BILL ANALYSIS                                                                                                                                                                                                    Ó



                                                                  SB 1186
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          Date of Hearing:   August 28, 2012

                           ASSEMBLY COMMITTEE ON JUDICIARY
                                Bob Wieckowski, Chair
             SB 1186 (Steinberg & Dutton) - As Amended:  August 24, 2012

                              As Proposed to be Amended

           SENATE VOTE  :   36-0
           
          SUBJECT  :  DISABILITY ACCESS: COMPLIANCE AND LIABILITY

           KEY ISSUE  :  SHOULD THE LEGISLATURE ENACT NEW PROHIBITIONS AND 
          LIMITATIONS ON CLAIMS ALLEGING VIOLATION OF DISABILITY 
          DISCRIMINATION LAWS BY PLACES OF PUBLIC ACCOMMODATION IN 
          RESPONSE TO CONCERNS THAT SOME BUSINESSES HAVE BEEN THE SUBJECT 
          OF UNWARRANTED OR EXCESSIVE DEMANDS THAT MAY NOT ALWAYS LEAD TO 
          CORRECTION OF THE CONDITION THAT CAUSED THE VIOLATION? 

           FISCAL EFFECT  :  As currently in print this bill is keyed fiscal.

                                      SYNOPSIS
          
          This bill returns to the Committee for rehearing with 
          substantial amendments following many hours of discussions with 
          stakeholders over the past two months in an effort to reach 
          consensus in a delicate and complex area of civil rights law 
          regarding places of public accommodation and one that has both 
          practical and symbolic significance for both business owners and 
          the civil rights movement.  As proposed to be amended the bill 
          reduces the minimum statutory damages for unintentional 
          violations by certain defendants, including all specified small 
          businesses, provided that they fix the alleged violations.  The 
          bill also prohibits both written and oral demands for money by 
          both lawyers and non-lawyers, and regulates the content and 
          provision of demand letters, including that both demand letters 
          and complaints be written with specificity, and the bill 
          requires that demand letters and civil complaints be submitted 
          to the State Bar of California and to the California Commission 
          on Disability Access (CCDA).  Supporters state that the bill 
          will curb lawsuit abuse regarding the American's With 
          Disabilities Act (ADA) while promoting increased compliance with 
          disabled accessibility building codes throughout the state.  
          Opponents representing disability rights advocates are concerned 
          with the reduction of statutory damages for certain defendants, 








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          particularly small businesses who have not necessarily made 
          efforts to comply with longstanding anti-discrimination laws.  
          Among other concerns, some opponents also raise objections to 
          the regulation of demand letters and the requirements that 
          demand letters and civil complaints be transmitted to the State 
          Bar and the CCDA. 

           SUMMARY  :  Seeks to promote compliance with the state's 
          disability access laws without unwarranted litigation.  
          Specifically,  this bill  :   

          1)Requires an attorney to provide a written advisory with each 
            demand letter or complaint, as defined, sent to or served upon 
            a defendant or potential defendant for any 
            construction-related accessibility claim, as specified. 

          2)Requires an allegation of a construction-related accessibility 
            claim in a demand letter, or any allegation of noncompliance 
            with a construction-related accessibility standard in a 
            complaint, to state facts sufficient to allow the defendant to 
            identify the basis for the claim. 

          3)Prohibits a demand letter from including a request or demand 
            for money or an offer or agreement to accept money. 

          4)Requires an attorney to include his or her State Bar license 
            number in a demand letter, and to submit copies of the demand 
            letter to the California Commission on Disability Access and, 
            until January 1, 2016, to the State Bar. 

          5)Require, until January 1, 2016, an attorney to submit a copy 
            of a complaint to the commission. The bill would provide that 
            a violation of these requirements may subject the attorney to 
            disciplinary action.

          6)Requires the commission to review and report on the demand 
            letters and complaints it receives until January 1, 2016. 

          7)Also requires the State Bar, commencing July 31, 2013, and 
            annually each July 31 thereafter, to report specified 
            information to the Legislature regarding the demand letters 
            that it receives.

