CHAPTER 174

FORMERLY

SENATE BILL NO. 265

AS AMENDED BY SENATE AMENDMENT NOS. 1, 2, 3 AND 4

AN ACT TO AMEND TITLE 29, DELAWARE CODE BY PROVIDING FOR THE REPEAL OF SECTION 6917, BY CREATING A NEW CHAPTER 73, DEALING WITH HANDICAPPED PERSONS AND PROMOTING ACCESSIBILITY TO AND USE OF CERTAIN BUILDINGS AND FACILITIES BY SUCH PERSONS, AND PROVIDING A SUPPLEMENTAL APPROPRIATION THEREFOR.

BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF DELAWARE:

Section 1. Amend Title 29, Delaware Code by adding thereto a new Chapter 73, to read as follows:

CHAPTER 73. ARCHITECTURAL ACCESSIBILITY ACT §7301. Purpose

It is the purpose of this Chapter to enable handicapped members of society to make use of public facilities with the maximum of safety and independence by providing for the implementation of standards for the elimination of architectural barriers. This Chapter shall be construed liberally to achieve that purpose.

§7302. Definitions

As used in this Chapter:

(1) 'Facility' means any building, structure, installation or improved area of any nature whatsoever or any part thereof, which is utilized or held out for use by the public and shall include, but not be limited to:

(a) sidewalks, ramps or other means of ingress and egress;

(b) parks and recreational areas;

(c) public telephones, drinking fountains and restrooms;

(2) 'Alteration' means any modification or renovation of a facility which involves a structural change.

(3) 'Handicapped person' means a person who permanently or temporarily has a physical, mental or communicative condition or characteristic, and who, because of the condition or characteristic, is restricted in using facilities.

(4) 'Architectural barrier' means any physical attribute or design feature which by its presence, absence or design restricts access to or use of any facility by a handicapped person.

(5) 'Person' means one or more individuals, partnerships, associations, organizations, corporations, cooperatives, representatives, trustees, receivers or agents whether or not associated in any way with the State of Delaware.

(6) 'Board' means the Architectural Accessibility Board.

§7303. Applicability of Chapter

(a) The provisions of this Chapter shall be applicable to any facility or part of any facility and to any alteration thereto, which, after the effective date of this Chapter, is:

(1) constructed by or on behalf of the State of Delaware;

(2) is leased or rented in whole or in part by the State of Delaware;

(3) is financed in whole or in part by the State of Delaware or by bonds guaranteed in whole or in part by the State of Delaware

The provisions of this Chapter shall not be applicable to any facility designated by the Board of Electors of any county as a polling place for any election for any official for the State of Delaware.

Provided, that the provisions of this Chapter shall apply only to the alteration actually being made to any facility and not to any of the surrounding or related area or facility.

§7304. Architectural Accessibility Board; Composition; Compensation

(a) There is hereby created an Architectural Accessibility Board which is an agency of the State of Delaware for carrying out the purpose of this Chapter. The Board, for administrative purposes, shall be within the Department of Administrative Services.

(b) The Board shall be composed of nine voting members who shall be responsible for carrying out the duties of the Board, and ex officio members, who shall serve in an advisory capacity.

(c) The voting members of the Board shall be:

(1) one architect registered in the State of Delaware;

(2) one registered professional engineer in the field of structural engineering;

(3) one general contractor with experience in commercial construction;

(4) one attorney licensed in the State of Delaware;

(5) four handicapped persons, at least one of whom shall be confined to a wheelchair;

(6) one member of the general public who is a parent, guardian, or representative of a handicapped person or handicapped persons or who provide services to handicapped persons, or who has a demonstrated involvement in programs for handicapped persons.

Provided, nothing herein shall be construed to prevent or disfavor a handicapped person from serving in any of the positions described in subparagraphs (1) through (4). It is the intent of subparagraphs (5) and (6) to provide for representatives of various types of handicaps and those handicapped persons who cannot effectively represent themselves on the Board.

(d) The following persons, or persons designated by one of the following, shall be ex officio, or non-voting members of the Board:

(1) Secretary of the Department of Health and Social Services;

(2) Secretary of the Department of Labor;

(3) Secretary of the Department of Transportation;

(4) Secretary of the Department of Administrative Services;

(5) Superintendent of the Department of Public Instruction;

(6) Director of the Office of Management, Budget and Planning;

(7) Chairperson of the Governor's Commission of Employment of the Handicapped;

(8) Chairperson of the Developmental Disabilities Planning Council;

(9) Chairperson of the Human Relations Commission;

(10) Chief Building Inspectors of each of the Counties of the State and of the City of Wilmington, or in the event that no such position exists, then a person designated by the governing body of the jurisdiction.

Provided, nothing herein shall limit the persons from whom the Board may seek advice in the exercise of its duties.

(e) Voting members of the Board shall be appointed by the Governor for terms of four (4) years, except that the terms of those initially appointed shall be as follows:

(1) the general contractor and one specified handicapped person shall be appointed for a term of one year

(1) the professional engineer and one specified handicapped person shall be appointed for a term of two (2) years;

(2) the architect and one specified handicapped person shall be appointed for a term of three (3) years;

(3) the attorney and one specified handicapped person shall be appointed for a term of four (4) years.

