DJ 202-PL-878

Mr. Tim Hammonds
Food Marketing Institute
800 Connecticut Avenue, N.W.
Washington, D.C. 20006-2701

Dear Mr. Hammonds:

     This is in response to your letter regarding the Americans
with Disabilities Act of 1990 (ADA), which prohibits
discrimination on the basis of disability by places of public
accommodation and commercial facilities.

     The ADA authorizes the Department of Justice to provide
technical assistance to individuals and entities that have rights
or responsibilities under the Act. Pursuant to that authority,
this letter provides informal guidance to assist you in
understanding the ADA. However, this technical assistance does
not constitute a legal interpretation of the statute, and it is
not binding on the Department.

     Your letter addresses a possible conflict between the ADA
Standards for Accessible Design (Standards) and the rules of the
Tennessee Board of Pharmacy regarding the height of service
counters in newly constructed pharmacies. According to your
letter, the Tennessee Board of Pharmacy requires such service
counters to be 40 inches in height from the floor, without
exception. In newly constructed pharmacies covered by title III
of the ADA, however, the ADA Standards require that, at each
service counter that has a cash register, a portion of the
counter at least 36 inches in length be no more than 36 inches in
height from the floor. 28 C.F.R. pt. 36, Appendix A, § 7.2(1).

     The ADA does not preempt all State regulation affecting the
accessibility of buildings to people with disabilities. States
are free to enact and enforce code provisions that provide equal
or greater access than the ADA Standards. 28 C.F.R. S 36.103(c).
However, if State code provisions conflict with the ADA
requirements in a way that results in less accessibility, the ADA
requirements prevail over the conflicting State law.

cc: Records, Chrono, Wodatch, Hill, FOIA, Friedlander
n:\udd\policylt\hammonds.ltr

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To the extent that the Federal standard is irreconcilable with
the State standard, therefore, a covered entity must comply with
the Federal standard.

     I hope this information is helpful to you.

                                   Sincerely,

                                John L. Wodatch
                                    Chief
                              Public Access Section
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