Proposals from Kevin Baker 9-2005
Preliminary Concepts For Discussion Re Possible Disability Access Proposals Kevin Baker, September 23, 2005
SECTION 1. Require knowledge of disability access laws by general contractors.
Section 7065 of the Business and Professions Code is amended to read:
7065. (a) Under rules and regulations adopted by the board and approved by the director, the registrar shall investigate, classify, and qualify applicants for contractors' licenses by written examination. This
(1) This examination shall include questions designed to show that the applicant:
(a) has the necessary degree of knowledge required by Section 7068 and shall include pertinent questions relating to the laws of this state, and the contracting business and trade. Contractors'; and
(b) is knowledgeable with respect to both of the following:
(1) The administration, implementation and enforcement of building standards intended to make buildings, as defined in Section 18908 of the Health and Safety Code, accessible to and usable by persons with disabilities as provided in Part 2 of Title 24 of the California Code of Regulations.
(2) Federal and state statutes, regulations, and building standards that impact the ability of persons with disabilities to fully access and use public accommodations and commercial facilities in this state, including but not limited to the obligation to undertake readily achievable barrier removal, and the manner in which construction practices and concepts, such as "permissible field tolerances," can result in violations of accessibility standards that impact the ability of persons with disabilities to fully access and use public accommodations and commercial facilities in this state.
(b) Contractors' licenses are to be issued to individual owners, copartnerships, and corporations.-An
(1) An individual owner may qualify by examination for a contractor's license upon the appearance of the owner or a qualifying individual appearing as a responsible managing employee on behalf of the owner.-A
(2) A copartnership may qualify by examination for a contractor's license upon the appearance of a copartner or a qualifying individual appearing as a responsible managing employee.-A
(3) A corporation may qualify by examination for a contractor's license upon the appearance of a qualifying individual appearing either as a responsible managing officer or a responsible managing employee.-No
(c) An examination shall not be required of a qualifying individual if, within the five-year period immediately preceding the application for licensure, the qualifying individual has either personally passed the written examination for the same classification being applied for, or has served as the qualifying individual for a licensee whose license was in good standing at any time during the five-year period immediately preceding the application for licensure and in the same classification being applied for.
SEC. 2.: Require knowledge of disability access laws by specialty contractors
Section 7065.01 of the Business and Professions Code is amended to
read:
7065.01. Notwithstanding Section 7065,-no a trade examination shall not be required of an applicant for the limited specialty license classification. classification, except that the applicant shall be required to demonstrate whether he or she is knowledgeable with respect to both of the following:
(a) The administration, implementation and enforcement of building standards intended to make buildings, as defined in Section 18908 of the Health and Safety Code, accessible to and usable by persons with disabilities as provided in Part 2 of Title 24 of the California Code of Regulations.
(b) Federal and state statutes, regulations, and building standards that impact the ability of persons with disabilities to fully access and use public accommodations and commercial facilities in this state, including but not limited to the obligation to undertake readily achievable barrier removal, and the manner in which construction practices and concepts, such as "permissible field tolerances," can result in violations of accessibility standards that impact the ability of persons with disabilities to fully access and use public accommodations and commercial facilities in this state.
SEC. 3. Require Contractors State License Board to keep licensing exams up-to-date regarding disability access issues
Section 7065.05 of the Business and Professions Code is amended to
read:
7065.05. (a) The board shall periodically review and, if needed, revise the contents of qualifying examinations to insure that the examination questions are timely and relevant to the business of contracting. In conducting this periodic review and revision, the board shall specifically consider federal and state statutes, regulations, building standards, and judicial interpretations that impact the ability of persons with disabilities to fully access and use public accommodations and commercial facilities in this state. The board shall, in addition, construct and conduct examinations in such a manner as to preclude that precludes the possibility of any applicant having prior knowledge of any specific examination question.
(b) The board shall establish a priority list and schedule for the completion of an occupational analysis of its current examinations. The board shall complete this analysis with respect to those examinations having the highest and moderately high need for revision by July 1, 2001, and complete this analysis with respect to all remaining examinations for revision by July 1, 2002.