          8)Permits other defendants to file a request for a court stay 
            and early evaluation conference pursuant to this provision, 








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            including (A) a defendant, until January 1, 2018, whose site's 
            new construction or improvement on or after January 1, 2008, 
            and before January 1, 2016, was approved pursuant to the local 
            building permit and inspection process, (B) a defendant whose 
            site's new construction or improvement was approved by a local 
            public building department inspector who is a certified access 
            specialist, and (C) a defendant who is a small business, as 
            described. 

          9)The bill also would authorize a defendant who does not qualify 
            for an early evaluation conference pursuant to these 
            provisions, or who forgoes those provisions, to request a 
            mandatory evaluation conference, as specified. The bill would 
            authorize a plaintiff to make that request if the defendant 
            does not make that request.

          10)Require the court, in assessing liability in any action 
            alleging multiple claims for the same construction-related 
            accessibility violation on different particular occasions, to 
            consider the reasonableness of the plaintiff's conduct in 
            light of the plaintiff's obligation, if any, to mitigate 
            damages.

          11)Reduces a defendant's minimum liability for statutory damages 
            in a construction-related accessibility claim against a place 
            of public accommodation to $1,000 for each unintentional 
            offense if the defendant has corrected all 
            construction-related violations that are the basis of the 
            claim within 60 days of being served with the complaint and 
            other specified conditions apply, and would reduce that 
            minimum liability to $2,000 for each unintentional offense if 
            the defendant has corrected all construction-related 
            violations that are the basis of the claim within 30 days of 
            being served with the complaint and the defendant is a small 
            business, as specified.

          12)Requires the Department of General Services to make a 
            biannual adjustment to financial criteria defining a small 
            business for these purposes, and to post those adjusted 
            amounts on its Internet Web site.

          13)Requires a commercial property owner to state on a lease form 
            or rental agreement executed on or after July 1, 2013, if the 
            property being leased or rented has undergone inspection by a 
            certified access specialist.








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          14)In administering the certified access specialist program, 
            this bill would require the State Architect to periodically 
            review its schedule of fees for certification under the 
            program to ensure that the fees are not excessive. The bill 
            would prohibit the State Architect from charging a California 
            licensed architect, landscape architect, civil engineer, or 
            structural engineer, an application fee for certification that 
            exceeds $250.

          15)Adds a state fee of $1 on any applicant for a local business 
            license or similar instrument or permit, or renewal thereof, 
            for purposes of increasing disability access and compliance 
            with construction-related accessibility requirements and 
            developing educational resources for businesses to facilitate 
            compliance with federal and state disability laws, as 
            specified. The bill would divide those moneys for the state 
            between the local entity that collected the moneys and the 
            Division of the State Architect, pursuant to specified 
            percentages. The bill would create a continuously appropriated 
            fund, the Disability Access and Education Revolving Fund, for 
            the deposit of funds to be transferred to the Division of the 
            State Architect, thereby making an appropriation. This bill 
            would make an appropriation by authorizing local government 
            entities to retain 70% of the fees imposed.

          16)Revises and recasts the duties and powers of the California 
            Commission on Disability Access, as specified, and eliminates 
            the biennial reporting requirement. The bill would instead 
            provide that a priority of the commission shall be the 
            development and dissemination of educational materials and 
            information to promote and facilitate disability access 
            compliance, including a requirement that the commission work 
            with the Division of the State Architect and the Department of 
            Rehabilitation to develop educational materials for use by 
            businesses. The bill would require the commission to post 
            specified information on its Internet Web site, including, but 
            not limited to, educational materials and information that 
            will assist business owners. The bill would require the 
            commission to report to the Legislature on its implementation 
            by a specified date. The bill would require the commission to 
            compile data with respect to any demand letter or complaint 
            sent to the commission, and post that information on its 
            Internet Web site.









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           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 
            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 








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            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 
               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.)









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          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) 
               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 








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               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 
            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 








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            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  :  In support of the bill the author's state:  "SB 1186 
          is a compromise that applies a common sense approach to resolve 
          difficult issues.  It maintains the hard-fought civil rights of 
          the disabled community while helping to protect California 
          businesses from predatory demand for money letters and lawsuits. 
          Support for important laws like the Unruh Act and the Americans 
          with Disabilities Act are weakened when those laws are abused 
          for personal gain.  This measure bans the unscrupulous practice 
          of 'demand for money' letters, stops the stacking of claims 
          based on alleged repeat violations to force a business into a 
          quick settlement, while encouraging businesses to fix their 
          violations to comply with the law.  Thus, SB 1186 provides some 
          relief to businesses who show good faith in trying to follow the 
          law and are willing to correct the violation, which ultimately 
          promotes compliance and brings greater access to the disabled 
          community."

