BILL ANALYSIS Ó
AB 54
Page 1
Date of Hearing: April 21, 2015
ASSEMBLY COMMITTEE ON JUDICIARY
Mark Stone, Chair
AB
54 (Olsen) - As Amended March 16, 2015
SUBJECT: PUBLIC ACCOMMODATIONS: CONSTRUCTION-RELATED
ACCESSIBILITY CLAIMS
KEY ISSUES:
1)SHOULD A PERSON WHO IS DENIED FULL AND EQUAL ACCESS TO A PLACE
OF PUBLIC ACCOMMODATION IN VIOLATION OF THE UNRUH CIVIL RIGHTS
ACT BECAUSE OF A CONSTRUCTION-RELATED ACCESSIBILITY STANDARD
WHICH HAS CHANGED IN THE PAST THREE YEARS BE REQUIRED TO
COMPLETE A PROCEDURAL HURDLE BEFORE FILING A LAWSUIT
--NOTIFYING THE OWNER, AGENT, OR OTHER PARTY RESPONSIBLE FOR
THE PREMISES ABOUT THE VIOLATION -- THAT NO OTHER VICTIM OF
DISCRIMINATION IN VIOLATION OF THE UNRUH CIVIL RIGHTS ACT IS
REQUIRED TO COMPLETE?
2)SHOULD A PERSON WHO IS DENIED FULL AND EQUAL ACCESS TO A PLACE
OF PUBLIC ACCOMMODATION BASED UPON A VIOLATION OF A
CONSTRUCTION-RELATED ACCESSIBILITY STANDARD WHICH HAS CHANGED
IN THE PAST THREE YEARS BE PRECLUDED FROM BRINGING A COMPLAINT
AGAINST THE OWNER OR OPERATOR OF THE PLACE OF PUBLIC
ACCOMMODATION BASED UPON THE VIOLATION IF THE OWNER CORRECTS
THE VIOLATION WITHIN 60 DAYS OF NOTICE ABOUT THE VIOLATION?
3)DOES THIS MEASURE, IN ITS EFFORT TO PROVIDE RELIEF TO SMALLER
BUSINESSES THAT FEEL THEY ARE UNFAIRLY SUBJECT TO LAWSUITS
UNDER OUR DISABILITY DISCRIMINATION LAWS, INADVERTENTLY AND
UNFAIRLY SINGLE OUT PEOPLE WITH DISABILITIES BY FORCING THEM
AB 54
Page 2
TO OVERCOME ADDITIONAL AND SUBSTANTIAL NEW BARRIERS TO THE
ENFORCEMENT OF THEIR CIVIL RIGHTS AND BY DENYING REMEDIES TO
VICTIMS OF DISABILITY DISCRIMINATION?
4)SHOULD A BUSINESS OWNER WHO SPENDS MONEY TO BRING A PLACE OF
PUBLIC ACCOMMODATION INTO COMPLIANCE WITH CONSTRUCTION-RELATED
ACCESSIBILITY STANDARDS BE GRANTED A TAX CREDIT FOR UP TO 50
PERCENT OF THE EXPENDED FUNDS, NOT TO EXCEED 250 DOLLARS?
SYNOPSIS
There are two main provisions of this bill. One enacts a notice
and right to cure procedure similar to ones that have been
repeatedly rejected by the Legislature in recent years: prior to
filing a lawsuit alleging a construction-related accessibility
claim based upon a denial of access to a place of public
accommodation, the plaintiff must somehow notify some person who
is responsible for the premises and give the owner of the
facility an opportunity to correct the violation within the next
60 days. The distinguishing feature about this bill's version
of notice and right to cure is the fact that it is limited to
those construction-related accessibility standards which have
changed within the past three years. This aspect of the bill is
not only controversial and the reason why the bill is opposed by
groups which advocate for the rights of the disabled, who argue
that it imposes an onerous requirement on the victims of just
one form of discrimination, but it also presents a number of
logistical problems. This provision requires a disabled
plaintiff to know which construction-related accessibility
standard caused the denial of their access to the public
accommodation and whether it has changed within the past three
years; if so, to identify the owner of the public accommodation
which has discriminated against them; provide written notice of
their allegation that they were denied access, with "facts
sufficient to allow a reasonable person to identify the basis of
the construction-related accessibility claim;" wait at least 60
days after providing this written notice to verify whether the
violation has been remedied; and if so, they are prohibited from
either filing a complaint, collecting damages, or being
AB 54
Page 3
reimbursed for legal fees. Likewise, if notice is not provided
or is inadequate, the disabled person has no legal remedy, even
if the public accommodation is in clear violation of Unruh.
