BILL ANALYSIS Ó
SENATE JUDICIARY COMMITTEE
Senator Noreen Evans, Chair
2011-2012 Regular Session
SB 1186 (Steinberg & Dutton)
As Amended August 30, 2012
Hearing Date: August 31, 2012
Fiscal: Yes
Urgency: Yes
NR
PURSUANT TO SENATE RULE 29.10
SUBJECT
Disability Access: Liability
DESCRIPTION
This bill would reduce 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 would:
Cap 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 certified access specialist (CASp)
and met all applicable compliance standards, or (2) a person
who had new construction or an improvement approved by the
local building department on or after January 2008.
Allow 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.
Allow 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 would require 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
(more)
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construction-related accessibility violation on different
particular occasions.
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This bill would also:
ban prelitigation "demands for money" and create rules for
demand letters and complaints in claims involving
construction-related accessibility violations;
require 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);
require any demand letter alleging a construction-related
accessibility violation to be sent to the State Bar and the
California Commission on Disability Access (CCDA), as
specified;
allow either party to request a mandatory evaluation
conference (MEC) to be conducted by the court within 120 to
180 days of the request;
require a property owner and/or lessor to notify the tenant,
for any property leased after January 1, 2013, if the property
has undergone a CASp inspection, and if so, whether the
property meets all applicable construction-related standards;
require the CCDA to promote and facilitate accessibility
compliance, as specified; and
require 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 would add $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,
as specified. This bill would contain Legislative intent
language, as specified.
BACKGROUND
Since 1969, persons with disabilities have enjoyed protection
under Civil Code
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 Americans with Disabilities Act (ADA) in
1990, the state made a violation of the ADA also a violation of
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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. (Civil Code Sec. 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. (Civil Code Sec. 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 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 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
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access. AB 2533 (Keene, 2008), 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. That bill failed passage in this Committee.
Alternatively, SB 1608 (Corbett et al., Ch 549, Stats. 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 accommodation inspected and
determined to meet applicable physical access standards by a
state Certified Access Specialist (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 this 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 SB 1186 relating to disability access that were
heard and passed by this Committee on May 8, 2012 have been
largely amended to effectuate that Legislative intent.
CHANGES TO EXISTING LAW
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
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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.)
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 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.)
Existing law 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.)
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. Code Sec. 51 et
seq.)
Existing law 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.)
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 early evaluation conference regarding the
allegations in the complaint. This written advisory is not
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required from a pro per plaintiff. (Civ. Code Sec. 55.3.)
Existing law defines terms for a disability access action,
specifically, existing law:
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 certified access
specialist (CASp), and determined to meet applicable
construction-related accessibility standards, or is pending a
determination by a CASp;
defines a certified access specialist whose inspection report
would be the basis for a defendant to qualify for the early
evaluation conference;
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, the bill
would provide 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. Code Sec. 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 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
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site in a way that may impact compliance with
construction-related accessibility standards. (Civ. Code Sec.
55.53.)
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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 early evaluation conference (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 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. Code Sec. 55.54.)
Existing law 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.)
Existing law provides that the stay and early evaluation
conference shall not be construed to invalidate or limit any
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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.)
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. Code Sec. 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 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.)
This bill would reduce 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.
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This bill would provide that defendants who meet the above
criteria would be eligible for a mandatory stay of the
proceedings and an early evaluation conference.
This bill would 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.
This bill would require 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 would require that the plaintiff verify any complaint
asserting a construction-related accessibility claim.
This bill would define "demand letter" and require an attorney
to provide a written advisory informing the potential defendant
of his or 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 would require the Judicial Council to update the form
containing the advisory notice by July 1, 2013.
This bill would define "demand for money" and prohibit
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 would provide 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 would require an attorney to include his or 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 California Commission on Disability
Access (CCDA) and demand letters to the State Bar, until January
1, 2016. The bill would provide that a violation of this
requirement may subject the attorney to disciplinary action by
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the State Bar commencing on January 1, 2013.
This bill would require 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.
This bill would modify the duties and powers of the CCDA, as
specified, and eliminate the biennial reporting requirement. The
bill would instead provide 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
Division of the State Architect (DSA) and the Department of
Rehabilitation to develop educational materials for use by
businesses.