SEC. 4.: Obligation of CSLB to ensure knowledge of disability access laws independent of licensing examinations
Section 7068 of the Business and Professions Code is amended to
read:
7068. (a) The board shall require an applicant to show such the degree of knowledge and experience in the classification applied for, and such the general knowledge of the building, safety, health, and lien laws of the state and of the administrative principles of the contracting business-as that the board deems necessary for the safety and protection of the public. The board shall also require an applicant to show the general knowledge of the administration, implementation and enforcement of building standards intended to make buildings, as defined in Section 18908 of the Health and Safety Code, accessible to and usable by persons with disabilities as provided in Part 2 of Title 24 of the California Code of Regulations, and federal and state statutes, regulations, and building standards that impact the ability of persons with disabilities to fully access and use public accommodations and commercial facilities in this state to the extent the board deems necessary for the safety and protection of the public, including but not limited to the obligation to undertake readily achievable barrier removal, and the manner in which construction practices and concepts, such as "permissible field tolerances," can result in violations of accessibility standards that impact the ability of persons with disabilities to fully access and use public accommodations and commercial facilities in this state
(b) An applicant shall qualify in regard to his or her experience and knowledge in one of the following ways:
(1) If an individual, he or she shall qualify by personal appearance or by the appearance of his or her responsible managing employee who is qualified for the same license classification as the classification being applied for.
(2) If a copartnership or a limited partnership, it shall qualify by the appearance of a general partner or by the appearance of a responsible managing employee who is qualified for the same license classification as the classification being applied for.
(3) If a corporation, or any other combination or organization, it shall qualify by the appearance of a responsible managing officer or responsible managing employee who is qualified for the same license classification as the classification being applied for.
(c) A responsible managing employee for the purpose of this chapter shall mean an individual who is a bona fide employee of the applicant and is actively engaged in the classification of work for which that responsible managing employee is the qualifying person in behalf of the applicant.
(d) The board shall, in addition, require an applicant who qualifies by means of a responsible managing employee under either paragraph (1) or (2) of subdivision (b) to show his or her general knowledge of the building, safety, health, and lien laws of the state and of the administrative principles of the contracting business as the board deems necessary for the safety and protection of the public. That knowledge shall include, at a minimum, both of the following:
(1) administration, implementation and enforcement of building standards intended to make buildings, as defined in Section 18908 of the Health and Safety Code, accessible to and usable by persons with disabilities as provided in Part 2 of Title 24 of the California Code of Regulations.
(2) federal and state statutes, regulations, and building standards that impact the ability of persons with disabilities to fully access and use public accommodations and commercial facilities in this state to the extent the board deems necessary for the safety and protection of the public, including but not limited to the obligation to undertake readily achievable barrier removal, and the manner in which construction practices and concepts, such as "permissible field tolerances," can result in violations of accessibility standards that impact the ability of persons with disabilities to fully access and use public accommodations and commercial facilities in this state
(e) Except in accordance with Section 7068.1, no person qualifying on behalf of an individual or firm under paragraph (1), (2), or (3) of subdivision (b) shall hold
any other active contractor's license while acting in the capacity of a qualifying individual pursuant to this section.
(f) At the time of application for renewal of a license, the responsible managing individual shall file a statement with the registrar, on a form prescribed by the registrar, verifying his or her capacity as a responsible managing individual to the licensee.
(g) Statements made by or on behalf of an applicant as to the applicant's experience in the classification applied for shall be verified by a qualified and responsible person. In addition, the registrar shall, as specified by board regulation, randomly review a percentage of such statements for their veracity.
(h) The registrar shall review experience gained by applicants from other states to determine whether all of that experience was gained in a lawful manner in that state.
SEC. 5. Clarification of procedures for lawsuits alleging violation of accessibility standards by places of public accommodation – any person who experiences a denial of full and equal access on a particular occasion, including by being deterred from attempting to access the public accommodation, may obtain an award of damages for each occasion and may obtain injunctive relief and attorney's fees for any violations; no presumption of daily damages or damages for violations that do not cause the person denial of full and equal access.
Section 55.3 is added to the Civil Code, to read:
55.3. (a) (1) Notwithstanding any other provision of law, Sections 55.4, 55.5, 55.6, 55.7 and this section set forth the exclusive rights, remedies and procedures applicable to an action brought pursuant to subdivision (a) of Section 52, subdivision (a) of Section 54.3 or Section 55 involving a place of public accommodation based upon a violation of any applicable accessibility standard under Section 51, 54, or 54.1.
