525-RICR-10-00-4
525-RICR-10-00-4. Investigation and Hearing of Complaints (version Adoption, 12/17/2002 to 10/09/2003)
Regulations for Investigation / Hearings under RIGL 42-87-5(b)
Page 1
Chapter O Investigation and Hearing of Complaints relating to alleged
1
violations of the Civil Rights of People with Disabilities relating to the
2
physical inaccessibility of buildings and structures1
3
4
I.
STATUTORY AUTHORITY RI GL 42-87-5 (b)Civil Rights Of People With
5
Disabilities: Enforcement Of Anti-Discrimination Provisions.................................. 1
6
II.
DEFINITIONS................................................................................................. 1
7
II.
FILING A COMPLAINT................................................................................. 2
8
III.
STANDARDS FOR DETERMINING VIOLATIONS................................. 4
9
IV.
INVESTIGATION ....................................................................................... 6
10
V.
CONCILIATION ............................................................................................. 6
11
VI.
HEARING.................................................................................................... 7
12
VII.
DECISIONS AND ORDERS ......................................................................10
13
VIII.
ADMINISTRATIVE DISMISSAL OF COMPLAINTS..............................11
14
IX.
COMPLAINTS COVERED BY MULTIPLE JURISDICTION ..................12
15
X.
COMPLAINTS FILED PRIOR TO AUGUST 1, 2002 ...................................14
16
XI.
FORMS.......................................................................................................14
17
XII.
APPENDIX.................................................................................................15
18
I.
STATUTORY AUTHORITY RI GL 42-87-5 (b) 2Civil Rights Of People With
19
Disabilities: Enforcement Of Anti-Discrimination Provisions
20
II.
DEFINITIONS
21
A. “Complainant” means the individual or organization alleging non-compliance with the
22
provisions of Title 42 of Chapter 87 of the General Laws of Rhode Island relating to the
23
physical inaccessibility of buildings and structures that files a complaint with the
24
Commission.
25
B. “Respondent” means a person against whom a complaint has been filed, or against
26
whom a complaint has been issued.
27
C. “Discriminate” has, but is not limited to, the following definitions: segregate, separate or
28
according different treatment.
29
D. “Unlawful Discriminatory Practice” means any act or acts prohibited by Title 42 of
30
Chapter 87 of the General Laws of Rhode Island, relating to the physical inaccessibility of
31
buildings and structures including the continuing present effects of past unlawful
32
discriminatory practices
33
E. “Complaint” means a written statement made under oath alleging that any person has
34
engaged in or is engaging in unlawful discriminatory practices and that has been filed
35
pursuant to Rule III of Chapter O of the Commission Rules and Regulations.
36
Regulations for Investigation / Hearings under RIGL 42-87-5(b)
Page 2
F. “Party or Parties” includes the complainant or complainants, the respondent or
1
respondents and other persons joined pursuant to Rule VII E of the Commission Rules and
2
Regulations.
3
G. “Predetermination Settlement” means any settlement occurring prior to a ruling by the
4
Preliminary Investigating Commissioner.
5
H. “Conciliation” means a process to achieve a just resolution of the complaint
6
I. “The Commission” shall mean the Governor’s Commission on Disabilities3.
7
J. “The Hearing Board” shall mean a committee of three (3) or more Commissioners
8
appointed by the Commission Chairperson for the purpose of conducting hearings pursuant
9
to Title 42, Chapter 87, Section 5(b) of the General Laws of the State of Rhode Island.
10
K. The term ““Commercial Facility”4, mean the same as defined in the Americans with
11
Disabilities Act, Title III Regulation 28 CFR 35.
12
L. The term “public accommodation” includes the terms “Private Entity”5, “Place of Public
13
Accommodation”6, “Private clubs”7 and “religious entities”8 as defined in the Americans with
14
Disabilities Act, Title III Regulation 28 CFR 36. Private clubs and religious entities, while
15
exempt from coverage under the Americans with Disabilities Act (except to the extent that
16
the facilities of the private club are made available to customers or patrons of a place of
17
public accommodation), are not exempt from compliance with Title 42 Chapter 87 of the
18
General Laws of the State of Rhode Island.
19
M. The term “Public Entity”9 shall mean the same as defined in the Americans with
20
Disabilities Act, Title II Regulation 28 CFR 35.
21
N. The term “Employer” shall mean a person engaged in an industry affecting commerce,
22
any person or entity receiving financial assistance from the state, or doing business with the
23
state, or the state or its political subdivisions, who as one or more employees for each
24
working day in each of 20 or more calendar weeks in the current or preceding calendar year,
25
and any agent of such person10.
26
II.
FILING A COMPLAINT
27
A. Who May File.
28
1. Any person(s) or organization(s) who claims to be aggrieved by an alleged
29
discriminatory practice may make, sign and file a written complaint with the
30
Commission at any of its offices. Assistance in drafting and filing complaints shall be
31
available to complainants at the Commission office. The complaint shall be in writing.
32
The original complaint, signed and verified by the complainant before a notary public
33
or other person duly authorized by law to administer oaths, shall be filed with the
34
Commission. The Commission shall furnish notary services, when available, without
35
charge.
36
B. Content of Complaint.
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Regulations for Investigation / Hearings under RIGL 42-87-5(b)
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1. A Complaint shall contain, as a minimum, the following:
1
a) The full name and address of the person making the complaint;
2
b) The full name and address of the person or entity or entities against whom the complaint
3
is made (hereafter referred to as the respondent) and if known the names of the entity’s
4
manager and any witnesses involved;
5
c) A concise statement of facts which complainant believes indicates an unlawful
6
discriminatory practice has occurred (including a description of the physical inaccessibility of
7
the buildings and structures, causing the discrimination);
8
d) The date or dates of the alleged unlawful discriminatory practice or, if the alleged
9
unlawful discriminatory practice is of a continuing nature, the dates between which said
10
continuous acts are alleged to have occurred;
11
e) Relief being sought and
12
f) A statement as to any proceeding or action, civil or criminal, instituted in any other forum
13
based upon the same facts or grievances as are alleged in the complaint together with a
14
statement as to the status or disposition of each other action or proceeding.
15
C. A complaint shall be filed with the Commission.
16
D. Withdrawal of Complaint.
17
1. The complainant thereof may withdraw a complaint or any part at any time prior to
18
final disposition of the complaint by conciliation or the issuance of a notice of hearing
19
by the Commission. Written notice of withdrawal must be given to the Commission
20
before withdrawal is effective.
21
E. Other Forms and Amendment of Complaints.
22
1. Notwithstanding the provisions of Sections III C and D of Chapter O of the
23
Commission Rules and Regulations, a complaint is deemed filed when the
24
Commission receives from a person a written statement sufficiently precise to identify
25
the parties and to describe generally the action or practices complained of. A complaint
26
or any part thereof may be amended to cure technical defects or omissions, including
27
failure to swear to the complaint, or to clarify and amplify allegations made therein,
28
and such amendments relate back to the original filing date; provided, however, an
29
amendment alleging additional acts constituting unlawful discriminatory practices not
30
related to or growing out of the subject matter of the original complaint will be
31
permitted only where, at the date of the amendment, the allegation could have been
32
timely filed as a separate complaint.
33
F. Joinder of Parties in Same Complaint.
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1. Persons complaining of unlawful discriminatory practices arising out of the same
1
transaction, occurrence, or succession or series of transactions or occurrences may join
2
as complainants in a single complaint. All persons charged with unlawful
3
discriminatory practices arising out of the same transaction, occurrence or succession
4
or series of transactions may be joined as respondents in the same complaint.
5
G. Service of Complaint.
6
1. Notice of the complaint and a copy of the complaint shall be mailed by certified
7
mail to the respondent within10 business days of the receipt of the complaint by the
8
Commission.
9
III.
STANDARDS FOR DETERMINING VIOLATIONS
10
A. Standards for Determining Which Elements of Public Accommodations and Commercial
11
Facilities Must be Accessible {Are in the Appendix}
12
1. For public accommodations whose most recent certificate of occupancy for the
13
facility was issued prior to January 27, 1993 or the most recent physical alteration of
14
the property began prior to January 27, 199211 the elements which must be accessible
15
are those listed in 28 CFR 36.304 “Removal of barriers”12 28 CFR 36.305
16
“Alternatives to barrier removal” 13, 28 CFR 36.306 “Personal devices and services”14,
17
and 28 CFR 36.308 “Seating in assembly areas”15 (Americans with Disabilities Act
18
Title III Regulations issued by the US Department of Justice).
19
2. For the public accommodation whose first certificate of occupancy for the facility is
20
issued after January 26, 1993 or if the physical alteration of the property begins after
21
January 26, 1992 the elements which must be accessible are the 28 CFR 36 Subpart D
22
“New Construction and Alterations” 16.
23
3. For commercial facilities occupied prior to January 26, 1993 or last alteration of the
24
property began prior to January 26, 1992, the elements which must be accessible are
25
limited to those required for employees with disabilities who need reasonable
26
accommodations that requires physical accessibility as required by 29 CFR 1630.9
27
(Americans with Disabilities Act Title I Regulations issued by the US Equal
28
Employment Opportunity Commission).
29
4. For commercial facilities whose first certificate of occupancy for the facility is
30
issued after January 26, 1993 or if the physical alteration of the property begins after
31
January 26, 199217 the standard for accessibility will be the State Building Code’s (and
32
the Americans with Disabilities Act or Federal Fair Housing) Accessibility Standard
33
for New Construction applicable at the time of construction, renovation or alteration to
34
the portions of the building or structures cited in the complaint.
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5. For commercial facilities located in private residences, the accessibility standard
1
will conform to 28 CFR 36.401 “New construction (b) Commercial facilities located in
2
private residences”18 provision of 28 CFR 36 Subpart C.
3
6. Exception for structural impracticability will conform to the provisions of 28 CFR
4
36.401 “New Construction (c) Exception for structural impracticability”19.
5
7. Elevator exemptions will conform to the provisions of 28 CFR 36.401 “New
6
Construction (d) Elevator exemptions”20.
7
8. The standard for public accommodations or commercial facilities with physical
8
alteration of the property begun after January 26, 1992, the accessibility standard will
9
conform to 28 CFR 36.402 “Alterations” 21, 36. 403 “Alterations: Path of travel”22,
10
36.404 “Alternations: Elevator exemption”23, and 36.405 “Alterations: Historic
11
preservation”24.
