Amended in Assembly August 20, 2015

Amended in Assembly August 18, 2015

Amended in Assembly July 13, 2015

Amended in Senate June 2, 2015

Amended in Senate May 20, 2015

Amended in Senate May 4, 2015

Senate Bill No. 251

Introduced by Senator Roth

(Principal coauthor: Senator Galgiani)

(Coauthors: Senators Anderson and Nielsen)

( begin delete Coauthor: end delete begin insert Coauthors: end insert Assembly begin delete Member end delete begin insert Members end insert Cooper begin insert and Linder end insert )

February 18, 2015

An act to amend Sections 55.32, 55.53, and 55.56, of the Civil Code, to amend Sections 4459.7, 4459.8, and 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. Disability access: civil rights: income tax credit.

(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 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 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.

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

Existing law requires that a copy of the demand letter and the complaint be sent to the California Commission on Disability Access.

This bill would, in addition, require that information about the demand letter and the complaint be submitted to the commission in a standard format specified by the commission.

(2) Existing law specifies that a violation of construction-related accessability standards 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.

This bill would exclude certain technical violations from the scope of this provision, if specified conditions are met.

(3) Under existing law, a defendant is liable for actual damages plus minimum statutory damages for each instance of discrimination relating to a construction-related accessibility standard.

This bill would exempt a defendant from liability for minimum statutory damages with respect to a structure or area inspected by a certified access specialist for a period of 120 days if specified conditions are met. The bill would require a defendant who claims the benefit of this provision, to disclose the date and findings of any certified access specialist (CASp) inspection to the plaintiff.

(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. Existing law requires the State Architect to annually publish a list of CASps. 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 additionally require the State Architect to publish, and regularly update, easily accessible lists of businesses that file prescribed notices of inspection, and businesses which have been inspected by a CASp on or after January 1, 2016, including the date of the inspection. The bill would require the State Architect to develop a process by which a small business may notify the State Architect that a structure or area has had a CASp inspection and to develop a form for businesses to notify the public that the business has obtained a CASp inspection. The bill would also require applicants for CASp certification or renewal to additionally provide to the State Architect the name of 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 Act of 1990, or to instead provide similar materials developed by the California Commission on Disability Access. 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 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. 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, 2021, allow a credit under both the Personal Income Tax Law and the Corporation Tax Law for eligible access expenditures in accordance with the above-described federal tax credit, except with a credit amount equal to 10% of eligible access expenditures for a taxable year, as specified.

(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.

begin insert

(9) This bill would incorporate additional changes to Section 8299.06 of the Government Code proposed by AB 1342 that would become operative if this bill and AB 1342 are enacted and this bill is enacted last.

end insert

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

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

SECTION 1.  

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

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, 2019,
and as of that date is repealed.

SEC. 2.  

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

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 begin delete letter end delete begin insert letter, end insert and submit information
about the demand letter in a standard format specified by the
California Commission on Disability Access, to the commission.

(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
and submit information about the complaint in a standard format
specified by the California Commission on Disability Access to
the commission 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, 2019, 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, 2019, shall continue to constitute cause for the
imposition of discipline of that attorney on and after January 1,
2019.

(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, 2019.

SEC. 3.  

Section 55.53 of the Civil Code is amended to read:

55.53.  

(a) For purposes of this part, a certified access specialist
shall, upon completion of the inspection of a site, comply with the
following:

(1) For a meets applicable standards site, if the CASp determines
the site meets all applicable construction-related accessibility
standards, the CASp shall provide a written inspection report to
the requesting party that includes both of the following:

(A) An identification and description of the inspected structures
and areas of the site.

(B) A signed and dated statement that includes both of the
following:

(i) A statement that, in the opinion of the CASp, the inspected
structures and areas of the site meet construction-related
accessibility standards. The statement shall clearly indicate whether
the determination of the CASp includes an assessment of readily
achievable barrier removal.

