Existing law requires the State Architect to establish a program for the voluntary certification by the state of any person who meets criteria as a Certified Access Specialist (CASp). This position requires certain knowledge and training on standards governing access to buildings for persons with disabilities.

Existing law also requires a commercial property owner or lessor to state on every lease form or rental agreement executed on or after January 1, 2017, whether or not the premises have undergone inspection by a CASp.

This bill would define commercial property for the purposes of that provision as property that is offered for rent or lease to persons operating, or intending to operate, a place of public accommodation, as specified, or a facility to which the general public is invited at those premises.

This bill would declare that it is to take effect immediately as an urgency statute.

Existing law requires the State Architect to establish a program for the voluntary certification by the state of any person who meets criteria as a Certified Access Specialist (CASp). This position requires certain knowledge and training on standards governing access to buildings for persons with disabilities.

Existing law also requires a commercial property owner or lessor to state on every lease form or rental agreement executed on or after January 1, 2017, whether or not the premises have undergone inspection by a CASp.

This bill would define commercial property for the purposes of that provision as property that is offered for rent or lease to persons operating, or intending to operate, a place of public accommodation, as specified, or a facility to which the general public is invited at those premises.

This bill would declare that it is to take effect immediately as an urgency statute.

Existing law requires the State Architect to establish a program for the voluntary certification by the state of any person who meets criteria as a Certified Access Specialist (CASp). This position requires certain knowledge and training on standards governing access to buildings for persons with disabilities.

Existing law also requires a commercial property owner or lessor to state on every lease form or rental agreement executed on or after January 1, 2017, whether or not the premises have undergone inspection by a CASp.

This bill would define commercial property for the purposes of that provision as property that is offered for sale rent or lease to persons operating, or intending to operate, a place of public accommodation accommodation, as specified, or a facility to which the general public is invited at those premises.

This bill would declare that it is to take effect immediately as an urgency statute.

Existing law requires the State Architect to establish a program for the voluntary certification by the state of any person who meets criteria as a Certified Access Specialist (CASp). This position requires certain knowledge and training on standards governing access to buildings for persons with disabilities.

Existing law also requires a commercial property owner or lessor to state on every lease form or rental agreement executed on or after January 1, 2017, whether or not the premises have undergone inspection by a CASp.

This bill would define commercial property for the purposes of that provision as property that is offered for sale or lease to persons operating, or intending to operate, a place of public accommodation or facility to which the general public is invited at those premises.

This bill would declare that it is to take effect immediately as an urgency statute.

CONCURRENCE IN SENATE AMENDMENTS

CSA1 Bill Id:AB 1148

Author:(Steinorth)

As Amended Ver:June 13, 2017

2/3 vote. Urgency

Original Committee Reference: JUD.

SUMMARY: Defines the term "commercial property" for purposes of an existing statute regarding disclosures that are required to be made by owners or lessors of commercial property to prospective tenants. Specifically, this bill:

1. Defines "commercial property" to mean property that is offered for rent or lease to persons operating, or intending to operate, a place of public accommodation as specified or facility to which the general public is invited, at those premises.
2. Provides that, for the immediate preservation of the public peace, health, or safety within the meaning of California Constitution Article IV, the bill shall go into immediate effect in order "to ensure that Section 1938 of the Civil Code only applies to commercial properties for sale or lease to persons operating, or intending to operate, a place of public accommodation, or facility to where the general public is invited, at those premises as soon as possible."

The Senate amendments remove language referring to property offered for sale and clarify the meaning of "place of public accommodation."

EXISTING LAW:

1. Provides for the certification process in which an applicant may become a certified-access specialist and that the Division of the State Architect shall require each applicant to pay fees that are reasonably necessary to implement the certified access specialist program, including processing, registration, and publishing a list of certified access specialists. (Government Code Section 4459.8.)
2. Requires a commercial property owner or lessor to state on every lease form or rental agreement executed on or after January 1, 2017, whether or not the subject premises have undergone inspection by a Certified Access Specialist (CASp). (Civil Code Section 1938(a). All further statutory references are to the Civil Code, unless otherwise indicated.)
3. Requires a commercial property owner or lessor, if the subject premises have undergone inspection by a CASp and there have been no modifications or alterations completed or commenced between the date of the inspection and the date of the lease or rental agreement which have impacted the subject premises' compliance with construction-related accessibility standards, to provide, prior to execution of the lease or rental agreement, a copy of any report prepared by the CASp with an agreement from the prospective lessee or tenant that information in the report shall remain confidential. (Section 1938(b).)
4. Establishes a presumption that making any repairs or modifications necessary to correct violations of construction-related accessibility standards that are noted in a CASp report is the responsibility of the commercial property owner or lessor, unless otherwise mutually agreed upon by the commercial property owner or lessor and the lessee or tenant. (Section 1938(c).)
5. Guarantees the prospective lessee or tenant the opportunity to review any CASp report prior to execution of the lease or rental agreement. If the report is not provided to the prospective lessee or tenant at least 48 hours prior to execution of the lease or rental agreement, the prospective lessee or tenant shall have the right to rescind the lease or rental agreement, based upon the information contained in the report, for 72 hours after execution of the agreement. (Ibid.)
6. Requires the owner or lessor of the commercial property, if the subject premises have been issued an inspection report by a CASp indicating that it meets applicable standards, to provide a copy of the current disability access inspection certificate and any inspection report to the lessee or tenant not already provided to the prospective lessee or tenant within seven days of the date of the execution of the lease form or rental agreement. (Section 1938(d).)
7. Requires, if the subject premises have not been issued a disability access inspection certificate, as described in subdivision (e) of Section 55.53, the commercial property owner or lessor shall state the following on the lease form or rental agreement:

A Certified Access Specialist (CASp) can inspect the subject premises and determine whether the subject premises comply with all of the applicable construction-related accessibility standards under state law. Although state law does not require a CASp inspection of the subject premises, the commercial property owner or lessor may not prohibit the lessee or tenant from obtaining a CASp inspection of the subject premises for the occupancy or potential occupancy of the lessee or tenant, if requested by the lessee or tenant. The parties shall mutually agree on the arrangements for the time and manner of the CASp inspection, the payment of the fee for the CASp inspection, and the cost of making any repairs necessary to correct violations of construction-related accessibility standards within the premises. (Section 1938(e).)

FISCAL EFFECT: None

COMMENTS: Last year, the Legislature approved and the governor signed AB 2093 (Steinorth), Chapter 379, Statutes of 2016, that enacted a number of measures that are intended to provide additional information to the public and prospective tenants of commercial property and ultimately to promote compliance with disability access laws. Specifically, AB 2093 required owners and lessors of commercial property to do the following: 1) State on every lease form or rental agreement executed after January 1, 2017, whether or not the property being leased has undergone inspection by a CASp; and 2) Provide additional information to the tenant or lessor about the condition of the rented or leased property, specifically the following, depending on whether the property has been inspected by a CASp, been certified to comply with current law, and been altered since the inspection: a) If the property has undergone an inspection (and to the best of the commercial property owner's knowledge, there have been no modifications or alterations completed or commenced between the date of the inspection and the date of the lease or rental agreement which have impacted the property's compliance), the commercial property owner shall provide a copy of any report prepared by the CASp to the lessee or tenant; b) If the property has been issued a current disability access inspection certificate, the commercial property owner shall provide a copy of the certificate or any inspection report to the lessee or tenant within seven days of the date of the execution of the lease form or rental agreement; c) If the property has not undergone an inspection or been issued a current disability access inspection certificate, the commercial property owner shall state on the lease form or rental agreement that the property may not necessarily meet all of the applicable construction-related accessibility standards under state law.

The intent of the law, according to the analysis of AB 2093 by the Judiciary Committee, was to ensure that tenants and lessors of commercial property that was intended to be operated as a public accommodation have as much information as possible about whether the property complies with construction-related accessibility standards prior to signing a lease or rental agreement for the property. For example, the analysis included the following explanation about the need for the bill:

A Commercial Property Owner's Responsibilities to a Prospective Tenant Relative to Disability Access Laws. Under current law, a commercial property owner is required to state on every lease form or rental agreement whether the property has been inspected by a CASp. If the property has undergone a CASP inspection, the lease or rental agreement must state whether the property meets all applicable construction-related accessibility standards. However, because the property owner may not know whether the property has met all applicable-related accessibility standards, the current law may unintentionally create a disincentive for a business property owner to obtain CASp services.

This bill seeks to increase the amount of information that tenants get about commercial property that they may rent or lease, ultimately promoting compliance of commercial property with the ADA and state construction-related accessibility standards.

Despite this clear intent of the author (as well as the understanding of the supporters, many of whom also support this bill) for the bill to apply to commercial property that was intended to be operated as a public accommodation, the bill had unintended consequences and applied to more types of commercial property because it did not define "commercial property." The California Self Storage Association, for example, writing in support of this bill, points out that AB 2093 had the unintended effect of applying to self-storage units. Clearly, as the business coalition, including the California Chamber of Commerce, also points out when it also writes in support of the bill, this was an unintended consequence: "[T]his is not the type of property that is appropriate for a Certified Access Specialist (CASp) inspection and therefore the mandated lease language in AB 2093 is not applicable."

Statement of the author regarding need for, and effect of, the bill. Despite the author's intent to offer assistance to prospective lessors and tenants wishing to operate public accommodations and other facilities open to the general public, AB 2093 was not as clear as it could have been, in terms of the commercial businesses that were affected by its provisions. According to the author:

While AB 2093 provides resources to business and property owners seeking to make their properties compliant with state and federal accessibility standards, it does not define commercial property owner. This oversight led to the unintended consequence of including organizations and properties not intended to be subject to the original bill. This resulted in certain organizations and properties being mistakenly subject to the regulations chaptered in AB 2093.

AB 1148 seeks to clarify existing law created by AB 2093, thereby providing resources to business and property owners seeking to make their properties compliant with state and federal accessibility standards. AB 1148 refines the definition of commercial properties to only apply to properties and property owners that were originally intended to be subjects of AB 2093.

The business coalition writes in support that the bill's "language is meant to bring the statute in line with the intent of [AB 2093] and exclude those properties not accessible to the general public."

