TITLE 29

State Government

Budget, Fiscal, Procurement and Contracting Regulations

CHAPTER 73. ARCHITECTURAL ACCESSIBILITY ACT


It is the purpose of this chapter to enable members of society with disabilities 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.

62 Del. Laws, c. 174, § 1; 78 Del. Laws, c. 179, § 302.;

As used in this chapter:

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

(2) "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 person with a disability.

(3) "Board" means the Architectural Accessibility Board.

(4) "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.

(5) "Person" means 1 or more individuals, partnerships, associations, organizations, corporations, cooperatives, representatives, trustees, receivers or agents whether or not associated in any way with the State.

(6) "Person with a disability" 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.

62 Del. Laws, c. 174, § 1; 78 Del. Laws, c. 179, §§ 303, 304.;

(a) This chapter shall be applicable to any facility or part of any facility and to any alteration thereto, which, after July 13, 1979, is:

(1) Constructed by or on behalf of the State;

(2) Is leased or rented in whole or in part by the State;

(3) Is financed in whole or in part by the State or by bonds guaranteed in whole or in part by the State.

(b) 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.

62 Del. Laws, c. 174, § 1; 77 Del. Laws, c. 446, § 2.;

(a) There is hereby created an Architectural Accessibility Board which is an agency of the State for carrying out the purpose of this chapter. The Board, for administrative purposes, shall be within the Office of Management and Budget.

(b) The Board shall be composed of 9 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;

(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;

(5) Four persons with disabilities, at least 1 of whom shall use a wheelchair;

(6) One member of the general public who is a parent, guardian or representative of a person with a disability or persons with disabilities, or who provides services to persons with disabilities or who has a demonstrated involvement in programs for persons with disabilities.

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

(d) The following persons, or persons designated by 1 of the following, shall be ex officio, or nonvoting 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) Director of the Office of Management and Budget;

(5) Secretary of the Department of Education;

(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 4 years, except that the terms of those initially appointed shall be as follows:

(1) The general contractor and 1 specified person with a disability shall be appointed for a term of 1 year;

(2) The professional engineer and 1 specified person with a disability shall be appointed for a term of 2 years;

(3) The architect and 1 specified person with a disability shall be appointed for a term of 3 years;

(4) The attorney and 1 specified person with a disability shall be appointed for a term of 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 3 consecutive meetings or of any 4 out of any 12 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 $25 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.

62 Del. Laws, c. 174, § 1; 71 Del. Laws, c. 378, § 114; 75 Del. Laws, c. 88, § 16(5); 78 Del. Laws, c. 179, §§ 305-309.;

(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 2 calendar months.

(b) Five 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.

62 Del. Laws, c. 174, § 1; 71 Del. Laws, c. 138, § 8.;

(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 are safely accessible to and usable by persons with disabilities. 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 § 6917 [repealed] of this title 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 and 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 persons with disabilities;

(3) Publish the standards and regulations adopted pursuant to paragraphs (1) and (2) of this subsection 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 § 7308 of this title 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 § 7309 of this title;

(7) Receive and act upon complaints concerning alleged noncompliance with this chapter and the standards of the Board;

(8) Conduct a polling place accessibility assessment upon referral from a department of election in implementation of § 4512 of Title 15;

(9) Survey existing facilities which have been constructed, leased or financed by the State prior to July 13, 1979, and recommend to the Director of the Office of Management and Budget steps to eliminate existing architectural barriers;

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

(11) Make studies and collect and retain data relative to the purpose of this chapter;

(12) 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 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 Director of the Office of Management and Budget, 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 Director of the Office of Management and Budget;

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

62 Del. Laws, c. 174, § 1; 75 Del. Laws, c. 88, § 16(5); 77 Del. Laws, c. 446, § 3; 78 Del. Laws, c. 179, § 310.;

The Board shall be a state agency affected by the Administrative Procedures Act, Chapter 64 of this title. 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.

62 Del. Laws, c. 174, § 1.;

(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 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 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 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 60 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.

(e) The Board may reject any submission either in whole or in part for noncompliance with this chapter or the standards of the Board. The Board shall state in writing its reason for such rejection.

62 Del. Laws, c. 174, § 1.;

(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.

62 Del. Laws, c. 174, § 1.;

(a) Any person aggrieved by a final order of the Board may appeal pursuant to the Administrative Procedures Act, Chapter 101 of this title.

(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 person with a disability or groups of persons with disabilities 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 persons with disabilities 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 $500 for each day such violation continues.

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

62 Del. Laws, c. 174, § 1; 78 Del. Laws, c. 179, § 311.;

(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 § 4207 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 1 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.

62 Del. Laws, c. 174, § 1.;

The Board shall adopt a symbol of access to persons with disabilities, 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.

62 Del. Laws, c. 174, § 1; 78 Del. Laws, c. 179, § 312.;