Untitled California Attorney General Opinion

TO BE PUBLISHED IN THE OFFICIAL REPORTS
OFFICE OF THE ATTORNEY GENERAL
State of California
JOHN K. VAN DE KAMP
Attorney General
_________________________
:
OPINION : No. 86-804
:
of : APRIL 1, 1987
:
JOHN K. VAN DE KAMP :
Attorney General :
:
CLAYTON P. ROCHE :
Deputy Attorney General :
:
________________________________________________________________________
THE HONORABLE HERSCHEL ROSENTHAL, MEMBER OF THE
CALIFORNIA STATE SENATE, has requested an opinion on the following questions:
1. If a local government which operates a transit system leases rapid transit
vehicles for that system, does section 4500 of the Government Code require that such
vehicles be accessible for the handicapped?
2. If a local government which operates a transit system contracts with a
private transportation company for what is referred to as transportation "services" and not
transportation "equipment," does section 4500 of the Government Code require that rapid
transit vehicles used in such "services" be accessible for the handicapped?
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CONCLUSIONS
1. If a local government which operates a transit system leases rapid transit
vehicles for that system, section 4500 of the Government code does require that such
vehicles be accessible for the handicapped.
2. If a local government which operates a transit system contracts with a
private transportation company for what is referred to as transportation "services" and not
transportation "equipment," section 4500 of the government Code does require that rapid
transit vehicles used in such "services" be accessible for the handicapped.
ANALYSIS
In 1968, the Legislature enacted legislation to require that all public
buildings and facilities constructed with public funds be accessible to and usable by the
physically handicapped. (Gov. Code, § 4450 et seq., as added by Stats. 1960, ch. 261.)1
This particular legislation, however, was not broad enough in its terms to include public
transportation equipment. (See Cal. Atty. Gen. Letter Opn., I.L. 69-169.)
Shortly thereafter, at the behest of the California Labor Federation,2 the
Legislature enacted section 4500 of the Government Code specifically applicable to
public transportation facilities and equipment. (Stats. 1971, ch. 444.) That section as
enacted provided and still provides as follows:
"Notwithstanding the provisions of any statute, rule, regulation,
decision or pronouncement to the contrary, every local governmental
subdivision, every district, every public and quasi-public corporation, every
local public agency and public service corporation, and every city, county,
city and county and municipal corporation, whether incorporated and not
whether chartered or not, in awarding contracts for equipment or structures
1
Complementary legislation applicable to public accommodations or facilities constructed
with private funds was enacted by the Legislature the following year. (See Health & Saf. Code,
§ 19955, as added by Stats. 1969, ch. 1560).
See also Civil Code section 54 et seq., originally enacted in 1968 (Stats. 1968, ch. 461)
according blind and other physically handicapped persons equal rights in and to public places,
accommodations and facilities.
2
See, e.g., Enrolled Bill Memorandum To Governor, dated July 29, 1971, with respect to
A.B. 710, 1971 Legislature.
See also, "Resolutions - Part 1," Eighth Convention, California Labor Federation, ALF-CIO,
August 1970, Res. No. 62, at p. 28.
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shall be obligated to require that all rapid transit equipment and structures
shall be so built that a handicapped person shall have ready access to, from
and in such equipment and structures; provided, however, that contracts for
equipment and structures incidental to the operation of an urban transit
system shall be exempt from this requirement until such equipment shall be
available from not less than two manufacturers." (Emphasis added.)
With respect to the language of section 4500 which is underscored above, we have been
presented with two questions for resolution.
The first question presented is whether the underscored language applies to
the situation where a local government which operates a transit system leases rapid transit
vehicles for that system.
The second question presented is whether that language applies to the
situation where a local government which operates a transit system contracts with a
private transportation company for what is referred to as transportation "services" and not
transportation "equipment." In this latter situation, the contract would provide that the
private transportation company, for an agreed upon consideration, would operate its own
rapid transit vehicles with its own operators over routes to be designated by the local
governmental unit. No franchise, however, would be involved. The contracted for
transportation "services" would constitute the local government's transportation system.
