BILL ANALYSIS                                                                                                                                                                                                    



                                                                    AB 2873


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          Date of Hearing:  April 19, 2016


                           ASSEMBLY COMMITTEE ON JUDICIARY


                                  Mark Stone, Chair


          AB 2873  
          (Thurmond) - As Amended March 18, 2016


                              As Proposed to be Amended

          SUBJECT:  Certified access specialistS

          KEY ISSUES:


          1)SHOULD ADDITIONAL FUNDS BE MADE AVAILABLE TO LOCAL GOVERNMENTS  
            IN ORDER TO TRAIN AND CERTIFY ADDITIONAL CERTIFIED ACCESS  
            SPECIALISTS WHOSE SERVICES ARE BENEFICIAL TO BOTH SMALL  
            BUSINESSES AND THE DISABLED COMMUNITY, PAID FOR BY HIGHER  
            BUSINESS LICENSE FEES?


          2)SHOULD ALL OF THE BUILDING INSPECTORS EMPLOYED BY LOCAL  
            BUILDING DEPARTMENTS WHO CONDUCT PERMITTING AND PLAN CHECK  
            SERVICES TO BUSINESSES FOR COMPLIANCE WITH STATE  
            CONSTRUCTION-RELATED ACCESSIBILITY STANDARDS BE REQUIRED, AS  
            OF JANUARY 1, 2018, TO BE CASP-CERTIFIED? 

                                      SYNOPSIS


          Under the twenty-five year-old federal Americans with  
          Disabilities Act (ADA), a business that constitutes a place of  
          public accommodation (e.g., many places of lodging,  








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          entertainment, recreation, restaurants, bars, theaters, stores,  
          health clubs, etc.) is prohibited from discriminating on the  
          basis of disability if its operations affect interstate  
          commerce.  In 1992, shortly after passage of the ADA, the  
          Legislature amended the state's disability protections 'to  
          strengthen California law in areas where it is weaker than the  
          ADA and to retain California law when it provides more  
          protection for individuals with disabilities than the ADA.   
          Therefore, since 1992, public accommodations in California have  
          been required to comply with not only the ADA, but also with the  
          state's Unruh Act, which incorporates the ADA into its  
          provisions and makes a violation of the ADA punishable as a  
          violation of Unruh.  Compliance, something disabled consumers  
          should be able to count on as they go about their daily lives,  
          also has the added benefit to businesses of helping them to  
          avoid ADA litigation.




          One significant way to increase compliance is the Certified  
          Access Specialist (CASp) program.  In 2003, Senate Bill 262  
          (Kuehl, Chapter 872, Statutes of 2003) created the CASp program  
          to meet the public's need for experienced, trained, and tested  
          individuals who can inspect buildings and sites for compliance  
          with applicable state and federal construction-related  
          accessibility standards.  Since then, a number of bills have  
          expanded the use and effect of CASp inspections.  However, no  
          significant new financial resources have been provided to small  
          businesses or to the CASp program, in order to bring businesses  
          into compliance with the law.  


          As proposed to be amended, this bill seeks to expand the  
          availability of CASp-certified building inspectors in order to  
          increase compliance with state and federal construction-related  
          accessibility standards, requiring that as of January 1, 2018,  
          all building inspectors employed or retained by a local agency  
          who conduct permitting and plan check services to review for  








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          compliance with state construction-related accessibility  
          standards by a place of public accommodation with respect to new  
          construction, including, but not limited to, projects relating  
          to tenant improvements that may impact access shall be certified  
          access specialists.  It provides funding to local governments to  
          either hire more CASps, or to allow existing staff to become  
          certified, by increasing the fee on business licenses that is  
          used to fund the CASp Program from one dollar to four dollars,  
          and specifying that most of the additional funds are retained by  
          local governments and deposited into a special CASp fund.  This  
          bill is sponsored by Disability Rights California and supported  
          by the Consumer Attorneys of California.  It has no opposition  
          on file.


