BILL ANALYSIS Ó
------------------------------------------------------------
|SENATE RULES COMMITTEE | SB 1186|
|Office of Senate Floor Analyses | |
|1020 N Street, Suite 524 | |
|(916) 651-1520 Fax: (916) | |
|327-4478 | |
------------------------------------------------------------
THIRD READING
Bill No: SB 1186
Author: Steinberg (D) and Dutton (R), et al.
Amended: 5/16/12
Vote: 21
SENATE JUDICIARY COMMITTEE : 4-1, 5/8/12
AYES: Evans, Harman, Blakeslee, Leno
NOES: Corbett
SENATE APPROPRIATIONS COMMITTEE : Senate Rule 28.8
SUBJECT : Disability access: liability
SOURCE : Author
DIGEST : This bill prohibits 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, and prohibits 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 defines "demand for
money" and requires 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
prohibits the document from demanding or requesting any
CONTINUED
SB 1186
Page
2
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. Violation of these provisions would be
cause for the imposition of disciplinary action against an
attorney.
This bill requires 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 contains legislative intent
language, as specified.
Lastly this bill specifies that the functions and
responsibilities of the California Commission on Disability
Access (CCDA) includes the concurrent and prospective
review of legislative measures, including this bill, and
recommendations on any additional ideas or options to
promote disability access and reduce unnecessary
litigation.
ANALYSIS : Since 1969, persons with disabilities have
enjoyed protection under Civil Code (CIV) 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. 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 United States
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
CONTINUED
SB 1186
Page
3
and equal accommodations, advantages, facilities,
privileges, or services in all business establishments of
every kind whatsoever. (CIV 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. (CIV Section 52)
SB 1608 (Corbett, Harman, Steinberg, Runner and Calderon),
Chapter 549, Statutes of 2008, which took effect January 1,
2009, 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 CASp prior to the
filing of the complaint. It did not create any
pre-litigation hurdles for a person with a disability.
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.
Existing law and changes to the law
I. Existing law requires an attorney to provide a written
advisory to a building owner or tenant with each demand
for money or complaint for any construction-related
accessibility claim, as specified. The requirement to
provide the written advisory applies whether or not the
attorney intends to file a complaint or eventually files
a complaint in state or federal court. A violation of
this requirement may subject the attorney to
disciplinary action. The existing law also outlines
specific process to be followed when someone files a
disability access claim and defines the terms for a
disability access action. (See the Senate Judiciary
Committee analysis for details of existing law.)
This bill defines "demand for money" as a written
CONTINUED
SB 1186
Page
4
document or oral statement that is provided or issued to
a building owner or tenant, or his/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 prohibits an attorney or a person from issuing
a demand for money to a building owner or tenant, or
his/her agent or employee, or receiving any payment,
settlement, compensation or other remuneration pursuant
to a demand for money.
This bill requires an attorney to provide to a building
owner or tenant, or his/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
prohibits 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 this 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 provides that a violation of the above two
provisions shall be cause for the imposition of
disciplinary action against an attorney.
II. Existing law requires the State Architect to develop
and submit for approval and adoption building standards
CONTINUED
SB 1186
Page
5
for making buildings, structures, sidewalks, curbs, and
related facilities accessible to, and usable by, persons
with disabilities, as specified. Existing law provides
for the inspection of places of public accommodation by
certified access specialists to determine if the sites
meet all applicable construction-related accessibility
standards, and the provision of specified certificates
and reports regarding those inspections. Existing law
regulates the hiring of real property.
This bill requires 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."
III.Existing law established the 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. (Government Code Section 8299 et
seq.)
This bill states that the functions and responsibilities
of the commission include the concurrent and prospective
review of legislative measures, including this bill, and
makes recommendations on any additional ideas or options
to promote disability access and reduce unnecessary
litigation.
This bill includes 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 that may
lead to unnecessary litigation;
2. facilitate compliance by increased education
regarding the accessibility laws, including requiring
the CCDA to develop tools for use by businesses and
CONTINUED
SB 1186
Page
6
building inspectors, and to post those tools on its
public Internet Web site to facilitate greater
compliance;
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.
Related Legislation
SB 1163 (Walters) would establish notice requirements for
an aggrieved party to follow before he/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. The bill failed passage in the Senate
Judiciary Committee.
AB 1878 (Gaines), which is substantially similar to SB 1163
but applies to "microbusinesses" as defined by the bill,
failed passage in the Assembly Judiciary Committee.
AB 2282 (Berryhill) authorizes 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. The bill is in the Assembly Appropriations
Committee.
Prior Legislation
SB 384 (Evans), Chapter 419, Statutes of 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
CONTINUED
SB 1186
Page
7
not the attorney intends to file an action in state or
federal court.
SB 209 (Corbett and Harman), Chapter 569, Statutes of 2009,
required a CASp inspection report, to remain confidential
rather than be under seal and subject to protective order.
SB 1608 (Corbett, et al.), Chapter 549, Statutes of 2008,
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 CASp prior to the filing of the complaint.
FISCAL EFFECT : Appropriation: No Fiscal Com.: No
Local: No
SUPPORT : (Verified 5/16/12)
Building Owners and Managers Association of California
California Association of Bed and Breakfast Inns
California Business Properties Association
California Hotel and Lodging Association
California Restaurant Association
Civil Justice Association of California
International Council of Shopping Centers
NAIOP of California, the Commercial Real Estate Development
Association
OPPOSITION : (Verified 5/16/12)
California Foundation for Independent Living Centers
(unless amended)
Disability Rights California
Disability Rights Education and Defense Fund
ARGUMENTS IN SUPPORT : 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
CONTINUED
SB 1186
Page
8
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 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 this bill,
writing "Ýw]hile CRA remains committed to the
CONTINUED
SB 1186
Page
9
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 Hotel and Lodging Association and the
California Association of Bed and Breakfast Inns write in
support of this 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."
ARGUMENTS IN OPPOSITION : Opponents' concerns focus on
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.
The California Foundation for Independent Living Centers
opposes this 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
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.
CONTINUED
SB 1186
Page
10
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 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
CONTINUED
SB 1186
Page
11
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.
DLW/RJG:kc 5/22/12 Senate Floor Analyses
SUPPORT/OPPOSITION: SEE ABOVE
**** END ****
CONTINUED