BILL ANALYSIS Ó
AB 54
Page 1
Date of Hearing: January 12, 2016
ASSEMBLY COMMITTEE ON JUDICIARY
Mark Stone, Chair
AB 54
(Olsen) - As Amended January 4, 2016
SUBJECT: CIVIL RIGHTS: DISABILITY ACCESS
KEY ISSUES:
1)Should existing state laws governing construction-related
accessibility claims be modified to create a rebuttable
presumption that certain specified "technical violations" of
construction-related accessibility standards do not cause a
person difficulty, discomfort or embarrassment for the purpose
of an award of minimum statutory damages, where the defendant
is a small business, the defendant has, within 15 days of the
service of a summons and complaint, corrected all of the
technical violations that are the basis of the claim?
2)Should a business with 100 or fewer employees be protected
from liability for minimum statutory damages in a
construction-related accessibility claim during the 120-day
period after the business has obtained an inspection of its
premises by a Certified access specialist, allowing the
business to identify and correct violations during that period
under certain conditions?
SYNOPSIS
AB 54
Page 2
As introduced last year, this bill would have established a
controversial notice and right-to-cure procedure limited to
construction-related accessibility standards that had changed
within the previous three years. In addition, this bill sought
to authorize a tax credit of up to $250 for business owners who
spend money to bring a place of public accommodation into
compliance with construction-related accessibility standards.
On April 21, 2015, the author agreed to amend the bill in this
committee to eliminate the notice and right-to-cure procedure,
but retain the tax credit. AB 54 was approved by this Committee
and referred to the Revenue and Taxation Committee, where it
subsequently was held as a two-year bill. On January 4, 2016,
the author made wholesale amendments to the bill to delete the
tax credit provisions and replace the contents of the bill with
substantially the same language contained in the enrolled
version of SB 251 (Roth), which was vetoed by Governor Brown in
October 2015. In short, the present bill is substantially
similar to last year's SB 251, with the notable exception that
it does not contain any tax incentives for eligible access
expenditures by businesses. It also is a competing effort to SB
269 (Roth), a bill currently in this committee, which represents
that Senate author's continuing efforts in the second year of
this session to enact substantially similar changes in law that
he developed and articulated last year, with input from this
Committee, in his bill SB 251.
Proponents of this bill assert that additional tools are
necessary to protect small businesses from high-frequency
litigants and to encourage compliance with longstanding federal
and state disability access laws. Therefore, this bill seeks to
establish several changes to existing law in order to provide
financial relief to small businesses and encourage compliance by
businesses with construction-related accessibility standards so
that disabled consumers can exercise their civil rights to fully
AB 54
Page 3
and equally access all of the public accommodations in the
state. In perhaps its most significant provision, this bill
seeks to protect a business with 100 employees or less from
liability for minimum statutory damages in a
construction-related accessibility claim for the 120-day period
after the business has obtained an inspection of its premises by
a Certified Access Specialist (CASp), allowing the business to
identify and correct violations during that period under certain
conditions, including the following: 1) the structure or area of
the alleged violation was the subject of an inspection report
indicating "CASp determination pending" or "Inspected by a
CASp"; 2) the inspection predates the filing of the claim by, or
receipt of a demand letter; and 3) the defendant corrects,
within 120 days of the date of the inspection, all
construction-related violations in the area or structure
inspected by the CASp that are noted in the CASp report and
which are the basis of the claim.
This bill also would establish a rebuttable presumption that
certain "technical violations" do not cause a person difficulty,
discomfort or embarrassment for the purpose of an award of
minimum statutory damages in a construction-related
accessibility claim, if the following are true: (1) the
defendant is a small business, as defined; (2) the defendant has
corrected all of the technical violations that are the basis of
the claim, within 15 days of the service of a summons and
complaint asserting a construction-related accessibility claim
or receipt of a written notice, whichever is earlier; and (3)
the claim is based on a number of specified violations,
including but not limited to, the lack of exterior signs; the
order in which parking signs are placed or the exact location or
wording of parking signs; the color of parking signs; and the
color of parking lot striping, among other things.
The Legislature has frequently heard and consistently rejected
AB 54
Page 4
the idea that people with disabilities should be required to
comply with special procedural barriers not faced by others who
endure discrimination before they can assert legal claims
against businesses that violate their rights, and has also
rejected the idea that a disabled consumer should be precluded
from recovering the minimum statutory damages to which he or she
is entitled if the business that has violated the disabled
person's rights, after being notified of the violation, corrects
the illegal condition at some point in the future.
