BILL ANALYSIS Ó
AB 1342
Page 1
Date of Hearing: April 21, 2015
ASSEMBLY COMMITTEE ON JUDICIARY
Mark Stone, Chair
AB 1342
(Steinorth) - As Amended March 26, 2015
As Proposed to be Amended
SUBJECT: CALIFORNIA COMMISSION ON Disabled access
KEY ISSUE: SHOULD THE cALIFORNIA COMMISSION OF DISABILITY
ACCESs, A PRODUCT OF BIPARTISAN LEGISLATIVE EFFORTS TO IMPROVE
DISABILITY ACCESS AND COMPLIANCE with CONSTRUCTION-RELATED
accessibility requirements, BE GIVEN ADDITIONAL RESOURCES and
duties THAT will further its efforts TO PROVIDE THE PUBLIC AND
THE LEGISLATURE with CRITICALLY IMPORTANT INFORMATION ABOUT HOW
TO improve compliance with construction-related accessiblity
standards and how to CURB lawsuits alleging VIOLATIONS of those
standards?
SYNOPSIS
This bill, receiving broad support from various stakeholders
including Disability Rights of California, Consumer Attorneys of
California, and the California Chamber of Commerce, seeks to
provide additional revenue and responsibilities to the
California Commission of Disability Access, which was created by
Senate Bill 1608 (Corbett and Harman, Ch. 549, Stats. 2008), a
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bipartisan measure that reflected the interests of disability
rights advocates, as well as the business community. Since its
creation, the Commission has partnered and collaborated with
different groups at all levels of government to promote
disability access by preparing reports, developing strategic
plans, and (most importantly) creating educational resources
such as pamphlets, checklists, and videos to assist the public
in understanding disability access requirements. Additionally,
as proposed to be amended, this bill enacts other measures that
further promote compliance with disability access laws,
including making it easier for the public to find a certified
access specialist, strengthening local and state efforts to have
high-quality certified access specialists, and facilitating
communication between a commercial property owner and a tenant
over the state of a leased property in order to better determine
whether access improvements to public accommodations are
required. There is no known opposition.
SUMMARY: Appropriates funds to the California Commission on
Disability Access (Commission) and enacts other measures
intended to promote disability access compliance. Specifically,
this bill:
1)Appropriates $500,000 from the General Fund to the Commission
which shall be used to implement the duties of the Commission.
2)Requires the Commission, to the extent possible, to coordinate
with other state agencies and local building departments to
make the Commission's educational materials and information
available to those agencies.
3)Requires the State Architect to require a certified access
specialist (CASp) applicant to provide the location (i.e.
city, county, or city and county) in which the CASp will
provide services. Further requires the State Architect to
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post the location that each CASp provides or intends to
provide services.
4)Requires the Commission to post on its website a link to the
Division of State Architect's Certified Access Specialist
Program website to assist building owners and tenants in
locating or hiring a CASp.
5)Removes the sunset provision under current law that requires
an applicant for a business license or renewal to pay a one
dollar ($1) fee to local jurisdictions to assist in funding
CASp services, training, and retention at the local level, and
standards at the state level.
6)Requires a commercial property owner to state on every lease
form or rental agreement executed after July 1, 2016, whether
or not the property being leased has undergone inspection by a
CASp.
7)Requires a commercial property owner to provide additional
information to the tenant or lessor about the condition of the
rented or leased property.
a) If the property has undergone an inspection (and to the
best of the commercial property owner's knowledge, there
have been no modifications or alterations completed or
commenced between the date of the inspection and the date
of the lease or rental agreement which have impacted the
property's compliance), the commercial property owner shall
provide a copy of any report prepared by the CASp to the
lessee or tenant. If the property has been issued a
current disability access inspection certificate, the
commercial property owner shall provide a copy of the
certificate or any inspection report to the lessee or
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tenant within seven days of the date of the execution of
the lease form or rental agreement.
b) If the property has not undergone an inspection or been
issued a current disability access inspection certificate,
the commercial property owner shall state on the lease form
or rental agreement that the property may not necessarily
meet all of the applicable construction-related
accessibility standards under State law.