The other main provision is a tax credit for the owner of a
business that is a public accommodation who spends money to hire
a certified access specialist to advise the owner about how to
bring the business into compliance with construction-related
accessibility standards. It is similar to, and really an
expansion of, an existing tax credit which allows the owner of a
business that is a public accommodation to claim a tax credit of
up to half of the expended funds, not to exceed 250 dollars, for
the construction costs of bringing the facility into compliance
with construction-related accessibility standards. This
provision is non-controversial and is likely supported by both
the business groups that are in support of the bill, as well as
the groups advocating for the rights of the disabled, that
oppose it.
According to the author, the bill is necessary because many
small businesses are out of compliance with longstanding state
and federal disability access laws, leaving them vulnerable to
lawsuits. Some of these suits, the author and supporters
allege, are brought by plaintiffs for personal financial
benefit, not out of an altruistic desire to improve disability
access for disabled consumers, and some of these suits are
brought against businesses that are willing to comply but are
hampered by the complexity of the law. Disability rights
advocates oppose the bill, but they agree with the supporters on
a number of points, including that many businesses are not in
compliance with access laws despite their long duration and that
many lawsuits are filed, some by plaintiffs seeking monetary
recovery. Opponents argue that they have supported prior
legislation to increase business awareness of access
obligations, improve voluntary compliance, and reward
responsible behavior and those reforms should be furthered, not
circumvented. Opponents argue that this bill singles out people
with disabilities for unprecedented obstacles to the enforcement
of civil rights, deprives them of a remedy for actual
violations, and will deter, not encourage, compliance with
AB 54
Page 4
disability discrimination law. Moreover, opponents state that
the promise of the bill may be misleadingly unattainable because
the requirements it would impose are inconsistent with federal
disability discrimination law and therefore would not preclude
the law suits from which businesses seek protection.
Unlike two prior measures, SB 1608 (Corbett and Harman) of 2008
and SB 1186 (Steinberg and Dutton) of 2012, historic bipartisan
and bicameral measures to reduce disability access violations
and unnecessary lawsuits, this bill is not the result of open
stakeholder meetings and mutual compromise. Rather, it reflects
no input from disabled advocates or amendments as a result of
its harsh impact on disabled citizens and their rights. This
bill is supported by business groups, including the California
Chamber of Commerce and the Civil Justice Association of
California, and opposed by disability rights advocates,
including Disability Rights California and the American Civil
Liberties Union of California.
SUMMARY: Provides that statutory damages recovered in a
construction-related accessibility claim against a place of
public accommodation resulting in a denial of full and equal
access to the place of public accommodation that is based upon a
violation of a construction-related accessibility standard which
has changed within the past three years can only be recovered by
that plaintiff under certain conditions and allows business
owners who spend money to bring a place of public accommodation
into compliance with construction-related accessibility
standards a tax credit of up to 250 dollars. Specifically, this
bill:
1)Requires that at least 60 days prior to bringing a claim for
damages based upon a violation of a construction-related
accessibility standard which has changed within the past three
years, the plaintiff must provide a written notice regarding
the violation to the owner, agent, or other party responsible
for the place of public accommodation where the alleged
violation occurred.
2)Requires that the written notice of the violation must do one
of the following:
AB 54
Page 5
a) State facts sufficient to allow a reasonable person to
identify the basis of the construction-related disability
claim and state that the recipient of the notice 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;
b) Offer, in a written demand letter, pre-litigation
settlement negotiations in accordance with Section 55.31.
3)Prevents any claim for damages based upon the denial of the
plaintiff's access to the place of public accommodation if the
barriers that are alleged to have prevented the plaintiff's
access to the accommodation and which are described in a
written notice meeting the above criteria, are removed within
60 days of the date when the written notice is provided to the
owner, agent, or other party responsible for the place of
public accommodation where the alleged violation occurred.
4)Allows a business owner who hires a certified access
specialist (CASp) to advise the owner about how to provide
access to disabled customers and come into compliance with
construction-related accessibility standards to claim a tax
credit for up to half of the expended funds paid to the CASp,
not to exceed two hundred and fifty dollars ($250).
EXISTING LAW:
1)Pursuant to federal law, under 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.)
2)Pursuant to the Unruh Civil Rights Act (Unruh), provides that
all persons, regardless of sex, race, color, religion,
ancestry, national origin, disability or medical condition,
AB 54
Page 6
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. (Civil Code Section 51 et seq. All further
statutory references are to the California Civil Code, unless
otherwise indicated.)