It should also be noted that there is no governmental entity
charged with administrative or judicial enforcement of
construction-related accessibility claims. Like other civil
rights statutes that prohibit discrimination in businesses open
to the public, the statutory scheme for enforcement of
disability access laws rests on voluntary compliance and
individual legal actions. Unfortunately, a very small number of
highly litigious plaintiffs and attorneys is abusing the law by
making a practice of filing and quickly settling lawsuits from
small businesses without getting the underlying access issue
corrected. According to information from the California
Commission on Disability Access, more than half (54%) of
construction-related accessibility complaints filed between 2012
and 2014 were filed by two law firms. Forty-six percent of all
complaints were filed by 14 parties. These figures indicate
that the vast majority of the construction-related accessibility
lawsuits filed in this state are filed by a very small number of
plaintiffs. As a result, small businesses are justifiably
fearful and angry about being sued, while disabled consumers,
who reasonably expect businesses to be compliant with 25
year-old access laws so they can exercise their civil rights,
are unfairly viewed by some businesses and policymakers with
blame or suspicion.
AB 54
Page 5
Nevertheless, proponents contend the bill is necessary because
many small businesses remain out of compliance with longstanding
state and federal disability access laws, leaving them
vulnerable to lawsuits. Some of these suits, they contend (and
even some of the opponents concede), are brought by plaintiffs
for personal financial benefit, not out of a desire to improve
access for disabled consumers and have access barriers removed,
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 who oppose the bill do agree with
the supporters on a number of points, including that many
businesses are not in compliance with access laws despite these
laws' long-standing existence and that many lawsuits are filed,
some by plaintiffs seeking monetary recovery, rather than
improved access. These advocates argue, however, that they have
supported prior legislation to increase business awareness of
access obligations, improve voluntary compliance, and reward
responsible behavior and that those reforms should be furthered,
not circumvented. In opposition, these advocates contend the
bill singles out people with disabilities for unprecedented
obstacles to the enforcement of their civil rights, deprives
them of a remedy for actual violations, and will deter, rather
than encourage, compliance with disability discrimination laws.
Moreover, the 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 many of the lawsuits (in
federal court) against which businesses seek protection.
SUMMARY: Makes a number of changes to provide financial relief
to businesses, and encourage compliance with
construction-related accessibility standards so that disabled
consumers can exercise their rights to fully and equally access
public accommodations in the state. Specifically, this bill:
1)Effective January 1, 2019, require an attorney who provides a
demand letter or who sends or serves a complaint to also
AB 54
Page 6
submit information about the demand letter or complaint to the
California Commission on Disability Access (commission) in a
standard format specified by the commission.
2)Establishes a presumption that certain "technical violations"
are presumed to not cause a person difficulty, discomfort or
embarrassment for the purpose of an award of minimum statutory
damages in a construction-related accessibility claim, where
the defendant is a small business, the defendant has
corrected, within 15 days of the service of a summons and
complaint asserting a construction-related accessibility claim
or receipt of a written notice, whichever is earlier, all of
the technical violations that are the basis of the claim, and
the claim is based on one or more of the following violations:
a) Interior signs, other than directional signs or signs
that identify the location of accessible elements,
facilities, or features, when all such elements, facilities
or features are accessible;
b) The lack of exterior signs, other than parking signs
and, directional signs (including, signs that indicate the
location of accessible pathways or entrance and exit doors
when not all pathways, entrance and exit doors are
accessible);
c) The order in which parking signs are placed or the exact
location or wording of parking signs, provided that the
parking sign is clearly visible and indicates the location
of accessible parking and van-accessible parking;
AB 54
Page 7
d) The color of parking signs, provided that the color of
the background contrasts with the color of the information
on the sign;
e) The color of parking lot striping, provided that it
exists and provides sufficient contrast with the surface
upon which it is applied is reasonably visible;
f) Faded, chipped, damaged or deteriorated paint in
otherwise fully compliant parking spaces and passenger
access aisles in parking lots, provided that it indicates
the required dimensions of a parking space or access aisle
in a manner that is reasonably visible; or
g) The presence or condition of detectable warning surfaces
on ramps, except where the ramp is part of a pedestrian
path of travel that intersects with a vehicular lane or
other hazardous area.
3)States that the above presumption affects the plaintiff's
burden of proof and is rebuttable by evidence showing, by a
preponderance of the evidence, that the plaintiff did, in
fact, experience difficulty, discomfort, or embarrassment on
the particular occasion as a result of one or more of the
technical violations listed in 2), above.
