                      TO BE PUBLISHED IN THE OFFICIAL REPORTS


                            OFFICE OF THE ATTORNEY GENERAL

                                      State of California


                                      JOHN K. VAN DE KAMP

                                         Attorney General


                                      ------------------------------
                                                     :
                            OPINION                  :
                                                     :
                                 of                  :
                                                     :
                   JOHN K. VAN DE KAMP :                      No. 87-702
                        Attorney General              :
                                                     :        MARCH 31, 1988
                   RODNEY O. LILYQUIST :
                    Deputy Attorney General :
                                                     :
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          THE HONORABLE JOHN VASCONCELLOS, MEMBER, CALIFORNIA
STATE ASSEMBLY, has requested an opinion on the following question:

              Does state law require public buildings to contain assistive listening systems for
use by hearing-impaired persons?

                                          CONCLUSION

               State law does not now require public buildings to contain assistive listening
systems for use by hearing impaired persons but does authorize the State Architect to promulgate
regulations which would require assistive listening systems in new public buildings and those to
which alteration, repairs or additions are to be made.

                                             ANALYSIS

               The term "assistive listening system" refers to a type of sound reinforcement
equipment that allows a person with a severe hearing impairment to hear what is being spoken
into a microphone normally used in a large room or auditorium. Such a system eliminates the
acoustical space between the sound source and the listener, thereby avoiding background noise
while amplifying the desired sound for the individual. The most common system transmits an
FM broadcast frequency which the listener receives on an individual receiver.
               The question presented for analysis is whether state law requires public buildings
to contain assistive listening systems for use by hearing-impaired persons. We conclude that
such systems are not presently required under state law.

                In 1984 the Legislature found "that over 1.5 million persons in California are deaf
or suffer from significant hearing impairment." (Unemp. Ins. Code, § 11000; Stats. 1984, ch.
1157, § 1; see Welf. & Inst. Code, § 10620.) Without calculating precise figures, it is apparent
that a number of Californians would benefit from the installation of assistive listening systems
in public buildings.

                Beginning in 1968 the Legislature enacted several statutory schemes designed to
grant disabled persons "the same right as the able-bodied to the full and free use of . . . public
places." (Civ. Code, § 54; see City and County of San Francisco v. Grant Co. (1986) 181
Cal.App.3d 1085, 1089-1090; Martin v. City of Los Angeles (1984) 162 Cal.App.3d 559, 561-
562; People ex rel. Deukmejian v. CHE, Inc. (1983) 150 Cal.App.3d 123, 131-132; Marsh v.
Edwards Theatres Circuit, Inc. (1976) 64 Cal.App.3d 881, 886-887.) As the Supreme Court
noted in In re Marriage of Carney (1979) 24 Cal.3d 725, 740, these various statutes "pursue the
commendable goal of total integration of handicapped persons into the mainstream of society .
. . ."

               Unlike other statutory schemes in which the Legislature has defined "physically
disabled persons" or "handicapped persons" with some particularity (see, e.g., Bus. & Prof. Code,
§ 125.6; Ed. Code, § 78600; Gov. Code, §§ 12926, 19231, 19702; Health & Saf. Code, §§ 250.5,
50072, 50685; Ins. Code, § 11628.5; Pen. Code, § 1203.09; Pub. Util. Code, § 99206.5, Rev. &
Tax. Code, § 17262; Veh. Code, § 22511.5; Welf. & Inst. Code, § 19151.), the statutes dealing
with the access and use of public buildings by disabled persons do not clearly define the group
of persons coming within their scope.

