BILL ANALYSIS ---------------------------------------------------------- |Hearing Date:April 28, 2008 |Bill No:SB | | |1608 | ---------------------------------------------------------- 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: SB 1608 Page 2 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. SB 1608 Page 3 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. SB 1608 Page 4 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 SB 1608 Page 5 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. SB 1608 Page 6 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 SB 1608 Page 7 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 SB 1608 Page 8 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, SB 1608 Page 9 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 SB 1608 Page 10 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 ofcontinued licensurelicense 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 hercontinued licensurelicense 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. SB 1608 Page 11 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