EXISTING LAW:
1)Provides for a California Commission on Disability Access, an
independent state agency composed of 17 members, with the
general responsibility for monitoring disability access
compliance in California, and the authority to hold hearings
and make recommendations to the Legislature for necessary
changes to existing state law in order to facilitate
implementation of state and federal laws on disability access.
(Gov. Code Sec. 8299 et seq. All further statutory
references are to the Government Code, unless otherwise
indicated.)
2)Requires the Commission to use its funding, as appropriate, to
provide information about preventing or minimizing compliance
problems among California businesses, and recommending
programs to enable persons with disabilities to obtain full
and equal access to public facilities. (Section 8299.05.)
3)Makes it a priority for the Commission to provide educational
resources to promote and facilitate disability access
compliance. (Section 8299.06.)
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4)Requires the Commission to 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.
(Section 8299.06.)
5)Requires the Commission to 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, as provided. (Section
8299.06.)
6)Requires the Commission to post on its Internet Web site
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. (Section 8299.06.)
7)Requires the Commission to compile data about demand letters
and complaints filed with the Commission pursuant to Section
53.32 of the Civil Code. The Commission shall identify the
various types of construction-related physical access
violations alleged in the demand letters and in the complaints
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and shall tabulate the number of claims alleged for each
violation in the demand letters and in the complaints.
(Section 8299.08.)
8)Provides that the Commission's continued operation is
dependent upon available funds provided by the Legislature.
(Section 8299.11.)
9)Provides for the certification process in which an applicant
may become a certified-access specialist. Further provides
that the Division of the State Architect shall require each
applicant to pay fees that are reasonably necessary to
implement the certified access specialist program, including
processing, registration, and publishing a list of certified
access specialists. (Section 4459.8.)
10)Adds a one dollar ($1) state fee on an applicant for a
business license or permit or renewal for purposes of
increasing disability access and compliance with
construction-related accessibility requirements and developing
educational resources for businesses to facilitate compliance
with federal and state disability laws. The fee is divided
between the local jurisdiction that collects the fee and the
Division of the State Architect, as provided. This provision
expires in 2018. (Section 4467.)
11)Requires a commercial property owner to state on a lease form
or rental agreement executed on or after July 1, 2013, if the
property being leased or rented has undergone inspection by a
certified access specialist. If the property has undergone an
inspection, the commercial property owner shall state whether
the property has or has not been determined to meet all
applicable construction-related accessibility standards.
(Civil Code Section 1938.)
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FISCAL EFFECT: As currently in print this bill is keyed fiscal.
COMMENTS: In 2008, the Legislature established the Commission
pursuant to SB 1608 (Corbett and Harman, Ch. 549, Stats. 2008),
part of a bipartisan package of reforms shaped by discussions
from disability rights advocates, attorneys for plaintiffs and
defendants, and business interests. The package included
measures such as the following: (1) expanding the certified
access specialists (CASp) program; (2) allowing businesses to
obtain a stay of litigation in construction-related access
matters under specified conditions; (3) specifying the
requirements for demand notices and complaints; (4) continuing
education requirement for construction inspectors, plan
examiners, and building officials for disability access
requirements; and for purposes here, (5) the creation of the
California Commission on Disability Access.
According to the joint authors of SB 1608, the bill included a
multi-faceted approach aimed at addressing the high rate of
non-compliance with construction-related accessibility standards
by public accommodations in California, recognizing the value of
and promoting voluntary compliance and prevention. Indeed, SB
1608 was a bipartisan and bicameral effort with disability
rights organizations and business advocates over a period of
years. The measure was the product of extended, careful, and
thoughtful consideration by legislators and members of the
disability and business communities, including Disability Rights
California, California Chamber of Commerce, California
Foundation for Independent Living Centers, California Restaurant
Association, Business Properties Association, California Hotel
Association and several others.
