BILL ANALYSIS                                                                                                                                                                                                    





                             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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