• State Mandated Assessability Inspections
  • December 7, 2012 | Authors: Mona G. Ebrahimi; Maggie W. Stern
  • Law Firm: Kronick Moskovitz Tiedemann & Girard A Law Corporation - Sacramento Office
  • In September 2012, the State Senate created a new state mandated local program by enacting S.B. 1186 which requires local agencies fund increased Certified Access Specialist (“CASp”) services. CASps work for local jurisdictions to help the public and facilitate compliance with construction-related accessibility requirements. State law requires that each local agency have at least one building inspector who is a certified access specialist by 2010, and as many CASps as are necessary to complete the required work by 2014. After 2014, at least one-half of a local agency’s CASPs must also be building inspectors.

    Although construction-related accessibility inspection requirements were established by the passage of S.B. 1608 in 2008, S.B. 1186 provides funding to enable implementation of that program. The inspection program requires local agencies to conduct accessibility inspections of private properties that are used by the public for commercial purposes. Inspection of such places typically occurs during permitting or licensing processes, and is usually conducted by a cross-trained building inspector who holds a CASp certification.

    In order to fund the CASps, the State has mandated that local agencies collect an additional one dollar fee for business licenses and equivalent instruments or permits, beginning January 1, 2013 and continuing until December 31, 2018. Of the monies collected, the local agency shall keep seventy percent of the amount and forward the remaining balance, but not less than thirty percent to the State.

    Of the portion of the monies retained by the local agency, no more than five percent may be used for administrative costs. As an administrative cost recovery provision, any funds retained for that purpose must be justified and accounted. The remaining portion of the seventy percent of the fees collected should be used to fund increased CASp services in the jurisdiction.

    The balance of the amount, or the thirty percent of fees collected, must be remitted to the State within fifteen days of the last day of the fiscal quarter with a completed copy of the attached form from the Division of the State Architect. In addition, beginning March 1, 2014, the local agency must prepare an annual report for the Legislature, chairs of the Senate and Assembly Committees on Judiciary, the Chair of the Senate Committee on Budget and Fiscal Review, and the Chair of the Assembly Committee on Budget that complies with Government Code section 4467(c).

    Notice To Applicant For Business Licenses And Permits
    After January 1, 2013, each local agency must provide notice of accessibility requirements to applicants for business licenses, renewals, or equivalent permits. The notice must contain the following information:

    “Under federal and state law, compliance with disability access laws is a serious and significant responsibility that applies to all California building owners and tenants with buildings open to the public. You may obtain information about your legal obligations and how to comply with disability access laws at the following agencies:

    The Division of the State Architect at www.dgs.ca.gov/dsa/Home.aspx.

    The Department of Rehabilitation at www.rehab.cahwnet.gov.

    The California Commission on Disability Access at www.ccda.ca.gov.”

    Limited Recovery
    Existing law provides statutory damages in a construction-related accessibility claim against a place of public accommodation if a violation of construction-related accessibility standards denied the plaintiff full and equal access to that site on a particular occasion. (See definition below.)  A plaintiff is denied full and equal access only if, on a particular occasion, the plaintiff personally encountered the violation or was deterred from accessing the site. These statutory damages are in the amount of actual damages and any additional amount determined by a jury or the court up to a maximum of 3 times the amount of actual damages but not less than $4,000, or, for certain violations, $1,000.

    S.B. 1186 caps the liability for accessibility offenses at places of public accommodation if the violation was not intentional and certain criteria are met. Significantly, if the Defendant corrects all construction related violations within sixty days, their liability is capped at $1,000 for each offense, or if the Defendant is a small-business and correct all construction related violations in thirty days then their liability will be capped at $2,000 per offense. Cal. Civil Code section 55.54.

    “Public accommodation” is defined to include the following private entities if the operations of such entities affect commerce:(A) an inn, hotel, motel, or other place of lodging, except for an establishment located within a building that contains not more than five rooms for rent or hire and that is actually occupied by the proprietor of such establishment as the residence of such proprietor; (B) a restaurant, bar, or other establishment serving food or drink; (C) a motion picture house, theater, concert hall, stadium, or other place of exhibition or entertainment; (D) an auditorium, convention center, lecture hall, or other place of public gathering; (E) a bakery, grocery store, clothing store, hardware store, shopping center, or other sales or rental establishment; (F) 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; (G) a terminal, depot, or other station used for specified public transportation; (H) a museum, library, gallery, or other place of public display or collection; (I) a park, zoo, amusement park, or other place of recreation; (J) a nursery, elementary, secondary, undergraduate, or postgraduate private school, or other place of education; (K) a day care center, senior citizen center, homeless shelter, food bank, adoption agency, or other social service center establishment; and (L) a gymnasium, health spa, bowling alley, golf course, or other place of exercise or recreation.  (42 U.S.C. section 12181).