BILL ANALYSIS
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|Hearing Date:April 28, 2008 |Bill No:SB |
| |1608 |
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SENATE COMMITTEE ON BUSINESS, PROFESSIONS AND ECONOMIC
DEVELOPMENT
Senator Mark Ridley-Thomas, Chair
Bill No: SB 1608 Author:Corbett
As Amended: April 21, 2008Fiscal: Yes
SUBJECT: Disabled persons: equal access rights: civil
actions.
SUMMARY: Requires a licensed architect to complete
coursework in disability access requirements in order to
renew their license; creates a 19-member California
Commission on Disability Access; revises certain provisions
relating to lawsuits against businesses alleging physical
access violations; imposes continuing education
requirements on local building officials relating to
disability access requirements.
Existing law, the Business and Professions Code:
1)Provides for the licensure and regulation of some 22,000
architects by the California Architect's Board (CAB)
within the Department of Consumer Affairs (DCA).
2)Requires that applicants for an architect license must
provide verification of eight years of education and work
experience, as specified, and successfully complete both
an architect registration examination and a California
supplemental examination.
3)Requires that in order to renew a license, a licensed
architect must apply for renewal and include a statement
specifying whether the licensee was convicted of a crime
or disciplined by another public agency during the time
since the license was last renewed.
Existing law, the Civil Code:
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1)Provides that individuals with disabilities or medical
conditions have the same right as the general public to
the full and free use of the streets, highways,
sidewalks, walkways, public buildings, medical
facilities, including hospitals, clinics and physicians'
offices, public facilities and other public places. It
specifies that a violation of an individual's rights
under the Americans with Disabilities Act of 1990 (ADA)
constitutes a violation of state law.
2)Provides that individuals with disabilities shall be
entitled to full and equal access to public
accommodations, subject only to the conditions and
limitations established by law, or state or federal
regulation, and applicable alike to all persons. It
further provides that individuals with disabilities shall
be entitled to full and equal access to all housing
accommodations offered for rent or lease, subject to
conditions and limitations established by law.
3)The Unruh Civil Rights Act declares that all persons,
regardless of sex, race, color, religion, ancestry,
national origin, disability or medical condition, are
entitled to full and equal accommodations, advantages,
facilities, privileges, or services in all business
establishments of every kind whatsoever.
This bill:
1)Additionally requires, as a condition of continued
licensure, that an architect must complete coursework
regarding disability access requirements, as specified,
and provide proof of completion of the coursework prior
to renewing their license.
2)Phases in the number of hours of coursework required on
an incremental basis as follows:
a) 1 hour for licenses renewed between July 1, 2009
and January 1, 2010.
b) 2.5 hours for licenses renewed between January 1,
2010 and January 1, 2011.
c) 5 hours for licenses renewed after January 1, 2011.
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1)Requires the coursework regarding disability access to be
presented by trainers and educators with knowledge and
expertise and to include information and practical
guidance regarding:
a) The American With Disabilities Act of 1990.
b) State laws that govern access to public facilities.
c) Federal and state regulations adopted pursuant to
a) and b).
1)Requires the CAB to certify coursework under these
requirements.
2)Creates the 19-member California Commission on Disability
Access, an independent state entity with responsibility
that includes:
a) Monitoring disability access compliance in
California.
b) Acting as an information center on disability
access requirements.
c) Making recommendations to the Legislature on needed
changes in disability access laws.
d) Developing, with the Building Standards Commission,
a master checklist for building inspectors to use for
disability access compliance.
1)Revises certain provisions of the law relating to
lawsuits against businesses, alleging physical access
violations.
2)Imposes continuing education requirements on local
building officials relating to disability access
requirements.
FISCAL EFFECT: Unknown. This bill has been keyed "fiscal"
by Legislative Counsel.
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COMMENTS:
1.Focus of this Analysis. The primary focus of this
analysis is on the requirements proposed under the
Business and Professions Code for licensed architects and
for the CAB in Section 1 of the bill. The bill has also
been referred to the Senate Judiciary Committee, where
the other provisions of the bill will be heard.
2.Purpose. This bill is sponsored by the Authors, Senators
Corbett, Calderon, Harman, Runner and Steinberg, and
Assembly Members Smyth and Wolk, who state:
Despite the fact that the Americans with
Disabilities Act (ADA) was passed in 1990 and became
effective in 1992 and California law has contained
protections for disabled persons since 1969, there
remains a high level of non-compliance by California
businesses that are unknowing violations because of
faulty architectural plans. The result is that
disabled persons are denied equal access to many
places of public accommodation and some businesses
are sued for non-compliance despite their intent to
comply.
Architects play a key role in efforts to increase
compliance with the ADA and its state law
counterparts. Their plans are the first step in
making sure that a building meets physical
accessibility requirements. Ensuring that
architects are up-to-date on these requirements as a
part of the license renewal process is an essential
component of making sure that disabled persons have
equal access to places of public accommodation and
that building owners are given drawings that comply
with the physical accessibility standards.