(ii) If corrections were made as a result of the CASp inspection,
an itemized list of all corrections and dates of completion.

(2) For an inspected by a CASp site, if the CASp determines
that corrections are needed to the site in order for the site to meet
all applicable construction-related accessibility standards, the
CASp shall provide a signed and dated written inspection report
to the requesting party that includes all of the following:

(A) An identification and description of the inspected structures
and areas of the site.

(B) The date of the inspection.

(C) A statement that, in the opinion of the CASp, the inspected
structures and areas of the site need correction to meet
construction-related accessibility standards. This statement shall
clearly indicate whether the determination of the CASp includes
an assessment of readily achievable barrier removal.

(D) An identification and description of the structures or areas
of the site that need correction and the correction needed.

(E) A schedule of completion for each of the corrections within
a reasonable timeframe.

(3) The CASp shall provide, within 30 days of the date begin delete when it
is requested by end delete begin insert of an inspection for end insert a business that qualifies for
the provisions of subparagraph (A) of paragraph (3) of subdivision
(g) of Section 55.56, a copy of a report prepared pursuant to that
subparagraph to the begin delete business that requested it. end delete begin insert business. end insert

(4) The CASp shall file, within 10 days of inspecting a business
pursuant to subparagraph (A) of paragraph (3) of subdivision (g)
of Section 55.56, a notice with the State Architect for listing on
the State Architect’s Internet Web site, as provided by subdivision
(d) of Section 4459.7 of the Government Code, indicating that the
CASp has inspected the business, the name and address of the
business, the date of the filing, the date of the inspection of the
business, the name and license number of the CASp, and a
description of the structure or area inspected by the CASp.

begin insert

(5) The CASp shall post the notice described in paragraph (4),
in a form prescribed by the State Architect, in a conspicuous
location within five feet of all public entrances to the building on
the date of the inspection and instruct the business to keep it in
place until the earlier of either of the following:

end insert begin insert

(A) One hundred twenty days after the date of the inspection.

end insert begin insert

(B) The date when all of the construction-related violations in
the structure or area inspected by the CASp are corrected.

end insert

(b) For purposes of this section, in determining whether the site
meets applicable construction-related accessibility standards when
there is a conflict or difference between a state and federal
provision, standard, or regulation, the state provision, standard, or
regulation shall apply unless the federal provision, standard, or
regulation is more protective of accessibility rights.

(c) Every CASp who conducts an inspection of a place of public
accommodation shall, upon completing the inspection of the site,
provide the building owner or tenant who requested the inspection
with the following notice, which the State Architect shall make
available as a form on the State Architect’s Internet Web site:

NOTICE TO PRIVATE PROPERTY OWNER/TENANT:

YOU ARE ADVISED TO KEEP IN YOUR RECORDS ANY
WRITTEN INSPECTION REPORT AND ANY OTHER
DOCUMENTATION CONCERNING YOUR PROPERTY SITE
THAT IS GIVEN TO YOU BY A CERTIFIED ACCESS
SPECIALIST.

IF YOU BECOME A DEFENDANT IN A LAWSUIT THAT
INCLUDES A CLAIM CONCERNING A SITE INSPECTED
BY A CERTIFIED ACCESS SPECIALIST, YOU MAY BE
ENTITLED TO A COURT STAY (AN ORDER TEMPORARILY
STOPPING ANY LAWSUIT) OF THE CLAIM AND AN EARLY
EVALUATION CONFERENCE.

IN ORDER TO REQUEST THE STAY AND EARLY
EVALUATION CONFERENCE, YOU WILL NEED TO VERIFY
THAT A CERTIFIED ACCESS SPECIALIST HAS INSPECTED
THE SITE THAT IS THE SUBJECT OF THE CLAIM. YOU
WILL ALSO BE REQUIRED TO PROVIDE THE COURT AND
THE PLAINTIFF WITH THE COPY OF A WRITTEN
INSPECTION REPORT BY THE CERTIFIED ACCESS
SPECIALIST, AS SET FORTH IN CIVIL CODE SECTION
55.54. THE APPLICATION FORM AND INFORMATION ON
HOW TO REQUEST A STAY AND EARLY EVALUATION
CONFERENCE MAY BE OBTAINED AT
www.courts.ca.gov/selfhelp-start.htm.

