BILL ANALYSIS Ó
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|SENATE RULES COMMITTEE | SB 1186|
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UNFINISHED BUSINESS
Bill No: SB 1186
Author: Steinberg (D) and Dutton (R), et al.
Amended: 8/30/12
Vote: 27 - Urgency
SENATE JUDICIARY COMMITTEE : 4-1, 5/8/12
AYES: Evans, Harman, Blakeslee, Leno
NOES: Corbett
SENATE APPROPRIATIONS COMMITTEE : Senate Rule 28.8
SENATE FLOOR : 36-0, 5/29/12
AYES: Alquist, Anderson, Berryhill, Blakeslee, Calderon,
Cannella, Correa, De León, DeSaulnier, Dutton, Emmerson,
Fuller, Gaines, Harman, Hernandez, Huff, Kehoe, La Malfa,
Leno, Lieu, Liu, Lowenthal, Negrete McLeod, Padilla,
Pavley, Price, Rubio, Simitian, Steinberg, Strickland,
Vargas, Walters, Wolk, Wright, Wyland, Yee
NO VOTE RECORDED: Corbett, Evans, Hancock, Runner
NOTE: Senate votes were to a much narrower bill on the
same subject matter.
SENATE JUDICIARY COMMITTEE : Not available
(pursuant to Senate Rule 29.10)
ASSEMBLY FLOOR : Not available
SUBJECT : Disability access: liability
SOURCE : Author
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DIGEST : When this bill left the Senate, it prohibited an
attorney or any person from issuing a demand for money to a
building owner or tenant for a violation of a
construction-related accessibility standard, and prohibits
an attorney or any person from receiving any payment,
settlement, compensation or other remuneration pursuant to
a demand for money in cases alleging a violation of a
construction-related accessibility standard. The bill also
defined "demand for money."
This bill required a commercial property owner to state on
the lease form or rental agreement if the property being
leased or rented was inspected by a certified access
specialist (CASp). This bill contains legislative intent
language, as specified.
This bill specifies that the functions and responsibilities
of the California Commission on Disability Access (CCDA)
includes the concurrent and prospective review of
legislative measures, including this bill, and
recommendations on any additional ideas or options to
promote disability access and reduce unnecessary
litigation.
Assembly Amendments (1) delete requirement that an attorney
provide a document that notifies the recipient of alleged
construction related to accessibility violations, as
specified, that includes a demand for money to settle or
forgo the claim; (2) recast the entire bill with the same
intent as it left the Senate plus 14 new provisions.
This bill reduces statutory damages and provide litigation
protections for specified defendants who timely correct
construction-related accessibility violations of the Unruh
Civil Rights Act. Specifically, this bill:
Caps statutory damages at $1,000, instead for $4,000,
for any defendant who corrected all violations in the
claim within 60 days of being served the complaint and
was either (1) a defendant who had hired a CASp and met
all applicable compliance standards, or (2) a person who
had new construction or an improvement approved by the
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local building department on or after January 2008.
Allows a small business defendant, as specified, to
have minimum statutory damages reduced to $2,000 when
that defendant corrects the violation within 30 days of
being served the complaint.
Allows any one of these defendants who promises to
correct the violation within the specified time period
to request an early evaluation conference (EEC) and
grant that defendant an immediate stay of the
proceedings.
Additionally, this bill requires the court, in assessing
statutory damages in a construction-related accessibility
claim, to consider the reasonableness of the plaintiff's
conduct in light of the plaintiff's obligation to mitigate
damages in any action alleging multiple claims for the same
construction-related accessibility violation on different
particular occasions.