12
B. The accessibility standard for construction and alterations
13
1. The standard specified in 28 CFR 36.406 “Standards for new construction and
14
alterations”25 is the Americans with Disabilities Act Accessibility Guidelines for
15
Buildings and Facilities (ADAAG), which is also the basis of the RI State Building
16
Code’s Accessibility Standard.
17
C. Standards for Public Entities
18
1. No qualified individual with a disability shall, because a public entity's facilities are
19
inaccessible to or unusable by individuals with disabilities, be excluded from
20
participation in, or be denied the benefits of the services, programs, or activities of a
21
public entity, or be subjected to discrimination by any public entity.
22
2. As required by 28 CFR 35.150 “Existing facilities”26, public entities in facilities
23
whose most recent construction or alteration was commenced prior to January 27, 1992
24
the public entity shall operate each service, program, or activity so that the service,
25
program, or activity, when viewed in its entirety, is readily accessible to and usable by
26
individuals with disabilities. This does not necessarily require a public entity to make
27
each of its existing facilities accessible to and usable by individuals with disabilities.
28
For public entities that are recipients of federal financial assistance, the most recent
29
construction or alteration must have commenced prior to the effective date of their
30
federal funding source(s) Section 504 regulations.
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Regulations for Investigation / Hearings under RIGL 42-87-5(b)
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3. As required by 28 CFR 35.151 “New construction and alterations”27 each facility or
1
part of a facility constructed by, on behalf of, or for the use of a public entity shall be
2
designed and constructed (or altered) in such manner that the facility or part of the
3
facility is readily accessible to and usable by individuals with disabilities, if the
4
construction or alteration was commenced after January 26, 1992. For public entities
5
that are recipients of federal financial assistance, the all construction or alteration
6
commenced after the effective date of their federal funding source(s) Section 504
7
regulations must meet the federal accessibility standards of that funding source28.
8
4. The accessibility standard specified in 28 CFR 35.151 is the Uniform Federal
9
Accessibility Standards (UFAS) or with the Americans with Disabilities Act
10
Accessibility Guidelines for Buildings and Facilities (ADAAG). Public entities are
11
also required to conform to the provisions of 28 CFR 35.163 Information and
12
signage29.
13
IV.
INVESTIGATION
14
A. The Commission shall investigate all complaints relating to alleged violations of Title 42,
15
Chapter 87, Section 5 (b) of the General Laws of Rhode Island relating to the physical
16
inaccessibility of buildings and structures30.
17
1. The Commission’s staff will conduct an on-site inspection of the portion(s) of the
18
buildings and structures cited in the complaint and provide the respondent and
19
complainant a written report of the results of that on-site inspection.
20
2. The inspection shall be conducted in a manner consistent the application,
21
exemptions, definitions, requirements, standards, and deadlines for compliance in
22
accordance with the requirements of the Americans with Disabilities Act, 42 U.S.C., §
23
12101 et seq. and the federal regulations pertaining to the Act, 28 CFR 36, 28 CFR 35,
24
and 29 CFR 1630.31
25
3. At the completion of such an investigation the Commission’s Executive Secretary
26
may recommend:
27
a) The staff attempt to induce compliance through conciliation;
28
b) The case be referred to the hearing board for a full hearing; or
29
c) The case be referred to the hearing board for dismissal of the complaint if the portions of
30
the buildings and structures cited in the complaint complies with the applicable accessibility
31
standard.
32
V.
CONCILIATION
33
A. Prior to instituting a formal hearing, the Commission shall attempt by informal methods of
34
conference, persuasion and conciliation, to induce compliance with Title 42, Chapter 87.
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Regulations for Investigation / Hearings under RIGL 42-87-5(b)
Page 7
B. Conciliation Agreement shall set forth all measures to be taken by any party including
1
provisions for affirmative and other actions and compliance reports, and which shall be
2
signed by respondent, complainant and a representative of the Commission. An executed
3
conciliation agreement is a final order of the Commission for the purposes of judicial review.
4
Nothing stated in a conciliation agreement shall be interpreted as an admission by any party
5
of a violation of any provision of Rhode Island non-discrimination law, unless the party
6
specifically consents to such an admission. The conciliation agreement shall include a
7
written transition plan to bring the building or structure into compliance with Title 42, Chapter
8
87 of the General Laws of Rhode Island that details the:
9
1. Method of compliance;
10
2. A renovation timetable; and
11
3. Interim steps that the respondent shall undertake to ensure use of the services,
12
activities or benefits of the respondent until the accessibility barriers have been
13
eliminated.
14
C. Compliance Reports. In disposing of a complaint or of its own investigation by means of
15
a conciliation agreement or otherwise, the Commission may require any party to submit to it
16
such compliance reports and allow the Commission to reinspect the buildings and
17
structures, cited in the complaint, as the Commission deems necessary showing compliance
18
with the terms of conciliation.
19
D. Enforcement of Conciliation Agreement. At any time in its discretion, the Commission
20
may investigate whether the respondent is complying with the terms of a conciliation
21
agreement. Upon determining that the terms of the agreement are not being complied with,
22
the Commission may take appropriate action to assure compliance including, but not limited
23
to, petitioning a Superior Court for its enforcement, or if less than twelve months have
24
passed since the alleged discriminatory acts, issuing a complaint and notice of hearing. The
25
Commission shall cause a copy of the agreement to be served on all parties.
26
E. If the complaint or any portion of the complaint cannot be resolved by these informal
27
methods, the Commission shall conduct a hearing as provided by Title 42, Chapter 87,
28
Section 5 (b) of the General Laws of Rhode Island.32
29
VI.
HEARING
30
A. The Commission shall hear all unresolved complaints relating to alleged violations of
31
Title 42 Chapter 87 relating to the physical inaccessibility of buildings and structures,
32
including those with a staff recommendation for dismissal. The Commission’s chairperson
33
(or vice chairperson, in the absence of the chairperson) shall appoint a hearing board of at
34
least three commissioners to hear each complaint that cannot be resolved by the informal
35
methods of conciliation.
36
B. Notice Of Hearing
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Regulations for Investigation / Hearings under RIGL 42-87-5(b)
Page 8
1. The Commission shall issue and cause to be served upon all parties thereto or their
1
attorneys of record, if any, by registered or certified mail, a notice of hearing before the
2
Hearing Board. The notice of hearing will contain a hearing date, which shall not be
3
less than ten (10) business days after the service of such complaint and notice. A
4
hearing shall not be deemed instituted until convened and commenced before the
5
Hearing Board.
6
2. The written notice of hearing, signed by the Commission Chairperson or Vice
7
Chairperson shall state:
8
a) The time and place of hearing;
9
b) Include the complaint filed by the complainant;
10
c) The results of the Commission’s investigation stating the unlawful discriminatory practice
11
allegedly engaged in and the date of its occurrence in a manner sufficient to comply with
12
Rhode Island Rules of Administrative/Civil Procedure;
13
d) The methods to overcoming any physical barriers proposed by the Commission’s staff;
14
and
15
e) The name and telephone number of a contact person from the Commission.
16
C. Representation during the Hearing
17
1. Any person may appear before the Hearing Board in his or her own behalf. Except
18
as may otherwise be provided by law, no person may appear in a representative
19
capacity before the Hearing Board other than attorneys at law duly qualified and
20
entitled to practice before the Supreme Court of the State of Rhode Island, or such
21
other persons as by law are expressly authorized to appear in representative capacities.
22
2. All persons in proceedings before the Hearing Board in a representative capacity
23
shall conform to the standards of ethical conduct required of attorneys before the courts
24
of Rhode Island.
25
D. Joinder of Parties.
26
1. A person shall, whenever possible, be joined as a party in the complaint when:
27
a) In his or her absence complete relief cannot be accorded among those already parties,
28
or
29
b) He or she claims an interest relating to the subject of the complaint and is so situated
30
that the disposition of the complaint in his or her absence may (a) as a practical matter
31
impair or impede his or her ability to protect that interest or (b) leave any of the persons
32
already parties subject to a substantial risk of incurring double, multiple, or otherwise
33
inconsistent obligations by reason of his or her claimed interest. If such a person cannot be
34
Regulations for Investigation / Hearings under RIGL 42-87-5(b)
Page 9
made a party, the Commission shall decide whether in equity and good conscience the
1
action should proceed or be dismissed. Any person charged with unlawful discriminatory
2
practices arising out of the same transaction, occurrence or succession or series of
3
transactions or occurrences may be joined as a respondent in the same complaint.
4
c) The Commission may, within its discretion, join one or more complaints into a single
5
proceeding at public hearing
6
E. Appearance of Parties.
7
1. The complainant shall be a party to the proceeding and may be present at the
8
hearing. The respondent may appear at the hearing, examine and cross-examine
9
witnesses and the complainant, and may present witnesses and submit other evidence.
10
Any person who has or claims an interest in the subject of the hearing and in obtaining
11
or preventing relief against the acts or practices complained of may be in the discretion
12
of the hearing examiner permitted to appear for presentation of oral or written
13
arguments within the limits of the law.
14
F. Time of Hearings.
15
1. A hearing shall be conducted at the time and place set forth in the notice of hearing,
16
except that the time of hearing may be extended by the Commission, on application of
17
any party or the Commission’s Chairperson or Vice Chairperson, to such later date as
18
the Commission may determine for good cause shown.
19
G. Procedure at Hearing
20
1. The Hearing Board shall not be bound by the rules of evidence prevailing in the
21
courts of law and equity, but shall in ascertaining the practices followed by the
22
respondent, take into account all reliable, probative and substantial evidence, statistical
23
or otherwise, produced at the hearing which may tend to prove the existence of a
24
predetermined pattern, practice or act of unlawful discrimination, as provided by the
25
Administrative Procedures Act.
26
2. The Hearing Board shall have full authority to control the procedures of the
27
hearing, to admit or exclude testimony or other evidence, to rule upon all objections
28
and take such other actions as are necessary and proper for the conduct of such hearing
29
including but not limited to, ordering the appearance of any person and the production
30
of any books, papers, documents or tangible things at the hearing. The Hearing Board
31
shall conduct a hearing consistent with these Rules and Regulations.
32
3. The Hearing Board may, in their discretion, either with or without objection,
33
exclude inadmissible evidence or order cumulative evidence discontinued. Parties
34
objecting to the introduction of evidence shall state the precise grounds of such
35
Regulations for Investigation / Hearings under RIGL 42-87-5(b)
Page 10
objection at the time such evidence is offered. When objection is made to the
1
admissibility of evidence, such evidence may be received subject to a later ruling.
2
4. All rulings and determinations of the Hearing Board shall be made by a majority
3
vote of the members of the Hearing Board.
