BILL ANALYSIS                                                                                                                                                                                                    ”



                                                                    AB 2873


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          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         |                    |
          |                |     |HernŠndez, Holden,    |                    |
          |                |     |Quirk, Santiago,      |                    |
          |                |     |Wagner, Weber, Wood   |                    |
          |                |     |                      |                    |
          |                |     |                      |                    |
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          SUMMARY:  Seeks to expand the availability of Certified Access  








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          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  








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          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  








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          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  








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          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  








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               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