The Construction-Related Accessibility Standards Compliance Act establishes standards for making new construction and existing facilities accessible to persons with disabilities, including inspections by private persons or building inspectors who are certified access specialists (CASps), and provides for construction-related accessibility claims for violations of those standards. That act requires a local agency, commencing January 1, 2014, to employ or retain a sufficient number of building inspectors who are CASps to conduct permitting and plan check services to review for compliance with state construction-related accessibility standards by a place of public accommodation with respect to new construction. The act requires, if a local agency employs or retains 2 or more CASps, that at least half one-half of the CASps be building inspectors who are CASps.

This bill would require, commencing January 1, 2021, that all building inspectors employed or retained by a local agency who conduct permitting and plan check services to review for compliance with state construction-related accessibility standards by a place of public accommodation with respect to new construction or renovations, including, but not limited to, projects relating to tenant improvements that may impact access, be CASps. The bill would also require all new employees employed or retained by a local agency on or after January 1, 2018, and who will conduct permitting and plan check services to review for compliance with state construction-related accessibility standards by a place of public accommodation, to be CASps within 24 36 months of their initial date of employment. By adding to the duties of a local entity, this bill would impose a state-mandated local program.

Existing law requires the State Architect to establish a program for voluntary certification by the state of any person who meets specified criteria as a CASp with respect to access to buildings for persons with disabilities and to determine minimum criteria for certification.

This bill would require the State Architect, on or before January 1, 2018, to commence testing and certification of building inspectors as CASps, as specified.

Until December 31, 2018, existing law requires any applicant for a local business license or equivalent instrument or permit, or renewal of a local business license or equivalent instrument or permit, to pay an additional state fee of $1 for that license, instrument, or permit. Under existing law, the city, county, or city and county that collected the fee retains 70% of the fee, and the remaining 30% of the fee is deposited into the Disability Access and Education Revolving Fund, a continuously appropriated fund.

This bill, from January 1, 2017, through December 31, 2019, would increase that state fee to $4 and would require any applicant for a building permit in a city, county, or city and county that does not issue business licenses or an equivalent instrument or permit to pay an additional fee of $4 for that building permit. Beginning January 1, 2020, those fees would be reduced to $1. The bill, from January 1, 2017, through December 31, 2019, would increase the percentage of the fee retained by a local agency to 90% and the remaining 10% would be deposited into the Disability Access and Education Revolving Fund. Beginning January 1, 2020, those percentages would revert to 70% and 30%, respectively. By increasing revenue to a continuously appropriated fund, increasing the fee, extending the period of time during which the fee will be collected, and imposing an additional fee, this bill would make an appropriation. The bill would make an appropriation by authorizing local government entities to retain an increased percentage of the increased fee. The bill would require that the moneys retained by a local agency be placed in a special fund established by the local agency, to be known as the CASp Certification and Training Fund. The bill would require that fees collected in a CASp Certification and Training Fund be used for increased certified access specialist training and certification in the local jurisdiction, thereby making an appropriation by expanding the purposes for which the retained fee moneys are required to be spent.

The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.

This bill would provide that, if the Commission on State Mandates determines that the bill contains costs mandated by the state, reimbursement for those costs shall be made pursuant to these statutory provisions.

The Construction-Related Accessibility Standards Compliance Act establishes standards for making new construction and existing facilities accessible to persons with disabilities, including inspections by private persons or building inspectors who are certified access specialists (CASps), and provides for construction-related accessibility claims for violations of those standards. That act requires a local agency, commencing January 1, 2014, to employ or retain a sufficient number of building inspectors who are CASps to conduct permitting and plan check services to review for compliance with state construction-related accessibility standards by a place of public accommodation with respect to new construction. The act requires, if a local agency employs or retains 2 or more CASps, that at least half of the CASps be building inspectors who are CASps.

This bill would require, commencing January 1, 2021, that all building inspectors employed or retained by a local agency who conduct permitting and plan check services to review for compliance with state construction-related accessibility standards by a place of public accommodation with respect to new construction or renovations, including, but not limited to, projects relating to tenant improvements that may impact access, be CASps. The bill would also require all new employees employed or retained by a local agency on or after January 1, 2018, and who will conduct permitting and plan check services to review for compliance with state construction-related accessibility standards by a place of public accommodation, to be certified access specialists CASps within 24 months of their initial date of employment. By adding to the duties of a local entity, this bill would impose a state-mandated local program.

Existing law requires the State Architect to establish a program for voluntary certification by the state of any person who meets specified criteria as a CASp with respect to access to buildings for persons with disabilities and to determine minimum criteria for certification.

This bill would require the minimum criteria to include familiarity with the applicability and content of various accessibility requirements, including but not limited to specific federal and state requirements. The bill would require the State Architect, on or before January 1, 2018, to commence testing and certification of building inspectors as certified access specialists, CASps, as specified.

Until December 31, 2018, existing law requires any applicant for a local business license or equivalent instrument or permit, or renewal of a local business license or equivalent instrument or permit, to pay an additional state fee of $1 for that license, instrument, or permit. Under existing law, the city, county, or city and county that collected the fee retains 70% of the fee, and the remaining 30% of the fee is deposited into the Disability Access and Education Revolving Fund, a continuously appropriated fund.

This bill bill, from January 1, 2017, through December 31, 2019, would increase that state fee to $4 from January 1, 2017, through December 31, 2019. The bill would also and would require any applicant for a building permit in a city, county, or city and county that does not issue business licenses or an equivalent instrument or permit to pay an additional fee of $4 for that building permit from January 1, 2017, through December 31, 2019. permit. Beginning January 1, 2020, those fees would be reduced to $1. The bill bill, from January 1, 2017, through December 31, 2019, would increase the percentage of the fee retained by a local agency to 90% and the remaining 10% would be deposited into the Disability Access and Education Revolving Fund. Beginning January 1, 2020, those percentages would revert to 70% and 30%, respectively. By increasing revenue to a continuously appropriated fund, increasing the fee, extending the period of time during which the fee will be collected, and imposing an additional fee, this bill would make an appropriation. The bill would make an appropriation by authorizing local government entities to retain an increased percentage of the increased fee. The bill would require that the moneys retained by a local agency be placed in a special fund established by the local agency, to be known as the CASp Certification and Training Fund. The bill would require that fees collected in a CASp Certification and Training Fund be used for increased certified access specialist training and certification in the local jurisdiction, thereby making an appropriation by expanding the purposes for which the retained fee moneys are required to be spent.

The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.

This bill would provide that, if the Commission on State Mandates determines that the bill contains costs mandated by the state, reimbursement for those costs shall be made pursuant to these statutory provisions.

The Construction-Related Accessibility Standards Compliance Act establishes standards for making new construction and existing facilities accessible to persons with disabilities, including inspections by private persons or building inspectors who are certified access specialists (CASps), and provides for construction-related accessibility claims for violations of those standards. That act requires a local agency, commencing January 1, 2014, to employ or retain a sufficient number of building inspectors who are CASps to conduct permitting and plan check services to review for compliance with state construction-related accessibility standards by a place of public accommodation with respect to new construction. The act requires, if a local agency employs or retains 2 or more CASps, that at least half of the CASps be building inspectors who are CASps.

This bill would require, commencing January 1, 2020, 2021, that all building inspectors employed or retained by a local agency who conduct permitting and plan check services to review for compliance with state construction-related accessibility standards by a place of public accommodation with respect to new construction or renovations, including, but not limited to, projects relating to tenant improvements that may impact access, be CASps. The bill would also require all new employees employed or retained by a local agency on or after January 1, 2018, and who will conduct permitting and plan check services to review for compliance with state construction-related accessibility standards by a place of public accommodation, to be certified access specialists within 24 months of their initial date of employment. By adding to the duties of a local entity, this bill would impose a state-mandated local program.

Existing law requires the State Architect to establish a program for voluntary certification by the state of any person who meets specified criteria as a CASp with respect to access to buildings for persons with disabilities and to determine minimum criteria for certification.

This bill would require the minimum criteria to include familiarity with the applicability and content of various accessibility requirements, including but not limited to specific federal and state requirements. The bill would require the State Architect, on or before January 1, 2018, to commence testing and certification of building inspectors as certified access specialists, as specified.

Until December 31, 2018, existing law requires any applicant for a local business license or equivalent instrument or permit, or renewal of a local business license or equivalent instrument or permit, to pay an additional state fee of $1 for that license, instrument, or permit. Under existing law, the city, county, or city and county that collected the fee retains 70% of the fee, and the remaining 30% of the fee is deposited into the Disability Access and Education Revolving Fund, a continuously appropriated fund.

This bill would increase that state fee to $4 from January 1, 2017, through December 31, 2019. The bill would also require any applicant for a building permit in a city, county, or city and county that does not issue business licenses or an equivalent instrument or permit to pay an additional fee of $4 for that building permit from January 1, 2017, through December 31, 2019. The bill would increase the percentage of the fee retained by a local agency to 90% and the remaining 10% would be deposited into the Disability Access and Education Revolving Fund. By increasing revenue to a continuously appropriated fund, by increasing the fee and by extending the fee indefinitely, fee, extending the period of time during which the fee will be collected, and imposing an additional fee, this bill would make an appropriation. The bill would make an appropriation by authorizing local government entities to retain an increased percentage of the increased fee. The bill would require that the moneys retained by a local agency be placed in a special fund established by the local agency, to be known as the CASp Certification and Training Fund. The bill would require that fees collected in a CASp Certification and Training Fund be used for increased certified access specialist training and certification in the local jurisdiction, thereby making an appropriation by expanding the purposes for which the retained fee moneys are required to be spent.

The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.

This bill would provide that, if the Commission on State Mandates determines that the bill contains costs mandated by the state, reimbursement for those costs shall be made pursuant to these statutory provisions.

The Construction-Related Accessibility Standards Compliance Act establishes standards for making new construction and existing facilities accessible to persons with disabilities, including inspections by private persons or building inspectors who are certified access specialists (CASps), and provides for construction-related accessibility claims for violations of those standards. That act requires a local agency, commencing January 1, 2014, to employ or retain a sufficient number of building inspectors who are CASps to conduct permitting and plan check services to review for compliance with state construction-related accessibility standards by a place of public accommodation with respect to new construction. The act requires, if a local agency employs or retains 2 or more CASps, that at least half of the CASps be building inspectors who are CASps.

This bill would require, commencing January 1, 2018, 2020, that all building inspectors employed or retained by a local agency who conduct permitting and plan check services to review for compliance with state construction-related accessibility standards by a place of public accommodation with respect to new construction, construction or renovations, including, but not limited to, projects relating to tenant improvements that may impact access, be CASps. By adding to the duties of a local entity, this bill would impose a state-mandated local program.

Existing law requires the State Architect to establish a program for voluntary certification by the state of any person who meets specified criteria as a CASp with respect to access to buildings for persons with disabilities and to determine minimum criteria for certification.

This bill would require the minimum criteria to include familiarity with the applicability and content of various accessibility requirements, including but not limited to specific federal and state requirements.

Until December 31, 2018, existing law requires any applicant for a local business license or equivalent instrument or permit, or renewal of a local business license or equivalent instrument or permit, to pay an additional state fee of $1 for that license, instrument, or permit. Under existing law, the city, county, or city and county that collected the fee retains 70% of the fee, and the remaining 30% of the fee is deposited into the Disability Access and Education Revolving Fund, a continuously appropriated fund.

This bill would increase that state fee from $1 to $4 and would delete the December 31, 2018, termination date. from January 1, 2017, through December 31, 2019. The bill would increase the percentage of the fee retained by a local agency to 90% and the remaining 10% would be deposited into the Disability Access and Education Revolving Fund. By increasing revenue to a continuously appropriated fund, by increasing the fee and by extending the fee indefinitely, this bill would make an appropriation. The bill would make an appropriation by authorizing local government entities to retain an increased percentage of the increased fee. The bill would require that the moneys retained by a local agency be placed in a special fund established by the local agency, to be known as the CASp Certification and Training Fund. The bill would require that fees collected in a CASp Certification and Training Fund be used for increased certified access specialist training and certification in the local jurisdiction, making an appropriation by expanding the purposes for which the retained fee moneys are required to be spent.

The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.

This bill would provide that, if the Commission on State Mandates determines that the bill contains costs mandated by the state, reimbursement for those costs shall be made pursuant to these statutory provisions.

The Construction-Related Accessibility Standards Compliance Act establishes standards for making new construction and existing facilities accessible to persons with disabilities, including inspections by private persons or building inspectors who are certified access specialists (CASps), and provides for construction-related accessibility claims for violations of those standards. That act requires a local agency, commencing January 1, 2014, to employ or retain a sufficient number of building inspectors who are CASps to conduct permitting and plan check services to review for compliance with state construction-related accessibility standards by a place of public accommodation with respect to new construction. The act requires, if a local agency employs or retains 2 or more CASps, that at least half of the certified access specialists CASps be building inspectors who are CASps.

