BILL ANALYSIS Ó
AB 2873
Page 1
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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