By: Barrientos S.B. No. 540
A BILL TO BE ENTITLED
AN ACT
1-1 relating to the elimination of architectural barriers encountered
1-2 by persons with disabilities.
1-3 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-4 SECTION 1. Section 2, Article 9102, Revised Statutes, is
1-5 amended to read as follows:
1-6 Sec. 2. APPLICATION. (a) The standards <and
1-7 specifications> adopted under this article <shall> apply to:
1-8 (1) a building or facility <all buildings and
1-9 facilities> used by the public that is <which are> constructed, or
1-10 substantially renovated, modified, or altered, in whole or in part
1-11 on or after January 1, 1970, through <by> the use of state, county,
1-12 or municipal funds, or the funds of any political subdivision of
1-13 the state;
1-14 (2) the<. To such extent as is not contraindicated by
1-15 federal law or beyond the state's power of regulation, these
1-16 standards shall also apply to buildings and facilities constructed
1-17 in this state through partial or total use of federal funds. All
1-18 buildings and facilities constructed in this state, or
1-19 substantially renovated, modified, or altered, after the effective
1-20 date of this article from any one of these funds or any combination
1-21 thereof shall conform to each of the standards and specifications
1-22 adopted under this article except where the governmental
1-23 department, agency, or unit concerned shall determine, after taking
1-24 all circumstances into consideration, that full compliance with any
2-1 particular standard or specification is impracticable. Where it is
2-2 determined that full compliance with any particular standard or
2-3 specification is impractical, the reasons for such determination
2-4 shall be set forth in written form by those making the
2-5 determination and forwarded to the department. If it is determined
2-6 that full compliance is not practicable, there shall be substantial
2-7 compliance as determined by the department with the standard or
2-8 specification to the maximum extent practical, and the file system
2-9 maintained by the department shall include the written record of
2-10 the determination that it is impractical to comply fully with a
2-11 particular standard or specification and shall also set forth the
2-12 extent to which an attempt will be made to comply substantially
2-13 with the standard or specification.>
2-14 <(b) These standards and specifications shall be adhered to
2-15 in those buildings and facilities under construction on the
2-16 effective date of this article, unless the authority responsible
2-17 for the construction shall determine that the construction has
2-18 reached a state where compliance is impractical. This article
2-19 shall apply to> temporary or emergency construction of a building
2-20 or facility described by this subsection;
2-21 (3) a building <as well as permanent buildings.>
2-22 <(c) These standards and specifications shall be adhered to
2-23 in all buildings> leased or occupied <rented> in whole or in part
2-24 for use by the state under any lease or rental agreement entered
2-25 into on or after January 1, 1972;
2-26 (4) a privately funded building<. To such extent as
2-27 is not contraindicated by federal law or beyond the power of the
3-1 state's regulation, these standards shall also apply to buildings
3-2 or facilities leased or rented for use by the state through partial
3-3 or total use of federal funds. Facilities which are the subject of
3-4 lease or rental agreements on January 1, 1972, will not be required
3-5 to meet standards and specifications for the term of the existing
3-6 lease or rental agreement but must be brought into compliance
3-7 before a lease or rental agreement is renewed. Where it is
3-8 determined by the governmental department, agency, or unit
3-9 concerned that full compliance with any particular standard is
3-10 impractical, the reasons for such determination shall be set forth
3-11 in written form by those making the determination and forwarded to
3-12 the department. If it is determined that full compliance is not
3-13 practical, there shall be substantial compliance as determined by
3-14 the department with the standard or specification to the maximum
3-15 extent practical, and the file system maintained by the department
3-16 shall include the written record of the determination that it is
3-17 impractical to comply fully with a particular standard or
3-18 specification and shall also set forth the extent to which an
3-19 attempt will be made to comply substantially with the standard or
3-20 specification.>
3-21 <(d) Except as otherwise provided in subsection (e) of this
3-22 section, these standards and specifications shall be adhered to in
3-23 buildings> defined as a "public accommodation" by Section 301(7) of
3-24 the Americans with Disabilities Act <(ADA)> of 1990 (42 U.S.C.
3-25 Section 12181), <(P.L. 101-336)> that is <are> constructed or
3-26 substantially renovated, modified, or altered on or after January
3-27 1, 1992; and
4-1 (5) a privately funded building defined as a
4-2 "commercial facility" by Section 301, Americans with Disabilities
4-3 Act of 1990 (42 U.S.C. Section 12181), that is constructed or
4-4 substantially renovated, modified, or altered on or after September
4-5 1, 1993.
4-6 (b) To the extent there is no conflict with federal law and
4-7 it is not beyond the state's power of regulation, the standards
4-8 adopted under this article also apply to a building or facility
4-9 constructed in this state, or a building or facility leased or
4-10 rented for use by the state, through the use of federal funds.
