WAC 162-26-100     Structural barriers to accessibility.

     (1) Statute. RCW 49.60.215 says that it "shall not be construed to require structural changes, modifications, or additions to make any place accessible to a disabled person except as otherwise required by law. . . ."

     (2) Laws requiring accessibility. The principal laws requiring that places be made accessible are:

          (a) The state building code, chapter 19.27 RCW, which includes the barrier free design standards adopted in chapter 51-10 WAC under authority of chapter 70.92 RCW. The barrier free design standards apply with some exceptions to "buildings, structures, or portions thereof, . . . which are constructed, substantially remodeled, or substantially rehabilitated after October 1, 1976." WAC 51-10-003.

          (b) Chapter 219, Laws of 1971 ex. sess., in effect from August 9, 1971, through June 30, 1976. This statute required that plans and specifications for the erection or remodeling of any public accommodation must provide for access by persons with physical disabilities, for toilet facilities designed for use by the persons with physical disabilities, and for additional facilities specified in a national standard.

          (c) Chapter 35, Laws of 1967, in effect from June 8, 1967, through June 30, 1976. This statute was substantially the same as the 1971 statute described in paragraph (b) of this subsection, but was limited in its coverage to public buildings.

          (d) RCW 35.68.075, requiring curb ramps in sidewalks constructed or replaced after June 7, 1973.

          (e) United States law; particularly 45 CFR 84.23 implementing section 504 of the Rehabilitation Act of 1973 (29 U.S.C. 794), which requires that facilities constructed after April 28, 1977 with federal assistance be readily accessible to and usable by disabled persons.

          (f) The Americans with Disabilities Act of 1990, codified at 42 U.S.C. 12101 et seq.

     (3) Practices that are not unfair. It is not an unfair practice under RCW 49.60.215 to operate a place of public accommodation with structural barriers to accessibility of the person with a disability when the structural barriers were lawful when constructed and are presently lawful under the state building code and other law outside of the law against discrimination. This exemption does not relieve the operator of a place of public accommodation of the duty to make reasonable accommodation to the needs of disabled persons as described in WAC 162-26-080, or to provide arranged service as described in WAC 162-26-090.

     (4) When required by law. It is an unfair practice under RCW 49.60.215:

          (a) To deny service to any person because of a barrier to accessibility when accessibility is required by law;

          (b) To build or remodel in a way that does not comply with requirements of law on accessibility;

          (c) To operate a place of public accommodation that is out of compliance with a law requiring accessibility;

          (d) To fail to maintain or fail to continue the accessibility of a place of public accommodation that was required by law to be accessible when it was built, remodeled, or rehabilitated.

     (5) Nonstructural changes. After January 1, 1983, it is an unfair practice under RCW 49.60.215 for a person who is making nonstructural changes in a place of public accommodation to fail to eliminate barriers to same service when this can be done without substantially changing the scope or cost of the project or requiring structural changes that are not otherwise required by law. Specifically, it is an unfair practice:

          (a) When installing a nonstructural fixture or component, to choose and install one that is not accessible to the person with a disability or that makes the place of public accommodation less accessible to the person with a disability.

          (b) When replacing a nonstructural fixture or component, to replace it with one that is not accessible to the handicapped or one that makes the place of public accommodation less accessible to the person with a disability.

          (c) When relocating a nonstructural fixture or component, to relocate it to a place that is not accessible to the person with a disability, unless no suitable place is accessible.

          (d) When modifying a nonstructural fixture or component, to do so in a way that does not eliminate barriers to the person with a disability, when possible.

     (6) What is "structural." "Structural" for purposes of RCW 49.60.215 means the load-bearing members and essential structure or composition of a place, as distinguished from its finish, decorations, or fittings. Examples of struc al components are floors, walls, stairs, door openings, sidewalks, elevators, and escalators. Examples of things that are not structural are moveable walls, bathroom fixtures and partitions, fixtures such as water fountains (whether or not attached to a wall), doors and door hardware, cabinets, counters, handrails, signs (attached or painted), elevator controls, alarm systems, and carpeting or other floor covers.

[Statutory Authority: RCW 49.60.120(3) and 1997 c 271. 98-08-035, 162-26-100, filed 3/23/98, effective 4/23/98. Statutory Authority: RCW 49.60.120(3). 83-02-012 (Order 43), 162-26-100, filed 12/23/82.]