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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