BILL NUMBER: SB 1608 AMENDED
BILL TEXT
AMENDED IN SENATE MAY 27, 2008
AMENDED IN SENATE MAY 6, 2008
AMENDED IN SENATE APRIL 21, 2008
INTRODUCED BY Senators Corbett, Harman, Steinberg, Runner, and
Calderon
(Principal coauthors: Assembly Members Smyth and Wolk)
FEBRUARY 22, 2008
An act to amend Section 5600 of the Business and Professions Code,
to add Section 55.3 to, and to add Part 2.52 (commencing with
Section 55.51) to Division 1 of, the Civil Code, to amend
Section 4459.5 of, and to add Chapter 3.7 (commencing with
Section 8299) to Division 1 of Title 2 of , the Government
Code, and to amend Sections 18945 and 18949.29 of the Health and
Safety Code, relating to disability access.
LEGISLATIVE COUNSEL'S DIGEST
SB 1608, as amended, Corbett. Disabled persons: equal access
rights: civil actions.
(1) Existing law provides for the licensure and regulation of
persons engaged in the practice of architecture by the California
Architects Board.
This bill would require a person licensed to practice
architecture, as a condition of license renewal, to complete
coursework regarding disability access requirements, as specified,
certify that completion to the California Architects Board, and
provide specified documentation from the course provider.
(2) Existing law prohibits any person, firm, or corporation from
denying or interfering with a disabled person's admittance to or
enjoyment of public facilities, or from otherwise interfering with
the rights of an individual with a disability, including the right to
be accompanied by a guide dog, signal dog, or service dog, as
specified. Existing federal law, the Americans with Disabilities Act
of 1990, prohibits discrimination against an individual with a
disability on the basis of that disability in specified situations,
including employment opportunities and access to public
accommodations, services, and transportation.
This bill would require an attorney to provide a specified written
advisory to a building owner or tenant with each demand for money or
complaint for any alleged physical access
construction-related accessibility violation, as defined, in a
form to be developed by the Judicial Council, and on a separate page
clearly distinguishable from the demand for money, as specified.
(3) Existing law authorizes the State Architect to establish a
program for voluntary certification by the state of any person who
meets specified criteria as a certified access specialist with
respect to access to buildings for persons with disabilities.
This bill would authorize the State Architect to implement
that program with startup funds derived, as a loan, from the reserve
of the Public School Planning, Design, and Construction Review
Revolving Fund, upon appropriation by the Legislature, to be repaid
as specified. The bill would enact the Construction-Related
Accessibility Standards Compliance Act, which would provide for the
inspection of sites by certified access specialists and the provision
of specified certificates and reports regarding those inspections.
The bill would require that, commencing July 1, 2009, all inspections
of a privately owned place of public accommodation that relate to
permitting, plan checks, or new construction be conducted by a
building inspector who is a certified access specialist. It would
require a local agency to employ or retain a sufficient number of
building inspectors, and in no event less than one, who are certified
access specialists. The bill would allow a local government to
charge or increase inspection fees to the extent necessary to offset
the costs of complying with these provisions. By imposing a new
requirement on local agencies with respect to building inspectors,
the bill would impose a state-mandated local program.
The bill would require a court, with respect to an action
involving an accessibility claim, to issue an order that, among other
things, grants a 90-day stay of the action and schedules an early
evaluation conference if the defendant has satisfied certain
requirements relating to inspection of the site at issue. The bill
would provide that damages may be recovered only for a violation of a
construction-related accessibility standard that personally and
actually deterred the plaintiff.
(4) Existing law establishes various boards and commissions within
state government.
The bill would establish the California Commission on Disability
Access for certain purposes relating to disability access, and would
require the commission to conduct studies and make reports to the
Legislature, as specified.
(5) Existing law provides that any person adversely affected by a
regulation or other specified action of any state agency respecting
the administration of any building standard may appeal the issue for
resolution to the California Building Standards Commission. Existing
law also provides that, if any local agency having authority to
enforce a state building standard and any person adversely affected
by any regulation or other specified action of that agency respecting
that building standard both wish to appeal the issue for resolution
to the commission, then both parties may appeal to the commission.
Existing law provides that the commission may accept that appeal only
if it determines that the issues involved in the appeal have
statewide significance.
This bill would provide, in addition, that, with respect to a
building standard adopted by the commission relating to making public
accommodations accessible to and usable by people with disabilities,
if either a local agency having authority to enforce that building
standard or a person adversely affected by a regulation or other
specified action of that agency respecting that building standard
wishes to appeal the issue for resolution to the commission, then
either party may appeal to the commission. It would provide that the
commission may accept the appeal only if it determines that the
issues involved in the appeal have statewide significance. The
bill would authorize the commission to charge a fee to the appealing
party to the extent necessary to offset the costs of complying with
these provisions.
(6) Existing law requires all construction inspectors, plans
examiners, and building officials to complete a minimum of 45 hours
of continuing education for every 3-year period, as specified.
This bill would require that at least 8 of those hours of
continuing education relate to disability access requirements, as
specified. The bill would allow a local government to charge or
increase inspection fees to the extent necessary to offset any added
costs incurred in complying with these provisions.
(7) The bill would provide that certain provisions described above
shall become operative only upon the funding, and commencement of
operations, of the California Commission on Disability Access, and
shall cease to be operative 60 days following the cessation of
operations of the commission.
(8) The California Constitution requires the state to reimburse
local agencies and school districts for certain costs mandated by the
state. Statutory provisions establish procedures for making that
reimbursement.
This bill would provide that no reimbursement is required by this
act for a specified reason.
Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: yes.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 5600 of the Business and Professions Code is
amended to read:
5600. (a) All licenses issued or renewed under this chapter shall
expire at 12 midnight on the last day of the birth month of the
licenseholder in each odd-numbered year following the issuance or
renewal of the license.
(b) To renew an unexpired license, the licenseholder shall, before
the time at which the license would otherwise expire, apply for
renewal on a form prescribed by the board and pay the renewal fee
prescribed by this chapter.
(c) The renewal form shall include a statement specifying whether
the licensee was convicted of a crime or disciplined by another
public agency during the preceding renewal period and that the
licensee's representations on the renewal form are true, correct, and
contain no material omissions of fact, to the best knowledge and
belief of the licensee.
(d) (1) As a condition of license renewal, a licensee shall have
completed coursework regarding disability access requirements
pursuant to subparagraphs paragraphs
(2) and (3). A licensee shall certify to the board, as a part of the
license renewal process, that he or she has completed the required
coursework prior to approval of his or her license renewal and shall
provide documentation from the course provider that shall include the
course title, subjects covered, name of provider and trainer or
educator, date of completion, number of hours completed, and a
statement about the trainer or educator's knowledge and experience
background.
(2) (A) For licenses renewed on and after July 1, 2009, and before
January 1, 2010, a licensee shall have completed one hour of
coursework.
(B) For licenses renewed on and after January 1, 2010, and before
January 1, 2011, a licensee shall have completed two and one-half
hours of coursework.
(C) For licenses renewed on and after January 1, 2011, a licensee
shall have completed five hours of coursework within the previous two
years.
(3) Coursework regarding disability access requirements shall
include information and practical guidance concerning requirements
imposed by the Americans with Disabilities Act of 1990 (Public Law
101-336; 42 U.S.C. Sec. 12101 et seq.), state laws that govern access
to public facilities, and federal and state regulations adopted
pursuant to those laws. Coursework provided pursuant to this
paragraph shall be presented by trainers or educators with knowledge
and expertise in these requirements. The board shall verify that a
licensee has met the requirements of this subdivision as a condition
of license renewal.
SEC. 2. Section 55.3 is added to the Civil Code, to read:
55.3. (a) For purposes of this section, the following shall
apply:
(1) "Complaint" means a civil complaint that is filed or is to be
filed with a court and is sent to or served upon a defendant on the
basis of one or more alleged physical access
construction-related accessibility violations, as defined in
this section.
(2) "Demand for money" means a written document that is provided
to a building owner or tenant, or an agent or employee of a building
owner or tenant, that contains a request for money on the basis of
one or more alleged physical access
construction-related accessibility violations, as defined in
paragraph (3).
(3) "Physical access violation" means any physical condition of a
privately owned building, facility, or site that interferes with the
physical access, circulation, or full use of the building, facility,
or site by persons with disabilities in violation of any existing
state law or regulation. "Physical access violation" does not include
(3) "Construction-related accessibility
violation" means any violation of any construction-related
accessibility standard, as defined by paragraph (6) of subdivision
(a) of Section 55.52. "Construction-related accessibility violation"
does not include interference with housing accommodations
within the meaning of paragraph (2) of subdivision (b) of Section
54.1, or any interference caused by something other than the
physical construction-related accessibility
condition of the property, including, but not limited to, the conduct
of any person.
(b) An attorney shall provide a written advisory with each demand
for money or complaint sent to or served upon a defendant, in the
form described in subdivision (c), and on a single page that is
separate and clearly distinguishable from the demand for money or
complaint, as follows:
IMPORTANT INFORMATION FOR BUILDING OWNERS AND TENANTS
This form is available in English, Spanish, Chinese, Vietnamese,
and Korean through the Judicial Council of California. Persons with
visual impairments can get assistance in viewing this form through
the Judicial Council Internet Web site at
http://www.courtinfo.ca.gov.
Existing law requires that you receive this information because the
demand for money or complaint you received with this document claims
that your building or property does not comply with one or more
existing state laws or regulations protecting the civil rights of
persons with disabilities to access public places.
YOU HAVE IMPORTANT LEGAL OBLIGATIONS. Compliance with disability
access laws is a serious and significant responsibility that applies
to all California building owners and tenants with buildings open for
business to the public. You may obtain information about your legal
obligations and how to comply with disability access laws through the
Division of the State Architect. Commencing September 1, 2009,
information will also be available from the California Commission on
Disability Access Internet Web site.
YOU HAVE IMPORTANT LEGAL RIGHTS. You are not required to pay any
money unless and until a court finds you liable. Moreover, RECEIPT OF
THIS ADVISORY DOES NOT NECESSARILY MEAN YOU WILL BE FOUND LIABLE FOR
ANYTHING.
You may wish to promptly consult an attorney experienced in this
area to get helpful legal advice or representation in responding to
the demand for money or complaint you received. You may contact the
local bar association in your county for information on available
attorneys in your area. If you have insurance, you may also wish to
contact your insurance provider. You have the right to seek
assistance or advice about this demand for money or complaint from
any person of your choice, and no one may instruct you otherwise.
Your best interest may be served by seeking legal advice or
representation from an attorney.
If a complaint has been filed and served on you and your property
has been inspected by a Certified Access Specialist (CASp), you may
have the right to a court stay (temporary stoppage) and early
evaluation conference to evaluate the merits of the
construction-related accessibility claim against you pursuant
to Civil Code Section 55.54. At your option, you may be, but need not
be, represented by an attorney to file a reply and to file an
application for a court stay and early evaluation conference. If you
choose not to hire an attorney to represent you, you may obtain
additional information about how to represent yourself and how to
file a reply without hiring an attorney through the Judicial Council
Internet Web site at
http://www.courtinfo.ca.gov/selfhelp/. You may also obtain a form to
file your reply to the lawsuit, as well as the form and information
for filing an application to request the court stay and early
evaluation conference at that same Web site.
