BILL ANALYSIS Ó SENATE JUDICIARY COMMITTEE Senator Hannah-Beth Jackson, Chair 2015-2016 Regular Session AB 1342 (Steinorth) Version: June 22, 2015 Hearing Date: July 14, 2015 Fiscal: Yes Urgency: No NR SUBJECT Disability access DESCRIPTION This bill would require applicants for certified access specialist (CASp) certification or renewal to provide to the State Architect information about the location where the applicant intends to provide services, and would require the State Architect to post that information to his or her Internet Web site. This bill would remove the sunset on the existing law requiring any applicant for a local business license to pay an additional fee of $1, of which 30 percent is deposited into the Disability Access and Education Revolving Fund. This bill, for every rental agreement executed on or after July 1, 2016, would require the commercial property owner to provide the tenant with a current disability access inspection certificate and inspection report, or a copy of a CASp inspection report, or would require a statement on the agreement that, upon request of the tenant, the property owner may permit a CASp inspection at the tenant's expense, as specified. This bill would additionally require the Commission on Disability Access 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 to make the Commission's educational materials and information available to other state agencies and local building departments. This bill would also AB 1342 (Steinorth) Page 2 of ? appropriate $120,000 from the General Fund to the Commission for the purpose of establishing two permanent outreach coordinator positions. BACKGROUND Since 1969, persons with disabilities have enjoyed protection under Civil Code Sections 54 and 54.1, which entitle individuals with disabilities and medical conditions to 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, California made a violation of the ADA also a violation of Section 54 or 54.1. The protections provided to disabled persons under California law are comparatively higher than those provided under the ADA and are 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 of every kind whatsoever. (Civil Code Sec. 51.) A violation of the ADA also constitutes a violation of Section 51. A violation of that section subjects a person to actual damages incurred by an injured party, plus treble actual damages, but in no event less than $4,000, and any attorney's fees as the court may determine to be proper. (Civil Code Sec. 52.) The California Commission on Disability Access (CCDA), established in 2008, is charged with promoting disability access in California through dialogue and collaboration with stakeholders including, but not limited to the disability and business community, and all levels of government. Accordingly, the CCDA is authorized to act as an information resource; to research and prepare advisory reports of findings to the Legislature on issues related to disability access, compliance inspections and continuing education; to increase coordination between stakeholders; to make recommendations to promote compliance with federal, and state laws and regulations; and to provide uniform information about programmatic and architectural disability access requirements to the stakeholders. Seeking to better achieve compliance with disability access AB 1342 (Steinorth) Page 3 of ? requirements in California, this bill would require specific disclosures to commercial tenants with regard to the compliance status of a rental property, would require certain information be publicly available, and would appropriate additional funds to the CCDA. CHANGES TO EXISTING LAW 1.Existing federal law , the Americans with Disabilities Act (ADA), provides that no individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation by any person who owns, leases, or leases to, or operates a place of public accommodation. (42 U.S.C. Sec. 12182.) Existing law , the Unruh Civil Rights Act, declares that 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 of every kind whatsoever. (Civ. Code Sec. 51 et seq.) Existing law provides that individuals with disabilities or medical conditions have the same right as the general public to the full and free use of the streets, highways, sidewalks, walkways, public buildings, medical facilities, including hospitals, clinics and physicians' offices, public facilities and other public places. It also provides that a violation of an individual's rights under the ADA constitutes a violation of state law. (Civ. Code Secs. 54, 54.1.) Existing law provides that a violation of the ADA also constitutes a violation of Sections 54 or 54.1, and entitles a prevailing party to recover reasonable attorney's fees. (Civ. Code Sec. 55.) Existing law establishes the California Commission on Disability Access (CCDA), an independent state agency composed of 17 members, to monitor disability access compliance in California, and make recommendations to the Legislature for necessary changes in order to facilitate implementation of state and federal laws on disability access. (Gov. Code Sec. 8299 et seq.) AB 1342 (Steinorth) Page 4 of ? This bill would appropriate $120,000 from the General Fund to the CCDA to establish a permanent legislative outreach coordinator position and a permanent educational outreach coordinator position. This bill would require the CCDA 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 to make the CCDA's educational materials and information available to other state agencies and local building departments. 