Amended in Senate May 20, 2015

Amended in Senate May 4, 2015

Senate Bill No. 251

Introduced by Senator Roth

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(Principal coauthor: Senator Galgiani)

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(Coauthors: Senators Anderson and Nielsen)

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February 18, 2015

An act to amend begin delete Sections 55.52 and 55.56 end delete begin insert Section 55.32 end insert of, and to add Sections 55.535 and 1938.5 to, the Civil Code, to amend Sections begin delete 4459.8 and end delete begin insert 4459.7, 4459.8, and end insert 8299.06 of, to add Section 65941.6 to, and to add Article 4 (commencing with Section 65946) to Chapter 4.5 of Division 1 of Title 7 of, the Government Code, and to add and repeal Sections 17053.43 and 23643 of the Revenue and Taxation Code, relating to disability access.

LEGISLATIVE COUNSEL’S DIGEST

SB 251, as amended, Roth. Civil rights: disability access.

(1) Existing law prohibits discrimination on the basis of various specified personal characteristics, including disability. The Construction-Related Accessibility Standards Compliance Act establishes standards for making new construction and existing facilities accessible to persons with disabilities and provides for construction-related accessibility claims for violations of those standards. Existing law requires begin delete certified end delete begin insert that a demand letter alleging a violation of a construction-related accessibility standard or asserting a construction-related accessibility claim include specified information, and that copies of the demand letter be sent to the California Commission on Disability Access and the State Bar of California. Existing law repeals the requirement that a copy of a demand letter be sent to the State Bar of California on January 1, 2016. end insert

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This bill would extend the above-described January 1, 2016, repeal date, to January 1, 2019.

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begin insert (2) end insert begin insert   end insert begin insert Existing law requires a certified end insert access begin delete specialists (CASps), end delete begin insert specialist (CASp), end insert upon completion of an inspection of a site, to issue a written inspection report for the site, as specified. Existing law provides, upon being served with a summons and complaint asserting a construction-related accessibility claim, that a defendant may file a request for a court stay and early evaluation conference in the proceedings, as specified. begin insert Under existing law, a defendant is liable for actual damages plus minimum statutory damages for each instance of discrimination. end insert

This bill would provide that a begin delete business end delete begin insert business, prior to the initiation of litigation, receipt of a demand letter, or a business that is otherwise on notice of a violation of a construction-related accessibility standard prior to a CASp inspection, end insert is not liable begin insert for minimum statutory damages end insert for violating a construction-related liability standard if begin delete the business is an inspected by a CASp site and end delete the violation is corrected within 90 days of begin delete receiving the above-described written end delete begin insert the date of an end insert inspection begin delete report from end delete begin insert by end insert a CASp. begin delete If the alleged violation is a minor matter, as provided, the end delete begin insert The end insert bill would begin insert also end insert provide that begin delete the end delete begin insert a small end insert business is not liable for begin delete the end delete begin insert minimum statutory damages for an end insert alleged violation if the violation begin insert concerns interior or exterior signage, the color and condition of parking lot paint striping, or truncated domes and end insert is corrected within begin delete 30 end delete begin insert 15 end insert days of service of a summons and complaint in a construction-related accessibility claim or receipt of a written notice, whichever is earlier.

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(2) Existing law establishes remedies for discrimination on the basis of personal characteristics. Under existing law, a defendant is liable for actual damages plus an additional amount, up to three times actual damages but no less than $4,000, for each offense. A defendant’s liability for statutory damages for a violation of a construction-related accessibility standard may be reduced to $1,000 for each offense if the defendant demonstrates, among other things, that it has corrected the construction-related violations within 60 days of being served with the complaint. Under existing law, a person who interferes with the rights of an individual with disabilities, as provided, is liable for actual damages plus an additional amount, up to three times actual damages but no less than $1,000, for each offense.

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This bill would provide that a defendant is not liable for statutory damages for more than one offense if the defendant is a microbusiness, as defined, and has corrected the construction-related violation prior to the filing of the lawsuit.

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(3) Under existing federal law, a landlord and tenant are both responsible for compliance with the federal Americans with Disabilities Act and implementing regulations. The parties to a lease agreement may allocate responsibility by the lease or other contract. Existing law requires a commercial property owner or lessor to state on every lease form or rental agreement executed on or after July 1, 2013, whether the property has been inspected by a begin delete certified access specialist end delete begin insert CASp end insert and, if so, whether or not the property has been determined to meet all applicable construction-related accessibility standards.

This bill would require a commercial property owner to state on every lease form or rental agreement executed on or after January 1, 2016, that the owner or lessor and the tenant are both responsible for compliance with the Americans with Disabilities Act and that responsibility for compliance may be allocated between the parties by the terms of the lease or other contract.

(4) Existing law requires the State Architect to establish and publicize a program for the voluntary certification by the state of any person who meets specified criteria as a CASp. begin insert Existing law requires the State Architect to annually publish a list of CASps. end insert Existing law requires each applicant for CASp certification or renewal to pay certain fees, and requires the State Architect to periodically review those fees, as specified. Existing law provides for the deposit of those fees into the Certified Access Specialist Fund, which is continuously appropriated for use by the State Architect to implement the CASp program.

This bill would begin insert additionally end insert require begin insert the State Architect to publish, and periodically update, an easily accessible list of businesses which have been inspected by a CASp on or after January 1, 2016, including the date of the inspection. The bill would also require end insert applicants for CASp certification or renewal to additionally provide to the State Architect begin delete information about end delete begin insert the name of end insert the city, county, or city and county in which the applicant intends to provide or has provided services, and would require the Division of the State Architect to post that information on its Internet Web site.

