BILL ANALYSIS Ó
SENATE JUDICIARY COMMITTEE
Senator Noreen Evans, Chair
2011-2012 Regular Session
SB 1186 (Steinberg & Dutton)
As Amended April 30, 2012
Hearing Date: May 8, 2012
Fiscal: No
Urgency: No
SK
SUBJECT
Disability Access: Liability
DESCRIPTION
This bill would prohibit an attorney or any person from issuing
a demand for money to a building owner or tenant for a violation
of a construction-related accessibility standard. This bill
would also prohibit an attorney or any person from receiving any
payment, settlement, compensation or other remuneration pursuant
to a demand for money in cases alleging a violation of a
construction-related accessibility standard.
This bill would define "demand for money" and would require an
attorney to provide to a building owner or tenant a document
that notifies the recipient of any alleged construction-related
accessibility violation that may be a basis for a damages claim
at least 30 days prior to filing any claim for damages based on
an alleged construction-related accessibility violation. This
bill would prohibit the document from demanding or requesting
any money to settle or forgo a claim for damages or imply that
the building owner or tenant is liable for damages and/or
attorney's fees. This bill would require a commercial property
owner to state on the lease form or rental agreement if the
property being leased or rented was inspected by a Certified
Access Specialist (CASp). This bill would contain Legislative
intent language, as specified.
BACKGROUND
Since 1969, persons with disabilities have enjoyed protection
under Civil Code
(more)
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Sections 54 and 54.1, which entitle individuals with
disabilities and medical conditions to full and free access to
and use of roadways, sidewalks, buildings and facilities open to
the public, hospitals and medical facilities, and housing. After
Congress enacted the Americans with Disabilities Act (ADA) in
1990, the state made a violation of the ADA also a violation of
Section 54 or 54.1. The state protections provided to disabled
persons are comparatively higher than those provided under the
ADA and are independent of the ADA.
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A violation of Section 54 or Section 54.1 makes a person liable
for actual damages plus a maximum of three times the actual
damages (but not less than $1,000), plus attorney's fees and
costs. In a private right of action under the ADA, a plaintiff
may obtain injunctive relief and attorney's fees, while an
action by the U.S. Attorney may bring equitable relief, monetary
damages on behalf of the aggrieved party, and a civil penalty of
up to $100,000.
Under the Unruh Civil Rights Act, all persons, regardless of
sex, race, color, religion, ancestry, national origin,
disability or medical condition, are entitled to the full and
equal accommodations, advantages, facilities, privileges, or
services in all business establishments of every kind
whatsoever. (Civil Code Section 51.) A violation of the ADA
also constitutes a violation of Section 51. A violation of this
section subjects a person to actual damages incurred by an
injured party, plus treble actual damages but not less than
$4,000, and any attorney's fees as the court may determine to be
proper. (Civil Code Section 52.)
SB 262 (Kuehl, Chapter 872, Statutes of 2003) established in the
Division of the State Architect a voluntary "access specialist
certification program" in order to assist business and property
owners to comply with ADA and state access laws. The bill also
authorized an enforcement action with civil penalties for
noncompliance with ADA and state access laws, after notification
of the business owner or operator by a government agency. The
authority to institute a civil action was extended to county
counsels (in addition to the Attorney General, district
attorney, and city attorney).
In 2003 and 2005, several bills were introduced after multiple
lawsuits were filed in state court by a few plaintiffs and
attorneys against business owners and operators for apparently
technical violations of the state's access or ADA regulations.
(SB 69 (Oller, 2003), AB 209 (Leslie, 2003), AB 20 (Leslie,
2005), SB 855 (Poochigian, 2005).) Three of those bills would
have required pre-litigation procedures for a plaintiff to
undertake prior to the filing of a complaint, including notice
to the owner of the property or business of the alleged
violations and would have provided a specified time period for
the owner or business to cure the violations. One bill (AB 20)
would have precluded an action for damages for a de minimus
violation, allowing only injunctive relief and attorney's fees.
All of those bills failed passage in the Judiciary Committees of
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their respective houses.