4)Protects a business from liability for minimum statutory
damages in a construction-related accessibility claim made
during the 120 day period after the business obtains an
inspection of its premises by a CASp, allowing the business to
identify and correct violations during that period, under the
following conditions:
AB 54
Page 8
a) The defendant is a business that has employed 100 or
fewer employees on average over the past three years, or
for the years it has been in existence if less than three
years, as evidenced by wage report forms filed with the
Economic Development Department.
b) The structure or area of the alleged violation was the
subject of an inspection report indicating "CASp
determination pending" or "Inspected by a CASp."
c) The inspection predates the filing of the claim by, or
receipt of a demand letter from, the plaintiff regarding
the alleged violation of a construction-related
accessibility standard, and the defendant was not on notice
of the alleged violation.
d) Within ten days of the date of the inspection, the CASp
files a notice with the State Architect for listing on the
State Architect's Internet Web site, stating that the
defendant has obtained a CASp inspection, the date of the
filing, and the date of the inspection.
e) The CASp posts the notice described in (d), above, in a
form prescribed by the State Architect, in a conspicuous
location within five feet of all public entrances to the
building on the date of the inspection and the defendant
kept it in place until the earlier of the following: 120
days after the date of the inspection, or the date when all
of the construction-related violations in the area or
structure inspected by the CASp are corrected.
f) The defendant has corrected, within 120 days of the date
of the inspection, all construction-related violations in
the area or structure inspected by the CASp that are noted
AB 54
Page 9
in the CASp report which are the basis of the claim.
5)Requires a CASp to provide, within 30 days of the date when it
is requested by a qualifying business, a copy of a report
prepared pursuant to the provisions described in 4), above, to
the business that requested it.
6)Requires a CASp to file, within ten days of inspecting a
business pursuant to the provisions of this bill, a notice
with the State Architect for listing on the State Architect's
Internet Web site, indicating that the CASp has inspected the
business, the name and address of the business, the date of
the filing, the date of the inspection of the business, the
name and license number of the CASp, and a description of the
area or structure inspected by the CASp.
7)Provides that, notwithstanding any other law, a defendant who
claims the benefit of the reduction of minimum statutory
damages under this subdivision shall disclose the date and
findings of any CASp inspection to a plaintiff if relevant to
a claim or defense in an action.
8)Allows a defendant to assert the reduction of minimum
statutory damages under this subdivision only once for each
area or structure inspected by a CASp, unless the inspected
area or structure has undergone modifications or alterations
that affect the compliance with construction-related
accessibility standards of those areas after the date of the
last inspection, and the defendant obtains an additional CASp
inspection within 30 days of final approval by the building
department or certificate of occupancy, as appropriate,
regarding the modification or alterations.
9)Provides that if the defendant fails to correct, within 120
AB 54
Page 10
days of the date of the inspection, all construction-related
violations in the area or structure inspected by the CASp that
are noted in the CASp report, the defendant shall not receive
any reduction of minimum statutory damages (allowing a
business that qualifies for reduced minimum statutory damages
may receive them for violations not noted in the CASp report).
10)Provides an exception to 9), above, when a building permit is
required for the repairs which cannot reasonably be completed
by the defendant within 120 days and the defendant is in the
process of correcting the violations noted in the CASp report,
as evidenced by having, at least, an active building permit
necessary for the repairs to correct the violation that was
noted, but not corrected, in the CASp report and all of the
repairs are completed within 180 days of the date of the
inspection.
11)Requires the State Architect to do the following:
a) Publish and regularly update, on its existing Internet
Web site, an easily accessible list of small businesses
that have filed a notice that they have obtained a CASp
inspection.
b) Develop a process by which businesses may notify the
State Architect of an inspection by a certified access
specialist indicating "CASp determination pending" or
"Inspected by a CASp," which shall include the date of the
notification, the date of the inspection, and a description
of the structure or area inspected.
c) Develop a form for businesses to notify the public that
the business has obtained a CASp inspection, which shall
include the date of the notification, the date of the
inspection, and a description of the structure or area
inspected.
AB 54
Page 11
12)Provides that the "area or structure inspected" by a CASp
means either the interior of the premises, the exterior of the
premises, or the interior and exterior of the premises.
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. Section
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,
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. Further provides that a violation of
AB 54
Page 12
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. 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, an
independent state agency composed of 19 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 Section 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
AB 54
Page 13
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 or 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, 2019, an attorney to submit a copy
of any demand letter to the Commission and the State Bar, and
to submit a copy of a complaint to the Commission, and
subjects the attorney to possible disciplinary action for
violations of this requirement. (Section 55.32.)
