PRINTER'S NO. 1576
No. 1365 Session of 1987
INTRODUCED BY COHEN, JOSEPHS, MARKOSEK, SAURMAN, STABACK, ITKIN,
RYBAK, MELIO, JOHNSON, KOSINSKI, KUKOVICH, BELARDI, LaGROTTA,
VEON, MAIALE, HOWLETT, BELFANTI, PISTELLA, FOX, GEIST, LUCYK,
FISCHER, ARTY, E. Z. TAYLOR, DURHAM, BALDWIN, PETRONE,
JACKSON, NAHILL, TRELLO, DeWEESE, ROEBUCK, GAMBLE, HUGHES,
J. TAYLOR, RITTER AND RUDY, MAY 12, 1987
REFERRED TO COMMITTEE ON LABOR RELATIONS, MAY 12, 1987
AN ACT
1 Amending the act of September 1, 1965 (P.L.459, No.235),
2 entitled "An act requiring that certain buildings and
3 facilities constructed with Commonwealth funds adhere to
4 certain principles, standards and specifications to make the
5 same accessible to and usable by the physically handicapped,
6 and providing for enforcement," further providing for
7 standards and the applicability of standards and for
8 enforcement; and making editorial changes.
9 The General Assembly of the Commonwealth of Pennsylvania
10 hereby enacts as follows:
11 Section 1. The title of the act of September 1, 1965
12 (P.L.459, No.235), entitled "An act requiring that certain
13 buildings and facilities constructed with Commonwealth funds
14 adhere to certain principles, standards and specifications to
15 make the same accessible to and usable by the physically
16 handicapped, and providing for enforcement," is amended to read:
17 AN ACT
18 Requiring that certain buildings and facilities [constructed
19 with Commonwealth funds] adhere to certain principles,
1 standards and specifications to make the same accessible to
2 and usable by [the physically handicapped ] persons with
3 physical handicaps, and providing for enforcement.
4 Section 2. Section 1 of the act, amended July 9, 1976
5 (P.L.928, No.176), is amended and the act is amended by adding
6 sections to read:
7 Section 1. Findings and Declaration of Policy.--The General
8 Assembly finds and declares as follows:
9 Many architectural barriers exist in the buildings and
10 facilities within this Commonwealth which impede access to and
11 use of these buildings by a sizeable segment of the population.
12 These architectural barriers effectively prohibit persons with
13 physical handicaps, both permanent and temporary, from pursuing
14 an education, entering the work force and enjoying cultural and
15 social activities. For persons with physical handicaps,
16 accessibility is a necessity which enables them to achieve
17 independence and freedom of movement. For many others, such as
18 senior citizens and small children, accessible features are
19 equally advantageous.
20 Therefore, in order to provide for the general welfare of all
21 citizens, all new construction of buildings, included within the
22 provisions of this act, shall be accessible to and usable by
23 persons with physical handicaps. As existing buildings are
24 remodeled, accessibility features shall be incorporated into
25 these buildings to the maximum extent feasible. It is recognized
26 by the General Assembly that the degree of accessibility
27 achievable when existing buildings are remodeled will, under
28 certain circumstances, be less than that possible in new
29 construction. When the incorporation of accessibility elements
30 in existing buildings results in an extreme hardship, then
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1 variances may be obtained.
2 It is the intent of the General Assembly that as many
3 buildings as possible be required to conform to the provisions
4 set forth in this act and in the regulations adopted pursuant to
5 it. Therefore, this act shall be broadly construed when
6 determining which buildings must comply with the statutory and
7 regulatory provisions. When determining which buildings are
8 excluded or exempt from the statutory and regulatory provisions,
9 this act shall be strictly construed.
10 Section 1.1. Definitions.--The following words and phrases
11 when used in this act shall have the meanings given to them in
12 this section unless the context clearly indicates otherwise:
13 "Accessible." Describes a building, building site or portion
14 thereof which complies with the specifications and standards
15 established by the Department of Labor and Industry and that can
16 be approached, entered and negotiated by persons with physical
17 handicaps. In the case of existing buildings, the department
18 under certain conditions may allow, by regulation or variance,
19 for a lesser degree of accessibility than that required for new
20 construction.
