BILL ANALYSIS Ó
SB 1186
Page 1
Date of Hearing: July 3, 2012
ASSEMBLY COMMITTEE ON JUDICIARY
Mike Feuer, Chair
SB 1186 (Steinberg & Dutton) - As Amended: June 20, 2012
SENATE VOTE : 36-0
SUBJECT : DISABILITY ACCESS: COMPLIANCE AND LIABILITY
KEY ISSUE : SHOULD THIS MEASURE MOVE FORWARD AS NEGOTIATIONS
CONTINUE AMONG MANY INTEREST GROUPS WITH THE GOAL OF IMPROVING
COMPLIANCE WITH DISABILTY ACCESS LAWS WHILE LIMITING UNWARRANTED
LITIGATION TARGETING SMALL BUSINESSES?
FISCAL EFFECT : As currently in print this bill is keyed fiscal.
SYNOPSIS
This bill reflects the authors' commendable efforts to find
common ground among civil rights advocates, people with
disabilities, and small business owners who allege that they
have been unfairly targeted with claims alleging a violation of
longstanding disability access laws that guarantee equal
treatment of disabled persons in places of public accommodation.
The bill before the Committee represents the existing state of
consensus as negotiations continue among a large number of
stakeholders. As these discussions go forward during the
remainder of the legislative session, the authors remain
committed to seeking effective solutions that promote compliance
with some of our most cherished civil rights laws while aspiring
to do so without unwarranted litigation. As currently crafted,
the 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 and 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. In addition, the 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). The bill also contains
non-substantive legislative intent language. A controversial
pre-litigation notice provision in earlier drafts has been
deleted.
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SUMMARY : Seeks to promote compliance with the state's
disability access laws without unwarranted litigation.
Specifically, this bill :
1)Prohibits 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.
2)Defines "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:
a) alleges one or more construction-related accessibility
violations as the basis of one or more
construction-related accessibility claims;
b) 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
c) 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.
3)Provides that a violation of the above provisions shall be
cause for the imposition of disciplinary action against an
attorney.
4)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."
5)States 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
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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.
EXISTING LAW :
1)Pursuant to 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.)
2)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.)
3)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.)
4)Provides that a violation of the ADA also constitutes a
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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.)
5)Provides pursuant to the Unruh Civil Rights Act 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 seq.)
6)Establishes 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.)
7)Requires an attorney, when serving a demand for money letter
or a complaint on a defendant, to 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.)
8)Defines terms for a disability access action, specifically, as
follows:
a) 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;
b) defines a certified access specialist whose inspection
report would be the basis for a defendant to qualify for
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the early evaluation conference;
c) defines the construction-related accessibility standard
that a CASp would use to inspect and prepare a report on
the place of public accommodation; and
d) 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.)
9)Provides that if a CASp determines that a site 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.)
10)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 standards 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.)
11)Outlines the specific process to be followed when filing a
disability access claim:
a) 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;
b) provides that a qualified defendant may file an
application requesting an early evaluation conference (EEC)
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after the defendant is served with the summons and
complaint within 30 days of receiving the summons and
complaint;
c) 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;
d) 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;
e) directs the parties to appear in person at the time set
for the conference;
f) 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;
g) 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 any demand for settlement of the case in its
entirety;
h) specifies that the court shall lift the stay when the
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;
i) specifies that the court may lift the stay at the
conclusion of the EEC upon a showing of good cause by the
plaintiff;
j) 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
aa) specifies the determinations the court would make at the
EEC. (Civ. Code Sec. 55.54.)
12)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.)
13)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
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disabilities than is afforded by the ADA and the federal
regulations adopted pursuant to that act. (Civ. Code Sec.
55.54.)
14)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.)
15)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.)
COMMENTS : The authors state that they wish to address continued
high rates of noncompliance with disability access laws and
continued high numbers of demand-for-money letters and lawsuits
that seek a quick settlement but do not improve disability
access, which they contend have economically impacted small
businesses. In its current form, this bill represents the
existing state of consensus as negotiations continue among a
large number of stakeholders. As these discussions go forward
during the remainder of the legislative session, the authors
remain committed to seeking effective solutions that promote
compliance with some of our most cherished civil rights laws -
recalling that lunch counter sit-ins played a critical role in
the civil rights movement that transformed places of public
accommodation - while aspiring to do so without unwarranted
litigation. As additional provisions are crafted, the authors
acknowledge that the bill will need to return to this Committee
for further consideration.