4
5. Public Hearings. All hearings shall be public unless for good cause the
5
Commission and only as allowed by Title 42 Chapter 46 of the General Laws of the
6
State of Rhode Island [the Open Meetings Act] shall decide otherwise.
7
H. Audio Recording /Transcript
8
1. An audio recording of all hearings shall be made and preserved.
9
2. The audio recording of the hearing shall be available at the Commission’s office for
10
examination, except when the transcript is not in the Commission’s possession. If any
11
party files proceedings for judicial review, the Commission shall, upon request by any
12
party, supply to such a party a copy or copies of the written transcript of the
13
proceedings before it at such reasonable charge as the Commission shall establish.
14
VII.
DECISIONS AND ORDERS
15
A. Content.
16
1. Any decision and order of the Commission issued after a hearing shall contain
17
findings of fact, conclusions of law, a ruling on each proposed finding of fact
18
submitted by a party and an order.
19
B. Issuance of Decisions and Orders.
20
1. At least three Commissioners must participate in the decision on a case. A majority
21
of the Hearing Board Members present and voting must agree on the decision and
22
order.
23
2. If the hearing board shall upon all the evidence find that the respondent has not
24
engaged in violations of the civil rights of individuals with disabilities caused by the
25
physical inaccessibility of buildings and structures, the hearing board shall state its
26
findings of fact and shall issue and cause to be served on the complainant an order
27
dismissing the complaint as to the respondent.33 A copy of such order shall be
28
delivered to the Attorney General. For purposes of review, a dismissal of the complaint
29
by the Hearing Board shall be treated as a final order of the Commission.
30
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3. If upon all the testimony taken, the hearing board shall determine that the
1
respondent has engaged in violations of the civil rights of individuals with disabilities
2
caused by the physical inaccessibility of buildings and structures, then the hearing
3
board shall state its findings of fact and shall issue and cause to be served upon the
4
respondent an order requiring the respondent to cease and desist from such practices,
5
and to take any further action that will effectuate the purposes of this chapter34.
6
4. At any time in its discretion, the Commission may investigate whether the terms of
7
the order are being complied with. Upon a determination that the terms of the order are
8
not being complied with, the Commission may take appropriate action to assure
9
compliance including, but not limited to, petitioning the Superior Court of Rhode
10
Island for its enforcement. Upon a determination that the order is being complied with
11
and all unlawful discriminatory practices have been eliminated, the Hearing Board may
12
issue a declaratory order stating that the respondent has ceased to engage in unlawful
13
discriminatory practices. Such declaratory order shall not affect in any way the
14
requirement of any respondent to submit such compliance reports as the Hearing Board
15
may direct.
16
5. The Commission with the consent of the respondent may enter a consent order at
17
any time after service of a notice of hearing. Such consent orders shall include an
18
express provision that respondent intends to be legally bound thereby. Consent orders
19
shall have the same force and effect as a final order of the Hearing Board entered after
20
hearing. Such consent orders shall waive public hearing and may or may not make
21
findings of fact or conclusions of law.
22
6. With the written consent of respondent, a consent judgment embodying the terms of
23
any order of the Hearing Board shall be filed in the Superior Court of Rhode Island in
24
which a petition for its enforcement may be brought.
25
7. Copies of orders shall be served on all parties, and their attorneys of record, if any,
26
and where appropriate the Attorney General and the state licensing or contracting
27
authority.
28
8. All orders issued by the Hearing Board after a hearing shall be filed in the principal
29
office of the Commission in and shall be open to public inspection during regular
30
office hours of the Commission.
31
VIII.
ADMINISTRATIVE DISMISSAL OF COMPLAINTS
32
A. If the Commission staff determines that the Commission has no jurisdiction over a
33
complaint, the complaint shall be dismissed.
34
B. Administrative Closures
35
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Page 12
1. After notice to the complainant at his/her last known address and an opportunity for
1
the complainant to remedy the situation, the Commission’s staff may administratively
2
close a case for:
3
a) Failure to locate a complainant,
4
b) If the Commission cannot locate a representative of the complainant’s estate or the
5
complainant’s estate does not wish to proceed with the complaint
6
c) If the Commission concludes that:
7
(i)
The respondent has filed for bankruptcy;
8
(ii)
The bankruptcy has been finalized;
9
(iii)
All assets of the respondent have been liquidated; and
10
(iv)
Neither the respondent nor a successor is in operation; or
11
d) If the Commission concludes that:
12
(i)
An order appointing a receiver in respect to the respondent’s business has
13
been entered in a court of competent jurisdiction;
14
(ii)
All assets of the respondent have been liquidated; and
15
(iii)
Neither the respondent nor a successor is in operation.
16
IX.
COMPLAINTS COVERED BY MULTIPLE JURISDICTION
17
A. Rhode Island Commission for Human Rights
18
1. The Governor’s Commission on Disabilities shall serve notice to any complainant,
19
if her/his complaint could also be filed with the RI Commission for Human Rights
20
under Title 42 Chapter 87 (5)(a)35 of the General Laws of the State of Rhode Island or
21
other Rhode Island nondiscrimination laws.
22
2. The Governor’s Commission on Disabilities shall, upon the request of the RI
23
Commission for Human Rights, present the results of its investigation and the
24
recommended methods to overcoming any physical barriers, proposed by the
25
Commission’s staff to the RI Commission for Human Rights and transfer said
26
complaint to the RI Commission for Human Rights for hearing.
27
B. RI Department of Elementary and Secondary Education
28
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1. The Governor’s Commission on Disabilities shall serve notice to any complainant,
1
if her/his complaint could also be filed with the RI Department of Elementary and
2
Secondary Education under Title 42 Chapter 87 (5)(c) or Title 16 Chapter 3936 of the
3
General Laws of the State of Rhode Island.
4
2. The Governor’s Commission on Disabilities shall, upon the request of the RI
5
Department of Elementary and Secondary Education, present the results of its
6
investigation and the recommended methods to overcoming any physical barriers,
7
proposed by the Commission’s staff to the RI Department of Elementary and
8
Secondary Education and transfer said complaint to the RI Department of Elementary
9
and Secondary Education for hearing.
10
C. RI State Building Code Standards (and Appeals) Committee
11
1. The Governor’s Commission on Disabilities shall serve notice to any complainant,
12
if her/his complaint could also be filed with the RI State Building Code Standards
13
Committee or local building official, under Title 23 Chapter 27.3 Section 127.137 of the
14
General Laws of the State of Rhode Island.
15
2. The Governor’s Commission on Disabilities shall, upon the request of the RI State
16
Building Code Standards Committee or local building official, present the results of its
17
investigation and the recommended methods to overcoming any physical barriers,
18
proposed by the Commission’s staff to the RI State Building Code Standards
19
Committee or local building official, and transfer said complaint to the RI State
20
Building Code Standards Committee or local building official, for hearing.
21
D. RI Department of Labor and Training -Elevator Inspection / Occupational Safety and
22
Health Review Board
23
1. The Governor’s Commission on Disabilities shall serve notice to any complainant,
24
if her/his complaint could also be filed with the RI Department of Labor and Training -
25
Elevator Inspection Unit and/or the Occupational Safety and Health Review Board
26
under Title 23 Chapter 33 Section 1538 or Title 28 Chapter 20 Section 1939 of the
27
General Laws of the State of Rhode.
28
2. The Governor’s Commission on Disabilities shall, upon the request of RI
29
Department of Labor and Training - Elevator Inspection Unit and/or the Occupational
30
Safety and Health Review Board, present the results of its investigation and the
31
recommended methods to overcoming any physical barriers, proposed by the
32
Commission’s staff to the RI Department of Labor and Training - Elevator Inspection
33
Unit and/or the Occupational Safety and Health Review Board and transfer said
34
complaint to the RI Department of Labor and Training - Elevator Inspection Unit
35
and/or the Occupational Safety and Health Review Board for hearing.
36
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X.
COMPLAINTS FILED PRIOR TO AUGUST 1, 2002
1
A. Any proceedings or other business or matters, undertaken or commenced prior August
2
1, 2002 by the handicap accessibility unit of the State Building Commission and pending on
3
August 1, 2002, may be conducted and completed by the Governor's Commission on
4
Disabilities.40
5
B. Conciliation Agreements.
6
1. All conciliation agreements executed by the State Building Commission prior to
7
August 1, 2002 shall be a final order for the purposes of judicial review.
8
2. At its discretion the Governor’s Commission on Disabilities may investigate
9
whether the respondent is complying with the terms of a conciliation agreement of the
10
State Building Commission entered into prior to August 1, 2002. Upon determining
11
that the terms of the agreement are not being complied with, the Governor’s
12
Commission on Disabilities may take appropriate action to assure compliance
13
including, but not limited to, petitioning a Superior Court for its enforcement, or if less
14
than twelve months have passed since the alleged discriminatory acts, issuing a
15
complaint and notice of hearing.
16
C. Investigation and Conciliation
17
Any preliminary investigation and conciliation procedures active on or about August 1,
18
2002, by the State Building Commission shall continue to be pursued the Governor’s
19
Commission on Disabilities pursuant to Chapter O of the Governor’s Commission on
20
Disabilities’ Rules and Regulations.
21
XI.
FORMS
22
The Commission’s staff shall prepare and revise the forms referenced above, as
23
necessary.
24
25
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Page 15
XII.
APPENDIX
1
These endnotes are the text of several general laws and regulations and are provided
2
for clarification and are not part of the regulation. They are subject to revision, as
3
amended by the General Assembly.
4
1 History: Proposed on October 15, 2002
Public Hearing on November 25, 2002
Adopted November 25, 2002
Effective December 27, 2002
2 RIGL 42-87 CIVIL RIGHTS OF PEOPLE WITH DISABILITIES
42-87-1. Definitions.
As used in this chapter:
(1) 'Disability' means any impairment as defined in subdivision (8); provided, however, that whether a person has a
disability shall be determined without regard to the availability or use of mitigating measures, such as reasonable
accommodations, prosthetic devices, medications or auxiliary aids.
(2) 'Discrimination' includes those acts prohibited on the basis of race by 42 USC §§ 1981, 1983 and those on the basis of
disability by 29 USC § 794, and those on the basis of disability by 42 USC § 12101 et seq., and those on the basis of
disability by chapter 5 of title 28.
(3) 'Has a record of an impairment' means has a history of or has been misclassified as having a physical or mental
impairment that substantially limits one or more major life activities.