21 "Accessible route." A continuous unobstructed path which
22 connects all areas within a building and a building site that
23 can be negotiated by a person with a severe physical handicap
24 using a wheelchair and that is also safe for and usable by
25 people with other physical handicaps. Interior accessible routes
26 include, but are not limited to, corridors, floors, ramps,
27 elevators, lifts and clear floor space at fixtures. Exterior
28 accessible routes include, but are not limited to, parking
29 access aisles, curb cuts, walks, ramps and lifts.
30 "Building." All or a portion of a facility or structure
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1 wherein specific services are provided or activities are
2 performed. For purposes of this act, when a facility or
3 structure is used for residential purposes as well as
4 nonresidential purposes, then the areas occupied for each
5 purpose shall be treated as separate buildings.
6 "Building site." A parcel of land bounded by a property line
7 or a designated portion of a public right-of-way.
8 "Construction cost." The total cost or estimated cost of a
9 building, including all labor, materials and fixed equipment at
10 current market rates and a reasonable allowance for overhead and
11 profit for a building contractor, and excluding the cost of
12 architectural fees, other design consultant fees, and the cost
13 of the land. The owner or owner's agent shall provide the
14 construction cost to the department.
15 "Construction documents." Drawings, specifications or both
16 which delineate proposed construction or remodeling.
17 "Department." The Department of Labor and Industry of the
18 Commonwealth. In cities of the first class, second class and
19 second class A, "department" means the agency assigned the
20 responsibility of enforcing this act.
21 "Net floor area." The surface area included within the
22 surrounding walls of a building, including all areas occupied by
23 equipment or furnishings, and excluding vent shafts, elevator
24 shafts, fire towers and other areas as may be designated by
25 regulation.
26 "Persons with physical handicaps." Individuals who have a
27 physical impairment, including impaired sensory or manual
28 abilities, which results in a functional limitation in access to
29 and use of a building or facility.
30 "Public." Employees, visitors or any other persons who may
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1 be on the premises for a lawful purpose.
2 "Remodeled," "remodeling," "remodels." Renovated,
3 reconstructed, altered or added to. The Department of Labor and
4 Industry may, by regulation, exclude specifically from this
5 definition minor repairs and necessary maintenance which do not
6 affect the accessibility or usability of a building by persons
7 with physical handicaps.
8 "Secretary." The Secretary of Labor and Industry of the
9 Commonwealth. In cities of the first class, second class and
10 second class A, "secretary" means the administrative head of the
11 agency assigned the responsibility of enforcing this act.
12 "Variance." The permitted use of a standard or specification
13 which differs in degree or measurement from the requirements of
14 this act or regulations adopted pursuant to it or a permitted
15 alternative solution to a design problem.
16 "Worth of the building." The current fair market value of
17 the building prior to the remodeling as can be reasonably
18 determined from a table of standard values established by the
19 Department of Labor and Industry or from an appraisal provided
20 by the owner or owner's agent.
21 Section 1.2. Applicability of Standards. (a) Government
22 Buildings.--The standards and specifications set forth in this
23 act and in regulations adopted pursuant to it shall apply to all
24 buildings used by the public, including, but not limited to,
25 buildings of assembly, educational institutions, polling sites
26 and office buildings which are constructed, leased or remodeled
27 on or after the effective date of this act, in whole or in part,
28 by the use of Commonwealth funds[,] or the funds of any
29 instrumentality or political subdivision of the Commonwealth [or
30 which are leased by the Commonwealth or an instrumentality
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1 thereof by reason of a lease executed after December 31, 1974
2 and shall also apply to].
3 (b) Private Buildings.--The standards and specifications set
4 forth in this act and in regulations adopted pursuant to it
5 shall also apply to any building used by the public that is
6 constructed or remodeled on or after the effective date of this
7 act, including, but not limited to:
8 (1) Factories, powerplants, mercantile buildings, shopping
9 centers, department stores, [theaters,] retail stores, [sports
10 arenas and to] restaurants with sit-down, interior dining
11 facilities [constructed after the effective date of this
12 amending act: Provided, however, That the provisions of this act
13 shall not apply to any department store, theater, retail store,
14 sports arena and other buildings that are constructed and
15 contain less than 2,800 square feet of usable floor space. All
16 Commonwealth financed or leased buildings and facilities
17 constructed or leased in this Commonwealth shall conform to each
18 of the standards and specifications prescribed herein. All
19 department stores, theaters, retail stores and sports arenas for
20 which contracts for the planning and/or design have been awarded
21 prior to the effective date of this amending act shall be
22 exempt.], hotels, motels, office buildings, financial
23 institutions, hospitals, public and private institutions,
24 convalescent and nursing homes, schools, colleges, dormitories,
25 auditoriums, gymnasiums, transportation stations and terminals,
26 warehouses and garages.