Original Duties and Responsibilities. The Commission was
originally required to prepare a study to the Legislature about
issues concerning:
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(a) Compliance with state laws and regulations by the public
and private sector, by persons with disabilities, and by
businesses;
(b) Whether the CASp program was meeting the needs of both the
disability and business community, including whether there are
issues about timeliness or competence;
(c) Whether existing training and continuing education
requirements for personnel involved in designing, plan
checking, building, or inspection provide sufficient knowledge
about state and federal disability access laws; and
(d) Whether training and continuing education requirements
should be enacted for other professionals, like architects,
professional engineers, contractors.
Additionally, SB 1608 required the Commission to:
(a) Coordinate with state agencies and local building
departments to ensure that information provided to the public
on disability access requirements is uniform and complete;
(b) Engage in educational outreach efforts to prevent problems
of compliance;
(c) Recommend programs to enable persons with disabilities to
obtain full and equal access to public facilities;
(d) Develop a master checklist that may be used by building
inspectors for disability access compliance;
(e) Assess the operation of Civil Code Section 55.54 to
determine whether it reduces unnecessary civil actions or
whether it unduly impacts claims brought to facilitate
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compliance;
(f) Provide recommendations to the Legislature.
Significant portions of the bipartisan reform depend upon the
continuous appropriation of the Commission. Under Section 12 of
Senate Bill 1608, Civil Code §§ 55.51 and 55.52; § 55.53
subdivision (c); and § 55.54 subdivision (a) all become
inoperative if the Commission loses its funding. These
particular provisions are integral to both the CASp program and
the notice that an attorney must provide to an alleged
defendant. Specifically, these provisions: (1) describe the
notice that a CASp inspector must give to a private property
owner or tenant; and (2) describe the notice that an attorney
must give to an alleged defendant in a civil action for a
construction-related accessibility claim.
The author contends that the Commission-since its inception-has
been tasked with additional responsibilities without
corresponding increases in funding. Specifically, the author
states:
The CCDA plays an important role as a liaison between the
business, disabled, and legal communities in promoting
disability access and compliance throughout the State of
California. The CCDA seeks to be a resource to the Legislature
with the ability to provide informed, non-partisan data and
insight surrounding access issues. It holds a unique position
in uniting parties which are often perceived to be at odds
with each other, and thus, has a powerful potential to
recommend or inform Legislative actions.
And yet, the CCDA has seen an expansion of its
responsibilities since its inception in 2008, but has not
received an appropriate increase in funding that enable the
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CCDA to begin other projects.
Existing funding levels limit the CCDA to rely heavily upon
volunteers to assist with the workload and important tasks;
while volunteers are valuable, there is high turnover and a
relative lack of responsibility, leaving the Commission
vulnerable to a lack of human resources at any time.
Additionally, the Executive Director spends much of her time
completing administrative tasks, as the office lacks an
administrative or office assistant. The CCDA has identified a
need to create the following staff positions: Legislative
Outreach Coordinator, Educational Outreach Coordinator, Staff
Service Manager, and Administrative Assistant. These staff,
upon hiring, would be quickly assigned with specific
responsibilities to achieve goals outlined in the Strategic
Plan.
Ultimately, the CCDA seeks to offer and improve its
educational resources, coordinate discussion with parties
throughout the State, and serve as a forum for disability
access dialogue outside of and prior to the courtroom.
Unfortunately, the existing funding levels do not enable the
CCDA to begin these projects.
New Responsibilities under SB 1186. As the author correctly
states, the Commission has received additional responsibilities
since it was created. In 2012, the Legislature passed SB 1186
(Steinberg and Dutton, Ch. 383, Stats. 2012), another landmark
bipartisan measure carried by the Senate's majority and minority
leaders, to address the issue of ADA litigation. While many
provisions in SB 1186 were procedural in nature and benefitted
the business community, SB 1186 imposed additional duties on the
Commission.
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Pursuant to SB 1186, the Commission is now required to do the
following, in addition to its original duties:
(a) Receive demand letters and civil complaints from attorneys
alleging a construction-related accessibility claim; and
(b) Report to the Legislature about the number of demand
letters and civil complaints filed, the various types of
construction-related physical access violations alleged, the
10 most frequent types of accessibility violations alleged,
and whether the civic complaints are filed in state or federal
court.
