BILL ANALYSIS
SB 1608
Page 1
REPLACE - 08/28/2008 (Bolded text added by Judiciary Committee
staff after Assembly vote.)
SENATE THIRD READING
SB 1608 (Corbett)
As Amended August 12, 2008
2/3 vote
SENATE VOTE :40-0
BUSINESS & PROFESSIONS 10-0 JUDICIARY
10-0
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|Ayes:|Eng, Emmerson, Carter, |Ayes:|Jones, Tran, Adams, |
| |Hayashi, Hernandez, | |Evans, Feuer, Keene, |
| |Horton, Maze, Price, | |Krekorian, Laird, Levine, |
| |Torrico, Lieu | |Lieber |
|-----+--------------------------+-----+--------------------------|
| | | | |
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APPROPRIATIONS 12-0
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|Ayes:|Leno, Caballero, Davis, | | |
| |DeSaulnier, Furutani, | | |
| |Huffman, Karnette, | | |
| |Krekorian, Lieu, Ma, | | |
| |Nava, Solorio | | |
|-----+--------------------------+-----+--------------------------|
| | | | |
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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
examination.
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
renewed.
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
FN: 0007591