27 (2) Theaters, motion picture theaters, museums, concert
28 halls and summer stock theaters.
29 (3) Public halls, dance halls, banquet halls, lodge halls,
30 skating rinks, armory halls or any other type of auditorium
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1 where the public assembles.
2 (4) Places of worship.
3 (5) Apartment houses, multistory condominium complexes,
4 multifamily dwellings housing more than four families,
5 clubhouses, lodging houses and rooming houses.
6 (6) Grandstands, sports arenas, stadiums and amphitheaters.
7 (7) Any other building, facility or complex used by the
8 public.
9 (c) Building Sites.--The standards and specifications set
10 forth in this act and in regulations adopted pursuant to it
11 shall also apply to building sites for a building or facility to
12 which this act applies. Such building sites shall provide an
13 accessible route.
14 Section 1.3. Degree of Conformity. (a) New Buildings.--All
15 new construction, begun on or after the effective date of this
16 act, of buildings and building sites which must comply with this
17 act pursuant to section 1.2 shall be accessible to and usable by
18 persons with physical handicaps. New construction of buildings
19 and building sites for which the contracts for the planning,
20 design or both have been awarded prior to the effective date of
21 this act shall not be construed as having begun construction on
22 or after the effective date of this act.
23 (b) Existing Buildings.--
24 (1) Except as provided in paragraph (2), all remodeling,
25 begun on or after the effective date of this act, of buildings
26 and building sites which must comply with this act pursuant to
27 section 1.2 shall be accessible to and usable by persons with
28 physical handicaps to the degree required as follows:
29 (i) When the construction cost of the remodeling is less
30 than 30 percent of the worth of the building, only the remodeled
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1 area or areas shall be made accessible to and usable by persons
2 with physical handicaps. An accessible route to the remodeled
3 area or areas is not required.
4 (ii) When the construction cost of the remodeling is greater
5 than or equal to 30 percent but less than 50 percent of the
6 worth of the building, the remodeled area or areas shall be made
7 accessible to and usable by persons with physical handicaps and
8 an accessible route to the remodeled area or areas shall be
9 provided. The cost of providing an accessible route to the
10 remodeled area or areas shall not be considered when calculating
11 the required degree of conformity.
12 (iii) When the construction cost of the remodeling is 50
13 percent or more of the worth of the building, the entire
14 building and building site shall be made accessible to and
15 usable by persons with physical handicaps.
16 (iv) When any series of remodeling is made to a building
17 over any three-year period which accumulates in a series of
18 construction costs which total 30 percent or more but less than
19 50 percent of the worth of the building at the beginning of the
20 three-year period, the remodeled areas shall be made accessible
21 to and usable by persons with physical handicaps and an
22 accessible route to the areas shall be provided. When any series
23 of remodeling is made to a building over any three-year period
24 which accumulates in any series of construction costs which
25 total 50 percent or more of the worth of the building at the
26 beginning of the three-year period, the entire building and
27 building site shall be made accessible to and usable by persons
28 with physical handicaps.
29 (2) Remodeling of buildings and building sites for which the
30 contracts for the planning, design or both have been awarded
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1 prior to the effective date of this act shall not be construed
2 as having begun construction on or after the effective date of
3 this act.
4 (c) Government Leased Buildings or Building Space.--Within
5 one year after promulgation of the regulations necessary to
6 carry out this act, the lessor shall lease a building or
7 building space which is accessible to and usable by persons with
8 physical handicaps when such building or building space is
9 leased, in whole or in part, by the use of Commonwealth funds,
10 the funds of any instrumentality of the Commonwealth or the
11 funds of any political subdivision of the Commonwealth. When
12 only a part of a building is being leased, an accessible route
13 shall be provided to the leased space.
