BILL ANALYSIS                                                                                                                                                                                                    



                                                                       


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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.
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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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