BILL ANALYSIS                                                                                                                                                                                                    Ó





                             SENATE JUDICIARY COMMITTEE
                         Senator Hannah-Beth Jackson, Chair
                             2015-2016  Regular  Session


          AB 2093 (Steinorth)
          Version: May 25, 2016
          Hearing Date: June 14, 2016  
          Fiscal: Yes
          Urgency: No
          NR   


                                        SUBJECT
                                           
                                  Disability access

                                      DESCRIPTION  

          This bill, for every commercial rental agreement or lease  
          executed on or after January 1, 2017, would require the property  
          owner to state whether the premises have been inspected by a  
          CASp specialist, to provide the tenant with a current disability  
          access inspection certificate and inspection report, or would  
          require a statement on the agreement that the property owner not  
          prohibit a CASp inspection, as specified.  

          This bill would provide that any repairs necessary to correct  
          violations noted in a CASp report are presumed to be the  
          responsibility of the property owner, unless otherwise mutually  
          agreed upon by the property owner and tenant.  This bill would  
          also provide that a tenant shall have an opportunity to view any  
          CASp report prior to the execution of the lease and, if denied  
          that opportunity, shall have the right to rescind the lease  
          based on information in the report, 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, and would make other  
          related changes. 

                                      BACKGROUND  








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          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. (Civ. 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  
          requirements in California, this bill would require specific  
          disclosures to commercial tenants with regard to the compliance  
          status of a rental property, would allow a tenant to rescind the  
          lease based on information in a CASp report, and would require  
          certain information to be made publicly available by the CCDA.







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                                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, medical condition, genetic  
            information, marital status, sexual orientation, citizenship,  
            primary language, or immigration status 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.)

             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  







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            the CCDA's educational materials and information available to  
            other state agencies and local building departments.

           2.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.)

             This bill  would require a commercial property owner, for every  
            lease or rental agreement executed on or after January 1,  
            2017, to state on the lease or rental agreement whether the  
            subject premises have undergone a CASp inspection.   

             This bill  , for properties that have undergone a CASp  
            inspection and there have been no subsequent modifications or  
            alterations, would require the commercial property owner to  
            provide the lessee or tenant with a copy of the CASp  
            inspection report.  This report shall remain confidential,  
            except as necessary for the tenant to complete repairs, as  
            specified. 

             This bill  would create a presumption that repairs necessary to  
            correct violations noted in a CASp report are the  
            responsibility of the commercial property owner unless  
            otherwise mutually agreed to by the owner and prospective  
            tenant, and would require the following: 
                 that the prospective tenant have an opportunity to  
               review any CASp report prior to the execution of the lease  
               or rental agreement; 
                 that if the CASp report is not provided to the  
               prospective tenant at least 48 hours prior to the execution  
               of the lease or rental agreement, he or she shall have the  
               right to rescind the lease or rental agreement, based on  
               information contained in the report, for up to 72 hours  
               after the execution of the agreement;
                 that the property owner provide any available disability  
               access certificate (indicating that the premises passed a  
               CASp inspection) to the tenant within seven days of the  
               execution of the lease or rental agreement; and
                 a notice on the lease or rental agreement, for a  
               building that has not had a CASp inspection, providing that  
               a property owner may not prohibit a tenant from obtaining a  
               CASp inspection, and that the parties shall mutually agree  
               on the arrangements for the CASp inspection, including the  







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               payment of the fee, and the cost of making any repairs  
               necessary to correct violations noted in the report. 

           1.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  , commencing January 1, 2010, requires a local  
            agency to employ or retain at least one building inspector who  
            is a CASp, and, 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).)

             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.

                                        COMMENT
           
           1.Stated need for the bill
           
          According to the author: 

            Unfortunately, many business and property owners are fully  
            unaware of the CASp program, which could be useful to  
            proactively ensure that properties are compliant, thus  
            avoiding the abusive litigation that has run rampant  
            throughout the state in recent years. This bill, by requiring  
            information about the CASp program to be included in rental or  
            lease agreements, aims to increase awareness of the program  
            and hopefully encourage tenants to voluntarily obtain a CASp  
            inspection. 

            The bill also seeks to clarify whether property owners or  
            tenants are responsible for making repairs to correct  
            violations of construction-related accessibility standards.  
            This can be a point of contention among property owners and  
            tenants if/when violations are identified; AB 2093 provides  
            guidance in this area. 







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            AB 2093's requirement for CASp inspectors to list the counties  
            they intend to serve on their application so that the  
            information may be arranged better on the DSA website, so that  
            business owners may more easily locate and contact an  
            inspector to arrange an inspection if they so choose.

           2.Aiding commercial tenants in determining whether a property is  
            in compliance 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  
          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 as to the status of leased  
          properties, this bill would additionally require that the  
          prospective tenant have an opportunity to review any CASp report  
          prior to the execution of the lease or rental agreement.  As an  
          enforcement mechanism, this bill would provide that if the CASp  
          report is not provided to the prospective tenant at least 48  
          hours prior to the execution of the lease or rental agreement,  
          he or she has the right to rescind, based on information  
          contained in the report, for up to 72 hours after the execution  
          of the agreement.  This bill would also require, that within  
          seven days of signing a rental agreement, that the property  
          owner provide any available disability access certificate to the  
          tenant.  This certificate, when posted in the window of a  
          business, informs the public that the building is in compliance  
          with access laws, thereby indicating to disabled persons that  
          the premises is truly accessible, and indicating to would-be  
          "predatory attorneys" that the business's liability is somewhat  
          limited.  