           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 
          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 








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          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). 

           This Bill Would Prohibit Issuing Pre-Litigation Demands For 
          Money And Regulate Other Demand Letters As Well As Oral 
          Statements By Both Attorneys and Non-Attorneys.   SB 1186 would 
          ban oral and written pre-litigation "demands for money," and 
          create rules for demand letters and complaints in claims 
          involving a construction-related accessibility violation.  
          According to the authors, these provisions are needed to respond 
          to evidence showing that a very small number of plaintiff's 
          attorneys have been abusing the right of petition under Section 
          52 and Section 54.3 of the Civil Code, by issuing a demand 
          letter to a business that the business pay a quick settlement of 
          the attorney's often inflated claim of damages or else incur 
          greater liability and legal costs if a lawsuit is filed.  

          Unusually, the bill also applies to non-attorneys, and covers 
          both written and oral statements that a customer might make to a 
          business owner. Assuming that these rules pass constitutional 
          muster as permissible regulation of speech, the bill makes clear 
          that only attorneys face a prospect of punishment for a 








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          violation.  Non-lawyers would not be subject to suit for 
          violating the demand-for-money and demand letter regulations 
          discussed below, and thus it would be inappropriate for a 
          business owner or others to threaten litigation against a 
          non-lawyer for alleged violation of these provisions.

          The bill would ban pre-litigation demands for money, where the 
          plaintiff alleges a construction-related accessibility violation 
          and makes a request or demand for money or an offer or agreement 
          to accept money.  The bill would also provide that a demand 
          letter alleging a construction-related violation or asserting a 
          claim may offer pre-litigation settlement negotiations but may 
          not include a specific request or demand for money.  It also may 
          not state any specific potential monetary liability for any 
          assert claim or claims, and may only state "The property owner 
          or tenant, or both, may be civilly liable for actual and 
          statutory damages for a violation of a construction-related 
          accessibility requirement."  Uncodified legislative intent 
          language would further express the Legislature's policy that the 
          abusive use of the right to petition under Section 52 and 
          Section 54.3, does not promote compliance with the accessibility 
          requirements and erode public support for and confidence in our 
          laws.

           New Pleading With Specificity Requirement For Demand Letters And 
          Complaints.   The bill would require any demand letter or 
          complaint asserting a construction-related accessibility claim 
          to state facts sufficient to allow identification of the basis 
          for the claim.  The requirement is that the alleged violations 
          supporting the claim be described with some specificity but 
          without the need to make averments with special language or 
          precision, such as a lawyer might employ, in light of the fact 
          that this standard is designed to be satisfied by non-lawyers.

          This particularly provision is designed to deter the use of form 
          demand letters and complaints by so-called "mill" attorneys who 
          assert hundreds of the same or nearly identical claims, often 
          for the same client against different businesses.  The 
          requirement is also intended to address the inappropriate 
          "stacking" of multiple claims by requiring a description of each 
          alleged violation instead of the use of a generalized form 
          letter or complaint alleging any number of multiple violations 
          without more specificity.  In the Magic Real Estate case, the 
          attorney simply that the plaintiff "would have patronized said 
          facility on at least 30 occasions during Ýthe preceding year]" 








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          without any greater specificity.  

          A further provision adds a requirement that any complaint 
          alleging a construction-related accessibility violation must be 
          verified by the plaintiff.  This provision is in response to the 
          practice of at least one attorney asserting and filing claims 
          without the claimant's knowledge or authorization.

           State Bar Review Of Demand Letters; Violation Of Demand Letter 
          And Demand For Money Provisions Would Be Grounds For Attorney 
          Discipline.   SB 1186 would, for a three-year period, require any 
          demand letter alleging a construction-related accessibility 
          violation to be sent to the State Bar.  For easier 
          identification, the bill would also require the demand letter to 
          include the attorney's State Bar license number.