If you choose to hire an attorney to represent you, the attorney
who sent you the demand for money or complaint is prohibited from
contacting you further unless your attorney is present or your
attorney has given the other attorney permission to contact you. If
the other attorney does try to contact you, you should immediately
notify your attorney.
(c) On or before July 1, 2009, the Judicial Council shall adopt a
form that may be used by attorneys to comply with the requirements of
subdivision (b). The form shall be in at least 14-point boldface
type and shall contain only those statements required pursuant to
this section and any other statements determined necessary by the
Judicial Council to implement this section. The form shall be
available in English, Spanish, Chinese, Vietnamese, and Korean, and
shall include a statement that the form is available in additional
languages , and the Judicial Council Internet
Web site address where the different versions of the form may be
located. The form shall include Internet Web site
information for the Division of the State Architect and, when
operational, the California Commission on Disability Access.
(d) Subdivision (b) shall apply only to a demand for money or
complaint made by an attorney. Nothing in this section is intended to
affect the right to file a civil complaint under any other law or
regulation protecting the physical access rights of persons with
disabilities. Additionally, nothing in this section requires a party
acting in propria persona to provide or send a demand for money to
another party before proceeding against that party with a civil
complaint.
SEC. 3. Part 2.52 (commencing with Section 55.51) is added to
Division 1 of the Civil Code, to read:
PART 2.52. CONSTRUCTION-RELATED ACCESSIBILITY STANDARDS
COMPLIANCE
55.51. This part shall be known, and may be cited, as the
Construction-Related Accessibility Standards Compliance Act.
Notwithstanding any other provision of law, the provisions of this
part shall apply to any construction-related accessibility claim, as
defined in this part, including, but not limited to, any claim
brought under Section 51, 54, 54.1, or 55.
55.52. (a) For purposes of this part, the following definitions
apply:
(1) "Accessibility claim" or "construction-related accessibility
claim" means any civil claim in a civil action, including, but not
limited to, a claim brought under Section 51, 54, 54.1, or 55, based
wholly or in part on an alleged violation of any construction-related
accessibility standard , as defined in paragraph (6) .
(2) "Application for stay and early evaluation conference" means
an application to be filed with the court that meets the requirements
of subdivision (c) of Section 55.54.
(3) "Certified access specialist" or "CASp" means any person who
has been certified pursuant to Section 4459.5 of the Government Code.
(4) "CASp-inspected" means the site was inspected by a CASp and
determined to meet all applicable construction-related accessibility
standards pursuant to paragraph (1) of subdivision (a) of Section
55.53.
(5) "CASp determination pending" means the site was inspected by a
CASp and is pending a determination by the CASp that the site meets
applicable construction-related accessibility standards pursuant to
paragraph (2) of subdivision (a) of Section 55.53.
(6) "Construction-related accessibility standard" means a
provision, standard, or regulation under state or federal law
requiring compliance with standards for making new construction and
existing facilities accessible to persons with disabilities,
including, but not limited to, any such provision, standard, or
regulation set forth in Section 51, 54, 54.1, or 55 of this code,
Section 19955.5 of the Health and Safety Code, the California
Building Standards Code (Title 24 of the California Code of
Regulations), the Americans with Disabilities Act of 1990 (Public Law
101-336; 42 U.S.C. Sec. 12101 et seq.), and the Americans with
Disabilities Act Accessibility Guidelines (Appendix A to Part 36,
Title 28, Code of Federal Regulations).
(7) "Place of public accommodation" has the same meaning as
"public accommodation," as set forth in Section 12181(7) of Title 42
of the United States Code and the federal regulations adopted
pursuant to that section.
(8) "Qualified defendant" means a defendant in an action that
includes an accessibility claim that is based in whole or in part on
a place of public accommodation that met the requirements of
"CASp-inspected" or "CASp determination pending" prior to the date
the defendant was served with the summons and complaint in an action
that includes an accessibility claim. To be a qualified defendant,
the defendant is not required to have been the party who hired the
CASp, so long as the basis of the alleged liability of the defendant
is a qualified site. To determine whether a defendant is a qualified
defendant, the court need not make a finding that the place of public
accommodation complies with all applicable construction
accessibility standards as a matter of law. The court need only
determine that the place of public accommodation has a status of
"CASp-inspected" or "CASp determination pending."
(b) Unless otherwise indicated, terms used in this part relating
to civil procedure have the same meanings that those terms have in
the Code of Civil Procedure.
55.53. (a) For purposes of this part, a certified access
specialist shall, upon completion of the inspection of a site, comply
with the following:
(1) For a CASp-inspected site, if the CASp determines the site
meets all applicable construction-related accessibility standards,
the CASp shall provide a written inspection report to the requesting
party that includes both of the following:
(A) An identification and description of the inspected structures
and areas of the site.
(B) A signed and dated statement of compliance that includes both
of the following:
(i) A statement that, in the opinion of the CASp, the inspected
structures and areas of the site meet construction-related
accessibility standards.
(ii) If corrections were made as a result of the CASp inspection,
an itemized list of all corrections and dates of completion.
(2) For a CASp determination pending site, if the CASp determines
that the corrections are needed to the site in order for the site to
meet all applicable construction-related accessibility standards, the
CASp shall do both of the following:
(A) Provide a written inspection report to the requesting party
that includes all of the following:
(i) An identification and description of the inspected structures
and areas of the site.
(ii) An identification and description of the structures or areas
of the site that need correction.
(iii) A schedule of completion of the corrections within a
reasonable timeframe.