Brief Background on Disability Access Laws. For over forty
years, persons with disabilities have had the legal right to
full and free access to and use of roadways, sidewalks,
buildings and facilities open to the public, hospitals and
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medical facilities, and housing pursuant to the Disabled Persons
Act. (Civil Code Secs. 54 and 54.1.) After President Bush
signed 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 the Disabled Persons Act subjects the violator to
liability 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.
Likewise, persons with disabilities have long been among the
groups covered by the Unruh Civil Rights Act entitling all
persons, regardless of sex, race, color, religion, ancestry,
national origin, disability or medical condition, 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).
The Legislature Has Consistently Rejected Controversial Prior
Efforts To Impose Difficult Pre-Litigation Notice Requirements
Solely On Victims of Disability Access Laws. In 2003 and 2005,
several bills were introduced after multiple lawsuits were filed
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in state court by a few plaintiffs and attorneys against
business owners and operators for allegedly "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 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 Judiciary
Committee.
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. That bill failed passage in the Senate
Judiciary Committee. 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. That
bill likewise failed passage in the Senate Judiciary Committee.
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Recent Landmark Bipartisan Legislation To Improve Compliance And
Deter Unwarranted Litigation . SB 1608, which took effect
January 1, 2009, did not create any pre-litigation hurdles for a
person with a disability but focused instead on measures to
improve compliance and to quickly resolve litigation in order to
redress violations and avoid unnecessary cost and delay. Among
other things, the bill provided for an early evaluation of a
filed complaint if the defendant 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. That measure also
established the California Commission on Disability Access to
make recommendations to the Legislature on any further
improvements to California law, such as this measure. After
some initial delays due to funding and start-up complexities the
Commission is now reportedly functioning as intended.
This Bill Would Prohibit Issuing Pre-Litigation 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 authors note 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
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violations and "coercing" them into settling to avoid being
sued. The authors state 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 perceived problem by
prohibiting demands for money - both oral and written - in cases
in which the claim alleges one or more construction-related
accessibility violations.
Expansion of Defendant's Rights Advisory. In order to deter
potentially intimidating settlement demands, this bill also
requires that a written advisory accompany every civil complaint
and every written or oral settlement demand made either by an
attorney or by a party alleging a construction related
accessibility claim. This notice, to be provided in English and
other prevalent languages sets forth important information
regarding the defendant's rights and obligations, and warns that
no defendant is required to pay any money unless and until a
court imposes liability.
This 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 CASp and
determined to meet all applicable construction-related
accessibility standards, as specified.
As mentioned above, 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.
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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 standards 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.
Controversial Notice Provision Deleted. Prior to recent
amendments, this measure would have mandated that attorneys
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 the alleged
violation. As with similar prior proposals, this approach
remains controversial and potentially difficult to implement.
Opponents of such proposals note that mandating pre-litigation
notice may be unavailing at best, if not actually misleading to
businesses that would remain subject to immediate suit without
prior notice under the ADA. The authors have therefore
prudently chosen to pursue other approaches that they hope will
be less acrimonious. Once any such additional approaches are
added to the legislation, the authors have noted they will
ensure the bill comes back to this Committee for further review.
REGISTERED SUPPORT / OPPOSITION :
Support
Associated Builders and Contractors of California
Building Owners and Managers Association of California
California Association of Bed and Breakfast Inns
California Automotive Business Coalition
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California Asian Pacific Chamber of Commerce
California Business Properties Association
California Hotel & Lodging Association
California Optometric Association
California Restaurant Association
City of Temecula
Civil Justice Association of California (CJAC)
County of San Bernardino
International Council of Shopping Centers
NAIOP of California, the Commercial Real Estate Development
Association
Opposition (as amended)
Disability Rights Education & Defense Fund
State Independent Living Council
Analysis Prepared by : Kevin G. Baker / JUD. / (916) 319-2334