In 2008, three bills were introduced relating to disability
access. (AB 2533 (Keene, 2008), SB 1766 (McClintock, 2008), SB
1608 (Corbett, Harman, Steinberg, Runner and Calderon, Chapter
549, Statutes of 2008).) AB 2533 would have required a person
alleging violations of the full and equal access laws to first
deliver a notice to the responsible party, specifying the
physical conditions complained of, and would have required that
entity to make a good faith effort to remedy the condition. No
person could file an action unless the person to whom the notice
was given failed, within 30 days of receipt of the notice, to
commence a good faith effort to remedy the condition complained
of, or the person allowed unreasonable delays in remedying the
condition. AB 2533 failed passage in the Assembly Committee on
Judiciary. SB 1766 would have taken a similar approach by
imposing a duty on a person with a disability to first notify by
certified mail the owner or manager of the housing or public
accommodation in violation of the full and equal access laws and
also impose a duty on the owner or manager to remedy the
condition complained of within six months. This bill failed
passage in the Senate Committee on Judiciary. In 2011, SB 783
(Dutton, 2011) would have established notice requirements for an
aggrieved party to follow before he or she can bring a
disability access suit and given the business owner a 120-day
time period to remedy the violation. If the property owner
cured the violation, the bill would have provided that an
aggrieved party cannot receive any damages or attorney's fees,
except for special damages. This bill failed passage in this
Committee.
Alternatively, SB 1608, which took effect January 1, 2009, did
not create any pre-litigation hurdles for a person with a
disability but instead, among other things, provided for an
early evaluation of a filed complaint if the defendant is a
qualified defendant who had the identified place of public
accommodation inspected and determined to meet applicable
physical access standards by a state Certified Access Specialist
(CASp) prior to the filing of the complaint.
This bill attempts to further address the issue by prohibiting
demand for money requests alleging construction-related
accessibility violations and requiring an attorney to provide
notice to a building owner or tenant identifying any alleged
construction-related accessibility violations at least 30 days
prior to filing a claim for damages, as specified.
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CHANGES TO EXISTING LAW
Existing federal law , under the Americans with Disabilities Act
(ADA), provides that no individual shall be discriminated
against on the basis of disability in the full and equal
enjoyment of the goods, services, facilities, privileges,
advantages, or accommodations of any place of public
accommodation by any person who owns, leases, or leases to, or
operates a place of public accommodation. (42 U.S.C. Sec.
12182.)
Existing law provides that individuals with disabilities or
medical conditions have the same right as the general public to
the full and free use of the streets, highways, sidewalks,
walkways, public buildings, medical facilities, including
hospitals, clinics and physicians' offices, public facilities
and other public places. It also provides that a violation of
an individual's rights under the ADA constitutes a violation of
state law. (Civ. Code Sec. 54.)
Existing law provides that individuals with disabilities shall
be entitled to full and equal access to public accommodations,
subject only to the conditions and limitations established by
law, or state or federal regulation, and applicable alike to all
persons. It further provides that individuals with disabilities
shall be entitled to full and equal access to all housing
accommodations offered for rent or lease, subject to conditions
and limitations established by law. (Civ. Code Sec. 54.1.)
Existing law provides that a violation of the ADA also
constitutes a violation of Section 54.1. A violation of Section
54.1 subjects a person to actual damages, plus treble actual
damages but not less than $1,000, and attorney's fees as the
court deems proper. (Civ. Code Sec. 55.)
Existing law , the Unruh Civil Rights Act, declares that all
persons, regardless of sex, race, color, religion, ancestry,
national origin, disability or medical condition, are entitled
to the full and equal accommodations, advantages, facilities,
privileges, or services in all business establishments of every
kind whatsoever. A violation of the ADA also constitutes a
violation of Unruh. A violation of this section subjects a
person to actual damages incurred by an injured party, treble
actual damages but not less than $4,000, and any attorney's fees
as the court may determine to be proper. (Civ. Code Sec. 51 et
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seq.)
Existing law established the California Commission on Disability
Access (CCDA), an independent state agency composed of 19
members, with the general responsibility for monitoring
disability access compliance in California, and making
recommendations to the Legislature for necessary changes in
order to facilitate implementation of state and federal laws on
disability access. (Gov. Code Sec. 8299 et seq.)
Existing law requires an attorney, when serving a demand for
money letter or a complaint on a defendant, include a written
advisory to the defendant of the defendant's rights and
obligations, including the right of a qualified defendant to
request a stay and an early evaluation conference regarding the
allegations in the complaint. This written advisory is required
from an attorney only and is not required from a pro per
plaintiff. (Civ. Code Sec 55.3.)
