Can a Virginia city require pre-ADA commercial buildings to retrofit their doors with manual entry hardware for disability access?

Plain-English summary

Delegate Stolle asked a focused but important question: can a Virginia locality enact an ordinance requiring older commercial buildings, those constructed before the Americans with Disabilities Act and the Architectural Barriers Act took effect, to retrofit their entries with manual door hardware that improves disability access?

Attorney General Mark R. Herring concluded no. Two related principles block local action.

First, the Dillon Rule limits Virginia local governments to powers expressly granted by the General Assembly, those necessarily implied, and those that are essential and indispensable. The General Assembly has not delegated authority to localities to mandate building retrofits of this kind.

Second, the General Assembly has occupied the field. The Virginia Uniform Statewide Building Code (USBC) and the Statewide Fire Prevention Code (SFPC) govern building construction, retrofitting, and fire prevention statewide. Section 36-98 says the USBC "shall supersede the building codes and regulations of the counties, municipalities and other political subdivisions ...." Section 27-97 says the SFPC "shall supersede fire prevention regulations heretofore adopted by local governments or other political subdivisions." There is a narrow carve-out in § 27-97 letting localities adopt more restrictive fire-prevention regulations, but only if they "do not affect the manner of construction, or materials to be used in the erection, alteration, repair, or use of a building or structure." A door-hardware retrofit ordinance plainly affects construction and materials, so the carve-out does not apply. Under the Dillon Rule corollary articulated in 2015 Op. Va. Att'y Gen. 144 and Lamar Co. v. City of Richmond, 287 Va. 348 (2014), "where the General Assembly expressly limits the power of a locality, rather than enabling it, the express limitation must be given effect."

The two federal statutes mentioned in the question have their own enforcement frameworks but do not delegate retrofit-enforcement authority to localities. The ADA covers commercial facilities designed and constructed for first occupancy after January 26, 1993 and requires existing facilities to remove architectural barriers when "readily achievable" (28 C.F.R. § 36.304), enforceable by individual lawsuits or by the U.S. Attorney General. The ABA covers federal buildings (and certain federally funded buildings) and is enforced through agency regulations and the U.S. Access Board. Neither expressly grants local enforcement authority.

Currency note

This opinion was issued in 2017. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

The USBC and SFPC are amended periodically. ADA and ABA enforcement frameworks have also evolved. Anyone analyzing a current proposed local accessibility ordinance should re-check the current preemption language and current case law on Dillon Rule application.

Background and statutory framework

The Americans with Disabilities Act (42 U.S.C. §§ 12101-12213; 28 C.F.R. §§ 36.101-36.607) prohibits disability discrimination. New construction is governed by ADA standards for commercial facilities "designed and constructed for first occupancy after January 26, 1993" (28 C.F.R. § 36.401(a)(1)). Existing facilities must remove architectural barriers when "readily achievable" (28 C.F.R. § 36.304), defined as "easily accomplishable and able to be carried out without much difficulty or expense." Examples include "[i]nstalling accessible door hardware" (28 C.F.R. § 36.304(b)(11)). Enforcement is by private lawsuit under 42 U.S.C. § 12188(a) or by the U.S. Attorney General under 42 U.S.C. § 12188(b).

The Architectural Barriers Act (42 U.S.C. §§ 4151-4156) covers buildings constructed, leased, or financed by the federal government. Enforcement runs through agency regulations and the U.S. Access Board, created by 29 U.S.C. § 792. Federal facilities are exempt from local building requirements (Arizona v. California, 283 U.S. 423, 451 (1931); United States v. City of Chester, 144 F.2d 415, 421 (3d Cir. 1944)).

Virginia local authority is constrained by the Dillon Rule. Richmond v. Confrere Club, 239 Va. 77, 79 (1990), articulates the rule: "municipal corporations possess and can exercise only those powers expressly granted by the General Assembly, those necessarily or fairly implied therefrom, and those that are essential and indispensable." Board of Supervisors v. Horne, 216 Va. 113, 117 (1975), applies the corollary to county boards of supervisors. Bd. of Zoning Appeals v. Bd. of Supvrs., 276 Va. 550, 554 (2008), confirms the corollary applies to "other public bodies such as boards of supervisors."