14 Section 1.4. Exclusions. (a) Single-family and Multifamily
15 Dwellings.--Single-family and multifamily dwellings which are
16 exclusively residential and which house four or fewer families
17 are excluded from the requirements of this act.
18 (b) Certain New Construction.--In new construction of a
19 private building as described in section 1.2(b) with less than
20 2,800 square feet of net floor area, only the ground level floor
21 of the building must be accessible to and usable by persons with
22 physical handicaps. Existing private buildings that have less
23 than 2,800 square feet of net floor area are excluded from the
24 requirements of this act. If an existing private building is
25 remodeled in such a way so that the resulting net floor area
26 upon completion of the remodeling will be 2,800 square feet or
27 more, then the building must comply with the requirements of
28 this act and be accessible to and usable by persons with
29 physical handicaps to the degree required by section 1.3.
30 (c) Designated Historic Buildings.--Accessibility provisions
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1 which the department determines cannot be accomplished without
2 threatening or destroying the historic significance of the
3 building which has been identified and classified by the
4 Pennsylvania Historical and Museum Commission as historic are
5 not required.
6 (d) Comparable Service Areas.--In the case of remodeled
7 construction, an accessible route need not be provided to the
8 remodeled area where an occupant offers goods and services that
9 are comparable to those the occupant offers elsewhere in the
10 building in an accessible area. The department shall determine
11 if goods and services are comparable.
12 (e) Certain Special Purpose Spaces.--Accessibility
13 provisions are not required in the following special purpose
14 spaces: elevator pits, elevator penthouses, mechanical rooms,
15 piping or equipment catwalks, electrical or telephone closets,
16 general utility rooms, walk-in freezers and fur vaults. The
17 department may also, by regulation, identify additional building
18 spaces used for special purposes which may be exempt from
19 complying with all or part of the rules and regulations
20 promulgated pursuant to this act. In addition, compliance with
21 the provisions of this act and regulations promulgated pursuant
22 to it is not required in areas where only employees have
23 occasion to enter and within which the work cannot reasonably be
24 performed by a person with a physical handicap because of the
25 nature of the abilities required.
26 Section 3. Section 2 of the act is repealed.
27 Section 4. Section 3 of the act is amended to read:
28 Section 3. [Enforcement.--The Department of Labor and
29 Industry shall be responsible for enforcement of this act.]
30 Powers and Duties of Department. (a) Regulatory Powers.--The
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1 department shall promulgate rules and regulations necessary to
2 carry out the purposes of this act and establish specifications
3 and standards for applicable buildings and building sites. In so
4 doing, the department shall consult with the Advisory Board
5 created under section 3.1. When formulating rules and
6 regulations, the department, in consultation with the Advisory
7 Board, shall consider the standards published in the latest
8 edition of the American National Standards Institute (ANSI), the
9 Architectural and Transportation Barriers Compliance Board
10 (ATBCB), the Uniform Federal Accessibility Standards (UFAS), and
11 other applicable recognized barrier-free design and construction
12 standards.
13 (b) Approval of Plans.--It shall be the duty of the owner or
14 owner's agent of every building or building site covered by this
15 act, hereafter constructed or remodeled, to submit to the
16 department for approval construction documents, requests for
17 variances or other data required by the department showing
18 compliance with the provisions of this act and with regulations
19 adopted pursuant to it. No building or building site covered by
20 this act shall be constructed or remodeled until approval has
21 been given by the department.
22 (c) Review of Variance Requests.--Construction documents
23 that, due to special circumstances, request variances from the
24 requirement of this act and the regulations promulgated under it
25 shall be reviewed and acted upon by the Advisory Board before
26 the department takes final action. The department may grant a
27 variance if it finds all of the following:
28 (1) Compliance with the provisions of this act and
29 regulations promulgated under it would result in an extreme
30 hardship which may include, but is not limited to, instances
19870H1365B1576 - 11 -
1 where compliance would result in prohibitive costs or a conflict
2 with local zoning ordinances or where compliance is not feasible
3 due to inherent dimensional, structural or other physical
4 constraints.