11)Requires the Commission to review and report on the demand
letters and complaints it receives until January 1, 2016.
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 55.32)
12)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: (A) Until January 1, 2018, a defendant whose
AB 54
Page 14
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 for 90-days unless the plaintiff
has obtained temporary injunctive relief. (Section 55.54.)
13)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.)
14)Requires a local planning agency to employ or retain at least
one building inspector who is a CASp a local building
department to employ or retain a sufficient number of building
inspectors who are CASps. (Section 55.53.)
15)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.)
16)Requires the court, in assessing liability in any action
alleging multiple claims for the same construction-related
AB 54
Page 15
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 55.56.)
17)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 reduces 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.)
18)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.)
19)Requires a commercial property owner to state on a lease form
or rental agreement executed on or after July 1, 2013, if the
property being leased or rented has undergone inspection by a
CASp. (Section 1938.)
FISCAL EFFECT: As currently in print this bill is keyed fiscal.
COMMENTS: As introduced last year, this bill would have
established a controversial notice and right-to-cure procedure
limited to construction-related accessibility standards that had
changed within the previous three years. In addition, this bill
AB 54
Page 16
sought to authorize a tax credit of up to $250 for business
owners who spend money to bring a place of public accommodation
into compliance with construction-related accessibility
standards. On April 21, 2015, the author agreed to amend the
bill in this committee to eliminate the notice and right-to-cure
procedure, but retain the tax credit. AB 54 was approved by
this Committee and referred to the Revenue and Taxation
Committee, where it subsequently was held as a two-year bill.
On January 4, 2016, the author made wholesale amendments to the
bill to delete the tax credit provisions and replace the
contents of the bill with substantially the same language
contained in the enrolled version of SB 251 (Roth), which was
vetoed by Governor Brown in October 2015. It should be noted
that at the time of this analysis, the author of SB 251 has
another bill, SB 269, in possession of this Committee that seeks
to enact substantially similar language as his bill from last
year. One notable exception is that SB 269, in response to
concerns expressed by opponents and some Members of the
Legislature about the size of the business that would be
eligible for the 120-day protection from liability for minimum
statutory violations provided in SB 251, reduced the size of
such businesses from those which employ 100 of fewer employees
to those which employee 50 or fewer employees. It should be
noted that this bill retains the original 100 employee
threshold.
Background on public accommodation laws in California under the
ADA and the Unruh Act. Under the twenty-five year old federal
Americans with Disabilities Act (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
AB 54
Page 17
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 are as effective as
that provided to others). Government facilities are also
covered by the access obligations of the ADA.
According to the California Supreme Court, "In 1992, shortly
after passage of the ADA, the Legislature amended the state's
disability protections 'to strengthen California law in areas
where it is weaker than the [ADA] and to retain California law
when it provides more protection for individuals with
disabilities than the [ADA].' Two overlapping laws, the Unruh
Civil Rights Act (§ 51) and the Disabled Persons Act (§§
54-55.3), are the principal sources of state disability access
protection." (Jankey v. Lee (2012) 55 Cal.4th 1038, 1044
[Citation to internal quotation deleted].) As a result of
incorporating the ADA into the state's Unruh Civil Rights, a
plaintiff who prevails in a construction-related accessibility
claim, like all plaintiffs in other civil rights cases, is
entitled to minimum statutory damages of $4,000 per violation
(although later amendments to Unruh, affecting only disabled
plaintiffs in only construction-related disability claims,
reduced the minimum statutory damages to only $1,000 in some
cases, such as when a small business previously obtained a CASp
inspection).
Therefore, since 1992, public accommodations in California have
been 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 $4,000 per violation,
except some cases where the violation is based on a
construction-related accessibility claim, in which case lower
damages (a minimum of $1,000, or $2,000, depending on the
circumstances of the case) apply.
AB 54
Page 18
Media coverage and objective data give different perspectives
about the magnitude of the problem sought to be addressed by
this bill. There has been widespread media coverage about the
problem of what has been described as "serial ADA litigation."
For example, in 2014, the Modesto Bee and the Merced Sun-Star
reported a series of articles, describing "how the Americans
with Disabilities Act has been misused to create profit centers
for opportunistic lawyers. These attorneys recruit people -
some with minor disabilities, some with criminal records, some
here illegally - to visit small businesses in hopes of spotting
the most minute ADA violations. The lawyers then demand $4,000
for each violation."