This bill would require the CCDA to compile data with respect to
any demand letter or complaint and post that information on its
Web site. The bill would also require the CCDA to post
educational materials and information to assist business owners
with compliance on its Web site. The bill would require the CCDA
to report findings and data to the Legislature.
This bill would require 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 would require 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 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.
This bill would require 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. The bill would prohibit the State Architect from
charging a California licensed architect, landscape architect,
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civil engineer, or structural engineer, an application fee for
certification that exceeds $250.
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,
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 would also Legislative declarations and findings.
COMMENT
1.Stated need for the bill
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. ŬThe
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
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vital civil rights law.
2.Qualified defendants would be eligible for reduced statutory
damages and specified procedural benefits
This bill would reduce statutory damages and grant certain
procedural benefits to qualified defendants for non-intentional
violations of construction-related accessibility laws. In order
to avail themselves of these advantages, a defendant must
establish that he or she has corrected the alleged violation
within 30 or 60 days of being served with the complaint,
depending on the defendant.
The author contends that the policy goal of this provision is to
incentivize property owners to correct their violations, as
opposed to settling the case and doing nothing, by reducing the
minimum statutory damages and potential attorney's fees award to
the plaintiff when they correct the violation.
a) Three types of qualified defendants
The first type of qualified defendant under this bill would
be a defendant who had hired a certified access specialist
(CASp) and met applicable compliance standards. The second
type of qualified defendant would be a person who had new
construction or an improvement approved by the local
building department on or after January 1, 2008. Both of
these defendants would be liable for minimum statutory
damages of $1,000 per offense, instead of $4,000 per
offense, when the defendant corrects the alleged
construction-related accessibility violation within 60 days
of being sued.
The third type of qualified defendant under this bill would
be a small business defendant, defined as having 25 or
fewer employees and no more than $3.5 million in gross
receipts. A small business defendant could have its minimum
statutory damages liability reduced to $2,000 for each
offense, instead of $4,000, in the event that it corrected
an alleged physical accessibility violation within 30 days
of being served the complaint.
This bill would also allow procedural benefits for the
above qualified defendants. Specifically, this bill would
grant the option to request an early evaluation conference
(EEC) and an immediate and mandatory stay of the
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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 would freeze the litigation at
the point of the court order, which arguably freezes the
plaintiff's attorney's fees at that point. An EEC could be
useful to end a case at an early stage, particularly when
the defendant had corrected the asserted violation.
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b) Concerns raised by the 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 the
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 (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. ? 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."
In response to the concerns that this bill will encourage
businesses to wait to be sued the author writes:
ŬIt] is a false assumption that this bill will simply
encourage businesses to wait until they are sued and
then fix. It is wrong because this remedy only applies
to the fixes that can occur in 30 days. It is foolhardy
for a small business to say, "I will just wait and be
sued," because there is no guarantee that the violation
can be fixed in 30 days, and if not fixed, he is liable
for the full $4,000 in statutory damages plus the
plaintiffs' attorney's fees which can be at least $5,000
per case and can be often much, much more than that.
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
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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 (CASI) 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."
Regarding the distinction between the different types of
qualified defendants and the question of why the
Legislature should reward small business defendants who
have not taken proactive steps like the other qualified
defendants, the author writes:
The small business defendant provision is a compromise.
It furthers the purpose of the ADA and good public
policy to extend the reduced damages provisions to a
large number of defendants who would not otherwise be
incentivize to fix the violation. The bill recognizes
that these defendants are different that the "good guy"
defendant who in good faith relied on a CASp or building
inspection approval, and so SB 1186 would only reduce
the statutory damages to be reduced to $2,000, not
$1,000, and gives them less time to fix. This provision
is truly designed to assist small businesses to comply
when they are sued for minor violations which can be
fixed in 30 days, such as a parking sign without the tow
operator's number.
c) Intentional vs. unintentional actions by defendants
This bill would authorize reduced statutory damages for
qualified defendants only in the case of unintentional
violations of access-related construction accessibility
laws. Prior to 2009, there was a split of opinion on the
issue of whether Unruh authorized minimum damages of $4,000
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per violation even where there was no intentional
discrimination. However, in Harris v. Capital Growth
Investors XIV 52 Cal.3d. 1142 (1991), the California
Supreme Court interpreted California Civil Code Section
52(a) as providing damages only in cases of intentional
discrimination. The next year, the Legislature amended the
Unruh Civil Rights Act. The Ninth Circuit found, relying on
that amendment, that statutory damages were available
regardless of any showing of intentional discrimination.