Analysis Prepared by: Alison Merrilees / JUD. / (916) 319-2334 FN: 0001029

 THIRD READING  

Bill No: AB 1148

Author:

: 6/13/17

Vote:

SENATE JUDICIARY COMMITTEE: 6-0, 6/6/17

AYES: Jackson, Moorlach, Anderson, Hertzberg, Monning, Wieckowski

NO VOTE RECORDED: Stern

ASSEMBLY FLOOR: 78-0, 4/3/17 (Consent) - See last page for vote

SUBJECT:

SOURCE: Author

DIGEST:

This bill inserts a definition of “commercial property” for purposes of disability access inspection disclosures, with the effect of limiting the disability access inspection disclosure requirements to properties that are being offered for sale or lease to persons operating, or intending to operate, a public accommodation or a facility to which the general public is invited. This bill takes effect immediately as an urgency statute.

ANALYSIS:

Existing law:

1. Establishes a voluntary certification program under the Division of the State Architect through which an applicant may become a Certified Access Specialist (CASp), indicating that the person has expertise in the area of disability access requirements. (Gov. Code Sec. 4459.8.)
2. Provides that, subject to certain conditions, businesses can obtain reductions in statutory damages or protection from liability for construction related disability access lawsuits if the property has been inspected by a CASp. (Civ. Code Sec. 55.56(g).)
3. Requires commercial property owners or lessors to state on every lease form or rental agreement executed on or after January 1, 2017, whether or not the subject premises have undergone inspection by a CASp. (Civ. Code Sec. 1938(a).)
4. Requires commercial property owners or lessors, if the subject premises have undergone inspection by a CASp and there have been no modifications or alterations completed or commenced between the date of the inspection and the date of the lease or rental agreement which have impacted the subject premises’ compliance with construction-related accessibility standards, to provide, prior to execution of the lease or rental agreement, a copy of any report prepared by the CASp with an agreement from the prospective lessee or tenant that information in the report shall remain confidential. (Civ. Code Sec. 1938(b).)
5. Establishes a presumption that making any repairs or modifications necessary to correct violations of construction-related accessibility standards noted in a CASp report is the responsibility of the commercial property owner or lessor, unless otherwise mutually agreed upon by the commercial property owner or lessor and the lessee or tenant. (Civ. Code Sec. 1938 (c).)
6. Guarantees the prospective lessee or tenant the opportunity to review any CASp report prior to execution of the lease or rental agreement. If the report is not provided to the prospective lessee or tenant at least 48 hours prior to execution of the lease or rental agreement, the prospective lessee or tenant shall have the right to rescind the lease or rental agreement, based upon the information contained in the report, for 72 hours after execution of the agreement. (Civ. Code Sec. 1938(c).)
7. Requires the owner or lessor of the commercial property, if the subject premises have been issued an inspection report by a CASp indicating that it meets applicable standards, to provide a copy of the current disability access inspection certificate and any inspection report to the lessee or tenant not already provided to the prospective lessee or tenant within seven days of the date of the execution of the lease form or rental agreement. (Civ. Code Sec. 1938(d).)
8. Requires, if the subject premises have not been issued a disability access inspection certificate, the commercial property owner or lessor shall state the following on the lease form or rental agreement:

“A Certified Access Specialist (CASp) can inspect the subject premises and determine whether the subject premises comply with all of the applicable construction-related accessibility standards under state law. Although state law does not require a CASp inspection of the subject premises, the commercial property owner or lessor may not prohibit the lessee or tenant from obtaining a CASp inspection of the subject premises for the occupancy or potential occupancy of the lessee or tenant, if requested by the lessee or tenant. The parties shall mutually agree on the arrangements for the time and manner of the CASp inspection, the payment of the fee for the CASp inspection, and the cost of making any repairs necessary to correct violations of construction-related accessibility standards within the premises.” (Civ. Code Sec. 1938(e).)

1. Does not define what constitutes “commercial property” for purposes of CASp inspection disclosure requirements.
2. Defines a “place of public accommodation” for the purpose of California building codes as: “a facility operated by a private entity whose operations effect commerce and fall within at least one of the following categories:
   1. Place of lodging, except for an establishment located within a facility that contains not more than five rooms for rent or hire and that actually is occupied by the proprietor of the establishment as the residence of the proprietor. For purposes of this code, a facility is a “place of lodging” if it is (i) an inn, hotel, or motel; or (ii) a facility that (1) provides guest rooms for sleeping for stays that are primarily short-term in nature (generally 30 days or less) where the occupant does not have the right to return to a specific room or unit after the conclusion of his or her stay; and (2) provides guest rooms under conditions and with amenities similar to a hotel, motel, or inn, including the following: (a) on or off site management and reservations services; (b) rooms available on a walk-up or call-in basis; (c) availability of housekeeping or linen service; and (d) acceptance of reservations for a guest room type without guaranteeing a particular unit or room until check-in and without a prior lease or security deposit.
   2. A restaurant, bar, or other establishment serving food and drink.
   3. A motion picture house, theater, concert hall, stadium, or other place of exhibition or entertainment.
   4. An auditorium, convention center, lecture hall, or other place of public gathering.
   5. A bakery, grocery store, clothing store, hardware store, shopping center, or other sales or rental establishment.
   6. A laundromat, dry cleaner, bank, barber shop, beauty shop, travel service, shoe repair service, funeral parlor, gas station, office of an accountant or lawyer, pharmacy, insurance office, professional office of a health care provider, hospital or other service establishment.
   7. A terminal, depot, or other station used for specified public transportation.
   8. A museum, library, gallery, or other place of public display or collection.
   9. A park, zoo, amusement park, or other place of recreation.
   10. A nursery, elementary, secondary, undergraduate, or postgraduate private school, or other place of education.
   11. A day care center, senior citizen center, homeless shelter, food bank, adoption agency, or other social service center establishment.
   12. A gymnasium, health spa, bowling alley, golf course, or other place of exercise or recreation.
   13. A religious facility.
   14. An office building.
   15. A public curb or sidewalk. (24 C.C.R. Sec. 202.)