It is certainly true that a handful of highly litigious
plaintiffs have targeted small businesses, especially those
without the financial resources and sophistication to challenge
such lawsuits on their merits. According to data compiled by
the California Commission on Disability Access, more than half
(54 percent) of the construction-related accessibility
complaints filed between 2012 and 2014 were filed by two law
firms; and 46 percent of all complaints were filed by just 14
parties. These figures indicate that the vast majority of all
construction-related accessibility claims filed in this state
are initiated by a very small number of plaintiffs (and their
attorneys). As a result, small businesses are justifiably
fearful and angry about being sued, while disabled consumers are
viewed with blame or suspicion, even though they have a right to
full and equal access and should be able to expect all public
accommodations to comply with the 25-year old requirements of
the Americans with Disability Act. Disabled consumers just want
to go about their daily lives without difficulty, discomfort, or
embarrassment, and with the basic dignity that comes from being
able to go to the same places and have the same access to
services as non-disabled persons. The vast majority would only
resort to the extreme measure of filing a lawsuit in response to
the most egregious, humiliating, and pervasive violations of
their rights. It is unfair for business owners or policymakers
AB 54
Page 19
to assume that disabled persons are somehow trying to "game the
system" or take advantage of small businesses when they expect
compliance with the ADA. Compliance should be something they
can count on as they go about their daily lives.
But it is also important to put these figures into perspective.
According to data compiled by the Commission, from January 2014
until January 2015, there were 3,468 demand letters and
complaints sent or filed in the state. In contrast, according
to the Judicial Council of California, a total of 800,091
lawsuits were filed in the state in 2013 (the most recent year
available). Meanwhile, California has approximately 3.3 million
small businesses. These figures mean that less than one percent
of small businesses (and a far smaller percentage of all
businesses) were sued in 2014 for access violations; and the
3,468 demand letters or complaints regarding accessibility
violations represent less than one-half of one percent (0.43%)
of the total number of lawsuits filed in the state. And the
actual percentage is even smaller, because the Commission figure
includes demand letters that are not complaints.
What can be done or should be done about (the small number of)
plaintiffs and 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. 2007) 500
F.3d 1047. Molski, the plaintiff, 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 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
AB 54
Page 20
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.)
At the same time, there is no evidence that lawsuits filed by
high-frequency litigants, such as Molski, 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 reviewed identified a single
violation, such as a soap or seat cover dispenser being too
high.
While the Molski case shows that existing law provides
businesses with a way to deal with a vexatious litigant, the
process is difficult. As the Ninth Circuit Court of Appeals
observed in Molski, obtaining a "pre-filing order" is an
"extreme remedy that should rarely be used." (Molski v.
Evergreen Dynasty Corp., supra, at p. 1059.) This bill takes
the approach that other tools are necessary to protect small
businesses from high-frequency litigants and to encourage
compliance with the 25 year-old state and federal laws.
AB 54
Page 21
Therefore, the bill proposes a number of changes to the law that
provide financial relief to businesses, and encourage businesses
to obtain CASp inspection and comply with construction-related
accessibility standards so that disabled consumers can exercise
their rights to fully and equally access public accommodations
in the state.
Rebuttable presumption that certain "technical violations" do
not cause a person difficulty, discomfort or embarrassment for
the purpose of an award of minimum statutory damages in a
construction-related accessibility claim. This bill establishes
a list of "technical violations" that are presumed to not cause
a person difficulty, discomfort or embarrassment for the purpose
of awarding the plaintiff minimum statutory damages, where all
three of the following conditions precedent are satisfied: (1)
the defendant is a small business, (2) the defendant has
corrected, within 15 days of the service of a summons and
complaint asserting a construction-related accessibility claim
or receipt of a written notice, whichever is earlier, all of the
technical violations that are the basis of the claim, and (3)
the claim is based on one or more of the following violations:
a)Interior signs, other than directional signs or signs that
identify the location of accessible elements, facilities, or
features, when all such elements, facilities or features are
accessible.
b)The lack of exterior signs, other than parking signs and,
directional signs (including, signs that indicate the location
of accessible pathways or entrance and exit doors when not all
pathways, entrance and exit doors are accessible).
c)The order in which parking signs are placed or the exact
location or wording of parking signs, provided that the
parking sign is clearly visible and indicates the location of
accessible parking and van-accessible parking.