(See Lentini v. California Ctr. For the Arts, 370. F.3d 837
(9th Cir. 2004.) The California Fourth District Court of
Appeal declined to follow Lentini in a subsequent ruling,
holding that when a violation of Unruh was premised on an
ADA violation, statutory damages were only available where
intentional discrimination was shown. (See Gunther v. Lin,
144 Cal.App.4th 223, 234 (4th Dist. 2006).)
The split of opinion was settled in the California Supreme
Court case of Munson v. Del Taco, Inc., 46 Cal.4th 661,
which concluded that recovery of statutory damages for ADA
violations under Unruh is permitted even if evidence of
intentional discrimination is lacking.
Accordingly, because this bill would authorize statutory
damages absent a showing of intentional discrimination in
construction-related accessibility claims, albeit reduced
damages, it is arguably consistent with Munson. However,
opponents of this provision argue that creating a new
category of statutory damages for disability access
violations singles this type of discrimination out as less
egregious than other types of discrimination prohibited
under Unruh. The Disability Rights Education & Defense
Fund (DREDF) writes, "by reducing money damages for
incidences of disability discrimination by public
accommodations that are currently commonly available under
the Unruh Act, SB 1186 creates a state-sanctioned policy
that diminishes the rights of people with disabilities as
compared with the rights of other protected minorities.
This policy therefore confers second-class status on people
with disabilities and that effect is unacceptable." In
response to these concerns, the author writes:
It is true that SB 1186 will reduce the statutory
damages for an unintentional violation of the ADA when a
defendant fixes the source of the discrimination (the
access barrier), but as these statutory damages are not
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available to any other class under Unruh, it cannot be
said that SB 1186 treats the disability community
differently than other protected classes under Unruh.
In fact, rather than to harmonize the standard for all
classes under Unruh and thus treat everyone alike, this
bill maintains the special right of persons victimized
by a unintentional violation of the ADA to collect
minimum statutory damages - which is not available to
any other person who suffers the other forms of
discrimination under Unruh. The amount, however, is
reduced when the defendant corrects the violation within
a certain amount of time after the complaint is filed.
This is appropriate.
1.Provisions designed to limit risk of protracted litigation and
excessively high damages claims
This bill would allow either party to request a mandatory
evaluation conference (MEC) conducted by the court within 120
days to 180 days of the request. The MEC would be available to
any party, not only the qualified defendants discussed above
(see Comment 2). At the MEC, the status of the case would be
evaluated, and the current condition of the property at issue
considered. The evaluator would also consider whether the
defendant had made repairs or plans to make repairs, the
asserted damages and attorney's fees of the plaintiff, and
whether the case may be settled in whole or in part. The author
notes that the mandatory court evaluation conference could
assist in resolving the case at an early stage and promote
compliance, whether because the defendant has corrected the
violation or because the plaintiff is able to obtain injunctive
relief.
This bill would also require the court to consider the
reasonableness of a plaintiff's conduct in light of his or her
obligation to mitigate damages in any action involving multiple
claims for the same construction-related accessibility violation
on different occasions. According to the author, this provision
is needed "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 $4,000 in statutory
damages for each of the multiple claims. 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.
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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."
Staff notes that the uncodified intent language in the bill
would arguably guide the court in addressing damages in cases
where multiple claims are asserted for the same conduct on
different occasions. Specifically, the uncodified language would
state that 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.
2.Ban on demands for money and guidelines for demand letters
This bill would prohibit demands for money from or at the
direction of an attorney to potential defendants in
construction-related accessibility claims. This bill would also
create guidelines for what is appropriate in demand letters, and
establish rules by which plaintiffs must indicate in demands and
complaints the details, with specificity, surrounding the
barriers which they encountered. The author contends that 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 inflated claim of
damages or else incur greater liability and legal costs if a
lawsuit is filed.
a) Demands for money
This bill would define "demand for money" as a
prelitigation written document or oral statement that is
issued to a building owner or tenant where a plaintiff
alleges a construction related accessibility violation and
makes a demand for money or an offer or agreement to accept
money. This bill would ban these demands for money made by
or at the direction of an attorney.