          For businesses that do 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 not prohibit the lessee or tenant  







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            from obtaining a CASp inspection of the subject premises for  
            the occupancy or potential occupancy of the lessee or tenant,  
            if requested by the lessee or tenant. The parties shall  
            mutually agree on the arrangements for the time and manner of  
            the CASp inspection, the payment of the fee for the CASp  
            inspection, and the cost of making any repairs necessary to  
            correct violations of construction-related accessibility  
            standards within the premises.

          Accordingly, the requirements of 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.  The bill would also ensure that tenants have  
          a meaningful opportunity to review any CASp reports and would  
          provide them with a right to rescind the agreement in the event  
          that the property owner has not been forthcoming.  

          Additionally, attempting to ensure that the person in the best  
          position to remedy access violations takes responsibility for  
          those repairs, this bill would create a presumption that the  
          property owner is responsible for fixing violations noted in a  
          CASp report, unless otherwise mutually agreed upon by the  
          property owner and prospective tenant. Staff notes that while  
          this assignment of responsibility is helpful in that it creates  
          clarity and appears to shift the burden of fixing violations  
          onto the property owner, in practice, property owners will  
          easily be able to place responsibility on the tenant by  
          including boilerplate language in rental agreements that holds  
          the tenant liable for construction-related access violations.  

           3.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  







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          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, the Civil Justice Association of California   
          writes: 

            Prospective commercial tenants may be unaware of existing  
            construction-related accessibility standards or compliance  
            issues. Property owners and tenants alike may be unaware of  
            the local availability of CASp services.

            AB 2093 will improve the ability of property owners to arrange  
            for CASp inspections, and promote awareness by both owners and  
            tenants of accessibility requirements and any access issues  
            with leased property. This bill will promote compliance with  
            construction-related accessibility standards, improving access  
            and discouraging abusive lawsuits. For these reasons we  
            support AB 2093.


           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; Civil  
          Justice Association of California; Commercial Real Estate  
          Development Association, NAIOP of California; Consumer Attorneys  
          of California; International Council of Shopping Centers;  
          National Federation of Independent Businesses 

           Opposition  :  None Known

                                        HISTORY
           
           Source  :  Author 

           Related Pending Legislation  :

          SB 1142 (Moorlach) would have established notice requirements  
          for an aggrieved party to follow before he or she can bring a  
          disability access suit and would have given the business owner a  
          120-day time period to remedy the violation.  The bill would  
          have also provided that in the event of any difference between  
          the ADA and state law, that the ADA controls.  This bill failed  







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          passage in the Senate Judiciary Committee. 

          SB 1406 (Mendoza) would require an attorney who sends or serves  
          a complaint alleging a construction-related accessibility  
          violation against a public entity to send a copy of the  
          complaint and submit the notification of judgment, settlement,  
          or dismissal to the California Commission on Disability Access,  
          as specified.  

           Prior Legislation  :

          SB 269 (Roth, Ch. 13, Stats. 2016) is substantially similar to  
          SB 251 (see below), with the exception of the tax credit, which  
          the author removed to address the Governor's concerns. 

          AB 52 (Gray, 2015) would have provided 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 was never  
          heard in the Assembly Judiciary Committee. 

          AB 1230 (Gomez, Ch. 787, Stats. 2015) establishes the California  
          Americans with Disabilities Act Small Business Compliance  
          Finance Act to provide loans to assist small businesses to  
          finance the costs of projects that alter or retrofit existing  
          small business facilities to comply with the federal Americans  
          with Disabilities Act.  

          AB 1342 (Steinorth, 2015) would have provided additional revenue  
          to the California Commission on Disability Access.  This bill  
          was vetoed by Governor Brown who stated that it was "something  
          more appropriately addressed in the annual budget process."

          AB 1468 (Baker, 2015) would have provided 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 was never heard in the  
          Assembly Judiciary Committee. 

          AB 1521 (Committee on Judiciary, Ch. 755, Stats. 2015) created a  







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          new class of plaintiff, a "high frequency litigant," upon which  
          it imposed additional costs and procedural burdens.

          SB 67 (Galgiani, 2015) would have limited 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 was never heard in the Senate  
          Judiciary Committee. 

          SB 251 (Roth, 2015) would have made various changes to access  
          laws, including: exempting a defendant from liability for  
          minimum statutory damages if corrections were made within 120  
          days of receiving a CASp report; requiring the State Architect  
          to publish a list of CASp inspected businesses; and providing a  
          tax credit for eligible access expenditures, as specified.  This  
          bill was vetoed by Governor Brown who argued that tax credits  
          are more appropriately addressed in the annual budget process.

          SB 1186 (Steinberg and Dutton, Ch. 383, Stats. 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 is substantially similar to SB 1163  
          but applies 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 would have given the  
          business owner a 120-day time period to remedy the violation.   
          If the property owner cured the violation, this bill would have  
                                                                       prohibited the plaintiff from receiving any damages or  







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          attorney's fees, except for special damages.  This bill failed  
          passage in this Committee.  

          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  :

          Assembly Floor (Ayes 79, Noes 0)
          Assembly Appropriations Committee (Ayes 20, Noes 0)







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          Assembly Judiciary Committee (Ayes 10, Noes 0)

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