This bill would require, commencing January 1, 2017, 2018, that all building inspectors employed or retained by a local agency who conduct permitting and plan check services to review for compliance with state construction-related accessibility standards by a place of public accommodation with respect to new construction, including, but not limited to, projects relating to tenant improvements that may impact access, be certified access specialists. CASps. By adding to the duties of a local entity, this bill would impose a state-mandated local program.

Existing law requires the State Architect to establish a program for voluntary certification by the state of any person who meets specified criteria as a certified access specialist CASp with respect to access to buildings for persons with disabilities and to determine minimum criteria for certification.

This bill would require the minimum criteria to include familiarity with the applicability and content of various accessibility requirements, including but not limited to, to specific federal and state requirements.

Until December 31, 2018, existing law requires any applicant for a local business license or equivalent instrument or permit, or renewal of a local business license or equivalent instrument or permit, to pay an additional state fee of $1 for that license, instrument, or permit. Under existing law, the city, county, or city and county that collected the fee retains 70% of the fee, and the remaining 30% of the fee is deposited into the Disability Access and Education Revolving Fund, a continuously appropriated fund.

This bill would increase that state fee from $1 to $4 and would delete the December 31, 2018, termination date. The bill would increase the percentage of the fee retained by a local agency to 90% and the remaining 10% would be deposited into the Disability Access and Education Revolving Fund. By increasing revenue to a continuously appropriated fund, by increasing the fee and by extending the fee indefinitely, this bill would make an appropriation. The bill would make an appropriation by authorizing local government entities to retain an increased percentage of the increased fee. The bill would require that the moneys retained by a local agency be placed in a special fund established by the local agency, to be known as the CASp Certification and Training Fund. The bill would require that fees collected in a CASp Certification and Training Fund be used for increased certified access specialist training and certification in the local jurisdiction. jurisdiction, making an appropriation by expanding the purposes for which the retained fee moneys are required to be spent.

The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.

This bill would provide that, if the Commission on State Mandates determines that the bill contains costs mandated by the state, reimbursement for those costs shall be made pursuant to these statutory provisions.

Existing law requires the State Architect to establish a program for voluntary certification by the state of any person who meets specified criteria as a certified access specialist with respect to access to buildings for persons with disabilities. Existing law authorizes the State Architect to implement the program with startup funds derived, as a loan, from the reserve of the Public School Planning, Design, and Construction Review Revolving Fund, upon appropriation by the Legislature, to be repaid as specified. disabilities and to determine minimum criteria for certification.

This bill would make a nonsubstantive change to those provisions. require the minimum criteria to include familiarity with the applicability and content of various accessibility requirements, including but not limited to, specific federal and state requirements.

Existing law requires the State Architect to establish a program for voluntary certification by the state of any person who meets specified criteria as a certified access specialist with respect to access to buildings for persons with disabilities. Existing law authorizes the State Architect to implement the program with startup funds derived, as a loan, from the reserve of the Public School Planning, Design, and Construction Review Revolving Fund, upon appropriation by the Legislature, to be repaid as specified.

This bill would make a nonsubstantive change to those provisions.

 THIRD READING  

Bill No: AB 2873

Author:

:

Vote:

SENATE JUDICIARY COMMITTEE: 5-2, 6/21/16

AYES: Jackson, Hertzberg, Leno, Monning, Wieckowski

NOES: Moorlach, Anderson

SENATE APPROPRIATIONS COMMITTEE: 5-2, 8/11/16

AYES: Lara, Beall, Hill, McGuire, Mendoza

NOES: Bates, Nielsen

ASSEMBLY FLOOR: 60-14, 6/2/16 - See last page for vote

SUBJECT:

SOURCE: Disability Rights California

DIGEST: This bill, commencing January 1, 2020, requires that all building inspectors employed by a local agency who review for compliance with state construction-related accessibility standards be Certified Access Specialists, as specified. This bill also increases the fee, from January 1, 2017 through December 31, 2019, attached to an application for a local business license from $1 to $4. By removing an existing sunset, commencing January 1, 2020, this bill extends the $1 fee indefinitely. This bill makes other conforming changes.

Senate Floor Amendments of 8/19/16 extends, from 24 months to 36 months, the amount of time newly hired employees of local agencies that conduct permitting and plan check services have to become Certified Access Specialists.

ANALYSIS:

Existing law:

1. Provides, in the Americans with Disabilities Act (ADA), 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.)
2. Declares, in the Unruh Civil Rights Act, 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, and entitles persons to $4,000 minimum statutory damages for violations of Unruh. (Civ. Code Sec. 51 et seq.)
3. 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.)
4. 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.)
5. 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.)
6. Reduces a defendant’s minimum liability for statutory damages in a construction-related accessibility claim against a place of public accommodation to $1,000 for each unintentional offense if the defendant has had a CASp inspection, or occupies a building constructed after 2008, and corrected all construction-related violations that are the basis of the claim within 60 days of being served with the complaint. (Civ. Code Sec. 55.56(f)(1).)
7. Provides that upon being served with a complaint asserting a construction-related accessibility claim, a defendant may move for a 90-day stay and early evaluation conference if the defendant is:

• until January 1, 2018, a defendant whose site was constructed after January 1, 2008 and approved pursuant to the local building permit and inspection process and the defendant declares that all violations have been corrected, or will be corrected within 60 days of being served the complaint;
• a defendant whose site had new construction or improvement that was approved by a local public building department inspector who is a CASp and the defendant declares that all violations have been corrected, or will be corrected within 60 days of being served the complaint; or
• a defendant who is a small business, as described, and the process and the defendant declares that all violations have been corrected, or will be corrected within 30 days of being served the complaint. (Civ. Code Sec. 55.54.)

1. 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).)

This bill:

1. Requires, commencing January 1, 2021, all building inspectors employed or retained by a local agency who conduct permitting and plan check services to review for compliance with state construction-related accessibility standards by a place of public accommodation with respect to new construction or renovation to be certified access specialists (CASps), as specified.
2. Requires all new employees employed or retained by a local agency on or after January 1, 2018, who will conduct permitting and plan check services to review for compliance with state construction-related accessibility standards by a place of public accommodation to be CASps within 36 months of their initial date of employment.
3. Increases, commencing January 1, 2017, the existing $1 fee attached to an application for a local business license to $4, and extends the current sunset on the fee authority for one year to December 31, 2019. Reduces the proportion of fee revenue to the Division of the State Architect (DSA) from 30 percent to 10 percent of collections.
4. Requires, from January 1, 2017, through December 31, 2019, in any city, county, or city and county that does not issue business licenses, any applicant for a building permit to pay an additional fee of $4 for that permit, as specified.

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 ADA in 1990, the state made a violation of the ADA also a violation of Section 54 or 54.1. The state protections provided to disabled persons 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. (Civ.l Code Sec. 51.) A violation of the ADA also constitutes a violation of Section 51.

In 2003 and 2005, several bills were introduced after multiple lawsuits were filed in state court by a few plaintiffs and attorneys against business owners and operators for allegedly technical violations of the state’s access or ADA regulations. (SB 69 (Oller, 2003), AB 209 (Leslie, 2003), AB 20 (Leslie, 2005), SB 855 (Poochigian, 2005).) Three of those bills would have required a plaintiff to undertake pre-litigation steps prior to the filing of a complaint, including providing notice to the owner of the property or business of the alleged violations, and provided a specified time period for the owner or business to cure the violations. One bill, (AB 20, Leslie, 2005) would have precluded an action for damages for a de minimus violation, allowing only injunctive relief and attorney’s fees. All of those bills failed passage in the Judiciary Committees of their respective houses. In 2008, two bills were introduced relating to disability access. AB 2533 (Keene, 2008) and SB 1766 (McClintock, 2008) would have both imposed pre-litigation hurdles on plaintiffs claiming violations of construction-related disability access laws. Both of these bills failed in the Judiciary Committees of their respective houses. In 2011, SB 783 (Dutton, 2011) would have established notice requirements for an aggrieved party to follow before he or she can bring a disability access suit and given the business owner a 120-day time period to remedy the violation. That bill failed passage in the Senate Judiciary Committee.

Alternatively, SB 1608 (Corbett et al., Chapter 549, Statutes of 2008), which took effect January 1, 2009, did not create any pre-litigation hurdles for a person with a disability but instead, among other things, provided for an early evaluation of a filed complaint if the defendant is a qualified defendant who had the identified place of public accommodation inspected and determined to meet applicable physical access standards by a state Certified Access Specialist (CASp) prior to the filing of the complaint. In 2012, Senators Steinberg and Dutton authored SB 1186 (Chapter 383, Statutes of 2012) which sought to comprehensively address continued issues with disability litigation.

Last year a number of bills were introduced to further combat perceived issues with disability litigation. AB 1521 (Committee on Judiciary, Chapter 755, Statutes of 2015) created a new class of plaintiff, a “high frequency litigant,” upon which it imposed additional costs and procedural burdens. Two bills, one which created a tax credit for certain access expenditures to businesses, and the other that would have provided funding to the Commission on Disability Access, were vetoed by Governor Brown who stated that such legislation is more appropriately considered in the annual budget process (SB 251 (Roth) and AB 1342 (Steinorth).

This bill, seeking to ensure consistency in local building inspections and increase the availability of CASp inspectors, requires that all inspectors employed by a local agency are CASps, and makes other conforming changes.

FISCAL EFFECT: Appropriation: Fiscal Com.: Local:

According to the Senate Appropriations Committee:

• CASp mandate: Potential major increase in future ongoing local agency costs in the millions of dollars related to the imposition of CASp certification for all applicable building inspectors and new/retained employees within specified timeframes, potentially state-reimbursable if not fully covered by the short-term fee increase and the ongoing fee authority. To the extent the bill creates a higher level of service on local agencies due to mandating CASp-certification for all building inspectors and new/retained employees, local agencies could claim reimbursement for those increased costs not covered by fees. At an average cost of $4,500 for CASp certification, certification costs for every 1,000 new CASps would cost $4.5 million. These costs do not reflect the larger impact associated with ongoing compensation for more highly trained personnel.
• State fee revenue: Short-term net increase in fee revenues of about $200,000 (Special Fund*) to the DSA through 2019, due to the fee increase from $1 to $4 on business license applications which is partially offset by the reduced proportion (from 30 percent to 10 percent) of fee revenue to DSA. The amount of fee revenue generated by the new $4 fee imposed on building permits in local jurisdictions that do not issue business licenses is unknown, but not anticipated to be significant.
• Local fee revenue: Short-term net increase in fee revenues (Local Funds) of $6 million through 2019 due to the fee increase from $1 to $4 on business license applications and the increased share from 70 percent to 90 percent of total fees collected. Additional fee revenues due to the new $4 fee imposed on building permits of an unknown, but potentially significant amount.
• DSA administrative costs: One-time costs ranging from $750,000 to $1 million (Special Fund**) to (1) upgrade its existing database system to accommodate the significant expansion of the program, and, (2) revise and transition the CASp exam to an electronic-based format. Additionally, ongoing resource costs of $230,000 (Special Fund**) to manage administration of the examination and certification renewals for the larger program. The current fees for CASp examinations and renewals are estimated to maintain cost-neutrality for the ongoing costs of the program.

*Disability Access and Education Revolving Fund

**Certified Access Specialist (CASp) Fund – staff notes the CASp Fund has experienced a slowly growing reserve balance over the past three years, with a projected balance of $1.7 million ending FY 2016-17, due to the CASp program operating on a largely cost-neutral basis. However, the potentially significant expansion of the program will likely necessitate budget authority to invest additional funds on a one-time basis to accommodate the changes needed to address the influx of applicants necessitated by the mandate for CASp certification.

SUPPORT: (Verified 8/19/16)

Disability Rights California (source)

Consumer Attorneys of California

Autism Society of Los Angeles

ARC of California

California Association of Public Authorities for IHSS

Californians for Disability Rights, Inc.

California Foundation for Independent Living Centers

California Respite Association

California Supported Living Network

Disability Rights Education and Defense Fund

Special Needs Network

United Cerebral Palsy California

Western Center on Law and Poverty

OPPOSITION: (Verified 8/19/16)

California Building Officials

ARGUMENTS IN SUPPORT: The Consumer Attorneys of California, in support, write:

It doesn’t make any sense, for neither the business nor those who want or need to access a building that a building inspector can sign off on a business inspection when the inspector doesn’t know the legal requirements for accessibility standards. AB 2873 is a step in the right direction to ensure that businesses can comply with the law and that all can enter those businesses, regardless of disability.

ARGUMENTS IN OPPOSITION: The California Building Officials writes:

Despite the recent amendments, the bill, as amended, will place cities and counties out of compliance with the law in 2020 when the bill is to go into effect. The CASp certification process is cost prohibitive (upwards of $1,600 per test, typically reimbursed only once passed), the test has a low passage rate (28%, taking individuals on average three attempts to pass) and currently, there are few incentives for individuals to become certified.