AB 54
Page 22
d)The color of parking signs, provided that the color of the
background contrasts with the color of the information on the
sign.
e)The color of parking lot striping, provided that it exists and
provides sufficient contrast with the surface upon which it is
applied to be reasonably visible.
f)Faded, chipped, damaged or deteriorated paint in otherwise
fully compliant parking spaces and passenger access aisles in
parking lots, provided that it indicates the required
dimensions of a parking space or access aisle in a manner that
is reasonably visible.
g)The presence or condition of detectable warning surfaces on
ramps, except where the ramp is part of a pedestrian path of
travel that intersects with a vehicular lane or other
hazardous area.
The presumption affects the plaintiff's burden of proof. This
is appropriate because a "presumption affecting the burden of
proof is a presumption established to implement some public
policy other than to facilitate the determination of the
particular action in which the presumption is applied."
(Evidence Code Section 605.) As a practical matter, the
presumption means that the plaintiff will recover no minimum
statutory damages for these specific violations. However, the
presumption is rebuttable, rather than conclusive. This is also
appropriate because some of these conditions could, in some
circumstances, cause a person difficulty, discomfort or
embarrassment for the purpose of awarding the plaintiff minimum
statutory damages. Therefore, it is appropriate to allow a
plaintiff to overcome the presumption with evidence showing, by
a preponderance of the evidence, that he or she did, in fact,
AB 54
Page 23
experience difficulty, discomfort, or embarrassment on the
particular occasion as a result of one or more of the technical
violations listed above.
There are aspects of this provision that remain troubling to the
Committee. First, it could be interpreted by some that these
"technical violations" are not real violations of the ADA, when
they clearly are. Second, this provision may provide a false
sense of protection from liability to a business because even if
a business met the conditions precedent and qualified for this
presumption by correcting these violations within 15 days, the
business could still be sued in federal court during that 15-day
period. Third, this provision establishes a first precedent
that a business is not liable for violations about which the
business is notified and has an opportunity to cure. This
Committee has consistently rejected such proposals.
Finally, this provision opens the door to the possibility that
the Legislature may expand the list of "technical violations" in
the future to the point that they are no longer technical and
are substantial. However, this list of technical violations is
carefully, deliberately, and narrowly crafted in an effort to
focus on those violations of construction-related accessibility
standards which are more about formal than substantive
compliance with those standards and reportedly lead to
"frivolous" complaints that are designed to extract quick
settlements from business owners, rather than to improve access.
Importantly, the bill does allow a plaintiff to prove that one
or more of these "technical violations" did, in fact, cause
difficulty, discomfort or embarrassment for the purpose of
awarding the plaintiff minimum statutory damages. Because the
bill provides greater specificity and guidance about specific
types of minor violations that are considered "technical," this
provision appears to be sufficiently limited that it will help
small businesses avoid paying minimum statutory damages to
high-frequency litigants who sue them for truly trivial and
inconsequential matters without violating the access rights of
AB 54
Page 24
disabled consumers in an egregious and unacceptable manner.
Protection for businesses that employee 100 or fewer employees
and obtain a CASp inspection against liability for violations of
accessibility standards that occur in the 120 day period after
the inspection. This bill protects a business from liability
for minimum statutory damages for violations of
construction-related accessibility standards during the 120 day
period after the business obtains a CASp inspection of the
interior, the exterior, or the entirety of the premises. The
120-day protection period only exists if all of the following
conditions are satisfied:
a)The defendant is a business that has employed 100 or fewer
employees on average over the past three years, or for the
years it has been in existence if less than three years, as
evidenced by wage report forms filed with the Economic
Development Department.
b)The structure or area of the alleged violation was the subject
of an inspection report indicating "CASp determination
pending" or "Inspected by a CASp."
c)The inspection predates the filing of the claim by, or receipt
of a demand letter from, the plaintiff regarding the alleged
violation of a construction-related accessibility standard,
and the defendant was not on notice of the alleged violation
prior to the CASp inspection.
d)Within ten days of the date of the inspection, the CASp files
a notice with the State Architect for listing on the State
Architect's Internet Web site, stating that the defendant has
obtained a CASp inspection, the date of the filing, and the
date of the inspection.
AB 54
Page 25
e)The CASp posts a notice, in a form prescribed by the State
Architect, in a conspicuous location within five feet of all
public entrances to the building on the date of the inspection
and the defendant kept it in place until the earlier of the
following: 120 days after the date of the inspection, or the
date when all of the construction-related violations in the
area or structure inspected by the CASp are corrected.
f)The defendant has corrected, within 120 days of the date of
the inspection, all construction-related violations in the
area or structure inspected by the CASp that are the basis of
the claim.