(4) 'Is regarded as having an impairment' means:
(i) Has a physical or mental impairment that does not substantially limit major life activities but that is treated as
constituting a limitation; or
(ii) Has a physical or mental impairment that substantially limits major life activities only as a result of the attitudes of
others toward the impairment; or
(iii) Has none of the impairments defined in subsection (c) but is treated as having an impairment.
(5) 'Major life activities' means functions such as caring for one's self, performing manual tasks, walking, seeing, hearing,
speaking, breathing, learning, and working.
(6) 'Otherwise qualified' means:
(i) With respect to employment, a person with a disability who, with reasonable accommodations, can perform the
essential functions of the job in question;
(ii) With respect to the rental of property, a person with a disability who, personally or with assistance arranged by the
person with a disability, is capable of performing all of the responsibilities of a tenant as contained in § 34-18-24;
(iii) With respect to any other program or activity, a person with a disability who meets the essential eligibility
requirements for participation in, or receipt of, benefits from the program or activity; and
(iv) The fact that an individual has applied for, received or continues to receive private insurance or government
assistance based upon his or her disability shall not be determinative as to whether the individual is otherwise qualified as
defined herein, nor shall it constitute an estoppel or otherwise serve as a basis to deny the individual the protections of this
chapter.
(7) 'Person with a disability' means any person who:
(i) Has a physical or mental impairment which substantially limits one or more major life activities; or
(ii) Has a record of an impairment; or
(iii) Is regarded as having an impairment.
(8) 'Physical or mental impairment' means any physiological disorder or condition, cosmetic disfigurement, or anatomical
loss affecting one or more of the following body systems: neurological; musculoskeletal; special sense organs; respiratory,
including speech organs; cardiovascular; reproductive; digestive; genito-urinary; hemic and lymphatic; skin; and
endocrine; or any mental or psychological disorder such as mental retardation, organic brain syndrome, emotional or
mental illness, and specific learning disabilities.
42-87-2. Discrimination prohibited.
No otherwise qualified person with a disability shall, solely by reason of his or her disability, be subject to discrimination
by any person or entity doing business in the state; nor shall any otherwise qualified person with a disability be excluded
from participation in or denied the benefits of any program, activity or service of, or, by any person or entity regulated, by
the state or having received financial assistance from the state or under any program or activity conducted by the state, its
agents or any entity doing business with the state.
42-87-3. Discriminatory acts.
The discriminatory acts prohibited by § 42-87-2 include, but are not limited to, the following activities:
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Page 16
(1) Notwithstanding any law to the contrary, no person or entity licensed or regulated by the state, or having received
financial assistance from the state, or doing business within the state, shall:
(i) Deny an otherwise qualified person with a disability the opportunity to participate in or benefit from any aid, benefit or
service;
(ii) Afford an otherwise qualified person with a disability an opportunity to participate in or benefit from any aid, benefit,
or service that is not equal to that afforded others;
(iii) Provide an otherwise qualified person with a disability with an aid, benefit, or service that is not as effective as that
provided to others;
(iv) Provide different or separate aid, benefits, or services to otherwise qualified persons with a disability or to any class
of otherwise qualified persons with a disability unless that action is necessary to provide otherwise qualified persons with
a disability with aid, benefits, or services that are as effective as those provided to others;
(v) Aid or perpetuate discrimination against an otherwise qualified person with a disability by providing significant
assistance to an agency, organization, or person that discriminates on the basis of disability in providing any aid, benefit,
or service to beneficiaries of the recipients program;
(vi) Deny an otherwise qualified person with a disability the opportunity to participate as a member of planning or
advisory boards; or
(vii) Otherwise limit an otherwise qualified person with a disability in the enjoyment of any right, privilege, advantage, or
opportunity enjoyed by others receiving an aid, benefit, or service.
(2) Notwithstanding any inconsistent terms of any collective bargaining agreement, no otherwise qualified person with a
disability shall, solely on the basis of disability, who with reasonable accommodation and with no major cost can perform
the essential functions of the job in question, be subjected to discrimination in employment by any person or entity
receiving financial assistance from the state, or doing business within the state. The provisions of this subsection apply to
the following activities:
(i) Recruitment, advertising, and the processing of applications for employment;
(ii) Hiring, upgrading, promotion, award to tenure, demotion, transfer, layoff, termination, right to return from layoff, and
rehiring;
(iii) Rates of pay or any other form of compensation and changes in compensation;
(iv) Job assignments, job classifications, organizational structures, position descriptions, lines of progression, and
seniority lists;
(v) Leave of absence, sick leave, or any other leave;
(vi) Fringe benefits available by virtue of employment, whether or not administered by the recipient;
(vii) Selection and financial support for training, including apprenticeship, professional meetings, conferences, and other
related activities, and selection for leaves of absence to pursue training;
(viii) Employer sponsored activities including social or recreational programs; and
(ix) Any other term, condition, or privilege of employment.
(3) Any persons with a disability shall be entitled to full and equal access, are members of the general public, to all
housing accommodations offered for rent, lease, or compensation in this state, subject to the conditions and limitations
established by law and applicable alike to all persons.
(4) Every person with a disability who has a personal assistive animal, or who obtains a personal assistive animal, shall be
entitled to full and equal access to all housing and other public accommodations provided for in this chapter and shall not
be required to pay extra compensation for the personal assistive animal, but shall be liable for any damage done to the
premises by a personal assistive animal. For the purposes of this subsection a 'personal assistive animal' is an animal
specifically trained, by a certified animal training program, to assist a person with a disability perform independent living
tasks.
(5) No qualified individual with a disability, as defined in the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq.,
nor any individual or entity because of a known relationship or association with an individual with a disability shall be:
(i) Discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities,
privileges, advantages, or accommodations of any place of public accommodation or commercial facilities covered by the
Americans with Disabilities Act, 42 U.S.C. § 12101 et seq.;
(ii) Excluded from participation in or be denied the benefits of the services, programs, or activities of, or be subjected to
discrimination by, a public entity covered by the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq.; and
(iii) Subject to discrimination in employment by a public entity or employer covered by the Americans with Disabilities
Act, 42 U.S.C. § 12101 et seq.
(6) The application, exemptions, definitions, requirements, standards, and deadlines for compliance with subsection (e)
shall be in accordance with the requirements of the Americans with Disabilities Act, 42 U.S.C., § 12101 et seq. and the
federal regulations pertaining to the Act, 28 CFR 36, 28 CFR 35, and 29 CFR 1630.
42-87-4. Civil liability.
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(a) Any person with a disability who is the victim of discrimination prohibited by this chapter may bring an action in the
Superior Court against the person or entity causing the discrimination for equitable relief, compensatory and/or punitive
damages or for any other relief that the court deems appropriate.
(b) No person with a disability whose action for discrimination is otherwise within the jurisdiction of the commission for
human rights under chapter 5 of title 28, chapter 24 of title 11 or chapter 37 of title 34 may bring an action under
this section, unless the commission for human rights has failed to act upon that person's complaint within sixty (60) days
of filing, or the commission has issued a final order on the complaint.
42-87-5. Enforcement of anti-discrimination provisions.
(a) Except as specifically set forth in subsections (b) and (c), the Rhode Island commission for human rights is
empowered and directed to prevent any person from violating any of the provisions of sections 42-87-1 -- 42-87-4,
provided that before instituting a formal hearing it shall attempt by informal methods of conference, persuasion, and
conciliation, to induce compliance with those sections. Upon the commission's own initiative or whenever an aggrieved
individual or an organization chartered for the purpose of combating discrimination or of safeguarding civil liberties or
rights of persons with disabilities, the individual or organization being hereinafter referred to as the complainant, makes a
charge to the commission that any person, agency, bureau, corporation or association, hereinafter referred to as the
respondent, has violated or is violating any of the provisions of sections 42-87-1 -- 42-87-4, the commission may proceed
in the same manner and with the same powers as provided in sections 28-5-16 -- 28-5-26, and the provisions of sections
28-5-13 and 28-5-16 -- 28-5-36, as to the powers, duties and rights of the commission, its members, hearing examiners,
the complainant, respondent, interviewer, and the court shall apply in any proceedings under this section.
(b) (1) The governor's commission on disabilities is empowered and directed to investigate and hear all complaints
relating to alleged violations of this chapter relating to the physical inaccessibility of buildings and structures.
(2) The governor's commission on disabilities shall have the power and duties to adopt, promulgate, amend and rescind
rules and regulations to effectuate the provisions of this section.
(i) Prior to instituting a formal hearing, the governor's commission on disabilities shall attempt by informal methods of
conference, persuasion and conciliation, to induce compliance with this chapter. If the complaint or any portion of the
complaint cannot be resolved by these informal methods, the governor's commission on disabilities shall conduct a
hearing as provided by this section.
(ii) If the governor's commission on disabilities shall upon all the evidence find that the respondent has not engaged in
violations of the civil rights of individuals with disabilities caused by the physical inaccessibility of buildings and
structures, the commission shall state his or her findings of fact and shall issue and cause to be served on the complainant
an order dismissing the complaint as to the respondent.
(iii) If upon all the testimony taken, the commission shall determine that the respondent has engaged in violations of the
civil rights of individuals with disabilities caused by the physical inaccessibility of buildings and structures, then the
commission shall state its findings of fact and shall issue and cause to be served upon the respondent an order requiring
the respondent to cease and desist from such practices, and to take any further action that will effectuate the purposes of
this chapter.
(iv) Any complainant or respondent claiming to be aggrieved by a final order of the commission may obtain judicial
review of the final order; any party may obtain an order of court for enforcement of a final order of the commission.
These proceedings shall be brought in the superior court within any county where the unlawful practices, which are the
subject of the hearing officer's order, were committed or where any respondent, required in the order to cease and desist
from unlawful practices or to take other affirmative action resides or transacts business.
(c) The Rhode Island department of education is empowered and directed to hear all complaints relating to violations of
this chapter in the area of elementary and secondary education. Those complaints shall be heard in accordance with the
process set forth in chapter 39 of title 16.