(5) Existing law establishes the California Commission on Disability Access for purposes of developing recommendations to enable persons with disabilities to exercise their right to full and equal access to public facilities and facilitating business compliance with applicable state and federal laws and regulations. Existing law sets forth the powers and duties of the commission, including developing educational materials and information for businesses, building owners, tenants, and building officials, posting that information on the commission’s Internet Web site, and coordinating with other state agencies and local building departments to ensure that information provided to the public on disability access requirements is uniform and complete.

This bill would additionally require the commission to provide a link on its Internet Web site to the Internet Web site of the Division of the State Architect’s CASp certification program, and make the commission’s educational materials and information available to other state agencies and local building departments.

(6) The Planning and Zoning Law establishes procedures for the application, and review of an application, for a development project. Existing law requires a public agency to notify applicants for development permits of specified information, including the time limits established for the review and approval of development permits.

This bill would additionally require local agencies to develop and provide to applicants materials relating to the requirements of the federal Americans with Disabilities begin delete Act. end delete begin insert Act, or to instead provide similar materials developed by the California Commission on Disability Access. end insert The bill would require a local agency to notify an applicant that approval of a permit does not signify that the applicant has complied with that act. The bill would also require local agencies to expedite review of projects begin delete that have received a written report from a CASp indicating that the site meets applicable CASp standards, as specified. end delete begin insert for which the applicant provides a copy of a disability access certificate, demonstrates that the project is necessary to address an alleged violation of a construction-related access standard or a violation noted in a CASp report, and, if project plans are necessary for approval, has had a CASp review the project plans for compliance with all applicable construction-related accessibility standards. end insert The bill would declare that these provisions constitute a matter of statewide concern and shall apply to charter cities and charter counties.

By imposing additional duties on local agencies with respect to the receipt and review of applications for development projects, this bill would impose a state-mandated local program.

(7) Existing federal law allows a credit against federal income taxes for eligible small businesses for eligible access expenditures, as those terms are defined, in an amount equal to 50% of eligible access expenditures for a taxable year that exceed $250 but do not exceed $10,250. The Personal Income Tax Law and the Corporation Tax Law allow a credit against the taxes imposed by those laws for the amount paid or incurred for eligible access expenditures in an amount equal to 50% of eligible access expenditures for a taxable year as do not exceed $250, as specified.

This bill would, for taxable years beginning on or after January 1, 2016, and before January 1, 2023, allow a credit under both the Personal Income Tax Law and the Corporation Tax Law for eligible access expenditures in an amount equal to 50% of eligible access expenditures for a taxable year, as specified. begin delete If the taxpayer is a microbusiness, as defined, the bill would provide that the credit is the amount calculated pursuant to these provisions, plus an additional $5,000. end delete

(8) The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.

This bill would provide that, if the Commission on State Mandates determines that the bill contains costs mandated by the state, reimbursement for those costs shall be made pursuant to these statutory provisions.

Vote: majority. Appropriation: no. Fiscal committee: yes. State-mandated local program: yes.

The people of the State of California do enact as follows:

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SECTION 1.  

Section 55.52 of the Civil Code is amended to
read:

55.52.  

(a) For purposes of this part, the following definitions
apply:

(1) “Construction-related accessibility claim” means a civil
claim in a civil action with respect to a place of public
accommodation, including, but not limited to, a claim brought
under Section 51, 54, 54.1, or 55, based wholly or in part on an
alleged violation of any construction-related accessibility standard,
as defined in paragraph (6).

(2) “Application for stay and early evaluation conference” means
an application to be filed with the court that meets the requirements
of subdivision (c) of Section 55.54.

(3) “Certified access specialist” or “CASp” means any person
who has been certified pursuant to Section 4459.5 of the
Government Code.

(4) “Meets applicable standards” means the site was inspected
by a CASp and determined to meet all applicable
construction-related accessibility standards pursuant to paragraph
(1) of subdivision (a) of Section 55.53. A site that is “CASp
inspected” on or before the effective date of the amendments made
to this section by Chapter 383 of the Statutes of 2012 means that
the site “meets applicable standards.”

(5) “Inspected by a CASp” means the site was inspected by a
CASp and is pending a determination by the CASp that the site
meets applicable construction-related accessibility standards
pursuant to paragraph (2) of subdivision (a) of Section 55.53. A
site that is “CASp determination pending” on or before the effective
date of the amendments made to this section by Chapter 383 of
the Statutes of 2012 means that the site was “inspected by a CASp.”

(6) “Construction-related accessibility standard” means a
provision, standard, or regulation under state or federal law
requiring compliance with standards for making new construction
and existing facilities accessible to persons with disabilities,
including, but not limited to, any provision, standard, or regulation
set forth in Section 51, 54, 54.1, or 55 of this code, Section 19955.5
of the Health and Safety Code, the California Building Standards
Code (Title 24 of the California Code of Regulations), the federal
Americans with Disabilities Act of 1990 (Public Law 101-336; 42
U.S.C. Sec. 12101 et seq.), and the federal Americans with
Disabilities Act Accessibility Guidelines (Appendix A to Part 36
of Title 28 of the Code of Federal Regulations).

(7) “Place of public accommodation” has the same meaning as
defined in Section 12181(7) of Title 42 of the United States Code
and the federal regulations adopted pursuant to that section.

(8) “Qualified defendant” means a defendant in an action that
includes a construction-related accessibility claim that is asserted
against a place of public accommodation that met the requirements
of “meets applicable standards” or “inspected by a CASp” prior
to the date the defendant was served with the summons and
complaint in that action. To be a qualified defendant, the defendant
is not required to have been the party who hired any CASp, so
long as the basis of the alleged liability of the defendant is a
construction-related accessibility claim. To determine whether a
defendant is a qualified defendant, the court need not make a
finding that the place of public accommodation complies with all
applicable construction-related accessibility standards as a matter
of law. The court need only determine that the place of public
accommodation has a status of “meets applicable standards” or
“inspected by a CASp.”

