Amended  IN  Assembly  April 08, 2024

CALIFORNIA LEGISLATURE— 2023–2024 REGULAR SESSION

Assembly Bill
No. 2149

Introduced by Assembly Member Connolly

February 06, 2024

An act to amend Section 3496 of, and to add Part 5.6 (commencing with Section 7110) to Division 4 of of, the Civil Code, relating to civil law.


LEGISLATIVE COUNSEL'S DIGEST


AB 2149, as amended, Connolly. Gates: standards: inspection.
Existing law authorizes an owner of real property to install and operate on their property an electrified security fence, as defined, to protect and secure commercial, manufacturing, or industrial property, that meets specified requirements, except where a local ordinance prohibits that installation and operation. If a local ordinance allows the installation and operation of an electrified security fence, existing law requires the installation and operation of the electrified security fence to meet the requirements of that ordinance.
This bill would require a regulated gate, defined as an automatic or manual vehicular gate, or a gate that is larger than 48 inches wide and 84 inches high, any gate that weighs more than 50 pounds and is more than 48 inches wide or more than 84 inches high that is primarily for residential, commercial, or industrial use, to meet specified standards. The bill would require the owner of a regulated gate to have it inspected on or before July 1, 2025, 2026, and have it reinspected, thereafter, at least once every 5 years. The bill would require an owner to maintain written certification of the regulated gate by a professional and to make that documentation available to a building official a written report regarding the regulated gate’s compliance with the specified requirements for at least 5 years and make the report available to the building department upon request. The bill would make an owner of a regulated gate who fails to comply with these provisions subject to an unspecified civil penalty imposed by the building official. The bill would require the owner of a regulated gate that a professional advises poses determines, upon inspection, to pose an immediate threat to safety to immediately stop the use of the gate until necessary repairs are completed and to engage a qualified and licensed contractor to perform the repairs necessary to mitigate the emergency condition. The bill would require the owner of a regulated gate to engage a contractor to repair a regulated gate that is in need of corrective work repairs within a prescribed period, subject to imposition of a civil penalty an administrative fine by the building official, department, as specified. The bill would deem a regulated gate that fails to comply with these provisions 30 days after the owner of the gate has been notified of the violation, a public nuisance, and specify that in any case in which a government agency seeks to enjoin the continued use of a regulated gate that is in need of repair or replacement or that poses an immediate threat to safety, the court may award costs, including the costs of investigation and discovery, and reasonable attorney’s fees, that are not compensated for pursuant to some other provision of law, to the prevailing party. Because the bill would require local officials to perform additional duties, it 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, if the Commission on State Mandates determines that the bill contains costs mandated by the state, reimbursement for those costs shall be made pursuant to the statutory provisions noted above.
Vote: MAJORITY   Appropriation: NO   Fiscal Committee: YES   Local Program: YES  

The people of the State of California do enact as follows:


SECTION 1.

 Section 3496 of the Civil Code is amended to read:

3496.
 In any of the following described cases, the court may award costs, including the costs of investigation and discovery, and reasonable attorney’s fees, which are not compensated for pursuant to some other provision of law, to the prevailing party:
(a) In any case in which a governmental agency seeks to enjoin the sale, distribution, or public exhibition, for commercial consideration, of obscene matter, as defined in Section 311 of the Penal Code.
(b) In any case in which a governmental agency seeks to enjoin the use of a building or place for the purpose of illegal gambling, lewdness, assignation, human trafficking, or prostitution; or any case in which a governmental agency seeks to enjoin acts of illegal gambling, lewdness, assignation, human trafficking, or prostitution in or upon a building or place, as authorized in Article 2 (commencing with Section 11225) of Chapter 3 of Title 1 of Part 4 of the Penal Code.
(c) In any case in which a governmental agency seeks to enjoin the use of a building or place, or seeks to enjoin in or upon any building or place the unlawful sale, manufacture, service, storage, or keeping or giving away of any controlled substance, as authorized in Article 3 (commencing with Section 11570) of Chapter 10 of Division 10 of the Health and Safety Code.
(d) In any case in which a governmental agency seeks to enjoin the unlawful sale, service, storage, or keeping or giving away of alcoholic liquor, as authorized in Article 1 (commencing with Section 11200) of Chapter 3 of Title 1 of Part 4 of the Penal Code.
(e) In any case in which a governmental agency seeks to enjoin the continued use of a regulated gate, as defined in Section 7110, that is in need of repair or replacement, or that poses an immediate threat to safety, as authorized in Part 5.6 (commencing with Section 7110).

