Bill Text: CA SB269 | 2015-2016 | Regular Session | Chaptered
Bill Title: Disability access.
Spectrum: Bipartisan Bill
Status: (Passed) 2016-05-10 - Chaptered by Secretary of State. Chapter 13, Statutes of 2016. [SB269 Detail]
Download: California-2015-SB269-Chaptered.html
BILL NUMBER: SB 269 CHAPTERED
BILL TEXT
CHAPTER 13
FILED WITH SECRETARY OF STATE MAY 10, 2016
APPROVED BY GOVERNOR MAY 10, 2016
PASSED THE SENATE APRIL 25, 2016
PASSED THE ASSEMBLY APRIL 21, 2016
AMENDED IN ASSEMBLY JANUARY 25, 2016
AMENDED IN ASSEMBLY JANUARY 11, 2016
AMENDED IN SENATE APRIL 6, 2015
INTRODUCED BY Senators Roth and Vidak
(Principal coauthor: Senator Galgiani)
(Coauthors: Senators Anderson, Moorlach, Morrell, and Nielsen)
(Coauthors: Assembly Members Cooper, Eggman, Gray, Linder, O'
Donnell, and Olsen)
FEBRUARY 19, 2015
An act to amend Sections 55.53 and 55.56 of the Civil Code, and to
amend Sections 4459.7, 4459.8, and 8299.06 of, to add Section
65941.6 to, and to add Article 4 (commencing with Section 65946) to
Chapter 4.5 of Division 1 of Title 7 of, the Government Code,
relating to disability access, and declaring the urgency thereof, to
take effect immediately.
LEGISLATIVE COUNSEL'S DIGEST
SB 269, Roth. Disability access.
(1) Existing law prohibits discrimination on the basis of various
specified personal characteristics, including disability. The
Construction-Related Accessibility Standards Compliance Act
establishes standards for making new construction and existing
facilities accessible to persons with disabilities and provides for
construction-related accessibility claims for violations of those
standards. Existing law specifies that a violation of
construction-related accessibility standards personally encountered
by a plaintiff may be sufficient to cause a denial of full and equal
access if the plaintiff experienced difficulty, discomfort, or
embarrassment because of the violation. Under existing law, a
defendant is liable for actual damages plus minimum statutory damages
for each instance of discrimination relating to a
construction-related accessibility standard.
This bill would, for claims filed on and after its effective date,
establish a rebuttable presumption, for the purpose of an award of
minimum statutory damages, that certain technical violations do not
cause a plaintiff to experience difficulty, discomfort, or
embarrassment, if specified conditions are met. This bill would also
exempt a defendant from liability for minimum statutory damages with
respect to a structure or area inspected by a certified access
specialist for a period of 120 days if specified conditions are met.
The bill would require a defendant who claims the benefit of this
exemption to disclose the date and findings of any certified access
specialist (CASp) inspection to the plaintiff.
(2) Existing law requires the State Architect to establish and
publicize a program for the voluntary certification by the state of
any person who meets specified criteria as a CASp. Existing law
requires the State Architect to annually publish a list of CASps.
Existing law requires each applicant for CASp certification or
renewal to pay certain fees, and requires the State Architect to
periodically review those fees, as specified. Existing law provides
for the deposit of those fees into the Certified Access Specialist
Fund, which is continuously appropriated for use by the State
Architect to implement the CASp program.
This bill would additionally require the State Architect to
publish, and regularly update, easily accessible lists of businesses
that file prescribed notices of inspection, and businesses which have
been inspected by a CASp on or after January 1, 2017, including the
date of the inspection. The bill would require the State Architect to
develop a process by which a small business may notify the State
Architect that a structure or area has had a CASp inspection and to
develop a form for businesses to notify the public that the business
has obtained a CASp inspection. The bill would also require
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 would require the Division of the State Architect to
post that information on its Internet Web site.
(3) Existing law establishes the California Commission on
Disability Access for purposes of developing recommendations to
enable persons with disabilities to exercise their right to full and
equal access to public facilities and facilitating business
compliance with applicable state and federal laws and regulations.
Existing law sets forth the powers and duties of the commission,
including developing educational materials and information for
businesses, building owners, tenants, and building officials, posting
that information on the commission's Internet Web site, and
coordinating with other state agencies and local building departments
to ensure that information provided to the public on disability
access requirements is uniform and complete.
