AB 54, as introduced, Olsen. Public accommodations: construction-related accessibility claims.
Existing law allows a plaintiff to collect statutory damages in a construction-related accessibility claim against a place of public accommodation only if the plaintiff was denied full and equal access to the place of public accommodation on a particular occasion, as specified. Existing law imposes a $1,000 limit on statutory damages when a defendant demonstrates that the defendant has, among other things, cured the construction-related accessibility violation within 60 days of being served with a complaint. Existing law requires a demand letter alleging a construction-related accessibility claim to, among other things, state facts sufficient to allow a reasonable person to identify the basis of the claim.
This bill would, when a plaintiff brings a claim alleging a violation of a construction-related accessibility standard within 3 years of a change in that standard, allow a plaintiff to collect statutory damages only if the plaintiff also provides the owner, agent, or other party responsible for the place in violation with a written notice or demand letter at least 60 days prior to filing any action and the violation is not cured. The bill would require the written notice or demand letter to contain specified information.
Vote: majority. Appropriation: no. Fiscal committee: no. State-mandated local program: no.
The people of the State of California do enact as follows:
Section 55.56 of the Civil Code is amended to
(a) Statutory damages under either subdivision (a) of
4Section 52 or subdivision (a) of Section 54.3 may be recovered in
5a construction-related accessibility claim against a place of public
6accommodation only if a violation or violations of one or more
7construction-related accessibility standards denied the plaintiff
8full and equal access to the place of public accommodation on a
begin delete occasion.end delete
11(b) A plaintiff is denied full and equal access only if the plaintiff
12personally encountered the violation on a particular occasion, or
13the plaintiff was deterred from accessing a place of public
14accommodation on a particular occasion.
15(c) A violation personally encountered by a plaintiff may be
16sufficient to cause a denial of full and equal access if the plaintiff
17experienced difficulty, discomfort, or embarrassment because of
19(d) A plaintiff demonstrates that he or she was deterred from
20accessing a place of public accommodation on a particular occasion
21only if both of the following apply:
22(1) The plaintiff had actual knowledge of a violation or
23violations that prevented or reasonably dissuaded the plaintiff from
24accessing a place of public accommodation that the plaintiff
25intended to use on a particular occasion.
26(2) The violation
or violations would have actually denied the
27plaintiff full and equal access if the plaintiff had accessed the place
28of public accommodation on that particular occasion.
29(e) Statutory damages may be assessed pursuant to subdivision
30(a) based on each particular occasion that the plaintiff was denied
P3 1full and equal access, and not upon the number of violations of
2construction-related accessibility standards identified at the place
3of public accommodation where the denial of full and equal access
4occurred. If the place of public accommodation consists of distinct
5facilities that offer distinct services, statutory damages may be
6assessed based on each denial of full and equal access to the distinct
7facility, and not upon the number of violations of
8construction-related accessibility standards identified at the place
9of public accommodation where the denial of full and equal access
11(f) (1) Notwithstanding any other law, a defendant’s liability
12for statutory damages in a construction-related accessibility claim
13against a place of public accommodation is reduced to a minimum
14of one thousand dollars ($1,000) for each offense if the defendant
15demonstrates that it has corrected all construction-related violations
16that are the basis of a claim within 60 days of being served with
17the complaint, and the defendant demonstrates any of the following:
18(A) The structure or area of the alleged violation was determined
19to be “CASp-inspected” or “meets applicable standards” and, to
20the best of the defendant’s knowledge, there were no modifications
21or alterations that impacted compliance with construction-related
22accessibility standards with respect to the plaintiff’s claim that
23were completed or commenced between the date of that
24determination and the particular occasion on which the plaintiff
25was allegedly denied full and equal access.
26(B) The structure or area of the alleged violation was the subject
27of an inspection report indicating “CASp determination pending”
28or “Inspected by a CASp,” and the defendant has either
29implemented reasonable measures to correct the alleged violation
30before the particular occasion on which the plaintiff was allegedly
31denied full and equal access, or the defendant was in the process
32of correcting the alleged violation within a reasonable time and
33manner before the particular occasion on which the plaintiff was
34allegedly denied full and equal access.