          SB 1186 would provide that a violation of the ban on making a 
          demand for money in a construction-related accessibility claim, 
          or for sending a demand letter which makes a request or demand 
          for money or an offer or agreement to accept money would be 
          cause for attorney discipline.  Attorney discipline, however, 
          would not be mandatory as the bill cannot interfere with the 
          State Bar's prosecutorial discretion in determining whether or 
          not to file a particular case.

           California Commission On Disability Access (CCDA) To Receive 
          Copies Of Complaints And Demand Letters And To Tabulate Data On 
          Top Ten Types Of Violations Alleged.   SB 1186 would require a 
          copy of any attorney demand letter or complaint in state or 
          federal court which alleges a construction-related accessibility 
          violation to be sent to the CCDA.  The CCDA would be directed to 
          tabulate the types and frequency of violations alleged and to 
          compile a list of the top ten frequently alleged violations 
          which would be posted on its website.  The CCDA would also be 
          directed to report to the Legislature the tabulated data.  This 
          information will provide empirical data to policymakers about 
          disability access and compliance issues.  It would also provide 
          information to property owners about the most common 
          accessibility violations alleged in demand letters and 
          complaints so that they might take steps to protect themselves 
          from those frequent claims. 

           Reduced Statutory Damages And Procedural Benefits For 
          Defendants.   One of the most significant features of the bill 
          with strong support from business advocates is the new 








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          subdivision (f) to be added to Section 55.56, which provides 
          reduced statutory damages and certain procedural benefits to 
          certain defendants for non-intentional violations.  In order to 
          avail themselves of these advantages, a defendant must establish 
          that it has corrected the alleged violation within either 30 or 
          60 days of being served with the complaint, depending on the 
          defendant.  This period is intentionally short because it is 
          designed to be available for relatively less-extensive 
          violations and is not subject to enlargement.

          A defendant who had hired a certified access specialist (CASp) 
          and had met applicable compliance standards, or a person who had 
          new construction or an improvement approved by the local 
          building department on or after January 1, 2008, would be liable 
          in minimum statutory damages of $1000 per offense, instead of 
          $4000 per offense, when the defendant corrects the alleged 
          construction related accessibility violation within 60 days of 
          being sued.  Also, a small business defendant (defined as having 
          25 or fewer employees and no more than $3.5 million in gross 
          receipts) could have its minimum statutory damages liability 
          reduced to $2000 for each offense, instead of $4000, when it 
          corrects an alleged physical accessibility violation within 30 
          days of being served the complaint.  However, the provisions 
          would not apply to reduce statutory damages where the violation 
          was intentional.  The amendments revising the definition of 
          "intentional" are designed to broaden, not negate, the one 
          previously identified example.  Also, new subdivision (f) would 
          not affect the availability of actual damages or the treble 
          actual damages or attorney's fees. 

          For the defendants who satisfy the requirements of section 
          55.56(f), the bill would also grant the option to request an 
          early evaluation conference (EEC) and an immediate mandatory 
          stay of the proceedings, similar to the litigation protections 
          now given to a qualified defendant who had hired a CASp to 
          inspect the property and issue a report on its compliance 
          status.  A mandatory stay freezes the litigation at the point of 
          the court order, which serves to freezes the plaintiff's 
          attorney's fees at that point.  An EEC could be useful to end 
          the case at an early stage, particularly when the defendant has 
          corrected the asserted violation.

          The authors state that the policy goal of new subdivision (f) is 
          to incentivize property owners to correct their violations, as 
          opposed to settling the case and doing nothing, by reducing the 








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          minimum statutory damages.  

           Revised Advisory Notice to Defendants and Recipients of Demand 
          Letters.  The bill also expands and strengthens the existing 
          advisory notice that recipients of civil complaints and demand 
          letters to provide information regarding the new rights and 
          restrictions under the bill.  As with notification to the State 
          Bar and CCDA, these notices are to be sent once at the outset 
          and do not need to be re-sent in the same dispute unless new 
          claims are asserted.

