Amended in Assembly March 16, 2015

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

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

December 1, 2014

An act to amend begin delete Section end delete begin insert Sections 55.53 and end insert 55.56 of, and to add Section 55.565 to, the Civil Code, begin insert and to amend Sections 17053.42 and 23642 of the Revenue and Taxation Code, end insert relating to public accommodations.

LEGISLATIVE COUNSEL’S DIGEST

AB 54, as amended, Olsen. Public accommodations: construction-related accessibility begin delete claims. end delete begin insert standards: tax credit. end insert

begin delete

Existing

end delete

begin insert (1) end insert begin insert   end insert begin insert Existing end insert 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.

begin insert

(2) Existing law grants an owner or tenant of a site, defined as a place of public accommodation, that has been inspected by a certified access specialist (CASp) and determined to meet all applicable construction-related accessibility standards specified rights in an action that includes a construction-related accessibility claim.

end insert begin insert

The Personal Income Tax Law and the Corporation Tax Law, in specified conformity to federal law, allow a credit against the taxes imposed by those laws, to eligible small businesses for 50% of eligible access expenditures, which are defined as those amounts paid or incurred by the taxpayer to comply with the Americans With Disabilities Act of 1990, as provided, not to exceed $250.

end insert begin insert

This bill, for taxable years beginning on or after January 1, 2016, would include as an eligible access expenditure any amount paid or incurred by a taxpayer to receive an inspection by a CASp.

end insert

Vote: majority. Appropriation: no. Fiscal committee:  begin delete no end delete begin insert yes end insert . State-mandated local program: no.

The people of the State of California do enact as follows:

begin insert

begin insert SECTION 1. end insert   

end insert

begin insert (a) end insert begin insert   end insert begin insert The Legislature finds and declares that the
federal Americans with Disabilities Act of 1990 (ADA) is a
well-intentioned law empowering private citizens to bring claims
against businesses that do not make their establishments accessible
to those with disabilities. However, because the ADA authorizes
damages of up to $4,000 end insert begin insert on top of legal fees, California is a hotbed
for predatory, serial litigants seeking to win settlements from
businesses out of compliance with the ADA. end insert

begin insert

(b) The Legislature further finds and declares all of the
following:

end insert begin insert

(1) Current law permits defendants to request a court stay and
an early evaluation conference upon being served with a
construction-related accessibility claim if, among other things,
the site in question had new construction approved by a local
public building department inspector who is a certified access
specialist (CASp), no subsequent modifications or alterations have
been made, and all violations are corrected within 60 days.

end insert begin insert

(2) The purpose of this tax credit is to promote increased
compliance with disabled accessibility building codes throughout
the state by encouraging business and property owners to become
CASp certified. Using the relief provided by this tax credit, business
and property owners will be more likely to obtain a CASp
inspection whenever modifying or altering a site.

end insert begin insert

(c) The California Commission on Disability Access shall
include in its annual report to the Legislature the impact the tax
credit has had on reducing ADA compliance lawsuits.

end insert

begin insert

begin insert SEC. 2. end insert   

end insert

begin insert Section 55.53 of the end insert begin insert Civil Code end insert begin insert is amended to read: end insert

55.53.  

(a) For purposes of this part, a certified access specialist
shall, upon completion of the inspection of a site, comply with the
following:

(1) For a meets applicable standards site, if the CASp determines
the site meets all applicable construction-related accessibility
standards, the CASp shall provide a written inspection report to
the requesting party that includes both of the following:

(A) An identification and description of the inspected structures
and areas of the site.

(B) A signed and dated statement that includes both of the
following:

(i) A statement that, in the opinion of the CASp, the inspected
structures and areas of the site meet construction-related
accessibility standards. The statement shall clearly indicate whether
the determination of the CASp includes an assessment of readily
achievable barrier removal.

(ii) If corrections were made as a result of the CASp inspection,
an itemized list of all corrections and dates of completion.

(2) For an inspected by a CASp site, if the CASp determines
that corrections are needed to the site in order for the site to meet
all applicable construction-related accessibility standards, the
CASp shall provide a signed and dated written inspection report
to the requesting party that includes all of the following:

(A) An identification and description of the inspected structures
and areas of the site.

(B) A statement that, in the opinion of the CASp, the inspected
structures and areas of the site need correction to meet
construction-related accessibility standards. This statement shall
clearly indicate whether the determination of the CASp includes
an assessment of readily achievable barrier removal.

(C) An identification and description of the structures or areas
of the site that need correction and the correction needed.

(D) A schedule of completion for each of the corrections within
a reasonable timeframe.