Existing law defines terms for a disability access action,
specifically, existing law:
defines a qualified defendant as a defendant in an action that
includes an accessibility claim as to a place of public
accommodation that has been inspected by a certified access
specialist (CASp) and determined to meet applicable
construction-related accessibility standards or pending
determination by a CASp;
defines a certified access specialist whose inspection report
would be the basis for a defendant to qualify for the early
evaluation conference;
defines the construction-related accessibility standard that a
CASp would use to inspect and prepare a report on the place of
public accommodation. With respect to this standard, the bill
would provide that standards adopted in state law would be
used unless standards under federal law are higher; and
enumerates the duties of the CASp with respect to the
inspection, the corrections that may need to be made to the
site, written inspection report, and the statement of
compliance, including the issuance, upon completion of the
inspection and a determination that the site meets applicable
construction-related accessibility standards, of a specified,
watermarked, and sequentially numbered disability access
certificate that may be displayed at the site. (Civ. Code
Sec. 55.52.)
Existing law provides that if a CASp determines that a site
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meets all applicable construction-related accessibility claims
the CASp must provide a written inspection report to the
requesting party that includes specified information. If the
CASp determines that corrections are needed to the site in order
for it to meet all applicable construction-related accessibility
standards, the CASp must provide a written inspection report to
the requesting party that identifies the needed corrections and
a schedule for completion. (Civ. Code Sec. 55.53.)
Existing law requires every CASp who completes an inspection of
a site to provide the owner or tenant with a disability access
inspection certificate if the site either meets applicable
construction-related accessibility standard or is a CASp
determination pending site. Existing law permits the building
owner or tenant to post the certificate on the premises unless,
after the date of inspection, the inspected site has been
modified or construction has commenced to modify the inspected
site in a way that may impact compliance with
construction-related accessibility standards. (Civ. Code Sec.
55.53.)
Existing law outlines the specific process to be followed when
filing a disability access claim:
specifies the contents of the request and includes a link to
the Judicial Council of California's Web site to access the
appropriate court forms;
provides that a qualified defendant may file an application
requesting an early evaluation conference (EEC) after the
defendant is served with the summons and complaint within 30
days of receiving the summons and complaint;
grants qualified defendants a 90-day stay of the proceedings
with respect to the construction-related accessibility claims,
unless the plaintiff has obtained temporary injunctive relief;
requires a mandatory EEC to be scheduled no later than 50 days
after issuance of the order but no earlier than 21 days after
the request is filed;
directs the parties to appear in person at the time set for
the conference;
directs the defendant to file with the court and serve on the
plaintiff a copy of any relevant CASp inspection report at
least 15 days prior to the date of the EEC;
directs the plaintiff to file with the court and serve on the
defendant at least 15 days prior to the date of the EEC a
statement containing, to the extent reasonably known, an
itemized list of the alleged violations, the amount of damages
claimed, the amount of attorney's fees and costs claimed, and
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any demand for settlement of the case in its entirety;
specifies that the court shall lift the stay when defendant
has failed to file and serve the CASp inspection report when
required and also did not produce the report at the EEC,
unless good cause for the failure is shown;
specifies that the court may lift the stay at the conclusion
of the EEC upon a showing of good cause by the plaintiff;
specifies the court's authority to schedule additional
conferences or to extend the stay for no more than an
additional 90 days, upon a showing of good cause; and
specifies the determinations the court would make at the EEC.
(Civ. Code Sec. 55.54.)
Existing law provides that the stay and early evaluation
conference shall not be deemed to make any inspection report or
opinion of a CASp binding on the court or to abrogate the
court's authority to make appropriate findings of fact and law.
(Civ. Code Sec. 55.54.)
Existing law provides that the stay and early evaluation
conference shall not be construed to invalidate or limit any
California construction-related accessibility standard that
provides greater or equal protection for the rights of persons
with disabilities than is afforded by the ADA and the federal
regulations adopted pursuant to that act. (Civ. Code Sec.
55.54.)
Existing law provides that notwithstanding the requirement that
offers of compromise are privileged and protected under Evidence
Code Section 1152, the court may consider, along with other
relevant information, settlement offers made and rejected by the
parties, in determining an award of reasonable attorney's fees
and recoverable costs in any construction-related accessibility
claim. (Civ. Code Sec. 55.55.)