ASSEMBLY FLOOR: 60-14, 6/2/16

AYES: Alejo, Arambula, Atkins, Baker, Bloom, Bonilla, Bonta, Brown, Burke, Calderon, Campos, Chau, Chiu, Chu, Cooley, Cooper, Dababneh, Daly, Dodd, Eggman, Cristina Garcia, Eduardo Garcia, Gatto, Gipson, Gomez, Gonzalez, Gordon, Gray, Grove, Roger Hernández, Holden, Irwin, Jones-Sawyer, Kim, Lackey, Levine, Linder, Lopez, Low, Maienschein, McCarty, Medina, Mullin, Nazarian, O'Donnell, Olsen, Quirk, Ridley-Thomas, Rodriguez, Salas, Santiago, Mark Stone, Thurmond, Ting, Wagner, Weber, Wilk, Williams, Wood, Rendon

NOES: Achadjian, Travis Allen, Brough, Chang, Chávez, Dahle, Gallagher, Harper, Jones, Mathis, Melendez, Obernolte, Patterson, Waldron

NO VOTE RECORDED: Bigelow, Frazier, Beth Gaines, Hadley, Mayes, Steinorth

Prepared by: Nichole Rapier / JUD. / (916) 651-4113

8/23/16 10:01:55

**** END ****

 THIRD READING  

Bill No: AB 2873

Author:

:

Vote:

SENATE JUDICIARY COMMITTEE: 5-2, 6/21/16

AYES: Jackson, Hertzberg, Leno, Monning, Wieckowski

NOES: Moorlach, Anderson

SENATE APPROPRIATIONS COMMITTEE: 5-2, 8/11/16

AYES: Lara, Beall, Hill, McGuire, Mendoza

NOES: Bates, Nielsen

SENATE FLOOR: 26-13, 8/23/16 (FAIL)

AYES: Allen, Beall, Block, De León, Galgiani, Glazer, Hall, Hancock, Hernandez, Hertzberg, Hill, Hueso, Jackson, Lara, Leno, Leyva, Liu, McGuire, Mendoza, Mitchell, Monning, Pan, Pavley, Roth, Wieckowski, Wolk

NOES: Anderson, Bates, Berryhill, Cannella, Fuller, Gaines, Huff, Moorlach, Morrell, Nguyen, Nielsen, Stone, Vidak

ASSEMBLY FLOOR: 60-14, 6/2/16 - See last page for vote

SUBJECT:

SOURCE: Disability Rights California

DIGEST: This bill, commencing January 1, 2020, requires that all building inspectors employed by a local agency who review for compliance with state construction-related accessibility standards be Certified Access Specialists, as specified. This bill also increases the fee, from January 1, 2017 through December 31, 2019, attached to an application for a local business license from $1 to $4. By removing an existing sunset, commencing January 1, 2020, this bill extends the $1 fee indefinitely. This bill makes other conforming changes.

Senate Floor Amendments of 8/19/16 extend, from 24 months to 36 months, the amount of time newly hired employees of local agencies that conduct permitting and plan check services have to become Certified Access Specialists.

ANALYSIS:

Existing law:

1. Provides, in the Americans with Disabilities Act (ADA), 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.)
2. Declares, in the Unruh Civil Rights Act, 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, and entitles persons to $4,000 minimum statutory damages for violations of Unruh. (Civ. Code Sec. 51 et seq.)
3. 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.)
4. 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.)
5. 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.)
6. Reduces a defendant’s minimum liability for statutory damages in a construction-related accessibility claim against a place of public accommodation to $1,000 for each unintentional offense if the defendant has had a CASp inspection, or occupies a building constructed after 2008, and corrected all construction-related violations that are the basis of the claim within 60 days of being served with the complaint. (Civ. Code Sec. 55.56(f)(1).)
7. Provides that upon being served with a complaint asserting a construction-related accessibility claim, a defendant may move for a 90-day stay and early evaluation conference if the defendant is:

• until January 1, 2018, a defendant whose site was constructed after January 1, 2008 and approved pursuant to the local building permit and inspection process and the defendant declares that all violations have been corrected, or will be corrected within 60 days of being served the complaint;
• a defendant whose site had new construction or improvement that was approved by a local public building department inspector who is a CASp and the defendant declares that all violations have been corrected, or will be corrected within 60 days of being served the complaint; or
• a defendant who is a small business, as described, and the process and the defendant declares that all violations have been corrected, or will be corrected within 30 days of being served the complaint. (Civ. Code Sec. 55.54.)

1. 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).)

This bill:

1. Requires, commencing January 1, 2021, all building inspectors employed or retained by a local agency who conduct permitting and plan check services to review for compliance with state construction-related accessibility standards by a place of public accommodation with respect to new construction or renovation to be certified access specialists (CASps), as specified.
2. Requires all new employees employed or retained by a local agency on or after January 1, 2018, who will conduct permitting and plan check services to review for compliance with state construction-related accessibility standards by a place of public accommodation to be CASps within 36 months of their initial date of employment.
3. Increases, commencing January 1, 2017, the existing $1 fee attached to an application for a local business license to $4, and extends the current sunset on the fee authority for one year to December 31, 2019. Reduces the proportion of fee revenue to the Division of the State Architect (DSA) from 30 percent to 10 percent of collections.
4. Requires, from January 1, 2017, through December 31, 2019, in any city, county, or city and county that does not issue business licenses, any applicant for a building permit to pay an additional fee of $4 for that permit, as specified.

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 ADA in 1990, the state made a violation of the ADA also a violation of Section 54 or 54.1. The state protections provided to disabled persons 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. (Civ.l Code Sec. 51.) A violation of the ADA also constitutes a violation of Section 51.

In 2003 and 2005, several bills were introduced after multiple lawsuits were filed in state court by a few plaintiffs and attorneys against business owners and operators for allegedly technical violations of the state’s access or ADA regulations. (SB 69 (Oller, 2003), AB 209 (Leslie, 2003), AB 20 (Leslie, 2005), SB 855 (Poochigian, 2005).) Three of those bills would have required a plaintiff to undertake pre-litigation steps prior to the filing of a complaint, including providing notice to the owner of the property or business of the alleged violations, and provided a specified time period for the owner or business to cure the violations. One bill, (AB 20, Leslie, 2005) would have precluded an action for damages for a de minimus violation, allowing only injunctive relief and attorney’s fees. All of those bills failed passage in the Judiciary Committees of their respective houses. In 2008, two bills were introduced relating to disability access. AB 2533 (Keene, 2008) and SB 1766 (McClintock, 2008) would have both imposed pre-litigation hurdles on plaintiffs claiming violations of construction-related disability access laws. Both of these bills failed in the Judiciary Committees of their respective houses. In 2011, SB 783 (Dutton, 2011) would have established notice requirements for an aggrieved party to follow before he or she can bring a disability access suit and given the business owner a 120-day time period to remedy the violation. That bill failed passage in the Senate Judiciary Committee.

Alternatively, SB 1608 (Corbett et al., Chapter 549, Statutes of 2008), which took effect January 1, 2009, did not create any pre-litigation hurdles for a person with a disability but instead, among other things, provided for an early evaluation of a filed complaint if the defendant is a qualified defendant who had the identified place of public accommodation inspected and determined to meet applicable physical access standards by a state Certified Access Specialist (CASp) prior to the filing of the complaint. In 2012, Senators Steinberg and Dutton authored SB 1186 (Chapter 383, Statutes of 2012) which sought to comprehensively address continued issues with disability litigation.

Last year a number of bills were introduced to further combat perceived issues with disability litigation. AB 1521 (Committee on Judiciary, Chapter 755, Statutes of 2015) created a new class of plaintiff, a “high frequency litigant,” upon which it imposed additional costs and procedural burdens. Two bills, one which created a tax credit for certain access expenditures to businesses, and the other that would have provided funding to the Commission on Disability Access, were vetoed by Governor Brown who stated that such legislation is more appropriately considered in the annual budget process (SB 251 (Roth) and AB 1342 (Steinorth).

This bill, seeking to ensure consistency in local building inspections and increase the availability of CASp inspectors, requires that all inspectors employed by a local agency are CASps, and makes other conforming changes.

FISCAL EFFECT: Appropriation: Fiscal Com.: Local:

According to the Senate Appropriations Committee:

• CASp mandate: Potential major increase in future ongoing local agency costs in the millions of dollars related to the imposition of CASp certification for all applicable building inspectors and new/retained employees within specified timeframes, potentially state-reimbursable if not fully covered by the short-term fee increase and the ongoing fee authority. To the extent the bill creates a higher level of service on local agencies due to mandating CASp-certification for all building inspectors and new/retained employees, local agencies could claim reimbursement for those increased costs not covered by fees. At an average cost of $4,500 for CASp certification, certification costs for every 1,000 new CASps would cost $4.5 million. These costs do not reflect the larger impact associated with ongoing compensation for more highly trained personnel.
• State fee revenue: Short-term net increase in fee revenues of about $200,000 (Special Fund*) to the DSA through 2019, due to the fee increase from $1 to $4 on business license applications which is partially offset by the reduced proportion (from 30 percent to 10 percent) of fee revenue to DSA. The amount of fee revenue generated by the new $4 fee imposed on building permits in local jurisdictions that do not issue business licenses is unknown, but not anticipated to be significant.
• Local fee revenue: Short-term net increase in fee revenues (Local Funds) of $6 million through 2019 due to the fee increase from $1 to $4 on business license applications and the increased share from 70 percent to 90 percent of total fees collected. Additional fee revenues due to the new $4 fee imposed on building permits of an unknown, but potentially significant amount.
• DSA administrative costs: One-time costs ranging from $750,000 to $1 million (Special Fund**) to (1) upgrade its existing database system to accommodate the significant expansion of the program, and, (2) revise and transition the CASp exam to an electronic-based format. Additionally, ongoing resource costs of $230,000 (Special Fund**) to manage administration of the examination and certification renewals for the larger program. The current fees for CASp examinations and renewals are estimated to maintain cost-neutrality for the ongoing costs of the program.

*Disability Access and Education Revolving Fund

**Certified Access Specialist (CASp) Fund – staff notes the CASp Fund has experienced a slowly growing reserve balance over the past three years, with a projected balance of $1.7 million ending FY 2016-17, due to the CASp program operating on a largely cost-neutral basis. However, the potentially significant expansion of the program will likely necessitate budget authority to invest additional funds on a one-time basis to accommodate the changes needed to address the influx of applicants necessitated by the mandate for CASp certification.

SUPPORT: (Verified 8/19/16)

Disability Rights California (source)

Consumer Attorneys of California

Autism Society of Los Angeles

ARC of California

California Association of Public Authorities for IHSS

Californians for Disability Rights, Inc.

California Foundation for Independent Living Centers

California Respite Association

California Supported Living Network

Disability Rights Education and Defense Fund

Special Needs Network

United Cerebral Palsy California

Western Center on Law and Poverty

OPPOSITION: (Verified 8/19/16)

California Building Officials

ARGUMENTS IN SUPPORT: The Consumer Attorneys of California, in support, write:

It doesn’t make any sense, for neither the business nor those who want or need to access a building that a building inspector can sign off on a business inspection when the inspector doesn’t know the legal requirements for accessibility standards. AB 2873 is a step in the right direction to ensure that businesses can comply with the law and that all can enter those businesses, regardless of disability.

ARGUMENTS IN OPPOSITION: The California Building Officials writes:

Despite the recent amendments, the bill, as amended, will place cities and counties out of compliance with the law in 2020 when the bill is to go into effect. The CASp certification process is cost prohibitive (upwards of $1,600 per test, typically reimbursed only once passed), the test has a low passage rate (28%, taking individuals on average three attempts to pass) and currently, there are few incentives for individuals to become certified.

ASSEMBLY FLOOR: 60-14, 6/2/16

AYES: Alejo, Arambula, Atkins, Baker, Bloom, Bonilla, Bonta, Brown, Burke, Calderon, Campos, Chau, Chiu, Chu, Cooley, Cooper, Dababneh, Daly, Dodd, Eggman, Cristina Garcia, Eduardo Garcia, Gatto, Gipson, Gomez, Gonzalez, Gordon, Gray, Grove, Roger Hernández, Holden, Irwin, Jones-Sawyer, Kim, Lackey, Levine, Linder, Lopez, Low, Maienschein, McCarty, Medina, Mullin, Nazarian, O'Donnell, Olsen, Quirk, Ridley-Thomas, Rodriguez, Salas, Santiago, Mark Stone, Thurmond, Ting, Wagner, Weber, Wilk, Williams, Wood, Rendon

NOES: Achadjian, Travis Allen, Brough, Chang, Chávez, Dahle, Gallagher, Harper, Jones, Mathis, Melendez, Obernolte, Patterson, Waldron

NO VOTE RECORDED: Bigelow, Frazier, Beth Gaines, Hadley, Mayes, Steinorth

Prepared by:

8/23/16 20:27:36

**** END ****

 THIRD READING  

Bill No: AB 2873

Author:

:

Vote:

SENATE JUDICIARY COMMITTEE: 5-2, 6/21/16

AYES: Jackson, Hertzberg, Leno, Monning, Wieckowski

NOES: Moorlach, Anderson

SENATE APPROPRIATIONS COMMITTEE: 5-2, 8/11/16

AYES: Lara, Beall, Hill, McGuire, Mendoza

NOES: Bates, Nielsen

ASSEMBLY FLOOR: 60-14, 6/2/16 - See last page for vote

SUBJECT:

SOURCE: Disability Rights California

DIGEST: This bill, commencing January 1, 2020, requires that all building inspectors employed by a local agency who review for compliance with state construction-related accessibility standards be Certified Access Specialists, as specified. This bill also increases the fee, from January 1, 2017 through December 31, 2019, attached to an application for a local business license from $1 to $4. By removing an existing sunset, commencing January 1, 2020, this bill extends the $1 fee indefinitely. This bill makes other conforming changes.