3 Governor’s Commission on Disabilities
John O. Pastore Center - 41 Cherry Dale Court
Cranston, RI 02920-3049
401-462-0100 (voice); 462-0101 (tty) and 462-0106 (fax)
disabilities@gcd.state.ri.us (e-mail) and www.gcd.state.ri.us (website)
4 28 CFR 36.104 “Commercial facilities means facilities --
(1) Whose operations will affect commerce;
(2) That are intended for nonresidential use by a private entity; and
(3) That are not --
(i) Facilities that are covered or expressly exempted from coverage under the Fair Housing Act of 1968, as amended (42
U.S.C. 3601 - 3631);
Regulations for Investigation / Hearings under RIGL 42-87-5(b)
Page 18
(ii) Aircraft; or
(iii) Railroad locomotives, railroad freight cars, railroad cabooses, commuter or intercity passenger rail cars (including
coaches, dining cars, sleeping cars, lounge cars, and food service cars), any other railroad cars described in section 242 of
the Act or covered under title II of the Act, or railroad rights-of-way. For purposes of this definition, "rail'' and "railroad''
have the meaning given the term "railroad'' in section 202(e) of the Federal Railroad Safety Act of 1970 (45 U.S.C.
431(e)).
5 28 CFR 36.104 “Private entity means a person or entity other than a public entity.” As covered by the application
provisions 28 CFR 36.102 (3) “Private entity that offers examinations or courses related to applications, licensing,
certification, or credentialing for secondary or postsecondary education, professional, or trade purposes.”
6 28 CFR 36.104 “Public accommodation means a private entity that owns, leases (or leases to), or operates a place of
public accommodation.”
“Place of public accommodation means a facility, operated by a private entity, whose operations affect commerce and fall
within at least one of the following categories --
(1) An inn, hotel, motel, or other place of lodging, except for an establishment located within a building that contains not
more than five rooms for rent or hire and that is actually occupied by the proprietor of the establishment as the residence
of the proprietor;
(2) A restaurant, bar, or other establishment serving food or drink;
(3) A motion picture house, theater, concert hall, stadium, or other place of exhibition or entertainment;
(4) An auditorium, convention center, lecture hall, or other place of public gathering;
(5) A bakery, grocery store, clothing store, hardware store, shopping center, or other sales or rental establishment;
(6) A laundromat, dry-cleaner, bank, barber shop, beauty shop, travel service, shoe repair service, funeral parlor, gas
station, office of an accountant or lawyer, pharmacy, insurance office, professional office of a health care provider,
hospital, or other service establishment;
(7) A terminal, depot, or other station used for specified public transportation;
(8) A museum, library, gallery, or other place of public display or collection;
(9) A park, zoo, amusement park, or other place of recreation;
(10) A nursery, elementary, secondary, undergraduate, or postgraduate private school, or other place of education;
(11) A day care center, senior citizen center, homeless shelter, food bank, adoption agency, or other social service center
establishment; and
(12) A gymnasium, health spa, bowling alley, golf course, or other place of exercise or recreation.”
7 28 CFR 36.104 “Private club means a private club or establishment exempted from coverage under title II of the Civil
Rights Act of 1964 (42 U.S.C. 2000a(e)).”
8 28 CFR 36.104 “Religious entity means a religious organization, including a place of worship.”
9 28 CFR 35.104 “Public entity means --
(1) Any State or local government;
(2) Any department, agency, special purpose district, or other instrumentality of a State or States or local government; and
(3) The National Railroad Passenger Corporation, and any commuter authority (as defined in section 103(8) of the Rail
Passenger Service Act). (45 U.S.C. 541)”
10 See endnote 2 above RIGL 42-87-2 & 3
11 “28 CFR 36.401 New construction.
(a) General. (1) Except as provided in paragraphs (b) and (c) of this section, discrimination for purposes of this part
includes a failure to design and construct facilities for first occupancy after January 26, 1993, that are readily accessible to
and usable by individuals with disabilities.
(2) For purposes of this section, a facility is designed and constructed for first occupancy after January 26, 1993, only --
(i) If the last application for a building permit or permit extension for the facility is certified to be complete, by a State,
County, or local government after January 26, 1992 (or, in those jurisdictions where the government does not certify
completion of applications, if the last application for a building permit or permit extension for the facility is received by
the State, County, or local government after January 26, 1992); and
(ii) If the first certificate of occupancy for the facility is issued after January 26, 1993.”
12 28 CFR 36.304 Removal of barriers
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Page 19
(a) General. A public accommodation shall remove architectural barriers in existing facilities, including communication
barriers that are structural in nature, where such removal is readily achievable, i.e., easily accomplishable and able to be
carried out without much difficulty or expense.
(b) Examples. Examples of steps to remove barriers include, but are not limited to, the following actions --
(1) Installing ramps;
(2) Making curb cuts in sidewalks and entrances;
(3) Repositioning shelves;
(4) Rearranging tables, chairs, vending machines, display racks, and other furniture;
(5) Repositioning telephones;
(6) Adding raised markings on elevator control buttons;
(7) Installing flashing alarm lights;
(8) Widening doors;
(9) Installing offset hinges to widen doorways;
(10) Eliminating a turnstile or providing an alternative accessible path;
(11) Installing accessible door hardware;
(12) Installing grab bars in toilet stalls;
(13) Rearranging toilet partitions to increase maneuvering space;
(14) Insulating lavatory pipes under sinks to prevent burns;
(15) Installing a raised toilet seat;
(16) Installing a full-length bathroom mirror;
(17) Repositioning the paper towel dispenser in a bathroom;
(18) Creating designated accessible parking spaces;
(19) Installing an accessible paper cup dispenser at an existing inaccessible water fountain;
(20) Removing high pile, low density carpeting; or
(21) Installing vehicle hand controls.
(c) Priorities. A public accommodation is urged to take measures to comply with the barrier removal requirements of this
section in accordance with the following order of priorities.
(1) First, a public accommodation should take measures to provide access to a place of public accommodation from public
sidewalks, parking, or public transportation. These measures include, for example, installing an entrance ramp, widening
entrances, and providing accessible parking spaces.
(2) Second, a public accommodation should take measures to provide access to those areas of a place of public
acco9mmodation where goods and services are made available to the public. These measures include, for example,
adjusting the layout of display racks, rearranging tables, providing Brailled and raised character signage, widening doors,
providing visual alarms, and installing ramps.
(3) Third, a public accommodation should take measures to provide access to restroom facilities. These measures include,
for example, removal of obstructing furniture or vending machines, widening of doors, installation of ramps, providing
accessible signage, widening of toilet stalls, and installation of grab bars.
(4) Fourth, a public accommodation should take any other measures necessary to provide access to the goods, services,
facilities, privileges, advantages, or accommodations of a place of public accommodations.
(d) Relationship to alternations requirements of subpart D of this part.
(1) Except as provided in paragraph (d)(2) of this section, measures taken to comply with the barrier removal
requirements of this section shall comply with the applicable requirements for alternations in § 36.402 and §§ 36.404-
36.406 of this part for the elements altered. The part of travel requirements of § 36.403 shall not apply to measures taken
solely to comply with the barrier removal requirements of this part.
(2) If, as a result of compliance with the alterations requirements specified in paragraph (d)(1) of this section, the
measures required to remove a barrier would not be readily achievable, a public accommodation may tak other readily
achievable measures to remove the barrier that do not fully comply with the specified requirements. Such measures
include, for example, providing a ramp with a steeper slope or widening a doorway to a narrower width than that
mandated by the alterations requirements. No measure shall be taken, however, that poses a significant risk to the health
or safety of individuals with disabilities or others.
(e) Portable ramps. Portable ramps should be used only when installation of a permanent ramp is not readily achievable.
In order to avoid any significant risk to the health or safety of individuals with disabilities or others in using portable
ramps, due consideration shall be given to safety features such as nonslip surfaces, railings, anchoring, and strength of
materials.
(f) Selling or serving space. The rearrangement of temporary or movable structures, such as furniture, equipment, and
display racks is not readily achievable to the extent that it results in a significant loss of selling or serving space.
Regulations for Investigation / Hearings under RIGL 42-87-5(b)
Page 20
(g) Limitation on barrier removal obligations. The requirements for barrier removal shall not be interpreted to exceed the
standards for alterations under the rehabilitation building code (or 28 CFR 36 subpart D) or when the relevant standards
for alterations are not provided the requirements for barrier removal shall not be interpreted to exceed the standards for
new construction in the state building code (or 28 CFR 36 subpart D).”
13 “28 CFR 36.305 Alternatives to barrier removal
(a) General. Where a a public accommodation can demonstrate that barrier removal is not readily achievable, the
respondent shall not fail to make its goods, services, facilities, privileges, advantages, or accommodations available
through alternative methods, if those methods are readily achievable.
(b) Examples. Examples of alternatives to barrier removal include, but are not limited to, the following actions --
(1) Providing curb service or home delivery;
(2) Retrieving merchandise from inaccessible shelves or racks;
(3) Relocating activities to accessible locations;
(c) Multiscreen cinemas. If it is not readily achievable to remove barriers to provide access by persons with mobility
impairments to all of the theaters of a multiscreen cinema, the cinema shall establish a film rotation schedule that provides
reasonable access for individuals who use wheelchairs to all films. Reasonable notice shall be provided to the public as to
the location and time of accessible showings.”
14 “28 CFR 36.306 Personal devices and services
This part does not require a public accommodation to provide its customers, clients, or participants with personal devices,
such as wheelchairs; individually prescribed devices, such as prescription eyeglasses or hearing aids; or services of a
personal nature including assistance in eating, toileting, or dressing.”
15 “28 CFR 36.308 Seating in assembly areas
To the extent that it is readily achievable, a public accommodation in assembly areas shall --
Provide a reasonable number of wheelchair seating spaces and seats with removable aisle-side arm rests; and
Locate the wheelchair seating spaces so that they --
Are dispersed throughout the seating area;
Provide lines of sight and choice of admission prices comparable to those for members of the general public;
Adjoin an accessible route that also serves as a means of egress in case of emergency; and
Permit individuals who use wheelchairs to sit with family members or other companions.
If removal of seats is not readily achievable, the respondent shall provide, to the extent that it is readily achievable to do
so, a portable chair or other means to permit a family member or other companion to sit with an individual who uses a
wheelchair.
The requirements shall not be interpreted to exceed the standards for alterations in the rehabilitation building code (or 28
CFR 36 subpart D).
The provision and location of wheelchair seating spaces in newly constructed or altered assembly areas shall be governed
by the standards for new construction and alterations in the building code, rehabilitation-building code (or 28 CFR 36
subpart D).”
16 See endnote 13 above “28 CFR 36.401 New construction (a) General.
17 See endnote 13 above “28 CFR 36.401 New construction (a) General.
18 “28 CFR 36.401 New construction (b) Commercial facilities located in private residences.
(1) When a commercial facility is located in a private residence, the portion of the residence used exclusively as a
residence is not covered by this subpart, but that portion used exclusively in the operation of the commercial facility or
that portion used both for the commercial facility and for residential purposes is covered by the new construction and
alterations requirements of this subpart.