(B) Monitor the corrections no less than once every 180 days and,
if applicable, provide a signed and dated statement of progress that
includes both of the following:
(i) A statement that, in the opinion of the CASp, the corrections
are in progress and timely.
(ii) If applicable, an updated schedule for completion of
corrections within a reasonable timeframe.
(b) For purposes of this section, in determining whether the site
meets applicable construction-related accessibility standards when
there is a conflict or difference between a state and federal
provision, standard, or regulation, the state provision, standard, or
regulation shall apply unless the federal provision, standard, or
regulation is more protective of accessibility rights.
(c) Every CASp who conducts an inspection of a privately owned
place of public accommodation shall, upon completing the inspection
of the site, provide the building owner or tenant who requested the
inspection with the following notice, which the State Architect shall
make available as a form on the State Architect's Internet
Web site:
NOTICE TO PRIVATE PROPERTY OWNER/TENANT:
YOU ARE ADVISED TO KEEP IN YOUR RECORDS ANY WRITTEN INSPECTION
REPORT AND ANY OTHER DOCUMENTATION CONCERNING YOUR PROPERTY SITE THAT
IS GIVEN TO YOU BY A CERTIFIED ACCESS SPECIALIST.
IF YOU BECOME A DEFENDANT IN A LAWSUIT THAT INCLUDES A CLAIM
CONCERNING A SITE INSPECTED BY A CERTIFIED ACCESS SPECIALIST, YOU MAY
BE ENTITLED TO A STAY (TEMPORARY STOPPAGE) OF THE CLAIM AND AN EARLY
EVALUATION CONFERENCE.
IN ORDER TO REQUEST THE STAY AND EARLY EVALUATION CONFERENCE, YOU
WILL NEED TO VERIFY THAT A CERTIFIED ACCESS SPECIALIST HAS INSPECTED
THE SITE THAT IS THE SUBJECT OF THE CLAIM. YOU WILL ALSO BE REQUIRED
TO PROVIDE THE COURT AND THE PLAINTIFF WITH A COPY OF A WRITTEN
INSPECTION REPORT BY THE CERTIFIED ACCESS SPECIALIST, AS SET FORTH IN
CIVIL CODE SECTION 55.54. THE APPLICATION FORM AND INFORMATION ON
HOW TO REQUEST A STAY AND EARLY EVALUATION CONFERENCE MAY BE OBTAINED
AT http://www.courtinfo.ca.gov/selfhelp/.
YOU ARE ENTITLED TO REQUEST, FROM A CERTIFIED ACCESS SPECIALIST WHO
HAS CONDUCTED AN INSPECTION OF YOUR PROPERTY, A WRITTEN INSPECTION
REPORT AND OTHER DOCUMENTATION AS SET FORTH IN CIVIL CODE SECTION
55.53. YOU ARE ALSO ENTITLED TO REQUEST THE ISSUANCE OF A DISABILITY
ACCESS CERTIFICATE, WHICH YOU MAY POST ON YOUR PROPERTY IF IT IS
FOUND TO MEET APPLICABLE CONSTRUCTION-RELATED ACCESSIBILITY
STANDARDS.
(d) Commencing July 1, 2009, all inspections of a privately owned
place of public accommodation that relate to permitting, plan checks,
or new construction, including, but not limited to, inspections
relating to tenant improvements that may impact access, shall be
conducted by a building inspector who is a certified access
specialist. To timely comply with this provision, a local agency
shall employ or retain a sufficient number of building inspectors,
and in no event less than one, who are certified access specialists.
A local government may charge or increase inspection fees to the
extent necessary to offset the costs of complying with this
subdivision, and revenues generated from the charge or increase shall
be used solely to offset the costs incurred to comply with this
subdivision.
(e) (1) Every CASp who completes an inspection of a privately
owned place of public accommodation shall, upon a
determination that the site meets applicable construction-related
accessibility standards pursuant to paragraph (1) of subdivision (a),
provide the building owner or tenant requesting the inspection with
a numbered disability access certificate indicating that status. The
disability access certificate shall be dated and signed by the CASp
inspector, and shall contain the inspector's license number. Upon
issuance of a certificate, the CASp inspector shall record the
issuance of the numbered certificate and the name and address of the
recipient in a record book the CASp inspector shall maintain for that
purpose.
(2) Beginning March 1, 2009, the State Architect shall make
available for purchase by local building departments and CASp
inspectors sequentially numbered disability access certificates that
are printed with a watermark or other feature to deter forgery. The
certificate shall be in substantially the following form: (GRAPHIC
INSERT HERE: SEE PRINTED VERSION OF THE BILL)
(3) The certificate may be posted on the premises of the place of
public accommodation, unless, following the date of inspection, the
inspected site has been modified or construction has commenced to
modify the inspected site.
(f) Nothing in this section or any other provision of law is
intended to require a property owner or tenant to hire a CASp. A
property owner's or tenant's election not to hire a CASp shall not be
admissible to prove that person's lack of intent to comply with the
law.
55.54. (a) (1) An attorney who causes a summons and complaint to
be served in an action that includes an accessibility claim,
including, but not limited to, a claim brought under Section 51, 54,
54.1, or 55, shall, at the same time, cause to be served a copy of
the application form specified in subdivision (c) and a copy of the
following notice to the defendant on separate papers that shall be
attached to the summons and complaint:
NOTICE TO DEFENDANT
YOU MAY BE ENTITLED TO ASK FOR A STAY (TEMPORARY STOPPAGE) AND
EARLY EVALUATION CONFERENCE IN THIS LAWSUIT.
If the accessibility claim pertains to a site that has been
inspected by a Certified Access Specialist (CASp) and you have an
inspection report for that site, you may make an immediate request
for a court stay and early evaluation conference in the accessibility
claim by filing the attached application form with the court. You
may be entitled to the court stay and early evaluation conference in
the accessibility claim only if ALL of the statements in the
application form are true.
