BILL ANALYSIS Ó
SB 1186
Page 1
SENATE THIRD READING
SB 1186 (Steinberg and Dutton)
As Amended June 20, 2012
Majority vote
SENATE VOTE :36-0
JUDICIARY 10-0 APPROPRIATIONS 17-0
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|Ayes:|Feuer, Wagner, Atkins, |Ayes:|Fuentes, Harkey, |
| |Dickinson, Gorell, Huber, | |Blumenfield, Bradford, |
| |Jones, Monning, | |Charles Calderon, Campos, |
| |Wieckowski, Bonnie | |Davis, Donnelly, Gatto, |
| |Lowenthal | |Hall, Hill, Lara, |
| | | |Mitchell, Nielsen, Norby, |
| | | |Solorio, Wagner |
|-----+--------------------------+-----+--------------------------|
| | | | |
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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
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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 Certified Access Specialist-Inspected
(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 (CDA) 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.
FISCAL EFFECT : According to the Assembly Appropriations
Committee, minor absorbable costs to CDA.
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
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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 the Judiciary
Committee for further consideration.
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 medical facilities, and housing pursuant to the
Disabled Persons Act. After President Bush signed the Americans
with Disabilities Act (ADA) in 1990, the state made a violation
of the ADA also a violation of Civil Code 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. A violation of the ADA also constitutes a violation
of Civil Code Section 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
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any attorney's fees as the court may determine to be proper.
SB 1608 (Corbett) Chapter 549, Statutes of 2008, 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 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
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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 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.
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 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.
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
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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.
Analysis Prepared by : Kevin G. Baker / JUD. / (916) 319-2334
FN: 0004903