          SUMMARY: Seeks to expand the availability of CASp-certified  
          building inspectors in order to increase compliance with state  
          and federal construction-related accessibility standards.   
          Specifically, this bill:  


          1)Requires, as of January 1, 2018, that all building inspectors  
            employed or retained by a local agency who conduct permitting  
            and plan check services to review for compliance with state  
            construction-related accessibility standards by a place of  
            public accommodation with respect to new construction,  
            including, but not limited to, projects relating to tenant  
            improvements that may impact access shall be certified access  
            specialists.


          2)Eliminates the provision in existing law that if a local  
            agency employs or retains two or more certified access  
            specialists, at least half of them are required to be building  
            inspectors who are certified access specialists.


          3)Raises the fee on business licenses that is used to fund the  
            CASp Program from one dollar to four dollars.








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          4)Provides that instead of retaining 70 percent of the business  
            license fee and sending 30 percent to the Division of the  
            State Architect (DSA), the local government would keep 90  
            percent of the funds and provide 10 percent to the DSA.


          5)Requires that any funds collected by the local government  
            would be deposited into a "CASp Certification and Training  
            Fund."


          EXISTING LAW:  


          1) Provides for a California Commission on Disability Access, an  
            independent state agency composed of 17 members, with the  
            general responsibility for monitoring disability access  
            compliance in California, and the authority to hold hearings  
            and make recommendations to the Legislature for necessary  
            changes to existing state law in order to facilitate  
            implementation of state and federal laws on disability access.  
             (Gov. Code Sec. 8299 et seq.  All further statutory  
            references are to the Government Code, unless otherwise  
            indicated.)


          2)Requires the Commission to use its funding, as appropriate, to  
            provide information about preventing or minimizing compliance  
            problems among California businesses, and recommending  
            programs to enable persons with disabilities to obtain full  
            and equal access to public facilities.  (Section 8299.05.)




          3)Makes it a priority for the Commission to provide educational  
            resources to promote and facilitate disability access  








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            compliance.  (Section 8299.06.) 


          4)Provides for the certification process in which an applicant  
            may become a certified-access specialist.  Further provides  
            that the DSA shall require each applicant to pay fees that are  
            reasonably necessary to implement the certified access  
            specialist program, including processing, registration, and  
            publishing a list of certified access specialists.  (Section  
            4459.8.)


          5)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.  If the property has undergone an  
            inspection, the commercial property owner shall state whether  
            the property has or has not been determined to meet all  
            applicable construction-related accessibility standards.   
            (Civil Code Section 1938.)


          6)Requires a local agency to employ or retain a sufficient  
            number of building inspectors who are CASp-certified to  
            conduct permitting and plan check services to review for  
            compliance with state construction-related accessibility  
            standards by a place of public accommodation with respect to  
            new construction, including, but not limited to, projects  
            relating to tenant improvements that may impact access and  
            specifies that if a local agency employs or retains two or  
            more certified access specialists to comply with this  
            subdivision, at least one-half of the certified access  
            specialists shall be building inspectors who are certified  
            access specialists.  (Civil Code Section 55.53 (d)(2).)


          FISCAL EFFECT:  As currently in print this bill is keyed fiscal.










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          COMMENTS:  Under the twenty-five year-old federal Americans with  
          Disabilities Act (ADA), a business that constitutes a place of  
          public accommodation (e.g., many places of lodging,  
          entertainment, recreation, restaurants, bars, theaters, stores,  
          health clubs, etc.) is prohibited from discriminating on the  
          basis of disability if its operations affect interstate  
          commerce.  Prohibited discrimination can take a number of forms  
          - e.g., denial of participation in the facility, or a service,  
          benefit, or good of the business; denial of equal participation  
          in a good, service, or facility; or provision of a different or  
          separate facility, service or good (unless necessary to provide  
          services and are as effective as that provided to others).   
          Government facilities are also covered by the access obligations  
          of the ADA.