This bill also:
bans prelitigation "demands for money" and create rules
for demand letters and complaints in claims involving
construction-related accessibility violations;
requires any demand letter or complaint asserting a
construction related accessibility claim to contain
facts sufficient to allow the defendant to identify the
basis for the claim, including an explanation of the
specific access barrier the claimant encountered, and
the date(s) of the violation(s);
requires any demand letter alleging a
construction-related accessibility violation to be sent
to the State Bar and the CCDA, as specified;
allows either party to request a mandatory evaluation
conference to be conducted by the court within 120 to
180 days of the request;
requires a property owner and/or lessor to notify the
tenant, for any property leased after January 1, 2013,
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if the property has undergone a CASp inspection, and if
so, whether the property meets all applicable
construction-related standards;
requires the CCDA to promote and facilitate
accessibility compliance, as specified; and
requires cities and counties to inform business
licensees of their responsibilities to comply with
accessibility laws, as specified, and promote compliance
by sharing information regarding how to comply.
Finally, this bill adds $1 to business license fees and
similar instruments to pay for more local CASp, reduce
costs of CASp testing and certification, and strengthen the
CASp program, as specified. These collected monies would
be split between local public entities and the Division of
the State Architect (DSA), as specified. This bill
contains Legislative intent language, as specified.
ANALYSIS : Existing federal law, 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.)
Existing law 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. (Civil Code
(CIV) Section 54)
Existing law 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
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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
Section 54.1)
Existing law provides that a violation of the ADA also
constitutes a violation of CIV 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 Section
55)
Existing law, the Unruh Civil Rights Act, declares that all
persons, regardless of sex, race, color, religion,
ancestry, national origin, disability or medical condition,
are entitled to the full and equal accommodations,
advantages, facilities, privileges, or services in all
business establishments of every kind whatsoever. A
violation of the ADA also constitutes a violation of Unruh.
A violation of this section subjects a person to actual
damages incurred by an injured party, treble actual damages
but not less than $4,000, and any attorney's fees as the
court may determine to be proper. (CIV Section 51 et seq.)
Existing law establishes the CCDA, an independent state
agency composed of 19 members, with the general
responsibility for monitoring disability access compliance
in California, and making recommendations to the
Legislature for necessary changes in order to facilitate
implementation of state and federal laws on disability
access. (Government Code Section 8299 et seq.)
Existing law 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 EEC regarding the
allegations in the complaint. This written advisory is not
required from a pro per plaintiff. (CIV Section 55.3)
Existing law defines terms for a disability access action,
specifically, existing law:
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defines a qualified defendant as a defendant in an
action that includes an accessibility claim against a
place of public accommodation that has been inspected by
a CASp, and determined to meet applicable
construction-related accessibility standards, or is
pending a determination by a CASp;
defines a CASp whose inspection report would be the
basis for a defendant to qualify for the EEC;
defines the construction-related accessibility standard
that a CASp would use to inspect and prepare a report on
the place of public accommodation. With respect to this
standard, this bill provides that standards adopted in
state law would be used unless standards under federal
law are higher; and
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.)
Existing law 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 Section 55.53)
Existing law 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
standard or is a CASp determination pending site. Existing
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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 Section 55.53)
Existing law outlines the specific process to be followed
when filing a disability access claim:
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;
provides that a qualified defendant may file an
application requesting an EEC after the defendant is
served with the summons and complaint within 30 days of
receiving the summons and complaint;
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;
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;
directs the parties to appear in person at the time set
for the conference;
directs the defendant to file with the court and serve
on the plaintiff a copy of any relevant CASp inspection
report at least 15 days prior to the date of the EEC;
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;
specifies that the court shall lift the stay when
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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;
specifies that the court may lift the stay at the
conclusion of the EEC upon a showing of good cause by
the plaintiff;
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
specifies the determinations the court would make at
the EEC. (CIV Section 55.54)
Existing law provides that the stay and EEC 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 Section
55.54)
Existing law provides that the stay and EEC 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 Section
55.54)
Existing law 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 Section
55.55)
Existing law provides that statutory damages may be
recovered in a construction-related accessibility claim
only if a violation or violations of one or more
construction-related accessibility standards denied the
plaintiff full and equal access to the place of public
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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
Section 55.56)
This bill reduces a defendant's minimum liability for
statutory damages in a construction-related accessibility
claim against a place of public accommodation as follows:
to $1,000 for each violation 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 is either determined to be
"CASp-inspected" or to "meet applicable standards", and
there were no modifications or alterations that impacted
compliance after the date of that determination; or
to $1,000 for each violation 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 the structure or area of alleged
violation was new construction or improvement that was
approved and passed by the local building department
after January 1, 2008, as specified; or
to $2,000 for each 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.
