HBA-ALS C.S.H.B. 3194 76(R)BILL ANALYSIS Office of House Bill AnalysisC.S.H.B. 3194 By: Moreno, Joe Licensing & Administrative Procedures 4/19/1999 Committee Report (Substituted) BACKGROUND AND PURPOSE For the past two years, the Coalition of Texans with Disabilities (CTD) has been working with the Texas Society of Architects and the Texas Board of Architectural Examiners to resolve the concerns of design professionals while maintaining the strengths of the Texas Architectural Barriers program administered by the Texas Department of Licensing and Regulation (department). There is concern that the department often waives or modifies standards, resulting in violations of the federal Americans with Disabilities Act (ADA). C.S.H.B. 3194 amends the Texas Architectural Barriers Act to prevent the Texas Commission of Licensing and Regulation (commission) from waiving or modifying any standard or specification that would result in a violation of ADA. This bill transfers all of the powers, duties, and rulemaking authority of the commissioner of licensing and regulation to the commission. RULEMAKING AUTHORITY It is the opinion of the Office of House Bill Analysis that the rulemaking authority previously delegated to the commissioner of licensing and regulation is transferred to the Texas Commission of Licensing and Regulation (commission)in SECTION 6 (Section 5, Article 9102, V.T.C.S.) and SECTION 8 (Section 7(d), Article 9102, V.T.C.S.) of this bill. SECTION BY SECTION ANALYSIS SECTION 1. Amends Section 1, Article 9102, V.T.C.S., to provide that the provisions of this article are to further the policy of the state to encourage and promote the rehabilitation of persons with disabilities and to eliminate unnecessary barriers encountered by persons with disabilities, whose ability to engage in gainful occupations or to achieve maximum personal independence is needlessly restricted. Deletes language providing that the provisions of this article are to further the policy of the state to encourage and promote the rehabilitation of persons with disabilities and to eliminate unnecessary barriers encountered by persons with disabilities, whose ability to engage in gainful occupations or to achieve maximum personal independence is needlessly restricted when such persons cannot readily use public buildings. SECTION 2. Amends Sections 2(a), (d), (e), and (f), Article 9102, V.T.C.S., as follows: (a) Provides that the standards adopted under this article apply to a building or facility, rather than a building or facility used by the public, that is constructed, or renovated, modified, or altered, in whole or in part on or after January 1, 1970, through the use of state, county, or municipal funds, or the funds of any political subdivision of the state, and to a privately funded building or facility defined as a "public accommodation" by Section 301(7), 42 U.S.C. Section 12181 (federal Americans with Disabilities Act of 1990) and its amendments, that is constructed or renovated, modified, or altered on or after January 1, 1992, and a privately funded building or facility defined as a "commercial facility" by Section 301, 42 U.S.C. Section 12181 (Americans with Disabilities Act of 1990) as well as to its subsequent amendments, that is constructed or renovated, modified, or altered on or after September 1, 1993, in addition to previously specified buildings and facilities. Makes conforming changes. (d) Provides that an owner of a building leased or occupied in whole or in part for use by the state under an agreement entered into on or after January 1, 1972, or of a building or facility leased or rented for use by the state through the use of federal funds, or the owner's designated agent, must present to the commission, rather than to the commissioner, the proof required by Subsection (c) before a specified date. (e) Prohibits the commission from waiving or modifying any standard or specification when the commission knows that waiving or modifying a standard or specification would result in a violation of the federal Americans with Disabilities Act of 1990 and its amendments. Makes a conforming change. Redesignates existing Subdivision (2) to new Subdivision (3). (f) Makes a conforming change. SECTION 3. Reenacts and amends Section 2(c), Article 9102, V.T.C.S., as amended by Chapters 684 and 821, Acts of the 73rd Legislature, Regular Session, 1993, to make confirming changes. SECTION 4. Amends Section 3(b), Article 9102, V.T.C.S., to provide that this article is intended to make all buildings and facilities covered by this article accessible to, and functional for, persons with disabilities to, through, and within their doors, without loss of function, space, or facilities, rather than only where the general public is concerned. SECTION 5. Amends Section 4, Article 9102, V.T.C.S., to define "interior designer" and "landscape architect." Makes nonsubstantive changes. SECTION 6. Amends Section 5, Article 9102, V.T.C.S., as follows: Sec. 5. New title: DEPARTMENT RESPONSIBILITIES. Deletes "for enforcement" from existing title. (a) Makes conforming changes. (b) Created from existing text in Subsection (a). (c) Created from existing text in Subsection (a). Makes a conforming change. (d) Created from existing text in Subsection (a). Makes conforming and nonsubstantive changes. (e) Created from existing text in Subsection (a). (f) Created from existing text in Subsection (a). (g) Redesignated from existing Subsection (b). Makes a conforming change. (h) Created from existing text in Subsection (b). Makes conforming and nonsubstantive changes. (i) Redesignated from existing Subsection (c). Makes conforming changes. (j) Redesignated from existing Subsection (d). Makes