(9) “Site” means a place of public accommodation.

(10) “Microbusiness” has the same meaning as defined in
Section 14837 of the Government Code.

(b) Unless otherwise indicated, terms used in this part relating
to civil procedure have the same meanings that those terms have
in the Code of Civil Procedure.

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begin insert SECTION 1. end insert   

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begin insert Section 55.32 of the end insert begin insert Civil Code end insert begin insert , as added by
Section 5 of Chapter 383 of the Statutes of 2012, is amended to
read: end insert

55.32.  

(a) An attorney who provides a demand letter, as defined
in subdivision (a) of Section 55.3, shall do all of the following:

(1) Include the attorney’s State Bar license number in the
demand letter.

(2) Contemporaneously with providing the demand letter, send
a copy of the demand letter to the State Bar of California by
facsimile transmission at 1-415-538-2171, or by mail to 180
Howard Street, San Francisco, CA, 94105, Attention: Professional
Competence.

(3) Within five business days of providing the demand letter,
send a copy of the demand letter to the California Commission on
Disability Access.

(b) An attorney who sends or serves a complaint, as defined in
subdivision (a) of Section 55.3, shall send a copy of the complaint
to the California Commission on Disability Access within five
business days of sending or serving the complaint.

(c) A violation of paragraph (2) or (3) of subdivision (a) or
subdivision (b) shall constitute cause for the imposition of
discipline of an attorney where a copy of the complaint or demand
letter is not sent to the California Commission on Disability Access
within five business days, or a copy of the demand letter is not
sent to the State Bar within five business days. In the event the
State Bar receives information indicating that an attorney has failed
to send a copy of the complaint or demand letter to the California
Commission on Disability Access within five business days, the
State Bar shall investigate to determine whether paragraph (3) of
subdivision (a) or subdivision (b) has been violated.

(d) Notwithstanding subdivisions (a) and (b), an attorney is not
required to send to the State Bar of California or the California
Commission on Disability Access a copy of any subsequent
demand letter or amended complaint in the same dispute following
the initial demand letter or complaint, unless that subsequent
demand letter or amended complaint alleges a new
construction-related accessibility claim.

(e) A demand letter or complaint sent to the California
Commission on Disability Access shall be for the informational
purposes of Section 8299.08 of the Government Code. A demand
letter received by the State Bar from either the sender or recipient
of the demand letter shall be reviewed by the State Bar to determine
whether subdivision (b) or (c) of Section 55.31 has been violated.

(f) (1) Commencing July 31, 2013, and annually each July 31
thereafter, the State Bar shall report to the Legislature and the
Chairs of the Senate and Assembly Committees on Judiciary, both
of the following with respect to demand letters received by the
State Bar:

(A) The number of investigations opened to date on a suspected
violation of subdivision (b) or (c) of Section 55.31.

(B) Whether any disciplinary action resulted from the
investigation, and the results of that disciplinary action.

(2) A report to be submitted pursuant to this subdivision shall
be submitted in compliance with Section 9795 of the Government
Code.

(g) The California Commission on Disability Access shall
review and report on the demand letters and complaints it receives
as provided in Section 8299.08 of the Government Code.

(h) Paragraphs (2) and (3) of subdivision (a) and subdivision
(b) shall not apply to a demand letter or complaint sent or filed by
an attorney employed or retained by a qualified legal services
project or a qualified support center, as defined in Section 6213
of the Business and Professions Code, when acting within the
scope of employment in asserting a construction-related
accessibility claim. The Legislature finds and declares that qualified
legal services projects and support centers are extensively regulated
by the State Bar of California, and that there is no evidence of any
abusive use of demand letters or complaints by these organizations.
The Legislature further finds that, in light of the evidence of the
extraordinarily small number of construction-related accessibility
cases brought by regulated legal services programs, and given the
resources of those programs, exempting regulated legal services
programs from the requirements of this section to report to the
California Commission on Disability Access will not affect the
purpose of the reporting to, and tabulation by, the commission of
all other construction-related accessibility claims.

(i) This section shall become operative on January 1, 2013.

(j) This section shall remain in effect only until January 1, begin delete 2016, end delete
begin insert 2019, end insert and as of that date is begin delete repealed, unless a later enacted statute,
that is enacted before January 1, 2016, deletes or extends that date. end delete
begin insert repealed. end insert

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begin insert SEC. 2. end insert   

end insert

begin insert Section 55.32 of the end insert begin insert Civil Code end insert begin insert , as added by Section
6 of Chapter 383 of the Statutes of 2012, is amended to read: end insert

55.32.  

(a) An attorney who provides a demand letter, as defined
in subdivision (a) of Section 55.3, shall do all of the following:

(1) Include the attorney’s State Bar license number in the
demand letter.

(2) Within five business days of providing the demand letter,
send a copy of the demand letter to the California Commission on
Disability Access.

(b) An attorney who sends or serves a complaint, as defined in
subdivision (a) of Section 55.3, shall send a copy of the complaint
to the California Commission on Disability Access within five
business days of sending or serving the complaint.

(c) A violation of paragraph (2) of subdivision (a) or subdivision
(b) shall constitute cause for the imposition of discipline of an
attorney if a copy of the demand letter or complaint is not sent to
the California Commission on Disability Access within five
business days. In the event the State Bar receives information
indicating that an attorney has failed to send a copy of the demand
letter or complaint to the California Commission on Disability
Access within five business days, the State Bar shall investigate
to determine whether paragraph (2) of subdivision (a) or
subdivision (b) has been violated.

