Request By:
Mr. Max A. Tudor
Executive Director
Louisville and Jefferson County
Human Relations Commission
200 South Seventh Street, Suite 120
Louisville, Kentucky 40202
Opinion
Opinion By: Robert F. Stephens, Attorney, General; By: David M. Whalin, Assistant Attorney General; Reid James, Legal Assistant
Re: Request of Max A. Tudor and Daniel F. Massie for an opinion as to whether Jefferson County Ordinance No. 4, Series 1976 and KRS 66.660 conform with the intent of the Highway Safety Act of 1973 (Public Law 93-87, 23 U.S.C. § 402 (b)(1)(F).
Mr. Massie of your office on July 26, 1977, also requested an opinion as to whether KRS 66.660 conformed with P.L. 93-87. We shall answer both requests in this opinion.
The 1974 General Assembly enacted KRS 66.660 on February 13, 1974, and the statute became effective on July 21, 1974. It provides as follows:
"(1) The legislative body of any city, county, or urban-county government shall provide for and regulate cross-walks, curbs, and gutters; provided that after June 21, 1974, all new curbs, and all existing curbs which are a part of any reconstruction, within any block which is continguous to any highway and in which 50 percent of the territory is devoted to or zoned for business, commercial or industrial use, shall comply with the provisions of subsection (2).
"(2) In order to enable persons using wheelchairs to travel freely and without assistance, at each cross-walk a ramp with a non-slip surface shall be built into the curb so that the sidewalk and street blend to a common level. Such ramp shall not be greater than one inch rise for 12 inches length where practicable. In all ramps there shall be a gradual rounding at the bottom of the slope."
The section of the Highway Safety Act of 1973 at issue (23 USC 402(b)(1)(F)) received final Congressional approval on August 13, 1973, and provides as follows:
"The Secretary (of Transportation) shall not approve any state highway safety program under this section which does not . . . provide adequate and reasonable access for the safe and convenient movement of physically handicapped persons, including those in wheelchairs, across curbs constructed or replaced on or after July 1, 1976, at all pedestrian crosswalks throughout the state."
The letter of the Human Relations Council raised the issue of whether the scope of KRS 66.660(1) is limited so as to defeat the intent of 23 USC 402(b)(1)(F). It is the position of this office that it does no damage to the Congressional intent of the federal act.
The federal act establishes as its purpose the reduction of traffic accidents, deaths, injuries, and property damage on the Nation's highways. Under the act each state is responsible for planning and implementing its own standards of highway safety subject to general guidelines established by the Secretary of Transportation. A great deal of latitude is given a state in the development of the specifics of its safety programs according to its unique circumstances and particular highway needs. 23 CFR 1204.4.
With this in mind it should be noted that 23 USC 402(b)(1)(F), requires only that the state provide an "adequate and reasonable" access for handicapped individuals to cross curbs. No other guidelines have been established for this particular section. As a general standard it does not specify a particular method by which the states should provide such access. Noting the dates of approval and effectiveness of KRS 66.660 and 23 USC 402, it is evident that the Kentucky statute was a good faith effort by the General Assembly to satisfy the standards established by Congress, tailored to meet the special circumstances existing within this Commonwealth. The legislature has therefore supplied a method by which adequate and reasonable access to cross curbs is provided to handicapped individuals within the intent of the federal act.
As to Ordinance #4, series 1976, effected by the Fiscal Court of Jefferson County, 23 USC 402, provides the authority for local political subdivisions within a state to implement their own local highway safety programs as a part of the state's program, where approved by the agency responsible for such programs within the state and in accordance with the uniform standards promulgated by the Secretary of Transportation. As indicated above, this ordinance is in conformity with KRS 66.600, which is in turn within the intent and purpose of 23 USC 402 (b) (1) (F).
It is the opinion of this office that both the Kentucky statute and the ordinance of Jefferson County are in compliance with the intent of 23 USC 402(b)(1)(F) and that the responsibility for its enforcement is placed upon the legislative bodies of Louisville and Jefferson County in accordance with OAG 75-727.