This bill would additionally require the commission to provide a
link on its Internet Web site to the Internet Web site of the
Division of the State Architect's CASp certification program, and
make the commission's educational materials and information available
to other state agencies and local building departments.
(4) The Permit Streamlining Act establishes procedures for the
application, and review of an application, for a development project.
Existing law requires a public agency to notify applicants for
development permits of specified information, including the time
limits established for the review and approval of development
permits.
This bill would additionally require local agencies to develop and
provide to applicants materials relating to the requirements of the
federal Americans with Disabilities Act of 1990, or to instead
provide similar materials developed by the California Commission on
Disability Access. The bill would require a local agency to notify an
applicant that approval of a permit does not signify that the
applicant has complied with that act. The bill would also require
local agencies to expedite review of projects for which the applicant
provides a copy of a disability access certificate, demonstrates
that the project is necessary to address an alleged violation of a
construction-related access standard or a violation noted in a CASp
report, and, if project plans are necessary for approval, has had a
CASp review the project plans for compliance with all applicable
construction-related accessibility standards. The bill would declare
that these provisions constitute a matter of statewide concern and
would apply to charter cities and charter counties.
(5) By imposing additional duties on local agencies with respect
to the receipt and review of applications for development project
permits, this bill would impose a state-mandated local program.
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 no reimbursement is required by this
act for a specified reason.
(6) This bill would declare that it is to take effect immediately
as an urgency statute.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 55.53 of the Civil Code is amended to read:
55.53. (a) For purposes of this part, a certified access
specialist shall, upon completion of the inspection of a site, comply
with the following:
(1) For a meets applicable standards site, if the CASp determines
the site meets all applicable construction-related accessibility
standards, the CASp shall provide a written inspection report to the
requesting party that includes both of the following:
(A) An identification and description of the inspected structures
and areas of the site.
(B) A signed and dated statement that includes both of the
following:
(i) A statement that, in the opinion of the CASp, the inspected
structures and areas of the site meet construction-related
accessibility standards. The statement shall clearly indicate whether
the determination of the CASp includes an assessment of readily
achievable barrier removal.
(ii) If corrections were made as a result of the CASp inspection,
an itemized list of all corrections and dates of completion.
(2) For an inspected by a CASp site, if the CASp determines that
corrections are needed to the site in order for the site to meet all
applicable construction-related accessibility standards, the CASp
shall provide a signed and dated written inspection report to the
requesting party that includes all of the following:
(A) An identification and description of the inspected structures
and areas of the site.
(B) The date of the inspection.
(C) A statement that, in the opinion of the CASp, the inspected
structures and areas of the site need correction to meet
construction-related accessibility standards. This statement shall
clearly indicate whether the determination of the CASp includes an
assessment of readily achievable barrier removal.
(D) An identification and description of the structures or areas
of the site that need correction and the correction needed.
(E) A schedule of completion for each of the corrections within a
reasonable timeframe.
(3) The CASp shall provide, within 30 days of the date of the
inspection of a business that qualifies for the provisions of
subparagraph (A) of paragraph (3) of subdivision (g) of Section
55.56, a copy of a report prepared pursuant to that subparagraph to
the business.
(4) The CASp shall file, within 10 days of inspecting a business
pursuant to subparagraph (A) of paragraph (3) of subdivision (g) of
Section 55.56, a notice with the State Architect for listing on the
State Architect's Internet Web site, as provided by subdivision (d)
of Section 4459.7 of the Government Code, indicating that the CASp
has inspected the business, the name and address of the business, the
date of the filing, the date of the inspection of the business, the
name and license number of the CASp, and a description of the
structure or area inspected by the CASp.
(5) The CASp shall post the notice described in paragraph (4), in
a form prescribed by the State Architect, in a conspicuous location
within five feet of all public entrances to the building on the date
of the inspection and instruct the business to keep it in place until
the earlier of either of the following:
(A) One hundred twenty days after the date of the inspection.
(B) The date when all of the construction-related violations in
the structure or area inspected by the CASp are corrected.
(b) For purposes of this section, in determining whether the site
meets applicable construction-related accessibility standards when
there is a conflict or difference between a state and federal
provision, standard, or regulation, the state provision, standard, or
regulation shall apply unless the federal provision, standard, or
regulation is more protective of accessibility rights.
