BILL ANALYSIS Ó
SENATE COMMITTEE ON APPROPRIATIONS
Senator Ricardo Lara, Chair
2015 - 2016 Regular Session
SB 251 (Roth) - Civil rights: disability access
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|Version: May 20, 2015 |Policy Vote: JUD. 6 - 0, GOV. & |
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|Urgency: No |Mandate: Yes |
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|Hearing Date: May 26, 2015 |Consultant: Robert Ingenito |
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This bill meets the criteria for referral to the Suspense File.
Bill
Summary: SB 251 would (1) enact a tax credit for businesses that
make accessibility improvements and (2) require certain state
and local agencies to help businesses make accessibility
improvements.
Fiscal
Impact:
The Franchise Tax Board (FTB) estimate of the current
version of the bill is pending. The bill would likely lead
to an annual General Fund revenue loss in the tens of
millions of dollars minimally. FTB estimated previously
that the May 4, 2015 version of the bill would result in
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General Fund revenue losses of $42 million in 2015-16, $100
million in 2016-17, and $120 million in 2017-18. The
revenue impact from the current version of the bill would
likely be of similar magnitude.
FTB would incur annual administration costs, likely in
the hundreds of thousands of dollars minimally, to
administer the tax credit.
The Division of the State Architect within the
Department of General Services would incur minor costs to
administer its provisions of the bill.
Potentially major one-time and ongoing costs to local
agencies for material development, applicant notification,
and expedited review requirements mandated in the bill. To
the extent the increase in local agency workload qualifies
as a reimbursable state mandate, local agencies could
submit claims for reimbursement of those costs (General
Fund).
Background: In California, individuals with disabilities and medical
conditions have legal protections to ensure full and free access
to and use of roadways, sidewalks, buildings and facilities open
to the public, hospitals and medical facilities, and housing.
After Congress enacted the Americans with Disabilities Act (ADA)
in 1990, the Legislature provided that violations of the ADA are
also violations of state legal protections, which are
comparatively higher and independent of the ADA.
Additionally, under the Unruh Civil Rights Act, all persons,
regardless of sex, race, color, religion, ancestry, national
origin, disability or medical condition, are entitled to the
full and equal accommodations, advantages, facilities,
privileges, or services in all business establishments. A
violation of the ADA also constitutes a violation of the Act.
Persons violating the Act are subject to actual damages incurred
by an injured party plus treble damages, with a minimum of
$4,000, plus any attorney's fees as the court may determine to
be proper.
I. Tax Credits. California law allows various income tax
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credits, deductions, and sales and use tax exemptions to provide
incentives to reward taxpayers that incur certain expenses that
benefit the public, such as child adoption, or to influence
behavior, including business practices and decisions, such as
research and development credits. The Legislature typically
enacts such tax incentives to encourage taxpayers to do
something that but for the tax credit, they would not do. The
Department of Finance is required to annually publish a list of
tax expenditures, currently totaling around $51 billion per
year.
In 1990, Congress enacted a disabled access tax credit against
federal taxes for businesses with annual gross receipts of less
than $1 million or fewer than 30 full-time employees equal to 50
percent of the difference between the amount of expenditures
reasonable and necessary to accomplish the below purposes and
$250, not to exceed $10,000:
Remove barriers that prevent a business from being
accessible to or usable by individuals with disabilities;
Provide qualified interpreters or other methods of
making audio materials available to hearing-impaired
individuals;
Provide qualified readers, taped texts, and other
methods of making visual materials available to individuals
with visual impairments; and
Acquire or modify equipment or devices for individuals
with disabilities.
II. Local Land Use Permitting. Cities and counties have broad
authority to oversee land use within their boundaries, including
the ability to approve or deny permits, licenses, certificates
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or other entitlements needed to construct a project or
improvement. The Permit Streamlining Act sets deadlines for
cities and counties to make some of those land use decisions,
such as approving permits. The length of time that a city or
county has to act varies for different projects, based on
factors such as the type of project and whether the project
requires an environmental impact report before the city or
county makes its decision. So, local building departments make
decisions about how to prioritize permitting applications in
order to meet those deadlines and properly exercise local
governments' police power.
III. Construction-Related Accessibility Standards Compliance
Act. The Americans with Disabilities Act (ADA) as well as
provisions in state law set standards that public
buildings-including businesses-must meet to ensure that persons
with disabilities have full access. Some of these accessibility
standards lay out how public buildings must be constructed. The
standards that any given building must meet depends on the
history of that building, such as when it was constructed and
whether it has been improved.