This provision allows the business to identify and correct
violations during that 120-day period. It does not preclude a
lawsuit by a plaintiff who suffers actual damages (i.e. from an
injury) on the premises of the business during the 120-day
period. The provision would not impact such a plaintiff's
ability to recover those damages. Furthermore, it does not
protect a business that does not correct violations on the
premises during the 120-day period, providing that if the
defendant fails to correct, within 120 days of the date of the
inspection, all construction-related violations in the area or
structure inspected by the CASp, the defendant shall not receive
any reduction of minimum statutory damages. Also, a defendant
is allowed to assert the reduction of minimum statutory damages
set forth here only once for each area or structure inspected by
a CASp.
There are aspects of this provision that also continue to be
deeply troubling to the Committee. First, it is unprecedented
for a civil rights law, including the Unruh Act, to excuse
violations of the law for a specific period of time on the basis
that a defendant is trying (but not succeeding) to comply with
the law. Second, unlike virtually all other past "reforms" to
state law regarding construction-related accessibility
AB 54
Page 26
standards, this provision applies to relatively large
businesses. Although all businesses that obtain a CASp
inspection are entitled to reduced minimum statutory damages
($2,000 instead of $4,000), all of the other past reforms
designed to reduce damages and provide early evaluation
conferences apply to small businesses employing 25 or fewer
employees. Also, this provision - like the one dealing with
"technical" violations - may provide illusory relief to
businesses. Even if a business met the conditions precedent and
qualified for this 120-day amnesty period by correcting all
violations noted in a CASp report within 120 days of the CASp
inspection, the business could still be sued in federal court
during that period.
Other miscellaneous changes to the law. In addition to the main
provisions of the bill, discussed above, the bill also makes
several minor but important changes. Among other things, the
bill requires that information about complaints and demand
letters, which under current law must be submitted by attorneys
to the Commission, is provided in a "standard format specified
by the [Commission]" so that data about accessibility claims can
be more effectively compiled by the Commission and provided to
the Legislature. The bill also requires the State Architect to
publish and regularly update a list of businesses that have
filed a notice with the State Architect stating that the
business has obtained a CASp inspection and will correct any
violations of accessibility standards within 120 days of the
date of the inspection. In addition, the bill requires a CASp
to note, on his or her inspection report, the date of the
inspection.
Amendments recommended by the Committee. In light of the
concerns expressed above, the Committee suggests the following
AB 54
Page 27
amendments.
1) Strike out Sections ONE, and THREE through TEN in their
entirety from the bill.
2) Add the version of Section 55.32 of the Civil Code, in
effect until January 1, 2019 (enacted by Senate Bill 1186
of the 2011-12 Regular Session of the Legislature and to
become inoperative under conditions prescribed by Stats.
2008, Ch. 549, Sec. 12, subd. (b)) and incorporate language
requiring that information about complaints and demand
letters, which under current law must be submitted by
attorneys to the Commission, is provided in a "standard
format specified by the [Commission]," as follows:
55.32
(a) An attorney who provides a demand letter, as defined in
subdivision (a) of Section 55.3, shall do all of the
following:
(1) Include the attorney's State Bar license number in the
demand letter.
(2) Contemporaneously with providing the demand letter,
send a copy of the demand letter to the State Bar of
California by facsimile transmission at 1-415-538-2171, or
by mail to 180 Howard Street, San Francisco, CA, 94105,
Attention: Professional Competence.
AB 54
Page 28
(3) Within five business days of providing the demand
letter, send a copy of the demand letter to letter, and
submit information about the demand letter in a standard
format specified by the California Commission on Disability
Access. Access, to the commission.
(b) An attorney who sends or serves a complaint, as defined
in subdivision (a) of Section 55.3, shall do both of the
following:
(1) Send a copy of the complaint to and submit information
about the complaint in a standard format specified by the
California Commission on Disability Access to the
commission within five business days of sending or serving
the complaint.
[Remainder of this section would have no additional
changes]
Related 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 as a two-year bill.
AB 1468 (Baker) seeks to provide, 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 ADA, serves as presumptive evidence of
compliance with the ADA. This bill is currently in this
Committee as a two-year bill.
AB 54
Page 29
SB 67 (Galgiani) seeks to exempt small businesses from statutory
damage liability in connection with a construction-related
accessibility claim and to extend 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
as a two-year bill.
SB 269 (Roth) is substantially similar to SB 251 (Roth) of 2015
(see below), with the notable exception that it does not contain
tax incentives for eligible access expenditures by businesses.
This bill is currently in this Committee.