(2) Sections 55.4, 55.5, 55.6, 55.7, and this section do not affect the rights, remedies, or procedures applicable to an action other than an action brought pursuant to subdivision (a) of Section 52, subdivision (a) of Section 54.3 or Section 55 involving a place of public accommodation based upon a violation of an applicable accessibility standard under Section 51, 54, or 54.1.
(3) For purposes of Sections 55.4, 55.5, 55.6, 55.7, and this section, "an applicable accessibility standard" means a provision, standard, or regulation under state or federal law requiring either of the following:
(A) Compliance with standards for making new construction and alterations accessible to persons with disabilities in effect at the time of the construction or alterations.
(B) The removal of architectural barriers or communication barriers that are structural in nature.
(4) For purposes of Sections 55.4, 55.5, 55.6, 55.7, and this section, "place of public accommodation" has the same meaning as set forth in Section 217 of Title 24 of the California Code of Regulations.
(b) To obtain an award of damages in an action brought pursuant to subdivision (a) of Section 52 or subdivision (a) of Section 54.3 based upon a violation of an applicable accessibility standard under Section 51, 54, or 54.1, a person shall demonstrate that he or she experienced a denial of full and equal access on a particular occasion.
(c) A person may obtain an award of damages for each occasion on which he or she is denied full and equal access. This subdivision shall be construed as follows:
(1) There is no presumption that a person is entitled to damages for each day that a violation of an applicable accessibility standard exists at the place of public accommodation. To obtain damages for a day that a violation exists, a person shall establish that he or she experienced a denial of full and equal access on that day.
(2) There is no presumption that person is entitled to damages for each violation of an applicable accessibility standard that exists at the place of public accommodation. To obtain damages for a violation of an applicable accessibility standard that exists at the place of public accommodation, a person shall establish that
the violation caused the person to experience a denial of full and equal access on a particular occasion.
(3) A denial of full and equal access may be shown by evidence that a person was actually deterred by a violation, known to the person, of an applicable accessibility standard or by evidence that a person experienced difficulty, discomfort, or embarrassment because of the violation.
(d) A court may award a person aggrieved by a violation of an applicable accessibility standard injunctive and other equitable relief to remedy that violation and any other violation of an applicable accessibility standard shown to exist at the place of public accommodation and reasonable attorney's fees. This subdivision is declarative of existing law.
SEC. 6.: Clarification of existing law that defendants may recover attorney's fees if suit is found by court to be frivolous, and that sanctions for vexatious litigants and bad faith tactics are available in these cases.
Section 55.4 is added to the Civil Code, to read:
55.4. (a) A prevailing defendant in an action brought pursuant to subdivision (a) of Section 52, subdivision (a) of Section 54.3 or Section 55 involving a place of public accommodation based upon a violation of an applicable accessibility standard under Section 51, 54, or 54.1 may recover reasonable attorney's fees if the defendant demonstrates that the lawsuit brought is frivolous or without foundation.
(b) A defendant to a claim under Section 51, 54, or 54.1 based upon an alleged violation of an applicable accessibility standard may seek any relief available under Title 3A (commencing with Section 391) of Part 2 of the Code of Civil Procedure relating to vexatious litigants.
(c) A party to a claim under Section 51, 54, or 54.1 based upon an alleged violation of an applicable accessibility standard who demonstrates that another party or another party's attorney has engaged in bad faith actions or tactics that are
frivolous or solely intended to cause unnecessary delay may seek any relief available under law for that conduct, including sanctions available under Sections 128.6 or 128.7 of the Code of Civil Procedure.
SEC. 7. In a barrier removal case, a defendant may not have to pay attorney's fees if it can show that it was in compliance with barrier removal laws at the time the plaintiff was denied access to the place of public accommodation; if the defendant had and was implementing a legitimate barrier removal plan, as specified, prior to the date the plaintiff alleges denial of access, there would be rebuttable presumption that the defendant was in compliance with barrier removal obligations. If the defendant acted in bad faith by asserting a bad barrier removal plan, the defendant would be subject to sanctions by the court.
Section 55.5 is added to the Civil Code, to read:
55.5. (a) In an action brought pursuant to subdivision (a) of Section 52, subdivision (a) of Section 54.3 or Section 55 involving a place of public accommodation based upon a violation under Section 51, 54, or 54.1 alleging a failure to comply with applicable provisions, standards, or regulations under state or federal law requiring the removal of architectural barriers or communications barriers that are structural in nature from places of public accommodation, a plaintiff may not recover attorney's fees if it is determined that, on and before the date on which the plaintiff was allegedly denied full and equal access, the defendant was in compliance with applicable provisions, standards, or regulations under state or federal law requiring the removal of architectural barriers or communications barriers that are structural in nature.
