BILL ANALYSIS Ó AB 54 Page 1 CONCURRENCE IN SENATE AMENDMENTS AB 54 (Olsen) As Amended May 24, 2016 Majority vote -------------------------------------------------------------------- |ASSEMBLY: |78-0 |(January 27, |SENATE: |38-0 |(August 16, | | | |2016) | | |2016) | | | | | | | | | | | | | | | -------------------------------------------------------------------- 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. AB 54 Page 2 3)Clarifies that these requirements shall apply upon the effective date of this legislation and shall not be repealed with other related reporting provisions that are scheduled to sunset on January 1, 2019.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 AB 54 Page 3 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 AB 54 Page 4 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 AB 54 Page 5 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 AB 54 Page 6 too high. Analysis Prepared by: Anthony Lew / JUD. / (916) 319-2334 FN: 0004304