The court will schedule the conference to be held within 35 days
after you file the attached application form. The court will also
issue an immediate stay of the proceedings unless the plaintiff has
obtained a temporary restraining order in the accessibility claim. At
your option, you may be, but need not be, represented by an attorney
to file the application to request the early evaluation conference.
You may obtain a copy of the application form, filing instructions,
and additional information about the stay and early evaluation
conference through the Judicial Council Internet Web site
at http://www.courtinfo.ca.gov/selfhelp/.
You may file the application after you are served with a summons
and complaint, but no later than your first court pleading or
appearance in this case, which is due within 30 days after you
receive the summons and complaint. If you do not have an attorney,
you will need to file the application within 30 days after you
receive the summons and complaint to request the stay and early
evaluation conference. If you do not file the application, you will
still need to file your reply to the lawsuit within 30 days after you
receive the summons and complaint to contest it. You may obtain more
information about how to represent yourself and how to file a reply
without hiring an attorney at http://www.courtinfo.ca.gov/selfhelp/.
If a plaintiff representing himself or herself hires an attorney
after the case is filed, you will have 30 days to file an application
for a court stay and early evaluation conference after you receive a
Notice of Substitution of Counsel, unless an early evaluation
conference or settlement conference has already been held.
You may file the application form without the assistance of an
attorney, but it may be in your best interest to immediately seek the
assistance of an attorney experienced in disability access laws when
you receive a summons and complaint.
(2) An attorney who files a Notice of Substitution of Counsel to
appear as counsel for a plaintiff who, acting in propia persona, had
previously filed a complaint in an action that includes an
accessibility claim, including, but not limited to, a claim brought
under Section 51, 54, 54.1, or 55, shall, at the same time, cause to
be served a copy of the application form specified in subdivision (c)
and a copy of the notice specified in paragraph (1) upon the
defendant on separate pages that shall be attached to the Notice of
Substitution of Counsel.
(b) (1) Notwithstanding any other provision of law, upon being
served with a summons and complaint in an accessibility claim,
including, but not limited to, a claim brought under Section 51, 54,
54.1, or 55, a qualified defendant may file a request for a court
stay and early evaluation conference in the proceedings of that claim
prior to or simultaneous with the qualified defendant's responsive
pleading or other initial appearance in the action that includes the
claim. If the qualified defendant filed a timely request for stay and
early evaluation conference before a responsive pleading was due,
the period for filing a responsive pleading shall commence on the
date the stay is lifted. Any responsive pleading filed simultaneously
with a request for stay and early evaluation conference may be
amended without prejudice, and the period for filing that amendment
shall commence on the date the stay is lifted.
(2) Notwithstanding any other provision of law, if the plaintiff
had acted in propia persona in filing a complaint that includes an
accessibility claim, including, but not limited to, a claim brought
under Section 51, 54, 54.1, or 55, a qualified defendant who is
served with a Notice of Substitution of Counsel shall have 30 days to
file an application for a stay and an early evaluation conference.
The application may be filed prior to or after the defendant's filing
of a responsive pleading or other initial appearance in the action
that includes the claim, except that an application may not be filed
in a claim in which an early evaluation conference or settlement
conference has already been held on the claim.
(c) (1) An application for an early evaluation conference and stay
shall include a signed declaration that declares both of the
following:
(A) The site identified in the complaint has been CASp-inspected
or is CASp determination pending.
(B) An inspection report pertaining to the site has been issued by
a CASp. The inspection report shall be provided to the court and the
plaintiff at least 15 days prior to the court date set for the early
evaluation conference.
(2) The following provisional request form may be used and filed
by a qualified defendant until a form is adopted by the Judicial
Council for that purpose pursuant to subdivision (k): (GRAPHIC INSERT
HERE: SEE PRINTED VERSION OF THE BILL)
(3) The provisional form and any replacement Judicial Council form
shall also provide space for the court's order pursuant to
subdivision (d), the defendant's declaration of proof of service of
the application, and the notice of the court's order.
(d) Upon the filing of an application for stay and early
evaluation conference by a qualified defendant, the court shall
immediately issue an order that does all of the following:
(1) Grants a 90-day stay of the proceedings in the accessibility
claim, unless the plaintiff has obtained temporary injunctive relief
that is still in place for the accessibility claim.
(2) Schedules a mandatory early evaluation conference for a date
as soon as possible from the date of the order, but in no event later
than 35 days after issuance of the order, and in no event earlier
than 21 days after the filing of the request.
(3) Directs the parties, and any other person whose authority is
required to negotiate and enter into settlement, to appear in person
at the time set for the conference. Appearance by counsel shall not
satisfy the requirement that the parties or those with negotiation
and settlement authority personally appear.
(4) Directs the defendant to file with the court and serve on the
plaintiff a copy of any relevant CASp inspection report at least 15
days before the date of the conference.
(5) Directs the plaintiff to file with the court and serve on the
defendant at least 15 days before the date of the conference a
statement that includes, to the extent
reasonably known, all of the following:
(A) An itemized list of specific conditions on the subject
premises that are the basis of the claimed violations of
construction-related accessibility standards in the plaintiff's
complaint.
(B) The amount of damages claimed.
(C) The amount of attorney's fees and costs incurred to date, if
any, that are being claimed.
(D) Any demand for settlement of the case in its entirety.
(e) (1) A party failing to comply with any court order may be
subject to court sanction at the court's discretion.
(2) The court shall lift the stay when the defendant has failed to
file and serve the CASp inspection report prior to the early
evaluation conference and has failed also to produce the report at
the time of the early evaluation conference, unless the defendant
shows good cause for that failure.