(c) Every CASp who conducts an inspection of a place of public
accommodation shall, upon completing the inspection of the site,
provide the building owner or tenant who requested the inspection
with the following notice, which the State Architect shall make
available as a form on the State Architect's Internet Web site:
NOTICE TO PRIVATE PROPERTY OWNER/TENANT:
YOU ARE ADVISED TO KEEP IN YOUR RECORDS ANY WRITTEN INSPECTION
REPORT AND ANY OTHER DOCUMENTATION CONCERNING YOUR PROPERTY SITE THAT
IS GIVEN TO YOU BY A CERTIFIED ACCESS SPECIALIST.
IF YOU BECOME A DEFENDANT IN A LAWSUIT THAT INCLUDES A CLAIM
CONCERNING A SITE INSPECTED BY A CERTIFIED ACCESS SPECIALIST, YOU MAY
BE ENTITLED TO A COURT STAY (AN ORDER TEMPORARILY STOPPING ANY
LAWSUIT) OF THE CLAIM AND AN EARLY EVALUATION CONFERENCE.
IN ORDER TO REQUEST THE STAY AND EARLY EVALUATION CONFERENCE, YOU
WILL NEED TO VERIFY THAT A CERTIFIED ACCESS SPECIALIST HAS INSPECTED
THE SITE THAT IS THE SUBJECT OF THE CLAIM. YOU WILL ALSO BE REQUIRED
TO PROVIDE THE COURT AND THE PLAINTIFF WITH THE COPY OF A WRITTEN
INSPECTION REPORT BY THE CERTIFIED ACCESS SPECIALIST, AS SET FORTH IN
CIVIL CODE SECTION 55.54. THE APPLICATION FORM AND INFORMATION ON
HOW TO REQUEST A STAY AND EARLY EVALUATION CONFERENCE MAY BE OBTAINED
AT www.courts.ca.gov/selfhelp-start.htm.
YOU ARE ENTITLED TO REQUEST, FROM A CERTIFIED ACCESS SPECIALIST
WHO HAS CONDUCTED AN INSPECTION OF YOUR PROPERTY, A WRITTEN
INSPECTION REPORT AND OTHER DOCUMENTATION AS SET FORTH IN CIVIL CODE
SECTION 55.53. YOU ARE ALSO ENTITLED TO REQUEST THE ISSUANCE OF A
DISABILITY ACCESS INSPECTION CERTIFICATE, WHICH YOU MAY POST ON YOUR
PROPERTY.
(d) (1) Commencing July 1, 2010, a local agency shall employ or
retain at least one building inspector who is a certified access
specialist. The certified access specialist shall provide
consultation to the local agency, permit applicants, and members of
the public on compliance with state construction-related
accessibility standards with respect to inspections of a place of
public accommodation that relate to permitting, plan checks, or new
construction, including, but not limited to, inspections relating to
tenant improvements that may impact access. 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.
(2) Commencing January 1, 2014, a local agency shall employ or
retain a sufficient number of building inspectors who are certified
access specialists 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. 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.
(3) If a permit applicant or member of the public requests
consultation from a certified access specialist, the local agency may
charge an amount limited to a reasonable hourly rate, an estimate of
which shall be provided upon request in advance of the consultation.
A local government may additionally charge or increase permitting,
plan check, or inspection fees to the extent necessary to offset the
costs of complying with this subdivision. Any revenues generated from
an hourly or other charge or fee increase under this subdivision
shall be used solely to offset the costs incurred to comply with this
subdivision. A CASp inspection pursuant to subdivision (a) by a
building inspector who is a certified access specialist shall be
treated equally for legal and evidentiary purposes as an inspection
conducted by a private CASp. Nothing in this subdivision shall
preclude permit applicants or any other person with a legal interest
in the property from retaining a private CASp at any time.
(e) (1) Every CASp who completes an inspection of a place of
public accommodation shall, upon a determination that the site meets
applicable standards pursuant to paragraph (1) of subdivision (a) or
is inspected by a CASp pursuant to paragraph (2) of subdivision (a),
provide the building owner or tenant requesting the inspection with a
numbered disability access inspection certificate indicating that
the site has undergone inspection by a certified access specialist.