5 (2) The extreme hardship has not been created by the
6 applicant.
7 (3) The terms of the variance are consistent with the intent
8 of this act. In existing buildings the terms of a variance may
9 exempt a portion of the remodeled area from a requirement of
10 this act and regulations adopted pursuant to it.
11 (d) Issuance of Certificate of Occupancy.--The department
12 shall not issue a permit authorizing the use or occupancy of a
13 building until the department finds that the building complies
14 with the requirements of this act and regulations promulgated
15 pursuant to it.
16 (e) Enforcement.--
17 (1) If a governmental agency or the owner or owner's agent
18 of a building covered by this act fails to obtain approval from
19 the department, and nevertheless proceeds with construction or
20 remodeling of the building, this shall constitute a violation of
21 this act, and the department shall serve notice on the agency or
22 owner or owner's agent. The department may order the agency,
23 owner or owner's agent to cease all work on the building
24 immediately. When the department orders all work to cease on a
25 building, a notice shall be placed at the building site
26 prohibiting the continuation of work being performed until
27 approval is given by the department.
28 (2) If a building covered by this act shall be constructed,
29 remodeled or leased in violation of any provisions of this act
30 or of the regulations promulgated under it, a written order
19870H1365B1576 - 12 -
1 shall be served by the department upon the particular
2 governmental agency or private owner or the owner's agent
3 identifying the conditions which constitute the violation,
4 directing their correction within reasonable and specified time
5 periods and notifying the agency, owner or owner's agent of
6 appeal rights as set forth below.
7 (3) An order issued by the department pursuant to this act
8 may be appealed to the secretary within 30 days of issuance. The
9 appeal may include an application for a variance. The secretary
10 shall consider the guidelines and recommendations of the
11 Advisory Board and issue an adjudication in accordance with
12 Title 2 of the Pennsylvania Consolidated Statutes (relating to
13 administrative law and procedure).
14 (4) The department may secure enforcement of its orders or
15 other appropriate relief through the courts of common pleas.
16 Enforcement of a departmental order shall be initiated by the
17 filing of a complaint in the appropriate court and issuance and
18 service of a copy of the complaint as in proceedings in equity.
19 (5) A governmental agency or private owner who violates a
20 provision of this act or of the regulations promulgated under it
21 and who fails or refuses to observe orders issued by the
22 department for enforcement of this act or regulations
23 promulgated under it shall be subject to a fine of not more than
24 $300 for each day that the violation continues. Prosecutions for
25 violations of this act or regulations of the department shall be
26 in the form of summary criminal proceedings. Upon conviction,
27 after a hearing, these penalties shall be imposed and shall be
28 final unless an appeal be taken in the manner prescribed by law.
29 (6) Cities of the first class, second class and second class
30 A shall be responsible for the enforcement of this act.
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1 Section 5. Section 3.1 of the act, added July 9, 1976
2 (P.L.928, No.176), is amended to read:
3 Section 3.1. Advisory Board[, Guidelines, Exemptions].--(a)
4 Creation and Composition.--There is hereby created an Advisory
5 Board which shall be composed of [five] seven members appointed
6 by the [Secretary of Labor and Industry] secretary. At least
7 [three] five members of the Advisory Board shall be [consumers
8 and shall be] public members, three of whom shall be persons
9 with physical handicaps and one shall be an architect registered
10 in Pennsylvania and one shall be a member of the business
11 community. All members of the Advisory Board shall serve for a
12 term of two years and until their successors are appointed [and
13 qualified]. The members of the Advisory Board shall [serve
14 without compensation but shall be reimbursed by the Department
15 of Labor and Industry for the necessary and actual expenses
16 incurred in attending the meeting of the Advisory Board and] be
17 paid traveling expenses and other necessary expenses and may
18 receive a per diem compensation at a rate to be determined by
19 the secretary for each day of actual service in the performance
20 of their duties under this act. Meetings of the Advisory Board
21 shall be called by the [Secretary of Labor and Industry]
22 secretary.
23 (b) Preparation of Guidelines.--The Advisory Board shall
24 review the principles, standards and specifications of this act
25 and the regulations adopted pursuant to it and the impact of
26 this act and its regulations on entities affected by its
27 coverage and shall develop guidelines under which [exemptions
28 and] variances from the provisions of this act and regulations
29 adopted pursuant to it may be granted.
