Kansas Attorney General Opinion 1992-106

ROBERT T. STEPHAN
ATTORNEY GENERAL
August 17, 1992
ATTORNEY GENERAL OPINION NO. 92-106
Robert J. Watson
City Attorney
City Hall
8500 Santa Fe Drive
Overland Park, Kansas 66212
Re: Personal and Real Property -- Public Buildings --
Architectural Accessibility Standards Act
Synopsis: Renovations, alterations or construction of
government buildings may be accomplished by using
either uniform federal accessibility standards
(UFAS) or Americans with disabilities act
accessibility guidelines (ADAAG) standards. The
reference to 28 C.F.R. part 36 in section 7 of 1992
House Bill No. 2602 as the only standard was a
technical error. Local building code officials are
not required to investigate complaints about
accessibility in public buildings. The enforcement
authority of the local building code-officials is
limited to denying the application for a building
permit for the construction or alteration of a
building. Since 1992 House Bill No. 2602 states
that all public buildings and facilities shall
conform to federal regulations (28 C.F.R. part 36)
and no state regulations have been drafted
regarding the design and occupancy standard, we
must infer that the legislature meant for the
federal regulations and interpretations to apply in
determining whether a facility is subject to the

new construction standards. Unless the
landlord-tenant contract provides otherwise, the
tenant is not responsible for making other areas
included in the path of travel accessible if such
is not within the tenant's control. Cited herein:
K.S.A. 58-1301, as amended by L. 1992, ch. 208, §
1; K.S.A. 1991 Supp. 58-1305, as amended by L.
1992, ch. 208 § 7; 28 C.F.R. parts 35, 36.
Dear Mr. Watson:
As Overland Park city attorney you request our opinion on
several issues regarding 1992 House Bill No. 2602, which
became effective on July 1,1992. L. 1992, ch. 208.
I. "Does state law preclude using the Uniform Federal
Accessibility Standards (UFAS) as the standard for
accessibility for new construction and alteration for
governmental buildings?"
The question stems from the confusion surrounding L. 1992,
ch. 208, § 7 which in subsection (b) specifically states
that design, construction and alteration of public buildings
shall conform with 28 C.F.R. part 36 (ADAAG standards),
whereas, design, construction and alteration of governmental
buildings shall conform with 28 C.F.R. part 35 (ADAAG or
UFAS standards). Subsection 7(d) then states that the
"design, construction or alteration of public and
governmental buildings or facilities shall be done in
conformance with . . . Appendix A to 28 C.F.R. part 36,
except that the elevator exemption at section 4.1.3(5) and
section 4.1.6(i)(j) shall not apply to governmental buildings
or facilities." (Emphasis added). The statement in
subsection (d) seems to say that governmental buildings cannot
use UFAS even though subsection (b) specifically allows use
of such standards.
The original language of 1992 House Bill No. 2602 did not
contain subsection (d); this provision was added when the
senate committee requested that the bill be amended so as to
include an elevator exemption for public buildings. "In
construing statutes, the legislative intent is to be
determined from a general consideration of the entire act.
Effect must be given, if possible, to the entire act and every

part thereof. To this end, it is the duty of the court, as
far as practicable, to reconcile the different provisions so
as to make them consistent, harmonious, and sensible." State
v. Adee, 21 Kan. 825, 829 (1987). Based on this general
rule of statutory construction, it is our belief that since
the original parts of 1992 House Bill No. 2602 allowed
governmental buildings to use UFAS or ADAAG, that should
be considered the standard and that subsection (d) was mainly
intended to incorporate the elevator exemption for public
buildings.
However, it should be noted that the Architectural and
Transportation Barriers Compliance Board (ATBCB) is
currently drafting regulations for Title II entities. The
Department of Justice anticipates amending this rule after the
regulations have been published, and adopting standards in
line with ATBCB's regulations. Therefore, the choice of
following UFAS or ADAAG seems to be a short-lived option.
II. "Does K.S.A. 58-1304, as amended, impose any duty upon
local public officials to investigate a complaint regarding
barriers in 'public buildings' which deny accessibility to
individuals with disabilities if no one has made application
for a permit for any alteration or construction of the
building?"
Local public building code officials are not required to
investigate complaints or do random checks on buildings to see
that they are accessible. Even though they are responsible
for the enforcement of the provisions found at K.S.A. 58-1301
through 58-1309, their only means of enforcement is to deny an
application for a building permit for the construction or
renovation of the building.
III. "Does the local official responsible for enforcement of
K.S.A. 58-1301 et seq. have a duty to ensure that building
permits and occupancy permits are issued for construction of
new "public buildings" only if the building is designed and
constructed in accordance with ADAAG standards for first
occupancy after January 26 1993?"
You argue that since L. 1992, ch. 208, § 1 requires all
public buildings and facilities in this state to conform with
federal regulations (28 C.F.R. part 36) that the same time
requirements set out in the federal regulations apply in
Kansas.