2.Existing law requires the State Architect to establish the Certified Access Specialist Program (CASp) and develop the specified criteria to have a person qualify as a certified access specialist. (Gov. Code Sec. 4459.5; Civ. Code Sec. 55.52.) Existing law requires a local agency to employ or retain at least one building inspector who is a CASp, commencing on January 1, 2014, to employ or retain a sufficient number of building inspectors who are CASp to conduct inspections with respect to new construction. (Civ. Code Sec. 55.53(d).) Existing law , until December 31, 2018, requires any applicant for a local business license or equivalent instrument, to pay an additional fee of one dollar, of which 30 percent shall be transmitted to the Disability Access and Education Revolving Fund. Civ. Code Sec. 4467.) This bill would remove the sunset in the provision above. This bill would require applicants for CASp certification or renewal to additionally provide to the State Architect information about the city, county, or city and county in which the applicant intends to provide or has provided services, and would require the State Architect to post that information on his or her Internet Web site. 3.Existing law 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. (Civ. Code Sec. 1938.) AB 1342 (Steinorth) Page 5 of ? This bill would require a commercial property owner, for every lease or rental agreement executed on or after July 1, 2016, to provide the lessee or tenant with a current disability access inspection certificate and inspection report, or a copy of the CASp inspection report. This bill would require, if the subject premises have not been issued a current disability access inspection certificate, the property owner or lessor to include a statement on the rental agreement that, upon request of the lessee or tenant, the property owner may permit a CASp inspection of the subject premises at the lessee's or tenant's expense and that the parties must mutually agree on the time and manner of the inspection. COMMENT 1.Stated need for the bill According to the author: Formed by the Legislature in 2008, the California Commission for Disability Access (CCDA) is entrusted with a variety of responsibilities relating to disability access throughout California. The CCDA works to align the needs of the disabled community with the private sector, and provides a forum for dialogue between parties. However, the CCDA has not received funding increases in accordance with new responsibilities from the Legislature. AB 1342 takes an initial step to increase their funding so that they may begin hiring for new positions to pursue the goals outlined in their 5 Year Strategic Plan. Also, it was noted to us by the California Business Properties Association that there is an apparent lack of knowledge regarding the existence of CASp inspections. Among those who are aware of this service, it can be difficult to locate an inspector who is available to come to your property. Thus, AB 1342 takes steps such as requiring CASp inspectors to note their cities and counties of service so that this hurdle may be addressed. 2.Aiding commercial tenants in determining whether a property is compliant with accessibility laws In response to concerns that many commercial tenants do not know the compliance status of the property they rent or lease, SB AB 1342 (Steinorth) Page 6 of ? 1186 required commercial property owners to state on a lease form or rental agreement if the property had undergone inspection by a CASp. (Civ. Code Sec. 1938.) Further ensuring that commercial tenants are informed about the compliance status of leased properties, this bill would additionally require that if a property has had a CASp inspection and, to the best of the commercial property owner's knowledge, there have been no modifications since the date of the inspection, the property owner must provide the tenant with a copy of the report. Additionally, if the property does not have a current CASp inspection certificate, this bill would require the property owner to include the following disclosure on the lease or rental agreement: A Certified Access Specialist (CASp) can inspect the subject premises and determine whether the subject premises comply with all of the applicable construction-related accessibility standards under state law. Although state law does not require a CASp inspection of the subject premises, the commercial property owner or lessor may permit the lessee or tenant to obtain a CASp inspection of the subject premises for the occupancy or potential occupancy of the lessee or tenant, at the lessee's or tenant's expense, if requested by the lessee or tenant. The parties shall mutually agree on the arrangements for the time and manner of the CASp inspection. Thus, this bill would ensure that property owners have a duty to communicate the status of a property to tenants prior to the execution of a lease or rental agreement, and that commercial tenants have up-to-date