30 (c) Recommendations for Variances.--The Advisory Board shall
19870H1365B1576 - 14 -
1 review all applications for [exemptions and] variances from the
2 provisions of this act and from regulations adopted pursuant to
3 it and shall advise the [Secretary of Labor and Industry]
4 secretary on whether [an exemption or] a variance should be
5 granted.
6 (d) Consideration of Guidelines and Recommendations by the
7 Secretary.--The [Secretary of Labor and Industry] secretary may
8 grant a variance [or exemption] from the provisions of this act
9 and from regulations adopted pursuant to it. When determining
10 whether to grant [an exemption or] a variance, the secretary
11 shall consider the guidelines of the [board] Advisory Board and
12 its recommendations on the particular applications.
13 Section 6. The act is amended by adding a section to read:
14 Section 3.2. Private Right of Action.--(a) Citizen
15 Complaints.--Any individual, partnership, agency, association or
16 corporation who believes there is a violation of this act or
17 regulations promulgated pursuant to it by a governmental agency
18 or private owner may file a complaint with the department. The
19 complaint shall be in writing, verified and shall set forth the
20 grounds for the complaint. Within 60 days after receipt of the
21 complaint, the department shall acknowledge receipt of the
22 complaint in writing, investigate it and respond to the
23 complainant in writing with its findings, determinations and any
24 enforcement measures initiated or contemplated. For the purpose
25 of investigating a complaint an employee of the department may
26 inspect at reasonable times the building or building site which
27 is the subject of the complaint and may make any additional
28 investigation deemed necessary for the full and effective
29 determination of compliance with this act and regulations
30 promulgated pursuant to it.
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1 (b) Judicial Review.--Any individual, partnership, agency,
2 association or corporation aggrieved by a final determination of
3 the department may file a petition for review within 30 days of
4 the final determination in the Commonwealth Court pursuant to 42
5 Pa.C.S. Section 763(a) (relating to direct appeals from
6 government agencies). The decision of the department shall not
7 be reversed or modified unless it is found to be arbitrary,
8 capricious, illegal or not supported by substantial evidence.
9 (c) Original Action.--Any individual, partnership, agency
10 association or corporation who filed a complaint pursuant to
11 subsection (a) and received no written response from the
12 department within the stated time, or received a response from
13 the department indicating that a violation was found but
14 enforcement measures were not contemplated or enforcement
15 measures were contemplated but such measures were not initiated
16 after a period of 60 days from said response may either bring
17 suit in the Commonwealth Court against the department for
18 failure to enforce the provisions of this act and regulations
19 promulgated pursuant to it or may bring a civil action in the
20 appropriate court of common pleas against the building owner or
21 owner's agent for a violation of any provisions of this act or
22 regulations promulgated pursuant to it.
23 If the court finds a violation of this act or of regulations
24 adopted pursuant to it, the court may enjoin construction or
25 remodeling of the building, direct the correction of violations
26 within a reasonable and specified time period or order such
27 other relief deemed appropriate. The court, in issuing any final
28 order in any action brought pursuant to this section, may award
29 costs of litigation (including attorney and expert witness fees)
30 to any party, whenever the court determines such award is
19870H1365B1576 - 16 -
1 appropriate. The court may, if a temporary restraining order or
2 preliminary injunction is sought, require the filing of a bond
3 or equivalent security in accord with the Rules of Civil
4 Procedure.
5 Section 7. The Department of Labor and Industry shall
6 promulgate the rules and regulations required under section 4
7 (section 3(a) of the act) within 305 days of the effective date
8 of this act.
9 Section 8. The provisions of section 2214(c) of the act of
10 April 9, 1929 (P.L.177, No.175), known as The Administrative
11 Code of 1929, shall not apply to this act, and the Industrial
12 Board shall not review the rules and regulations promulgated
13 under this act.
14 Section 9. This act shall take effect as follows:
15 (1) Section 3 of this act shall take effect upon
16 promulgation of the rules and regulations required under
17 section 4 (section 3(a) of the act).
18 (2) The remainder of this act shall take effect in 60
19 days.
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