(2) The portion of the residence covered under paragraph (b)(1) of this section extends to those elements used to enter the
commercial facility, including the homeowner's front sidewalk, if any, the door or entryway, and hallways; and those
portions of the residence, interior or exterior, available to or used by employees or visitors of the commercial facility,
including restrooms.”
19 “28 CFR 36.401 New construction (c) Exception for structural impracticability. (1) Full compliance with the
requirements of this section is not required where an entity can demonstrate that it is structurally impracticable to meet the
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Page 21
requirements. Full compliance will be considered structurally impracticable only in those rare circumstances when the
unique characteristics of terrain prevent the incorporation of accessibility features.
(2) If full compliance with this section would be structurally impracticable, compliance with this section is required to the
extent that it is not structurally impracticable. In that case, any portion of the facility that can be made accessible shall be
made accessible to the extent that it is not structurally impracticable.
3) If providing accessibility in conformance with this section to individuals with certain disabilities (e.g., those who use
wheelchairs) would be structurally impracticable, accessibility shall nonetheless be ensured to persons with other types of
disabilities (e.g., those who use crutches or who have sight, hearing, or mental impairments) in accordance with this
section.”
20 “28 CFR 36.401 New construction (d) Elevator exemption. (1) For purposes of this paragraph (d) --
(i) Professional office of a health care provider means a location where a person or entity regulated by a State to provide
professional services related to the physical or mental health of an individual makes such services available to the public.
The facility housing the "professional office of a health care provider'' only includes floor levels housing at least one
health care provider, or any floor level designed or intended for use by at least one health care provider.
(ii) Shopping center or shopping mall means --
(A) A building housing five or more sales or rental establishments; or
(B) A series of buildings on a common site, either under common ownership or common control or developed either as
one project or as a series of related projects, housing five or more sales or rental establishments. For purposes of this
section, places of public accommodation of the types listed in paragraph (5) of the definition of "place of public
accommodation'' in section Sec.36.104 are considered sales or rental establishments. The facility housing a "shopping
center or shopping mall'' only includes floor levels housing at least one sales or rental establishment, or any floor level
designed or intended for use by at least one sales or rental establishment.
(2) This section does not require the installation of an elevator in a facility that is less than three stories or has less than
3000 square feet per story, except with respect to any facility that houses one or more of the following:
(i) A shopping center or shopping mall, or a professional office of a health care provider.
(ii) A terminal, depot, or other station used for specified public transportation, or an airport passenger terminal. In such a
facility, any area housing passenger services, including boarding and debarking, loading and unloading, baggage claim,
dining facilities, and other common areas open to the public, must be on an accessible route from an accessible entrance.
(3) The elevator exemption set forth in this paragraph (d) does not obviate or limit, in any way the obligation to comply
with the other accessibility requirements established in paragraph (a) of this section. For example, in a facility that houses
a shopping center or shopping mall, or a professional office of a health care provider, the floors that are above or below an
accessible ground floor and that do not house sales or rental establishments or a professional office of a health care
provider, must meet the requirements of this section but for the elevator.”
21 “28 CFR 36.402 Alterations.
(a) General. (1) Any alteration to a place of public accommodation or a commercial facility, after January 26, 1992, shall
be made so as to ensure that, to the maximum extent feasible, the altered portions of the facility are readily accessible to
and usable by individuals with disabilities, including individuals who use wheelchairs.
(2) An alteration is deemed to be undertaken after January 26, 1992, if the physical alteration of the property begins after
that date.
(b) Alteration. For the purposes of this part, an alteration is a change to a place of public accommodation or a commercial
facility that affects or could affect the usability of the building or facility or any part thereof.
(1) Alterations include, but are not limited to, remodeling, renovation, rehabilitation, reconstruction, historic restoration,
changes or rearrangement in structural parts or elements, and changes or rearrangement in the plan configuration of walls
and full-height partitions. Normal maintenance, reroofing, painting or wallpapering, asbestos removal, or changes to
mechanical and electrical systems are not alterations unless they affect the usability of the building or facility.
(2) If existing elements, spaces, or common areas are altered, then each such altered element, space, or area shall comply
with the applicable provisions of appendix A to this part.
(c) To the maximum extent feasible. The phrase "to the maximum extent feasible,'' as used in this section, applies to the
occasional case where the nature of an existing facility makes it virtually impossible to comply fully with applicable
accessibility standards through a planned alteration. In these circumstances, the alteration shall provide the maximum
physical accessibility feasible. Any altered features of the facility that can be made accessible shall be made accessible. If
providing accessibility in conformance with this section to individuals with certain disabilities (e.g., those who use
wheelchairs) would not be feasible, the facility shall be made accessible to persons with other types of disabilities (e.g.,
those who use crutches, those who have impaired vision or hearing, or those who have other impairments).”
Regulations for Investigation / Hearings under RIGL 42-87-5(b)
Page 22
22 “28 CFR 36.403 Alterations: Path of travel.
(a) General. An alteration that affects or could affect the usability of or access to an area of a facility that contains a
primary function shall be made so as to ensure that, to the maximum extent feasible, the path of travel to the altered area
and the restrooms, telephones, and drinking fountains serving the altered area, are readily accessible to and usable by
individuals with disabilities, including individuals who use wheelchairs, unless the cost and scope of such alterations is
disproportionate to the cost of the overall alteration.
(b) Primary function. A "primary function'' is a major activity for which the facility is intended. Areas that contain a
primary function include, but are not limited to, the customer services lobby of a bank, the dining area of a cafeteria, the
meeting rooms in a conference center, as well as offices and other work areas in which the activities of the public
accommodation or other private entity using the facility are carried out. Mechanical rooms, boiler rooms, supply storage
rooms, employee lounges or locker rooms, janitorial closets, entrances, corridors, and restrooms are not areas containing a
primary function.
(c) Alterations to an area containing a primary function. (1) Alterations that affect the usability of or access to an area
containing a primary function include, but are not limited to --
(i) Remodeling merchandise display areas or employee work areas in a department store;
(ii) Replacing an inaccessible floor surface in the customer service or employee work areas of a bank;
(iii) Redesigning the assembly line area of a factory; or
(iv) Installing a computer center in an accounting firm.
(2) For the purposes of this section, alterations to windows, hardware, controls, electrical outlets, and signage shall not be
deemed to be alterations that affect the usability of or access to an area containing a primary function.
(d) Landlord/tenant: If a tenant is making alterations as defined in Sec.36.402 that would trigger the requirements of this
section, those alterations by the tenant in areas that only the tenant occupies do not trigger a path of travel obligation upon
the landlord with respect to areas of the facility under the landlord's authority, if those areas are not otherwise being
altered.
(e) Path of travel. (1) A "path of travel'' includes a continuous, unobstructed way of pedestrian passage by means of which
the altered area may be approached, entered, and exited, and which connects the altered area with an exterior approach
(including sidewalks, streets, and parking areas), an entrance to the facility, and other parts of the facility.
(2) An accessible path of travel may consist of walks and sidewalks, curb ramps and other interior or exterior pedestrian
ramps; clear floor paths through lobbies, corridors, rooms, and other improved areas; parking access aisles; elevators and
lifts; or a combination of these elements.
(3) For the purposes of this part, the term "path of travel'' also includes the restrooms, telephones, and drinking fountains
serving the altered area.
(f) Disproportionality. (1) Alterations made to provide an accessible path of travel to the altered area will be deemed
disproportionate to the overall alteration when the cost exceeds 20% of the cost of the alteration to the primary function
area.
(2) Costs that may be counted as expenditures required to provide an accessible path of travel may include:
(i) Costs associated with providing an accessible entrance and an accessible route to the altered area, for example, the cost
of widening doorways or installing ramps;
(ii) Costs associated with making restrooms accessible, such as installing grab bars, enlarging toilet stalls, insulating
pipes, or installing accessible faucet controls;
(iii) Costs associated with providing accessible telephones, such as relocating the telephone to an accessible height,
installing amplification devices, or installing a telecommunications device for deaf persons (TDD);
(iv) Costs associated with relocating an inaccessible drinking fountain.
(g) Duty to provide accessible features in the event of disproportionality. (1) When the cost of alterations necessary to
make the path of travel to the altered area fully accessible is disproportionate to the cost of the overall alteration, the path
of travel shall be made accessible to the extent that it can be made accessible without incurring disproportionate costs.
(2) In choosing which accessible elements to provide, priority should be given to those elements that will provide the
greatest access, in the following order:
(i) An accessible entrance;
(ii) An accessible route to the altered area;
(iii) At least one accessible restroom for each sex or a single unisex restroom;
(iv) Accessible telephones;
(v) Accessible drinking fountains; and
(vi) When possible, additional accessible elements such as parking, storage, and alarms.
(h) Series of smaller alterations. (1) The obligation to provide an accessible path of travel may not be evaded by
performing a series of small alterations to the area served by a single path of travel if those alterations could have been
performed as a single undertaking.
Regulations for Investigation / Hearings under RIGL 42-87-5(b)
Page 23
(2) (i) If an area containing a primary function has been altered without providing an accessible path of travel to that area,
and subsequent alterations of that area, or a different area on the same path of travel, are undertaken within three years of
the original alteration, the total cost of alterations to the primary function areas on that path of travel during the preceding
three year period shall be considered in determining whether the cost of making that path of travel accessible is
disproportionate.
(ii) Only alterations undertaken after January 26, 1992, shall be considered in determining if the cost of providing an
accessible path of travel is disproportionate to the overall cost of the alterations.”
23 “28 CFR 36.404 Alterations: Elevator exemption.
(a) This section does not require the installation of an elevator in an altered facility that is less than three stories or has less
than 3,000 square feet per story, except with respect to any facility that houses a shopping center, a shopping mall, the
professional office of a health care provider, a terminal, depot, or other station used for specified public transportation, or
an airport passenger terminal.
(1) For the purposes of this section, "professional office of a health care provider'' means a location where a person or
entity regulated by a State to provide professional services related to the physical or mental health of an individual makes
such services available to the public. The facility that houses a "professional office of a health care provider'' only
includes floor levels housing by at least one health care provider, or any floor level designed or intended for use by at
least one health care provider.
(2) For the purposes of this section, shopping center or shopping mall means --
(i) A building housing five or more sales or rental establishments; or
(ii) A series of buildings on a common site, connected by a common pedestrian access route above or below the ground
floor, that is either under common ownership or common control or developed either as one project or as a series of
related projects, housing five or more sales or rental establishments. For purposes of this section, places of public
accommodation of the types listed in paragraph (5) of the definition of "place of public accommodation'' in Sec.36.104 are
considered sales or rental establishments. The facility housing a "shopping center or shopping mall'' only includes floor
levels housing at least one sales or rental establishment, or any floor level designed or intended for use by at least one
sales or rental establishment.
