BILL ANALYSIS Ó
AB 54
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CONCURRENCE IN SENATE AMENDMENTS
AB
54 (Olsen)
As Amended May 24, 2016
Majority vote
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|ASSEMBLY: |78-0 |(January 27, |SENATE: |38-0 |(August 16, |
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Original Committee Reference: JUD.
SUMMARY: Modifies existing requirements for the reporting of
information about demand letters and complaints to the
California Commission on Disability Access (Commission).
Specifically, in construction-related accessibility claim cases,
this bill:
1)Requires an attorney who provides a demand letter, within five
business days of doing so, to submit information about the
demand letter to the Commission in a standard format specified
by the Commission on its Web site, as provided by this bill.
2)Requires an attorney who sends or serves a complaint, within
five business days of doing so, to submit information about
the complaint to the Commission in a standard format specified
by the Commission on its Web site, as provided by this bill.
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3)Clarifies that these requirements shall apply upon the
effective date of this legislation and shall not be repealed
with other related reporting provisions that are scheduled to
sunset on January 1, 2019.
The Senate amendments:
1)Require the Commission to post on its Web site a new standard
format and the date by when the Commission will begin
requiring information to be submitted in that format, at least
30 days before requiring information to be in that new
standard format.
2)Clarify throughout the bill that the standard format specified
by the Commission is that format specified on the Commission's
Web site as required by this bill.
FISCAL EFFECT: 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.
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
sought to authorize a tax credit of up to $250 for business
owners who spend money to bring a place of public accommodation
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into compliance with construction-related accessibility
standards. On April 21, 2015, the author agreed to amend the
bill in the Assembly Judiciary Committee to eliminate the notice
and right-to-cure procedure, but retain the tax credit. This
bill was approved by the Judiciary Committee and referred to the
Revenue and Taxation Committee, where it subsequently was held
as a two-year bill.
In January 2016, the author made wholesale amendments to the
bill to delete the tax credit provisions and replace the
contents of the bill. As amended, the bill furthers legislation
enacted last year by seeking to facilitate more efficient
reporting of information about demand letters and complaints to
the California Commission on Disability Access.
Last year the Legislature approved and the Governor signed into
law AB 1521 (Committee on Judiciary), Chapter 755, Statutes of
2015, which, among other things, requires attorneys in
disability access cases to notify the Commission, within five
business days of any judgment, settlement, or dismissal of the
claim or claims alleged in the complaint, of certain information
in a standard format specified by the Commission. Specifically,
the information required to be reported to the Commission
includes: the date of the judgment, settlement, or dismissal;
whether or not the construction-related accessibility violations
alleged in the complaint were remedied in whole or in part after
the plaintiff filed a complaint or provided a demand letter; and
other specified information. (See Civil Code Section
55.32(b)(2).) Existing law also requires an attorney who
provides a demand letter or who sends or serves a complaint in a
construction-related accessibility case to send a copy of the
demand letter or complaint to the Commission within five
business days. Existing law also requires a copy of the demand
letter to be sent to the State Bar, but only until January 1,
2019.
This bill would require these attorneys to submit additional
information about the demand letter or complaint to the
Commission in a standard format specified by the Commission, so
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that data about accessibility claims can be more effectively
compiled by the Commission and provided to the Legislature. The
amendments also clarify that the above requirement for reporting
in a standard format is intended to apply upon the effective
date of this legislation, and not intended to be repealed with
other related reporting provisions that are scheduled to sunset
on January 1, 2019. Recent Senate amendments require the
Commission, at least 30 days before requiring information to be
sent in a new standard format, to post on its Web site the new
standard format and the date by when the Commission will begin
requiring such information to be submitted in that standard
format. In addition, a number of technical amendments are made
throughout the bill to clarify that the new standard format
specified by the Commission is that format specified on the
Commission's Web site, as now required by this bill.
According to Commission staff, the Commission has already
received approximately 300 total documents from attorneys
(including demand letters, complaints, and other reportable
information) since AB 1521 went into effect on October 21, 2015.
This bill, like AB 1521, may help the Commission better
organize and review the information it receives from attorneys
by requiring such information to be submitted in a standard
format-thereby increasing the efficiency of Commission staff
resources. As the Commission continues to adjust to recent
changes to the law, it is thought that additional clarification
may be identified and potentially addressed in the future.
The changes proposed by this bill will help the Commission
further compile and report information that provides an
empirical profile of recent Americans with Disabilities Act of
1990 (ADA)-related litigation. Past data compiled by the
Commission indicate that it is a handful of highly litigious
plaintiffs that have targeted small businesses, often those
without the financial resources and sophistication to challenge
such lawsuits on their merits. According to the Commission,
more than half (54%) of the construction-related accessibility
complaints filed between 2012 and 2014 were filed by two law
firms; and 46% of all complaints were filed by just 14 parties.
These figures indicate that the vast majority of all
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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 about being sued, while disabled consumers are often
viewed with blame or suspicion, even though they have a legal
right to full and equal access and justifiably should be able to
expect all public accommodations to comply with the 25-year old
requirements of the ADA.
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
data are available). Meanwhile, California has approximately
3.3 million small businesses. These figures mean that less than
1% 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 1% (0.43%) of the
total number of lawsuits filed in the state. The actual
percentage is even smaller, because the Commission figure
includes demand letters that are not complaints.
At the same time, there is no evidence that lawsuits filed by
high-frequency litigants 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. By
contrast, only two out of 201 complaints reviewed identified a
single violation, such as a soap or seat cover dispenser being
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too high.
Analysis Prepared by:
Anthony Lew / JUD. / (916) 319-2334 FN:
0004304