YOU ARE ENTITLED TO REQUEST, FROM A CERTIFIED
ACCESS SPECIALIST WHO HAS CONDUCTED AN
INSPECTION OF YOUR PROPERTY, A WRITTEN
INSPECTION REPORT AND OTHER DOCUMENTATION AS
SET FORTH IN CIVIL CODE SECTION 55.53. YOU ARE ALSO
ENTITLED TO REQUEST THE ISSUANCE OF A DISABILITY
ACCESS INSPECTION CERTIFICATE, WHICH YOU MAY
POST ON YOUR PROPERTY.

(d) (1) Commencing July 1, 2010, a local agency shall employ
or retain at least one building inspector who is a certified access
specialist. The certified access specialist shall provide consultation
to the local agency, permit applicants, and members of the public
on compliance with state construction-related accessibility
standards with respect to inspections of a place of public
accommodation that relate to permitting, plan checks, or new
construction, including, but not limited to, inspections relating to
tenant improvements that may impact access. If a local agency
employs or retains two or more certified access specialists to
comply with this subdivision, at least one-half of the certified
access specialists shall be building inspectors who are certified
access specialists.

(2) Commencing January 1, 2014, a local agency shall employ
or retain a sufficient number of building inspectors who are
certified access specialists to 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, including, but not limited to, projects
relating to tenant improvements that may impact access. If a local
agency employs or retains two or more certified access specialists
to comply with this subdivision, at least one-half of the certified
access specialists shall be building inspectors who are certified
access specialists.

(3) If a permit applicant or member of the public requests
consultation from a certified access specialist, the local agency
may charge an amount limited to a reasonable hourly rate, an
estimate of which shall be provided upon request in advance of
the consultation. A local government may additionally charge or
increase permitting, plan check, or inspection fees to the extent
necessary to offset the costs of complying with this subdivision.
Any revenues generated from an hourly or other charge or fee
increase under this subdivision shall be used solely to offset the
costs incurred to comply with this subdivision. A CASp inspection
pursuant to subdivision (a) by a building inspector who is a
certified access specialist shall be treated equally for legal and
evidentiary purposes as an inspection conducted by a private CASp.
Nothing in this subdivision shall preclude permit applicants or any
other person with a legal interest in the property from retaining a
private CASp at any time.

(e) (1) Every CASp who completes an inspection of a place of
public accommodation shall, upon a determination that the site
meets applicable standards pursuant to paragraph (1) of subdivision
(a) or is inspected by a CASp pursuant to paragraph (2) of
subdivision (a), provide the building owner or tenant requesting
the inspection with a numbered disability access inspection
certificate indicating that the site has undergone inspection by a
certified access specialist. The disability access inspection
certificate shall be dated and signed by the CASp inspector, and
shall contain the inspector’s name and license number. Upon
issuance of a certificate, the CASp shall record the issuance of the
numbered certificate, the name and address of the recipient, and
the type of report issued pursuant to subdivision (a) in a record
book the CASp shall maintain for that purpose.

(2) Beginning March 1, 2009, the State Architect shall make
available for purchase by any local building department or CASp
sequentially numbered disability access inspection certificates that
are printed with a watermark or other feature to deter forgery and
that comply with the information requirements specified in
subdivision (a).

(3) The disability access inspection certificate may be posted
on the premises of the place of public accommodation, unless,
following the date of inspection, the inspected site has been
modified or construction has commenced to modify the inspected
site in a way that may impact compliance with construction-related
accessibility standards.