This bill provides that defendants who meet the above
criteria would be eligible for a mandatory stay of the
proceedings and an EEC.
This bill requires 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.
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This bill requires an allegation of a construction-related
accessibility claim in a demand letter or complaint to
state facts sufficient to allow the defendant to identify
the basis for the claim, including a plain language
explanation of the specific access barrier(s) encountered
or by which the plaintiff was deterred, with sufficient
information to enable the defendant to identify that
barrier.
This bill requires that the plaintiff verify any complaint
asserting a construction-related accessibility claim.
This bill defines "demand letter" and require an attorney
to provide a written advisory informing the potential
defendant of his/her obligations and rights under the law
with each demand letter or complaint, as defined, sent to
or served upon a defendant for any construction-related
accessibility claim. This bill requires the Judicial
Council to update the form containing the advisory notice
by July 1, 2013.
This bill defines "demand for money" and prohibits
prelitigation demands for money from, or at the direction
of, an attorney including requests or demands for money, or
offers/agreements to accept money. With respect to
potential monetary damages, this bill provides that a
demand letter 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."
This bill requires an attorney to include his/her State Bar
license number in a demand letter, and, with the exception
of legal services providers, to submit copies of the demand
letter and complaints to the CCDA and demand letters to the
State Bar, until January 1, 2016. This bill provides that
a violation of this requirement may subject the attorney to
disciplinary action by the State Bar commencing on January
1, 2013.
This bill requires the State Bar, commencing July 31, 2013,
and annually each July 31 thereafter, to report specified
information to the Legislature regarding the types and
frequencies of the demand letters it receives.
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This bill modifies the duties and powers of the CCDA, as
specified, and eliminates the biennial reporting
requirement. This bill instead provides that a priority of
the CCDA is the development and dissemination of
educational materials and information to promote and
facilitate disability access compliance, including a
requirement that the CCDA work with the DSA and the
Department of Rehabilitation to develop educational
materials for use by businesses.
This bill requires the CCDA to compile data with respect to
any demand letter or complaint and post that information on
its Web site. This bill also requires the CCDA to post
educational materials and information to assist business
owners with compliance on its Web site. This bill requires
the CCDA to report findings and data to the Legislature.
This bill 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 Web site.
This bill 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 CASp and the results of that
inspection.
This bill authorizes a defendant who does not qualify for
an EEC pursuant to these provisions, or who forgoes those
provisions, to request a mandatory evaluation conference,
as specified. This bill authorizes a plaintiff to make
that request if the defendant does not make that request.
This bill requires the State Architect, in administering
CASp program, to periodically review its schedule of fees
for certification under the program to ensure that the fees
are not excessive. This bill prohibits the State Architect
from charging a California licensed architect, landscape
architect, civil engineer, or structural engineer, an
application fee for certification that exceeds $250.
This bill requires cities and counties to collect a $1 fee
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upon issuance or renewal of a business license or similar
instrument to pay for more CASp in local building
departments, reduce costs of CASp testing and
certification, encourage more private CASp, and strengthen
the CASp program by enabling the DAS to develop procedures
to maintain quality controls and develop best practices for
the CASp program. The monies collected would be divided
between local public entities and the DAS, as specified.
This bill also makes legislative declarations and findings.
Background
Since 1969, persons with disabilities have enjoyed
protection under CIV Sections 54 and 54.1, which entitle
individuals with disabilities and medical conditions to
full and free access to and use of roadways, sidewalks,
buildings and facilities open to the public, hospitals and
medical facilities, and housing. After Congress enacted
the 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.