4-11 (c) <(e)> The commissioner may <shall have the authority to>
4-12 waive or modify accessibility standards adopted under this article
4-13 <and specifications> when:
4-14 (1) the application of the <such> standards <and
4-15 specifications> is considered by the commissioner to be irrelevant
4-16 to the nature, use, or function of a building or facility covered
4-17 by this article; or
4-18 (2) the owner of a building or facility that is the
4-19 subject of a request for a waiver or modification of a standard
4-20 under this subsection, or the owner's designated agent, presents
4-21 proof to the commissioner that compliance with the particular
4-22 standard is impracticable.
4-23 (d) An owner of a building described by Subsection (a)(3) of
4-24 this section, or the owner's designated agent, must present to the
4-25 commissioner the proof required by Subsection (c)(2) of this
4-26 section before the date the owner:
4-27 (1) advertises for bids for the purchase or use of the
5-1 building; or
5-2 (2) enters into a contract for the use of the building
5-3 if the owner does not advertise for bids.
5-4 (e) The commissioner may <shall> not waive or modify any
5-5 standard or specification when:
5-6 (1) waiving or modifying a standard or specification
5-7 <such action> would result in a significant impairment of the
5-8 acquisition of goods and services by persons with disabilities or
5-9 substantially reduce the potential for employment of persons with
5-10 disabilities; or
5-11 (2) the proof presented to the commissioner under
5-12 Subsection (c)(2) of this section is not adequate.
5-13 (f) All evidence supporting waiver or modification
5-14 determinations made by the commissioner shall be made a matter of
5-15 record and become part of the file system maintained by the
5-16 department.
5-17 SECTION 2. Subsections (b), (d), and (e), Section 5, Article
5-18 9102, Revised Statutes, are amended to read as follows:
5-19 (b) The commissioner has <shall have> all necessary powers
5-20 to require compliance with the department's <commissioner's> rules
5-21 and regulations and modifications thereof and substitutions
5-22 therefor. The commission may also impose an administrative penalty
5-23 under Section 17, Article 9100, Revised Statutes, on a building
5-24 owner for a violation of this article or a rule adopted under this
5-25 article. Each day that the violation is not corrected constitutes
5-26 a separate violation. The commissioner when the commission
5-27 considers imposing an administrative penalty under this section,
6-1 shall first notify a person responsible for the building and allow
6-2 that person 90 days to bring the building into compliance. The
6-3 commissioner shall have the authority to extend the 90-day period
6-4 when circumstances justify such extension.
6-5 (d) All plans and specifications for construction or for the
6-6 substantial renovation, modification, or alteration of a building
6-7 or facility that has an estimated construction cost of $50,000 or
6-8 more and that is <buildings> subject to the provisions of this
6-9 article shall be submitted to the department for review and
6-10 approval prior to the time that construction or that substantial
6-11 renovation, modification, or alteration on the building begins in
6-12 accordance with rules and regulations adopted by the commissioner.
6-13 Plans <The plans> and specifications related to the building shall
6-14 be submitted to the department by the architect, interior designer,
6-15 or engineer who has overall responsibility for the design of the
6-16 constructed or reconstructed building. The building owner shall
6-17 submit the plans and specifications to the department if there is
6-18 no architect, interior designer, or engineer with that
6-19 responsibility <unless the cost of the construction or
6-20 reconstruction project is less than $50,000>. Likewise, any
6-21 substantial modification of approved plans shall be resubmitted to
6-22 the department for review and approval. The plans and
6-23 specifications that are not approved or disapproved by the
6-24 department within 30 days from the receipt of the plans and
6-25 specifications are automatically approved. If an architect,
6-26 interior designer, or engineer required to submit or resubmit plans
6-27 and specifications to the department fails to do so in a timely
7-1 manner, the commissioner shall report the fact to the Texas Board
7-2 of Architectural Examiners or the State Board of Registration for
7-3 Professional Engineers, as appropriate.
7-4 (e) The commissioner may review plans and specifications,
7-5 make inspections, and issue certifications that structures not
7-6 otherwise covered by this article are free of architectural
7-7 barriers and in compliance with the provisions of this article.
7-8 The department shall inspect each building and facility that has an
7-9 estimated construction cost of $50,000 or more and that is subject
7-10 to this article not later than <within> the first anniversary of
7-11 <year after> the date that construction or substantial renovation,
7-12 modification, or alteration of the building or facility is
7-13 completed. The department shall inspect each building that is
7-14 subject to this article because of a lease to the state during the
7-15 first year of the lease.
7-16 SECTION 3. This Act takes effect September 1, 1993.
7-17 SECTION 4. The importance of this legislation and the
7-18 crowded condition of the calendars in both houses create an
7-19 emergency and an imperative public necessity that the
7-20 constitutional rule requiring bills to be read on three several
7-21 days in each house be suspended, and this rule is hereby suspended.