This bill defines “commercial property” for purposes of CASp inspection report disclosure requirements, as property that is offered for rent or lease to persons operating, or intending to operate, a place of public accommodation as defined in Title 24 of the California Code of Regulations, Part 2, Chapter 2, Section 202, or a facility to which the general public is invited, at those premises.

Background

According to the Department of General Services, a CASp is: “a professional who has passed an examination and has been certified by the State of California to have specialized knowledge of the applicability of state and federal construction-related accessibility standards. A CASp will know which standards apply to your property based on the age of your facility and its history of improvements.” [What is a CASP? California Department of General Services -- http://www.dgs.ca.gov/dsa/ Programs/programCert/casp/consumerfaq.aspx#faq1 -- (as of May 22, 2017).] Obtaining a CASp inspection thus allows a business owner to know whether the physical layout of the business complies with disability access laws and, if not, what adjustments need to be made.

In addition, having a CASp inspection may convey certain legal benefits. Undergoing a CASp inspection entitles the business to “qualified defendant” status, which can reduce the business’ liability exposure in the event that the business is sued in relation to disability access. (Civ. Code Sec. 55.56(g).) “While a licensed design professional, such as an architect or engineer, can provide you an access compliance evaluation of your facility, only a CASp can provide services that offer you “qualified defendant” status in a construction-related accessibility lawsuit.” [Id.]

In 2016, the Legislature enacted Civil Code Section 1938, which sets forth the rules for sharing CASp report information between a commercial landlord and tenant. However, “commercial property” was not defined. As a result, the law covered some leases unintentionally where the purpose of the bill makes little sense. For example, existing law seems to require a self-storage facility to provide notice regarding disability access inspection to each individual storage unit that the facility rents.

This bill adds a definition of “commercial property” so that the statute applies only to commercial property being used as a public accommodation or where the general public is invited.

Comments

Narrowing the scope of the disability access inspection requirement. The function of the CASp program is to help businesses verify whether or not their physical layout complies with disability access requirements. Civil Code Section 55.56(g) encourages businesses to utilize the CASp program by bestowing certain legal benefits on businesses that have undergone CASp inspections. To encourage further awareness of the CASp program, California enacted SB 2093 (Steinorth, Chapter 379, Statutes of 2016) last year. The resulting Civil Code Section 1938 requires commercial property owners and lessors to give prospective lessees or tenants copies of any CASp inspection report, or, if no inspection has been done, a notice regarding the existence of the program and what it does.

Since all of this is arguably good policy, the question arises: why should the definition of commercial property be narrowed, as this bill would do, so as to ensure that the CASp inspection requirements do not apply in some instances? Arguably, requiring notice about the CASp program is confusing and unnecessary when the property in question will not be used as a public accommodation. While it makes good sense to alert a small business owner that the shop she is about to rent has been or can be inspected for disability access compliance, it makes little sense to tell someone renting a space that will not be used for public access that the space can be inspected for disability access compliance.

In the specific case of self-storage facility, for example, disability access to the overall storage facility is critical, but having a disability access inspection done within an individual storage unit makes little sense, since, apart from the lessee or tenant, members of the public will not generally be coming and going from the unit. Moreover, disability law does not require that every storage unit at a facility is accessible to those with disabilities; only that a certain percentage are. [See ADA Standards for Accessible Design (Sept. 25, 2010) U.S. Department of Justice, at 225.3 -- https://www.ada.gov/regs2010/2010ADAStandards/2010ADAstandards. htm -- (as of May 24, 2017).] Providing notice of the CASp program to someone renting a unit in a self-storage facility therefore makes little sense and arguably produces more confusion than clarity.

Related/Prior Legislation

AB 2093 (Steinorth, Chapter 379, Statutes of 2016) enacted a number of measures that provide additional information to the public and prospective tenants of commercial property and ultimately to promote compliance with disability access laws.

SB 262 (Kuehl, Chapter 872, Statutes of 2003) created the CASp program. The purpose of the bill was to meet the public’s need for experienced and trained individuals to inspect both state and federal accessibility compliance standards at buildings throughout the state.

FISCAL EFFECT: Appropriation: Fiscal Com.: Local:

SUPPORT: (Verified 6/12/17)

American Institute of Architects – California Council

Building Owners and Managers Association of California

California Building Industry Association

California Business Properties Association

California Chamber of Commerce

California Self Storage Association

Commercial Real Estate Development Association

International Council of Shopping Centers

NAIOP of California

National Federation of Independent Businesses

OPPOSITION: (Verified 6/12/17)

None received

ARGUMENTS IN SUPPORT: According to the author:

AB 1148 seeks to clarify existing law created by AB 2093, thereby providing resources to business and property owners seeking to make their properties compliant with state and federal accessibility standards. AB 1148 refines the definition of commercial properties to only apply to properties and property owners that were originally intended to be subjects of AB 2093.

