BILL ANALYSIS                                                                                                                                                                                                    Ó






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                                   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:        









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          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  







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            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.  








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          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  







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          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.








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          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,  







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            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


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