(f) Nothing in this section or any other law is intended to require
a property owner or tenant to hire a CASp. A property owner’s or
tenant’s election not to hire a CASp shall not be admissible to
prove that person’s lack of intent to comply with the law.

SEC. 4.  

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) (1) The following technical violations are presumed to not
cause a person difficulty, discomfort, or embarrassment for the
purpose of an award of minimum statutory damages in a
construction-related accessibility claim, as set forth in subdivision
(c), where the defendant is a small begin delete business end delete begin insert business, end insert as described
by subparagraph (B) of paragraph (2) of subdivision (g), the
defendant has 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, all of the technical violations that are the basis of the claim,
and the claim is based on one or more of the following violations:

(A) Interior signs, other than directional signs or signs that
identify the location of accessible elements, facilities, or features,
when not all such elements, facilities, or features are accessible.

(B) The lack of exterior signs, other than parking signs and
directional signs, including signs that indicate the location of
accessible pathways or entrance and exit doors when not all
pathways, entrance and exit doors are accessible.

(C) The order in which parking signs are placed or the exact
location or wording of parking signs, provided that the parking
signs are clearly visible and indicate the location of accessible
parking and van-accessible parking.

(D) The color of parking signs, provided that the color of the
background contrasts with the color of the information on the sign.

(E) The color of parking lot striping, provided that it exists and
provides sufficient contrast with the surface upon which it is
applied to be reasonably visible.

(F) Faded, chipped, damaged, or deteriorated paint in otherwise
fully compliant parking spaces and passenger access aisles in
parking lots, provided that it indicates the required dimensions of
a parking space or access aisle in a manner that is reasonably
visible.

(G) The presence or condition of detectable warning surfaces
on ramps, except where the ramp is part of a pedestrian path of
travel that intersects with a vehicular lane or other hazardous area.

(2) The presumption set forth in paragraph (1) affects the
plaintiff’s burden of proof and is rebuttable by evidence showing,
by a preponderance of the evidence, that the plaintiff did, in fact,
experience difficulty, discomfort, or embarrassment on the
particular occasion as a result of one or more of the technical
violations listed in paragraph (1).

(f) 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.

(g) (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) (A) Notwithstanding any other law, a defendant shall not
be liable for minimum statutory damages in a construction-related
accessibility claim, with respect to a violation noted in a report by
a certified access specialist (CASp), for a period of 120 days
following the date of the inspection if the defendant demonstrates
compliance with each of the following:

(i) The defendant is a business that has employed 100 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 Employment Development Department.

(ii) The structure or area of the alleged violation was the subject
of an inspection report indicating “CASp determination pending”
or “Inspected by a CASp.”

(iii) The inspection predates the filing of the claim by, or receipt
of a demand letter from, the plaintiff regarding the alleged violation
of a construction-related accessibility standard, and the defendant
was not on notice of the alleged violation prior to the CASp
begin delete inspection because of a previous CASp inspection of the premises,
or other reasons. end delete begin insert inspection. end insert

begin delete

(iv) Within 10 days of the date of the inspection, the CASp files
a notice with the State Architect for listing on the State Architect’s
Internet Web site, stating that the defendant has obtained a CASp
inspection, the date of the filing, and the date of the inspection.

end delete begin delete

(v) The CASp posted the notice described in clause (iv), in a
form prescribed by the State Architect, in a conspicuous location
within five feet of all public entrances to the building on the date
of the inspection and the defendant kept it in place until the earlier
of either of the following:

end delete begin delete

(I) One hundred twenty days after the date of the inspection.

end delete begin delete

(II) The date when all of the construction-related violations in
the structure or area inspected by the CASp are corrected.

end delete begin delete

(vi)

end delete

begin insert (iv) end insert  The defendant has corrected, within 120 days of the date
of the inspection, all construction-related violations in the structure
or area inspected by the CASp that are noted in the CASp report
that are the basis of the claim.

