and entities affected by the ADA to facilitate voluntary compliance. Both this Department and the Access Board provide informal technical assistance regarding the ADA to enable people like Mr. Boaz to become familiar with the requirements of the law. However, 01-01039 -2- neither agency will function as a "building department" to review plans and specifications, conduct inspections, or issue building permits or occupancy certificates. These functions continue to be the responsibility of State and local officials implementing State and local requirements. The ADA does not authorize any entities to carry out these functions with respect to the ADA. Mr. Boaz raised a concern about the specific ADA requirements for accessible door hardware. He believes that these requirements would prevent designers from specifying the use of door locks that are operated by keys. This is a misinterpretation of the rule. The requirements of the rule apply to the construction of the lock itself, not to the mechanism that may be required to operate the lock from the outside. Devices are commercially available that enable people who have limited manual dexterity to use traditionally designed keys. If Mr. Boaz requires further information on this issue, he should contact the Access Board at 1-800-USA-ABLE. The Access Board's technical specialists are available to provide informal technical assistance to individuals who have questions about the technical requirements of the ADA regulations. In addition, the Access Board may be able to direct Mr. Boaz to sources of accessible products that are available to architects and builders. I hope that this information is helpful to you in responding to Mr. Boaz. Sincerely, John R. Dunne Assistant Attorney General Civil Rights Division 01-01040 BRETT B. BOAZ 4508C UNIVERSITY BOULEVARD DALLAS, TEXAS 75205 02 April 1992 The Honorable Lloyd Bentsen United States Senate Washington, D.C. 20510 My Dear Senator Bentsen: As an overburdened, overregulated taxpaying Architect, I thought I would share with you my disappointments with recent legislation passed by Congress. One example of Congress' regulation insanity is the American With Disabilities Act (ADA). Although this law was conceived out of compassion for the disabled, it has become nothing more than a vehicle for militant handicap activists to engage in frivolous lawsuits against building owners and design professionals. As with most legislation written by bureaucrats, these guidelines are cloudy, confusing and complicated. It has become virtually impossible to contact the Department of Justice or the Architectural and Transportation Barriers Compliance Board for interpretations to determine if a particular design is in compliance. This leaves the only real source for binding interpretations of the ADA to the Court System. (Congress has an uncanny knack for furthering the legal profession's ability to transfer wealth from those who produce to those who complain.) Just for your information, I have included the following excerpt from the ADA to highlight one of the absurd requirements now considered law: "4.13.9 Door Hardware. Handles, pulls, latches, locks and other operating devices on accessible doors shall have a shape that is easy to grasp with one hand and does not require tight grasping, tight pinching or twisting of the wrist to operate." In other words, as an Architect, I can be held liable for specifying a door that requires the use of a simple house key to open. How do you expect hard working Americans to stay in business and continue to pay taxes when you pass legislation like this? 01-01041 The Honorable Lloyd Bentsen 02 April 1992 Page Two Another disappointment with Congress was its inability to predict the devastating effects of the luxury tax. Instead of increasing tax revenues, as promised by the Democrats, it put countless number of Americans (especially boat manufacturers) out of business. When will Congress learn that the most effective way to increase tax revenues is by creating jobs -- not raising taxes. The "politics of envy" preached by your party has got to stop now! I realize that serving as a Senator can be a thankless job. Your efforts in serving this particular constituent are appreciated; however, throw out the partisan politics in Washington, D.C. and help get this Country moving in the right direction again. With warmest regards, I remain Sincerely, Brett B. Boaz BB:pc 01-01042