In support, the California Self Storage Association writes:

AB 1148 seeks to clarify existing law created by AB 2093 (Steinorth - 2016) by refining the definition of commercial properties to only apply to properties and property owners that were originally intended to be the subjects of AB 2093.

Unfortunately, AB 2093 did not define commercial property owner, which had the unintended consequence of including organizations such as self storage facilities and other properties not intended to be subject to the original bill.

ASSEMBLY FLOOR: 78-0, 4/3/17

AYES: Acosta, Aguiar-Curry, Travis Allen, Arambula, Baker, Berman, Bigelow, Bloom, Bocanegra, Bonta, Brough, Burke, Caballero, Calderon, Cervantes, Chau, Chávez, Chen, Chiu, Choi, Chu, Cooley, Cooper, Cunningham, Dababneh, Dahle, Daly, Eggman, Flora, Fong, Frazier, Friedman, Gallagher, Cristina Garcia, Eduardo Garcia, Gipson, Gloria, Gomez, Gonzalez Fletcher, Gray, Grayson, Harper, Holden, Irwin, Jones-Sawyer, Kalra, Kiley, Lackey, Levine, Limón, Low, Maienschein, Mathis, Mayes, McCarty, Medina, Melendez, Muratsuchi, Nazarian, Obernolte, O'Donnell, Patterson, Quirk, Quirk-Silva, Reyes, Rodriguez, Rubio, Salas, Santiago, Steinorth, Mark Stone, Thurmond, Ting, Voepel, Waldron, Weber, Wood, Rendon

NO VOTE RECORDED: Mullin, Ridley-Thomas

Prepared by:

6/14/17 16:21:15

**** END ****

SENATE JUDICIARY COMMITTEE

Senator Hannah-Beth Jackson, Chair

2017-2018 Regular Session

Bill No: AB 1148 (Author:Steinorth)

Version: February 17, 2017

Hearing Date: June 6, 2017

Fiscal: No

Urgency: Yes

Consultant: TSG

SUBJECT

Commercial property: disclosures: disability access

DESCRIPTION

Under existing law, commercial property owners and lessors are obliged to make certain disclosures regarding disability access inspections. The existing law does not specify which commercial properties are covered by the law. As a result, all commercial properties are covered. This bill would insert a definition of “commercial property” for purposes of disability access inspection disclosures, with the effect of limiting the disability access inspection disclosure requirements to properties that are being offered for sale or lease to persons operating, or intending to operate, a public accommodation or a facility to which the general public is invited. This bill would take effect immediately as an urgency statute.

BACKGROUND

According to the Department of General Services, a Certified Access Specialist (CASp) is: “a professional who has passed an examination and has been certified by the State of California to have specialized knowledge of the applicability of state and federal construction-related accessibility standards. A CASp will know which standards apply to your property based on the age of your facility and its history of improvements.”^[1] Obtaining a CASp inspection thus allows a business owner to know whether the physical layout of the business complies with disability access laws and, if not, what adjustments need to be made.

In addition, having a CASp inspection may convey certain legal benefits. Undergoing a CASp inspection entitles the business to “qualified defendant” status, which can reduce the business’ liability exposure in the event that the business is sued in relation to disability access. (Civ. Code Sec. 55.56(g).) “While a licensed design professional, such as an architect or engineer, can provide you an access compliance evaluation of your facility, only a CASp can provide services that offer you “qualified defendant” status in a construction-related accessibility lawsuit.”^[2]

In 2016, the Legislature enacted Civil Code 1938, which sets forth the rules for sharing CASp report information between a commercial landlord and tenant. However, “commercial property” was not defined. As a result, the law covered some leases unintentionally where the purpose of the bill makes little sense. For example, existing law seems to require a self-storage facility to provide notice regarding disability access inspection to each individual storage unit that the facility rents.

This bill would add a definition of commercial property so that the statute applies only to commercial property being used as a public accommodation or where the general public is invited.

CHANGES TO EXISTING LAW

Existing law establishes a voluntary certification program under the Division of the State Architect through which an applicant may become a Certified Access Specialist (CASp), indicating that the person has expertise in the area of disability access requirements. (Gov. Code Sec. 4459.8.)

Existing law provides that, subject to certain conditions, businesses can obtain reductions in statutory damages or protection from liability for construction related disability access lawsuits if the property has been inspected by a CASp. (Civ. Code Sec. 55.56(g).)

Existing law requires commercial property owners or lessors to state on every lease form or rental agreement executed on or after January 1, 2017, whether or not the subject premises have undergone inspection by a Certified Access Specialist (CASp). (Civ. Code Sec. 1938(a).)

Existing law requires commercial property owners or lessors, if the subject premises have undergone inspection by a CASp and there have been no modifications or alterations completed or commenced between the date of the inspection and the date of the lease or rental agreement which have impacted the subject premises’ compliance with construction-related accessibility standards, to provide, prior to execution of the lease or rental agreement, a copy of any report prepared by the CASp with an agreement from the prospective lessee or tenant that information in the report shall remain confidential. (Civ. Code Sec. 1938(b).)

Existing law establishes a presumption that making any repairs or modifications necessary to correct violations of construction-related accessibility standards noted in a CASp report is the responsibility of the commercial property owner or lessor, unless otherwise mutually agreed upon by the commercial property owner or lessor and the lessee or tenant. (Civ. Code Sec. 1938 (c).)

