BILL ANALYSIS Ó
SENATE JUDICIARY COMMITTEE
Senator Hannah-Beth Jackson, Chair
2015-2016 Regular Session
AB 1342 (Steinorth)
Version: June 22, 2015
Hearing Date: July 14, 2015
Fiscal: Yes
Urgency: No
NR
SUBJECT
Disability access
DESCRIPTION
This bill would require applicants for certified access
specialist (CASp) certification or renewal to provide to the
State Architect information about the location where the
applicant intends to provide services, and would require the
State Architect to post that information to his or her Internet
Web site.
This bill would remove the sunset on the existing law requiring
any applicant for a local business license to pay an additional
fee of $1, of which 30 percent is deposited into the Disability
Access and Education Revolving Fund.
This bill, for every rental agreement executed on or after July
1, 2016, would require the commercial property owner to provide
the tenant with a current disability access inspection
certificate and inspection report, or a copy of a CASp
inspection report, or would require a statement on the agreement
that, upon request of the tenant, the property owner may permit
a CASp inspection at the tenant's expense, as specified.
This bill would additionally require the Commission on
Disability Access to provide a link on its Internet Web site to
the Internet Web site of the Division of the State Architect's
CASp certification program, and to make the Commission's
educational materials and information available to other state
agencies and local building departments. This bill would also
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appropriate $120,000 from the General Fund to the Commission for
the purpose of establishing two permanent outreach coordinator
positions.
BACKGROUND
Since 1969, persons with disabilities have enjoyed protection
under Civil Code
Sections 54 and 54.1, which entitle individuals with
disabilities and medical conditions to full and free access to,
and use of, roadways, sidewalks, buildings and facilities open
to the public, hospitals and medical facilities, and housing.
After Congress enacted the Americans with Disabilities Act (ADA)
in 1990, California made a violation of the ADA also a violation
of Section 54 or 54.1. The protections provided to disabled
persons under California law are comparatively higher than those
provided under the ADA and are independent of the ADA.
Additionally, under the Unruh Civil Rights Act, all persons,
regardless of sex, race, color, religion, ancestry, national
origin, disability or medical condition, are entitled to the
full and equal accommodations, advantages, facilities,
privileges, or services in all business establishments of every
kind whatsoever. (Civil Code Sec. 51.) A violation of the ADA
also constitutes a violation of Section 51. A violation of that
section subjects a person to actual damages incurred by an
injured party, plus treble actual damages, but in no event less
than $4,000, and any attorney's fees as the court may determine
to be proper. (Civil Code Sec. 52.)
The California Commission on Disability Access (CCDA),
established in 2008, is charged with promoting disability access
in California through dialogue and collaboration with
stakeholders including, but not limited to the disability and
business community, and all levels of government. Accordingly,
the CCDA is authorized to act as an information resource; to
research and prepare advisory reports of findings to the
Legislature on issues related to disability access, compliance
inspections and continuing education; to increase coordination
between stakeholders; to make recommendations to promote
compliance with federal, and state laws and regulations; and to
provide uniform information about programmatic and architectural
disability access requirements to the stakeholders.
Seeking to better achieve compliance with disability access
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requirements in California, this bill would require specific
disclosures to commercial tenants with regard to the compliance
status of a rental property, would require certain information
be publicly available, and would appropriate additional funds to
the CCDA.
CHANGES TO EXISTING LAW
1.Existing federal law , the Americans with Disabilities Act
(ADA), provides that no individual shall be discriminated
against on the basis of disability in the full and equal
enjoyment of the goods, services, facilities, privileges,
advantages, or accommodations of any place of public
accommodation by any person who owns, leases, or leases to, or
operates a place of public accommodation. (42 U.S.C. Sec.
12182.)
Existing law , 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 the full and equal accommodations, advantages, facilities,
privileges, or services in all business establishments of
every kind whatsoever. (Civ. Code Sec. 51 et seq.)
Existing law 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 also provides that a violation of
an individual's rights under the ADA constitutes a violation
of state law. (Civ. Code Secs. 54, 54.1.)
Existing law provides that a violation of the ADA also
constitutes a violation of Sections 54 or 54.1, and entitles a
prevailing party to recover reasonable attorney's fees. (Civ.
Code Sec. 55.)
Existing law establishes the California Commission on
Disability Access (CCDA), an independent state agency composed
of 17 members, to monitor disability access compliance in
California, and make recommendations to the Legislature for
necessary changes in order to facilitate implementation of
state and federal laws on disability access. (Gov. Code Sec.
8299 et seq.)