(B) Notwithstanding any other law, a defendant who claims the
benefit of the reduction of minimum statutory damages under this
subdivision shall disclose the date and findings of any CASp
inspection to a plaintiff if relevant to a claim or defense in an
action.

(4) A defendant may assert the reduction of minimum statutory
damages under this subdivision only once for each structure or
area inspected by a CASp, unless the inspected structure or area
has undergone modifications or alterations that affect the
compliance with construction-related accessibility standards of
those structures or areas after the date of the last inspection, and
the defendant obtains an additional CASp inspection within 30
days of final approval by the building department or certificate of
occupancy, as appropriate, regarding the modification or
alterations.

(5) If the defendant has failed to correct, within 120 days of the
date of the inspection, all construction-related violations in the
structure or area inspected by the CASp that are noted in the CASp
report, the defendant shall not receive any reduction of minimum
statutory damages, unless a building permit is required for the
repairs which cannot reasonably be completed by the defendant
within 120 days and the defendant is in the process of correcting
the violations noted in the CASp report, as evidenced by having,
at least, an active building permit necessary for the repairs to
correct the violation that was noted, but not corrected, in the CASp
report and all of the repairs are completed within 180 days of the
date of the inspection.

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

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

(8) 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, except begin delete that end delete for paragraphs (3), (4), and
(5), which shall apply to claims filed on or after January 1, 2016.
Nothing in this subdivision is intended to affect a complaint filed
before that date.

(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.

(j) For purposes of this section, the “structure or area inspected”
means one of the following: the interior of the premises, the
exterior of the premises, or both the interior and exterior.

SEC. 5.  

Section 4459.7 of the Government Code is amended
to read:

4459.7.  

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

(2) The State Architect shall publish and regularly update on
its Internet Web site easily accessible lists of all of the following:

(A) Businesses that have obtained a CASp inspection and have
filed, or a CASp has filed on their behalf, a notice pursuant to
paragraph (3) of subdivision (g) of Section 55.56 of the Civil Code.

(B) Businesses which have been inspected by a certified access
specialist on or after January 1, 2016, including the date of the
inspection.

(3) The lists required pursuant to this section 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.

(d) By January 1, 2016, the State Architect shall develop a
process by which a certified access specialist (CASp) may notify
the State Architect that a structure or area on the premises of a
business has been inspected by a CASp and to notify the public
that the business has a “CASp determination pending,” or has been
“Inspected by a CASp,” as provided by paragraph (3) of
subdivision (g) of Section 55.56 of the Civil Code, which shall
include begin delete the date of the notification, the date of the inspection, end delete begin insert the
name and address of the business, the date of the notification, the
date of the inspection of the business, the name and license number
of the CASp, end insert and a description of the structure or area inspected
by a CASp.

(e) By January 1, 2016, the State Architect shall develop a form
for a business to notify the public that the business has obtained a
CASp inspection pursuant to paragraph (3) of subdivision (g) of
Section 55.56 of the Civil Code, which shall include the date of
the notification, the date of the inspection, and a description of the
structure or area inspected by a CASp.

(f) For purposes of this section, the “structure or area inspected”
means one of the following: the interior of the premises, the
exterior of the premises, or both the interior and exterior.

SEC. 6.  

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 both of 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 the name of the 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 both of the following:

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

(B) Provide to the State Architect the name of the 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 begin delete its end delete begin insert his or her end insert
schedule of fees to ensure that begin delete its end delete begin insert the end insert 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 the name of the city, county, or city and county in which each
certified access specialist provides or intends to provide services.

SEC. 7.  

