BILL ANALYSIS Ó
SENATE JUDICIARY COMMITTEE
Senator Hannah-Beth Jackson, Chair
2015-2016 Regular Session
AB 2873 (Thurmond)
Version: May 31, 2016
Hearing Date: June 21, 2016
Fiscal: Yes
Urgency: No
NR
SUBJECT
Certified access specialists
DESCRIPTION
Commencing January 1, 2020, this bill would require that all
building inspectors employed by a local agency who review for
compliance with state construction-related accessibility
standards be Certified Access Specialists, as specified.
This bill would also increase the fee attached to an application
for a local business license or equivalent instrument from $1 to
$4, and by removing an existing sunset, would extend this fee
indefinitely. This bill would make other conforming changes.
BACKGROUND
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, the state made a violation of the ADA also a violation of
Section 54 or 54.1. The state protections provided to disabled
persons 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
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accommodations, advantages, facilities, privileges, or services
in all business establishments of every kind whatsoever. (Civ.l
Code Sec. 51.) A violation of the ADA also constitutes a
violation of Section 51.
In 2003 and 2005, several bills were introduced after multiple
lawsuits were filed in state court by a few plaintiffs and
attorneys against business owners and operators for allegedly
technical violations of the state's access or ADA regulations.
(SB 69 (Oller, 2003), AB 209 (Leslie, 2003), AB 20 (Leslie,
2005), SB 855 (Poochigian, 2005).) Three of those bills would
have required a plaintiff to undertake pre-litigation steps
prior to the filing of a complaint, including providing notice
to the owner of the property or business of the alleged
violations, and provided a specified time period for the owner
or business to cure the violations. One bill, (AB 20, Leslie,
2005) would have precluded an action for damages for a de
minimus violation, allowing only injunctive relief and
attorney's fees. All of those bills failed passage in the
Judiciary Committees of their respective houses. In 2008, two
bills were introduced relating to disability access. AB 2533
(Keene, 2008) and SB 1766 (McClintock, 2008) would have both
imposed pre-litigation hurdles on plaintiffs claiming violations
of construction-related disability access laws. Both of these
bills failed in the Judiciary Committees of their respective
houses. In 2011, SB 783 (Dutton, 2011) would have established
notice requirements for an aggrieved party to follow before he
or she can bring a disability access suit and given the business
owner a 120-day time period to remedy the violation. That bill
failed passage in this Committee.
Alternatively, SB 1608 (Corbett et al., Ch. 549, Stats. 2008),
which took effect January 1, 2009, did not create any
pre-litigation hurdles for a person with a disability but
instead, 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
state Certified Access Specialist (CASp) prior to the filing of
the complaint. In 2012, Senators Steinberg and Dutton authored
SB 1186 (Ch. 383, Stats. 2012) which sought to comprehensively
address continued issues with disability litigation.
Last year a number of bills were introduced to further combat
perceived issues with disability litigation. AB 1521 (Committee
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on Judiciary, Ch. 755, Stats. 2015) created a new class of
plaintiff, a "high frequency litigant," upon which it imposed
additional costs and procedural burdens. Two bills, one which
created a tax credit for certain access expenditures to
businesses, and the other that would have provided funding to
the Commission on Disability Access, were vetoed by Governor
Brown who stated that such legislation is more appropriately
considered in the annual budget process (SB 251 (Roth) and AB
1342 (Steinorth); see Prior Legislation below).
This bill, seeking to ensure consistency in local building
inspections and increase the availability of CASp inspectors
would require that all inspectors employed by a local agency are
CASps, and would make other conforming changes.
CHANGES TO EXISTING LAW
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 or medical condition, are entitled
to the full and equal accommodations, advantages, facilities,
privileges, or services in all business establishments of every
kind whatsoever, and entitles persons to $4,000 minimum
statutory damages for violations of Unruh. (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
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prevailing party to recover reasonable attorney's fees. (Civ.
Code Sec. 55.)
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 reduces a defendant's minimum liability for
statutory damages in a construction-related accessibility claim
against a place of public accommodation to $1,000 for each
unintentional offense if the defendant has had a CASp
inspection, or occupies a building constructed after 2008, and
corrected all construction-related violations that are the basis
of the claim within 60 days of being served with the complaint.
(Civ. Code Sec. 55.56(f)(1).)
Existing law provides that upon being served with a complaint
asserting a construction-related accessibility claim, a
defendant may move for a 90-day stay and early evaluation
conference if the defendant is:
until January 1, 2018, a defendant whose site was
constructed after January 1, 2008 and approved pursuant to
the local building permit and inspection process and the
defendant declares that all violations have been corrected,
or will be corrected within 60 days of being served the
complaint;
a defendant whose site had new construction or
improvement that was approved by a local public building
department inspector who is a CASp and the defendant
declares that all violations have been corrected, or will
be corrected within 60 days of being served the complaint;
or
a defendant who is a small business, as described, and
the process and the defendant declares that all violations
have been corrected, or will be corrected within 30 days of
being served the complaint. (Civ. Code Sec. 55.54.)