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This bill would appropriate $120,000 from the General Fund to
the CCDA to establish a permanent legislative outreach
coordinator position and a permanent educational outreach
coordinator position.
This bill would require the CCDA to provide a link on its
Internet Web site to the Internet Web site of the Division of
the State Architect's CASp certification program and to make
the CCDA's educational materials and information available to
other state agencies and local building departments.
2.Existing law requires the State Architect to establish the
Certified Access Specialist Program (CASp) and develop the
specified criteria to have a person qualify as a certified
access specialist. (Gov. Code Sec. 4459.5; Civ. Code Sec.
55.52.)
Existing law requires a local agency to employ or retain at
least one building inspector who is a CASp, commencing on
January 1, 2014, to employ or retain a sufficient number of
building inspectors who are CASp to conduct inspections with
respect to new construction. (Civ. Code Sec. 55.53(d).)
Existing law , until December 31, 2018, requires any applicant
for a local business license or equivalent instrument, to pay
an additional fee of one dollar, of which 30 percent shall be
transmitted to the Disability Access and Education Revolving
Fund. Civ. Code Sec. 4467.)
This bill would remove the sunset in the provision above.
This bill would require applicants for CASp certification or
renewal to additionally provide to the State Architect
information about the city, county, or city and county in
which the applicant intends to provide or has provided
services, and would require the State Architect to post that
information on his or her Internet Web site.
3.Existing law requires a commercial property owner to state on
a lease form or rental agreement executed on or after July 1,
2013, if the property being leased or rented has undergone
inspection by a certified access specialist. (Civ. Code Sec.
1938.)
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This bill would require a commercial property owner, for every
lease or rental agreement executed on or after July 1, 2016,
to provide the lessee or tenant with a current disability
access inspection certificate and inspection report, or a copy
of the CASp inspection report.
This bill would require, if the subject premises have not been
issued a current disability access inspection certificate, the
property owner or lessor to include a statement on the rental
agreement that, upon request of the lessee or tenant, the
property owner may permit a CASp inspection of the subject
premises at the lessee's or tenant's expense and that the
parties must mutually agree on the time and manner of the
inspection.
COMMENT
1.Stated need for the bill
According to the author:
Formed by the Legislature in 2008, the California Commission
for Disability Access (CCDA) is entrusted with a variety of
responsibilities relating to disability access throughout
California. The CCDA works to align the needs of the disabled
community with the private sector, and provides a forum for
dialogue between parties. However, the CCDA has not received
funding increases in accordance with new responsibilities from
the Legislature. AB 1342 takes an initial step to increase
their funding so that they may begin hiring for new positions
to pursue the goals outlined in their 5 Year Strategic Plan.
Also, it was noted to us by the California Business Properties
Association that there is an apparent lack of knowledge
regarding the existence of CASp inspections. Among those who
are aware of this service, it can be difficult to locate an
inspector who is available to come to your property. Thus, AB
1342 takes steps such as requiring CASp inspectors to note
their cities and counties of service so that this hurdle may
be addressed.
2.Aiding commercial tenants in determining whether a property is
compliant with accessibility laws
In response to concerns that many commercial tenants do not know
the compliance status of the property they rent or lease, SB
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1186 required commercial property owners to state on a lease
form or rental agreement if the property had undergone
inspection by a CASp. (Civ. Code Sec. 1938.) Further ensuring
that commercial tenants are informed about the compliance status
of leased properties, this bill would additionally require that
if a property has had a CASp inspection and, to the best of the
commercial property owner's knowledge, there have been no
modifications since the date of the inspection, the property
owner must provide the tenant with a copy of the report.
Additionally, if the property does not have a current CASp
inspection certificate, this bill would require the property
owner to include the following disclosure on the lease or rental
agreement:
A Certified Access Specialist (CASp) can inspect the subject
premises and determine whether the subject premises comply
with all of the applicable construction-related accessibility
standards under state law. Although state law does not require
a CASp inspection of the subject premises, the commercial
property owner or lessor may permit the lessee or tenant to
obtain a CASp inspection of the subject premises for the
occupancy or potential occupancy of the lessee or tenant, at
the lessee's or tenant's expense, if requested by the lessee
or tenant. The parties shall mutually agree on the
arrangements for the time and manner of the CASp inspection.
Thus, this bill would ensure that property owners have a duty to
communicate the status of a property to tenants prior to the
execution of a lease or rental agreement, and that commercial
tenants have up-to-date information about whether a property is
actually in compliance with access laws. However, as drafted,
the bill requires only the above disclosure be included in a
rental agreement. Accordingly, it would only be controlling for
contracts executed after July 1, 2016. Thus, to ensure that the
contents of the disclosure are applicable to all commercial
properties, the author may wish to amend the bill to include
information in the above disclosure in the statute as well.