(d) Notwithstanding subdivisions (a) and (b), an attorney is not
required to send to the California Commission on Disability Access
a copy of any subsequent demand letter or amended complaint in
the same dispute following the initial demand letter or complaint,
unless that subsequent demand letter or amended complaint alleges
a new construction-related accessibility claim.

(e) A demand letter sent to the California Commission on
Disability Access shall be for the informational purposes of Section
8299.08 of the Government Code. A demand letter received by
the State Bar from the recipient of the demand letter shall be
reviewed by the State Bar to determine whether subdivision (b)
or (c) of Section 55.31 has been violated.

(f) (1) Notwithstanding Section 10231.5 of the Government
Code, on or before July 31, begin delete 2016, end delete begin insert 2019, end insert and annually thereafter,
the State Bar shall report to the Legislature and the Chairs of the
Senate and Assembly Judiciary Committees, both of the following
with respect to demand letters received by the State Bar:

(A) The number of investigations opened to date on a suspected
violation of subdivision (b) or (c) of Section 55.31.

(B) Whether any disciplinary action resulted from the
investigation, and the results of that disciplinary action.

(2) A report to be submitted pursuant to this subdivision shall
be submitted in compliance with Section 9795 of the Government
Code.

(g) The California Commission on Disability Access shall
review and report on the demand letters and complaints it receives
as provided in Section 8299.08 of the Government Code.

(h) The expiration of any ground for discipline of an attorney
shall not affect the imposition of discipline for any act prior to the
expiration. An act or omission that constituted cause for imposition
of discipline of an attorney when committed or omitted prior to
January 1, begin delete 2016, end delete begin insert 2019, end insert shall continue to constitute cause for the
imposition of discipline of that attorney on and after January 1,
begin delete 2016. end delete begin insert 2019. end insert

(i) Paragraph (2) of subdivision (a) and subdivision (b) shall
not apply to a demand letter or complaint sent or filed by an
attorney employed or retained by a qualified legal services project
or a qualified support center, as defined in Section 6213 of the
Business and Professions Code, when acting within the scope of
employment in asserting a construction-related accessibility claim.
The Legislature finds and declares that qualified legal services
projects and support centers are extensively regulated by the State
Bar of California, and that there is no evidence of any abusive use
of demand letters or complaints by these organizations. The
Legislature further finds that, in light of the evidence of the
extraordinarily small number of construction-related accessibility
cases brought by regulated legal services programs, and given the
resources of those programs, exempting regulated legal services
programs from the requirements of this section to report to the
California Commission on Disability Access will not affect the
purpose of the reporting to, and tabulation by, the commission of
all other construction-related accessibility claims.

(j) This section shall become operative on January 1, begin delete 2016. end delete
begin insert 2019. end insert

begin delete SEC. 2. end delete
begin insert SEC. 3. end insert   

Section 55.535 is added to the Civil Code, immediately
following Section 55.53, to read:

55.535.  

(a)  begin delete (1) end delete begin delete   end delete begin delete A business shall not be liable end delete begin insert A business, prior
to the initiation of litigation, receipt of a demand letter, or that is
otherwise on notice of a violation of a construction-related
accessibility standard prior to a CASp inspection, shall not be
liable for minimum statutory damages end insert for violating a
construction-related liability begin delete standard end delete begin insert standard, as defined in
Section 55.52, that is noted in the CASp report end insert if begin delete the business is
an inspected by a CASp site and the alleged end delete begin insert the end insert violation is
corrected within 90 days of the date of the begin delete written inspection report
required pursuant to subdivision (a) of Section 55.53. end delete begin insert CASp
inspection. end insert

begin delete

(2) A business

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begin insert (b) end insert begin insert   end insert begin insert A small business, as that term is defined in subparagraph
(B) of paragraph (2) of subdivision (f) of Section 55.56, end insert shall not
be liable begin insert for minimum statutory damages end insert for begin delete a violation of end delete begin insert violating end insert
a construction-related accessibility standard if begin delete the end delete begin insert both of the
following conditions are met: end insert

begin insert (1) end insert begin insert   end insert begin insert The end insert alleged violation begin delete is a minor matter and is corrected
within 30 days of the service of a summons and complaint asserting
a construction-related accessibility claim or receipt of a written
notice, whichever is earlier. For the purposes of this paragraph,
“minor matter” shall be limited to a violation concerning end delete begin insert concerns end insert
interior begin delete and end delete begin insert or end insert exterior signage, the color begin delete and end delete begin insert or end insert condition of
parking lot paint striping, begin delete and end delete begin insert or end insert truncated domes.

begin delete

(b) For the purposes of the period provided for in paragraph (2)
of subdivision (a), a written notice shall be deemed received when
it is delivered to the business premises.

end delete begin insert

(2) The violation is corrected within 15 days of the service of a
summons and complaint asserting a construction-related
accessibility claim or receipt of a written notice, whichever is
earlier.

end insert

begin delete

SEC. 3.  

Section 55.56 of the Civil Code is amended to read:

55.56.  

(a) Statutory damages under either subdivision (a) of
Section 52 or subdivision (a) of Section 54.3 may be recovered in
a construction-related accessibility claim against a place of public
accommodation only if a violation or violations of one or more
construction-related accessibility standards denied the plaintiff
full and equal access to the place of public accommodation on a
particular occasion.

(b) A plaintiff is denied full and equal access only if the plaintiff
personally encountered the violation on a particular occasion, or
the plaintiff was deterred from accessing a place of public
accommodation on a particular occasion.

(c) A violation personally encountered by a plaintiff may be
sufficient to cause a denial of full and equal access if the plaintiff
experienced difficulty, discomfort, or embarrassment because of
the violation.

