MAR 19 1997

The Honorable Jane Harman

Member, U. S. House of Representatives
1217 El Prado Avenue
Torrance, California 90501

Dear Congresswoman Harman:

I am responding to your letter on behalf of your

constituent, David Raizman, asking for clarification of the
requirements of the Americans with Disabilities Act of 1990 (ADA)
with respect to the installation of accessible freeway call
boxes. Mr. Raizman has asked you to determine if the ADA
requires a public entity to modify or replace inaccessible call
boxes in the absence of a specific Federal design standard for
this type of equipment.

Title II of the ADA prohibits discrimination on the basis of

disability in the programs, activities, and services of public
entities, including public agencies responsible for freeway
design, maintenance, and operations. Therefore, programs and
services offered to motorists must be accessible to motorists who
have disabilities. This program access obligation applies
regardless of whether a specific Federal design standard has been
issued for unique elements such as emergency call boxes.

In the absence of specific Federal requirements applicable

to the design of emergency call boxes, a public entity may rely
on the general accessible design criteria contained in the ADA
Standards for Accessible Design (28 CFR pt. 36, Appendix A) and
the Uniform Federal Accessibility Standards (41 CFR SS 101-19.600
to 101-19.607). Both of these standards provide guidance to
public entities concerning design considerations for accessible
routes, clear space, reach ranges, and operating mechanisms.
In addition, the existing Federal standards and the enclosed
Department of Justice regulations (28 CFR pts. 35 and 36) offer
guidance about factors to consider in developing accessible
emergency communication devices that will provide effective
communication for people who have vision, speech, or hearing
impairments.

cc: Records, Chrono, Wodatch, McDowney, Blizard, FOIA

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The ADA expressly provides that covered entities must comply

with State or local laws or regulations that provide greater or
equal access for individuals with disabilities. Therefore, if
the State of California has established specific design standards
for accessible call boxes, those standards should be followed
unless or until they are superseded by more stringent Federal
standards. Public entities should note that any Federal
standards for the new construction or alteration of freeway call
boxes will be prospective in application. They will not require
the replacement of accessible equipment installed prior to the
effective date of the standards. Existing equipment is required
to be replaced only when the existing equipment fails to provide
effective access to the public entity's program.

I hope that this information is helpful to you in responding

to your constituent.

Sincerely,

Isabelle Katz Pinzler

Acting Assistant Attorney General
Civil Rights Division

Enclosures

WLCDR The Western Law Center For Disability Rights

919 South Albany Street, Los Angeles, CA 90015, Phone & TDD (213) 736-1031
Fax (213) 736-1428

November 22, 1996

The Honorable Jane Harman

Member, U.S. House of Representatives
Torrance District Office
1217 El Prado
Torrance, California 90501

Re: Inquiry to Department of Justice

Dear Congresswoman Harman:

 The Western Law Center for Disability Rights is a non-profit
organization that provides legal and mediation services to persons
with disabilities throughout California, including thousands in
your district. Many of those we serve are concerned about Los
Angeles County's 4,300 emergency freeway call boxes, all of which
are inaccessible to persons with hearing and speech impairments and
many of which are inaccessible to wheelchair users.

As you know, the "public entity" provisions of the Americans

with Disabilities Act ("ADA" -- 42 U.S.C. S 12133) and earlier
federal (i.e., the Rehabilitation Act -- 29 U.S.C. S 794) and state
civil rights laws (i.e., California Civil Code Section 54)
guarantee persons with disabilities free and equal access to
precisely these kinds of benefits and services of state and local
governments.

Nevertheless, the responsible State and County agencies have

taken the position that they need not comply with these statutory
mandates and the implementing regulations because of a specific,
pending "guideline" proposed as an Interim Final Rule in June 1994
by the Architectural and Transportation Barriers Compliance Board
(the "Access Board"). See 36 C.F.R. pt. 1191, App. A, S 14.2.6(4).
Specifically, they say any dispute involving the pending call box
guideline is "unripe" for adjudication because there can be no
current obligation on their parts to do anything.

Meanwhile, disabled motorists in Los Angeles County and across

the State and nation continue to ride our freeways without the
benefit of access to the emergency aid made available at the call
boxes.

The Honorable Jane Harman

November 22, 1996

Those persons we serve would like to have a better

understanding of whether the continued pendency of this guideline
(we have learned from the Access Board that they no longer are
pressing for its finalization) in fact abridges the free and equal
access rights guaranteed under the ADA, Rehabilitation Act and
California Civil Code Section 54. Specifically, they have the
following questions of the appropriate interpretation of these
laws:

(1) What effect, if any, does the pendency of a specific

 Access Board guideline have on obligations incurred or
rights provided under:

(a) 42 U.S.C. S 12133?

(b) 28 C.F.R. pt. 35 (see, e.g., 28 C.F.R. SS
35.130(b) (1) (iii), 35.130(b) (4), 35.151, 35.161,
35.162)?
(c) more general, but active and applicable
accessibility guidelines under the ADA
Accessibility Guidelines (36 C.F.R. pt. 1191, App.
A) (see, e.g., 36 C.F.R. pt. 1191, App. A, SS 4.2,
4.2.1, 4.2.3, 4.2.5, 4.2.6, 4.3, 4.5, 4.6, 4.10.14,
4.27, 4.28, 4.31)?
(d) more general, but active and applicable
accessibility guideliness under the Uniform
Accessibility Standards (41 C.F.R. pt. 101-19,
subpt. 101-19.6, App. A) (see, e.g., 41 C.F.R. pt.
101-19, subpt. 101-19.6, App. A, SS 4.2, 4.2.1,
4.2.3, 4.2.5, 4.2.6, 4.3, 4.5, 4.6, 4.10.14, 4.27,
4.28, 4.31)?
(e) preceding and broader mandates under California law
(see, e.g., Cal. Civ. Code S 54)?

(2) Does the answer to any question posed in Number (1) above
change if it is shown that the pending guideline in the
form of an Interim Final Rule has been withdrawn from
consideration by the Access Board?

The Honorable Jane Harman

November 22, 1996

(3) Assume for purposes of this question that the appropriate

State and County agencies agreed to commence remediation
of the call box system before the pending guideline was
finalized, further assume that the guideline was
finalized during the remediation process and further
assume that the finalized guideline required additional
or different standards than those undertaken by the
governmental entities: could these governmental entities
be made to comply with the new, finalized guideline on a
retroactive basis either with respect to:
 (a) those call boxes that they have already remediated?
(b) those call boxes that they have yet to remediate,
but have concrete plans and budgets to undertake
that remediation?

(4) Is there any obligation under 42 U.S.C. S 12204 for the

Access Board to propose a design standard for any
particular facility or device, such as a freeway call
box?

The answers to these questions would prove quite valuable to

those we serve in assessing whether they must continue to wait for
the Access Board to act or whether they have an immediate ability
to enforce their rights dating back to 1968 and Section 54 of the
California Civil Code.

Thank you for considering this request. We would be glad to

answer any questions posed by you or your staff, including any
requests for further elaboration.

Very truly yours,

David H. Raizman
Executive Director

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