(b) For purposes of this section, if the defendant demonstrates that, on and before the date on which the plaintiff was allegedly denied full and equal access it had developed a barrier removal plan as defined in subdivision (c) and was implementing that plan in a timely manner, there is a rebuttable presumption that the defendant was in compliance with applicable provisions, standards, or regulations under state or federal law requiring the removal of architectural barriers or communications barriers that are structural in nature.
(c) A "barrier removal plan" means a plan that meets all of the following requirements:
(1) Was prepared following a site inspection by and substantially in accordance with the recommendations of an individual who is certified as an access specialist pursuant to Section 4459.5 of the Government Code or, before January 1, 2008, an individual with substantially similar expertise.
(2) Includes, at a minimum, all of the following:
(A) A list of each barrier at the facility that fails to comply with the standards
and other requirements specified in this subdivision.
(B) Specific steps that the defendant must take to bring each barrier into compliance with the applicable standards.
(C) A reasonable time table within which the remedial action should be completed, with consideration given to the scope of past barrier removal activities, if any, and the resources that are and have been available to the defendant during any time that it has been subject to provisions, standards, or regulations requiring barrier removal.
(D) A sequence of barrier removal that gives, to the greatest extent possible, first priority to entrance and egress, second priority to accessing the goods and services provided, third priority to access to restrooms, and final priority to remaining barriers.
(E) Alternative means of providing access that the defendant will undertake until the barrier is removed.
(3) Includes remediation of the specific barriers that the plaintiff alleges resulted in a denial to him or her of full and equal access.
(4) Is in writing and accepted or adopted by the owner or operator of the public accommodation or an officer, director or managing agent of the owner or operator and is made available to any member of the public upon request.
(5) Is the subject of a reasonable notice to the public of the existence of the plan and how to request a copy of the plan, posted conspicuously at the facility and communicated to the public through other reasonable means.
(d) A plaintiff who demonstrates that a defendant has acted in bad faith by publicizing, posting, or asserting in litigation a purported barrier removal plan that fails to comply with the elements described in subdivision (c) or that is not reasonably implemented according to its terms, may obtain the sanctions described in Section 128.6 or 128.7 of the Code of Civil Procedure.
SEC. 8. Defendants may make written and binding settlement offers in court to address not only money damages but also equitable/injunctive relief, including mandatory barrier removal, and attorney's fees. If a later judgment by the court gives the plaintiff less than the defendant offered, the plaintiff would pay the defendant's costs for the period after the defendant's offer was rejected and would not recover the litigation costs he or she had after that time.
Section 55.6 is added to the Civil Code, to read:
55.6. (a) In an action brought pursuant to subdivision (a) of Section 52, subdivision (a) of Section 54.3 or Section 55 involving a place of public accommodation based upon a violation of an applicable accessibility standard under Section 51, 54, or 54.1, the costs allowed under Section 1032 of the Code of Civil Procedure shall be withheld or augmented as provided in this section.
(b) At least 60 days before commencement of trial any defendant may serve an offer in writing upon the plaintiff to allow judgment to be taken in accordance with the terms and conditions stated at that time. The offer shall conform to the conditions specified in subdivision (c). Any acceptance of the offer, whether made on the document containing the offer or on a separate document of acceptance, shall be in writing and shall be signed by counsel for the accepting party or, if not represented by counsel, by the accepting party. If the offer is accepted, the offer with proof of acceptance shall be filed, and the clerk or the judge shall enter judgment accordingly. If the offer is not accepted within 30 days after it is made, it shall be deemed withdrawn and cannot be given in evidence upon the trial.
(c) An offer submitted pursuant to this section shall meet all of the following criteria:
(1) The offer shall include a statement of the offer, containing the terms and conditions of the judgment, and a provision that allows the accepting party to indicate acceptance of the offer by signing a statement that the offer is accepted.
(2) The offer shall be accompanied by a barrier removal plan, meeting the criteria set forth in subdivision (c) of Section 55.5.
(3) The offer shall provide that a judgment may be entered to include an injunction or other equitable relief that requires the defendant to complete the removal of specified barriers by or before specified deadlines. The offer may also provide that a judgment may be entered to include other equitable or injunctive relief.