SECTION 1. SEC. 2.

 Part 5.6 (commencing with Section 7110) is added to Division 4 of the Civil Code, to read:

PART 5.6. Regulated Gates

7110.
 For purposes of this part, the following definitions shall apply:
(a) “Building official” department” means the individual invested with the responsibility local government office that is responsible for overseeing local code enforcement activities, including administration of the building department, interpretation of code requirements, and direction of the code adoption process. process in the city, county, or city and county where the regulated gate is located, or the office’s authorized representative.
(b) “Contractor” means a fencing contractor licensed pursuant to Chapter 9 (commencing with Section 7000) of Division 3 of the Business and Professions Code.

(b)

(c) “Owner” means any person, co-partnership, association, corporation corporation, or fiduciary, or their authorized agent who has legal or equitable title of, or any ownership interest in, real property upon which a regulated gate is installed.

(c) “Professional” means any licensed gate installer, building inspector licensed by the International Code Council, licensed architect, or licensed engineer authorized to inspect a regulated gate and to provide a written certification.

(d)

“Regulated gate” means any automatic vehicular gate, manual vehicular gate, or any gate that is greater than 48 inches or 1219 mm wide or more than 84 inches or 2134 mm high.

(d) “Positive stop” means an immovable component that, by its placement, physically impedes the motion of a regulated gate.
(e) “Professional” means any of the following:
(1) A person who is certified by the International Code Council.
(2) An architect who is licensed pursuant to Chapter 3 (commencing with Section 5500) of Division 3 of the Business and Professions Code.
(3) An engineer who is licensed pursuant to Chapter 7 (commencing with Section 6700) of Division 3 of the Business and Professions Code.
(4) A contractor.
(5) An active local government building inspector.
(f) “Regulated gate” means any gate that weighs more than 50 pounds and is more than 48 inches wide or more than 84 inches high that is primarily for residential, commercial, or industrial use.

(e)

(g) “Written certification” means a document attesting that a regulated gate has been inspected by a professional, meets the standards listed in Section 7111, and is in good working order. In addition, the document shall clearly include each of the following:
(1) Inspection date.
(2) Site address.
(3) Name of the property owner.
(4) Contact information of the inspector. professional.
(5) The inspector’s professional’s signature or stamp.

7111.
 (a) Except as provided in subdivision (b), a A regulated gate shall meet the requirements of ASTM International F900 and F1184, be installed according to the manufacturer’s recommendations, and be designed, constructed, and installed to meet all of the following requirements:
(1) The gate shall not fall more than 45 degrees from a vertical plane when it is detached from the supporting hardware.
(2) The gate shall be balanced and shall not move under its own weight.
(3) Rolling wheels shall be covered. wheels, if any, shall have a metal covering.
(4) The gate shall have positive stops meaning that an immovable component that, by its placement, physically impedes the motion of the gate. stops.
(b) A regulated gate with an operator or similar system shall meet In the case of a regulated gate that is operated by a motor, the regulated gates, in addition to meeting the requirements of subdivision (a), shall have a motorized operator or similar system that meets the requirements of Underwriters Laboratories, Inc. (UL) 325 and ASTM F2200.

