BILL ANALYSIS                                                                                                                                                                                                    



                                                                    AB 1342


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          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.


           ----------------------------------------------------------------- 
          |    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      |
          |          |          |          |          |          |          |
          |          |          |          |          |          |          |
           ----------------------------------------------------------------- 
                                                       (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