The additional responsibilities, provided under SB 1186, are
significant. For example, between January and October 2014, the
Commission combed through over 2,500 civil complaints (state and
federal) to determine the types of construction-related access
violations alleged in those complaints. During this ten-month
span, the Commission determined that over 8,720
construction-related access violations were alleged in those
civil complaints. The Commission categorized these alleged
violations and provided the Legislature with a report about its
findings.
Steady Funding. Under SB 1608, the Commission was allocated an
$80,000 general fund appropriation. Since then, the Legislature
has appropriated funding to the Commission through the annual
Budget Act. Generally, the funding level has been steady.
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| FY | FY | FY | FY | FY | FY |
| 2010-11 | 2011-12 | 2012-13 | 2013-14 | 2014-15 | 2015-16 |
| | | | | | |
| | | | | | |
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|----------+----------+----------+----------+----------+----------|
| $500 | $454 | $407 | $416 | $526 |$526 |
| | | | | | |
| | | | | | |
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(In hundreds of
thousands)
The Commission's work is integral in any solution aimed at
improving compliance with construction-related accessibility
standards and access to public accommodations. Indeed, many of
the Commission's reports have helped to shape this Committee's
discussions on the issues of disability access and
construction-related accessibility claims. Accordingly, it is
critical for the Commission to have sufficient resources in
order to perform its important duties.
The Proposed Amendments Provide Additional Responsibilities to
the Commission. As stated above, the Commission has provided
the Legislature and the public with critical information
regarding the issue of disability access. For example, current
law requires the Commission to provide a comprehensive report on
the types of violations alleged in a construction-related
accessibility matter. Given the Commission's expertise and
excellent track record, it is appropriate for the Commission to
undertake additional important, but not onerous,
responsibilities to further educate the public on how to comply
with disability accessibility laws.
As proposed to be amended in this bill, the Commission will be
required:
To the extent feasible, to coordinate with state agencies and
local building departments to make educational materials and
information available to those agencies; and
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To post on its website a link to the website of the Division
of the State Architect's CASp program to assist building
owners and tenants in locating or hiring a CASp.
Locating a Certified Access Specialist (CASp). Under current
law, the Division of the State Architect (State Architect)
certifies applicants to become CASps. The State Architect
publishes a list of all the CASps in the State on its website.
Currently, there are over 575 CASps throughout the state.
However, despite the large number of CASps, it may be difficult
to find a CASp who is available in a given area. Currently, the
State Architect's website does not consistently provide the
location in which a CASp provides his or her services. This
lack of information makes it difficult for a business property
owner or tenant to locate or hire a CASp in a specific region.
As proposed to be amended, an applicant for CASp certification
or renewal will be required to provide the State Architect the
location where the applicant will provide CASp services;
specifically, the city, county, or city and county.
Additionally, the proposed amendments require the State
Architect to publish this locational information.
A Commercial Property Owner's Responsibilities to a Tenant in
Reporting Compliance with California's Disability Access Laws.
It is a priority for the State and the Commission to provide
educational resources in order to promote and facilitate
disability access compliance. Under SB 1186, commercial
property owners are required to give certain information to a
tenant relating to disability access compliance.
Under the law, a commercial property owner is required to state
on every lease form or rental agreement whether the property has
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been inspected by a CASp. If the property has undergone a CASP
inspection, the lease or rental agreement must state whether the
property meets all applicable construction-related accessibility
standards. However, because the property owner may not know
whether the property has met all applicable-related
accessibility standards, the current law may unintentionally
create a disincentive for a business property owner to obtain
CASp services. The author's proposed amendments addresses this
problem by requiring the business property owner to inform the
tenant whether or not the property has been inspected by a CASp.
If the property has undergone an inspection and is in the same
condition as it was when it was inspected, the commercial
property owner shall provide a copy of any CASP report, or if
applicable, a current disability access inspection certificate
to the tenant. If the property has not undergone an inspection
or been issued a current disability access inspection
certificate, the commercial property owner shall state on the
lease form or rental agreement that the property may not
necessarily meet all of the applicable construction-related
accessibility standards under state law.