In opposition, Californians for Disability Rights, Inc.
(CDR) writes that "banning attorneys or others from
demanding (or even initiating discussion) regarding
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attorney's fees recoverable and/or costs available under
the ADA frustrates the ability of lawyers to adequately
represent their clients and obtain rapid and cost effective
settlement of all rights and remedies available to their
clients without resort to litigation." In response the
author writes, "right now, what we are seeing is defendants
are choosing to settle rather than fixing. Faced with an
automatic judgment of maybe $9,000 to $14,000, plus his own
attorney's fees, many defendants are simply choosing to
settle for perhaps $6,000 to $8,000 without fixing the
violation. That is not good policy, and the law should not
encourage that."
Uncodified legislative intent language would further
support the author's contentions and 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
erodes public support for and confidence in our laws.
b) Demand letters and pleading requirements
The bill would also give guidance on what contents are
permissible in demand letters issued to potential
defendants. Permissible demand letters alleging a
construction-related violation or asserting a claim would
be allowed to offer pre-litigation settlement negotiations,
but may not include a specific request or demand for money.
These letters would also be restricted from containing any
specific potential monetary liability for any claim or
claims, and may only assert "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."
Furthermore, this bill would create more stringent pleading
standards by requiring any demand letter or complaint
asserting a construction-related accessibility claim to
state facts sufficient to allow the defendant to identify
the basis for the claim, including an explanation of the
specific access barrier(s) the claimant encountered, the
date(s) of the alleged violations, and the manner in which
the barrier was encountered. The author writes that this
pleading standard was 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,
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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 order to address concerns raised before the Assembly
Judiciary Committee that the specific pleading requirement
may limit the ability of plaintiffs to draft a sufficient
demand letter or claim, the bill was amended to require
specificity in plain language only. Thus, under this bill,
plaintiffs would not need to cite the actual code sections
which have allegedly been violated in order to draft a
legally valid letter or claim.
Another provision adds the 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.
1.Cause for discipline; the State Bar retains prosecutorial
discretion
This bill would, for a three-year period, require a copy of any
demand letter sent by or at the direction of an attorney to a
potential defendant, alleging a construction-related
accessibility violation to be sent to the State Bar and the
California Commission on Disability Access (CCDA). For ease of
identification, this bill would require that these letters
contain the attorney's name and State Bar license number.
Attorneys filing access violation claims would also be required
to submit copies of those complaints to the CCDA. This bill
would require the State Bar to review these demand letters, and
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 to accept money, would be cause for attorney
discipline.
The author notes that "even though certain acts shall be subject
to discipline, the commencement of an actual disciplinary action
is at the prosecutorial discretion of the State Bar's Office of
Chief Trial Counsel. Nothing in the bill would require the Bar
to bring an action for any offense, and it is certainly possible
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that the Bar may just send the lawyer offending the provision an
advisory letter for a first violation. The bill further delays
operation of the bar discipline provisions to January 1, 2013 to
allow lawyers time to learn about and adjust to the new rule."
Proponents of these provisions argue that this data collection
is necessary to identify the unscrupulous attorneys who have
been filing abusive construction-related accessibility claims
against small businesses. Opponents argue that these
requirements will chill the willingness of attorneys to
represent disabled clients in these types of cases. Californians
for Disability Rights, Inc. (CDR) writes:
Bar reporting requirements, unrelated to any allegation of
wrongdoing, will unquestionably have a chilling effect on
rights of disabled people who act to preserve and advance
their civil rights. The reporting proposals will also
undermine the practices of many lawyers who have honorably
and competently devoted much of their careers to the
representation of people with disabilities. The chilling
impact of unreasonable scrutiny applied to lawyers in the
field of disability rights will make it likely that no young
lawyer will be eager to be associated with the field of law.
The Disability Rights Education and Defense Fund (DREDF) also
opposes this provision, and argues that the "requirement that
attorneys provide copies of demand letters alleging
discrimination caused by violations of construction-related
accessibility law by covered entities to the California State
Bar for review, in effect segregates people with disabilities
and their representatives into a separate and unequal category
within the otherwise progressive Unruh Act."
