BILL ANALYSIS                                                                                                                                                                                                    





                             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  








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          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  







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          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.)







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            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.)








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             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  







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          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. 







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           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 prohibit   permit  the lessee or  
            tenant  from obtaining   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."
             
          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."







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          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







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                                        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.







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          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.  







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          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)







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