(3) The court may lift the stay at the conclusion of the early
evaluation conference upon a showing of good cause by the plaintiff.
(f) All discussions at the early evaluation conference shall be
subject to Section 1152 of the Evidence Code. It is the intent of the
Legislature that the purpose of the evaluation conference shall
include, but not be limited to, evaluation of all of the following:
(1) Whether the defendant is entitled to the 90-day stay for some
or all of the identified issues in the case, as a qualified
defendant.
(2) Whether the qualified defendant has corrected or is willing to
correct the alleged violations, and the timeline for doing so.
(3) Whether the case can be settled in whole or in part.
(g) Nothing in this section precludes any party from making an
offer to compromise pursuant to Section 998 of the Code of Civil
Procedure.
(h) The court may schedule additional conferences and may extend
the 90-day stay for good cause shown, but not to exceed one
additional 90-day extension.
(i) Nothing in this part shall be deemed to make any inspection
report, opinion, or other finding or conclusion of a CASp binding on
the court, or to abrogate in any manner the ultimate authority of the
court to make all appropriate findings of fact and law.
(j) Nothing in this part shall be construed to invalidate or limit
any California construction-related accessibility standard that
provides greater or equal protection for the rights of individuals
with disabilities than is afforded by the Americans with Disabilities
Act (Public Law 101-336; 42 U.S.C. Sec. 12101 et seq.) and the
federal regulations adopted pursuant to that act.
(k) (1) The Judicial Council shall prepare and post on its
Internet Web site instructions and a form for a qualified defendant
to use to file an application for stay and early evaluation
conference as provided in subdivisions (b) and (c), and a form for
the court's notice of stay and early evaluation conference. Until
those forms are adopted, the Judicial Council shall post on its
Internet Web site the provisional forms set forth in subdivision (c).
(2) The Judicial Council shall also prepare and post on its
Internet Web site instructions and a cover page to assist plaintiffs
and defendants, respectively, to comply with their filing
responsibilities under subdivision (d). The cover page shall also
provide for the party's declaration of proof of service of the
pertinent document served under the court order.
(l) The stay provisions shall not apply to any accessibility claim
in which the plaintiff has been granted temporary injunctive relief
that remains in place.
55.55. Notwithstanding subdivision (d) of Section 55.54, in
determining an award of reasonable attorneys'
attorney's fees and recoverable costs in any
construction-related accessibility claim, the court may consider,
along with other relevant information, settlement offers made and
rejected by the parties.
55.56. Damages may be recovered for a violation of a
construction-related accessibility standard that personally and
actually deterred the plaintiff. Evidence that the violation
personally and actually deterred the plaintiff may include, but not
be limited to, evidence that the plaintiff experienced difficulty,
discomfort, or embarrassment because of the violation.
SEC. 4. Section 4459.5 of the Government
Code is amended to read:
4459.5. (a) The State Architect shall
establish and publicize a program for voluntary certification by the
state of any person who meets specified criteria as a certified
access specialist. No later than January 1, 2005, the State Architect
shall determine minimum criteria a person is required to meet in
order to be a certified access specialist, 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.
(b) The State Architect may implement the program described in
subdivision (a) with startup funds derived, as a loan, from the
reserve of the Public School Planning, Design, and Construction
Review Revolving Fund, upon appropriation by the Legislature. That
loan shall be repaid when sufficient fees have been collected
pursuant to Section 4459.8.
SEC. 4. SEC. 5. Chapter 3.7
(commencing with Section 8299) is added to Division 1 of Title 2 of
the Government Code, to read:
CHAPTER 3.7. THE CALIFORNIA COMMISSION ON DISABILITY ACCESS
8299. The Legislature finds and declares that, despite the fact
that state law has provided individuals with disabilities the right
to full and equal access to public facilities since 1968, and that a
violation of the right of any individual under the Americans with
Disabilities Act of 1990 (Public Law 101-336; 42 U.S.C. Sec. 12101 et
seq.) has also constituted a violation of the Unruh Civil Rights Act
(Section 51 of the Civil Code) since 1992, individuals with
disabilities are still being denied full and equal access to public
facilities in many instances. The Legislature further finds and
declares that businesses in California have the responsibility to
provide full and equal access to public facilities as required in the
laws and regulations, but that compliance may be thwarted in some
cases by conflicting state and federal regulations, which in turn
results in unnecessary litigation. With a view to developing
recommendations that will enable individuals with disabilities to
exercise their right to full and equal access to public facilities,
and that will facilitate business compliance with the laws and
regulations to avoid unnecessary litigation, the Legislature has
created the California Commission on Disability Access.
8299.01. (a) There shall be established in the state government,
on or before May 1, 2009, the California Commission on Disability
Access. The commission shall consist of 19 members appointed as
follows:
(1) Two Members of the Senate appointed by the Senate Committee on
Rules, one member each from the majority and minority party.
(2) Two public members appointed by the Senate Committee on Rules,
with one appointee from the business community and one appointee
from the disability community.
(3) Two Members of the Assembly appointed by the Speaker of the
Assembly, one member each from the majority and minority party.
(4) Two public members appointed by the Speaker of the Assembly,
with one appointee from the business community and one appointee from
the disability community.
(5) The State Architect.
(6) The Attorney General or his or her representative.
(7) Nine public members appointed by the Governor, with the
consent of the Senate. Five of the Governor's appointees shall be
from the disability community and shall represent a cross-section of
that community, including a person with a physical disability, a
person who is visually impaired or blind, a person with a cognitive
disability, and a person who is hearing-impaired or deaf. Four
appointees shall be from the business community, including an
appointee from the building community, an appointee who is a licensed
architect in good standing possessing at least five years of
practice experience with disability access requirements, and an
appointee representative from either the California Chamber of
Commerce or a group representing building owners.