(4) The offer shall provide that a judgment may be entered to include damages to which the plaintiff might be entitled as specified in Section 55.3. For purposes of this paragraph, the defendant's offer may specify that the defendant will pay damages either in a specified amount or according to proof.
(5) The offer shall provide that a judgment may be entered to include reasonable attorney's fees and costs that the plaintiff has actually incurred as of the date that the offer is served, and reasonable attorney's fees and costs, if any, which the plaintiff actually incurs thereafter for purposes of proving his or her damages, if appropriate pursuant to paragraph (3). For purposes of this paragraph, the defendant's offer may specify that the defendant will pay attorney's fees and costs either in a specified amount or according to proof.
(d) If an offer made by a defendant is not accepted and the plaintiff fails to obtain a more favorable judgment, the plaintiff shall not recover his or her postoffer costs and shall pay the defendant's costs from the time of the offer. In addition, the court in its discretion may require the plaintiff to pay a reasonable sum to cover costs of the services of expert witnesses, who are not regular employees of any party, actually incurred and reasonably necessary in either, or both, preparation for trial or during trial, of the case by the defendant.
(e) A plaintiff is considered to have obtained a more favorable judgment if:
(1) the plaintiff in fact is awarded damages or attorney's fees in excess of the specified amount offered; or
(2) the nature and extent of the injunctive or other equitable relief provided relative to the removal of barriers exceeds, either in terms of the number of barriers to be removed, the manner in which a particular barrier or barriers must be removed, the timing of the barrier removal, or the nature and extent of the barrier removal, the barrier removal set forth in the barrier removal plan submitted with the offer.
(f) Notwithstanding this section, any party may make an offer pursuant to section 998 of the Code of Civil Procedure.
SEC. 9. A plaintiff who voluntarily chooses to notify a defendant of a violation before filing a lawsuit could obtain a bigger money judgment (up to 33% higher) if the defendant fails to respond, chooses not to try to solve the problem or fails to follow through with an agreed remedy.
Section 55.7 is added to the Civil Code, to read:
55.7. (a) This section is intended to establish a voluntary nonadversarial dispute remediation procedure to allow a claimant to achieve the remediation of any violation of an applicable accessibility standard that the claimant alleges resulted in a denial of full and equal access to him or her.
(b) Before filing an action pursuant to subdivision (a) of Section 52, subdivision (a) of Section 54.3 or Section 55 involving a place of public accommodation based upon a violation of an applicable accessibility standard under Section 51, 54, or 54.1, the claimant may choose to initiate the following voluntary prelitigation dispute remediation procedure:
(1) A claimant may initiate this voluntary prelitigation dispute remediation procedure by, directly or through his or her legal representative, advising the owner or operator of the public accommodation by certified mail, overnight mail, or personal delivery of the claimant's claim that he or she has been denied full and equal access due to violation of an applicable accessibility standard. The claimant's written communication shall provide the claimant's name, address, and preferred method of contact, and shall state that the claimant alleges a violation subject to this section with respect to the public accommodation. The claimant's written communication shall describe the claim in reasonable detail sufficient to determine the nature and location, to the extent known, of each claimed violation. The claimant's written communication shall have the same force and effect as a notice of commencement of a legal proceeding.
(2) The owner or operator choosing to participate in a voluntary prelitigation dispute remediation procedure initiated by a claimant or his or her representative shall acknowledge, in writing, receipt of the claimant's written communication of the claim within 14 days after receipt of the claim. If the claim is served by the claimant's legal representative, or if the owner or operator receives a written representation letter from a claimant's attorney, the owner or operator shall include the attorney in all subsequent substantive communications, including, without limitation, all written communications occurring pursuant to this section and all substantive and procedural communications, including all written communications, following the commencement of a subsequent complaint or other legal action. However, if the owner or operator has retained or involved legal
counsel to assist the owner or operator in this process, all communications by the owner's or operator's counsel shall only be with the claimant's legal representative, if any.
(3) (A) To continue the voluntary prelitigation dispute remediation procedure, the claimant and the owner or operator, or their representatives, shall collaborate in good faith and attempt to agree upon the nature and extent of the violations that the claimant asserts exist and any action the owner or operator needs to take to remedy those violations. The goal of this collaboration is to achieve voluntary remediation of the violations in question without the need for litigation. In order to inform all parties regarding the nature and extent of any violations, as well as any action that may be needed to remedy any violation, all parties are encouraged to jointly conduct voluntary mutual inspections by qualified persons, and to exchange all information relevant to evaluating the claims or any proposed remedy.