Within the field of building construction and retrofitting, the General Assembly has affirmatively preempted local action. Section 36-98 provides the USBC "shall supersede the building codes and regulations of the counties, municipalities and other political subdivisions." Section 27-97 provides the SFPC "shall supersede fire prevention regulations heretofore adopted by local governments or other political subdivisions." The narrow exception in § 27-97 allows local fire prevention regulations that are more restrictive or extensive but "do not affect the manner of construction, or materials to be used in the erection, alteration, repair, or use of a building or structure." A door-hardware retrofit mandate affects construction and materials and so falls outside the exception.

Section 36-99 directs that the USBC purpose includes "barrier-free provisions for the physically handicapped." So Virginia does address accessibility, but through the USBC, not local ordinances. Anyone seeking different or stronger accessibility requirements would need to pursue legislative changes to the USBC or rely on the federal ADA enforcement framework.

The opinion does not foreclose local accessibility initiatives entirely. Localities may, of course, retrofit their own buildings for accessibility, may use zoning incentives, may fund grant programs for accessibility improvements, and may advocate for changes to the USBC. The block is on mandatory ordinances requiring private commercial owners to retrofit pre-ADA buildings.

Common questions

Q: Can my city pass an ordinance requiring older businesses to install accessible door hardware?
A: The AG concluded no. The Virginia Statewide Building Code preempts local construction regulation, and the Dillon Rule blocks the local power.

Q: Doesn't the ADA already require accessible doors on existing buildings?
A: For commercial facilities designed and constructed before January 26, 1993, the ADA requires removal of "readily achievable" architectural barriers, and accessible door hardware is one example. Enforcement is by private lawsuit or by the U.S. Attorney General, not by local governments.

Q: What about new buildings? Can the city require accessible features in new construction?
A: New construction is governed by the USBC, which already incorporates accessibility requirements (and references ADA standards through the federally approved process). Localities cannot add their own building-construction rules on top.

Q: Could the city add fire-prevention rules that require accessible exits?
A: Section 27-97 allows narrowly tailored more-restrictive local fire-prevention regulations, but only if they don't affect construction methods or materials. A door-hardware mandate crosses that line.

Q: What can the city do to promote accessibility?
A: The opinion doesn't address policy alternatives. Cities can retrofit their own buildings, fund grant programs, offer zoning incentives, and advocate for amendments to the USBC. They just can't mandate private retrofits.

Q: Are federal buildings subject to local building codes?
A: No. Federal facilities are exempt from local building requirements as a matter of federal supremacy (Arizona v. California; United States v. City of Chester).

Citations and references

Virginia statutes and regulations:

• Va. Code Ann. § 27-97 (Statewide Fire Prevention Code preemption)
• Va. Code Ann. § 36-98 (Statewide Building Code preemption)
• Va. Code Ann. § 36-99 (USBC purpose, including barrier-free provisions)
• 13 Va. Admin. Code § 5-51-21
• 13 Va. Admin. Code § 5-63-20
• Va. Code Ann. § 2.2-505 (AG advisory opinion authority)

Federal statutes and regulations:

• 42 U.S.C. §§ 12101 to 12213 (ADA)
• 42 U.S.C. §§ 4151 to 4156 (ABA)
• 29 U.S.C. § 792 (U.S. Access Board)
• 28 C.F.R. §§ 36.101 to 36.607 (ADA implementing regulations)

Cases:

• Richmond v. Confrere Club of Richmond, Inc., 239 Va. 77 (1990)
• Bd. of Supvrs. v. Horne, 216 Va. 113 (1975)
• Bd. of Zoning Appeals v. Bd. of Supvrs., 276 Va. 550 (2008)
• Lamar Co., LLC v. City of Richmond, 287 Va. 348 (2014)
• Arizona v. California, 283 U.S. 423 (1931)
• United States v. City of Chester, 144 F.2d 415 (3d Cir. 1944)

Prior AG opinions:

• 2015 Op. Va. Att'y Gen. 144

Source

• Landing page: https://www.oag.state.va.us/annual-reports-opinions/official-opinions
• Original PDF: https://www.oag.state.va.us/files/Opinions/2017/16-062-Stolle-retrofitting-buildings-for-issuance.pdf

Original opinion text

COMMONWEALTH of VIRGINIA
Office of the Attorney General
Mark R. Herring
Attorney General

May 4, 2017

The Honorable Christopher P. Stolle, M.D.
Member, Virginia House of Delegates
Post Office Box 5429
Virginia Beach, Virginia 23471

Dear Delegate Stolle:

I am responding to your request for an official advisory opinion in accordance with § 2.2-505 of the Code of Virginia.