(d) A plaintiff demonstrates that he or she was deterred from
accessing a place of public accommodation on a particular occasion
only if both of the following apply:

(1) The plaintiff had actual knowledge of a violation or
violations that prevented or reasonably dissuaded the plaintiff from
accessing a place of public accommodation that the plaintiff
intended to use on a particular occasion.

(2) The violation or violations would have actually denied the
plaintiff full and equal access if the plaintiff had accessed the place
of public accommodation on that particular occasion.

(e) Statutory damages may be assessed pursuant to subdivision
(a) based on each particular occasion that the plaintiff was denied
full and equal access, and not upon the number of violations of
construction-related accessibility standards identified at the place
of public accommodation where the denial of full and equal access
occurred. If the place of public accommodation consists of distinct
facilities that offer distinct services, statutory damages may be
assessed based on each denial of full and equal access to the distinct
facility, and not upon the number of violations of
construction-related accessibility standards identified at the place
of public accommodation where the denial of full and equal access
occurred.

(f) (1) Notwithstanding any other law, a defendant’s liability
for statutory damages in a construction-related accessibility claim
against a place of public accommodation is reduced to a minimum
of one thousand dollars ($1,000) for each offense if the defendant
demonstrates that it has corrected all construction-related violations
that are the basis of a claim within 60 days of being served with
the complaint, and the defendant demonstrates any of the following:

(A) The structure or area of the alleged violation was determined
to be “CASp-inspected” or “meets applicable standards” and, to
the best of the defendant’s knowledge, there were no modifications
or alterations that impacted compliance with construction-related
accessibility standards with respect to the plaintiff’s claim that
were completed or commenced between the date of that
determination and the particular occasion on which the plaintiff
was allegedly denied full and equal access.

(B) The structure or area of the alleged violation was the subject
of an inspection report indicating “CASp determination pending”
or “Inspected by a CASp,” and the defendant has either
implemented reasonable measures to correct the alleged violation
before the particular occasion on which the plaintiff was allegedly
denied full and equal access, or the defendant was in the process
of correcting the alleged violation within a reasonable time and
manner before the particular occasion on which the plaintiff was
allegedly denied full and equal access.

(C) For a claim alleging a construction-related accessibility
violation filed before January 1, 2018, the structure or area of the
alleged violation was a new construction or an improvement that
was approved by, and passed inspection by, the local building
department permit and inspection process on or after January 1,
2008, and before January 1, 2016, and, to the best of the
defendant’s knowledge, there were no modifications or alterations
that impacted compliance with respect to the plaintiff’s claim that
were completed or commenced between the completion date of
the new construction or improvement and the particular occasion
on which the plaintiff was allegedly denied full and equal access.

(D) The structure or area of the alleged violation was new
construction or an improvement that was approved by, and passed
inspection by, a local building department official who is a certified
access specialist, and, to the best of the defendant’s knowledge,
there were no modifications or alterations that affected compliance
with respect to the plaintiff’s claim that were completed or
commenced between the completion date of the new construction
or improvement and the particular occasion on which the plaintiff
was allegedly denied full and equal access.

(2) Notwithstanding any other law, a defendant’s liability for
statutory damages in a construction-related accessibility claim
against a place of public accommodation is reduced to a minimum
of two thousand dollars ($2,000) for each offense if the defendant
demonstrates both of the following:

(A) The defendant has corrected all construction-related
violations that are the basis of a claim within 30 days of being
served with the complaint.

(B) The defendant is a small business that has employed 25 or
fewer employees on average over the past three years, or for the
years it has been in existence if less than three years, as evidenced
by wage report forms filed with the Economic Development
Department, and has average annual gross receipts of less than
three million five hundred thousand dollars ($3,500,000) over the
previous three years, or for the years it has been in existence if
less than three years, as evidenced by federal or state income tax
returns. The average annual gross receipts dollar amount shall be
adjusted biannually by the Department of General Services for
changes in the California Consumer Price Index for All Urban
Consumers, as compiled by the Department of Industrial Relations.
The Department of General Services shall post that adjusted
amount on its Internet Web site.

(3) This subdivision shall not be applicable to intentional
violations.

(4) Nothing in this subdivision affects the awarding of actual
damages, or affects the awarding of treble actual damages.

(5) This subdivision shall apply only to claims filed on or after
the effective date of Senate Bill 1186 of the 2011-12 Regular
Session of the Legislature. Nothing in this subdivision is intended
to affect a complaint filed before that date.

(g) Notwithstanding any other law, including, but not limited
to, Sections 52 and 54.3, a defendant in a construction-related
accessibility claim against a place of public accommodation shall
not be liable for statutory damages for more than one offense if
the site is a microbusiness, as that term is defined in paragraph
(10) of subdivision (a) of Section 55.52, and the defendant has
corrected the violation prior to the filing of the lawsuit.

(h) This section does not alter the applicable law for the
awarding of injunctive or other equitable relief for a violation or
violations of one or more construction-related accessibility
standards, nor alter any legal obligation of a party to mitigate
damages.

(i) In assessing liability under subdivision (d), in an action
alleging multiple claims for the same construction-related
accessibility violation on different particular occasions, the court
shall consider the reasonableness of the plaintiff’s conduct in light
of the plaintiff’s obligation, if any, to mitigate damages.

end delete

SEC. 4.  

Section 1938.5 is added to the Civil Code, to read:

1938.5.  

A commercial property owner or lessor shall state on
every lease form or rental agreement executed on or after January
1, 2016, that, pursuant to Section 36.201 of Title 28 of the Code
of Federal Regulations, the owner or lessor and the tenant are both
responsible for compliance with the Americans with Disabilities
Act (42 U.S.C. Sec. 12101 et seq.) and that responsibility for
compliance may be allocated between the parties by the terms of
the lease or other contract.

begin insert

begin insert SEC. 5. end insert   

end insert

begin insert Section 4459.7 of the end insert begin insert Government Code end insert begin insert is amended
to read: end insert

4459.7.  