          According to the California Supreme Court, "In 1992, shortly  
          after passage of the ADA, the Legislature amended the state's  
          disability protections 'to strengthen California law in areas  
          where it is weaker than the [ADA] and to retain California law  
          when it provides more protection for individuals with  
          disabilities than the [ADA].'  Two overlapping laws, the Unruh  
          Civil Rights Act ( 51) and the Disabled Persons Act (  
          54-55.3), are the principal sources of state disability access  
          protection."  (Jankey v. Lee (2012) 55 Cal.4th 1038, 1044  
          [Citation to internal quotation deleted].)  As a result of  
          incorporating the ADA into the state's Unruh Civil Rights, a  
          plaintiff who prevails in a construction-related accessibility  
          claim, like all plaintiffs in other civil rights cases, is  
          entitled to minimum statutory damages of $4,000 per violation  
          (although later amendments to Unruh, affecting only disabled  
          plaintiffs in only construction-related disability claims,  
          reduced the minimum statutory damages to only $1,000 in some  
          cases, such as when a small business previously obtained a CASp  
          inspection).


          Therefore, since 1992, public accommodations in California have  
          been required to comply with not only the ADA, but also with the  








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          state's Unruh Act, which incorporates the ADA into its  
          provisions and makes a violation of the ADA punishable as a  
          violation of Unruh.  (Section 51.)  All violations of Unruh are  
          subject to statutory damages of at least $4,000 per violation,  
          except some cases where the violation is based on a  
          construction-related accessibility claim, in which case lower  
          damages (a minimum of $1,000, or $2,000, depending on the  
          circumstances of the case) apply.  


          Efforts by the Legislature to Help Businesses Comply with  
          Construction-related Accessibility Standards.  For years, there  
          has been widespread media coverage about the problem of what has  
          been described as "serial ADA litigation."  But it is also  
          important to put these figures into perspective.  According to  
          data compiled by the Commission, from January 2014 until January  
          2015, there were 3,468 demand letters and complaints sent or  
          filed in the state.  In contrast, according to the Judicial  
          Council of California, a total of 800,091 lawsuits were filed in  
          the state in 2013 (the most recent year available).  Meanwhile,  
          California has approximately 3.3 million small businesses.   
          These figures mean that less than one percent of small  
          businesses (and a far smaller percentage of all businesses) were  
          sued in 2014 for access violations; and the 3,468 demand letters  
          or complaints regarding accessibility violations represent less  
          than one-half of one percent (.43%) of the total number of  
          lawsuits filed in the state.  And the actual percentage is even  
          smaller, because the Commission figure includes demand letters  
          that are not complaints. 


          In response to this problem - both real and perceived - small  
          businesses are justifiably fearful and angry about being sued,  
          while disabled consumers are viewed with blame or suspicion,  
          even though they have a right to full and equal access and  
          should be able to expect all public accommodations to comply  
          with the 25-year old requirements of the Americans with  
          Disability Act.  Disabled consumers just want to go about their  
          daily lives without difficulty, discomfort, or embarrassment,  








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          and with the basic dignity that comes from being able to go to  
          the same places and have the same access to services as  
          non-disabled persons.  Compliance, something disabled consumers  
          should be able to count on as they go about their daily lives,  
          also has the added benefit to businesses of helping them to  
          avoid ADA litigation.


          One significant way to increase compliance is the Certified  
          Access Specialist (CASp) program.  In 2003, Senate Bill 262  
          (Kuehl, Chapter 872, Statutes of 2003) created the CASp program  
          to meet the public's need for experienced, trained, and tested  
          individuals who can inspect buildings and sites for compliance  
          with applicable state and federal construction-related  
          accessibility standards.  Five years later, Senate Bill 1608  
          (Corbett et al., Chapter 549, Statutes of 2008), among other  
          things, provided for an early evaluation of a filed complaint if  
          the defendant is a qualified defendant who had the identified  
          place of public accommodation inspected and determined to meet  
          applicable physical access standards by a CASp prior to the  
          filing of the complaint.  And four years after that, Senate Bill  
          1186 (Steinberg, Chapter 383, Statutes of 2012) required a  
          one-dollar additional fee to be paid by any applicant for a  
          local business license, permit or similar instrument when it is  
          issued or renewed.  The fee applies to applications and renewals  
          filed between January 1, 2013 and December 31, 2018 and it is  
          collected by the issuing jurisdiction (city, county, or city and  
          county).  The purpose of the fee is to increase disability  
          access and compliance with construction-related accessibility  
          requirements. Additionally, the fee assists local jurisdictions  
          in supporting the CASp program and provides the State Architect  
          with funds to maintain oversight of the CASp program.  The funds  
          accrued from this fee are then divided between the local entity  
          that collected the funds, which retains 70 percent, and DSA,  
          which receives 30 percent.  