(b) (1) The Members of the Legislature shall serve at the pleasure
of the appointing powers.
(2) Public member appointees of the Speaker of the Assembly and
the Senate Committee on Rules, and appointees of the Governor, shall
serve four-year terms. The appointing powers may reappoint a member
whose term has expired and shall immediately fill any vacancy for the
unexpired portion of the term in which it occurs.
(3) All appointees shall hold office until the appointment of
their successors.
8299.01. (a) There shall be established in the state government,
on or before May 1, 2009, the California Commission on Disability
Access. The commission shall consist of 11 public members, and six ex
officio nonvoting members, appointed as follows:
(1) Two public members appointed by the Senate Committee on Rules,
with one appointee from the business community and one appointee
from the disability community. The Senate Committee on Rules shall
request and consider nominations from the business community and the
disability community for these appointments.
(2) Two public members appointed by the Speaker of the Assembly,
with one appointee from the business community and one appointee from
the disability community. The Speaker of the Assembly shall request
and consider nominations from the business community and the
disability community for these appointments.
(3) Seven public members appointed by the Governor, with the
consent of the Senate. Four of the Governor's appointees shall be
from the disability community and shall represent a cross section of
that community, including a person with a physical disability, a
person who is visually impaired or blind, a person with a cognitive
disability, and a person who is hard of hearing or deaf. Three
appointees shall be from the business community, including an
appointee representative from either the California Chamber of
Commerce or an association representing commercial building owners.
The Governor shall request and consider nominations from the business
community and the disability community for these appointments.
(4) The State Architect, or his or her representative, as a
nonvoting ex officio member.
(5) The Attorney General, or his or her representative, as a
nonvoting ex officio member.
(6) Two members of the Senate, appointed by the Senate Committee
on Rules as nonvoting ex officio members. One member shall be from
the majority party and one member shall be from the minority party.
(7) Two members of the Assembly, appointed by the Speaker of the
Assembly, as nonvoting ex officio members. One member shall be from
the majority party, and one member shall be from the minority party.
(b) It is the intent of this section that the commission shall be
broadly representative of the ethnic, gender, and racial diversity of
the population of California.
(c) Public members shall be appointed for three-year terms, except
that, with respect to the initial appointees, the Governor shall
appoint three members for a one-year term, two members for a two-year
term, and two members for a three-year term. The Senate Committee on
Rules and the Speaker of the Assembly shall each initially appoint
one member for a two-year term and one member for a three-year term.
Public members may be reappointed for additional terms.
(d) Vacancies shall be filled by the appointing authority for the
unexpired portion of the terms.
8299.02. (a) Public members of the commission shall receive one
hundred dollars ($100) per diem while on official business of the
commission, not to exceed 12 days per year. Each member of the
commission shall also be entitled to receive his or her actual
necessary traveling expenses while on official business of the
commission.
(b) The commission shall select annually from its membership a
chairperson and a vice chairperson.
8299.03. Meetings of the commission shall be subject to the
Bagley-Keene Open Meeting Act (Article 9 (commencing with Section
11120) of Chapter 1 of Part 1 of Division 3 of Title 2).
8299.04. The commission shall have the powers and authority
necessary to carry out the duties imposed upon it by this chapter,
including, but not limited to, the following:
(a) To employ any administrative, technical, or other personnel
that may be necessary for the performance of its powers and duties.
(b) To hold hearings, make and sign any agreement, and do or
perform any act that may be necessary, desirable, or proper to carry
out the purposes of this chapter.
(c) To cooperate with, and secure the cooperation of, any
department, division, board, bureau, commission, or other agency of
the state to facilitate the proper execution of its powers and duties
under this chapter.
(d) To appoint advisers or advisory committees from time to time
when the commission determines that the experience or expertise of
those advisers or advisory committees is needed for projects of the
commission. Section 11009 shall apply to advisers or advisory
committees.
(e) To accept any federal funds granted by an act of Congress or
by executive order for any purpose of this chapter.
(f) To accept any gift, donation, grant, or bequest for any
purpose of this chapter.
8299.05. (a) The commission shall study and make reports to the
Legislature on the following:
(1) Issues regarding compliance with state laws and regulations
that are raised by either individuals with disabilities or
businesses.
(2) State laws and regulations that promote equal access for
individuals with disabilities, and whether there are conflicting
federal laws and regulations that might create compliance issues.
(3) Whether public and private inspection programs, including the
Certified Access Specialist Program, are meeting the needs of both
the business community and the disability community by the provision
of timely, competent inspections that properly identify violations
and order appropriate remedial measures.
(4) Whether existing training and continuing education
requirements for personnel involved in designing, plan checking,
building, or inspecting a structure are sufficient to provide the
personnel with sufficient knowledge of the state disability access
laws and regulations.
(5) Whether training and continuing education requirements should
be enacted for landscape architects, professional engineers, and
contractors to provide these professionals with sufficient knowledge
of the state and federal disability access laws and regulations. This
study and report shall be completed and delivered to the Legislature
no later than July 1, 2010.
(b) (1) The commission shall act as an information center on the
status of compliance in California with state laws and regulations
providing individuals with disabilities full and equal access to
public facilities. To this end, it shall publish an annual report,
which may be combined with the biannual
biennial report required in odd-numbered years pursuant to
subdivision (e), on the state of disability access compliance by both
the public and private sector. The report shall be written in
general terms and shall not identify any particular violators.
(2) The commission shall, to the extent feasible, coordinate with
other state agencies and local building departments to ensure that
information provided to the public on disability access requirements
are uniform and complete.
