BILL ANALYSIS                                                                                                                                                                                                    Ó



                                                                      AB 54


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          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  








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            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  








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          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  








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          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: 










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             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,  








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            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  








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            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.   








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            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.)









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          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  








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            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.  








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          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  








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          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  








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          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.  










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          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  








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          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  








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          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  








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          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." 










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          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  








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          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,  








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          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  








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          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


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          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