The disability access inspection certificate shall be dated and
signed by the CASp inspector, and shall contain the inspector's name
and license number. Upon issuance of a certificate, the CASp shall
record the issuance of the numbered certificate, the name and address
of the recipient, and the type of report issued pursuant to
subdivision (a) in a record book the CASp shall maintain for that
purpose.
(2) Beginning March 1, 2009, the State Architect shall make
available for purchase by any local building department or CASp
sequentially numbered disability access inspection certificates that
are printed with a watermark or other feature to deter forgery and
that comply with the information requirements specified in
subdivision (a).
(3) The disability access inspection certificate may be posted on
the premises of the place of public accommodation, unless, following
the date of inspection, the inspected site has been modified or
construction has commenced to modify the inspected site in a way that
may impact compliance with construction-related accessibility
standards.
(f) Nothing in this section or any other law is intended to
require a property owner or tenant to hire a CASp. A property owner's
or tenant's election not to hire a CASp shall not be admissible to
prove that person's lack of intent to comply with the law.
SEC. 2. Section 55.56 of the Civil Code is amended to read:
55.56. (a) Statutory damages under either subdivision (a) of
Section 52 or subdivision (a) of Section 54.3 may be recovered in a
construction-related accessibility claim against a place of public
accommodation only if a violation or violations of one or more
construction-related accessibility standards denied the plaintiff
full and equal access to the place of public accommodation on a
particular occasion.
(b) A plaintiff is denied full and equal access only if the
plaintiff personally encountered the violation on a particular
occasion, or the plaintiff was deterred from accessing a place of
public accommodation on a particular occasion.
(c) A violation personally encountered by a plaintiff may be
sufficient to cause a denial of full and equal access if the
plaintiff experienced difficulty, discomfort, or embarrassment
because of the violation.
(d) A plaintiff demonstrates that he or she was deterred from
accessing a place of public accommodation on a particular occasion
only if both of the following apply:
(1) The plaintiff had actual knowledge of a violation or
violations that prevented or reasonably dissuaded the plaintiff from
accessing a place of public accommodation that the plaintiff intended
to use on a particular occasion.
(2) The violation or violations would have actually denied the
plaintiff full and equal access if the plaintiff had accessed the
place of public accommodation on that particular occasion.
(e) (1) The following technical violations are presumed to not
cause a person difficulty, discomfort, or embarrassment for the
purpose of an award of minimum statutory damages in a
construction-related accessibility claim, as set forth in subdivision
(c), where the defendant is a small business, as described by
subparagraph (B) of paragraph (2) of subdivision (g), the defendant
has corrected, within 15 days of the service of a summons and
complaint asserting a construction-related accessibility claim or
receipt of a written notice, whichever is earlier, all of the
technical violations that are the basis of the claim, and the claim
is based on one or more of the following violations:
(A) Interior signs, other than directional signs or signs that
identify the location of accessible elements, facilities, or
features, when not all such elements, facilities, or features are
accessible.
(B) The lack of exterior signs, other than parking signs and
directional signs, including signs that indicate the location of
accessible pathways or entrance and exit doors when not all pathways,
entrance and exit doors are accessible.
(C) The order in which parking signs are placed or the exact
location or wording of parking signs, provided that the parking signs
are clearly visible and indicate the location of accessible parking
and van-accessible parking.
(D) The color of parking signs, provided that the color of the
background contrasts with the color of the information on the sign.
(E) The color of parking lot striping, provided that it exists and
provides sufficient contrast with the surface upon which it is
applied to be reasonably visible.
(F) Faded, chipped, damaged, or deteriorated paint in otherwise
fully compliant parking spaces and passenger access aisles in parking
lots, provided that it indicates the required dimensions of a
parking space or access aisle in a manner that is reasonably visible.
(G) The presence or condition of detectable warning surfaces on
ramps, except where the ramp is part of a pedestrian path of travel
that intersects with a vehicular lane or other hazardous area.
(2) The presumption set forth in paragraph (1) affects the
plaintiff's burden of proof and is rebuttable by evidence showing, by
a preponderance of the evidence, that the plaintiff did, in fact,
experience difficulty, discomfort, or embarrassment on the particular
occasion as a result of one or more of the technical violations
listed in paragraph (1).
