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 AB 2093 (Steinorth) Page 2 of ? 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. AB 2093 (Steinorth) Page 3 of ? 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 AB 2093 (Steinorth) Page 4 of ? 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 AB 2093 (Steinorth) Page 5 of ? 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. AB 2093 (Steinorth) Page 6 of ? 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 AB 2093 (Steinorth) Page 7 of ? 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 AB 2093 (Steinorth) Page 8 of ? 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 AB 2093 (Steinorth) Page 9 of ? 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 AB 2093 (Steinorth) Page 10 of ? 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 AB 2093 (Steinorth) Page 11 of ? 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) AB 2093 (Steinorth) Page 12 of ? Assembly Judiciary Committee (Ayes 10, Noes 0) **************