Issues Presented

You inquire whether a locality has authority to enact an ordinance mandating the retrofitting of commercial facilities with manual entry door hardware, where the facilities were constructed prior to the effective dates of the Americans with Disabilities Act (the "ADA") and the Architectural Barriers Act (the "ABA").

Applicable Law and Discussion

The ADA is a federal civil rights law that prohibits discrimination upon the basis of physical or mental disability.[1] It generally does not apply retroactively; only commercial facilities designed and constructed for first occupancy after January 26, 1993 are subject to ADA standards.[2] Nevertheless, it does provide that existing facilities[3] "shall remove architectural barriers"[4] for disabled persons when such changes would be "readily achievable."[5] It lists examples of changes deemed "readily achievable," one of which includes "[i]nstalling accessible door hardware."[6] Thus, it provides for limited retroactive application by requiring the retrofitting of manual entry door hardware for commercial facilities constructed prior to the effective date of the Act. It is enforceable by individual lawsuits or the United States Attorney General.[7]

Another federal law, the ABA,[8] serves "to insure whenever possible that physically handicapped persons will have ready access to, and use of, [buildings]."[9] It generally covers federal buildings and facilities, specifically, those constructed, leased, or financed by the United States Government, when such buildings are intended to be "accessible to the public, or may result in the employment or residence therein of physically handicapped persons ...."[10] It is enforceable through regulations that may be issued by certain federal agencies and enforced by another federal agency.[11] Federal facilities are exempt from local building requirements.[12]

Neither of these federal laws expressly grants enforcement authority to localities.

Against this background, you have asked whether a Virginia locality has the authority to enact an ordinance requiring the retrofitting of door hardware on commercial facilities constructed prior to the effective date of the ADA or the ABA. Virginia follows the Dillon Rule of strict construction, which "provides that municipal corporations possess and can exercise only those powers expressly granted by the General Assembly, those necessarily or fairly implied therefrom, and those that are essential and indispensable."[13] A corollary to the Dillon Rule provides that "the powers of boards of supervisors are fixed by statute and are limited to those conferred expressly or by necessary implication."[14] Therefore, whether a locality may enact the ordinance described in your request depends upon delegation of the requisite authority by the General Assembly.

Here, the General Assembly has not delegated such authority. In Virginia, the construction and retrofitting of buildings are governed by the Uniform Statewide Building Code (the "USBC") and the Statewide Fire Prevention Code (the "SFPC").[15] The Code of Virginia provides that the USBC and the SFPC shall supersede the regulation of building construction and retrofitting by localities.[16] "In keeping with the precepts of the Dillon Rule, where the General Assembly expressly limits the power of a locality, rather than enabling it, the express limitation must be given effect."[17] Thus, a locality may not enact the type of ordinance about which you inquire.

Conclusion

For the reasons set forth above, and in response to your inquiry about local authority to enact ordinances on this subject, it is my opinion that under current law a locality lacks authority to enact an ordinance requiring the retrofitting of commercial facilities with manual entry door hardware, where the facilities were constructed prior to the effective date of the ADA. It is my further opinion that under current law a locality lacks authority to enact an ordinance mandating the retrofitting of federal commercial facilities constructed prior to the effective date of the ABA.

With kindest regards, I am

Very truly yours,

Mark R. Herring
Attorney General

[1] See generally 42 U.S.C.S. §§ 12101 through 12213 (LexisNexis through Pub. L. No. 115-29); 28 C.F.R. §§ 36.101 through 36.607 (2017).

[2] 42 U.S.C.S. § 12183(a)(1); C.F.R. § 36.401(a)(1) ("[D]iscrimination for purposes of this part includes a failure to design and construct facilities for first occupancy after January 26, 1993, that are readily accessible to and usable by individuals with disabilities."). See also 28 C.F.R. § 36.401(a)(2) (clarifying when a building is deemed "designed and constructed for first occupancy").

[3] 28 C.F.R. § 36.104(3)(iii) (2017) (defining the term "existing facility" to mean "a facility in existence on any given date, without regard to whether the facility may also be considered newly constructed or altered under this part.").

[4] 28 C.F.R. § 36.304(a) (2017). See also 42 U.S.C.S. § 12182(b)(2)(A)(iv).

[5] 28 C.F.R. § 36.304(a) (defining "readily achievable" as "easily accomplishable and able to be carried out without much difficulty or expense").