Existing law guarantees the prospective lessee or tenant the opportunity to review any CASp report prior to execution of the lease or rental agreement. If the report is not provided to the prospective lessee or tenant at least 48 hours prior to execution of the lease or rental agreement, the prospective lessee or tenant shall have the right to rescind the lease or rental agreement, based upon the information contained in the report, for 72 hours after execution of the agreement. (Civ. Code Sec. 1938(c).)

Existing law requires the owner or lessor of the commercial property, if the subject premises have been issued an inspection report by a CASp indicating that it meets applicable standards, to provide a copy of the current disability access inspection certificate and any inspection report to the lessee or tenant not already provided to the prospective lessee or tenant within seven days of the date of the execution of the lease form or rental agreement. (Civ. Code Sec. 1938(d).)

Existing law requires, if the subject premises have not been issued a disability access inspection certificate, the commercial property owner or lessor shall state the following on the lease form or rental agreement:

A Certified Access Specialist (CASp) can inspect the subject premises and determine whether the subject premises comply with all of the applicable construction-related accessibility standards under state law. Although state law does not require a CASp inspection of the subject premises, the commercial property owner or lessor may not prohibit the lessee or tenant from obtaining a CASp inspection of the subject premises for the occupancy or potential occupancy of the lessee or tenant, if requested by the lessee or tenant. The parties shall mutually agree on the arrangements for the time and manner of the CASp inspection, the payment of the fee for the CASp inspection, and the cost of making any repairs necessary to correct violations of construction-related accessibility standards within the premises. (Civ. Code Sec. 1938(e).)

Existing law does not define what constitutes “commercial property” for purposes of CASp inspection disclosure requirements.

This bill would define “commercial property” for purposes of CASp inspection report disclosure requirements, as property that is offered for sale or lease to persons operating, or intending to operate, a public accommodation or facility to which the general public is invited, at those premises.

COMMENT

1. Stated need for the bill

According to the author:

AB 1148 seeks to clarify existing law created by AB 2093, thereby providing resources to business and property owners seeking to make their properties compliant with state and federal accessibility standards. AB 1148 refines the definition of commercial properties to only apply to properties and property owners that were originally intended to be subjects of AB 2093.

In support, the California Self Storage Association writes:

AB 1148 seeks to clarify existing law created by AB 2093 (Steinorth - 2016) by refining the definition of commercial properties to only apply to properties and property owners that were originally intended to be the subjects of AB 2093.

Unfortunately, AB 2093 did not define commercial property owner, which had the unintended consequence of including organizations such as self storage facilities and other properties not intended to be subject to the original bill.

2. Narrowing the scope of the disability access inspection requirement

The function of the CASp program is to help businesses verify whether or not their physical layout complies with disability access requirements. Civil Code Section 55.56(g) encourages businesses to utilize the CASp program by bestowing certain legal benefits on businesses that have undergone CASp inspections. To encourage further awareness of the CASp program, California enacted SB 2093 (Steinorth, Chapter 379, Statutes of 2016) last year. The resulting Civil Code Section 1938 requires commercial property owners and lessors to give prospective lessees or tenants copies of any CASp inspection report, or, if no inspection has been done, a notice regarding the existence of the program and what it does.

Since all of this is arguably good policy, the question arises: why should the definition of commercial property be narrowed, as this bill would do, so as to ensure that the CASp inspection requirements do not apply in some instances? Arguably, requiring notice about the CASp program is confusing and unnecessary when the property in question will not be used as a public accommodation. While it makes good sense to alert a small business owner that the shop she is about to rent has been or can be inspected for disability access compliance, it makes little sense to tell someone renting a space that will not be used for public access that the space can be inspected for disability access compliance.

In the specific case of self-storage facility, for example, disability access to the overall storage facility is critical, but having a disability access inspection done within an individual storage unit makes little sense, since, apart from the lessee or tenant, members of the public will not generally be coming and going from the unit. Moreover, disability law does not require that every storage unit at a facility is accessible to those with disabilities; only that a certain percentage are.^[3] Providing notice of the CASp program to someone renting a unit in a self-storage facility therefore makes little sense and arguably produces more confusion than clarity.

Support: American Institute of Architects – California Council; Building Owners and Managers Association of California; California Building Industry Association; California Business Properties Association; California Chamber of Commerce; California Self Storage Association; Commercial Real Estate Development Association, NAIOP of California; National Federation of Independent Businesses; International Council of Shopping Centers

Opposition: None known

HISTORY

Source: Author

Related Pending Legislation: None known

Prior Legislation:

AB 2093 (Steinorth, Chapter 379, 2016) enacted a number of measures that provide additional information to the public and prospective tenants of commercial property and ultimately to promote compliance with disability access laws.

SB 262 (Kuehl, Chapter 872, Statutes of 2003) created the Certified Access Specialist program (CASp). The purpose of this bill was to meet the public’s need for experienced and trained individuals to inspect both state and federal accessibility compliance standards at buildings throughout the state.

