BILL ANALYSIS                                                                                                                                                                                                    

                                                                  SB 1608
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           REPLACE  - 08/28/2008 (Bolded text added by Judiciary Committee  
          staff after Assembly vote.)
          SB 1608 (Corbett)
          As Amended August 12, 2008
          2/3 vote

           SENATE VOTE  :40-0  
           BUSINESS & PROFESSIONS           10-0               JUDICIARY    
          |Ayes:|Eng, Emmerson, Carter,    |Ayes:|Jones, Tran, Adams,       |
          |     |Hayashi, Hernandez,       |     |Evans, Feuer, Keene,      |
          |     |Horton, Maze, Price,      |     |Krekorian, Laird, Levine, |
          |     |Torrico, Lieu             |     |Lieber                    |
          |     |                          |     |                          |
           APPROPRIATIONS      12-0                                         
          |Ayes:|Leno, Caballero, Davis,   |     |                          |
          |     |DeSaulnier, Furutani,     |     |                          |
          |     |Huffman, Karnette,        |     |                          |
          |     |Krekorian, Lieu, Ma,      |     |                          |
          |     |Nava, Solorio             |     |                          |
          |     |                          |     |                          |
           SUMMARY  :  Enacts several reforms intended to increase voluntary  
          compliance with longstanding state and federal laws requiring  
          access to the disabled in any place of public accommodation.   
          Specifically,  this bill  :   

          1)Requires, as a condition of license renewal, that an architect  
            must complete coursework regarding disability access  
            requirements, as specified, and certify to the California  
            Architects Board, as part of the license renewal process,  
            completion of the coursework prior to renewing their license.

          2)Creates the Construction-Related Accessibility Standards  
            Compliance Act, which relates to construction-related  
            accessibility claims and standards. 

          3)Specifies requirements for site certifications and reports by a  


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            certified access specialist.

          4)Establishes a process by which businesses, if sued for violation  
            of accessibility standards, may obtain a temporary stay of any  
            litigation along with an in-person early evaluation conference  
            with the court, attended by persons with authority to resolve  
            the dispute between the parties, for the purpose of deterring  
            frivolous cases and evaluating prospects for early settlement.

          5)Creates the California Commission on Disability Access  
            (Commission), an independent advisory body

          6)Imposes continuing education requirements on local building  
            officials relating to disability access requirements.

           EXISTING LAW  : 

          1)Provides for the licensure and regulation of some 22,000  
            architects by the California Architect's Board (CAB) within the  
            Department of Consumer Affairs (DCA).

          2)Requires that applicants for an architect license must provide  
            verification of eight years of education and work experience, as  
            specified, and successfully complete both an architect  
            registration examination and a California supplemental  

          3)Requires that in order to renew a license, a licensed architect  
            must apply for renewal and include a statement specifying  
            whether the licensee was convicted of a crime or disciplined by  
            another public agency during the time since the license was last  

           FISCAL EFFECT  :  According to Assembly Appropriations Committee, 

           1)Commission  .  Given the commission's scope of responsibilities,  
            annual GF costs would be around $600,000 for a five person staff  
            and associated expenses. 

           2)State Architect  .  Annual special fund costs of about $750,000  
            for 4-5 positions to support the expanded demands for Certified  
            Access Specialist certification and training, fully offset by  
            fee revenues, plus minor costs for production and issuance of  
            numbered disability access inspection certificates, offset by  
            certificate fees. 

           3)Courts  .  Depending on the volume, frequency, and complexity of  
            early evaluation conferences, courts could incur significant  


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            costs to incorporate and conduct this new procedure within court  
            schedules. To the extent these conferences reduce the need for  
            court hearings on disability disputes, however, the courts will  
            realize some offsetting savings.

           4)California Architects Board  .  The board will incur special fund  
            costs in the first year of $140,000 and ongoing costs of  
            $100,000 for 1.5 positions to establish continuing education  
            guidelines, potentially approve and monitor course providers,  
            and enforce compliance with continuing education requirements.