A number of amendments were taken in the Assembly Judiciary
Committee which sought to address these concerns while
maintaining that the State Bar collect information related to
demand letters in these cases, in order to better prevent and
discipline attorneys engaging in abusive practices.
Specifically, those amendments exempted legal services
providers, such as Legal Aid and other legal nonprofits, from
the requirement of sending demand letters to the State Bar and
the CCDA, and clarified the definition of "demand letter." As a
result, only the initial demand letter must be sent to the State
Bar, and not all correspondence between the two parties.
Further, the author notes that while sending the demand letters
would be required, "attorney discipline would not be mandatory,
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Page 24 of ?
as the bill cannot interfere with the State Bar's prosecutorial
discretion in determining whether or not to file a particular
case."
2.Education, outreach, and funding
This bill contains a number of provisions to increase compliance
with accessibility laws in the state through education, funding,
and strengthening of existing programs.
Specifically, this bill would make it a priority of the
California Commission on Disability Access (CCDA) to develop and
disseminate information and educational materials to promote and
facilitate disability access compliance. The bill would require
the CCDA to work with other government agencies to gather,
develop, and post education materials on its Web site. In
furtherance of this directive, this bill would require the CCDA
to tabulate information from the demand letters it receives (see
Comment 5)-specifically the types and frequency of violations
alleged. The CCDA would be required to compile a list of the
top ten frequently alleged violations and post this information
to its Web site. The CCDA would also be directed to report the
compiled data to the Legislature.
In response to concerns that many businesses who rent their
premises do not know the compliance status of their property,
this bill would also require the property owner and lessor to
notify the tenant in a 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. The
author indicates that 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. The author writes, "with fewer than approximately 230
private CASp to serve the State of California, a delayed
operative date was deemed appropriate."
In order to better fund existing programs, this bill would also
require cities and counties to collect a $1 fee upon issuance or
renewal of a business license or similar instrument to
strengthen and fund the CASp program and enable the Division of
State Architect (DSA) to develop audit procedures for the
program, maintain quality control, develop "best practices"
guidelines, and pay for development of more educational and
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Page 25 of ?
training resources at state and local level to promote
compliance. Monies collected with be split between local public
entities and the DSA. The author argues:
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, $1,650 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.
Finally, this bill would 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 administer the program. Also, this bill would reduce the
application fee for a licensed architect, landscape architect,
civil engineer, or structural engineer to a maximum of $250.
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;
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; A number of individuals
Opposition : California Foundation for Independent Living
Centers; Disability Rights California; California for Disability
Rights, Inc.; Disability Rights Education & Defense Fund;
Independent Living Center of Southern California; A number of
individuals
HISTORY
Source : Author
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Related Pending Legislation : None Known
SB 1186 (Steinberg & Dutton)
Page 27 of ?
Prior Legislation :
AB 2282 (Berryhill), which would have authorized 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,
was held under submission in the Senate Appropriations
Committee.
AB 1878 (Gaines), which is substantially similar to SB 1163 but
applies to "microbusinesses," defined by the bill, failed
passage in the Assembly Judiciary Committee.
SB 1163 (Walters) would have established notice requirements for
an aggrieved party to follow before he or 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. This
bill failed passage in this Committee.
SB 783 (Dutton, 2011), which was identical to SB 1163, failed
passage in this Committee.
SB 384 (Evans, Ch. 419, Stats. 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 & Harman, Ch. 569, Stats. 2009) required a CASp
inspection report, to remain confidential rather than be under
seal and subject to protective order.
SB 1608 (Corbett et al., Ch. 549, Stats. 2008) See Background;
Comment 6.
SB 1766 (McClintock, 2008) See Background.
AB 2533 (Keene, 2008) See Background.
SB 855 (Poochigian, 2005) See Background.
Prior Vote :
Assembly Floor (Ayes 9, Noes 0)
Assembly Committee on Appropriations (Ayes 17, Noes 0)
SB 1186 (Steinberg & Dutton)
Page 28 of ?
Assembly Committee on Judiciary (Ayes 10, Noes 0)
Senate Floor (Ayes 36, Noes 0)
Senate Committee on Judiciary (Ayes 4, Noes 1)
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