3)Provides that individuals with disabilities or medical
conditions have the same right as the general public to the
full and free use of the streets, highways, sidewalks,
walkways, public buildings, medical facilities, including
hospitals, clinics and physicians' offices, public facilities
and other public places. It also provides that a violation of
an individual's rights under the ADA constitutes a violation
of state law. (Section 54.)
4)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. (Section
54.1.)
5)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 injunctive and actual damages - plus
treble actual damages but not less than $1,000, and attorney's
fees as the court deems proper. (Section 55.)
6)Provides the California Commission on Disability Access
(Commission), an independent state agency composed of 19
AB 54
Page 7
members, with general responsibility for monitoring disability
access compliance in California, and with authority to make
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.)
7)Requires an attorney, when serving a demand letter or a
complaint on a defendant alleging a construction-related
accessibility claim or noncompliance, to provide a written
advisory with each demand letter or complaint, as defined.
The written advisory shall include information about 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. The
written advisory is only required from any attorney, and not
from a pro per plaintiff. (Section 55.3.)
8)Requires an attorney alleging the construction-related
accessibility claim or noncompliance to state facts sufficient
to allow the defendant to identify the basis for the claim.
(Section 55.31.)
9)Prohibits such a demand letter from including a request or
demand for money or an offer or agreement to accept money
unless the claim involves a physical injury and special
damages. After receiving a duly-provided demand letter, a
building owner, tenant, authorized agent or employee may
request a settlement figure or specification of damages. Upon
such a request, an attorney may present a settlement figure or
specification of damages. (Section 55.31.)
10)Requires, until January 1, 2016, an attorney to submit a copy
of the complaint to the Commission and subjects the attorney
to disciplinary action for violation. (Section 55.31.)
11)Requires the Commission to review and report on the demand
letters and complaints it receives until January 1, 2016.
AB 54
Page 8
Also requires the State Bar, commencing July 31, 2013, and
annually each July 31 thereafter, to report specified
information to the Legislature regarding the demand letters
that it receives. (Section 55.31)
12)Requires an attorney to include his or her State Bar license
number in such a demand letter, and to submit copies of the
demand letter to the Commission and, until January 1, 2016, to
the State Bar. (Section 55.32.)
13)Provides that upon being served with a complaint asserting a
construction-related accessibility claim, a defendant may move
for a court stay and early evaluation conference if the
defendant is any of the following: (A) Until January 1, 2018,
a defendant whose site had new construction or improvement
between January 1, 2008, and January 1, 2016 and was approved
pursuant to the local building permit and inspection process;
(B) a defendant whose site had new construction or improvement
that was approved by a local public building department
inspector who is a CASp; or (C) a defendant who is a small
business, as described. The stay to the construction-related
accessibility claim, as provided, may be provided for 90-days
unless the plaintiff has obtained temporary injunctive relief.
(Section 55.54.)
14)Authorizes 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, and authorizes a plaintiff to make
that request if the defendant does not make that request.
(Section 55.54.)
15)Requires a local agency, commencing on July 1, 2010, to
employ or retain at least one building inspector who is a
CASp. Commencing on January 1, 2014, a local agency shall
employ or retain a sufficient number of building inspectors
who are CASp. (Section 55.53.)
AB 54
Page 9
16)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.
(Section 55.56.)
17)Requires the court, in assessing liability in any action
alleging multiple claims for the same construction-related
accessibility violation on different particular occasions, to
consider the reasonableness of the plaintiff's conduct in
light of the plaintiff's obligation, if any, to mitigate
damages. (Section Sec. 55.56.)
18)Reduces a defendant's minimum liability for statutory damages
in a construction-related accessibility claim against a place
of public accommodation to $1,000 for each unintentional
offense 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
other specified conditions apply, and would reduce that
minimum liability to $2,000 for each unintentional 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. (Section 55.56.)
19)Requires the Department of General Services to make a
biannual adjustment to financial criteria defining a small
business for these purposes, and to post those adjusted
amounts on its Internet Web site. (Section 55.56.)
20)Requires a commercial property owner to state on a lease form
AB 54
Page 10
or rental agreement executed on or after July 1, 2013, if the
property being leased or rented has undergone inspection by a
certified access specialist. (Section 1938.)
21)Allows a tax credit for the amount paid or incurred by the
owner of a public accommodation for improvements to the
property in order to provide access to disabled individuals of
up to 50 percent of the eligible access expenditures for the
taxable year, but not to exceed two hundred fifty dollars
($250). (Revenue & Taxation Code Section 23642.)
FISCAL EFFECT: As currently in print this bill is keyed fiscal.