(B) This section does not preclude the parties from agreeing to collaborate for the purpose of identifying other violations that might exist at the public accommodation and upon a barrier removal plan, as defined in subdivision (c) of Section 55.5, that is consistent with the applicable accessibility standards set forth in Part 2 of Title 24 of the California Code of Regulations, and the owner's or operator's obligations, if any, pursuant to the requirement in the Americans with Disabilities Act of 1990 (Public Law 101-336) that public accommodations engage in readily achievable barrier removal.
(C) The voluntary prelitigation dispute remediation procedure set forth in this section shall continue for a period of 60 calendar days from the date the owner or operator acknowledges receipt of the claim in writing, and as of that date is deemed completed unless the parties agree in writing to extend the process. Any applicable statute of limitations shall be tolled from the date of the claimant's written communication until 60 days following the date on which the process set forth in this subdivision is deemed completed.
(4) If the owner or operator fails to acknowledge receipt of the claimant's written communication of a claim within the time specified or elects not to engage in the voluntary prelitigation dispute remediation procedure set forth in this subdivision or fails to timely implement any agreed upon remedy
the owner or operator shall be liable for actual damages, and any amount that may be determined by a jury, or a court sitting without a jury, up to up to a maximum of three times the amount of actual damage but in no case less than six thousand dollars ($6,000).
(6) Evidence of both parties' conduct during this process is admissible during a subsequent enforcement action, if any, solely with respect to the plaintiff's eligibility for increased damages under paragraph (5). Remedial actions undertaken by the owner or operator shall not be considered settlement communications or offers of settlement and are not inadmissible in evidence on that basis. Evidence of the parties' conduct during any mediation shall be inadmissible pursuant to Sections 1115 to 1124, inclusive, of the Evidence Code and all applicable decisional law.
SEC. 10. New timetables to ensure that the Division of State Architect promptly seeks certification of the state building code from the US Department of Justice, and to expedite the changes.
Section 18929.5 is added to the Health and Safety Code, to read:
18929.5. (a) Notwithstanding any other provision of law or regulation, the Division of the State Architect shall draft any additional changes needed to the California Building Code, as identified by the United States Department of Justice in order to obtain certification by that department under the Americans with Disabilities Act of 1990 (Public Law 101-336), transmit all those changes in writing to that department, and otherwise reply fully to the department regarding any issues or concerns identified by the department within 30 days of the date that the department replies to the letter from the Division of the State Architect dated May 2005.
(b) Notwithstanding any other provision of law or regulation, the Division of the State Architect shall transmit a substantive written response to the United States Department of Justice regarding all items identified for action by the state in the department letter to the Division of the State Architect of October 2004, including, but not limited to, all changes needed to the California Building Code, as identified
by the department in order to obtain certification by the department under the Americans with Disabilities Act of 1990 (Public Law 101-336), and otherwise reply fully to any issues or concerns identified by the October 2004 letter not later than March 31, 2006.
(c) Notwithstanding any other provision of law or regulation, the Division of the State Architect shall, within 90 days of any written response by the United States Department of Justice to the submission described in subdivision (b), transmit a substantive written response to the department regarding all items identified for action by the state, including, but not limited to, all changes needed to the California Building Code, as identified by the department in order to obtain certification by the department under the Americans with Disabilities Act of 1990 (Public Law 101-336), and otherwise reply fully to any issues or concerns identified by the department.
(d) Notwithstanding any other provision of law or regulation, the Division of the State Architect shall submit to the Building Standards Commission all proposed changes needed to obtain certification of the California Building Code under the Americans with Disabilities Act of 1990 (Public Law 101-336) within 30 days of the date the Division of the State Architect receives notice of preliminary certification by the United States Department of Justice.
(e) Notwithstanding any other provision of law or regulation, the Building Standards Commission shall approve and adopt or disapprove changes to the California Building Code proposed by the Division of the State Architect pursuant to this section within 30 days of the date those changes are submitted to the Building Standards Commission.
(f) Notwithstanding any other provision of law or regulation, changes to the California Building Code approved and adopted by the Building Standards Commission pursuant to this section shall take effect within 30 days of the date of approval and adoption by the Building Standards Commission.