(a)  begin insert (1) end insert begin insert   end insert No later than October 31 of each year, the
State Architect shall publish and make available to the public begin insert both end insert
a list of certified access specialists who have met the requirements
of Section 4459.5. begin delete This list end delete

begin insert (2) end insert begin insert   end insert begin insert The State Architect shall publish an easily accessible list of
businesses which have been inspected by a certified access
specialist on or after January 1, 2016, including the date of the
inspection. The State Architect shall periodically update this list. end insert

begin insert (3) end insert begin insert   end insert begin insert The lists required pursuant to this section end insert shall include a
written disclaimer of liability as specified in subdivision (b).

(b) Notwithstanding any other provision of law, a state agency
or employee of a state agency may not be held liable for any injury
or damages resulting from any service provided by a certified
access specialist whose name appears on the list published pursuant
to subdivision (a).

(c) The State Architect may perform periodic audits of work
performed by a certified access specialist as deemed necessary to
ensure the desired standard of performance. A certified access
specialist shall provide an authorized representative of the State
Architect with complete access, at any reasonable hour of the day,
to all technical data, reports, records, photographs, design outlines
and plans, and files used in building inspection and plan review,
with the exception of proprietary and confidential information.

begin delete SEC. 5. end delete
begin insert SEC. 6. end insert   

Section 4459.8 of the Government Code is amended
to read:

4459.8.  

(a) The certification authorized by Section 4459.5 is
effective for three years from the date of initial certification and
expires if not renewed. The State Architect, upon consideration of
any factual complaints regarding the work of a certified access
specialist or of other relevant information, may suspend
certification or deny renewal of certification.

(b) (1) The State Architect shall require each applicant for
certification as a certified access specialist to do the following:

(A) Pay fees, including an application and course fee and an
examination fee, at a level sufficient to meet the costs of application
processing, registration, publishing a list, and other activities that
are reasonably necessary to implement and administer the certified
access specialist program.

(B) Provide to the State Architect begin delete information about end delete the begin insert name
of the end insert city, county, or city and county in which the applicant intends
to provide services.

(2) The State Architect shall require each applicant for renewal
of certification to do the following:

(A) Pay a fee sufficient to cover the reasonable costs of
reassessing qualifications of renewal applicants.

(B) Provide to the State Architect begin delete information about end delete the begin insert name
of the end insert city, county, or city and county in which the applicant has
provided services since the last day of certification by the State
Architect.

(3) The State Architect shall periodically review its schedule
of fees to ensure that its fees for certification are not excessive
while covering the costs to administer the certified access specialist
program. The application fee for a California licensed architect,
landscape architect, civil engineer, or structural engineer shall not
exceed two hundred fifty dollars ($250).

(c) All fees collected pursuant to this section shall be deposited
into the Certified Access Specialist Fund, which is hereby created
in the State Treasury. Notwithstanding Section 13340, this fund
is continuously appropriated without regard to fiscal years for use
by the State Architect to implement Sections 4459.5 to 4459.8,
inclusive.

(d) The State Architect shall post on his or her Internet Web
site begin delete information about end delete the begin insert name of the end insert city, county, or city and
county in which each certified access specialist provides or intends
to provide services.

begin delete SEC. 6. end delete
begin insert SEC. 7. end insert   

Section 8299.06 of the Government Code is amended
to read:

8299.06.  

(a) A priority of the commission shall be the
development and dissemination of educational materials and
information to promote and facilitate disability access compliance.

(b) The commission shall work with other state agencies,
including the Division of the State Architect and the Department
of Rehabilitation, to develop educational materials and information
for use by businesses to understand its obligations to provide
disability access and to facilitate compliance with
construction-related accessibility standards.

(c) The commission shall develop and make available on its
Internet Web site, or make available on its Internet Web site if
developed by another governmental agency, including Americans
with Disabilities Act centers, toolkits or educational modules to
assist a California business to understand its obligations under the
law and to facilitate compliance with respect to the top 10 alleged
construction-related violations, by type, as specified in subdivision
(a) of Section 8299.08. Upon completion of this requirement, the
commission shall develop and make available on its Internet Web
site, or work with another agency to develop, other toolkits or
educational modules that would educate businesses of the
accessibility requirements and to facilitate compliance with that
requirement.

(d) The commission shall post the following on its Internet Web
site:

(1) Educational materials and information that will assist
building owners, tenants, building officials, and building inspectors
to understand the disability accessibility requirements and to
facilitate compliance with disability access laws. The commission
shall at least annually review the educational materials and
information on disability access requirements and compliance
available on the Internet Web site of other local, state, or federal
agencies, including Americans with Disabilities Act centers, to
augment the educational materials and information developed by
the commission.

(2) A link to the Internet Web site of the Division of the State
Architect’s begin delete Certified Access Specialist (CASp) Program end delete begin insert certified
access specialist (CASp) program end insert to assist building owners and
tenants in locating or hiring a CASp.

(e) The commission shall, to the extent feasible, coordinate with
other state agencies and local building departments to ensure that
information provided to the public on disability access requirements
is uniform and complete, and make its educational materials and
information available to those agencies and departments.

begin delete SEC. 7. end delete
begin insert SEC. 8. end insert   

Section 65941.6 is added to the Government Code, to
read:

65941.6.  

begin insert (a) end insert begin insert   end insert Each local agency shall develop materials relating
to the requirements of the Americans with Disabilities Act (42
U.S.C. Sec. 12101 et seq.). The local agency shall provide these
materials to an applicant along with notice that approval of a permit
does not signify that the applicant has complied with the Americans
with Disabilities Act.

begin insert

(b) For the purposes of complying with the requirements of
subdivision (a), a local agency may, in lieu of developing its own
materials, provide applicants with those materials which the
California Commission on Disability Access has developed and
made available pursuant to Section 8299.06.

end insert

begin delete SEC. 8. end delete
begin insert SEC. 9. end insert   

Article 4 (commencing with Section 65946) is added
to Chapter 4.5 of Division 1 of Title 7 of the Government Code,
to read:

 

Article 4.  Expedited Review

 

65946.  