              The principal statutory scheme regarding access to and use of public buildings by
disabled persons is Government Code sections 4450-4458.1 Section 4450 states:

               "It is the purpose of this chapter to insure that all buildings, structures,
       sidewalks, curbs, and related facilities, constructed in this state by the use of state,
       county, or municipal funds, or the funds of any political subdivision of the state
       shall be accessible to and usable by the physically handicapped. The State
       Architect shall adopt and submit proposed building standards for approval
       pursuant to Chapter 4 (commencing with Section 18935) of Part 2.5 of Division
       13 of the Health and Safety Code and shall adopt other regulations for making
       buildings, structures, sidewalks, curbs, and related facilities accessible to and


   1
    All references hereafter to the Government Code are by section number only.


                                                 2.                                               87-702

       usable by the physically handicapped. The regulations and building standards
       relating to access for the physically handicapped shall be consistent with the
       standards for buildings and structures which are contained in pertinent provisions
       of the latest edition of the Uniform Building Code, as adopted by the International
       Conference of Building Officials, and such regulations and building standards
       shall contain such additional requirements relating to buildings, structures,
       sidewalks, curbs, and other related facilities as the State Architect determines are
       necessary to assure access and usability for the physically handicapped. In
       developing and revising such additional requirements, the State Architect shall
       consult with the State Department of Rehabilitation, the League of California
       Cities, the County Supervisors Association of California, and at least one private
       organization representing and comprised of physically handicapped persons."

               Not all public buildings constructed with public funds are subject to this
legislative scheme. Generally, the requirements for access and use are applicable only to
"buildings and facilities stated in Section 4450 intended for use by the public, which have any
reasonable availability to, or usage by, physically handicapped persons." (§ 4451, subd. (a).)
Physical changes in existing buildings are not required by this statutory scheme, only new
construction and alterations, structural repairs or additions to existing buildings made after
November 13, 1968 come within the scope of the legislation. (§ 4456; Martin v. City of Los
Angeles, supra, 162 Cal.App.3d 559, 564, fn. 1; Marsh v. Edwards Theatres Circuit, Inc. supra,
64 Cal.App.3d 881, 888.)

              In 59 Ops.Cal.Atty.Gen. 324 (1976) we concluded that a person with a hearing
impairment was a "physically handicapped" person as that term was used in section 4450. (Id.
at p. 328.) We stated:

               " . . . pursuant to Government Code section 4450 the State Architect has
       the authority to adopt standards for making publicly funded buildings, structures,
       curbs, sidewalks and related facilities accessible to and usable by all physically
       handicapped persons, including those with visual or auditory handicaps, . . ."
       (Ibid.)

We reaffirm our prior conclusion; it effectuates the evident intent of the Legislature and is
supported by recent case authority. (See §§ 12940, 19702; Bus. & Prof. Code, § 125.6; Ins.
Code, § 11628.5; Cal. Code of Regs., tit. 22, §§ 98250, 98253; People ex rel. Deukmejian v.
CHE, Inc., supra, 150 Cal.App.3d 123, 133-135; Marsh v. Edwards Theatres, Circuit Inc., supra,
64 Cal.Ap.3d 881, 887-890; Webster's New Internat. Dict. (3d ed. 1967) pp. 642, 1027.)

               Returning, then, to section 4450, we find that it specifies the adoption of two
different types of access and use regulations by the State Architect -- those that are "building




                                               3.                                             87-702

standards" and those that are not. The basic definition of a "building standard" is contained in
Health and Safety Code section 18909, subdivision (a):

               "'Building standard' means any rule, regulation, order, or other
       requirement, including any amendment or repeal of such a requirement, which
       specifically regulates, requires, or forbids the method of use, properties,
       performance, or types of materials used in the construction, alteration,
       improvement, repair, or rehabilitation of a building, structure, factory-built
       housing, or other improvement to real property, including fixtures therein, and as
       determined by the commission."

For these purposes, "building" is defined to include appliances and equipment installed as part
of the building:

               "All appendages, accessories, apparatus, appliances, and equipment
       installed as a part of building or structure shall be deemed to be a part thereof."
       (Health & Saf. Code, § 18908, subd. (c).)

Specifications for sound reinforcement equipment installed as part of a building that require
certain materials or performance characteristics would appear to be a "building standard" as
defined in Health and Safety Code section 18909.