(3) This subdivision shall apply only to claims filed on or after
the effective date of Senate Bill 269 of the 2015-16 Regular Session.
(f) Statutory damages may be assessed pursuant to subdivision (a)
based on each particular occasion that the plaintiff was denied full
and equal access, and not upon the number of violations of
construction-related accessibility standards identified at the place
of public accommodation where the denial of full and equal access
occurred. If the place of public accommodation consists of distinct
facilities that offer distinct services, statutory damages may be
assessed based on each denial of full and equal access to the
distinct facility, and not upon the number of violations of
construction-related accessibility standards identified at the place
of public accommodation where the denial of full and equal access
occurred.
(g) (1) Notwithstanding any other law, a defendant's liability for
statutory damages in a construction-related accessibility claim
against a place of public accommodation is reduced to a minimum of
one thousand dollars ($1,000) for each offense if the defendant
demonstrates that it has corrected all construction-related
violations that are the basis of a claim within 60 days of being
served with the complaint, and the defendant demonstrates any of the
following:
(A) The structure or area of the alleged violation was determined
to be "CASp-inspected" or "meets applicable standards" and, to the
best of the defendant's knowledge, there were no modifications or
alterations that impacted compliance with construction-related
accessibility standards with respect to the plaintiff's claim that
were completed or commenced between the date of that determination
and the particular occasion on which the plaintiff was allegedly
denied full and equal access.
(B) The structure or area of the alleged violation was the subject
of an inspection report indicating "CASp determination pending" or
"Inspected by a CASp," and the defendant has either implemented
reasonable measures to correct the alleged violation before the
particular occasion on which the plaintiff was allegedly denied full
and equal access, or the defendant was in the process of correcting
the alleged violation within a reasonable time and manner before the
particular occasion on which the plaintiff was allegedly denied full
and equal access.
(C) For a claim alleging a construction-related accessibility
violation filed before January 1, 2018, the structure or area of the
alleged violation was a new construction or an improvement that was
approved by, and passed inspection by, the local building department
permit and inspection process on or after January 1, 2008, and before
January 1, 2016, and, to the best of the defendant's knowledge,
there were no modifications or alterations that impacted compliance
with respect to the plaintiff's claim that were completed or
commenced between the completion date of the new construction or
improvement and the particular occasion on which the plaintiff was
allegedly denied full and equal access.
(D) The structure or area of the alleged violation was new
construction or an improvement that was approved by, and passed
inspection by, a local building department official who is a
certified access specialist, and, to the best of the defendant's
knowledge, there were no modifications or alterations that affected
compliance with respect to the plaintiff's claim that were completed
or commenced between the completion date of the new construction or
improvement and the particular occasion on which the plaintiff was
allegedly denied full and equal access.
(2) Notwithstanding any other law, a defendant's liability for
statutory damages in a construction-related accessibility claim
against a place of public accommodation is reduced to a minimum of
two thousand dollars ($2,000) for each offense if the defendant
demonstrates both of the following:
(A) The defendant has corrected all construction-related
violations that are the basis of a claim within 30 days of being
served with the complaint.
(B) The defendant is a small business that has employed 25 or
fewer employees on average over the past three years, or for the
years it has been in existence if less than three years, as evidenced
by wage report forms filed with the Economic Development Department,
and has average annual gross receipts of less than three million
five hundred thousand dollars ($3,500,000) over the previous three
years, or for the years it has been in existence if less than three
years, as evidenced by federal or state income tax returns. The
average annual gross receipts dollar amount shall be adjusted
biannually by the Department of General Services for changes in the
California Consumer Price Index for All Urban Consumers, as compiled
by the Department of Industrial Relations. The Department of General
Services shall post that adjusted amount on its Internet Web site.
(3) (A) Notwithstanding any other law, a defendant shall not be
liable for minimum statutory damages in a construction-related
accessibility claim, with respect to a violation noted in a report by
a certified access specialist (CASp), for a period of 120 days
following the date of the inspection if the defendant demonstrates
compliance with each of the following:
(i) The defendant is a business that, as of the date of
inspection, has employed 50 or fewer employees on average over the
past three years, or for the years it has been in existence if less
than three years, as evidenced by wage report forms filed with the
Employment Development Department.