In addition, as drafted, the disclosure above would allow a
property owner to prohibit a tenant from hiring a CASp
inspector, which is arguably not the author's intent. The
amendment below would instead not allow the property owner to
prohibit a tenant from hiring a CASp. The tenant, however,
would still be required to coordinate with the property owner as
to the time and manner of the inspection.
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Suggested amendment:
(d) If the subject premises have not been issued a current
disability access inspection certificate, the commercial
property owner or lessor shall state the following on the
lease form or rental agreement:
"A Certified Access Specialist (CASp) can inspect the subject
premises and determine whether the subject premises comply
with all of the applicable construction-related accessibility
standards under state law. Although state law does not require
a CASp inspection of the subject premises, the commercial
property owner or lessor may not prohibit permit the lessee or
tenant from obtaining to obtain a CASp inspection of the
subject premises for the occupancy or potential occupancy of
the lessee or tenant, at the lessee's or tenant's expense, if
requested by the lessee or tenant. The parties shall mutually
agree on the arrangements for the time and manner of the CASp
inspection."
3.Funding for education on access compliance
The mission of the California Commission on Disability Access
(CCDA) is to promote access in California through collaboration
with stakeholders, and is thus authorized to act as an
information resource, prepare advisory reports for the
Legislature, and make recommendations to promote compliance with
federal and state laws. The CCDA, in part, is funded by
business license applications. Until December 31, 2018,
business license applicants are required to pay an additional
dollar for a license, of which 30 percent goes to the Disability
Access and Education Revolving Fund. This bill would remove that
sunset date and additionally appropriate $120,000 from the
General Fund to the CCDA for the purpose of establishing two
permanent outreach coordinator positions. CCDA writes that
"staffing CCDA with additional resources will position us with
the suitable means to react and educate our state on how it can
become accessible and barrier free for all of its residents. It
will also produce savings for the State of California by
identifying models of success that lead to Americans with
Disabilities Act (ADA) compliance and promotes the CCDA vision
of an accessible, barrier free California, which equals
inclusive, and equal opportunities and participation for all
Californians."
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In support, Disability Rights California writes, "the CCDA has
been instrumental in collecting information about disability
access issues. Their reports provide an excellent overview of
the types of architectural access issues that exist. Providing
additional funding to continue their research is critical as
they develop and implement recommendations as outlined in this
strategic plan for improving access across California."
4.Continued education, community outreach, and data collection
This bill contains a number of provisions to increase compliance
with accessibility laws in the state through education and
strengthening of existing programs. Specifically, this bill
would require applicants for CASp certification or renewal to
provide the State Architect with information about where that
person plans to practice, and would require the State Architect
to post that information on its Internet Web site. This bill
would also require the California Commission on Disability
Access (CCDA) to link its Internet Web site to the State
Architect's CASp certification program, and make the CCDA's
educational materials and information available to other state
agencies and local building departments.
These requirements are a natural extension of many of the data
collection and education requirements under SB 1186 which have
proven to be helpful in educating the community about access
laws. In support, CCDA writes, "the recognition of the lack of
sufficient resource allocations required for CCDA to accomplish
its legislative mandates is appropriately observed. We believe
AB 1342 properly establishes the vehicle to ensure that CCDA
will be able to do its work."
Support : American Institute of Architects California Council;
Building Owners and Managers Association of California;
California Building Industry Association; California Business
Properties Association; California Chamber of Commerce;
California Commission on Disability Access; Commercial Real
Estate Development Association; NAIOP of California; Consumer
Attorneys of California;
Disability Rights California; International Council of Shopping
Centers; National Federation of Independent Businesses
Opposition : None Known
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HISTORY
Source : Author
Related Pending Legislation :
AB 52 (Gray, 2015) would provide that the defendant's maximum
liability for statutory damages in a construction-related
accessibility claim against a place of public accommodation is
$1,000 for each offense if the defendant has corrected all
construction-related violations within 180 days of being served
with the complaint. This bill is currently in the Assembly
Judiciary Committee.
AB 54 (Olsen, 2015) would include any amount paid or incurred by
a taxpayer to receive an inspection by a CASp as an eligible
access expenditure for the Personal Income Tax Law and the
Corporation Tax Law which allows a credit to eligible small
businesses for 50 percent of eligible access expenditures. This
bill is currently in the Assembly Revenue and Taxation
Committee.