Existing law requires a local agency to employ or retain at
least one building inspector who is a CASp, 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).)
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This bill , beginning January 1, 2020, would require that all
building inspectors employed or retained by a local agency who
conduct permitting and plan check services to review for
compliance with construction-related accessibility standards, as
specified, shall be certified access specialists.
This bill would eliminate the provision of 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.
This bill would require, between January 1, 2017 and December
31, 2019, any applicant for a local building permit pay a $4 fee
which will be used to fund the CASp Program.
This bill would provide 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.
This bill would require that any funds collected by the local
government be deposited into a "CASp Certification and Training
Fund."
This bill would make other conforming and technical changes.
COMMENT
1.Stated need for the bill
According to the author:
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 [as well]. Public CASps play a
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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.
2.May increase the availability of CASps in California
SB 262 (Kuehl, Ch. 872, Stats. 2003) established in the Division
of the State Architect, a voluntary "access specialist
certification program" (CASp) in order to assist business and
property owners in complying with ADA and state access laws.
Since the passage of SB 262, a number of bills have been enacted
seeking to promote compliance with access laws by creating
incentives for business owners who proactively brought their
businesses into compliance with access laws. Notably, Senators
Steinberg and Dutton authored SB 1186 (Ch. 383, Stats. 2012)
which sought to comprehensively address continued issues with
disability litigation by creating a number of protections for
small businesses and defendants who had, prior to a claim being
filed, sought out a CASp inspection. These protections
included, reduced minimum statutory damages, early evaluation
conferences, and mandatory stays of court proceedings while the
violations were corrected. That bill also prevented the
stacking of multiple claims to increase damages, banned
pre-litigation demands for money, and increased data collection
regarding alleged access violations.
There are also requirements in existing law designed to phase
in, in local agencies, adequate numbers of CASps. For example,
by 2010, each local agency was required to employ at least one
building inspector that is a CASp, and local agencies that
employ two or more building inspectors are required to have at
least one-half of the employed building inspectors be CASp
certified. In addition, by 2014, local agencies were required
to employ a sufficient number of CASp-certified building
inspectors to conduct permitting and plan check services to
review for compliance with state construction-related
accessibility standards. (Civ. Code Sec. 55.53(d).) However, at
the time of this writing, there appear to be only 653 CASPs
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certified in this state, and only 246 CASps available for hire
in the State of California (see the Division of the State
Architect's current list of Certified Access Specialists, found
at [as of May 25,
2016].) Given the millions of businesses in California, there
are arguably not enough CASps to inspect all new construction,
including, but not limited to, projects relating to tenant
improvements that may impact access. The Consumer Attorneys of
California, in support, write:
It doesn't make any sense, for neither 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.
Finally, this bill will also require the State Architect to
include within CASp training on standards for housing for people
with disabilities. This should ensure that local building
inspectors, when approving housing units, are capable of
determining whether new or improved housing is accessible to
persons with disabilities.
3.Will increase funding available to most local agencies to aid
in the CASp certification of building inspectors
Existing law requires that a $1 fee be added to the cost for any
city or county business license application, and that 70 percent
of the fees collected shall be used to fund CASp services in
that jurisdiction, and that the remaining 30 percent go to the
Division of the State Architect. This bill would, between
January 1, 2017 and December 31, 2019, require a $4 fee for
every building permit application. 90 percent of the fees
collected would go to a special fund established by the city or
county to be used for the training and certification of
inspectors. This increase in fees will arguably aid local
agencies in the training and certification of the non-certified
building inspectors it currently employs, as well as the
training and certification of new hires. In addition, it is
arguably appropriate that business owners, who are obligated to
maintain accessible business premises, should subsidize the cost
of certification of the public employees who will inspect their
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businesses for compliance with a small increase in building
permit fees.
Support : Consumer Attorneys of California
Opposition : None Known
HISTORY
Source : Disability Rights California
Related Pending Legislation :
AB 54 (Olsen) would require that information about the demand
letter and the complaint be submitted to the California
Commission in Disability Access in a standard format specified
by the Commission.
AB 2093 (Steinorth) would make various clarifications with
regard to CASp inspections, reports, repairs, and disclosures
between commercial property owners and prospective tenants.
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 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 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.
SB 251 (Roth, 2015) would have made various changes to access
laws, including: exempting a defendant from liability for
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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.
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 262 (Kuehl, Ch. 872, Stats. 2003) created the CASp program to
address the public's need for experienced, trained, and tested
individuals to inspect buildings and sites for compliance with
applicable state and federal construction-related accessibility
standards.
Prior Vote :
Assembly Judiciary Committee (Ayes 8, Noes 0)
Assembly Floor (Ayes 60, Noes 14)
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