HomeMy WebLinkAboutA001 - Legal Opinion dated June 20, 2000, apartment building elevators Memo
City Attorney's Office
Caring People
Quality Programs
Exceptional Service
TO: Steve Schainker, City Manager
Bob Kindred, Assistant City Manager
J earson, Building Official/
FROM: John R. Klaus, City Attomey( t/
DATE: June 20, 2000 / vv
SUBJECT: Apartment Building Elevators
The key to resolving the controversy over elevators in three-story apartment buildings is the expression
"general public". The term is used in both the administrative rules and the statute. See §§104A.1 and
104A.2, Code of Iowa; and 661 IAC 16.702(1). The effect of the term is to limit the coverage of the
handicapped access rules to only those buildings that are "... intended for use by the general public ...".
Depending on the meaning of "general public",either the March 1994 determination by the state building
code engineer that elevators are not required for apartment buildings, or the April 2000 opinion of the
Assistant Attorney General that they are required, will prevail.
There have been two earlier opinions of the Attorney General on the meaning of"general public" with
respect to elevators in apartment buildings. An opinion issued November 17, 1975 concluded that an
apartment building was not open to the "general public" if access was restricted to tenants and tenants'
guests. On March 12, 1976,an Attorney General opinion was issued rejecting the first view and concluding
that because apartments were offered for rent to everyone,the building:net the"use by the general public"
test for coverage by the handicapped access rules.
The Iowa Supreme Court has ruled that the term"general public"does not apply if a facility is offered to
only those people who meet selection criteria. Good v. Iowa Civil Rights Commission,368 N.W.2d 151,
155 (Iowa 1985). On that basis, it could be argued that apartment buildings that rent only to people who
meet some sort of selection criteria,are not offered to the"general public"and therefore not covered by the
handicapped access rules.
This ambiguity has been created by the wording of the State's administrative rule and can be resolved by
state agency rule making. Reportedly the Homebuilders Association of Greater Des Moines filed a petition
for rule making with the State Building Code Commissioner on May 31, 2000. The agency has thirty days
from that date to respond. The City can remove itself from immediate dilemmas with respect to occupancy
of apartment buildings by deleting the reference to the state rules now in Section 5.110 of the Municipal
Code of the City of Ames and adopting instead whatever specific rules for handicapped accessibility the
Council deems appropriate.
JRK:gmw