(f) The Chairperson shall be appointed by the Governor from among the voting members of the Board.

(g) Any vacancy among the voting members of the Board shall be filled by the Governor for the balance of the unexpired term. The missing of either three consecutive meetings or of any four out of any twelve consecutive meetings shall constitute an executed resignation from the Board by a voting member. The Governor has the authority to remove a voting member of the Board for good cause.

(h) Voting members of the Board shall receive a compensation of twenty-five ($25) dollars per day when they are engaged in their duties as members of the Board. The members shall be reimbursed for their actual travel and other necessary expenses incurred in carrying out their duties.

§7305. Procedures of the Board

(a) The Board shall meet as often as deemed necessary by a majority of the Board, but in no event shall the Board meet less frequently than once every two calendar months.

(b) Six voting members of the Board shall constitute a quorum, which shall be necessary to vote on any issue.

(c) Except as otherwise provided by this Chapter, the Board shall not take any action without a majority vote of a quorum of the voting members at a duly-called meeting.

(d) The Board shall adopt other procedures as it deems appropriate.

§7306. Duties and Powers of the Board

(a) In addition to the other duties expressly conferred by this Chapter, the Board shall have the following duties and responsibilities:

(1) Promulgate rules and regulations which shall contain standards for the design and construction of facilities covered by this Chapter to assure that such facilities covered by this Chapter to assure that such facilities are safely accessible to and usable by handicapped persons. Such standards shall be adopted by a majority vote of the Board following public hearings and shall take into account the requirements and standards recommended by the American National Standards Institute (ANSI) and the Building Officials and Code Administrators (BOCA) and any amendments thereto, and standards and requirements set out in applicable guidelines of the federal government; Provided, that until such time as the regulations containing standards as required by this paragraph are formally adopted by the Board, the standards contained in subsections (a) through (n) of 56917, Title 29 shall remain in force and effect and shall be applied by the Board;

(2) Promulgate rules and regulations for the granting of waivers from the requirements of this Chapter and the Board's standards. Such rules and regulations shall be adopted by a majority vote of the Board after public hearings may provide for conditional or temporary waivers where appropriate, and shall take into account such factors as the availability of acceptable alternatives to the Board's standards; and whether or not compliance with the standards will produce extreme economic hardship without substantial benefit to handicapped persons.

(3) Publish the standards and regulations adopted pursuant to subparagraphs (1) and (2) and make copies available to architects, engineers, contractors, state and local building inspectors and public works officials and other interested persons and groups;

(4) Review all submissions to the Board pursuant to the requirements of S7308 of this Chapter to determine if the requirements of this Chapter and the standards of the Board are met and, upon a determination that the pertinent requirements are met, issue a letter of approval for such construction;

(5) Monitor compliance with pertinent standards during construction of a facility for which a letter of approval has been Issued;

(6) Upon written application setting forth good and sufficient reason therefor, grant written waivers from this Chapter and the standards of the Board, pursuant to 57309 of this Chapter.

(7) Receive and act upon complaints concerning alleged non-compliance with this Chapter and the standards of the Boar4

(8) Survey existing facilities which have been constructed, leased or financed by the State prior to the effective date of this Chapter and recommened to the Secretary of Administrative Services steps to eliminate existing architectural barriers;

(9) Formulate educational and training courses to assist in the accomplishment of the purpose of this Chapter;

(10) Make studies and collect and retain data relative to the purpose of this Chapter;

(11) Provide for public awareness of architectural accessibility and of the requirements relative thereto,

(b) For the effectuation of the purposes of this Chapter, the Board, in addition to such other powers expressly granted to it by this Chapter, shall have the following powers:

(1) To make and promulgate rules and regulations, not inconsistent with the provisions of this Chapter, that are necessary and proper for the administration and operation of the Board and for the conduct of the business of the Board;

(2) To appoint in conjunction with the Secretary of Administrative Services, a chief administrator, who shall serve as the chief executive officer for the Board and who shall supervise such clerical and other staff as may be provided by the Secretary of the Department of Administrative Services;

(3) To hold hearings, inspect construction or to provide for inspection by the Chief Administrator, by other staff of the Department of Administrative Services as may be made available by the Secretary, or by purchase of services, request information and perform other acts which are necessary and proper for effectuating the purpose of this Chapter.

§7307. Applicability of Administrative Procedures Act

The Board shall be a State agency affected by the Administrative Procedures Act, Title 29, Chapter 64, of the Delaware Code. Except as otherwise specifically required by this Chapter or the regulations of the Board, public hearings as defined by the Administrative Procedures Act, shall not be required.

§7308. Submission of Plans

(a) No person shall undertake the construction or alteration of any facility covered by this Chapter without first submitting the plan, specifications or design for such construction to the Board for review and approval. No such construction shall commence until the Board has issued a letter of approval stating that the proposed construction conforms with this Chapter and the Board's standards.

