BILL ANALYSIS Ó
-----------------------------------------------------------------
|SENATE RULES COMMITTEE | AB 54|
|Office of Senate Floor Analyses | |
|(916) 651-1520 Fax: (916) | |
|327-4478 | |
-----------------------------------------------------------------
THIRD READING
Bill No: AB 54
Author: Olsen (R), et al.
Amended: 5/24/16 in Senate
Vote: 21
SENATE JUDICIARY COMMITTEE: 7-0, 6/14/16
AYES: Jackson, Moorlach, Anderson, Hertzberg, Leno, Monning,
Wieckowski
SENATE APPROPRIATIONS COMMITTEE: 7-0, 8/11/16
AYES: Lara, Bates, Beall, Hill, McGuire, Mendoza, Nielsen
ASSEMBLY FLOOR: 78-0, 1/27/16 (Consent) - See last page for
vote
SUBJECT: Disability access: construction-related
accessibility claims: demand letters
SOURCE: California Commission on Disability Access
DIGEST: This bill modifies existing requirements related to the
reporting of information about demand letters and complaints
regarding construction-related accessibility violations to the
California Commission on Disability Access (CCDA). Specifically,
this bill requires the information about demand letters and
complaints to be submitted in a standard format as specified by
the CCDA.
ANALYSIS:
AB 54
Page 2
Existing law:
1)Provides, under the Americans with Disabilities Act (ADA),
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)Declares, pursuant to the Unruh Civil Rights Act, 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, and entitles persons to $4000 minimum
statutory damages for violations of Unruh. (Civ. Code Sec. 51
et seq.)
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. (Civ. Code Secs. 54, 54.1.)
4)Provides that a violation of the ADA also constitutes a
violation of Sections 54 or 54.1, and entitles a prevailing
party to recover reasonable attorney's fees. (Civ. Code Sec.
55.)
5)Prohibits a demand letter from including a request or demand
for money or an offer or agreement to accept money, unless the
AB 54
Page 3
claim involves a physical injury and special damages, and
provides that a violation of this provision constitutes cause
for attorney discipline. (Civ. Code Sec. 55.31.)
6)Requires an attorney who serves a demand letter upon a
defendant to, within five business days, submit a copy of the
demand letter to the CCDA. (Civ. Code Sec. 55.32.)
7)Requires an attorney who files a complaint to submit a copy of
the complaint to the CCDA within five business days, and
requires that the attorney notify the CCDA of any settlement,
judgment, or dismissal, as specified. (Civ. Code Sec. 55.32.)
This bill requires an attorney serving a demand letter or
complaint to send a copy to the CCDA and submit information in a
standard form specified by the CCDA.
Background
Since 1969, persons with disabilities have enjoyed protection
under Civil Code
Sections 54 and 54.1, which entitle individuals with
disabilities and medical conditions to full and free access to
and use of roadways, sidewalks, buildings and facilities open to
the public, hospitals and medical facilities, and housing. After
Congress enacted the ADA in 1990, the state made a violation of
the ADA also a violation of Section 54 or 54.1. The state
protections provided to disabled persons are comparatively
higher than those provided under the ADA and are independent of
the ADA. Additionally, under the Unruh Civil Rights Act, 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. (Civil Code Sec. 51.) A violation of the ADA
also constitutes a violation of Section 51.
AB 54
Page 4
In 2003 and 2005, several bills were introduced after multiple
lawsuits were filed in state court by a few plaintiffs and
attorneys against business owners and operators for allegedly
technical violations of the state's access or ADA regulations.
(SB 69 (Oller, 2003), AB 209 (Leslie, 2003), AB 20 (Leslie,
2005), SB 855 (Poochigian, 2005).) Three of those bills would
have required a plaintiff to undertake prelitigation steps prior
to the filing of a complaint, including providing notice to the
owner of the property or business of the alleged violations, and
provided a specified time period for the owner or business to
cure the violations. One bill, (AB 20, Leslie, 2005) would have
precluded an action for damages for a de minimus violation,
allowing only injunctive relief and attorney's fees. All of
those bills failed passage in the Judiciary Committees of their
respective houses. In 2008, two bills were introduced relating
to disability access. AB 2533 (Keene, 2008) and SB 1766
(McClintock, 2008) would have both imposed prelitigation hurdles
on plaintiffs claiming violations of construction-related
disability access laws. Both of these bills failed in the
Judiciary Committees of their respective houses. In 2011, SB
783 (Dutton, 2011) would have established notice requirements
for an aggrieved party to follow before he or she can bring a
disability access suit and given the business owner a 120-day
time period to remedy the violation. That bill failed passage.