Does section 4500 of the Government Code require that rapid transit vehicles used in
such "services" be accessible for the handicapped?
With respect to both questions, we conclude that section 4500 requires that
the vehicles involved be accessible for the handicapped.
Returning to the language of section 4500 of the Government Code, we
note first that it is applicable to public and not private agencies. It then imposes upon
those public agencies certain requirements in their "awarding contracts for equipment and
structures." Since our focus herein is on vehicles, we will concern ourselves only with
the award of "contracts for equipment."
Significantly, the statutory language "awarding contracts for equipment"
does not specify what types of contracts are contemplated by the statute. The words
"contracts for equipment" taken by themselves could encompass numerous types of
contracts such as contracts to purchase, lease, use, insure, repair and even dispose of
equipment. Accordingly, our task herein is to resolve the ambiguity in such language in
accordance with what we perceive to have been the intent of the Legislature in enacting
section 4500.
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We believe this ambiguity is resolved when one examines the requirements
of section 4500 with respect to the "awarding of contracts for equipment" by the
enumerated public agencies. These are that 1) "all rapid transit equipment" 2) "shall be
so built" that 3) "a handicapped person shall have ready access to, from and in such
equipment." In our view, these specifications demonstrate that the legislative purpose in
enacting section 4500 was to ensure that handicapped persons can use public transit
equipment the same as able-bodied persons can. Accordingly, to ensure that this
legislative purpose is carried out, we believe that the words "contracts for equipment" as
used in section 4500 should be construed to include all contracts pertaining to rapid
transit equipment which contemplate the use of that equipment in the contracting public
entity's transit system.
This construction is buttressed by the following language of the California
Supreme Court where that court, in a somewhat different context, discussed the general
policy reasons for the enactment of legislation such as section 4500 of the Government
Code. Thus, in In re Marriage of Carney (1979) 24 Cal. 3d 725, 738, the court stated:
". . . [T]he physical handicapped have made the public more aware
of the many unnecessary obstacles to their participation in community life.
Among the evidence of the public's change in attitude is a growing body of
legislation intended to reduce or eliminate the physical impediments to that
participation, i.e., 'the architectural barriers' against access by the
handicapped to buildings, facilities, and transportation systems used by the
public at large. (See, e.g., Gov. Code, § 4450 et seq. [requires handicapped
access to buildings and facilities constructed with public funds]; Health &
Safety Code, § 19955 et seq. [access to private buildings open to the
general public]; Gov. Code, § 4500 [access to public transit systems]; Pub.
Resources Code, § 5070.5 subd. (c) [access to public recreational trails];
see also Veh. Code, §§ 22507.8, 22511.5 et seq. [special parking privileges
for handicapped drivers].)" (Emphasis added.)
Additionally, in resolving this ambiguity in section 4500, we are guided by
certain rules of statutory construction. "Modern social legislation is generally regarded as
being remedial in nature." (3 Sutherland, Statutory Construction (4th Ed. 1986), 60.02,
p.61.) Section 4500 of the Government Code certainly meets this characterization. In the
relatively early case, In re Makinos (1927) 200 Cal. 474, 478-479, the California
Supreme Court, quoting with approval from 23 Cal.Jur. 801, stated the rule with respect
to the interpretation of remedial statutes as follows:
". . . 'It is well settled that a remedial statute must be liberally
construed, so as to effectuate its object and purpose. Although due regard
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will be given the language used, such an act will be construed, when its
meaning is doubtful, so as to suppress the mischief at which it is directed,
and to advance or extend the remedy provided, and bring within the scope
of the law every case which comes clearly within its spirit and policy.
Clearly, the remedial effect of provisions should not be impaired by
construction, . . ." (23 Cal.Jur. 801.) . . ."