           New Provisions To Prevent Stacking Of Multiple Claims To 
          Increase Statutory Damages.   New subdivision (h) is added to 
          Section 55.56 to address the so-called "stacking" problem.  This 
          occurs when the plaintiff is allegedly deterred by the same 
          construction-related accessibility violation on different 
          occasions and thereby asserts a claim of $4000 in statutory 
          damages for each of the multiple claims.  According to the 
          authors, the most egregious example is the Mundy v. Magic Real 
          Estate case, where the person asserted 30 violations over a 
          short period of time (less than 30 days reportedly) and sought 
          $120,000 in statutory damages.  While the obligation to mitigate 
          damages under current law would likely result in a much lower 
          award in a court trial, the mere threat of multiple stacked 
          claims and the purported minimum statutory damages based on 
          multiple claims is intimidating to many property owners who are 
          pressured to quickly settle for lesser damages.  New subdivision 
          (h) would state in the law that in assessing statutory damages 
          in a deterrence claim, the reasonableness of the plaintiff's 
          conduct in light of the plaintiff's obligation (if any) to 
          mitigate damages must be considered by the court in any action 
          alleging multiple claims for the same construction-related 
          accessibility violation on different particular occasions. 

          Uncodified intent language states that this new provision 
          reiterates that where multiple claims are asserted for the same 
          conduct on different occasions, a plaintiff must have a 
          reasonable explanation for the asserted need for multiple visits 
          to a site where a known barrier violation would deny full and 
          equal access, in light of the obligation to mitigate damages.  
          The uncodified intent language recognizes also that a case 
          involving multiple claims for the same violation may be 
          appropriate where there is a reasonable explanation, and there 
          are clear instances where the needs of a person with a 
          disability and circumstances may make any mitigation futile or 








                                                                  SB 1186
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          impossible.

           Mandatory Evaluation Conference At Option Of Either Defendant Of 
          Plaintiff.   This bill would allow either party to request a 
          mandatory evaluation conference (MEC) conducted by the court 
          within 90 days to 120 days of the request.  Similar to the EEC 
          under existing law, the MEC would evaluate the status of the 
          case and consider the current condition of the property and 
          whether the defendant has made repairs or plans to make repairs, 
          what are the asserted damages and attorney's fees of the 
          plaintiff, and whether the case can be settled in whole or in 
          part.  While these defendants would not be eligible for the 
          court stay of the proceedings, the mandatory court evaluation 
          conference could assist in resolving the case at an early stage 
          and promoting compliance, whether because the defendant has 
          corrected the violation or because the plaintiff is able to 
          obtain injunctive relief.

           This Bill Would Require Commercial Property Owners To Provide 
          Casp-Inspection Notice In Leases.   This bill will require 
          property owner and lessor to notify the tenant in the lease form 
          or rental agreement executed on or after July 1, 2013, whether 
          the property being leased or rented has undergone inspection by 
          a CASp, and if so, whether the property has been or has not been 
          determined to meet all applicable construction-related 
          accessibility standards.

          This provision responds to concerns that many businesses who 
          rent their premises do not know the compliance status of their 
          property.  Many would comply if they knew, but many just do not 
          know, it is asserted.  By specifically providing the knowledge 
          on which they can choose to act, it is hoped that many 
          violations can be avoided or be subject to lower statutory 
          damages.

          The delayed operative date is intended to allow property owners 
          who wish to offer a CASp reviewed property for rental to obtain 
          a CASp inspection if they have not already done so.  With fewer 
          than approximately 230 private CASp to serve the State of 
          California, a delayed operative date was deemed appropriate. 

           Required Information Regarding Disability Access Compliance To 
          Businesses Upon Renewal Of Business License.   As part of the 
          effort to educate businesses of their obligations under the law 
          with respect to disability access, this bill would require a 








                                                                  SB 1186
                                                                  Page  16

          city, county, or city or county, to inform the licensee that 
          under federal and state law, compliance with disability access 
          laws is a serious and significant responsibility that all 
          applies to all California building owners and tenants with 
          buildings open to the public.

          The bill would further require the local entity to inform the 
          licensee that information about the compliance requirements and 
          how to comply is available at various state agencies, and to 
          list the website addresses of those agencies. 

