BILL ANALYSIS
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|SENATE RULES COMMITTEE | SB 262|
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UNFINISHED BUSINESS
Bill No: SB 262
Author: Kuehl (D), et al
Amended: 9/8/03
Vote: 21
SENATE JUDICIARY COMMITTEE : 5-1, 4/8/03
AYES: Escutia, Cedillo, Ducheny, Kuehl, Sher
NOES: Morrow
NO VOTE RECORDED: Ackerman
SENATE APPROPRIATIONS COMMITTEE : Senate Rule 28.8
SENATE FLOOR : 23-13, 5/8/03
AYES: Alarcon, Alpert, Bowen, Burton, Cedillo, Chesbro,
Ducheny, Escutia, Florez, Karnette, Kuehl, Machado,
Murray, Ortiz, Perata, Romero, Scott, Sher, Soto, Speier,
Torlakson, Vasconcellos, Vincent
NOES: Aanestad, Ackerman, Ashburn, Brulte, Denham,
Hollingsworth, Knight, Margett, McClintock, McPherson,
Morrow, Oller, Poochigian
NO VOTE RECORDED: Battin, Dunn, Figueroa, Johnson
SUBJECT : Buildings: access: enforcement
SOURCE : State Attorney General
DIGEST : This bill adds civil penalties to the remedies
public prosecutors may seek in enforcing building access
laws for physically handicapped people. The bill also adds
county counsels to the public attorneys authorized to
enforce these laws, as specified.
CONTINUED
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Assembly Amendments (1) specify protocol as to who/when an
action may be brought, (2) require the State Architect to
establish a program for certification of access
specialists, (3) provide that multiple identical violations
at the same site may be deemed to constitute one violation,
as specified, and (4) add co-authors.
ANALYSIS :
Existing law:
1. Provides that private individuals aggrieved by
violations of handicapped access laws may sue for
injunctive relief, and that the prevailing party shall
be entitled to reasonable attorney's fees.
2. Further provides that public prosecutors enforcing
handicapped access laws are limited to injunctive
relief.
This bill:
1. Provides that public prosecutors enforcing handicapped
access laws in privately owned buildings open to the
public may seek a civil penalty of $2,500 for each
violation.
2. Further provides that, for each violation that remains
in effect 90 days after the violator receives written
notice from a government agency identifying the violator
shall be subject to an additional civil penalty of not
less than $500 nor more than $2,500 per violation per
day. Multiple identical violations at one facility may
be deemed to constitute one violation.
3. Further provides that in determining the amount of the
penalty, the court may consider, among other relevant
factors, the number, nature and seriousness of the
violations; the defendant's willfulness in failing to
comply; the defendant's assets, liabilities and net
worth; and any economic benefit to the defendant
resulting from the violation.
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4. Further provides that any civil penalties recovered
shall be paid to the treasurer of the jurisdiction
bringing the action. Upon prevailing, the city attorney
may recover all costs of investigating and prosecuting
the action, including expert fees, reasonable attorney's
fees and costs.
5. Further provides that, upon prevailing in an action
brought under this section, the State Attorney General
(AG) shall be entitled to recover all costs of
investigating and prosecuting the action, including
expert witness fees, reasonable attorney's fees, and
costs.
6. Provides that district attorneys, city attorneys, and
the AG are the public prosecutors authorized to bring
actions to enforce handicapped access laws in buildings
open to the public.
This bill provides that county counsels also may prosecute
actions under these statutes if the district attorney does
not bring an action.
The federal Americans with Disabilities Act of 1990 and the
California Building Standards Code require that specified
buildings, structures, and facilities be accessible to, and
usable by, persons with disabilities. Existing law
establishes in the State Department of General Services the
State Architect with responsibilities relating to
architectural services and state buildings.