(ii) The structure or area of the alleged violation was the
subject of an inspection report indicating "CASp determination
pending" or "Inspected by a CASp."
(iii) The inspection predates the filing of the claim by, or
receipt of a demand letter from, the plaintiff regarding the alleged
violation of a construction-related accessibility standard, and the
defendant was not on notice of the alleged violation prior to the
CASp inspection.
(iv) The defendant has corrected, within 120 days of the date of
the inspection, all construction-related violations in the structure
or area inspected by the CASp that are noted in the CASp report that
are the basis of the claim.
(B) Notwithstanding any other law, a defendant who claims the
benefit of the reduction of, or protection from liability for,
minimum statutory damages under this subdivision shall disclose the
date and findings of any CASp inspection to a plaintiff if relevant
to a claim or defense in an action.
(4) A defendant may claim the protection from liability for
minimum statutory damages under paragraph (3) only once for each
structure or area inspected by a CASp, unless the inspected structure
or area has undergone modifications or alterations that affect the
compliance with construction-related accessibility standards of those
structures or areas after the date of the last inspection, and the
defendant obtains an additional CASp inspection within 30 days of
final approval by the building department or certificate of
occupancy, as appropriate, regarding the modification or alterations.
(5) If the defendant has failed to correct, within 120 days of the
date of the inspection, all construction-related violations in the
structure or area inspected by the CASp that are noted in the CASp
report, the defendant shall not receive any protection from liability
for minimum statutory damages pursuant to paragraph (3), unless a
building permit is required for the repairs which cannot reasonably
be completed by the defendant within 120 days and the defendant is in
the process of correcting the violations noted in the CASp report,
as evidenced by having, at least, an active building permit necessary
for the repairs to correct the violation that was noted, but not
corrected, in the CASp report and all of the repairs are completed
within 180 days of the date of the inspection.
(6) This subdivision shall not be applicable to intentional
violations.
(7) Nothing in this subdivision affects the awarding of actual
damages, or affects the awarding of treble actual damages.
(8) This subdivision shall apply only to claims filed on or after
the effective date of Chapter 383 of the Statutes of 2012, except for
paragraphs (3), (4), and (5), which shall apply only to claims filed
on or after the effective date of Senate Bill 269 of the 2015-16
Regular Session. Nothing in this subdivision is intended to affect a
complaint filed before those dates, as applicable.
(h) This section does not alter the applicable law for the
awarding of injunctive or other equitable relief for a violation or
violations of one or more construction-related accessibility
standards, nor alter any legal obligation of a party to mitigate
damages.
(i) In assessing liability under subdivision (d), in an action
alleging multiple claims for the same construction-related
accessibility violation on different particular occasions, the court
shall consider the reasonableness of the plaintiff's conduct in light
of the plaintiff's obligation, if any, to mitigate damages.
(j) For purposes of this section, the "structure or area inspected"
means one of the following: the interior of the premises, the
exterior of the premises, or both the interior and exterior.
SEC. 3. Section 4459.7 of the Government Code is amended to read:
4459.7. (a) (1) No later than October 31 of each year, the State
Architect shall publish and make available to the public a list of
certified access specialists who have met the requirements of Section
4459.5.
(2) The State Architect shall publish and regularly update on its
Internet Web site easily accessible lists of all of the following:
(A) Businesses that have obtained a CASp inspection and have
filed, or a CASp has filed on their behalf, a notice pursuant to
paragraph (4) of subdivision (a) of Section 55.53 of the Civil Code.
(B) Businesses which have been inspected by a certified access
specialist on or after January 1, 2017, including the date of the
inspection.
(3) The lists required pursuant to this section shall include a
written disclaimer of liability as specified in subdivision (b).
(b) Notwithstanding any other provision of law, a state agency or
employee of a state agency may not be held liable for any injury or
damages resulting from any service provided by a certified access
specialist whose name appears on the list published pursuant to
subdivision (a).
(c) The State Architect may perform periodic audits of work
performed by a certified access specialist as deemed necessary to
ensure the desired standard of performance. A certified access
specialist shall provide an authorized representative of the State
Architect with complete access, at any reasonable hour of the day, to
all technical data, reports, records, photographs, design outlines
and plans, and files used in building inspection and plan review,
with the exception of proprietary and confidential information.