Additionally, under the Unruh Civil Rights Act, all
persons, regardless of sex, race, color, religion,
ancestry, national origin, disability or medical condition,
are entitled to the full and equal accommodations,
advantages, facilities, privileges, or services in all
business establishments of every kind whatsoever. (CIV
Section 51.) A violation of the ADA also constitutes a
violation of Section 51. A violation of this section
subjects a person to actual damages incurred by an injured
party, plus treble actual damages, but in no event less
than $4,000, and any attorney's fees as the court may
determine to be proper. (CIV Section 52)
The California Legislature has taken further steps to
ensure disability access laws are complied with. SB 262
(Kuehl), Chapter 872, Statutes of 2003, established in the
DSA, a voluntary "access specialist certification program"
in order to assist business and property owners to comply
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with ADA and state access laws. The bill also authorized
an enforcement action with civil penalties for
noncompliance with the 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).
In 2003 and 2005, several bills were introduced after
multiple lawsuits were filed in state court by a few
plaintiffs and attorneys against business owners and
operators for allegedly technical violations of the state's
access or ADA regulations. (SB 69 (Oller, 2003), AB 209
(Leslie, 2003), AB 20 (Leslie, 2005), SB 855 (Poochigian,
2005).) Three of those bills would have required
pre-litigation procedures for a plaintiff to undertake
prior to the filing of a complaint, including notice to the
owner of the property or business of the alleged
violations, and would have provided a specified time period
for the owner or business to cure the violations. One bill
(AB 20) would have precluded an action for damages for a de
minimus violation, allowing only injunctive relief and
attorney's fees. All of those bills failed passage in the
Judiciary Committees of their respective houses.
In 2008, two bills were introduced relating to disability
access. AB 2533 (Keene, 2008) and SB 1766 (McClintock,
2008) would have both imposed prelitigation hurdles on
plaintiffs claiming violations of construction-related
disability access laws. Both of these bills failed in the
Judiciary Committees of their respective houses. In 2011,
SB 783 (Dutton, 2011) would have established notice
requirements for an aggrieved party to follow before he or
she can bring a disability access suit and given the
business owner a 120-day time period to remedy the
violation. SB 783 failed passage in the Senate Judiciary
Committee.
Alternatively, SB 1608 (Corbett), Chapter 549, Statutes of
2008, which took effect January 1, 2009, did not create any
pre-litigation hurdles for a person with a disability but
instead, among other things, provided for an early
evaluation of a filed complaint if the defendant is a
qualified defendant who had the identified place of public
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accommodation inspected and determined to meet applicable
physical access standards by a state CASp prior to the
filing of the complaint.
This bill seeks to further address the issue by enacting a
comprehensive package of disability litigation reforms.
When first heard in the Senate Judiciary Committee, this
bill also contained language indicating the intent of the
Legislature to examine the state and federal access laws,
to facilitate compliance with these laws through increased
education, and to examine measures that would lead to
greater compliance to the benefit of both the business and
the disability communities. Accordingly, the contents of
this bill relating to disability access that were heard and
passed by the Senate Judiciary Committee on May 8, 2012
have been largely amended to effectuate that Legislative
intent.
Comments
Brief background on disability access laws . For over 40
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. (CIV Sections 54 and 54.1.) After President
Bush signed the ADA in 1990, the state made a violation of
the ADA also a violation of Section 54 or 54.1. The state
protections provided to disabled persons are comparatively
higher than those provided under the ADA and are
independent of the ADA.
A violation of the Disabled Persons Act subjects the
violator to liability for actual damages plus a maximum of
three times the actual damages (but not less than $1,000),
plus attorney's fees and costs. In a private right of
action under the ADA, a plaintiff may obtain injunctive
relief and attorney's fees, while an action by the U.S.
Attorney may bring equitable relief, monetary damages on
behalf of the aggrieved party, and a civil penalty of up to
$100,000.
Likewise, persons with disabilities have long been among
the groups covered by the Unruh Civil Rights Act entitling
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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. (CIV Section 51.)
A violation of the ADA also constitutes a violation of
Section 51. A violation of this section subjects a person
to actual damages incurred by an injured party, plus treble
actual damages but not less than $4,000, and any attorney's
fees as the court may determine to be proper. (CIV Section
52)
SB 262 (Kuehl), Chapter 872, Statutes of 2003, established
in the DSA 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).