COMMENTS: The author describes the purpose of this bill as
follows:
The spirit of the ADA is being violated each and every time
we allow small businesses to serve as an ATM for abusive
attorneys and plaintiffs. We need to curb lawsuit abuses
that wreak havoc on communities across California and harm
small business owners, employees, and consumers alike.
AB 54 will help small businesses stay open and employ
people by providing them with a 60-day window to fix an
alleged violation of a construction-related accessibility
standard, if the standard related to the alleged violation
has changed within three years.
Recent and objective evidence gives perspective about the
magnitude of this problem. California has approximately 3.3
million small businesses. According to data compiled by the
Commission, from January 2014 until January 2015, 3,468 demand
letters and complaints were filed in the state. This means that
less than one percent of small businesses (and a far smaller
percentage of all businesses) were sued in 2014 for violations
of construction-related accessibility standards.
AB 54
Page 11
Nevertheless, some of the information reported to the Commission
is alarming in terms of the number and frequency of
construction-related accessibility lawsuits being filed by a
small number of law firms in California. According to the
Commission, between September 2012 and October 2014, 5,392
complaints (including demand letters) were filed (in both state
and federal courts). More than half (54%) of the complaints
were filed by just two law firms. Forty-six percent of all
complaints were filed by just 14 parties.
However, data from the Commission shows that more attorneys are
choosing to file lawsuits in federal court, perhaps to avoid
complying with California-specific requirements, such as sending
demand letters to the Commission and the State Bar.
Interestingly, the Commission reports that the state's total
share of complaints and demand letters has gone down. Between
September 2012 and December 2013, state complaints/demand
letters represented 68% of all the complaints/demand letters
that the Commission received. However, between January 2014 and
October 2014, state complaints/demand letters represented only
46% of all complaints/demand letters that the Commission
received. In other words, more complaints are now being filed
in federal court than in state court, which undermines the
author's argument that plaintiffs are solely choosing to file
lawsuits in state court in order to obtain damages.
What can be done or should be done about (the small number of)
attorneys who file large numbers of Unruh Act-ADA lawsuits? The
Ninth Circuit Court of Appeals addressed this issue in Molski v.
Evergreen Dynasty Corp. (9th Cir. 2008) 521 F.3d 1215. The
plaintiff, Molski, was paralyzed from the chest down, needed a
wheelchair to get around, and filed about 400 lawsuits in the
federal courts within the districts in California. (Id. at p.
1051.) Upon motion of the defendant businesses (including the
named defendant, a restaurant) the district court declared
Molski a vexatious litigant and granted the defendants' request
for a pre-filing order (requiring court approval before Molski
could file additional lawsuits). (Ibid.) The Ninth Circuit
AB 54
Page 12
acknowledged that "pre-filing orders are an extreme remedy that
should rarely be used" and that courts "should not enter
pre-filing orders with undue haste because such sanctions can
tread on a litigant's due process right of access to the
courts." (Id. at p. 1057.) Nevertheless, the Ninth Circuit
upheld the order, finding that it was within the district
court's power, "In light of the district court's finding that
Molski did not suffer the injuries he claimed . . . to conclude
that the large number of complaints filed by Molski containing
false or exaggerated allegations of injury were vexatious" and
the pre-filing requirement could be issued. (Id. at p. 1059.)
Also, there is no evidence that these lawsuits are "frivolous."
The Merriam-Webster Dictionary defines "frivolous" as "of little
weight or importance," or "having no sound basis (as in fact or
law) ." In other words, a lawsuit alleging
a violation of the Unruh Act because of a denial of access would
only be "frivolous" if it had no basis in the law (i.e. it did
not state an actual violation). In fact, there is no evidence
that the complaints which are filed are without merit.
According to data collected by the Commission, most complaints
identify multiple access violations. For example, of the cases
filed in July 2014, most complaints identified multiple or
significant single violations, such as missing grab bars. Only
two out of 201 complaints identified a single violation, such as
a soap or seat cover dispenser being too high.
Should state law single out one minority group for special
barriers to enforcement of civil rights protections? Under the
federal ADA, a business that constitutes a place of public
accommodation (e.g., many places of lodging, entertainment,
recreation, restaurants, bars, theaters, stores, health clubs,
etc.) is prohibited from discriminating on the basis of
disability if its operations affect interstate commerce.
Prohibited discrimination can take a number of forms - e.g.,
denial of participation in the facility, or a service, benefit,
or good of the business; denial of equal participation in a
good, service, or facility; or provision of a different or
separate facility, service or good (unless necessary to provide
services and the like that are as effective as that provided to
AB 54
Page 13
others). Government facilities are also covered by the access
obligations of the ADA.