(d) By January 1, 2017, the State Architect shall develop a
process by which a certified access specialist (CASp) may notify the
State Architect that a structure or area on the premises of a
business has been inspected by a CASp and to notify the public that
the business has a "CASp determination pending," or has been
"Inspected by a CASp," as provided by paragraph (3) of subdivision
(g) of Section 55.56 of the Civil Code, which shall include the name
and address of the business, the date of the notification, the date
of the inspection of the business, the name and license number of the
CASp, and a description of the structure or area inspected by a
CASp.
(e) By January 1, 2017, the State Architect shall develop a form
for a business to notify the public that the business has obtained a
CASp inspection pursuant to paragraph (3) of subdivision (g) of
Section 55.56 of the Civil Code, which shall include the date of the
notification, the date of the inspection, and a description of the
structure or area inspected by a CASp.
(f) For purposes of this section, the "structure or area inspected"
means one of the following: the interior of the premises, the
exterior of the premises, or both the interior and exterior.
SEC. 4. Section 4459.8 of the Government Code is amended to read:
4459.8. (a) The certification authorized by Section 4459.5 is
effective for three years from the date of initial certification and
expires if not renewed. The State Architect, upon consideration of
any factual complaints regarding the work of a certified access
specialist or of other relevant information, may suspend
certification or deny renewal of certification.
(b) (1) The State Architect shall require each applicant for
certification as a certified access specialist to do both of the
following:
(A) Pay 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 certified access
specialist program.
(B) Provide to the State Architect the name of the city, county,
or city and county in which the applicant intends to provide
services.
(2) The State Architect shall require each applicant for renewal
of certification to do both of the following:
(A) Pay a fee sufficient to cover the reasonable costs of
reassessing qualifications of renewal applicants.
(B) Provide to the State Architect the name of the city, county,
or city and county in which the applicant has provided services since
the last day of certification by the State Architect.
(3) The State Architect shall periodically review his or her
schedule of fees to ensure that the fees for certification are not
excessive while covering the costs to administer the certified access
specialist program. The application fee for a California licensed
architect, landscape architect, civil engineer, or structural
engineer shall not exceed two hundred fifty dollars ($250).
(c) All fees collected pursuant to this section shall be deposited
into the Certified Access Specialist Fund, which is hereby created
in the State Treasury. Notwithstanding Section 13340, this fund is
continuously appropriated without regard to fiscal years for use by
the State Architect to implement Sections 4459.5 to 4459.8,
inclusive.
(d) The State Architect shall post on his or her Internet Web site
the name of the city, county, or city and county in which each
certified access specialist provides or intends to provide services.
SEC. 5. Section 8299.06 of the Government Code is amended to read:
8299.06. (a) A priority of the commission shall be the
development and dissemination of educational materials and
information to promote and facilitate disability access compliance.
(b) The commission shall work with other state agencies, including
the Division of the State Architect and the Department of
Rehabilitation, to develop educational materials and information for
use by businesses to understand its obligations to provide disability
access and to facilitate compliance with construction-related
accessibility standards.
(c) The commission shall develop and make available on its
Internet Web site, or make available on its Internet Web site if
developed by another governmental agency, including Americans with
Disabilities Act centers, toolkits or educational modules to assist a
California business to understand its obligations under the law and
to facilitate compliance with respect to the top 10 alleged
construction-related violations, by type, as specified in subdivision
(a) of Section 8299.08. Upon completion of this requirement, the
commission shall develop and make available on its Internet Web site,
or work with another agency to develop, other toolkits or
educational modules that would educate businesses of the
accessibility requirements and to facilitate compliance with that
requirement.
(d) The commission shall post the following on its Internet Web
site:
(1) Educational materials and information that will assist
building owners, tenants, building officials, and building inspectors
to understand the disability accessibility requirements and to
facilitate compliance with disability access laws. The commission
shall at least annually review the educational materials and
information on disability access requirements and compliance
available on the Internet Web site of other local, state, or federal
agencies, including Americans with Disabilities Act centers, to
augment the educational materials and information developed by the
commission.
(2) A link to the Internet Web site of the Division of the State
Architect's certified access specialist (CASp) program to assist
building owners and tenants in locating or hiring a CASp.