This bill requires the State Architect to establish and
publicize a program for voluntary certification by the
state of any person who meets specified criteria as a
certified access specialist. It requires the State
Architect, no later than 1/1/05, to determine criteria a
person must meet for certification, which may include
knowledge sufficient to review, inspect, or advocate
universal design requirements, completion of specified
training, and testing on standards governing access to
buildings for persons with disabilities. It requires the
State Architect to annually publish and make available to
the public a list of certified access specialists and
provide that this certification is effective for three
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years and renewable.
This bill authorizes the State Architect to require
applicants for certification and renewal of certification
under this program to pay specified fees, which is
deposited in the Certified Access Specialist Fund created
by this bill. This bill continuously appropriates this
fund for use by the State Architect to implement the
certified access specialist program.
Background
With the enactment of California's handicapped access laws
in 1970, and the more recent passage of the federal
Americans with Disabilities Act (ADA), the rights of
physically handicapped people to have access to public
facilities has become a part of the public consciousness:
wheelchair ramps and handicapped-accessible bathrooms are
common sights, and other forms of assistance to the blind
and hearing-impaired are noticeable in many locations.
Nevertheless, violations of these laws persist in
restaurants, hotels, shopping areas, public streets, and
public transportation. A 1994 nationwide Harris poll of
people with disabilities reported that 24 percent of those
polled stated that lack of access to facilities was a
problem for them.
A recent University of California study reports that
violations range from a complete lack of compliance in some
buildings to inadequate compliance in others, such as ramps
that are too steep, uneven, or lack safety rails,
"accessible" bathrooms too small for wheelchairs to
maneuver, or "accessible" doorways that are too heavy to
open, or that have no nearby parking facilities.
FISCAL EFFECT : Appropriation: No Fiscal Com.: Yes
Local: No
SUPPORT : (Verified 5/5/03) (Unable to re-verify at time
of writing)
State Attorney General (source)
Californians for Disability Rights, Inc.
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Protection and Advocacy, Inc.
OPPOSITION : (Verified 5/5/03) (Unable to re-verify at
time of writing)
California Association of Bed and Breakfast Inns
California Hotel and Lodging Association
ARGUMENTS IN SUPPORT : The AG states that enforcement of
access laws is hampered by the lack of any significant
penalties for their violation. This bill allows the AG and
other public prosecutors to seek civil monetary penalties
for noncompliance with handicapped access laws, and makes
other related changes.
The AG argues that the automatic initial fine results in
lower transaction costs to all sides because it is not
subject to argument, hearings, or debate, but moves the
parties directly to negotiating prompt compliance. The AG
concedes that the provision will encompass some violators
who are more sympathetic than others, but argues that the
point of a significant initial fine is to deter violations,
and to spur compliance before any prosecution occurs.
(Further, the prosecuting agency may always elect not to
bring formal charges invoking the automatic penalty in a
case where the building owner has made, and is continuing
to make, good faith efforts to comply.)
ARGUMENTS IN OPPOSITION : Opponents express strong
support for enforcement of handicapped access laws, and
state they have no patience for willful violators or for
building owners who, after years of state efforts to
educate them, plead ignorance of these long-standing laws.
Opponents concerns are for "the great many innkeepers and
other business people who try their best to comply," but
who inadvertently violate handicapped access laws because
many architects, contractors, and even local building
inspectors "are simply ignorant of exactly what those
standards require."
For this reason, opponents oppose the proposed automatic
fine of $2,500 per violation, as it does not distinguish
between willful or inexcusably ignorant violators and those
who have expended time and money to bring their buildings
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into compliance, even to the extent of getting approval by
local building inspectors, only to discover that compliance
has eluded them.
Opponents further state that the Unruh Civil Rights Act
already provides a private right of action to allow persons
harmed by a violation to sue for a minimum of $4,000 plus
attorney's fees. Opponents object to this bill's proposed
additional civil penalty as excessive and duplicative.
RJG:mel 9/10/03 Senate Floor Analyses
SUPPORT/OPPOSITION: SEE ABOVE
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