Prior Vote:

Assembly Floor (Ayes 78, Noes 0)

Assembly Judiciary Committee (Ayes 11, Noes 0)

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

1. What is a CASP? California Department of General Services <http://www.dgs.ca.gov/dsa/Programs/

   programCert/casp/consumerfaq.aspx#faq1> (as of May 22, 2017). ↑

2. Id. ↑

3. See ADA Standards for Accessible Design (Sept. 25, 2010) U.S. Department of Justice, at 225.3 <https://www.ada.gov/regs2010/2010ADAStandards/2010ADAstandards.htm> (as of May 24, 2017). ↑

Date of Hearing: March 28, 2017

ASSEMBLY COMMITTEE ON JUDICIARY

Mark Stone, Chair

ABPCA Bill Id:AB 1148

Author:(Steinorth) – As Introduced Ver:February 17, 2017

PROPOSED CONSENT

SUBJECT: COMMERCIAL PROPERTY: DISCLOSURES: DISABILITY ACCESS

KEY ISSUE: SHOULD THE TERM “COMMERCIAL PROPERTY” BE DEFINED SO THAT RECENTLY ENACTED law REQUIRing specific DISCLOSURES BY OWNERS OF COMMERCIAL PROPERTY TO PROSPECTIVE TENANTS will APPLY ONLY TO places of public accommodation, or facilities to which the general public is invited, as INTENDED BY THE original law?

SYNOPSIS

Last year, the Legislature approved and the governor signed AB 2093 (Steinorth), Chapter 379, Statutes of 2016, that enacted a number of measures that are intended to provide additional information to the public and prospective tenants of commercial property and ultimately to promote compliance with disability access laws. The intent of the law, according to this Committee’s analysis of AB 2093, was to ensure that tenants and lessors of commercial property that was intended to be operated as a public accommodation have as much information as possible about whether the property complies with construction-related accessibility standards prior to signing a lease or rental agreement for the property. Despite this clear intent of the author (as well as the understanding of the supporters, many of whom also support this bill) for the bill to apply to commercial property that was intended to be operated as a public accommodation, the bill had unintended consequences and applied to more types of commercial property because it did not define “commercial property.” This bill seeks to resolve the ambiguity and over breadth by defining the term “commercial property” to mean property that is offered for sale or lease to persons operating, or intending to operate, a public accommodation or facility to which the general public is invited, at those premises. As a result, it is supported by a number of business groups that also supported AB 2093, as well as at least one group--the California Self Storage Association—that was inadvertently subject to the requirements imposed by AB 2093. There is no registered opposition to the bill.

SUMMARY: Defines the term “commercial property” for purposes of an existing statute regarding disclosures that are required to be made by owners or lessors of commercial property to prospective tenants. Specifically, this bill:

1. Defines “commercial property” to mean property that is offered for sale or lease to persons operating, or intending to operate, a public accommodation or facility to which the general public is invited, at those premises.
2. Provides that, for the immediate preservation of the public peace, health, or safety within the meaning of Article IV of the California Constitution, the bill shall go into immediate effect in order “to ensure that Section 1938 of the Civil Code only applies to commercial properties for sale or lease to persons operating, or intending to operate, a place of public accommodation, or facility to where the general public is invited, at those premises as soon as possible.”

EXISTING LAW:

1. Provides for the certification process in which an applicant may become a certified-access specialist and that the Division of the State Architect shall require each applicant to pay fees that are reasonably necessary to implement the certified access specialist program, including processing, registration, and publishing a list of certified access specialists. (Government Code Section 4459.8.)
2. Requires a commercial property owner or lessor to state on every lease form or rental agreement executed on or after January 1, 2017, whether or not the subject premises have undergone inspection by a Certified Access Specialist (CASp). (Civil Code Section 1938 (a). All further statutory references are to the Civil Code, unless otherwise indicated.)
3. Requires a commercial property owner or lessor, if the subject premises have undergone inspection by a CASp and there have been no modifications or alterations completed or commenced between the date of the inspection and the date of the lease or rental agreement which have impacted the subject premises’ compliance with construction-related accessibility standards, to provide, prior to execution of the lease or rental agreement, a copy of any report prepared by the CASp with an agreement from the prospective lessee or tenant that information in the report shall remain confidential. (Section 1938 (b).)
4. Establishes a presumption that making any repairs or modifications necessary to correct violations of construction-related accessibility standards that are noted in a CASp report is the responsibility of the commercial property owner or lessor, unless otherwise mutually agreed upon by the commercial property owner or lessor and the lessee or tenant. (Section 1938 (c).)
5. Guarantees the prospective lessee or tenant the opportunity to review any CASp report prior to execution of the lease or rental agreement. If the report is not provided to the prospective lessee or tenant at least 48 hours prior to execution of the lease or rental agreement, the prospective lessee or tenant shall have the right to rescind the lease or rental agreement, based upon the information contained in the report, for 72 hours after execution of the agreement. (Ibid.)
6. Requires the owner or lessor of the commercial property, if the subject premises have been issued an inspection report by a CASp indicating that it meets applicable standards, to provide a copy of the current disability access inspection certificate and any inspection report to the lessee or tenant not already provided to the prospective lessee or tenant within seven days of the date of the execution of the lease form or rental agreement. (Section 1938 (d).)
7. Requires, if the subject premises have not been issued a disability access inspection certificate, as described in subdivision (e) of Section 55.53, the commercial property owner or lessor shall state the following on the lease form or rental agreement:

A Certified Access Specialist (CASp) can inspect the subject premises and determine whether the subject premises comply with all of the applicable construction-related accessibility standards under state law. Although state law does not require a CASp inspection of the subject premises, the commercial property owner or lessor may not prohibit the lessee or tenant from obtaining a CASp inspection of the subject premises for the occupancy or potential occupancy of the lessee or tenant, if requested by the lessee or tenant. The parties shall mutually agree on the arrangements for the time and manner of the CASp inspection, the payment of the fee for the CASp inspection, and the cost of making any repairs necessary to correct violations of construction-related accessibility standards within the premises. (Section 1938 (e).)