(e) The commission shall, to the extent feasible, coordinate with
other state agencies and local building departments to ensure that
information provided to the public on disability access requirements
is uniform and complete, and make its educational materials and
information available to those agencies and departments.
SEC. 6. Section 65941.6 is added to the Government Code, to read:
65941.6. (a) Each local agency shall develop materials relating
to the requirements of the federal Americans with Disabilities Act of
1990 (42 U.S.C. Sec. 12101 et seq.). The local agency shall provide
these materials to an applicant along with notice that approval of a
permit does not signify that the applicant has complied with the
federal Americans with Disabilities Act of 1990.
(b) For the purposes of complying with the requirements of
subdivision (a), a local agency may, in lieu of developing its own
materials, provide applicants with those materials which the
California Commission on Disability Access has developed and made
available pursuant to Section 8299.06.
SEC. 7. Article 4 (commencing with Section 65946) is added to
Chapter 4.5 of Division 1 of Title 7 of the Government Code, to read:
Article 4. Expedited Review
65946. (a) For the purposes of this section, the following
definitions shall apply:
(1) "Certified access specialist" or "CASp" means any person who
has been certified pursuant to Section 4459.5.
(2) "Construction-related accessibility standard" means a
provision, standard, or regulation under state or federal law
requiring compliance with standards for making new construction and
existing facilities accessible to persons with disabilities,
including, but not limited to, any provision, standard, or regulation
set forth in Section 51, 54, 54.1, or 55 of the Civil Code, Section
19955.5 of the Health and Safety Code, the California Building
Standards Code (Title 24 of the California Code of Regulations), the
federal Americans with Disabilities Act of 1990 (Public Law 101-336;
42 U.S.C. Sec. 12101 et seq.), and the federal Americans with
Disabilities Act Accessibility Guidelines (Appendix A to Part 36 of
Title 28 of the Code of Federal Regulations).
(3) "Written inspection report" means the CASp report required to
be provided pursuant to subdivision (a) of Section 55.53 of the Civil
Code.
(b) A local agency shall expedite review of a project application
if the project applicant meets all of the following conditions:
(1) The applicant provides a copy of a disability access
inspection certificate, provided by a CASp pursuant to subdivision
(e) of Section 55.53 of the Civil Code, pertaining to the site of the
proposed project.
(2) The applicant demonstrates that the proposed project is
necessary to address either an alleged violation of a
construction-related accessibility standard or a violation noted in a
written inspection report.
(3) If project plans are necessary for the approval of a project,
the applicant has had a CASp review the project plans for compliance
with all applicable construction-related accessibility standards.
SEC. 8. The Legislature finds and declares that Sections 6 and 7
of this act, pertaining to the review and approval of development
permit applications, constitute matters of statewide concern, and
shall apply to charter cities and charter counties. These sections
shall supersede any inconsistent provisions in the charter of any
city, county, or city and county.
SEC. 9. No reimbursement is required by this act pursuant to
Section 6 of Article XIII B of the California Constitution for
certain costs because a local agency or school district has the
authority to levy service charges, fees, or assessments sufficient to
pay for the program or level of service mandated by this act, within
the meaning of Section 17556 of the Government Code.
SEC. 10. This act is an urgency statute necessary for the
immediate preservation of the public peace, health, or safety within
the meaning of Article IV of the Constitution and shall go into
immediate effect. The facts constituting the necessity are:
Recent data from the California Commission on Disability Access
indicates that a handful of highly litigious plaintiffs and attorneys
have targeted small businesses in the state, especially those
without financial resources or sophistication, with lawsuits alleging
violations of construction-related accessibility standards. The
lawsuits appear to be motivated by a desire to obtain quick cash
settlements with the businesses, rather than to improve access to
public accommodations. As a result, small businesses are justifiably
anxious about being sued, while disabled consumers are viewed with
blame and 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
Disabilities Act. It is necessary that this act go into immediate
effect to ensure that small businesses have the information and
resources they need in order to bring their properties into
compliance with construction-related accessibility standards. It is
also necessary that this act go into immediate effect to increase
compliance with those standards for the benefit of the public,
especially disabled consumers who have the right to go about their
daily lives without difficulty, discomfort, or embarrassment, and
with the basic dignity that comes from having the same access to
public accommodations that nondisabled persons enjoy.