(b) The exemption provided in paragraph (a) of this section does not obviate or limit in any way the obligation to comply
with the other accessibility requirements established in this subpart. For example, alterations to floors above or below the
accessible ground floor must be accessible regardless of whether the altered facility has an elevator.”
24 “28 CFR 36.405 Alterations: Historic preservation.
(a) Alterations to buildings or facilities that are eligible for listing in the National Register of Historic Places under the
National Historic Preservation Act (16 U.S.C. 470 et seq.), or are designated as historic under State or local law, shall
comply to the maximum extent feasible with section 4.1.7 of appendix A to this part.
(b) If it is determined under the procedures set out in section 4.1.7 of appendix A that it is not feasible to provide physical
access to an historic property that is a place of public accommodation in a manner that will not threaten or destroy the
historic significance of the building or facility, alternative methods of access shall be provided pursuant to the
requirements of subpart C of this part.”
25 “28 CFR 36.406 Standards for new construction and alterations.
(a) New construction and alterations subject to this part shall comply with the standards for accessible design published as
appendix A to this part (ADAAG).”
26 “28 CFR 35.150 Existing facilities.
(a) General. A public entity shall operate each service, program, or activity so that the service, program, or activity, when
viewed in its entirety, is readily accessible to and usable by individuals with disabilities. This paragraph does not --
(1) Necessarily require a public entity to make each of its existing facilities accessible to and usable by individuals with
disabilities;
(2) Require a public entity to take any action that would threaten or destroy the historic significance of an historic
property; or
(3) Require a public entity to take any action that it can demonstrate would result in a fundamental alteration in the nature
of a service, program, or activity or in undue financial and administrative burdens. In those circumstances where
personnel of the public entity believe that the proposed action would fundamentally alter the service, program, or activity
or would result in undue financial and administrative burdens, a public entity has the burden of proving that compliance
with §35.150(a) of this part would result in such alteration or burdens. The decision that compliance would result in such
alteration or burdens must be made by the head of a public entity or his or her designee after considering all resources
Regulations for Investigation / Hearings under RIGL 42-87-5(b)
Page 24
available for use in the funding and operation of the service, program, or activity, and must be accompanied by a written
statement of the reasons for reaching that conclusion. If an action would result in such an alteration or such burdens, a
public entity shall take any other action that would not result in such an alteration or such burdens but would nevertheless
ensure that individuals with disabilities receive the benefits or services provided by the public entity.
(b) Methods. (1) General. A public entity may comply with the requirements of this section through such means as
redesign of equipment, reassignment of services to accessible buildings, assignment of aides to beneficiaries, home visits,
delivery of services at alternate accessible sites, alteration of existing facilities and construction of new facilities, use of
accessible rolling stock or other conveyances, or any other methods that result in making its services, programs, or
activities readily accessible to and usable by individuals with disabilities. A public entity is not required to make structural
changes in existing facilities where other methods are effective in achieving compliance with this section. A public entity,
in making alterations to existing buildings, shall meet the accessibility requirements of §35.151. In choosing among
available methods for meeting the requirements of this section, a public entity shall give priority to those methods that
offer services, programs, and activities to qualified individuals with disabilities in the most integrated setting appropriate.
(2) Historic preservation programs. In meeting the requirements of §35.150(a) in historic preservation programs, a public
entity shall give priority to methods that provide physical access to individuals with disabilities. In cases where a physical
alteration to an historic property is not required because of paragraph (a)(2) or (a)(3) of this section, alternative methods
of achieving program accessibility include --
(i) Using audio-visual materials and devices to depict those portions of an historic property that cannot otherwise be made
accessible;
(ii) Assigning persons to guide individuals with handicaps into or through portions of historic properties that cannot
otherwise be made accessible; or
(iii) Adopting other innovative methods.
(c) Time period for compliance. Where structural changes in facilities are undertaken to comply with the obligations
established under this section, such changes shall be made within three years of the effective date of this part, but in any
event as expeditiously as possible.
(d) Transition plan. (1) In the event that structural changes to facilities will be undertaken to achieve program
accessibility, a public entity that employs 50 or more persons shall develop, within six months of the effective date of this
part, a transition plan setting forth the steps necessary to complete such changes. A public entity shall provide an
opportunity to interested persons, including individuals with disabilities or organizations representing individuals with
disabilities, to participate in the development of the transition plan by submitting comments. A copy of the transition plan
shall be made available for public inspection.
(2) If a public entity has responsibility or authority over streets, roads, or walkways, its transition plan shall include a
schedule for providing curb ramps or other sloped areas where pedestrian walks cross curbs, giving priority to walkways
serving entities covered by the Act, including State and local government offices and facilities, transportation, places of
public accommodation, and employers, followed by walkways serving other areas.
(3) The plan shall, at a minimum --
(i) Identify physical obstacles in the public entity's facilities that limit the accessibility of its programs or activities to
individuals with disabilities;
(ii) Describe in detail the methods that will be used to make the facilities accessible;
(iii) Specify the schedule for taking the steps necessary to achieve compliance with this section and, if the time period of
the transition plan is longer than one year, identify steps that will be taken during each year of the transition period; and
(iv) Indicate the official responsible for implementation of the plan.
(4) If a public entity has already complied with the transition plan requirement of a Federal agency regulation
implementing section 504 of the Rehabilitation Act of 1973, then the requirements of this paragraph shall apply only to
those policies and practices that were not included in the previous transition plan.”
27 “28 CFR 35.151 New construction and alterations.
(a) Design and construction. Each facility or part of a facility constructed by, on behalf of, or for the use of a public entity
shall be designed and constructed in such manner that the facility or part of the facility is readily accessible to and usable
by individuals with disabilities, if the construction was commenced after January 26, 1992.
(b) Alteration. Each facility or part of a facility altered by, on behalf of, or for the use of a public entity in a manner that
affects or could affect the usability of the facility or part of the facility shall, to the maximum extent feasible, be altered in
such manner that the altered portion of the facility is readily accessible to and usable by individuals with disabilities, if the
alteration was commenced after January 26, 1992.
(c) Accessibility standards. Design, construction, or alteration of facilities in conformance with the Uniform Federal
Accessibility Standards (UFAS) (Appendix A to 41 CFR Part 101-19.6) or with the Americans with Disabilities Act
Accessibility Guidelines for Buildings and Facilities (ADAAG) (Appendix A to the Department of Justice's final rule
Regulations for Investigation / Hearings under RIGL 42-87-5(b)
Page 25
implementing title III of the ADA, 28 C. F.R. 36) shall be deemed to comply with the requirements of this section with
respect to those facilities, except that the elevator exemption contained at §4.1.3(5) and §4.1.6(1)(j) of ADAAG shall not
apply. Departures from particular requirements of either standard by the use of other methods shall be permitted when it is
clearly evident that equivalent access to the facility or part of the facility is thereby provided.
(d) Alterations: Historic properties. (1) Alterations to historic properties shall comply, to the maximum extent feasible,
with §4.1.7 of UFAS or §4.1.7 of ADAAG.
(2) If it is not feasible to provide physical access to an historic property in a manner that will not threaten or destroy the
historic significance of the building or facility, alternative methods of access shall be provided pursuant to the
requirements of §35.150.
(e) Curb ramps. (1) Newly constructed or altered streets, roads, and highways must contain curb ramps or other sloped
areas at any intersection having curbs or other barriers to entry from a street level pedestrian walkway.
(2) Newly constructed or altered street level pedestrian walkways must contain curb ramps or other sloped areas at
intersections to streets, roads, or highways.”
28 Listing of Federal Funding Sources, Code of Federal Regulation #, Effective Date, and Access Standard
Federal Agency
CFR #
Effective
Alternative Standard
Agriculture
7 CFR 15b
7/12/82
UFAS (ANSI A117.1-1980)
Commerce
15 CFR 8b
5/24/82
UFAS (GSA 41 CFR 101-19.603)
Corporation for National Service (Action)
45 CFR 1232
6/29/79
UFAS (ANSI A 117.1-1961 R1971)
Defense
32 CFR 56
6/1/82
Ch 18 DoD 4270.1-M EM 1110-1-103
Energy
10 CFR 1040
3/19/80
UFAS (ANSI A 117.1-1961 R1971)
Environmental Protection
40 CFR 7
2/13/84
UFAS
Education
34 CFR 104
7/3/77
UFAS
General Services Administration
41 CFR 101-8
7/11/82
GSA Accessibility Standard DG-6
Health & Human Services
45 CFR 84
7/3/77
UFAS
Housing & Urban Development
24 CFR 8
7/11/88
UFAS
Interior
43 CFR 17
7/7/82
UFAS (ATBCB 36 CFR 1190.31)
Justice
28 CFR 42
7/3/80
UFAS
Labor
29 CFR 32
11/6/80
UFAS (ANSI A 117.1-1961 R1971)
Legal Services Corporation
45 CFR 1624
10/25/79
No standard specifically cited
National Endowment for the Arts
45 CFR 1151
5/25/79
UFAS (ANSI A 117.1-1961 R1971)
National Endowment for the Humanities
45 CFR 1170
12/14/81
UFAS (ANSI A 117.1-1961 R1971)
National Science Foundation
45 CFR 605
3/1/82
UFAS (ANSI A 117.1-1961 R1971)
Small Business Administration
13 CFR 113
4/4/79
UFAS (ANSI A 117.1-1961 R1971)
State
22 CFR 142
11/21/80
UFAS
Transportation
49 CFR 27
6/31/79
ADAAG
Veterans Affairs
38 CFR 18
9/24/80
UFAS (ANSI A 117.1-1961 R1971)
Federally Funded Construction
41 CFR 101-19
7/27/74
UFAS (ANSI A 117.1-1961 R1971)
29 “28 CFR 35.163 Information and signage.
(a) A public entity shall ensure that interested persons, including persons with impaired vision or hearing, can obtain
information as to the existence and location of accessible services, activities, and facilities.
(b) A public entity shall provide signage at all inaccessible entrances to each of its facilities, directing users to an
accessible entrance or to a location at which they can obtain information about accessible facilities. The international
symbol for accessibility shall be used at each accessible entrance of a facility.”
