Amended in Assembly February 18, 2015

California Legislature—2015–16 Regular Session

Assembly Bill No. 54

Introduced by Assembly Member Olsen

(Principal coauthor: Assembly Member Gray)

(Principal coauthors: Senators Berryhill, Cannella, and Galgiani)

(Coauthors: Assembly Members begin insert Achadjian, end insert begin insert Travis Allen, Baker, end insert Bigelow, begin insert Brough, Chang, end insert begin insert Chávez, Cooper, end insert begin insert Beth Gaines, Gallagher, end insert Grove, begin insert Lackey, Linder, Maienschein, end insert Mathis, begin insert Mayes, Obernolte, end insert Patterson, Perea, begin delete and Salas) end delete begin insert Salas, end insert begin insert Waldron, and Wilk) end insert

(Coauthors: Senators begin delete Fuller end delete begin insert Anderson, Fuller, Gaines, Nielsen, Stone, end insert and Vidak)

December 1, 2014

An act to amend Section 55.56 of, and to add Section 55.565 to, the Civil Code, relating to public accommodations.

LEGISLATIVE COUNSEL’S DIGEST

AB 54, as amended, 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 1.  

Section 55.56 of the Civil Code is amended to
read:

55.56.  

(a) Statutory damages under either subdivision (a) of
Section 52 or subdivision (a) of Section 54.3 may be recovered in
a construction-related accessibility claim against a place of public
accommodation 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, and the requirements of Section 55.565 have
been met, if applicable.

(b) A plaintiff is denied full and equal access only if the plaintiff
personally encountered the violation on a particular occasion, or
the plaintiff was deterred from accessing a place of public
accommodation on a particular occasion.

(c) A violation personally encountered by a plaintiff may be
sufficient to cause a denial of full and equal access if the plaintiff
experienced difficulty, discomfort, or embarrassment because of
the violation.

(d) A plaintiff demonstrates that he or she was deterred from
accessing a place of public accommodation on a particular occasion
only if both of the following apply:

(1) The plaintiff had actual knowledge of a violation or
violations that prevented or reasonably dissuaded the plaintiff from
accessing a place of public accommodation that the plaintiff
intended to use on a particular occasion.

(2) The violation or violations would have actually denied the
plaintiff full and equal access if the plaintiff had accessed the place
of public accommodation on that particular occasion.

(e) Statutory damages may be assessed pursuant to subdivision
(a) based on each particular occasion that the plaintiff was denied
full and equal access, and not upon the number of violations of
construction-related accessibility standards identified at the place
of public accommodation where the denial of full and equal access
occurred. If the place of public accommodation consists of distinct
facilities that offer distinct services, statutory damages may be
assessed based on each denial of full and equal access to the distinct
facility, and not upon the number of violations of
construction-related accessibility standards identified at the place
of public accommodation where the denial of full and equal access
occurred.

(f) (1) Notwithstanding any other law, a defendant’s liability
for statutory damages in a construction-related accessibility claim
against a place of public accommodation is reduced to a minimum
of one thousand dollars ($1,000) for each offense if the defendant
demonstrates that it has corrected all construction-related violations
that are the basis of a claim within 60 days of being served with
the complaint, and the defendant demonstrates any of the following:

(A) The structure or area of the alleged violation was determined
to be “CASp-inspected” or “meets applicable standards” and, to
the best of the defendant’s knowledge, there were no modifications
or alterations that impacted compliance with construction-related
accessibility standards with respect to the plaintiff’s claim that
were completed or commenced between the date of that
determination and the particular occasion on which the plaintiff
was allegedly denied full and equal access.

(B) The structure or area of the alleged violation was the subject
of an inspection report indicating “CASp determination pending”
or begin delete “Inspected end delete begin insert “inspected end insert by a CASp,” and the defendant has either
implemented reasonable measures to correct the alleged violation
before the particular occasion on which the plaintiff was allegedly
denied full and equal access, or the defendant was in the process
of correcting the alleged violation within a reasonable time and
manner before the particular occasion on which the plaintiff was
allegedly denied full and equal access.