Public accommodations in California are required to comply with
not only the ADA, but also with the state's Unruh Act, which
incorporates the ADA into its provisions and makes a violation
of the ADA punishable as a violation of Unruh. (Section 51.)
All violations of Unruh are subject to statutory damages of at
least four thousand dollars per violation, except some cases
where the violation is based on a construction-related
accessibility claim, in which case lower damages (a minimum of
one thousand or two thousand dollars, depending on the
circumstances of the case) apply.
Persons with disabilities are just one of the many groups
protected from discrimination in the use and enjoyment of public
facilities and accommodations. Under the state's Unruh Civil
Rights Act, other protected characteristics include race,
national origin, sex and sexual orientation. In recent years,
Unruh has been amended in a manner which has affected only the
rights and remedies of disabled citizens under the Act.
Depending on one's perspective, these amendments are either
modest and necessary reforms, or changes that singled out and
significantly undermined civil rights. Regardless of one's
perspective, however, it is undeniable that current law already
imposes a number of special limits and barriers on the legal
remedies available to the disabled who are denied access to
public accommodations for violations of construction-related
accessibility standards. For example, statutory damages are
already significantly lower for some violations of Unruh that
are based upon denial of access to the disabled (as low as one
thousand dollars ($1,000) in some cases) than for any other
types of Unruh violations. Attorneys for plaintiffs who are
denied access to public accommodations on the basis of
construction-related accessibility claims are required to send
copies of their complaints to the State Bar and to the
Commission, but are not required to do so for clients who are
denied access for any other reason.
AB 54
Page 14
This bill would impose new obstacles on the disabled, requiring
them to know which construction-related accessibility standard
caused the denial of their access to the public accommodation
and whether it has changed within the past three years; if so,
to identify the owner of the public accommodation which has
discriminated against them; provide written notice of their
allegation that they were denied access, with "facts sufficient
to allow a reasonable person to identify the basis of the
construction-related accessibility claim'; wait at least 60 days
after providing this written notice to verify whether the
violation has been remedied; and if so, they are prohibited from
either filing a complaint, collecting damages, or being
reimbursed for legal fees. Likewise, if notice is not provided
or is inadequate, the disabled person has no legal remedy, even
if the public accommodation is in clear violation of Unruh.
These proposals significantly alter the Unruh Act, which is
designed to ensure access to public accommodations for all
persons in the state and provide special protections and
remedies to those who are particularly vulnerable to
discrimination because of "sex, race, color, religion, ancestry,
national origin, disability, medical condition, marital status,
or sexual orientation." (Section 51 (b).) The Committee should
be wary of any proposed law that limits access to the courts,
especially for vulnerable minority groups. "Because the right
to access the courts implicates due process and First Amendment
rights, courts have been exceedingly reluctant to restrict such
access" (Moy v. United States (9th Cir. 1990) 906 F.2d 467,
470.), especially one which appears on its face to discriminate
against a class of citizens who are entitled by state and
federal law to special protections.
Notification requirement. The bill requires, in "a
construction-related accessibility claim alleging a violation of
a construction-related accessibility standard within three years
of a change in that standard," the disabled person who has been
denied access to a public accommodation to provide "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
AB 54
Page 15
barriers on which the claim is based at least 60 days prior to
the filing of any action[.]" In addition, the notice must state
"facts sufficient to allow a reasonable person to identify the
basis of the construction-related accessibility claim under
subdivision (a) of Section 55.31." This notice is obviously
crucial because a disabled person is prohibited from either
filing a complaint, or collecting damages if he or she fails to
satisfy the pre-filing notice requirement.
There are many logistical and procedural questions about these
notification requirements, any of which could lead, if not
satisfied, to a disabled consumer being deprived of legal
redress for discrimination, including but not limited to, the
following:
1)How would the disabled person know what the
construction-related accessibility standard is which has
prevented or obstructed his or her access to the public
accommodation? The disabled person knows that he or she has
been denied access, but may not know anything about the
specific standard which caused the denial of access.
2)Assuming the disabled person could identify the
construction-related accessibility standard which caused the
denial of access, how would the disabled person know whether
that particular standard has changed within the past three
years? The plaintiff should not have to be an expert on state
building standards, or federal ADA law in order to file (or
have the right to file) a complaint.
3)How would the disabled person know the identity and location
of the business owner, landlord or other violator when the
disabled person has been denied access to the facility? He or
she may not have any information beyond the name of the
business and the address of the facility.