(a) For the purposes of this section, the following
definitions shall apply:

(1) “Certified access specialist” or “CASp” means any person
who has been certified pursuant to Section 4459.5.

(2) “Construction-related accessibility standard” means a
provision, standard, or regulation under state or federal law
requiring compliance with standards for making new construction
and existing facilities accessible to persons with disabilities,
including, but not limited to, any provision, standard, or regulation
set forth in Section 51, 54, 54.1, or 55 of the Civil Code, Section
19955.5 of the Health and Safety Code, the California Building
Standards Code (Title 24 of the California Code of Regulations),
the federal Americans with Disabilities Act of 1990 (Public Law
101-336; 42 U.S.C. Sec. 12101 et seq.), and the federal Americans
with Disabilities Act Accessibility Guidelines (Appendix A to Part
36 of Title 28 of the Code of Federal Regulations).

begin delete

(3) “Meets applicable standards” means the site was inspected
by a CASp and determined to meet all applicable
construction-related accessibility standards pursuant to paragraph
(1) of subdivision (a) of Section 55.53.

end delete begin delete

(4) “Place of public accommodation” has the same meaning as
defined in Section 12181(7) of Title 42 of the United States Code
and the federal regulations adopted pursuant to that section.

end delete begin delete

(5) “Site” means a place of public accommodation.

end delete begin delete

(6)

end delete

begin insert (3) end insert  “Written inspection report” means the begin insert CASp end insert report required
to be provided pursuant to subdivision (a) of Section 55.53 of the
Civil Code.

(b) A local agency shall expedite review of a project application
if the begin delete applicant end delete begin insert project applicant meets all of the following
conditions: end insert

begin insert (1) end insert begin insert   end insert begin insert The applicant end insert provides a begin delete written inspection report end delete begin insert copy of
a disability access inspection certificate, end insert provided by a CASp
begin delete indicating that the project is a site that meets applicable standards. end delete
begin insert pursuant to subdivision (e) of Section 55.53 of the Civil Code,
pertaining to the site of the proposed project. end insert

begin insert

(2) The applicant demonstrates that the proposed project is
necessary to address either an alleged violation of a
construction-related accessibility standard or a violation noted in
a written inspection report.

end insert begin insert

(3) If project plans are necessary for the approval of a project,
the applicant has had a CASp review the project plans for
compliance with all applicable construction-related accessibility
standards.

end insert

begin delete SEC. 9. end delete
begin insert SEC. 10. end insert   

Section 17053.43 is added to the Revenue and
Taxation Code, to read:

17053.43.  

(a) (1) For each taxable year beginning on or after
January 1, 2016, and before January 1, 2023, there shall be allowed
to a taxpayer a credit against the “net tax,” as defined in Section
17039, for the amount paid or incurred for eligible access
expenditures in excess of two hundred fifty dollars ($250).

(2) (A) Except as specified in subparagraph (B), the credit shall
be in an amount equal to 50 percent of the difference between the
total eligible access expenditures incurred by a taxpayer that do
not exceed ten thousand two hundred fifty dollars ($10,250) and
two hundred fifty dollars ($250).

(B) For a taxpayer that is a begin delete microbusiness, end delete begin insert small business, end insert the
credit shall be in an amount equal to begin delete the amount calculated pursuant
to subparagraph (A), plus an additional five thousand dollars
($5,000). end delete begin insert 50 percent of the difference between the total eligible
access expenditures incurred by a taxpayer that do not exceed
fifteen thousand two hundred fifty dollars ($15,250) and two
hundred fifty dollars ($250). end insert

begin insert

(C) In the case of a partnership, the limitation under this
paragraph shall apply with respect to the partnership and each
partner. A similar rule shall apply in the case of an “S”
corporation.

end insert

(b) For the purposes of this section, the following definitions
shall apply:

(1) “Eligible access expenditures” has the same meaning as
defined in Section begin delete 44 end delete begin insert 44(c) end insert of the Internal Revenue Code except
that the amounts may be paid or incurred by a taxpayer other than
an eligible small business.

begin delete

(2) “Microbusiness” has the same meaning as defined in Section
14837 of the Government Code.

end delete begin insert

(2) (A) “Small business” means a trade or business that, in the
three immediately preceding taxable years, had average gross
receipts, less returns and allowances reportable to this state, of
less than three million five-hundred thousand dollars ($3,500,000)
and employed 25 or fewer full-time employees.

end insert begin insert

(B) For the purposes of this paragraph, “gross receipts, less
returns and allowances reportable to this state” means the sum
of the gross receipts from the production of business income, as
defined in subdivision (a) of Section 25120, and the gross receipts
from the production of nonbusiness income, as defined in
subdivision (d) of Section 25120.

end insert begin insert

(C) For the purposes of this paragraph, “full-time employee”
means an employee of the taxpayer who works at least 30 hours
per week.

end insert

(c) In the case where the credit allowed by this section exceeds
the “net tax,” the excess may be carried over to reduce the “net
tax” in the following year, and the succeeding six years, if
necessary, until the credit is exhausted.

begin insert

(d) The credit allowed by this section may be claimed only on
a timely filed original return of the taxpayer.