Existing law provides that statutory damages may be recovered in
a construction-related accessibility claim only if a violation
or violations of one or more construction-related accessibility
standards denied the plaintiff full and equal access to the
place of public accommodation on a particular occasion.
Existing law specifies that a plaintiff is denied full and equal
access only if he or she personally encountered the violation on
a particular occasion or was deterred from accessing the public
accommodation on a particular occasion. (Civ. Code Sec. 55.56.)
This bill would define "demand for money" as a written document
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or oral statement that is provided or issued to a building owner
or tenant, or his or her agent or employee, that meets all of
the following requirements:
1.alleges one or more construction-related accessibility
violations as the basis of one or more construction-related
accessibility claims;
2.contains or makes a request for money or states or implies
that the building owner or tenant is liable for damages or
attorney's fees or both; and
3.is provided or issued without or prior to the filing of a
complaint in state or federal court on the basis of one or
more construction-related accessibility violations.
This bill would prohibit an attorney or a person from issuing a
demand for money to a building owner or tenant, or his or her
agent or employee, or receiving any payment, settlement,
compensation or other remuneration pursuant to a demand for
money.
This bill would require an attorney to provide to a building
owner or tenant, or his or her agent or employee, a document
that notifies the recipient of any alleged construction-related
accessibility violation that may be a basis for a damages claim
at least 30 days prior to filing any claim for damages based on
an alleged construction-related accessibility violation. This
bill would prohibit the document from demanding or requesting
any money to settle or forgo a claim for damages or imply that
the building owner or tenant is liable for damages and/or
attorney's fees. This provision of the bill applies whether the
attorney intends to file an action in state or federal court and
does not apply in a case solely seeking injunctive relief.
This bill would provide that a violation of the above two
provisions shall be cause for the imposition of disciplinary
action against an attorney.
This bill would require a commercial property owner to state on
the lease form or rental agreement if the property being leased
or rented is "CASp-Inspected" or is not "CASp-Inspected."
This bill would include the following language providing that it
is the intent of the Legislature to:
1.examine the federal and state laws that provide persons with
disabilities the right to full and equal access to places of
public accommodation, and to address any conflict between
those laws in construction-related accessibility standards
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that may lead to unnecessary litigation;
2.facilitate compliance by increased education regarding the
accessibility laws, including requiring the California
Commission on Disability Access to develop tools for use by
businesses and building inspectors, and to post those tools on
its public Internet Web site to facilitate greater compliance;
and
3.examine measures that would lead to greater compliance, to the
benefit of both business and the disability community through
reducing litigation and improving access for the disabled,
without discouraging early compliance efforts and without
affecting the right to sue for uncorrected and other
violations. This effort shall examine and address issues many
small businesses face from litigation and tactics pursued
primarily for private gain under the state and federal
disability access laws, rather than to rectify a disability
access violation.
COMMENT
1. Stated need for the bill
The author writes:
Recent amendments to the federal ADA recently became effective
March 16, 2012. Accordingly to the Division of State
Architect, there are now nine direct conflicts between the
current 2010 California Building Code (Title 24) and the
federal ADA that "cannot be resolved." The intent language
states the Legislature's intent to address the issue to avoid
unnecessary litigation arising from the conflicts.
SB 1608 requires the sending of a specified advisory notice to
property owners or tenants who receive a demand for money
letter for an attorney based on an alleged construction-based
accessibility violation on the property. This law was enacted
in response to concerns that small businesses were coerced
into paying significant amounts of money to avoid being sued
by lawyers who sent letters notifying the business of alleged
ADA violations and threatening to sue for significantly higher
damages and attorneys fees unless the business paid a
"settlement" within a short period of time. The required
notice was designed to notify the business of its legal rights
and obligations, particularly that the business is not liable
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for paying anything unless ordered by a court. Despite this
law, the practice has continued to vex small businesses with
its "pay-now or pay-more-later" demand; up until this year,
some attorneys were even able to avoid the law by claiming
that they did not know whether they were going to file a
follow-up lawsuit or they were intending to file in federal
court where they contended that the law did not apply. This
bill would prohibit the practice of sending a demand for money
letter for a violation of a construction-related accessibility
standard.