information about whether a property is actually in compliance with access laws. However, as drafted, the bill requires only the above disclosure be included in a rental agreement. Accordingly, it would only be controlling for contracts executed after July 1, 2016. Thus, to ensure that the contents of the disclosure are applicable to all commercial properties, the author may wish to amend the bill to include information in the above disclosure in the statute as well. In addition, as drafted, the disclosure above would allow a property owner to prohibit a tenant from hiring a CASp inspector, which is arguably not the author's intent. The amendment below would instead not allow the property owner to prohibit a tenant from hiring a CASp. The tenant, however, would still be required to coordinate with the property owner as to the time and manner of the inspection. AB 1342 (Steinorth) Page 7 of ? Suggested amendment: (d) If the subject premises have not been issued a current disability access inspection certificate, the commercial property owner or lessor shall state the following on the lease form or rental agreement: "A Certified Access Specialist (CASp) can inspect the subject premises and determine whether the subject premises comply with all of the applicable construction-related accessibility standards under state law. Although state law does not require a CASp inspection of the subject premises, the commercial property owner or lessor may not prohibitpermitthe lessee or tenant from obtainingto obtaina CASp inspection of the subject premises for the occupancy or potential occupancy of the lessee or tenant, at the lessee's or tenant's expense, if requested by the lessee or tenant. The parties shall mutually agree on the arrangements for the time and manner of the CASp inspection." 3.Funding for education on access compliance The mission of the California Commission on Disability Access (CCDA) is to promote access in California through collaboration with stakeholders, and is thus authorized to act as an information resource, prepare advisory reports for the Legislature, and make recommendations to promote compliance with federal and state laws. The CCDA, in part, is funded by business license applications. Until December 31, 2018, business license applicants are required to pay an additional dollar for a license, of which 30 percent goes to the Disability Access and Education Revolving Fund. This bill would remove that sunset date and additionally appropriate $120,000 from the General Fund to the CCDA for the purpose of establishing two permanent outreach coordinator positions. CCDA writes that "staffing CCDA with additional resources will position us with the suitable means to react and educate our state on how it can become accessible and barrier free for all of its residents. It will also produce savings for the State of California by identifying models of success that lead to Americans with Disabilities Act (ADA) compliance and promotes the CCDA vision of an accessible, barrier free California, which equals inclusive, and equal opportunities and participation for all Californians." AB 1342 (Steinorth) Page 8 of ? In support, Disability Rights California writes, "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 this strategic plan for improving access across California." 4.Continued education, community outreach, and data collection This bill contains a number of provisions to increase compliance with accessibility laws in the state through education and strengthening of existing programs. Specifically, this bill would require applicants for CASp certification or renewal to provide the State Architect with information about where that person plans to practice, and would require the State Architect to post that information on its Internet Web site. This bill would also require the California Commission on Disability Access (CCDA) to link its Internet Web site to the State Architect's CASp certification program, and make the CCDA's educational materials and information available to other state agencies and local building departments. These requirements are a natural extension of many of the data collection and education requirements under SB 1186 which have proven to be helpful in educating the community about access laws. In support, CCDA writes, "the recognition of the lack of sufficient resource allocations required for CCDA to accomplish its legislative mandates is appropriately observed. We believe AB 1342 properly establishes the vehicle to ensure that CCDA will be able to do its work." Support : American Institute of Architects California Council; Building Owners and Managers Association of California; California Building Industry Association; California Business Properties Association; California Chamber of Commerce; California Commission on Disability Access; Commercial Real Estate Development Association; NAIOP of California; Consumer Attorneys of California; Disability Rights California; International Council of Shopping Centers; National Federation of Independent Businesses Opposition : None Known AB 1342 (Steinorth) Page 9 of ? HISTORY Source : Author Related Pending Legislation : AB 52 (Gray, 2015) would provide 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 the Assembly