This additional information allows commercial tenants to better
understand the state of the leased property, and allows the
commercial property owner or tenant to take proactive steps in
reaching compliance with disability access laws by promoting
communication between the commercial parties.
Strengthening the CASp Program by Developing Educational and
Training Resources at the State and Local Level to Promote
Compliance. Increasing access to and use of CASp inspectors
promotes compliance and helps businesses avoid lawsuits. As
part of the framework established by Senate Bill 1186, a one
dollar ($1) state fee was added to the issuance or renewal of a
business license fee, in order to create educational and
training programs and to maintain quality control over existing
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CASps. Under current law, the fee is collected by local
jurisdictions, where 70% of the fee is kept at the local level
and 30% of the fee is remitted to the Disability Access and
Education revolving fund, which is administered by the Division
of the State Architect.
The fee is intended to assist local building departments in
reducing the costs of CASp testing and certification, and to
assist the Division of the State Architect in developing audit
procedures and "best practices." The current fee provision is
set to sunset in 2018. As proposed to be amended, the bill
removes the sunset for the $1 state fee.
ARGUMENTS IN SUPPORT: Disability Rights California supports AB
1342 and states:
The CCDA has been instrumental in collecting information about
disability access issues. Their reports provide an excellent
overview of the types of architectural access issues [that]
exist. Providing additional funding to continue their
research is critical as they develop and implement
recommendations as outlined in its strategic plan for
improving access across California.
Similar Pending legislation. AB 52 (Gray) - provides, among
other things, that the defendant's maximum liability for
statutory damages in a construction-related accessibility claim
against a place of public accommodation is $1,000 for each
offense if the defendant has corrected all construction-related
violations within 180 days of being served with the complaint.
This bill is currently in this Committee.
AB 54 (Olsen) - requires a plaintiff who has been denied access
to a public accommodation because of a construction-related
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accessibility violation of a standard which has changed in the
past three years to give notice to the defendant 60 days before
filing a complaint and an opportunity to cure the violation,
with no statutory damages payable to the plaintiff; and provides
a tax credit under the Personal Income Tax Law and the
Corporation Tax Law to any taxpayer who obtains a certified
access specialist inspection. This bill is currently in this
Committee.
AB 1230 (Gomez) - establishes, among other things, the
California Americans with Disabilities Act Small Business
Compliance Finance Act, which would provide loans, funded in
part by bond issuances, to assist small businesses finance the
costs of projects that alter or retrofit existing small business
facilities to comply with the federal American with Disabilities
Act. This bill is currently in Assembly Banking and Finance.
AB 1468 (Baker) -provides, among other things, that a public
entity's possession of a close out letter from the State
Architect certifying that the buildings, facilities, and other
places meet the applicable construction-related accessibility
standards of the federal Americans with Disabilities Act, serves
as presumptive evidence of compliance with the federal Americans
with Disabilities Act. This bill is currently in this
Committee.
SB 67 (Galgiani) - among other things, exempts a small business
from statutory damage liability in connection with a
construction-related accessibility claim and extends the period
for correcting construction-related violations that are the
basis of a claim from 60 days to 120 days of being served with
the complaint, for purposes of reducing a defendant's minimum
statutory damage liability to $1,000. This bill is currently in
Senate Judiciary.
SB 251 (Roth) - relating to civil rights and disability access,
is currently in Senate Rules.
REGISTERED SUPPORT / OPPOSITION:
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Support
Disability Rights California
Consumer Attorneys of California
California Business Properties Association
California Chamber of Commerce
California Building Industry Association
National Federation of Independent Business
American Institute of Architects California Council
Building Owners and Managers Association of California
Commercial Real Estate Development Association, NAIOP of
California
International Council of Shopping Centers
California Commission on Disability Access
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Opposition
None on file
Analysis Prepared by:Eric Dang and Alison Merrilees / JUD. /
(916) 319-2334