In 2003, the Legislature enacted the Certified Access Specialist
Program, administered by the Office of the State Architect, to
inspect places of public accommodation to ensure compliance with
disability access standards. Persons being sued in a disability
access action over a property that has been inspected by a
Certified Access Specialist (CASp), and determined to meet
applicable construction-related accessibility standards, or is
pending a determination by a CASp, may obtain a stay of the
action for 90 days and an early evaluation conference to resolve
the case. In 2012, the Legislature again amended the law to
provide that (1) any business in California that has received a
CASp inspection has 60 days to cure an access violation and the
Court may reduce statutory damages by up to 75 percent, and (2)
small businesses with 25 or fewer employees that have not had a
CASp inspection have 30 days to fix a violation, and the Court
may reduce their statutory damages up to 50 percent.
State law additionally directs the California Commission on
Disability Access to develop educational materials to help
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California businesses understand the accessibility standards
they must meet and identify common violations of the ADA.
IV. Charter Cities and Counties. The California Constitution
allows cities and counties that adopt charters to control their
own "municipal affairs." In all other matters, charter cities
must follow the general, statewide laws. Because the
Constitution does not define "municipal affairs," the courts
determine whether a topic is a municipal affair or whether it is
an issue of statewide concern.
Proposed Law:
This bill would make several changes to assist businesses in
complying with ADA requirements.
I. Tax Credits. SB 251 would enact tax credits amounts paid
for eligible access expenditures that exceed $250 for the 2016
through 2022 taxable years, based largely on the current federal
credit. The credit amount is calculated the same way as the
federal credit, and is equal to half of the difference between
the amount of the expenditure that exceeds $250. A taxpayer with
expenses that exceed $10,250 can take a maximum credit of
$5,000.
If the taxpayer meets the definition of small business, the
credit would 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 fifteen thousand two
hundred fifty dollars ($15,250) and two hundred fifty dollars
($250). Overall, the maximum credit a small business could
receive would be $7,500.
All taxpayers can carry over the credit for six years.
Additionally, FTB may prescribe any rules, guidelines, or
procedures necessary to implement the credit, which are exempt
from the Administrative Procedures Act. The measure would
sunset the credit on December 1, 2023, and contains legislative
findings and declarations to comply with SB 1335.
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II. Local Land Use Permitting. SB 251 would require local
agencies to:
Expedite their review of an application for a project to
modify a public building if the building has been inspected
by a CASp and the CASp has completed a written inspection
report stating that the building currently complies with
all of the applicable construction-related standards.
Develop materials on the ADA, and to provide those
materials to project applicants, along with a notice
stating that approval of the permit does not mean that the
project complies with the ADA.
SB 251 states that these two requirements apply to all cities
and counties, including charter cities and counties. The bill
includes a legislative finding and declaration that the bill
addresses a matter of statewide concern because it pertains to
development permit applications.
III. Construction-Related Accessibility Standards Compliance
Act. SB 251 would amend the Construction-Related Accessibility
Standards Compliance Act to:
Import the definition of microbusiness into the Act, and
provides that a defendant meeting that definition shall not
be liable for statutory damages for more than one offense
if they corrected the violation before the lawsuit was
filed.
Provide that any business inspected by a CASp that
corrects a violation defined as a "minor matter" within 30
days of the service of summons and complaint asserting a
claim or receipt of written notice, shall not be liable for
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a violation of a construction-related accessibility
standard. "Minor matters" only include violations for
interior and exterior signage, the color and condition of
parking lot paint striping, and truncated domes.
Provide that any business that corrects a violation
within 90 days of receiving a CASp inspection shall not be
liable for a violation of a construction-related
accessibility standard.
IV. Other provisions. SB 251 additionally would:
Require commercial property owners and lessors to state
on every lease form or renal agreement that both they and
the tenant are responsible for compliance with ADA, and
that the terms of the lease or other contract must allocate
compliance responsibility between the two.
Require an individual who wishes to become a CASp to
provide the State Architect with unspecified information
about the city or county in which they provide, or plan to
provide, service. The State Architect must post that
information on its website.
Directs the California Commission on Disability Access
to link to the State Architect's CASp website and provide
state agencies and local building departments with
educational materials explaining the ADA.
Extend the sunset in Civil Code Section 55.32 until
January 1, 2019.
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Staff
Comments: 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. If the Commission on State Mandates determines
that the bill contains costs mandated by the state,
reimbursement for those costs would be required. The amount is
unknown, but potentially significant.
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