ANALYSIS:

Existing law:

1. Provides, in the Americans with Disabilities Act (ADA), 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.)
2. Declares, in the Unruh Civil Rights Act, 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, and entitles persons to $4,000 minimum statutory damages for violations of Unruh. (Civ. Code Sec. 51 et seq.)
3. 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.)
4. 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.)
5. 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.)
6. Reduces a defendant’s minimum liability for statutory damages in a construction-related accessibility claim against a place of public accommodation to $1,000 for each unintentional offense if the defendant has had a CASp inspection, or occupies a building constructed after 2008, and corrected all construction-related violations that are the basis of the claim within 60 days of being served with the complaint. (Civ. Code Sec. 55.56(f)(1).)
7. Provides that upon being served with a complaint asserting a construction-related accessibility claim, a defendant may move for a 90-day stay and early evaluation conference if the defendant is:

• until January 1, 2018, a defendant whose site was constructed after January 1, 2008 and approved pursuant to the local building permit and inspection process and the defendant declares that all violations have been corrected, or will be corrected within 60 days of being served the complaint;
• a defendant whose site had new construction or improvement that was approved by a local public building department inspector who is a CASp and the defendant declares that all violations have been corrected, or will be corrected within 60 days of being served the complaint; or
• a defendant who is a small business, as described, and the process and the defendant declares that all violations have been corrected, or will be corrected within 30 days of being served the complaint. (Civ. Code Sec. 55.54.)

1. 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).)

This bill:

1. Commencing January 1, 2021, requires all building inspectors employed or retained by a local agency who conduct permitting and plan check services to review for compliance with state construction-related accessibility standards by a place of public accommodation with respect to new construction or renovation to be certified access specialists (CASps), as specified.
2. Requires all new employees employed or retained by a local agency on or after January 1, 2018, who will conduct permitting and plan check services to review for compliance with state construction-related accessibility standards by a place of public accommodation to be CASps within 24 months of their initial date of employment.
3. Increases, commencing January 1, 2017, the existing $1 fee attached to an application for a local business license to $4, and extends the current sunset on the fee authority for one year to December 31, 2019. Reduces the proportion of fee revenue to the Division of the State Architect (DSA) from 30 percent to 10 percent of collections.
4. Requires, from January 1, 2017, through December 31, 2019, in any city, county, or city and county that does not issue business licenses, any applicant for a building permit to pay an additional fee of $4 for that permit, as specified.

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 ADA in 1990, the state made a violation of the ADA also a violation of Section 54 or 54.1. The state protections provided to disabled persons 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. (Civ.l Code Sec. 51.) A violation of the ADA also constitutes a violation of Section 51.

In 2003 and 2005, several bills were introduced after multiple lawsuits were filed in state court by a few plaintiffs and attorneys against business owners and operators for allegedly technical violations of the state’s access or ADA regulations. (SB 69 (Oller, 2003), AB 209 (Leslie, 2003), AB 20 (Leslie, 2005), SB 855 (Poochigian, 2005).) Three of those bills would have required a plaintiff to undertake pre-litigation steps prior to the filing of a complaint, including providing notice to the owner of the property or business of the alleged violations, and provided a specified time period for the owner or business to cure the violations. One bill, (AB 20, Leslie, 2005) would have precluded an action for damages for a de minimus violation, allowing only injunctive relief and attorney’s fees. All of those bills failed passage in the Judiciary Committees of their respective houses. In 2008, two bills were introduced relating to disability access. AB 2533 (Keene, 2008) and SB 1766 (McClintock, 2008) would have both imposed pre-litigation hurdles on plaintiffs claiming violations of construction-related disability access laws. Both of these bills failed in the Judiciary Committees of their respective houses. In 2011, SB 783 (Dutton, 2011) would have established notice requirements for an aggrieved party to follow before he or she can bring a disability access suit and given the business owner a 120-day time period to remedy the violation. That bill failed passage in the Senate Judiciary Committee.

Alternatively, SB 1608 (Corbett et al., Chapter 549, Statutes of 2008), which took effect January 1, 2009, did not create any pre-litigation hurdles for a person with a disability but instead, among other things, provided for an early evaluation of a filed complaint if the defendant is a qualified defendant who had the identified place of public accommodation inspected and determined to meet applicable physical access standards by a state Certified Access Specialist (CASp) prior to the filing of the complaint. In 2012, Senators Steinberg and Dutton authored SB 1186 (Chapter 383, Statutes of 2012) which sought to comprehensively address continued issues with disability litigation.

Last year a number of bills were introduced to further combat perceived issues with disability litigation. AB 1521 (Committee on Judiciary, Ch. 755, Stats. 2015) created a new class of plaintiff, a “high frequency litigant,” upon which it imposed additional costs and procedural burdens. Two bills, one which created a tax credit for certain access expenditures to businesses, and the other that would have provided funding to the Commission on Disability Access, were vetoed by Governor Brown who stated that such legislation is more appropriately considered in the annual budget process (SB 251 (Roth) and AB 1342 (Steinorth).

This bill, seeking to ensure consistency in local building inspections and increase the availability of CASp inspectors, requires that all inspectors employed by a local agency are CASps, and makes other conforming changes.

FISCAL EFFECT: Appropriation: Fiscal Com.: Local:

According to the Senate Appropriations Committee:

• CASp mandate: Potential major increase in future ongoing local agency costs in the millions of dollars related to the imposition of CASp certification for all applicable building inspectors and new/retained employees within specified timeframes, potentially state-reimbursable if not fully covered by the short-term fee increase and the ongoing fee authority. To the extent the bill creates a higher level of service on local agencies due to mandating CASp-certification for all building inspectors and new/retained employees, local agencies could claim reimbursement for those increased costs not covered by fees. At an average cost of $4,500 for CASp certification, certification costs for every 1,000 new CASps would cost $4.5 million. These costs do not reflect the larger impact associated with ongoing compensation for more highly trained personnel.
• State fee revenue: Short-term net increase in fee revenues of about $200,000 (Special Fund*) to the DSA through 2019, due to the fee increase from $1 to $4 on business license applications which is partially offset by the reduced proportion (from 30 percent to 10 percent) of fee revenue to DSA. The amount of fee revenue generated by the new $4 fee imposed on building permits in local jurisdictions that do not issue business licenses is unknown, but not anticipated to be significant.
• Local fee revenue: Short-term net increase in fee revenues (Local Funds) of $6 million through 2019 due to the fee increase from $1 to $4 on business license applications and the increased share from 70 percent to 90 percent of total fees collected. Additional fee revenues due to the new $4 fee imposed on building permits of an unknown, but potentially significant amount.
• DSA administrative costs: One-time costs ranging from $750,000 to $1 million (Special Fund**) to (1) upgrade its existing database system to accommodate the significant expansion of the program, and, (2) revise and transition the CASp exam to an electronic-based format. Additionally, ongoing resource costs of $230,000 (Special Fund**) to manage administration of the examination and certification renewals for the larger program. The current fees for CASp examinations and renewals are estimated to maintain cost-neutrality for the ongoing costs of the program.

*Disability Access and Education Revolving Fund

**Certified Access Specialist (CASp) Fund – staff notes the CASp Fund has experienced a slowly growing reserve balance over the past three years, with a projected balance of $1.7 million ending FY 2016-17, due to the CASp program operating on a largely cost-neutral basis. However, the potentially significant expansion of the program will likely necessitate budget authority to invest additional funds on a one-time basis to accommodate the changes needed to address the influx of applicants necessitated by the mandate for CASp certification.

SUPPORT: (Verified 8/12/16)

Disability Rights California (source)

Consumer Attorneys of California

Autism Society of Los Angeles

ARC of California

California Association of Public Authorities for IHSS

Californians for Disability Rights, Inc.

California Foundation for Independent Living Centers

California Respite Association

California Supported Living Network

Disability Rights Education and Defense Fund

Special Needs Network

United Cerebral Palsy California

Western Center on Law and Poverty

OPPOSITION: (Verified 8/12/16)

California Building Officials

ARGUMENTS IN SUPPORT: The Consumer Attorneys of California, in support, write:

It doesn’t make any sense, for neither the business nor those who want or need to access a building that a building inspector can sign off on a business inspection when the inspector doesn’t know the legal requirements for accessibility standards. AB 2873 is a step in the right direction to ensure that businesses can comply with the law and that all can enter those businesses, regardless of disability.

ARGUMENTS IN OPPOSITION: The California Building Officials writes:

Despite the recent amendments, the bill, as amended, will place cities and counties out of compliance with the law in 2020 when the bill is to go into effect. The CASp certification process is cost prohibitive (upwards of $1,600 per test, typically reimbursed only once passed), the test has a low passage rate (28%, taking individuals on average three attempts to pass) and currently, there are few incentives for individuals to become certified.

ASSEMBLY FLOOR: 60-14, 6/2/16

AYES: Alejo, Arambula, Atkins, Baker, Bloom, Bonilla, Bonta, Brown, Burke, Calderon, Campos, Chau, Chiu, Chu, Cooley, Cooper, Dababneh, Daly, Dodd, Eggman, Cristina Garcia, Eduardo Garcia, Gatto, Gipson, Gomez, Gonzalez, Gordon, Gray, Grove, Roger Hernández, Holden, Irwin, Jones-Sawyer, Kim, Lackey, Levine, Linder, Lopez, Low, Maienschein, McCarty, Medina, Mullin, Nazarian, O'Donnell, Olsen, Quirk, Ridley-Thomas, Rodriguez, Salas, Santiago, Mark Stone, Thurmond, Ting, Wagner, Weber, Wilk, Williams, Wood, Rendon

NOES: Achadjian, Travis Allen, Brough, Chang, Chávez, Dahle, Gallagher, Harper, Jones, Mathis, Melendez, Obernolte, Patterson, Waldron

NO VOTE RECORDED: Bigelow, Frazier, Beth Gaines, Hadley, Mayes, Steinorth

Prepared by:

8/16/16 9:25:57

**** END ****

SENATE COMMITTEE ON APPROPRIATIONS

Senator Ricardo Lara, Chair

2015 - 2016 Regular Session

AB 2873 (Thurmond) - Certified access specialists

*********** ANALYSIS ADDENDUM – SUSPENSE FILE ***********

The following information is revised to reflect amendments

adopted by the committee on August 11, 2016

Bill Summary:

AB 2873 would impose the following requirements on local agencies:

• Commencing January 1, 2021, requires all building inspectors employed or retained by a local agency who conduct permitting and plan check services to review for compliance with state construction-related accessibility standards by a place of public accommodation with respect to new construction or renovation to be certified access specialists (CASps), as specified.
• Requires all new employees employed or retained by a local agency on or after January 1, 2018, who will conduct permitting and plan check services to review for compliance with state construction-related accessibility standards by a place of public accommodation to be CASps within 24 months of their initial date of employment.
• Commencing January 1, 2017, increases the existing $1 fee attached to an application for a local business license to $4, and extends the current sunset on the fee authority for one year to December 31, 2019. Reduces the proportion of fee revenue to the Division of the State Architect (DSA) from 30 percent to 10 percent of collections.
• From January 1, 2017, through December 31, 2019, in any city, county, or city and county that does not issue business licenses, requires any applicant for a building permit to pay an additional fee of $4 for that permit, as specified.

Fiscal Impact:

• CASp mandate: Potential major increase in future ongoing local agency costs in the millions of dollars related to the imposition of CASp certification for all applicable building inspectors and new/retained employees within specified timeframes, potentially state-reimbursable if not fully covered by the short-term fee increase and the ongoing fee authority. To the extent the bill creates a higher level of service on local agencies due to mandating CASp-certification for all building inspectors and new/retained employees, local agencies could claim reimbursement for those increased costs not covered by fees. At an average cost of $4,500 for CASp certification, certification costs for every 1,000 new CASps would cost $4.5 million. These costs do not reflect the larger impact associated with ongoing compensation for more highly trained personnel.
• State fee revenue: Short-term net increase in fee revenues of about $200,000 (Special Fund*) to the DSA through 2019, due to the fee increase from $1 to $4 on business license applications which is partially offset by the reduced proportion (from 30 percent to 10 percent) of fee revenue to DSA. The amount of fee revenue generated by the new $4 fee imposed on building permits in local jurisdictions that do not issue business licenses is unknown, but not anticipated to be significant.
• Local fee revenue: Short-term net increase in fee revenues (Local Funds) of $6 million through 2019 due to the fee increase from $1 to $4 on business license applications and the increased share from 70 percent to 90 percent of total fees collected. Additional fee revenues due to the new $4 fee imposed on building permits of an unknown, but potentially significant amount.
• DSA administrative costs: One-time costs ranging from $750,000 to $1 million (Special Fund**) to (1) upgrade its existing database system to accommodate the significant expansion of the program, and, (2) revise and transition the CASp exam to an electronic-based format. Additionally, ongoing resource costs of $230,000 (Special Fund**) to manage administration of the examination and certification renewals for the larger program. The current fees for CASp examinations and renewals are estimated to maintain cost-neutrality for the ongoing costs of the program.