          More recently, this Committee also approved a number of measures  
          (including AB 269 (Roth and Vidak), AB 2093 (Steinorth), and AB  








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          1230 (Gomez)) that provide relief from minimum statutory  
          damages, information and financial resources to bring their  
          premises into compliance with the law.  Disabled advocates  
          rightfully feel that they have cooperated with the authors of  
          many of these measures and begrudgingly gone along with  
          incremental erosion of their rights with the hope of seeing  
          greater compliance with the ADA, partially facilitated by tax  
          credits and other financial incentives to small businesses (many  
          of which have been vetoed in recent years).  However, no  
          significant new financial resources have been provided to small  
          businesses or to the CASp program, in order to bring businesses  
          into compliance with the law.  According to Disability Access  
          California, the sponsor of AB 2873, "this bill is a step in the  
          right direction to ensure equal access to people with  
          disabilities."


          New Requirements on Local Building Departments.  Under current  
          law, the Division of the State Architect (DSA) certifies  
          applicants to become CASps.  The DSA publishes a list of all the  
          CASps in the state on its website.  Currently, there are over  
          575 CASps throughout the state.  


          This bill requires, as of January 1, 2018, that all building  
          inspectors employed or retained by a local agency who conduct  
          permitting and plan check services to review for compliance with  
          state construction-related accessibility standards by a place of  
          public accommodation with respect to new construction,  
          including, but not limited to, projects relating to tenant  
          improvements that may impact access shall be certified access  
          specialists.  In order to compensate for the increased costs to  
          local building departments, the bill proposes to raise the fee  
          on business licenses that is used to fund the CASp Program from  
          one dollar to four dollars.  Instead of retaining 70 percent of  
          the business license fee and sending 30 percent to the DSA, the  
          local government would keep 90 percent of the funds and provide  
          10 percent to the DSA.  Because of the increased fee, the funds  
          going to DSA should be slightly greater under this bill than  








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          they are under current law.  Given the higher workload that  
          would be necessitated by this bill, as well as additional duties  
          imposed upon DSA by recent legislation (described below), this  
          seems appropriate.


          More significantly, this bill seeks to increase the funds going  
          to local agencies and to provide a mechanism for tracking those  
          funds, by requiring them to be deposited into newly created  
          local "CASp Certification and Training Fund(s)."  Given that  
          building departments will have to expend greater resources to  
          ensure that all building inspectors involved in the plan check  
          and construction inspection process of commercial businesses are  
          CASp-certified, this fee seems both appropriate and beneficial.   
          It is hoped that this measure, though it does not include a tax  
          credit or other specific financial benefit to business owners,  
          will nevertheless improve compliance by commercial  
          establishments with the law for the benefit of both the  
          businesses, as well as their disabled customers. 


          Author's Statement.  The author writes the following to explain  
          the need for the bill:


            AB 2873 provides more resources to increase business  
            compliance with state and federal access laws and ensures  
            equal access to businesses by the disability community.  This  
            bill collects a $4 fee on business licenses and renewals, so  
            that the increased dollars can be used by local governments  
            for CASp-certification and training of all local building  
            inspectors.  The bill also expands CASp training, testing and  
            certification to include federal subsidized housing  
            accessibility requirements (which are not currently covered by  
            the test.)


            As California grows, and as construction increases statewide,  
            the CASp program needs to grow to meet to evaluate  








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            accessibility.  Public CASps play a crucial role in preventing  
            accessibility violations; they provide permitting and plan  
            check services for new construction, as well as renovations  
            requiring permits.  Budget reductions and insufficient  
            funding/revenue prevents local governments from expanding CASp  
            training and certification to other building inspectors.  Some  
            jurisdictions do not have CASp certified inspectors on staff.   
            This results in backlog and a delay in ensuring access  
            requirements are met so people with disabilities can fully  
            participate in society.  