(b) Plans, specifications or designs for all construction or alterations shall be filed with the Board by the design architect or engineer, or in the case of plans and specifications for which there is no design architect or engineer by a person responsible for the construction or alterations. All solicitations for bids on projects for construction or alteration of facilities covered by this Chapter, which are published pursuant to the provisions of this Title, shall state that conformity to the Delaware Architectural Accessibility Act and the standards of the Board shall be required.

(c) No facility shall be leased or rented by the State of Delaware unless the State agency responsible for the lease has submitted to the Board for review and approval such plans, description, specifications or other documentation concerning the accessibility of such facility as the Board by regulation may require.

(d) Any plans, specifications, designs or other documentation required under this Section which are properly submitted to the Board at least ten (10) days prior to a meeting of the Board shall be acted upon by the Board on or before the meeting next following such meeting of the Board, or within sixty days following its submission, whichever first occurs. In the event that the Board has not acted upon a submission within such period, the Chairperson of the Board shall Issue a letter of approval to the submitter.

(a) The Board may reject any submission either in whole or in part for non-compliance with this Chapter or the standards of the Board. The Board shall state in writing its reason for such rejection.

§7309. Granting of Waivers

(a) Upon written application setting forth good and sufficient reason, the Board may grant a waiver from this Chapter and the Board's standards.

(b) Such application shall specify the facts relating to the request for the waiver. Any waiver granted by the Board shall be in writing and shall specify the Board's reason for granting the waiver.

§7310. Judicial Review and Enforcement

(a) Any person aggrieved by a final order of the Board may appeal pursuant to the provisions of the Administrative Procedures Act, 29 Delaware Code, Chapter 64.

(b) Whenever the Board has evidence that any person has violated or is violating any provision of this Chapter or the Board's standards, the Board shall notify the alleged violator and by informal negotiation attempt to resolve the problem. Such notice shall contain a date upon which the Board will next meet, at which time the person so notified may hear in its entirety the basis of the Board's finding. The Board and the person so notified shall attempt to agree upon a solution for compliance, which shall prescribe the action necessary to achieve compliance.

(c) If no solution for compliance is agreed upon, or if the alleged violation continues, the Board shall refer the matter to the Attorney General, who may institute appropriate legal proceedings, including an action for an injunction or temporary restraining order to enjoin violations of the Chapter or the Board's standards.

(d) Any handicapped person or groups of handicapped persons may bring an action for legal or equitable relief from violations of this Chapter and the Board's standards and may be awarded compensatory and punitive damages suffered as a result of such violations. If successful in such litigation, the handicapped persons bringing the litigation shall be reimbursed for all costs and expenses of the litigation, including attorneys' fees as may be allowed by the Court.

(e) The Superior Court in and for the County for in which alleged violation occurred shall have jurisdiction of civil actions under this section. The Court of Chancery in and for the County in which the alleged violation occurred shall have jurisdiction over actions for injunctive relief.

(f) Any person who violates any provision of this Chapter or any standard or order of the Board shall be subject to a civil penalty not to exceed five hundred dollars ($500) for each day such violation continues.

(g) No action hereunder may be commenced after the expiration of two (2) years from the completion of the construction of any facility or alteration thereto.

§7311. Criminal Penalties

(a) Any person who violates any provision of this Chapter or the regulations of the Board shall be guilty of a Class B misdemeanor and fined as provided in S4207 of Title 11.

(b) Whenever any person is convicted of a misdemeanor hereunder, no public construction contract with the State shall be awarded to or received by such person or any firm, partnership or corporation in which such person has an interest until the expiration of one year from the date sentence was pronounced and any fine has been paid in full.

(c) The Superior Court shall have jurisdiction of offenses under this Section.

§7312. Insignia

The Board shall adopt a symbol of access to handicapped persons, which may be the international symbol of access, which shall be permanently and prominently displayed on all buildings covered by this Chapter which comply with the requirements of the Chapter and the Board's standards. Said insignia shall not be displayed unless compliance exists."

Section 2. Appropriation.

(a) The sum of fifty thousand ($50,000) dollars is appropriated to the Board to effectuate the provisions of this Act for the Fiscal Year 1980.

(b) The funds appropriated by subsection (a) are a supplemental appropriation and shall be paid from the General Fund of the State Treasury from monies not otherwise appropriated. The funds herein appropriated shall be expended only in the manner set forth herein and funds appropriated but unexpended on June 30, 1980, shall revert to the General Fund.

Section 3. Severability Clause.

If any provision of this pet or the application thereof to any person or circumstances is held invalid, such invalidity shall not affect any other provision or application and to this end the provision of the Act are declared severable.

Section 4. The provisions of §6917 of Title 29, Delaware Code, with the exception of subsection (a) through (n) thereof, are hereby repealed. The provisions of subsection (a) through (n) of S6917 shall be repealed upon formal adoption by the Architectural Accessibility Board of the regulations required by S730& (a) (1) of Section 1 of this Act.

Approved July 13, 1979.