3.Background. Since 1969, persons with disabilities have
enjoyed protection under Civil Code 54 and 54.1, which
entitle individuals with disabilities and medical
conditions to full and free access to and use of
roadways, sidewalks, public buildings and facilities,
hospitals and medical facilities, and housing. After
Congress enacted the Americans with Disabilities Act
(ADA) in 1990, the state made a violation of the ADA also
a violation of Section 54 or 54.1. The state protections
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provided to individuals with disability are comparatively
higher than those provided under the ADA and are
independent of the ADA.
4.Related legislation. SB 69 (Oller, 2003), AB 209
(Leslie, 2003), AB 20 (Leslie, 2005) and SB 855
(Poochigian, 2005) were introduced after multiple
lawsuits were filed by a few plaintiffs and attorneys
against business owners and operators for arguably
technical violations of the state's access or federal ADA
regulations. All four bills died in the Judiciary
Committees of their respective houses. Since then, there
has been considerable media coverage of these lawsuits,
which were apparently filed by a few plaintiffs against
defendant owners and operators of businesses such as
restaurants, hotels, wineries and small retail stores.
These lawsuits, claim the defendant businesses, were
filed principally to obtain small but numerous monetary
settlements, with no regard for the actual improvement of
access to public accommodation for persons with
disabilities. In many cases, business owners or
operators paid nuisance value for these lawsuits, as
litigation would have been much more costly for them.
SB 747 (by Senators Corbett, Calderon, Harman, Runner,
Steinberg and Assembly Member Smyth) was introduced in
2007 and expressed intent to enact legislation to promote
increased compliance by businesses with the ADA, state
laws that govern access to public facilities, and federal
and state regulations adopted pursuant to those laws,
through education and certification programs, with the
complementary goal of reducing litigation that seeks
attorney's fees and damages without facilitating
compliance with those laws. That bill passed the Senate
29-1 and is pending action in the Assembly.
AB 147 (Wolk, 2007) stated Legislative intent to enact
legislation to implement and enforce the ADA. That bill
died without being heard.
SB 874 (Calderon, 2007) contained intent language to
enhance access to public accommodations by persons with
disabilities and to clarify the rights and remedies of
persons and entities with respect to accessibility of a
place of public accommodation. That bill died without
being heard.
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5.Continuing Education under the Business and Professions
Code. There are no set standards or general provisions
for continuing education for the boards and bureaus
within the DCA and the professions which they license and
regulate under the Business and Professions Code. The
vast majority of the health related boards and bureaus
have continuing education requirements which are related
to the renewal of the license. None of the design and
construction related boards such as Architecture,
Engineering, Geology or Contracting have continuing
education requirements. However there are continuing
education requirements for licensees under the Structural
Pest Control Board; primarily because of the potential
dangers accompanying the application of pesticides and
poisonous or lethal gases. In addition, there are
continuing education requirements for licensees of the
Board of Accountancy.
Furthermore, there are no set standards for verifying or
certifying that the licensee has completed the continuing
education requirement. In some cases licensees verify or
submit proof to the licensing agency that they have
completed the required courses, in other cases, the
continuing education provider verifies the education to
the agency. Some statutes may also require a board to
approve continuing education providers, or even to audit
providers.
The education provision proposed by this bill is not
intended to be a full-blown continuing education
requirement, but rather to be a narrowly-crafted
provision in which architects submit documentation to the
Board that they have completed the required hours of
education and training.
6.Continuing Education for Architects. In 1997, the Joint
Legislative Sunset Review Committee (Sunset Committee)
considered the issue of continuing education in its
review of the CAB. At that time, the Sunset Committee
noted:
There is no requirement that architects participate
in continuing education as a condition for license
renewal. The Board has historically opposed
mandatory continuing education as a condition for
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licensure. The Board does not feel that the
government requiring continuing education is
effective, cost-efficient, or beneficial to the
public. However, the Board recommends that all
licensees avail themselves of opportunities to
enhance their professional skills and notes that the
American Institute of Architects requires its
membership to participate in continuing education as
a condition of membership.
The Board may require as a condition of probation
remedial education for those architects found to be
guilty of incompetence or negligence. The Board
does not, however, have a program to assure the
continuing competency of licensed architects.
In its 2003 review of the CAB, the Sunset Committee
further noted:
In 2001, the Board completed its comprehensive study on
the proficiency of practicing architects to assess the
degree to which competency problems existed within the
practice of architecture in California. The results
indicated that there was not a competency problem
sufficient to warrant a mandatory continuing education
requirement at this time. The survey did, however,
suggest that there are areas that might be in need of
improvement. Accordingly, the Board worked with
stakeholder groups to devise strategies to enhance a
number of the Board's other programs, including
examination, experience requirements, enforcement, and
communication. While the Board's efforts to address the
proficiency issue did not lead to a continuing education
requirement, the Board has indicated that the study
contributed to a larger effort to enhance a number of the
Board's other programs.
In light of the Sunset Committee's past consideration of
continuing education for architects and the results of
the Board's comprehensive study of the issue, the
Committee may wish to be cautious about establishing a
more extensive continuing education program for
architects out of concern for a single issue. Proceeding
with a narrowly-crafted provision, as is envisioned in
this bill, may make more sense rather than establishing a
more extensive full board-administered continuing
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education program for architects.