7112.
 (a) On or before July 1, 2025, an owner shall cause a regulated gate to be inspected by a professional, and thereafter reinspected at least once every five years, in accordance with this part. Any work performed on a regulated gate to repair the gate shall result in a safe outcome. 2026, an owner of a regulated gate shall have the regulated gate inspected by a professional to ensure that the regulated gate complies with the requirements described in Section 7111 and obtain a written report from the professional that verifies compliance. The owner shall have that regulated gate reinspected at least once every five years thereafter, in accordance with this part. Any repairs performed on a regulated gate shall ensure that the regulated gate continues to comply with the requirements described in Section 7111.
(b) An owner shall maintain written certification by a professional and make that documentation available to the building official the written report regarding the regulated gate’s compliance with the requirements described in Section 7111 for at least five years and make the report available to the building department upon request.
(c) The continued and ongoing maintenance of a regulated gate in a safe and functional condition in compliance with this part shall be the responsibility of the owner.
(d) A regulated gate found by a professional professional, upon inspection, to be in need of repair or replacement shall be corrected by the owner. All necessary permits for repair or replacement shall be obtained from the appropriate local authority. All repair and replacement work shall be performed by a qualified and licensed contractor. contractor and pursuant to a permit issued by the appropriate local authority, if required.
(e) (1) A regulated gate that a professional advises poses determines, upon inspection, to pose an immediate threat to safety, or the condition of which prevents the gate from operating safely, shall be considered an emergency condition and the owner shall immediately stop the use of the gate until necessary repairs are completed and engage a qualified and licensed contractor to perform the repairs necessary to mitigate the emergency condition. Repairs of emergency conditions shall comply with the requirements of this part, be inspected by a professional, and be reported to the building official. department.
(2) The owner of a regulated gate that needs corrective work repairs, but that, in the opinion of a professional, does not pose an immediate threat to safety shall apply for a permit for the repairs within 30 days of receipt of the professional’s inspection report. If a permit is required in order to repair the gate, after the permit has been granted the owner shall have a period of 30 days to engage a qualified and licensed contractor to and make the repairs, unless an extension of time is granted by the building official. department.
(3) (A) If the owner does not engage a qualified and licensed contractor to repair the regulated gate within 30 days of having received receiving the necessary permits, the professional who performed the inspection shall notify the owner and the building official. department. The building department shall promptly notify the owner of their responsibility to repair the regulated gate within 30 days and the fact that an administrative fine may be imposed pursuant to this paragraph upon failure of the owner to comply with the notice.
(B) (i) If the repairs have not been completed within 30 days of having received the date when the building department sends the notice described in subparagraph (A), the owner shall may be assessed a civil penalty by the building official an administrative fine by the building department of not less than one hundred dollars ($100) nor more than five hundred dollars ($500) per day until the repairs are completed, the regulated gate is inspected by a professional, and the fact of the regulated gate’s repair and compliance with this section is reported to the building department, unless an extension of time is granted by the building official. department. The building department may also recover its reasonable regulatory costs of enforcement of this part from the owner.

(f)The building official may recover the reasonable regulatory costs of the enforcement of this part from an owner.

(g)An owner that fails to comply with the requirements of this part shall be subject to a civil penalty imposed by the building official.

(ii) The proceeds of an administrative fine or regulatory cost assessed pursuant to this paragraph shall be deposited into the treasury of the local government.
(iii) An owner who is assessed an administrative fine or regulatory cost pursuant to this subparagraph may contest the assessment as provided in subdivision (b) of Section 53069.4 of the Government Code.
(f) A regulated gate that fails to comply with this part 30 days after the owner of the gate has been notified of the violation pursuant to paragraph (3) of subdivision (e) is a public nuisance pursuant to Title 2 (commencing with Section 3490) of Part 3.
(g) This section does not affect any of the following:
(1) A property owner’s legal responsibility to maintain their property in a safe condition and any liability the owner has pursuant to existing law for injuries caused by a dangerous condition on their property.
(2) The ability of a building department to inspect real property for compliance with applicable state and local laws and ordinances, oversee local code enforcement activities, interpret state and local building code requirements, direct the code adoption process, and enforce applicable state and local laws and ordinances that govern construction.
(3) The ability of the legislative body of a city, county, or city and county to adopt any ordinance consistent with this section.

SEC. 2. SEC. 3.

 If the Commission on State Mandates determines that this act contains costs mandated by the state, reimbursement to local agencies and school districts for those costs shall be made pursuant to Part 7 (commencing with Section 17500) of Division 4 of Title 2 of the Government Code.