Judiciary Committee. AB 54 (Olsen, 2015) would include any amount paid or incurred by a taxpayer to receive an inspection by a CASp as an eligible access expenditure for the Personal Income Tax Law and the Corporation Tax Law which allows a credit to eligible small businesses for 50 percent of eligible access expenditures. This bill is currently in the Assembly Revenue and Taxation Committee. AB 1230 (Gomez, 2015) would establish the California Americans with Disabilities Act Small Business Compliance Finance Act to provide loans 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 the Assembly Appropriations Committee. AB 1521 (Judiciary, 2015) would provide additional information and legal resources to small business owners who may not realize how to minimize their liability for ADA violations or respond to a lawsuit filed against them. This bill is currently in the Senate Judiciary Committee. AB 1468 (Baker, 2014) would provide 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 the Assembly Judiciary Committee. AB 1342 (Steinorth) Page 10 of ? SB 67 (Galgiani) would limit recovery against a small business for construction-related accessibility claims to injunctive relief and reasonable attorney's fees, and would allow businesses who have undergone a CASp inspection 120 days to correct violations in order to qualify for reduced statutory minimum damages. This bill is currently in the Senate Judiciary Committee. SB 251 (Roth) would provide that a business is not liable for violating a construction-related accessibility standard if the business is inspected by a CASp and the violation is corrected within 90 days of receiving the CASp inspection report, and would also provide that businesses are not liable for specified violations if corrected within 15 days, as specified. This bill is currently in the Assembly Judiciary Committee. Prior Legislation : SB 1186 (Steinberg and Dutton, Chapter 383, Statutes of 2012) reduced statutory damages and provided litigation protections for specified defendants who timely correct construction-related accessibility violations of the Unruh Civil Rights Act. That bill also banned prelitigation "demands for money" and created rules for demand letters and complaints in claims involving construction-related accessibility violations. AB 2282 (Berryhill, 2012) would have authorized an aggrieved person to bring a disability access suit only if: (1) the person has suffered an injury in fact; (2) the injury in fact was caused by the violation; and (3) the violation is redressable, was held under submission in the Senate Appropriations Committee. AB 1878 (Gaines, 2011) which was substantially similar to SB 1163, but applied to "microbusinesses," defined by the bill, failed passage in the Assembly Judiciary Committee. SB 1163 (Walters, 2012) would have established notice requirements for an aggrieved party to follow before he or she can bring a disability access suit and give the business owner a 120-day time period to remedy the violation. If the property owner cures the violation, the aggrieved party cannot receive any damages or attorney's fees, except for special damages. This bill failed passage in this Committee. AB 1342 (Steinorth) Page 11 of ? SB 783 (Dutton, 2011), which was identical to SB 1163, failed passage in this Committee. SB 384 (Evans, Ch. 419, Stats. 2011) clarified that attorneys who file complaints or send demand letters related to disability access violations must provide a written notice of legal rights and obligations whether or not the attorney intends to file an action in state or federal court. SB 209 (Corbett & Harman, Ch. 569, Stats. 2009) required a CASp inspection report, to remain confidential rather than be under seal and subject to protective order. SB 1608 (Corbett et al., Ch. 549, Stats. 2008) enacted the CCDA and various other reforms intended to increase voluntary compliance with longstanding state and federal laws requiring access to the disabled in any place of public accommodation. SB 1766 (McClintock, 2008) would have required a person with a disability, prior to filing a complaint to first notify the owner or manager of a housing or public accommodation of the violations and to wait 6 months before commencing a lawsuit. This bill failed passage in the Senate Judiciary Committee. AB 2533 (Keene, 2008) would have required pre-litigation procedures for a plaintiff to undertake prior to the filing of a complaint, including notice to the owner of the property or business of the alleged violations and a specified time period for the owner or business to cure the violations. This bill failed passage in the Assembly Judiciary Committee. SB 855 (Poochigian, 2005) would have required pre-litigation procedures for a plaintiff to undertake prior to the filing of a complaint, including notice to the owner of the property or business of the alleged violations and a specified time period for the owner or business to cure the violations. This bill failed passage in the Senate Judiciary Committee. Prior Vote : Senate Governmental Organization Committee (Ayes 12, Noes 0) Assembly Floor (Ayes 78, Noes 0) Assembly Appropriations Committee (Ayes 17, Noes 0) Assembly Judiciary Committee (Ayes 10, Noes 0) AB 1342 (Steinorth) Page 12 of ? **************