           COMMENTS  :  The authors state that SB 1608 is a comprehensive  
          reform measure intended to promote better compliance with the  
          Americans with Disabilities Act (ADA), as well as the state's own  
          equal access laws.  It is a multi-faceted approach that attempts  
          to address the problem of non-compliance in several ways.

          Since 1969, Civil Code Sections 54 and 54.1 have entitled  
          individuals with disabilities and medical conditions to full and  
          free access to and use of various facilities and associated  
          accommodations, benefits and privileges of places open to the  
          public.  After Congress enacted the ADA in 1990, the state made a  
          violation of the ADA also a violation of sections 54 and 54.1,  
          which make a person liable for actual damages plus a maximum of  
          three times the actual damages (but not less than $1,000 statutory  
          damages), plus attorney's fees and costs for each offense.  In a  
          private right of action under the ADA, a plaintiff may obtain  
          injunctive relief and attorney's fees.  In addition, under the  
          Unruh Civil Rights Act (UCRA) all persons, regardless of sex,  
          race, color, religion, ancestry, national origin, disability or  
          medical condition, are entitled to the full and equal facilities,  
          services and related accommodations, advantages, privileges and  
          benefits in all business establishments of every kind whatsoever.   
          (Civil Code Section 51.)  A violation of the ADA also constitutes  
          a violation of the UCRA.  Each and every offense subjects a person  
          to actual damages incurred by an injured party, plus treble actual  
          damages but not less than minimum statutory damages of $4,000, and  
          any attorney's fees as the court may determine to be proper.   
          (Civil Code Section 52.)

          Despite these longstanding access requirements, there has been  
          considerable controversy regarding the extent to which businesses  
          open to the public (places of public accommodation) are aware of,  
          and comply with, these obligations, and the proper role of private  
          litigation in the enforcement scheme, when a plaintiff alleges  
          that he or she encountered an alleged violation or was deterred  
          from visiting or attending a place of public accommodation based  
          on actual knowledge of a violation, particularly where the  


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          plaintiff seeks statutory damages.  (E.g., Donald v. Caf? Royale,  
          Inc, 218 Cal. App. 3d 168 (1990); Arnold v. United Artists Theatre  
          Circuit, 866 F. Supp. 433, 439 (N.D. Cal. 1994); Doran v.  
          7-Eleven, Inc., 524 F.3d 1034 (9th Cir. 2008); Pickern v. Holiday  
          Quality Foods Inc., 293 F.3d 1133, 1135 (9th Cir. 2002); Martinez  
          v. Home Depot, 2007 U.S. Dist. LEXIS 21838 (E.D. Cal. 2007);  
          Celano v. Mariott International, Inc., 2008 U.S. Dist. LEXIS 6172  
          (N.D. Cal. 2008); Chavez v. Suzuki, 2005 U.S. Dist. LEXIS 40092  
          (S.D. Cal. 2005); Wilson v. Pier 1 Imps., Inc., 413 F. Supp. 2d  
          1130 (E.D. Cal. 2006); Mantic Ashanti's Cause v. Darwish Plaza,  
          2006 U.S. Dist. LEXIS 33650 (S.D. Cal 2006); National Federation  
          of the Blind v. Target Corp., 2007 U.S. Dist. LEXIS 73547 (N.D.  
          Cal 2007).  This controversy has been more difficult to resolve in  
          part because there is so little, if any, public prosecution of  
          access violations, and thus private enforcement efforts are  
          central to the means by which these laws, like other civil rights  
          laws, are designed to be enforced.  This bill is intended to  
          reiterate these existing private enforcement rights, while at the  
          same time creating incentives for compliance that reduce the need  
          for private litigation, and providing measures that are intended  
          to discourage frivolous lawsuits and threats of litigation and  
          encourage early resolution efforts when disputes arise.