               We need not resolve, however, whether a regulation requiring an assistive
listening system in a public building would or would not be a "building standard." In either
event, subdivision (d) of section 4451 provides:

              "Until building standards are published in the State Building Standards
       Code and other regulations are adopted by the State Architect pursuant to Section
       4450, buildings, structures, sidewalks, curbs, and related facilities subject to the
       provisions of this chapter or Part 5.5 (commencing with Section 199955) of
       Division 13 of the Health and Safety Code shall conform to the American
       Standards Association Specifications A117.1/1961."2


   2
    Health and Safety Code sections 19955-19959 require that "public accommodations or
facilities constructed in this state with private funds [shall] adhere to the provisions of Chapter 7
(commencing with Section 4450) of Division 5 of Title 1 of the Government Code." (Health &
Saf. Code, § 19955, subd. (a); see People ex rel. Deukmejian v. CHE, Inc., supra, 150
Cal.App.3d 123, 132-136.) The facilities subject to this legislation are described with some
particularity (Health & Saf. Code, §§ 19955-19956.5), with the requirements applicable only
with respect to the construction of new facilities or the repair and alteration of existing facilities
(Health & Saf. Code, § 19959; Marsh v. Edwards Theatres Circuit, Inc., supra, 64 Cal.App.3d


                                                4.                                            87-702

The State Building Standards Code (Cal. Code of Regs., tit. 24) does not contain a requirement
for assistive listening systems in public buildings. The State Architect has not adopted
regulations pursuant to section 4450, whether building standards or otherwise, requiring assistive
listening systems in public buildings. It is true, however, that the American Standards
Association Specifications A117.1/1986 state in part:

               "4.31.1 General. Auditorium and assembly areas shall comply with 4.31.
       Such areas with audio-amplification systems shall have a listening system
       complying with 4.31.6 and 4.31.7 to assist persons with severe hearing loss in
       listening to audio presentations.

               " . . . . . . . . . . . . . . . . . . .

               "4.31.6 Placement of Listening Systems. If the listening system
       provided serves individual fixed seats, then such seats shall be located within a
       50-ft. (15-m) viewing distance of the stage or playing area and shall have
       complete view of the stage or playing area.

              4.31.7 Types of Listening Systems. Induction loops, infrared systems,
       hard-wired earphones, and other equivalent devices are among the acceptable
       types of listening systems."

Consistent with these American Standard Association Specifications are requirements for
assistive listening systems in federal buildings. (See 42 U.S.C. §§ 4151-4157; 49 Fed. Reg.
31528 (Aug. 7. 1984).) 4.1.2 of the Uniform Federal Accessibility Standards provides:

              "Assembly areas with audio-amplification systems shall have a listening
       system complying with 4.33 to assist a reasonable number of people, but no fewer
       than two, with severe hearing loss. For assembly areas without amplification
       systems and for spaces used primarily as meeting and conference rooms, a
       permanently installed or portable listening system shall be provided. If portable



881, 888). The legislation has a hardship exception contained in Health and Safety Code section
19957:

          "In cases of practical difficulty, unnecessary hardship, or extreme differences,
       a building department responsible for the enforcement of this part may grant
       exceptions from the literal requirements of the standards and specifications
       required by this part or permit the use of other methods or materials, but only
       when it is clearly evident that equivalent facilitation and protection are thereby
       secured."


                                                5.                                         87-702

       systems are used for conference or meeting rooms, the system may serve more
       than one room."

Section 4451, however, does not refer to the current American Standard Association
Specifications or federal building standards. Rather, it refers to the American Standard
Association Specifications of 1961. Those standards of 27 years ago did not contain
requirements for assistive listening systems in auditoriums or assembly areas. Under state law
(§4451, subd. (d)), therefore, assistive listening systems are not presently required in public
buildings.

               We note that the State Architect has proposed regulations pursuant to section 4450
that would require assistive listening systems in public buildings. That is one method prescribed
in section 4451 for the "updating" of the 1961 American Standard Association Specifications.
These proposed regulations are subject to extensive administrative review, including the holding
of public hearings. (§ 11346.8; Health & Saf. Code, § 18935.) Building standards are reviewed
by the State Building Standards Commission (see §§ 11343, 11356; Health & Saf. Code, §§
18912, 18920, 18931) based upon the following criteria:

              "(1) The proposed building standard does not conflict with, overlap, or
       duplicate other building standards.

              "(2) The proposed building standard is within the parameters established
       by enabling legislation and is not expressly within the exclusive jurisdiction of
       another agency.