Other provisions seek to facilitate improved compliance. One
provision would require a property owner to advise a
prospective tenant whether the property to be rented "is
CASp-inspected" or "is not CASp-Inspected." This provision is
intended to provide businesses with better notice of whether
their leased property meets state and federal accessibility
requirements.
Another provision states the intent of the Legislature to
require the Commission on Disability Access to develop and
post on its website, tools for businesses and building
inspectors to use to facilitate greater compliance.
The California Restaurant Association supports the bill, writing
"Ýw]hile CRA remains committed to the implementation of SB 1608,
we recognize that further action by the Legislature could
address additional concerns with California accessibility laws.
Senator Feinstein's recent letter to Senator Steinberg raised
concerns about predatory ADA lawsuits similar to those that we
continue to hear from restaurateurs. SB 1186 specifically
addresses the use and abuse of demand letters to compel business
owners to pay monetary settlements and is therefore an important
step forward. SB 1186 would give these attorneys one less
tactic to use in their efforts to intimidate restaurant owners
into agreeing to monetary settlements."
The California Business Properties Association, Building Owners
and Managers Association of California, NAIOP of California, the
Commercial Real Estate Development Association International
Council of Shopping Centers all support the bill, writing that
it "will enhance accessibility-which is the most important issue
before you-while addressing lawsuit abuses. This bill builds on
SB 1608 (Corbett signed in 2008) Ýand] will provide a modicum of
protection from predatory individuals to businesses that are
striving to do the right thing and complying with accessibility
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laws."
The California Hotel & Lodging Association and the California
Association of Bed and Breakfast Inns write in support of the
bill, "Ýw]e believe that SB 1186 addresses the 'right to cure'
for construction-related accessibility claims; conflicts between
state and federal disability access laws; and frivolous
lawsuits. All of which are paramount to supporting business
throughout the state and ensuring . . . protections of people
with disabilities and their access to public accommodations."
The Civil Justice Association supports the bill, asserting
"Ýu]nfortunately, SB 1608 has not fully resolved the underlying
problem, which is the serial filing of disabled access lawsuits
by plaintiffs that prioritize financial gain over disabled
access." On this point, the author's office provided the
Committee with a summary of demand letters sent to business
owners alleging the same violations of federal and state law.
In a number of instances, the demand letters were sent by the
same attorney and the same plaintiff and alleged the same
violations such as improper disabled signage and tow away
warning signage.
2. Recent amendments remove the bill's provisions that imposed
unprecedented pre-litigation hurdles on disabled persons
alleging violations of their civil rights to equal access
Prior to the most recent amendments, this bill would have
imposed pre-litigation procedural requirements upon the filing
of any claim under the state's civil rights and equal access to
public or housing accommodation laws, including claims of
violations of the ADA. Under the prior version of the bill, the
plaintiff would have been required to send a specified notice of
violation served by personal service or certified mail on the
property owner or other responsible party. The property owner
or other responsible party then would have had 30 days to
respond to that notice and then, potentially, 90 days to correct
the violation and bring the property into compliance with
disability access laws. If the violation was not corrected
within the 90-day period and the owner failed to provide a
satisfactory explanation, the bill would have permitted the
claimant to file the claim. If the violation was corrected
within the 90-day period, the claimant and all future claimants
would have been prohibited from receiving any award of damages,
other than special damages, as defined, or any award of
attorney's fees, in any claim based on the same or similar
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facts.
These provisions were nearly identical to SB 783 (Dutton, 2011),
which failed passage in this Committee last year. Staff notes
that the most recent amendments to this bill delete these
provisions and replace them with the provisions described below
relating to demands for money, notice of alleged
construction-related accessibility violations, notice in lease
agreements concerning CASp-inspected properties, and Legislative
intent language.
3. Bill would prohibit issuing demands for money
This bill would prohibit an attorney or a person from issuing a
"demand for money" to a building owner or tenant, or his or her
agent or employee, or receiving any payment, settlement,
compensation or other remuneration pursuant to a demand for
money. This bill would define "demand for money" as a written
document or oral statement that is provided or issued to a
building owner or tenant, or his or her agent or employee, that
meets all of the following requirements: (1) alleges one or more
construction-related accessibility violations as the basis of
one or more construction-related accessibility claims; (2)
contains or makes a request for money or states or implies that
the building owner or tenant is liable for damages or attorney's
fees or both; and (3) is provided or issued without or prior to
the filing of a complaint in state or federal court on the basis
of one or more construction-related accessibility violations.