           New $1 Fee To Business License Fee To Strengthen Casp Program 
          And Develop Educational And Training Resources At State And 
          Local Level To Promote Compliance.   This bill would require 
          cities and counties to collect a $1 fee upon issuance or renewal 
          of a business license or similar instrument to pay for more CASp 
          in local building departments, to reduce costs of CASp testing 
          and certification to encourage more private CASp, to strengthen 
          the CASp program by enabling the Division of State Architect 
          (DSA) develop audit procedures for the CASp program to maintain 
          quality control, develop "best practices" guidelines, and pay 
          for development of more educational and training resources at 
          state and local level to promote compliance.  Monies collected 
          with be split 70% to locals/30% to DSA.  Local public entities 
          could use 5% of monies for admin costs and the rest would go to 
          pay for hiring and training of more CASp for local building 
          departments.  The other 30% would go to newly created Disability 
          Access and Education revolving fund in DSA for the purposes 
          noted above. 

          Getting more public and private CASp is essential to promoting 
          compliance and helping businesses, particularly those in older 
          buildings, comply and avoid lawsuits.  Currently, only about 450 
          CASp, split evenly between private and public employment, serve 
          the needs of all of California.  High costs of certification and 
          examination, $1650 for a three year certificate, has been a 
          significant hurdle.  This $1 fee proposal is intended to help 
          fund more public and private CASp and make the program stronger. 
           Some funds will also be spent on state and local educational 
          programs to assist building owners understand and meet their 
          compliance obligations.  

          The bill would also require the State Architect to periodically 
          review its CASp certification and examination fees to ensure 
          they are not excessive, while still covering the cost to 








                                                                 SB 1186
                                                                  Page  17

          administer the program.  Also, the bill reduces the application 
          fee for a licensed architect, landscape architect, civil 
          engineer or structural engineer to a maximum of $250.  The only 
          work is required to verify that they are qualified to take the 
          CASp examination is to verify that they are licensed.  The 
          current $500 fee is a significant disincentive for these 
          professionals to become a CASp.  

           ARGUMENTS IN SUPPORT  :  Indicative of the bill's supporters is 
          the following statement in support by a coalition of business 
          groups, including the California Business Properties 
          Association, the California Building Industry Association, the 
          California Chamber of Commerce and the California Restaurant 
          Association:

               This measure seeks to curb lawsuit abuse regarding the 
               American's With Disabilities Act (ADA) while promoting 
               increased compliance with disabled accessibility building 
               codes throughout the state.  A "win-win" situation for the 
               State of California.  Please be advised that the groups 
               listed above are in strong support of SB 1186 as 
               co-authored by Senator Darrell Steinberg and Senator Bob 
               Dutton.  We collectively extend our thanks to the authors 
               and their staffs for the substantial amount of time and 
               effort put forth on this effort over the past four months.

           ARGUMENTS IN OPPOSITION  :  The bill has received opposition from 
          a number of disability rights organizations and individual 
          advocates.  

          Disability Rights California states that is opposed unless 
          amended because the bill includes a provision which will reduce 
          statutory damages for small businesses who have not taken any 
          proactive steps to comply with federal or state access laws.  
          DRC writes:

               We believe there are many provisions in SB 1186 that 
               advance the good public policy of promoting access to 
               places of public accommodation, such as rental agreements 
               and business license renewal notifications to businesses 
               about access requirements. We are encouraged by the $1.00 
               business license renewal fee which will increase the number 
               of Certified Access Specialists in local planning and 
               building departments, and thereby ensure better compliance 
               with long-standing access laws. We also support giving 








                                                                  SB 1186
                                                                  Page  18

               businesses incentives, such as reduced damages and early 
               evaluation conferences, for proactive attempts to make 
               their facilities accessible to people with disabilities. 

               However, our Board does not support providing damage 
               reductions to businesses that have not made any proactive 
               attempts to make their facilities accessible. We believe 
               this is poor public policy and gives incentives to 
               businesses to wait until they are sued to make corrections. 
                California access laws and policies have been in effect 
               for decades and we are troubled that full compliance by 
               businesses still falls significantly short of what is 
               required. Because compliance is so often dependent on 
               individual complaints and lawsuits, provisions that 
               restrict damages for businesses that wait until they are 
               sued to comply does not meaningfully advance our mutual 
               public policy goal of full, free use, and enjoyment of 
               public facilities and accommodations

          The California Foundation for Independent Living Centers (CFILC) 
          representing 22 organizations statewide states in part:

               CFILC has been an active participant in a work group 
               comprised of representatives of the disability community 
               and various business associations convened by the authors.  
               The work group was asked to readdress the problems caused 
               by abuses in the filing of lawsuits for alleged violations 
               of physical accessibility requirements under the Americans 
               with Disabilities Act (ADA) and state law.  