end insert begin insert

(e) In the case of a credit allowed under this section, the
following shall apply:

end insert begin insert

(1) A deduction or credit shall not be allowed for that amount
under any other provision of this part.

end insert begin insert

(2) An increase in the adjusted basis of any property shall not
result from that amount.

end insert begin delete

(d)

end delete

begin insert (f) end insert  The Franchise Tax Board may prescribe rules, guidelines,
or procedures necessary or appropriate to carry out the purposes
of this section, including any guidelines regarding the
substantiation of the credit allowed by this section. Chapter 3.5
(commencing with Section 11340) of Part 1 of Division 3 of Title
2 of the Government Code does not apply to any rule, guideline,
or procedure prescribed by the Franchise Tax Board pursuant to
this section.

begin delete

(e)

end delete

begin insert (g) end insert  This section shall remain in effect only until December 1,
2023, and as of that date is repealed.

begin delete SEC. 10. end delete
begin insert SEC. 11. end insert   

Section 23643 is added to the Revenue and Taxation
Code, to read:

23643.  

(a) (1) For each taxable year beginning on or after
January 1, 2016, and before January 1, 2023, there shall be allowed
a credit to a taxpayer against the “tax,” as defined in Section 23036,
for the amount paid or incurred for eligible access expenditures in
excess of two hundred fifty dollars ($250).

(2) (A) Except as specified in subparagraph (B), the credit shall
be in an amount equal to 50 percent of the difference between the
total eligible access expenditures incurred by a taxpayer that do
not exceed ten thousand two hundred fifty dollars ($10,250) and
two hundred fifty dollars ($250).

(B) For a taxpayer that is a begin delete microbusiness, end delete begin insert small business, end insert the
credit shall be in an amount equal to begin delete the amount calculated pursuant
to subparagraph (A), plus an additional five thousand dollars
($5,000). end delete begin insert 50 percent of the difference between the total eligible
access expenditures incurred by a taxpayer that do not exceed
fifteen thousand two hundred fifty dollars ($15,250) and two
hundred fifty dollars ($250). end insert

begin insert

(C) In the case of a partnership, the limitation under this
paragraph shall apply with respect to the partnership and each
partner. A similar rule shall apply in the case of an “S”
corporation.

end insert

(b) For the purposes of this section, the following definitions
shall apply:

(1) “Eligible access expenditures” has the same meaning as
defined in Section begin delete 44 end delete begin insert 44(c) end insert of the Internal Revenue Code except
that the amounts may be paid or incurred by a taxpayer other than
an eligible small business.

begin delete

(2) “Microbusiness” has the same meaning as defined in Section
14837 of the Government Code.

end delete begin insert

(2) (A) “Small business” means a trade or business that, in the
three immediately preceding taxable years, had average gross
receipts, less returns and allowances reportable to this state, of
less than three million five-hundred thousand dollars ($3,500,000)
and employed 25 or fewer full-time employees.

end insert begin insert

(B) For the purposes of this paragraph, “gross receipts, less
returns and allowances reportable to this state” means the sum
of the gross receipts from the production of business income, as
defined in subdivision (a) of Section 25120, and the gross receipts
from the production of nonbusiness income, as defined in
subdivision (d) of Section 25120.

end insert begin insert

(C) For the purposes of this paragraph, “full-time employee”
means an employee of the taxpayer who works at least 30 hours
per week.

end insert begin insert

(D) The dollar amount specified in paragraph (A) shall apply
to the gross receipts of all taxpayers required or authorized to be
included on a combined report pursuant to Section 25101 or
25101.15.

end insert

(c) In the case where the credit allowed by this section exceeds
the “tax,” the excess may be carried over to reduce the “tax” in
the following year, and the succeeding six years, if necessary, until
the credit is exhausted.

begin insert

(d) The credit allowed by this section may be claimed only on
a timely filed original return of the taxpayer.

end insert begin insert

(e) In the case of a credit allowed under this section, the
following shall apply:

end insert begin insert

(1) A deduction or credit shall not be allowed for that amount
under any other provision of this part.

end insert begin insert

(2) An increase in the adjusted basis of any property shall not
result from that amount.

end insert begin delete

(d)

end delete

begin insert (f) end insert  The Franchise Tax Board may prescribe rules, guidelines,
or procedures necessary or appropriate to carry out the purposes
of this section, including any guidelines regarding the
substantiation of the credit allowed by this section. Chapter 3.5
(commencing with Section 11340) of Part 1 of Division 3 of Title
2 of the Government Code does not apply to any rule, guideline,
or procedure prescribed by the Franchise Tax Board pursuant to
this section.

begin delete

(e)

end delete

begin insert (g) end insert  This section shall remain in effect only until December 1,
2023, and as of that date is repealed.

begin delete SEC. 11. end delete
begin insert SEC. 12. end insert   

The Legislature finds and declares that Sections begin delete 7 end delete begin insert 8 end insert
and begin delete 8 end delete begin insert 9 end insert of this act, pertaining to the review and approval of
development permit applications, constitute matters of statewide
concern, and shall apply to charter cities and charter counties.
These sections shall supersede any inconsistent provisions in the
charter of any city, county, or city and county.

begin delete SEC. 12. end delete
begin insert SEC. 13. end insert   

It is the intent of the Legislature to make the findings
required by Section 41 of the Revenue and Taxation Code with
respect to the tax credits allowed by Sections begin delete 9 end delete begin insert 10 end insert and begin delete 10 end delete begin insert 11 end insert of
this act.

begin delete SEC. 13. end delete
begin insert SEC. 14. end insert   

If the Commission on State Mandates determines that
this act contains costs mandated by the state, reimbursement to
local agencies and school districts for those costs shall be made
pursuant to Part 7 (commencing with Section 17500) of Division
4 of Title 2 of the Government Code.