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:  8/19/16 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.  


          Senate Floor Amendments of 8/19/16 extends, from 24 months to 36  








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          months, the amount of time newly hired employees of local  
          agencies that conduct permitting and plan check services have to  
          become Certified Access Specialists.


          ANALYSIS:  


          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.)







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          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.)


          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  







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            inspectors who are CASp to conduct inspections with respect to  
            new construction.  (Civ. Code Sec. 55.53(d).)


          This bill: 


          1)Requires, commencing January 1, 2021, 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 36 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  







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          to and use of roadways, sidewalks, buildings and facilities open  
          to the public, hospitals and medical facilities, and housing.  
          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  







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          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, Chapter 755, Statutes of  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  
            local agency costs in the millions of dollars related to the  
            imposition of CASp certification for all applicable building  







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            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.




           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  







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            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:   (Verified8/19/16)


          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
          Disability Rights Education and Defense Fund
          Special Needs Network
          United Cerebral Palsy California
          Western Center on Law and Poverty









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          OPPOSITION:   (Verified8/19/16)




          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,  
            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,  







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            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
          8/23/16 10:01:55


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