               These abuses stem from the practices of a handful of 
               plaintiff and defense attorneys who have been filing or 
               defending, respectively, the submission of multiple demands 
               of monetary settlement demand letters to business owners 
               alleging violations of the ADA and state laws relating to 
               the physical accessibility standards for places of public 
               accommodations.  These are issues previously addressed by 
               reforms enacted by SB 1608 (Corbett) of 2008.  

               Over the course of several months, the work group met and 
               examined various proposals that would deter abusive 
               practices and that would hold these attorneys accountable 
               for professional discipline.  CFILC strongly believes that, 
               despite the best intentions of the authors, the evaluation 
               process was not given adequate time to produce a truly fair 








                                                                  SB 1186
                                                                  Page  19

               outcome for the disability community.  
                                                     
               Many of the proposals included in the most recently amended 
               version of SB 1186 are also strongly opposed by disability 
               rights organizations that litigate on behalf of people with 
               disabilities.  CFILC does not litigate cases involving 
               alleged violations of physical accessibility requirements.  
               However, to the extent that they state valid reasons for 
               opposing various reforms, we wish to formally associate our 
               position with the arguments to be posed by Disability 
               Rights California, the Disability Rights Defense and 
               Education Fund, and Californians for Disability Rights.  

               We will focus our attention to our objections in this 
               letter to specified amendments to SB 1186.  They would 
               authorize significant reductions in the statutory damages 
               allowed under the state Unruh Civil Rights Act.  These are 
               statutory damages that otherwise would be available to 
               people with disabilities seeking to enforce their civil 
               rights under the ADA and state law.

               CFILC has long considered Senator Steinberg to be a strong 
               supporter of the rights of people with disabilities.  
               However, we believe that the proposed reductions in 
               statutory damages go too far in unnecessarily infringing 
               upon the rights of people with disabilities.  The 
               overwhelming majority of persons who are denied access to 
               places of businesses have had nothing to do with the 
               underlying problems caused by these attorneys.  
               Nevertheless, based upon questionable public policy 
               grounds, we are being asked to bear a burden and forfeit 
               some of our vested statutory rights.

               CFILC most strongly objects to a provision to reduce a 
               plaintiff's statutory damages from $4,000 to $2,000 per 
               violation in cases for a "small business."  This is defined 
               as one having 25 or fewer employees and no more than $3.5 
               million in gross receipts.  In these cases, the reduction 
               in statutory damages would be allowed if the defendant 
               agrees to fix and actually fixes the violations within 30 
               days after being served the complaint.  If this does not 
               occur, the court would be able to hold the small business 
               owner liable for the full $4,000 if the violation is not 
               fixed within the 30-day time period.









                                                                  SB 1186
                                                                  Page  20

               This concept undermines many of the provisions of SB 1608 
               that identified a number of ways to encourage voluntary 
               compliance.  Many of these business owners would have 
               incentives to postpone any remediation of a violation until 
               such time as the aggrieved party actually files a lawsuit.  
               This is problematic because all too many of these 
               individuals with disabilities are already reluctant to go 
               to the trouble of filing a lawsuit.  

               In addition, we believe that this erosion of the right to 
               statutory damages sets a dangerous precedent for further 
               future reductions in the rights of people with 
               disabilities, at a time when those rights are already are 
               under constant attack at the national, state, and local 
               levels.  We can easily foresee that the business community 
               will come back to the Legislature to ask for an extension 
               to 60 days, 90 days, 180 days, or more after asserting that 
               the 30-day period is an inadequate period of time to fix a 
               violation.

               SB 1186 would also allow a court to reduce a plaintiff's 
               statutory damages from $4,000 to $1,000 per violation where 
               it was determined that the defendant had acted in good 
               faith to make their building or facility accessible.  It 
               would arise in situations where the defendant had 
               contracted for a CASp report that found it to be in 
               compliance, or where there was new construction or 
               improvements to an existing structure that were approved by 
               a local building department.  The defendant would then have 
               to fix the violation within 60 days after being served.

