BILL ANALYSIS Ó
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|SENATE RULES COMMITTEE | AB 2873|
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THIRD READING
Bill No: AB 2873
Author: Thurmond (D)
Amended: 8/15/16 in Senate
Vote: 27
SENATE JUDICIARY COMMITTEE: 5-2, 6/21/16
AYES: Jackson, Hertzberg, Leno, Monning, Wieckowski
NOES: Moorlach, Anderson
SENATE APPROPRIATIONS COMMITTEE: 5-2, 8/11/16
AYES: Lara, Beall, Hill, McGuire, Mendoza
NOES: Bates, Nielsen
ASSEMBLY FLOOR: 60-14, 6/2/16 - See last page for vote
SUBJECT: Certified access specialists
SOURCE: Disability Rights California
DIGEST: This bill, commencing January 1, 2020, requires 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 also increases the fee, from January 1, 2017 through
December 31, 2019, attached to an application for a local
business license from $1 to $4. By removing an existing sunset,
commencing January 1, 2020, this bill extends the $1 fee
indefinitely. This bill makes other conforming changes.
ANALYSIS:
AB 2873
Page 2
Existing law:
1)Provides, in the Americans with Disabilities Act (ADA), 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.)
2)Declares, in the Unruh Civil Rights Act, 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.)
3)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.)
4)Provides that a violation of the ADA also constitutes a
violation of Sections 54 or 54.1, and entitles a prevailing
party to recover reasonable attorney's fees. (Civ. Code Sec.
55.)
5)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.)
AB 2873
Page 3
6)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).)
7)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.)
1)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).)
AB 2873
Page 4
This bill:
1)Commencing January 1, 2021, requires 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 or
renovation to be certified access specialists (CASps), as
specified.
2)Requires all new employees employed or retained by a local
agency on or after January 1, 2018, who will conduct
permitting and plan check services to review for compliance
with state construction-related accessibility standards by a
place of public accommodation to be CASps within 24 months of
their initial date of employment.
3)Increases, commencing January 1, 2017, the existing $1 fee
attached to an application for a local business license to $4,
and extends the current sunset on the fee authority for one
year to December 31, 2019. Reduces the proportion of fee
revenue to the Division of the State Architect (DSA) from 30
percent to 10 percent of collections.
4)Requires, from January 1, 2017, through December 31, 2019, in
any city, county, or city and county that does not issue
business licenses, any applicant for a building permit to pay
an additional fee of $4 for that permit, as specified.
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.
AB 2873
Page 5
After Congress enacted the 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 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 the Senate Judiciary Committee.
Alternatively, SB 1608 (Corbett et al., Chapter 549, Statutes of
AB 2873
Page 6
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 (Chapter 383, Statutes of 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
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).
This bill, seeking to ensure consistency in local building
inspections and increase the availability of CASp inspectors,
requires that all inspectors employed by a local agency are
CASps, and makes other conforming changes.
FISCAL EFFECT: Appropriation: Yes Fiscal
Com.:YesLocal: Yes
According to the Senate Appropriations Committee:
CASp mandate: Potential major increase in future ongoing
AB 2873
Page 7
local agency costs in the millions of dollars related to the
imposition of CASp certification for all applicable building
inspectors and new/retained employees within specified
timeframes, potentially state-reimbursable if not fully
covered by the short-term fee increase and the ongoing fee
authority. To the extent the bill creates a higher level of
service on local agencies due to mandating CASp-certification
for all building inspectors and new/retained employees, local
agencies could claim reimbursement for those increased costs
not covered by fees. At an average cost of $4,500 for CASp
certification, certification costs for every 1,000 new CASps
would cost $4.5 million. These costs do not reflect the larger
impact associated with ongoing compensation for more highly
trained personnel.
