BILL ANALYSIS Ó
SB 1186
Page 1
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
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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
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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
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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
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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
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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.
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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
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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:
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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
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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