Because the legislature did not set out any specific
standards, we must infer that they meant for the federal
regulations and interpretations to be applicable to the
state. Based on this analysis we agree with your conclusion
and therefore local code officials should follow what the
United States department of justice has set forth for
determining when a facility is subject to the new construction
standards:
"(1) if the last application for a
building permit or permit extension for
the facility is certified to be complete
(or, in some jurisdictions, received) by a
state, county, or local government after
January 26, 1992, and (2) if the first
occupancy is issued after January 26,
1993." 28 C.F.R. part 36, p. 35575
(7-26-91).
IV. "Should the local official issue a building permit to a
tenant who is making alterations on the premises under the
tenant's control although other areas in the path of travel
which are not under the tenant's control need to be altered to
make the path of travel readily accessible to and usable by
individuals with disabilities?"
28 C.F.R. part 36.201(b) states the general rule regarding
landlord and tenant responsibilities in places of public
accommodation.
"Both the landlord who owns the building
that houses a place of public
accommodation and the tenant who owns or
operates the place of public accommodation
are public accommodations subject to the
requirements of this part. As between the
parties, allocation of responsibility for
complying with the obligations of this
part may be determined by lease or other
contract."
28 C.F.R. part 36.403(d) discusses path of travel alterations
and landlord/tenant responsibilities:
"If a tenant is making alterations as
defined in § 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."
"This paragraph was contained in the
landlord/tenant section of the proposed
rule, § 36.201(b). If the tenant is
making alterations upon its premises
pursuant to terms of a lease that grant it
the authority to do so (even if they
constitute alterations that trigger the
path of travel requirement), and the
landlord is not making alterations to
other parts of the facility, then the
alterations by the tenant on its own
premises do not trigger a path of travel
obligation upon the landlord in areas of
the facility under the landlord's
authority that are not otherwise being
altered. The legislative history makes
clear that the path of travel requirement
applies only to the entity that is already
making the alteration, and thus the
Department has not changed the final rule
despite numerous comments suggesting that
the tenant be required to provide a path
of travel." 28 C.F.R. part 36, p. 35582
(7-26-91). (Emphasis added).
Therefore, unless there is some contract provision to the
contrary, we are of the opinion that the tenant is not
responsible for making the other areas included in the path of
travel accessible if such areas are not under his or her
control.
In conclusion, the renovations, alterations or construction of
government buildings may be done either by UFAS or ADAAG
standards and the reference only to 28 C.F.R. part 36 in
subsection 7(d) of 1992 House Bill No. 2602 was a technical
error. Local building code officials are not required to
investigate complaints about accessibility in public

buildings. The enforcement authority of the local building
code officials is limited to denying an application for a
permit for the construction or alteration of a building.
Since 1992 House Bill No. 2602 states that all public
buildings and facilities shall conform to federal regulations
-(28 C.F.R. part 36) and no state regulations have been drafted
regarding the design and occupancy standard, we must infer
that the legislature meant for the federal regulations and
interpretations to apply in determining whether a facility is
subject to the new construction standards. Unless the
landlord-tenant contract provides otherwise, the tenant is not
responsible for making other areas included in the path of
travel accessible if such is not within the tenant's control.
Very truly yours,
ROBERT T. STEPHAN
ATTORNEY GENERAL OF KANSAS
Mary Jane Stattelman
Assistant Attorney General
RTS:JLM:MJS:bas