AB 1230 (Gomez, 2015) would establish the California Americans
with Disabilities Act Small Business Compliance Finance Act to
provide loans to assist small businesses finance the costs of
projects that alter or retrofit existing small business
facilities to comply with the federal American with Disabilities
Act. This bill is currently in the Assembly Appropriations
Committee.
AB 1521 (Judiciary, 2015) would provide additional information
and legal resources to small business owners who may not realize
how to minimize their liability for ADA violations or respond to
a lawsuit filed against them. This bill is currently in the
Senate Judiciary Committee.
AB 1468 (Baker, 2014) would provide that a public entity's
possession of a close out letter from the State Architect
certifying that the buildings, facilities, and other places meet
the applicable construction-related accessibility standards of
the federal Americans with Disabilities Act, serves as
presumptive evidence of compliance with the federal Americans
with Disabilities Act. This bill is currently in the Assembly
Judiciary Committee.
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SB 67 (Galgiani) would limit recovery against a small business
for construction-related accessibility claims to injunctive
relief and reasonable attorney's fees, and would allow
businesses who have undergone a CASp inspection 120 days to
correct violations in order to qualify for reduced statutory
minimum damages. This bill is currently in the Senate Judiciary
Committee.
SB 251 (Roth) would provide that a business is not liable for
violating a construction-related accessibility standard if the
business is inspected by a CASp and the violation is corrected
within 90 days of receiving the CASp inspection report, and
would also provide that businesses are not liable for specified
violations if corrected within 15 days, as specified. This bill
is currently in the Assembly Judiciary Committee.
Prior Legislation :
SB 1186 (Steinberg and Dutton, Chapter 383, Statutes of 2012)
reduced statutory damages and provided litigation protections
for specified defendants who timely correct construction-related
accessibility violations of the Unruh Civil Rights Act. That
bill also banned prelitigation "demands for money" and created
rules for demand letters and complaints in claims involving
construction-related accessibility violations.
AB 2282 (Berryhill, 2012) would have authorized an aggrieved
person to bring a disability access suit only if: (1) the person
has suffered an injury in fact; (2) the injury in fact was
caused by the violation; and (3) the violation is redressable,
was held under submission in the Senate Appropriations
Committee.
AB 1878 (Gaines, 2011) which was substantially similar to SB
1163, but applied to "microbusinesses," defined by the bill,
failed passage in the Assembly Judiciary Committee.
SB 1163 (Walters, 2012) would have established notice
requirements for an aggrieved party to follow before he or she
can bring a disability access suit and give the business owner a
120-day time period to remedy the violation. If the property
owner cures the violation, the aggrieved party cannot receive
any damages or attorney's fees, except for special damages.
This bill failed passage in this Committee.
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SB 783 (Dutton, 2011), which was identical to SB 1163, failed
passage in this Committee.
SB 384 (Evans, Ch. 419, Stats. 2011) clarified that attorneys
who file complaints or send demand letters related to disability
access violations must provide a written notice of legal rights
and obligations whether or not the attorney intends to file an
action in state or federal court.
SB 209 (Corbett & Harman, Ch. 569, Stats. 2009) required a CASp
inspection report, to remain confidential rather than be under
seal and subject to protective order.
SB 1608 (Corbett et al., Ch. 549, Stats. 2008) enacted the CCDA
and various other reforms intended to increase voluntary
compliance with longstanding state and federal laws requiring
access to the disabled in any place of public accommodation.
SB 1766 (McClintock, 2008) would have required a person with a
disability, prior to filing a complaint to first notify the
owner or manager of a housing or public accommodation of the
violations and to wait 6 months before commencing a lawsuit.
This bill failed passage in the Senate Judiciary Committee.
AB 2533 (Keene, 2008) would have required pre-litigation
procedures for a plaintiff to undertake prior to the filing of a
complaint, including notice to the owner of the property or
business of the alleged violations and a specified time period
for the owner or business to cure the violations. This bill
failed passage in the Assembly Judiciary Committee.
SB 855 (Poochigian, 2005) would have required pre-litigation
procedures for a plaintiff to undertake prior to the filing of a
complaint, including notice to the owner of the property or
business of the alleged violations and a specified time period
for the owner or business to cure the violations. This bill
failed passage in the Senate Judiciary Committee.
Prior Vote :
Senate Governmental Organization Committee (Ayes 12, Noes 0)
Assembly Floor (Ayes 78, Noes 0)
Assembly Appropriations Committee (Ayes 17, Noes 0)
Assembly Judiciary Committee (Ayes 10, Noes 0)
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