It is unlikely that a person who is not represented by an
attorney would be able to satisfy these notice requirements
given the specific requirements of the bill. Since the
AB 54
Page 16
information contained in the notice must apparently be specific
to each and every violation, this obligation would likely result
in most claimants needing the assistance of an attorney.
However, the need for an attorney would be frustrated by the
prospect that attorney's fees would not be awarded, even if the
plaintiff's claims were meritorious. That is because the bill
provides that if a disabled person finds the right person to
assist him or her, crafts exactly the right notice, and
accomplishes the required delivery to the right person by the
prescribed method, the victim would nevertheless be prohibited
from any recovery, including recovery for attorney's fees for a
genuine act of discrimination if the cause of the problem were
later rectified. The defendant would not be required to
compensate the plaintiff for the denial of his or her rights,
only to address the problem in the future.
It is highly unusual for a violation of any law to be overlooked
or forgiven because the victim has not given notice in advance.
It is even more unusual for a violator to avoid any legal
responsibility for the violation simply by correcting the
problem in response to the violation. The general principle of
our civil (and criminal) laws is that everyone is held
accountable for the wrongs they have committed, even if they are
not warned in advance and even if they comply with the law in
the future. The Committee is unaware of any comparable
provision in civil rights law.
This bill would remove all incentive for a business to comply
with construction-related accessibility standards until and
unless they are sued. Apart from the question of precedent, it
may be asked whether this bill promotes voluntary compliance and
prevents violations, as should be the goal of any law, or
whether it might instead inadvertently encourage and reward
noncompliance by allowing a business to avoid taking any steps
to follow the law -- unless and until a notice is provided, at
which point it can avoid responsibility for the legal wrongs and
injuries it has caused.
At the same time, businesses could potentially be misled about
AB 54
Page 17
their exposure to liability under the federal ADA. This bill
might immunize many ADA violations as a matter of state law.
But the ADA itself imposes none of the requirements of this
bill. Of course, state legislation cannot affect liability
under federal law, and acts that violate the ADA would therefore
still be actionable in state and federal court. Thus, despite
the beguiling appeal of protection from state law violations,
businesses that violate the ADA would continue to be subject to
costly litigation, including money damages, civil penalties and
attorney's fees, irrespective of this bill.
Frequency of changes to construction-related accessibility
standards. According to the author, the main premise for the
notice and right to cure provision of this bill is that
"Construction-related accessibility standards often change and
are hard for small businesses to stay on top of. AB 54 is a
commonsense bill that will allow small businesses to keep their
doors open, while increasing access to the disabled community."
How often do standards change and how hard is it for businesses
to comply with them? The federal ADA Standards for Accessible
Design (Standards) were originally published in 1991 and updated
in 2010. However, because of safe harbor provisions, revised
Standards do not necessarily affect existing businesses.
According to the U.S. Department of Justice, Civil Rights
Division, Disability Access Section's ADA Compliance Primer for
Small Businesses:
If your business facility was built or altered in the past
20 years in compliance with the 1991 Standards, or you
removed barriers to specific elements in compliance with
those Standards, you do not have to make further
modifications to those elements - even if the new standards
have different requirements for them - to comply with the
2010 Standards. This provision is applied on an
element-by-element basis and is referred to as the "safe
harbor."
AB 54
Page 18
State building codes change because of changes in state law, as
well as (very infrequent) changes in federal ADA Standards.
Because of changes in state law, the Division of State Architect
(DSA) updates the California Building Code every three years.
The last time the federal ADA Standards changed (in 2010), the
DSA released Bulletin BU 11-07 in order to "describe the
applicability of the accessibility provisions in the California
Building Code . . . and the Americans with Disabilities Act
Standards for Accessible Design . . .for Title II and Title III
construction projects in California." According to the DSA:
New construction shall comply with the 1991 Standards if
the date when the last application for a building permit or
permit extension is certified to be complete by a State,
county, or local government . . . is after January 26,
1992, and before September 15, 2010 . . . Alterations shall
comply with the 1991 Standards if the physical alteration
begins after January 26, 1992, and before September 15,
2010.
. . . New construction and alterations shall comply with
the 2010 Standards if the date when the last application
for a building permit or permit extension is certified to
be complete by a State, county, or local government (or, in
those jurisdictions where the government does not certify
completion of applications, if the date when the last
application for a building permit or permit extension is
received by a State, county, or local government) is on or
after March 15, 2012, or if no permit is required, if the
start of physical construction or alterations occurs on or
after March 15, 2012.