*Disability Access and Education Revolving Fund

**Certified Access Specialist (CASp) Fund – staff notes the CASp Fund has experienced a slowly growing reserve balance over the past three years, with a projected balance of $1.7 million ending FY 2016-17, due to the CASp program operating on a largely cost-neutral basis. However, the potentially significant expansion of the program will likely necessitate budget authority to invest additional funds on a one-time basis to accommodate the changes needed to address the influx of applicants necessitated by the mandate for CASp certification.

Author Amendments:

• Remove the minimum criteria that specified familiarity with the applicability and content of various accessibility requirements, including but not limited to the federal requirements described in subdivision (c) of Section 4459 and the state standards established in Chapter 11A (commencing with line 21 Section 1101A) and Chapter 11B (commencing with Section line 22 11B-101) of Title 24 of the California Code of Regulations.
• Remove the sunset date on fee authority, effective January 1, 2020, and extends the $1 fee on local business licenses, or $1 fee on building permits in jurisdictions that do not issue business licenses, as specified, thereby authorizing the fees in perpetuity. Reverts the DSA and local entity share of fee revenues effective January 1, 2020, to 30 percent and 70 percent, respectively.

-- END --

SENATE COMMITTEE ON

Senator Ricardo Lara, Chair

2015 - 2016 Regular Session

AB 2873 (Thurmond) - Certified access specialists

This bill meets the criteria for referral to the Suspense File.

Bill Summary:

AB 2873 would impose the following requirements on local agencies:

• Commencing January 1, 2021, requires all building inspectors employed or retained by a local agency who conduct permitting and plan check services to review for compliance with state construction-related accessibility standards by a place of public accommodation with respect to new construction or renovation to be certified access specialists (CASps), as specified.
• Requires all new employees employed or retained by a local agency on or after January 1, 2018, who will conduct permitting and plan check services to review for compliance with state construction-related accessibility standards by a place of public accommodation to be CASps within 24 months of their initial date of employment.
• Commencing January 1, 2017, increases the existing $1 fee attached to an application for a local business license to $4, and extends the current sunset on the fee authority for one year to December 31, 2019. Reduces the proportion of fee revenue to the Division of the State Architect (DSA) from 30 percent to 10 percent of collections.
• From January 1, 2017, through December 31, 2019, in any city, county, or city and county that does not issue business licenses, requires any applicant for a building permit to pay an additional fee of $4 for that permit, as specified.

Fiscal Impact:

• CASp mandate: Potential major increase in future ongoing local agency costs in the millions of dollars related to the imposition of CASp certification for all applicable building inspectors and new/retained employees within specified timeframes, potentially state-reimbursable if not fully covered by the short-term fee increase and after the fee authority expires in 2019. To the extent the bill creates a higher level of service on local agencies due to mandating CASp-certification for all building inspectors and new/retained employees, local agencies could claim reimbursement for those increased costs not covered by fees. At an average cost of $4,500 for CASp certification, certification costs for every 1,000 new CASps would cost $4.5 million. These costs do not reflect the larger impact associated with ongoing compensation for more highly trained personnel.
• State fee revenue: Short-term net increase in fee revenues of about $200,000 (Special Fund*) to the DSA through 2019, due to the fee increase from $1 to $4 on business license applications which is partially offset by the reduced proportion (from 30 percent to 10 percent) of fee revenue to DSA. The amount of fee revenue generated by the new $4 fee imposed on building permits in local jurisdictions that do not issue business licenses is unknown, but not anticipated to be significant.
• Local fee revenue: Short-term net increase in fee revenues (Local Funds) of $6 million through 2019 due to the fee increase from $1 to $4 on business license applications and the increased share from 70 percent to 90 percent of total fees collected. Additional fee revenues due to the new $4 fee imposed on building permits of an unknown, but potentially significant amount.
• DSA administrative costs: One-time costs ranging from $750,000 to $1 million (Special Fund**) to (1) upgrade its existing database system to accommodate the significant expansion of the program, and, (2) revise and transition the CASp exam to an electronic-based format. Additionally, ongoing resource costs of $230,000 (Special Fund**) to manage administration of the examination and certification renewals for the larger program. The current fees for CASp examinations and renewals are estimated to maintain cost-neutrality for the ongoing costs of the program.

*Disability Access and Education Revolving Fund

**Certified Access Specialist (CASp) Fund – staff notes the CASp Fund has experienced a slowly growing reserve balance over the past three years, with a projected balance of $1.7 million ending FY 2016-17, due to the CASp program operating on a largely cost-neutral basis. However, the potentially significant expansion of the program will likely necessitate budget authority to invest additional funds on a one-time basis to accommodate the changes needed to address the influx of applicants necessitated by the mandate for CASp certification.

Background:

SB 262 (Kuehl) Chapter 872/2003 established in the Division of the State Architect of the DGS a voluntary “access specialist certification program” (CASp) in order to assist business and property owners in complying with the federal Americans with Disabilities Act (ADA) and state access laws. Since the passage of SB 262, a number of bills have been enacted seeking to promote compliance with access laws by creating incentives for business owners who proactively brought their businesses into compliance with access laws.

SB 1186 (Dutton/Steinberg) Chapter 383/2012 sought to comprehensively address continued issues with disability litigation by creating a number of protections for small businesses and defendants, who had, prior to a claim being filed, sought out a CASp inspection. These protections included reduced minimum statutory damages, early evaluation conferences, and mandatory stays of court proceedings while the violations were corrected. SB 1186 also prevented the stacking of multiple claims to increase damages, banned pre-litigation demands for money, and increased data collection regarding alleged access violations.

There are also requirements in existing law designed to phase in adequate numbers of CASps employed by local agencies. For example, by 2010, each local agency was required to employ at least one building inspector that is a CASp, and local agencies that employ two or more building inspectors are required to have at least one-half of the employed building inspectors be CASp-certified. In addition, by 2014, local agencies were required to employ a sufficient number of CASp-certified building inspectors to conduct permitting and plan check services to review for compliance with state construction-related accessibility standards. (Civil Code § 55.53(d).)

However, at the time of this writing, there appear to be only 651 CASPs certified in this state (https://www.apps2.dgs.ca.gov/DSA/casp/casp_certified_list.aspx, as of June 30, 2016) Given the millions of businesses in California, there are arguably an insufficient number of CASps to inspect all new construction, including, but not limited to, projects relating to tenant improvements that may impact access.

Proposed Law:

This bill would, commencing January 1, 2021, require all building inspectors employed or retained by a local agency who conduct permitting and plan check services to review for compliance with state construction-related accessibility standards by a place of public accommodation with respect to new construction or renovation to be CASps. Additionally, this bill:

• Requires all new employees employed or retained by a local agency on or after January 1, 2018, who will conduct permitting and plan check services to review for compliance with state construction-related accessibility standards by a place of public accommodation to be CASps within 24 months of their initial date of employment.
• Eliminates the provision of existing law that requires a local agency to employ or retain a sufficient number of building inspectors who are CASps. Deletes the existing provision of law that states if a local agency employs or retains two or more CASps, at least half of them are required to be building inspectors who are CASps.
• Commencing January 1, 2017, increases the existing $1 fee attached to an application for a local business license to $4, and extends the sunset on the fee for one year to December 31, 2019.
• On and after January 1, 2017, through December 31, 2019, in any city, county, or city and county that does not issue business licenses, requires any applicant for a building permit to pay an additional fee of $4 for that permit, as specified.
• Provides that instead of retaining 70 percent of the business license fees collected and transmitting 30 percent to the DSA for deposit in the Disability Access and Education Revolving Fund, the local government shall retain 90 percent of the building permit fees collected and provide 10 percent to the DSA.
• Requires that the fees retained by the local government, minus up to five percent of the retained moneys used for related administrative costs, to be deposited into a special fund established by the local government, the “CASp Certification and Training Fund,” to be used for increased CASp training and certification and to facilitate compliance with construction-related accessibility requirements.
• Requires local governments to include in their annual reports to the DSA of the total fees collected in the previous calendar year and of its distribution, the amount of moneys spent to increase CASp training and certification.
• Expands CASp minimum training requirements to include standards governing access to housing for persons with disabilities, familiarity with federal accessibility requirements.
• Authorizes the DSA to work with various training organizations to ensure an adequate level of training and educational effort is provided on a statewide basis to prepare individuals to become CASps, as specified.
• Requires the DSA to, on or before January 1, 2018, to commence testing and certification of individuals at a level commensurate with the demand attributed to compliance with the mandate on local building inspectors and new employees.
• Makes other conforming and technical changes.

Related Legislation:

AB 2093 (Steinorth) 2016 would make various clarifications with regard to CASp inspections, reports, repairs, and disclosures between commercial property owners and prospective tenants. This bill is pending a vote on the Senate Floor.

Prior Legislation: SB 262 (Kuehl) Chapter 872/2003 created the CASp program to address the public’s need for experienced, trained, and tested individuals to inspect buildings and sites for compliance with applicable state and federal construction-related accessibility standards.

SB 1608 (Corbett) Chapter 549/2008, among its provisions, required local jurisdictions to retain at least one building inspector who is a CASp by 2010 and a sufficient number of building inspectors who are CASps by 2014.

SB 1186 (Steinberg/Dutton) Chapter 383/2012 established a $1 fee for local jurisdictions to collect on each business license and business license renewal. 30 percent is submitted to the DSA’s Disability Access and Education Revolving Fund and requires the DSA to annually report the total fees transmitted to the fund during the previous calendar year and their distribution.

SB 84 (Committee on Budget and Fiscal Review) Chapter 25/2015 required local jurisdictions to submit an annual report to the DSA on the $1 fee collected and modified the reporting requirements established by SB 1186.

Staff Comments:

By mandating CASp certification on specified local agency employees within specified timeframes, this bill will significantly expand the operating and administrative costs of the CASp program by the Department of General Services, Division of the State Architect (DSA).

Based on a potential projected increase of 3,000 to 6,000 new applicants for the CASp exam, the DSA projects one-time costs of $500,000 to $1 million will be needed to upgrade or replace the existing database used to operate the CASp program (which currently only reflects 651 CASps statewide) to accommodate the expansion of the program.

In addition, the DSA has indicated one-time costs of $250,000 to $500,000 to transition the current CASp exam to an electronic format that can be administered at computer testing centers and allow the DSA to meet the testing demand that will be created by this bill. Finally, the DSA is projected to require two additional staff on a full-time permanent basis at a cost of about $230,000 annually to address administration of the exam and certification renewals.

The costs to update the database, convert the exam to an electronic format, and address increased staffing needs would be paid from the CASp Fund, which has a projected year-end reserve of $1.7 million in FY 2016-17. Under existing law, the DSA is required to assess each applicant for CASp certification specified fees, including an application and course fee and an examination fee, at a level sufficient to meet the costs of application processing, registration, publishing a list, and other activities that are reasonably necessary to implement and administer the CASp program. The DSA has indicated the current fees imposed by the DSA for the administration of the exam and the renewal of CASp certification are projected to adequately maintain the CASp program operating on a cost-neutral basis.

DSA is estimated to receive approximately $200,000 in additional fee revenue annually through 2019 to the Disability Access and Education Revolving Fund due to the increase to the existing fee on business licenses from $1 to $4 per license, assuming the number of business licenses issued annually remains relatively constant. DSA will collect $0.40 on each business license (10 percent of the $4 fee) instead of the existing $0.30 (30 percent of the $1 fee). This will result in DSA collecting additional revenue each year through the existing sunset date of December 31, 2018, and for one additional year through 2019. The amount of additional fee revenue generated from the new $4 fee established for each building permit issued in a jurisdiction that does not issue business licenses is unknown, but not estimated to be significant given DSA’s proportional share of 10 percent.

Local agencies are estimated to receive approximately $6 million in additional fee revenue (above the $1.3 million currently collected) through 2019 based on the business license fee increase from $1 to $4, assuming the number of business licenses issued annually remains relatively constant. Additionally, for those local jurisdictions that do not issue business licenses, additional fee revenues of an unknown but potentially significant from the new $4 fee on each building permit issued in those jurisdictions will be collected.