          Author's Amendments.  As reflected in this analysis, the author  
          has agreed to extend the date of compliance for building  
          departments to comply with the requirement that all building  
          inspectors are CASp-certified from January 1, 2017 until January  
          1, 2018.


          Also, in order to clarify that the requirement for building  
          inspectors to be CASp-certified only applies to those inspectors  
          "who conduct permitting and plan check services", the author has  
          agreed to the following minor clarifying amendments:


            On Page 5, at line 30, strike out: "shall be certified access  
            specialists"


            On Page 5, at line 35, after "access" insert: "shall be  
            certified access specialists"


          ARGUMENTS IN SUPPORT:  The Consumer Attorneys of California  
          write the following in support of AB 2873:


            AB 2873 will increase access for people with disabilities by  
            requiring, commencing January 1, 2017, that all building  








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            inspectors employed or retained by a local agency be certified  
            access specialists.  To accomplish this, the bill collects a  
            $4 fee on business licenses and renewals, so that the increase  
            dollars can be used by local governments for the  
            CASp-certification of all local building inspectors.


            It doesn't make any sense, for either the business nor those  
            who want or need to access a building, that a building  
            inspector can sign off on a business inspection when the  
            inspector doesn't know the legal requirements for  
            accessibility standards.  AB 2873 is a step in the right  
            direction to ensure that businesses can comply with the law  
            and that all can enter those businesses, regardless of  
            disability.


          SIMILAR RECENT LEGISLATION:  AB 1230 ((Gomez), Chapter 787,  
          Statutes of 2015) establishes the California Americans With  
          Disabilities Act Small Business Capital Access Loan Program  
          within the California Capital Access Loan Program in order to  
          create a self-sustaining program to provide loans to assist  
          small businesses in financing the costs of projects that alter  
          or retrofit existing small business facilities according to  
          certain criteria, to comply with the ADA. 
                                                                            



          AB 1342 (Steinorth, 2015) would have required, among other  
          things, the State Architect to require a CASp applicant to  
          provide the location (i.e. city, county, or city and county) in  
          which the CASp will provide services and the State Architect to  
          post the location that each CASp provides or intends to provide  
          services.  AB 1342 was vetoed.
          AB 1468 (Baker, 2015) would have, among other things, 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  








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          accessibility standards of the ADA, serves as presumptive  
          evidence of compliance with the ADA.  This bill died without a  
          hearing in this Committee. 


          AB 2093 (Steinorth, 2016) requires applicants for CASp  
          certification or renewal to additionally provide to the State  
          Architect the name of the city, county, or city and county in  
          which the applicant intends to provide or has provided services,  
          and requires the State Architect to post that information on his  
          or her Internet Web site.  It also requires landlords to provide  
          CASp reports to tenants under certain circumstances and to  
          correct any access violations, unless the landlord and tenant  
          agree otherwise.  This bill sits on the Assembly Floor consent  
          calendar.


          SB 251 (Roth, 2015) would have, among other things, protected a  
          business with 100 or fewer employees from liability for minimum  
          statutory damages for violations of construction-related  
          accessibility standards during the 120 day period after the  
          business obtained a CASp inspection of the business and  
          corrected violations noted in the inspection.  It also required  
          the State Architect to publish and regularly update a list of  
          businesses that have filed a notice with the State Architect  
          stating that the business has obtained a CASp inspection and  
          will correct any violations of accessibility standards within  
          120 days of the date of the inspection.  This bill was vetoed.


          SB 269 (Roth and Vidak) is virtually identical to SB 251, but  
          its provision protecting a business that has obtained a CASp  
          inspection from liability for minimum statutory damages for 120  
          days only applies to a business with 50 or fewer employees.   
          Like SB 251, it requires the State Architect to publish and  
          regularly update the same list of businesses that have obtained  
          a CASp inspection and will correct any violations of  
          accessibility standards.  This bill is pending on the Assembly  
          Floor.








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          REGISTERED SUPPORT / OPPOSITION:




          Support


          Disability Rights California (sponsor)


          Consumer Attorneys of California




          Opposition


          None on file




          Analysis Prepared by:Alison Merrilees / JUD. / (916) 319-2334




















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