September 15, 1993
Charles R. Fullwood Executive Director
N.C. Wildlife Resources Commission 512 N. Salisbury Street Raleigh, North Carolina 27604-1188
Re: Advisory Opinion to the Executive Director of the Wildlife Resources Commission ("WRC") from the Administrative Division, Service to State Agencies Section, as to whether an agency, in accommodating a person under the Americans with Disabilities Act ("ADA"), can allow an activity which is otherwise unlawful under the agency’s duly promulgated administrative rules. 42 U.S.C.S. §§ 12131(2), 12132, and 12201; G.S. § 150B-19(6); 15A NCAC 10D .0002(h).
Dear Mr. Fullwood:
We are in receipt of your September 2, 1993, letter concerning a sportsman who is disabled and has requested permission from the WRC to operate a motorized vehicle on State game lands where motorized vehicles are prohibited by administrative rule. Specifically, you have asked whether an agency can, in effect, waive its administrative rules on a case-by-case basis in making accommodations under the ADA.
The ADA generally prohibits discrimination against individuals with disabilities who, with or without reasonable modifications to rules, policies, or practices, the removal of architectural, communication, or transportation barriers, or the provisions of auxiliary aids and services, meet the essential eligibility requirements for the receipt of services or the participation in programs or activities provided by a public entity. 42 U.S.C.S. §§ 12131(2) and 12132.
While the ADA, in part, addresses the responsibility of the State to accommodate persons with disabilities, it is incomplete in terms of prescribing the means by which accommodation must be achieved. Presumably, accommodation can be achieved by whatever means are consistent with State law. While Congress can override State law by establishing the means for accommodation, here it did not. State law may be borrowed to effectuate Federal policy where the Federal law is incomplete. Wright v. Manatee County, 717 F.Supp. 1493 (M.D.Fla. 1989).
Nothing in the ADA invalidates or limits the remedies, rights and procedures of any other Federal or State law providing greater or equal protection for the rights of individuals with disabilities than are afforded by the ADA. 42 U.S.C.S. § 12201. The ADA, then, only preempts those State laws that address discrimination against persons with disabilities, and that provide less protection to those persons than does the ADA. Because the State Administrative Procedure Act and the State fish and game laws, among other State laws, do not legislate the treatment of persons with disabilities, they are not preempted by the ADA. Therefore, modifications made in an effort to accommodate persons with disabilities must conform to the requirements of these laws.
WRC’s administrative rules contain a general prohibition against driving motorized vehicles on game lands except on roads constructed and maintained for vehicular travel and trails posted for vehicular travel. 15A NCAC 10D .0002(h). In response to either a petition for rulemaking or on WRC’s initiative, qualified persons with disabilities who wish to use motorized vehicles in these areas may be accommodated by adoption of a rule. Such a rule must contain the guidelines to be used by the agency in waiving or modifying otherwise applicable regulatory requirements. A rule that allows an agency to waive or modify a regulatory requirement is prohibited by statute unless the specific guidelines the agency must follow in determining whether to waive or modify the requirement are set forth. G.S. § 150B-19(6). The guidelines might include the type of disability to which the person is subjected, the environmental sensitivity of the area subject to accommodation, the personal safety of all persons utilizing the area, and other factors necessary to the determination of the reasonableness of an accommodation. Such a rule should also contain the procedure for dispute resolutions.
We trust that this fully answers your questions on this matter. Please do not hesitate to contact us if we can be of any further assistance to you.
Ann Reed Senior Deputy Attorney General
Melissa L. Trippe Assistant Attorney General