(b) For purposes of this section, in determining whether the site
meets applicable construction-related accessibility standards when
there is a conflict or difference between a state and federal
provision, standard, or regulation, the state provision, standard, or
regulation shall apply unless the federal provision, standard, or
regulation is more protective of accessibility rights.

(c) Every CASp who conducts an inspection of a place of public
accommodation shall, upon completing the inspection of the site,
provide the building owner or tenant who requested the inspection
with the following notice, which the State Architect shall make
available as a form on the State Architect’s Internet Web site:

NOTICE TO PRIVATE PROPERTY OWNER/TENANT:

YOU ARE ADVISED TO KEEP IN YOUR RECORDS ANY
WRITTEN INSPECTION REPORT AND ANY OTHER
DOCUMENTATION CONCERNING YOUR PROPERTY SITE
THAT IS GIVEN TO YOU BY A CERTIFIED ACCESS
SPECIALIST.

IF YOU BECOME A DEFENDANT IN A LAWSUIT THAT
INCLUDES A CLAIM CONCERNING A SITE INSPECTED
BY A CERTIFIED ACCESS SPECIALIST, YOU MAY BE
ENTITLED TO A COURT STAY (AN ORDER TEMPORARILY
STOPPING ANY LAWSUIT) OF THE CLAIM AND AN EARLY
EVALUATION CONFERENCE.

IN ORDER TO REQUEST THE STAY AND EARLY
EVALUATION CONFERENCE, YOU WILL NEED TO VERIFY
THAT A CERTIFIED ACCESS SPECIALIST HAS INSPECTED
THE SITE THAT IS THE SUBJECT OF THE CLAIM. YOU
WILL ALSO BE REQUIRED TO PROVIDE THE COURT AND
THE PLAINTIFF WITH THE COPY OF A WRITTEN
INSPECTION REPORT BY THE CERTIFIED ACCESS
SPECIALIST, AS SET FORTH IN CIVIL CODE SECTION
55.54. THE APPLICATION FORM AND INFORMATION ON
HOW TO REQUEST A STAY AND EARLY EVALUATION
CONFERENCE MAY BE OBTAINED AT
www.courts.ca.gov/selfhelp-start.htm.

YOU ARE ENTITLED TO REQUEST, FROM A CERTIFIED
ACCESS SPECIALIST WHO HAS CONDUCTED AN
INSPECTION OF YOUR PROPERTY, A WRITTEN
INSPECTION REPORT AND OTHER DOCUMENTATION AS
SET FORTH IN CIVIL CODE SECTION 55.53. YOU ARE ALSO
ENTITLED TO REQUEST THE ISSUANCE OF A DISABILITY
ACCESS INSPECTION CERTIFICATE, WHICH YOU MAY
POST ON YOUR PROPERTY.

(d) (1) Commencing July 1, 2010, a local agency shall employ
or retain at least one building inspector who is a certified access
specialist. The certified access specialist shall provide consultation
to the local agency, permit applicants, and members of the public
on compliance with state construction-related accessibility
standards with respect to inspections of a place of public
accommodation that relate to permitting, plan checks, or new
construction, including, but not limited to, inspections relating to
tenant improvements that may impact access. If a local agency
employs or retains two or more certified access specialists to
comply with this subdivision, at least one-half of the certified
access specialists shall be building inspectors who are certified
access specialists.

(2) Commencing January 1, 2014, a local agency shall employ
or retain a sufficient number of building inspectors who are
certified access specialists to conduct permitting and plan check
services to review for compliance with state construction-related
accessibility standards by a place of public accommodation with
respect to new construction, including, but not limited to, projects
relating to tenant improvements that may impact access. If a local
agency employs or retains two or more certified access specialists
to comply with this subdivision, at least one-half of the certified
access specialists shall be building inspectors who are certified
access specialists.

(3) If a permit applicant or member of the public requests
consultation from a certified access specialist, the local agency
may charge an amount limited to a reasonable hourly rate, an
estimate of which shall be provided upon request in advance of
the consultation. A local government may additionally charge or
increase permitting, plan check, or inspection fees to the extent
necessary to offset the costs of complying with this subdivision.
Any revenues generated from an hourly or other charge or fee
increase under this subdivision shall be used solely to offset the
costs incurred to comply with this subdivision. A CASp inspection
pursuant to subdivision (a) by a building inspector who is a
certified access specialist shall be treated equally for legal and
evidentiary purposes as an inspection conducted by a private CASp.
Nothing in this subdivision shall preclude permit applicants or any
other person with a legal interest in the property from retaining a
private CASp at any time.