Related Legislation
SB 1163 (Walters) establishes notice requirements for an
aggrieved party to follow before he/she can bring a
disability access suit and give the business owner a
120-day time period to remedy the violation. If the
property owner cures the violation, the aggrieved party
cannot receive any damages or attorney's fees, except for
special damages. The bill failed passage in the Senate
Judiciary Committee.
AB 1878 (Gaines), which is substantially similar to SB 1163
but applies to "microbusinesses" as defined by the bill,
failed passage in the Assembly Judiciary Committee.
AB 2282 (Berryhill) authorizes an aggrieved person to bring
a disability access suit only if (1) the person has
suffered an injury in fact; (2) the injury in fact was
caused by the violation; and (3) the violation is
redressable.
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Prior Legislation
SB 384 (Evans), Chapter 419, Statutes of 2011, clarified
that attorneys who file complaints or send demand letters
related to disability access violations must provide a
written notice of legal rights and obligations whether or
not the attorney intends to file an action in state or
federal court.
SB 209 (Corbett and Harman), Chapter 569, Statutes of 2009,
required a CASp inspection report, to remain confidential
rather than be under seal and subject to protective order.
SB 1608 (Corbett, et al.), Chapter 549, Statutes of 2008,
provided for an early evaluation of a filed complaint if
the defendant is a qualified defendant who had the
identified place of public accommodation inspected and
determined to meet applicable physical access standards by
a state CASp prior to the filing of the complaint.
FISCAL EFFECT : Appropriation: Yes Fiscal Com.: Yes
Local: Yes
SUPPORT : (Verified 8/30/12)
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
California Citizens Against Law Suit Abuse
California Council of the Blind
California Grocers Association
California Restaurant Association
County Building Officials Association of California
International Council of Shopping Centers
NAIOP of California, the Commercial Real Estate Development
Association
Regional Council of Rural Counties
OPPOSITION : (Verified 8/30/12)
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California for Disability Rights, Inc.
California Foundation for Independent Living Centers
Disability Rights California
Disability Rights Education and Defense Fund
Independent Living Center of Southern California
ARGUMENTS IN SUPPORT : Senator Steinberg, joint author of
this bill writes, "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."
Senator Dutton, joint author of this bill writes, "SB 1186
is the culmination of months of hard work with staff and
all the various stakeholders in the community. ÝThe bill]
will not only provide a reasonable amount of time for small
businesses to fix minor infractions, but will also help
expand the California Access Specialist Program in
California and provide any more tools for businesses to
comply with this vital civil rights law."
ARGUMENTS IN OPPOSITION : A number of disability rights
organizations and advocates have written in opposition to
this bill. The majority of the opponents are supportive of
many provisions of this bill, but stand strongly opposed to
reduced statutory damages, especially for businesses who
have seemingly taken no prior steps to be in compliance
with existing accessibility laws.
Disability Rights California writes, "We believe there are
many provisions in SB 1186 that advance the good public
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policy of promoting access to places of public
accommodation. ? 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."
Many opponents have also pointed to the distinction between
the small business qualified defendants and the other two
types. These opponents note that while there may be some
justification for lowering the statutory damages for the so
called "good actors," or businesses who have made prior
compliance efforts, that justification does not necessarily
extend to all small businesses. The Certified Access
Specialist Institute argues that "offering reduced
statutory damages and litigation protections to small
businesses that do not hold a CASp report at the time the
suit is filed undermines the Construction Related
Accessibility Standards Compliance Act and does not
encourage a small business to proactively comply with the
ADA. SB 1186 proposes measures to inform a small business
owner of the responsibility for a compliant facility
(information received upon issuance or renewal of a
business license and CASp report disclosure upon rent or
lease). Accordingly, if the small business owner chooses
not to proactively identify and correct compliance issues
after being properly informed, then reduced statutory
damages and litigation protections should not be a reward."
RJG:k 8/31/12 Senate Floor Analyses
SUPPORT/OPPOSITION: SEE ABOVE
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SB 1186
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