Under existing law, attorneys are required to provide a
specified advisory notice to a building owner or tenant with
each demand for money or complaint based on construction-related
accessibility claims. These notices-which inform the building
owner or tenant of his or her legal rights including that the
business is not required to pay any money unless and until a
court finds it liable-must be provided regardless of whether the
attorney intends to file the case in state or federal court. As
the author notes above, these provisions were included in SB
1608 and intended to address concerns that some attorneys were
threatening small businesses with lawsuits by notifying them of
violations and "coercing" them into settling to avoid being
sued. The author points out that the practice of sending a
demand for money letter for violation of a construction-related
accessibility standard is continuing to "vex small businesses
with its 'pay-now or pay-more-later' demand." The provisions of
this bill are intended to help address this problem by
prohibiting demands for money-both oral and written-in cases in
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which the claim alleges one or more construction-related
accessibility violations.
4. Bill would require notification of alleged
construction-related accessibility violations at least 30 days
prior to filing claim for damages; does not apply to actions
solely seeking injunctive relief
This bill would require an attorney to provide to a building
owner or tenant, or his or her agent or employee, a document
that notifies the recipient of any alleged construction-related
accessibility violation that may be a basis for a damages claim
at least 30 days prior to filing any claim for damages based on
the alleged violation. This bill would prohibit the document
from demanding or requesting any money to settle or forgo a
claim for damages or imply that the building owner or tenant is
liable for damages and/or attorney's fees. This provision of
the bill applies whether the attorney intends to file an action
in state or federal court and does not apply in a case solely
seeking injunctive relief.
a. Notice required 30 days prior to attorneys filing a
claim for damages
This bill's provision requiring an attorney to provide notice
to a building owner or tenant of a construction-related
accessibility violation 30 days prior to filing a claim for
damages is intended to assist businesses in identifying
violations so that compliance may be achieved. As the
author's office notes below, the requirement that attorneys
provide notice of alleged construction-related accessibility
violations 30 days prior to filing a claim applies only to
claims for damages. It is important to note that this
requirement does not apply where the claim is solely for
injunctive relief. This distinction reflects the desire to
underscore the importance of compliance and addressing the
construction-related accessibility violation.
Much of the opposition's concerns focus on this provision of
the bill. For example, the California Foundation for
Independent Living Centers (CFILC) opposes the bill, unless
amended and writes that this provision:
. . . constitutes such a violation of our vested civil and
constitutional rights. It would prohibit attorneys in
cases involving alleged violations of physical
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accessibility standards to provide a document to the owner
or tenant of a building, or an agent or employee of those
persons that notifies the recipient of any alleged
construction-related accessibility violations. The
prescribed notice must be provided at least 30 days prior
to filing any claim. The requirement applies whether the
case is filed in a state or federal court.
We strongly believe that this provision would have
virtually the same effect as the original "notice and
delay" text of SB 1186. It is not an acceptable
alternative because it would subject all people with
disabilities, including those with legitimate grounds for a
lawsuit, to disparate treatment in pursuing civil actions.
By singling out people with disabilities as the only
affected class, among all other protected classes, for such
disparate treatment, it subjects them to unacceptable
notice and delay requirements as a precondition for
pursuing the enforcement of their civil rights.
These abuses by attorneys are problematic, but we see no
legitimate purpose or state interest to be served by
sweeping all lawsuits together in one fell swoop in order
to solve a problem involving a small minority of cases.
This requirement presumes that it is necessary to view all
cases as being without merit in order to cull out those
that are in fact part of the abusive practices. Why should
the disability community be burdened to solve a problem
that should be more directly appropriately targeted toward
those offending attorneys? (Emphasis in original)
Disability Rights California also opposes this provision,
writing that it "establishes a different standard for people
with disabilities to enforce their civil rights. People with
disabilities should not have enforcement of their civil rights
limited or delayed because of the actions of a few."
In response, the author's office writes:
The notice requirement would apply only in cases where the
plaintiff will be seeking damages for a
construction-related accessibility violation. If he or she
were to only seek injunctive relief for that violation, the
notice law would not apply. If he or she were seeking
damages or injunctive relief for an accessibility violation
that is not construction-related, the notice provision
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would not apply. These are important distinctions that
preserve the ability of a person with a disability to seek
immediate relief and damages for those other violations.