conforming and nonsubstantive changes. (k) Requires the submission of plans and specifications to the department by the landscape architect, in addition to the architect, interior designer, or engineer, who has overall responsibility for the design of the constructed or reconstructed building or facility. Requires an architect to submit the plans and specifications to the department no later than the fifth day after the date on which the architect places the architect's seal on the plans and specifications. Requires an owner, on application to a local government entity for a building construction permit related to the plans and specifications, to submit to the entity proof of the submission of such items to the department. Makes a conforming change (l) Deletes language providing that the plans and specifications that are not approved or disapproved by the department within 30 days from the receipt of the plans and specifications are automatically approved. Makes a nonsubstantive change. (m) Requires the commission, if an architect, interior designer, landscape architect, or engineer required to submit or resubmit plans and specifications to the department fails to do so in a timely manner, to report the fact to the Texas Board of Architectural Examiners, the State Board of Registration for Professional Engineers, or a licensing authority that regulates the individual, as appropriate. (n) Redesignated from existing Subsection (e). Makes a conforming change. (o) Deletes language redesignated from existing Subsection (f), which related to the requirement that the commissioner contract with a municipality to perform the commissioner's review and inspection functions for privately financed buildings not leased by the state or a political subdivision and to require municipal personnel who perform such duties to comply with qualification or certification requirements adopted or approved by the commissioner. Redesignated from existing Subsection (g). Makes conforming changes. (p) Redesignated from existing Subsection (h). Makes conforming changes. SECTION 7. Amends Section 6, Article 9102, V.T.C.S., to require the commission to set and charge fees for performing its functions under this article in accordance with Article 9100, V.T.C.S., rather than Section 12. SECTION 8. Amends Section 7(d), Article 9102, V.T.C.S., to make a conforming change. SECTION 9. Amends Section 681.009(b), Transportation Code, to make conforming changes. SECTION 10. Provides that on the effective date of this Act, a rule previously adopted by the commissioner of licensing and regulation under Article 9102, V.T.C.S., as that article existed before amendment by this Act, and that is in effect immediately before the effective date of this Act, becomes a rule of the commission and remains in effect until repealed or superseded by a rule adopted by the commission. SECTION 11. Makes application of this Act prospective. SECTION 12.This Act takes effect September 1, 1999. SECTION 13.Emergency clause. COMPARISON OF ORIGINAL TO SUBSTITUTE The substitute redesignates SECTIONS 2-14 of the original to SECTIONS 1-13 of the substitute. The substitute modifies the original by deleting SECTION 1 of the original which amended Section 13(a), Article 9100, V.T.C.S., to prohibit the Texas Commission of Licensing and Regulation (commission) from delegating to the commissioner of licensing and regulation (commissioner) the authority to exercise all or part of the commission's duties and functions under Article 9102, V.T.C.S. (Architectural Barriers). The substitute modifies the original in SECTION 3 to reenact and amend, rather than merely amend, Section 2(c), Article 9102, V.T.C.S., as amended by Chapter 684, in addition to Chapter 821, Acts of the 73rd Legislature, Regular Session, 1993. The substitute modifies the original in SECTION 6 (Section 5, Article 9102, V.T.C.S.) in proposed Subsection (i) to delete proposed language requiring the standards and specifications adopted by the commission under this article to be equivalent to or more stringent than those adopted under federal law, rather than consistent in effect to those adopted by the American National Standards Institute, Inc.. Reinstates existing of language requiring the Texas Department of Licensing and Regulation (department) to publish the standards and specifications for the use of interested parties, and requiring standards and specifications, and other rules to be adopted by the commissioner, to be consistent with those adopted under federal law. The substitute modifies the original in SECTION 6 (Section 5, Article 9102, V.T.C.S.) in proposed Subsection (j) to reinstate original language requiring that plans and specifications for construction or for the substantial renovation, modification, or alteration of a building or facility that is estimated to cost $50,000 or more and that is subject to the provisions of this article to be submitted to the department for review and approval prior to the time construction begins, and to delete proposed language requiring the submission of the plans and specifications to the department no later than the 30th day after the date construction begins. The substitute modifies the original in SECTION 6 (Section 5, Article 9102, V.T.C.S.) in proposed Subsection (k) to require that an architect submit plan and specifications to the department no later than the fifth day after the date on which the architect places the architect's seal on the plans and specifications. Requires an owner, on application to a local government entity for a building construction permit related to the plans and specifications, to submit to the entity proof of the submission of such items to the department.