[6] 28 C.F.R. § 36.304(b)(11).

[7] An individual may file suit under the ADA to compel renovation of a commercial facility that is not "readily accessible to and usable by individuals with disabilities." See 42 U.S.C. § 12183 (providing that commercial facilities are subject to ADA standards); 42 U.S.C. § 12181 (defining the term "commercial facilities" to mean facilities "that are intended for nonresidential use ... and ... whose operations will affect commerce."); and 42 U.S.C.S. § 12188(a)(1) ("[A]ny person who is being subjected to discrimination on the basis of disability in violation of [the ADA]" may bring a civil action to seek remedies under the Act.); 42 U.S.C.S. § 12188(a)(2) (Injunctive relief is available and "shall include an order to alter facilities to make such facilities readily accessible to and usable by individuals with disabilities to the extent required by [the ADA]."). See also 28 C.F.R. § 36.501. Enforcement power under the ADA also lies with the United States Attorney General. See 42 U.S.C. § 12188(b); 28 C.F.R. §§ 36.502, 36.503.

[8] See generally 42 U.S.C. §§ 4151 through 4156 (LexisNexis through Pub. L. No. 115-29).

[9] 42 U.S.C.S. § 4152.

[10] 42 U.S.C.S. § 4151. The ABA may also apply to non-federal buildings, but only when such buildings are built or altered with grants or loans provided by a federal agency that retains the ability to establish facility standards. Id. § 4151(3). See also About the ABA Standards, UNITED STATES ACCESS BOARD, available at https://www.access-board.gov/guidelines-and-standards/buildings-and-sites/about-the-aba-standards (last visited May 3, 2017).

[11] See 42 U.S.C.S. §§ 4152 to 4154a (authorizing the promulgation of standards for design, construction, and alteration of buildings). See also 29 U.S.C.S. § 792 (LexisNexis through Pub. L. No. 115-29) (establishing the Access Board in order to "ensure compliance with the standards prescribed pursuant to the [ABA] ...." The United States Access Board receives complaints and investigates potential violations of the ABA. Architectural Barriers Act (ABA) of 1968, UNITED STATES ACCESS BOARD, available at https://www.access-board.gov/the-board/laws/architectural-barriers-act-aba (last visited May 3, 2017).

[12] See Arizona v. California, 283 U.S. 423, 451 (1931) ("The United States may perform its functions without conforming to the police regulations of a State."); see also United States v. City of Chester, 144 F.2d 415, 421 (3rd Cir. 1944) (recognizing federal "immunity from local building restrictions or ordinances ....").

[13] Richmond v. Confrere Club of Richmond, Inc., 239 Va. 77, 79 (1990) (citations omitted).

[14] Bd. of Supvrs. v. Horne, 216 Va. 113, 117 (1975) (citations omitted). See also Bd. of Zoning Appeals v. Bd. of Supvrs., 276 Va. 550, 554 (2008) (citations omitted) (The corollary to the Dillon Rule applies "the rule to other public bodies such as boards of supervisors ... in addition to municipal corporations.").

[15] 13 VA. ADMIN. CODE § 5-63-20(A). The purpose of the USBC is to "protect the health, safety and welfare of the residents of the Commonwealth of Virginia," in part through "barrier-free provisions for the physically handicapped ...." See also VA. CODE ANN. § 36-99 (2014).

[16] VA. CODE ANN. § 36-98 (2014) (The USBC "shall supersede the building codes and regulations of the counties, municipalities and other political subdivisions ...."); see also 13 VA. ADMIN. CODE § 5-63-20(B). VA. CODE ANN. § 27-97 (2016) ("The Fire Prevention Code shall supersede fire prevention regulations heretofore adopted by local governments or other political subdivisions."); see also 13 VA. ADMIN. CODE § 5-51-21. Section 27-97 does reserve for localities the narrow authority to "adopt fire prevention regulations that are more restrictive or more extensive in scope than the [SFPC] provided such regulations do not affect the manner of construction, or materials to be used in the erection, alteration, repair, or use of a building or structure ...." However, this meager exception-permitting only fire prevention regulations that do not affect construction or materials-does not enable a locality to require the retrofitting of commercial building entryways with manual entry door hardware.

[17] 2015 Op. Va. Att'y Gen. 144, 147 (citing Lamar Co., LLC v. City of Richmond, 287 Va. 348, 352 (2014) ("[R]estrictive legislation limits the power of local governments.")).