BILL ANALYSIS Ó
AB 2873
Page 1
ASSEMBLY THIRD READING
AB
2873 (Thurmond)
As Amended May 31, 2016
2/3 vote
------------------------------------------------------------------
|Committee |Votes|Ayes |Noes |
| | | | |
| | | | |
| | | | |
|----------------+-----+----------------------+--------------------|
|Judiciary |8-0 |Mark Stone, Wagner, | |
| | |Alejo, Chau, Chiu, | |
| | |Cristina Garcia, | |
| | |Holden, Ting | |
| | | | |
|----------------+-----+----------------------+--------------------|
|Appropriations |15-1 |Gonzalez, Bloom, |Bigelow |
| | |Bonilla, Bonta, | |
| | |Calderon, Daly, | |
| | |Eggman, Eduardo | |
| | |Garcia, Roger | |
| | |Hernández, Holden, | |
| | |Quirk, Santiago, | |
| | |Wagner, Weber, Wood | |
| | | | |
| | | | |
------------------------------------------------------------------
SUMMARY: Seeks to expand the availability of Certified Access
AB 2873
Page 2
Specialist program (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, 2020, 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)Imposes a $4 fee on local building permits, as of January 1,
2017, to fund the CASp program.
3)Provides that the local government would keep 90% of the funds
and provide 10% to the Division of the State Architect (DSA).
4)Requires that any funds collected by the local government
would be deposited into a "CASp Certification and Training
Fund."
5)Imposes a sunset (to expire December 31, 2019, unless renewed)
on the fee described in 2) above.
FISCAL EFFECT: According to the Assembly Appropriations
committee, revenue from the current fee is about $2,070,000
annually, of which $620,000 goes to DSA and $1,450,000 million
goes to local jurisdictions. Revenues from the increased
building permit fee will total about $6 million annually, of
which $600,000 would go to DSA and $5.4 million would go to
AB 2873
Page 3
locals - to facilitate additional CASps - for a total of $16.2
million in revenue to fund this effort over the three years that
the fee will be in effect.
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 (Section 51) and the Disabled Persons Act
(Sections 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
AB 2873
Page 4
CASp inspection).
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. (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.
Certified Access Specialists Help Businesses Comply with
Construction-related Accessibility Standards. One significant
way to increase compliance with construction-related
accessibility standards is through 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, 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, SB 1186
(Steinberg) Chapter 383, Statutes of 2012, required a $1
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
AB 2873
Page 5
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%, and DSA, which
receives 30%.
New Requirements on Local Building Departments. Under current
law, the 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, 2020, 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 impose, as of
January 1, 2017, a $4 fee on building permits to fund the CASp
Program. It also provides that the local government would be
allowed to keep 90% of those funds, deposited into a specified
fund for that purpose, and be required to provide 10% of the
funds to the DSA.
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 [building permits] so that
the increased dollars can be used by local governments
AB 2873
Page 6
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 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.
Analysis Prepared by:
Alison Merrilees / JUD. / (916) 319-2334 FN:
0003144