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 certified access specialist (CASp) program 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 insert

begin insert SEC. 7.5. end insert   

end insert

begin insert Section 8299.06 of the end insert begin insert Government Code end insert begin insert is amended
to read: end insert

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 begin delete its end delete begin insert their end insert 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.

begin delete

(d) The commission shall post on its Internet Web site
educational materials

end delete begin insert

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

end insert

begin insert (1) end insert begin insert   end insert begin insert Educational materials end insert 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 begin delete site end delete begin insert sites end insert of other local, state, or
federal agencies, including Americans with Disabilities Act centers,
to augment the educational materials and information developed
by the commission.

begin insert

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

end insert

(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 begin delete complete. end delete begin insert end insert begin insert complete, and make its educational
materials and information available to those agencies and
departments. end insert

begin insert

(f) The commission shall establish a permanent legislative
outreach coordinator position and a permanent educational
outreach coordinator position.

end insert

SEC. 8.  

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

65941.6.  

(a) Each local agency shall develop materials relating
to the requirements of the federal Americans with Disabilities Act
of 1990 (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 federal Americans with Disabilities Act of 1990.

(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.

SEC. 9.  

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).

(3) “Written inspection report” means the CASp 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 project applicant meets all of the following conditions:

(1) The applicant provides a copy of a disability access
inspection certificate, provided by a CASp pursuant to subdivision
(e) of Section 55.53 of the Civil Code, pertaining to the site of the
proposed project.

(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.

(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.

SEC. 10.  

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

17053.43.  

(a) For each taxable year beginning on or after
January 1, 2016, and before January 1, 2021, there shall be allowed
as a credit against the “net tax,” as defined in Section 17039, the
amount paid or incurred for eligible access expenditures. The credit
shall be allowed in accordance with Section 44 of the Internal
Revenue Code, relating to expenditures to provide access to
disabled individuals, except that the credit amount specified in
subdivision (b) shall be substituted for the credit amount specified
in Section 44(a) of the Internal Revenue Code.

(b) The credit amount allowed under this section shall be an
amount equal to 10 percent of so much of the eligible access
expenditures for the taxable year as exceed two hundred fifty
dollars ($250) but do not exceed ten thousand two hundred fifty
dollars ($10,250).

(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 four years, if
necessary, until the credit is exhausted.

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

(e) 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.

(f) This section shall remain in effect only until December 1,
2021, and as of that date is repealed.

SEC. 11.  

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

23643.  

(a) For each taxable year beginning on or after January
1, 2016, and before January 1, 2021, there shall be allowed as a
credit against the “tax,” as defined in Section 23036, the amount
paid or incurred for eligible access expenditures. The credit shall
be allowed in accordance with Section 44 of the Internal Revenue
Code, relating to expenditures to provide access to disabled
individuals, except that the credit amount specified in subdivision
(b) shall be substituted for the credit amount specified in Section
44(a) of the Internal Revenue Code and the second sentence of
Section 44(d)(3) of the Internal Revenue Code, relating to
partnerships and “S” corporations, shall not apply.

(b) The credit amount allowed under this section shall be an
amount equal to 10 percent of so much of the eligible access
expenditures for the taxable year as exceed two hundred fifty
dollars ($250) but do not exceed ten thousand two hundred fifty
dollars ($10,250).

(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 four years, if necessary,
until the credit is exhausted.

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

(e) 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.

(f) This section shall remain in effect only until December 1,
2021, and as of that date is repealed.

SEC. 12.  

The Legislature finds and declares that Sections 8
and 9 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.

SEC. 13.  

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 10 and 11 of this act.

begin insert

begin insert SEC. 14. end insert   

end insert

begin insert Section 7.5 of this bill incorporates amendments to
Section 8299.06 of the Government Code proposed by both this
bill and Assembly Bill 1342. It shall only become operative if (1)
both bills are enacted and become effective on or before January
1, 2016, (2) each bill amends Section 8299.06 of the Government
Code, and (3) this bill is enacted after Assembly Bill 1342, in which
case Section 7 of this bill shall not become operative. end insert

begin delete SEC. 14. end delete
begin insert SEC. 15. 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.