(C) For a claim alleging a construction-related accessibility
violation filed before January 1, 2018, the structure or area of the
alleged violation was a new construction or an improvement that
was approved by, and passed inspection by, the local building
department permit and inspection process on or after January 1,
2008, and before January 1, 2016, and, to the best of the
defendant’s knowledge, there were no modifications or alterations
that impacted compliance with respect to the plaintiff’s claim that
were completed or commenced between the completion date of
the new construction or improvement and the particular occasion
on which the plaintiff was allegedly denied full and equal access.

(D) The structure or area of the alleged violation was new
construction or an improvement that was approved by, and passed
inspection by, a local building department official who is a certified
access specialist, and, to the best of the defendant’s knowledge,
there were no modifications or alterations that affected compliance
with respect to the plaintiff’s claim that were completed or
commenced between the completion date of the new construction
or improvement and the particular occasion on which the plaintiff
was allegedly denied full and equal access.

(2) Notwithstanding any other law, a defendant’s liability for
statutory damages in a construction-related accessibility claim
against a place of public accommodation is reduced to a minimum
of two thousand dollars ($2,000) for each offense if the defendant
demonstrates both of the following:

(A) The defendant has corrected all construction-related
violations that are the basis of a claim within 30 days of being
served with the complaint.

(B) The defendant is a small business that has employed 25 or
fewer employees on average over the past three years, or for the
years it has been in existence if less than three years, as evidenced
by wage report forms filed with the Economic Development
Department, and has average annual gross receipts of less than
three million five hundred thousand dollars ($3,500,000) over the
previous three years, or for the years it has been in existence if
less than three years, as evidenced by federal or state income tax
returns. The average annual gross receipts dollar amount shall be
adjusted biannually by the Department of General Services for
changes in the California Consumer Price Index for All Urban
Consumers, as compiled by the Department of Industrial Relations.
The Department of General Services shall post that adjusted
amount on its Internet Web site.

(3) This subdivision shall not be applicable to intentional
violations.

(4) Nothing in this subdivision affects the awarding of actual
damages, or affects the awarding of treble actual damages.

(5) This subdivision shall apply only to claims filed on or after
the effective date of Senate Bill 1186 of the 2011-12 Regular
Session of the Legislature. Nothing in this subdivision is intended
to affect a complaint filed before that date.

(g) This section does not alter the applicable law for the
awarding of injunctive or other equitable relief for a violation or
violations of one or more construction-related accessibility
standards, nor alter any legal obligation of a party to mitigate
damages.

(h) In assessing liability under subdivision (d), in an action
alleging multiple claims for the same construction-related
accessibility violation on different particular occasions, the court
shall consider the reasonableness of the plaintiff’s conduct in light
of the plaintiff’s obligation, if any, to mitigate damages.

SEC. 2.  

Section 55.565 is added to the Civil Code, to read:

55.565.  

(a) When a plaintiff brings a construction-related
accessibility claim alleging a violation of a construction-related
accessibility standard within three years of a change in that
standard, statutory damages under subdivision (a) of Section 52
or subdivision (a) of Section 54.3 may be recovered against a place
of public accommodation only if the plaintiff provides the owner,
agent, or other party responsible for the place of public
accommodation where the alleged violation occurred with
sufficient written notice of the allegations and alleged access
barriers on which the claim is based at least 60 days prior to the
filing of any action and the alleged access barriers are not removed.

(b) A written notice is sufficient for the purposes of subdivision
(a) if either of the following conditions is met:

(1) The notice states facts sufficient to allow a reasonable person
to identify the basis of the construction-related accessibility claim
under subdivision (a) of Section 55.31 and states that the recipient
may be civilly liable for actual and statutory damages for a
violation of a construction-related accessibility requirement if the
access barriers that constitute the basis of the construction-related
accessibility claim are not removed within 60 days.

(2) The notice is a written demand letter that offers prelitigation
settlement negotiations in accordance with subdivision (b) of
Section 55.31.

(c) For the purposes of this section, “construction-related
accessibility claim,” “construction-related accessibility standard,”
and “place of public accommodation” have the meanings set forth
in Section 55.52.