(e) (1) Every CASp who completes an inspection of a place of
public accommodation shall, upon a determination that the site
meets applicable standards pursuant to paragraph (1) of subdivision
(a) or is inspected by a CASp pursuant to paragraph (2) of
subdivision (a), provide the building owner or tenant requesting
the inspection with a numbered disability access inspection
certificate indicating that the site has undergone inspection by a
certified access specialist. The disability access inspection
certificate shall be dated and signed by the CASp inspector, and
shall contain the inspector’s name and license number. Upon
issuance of a certificate, the CASp shall record the issuance of the
numbered certificate, the name and address of the recipient, and
the type of report issued pursuant to subdivision (a) in a record
book the CASp shall maintain for that purpose.

(2) Beginning March 1, 2009, the State Architect shall make
available for purchase by any local building department or CASp
sequentially numbered disability access inspection certificates that
are printed with a watermark or other feature to deter forgery and
that comply with the information requirements specified in
subdivision (a).

(3) The disability access inspection certificate may be posted
on the premises of the place of public accommodation, unless,
following 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.

(f) Nothing in this section or any other law is intended to require
a property owner or tenant to hire a CASp. A property owner’s or
tenant’s election not to hire a CASp shall not be admissible to
prove that person’s lack of intent to comply with the law.

begin insert

(g) An owner or tenant of a site that a CASp has determined
meets applicable standards may be allowed for a tax credit, as
described in Section 17053.43 or 23643 of the Revenue and
Taxation Code, to offset a portion of the costs of obtaining the
CASp inspection.

end insert

begin delete SECTION 1. end delete
begin insert SEC. 3. end insert   

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 “inspected 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 begin delete Economic end delete begin insert Employment end insert
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.

begin delete SEC. 2. end delete
begin insert SEC. 4. end insert   

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.

begin insert

begin insert SEC. 5. end insert   

end insert

begin insert Section 17053.42 of the end insert begin insert Revenue and Taxation Code end insert
begin insert is amended to read: end insert

17053.42.  

(a) For each taxable year beginning on or after
January 1, 1996, there shall be allowed as a credit against the “net
tax,” as defined in Section 17039, the amount paid or incurred for
eligible access expenditures. The credit shall be allowed in
accordance with Section 44 of the Internal Revenue Code, relating
to expenditures to provide access to disabled individuals, except
that the credit amount specified in subdivision (b) shall be
substituted for the credit amount specified in Section 44(a) of the
Internal Revenue begin delete Code. end delete begin insert Code, relating to general rule. end insert

(b) The credit amount allowed under this section shall be 50
percent of so much of the eligible access expenditures for the
taxable year as do not exceed two hundred fifty dollars ($250).

begin insert

(c) (1) For taxable years beginning on or after January 1, 2016,
Section 44 (c)(2) of the Internal Revenue Code, relating to certain
expenditures included, is modified to include the amount paid or
incurred for a site to be inspected by a CASp, which is a certified
access specialist.

end insert begin insert

(2) Certified access specialist,” “inspected by a CASp,” and
“site” shall have the same meanings as those terms are defined
in subdivision (a) of Section 55.52 of the Civil Code.

end insert begin delete

(c)

end delete

begin insert (d) end insert  In the case where the credit allowed by this section exceeds
the “net tax,” the excess may be carried over to reduce the “net
tax” in the following year, and succeeding years if necessary, until
the credit is exhausted.

begin insert

begin insert SEC. 6. end insert   

end insert

begin insert Section 23642 of the end insert begin insert Revenue and Taxation Code end insert begin insert is
amended to read: end insert

23642.  

(a) For each taxable year beginning on or after January
1, 1996, there shall be allowed as a credit against the “tax,” as
defined in Section 23036, the amount paid or incurred for eligible
access expenditures. The credit shall be allowed in accordance
with Section 44 of the Internal Revenue Code, relating to
expenditures to provide access to disabled individuals, except that
the credit amount specified in subdivision (b) shall be substituted
for the credit amount specified in Section 44(a) of the Internal
Revenue begin delete Code. end delete begin insert Code, relating to general rule. end insert

(b) The credit amount allowed under this section shall be 50
percent of so much of the eligible access expenditures for the
taxable year as do not exceed two hundred fifty dollars ($250).

begin insert

(c) (1) For taxable years beginning on or after January 1, 2016,
Section 44 (c)(2) of the Internal Revenue Code, relating to certain
expenditures included, is modified to include the amount paid or
incurred for a site to be inspected by a CASp, which is a certified
access specialist.

end insert begin insert

(2) “Certified access specialist,” “inspected by a CASp,” and
“site” shall have the same meanings as those terms are defined
in subdivision (a) of Section 55.52 of the Civil Code.

end insert begin delete

(c)

end delete

begin insert (d) end insert  In the case where the credit allowed by this section exceeds
the “tax,” the excess may be carried over to reduce the “tax” in
the following year, and succeeding years if necessary, until the
credit is exhausted.