Also, some kind of notice of violation provision in a
construction-related accessibility case seeking damages
seems to make good policy sense; it can be a valuable tool
to avert the gamesmanship being practiced by some lawyers
in some ADA litigation to "run up" the violation counts to
increase the damages award for private gain. In the letter
sent by Senator Feinstein, she included an example of a
plaintiff filing a lawsuit for 30 violations for being
denied access because the property was not in compliance
with disabled parking access laws. In that case, one could
ask why the plaintiff did not file after the first
violation? Or, more pointedly, why did he wait until he
incurred 30 violations? A possible answer is because he
wanted to build up his damages claim under California law
which makes each violation a separate violation subject to
a minimum statutory damages award of $4,000 per violation
plus attorney's fees. In fact, the plaintiff in that
particular lawsuit sought $120,000 in damages plus
attorney's fees. If the current law incentivizes a
plaintiff to wait to sue for a violation in order to build
up multiple violations for more damages, we need to stop
such gamesmanship under the law.
A notice requirement in that and similar cases would give a
business an opportunity to come into compliance and avoid
repeated violations and damages liability when it fixes a
violation after a notice. The resulting compliance and
increased access would benefit the entire disability
community.
As mentioned above, SB 1608 created the California Commission
on Disability Access (CCDA), an independent state agency
composed of 19 members. The CCDA has the general
responsibility for monitoring disability access compliance in
California, and making recommendations to the Legislature for
necessary changes in order to facilitate implementation of
state and federal laws on disability access. The Committee
may wish to consider whether it might be appropriate to refer
the issues raised by this bill to the CCDA for evaluation and
recommendations.
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b. Potential internal inconsistency
This bill appears to contain an internal inconsistency in that
the provision of the bill described in Comment 3 prohibits an
attorney or any person from issuing a demand for money that
implies that the building owner or tenant is liable for
damages or attorney's fees, or both, on the basis of
construction-related accessibility violations. At the same
time, as described above, the bill also requires an attorney
to provide a document to the building owner or tenant
notifying them of any alleged construction-related
accessibility violation that may be a basis for a damages
claim. The concern arises that notification of an alleged
violation could be interpreted by a building owner or tenant
as the implication that the owner or tenant is liable for
damages. In order to address this issue, the author may wish
to, for example, provide specific language to be used by
attorneys when notifying the building owner or tenant of an
alleged violation while not implying that the owner or tenant
is liable.
5. Bill would specify violation of Comments (3) and (4), above
is cause for imposition of disciplinary action against an
attorney
This bill would impose requirements on attorneys that they: (1)
not issue demands for money, either oral or written, in cases
alleging a violation of a construction-related accessibility
standard; and (2) give notice 30 days prior to filing a claim
for damages based on a construction-related accessibility
violation. This bill would specify that a violation of these
two provisions is cause for the imposition of disciplinary
action against an attorney. This provision is intended to
enhance attorney compliance with these requirements by
specifically providing that an attorney who does not comply may
face disciplinary action by the State Bar of California.
6. Bill would require commercial property owners to provide
CASp-Inspection notice in leases
This bill would require a commercial property owner to state on
the lease form or rental agreement if the property being leased
or rented has been inspected by a Certified Access Specialist
(CASp). Specifically, the form or agreement must state if the
property "is CASp-Inspected" or "is not CASp-Inspected." Under
existing law, "CASp-inspected" means the site was inspected by a
SB 1186 (Steinberg & Dutton)
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CASp and determined to meet all applicable construction-related
accessibility standards, as specified.
As mentioned in the Background, SB 262 (Kuehl, Ch. 872, Stats.
2003) established in the Division of the State Architect a
voluntary "access specialist certification program" in order to
assist business and property owners to comply with the ADA and
state access laws. SB 1608 built upon this CASp program by
requiring a CASp to provide a written inspection report that
includes specified information, if the CASp determines that a
property meets all applicable construction-related accessibility
claims. If the CASp concludes that corrections are needed to
the site in order for it to meet all applicable
construction-related accessibility standards, the CASp must
provide a written inspection report that identifies the needed
corrections and a schedule for completion.