30 See endnote 2 above RIGL 42-87-5(b)(1)
31 See endnote 2 above RIGL 42-87-3(6)
32 See endnote 2 above RIGL 42-87-5(b)(2)(i)
33 See endnote 2 above RIGL 42-87-5(b)(2)(ii)
34 See endnote 2 above RIGL 42-87-5(b)(2)(iii)
35 See endnote 2 above RIGL 42-87-5(a)
Regulations for Investigation / Hearings under RIGL 42-87-5(b)
Page 26
36 See endnote 2 above RIGL 42-87-5(c) and “RIGL 16-39 Controversies In School Matters
16-39-1 Appeal of matters of dispute to commissioner.
Parties having any matter of dispute between them arising under any law relating to schools or education may appeal to
the commissioner of elementary and secondary education who, after notice to the parties interested of the time and place
of hearing, shall examine and decide the appeal without cost to the parties involved.
16-39-2. Appeal of school committee actions to commissioner.
Any person aggrieved by any decision or doings of any school committee or in any other matter arising under any law
relating to schools or education may appeal to the commissioner of elementary and secondary education who, after notice
to the parties interested of the time and place of hearing, shall examine and decide the appeal without cost to the parties
involved.
16-39-3. Appeal to state board of regents.
Any decision of the commissioner in these matters shall be subject to an appeal to and review by the board of regents for
elementary and secondary education.”
37 RIGL 23-27.3-127-1 Committee to serve as a board of standards and appeals.
(a) The building code standards committee, after the state building code is adopted and promulgated, will serve as a board
of standards and appeals except for appeals concerning the rehabilitation building and fire code, which appeals shall be
heard and decided by the joint committee in accordance with the provisions of § 23-29.1-4. For the purpose of securing
for the public the benefits of new developments in the building industry and insuring public health, safety, and welfare,
the board shall make or cause to be made investigations, or may accept authenticated reports from recognized
authoritative sources on new materials or modes of construction intended for use in the construction of buildings or
structures, and shall promulgate the regulations setting forth the conditions under which the materials or modes of
constructions may be used. The regulations and amendments thereto shall have the same force and effect as the provisions
of the code. The committee shall as a body or as a sub-committee thereof, have the power to sit as a state board of
appeals, and in the absence of a local board, to hear appeals from the decision of the local building official. The state
building commissioner shall serve as the secretary of the board of appeals.
(b) (1) An aggrieved party, as defined in subsections (b)(2)(i) - (b)(2)(vi) below, may appeal an interpretation, order,
requirement, direction, or failure to act by the state building commissioner, charged with the administration or
enforcement of this code or any of its rules or regulations, directly to the state building code board of standards and
appeals. The appeal shall be filed with the board of appeals within thirty (30) days of the mailing or posting of the
interpretation, order, requirement, direction, or failure to act.
(2) An aggrieved party is defined as follows:
(i) An owner of the building or structure which is subject to any interpretation, order, direction, or failure to act by a local
building official, state building commissioner, or a local board of appeal's decision or failure to act.
(ii) Property owners within two hundred feet (200') of the property lines of a building or structure which is the subject of
any appeal.
(iii) The state building commissioner relative to any interpretation, order, requirement, direction, or failure to act by the
local building official.
(iv) Any person, corporation, or other legal entity served with a notice of violation by the building official or the state
building commissioner.
(v) Any person who has reasonable grounds for believing that he or she is about to be subject to discrimination in
violation of the accessibility for persons with disabilities provisions of this code, or organization chartered for the purpose
of safeguarding rights of persons with disabilities, provided that the state building commissioner has certified that the
building plans are in violation of this code, the Americans with Disability Act, 42 U.S.C. § 12101 et seq., provisions or
the Federal Fair Housing Act, 42 U.S.C. § 3601 et seq.
(vi) Any person who has reasonable grounds for believing that he or she is about to be subject to discrimination, or
organization chartered for the purpose of safeguarding rights of persons with disabilities, as a result of an appeal to the
code's provisions relating to persons with disabilities.
23-27.3-127.1.4. Procedures - Record of variances.
(a) Upon receipt of an appeal, the secretary of the board of standards and appeals shall appoint a panel of not less than
nine (9) members of the board to hear the appeal. A majority of the panel constitutes a quorum.
(b) The board shall fix a day for hearing on the appeal and shall give reasonable notice thereof to the aggrieved party and
the property owners within two hundred feet (200') of subject property line when, in the board's discretion, it may have an
adverse effect on neighboring properties. A properly indexed record of all variations made shall be kept in the office of
the state building commissioner and shall be open to public inspection.
Regulations for Investigation / Hearings under RIGL 42-87-5(b)
Page 27
(c) An aggrieved party may file an appeal for a variance to the board by certified mail, and a hearing date shall be set by
the board within thirty (30) days of filing. A copy of the decision of the board shall be mailed to the aggrieved party and
the local board of appeal from which the appeal has been taken not later than thirty (30) days following the date of the
hearing. Failure to render a decision within thirty (30) days does not affect the validity of the decision or appeal.
(d) Application for appeal must be accompanied by three (3) copies of the required plans for review by the state building
commission and the state board of standards and appeal. When available, a copy of the local board of appeals hearing
transcript shall also be filed. When the board of appeals deems it necessary, the aggrieved party shall also provide a radius
map indicating the adversely affected neighboring properties and a list of names and addresses of the properties.
(e) The local board of appeals shall submit to the state board of standards and appeals a copy of its decision.
(f) Any aggrieved party affected by any ruling of the state board of standards and appeals may appeal to the sixth division
district court within thirty (30) days from the mailing to the local board of appeals and owner.
(g) (1) The appellant and the city or town involved in the original appeal to the board of standards and appeals shall
remain as the parties in interest in any appeal to the sixth division district court. In the instance where a town or city does
not have a legally constituted board of appeal and the state board is acting in accordance with § 23-27-1-127.1, the parties
in interest in any appeal to the sixth division district court shall remain the original appellant. An appeal from a decision
of the board of standards and appeals shall be instituted by the aggrieved party's filing a complaint in the sixth division
district court in the county where the building or structure is located, and the complaint shall be served upon the opposing
party in the manner prescribed by applicable procedural rules. The state board of standards and appeals shall not be a
party to the appeal and shall not be served with the complaint.
(2) The filing of the complaint does not itself stay enforcement of the board's decision, but the board may grant, or the
reviewing court may order, a stay upon appropriate terms.
(3) Once an appeal has been filed, the sixth division district court shall conduct its judicial review of the appeal in
accordance with § 42-35-15(d), (e), (f), and (g), and subsequent review by the supreme court shall be in accordance with §
42-35-16.
(h) Upon the filing of an appeal to the sixth division district court, the appellant shall notify the board of appeal in writing
of the appeal, and the board shall within thirty (30) days after the receipt of the notice, transmit to the reviewing court the
original or a certified copy of the entire record of the proceeding under review. By stipulation of all parties to the review
proceedings, the record may be shortened. Any parties unreasonably refusing to stipulate to limit the record may be taxed
by the court for the additional costs. The court may require or permit subsequent corrections or additions to the record.
The cost of transcribing the record shall be paid by the appellant.
23-27.3-127.2. Local board of appeals.
(a) A board of appeals shall be appointed by each municipality. The board shall consist of the following five (5)
members: one shall be an architect; two (2) shall be professional engineers; one shall be a builder or superintendent of
construction; and one shall be a member of the general public. A member of a board of appeals of one municipality may
also be a member of a board of appeals of another municipality. An aggrieved party as defined in § 23-27.3-127.1
(b)(2)(i) - (b)(2)(vi) may appeal an interpretation, order, requirement, direction, or failure to act under this code by a local
official of a city or town charged with the administration or enforcement of this code of any of its rules and regulations, to
the local board in that city or town.
(b) If there is no local board and an appeal is filed with the state board of appeals in accordance with § 23-27.3-127.1, all
stenographic costs of the appeal shall be reimbursed to the budget account of the board by the municipality.
38 RIGL 23-33 Elevators, Escalators, And Dumbwaiters
23-33-15. Order to cease operation or make repairs.
If as a result of inspection, the chief shall determine that any elevator or device is in such a condition as to be unsafe, and
that the danger is imminent, the chief shall order the operation of that elevator or device to be stopped immediately, and
the certificate revoked, and shall physically render the unit inoperable, and thereupon operation shall be stopped until the
elevator or device or the defective part or parts thereof shall be repaired or renewed and put in safe condition, and a new
certificate thereof under the provisions of this chapter issued by the chief or compliance inspector. Where there is no
immediate danger, the chief or compliance inspector shall notify the owner or the owner agent to remedy the defect or
defects within such reasonable time as he or she may prescribe, and if the defect or defects are not remedied within the
prescribed time, the use of the elevator or device shall be discontinued at the expiration thereof, and the certificate
revoked until the elevator or device is put in a safe condition and a new certificate is issued by the chief or compliance
inspector.
39 RIGL 28-20-19 Occupational safety and health review board.
(a) The occupational safety and health review board is hereby established.
Regulations for Investigation / Hearings under RIGL 42-87-5(b)
Page 28
(b) The review board shall be composed of three (3) members appointed by the governor, one of whom shall be a
qualified member of the occupational safety profession, nominated by the director of labor and training, one shall be a
qualified representative of the occupational health profession, nominated by the director of health, and and one shall be a
representative of the public who acts as chairperson of the review board.
(c) The term of office of each member of the review board is six (6) years, except that of the members of the review
board first taking office, one is appointed for six (6) years, one is appointed for four (4) years and one is appointed for two
(2) years.
(d) The review board shall conduct hearings pursuant to chapter 35 of title 42 in all cases involving contests of the
decisions of the director, and the commission for occupational safety and health made pursuant to this chapter and chapter
19 of this title.
(e) Two (2) members of the review board constitute a quorum, and official action can be taken only on the affirmative
vote of at least two (2) members.
(f) The review board shall set its own rules established pursuant to the requirements of chapter 35 of title 42.
(g) The members of the review board will be paid at a daily rate as determined by the director.
(h) Clerical and other assistance that may be required by the review board shall be furnished by the director.
40 RIPL 2002 Chapter 132 Section 3. Upon the transfer of the functions of the handicap accessibility unit of the state
building commission to the governor’s commission on disabilities, the governor is hereby authorized to transfer or
reallocate in appropriations and any other property of the handicapped accessibility unit. Any proceedings or other
business or matters, undertaken or commenced prior the effective date of this act [August 1, 2002] by the handicap
accessibility unit and pending on the effective date of this act, may be conducted and completed by the governor's
commission on disabilities.