(c) The commission shall recommend, develop, prepare, or
coordinate materials, projects, or other activities, as appropriate,
relating to any subject within its jurisdiction.
(d) The commission shall provide, within its resources, technical
and consultative advice to public or private groups or persons
concerned with any of the following:
(1) Preventing or minimizing problems of compliance by California
businesses by engaging in educational outreach efforts and by
preparing and hosting on its Internet Web site a Guide to Compliance
with State Laws and Regulations Regarding Disability Access
Requirements.
(2) Recommending programs to enable individuals with disabilities
to obtain full and equal access to public facilities.
(e) The commission shall make reports on its activities, findings,
and recommendations to the Legislature from time to time, but not
less often than once during every odd-numbered year.
8299.06. The commission, as soon as practicable, but in no event
later than July 1, 2010, shall develop, in consultation with the
staff of the California Building Standards Commission, a master
checklist for disability access compliance that may be used by
building inspectors.
8299.07. The commission shall study the operation of Section
55.54 of the Civil Code to assess whether it is operating to achieve
its desired goal of reducing unnecessary civil actions that seek
attorney's fees and damages but that do not facilitate compliance
with state laws and regulations governing disability access, and
whether that section is unduly impacting claims brought to facilitate
compliance. The commission shall report its findings and any
recommendations to the Legislature no earlier than July 1, 2013, and
no later than July 1, 2014.
8299.08. (a) The commission is expressly authorized to inform the
Legislature of its position on any legislative proposal pending
before the Legislature and to urge the introduction of legislative
proposals.
(b) The commission is expressly authorized to state its position
and viewpoint on issues developed in the performance of its duties
and responsibilities as specified in this chapter.
8299.09. With respect to its duties, the commission shall be an
advisory commission only, and there shall be no right or obligation
on the part of the state to implement the findings of the commission
without further legislation that specifically authorizes that the
evaluations, determinations, and findings of the commission be
implemented.
8299.10. The commission shall hire staff or contract for those
experts or technical and professional services that may be required
for the completion of any study required by Section 8299.05. Staff
hired pursuant to this section shall be hired in compliance with the
State Civil Service Act (Part 2 (commencing with Section 18500) of
Division 5 of Title 2). Contracts awarded pursuant to this section
shall be in compliance with Section 19130.
8299.11. This chapter shall not be implemented unless funds are
appropriated for that purpose by the Legislature in the annual Budget
Act or another statute.
SEC. 5. SEC. 6. Section 18945 of the
Health and Safety Code is amended to read:
18945. (a) Any person adversely affected by any regulation, rule,
omission, interpretation, decision, or practice of any state agency
respecting the administration of any building standard may appeal the
issue for resolution to the commission.
(b) If any local agency having authority to enforce a state
building standard and any person adversely affected by any
regulation, rule, omission, interpretation, decision, or practice of
that agency respecting that building standard both wish to appeal the
issue for resolution to the commission, then both parties may appeal
to the commission. The commission may accept that appeal only if the
commission determines that the issues involved in the appeal have
statewide significance.
(c) Notwithstanding subdivisions (a) and (b), with respect to a
building standard adopted by the commission and set forth in Part 2
of Title 24 of the California Code of Regulations relating to making
public accommodations accessible to and usable by people with
disabilities, if either a local agency having authority to enforce
that building standard or a person adversely affected by a
regulation, rule, omission, interpretation, decision, or practice of
that agency respecting that building standard wishes to appeal the
issue for resolution to the commission, then either party may appeal
to the commission. The commission may accept the appeal only if the
commission determines that the issues involved in the appeal have
statewide significance. The commission may charge a fee to the
appealing party to the extent necessary to offset the costs of
complying with this subdivision, and revenues generated
from the charge shall be used solely for this purpose.
SEC. 6. SEC. 7. Section 18949.29 of
the Health and Safety Code is amended to read:
18949.29. (a) All construction inspectors, plans examiners, and
building officials shall complete a minimum of 45 hours of continuing
education for every three-year period, with at least eight hours
regarding disability access requirements pursuant to subdivision (d).
A local government may charge or increase inspection fees to the
extent necessary to offset any added costs incurred in complying with
this section.
(b) Providers of continuing education may include any
organizations affiliated with the code enforcement profession,
community colleges, or other providers of similar quality, as
determined by the local agency.
(c) For purposes of this section, "continuing education" is
defined as that education relating to the enforcement of Title 24 of
the California Code of Regulations, and any other locally enforced
building and construction standards, including, but not limited to,
the model uniform codes adopted by the state. When a local agency
selects a model code organization as a provider of continuing
education or certification programs regarding the enforcement of a
model code adopted by the state, the local agency shall give
preference to the organization responsible for promulgating or
drafting that model code.
(d) Continuing education regarding disability access requirements
shall include information and practical guidance concerning
requirements imposed by the Americans with Disabilities Act of 1990
(Public Law 101-336; 42 U.S.C. Sec. 12101 et seq.), state laws that
govern access to public facilities, and federal and state regulations
adopted pursuant to those laws. Continuing education provided
pursuant to this subdivision shall be presented by trainers or
educators with knowledge and expertise in these requirements.
SEC. 7. SEC. 8. Sections 2, 3, and
5 6 of this act shall become operative
only upon the funding, and commencement of operations, of the
California Commission on Disability Access, and shall cease to be
operative 60 days following the cessation of operations of the
commission.
SEC. 8. SEC. 9. No reimbursement is
required by this act pursuant to Section 6 of Article XIII B of the
California Constitution because a local agency or school district has
the authority to levy service charges, fees, or assessments
sufficient to pay for the program or level of service mandated by
this act, within the meaning of Section 17556 of the Government Code.