BILL ANALYSIS                                                                                                                                                                                                    







           ---------------------------------------------------------- 
          |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