This bill could result in major increases in future ongoing local agency costs in the millions of dollars related to the imposition of CASp certification for all building inspectors and new employees employed or retained who conduct permitting and plan check services to review for compliance with state construction-related accessibility standards, potentially state-reimbursable if not fully covered by the short-term fee increase described above and after the fee authority expires in 2019. To the extent the bill creates a higher level of service on local agencies due to mandating CASp-certification by all building inspectors and new/retained employees, local agencies could claim reimbursement for those increased costs not covered by fees. At an average cost of $4,500 for CAsp certification, certification costs for every 1,000 new CASps would cost $4.5 million. These costs do not reflect the larger impact associated with ongoing compensation for more highly trained personnel.

-- END --

SENATE JUDICIARY COMMITTEE

Senator Hannah-Beth Jackson, Chair

2015-2016 Regular Session

Bill No: AB 2873 (Author:Thurmond)

Version: May 31, 2016

Hearing Date: June 21, 2016

Fiscal: Yes

Urgency: No

Consultant: NR

SUBJECT

Certified access specialists

DESCRIPTION

Commencing January 1, 2020, this bill would require that all building inspectors employed by a local agency who review for compliance with state construction-related accessibility standards be Certified Access Specialists, as specified.

This bill would also increase the fee attached to an application for a local business license or equivalent instrument from $1 to $4, and by removing an existing sunset, would extend this fee indefinitely. This bill would make other conforming changes.

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, the state made a violation of the ADA also a violation of Section 54 or 54.1. The state protections provided to disabled persons 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. (Civ.l Code Sec. 51.) A violation of the ADA also constitutes a violation of Section 51.

In 2003 and 2005, several bills were introduced after multiple lawsuits were filed in state court by a few plaintiffs and attorneys against business owners and operators for allegedly technical violations of the state’s access or ADA regulations. (SB 69 (Oller, 2003), AB 209 (Leslie, 2003), AB 20 (Leslie, 2005), SB 855 (Poochigian, 2005).) Three of those bills would have required a plaintiff to undertake pre-litigation steps prior to the filing of a complaint, including providing notice to the owner of the property or business of the alleged violations, and provided a specified time period for the owner or business to cure the violations. One bill, (AB 20, Leslie, 2005) would have precluded an action for damages for a de minimus violation, allowing only injunctive relief and attorney’s fees. All of those bills failed passage in the Judiciary Committees of their respective houses. In 2008, two bills were introduced relating to disability access. AB 2533 (Keene, 2008) and SB 1766 (McClintock, 2008) would have both imposed pre-litigation hurdles on plaintiffs claiming violations of construction-related disability access laws. Both of these bills failed in the Judiciary Committees of their respective houses. In 2011, SB 783 (Dutton, 2011) would have established notice requirements for an aggrieved party to follow before he or she can bring a disability access suit and given the business owner a 120-day time period to remedy the violation. That bill failed passage in this Committee.

Alternatively, SB 1608 (Corbett et al., Ch. 549, Stats. 2008), which took effect January 1, 2009, did not create any pre-litigation hurdles for a person with a disability but instead, among other things, provided for an early evaluation of a filed complaint if the defendant is a qualified defendant who had the identified place of public accommodation inspected and determined to meet applicable physical access standards by a state Certified Access Specialist (CASp) prior to the filing of the complaint. In 2012, Senators Steinberg and Dutton authored SB 1186 (Ch. 383, Stats. 2012) which sought to comprehensively address continued issues with disability litigation.

Last year a number of bills were introduced to further combat perceived issues with disability litigation. AB 1521 (Committee on Judiciary, Ch. 755, Stats. 2015) created a new class of plaintiff, a “high frequency litigant,” upon which it imposed additional costs and procedural burdens. Two bills, one which created a tax credit for certain access expenditures to businesses, and the other that would have provided funding to the Commission on Disability Access, were vetoed by Governor Brown who stated that such legislation is more appropriately considered in the annual budget process (SB 251 (Roth) and AB 1342 (Steinorth); see Prior Legislation below).

This bill, seeking to ensure consistency in local building inspections and increase the availability of CASp inspectors would require that all inspectors employed by a local agency are CASps, and would make other conforming changes.

CHANGES TO EXISTING LAW

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, and entitles persons to $4,000 minimum statutory damages for violations of Unruh. (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 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 reduces a defendant’s minimum liability for statutory damages in a construction-related accessibility claim against a place of public accommodation to $1,000 for each unintentional offense if the defendant has had a CASp inspection, or occupies a building constructed after 2008, and corrected all construction-related violations that are the basis of the claim within 60 days of being served with the complaint. (Civ. Code Sec. 55.56(f)(1).)

Existing law provides that upon being served with a complaint asserting a construction-related accessibility claim, a defendant may move for a 90-day stay and early evaluation conference if the defendant is:

• until January 1, 2018, a defendant whose site was constructed after January 1, 2008 and approved pursuant to the local building permit and inspection process and the defendant declares that all violations have been corrected, or will be corrected within 60 days of being served the complaint;
• a defendant whose site had new construction or improvement that was approved by a local public building department inspector who is a CASp and the defendant declares that all violations have been corrected, or will be corrected within 60 days of being served the complaint; or
• a defendant who is a small business, as described, and the process and the defendant declares that all violations have been corrected, or will be corrected within 30 days of being served the complaint. (Civ. Code Sec. 55.54.)

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).)

This bill, beginning January 1, 2020, would require that all building inspectors employed or retained by a local agency who conduct permitting and plan check services to review for compliance with construction-related accessibility standards, as specified, shall be certified access specialists.

This bill would eliminate the provision of existing law that if a local agency employs or retains two or more certified access specialists, at least half of them are required to be building inspectors who are certified access specialists.

This bill would require, between January 1, 2017 and December 31, 2019, any applicant for a local building permit pay a $4 fee which will be used to fund the CASp Program.

This bill would provide that instead of retaining 70 percent of the business license fee and sending 30 percent to the Division of the State Architect (DSA), the local government would keep 90 percent of the funds and provide 10 percent to the DSA.

This bill would require that any funds collected by the local government be deposited into a “CASp Certification and Training Fund.”

This bill would make other conforming and technical changes.

COMMENT

1. Stated need for the bill

According to the author:

AB 2873 provides more resources to increase business compliance with state and federal access laws and ensures equal access to businesses by the disability community. This bill collects a $4 fee on business licenses and renewals, so that the increased dollars can be used by local governments for CASp-certification and training of all local building inspectors. The bill also expands CASp training, testing and certification to include federal subsidized housing accessibility requirements (which are not currently covered by the test).

As California grows, and as construction increases statewide, the CASp program needs to grow [as well]. Public CASps play a crucial role in preventing accessibility violations; they provide permitting and plan check services for new construction, as well as renovations requiring permits. Budget reductions and insufficient funding/revenue prevents local governments from expanding CASp training and certification to other building inspectors. Some jurisdictions do not have CASp certified inspectors on staff. This results in backlog and a delay in ensuring access requirements are met so people with disabilities can fully participate in society.

1. May increase the availability of CASps in California

SB 262 (Kuehl, Ch. 872, Stats. 2003) established in the Division of the State Architect, a voluntary “access specialist certification program” (CASp) in order to assist business and property owners in complying with ADA and state access laws. Since the passage of SB 262, a number of bills have been enacted seeking to promote compliance with access laws by creating incentives for business owners who proactively brought their businesses into compliance with access laws. Notably, Senators Steinberg and Dutton authored SB 1186 (Ch. 383, Stats. 2012) which sought to comprehensively address continued issues with disability litigation by creating a number of protections for small businesses and defendants who had, prior to a claim being filed, sought out a CASp inspection. These protections included, reduced minimum statutory damages, early evaluation conferences, and mandatory stays of court proceedings while the violations were corrected. That bill also prevented the stacking of multiple claims to increase damages, banned pre-litigation demands for money, and increased data collection regarding alleged access violations.

There are also requirements in existing law designed to phase in, in local agencies, adequate numbers of CASps. For example, by 2010, each local agency was required to employ at least one building inspector that is a CASp, and local agencies that employ two or more building inspectors are required to have at least one-half of the employed building inspectors be CASp certified. In addition, by 2014, local agencies were required to employ a sufficient number of CASp-certified building inspectors to conduct permitting and plan check services to review for compliance with state construction-related accessibility standards. (Civ. Code Sec. 55.53(d).) However, at the time of this writing, there appear to be only 653 CASPs certified in this state, and only 246 CASps available for hire in the State of California (see the Division of the State Architect’s current list of Certified Access Specialists, found at <https://www.apps2. dgs.ca.gov/dsa/casp/casp_certified_list.aspx> [as of May 25, 2016].) Given the millions of businesses in California, there are arguably not enough CASps to inspect all new construction, including, but not limited to, projects relating to tenant improvements that may impact access. The Consumer Attorneys of California, in support, write:

It doesn’t make any sense, for neither the business nor those who want or need to access a building that a building inspector can sign off on a business inspection when the inspector doesn’t know the legal requirements for accessibility standards. AB 2873 is a step in the right direction to ensure that businesses can comply with the law and that all can enter those businesses, regardless of disability.

Finally, this bill will also require the State Architect to include within CASp training on standards for housing for people with disabilities. This should ensure that local building inspectors, when approving housing units, are capable of determining whether new or improved housing is accessible to persons with disabilities.

1. Will increase funding available to most local agencies to aid in the CASp certification of building inspectors

Existing law requires that a $1 fee be added to the cost for any city or county business license application, and that 70 percent of the fees collected shall be used to fund CASp services in that jurisdiction, and that the remaining 30 percent go to the Division of the State Architect. This bill would, between January 1, 2017 and December 31, 2019, require a $4 fee for every building permit application. 90 percent of the fees collected would go to a special fund established by the city or county to be used for the training and certification of inspectors. This increase in fees will arguably aid local agencies in the training and certification of the non-certified building inspectors it currently employs, as well as the training and certification of new hires. In addition, it is arguably appropriate that business owners, who are obligated to maintain accessible business premises, should subsidize the cost of certification of the public employees who will inspect their businesses for compliance with a small increase in building permit fees.

Support: Consumer Attorneys of California

Opposition: None Known

HISTORY

Source: Disability Rights California

Related Pending Legislation:

AB 54 (Olsen) would require that information about the demand letter and the complaint be submitted to the California Commission in Disability Access in a standard format specified by the Commission.

AB 2093 (Steinorth) would make various clarifications with regard to CASp inspections, reports, repairs, and disclosures between commercial property owners and prospective tenants.

Prior Legislation:

SB 269 (Roth, Ch. 13, Stats. 2016) is substantially similar to SB 251 (see below), with the exception of the tax credit, which the author removed to address the Governor’s concerns.

AB 1230 (Gomez, Ch. 787, Stats. 2015) establishes the California Americans with Disabilities Act Small Business Compliance Finance Act to provide loans to assist small businesses to finance the costs of projects that alter or retrofit existing small business facilities to comply with the federal Americans with Disabilities Act. 

AB 1468 (Baker, 2015) would have provided 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 was never heard in the Assembly Judiciary Committee.

SB 251 (Roth, 2015) would have made various changes to access laws, including: exempting a defendant from liability for minimum statutory damages if corrections were made within 120 days of receiving a CASp report; requiring the State Architect to publish a list of CASp inspected businesses; and providing a tax credit for eligible access expenditures, as specified. This bill was vetoed by Governor Brown who argued that tax credits are more appropriately addressed in the annual budget process.

SB 1186 (Steinberg and Dutton, Ch. 383, Stats. 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.

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 262 (Kuehl, Ch. 872, Stats. 2003) created the CASp program to address the public’s need for experienced, trained, and tested individuals to inspect buildings and sites for compliance with applicable state and federal construction-related accessibility standards.

Prior Vote:

Assembly Judiciary Committee (Ayes 8, Noes 0)

Assembly Floor (Ayes 60, Noes 14)

**************

ASSEMBLY THIRD READING

ATR Bill Id:AB 2873

Author:(Thurmond)

As Amended Ver:May 31, 2016

2/3 vote

SUMMARY: Seeks to expand the availability of Certified Access Specialist program (CASp)-certified building inspectors in order to increase compliance with state and federal construction-related accessibility standards. Specifically, this bill:

1. Requires, as of January 1, 2020, that all building inspectors employed or retained by a local agency who conduct permitting and plan check services to review for compliance with state construction-related accessibility standards by a place of public accommodation with respect to new construction, including, but not limited to, projects relating to tenant improvements that may impact access shall be certified access specialists.
2. Imposes a $4 fee on local building permits, as of January 1, 2017, to fund the CASp program.
3. Provides that the local government would keep 90% of the funds and provide 10% to the Division of the State Architect (DSA).
4. Requires that any funds collected by the local government would be deposited into a "CASp Certification and Training Fund."
5. Imposes a sunset (to expire December 31, 2019, unless renewed) on the fee described in 2) above.

FISCAL EFFECT: According to the Assembly Appropriations committee, revenue from the current fee is about $2,070,000 annually, of which $620,000 goes to DSA and $1,450,000 million goes to local jurisdictions. Revenues from the increased building permit fee will total about $6 million annually, of which $600,000 would go to DSA and $5.4 million would go to locals – to facilitate additional CASps – for a total of $16.2 million in revenue to fund this effort over the three years that the fee will be in effect.