          Under SB 1608, the Certified Access Specialist (CASp) program  
          under the Division of the State Architect would play a central  
          role in the implementation of a new procedure for resolving claims  
          related to construction-related accessibility violations.  SB 1608  
          would require a CASp, upon completion of inspection of a site, to  
          provide the building owner or tenant who requested the inspection  
          with a specified notice which the State Architect would make  
          available on its Web site.  The specific notice prescribed in the  
          bill would advise the owner/tenant to keep the written inspection  
          report in their records, as well as any other documentation given  
          to them by the CASp and advise them of certain rights and  
          procedures.  Further, an inspection certificate displayed on the  
          window of a place of public accommodation would not preclude a  
          person with disability from claiming access violations on the  
          site, whether or not related to the physical accessibility of the  
          inspected site.  

          If a place of public accommodation identified in a complaint is a  
          CASp-inspected site (inspected and determined to meet applicable  
          construction-related accessibility standards) or a  
          CASp-determination pending site (inspected, but determination that  
          it meets applicable construction-related accessibility standards  
          is pending), is a defendant in a claim alleging disability access  
          violations it has the right to seek a temporary stay of the claim  
          at the outset of the case and to participate in an early  


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          evaluation conference designed to resolve construction-related  
          accessibility claims shortly after the complaint is filed.  This  
          provision is intended to apply in every applicable individual  
          civil action and, where appropriate, cases filed as proposed class  
          actions, although the bill is intended not to alter class action  
          requirements.  The bill would require a plaintiff's attorney, at  
          the time defendant is served with a complaint, to also serve a  
          notice in the form specified in the bill and a copy of the form  
          for defendant's request for a stay and an early evaluation  
          conference (EEC).  An attorney who substitutes into the case after  
          a pro per plaintiff had filed and served the complaint would be  
          required to serve this notice and request for stay and EEC form  
          together with the Notice of Substitution of Counsel.

          The inspection report of the CASp is to be filed with the court  
          and served upon the plaintiff in advance of the early evaluation  
          conference and is expected to be a helpful document in clarifying  
          the dispute by identifying and potentially narrowing the issues  
          for resolution, although neither the report nor other statements  
          of the CASp are binding on the court and, like the statement of  
          any witness, the views of the CASp are to be given only the  
          evidentiary weight that the trier of fact finds they deserve.  

          Proposed Civil Code Section 55.55 reflects the principle that when  
          a party prevails in a civil rights case the amount of attorney's  
          fees to be awarded is based upon equitable considerations and a  
          variety of factors, including but not limited to any written  
          settlement offers actually made and rejected and whether the  
          prevailing party failed to obtain a more favorable judgment or  
          award than the settlements offered.  This principle is not  
          intended to affect the procedure or construction of Code of Civil  
          Procedure Section 998. 

          The bill also addresses when a plaintiff may recover damages  
          because he/she either personally encounters a violation on a  
          particular occasion or is deterred from accessing a place of  
          public accommodation the plaintiff intends to visit on a  
          particular occasion based on the plaintiff's actual knowledge of a  
          violation, however acquired, based on the circumstances of the  
          individual's experience.  By contrast, other violations identified  
          by the plaintiff are subject to only injunctive relief.  (See,  
          e.g., Doran v. 7-Eleven, Inc., 524 F.3d 1034 (9th Cir. 2008);  
          Urhausen v. Longs Drug Stores, 155 Cal. App. 4th 254 (2007).)   
          While each violation of a construction-related accessibility  
          standard may not constitute a separate offense triggering a right  
          to statutory damages, some places of public accommodation may give  
          rise to more than one offense during a visit, depending on the  
          type of facility, service or other function at issue.  For  


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          example, a hotel property may include separate recreational  
          facilities, such as a swimming pool or bocce court in addition to  
          other accommodations.  In these circumstances, each denial of full  
          and equal access may be subject to statutory damages, but  
          statutory damages are not to be merely multiplied by the number of  
          violations of construction-related accessibility standards.   

          Analysis Prepared by  :    Kevin G. Baker / JUD. / (916) 319-2334 

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