State fee revenue: Short-term net increase in fee revenues of
about $200,000 (Special Fund*) to the DSA through 2019, due to
the fee increase from $1 to $4 on business license
applications which is partially offset by the reduced
proportion (from 30 percent to 10 percent) of fee revenue to
DSA. The amount of fee revenue generated by the new $4 fee
imposed on building permits in local jurisdictions that do not
issue business licenses is unknown, but not anticipated to be
significant.
Local fee revenue: Short-term net increase in fee revenues
(Local Funds) of $6 million through 2019 due to the fee
increase from $1 to $4 on business license applications and
the increased share from 70 percent to 90 percent of total
fees collected. Additional fee revenues due to the new $4 fee
imposed on building permits of an unknown, but potentially
significant amount.
AB 2873
Page 8
DSA administrative costs: One-time costs ranging from $750,000
to $1 million (Special Fund**) to (1) upgrade its existing
database system to accommodate the significant expansion of
the program, and, (2) revise and transition the CASp exam to
an electronic-based format. Additionally, ongoing resource
costs of $230,000 (Special Fund**) to manage administration of
the examination and certification renewals for the larger
program. The current fees for CASp examinations and renewals
are estimated to maintain cost-neutrality for the ongoing
costs of the program.
*Disability Access and Education Revolving Fund
**Certified Access Specialist (CASp) Fund - staff notes the CASp
Fund has experienced a slowly growing reserve balance over the
past three years, with a projected balance of $1.7 million
ending FY 2016-17, due to the CASp program operating on a
largely cost-neutral basis. However, the potentially significant
expansion of the program will likely necessitate budget
authority to invest additional funds on a one-time basis to
accommodate the changes needed to address the influx of
applicants necessitated by the mandate for CASp certification.
SUPPORT: (Verified8/12/16)
Disability Rights California (source)
Consumer Attorneys of California
Autism Society of Los Angeles
ARC of California
California Association of Public Authorities for IHSS
Californians for Disability Rights, Inc.
California Foundation for Independent Living Centers
California Respite Association
California Supported Living Network
AB 2873
Page 9
Disability Rights Education and Defense Fund
Special Needs Network
United Cerebral Palsy California
Western Center on Law and Poverty
OPPOSITION: (Verified8/12/16)
California Building Officials
ARGUMENTS IN SUPPORT: 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.
ARGUMENTS IN OPPOSITION: The California Building Officials
writes:
Despite the recent amendments, the bill, as amended, will
place cities and counties out of compliance with the law in
2020 when the bill is to go into effect. The CASp
certification process is cost prohibitive (upwards of $1,600
per test, typically reimbursed only once passed), the test has
a low passage rate (28%, taking individuals on average three
attempts to pass) and currently, there are few incentives for
individuals to become certified.
ASSEMBLY FLOOR: 60-14, 6/2/16
AYES: Alejo, Arambula, Atkins, Baker, Bloom, Bonilla, Bonta,
AB 2873
Page 10
Brown, Burke, Calderon, Campos, Chau, Chiu, Chu, Cooley,
Cooper, Dababneh, Daly, Dodd, Eggman, Cristina Garcia, Eduardo
Garcia, Gatto, Gipson, Gomez, Gonzalez, Gordon, Gray, Grove,
Roger Hernández, Holden, Irwin, Jones-Sawyer, Kim, Lackey,
Levine, Linder, Lopez, Low, Maienschein, McCarty, Medina,
Mullin, Nazarian, O'Donnell, Olsen, Quirk, Ridley-Thomas,
Rodriguez, Salas, Santiago, Mark Stone, Thurmond, Ting,
Wagner, Weber, Wilk, Williams, Wood, Rendon
NOES: Achadjian, Travis Allen, Brough, Chang, Chávez, Dahle,
Gallagher, Harper, Jones, Mathis, Melendez, Obernolte,
Patterson, Waldron
NO VOTE RECORDED: Bigelow, Frazier, Beth Gaines, Hadley, Mayes,
Steinorth
Prepared by:Nichole Rapier / JUD. / (916) 651-4113
8/16/16 9:25:57
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