Alternatively, SB 1608 (Corbett et al., Chapter 549, Statutes of
2008), which took effect January 1, 2009, did not create any
pre-litigation hurdles for a person with a disability but
instead, among other things, provided for an early evaluation of
a filed complaint if the defendant is a qualified defendant who
had the identified place of public accommodation inspected and
determined to meet applicable physical access standards by a
state Certified Access Specialist (CASp) prior to the filing of
the complaint. In 2012, Senators Steinberg and Dutton authored
SB 1186 (Chapter 383, Statutes of 2012) which sought to
comprehensively address continued issues with disability
litigation.
Ultimately, the bipartisan effort was viewed as a compromise
that hoped to end the abusive litigation tactics of some
attorneys, protect the rights of disabled persons, and promote
AB 54
Page 5
compliance with state and federal access laws. SB 1186 created
a number of protections for small businesses and defendants who
had, prior to a claim being filed, sought out a CASp inspection.
These protections included reduced minimum statutory damages,
early evaluation conferences, and mandatory stays of court
proceedings while the violations were corrected. That bill also
prevented the stacking of multiple claims to increase damages,
banned pre-litigation demands for money, and increased data
collection regarding alleged access violations.
Last year a number of bills were introduced to further combat
perceived issues with disability litigation. AB 1521 (Committee
on Judiciary, Chapter 755, Statutes of 2015) created a new class
of plaintiff, a "high frequency litigant," upon which it imposed
additional costs and procedural burdens. Two bills, one which
created a tax credit for certain access expenditures to
businesses, and the other that would have provided funding to
the CCDA, were vetoed by the Governor, who stated that such
legislation is more appropriately considered in the annual
budget process (SB 251 (Roth) and AB 1342 (Steinorth)). This
bill, seeking to aid the CCDA in its charge to collect and
analyze data related to construction-related accessibility
claims, authorizes the CCDA to create a standard format that
attorneys would need to follow when submitting information to
the CCDA.
FISCAL EFFECT: Appropriation: No Fiscal
Com.:YesLocal: No
According to the Senate Appropriations Committee, one-time costs
to the CCDA of $90,000 to $110,000 (General Fund) which includes
(1) $40,000 to $60,000 for the development and implementation of
a digital data capture format necessary to collect and conduct
analysis of the reported information, and, (2) a $50,000
limited-term contract to transition the data to the automated
system. Ongoing costs for the revised data collection process
are estimated at about $15,000 per year. Potential future cost
savings are likely to be realized through administrative
efficiencies created by streamlining the existing manual process
of data entry and storage of these public records.
AB 54
Page 6
SUPPORT: (Verified8/12/16)
California Commission on Disability Access (source)
California Grocers Association
California Small Business Association
Civil Justice Association of California
OPPOSITION: (Verified8/12/16)
None received
ARGUMENTS IN SUPPORT: The author writes in support:
AB 1521 was created to set up a database of high-frequency
litigants to "crack down" on individuals filing frivolous
claims. Requiring the complaint letters to be sent in a
standard format was going to make it easier for the Commission
on Disability Access to quickly review the letters and quickly
identify who was abusing the legal system. However, the
standardized format requirement doesn't take effect until
2019.
AB 54 "fills in the gap." Rather than waiting until 2019, this
law will take effect so that the demand letters will be
required to be sent in a standardized format developed by the
Commission.
ASSEMBLY FLOOR: 78-0, 1/27/16
AYES: Achadjian, Alejo, Travis Allen, Baker, Bigelow, Bloom,
Bonilla, Bonta, Brough, Brown, Burke, Calderon, Campos, Chang,
Chau, Chávez, Chiu, Chu, Cooley, Cooper, Dababneh, Dahle,
Daly, Dodd, Eggman, Frazier, Beth Gaines, Gallagher, Cristina
Garcia, Eduardo Garcia, Gatto, Gipson, Gomez, Gonzalez,
Gordon, Gray, Grove, Hadley, Harper, Roger Hernández, Holden,
Irwin, Jones, Jones-Sawyer, Kim, Lackey, Levine, Linder,
AB 54
Page 7
Lopez, Low, Maienschein, Mayes, McCarty, Medina, Melendez,
Mullin, Nazarian, Obernolte, O'Donnell, Olsen, Patterson,
Quirk, Rendon, Ridley-Thomas, Rodriguez, Salas, Santiago,
Steinorth, Mark Stone, Thurmond, Ting, Wagner, Waldron, Weber,
Wilk, Williams, Wood, Atkins
NO VOTE RECORDED: Mathis
Prepared by:Nichole Rapier / JUD. / (916) 651-4113
8/15/16 20:01:51
**** END ****