7.Are Architects the Problem? The background material
furnished by the Authors suggests that there is a high
level of non-compliance with the ADA and related
provisions of California law by businesses because of
faulty architectural plans. Committee staff notes that
in completing plans, an architect must continually work
within the context of the building codes which have been
promulgated in light of the requirements of the ADA and
California law. It is pointed out that the bill also
imposes continuing education requirements on local
building officials relating to disability access
requirements. However, it remains unclear whether the
problems of non-compliance lie primarily with the
architectural plans or with the implementation of those
plans by the construction professionals when the
buildings, grounds, streets and walkways are actually
constructed.
8.Consumer Attorneys of California Support the Measure.
Consumer Attorneys of California (CAOC) believes that
this measure addresses specific and documented problems
and enacts a number of provisions that will increase
disability access in the state, while at the same time
creating some reasoned changes for early court review of
specified cases. CAOC states, "We believe that the goal
of any ADA lawsuit should be to ensure compliance. The
Legislature, when reviewing any proposed changes to this
law, must ensure that disability access is protected and
enhanced. SB 1608 passes that test."
CAOC further states that for the last 34 years, California
laws have recognized that stairs are as formidable a
barrier to persons who use wheelchairs as direct
discrimination based on race or sex, and the California
Supreme Court has recognized the destructive effect of
discrimination upon disabled persons.
CAOC argues that in order to make California accessible,
those responsible for designing and building our
buildings must be aware of access compliance laws.
Continued education in this area serves that goal.
9.The American Institute of Architects, California Council
Has Concerns. The American Institute of Architects,
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California Council (AIACC) does not oppose the concept of
continuing education as a condition of licensure, stating
that the AIA requires continuing education as a condition
of membership in the organization. AIACC's concern is
with the single-topic continuing education proposal in
this bill, and the number of hours it requires.
According to AIACC, the bill requires five hours of
disability access every two years without any study or
empirical data suggesting the architectural profession is
deficient in its knowledge of federal and state
disability access laws and regulations. AIACC believes
that, as a whole, the architectural profession knows and
understands the importance of adhering to all disability
access laws and regulations for itself, its clients, and
most importantly, the disability community.
AIACC opposes creating a continuing education requirement
that is piecemeal and contends that if continuing
education is going to be required of architects, as a
condition of licensure, California should follow the
model of the 36 other states that require continuing
education and enact a comprehensive continuing education
requirement.
As an alternative, AIACC suggests that California require
architects to take
8 hours of continuing education each year on topics
directly related to the health, safety, and welfare of
the public, and that one of those hours be dedicated to
disability access laws and regulations. "We believe a
one hour requirement is sufficient because the disability
access continuing education requirement is just that;
continuing education. This is not first time education.
There are not enough changes in disability access
requirements from year to year to require multi-hour
continuing education."
A comprehensive continuing education approach with a
disability access component also recognizes that not all
architects provide the same type of services, according
to AIACC. Architects who specialize in disability
access, will spend more than one hour a year on
disability access education. On the other hand,
architects who design projects that do not require
disability access will still have to spend the minimum
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amount of time each year on disability access continuing
education. AIACC believes a comprehensive program will
most benefit the public, as architects will choose other
subjects as needed, such as sustainable design,
structures, moisture barriers, fire sprinklers, and
general building code changes, to keep them current in
those issues needed to protect the health, safety, and
welfare of the public.
10.Clarification Needed. The bill specifies certain
coursework subjects relating to disability access, and
states: "The Board shall certify coursework in
compliance with this provision." It is unclear what is
intended by this requirement and to what extent the CAB
would be required to certify the coursework. Is the
provision intended to require the CAB to certify the
course content, the qualifications of the education
providers, whether the licensee has completed the
required hours, or whether the licensee has certified
that he or she has completed the hours of education?
The Author may wish to speak to this issue and consider
amending the bill to clarify the intent of this
provision.
11.Suggested Technical Amendments. Committee staff
suggests the following amendments to the proposed B&P
Code 5600 (d) (1) to conform the terminology referring
to "continued licensure" with the provisions of the
Architects Practice Act relating to "license renewal."
These amendments should be made in the Senate Judiciary
Committee.
Amendment 1
(d) (1) As a condition of continued licensure
license renewal , a licensee shall have completed
coursework regarding disability access requirements
pursuant to subparagraphs (2) and (3). A licensee
shall provide proof that he or she has completed the
required coursework prior to approval of his or her
continued licensure license renewal .
NOTE: Double-referral to Judiciary Committee second. This
bill has been double referred to both the Business and
Professions Committee and the Senate Judiciary Committee.
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If this bill is passed by the BP&ED Committee, it will be
referred to the Judiciary Committee. Any amendments to
this bill should be made in the Judiciary Committee.
SUPPORT AND OPPOSITION:
Support:
Consumer Attorneys of California
California Chamber of Commerce
California Hotel & Lodging Association
Opposition:
None received as of April 21, 2008
Consultant:G. V. Ayers