35(C) For a claim alleging a construction-related accessibility
36violation filed before January 1, 2018, the structure or area of the
37alleged violation was a new construction or an improvement that
38was approved by, and passed inspection by, the local building
39department permit and inspection process on or after January 1,
402008, and before January 1, 2016, and, to the best of the
P4 1defendant’s knowledge, there were no modifications or alterations
2that impacted compliance with respect to the plaintiff’s claim that
3were completed or commenced between the completion date of
4the new construction or improvement and the particular occasion
5on which the plaintiff was allegedly denied full and equal access.
6(D) The structure or area of the alleged violation was new
7construction or an improvement that was approved by, and passed
8inspection by, a local building department official who is a certified
9access specialist, and, to the best of the defendant’s knowledge,
10there were no modifications or alterations that affected compliance
11with respect to the plaintiff’s claim that were completed or
12commenced between the completion date of the new construction
13or improvement and the particular occasion on which the plaintiff
14was allegedly denied full and equal access.
15(2) Notwithstanding any other law, a defendant’s liability for
16statutory damages in a construction-related accessibility claim
17against a place of public accommodation is reduced to a minimum
18of two thousand dollars ($2,000) for each offense if the defendant
19demonstrates both of the following:
20(A) The defendant has corrected all construction-related
21violations that are the basis of a claim within 30 days of being
22served with the complaint.
23(B) The defendant is a small business that has employed 25 or
24fewer employees on average over the past three years, or for the
25years it has been in existence if less than three years, as evidenced
26by wage report forms filed with the Economic Development
27Department, and has average annual gross receipts of less than
28three million five hundred thousand dollars ($3,500,000) over the
29previous three years, or for the years it has been in existence if
30less than three years, as evidenced by federal or state income tax
31returns. The average annual gross receipts dollar amount shall be
32adjusted biannually by the Department of General Services for
33changes in the California Consumer Price Index for All Urban
34Consumers, as compiled by the Department of Industrial Relations.
35The Department of General Services shall post that adjusted
36amount on its Internet Web site.
37(3) This subdivision shall not be applicable to intentional
39(4) Nothing in this subdivision affects the awarding of actual
40damages, or affects the awarding of treble actual damages.
P5 1(5) This subdivision shall apply only to claims filed on or after
2the effective date of Senate Bill 1186 of the 2011-12 Regular
3Session of the Legislature. Nothing in this subdivision is intended
4to affect a complaint filed before that date.
5(g) This section does not alter the applicable law for the
6awarding of injunctive or other equitable relief for a violation or
7violations of one or more construction-related accessibility
8standards, nor alter any legal obligation of a party to mitigate
10(h) In assessing liability under subdivision (d), in an action
11alleging multiple claims for the same construction-related
12accessibility violation on different particular occasions, the court
13shall consider the reasonableness of the plaintiff’s conduct in light
14of the plaintiff’s obligation, if any, to mitigate damages.
Section 55.565 is added to the Civil Code, to read:
(a) When a plaintiff brings a construction-related
17accessibility claim alleging a violation of a construction-related
18accessibility standard within three years of a change in that
19standard, statutory damages under subdivision (a) of Section 52
20or subdivision (a) of Section 54.3 may be recovered against a place
21of public accommodation only if the plaintiff provides the owner,
22agent, or other party responsible for the place of public
23accommodation where the alleged violation occurred with
24sufficient written notice of the allegations and alleged access
25barriers on which the claim is based at least 60 days prior to the
26filing of any action and the alleged access barriers are not removed.
27(b) A written notice is sufficient for the purposes of
28(a) if either of the following conditions is met:
29(1) The notice states facts sufficient to allow a reasonable person
30to identify the basis of the construction-related accessibility claim
31under subdivision (a) of Section 55.31 and states that the recipient
32may be civilly liable for actual and statutory damages for a
33violation of a construction-related accessibility requirement if the
34access barriers that constitute the basis of the construction-related
35accessibility claim are not removed within 60 days.
36(2) The notice is a written demand letter that offers prelitigation
37settlement negotiations in accordance with subdivision (b) of
39(c) For the purposes of this section, “construction-related
40accessibility claim,” “construction-related accessibility standard,”
P6 1and “place of public accommodation” have the meanings set forth
2in Section 55.52.