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

COMMENTS: Last year, the Legislature approved and the governor signed AB 2093 (Steinorth), Chapter 379, Statutes of 2016, that enacted a number of measures that are intended to provide additional information to the public and prospective tenants of commercial property and ultimately to promote compliance with disability access laws. Specifically, AB 2093 required owners and lessors of commercial property to do the following: 1) State on every lease form or rental agreement executed after January 1, 2017, whether or not the property being leased has undergone inspection by a CASp; and 2) Provide additional information to the tenant or lessor about the condition of the rented or leased property, specifically the following, depending on whether the property has been inspected by a CASp, been certified to comply with current law, and been altered since the inspection: (a) If the property has undergone an inspection (and to the best of the commercial property owner’s knowledge, there have been no modifications or alterations completed or commenced between the date of the inspection and the date of the lease or rental agreement which have impacted the property’s compliance), the commercial property owner shall provide a copy of any report prepared by the CASp to the lessee or tenant; (b) If the property has been issued a current disability access inspection certificate, the commercial property owner shall provide a copy of the certificate or any inspection report to the lessee or tenant within seven days of the date of the execution of the lease form or rental agreement; (c) If the property has not undergone an inspection or been issued a current disability access inspection certificate, the commercial property owner shall state on the lease form or rental agreement that the property may not necessarily meet all of the applicable construction-related accessibility standards under state law.

The intent of the law, according to the analysis of AB 2093 by this Committee, was to ensure that tenants and lessors of commercial property that was intended to be operated as a public accommodation have as much information as possible about whether the property complies with construction-related accessibility standards prior to signing a lease or rental agreement for the property. For example, the analysis included the following explanation about the need for the bill:

A Commercial Property Owner’s Responsibilities to a Prospective Tenant Relative to Disability Access Laws. Under current law, a commercial property owner is required to state on every lease form or rental agreement whether the property has been inspected by a CASp. If the property has undergone a CASP inspection, the lease or rental agreement must state whether the property meets all applicable construction-related accessibility standards. However, because the property owner may not know whether the property has met all applicable-related accessibility standards, the current law may unintentionally create a disincentive for a business property owner to obtain CASp services.

This bill seeks to increase the amount of information that tenants get about commercial property that they may rent or lease, ultimately promoting compliance of commercial property with the ADA and state construction-related accessibility standards.

Despite this clear intent of the author (as well as the understanding of the supporters, many of whom also support this bill) for the bill to apply to commercial property that was intended to be operated as a public accommodation, the bill had unintended consequences and applied to more types of commercial property because it did not define “commercial property.” The California Self Storage Association, for example, writing in support of this bill, points out that AB 2093 had the unintended effect of applying to self-storage units. Clearly, as the business coalition, including the California Chamber of Commerce, also points out when it also writes in support of the bill, this was an unintended consequence: “[T]his is not the type of property that is appropriate for a Certified Access Specialist (CASp) inspection and therefore the mandated lease language in AB 2093 is not applicable.”

Statement of the author regarding need for, and effect of, the bill. Despite the author’s intent to offer assistance to prospective lessors and tenants wishing to operate public accommodations and other facilities open to the general public, AB 2093 was not as clear as it could have been, in terms of the commercial businesses that were affected by its provisions. According to the author:

While AB 2093 provides resources to business and property owners seeking to make their properties compliant with state and federal accessibility standards, it does not define commercial property owner. This oversight led to the unintended consequence of including organizations and properties not intended to be subject to the original bill. This resulted in certain organizations and properties being mistakenly subject to the regulations chaptered in AB 2093.

AB 1148 seeks to clarify existing law created by AB 2093, thereby providing resources to business and property owners seeking to make their properties compliant with state and federal accessibility standards. AB 1148 refines the definition of commercial properties to only apply to properties and property owners that were originally intended to be subjects of AB 2093.

In order to correct the unintended over breadth of AB 2093, as proposed by the author, this bill seeks to amend the language that was codified by AB 2093 by adding subdivision (f) to Section 2093:

(f) As used in this section, “commercial property” means property that is offered for sale or lease to persons operating, or intending to operate, a public accommodation or facility to which the general public is invited, at those premises.

The business coalition writes the following in support of the bill:

AB 1148 focuses the law on those properties that are offered “for sale or lease as a public accommodation or facility to which the general public is invited, at those premises.” This language is meant to bring the statute in line with the intent of the bill and exclude those properties not accessible to the general public.

REGISTERED SUPPORT / OPPOSITION:

Support

American Institute of Architects California Council

Building Owners and Managers Association of California

California Chamber of Commerce

California Building Industry Association

California Business Properties Association

California Self Storage Association

Commercial Real Estate Development Association, NAIOP of California

International Council of Shopping Centers

National Federation of Independent Businesses

Opposition

None on file

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