Related previous legislation. AB 1230 (Gomez), Chapter 787,
Statutes of 2015, establishes the California Americans With
Disabilities Act Small Business Capital Access Loan Program
within the California Capital Access Loan Program in order to
create a self-sustaining program to provide loans to assist
small businesses in financing the costs of projects that alter
or retrofit existing small business facilities according to
certain criteria, to comply with the ADA.
AB 1342 (Steinorth) would have provided additional revenue to
the California Commission on Disability Access. In addition,
the bill would have required a commercial property owner to
state on every lease form or rental agreement executed after
July 1, 2016, whether or not the property being leased has
undergone inspection by a CASp, and would have required a
commercial property owner to provide additional information to
the tenant or lessor about the condition of the rented or leased
property. AB 1342 was vetoed by the Governor.
AB 54
Page 30
AB 1521 (Assembly Committee on the Judiciary), Chapter 755,
Statutes of 2015, establishes new pre-filing procedures for
"high-frequency litigants" and provides new tools for businesses
to use when they are served with complaints alleging violations
of construction-related accessibility claims.
SB 251 (Roth), among other things, would have established a list
of "technical violations" that are presumed to not cause a
person difficulty, discomfort or embarrassment for the purpose
of awarding the plaintiff minimum statutory damages, where
certain conditions are satisfied. This would have protected a
business from liability for minimum statutory damages for
violations of construction-related accessibility standards
during the 120 day period after the business obtains a CASp
inspection of the interior, the exterior, or the entirety of the
premises, provided that all violations were corrected within the
120 period and other conditions were satisfied. The bill also
would have provided a tax credit for eligible expenditures to
increase accessibility. SB 251 was vetoed by the Governor.
ARGUMENTS IN SUPPORT: Supporters of the bill contend that the
notice and right-to-cure provisions of the bill will help to
address abusive lawsuits against businesses. For example, the
California Grocers Association states in support:
Significant lawsuit abuse exists with regard to
compliance with requirements of the ADA. California
grocers are committed to accessibility for all customers,
including those with physical disabilities. However, we
have unfortunately seen opportunistic attorneys file
abusive litigation with profit motive rather than public
benefit in mind. We support AB 54 as a means to begin to
address this abuse and help well-intentioned businesses
reach and maintain compliance.
AB 54
Page 31
ARGUMENTS IN OPPOSITION: In addition to the arguments in
opposition described previously, opponents of the bill contend
that the bill goes too far in extending protection from damages
to virtually all businesses in California. Disability Rights
California states:
Current state access laws define "small business" as a
business with 25 employees or less. AB 54 goes too far
because it extends protections and limits liability for
civil rights damages to any business with up to 100
employees. The U.S. Census data reports that 98% of
California businesses have up to 100 employees [citing
data that only 17,716 (2%) of 701,899 businesses in
California have more than 100 employees.] This extension
is too expansive and should be stricken from the bill. A
business with 100 employees is not small. They have
resources to identify and correct access violations and
when they do not do so, they should be responsible for
civil rights damages. Any protections from civil rights
damages in the context of access laws should apply to
small businesses of 25 or fewer employees.
The ACLU also argues that the immunity provisions of this bill
will not promote compliance, and may in fact promote a false
hope that access lawsuits will be prevented. They state:
[The bill's] offer of immunity will be highly misleading
to the businesses that obtain a CASp inspection because
it will not prevent lawsuits-including liability for
attorney's fees and equitable relief-brought under the
federal ADA, which of course the state is powerless to
affect. We would do California businesses a serious
disservice and only cause greater frustration and
AB 54
Page 32
cynicism if we were to mislead them into believing they
cannot be sued for access violations when in fact they
can be.
Businesses already have strong incentives to obtain a
CASp inspection, including statutory penalties that are
reduced by 75 percent compared to other violators, an
automatic stay of any lawsuit, and special court
oversight to protect against improper allegations and
promote quick resolution of the dispute. The effect of
these protections is already sufficient to largely
prevent CASp-inspected businesses from being sued. It is
not necessary or helpful in preventing baseless
litigation to increase the value of a CASp inspection by
giving businesses immunity from statutory damages.
REGISTERED SUPPORT / OPPOSITION:
Support
California Grocers Association (CGA)
California Small Business Association
AB 54
Page 33
Opposition
American Civil Liberties Union (ACLU)
California Foundation for Independent Living Centers (CFILC)
Disability Rights California
Analysis Prepared by:Alison Merrilees and Anthony Lew / JUD. /
(916) 319-2334