( http://www.documents.dgs.ca.gov/dsa/bulletins/BU_11-07.pdf )
While these timelines can be complicated, the bottom line is
that, because of "safe harbor" provisions similar to those in
the federal ADA Standards, a business is only required to comply
with standards that are in place when the business is originally
constructed, or if later altered, the standards that were in
AB 54
Page 19
place at that time. Health and Safety Code Section 18938.5
makes it clear that a "public accommodation" must only comply
with "the standards in effect on the day the initial permit was
submitted to the building department." (Health and Safety Code
Section 18938.5.)
If a business is only subject to the laws in place when the
business is constructed or altered, under what scenario could a
business be liable for violation of a standard which has changed
in the past three years, as envisioned by this bill? The only
scenario for a business being liable for a recently enacted
standard would seem to be where the facility was constructed or
altered within the past three years and did not comply with the
ADA Standards or state laws that were in effect at that time.
The Committee may wish to consider whether it is reasonable to
excuse a business from complying with the law when it opens.
Not surprisingly, the author provides no examples of businesses
that were compliant with construction-related accessibility
standards, but found to be liable under either the Unruh Act or
the federal ADA because standards later changed and they were
sued for those violations within three years. It is possible
that no such cases exist.
High price for minimal benefit. This bill alters the Unruh Act
in a way that hurts only one protected class of vulnerable
persons: the disabled. It imposes onerous new requirements on
disabled persons to file lawsuits and obtain compensation for
discrimination. At the same time, as explained above, these
changes are likely to decrease access, decrease compliance and
solve a problem - businesses that comply with
construction-related accessibility standards when they open and
are held liable for standards that later changed-that may not
exist.
This bill undermines recent bipartisan negotiated collaboration
and compromise on disability access reform, pre-litigation
relief to small businesses, and the important role and work of
the Commission. In response to complaints that small businesses
were the victims of predatory lawsuits alleging ADA violations,
AB 54
Page 20
a bipartisan and bicameral effort with disability rights
organizations and business advocates over a period of years
ultimately led to the adoption of SB 1608 (Corbett and Harman)
in 2008. It was the product of extended and careful
consideration by thoughtful legislators and input and support
from members of the disability and business communities
including Disability Rights California, California Chamber of
Commerce, California Foundation for Independent Living Centers,
California Restaurant Association, Business Properties
Association, California Hotel Association, and several others.
SB 1608 enacted several reforms to increase voluntary compliance
with state and federal laws requiring access to the disabled in
any place of public accommodation. It established incentives
for compliance and protection from litigation by responsible
businesses, including a process by which businesses, if sued for
violation of accessibility standards, could obtain a temporary
stay of any litigation along with an in-person early evaluation
conference with the court, attended by persons with authority to
resolve the dispute between the parties, for the purpose of
deterring frivolous cases and evaluating prospects for early
settlement. Moreover, it clarified the standards for awarding
damages and attorney's fees with respect to a claim alleging a
violation of construction-related accessibility standards. It
also required an attorney, when serving a written demand for
money or a complaint on a defendant, to include a written
advisory to the defendant of the defendant's rights and
obligations. In addition, the bill required architects to
complete coursework regarding disability access requirements and
imposed continuing education requirements on local building
officials relating to disability access requirements and
established the Commission "to develop[] recommendations that
will enable persons with disabilities to exercise their right to
full and equal access to public facilities, and that will
facilitate business compliance with the laws and regulations to
avoid unnecessary litigation." (Government Code section 8299.)
Four years after SB 1608 was signed into law, Senate Bill 1186
enacted a number of additional reforms to the laws governing
construction-related accessibility claims. According to the
AB 54
Page 21
Senate Judiciary Committee's analysis of SB 1186, Senator and
President Pro Tempore Darrell Steinberg, who was the joint
author of the bill, described it as follows [emphasis added]:
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, the Senate Minority Leader and joint author of
SB 1186, described the bill as:
. . . the culmination of months of hard work with staff and
all the various stakeholders in the community. [The 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 many more tools for businesses to
comply with this vital civil rights law.
The policy goal of SB 1186, according to the authors, was "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."
AB 54
Page 22
Unlike both SB 1608 and SB 1186, this bill is not the product of
compromise or negotiation. It has never been amended in
response to or consideration of concerns raised by the persons
who are directly impacted by the widespread lack of compliance
with construction-related access standards: the disabled
community. There is no indication that anyone who is affected
by construction-related disability access standards and
litigation, other than business groups, has been consulted in
the development of the bill's provisions. It is also noteworthy
that many of the business groups that now support this bill
supported SB 1186 when it was before the Legislature and claimed
that it would greatly improve existing law by deterring
frivolous lawsuits and serial litigants from filing Unruh
Act-ADA lawsuits.