SB 1608 also required every CASp who completes an inspection of
a site to provide the owner or tenant with a disability access
inspection certificate if the site either meets applicable
construction-related accessibility standard or is a CASp
determination pending site. The building owner or tenant may
then post that certificate on the premises unless, after the
date of inspection, the inspected site has been modified or
construction has commenced to modify the inspected site in a way
that may impact compliance with construction-related
accessibility standards.
If a building owner or tenant is later sued for a violation of
construction-related accessibility standards, he or she may file
an application requesting an early evaluation conference (EEC),
as specified. The defendant may then be granted a 90-day stay
of the proceedings with respect to the construction-related
accessibility claims, unless the plaintiff has obtained
temporary injunctive relief.
Although opposed to the bill, Disability Rights California
supports this provision, writing that it is "critical to require
lease forms or rental agreements to notify a business owner
about the accessibility of the property . . . " Given the
important rights and obligations that flow from having a site be
"CASp-inspected," it is helpful for a prospective tenant to know
whether or not a property meets all applicable
construction-related accessibility standards, as determined by a
CASp.
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7. Bill would contain Legislative intent language indicating a
desire to continue working on the issues addressed by the bill
This bill would include the following language providing that it
is the intent of the Legislature to:
a.examine the federal and state laws that provide persons with
disabilities the right to full and equal access to places of
public accommodation, and to address any conflict between
those laws in construction-related accessibility standards
that may lead to unnecessary litigation;
b.facilitate compliance by increased education regarding the
accessibility laws, including requiring the California
Commission on Disability Access to develop tools for use by
businesses and building inspectors, and to post those tools on
its public Internet Web site to facilitate greater compliance;
and
c.examine measures that would lead to greater compliance, to the
benefit of both business and the disability community through
reducing litigation and improving access for the disabled,
without discouraging early compliance efforts and without
affecting the right to sue for uncorrected and other
violations. This effort shall examine and address issues many
small businesses face from litigation and tactics pursued
primarily for private gain under the state and federal
disability access laws, rather than to rectify a disability
access violation.
It is important to note that the above language is simply intent
language and does not make substantive changes in the law.
Support : California Association of Bed and Breakfast Inns;
California Business Properties Association; California Hotel &
Lodging Association; California Restaurant Association; Building
Owners and Managers Association of California; Civil Justice
Association of California (CJAC); International Council of
Shopping Centers; NAIOP of California, the Commercial Real
Estate Development Association
Opposition : California Foundation for Independent Living
Centers (unless amended)
Disability Rights California; Disability Rights Education &
Defense Fund (DREDF)
HISTORY
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Source : Author
Related Pending Legislation :
SB 1163 (Walters) would establish notice requirements for an
aggrieved party to follow before he or she can bring a
disability access suit and give the business owner a 120-day
time period to remedy the violation. If the property owner
cures the violation, the aggrieved party cannot receive any
damages or attorney's fees, except for special damages. This
bill is scheduled to be heard in this Committee on May 8, 2012.
AB 1878 (Gaines), which is substantially similar to SB 1163 but
applies to "microbusinesses," defined by the bill, is scheduled
to be heard in the Assembly Judiciary Committee on May 8, 2012.
AB 2282 (Berryhill), which would authorize an aggrieved person
to bring a disability access suit only if: (1) the person has
suffered an injury in fact; (2) the injury in fact was caused by
the violation; and (3) the violation is redressable, is
scheduled to be heard in the Assembly Judiciary Committee on May
8, 2012.
Prior Legislation :
SB 783 (Dutton, 2011), which was identical to SB 1163, failed
passage in this Committee.
SB 384 (Evans, Ch. 419, Stats. 2011) clarified that attorneys
who file complaints or send demand letters related to disability
access violations must provide a written notice of legal rights
and obligations whether or not the attorney intends to file an
action in state or federal court.
SB 209 (Corbett & Harman, Ch. 569, Stats. 2009) required a CASp
inspection report, to remain confidential rather than be under
seal and subject to protective order.
SB 1608 (Corbett et al., Ch. 549, Stats. 2008) See Background;
Comment 6.
SB 1766 (McClintock, 2008) See Background.
AB 2533 (Keene, 2008) See Background.
SB 855 (Poochigian, 2005) See Background.
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