SEC. 11. Either a local building official or a person affected by an action of the local building department could seek a determination of the issue by the Building Standards Commission if the issue has statewide significance
Section 18945 of the Health and Safety Code is amended to read:
18945. (a) Any person adversely affected by any regulation, rules, omission, interpretation, decision, or practice of any state agency respecting the administration of any building standard may appeal the issue for resolution to the commission.
(b) If any local agency having authority to enforce a state building standard and any person adversely affected by any regulation, rule, omission, interpretation, decision, or practice of such agency respecting such building standard both wish to appeal the issue for resolution to the commission, then both parties may appeal to the commission. The commission may accept such appeal only if the commission determines that the issues involved in such appeal have statewide significance.
(c) Notwithstanding subdivisions (a) and (b), with respect to a building standard promulgated by the Building Standards Commission set forth in Part 2 of Title 24 of the California Code of Regulations, related to making public accommodations accessible to and usable by people with disabilities, if either a local agency having authority to enforce a state building standard or a person adversely affected by a regulation, rule, omission, interpretation, decision, or practice of that local agency, wishes to appeal the issue for resolution to the commission, then either party may appeal to the commission. The commission may accept the appeal only if the commission determines that the issues involved in the appeal have statewide significance.
SEC. 12. Persons employed by local building departments must have experience in disability access standards.
Section 18949.28 of the Health and Safety Code is amended to read:
18949.28. (a) (1) All construction inspectors, plans examiners, and building officials who are not exempt from the requirements of this chapter pursuant to subdivision (b), or previously certified, shall complete one year of verifiable experience in the appropriate field, and shall, within one year thereafter, obtain certification from a recognized state, national, or international association, as determined by the local agency. The area of certification shall be closely related to the primary job function, as determined by the local agency.
(2) Notwithstanding any other provision of this article, all persons subject to paragraph (1) must have engaged in verifiable experience pertaining to the administration, implementation and enforcement of building standards intended to make buildings, as defined in Section 18908, accessible to and usable by persons with disabilities as provided in Part 2 of Title 24 of the California Code of Regulations and shall be knowledgeable regarding federal and state statutes, regulations, and building standards that impact the ability of persons with disabilities to fully access and use public accommodations and commercial facilities.
(b) Any person who is currently and has continuously been employed as a construction inspector, plans examiner, or building official for not less than two years prior to the effective date of this section shall be exempt from the certification provisions of this section, unless and until that person obtains employment as a construction inspector, plans examiner, or building official with a different employer.
(c) Nothing in this This article is not intended to prohibit a local agency from prescribing additional criteria for the certification of construction inspectors, plans examiners, or building officials.
(d) Nothing in this This chapter, as it relates to construction inspectors, plans examiners, or building officials, shall not be construed to alter the requirements for licensure, or the jurisdiction, authority, or scope of practice, of architects pursuant to Chapter 3 (commencing with Section 5500) of Division 3 of the Business and Professions Code, professional engineers pursuant to Chapter 7 (commencing with Section 6700) of Division 3 of the Business and Professions Code, or land surveyors pursuant to Chapter 15 (commencing with Section 8700) of Division 3 of the Business and Professions Code.
SEC. 13. Persons employed by local building departments must have continuing education regarding disability access standards.
Section 18949.29 of the Health and Safety Code is amended to read:
18949.29. (a) All construction inspectors, plans examiners, and building officials shall complete a minimum of 45 hours of continuing education for every three-year period. At least three of these hours must pertain to the administration and enforcement of building standards intended to make buildings, as defined in Section 18908, accessible to and usable by persons with disabilities as provided in Part 2 of Title 24 of the California Code of Regulations and information regarding federal and state statutes, regulations, and building standards that impact the ability of persons with disabilities to fully access and use public accommodations and commercial facilities in this state.
(a) Providers
(b) Providers of continuing education may include any organizations affiliated with the code enforcement profession, community colleges, or other providers of similar quality, as determined by the local agency.
(b)
(c) For purposes of this section, "continuing education" is defined as that means education relating to the enforcement of Title 24 of the California Code of Regulations, and any other locally enforced building and construction standards, including, but not limited to, the model uniform codes adopted by the state. When a local agency selects a model code organization as a provider of continuing education or certification programs regarding the enforcement of a model code adopted by the state, the local agency shall give preference to the organization responsible for promulgating or drafting that model code.