               These two provisions are relatively less objectionable 
               because they would at least require a demonstration of an 
               intention to act in good faith and the violation was 
               assumed to not exist based upon reasonable reliance on a 
               CASp report or the actions by a local building department.  
               Nevertheless, , we are still concerned that these 
               provisions once again are placing the burden of solving 
               these problems at the expense of the rights of people with 
               disabilities who are denied access.  It presumes that there 
               is an adequate dollar figure that adequately compensates a 
               person denied access for the emotional and psychological 
               harm for having their rights to equal access denied.  There 
               is also a presumption that those feelings are somehow 
               worthy of even less compensation if the defendant fixes a 








                                                                  SB 1186
                                                                  Page  21

               violation within 60 days.

               We understand that the authors genuinely believe that small 
               business owners would have incentives to apply the expenses 
               otherwise paid for statutory damages to actually fixing the 
               violation voluntarily.  However, there is no evidence that 
               such an outcome would be achieved, so we challenge whether 
               such a change is supportable by sound public policy 
               considerations.  We do not see any such grounds sufficient 
               legally and morally to permit yet another intrusion into 
               the statutory rights of people with disabilities.

               It is also noteworthy that the reduction of statutory 
               damages available to small business owners, as defined, 
               does not even require the same level of good faith and 
               reliance upon a report issued for the purpose of evaluating 
               compliance with accessibility standards.  We also have 
               concerns about the precedent set by these additional 
               provisions and fully expect that an extension of the 60-day 
               period will come up again and again in future sessions of 
               the Legislature.

          The Disability Rights Education & Defense Fund (DREDF) opposes 
          the bill.  An excerpt of DREDF's letter makes the following 
          points:

                 1186 creates a disincentive for businesses to comply 
               with the Americans with Disabilities Act (ADA).  

                 Reduced Unruh Act damages for individuals with 
               disabilities signals that California does not consider 
               discrimination based on disability as egregious as other 
               forms of discrimination.

                 Prohibition on pre-litigation demand for money creates 
               barriers to enforcement. 

                 State Bar and California Commission on Disability Access 
               notification segregates people with disabilities and their 
               representatives into a separate and unequal category within 
               the otherwise progressive Unruh Act. 

          Californians for Disability Rights, Inc. (CDR) states that it 
          strongly opposes SB1186, as drafted.  Among the points raised in 
          opposition, CDR states:








                                                                  SB 1186
                                                                  Page  22


               The "no demand for money" provisions of SB 1186 violate the 
               First Amendment to the United States Constitution and will 
               also be preempted by the Americans with Disabilities Act of 
               1990.

               The "no demand for money" ban violates the First Amendment 

               The attempt to ban "demands for money" would, as written, 
               be preempted because this ban conflicts with and limits 
               rights under the Americans with Disabilities Act of 1990. 

               Threatening attorneys with discipline and forcing them to 
               report for scrutiny by the State Bar or the CCDA for 
               advancing their client's rights creates a violation of 
               section 503 of the Americans with Disabilities Act.

               We do not believe the Legislature should draw out one class 
               of persons protected by the Unruh Act and limit their 
               damages for acts of discrimination.  

               Basing a reduction of damages because a violator of civil 
               rights law consulted a professional is a radical and 
               dangerous proposition. 

               Post litigation behavior should never be rewarded.

               This radical departure from current law is being undertaken 
               without a reasonable period to review the proposed language 
               and object.

               Proposed section 55.56(f) will degrade an already 
               beleaguered CASp program. 
           
           REGISTERED SUPPORT / OPPOSITION (as amended)  :

           Support
           
          American Institute of Architects, California Council
          Building Owners and Managers Association of California
          California Apartment Association
          California Building Industry Association
          California Building Officials
          California Business Properties Association
          California Chamber of Commerce








                                                                  SB 1186
                                                                  Page  23

          California Council of the Blind
          California Grocers Association
          California Restaurant Association
          International Council of Shopping Centers
          NAIOP of California, the Commercial Real Estate Development 
          Association
          Regional Council of Rural Counties

           Oppose
           
          California Foundation for Independent Living Centers
          The Certified Access Specialist Institute
          Disability Rights California
          California for Disability Rights, Inc.
          Disability Rights Education & Defense Fund
          A number of individuals


           Analysis Prepared by  :    Kevin G. Baker / JUD. / (916) 319-2334