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 ****