               "(3) The public interest requires the adoption of the building standards.

               "(4) The proposed building standard is not unreasonable, arbitrary, unfair,
       or capricious, in whole or in part.

              "(5) The cost to the public is reasonable based on the overall benefit to
       be derived from the building standards.

              "(6) The proposed building standard is not unnecessarily ambiguous or
       vague, in whole or in part.

              "(7) The applicable national specifications, published standards, and
       model codes have been incorporated therein as provided in this part, where
       appropriate." (Health & Saf. Code, § 18930, subd. (a).)

For proposed regulations of the State Architect that are not building standards, review is required
by the Office of Administrative Law with respect to:


                                                6.                                           87-702

                "(1) Necessity.

                "(2) Authority.

                "(3) Clarity.

                "(4) Consistency.

                "(5) Reference.

                "(6) Nonduplication." (§ 11349.1, subd. (a).)

Understandably, the administrative process is a lengthy one, and we have not been asked to
consider or comment upon the State Architect's proposed regulations.

                The Legislature has placed responsibility with the State Architect to determine
how public buildings are to be constructed so that physically disabled persons, including those
with a hearing impairment, may make use of the buildings. Several alternatives exist for assisting
persons who have a significant hearing impairment. Which method is best under what
circumstances has not been finally determined by the State Architect for public buildings. While
certain national standards have recently incorporated assistive listening systems into their
specifications, California law has not as yet done so.

                 Finally, we believe that five other statutes require brief mention. Section 11135
prohibits discrimination on the basis of physical disability, among other things, in any program
funded by the state. Sections 54950 and 54953 in the Ralph M. Brown Act provide that all
meetings of the legislative bodies of local agencies shall be open and public so the people can be
informed of the actions of their public servants. Civil Code section 51, the Unruh Civil Rights
Act, declares that all persons in this state are free and equal, and no matter what their sex, race,
color, religion, ancestry, national origin, blindness or other physical disability are entitled to full
and equal accommodations, advantages, facilities, privileges, or services in all business
establishments of every kind.3 Civil Code section 54 declares that physically handicapped


   3
    The last two paragraphs of Civil Code section 51 provide:

            "Nothing in this section shall be construed to require any construction,
        alteration, repair, structural or otherwise, or modification of any sort whatsoever
        to any new or existing establishment, facility, building, improvement, or any other
        structure, or to augment, restrict, or alter in any way the authority of the State
        Architect to require construction, alteration, repair, or modifications that the State
        Architect otherwise possesses pursuant to other provisions of the law.


                                                  7.                                           87-702

persons have full and equal access, as other members of the general public to public
transportation and places to which the general public is invited.

               These statutes may be interpreted in harmony with sections 4450-4458. (See
Martin v. City of Los Angeles, supra, 162 Cal.App.3d 559, 563-565; Deukmejian v. CHE, Inc.,
supra, 150 Cal.App.3d 123, 135; Marsh v. Edwards Theatres Circuit, Inc., supra, 64 Cal.App.3d
881, 886-888; People v. Levinson (1984) 155 Cal.App.3d Supp. 13, 17-19; Greater Los Angeles
Council of Deafness v. Zolin (C.D. Ca. 1984) 60 F. Supp. 175, 182.) They are also more general
in nature and would be controlled by the specific directives of sections 4450-4458 with respect
to whether assistive listening systems are presently required in public buildings. (See Estate of
Banerjee (1978) 21 Cal.3d 527, 540; Romack Iron Works v. Prudential Ins. Co. (1980) 104
Cal.App.3d 767, 776.)

                In answer to the question presented, therefore, we conclude that state law presently
does not require public buildings to contain assistive listening systems for use by hearing
impaired persons but does authorize the State Architect to promulgate regulations which would
require assistive listening systems in new public buildings and those to which alterations, repairs
or additions are to be made.

                                             *****




          "Nothing in this section shall require any person renting, leasing, or otherwise
       providing real property for compensation to modify his or her property in any
       way, or to provide a higher degree of care for a blind or other physically disabled
       person than for a person who is not physically disabled."


                                                8.                                          87-702