COMMENTS: Under the twenty-five year-old federal Americans with Disabilities Act (ADA), a business that constitutes a place of public accommodation (e.g., many places of lodging, entertainment, recreation, restaurants, bars, theaters, stores, health clubs, etc.) is prohibited from discriminating on the basis of disability if its operations affect interstate commerce. Prohibited discrimination can take a number of forms – e.g., denial of participation in the facility, or a service, benefit, or good of the business; denial of equal participation in a good, service, or facility; or provision of a different or separate facility, service or good (unless necessary to provide services and are as effective as that provided to others). Government facilities are also covered by the access obligations of the ADA.

According to the California Supreme Court, "In 1992, shortly after passage of the ADA, the Legislature amended the state's disability protections 'to strengthen California law in areas where it is weaker than the [ADA] and to retain California law when it provides more protection for individuals with disabilities than the [ADA].' Two overlapping laws, the Unruh Civil Rights Act (Section 51) and the Disabled Persons Act (Sections 54–55.3), are the principal sources of state disability access protection." (Jankey v. Lee (2012) 55 Cal.4th 1038, 1044 [Citation to internal quotation deleted].) As a result of incorporating the ADA into the state's Unruh Civil Rights, a plaintiff who prevails in a construction-related accessibility claim, like all plaintiffs in other civil rights cases, is entitled to minimum statutory damages of $4,000 per violation (although later amendments to Unruh, affecting only disabled plaintiffs in only construction-related disability claims, reduced the minimum statutory damages to only $1,000 in some cases, such as when a small business previously obtained a CASp inspection).

Therefore, since 1992, public accommodations in California have been required to comply with not only the ADA, but also with the state's Unruh Act, which incorporates the ADA into its provisions and makes a violation of the ADA punishable as a violation of Unruh. (Section 51.) All violations of Unruh are subject to statutory damages of at least $4,000 per violation, except some cases where the violation is based on a construction-related accessibility claim, in which case lower damages (a minimum of $1,000, or $2,000, depending on the circumstances of the case) apply.

Certified Access Specialists Help Businesses Comply with Construction-related Accessibility Standards. One significant way to increase compliance with construction-related accessibility standards is through the Certified Access Specialist (CASp) program. In 2003, Senate Bill 262 (Kuehl, Chapter 872, Statutes of 2003) created the CASp program to meet the public's need for experienced, trained, and tested individuals who can inspect buildings and sites for compliance with applicable state and federal construction-related accessibility standards. Five years later, Senate Bill 1608 (Corbett, Chapter 549, Statutes of 2008), among other things, provided for an early evaluation of a filed complaint if the defendant is a qualified defendant who had the identified place of public accommodation inspected and determined to meet applicable physical access standards by a CASp prior to the filing of the complaint. And four years after that, SB 1186 (Steinberg) Chapter 383, Statutes of 2012, required a $1 additional fee to be paid by any applicant for a local business license, permit or similar instrument when it is issued or renewed. The fee applies to applications and renewals filed between January 1, 2013 and December 31, 2018 and it is collected by the issuing jurisdiction (city, county, or city and county). The purpose of the fee is to increase disability access and compliance with construction-related accessibility requirements. Additionally, the fee assists local jurisdictions in supporting the CASp program and provides the State Architect with funds to maintain oversight of the CASp program. The funds accrued from this fee are then divided between the local entity that collected the funds, which retains 70%, and DSA, which receives 30%.

New Requirements on Local Building Departments. Under current law, the DSA certifies applicants to become CASps. The DSA publishes a list of all the CASps in the state on its website. Currently, there are over 575 CASps throughout the state.

This bill requires, as of January 1, 2020, that all building inspectors employed or retained by a local agency who conduct permitting and plan check services to review for compliance with state construction-related accessibility standards by a place of public accommodation with respect to new construction, including, but not limited to, projects relating to tenant improvements that may impact access shall be certified access specialists. In order to compensate for the increased costs to local building departments, the bill proposes to impose, as of January 1, 2017, a $4 fee on building permits to fund the CASp Program. It also provides that the local government would be allowed to keep 90% of those funds, deposited into a specified fund for that purpose, and be required to provide 10% of the funds to the DSA.

Author’s Statement. The author writes the following to explain the need for the bill:

AB 2873 provides more resources to increase business compliance with state and federal access laws and ensures equal access to businesses by the disability community. This bill collects a $4 fee on [building permits] so that the increased dollars can be used by local governments for CASp-certification and training of all local building inspectors. The bill also expands CASp training, testing and certification to include federal subsidized housing accessibility requirements (which are not currently covered by the test.)

As California grows, and as construction increases statewide, the CASp program needs to grow to meet to evaluate accessibility. Public CASps play a crucial role in preventing accessibility violations; they provide permitting and plan check services for new construction, as well as renovations requiring permits. Budget reductions and insufficient funding/revenue prevents local governments from expanding CASp training and certification to other building inspectors. Some jurisdictions do not have CASp certified inspectors on staff. This results in backlog and a delay in ensuring access requirements are met so people with disabilities can fully participate in society.

Analysis Prepared by: Alison Merrilees / JUD. / (916) 319-2334 FN: 0003144

Date of Hearing: May 11, 2016

ASSEMBLY COMMITTEE ON APPROPRIATIONS

Lorena Gonzalez, Chair

ABPCA Bill Id:AB 2873

Author:(Thurmond) – As Amended Ver:April 21, 2016

Urgency: No State Mandated Local Program: Yes Reimbursable: Yes

SUMMARY:

This bill requires local governments to increase the number of building officials who are certified access specialists (CASps) in order to improve compliance with state and federal construction-related disability standards. Specifically, this bill:

1. Requires that, as of January 1, 2018, all building inspectors employed or retained by a local agency who conduct permitting and plan check services to review for compliance with state construction-related accessibility standards, must be CASps.
2. Increases, from $1 to $4, the fee on business licenses that is used to fund the CASp Program, and eliminates the January 1, 2018 sunset on the current fee.
3. Provides that instead of retaining 70% of the fee revenue collected per (2) and sending 30% to the Division of the State Architect (DSA), the local government would keep 90% of the revenue and remit 10% to DSA.
4. Requires each local government to place its fee revenue, less up to 5% for administrative costs, into a CASp Certification and Training Fund. Highest priority for use of these funds is to be given for training and retention of certified access specialists. The fund can also be used to facilitate compliance with construction-related accessibility requirements, though the bill does not specify what activities this would encompass.

FISCAL EFFECT:

Revenue from the current fee is about $2.1 million annually, of which $620,000 goes to DSA and $1.5 million goes to local jurisdictions. Revenues from the increased fee would total about $8.25 million annually, of which $825,000 would go to DSA and $7.4 million would go to locals.

DSA will receive increased revenue of $205,000 in 2017 and 2018, and continue to receive ongoing revenue of $825,000 annually beyond the current sunset date on the fee authority. These additional revenues should cover any increase in DSA costs to, for example, offer more CASp examination opportunities. With an expected increase in local building officials seeking to become CASps, DSA will receive examination and licensing revenues to cover its additional administrative costs.

According to DGS, about 550 local jurisdictions employ building inspectors. Current law requires a local agency to employ a "sufficient number of building inspectors who are certified access specialists" and require that an agency employs or retains two or more CASps, at least one-half of the CASps must be building inspectors. It is unknown how many additional building inspectors would need to become CASps under this bill. According to DGS, the average per-candidate cost to become a CASp is $4,571, which takes into account that most candidates must take the exam multiple times. The examination fee (for the two-part exam) is either $1,200 or $1,600 depending on if the candidate has existing professional licensure. In addition, the certification must be renewed every three years at a cost of $500, plus expense for 15 mandatory continuing education units costing $225 to $750.

Given the above average certification costs, the annual revenue to local of $7.4 million would cover about 1,600 certifications. Of course, since the revenue is to be collected and retained by each jurisdiction, it is unknown how well revenues and costs will match at the local level. It is also unclear for what specific purposes this level of revenue would be needed on an ongoing basis.

COMMENTS:

1. Background/Purpose. Since 1992, public accommodations in California have been required to comply with not only the Americans with Disabilities Act (ADA), but also with the state’s Unruh Civil Rights Act, which incorporates the ADA into its provisions and makes a violation of the ADA punishable as a violation of Unruh. To increase compliance with the ADA, SB 262 (Kuehl), Chapter 872, Statutes of 2003 established the CASp program to meet the public's need for experienced, trained, and tested individuals who can inspect buildings and sites for compliance with applicable state and federal construction-related accessibility standards. While a number of subsequent bills have expanded the use and effect of CASp inspections, no significant new financial resources have been provided to small businesses or to the CASp program, in order to bring businesses into compliance with the law.

This bill, sponsored by Disability Access California, is intended to increase the number of local building officials who are trained and certified as access specialists, and provides additional resources to support this effort.

1. Concern. The League of California Cities writes, "the CASp-certification process remains expensive and the exam extremely difficult, with a very low passage rate even among the experienced inspectors. Statewide, there are only about 575 CASps, many of whom are consultants specializing in this area. Building inspectors report that the current exam often covers areas that have little to do with their day-to-day work of enforcing the state building code, including accessibility requirements. Without adjustments by the State Architect to the exam itself, it is unrealistic to expect cities to be compliant with the bill’s requirements by January 2018. The bill would also be particularly problematic for smaller cities that employ or retain a handful of building inspectors." The league also notes that, "While the increase in the cost of business fees and the percentage retained by a local agency would assist with the cost of the certification process, not all jurisdictions collect business license fees."

Analysis Prepared by: Chuck Nicol / APPR. / (916) 319-2081

Date of Hearing: April 19, 2016

ASSEMBLY COMMITTEE ON JUDICIARY

Mark Stone, Chair

ABPCA Bill Id:AB 2873

Author:(Thurmond) – As Amended Ver:March 18, 2016

As Proposed to be Amended

SUBJECT: Certified access specialistS

KEY ISSUES:

1. SHOULD ADDITIONAL FUNDS BE MADE AVAILABLE TO LOCAL GOVERNMENTS IN ORDER TO TRAIN AND CERTIFY ADDITIONAL CERTIFIED ACCESS SPECIALISTS WHOSE SERVICES ARE BENEFICIAL TO BOTH SMALL BUSINESSES AND THE DISABLED COMMUNITY, PAID FOR BY HIGHER BUSINESS LICENSE FEES?
2. SHOULD ALL OF THE BUILDING INSPECTORS EMPLOYED BY LOCAL BUILDING DEPARTMENTS WHO CONDUCT PERMITTING AND PLAN CHECK SERVICES TO BUSINESSES FOR COMPLIANCE WITH STATE CONSTRUCTION-RELATED ACCESSIBILITY STANDARDS BE REQUIRED, AS OF JANUARY 1, 2018, TO BE CASP-CERTIFIED?

SYNOPSIS

Under the twenty-five year-old federal Americans with Disabilities Act (ADA), a business that constitutes a place of public accommodation (e.g., many places of lodging, entertainment, recreation, restaurants, bars, theaters, stores, health clubs, etc.) is prohibited from discriminating on the basis of disability if its operations affect interstate commerce. In 1992, shortly after passage of the ADA, the Legislature amended the state's disability protections ‘to strengthen California law in areas where it is weaker than the ADA and to retain California law when it provides more protection for individuals with disabilities than the ADA. Therefore, since 1992, public accommodations in California have been required to comply with not only the ADA, but also with the state’s Unruh Act, which incorporates the ADA into its provisions and makes a violation of the ADA punishable as a violation of Unruh. Compliance, something disabled consumers should be able to count on as they go about their daily lives, also has the added benefit to businesses of helping them to avoid ADA litigation.

One significant way to increase compliance is the Certified Access Specialist (CASp) program. In 2003, Senate Bill 262 (Kuehl, Chapter 872, Statutes of 2003) created the CASp program to meet the public's need for experienced, trained, and tested individuals who can inspect buildings and sites for compliance with applicable state and federal construction-related accessibility standards. Since then, a number of bills have expanded the use and effect of CASp inspections. However, no significant new financial resources have been provided to small businesses or to the CASp program, in order to bring businesses into compliance with the law.

As proposed to be amended, this bill seeks to expand the availability of CASp-certified building inspectors in order to increase compliance with state and federal construction-related accessibility standards, requiring that as of January 1, 2018, all building inspectors employed or retained by a local agency who conduct permitting and plan check services to review for compliance with state construction-related accessibility standards by a place of public accommodation with respect to new construction, including, but not limited to, projects relating to tenant improvements that may impact access shall be certified access specialists. It provides funding to local governments to either hire more CASps, or to allow existing staff to become certified, by increasing the fee on business licenses that is used to fund the CASp Program from one dollar to four dollars, and specifying that most of the additional funds are retained by local governments and deposited into a special CASp fund. This bill is sponsored by Disability Rights California and supported by the Consumer Attorneys of California. It has no opposition on file.