SEC. 14. : Applicants for building permits will be notified that local building departments enforce only the building code, not the ADA. The issuance of a permit, certificate of occupancy or variance does not guarantee compliance with disability access laws. Applicants should seek more information and get help from people with expertise.
Section 19830.1 is added to the Health and Safety Code, to read:
19830.1. (a) Every city or county, whether general law or chartered, that requires the issuance of a permit as a condition precedent to the construction, alteration, improvement, demolition, or repair of a building or structure, shall, in addition to any other requirements, prepare and give the notice set forth in subdivision (b) to every applicant for a building permit regarding the relationship between enforcement of the California Building Code (Part 2 of Title 24, California Code of Regulations) and enforcement of the Americans with Disabilities Act (Public Law 101-336). The notice shall be given by mail or may be given to the applicant at the time the application for the permit is made. In addition the notice shall be either attached to, or incorporated conspicuously within, every building permit and certificate of occupancy which it issues. (b) The notice shall be in substantially the following form:
NOTICE REGARDING ENFORCEMENT OF THE AMERICANS WITH DISABILITIES ACT OF 1990
You are hereby notified that we are solely responsible for ensuring compliance with the California Building Code.
With specific reference to making public accommodations accessible to and usable by persons with disabilities, the enforcement agency has absolutely no authority to enforce the federal Americans with Disabilities Act (Public Law 101-336 (ADA)). Neither the issuance of a building permit, a certificate of occupancy or a variance guarantees compliance with that law, including, but not limited to, compliance with the federal requirement that public accommodations engage in readily achievable barrier removal, see 42 U.S.C. Sec. 12182 (b)(2)(iv). For more information about these federal requirements, visit the United States Department of Justice's ADA Internet site at [insert current Internet address of United States Department of Justice's ADA homepage here] Additional information is available from the State of California's Internet web site at [insert current Internet address of the State of California's disability access web site here].
Applicants and owners are urged to seek the advice of certified access specialists or other individuals with comparable expertise to insure that their project fully complies with all state and federal accessibility requirements. For information about certified access specialists, visit the Division of the State Architect's Internet web site at [ insert current Internet address of the Division of the State Architect's homepage here]
SEC. 15. Local building departments must have plan checking, construction inspection and other functions performed by certified access specialists
Section 19871 is added to the Health and Safety Code, to read:
19871. (a) An enforcing agency as defined by Title 24 of California Code of Regulations section 101.17.11 shall, among other things, enforce within its jurisdiction all building standards set forth in Part 2 of Title 24 of the California Code of Regulations related to making public accommodations and commercial buildings accessible to and usable by people with disabilities. For purposes of this section, "public accommodation" has the same meaning as set forth in Section 217 of Title 24 of the California Code of Regulations.
(b) Commencing January 1, 2007, an enforcement agency shall either hire or shall contract with one or more access specialists certified pursuant to Section 4459.5 of the Government Code. The certified access specialist shall ensure that all plan-check and construction-inspection functions of the enforcement agency are carried out so as to ensure compliance with all of the regulations and building standards specified in subdivision (a) and oversee the processing of applications for unreasonable hardship variances and exceptions from the building standards specified in subdivision (a).
(c) (1) (A) A local agency may charge the applicant a fee in an amount necessary to defray costs directly attributable to the performance of services pursuant to this section.
(B) An applicant for a building permit may submit its plans and specifications prepared or reviewed by an access specialist certified pursuant to Section 4459.5 of the Government Code, whom the applicant has hired or retained for the purpose of ensuring compliance with all of the building standards specified in subdivision (a). The plans and specifications submitted by the applicant shall be accompanied by a certificate executed by the certified access specialist attesting that he or she has fully reviewed the plans and specifications and is of the professional opinion that they comply fully with all of the building standards specified in subdivision (a). If the applicant submits its plans and specifications in compliance with this paragraph, the enforcement agency shall not be required to review the applicant's plans and specifications by a certified access specialist as otherwise required by subdivision (b).
(2) If the enforcement agency contracts with other entities or persons to perform plan-checking or construction inspection functions with respect to projects involving, wholly or in part, the building standards specified in subdivision (a), the entities or persons may, pursuant to agreement with the local agency, perform all functions necessary to check the plans and specifications to comply with other requirements imposed pursuant to this part or by local ordinances adopted pursuant to this part, except those functions reserved by this part or local ordinance to the legislative body.
posted by CDR 17 at 6:03 PM
