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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          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            effective date of this legislation and shall not be repealed  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