Amendments recommended by the Committee. In light of the
concerns expressed above, the Committee suggests the following
amendments.
1)Amend SECTION 1 of the bill as follows:
(a) 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 on top of
legal fees, California is a hotbed for predatory, serial
litigants seeking to win settlements from a large number of
businesses in California are out of compliance with the ADA.
(b) The Legislature further finds and declares all of the
following:
(1) Current law permits defendants to request a court stay and
an early evaluation conference upon being served with a
AB 54
Page 23
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.
(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.
(c) The California Commission on Disability Access shall post
information about this tax credit on its website and include
in its annual report to the Legislature the impact the tax
credit has had on reducing ADA compliance lawsuits.
4)Strike SECTIONS THREE and FOUR from the bill in their
entirety.
Similar pending legislation. AB 52 (Gray) - provides, among
other things, that the defendant's maximum liability for
statutory damages in a construction-related accessibility claim
against a place of public accommodation is $1,000 for each
offense if the defendant has corrected all construction-related
violations within 180 days of being served with the complaint.
This bill is currently in this Committee.
AB 1230 (Gomez) - establishes, among other things, the
California Americans with Disabilities Act Small Business
Compliance Finance Act, which would provide loans, funded in
part by bond issuances, to assist small businesses finance the
costs of projects that alter or retrofit existing small business
facilities to comply with the federal American with Disabilities
Act. This bill is currently in Assembly Banking and Finance.
AB 54
Page 24
AB 1342 (Steinorth) - provides, among other things, additional
revenue to the California Commission on Disability Access. This
bill is currently in this Committee.
AB 1468 (Baker) - provides, among other things, that a public
entity's possession of a close out letter from the State
Architect certifying that the buildings, facilities, and other
places meet the applicable construction-related accessibility
standards of the federal Americans with Disabilities Act, serves
as presumptive evidence of compliance with the federal Americans
with Disabilities Act. This bill is currently in this
Committee.
SB 67 (Galgiani) - among other things, exempts a small business
from statutory damage liability in connection with a
construction-related accessibility claim and extends the period
for correcting construction-related violations that are the
basis of a claim from 60 days to 120 days of being served with
the complaint, for purposes of reducing a defendant's minimum
statutory damage liability to $1,000. This bill is currently in
Senate Judiciary.
SB 251 (Roth) - relating to civil rights and disability access,
is currently in Senate Rules.
REGISTERED SUPPORT / OPPOSITION:
Support
Air Conditioning Trade Association
Apartment Association, California Southern Cities
Apartment Association of Orange County
Building Owners and Managers Association California
California Citizens Against Lawsuit Abuse
California Chamber of Commerce
AB 54
Page 25
California Building Industry Association
California Small Business Association
California Restaurant Association
California Business Properties Association
CSAC Excess Insurance Authority
California Small Business Association
California Southern Cities
Camarillo Chamber of Commerce
Chamber of Commerce Mountain View
Chamber of the Santa Barbara Region
Civil Justice Association of California
Council of California Goodwill Industries
East Bay Rental Housing Association
Fairfield - Suisun City Chamber of Commerce
Fullerton Chamber of Commerce
Goleta Valley Chamber of Commerce
Greater Fresno Chamber of Commerce
International Council of Shopping Centers Lake Tahoe South Shore
Chamber of Commerce
Lodi Chamber of Commerce
NAIOP -Commercial Real Estate Development Association
North Lake Tahoe Chamber Commerce
Nor Cal Rental Properties Association
North Valley Property Owners Association
Oxnard Chamber of Commerce
Palm Desert Area Chamber of Commerce
Rancho Cordova Chamber of Commerce
Redondo Beach Chamber of Commerce & Visitors Bureau
San Diego Regional Chamber of Commerce
Simi Valley Chamber of Commerce
Southwest California Legislative Council
South Bay Association of Chambers of Commerce
Solano Economic Development Corporation
San Diego County Apartment Association
San Diego County
Tahoe Chamber of Commerce
Plumbing-Heating-Cooling Contractors Association of California
Western Electrical Contractors Association
(Two individuals)
Opposition
AB 54
Page 26
American Civil Liberties Association of California
California Foundation for Independent Living Centers
Californians for Disability Rights, Inc.
Consumer Attorneys of California
Disability Rights California
United African-Asian Abilities Club
(One individual)
Analysis Prepared
by: Alison Merrilees and Anthony Lew /JUD./(916)
319-2334