SUMMARY: Seeks to expand the availability of CASp-certified building inspectors in order to increase compliance with state and federal construction-related accessibility standards. Specifically, this bill:

1. Requires, as of January 1, 2018, that all building inspectors employed or retained by a local agency who conduct permitting and plan check services to review for compliance with state construction-related accessibility standards by a place of public accommodation with respect to new construction, including, but not limited to, projects relating to tenant improvements that may impact access shall be certified access specialists.
2. Eliminates the provision in existing law that if a local agency employs or retains two or more certified access specialists, at least half of them are required to be building inspectors who are certified access specialists.
3. Raises the fee on business licenses that is used to fund the CASp Program from one dollar to four dollars.
4. Provides that instead of retaining 70 percent of the business license fee and sending 30 percent to the Division of the State Architect (DSA), the local government would keep 90 percent of the funds and provide 10 percent to the DSA.
5. Requires that any funds collected by the local government would be deposited into a “CASp Certification and Training Fund.”

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.)
4. Provides for the certification process in which an applicant may become a certified-access specialist. Further provides that the DSA 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.)
5. 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.)
6. Requires a local agency to employ or retain a sufficient number of building inspectors who are CASp-certified to conduct permitting and plan check services to review for compliance with state construction-related accessibility standards by a place of public accommodation with respect to new construction, including, but not limited to, projects relating to tenant improvements that may impact access and specifies that if a local agency employs or retains two or more certified access specialists to comply with this subdivision, at least one-half of the certified access specialists shall be building inspectors who are certified access specialists. (Civil Code Section 55.53 (d)(2).)

FISCAL EFFECT: As currently in print this bill is keyed fiscal.

COMMENTS: Under the twenty-five year-old federal Americans with Disabilities Act (ADA), a business that constitutes a place of public accommodation (e.g., many places of lodging, entertainment, recreation, restaurants, bars, theaters, stores, health clubs, etc.) is prohibited from discriminating on the basis of disability if its operations affect interstate commerce. Prohibited discrimination can take a number of forms – e.g., denial of participation in the facility, or a service, benefit, or good of the business; denial of equal participation in a good, service, or facility; or provision of a different or separate facility, service or good (unless necessary to provide services and are as effective as that provided to others). Government facilities are also covered by the access obligations of the ADA.

According to the California Supreme Court, “In 1992, shortly after passage of the ADA, the Legislature amended the state's disability protections ‘to strengthen California law in areas where it is weaker than the [ADA] and to retain California law when it provides more protection for individuals with disabilities than the [ADA].’ Two overlapping laws, the Unruh Civil Rights Act (§ 51) and the Disabled Persons Act (§§ 54–55.3), are the principal sources of state disability access protection.” (Jankey v. Lee (2012) 55 Cal.4th 1038, 1044 [Citation to internal quotation deleted].) As a result of incorporating the ADA into the state’s Unruh Civil Rights, a plaintiff who prevails in a construction-related accessibility claim, like all plaintiffs in other civil rights cases, is entitled to minimum statutory damages of $4,000 per violation (although later amendments to Unruh, affecting only disabled plaintiffs in only construction-related disability claims, reduced the minimum statutory damages to only $1,000 in some cases, such as when a small business previously obtained a CASp inspection).

Therefore, since 1992, public accommodations in California have been required to comply with not only the ADA, but also with the state’s Unruh Act, which incorporates the ADA into its provisions and makes a violation of the ADA punishable as a violation of Unruh. (Section 51.) All violations of Unruh are subject to statutory damages of at least $4,000 per violation, except some cases where the violation is based on a construction-related accessibility claim, in which case lower damages (a minimum of $1,000, or $2,000, depending on the circumstances of the case) apply.

Efforts by the Legislature to Help Businesses Comply with Construction-related Accessibility Standards. For years, there has been widespread media coverage about the problem of what has been described as "serial ADA litigation." But it is also important to put these figures into perspective. According to data compiled by the Commission, from January 2014 until January 2015, there were 3,468 demand letters and complaints sent or filed in the state. In contrast, according to the Judicial Council of California, a total of 800,091 lawsuits were filed in the state in 2013 (the most recent year available). Meanwhile, California has approximately 3.3 million small businesses. These figures mean that less than one percent of small businesses (and a far smaller percentage of all businesses) were sued in 2014 for access violations; and the 3,468 demand letters or complaints regarding accessibility violations represent less than one-half of one percent (.43%) of the total number of lawsuits filed in the state. And the actual percentage is even smaller, because the Commission figure includes demand letters that are not complaints.

In response to this problem – both real and perceived – small businesses are justifiably fearful and angry about being sued, while disabled consumers are viewed with blame or suspicion, even though they have a right to full and equal access and should be able to expect all public accommodations to comply with the 25-year old requirements of the Americans with Disability Act. Disabled consumers just want to go about their daily lives without difficulty, discomfort, or embarrassment, and with the basic dignity that comes from being able to go to the same places and have the same access to services as non-disabled persons. Compliance, something disabled consumers should be able to count on as they go about their daily lives, also has the added benefit to businesses of helping them to avoid ADA litigation.

One significant way to increase compliance is the Certified Access Specialist (CASp) program. In 2003, Senate Bill 262 (Kuehl, Chapter 872, Statutes of 2003) created the CASp program to meet the public's need for experienced, trained, and tested individuals who can inspect buildings and sites for compliance with applicable state and federal construction-related accessibility standards. Five years later, Senate Bill 1608 (Corbett et al., Chapter 549, Statutes of 2008), among other things, provided for an early evaluation of a filed complaint if the defendant is a qualified defendant who had the identified place of public accommodation inspected and determined to meet applicable physical access standards by a CASp prior to the filing of the complaint. And four years after that, Senate Bill 1186 (Steinberg, Chapter 383, Statutes of 2012) required a one-dollar additional fee to be paid by any applicant for a local business license, permit or similar instrument when it is issued or renewed. The fee applies to applications and renewals filed between January 1, 2013 and December 31, 2018 and it is collected by the issuing jurisdiction (city, county, or city and county). The purpose of the fee is to increase disability access and compliance with construction-related accessibility requirements. Additionally, the fee assists local jurisdictions in supporting the CASp program and provides the State Architect with funds to maintain oversight of the CASp program. The funds accrued from this fee are then divided between the local entity that collected the funds, which retains 70 percent, and DSA, which receives 30 percent.

More recently, this Committee also approved a number of measures (including AB 269 (Roth and Vidak), AB 2093 (Steinorth), and AB 1230 (Gomez)) that provide relief from minimum statutory damages, information and financial resources to bring their premises into compliance with the law. Disabled advocates rightfully feel that they have cooperated with the authors of many of these measures and begrudgingly gone along with incremental erosion of their rights with the hope of seeing greater compliance with the ADA, partially facilitated by tax credits and other financial incentives to small businesses (many of which have been vetoed in recent years). However, no significant new financial resources have been provided to small businesses or to the CASp program, in order to bring businesses into compliance with the law. According to Disability Access California, the sponsor of AB 2873, “this bill is a step in the right direction to ensure equal access to people with disabilities.”

New Requirements on Local Building Departments. Under current law, the Division of the State Architect (DSA) certifies applicants to become CASps. The DSA publishes a list of all the CASps in the state on its website. Currently, there are over 575 CASps throughout the state.

This bill requires, as of January 1, 2018, that all building inspectors employed or retained by a local agency who conduct permitting and plan check services to review for compliance with state construction-related accessibility standards by a place of public accommodation with respect to new construction, including, but not limited to, projects relating to tenant improvements that may impact access shall be certified access specialists. In order to compensate for the increased costs to local building departments, the bill proposes to raise the fee on business licenses that is used to fund the CASp Program from one dollar to four dollars. Instead of retaining 70 percent of the business license fee and sending 30 percent to the DSA, the local government would keep 90 percent of the funds and provide 10 percent to the DSA. Because of the increased fee, the funds going to DSA should be slightly greater under this bill than they are under current law. Given the higher workload that would be necessitated by this bill, as well as additional duties imposed upon DSA by recent legislation (described below), this seems appropriate.

More significantly, this bill seeks to increase the funds going to local agencies and to provide a mechanism for tracking those funds, by requiring them to be deposited into newly created local “CASp Certification and Training Fund(s).” Given that building departments will have to expend greater resources to ensure that all building inspectors involved in the plan check and construction inspection process of commercial businesses are CASp-certified, this fee seems both appropriate and beneficial. It is hoped that this measure, though it does not include a tax credit or other specific financial benefit to business owners, will nevertheless improve compliance by commercial establishments with the law for the benefit of both the businesses, as well as their disabled customers.

Author’s Statement. The author writes the following to explain the need for the bill:

AB 2873 provides more resources to increase business compliance with state and federal access laws and ensures equal access to businesses by the disability community. This bill collects a $4 fee on business licenses and renewals, so that the increased dollars can be used by local governments for CASp-certification and training of all local building inspectors. The bill also expands CASp training, testing and certification to include federal subsidized housing accessibility requirements (which are not currently covered by the test.)

As California grows, and as construction increases statewide, the CASp program needs to grow to meet to evaluate accessibility. Public CASps play a crucial role in preventing accessibility violations; they provide permitting and plan check services for new construction, as well as renovations requiring permits. Budget reductions and insufficient funding/revenue prevents local governments from expanding CASp training and certification to other building inspectors. Some jurisdictions do not have CASp certified inspectors on staff. This results in backlog and a delay in ensuring access requirements are met so people with disabilities can fully participate in society.

Author’s Amendments. As reflected in this analysis, the author has agreed to extend the date of compliance for building departments to comply with the requirement that all building inspectors are CASp-certified from January 1, 2017 until January 1, 2018.

Also, in order to clarify that the requirement for building inspectors to be CASp-certified only applies to those inspectors "who conduct permitting and plan check services", the author has agreed to the following minor clarifying amendments:

On Page 5, at line 30, strike out: “shall be certified access specialists”

On Page 5, at line 35, after “access” insert: “shall be certified access specialists”

ARGUMENTS IN SUPPORT: The Consumer Attorneys of California write the following in support of AB 2873:

AB 2873 will increase access for people with disabilities by requiring, commencing January 1, 2017, that all building inspectors employed or retained by a local agency be certified access specialists. To accomplish this, the bill collects a $4 fee on business licenses and renewals, so that the increase dollars can be used by local governments for the CASp-certification of all local building inspectors.

It doesn’t make any sense, for either the business nor those who want or need to access a building, that a building inspector can sign off on a business inspection when the inspector doesn’t know the legal requirements for accessibility standards. AB 2873 is a step in the right direction to ensure that businesses can comply with the law and that all can enter those businesses, regardless of disability.

SIMILAR RECENT LEGISLATION: AB 1230 ((Gomez), Chapter 787, Statutes of 2015) establishes the California Americans With Disabilities Act Small Business Capital Access Loan Program within the California Capital Access Loan Program in order to create a self-sustaining program to provide loans to assist small businesses in financing the costs of projects that alter or retrofit existing small business facilities according to certain criteria, to comply with the ADA. 

AB 1342 (Steinorth, 2015) would have required, among other things, the State Architect to require a CASp applicant to provide the location (i.e. city, county, or city and county) in which the CASp will provide services and the State Architect to post the location that each CASp provides or intends to provide services. AB 1342 was vetoed.

AB 1468 (Baker, 2015) would have, among other things, provided 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 ADA, serves as presumptive evidence of compliance with the ADA.  This bill died without a hearing in this Committee.

AB 2093 (Steinorth, 2016) requires applicants for CASp certification or renewal to additionally provide to the State Architect the name of the city, county, or city and county in which the applicant intends to provide or has provided services, and requires the State Architect to post that information on his or her Internet Web site. It also requires landlords to provide CASp reports to tenants under certain circumstances and to correct any access violations, unless the landlord and tenant agree otherwise. This bill sits on the Assembly Floor consent calendar.

SB 251 (Roth, 2015) would have, among other things, protected a business with 100 or fewer employees from liability for minimum statutory damages for violations of construction-related accessibility standards during the 120 day period after the business obtained a CASp inspection of the business and corrected violations noted in the inspection. It also required the State Architect to publish and regularly update a list of businesses that have filed a notice with the State Architect stating that the business has obtained a CASp inspection and will correct any violations of accessibility standards within 120 days of the date of the inspection. This bill was vetoed.

SB 269 (Roth and Vidak) is virtually identical to SB 251, but its provision protecting a business that has obtained a CASp inspection from liability for minimum statutory damages for 120 days only applies to a business with 50 or fewer employees. Like SB 251, it requires the State Architect to publish and regularly update the same list of businesses that have obtained a CASp inspection and will correct any violations of accessibility standards. This bill is pending on the Assembly Floor.

REGISTERED SUPPORT / OPPOSITION:

Support

Disability Rights California (sponsor)

Consumer Attorneys of California

Opposition

None on file

Analysis Prepared by: Alison Merrilees / JUD. / (916) 319-2334