Or as stated more recently in Alford v. Pierno (1972) 27 Cal. App. 3d 682, 688:
". . . 'Remedial statutes such as [the one] under consideration, are to
be liberally construed. [Citation.] They are not construed within narrow
limits of the letter of the law, but rather are to be given liberal effect to
promote the general object sought to be accomplished. [Citation.]'
(California Grape etc. League v. Industrial Welfare Com. (1969) 268
Cal. App. 2d 692, 698 [74 Cal. Rptr. 313].)"
Having construed the purpose of section 4500 to be to ensure that
handicapped persons may use rapid transit equipment utilized in a public transit system,
and considering the foregoing rules of statutory construction, we now address the specific
question presented.
The first question presented asks whether rapid transit vehicles which are
leased by a local public agency for use in its transit system must be accessible for the
handicapped under section 4500.
The answer to this question is clearly "yes." Although the main thrust of
section 4500 would be to the purchase of rapid transit vehicles as the usual method of
acquisition, there is nothing in the language of section 4500 which restricts its application
to purchases. Under our construction of section 4500, its requirements are applicable to
any type of acquisition of rapid transit vehicles which are to be used in a public transit
system. It is immaterial whether or not the public agency owns the vehicles. Their use in
the system is the controlling factor under section 4500.
Accordingly, on question one we conclude that where a local government
which operates a transit system leases rapid transit equipment for use in that system,
section 4500 requires that such vehicles be accessible for the handicapped.
The second question presents a rather different factual situation. In that
question we are not presented with the situation where the local public agency actually
acquires rapid transit equipment in the usual sense, whether by purchase, lease or
otherwise, and has physical dominion and control over the vehicles. We are presented
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with the situation where the local public agency contracts with a private transportation
company for transportation "services" and not "equipment." Does section 4500 apply to
such a contract?
Again, we conclude the answer is "yes." This conclusion also follows from
our construction of section 4500, that is, that it is applicable to any contract awarded
which pertains to rapid transit equipment and which contemplates the use of that
equipment in a public transit system. Thus, it is immaterial who owns or even operates
such equipment, whether it is the public entity or the private transportation company.
Furthermore, such a conclusion is virtually compelled to ensure that the object and
purpose of the legislation is not thwarted. A handicapped person will have the same
access problems with public transit whether the equipment is operated by a public
employee, or is operated by a private employee whose services are hired and paid for by
the public. As noted at the outset, the main legislative purpose to be gleaned from the
wording of section 4500 is that the handicapped be able to use rapid transit equipment
provided to the public by a public transit system. The foregoing conclusion accords with
that purpose.
Accordingly, as to question number two we conclude that if a local
government which operates a transit system contracts with a private transportation
company for what is referred to as transportation "services" and not transportation
equipment, section 4500 of the Government Code does require that rapid transit vehicles
used in such "services" be accessible for the handicapped.3
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3
In reaching this conclusion we note the possible argument that section 4500 would not
apply to existing equipment of the private transportation company. This argument would arise
from the fact that section 4500's requirements are phrased in the future tense ("shall be obligated
to require"; "shall be so built"; "shall have ready access to"). In essence, the argument would
conclude that section 4500 only applies to equipment to be built at some future time pursuant to
the awarding contract.
We reject this argument, since, as we have pointed out, section 4500 is not concerned with
actually building the equipment, but is concerned with assuring that all contracted for equipment
is designed and accordingly physically built for use by the handicapped. The actual time the
equipment was built would be immaterial. The time the contract is awarded by the public
agency is the significant and governing factor.
As to the use of the future tense in section 4500, we believe this was in all probability used to
indicate that the public agencies to which the section applies could use their existing equipment.
Stated otherwise, we believe the section was worded so that public agencies would not be
required to retrofit existing equipment when the statute was enacted. Such a "grandfather" clause
would not apply to equipment owned by a private transportation company.
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