BILL ANALYSIS Ó
SENATE JUDICIARY COMMITTEE
Senator Hannah-Beth Jackson, Chair
2015-2016 Regular Session
SB 251 (Roth)
Version: May 4, 2015
Hearing Date: May 12, 2015
Fiscal: Yes
Urgency: No
NR
SUBJECT
Civil rights: disability access
DESCRIPTION
This bill would provide that a business is not liable for
violating a construction-related liability standard if the
business is inspected by a certified access specialist (CASp)
and the violation is corrected within 90 days of receiving the
CASp inspection report. This bill would also provide that if an
alleged violation is a "minor matter" the business is not liable
for the alleged violation if it is corrected within 30 days, as
specified.
This bill would provide that a defendant is not liable for
statutory damages for more than one offense if the defendant is
a microbusiness, as defined, and has corrected the
construction-related violation prior to the filing of the
lawsuit.
This bill would require a commercial property owner to state on
every lease form or rental agreement executed on or after
January 1, 2016, that the owner or lessor and the tenant are
both responsible for compliance with the Americans with
Disabilities Act (ADA) and that responsibility for compliance
may be allocated between the parties by the terms of the lease
or other contract.
This bill would require applicants for CASp certification or
renewal to provide the State Architect with specified
information, and would require the State Architect to post that
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information on its Web site. This bill would also require the
California Commission on Disability Access (CCDA) to provide a
link on its Web site to the Web site of the State Architect's
CASp certification program, and make the CCDA's educational
materials and information available to other state agencies and
local building departments.
This bill would additionally require local agencies to develop
and provide to applicants materials relating to the requirements
of the ADA, and require a local agency to notify an applicant
that approval of a permit does not signify compliance with the
ADA.
This bill would, for taxable years beginning on or after January
1, 2016, and before January 1, 2023, allow a credit under both
the Personal Income Tax Law and the Corporation Tax Law for
eligible access expenditures, as specified.
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 Americans with Disabilities Act (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. A violation of that
section subjects a person to actual damages incurred by an
injured party, plus treble actual damages, but in no event less
than $4,000, and any attorney's fees as the court may determine
to be proper. (Civil Code Sec. 52.)
The California Legislature has taken further steps to ensure
disability access laws are complied with. SB 262 (Kuehl,
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Chapter 872, Statutes of 2003) established in the Division of
the State Architect, a voluntary "access specialist
certification program" in order to assist business and property
owners in complying with ADA and state access laws. The bill
also authorized an enforcement action with civil penalties for
noncompliance with the ADA and state access laws, after
notification of the business owner or operator by a government
agency. The authority to institute a civil action was extended
to county counsels (in addition to the Attorney General,
district attorney, and city attorney).
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 in this Committee.
Alternatively, SB 1608 (Corbett et al., Ch. 549, Stats. 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
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state Certified Access Specialist (CASp) prior to the filing of
the complaint.
In 2012, Senators Steinberg and Dutton authored SB 1186 (Ch.
383, Stats. 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 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.
This bill, seeking to further promote compliance among small
businesses by allowing a business owner 90 days from the date of
a CASp inspection to fix violations before being subject to
liability, would also could create a list of minor matters that
would not be considered a violation if a business corrected the
violation within 30 days of receiving notice of the potential
violation. This bill would also create tax incentives for
businesses to correct violations, and would require the State
Architect and the California Commission on Disability Compliance
to post specified information to their respective Web sites for
the purpose of educating the public on disability access laws.
This bill has also been set for hearing in the Senate Governance
and Finance Committee on May 13, 2015.
CHANGES TO EXISTING LAW
Existing federal law , the Americans with Disabilities Act (ADA),
provides 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.)
Existing law , the Unruh Civil Rights Act, declares that all
persons, regardless of sex, race, color, religion, ancestry,
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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. (Civ. Code Sec. 51 et seq.)
Existing law 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)
Existing law 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.)
Existing law establishes the California Commission on Disability
Access (CCDA), an independent state agency composed of 17
members, to monitor disability access compliance in California,
and make recommendations to the Legislature for necessary
changes in order to facilitate implementation of state and
federal laws on disability access. (Gov. Code Sec. 8299 et seq.)
Existing law requires the State Architect to establish the
Certified Access Specialist Program (CASp) and develop the
specified criteria to have a person qualify as a certified
access specialist. (Gov. Code Sec. 4459.5 ; Civ. Code Sec.
55.52.)
Existing law requires a demand letter alleging a
construction-related accessibility claim or noncompliance to
state facts sufficient to allow the defendant to identify the
basis for the claim, including a plain language explanation of
the specific barriers the individual encountered, the way in
which the barrier was entered, and the date or dates of each
particular occasion on which the individual encountered the
barrier. (Civ. Code Sec. 55.31(a).)
Existing law prohibits a demand letter from including a request
or demand for money or an offer or agreement to accept money,
unless the claim involves a physical injury and special damages,
and provides that a violation of this provision constitutes
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cause for attorney discipline. (Civ. Code Sec. 55.31.)
Existing law requires that an attorney who provides a demand
letter must do the following:
include the attorney's State Bar license number in the
demand letter; and
provide a copy of the demand letter to the State Bar and
the California Commission on Disability Access. (Civ. Code
Sec. 55.32(a) and (b), repealed January 1, 2016.)
Existing law requires demand letters, after January 1, 2016, to
only be sent to the CCDA. (Civ. Code Sec. 55.32, operative
January 1, 2016.)
Existing law provides that failure to comply with the above two
provisions constitutes a cause for attorney discipline. (Civ.
Code Sec. 55.32(c).)
Existing law requires the Commission to review and report on the
demand letters and complaints it receives until January 1, 2016.
Also requires the State Bar, commencing July 31, 2013, and
annually each July 31 thereafter, to report specified
information to the Legislature regarding the demand letters that
it receives. (Civ. Code Sec. 55.32.)
Existing law provides that upon being served with a complaint
asserting a construction-related accessibility claim, a
defendant may move for a 90-day stay and early evaluation
conference if the defendant is:
until January 1, 2018, a defendant whose site was after
January 1, 2008, and approved pursuant to the local
building permit and inspection process and the defendant
declares that all violations have been corrected, or will
be corrected within 60 days of being served the complaint;
a defendant whose site had new construction or
improvement that was approved by a local public building
department inspector who is a CASp and the defendant
declares that all violations have been corrected, or will
be corrected within 60 days of being served the complaint;
or
a defendant who is a small business, as described, and
the process and the defendant declares that all violations
have been corrected, or will be corrected within 30 days of
being served the complaint. (Civ. Code Sec. 55.54.)
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Existing law authorizes a defendant who does not qualify for an
early evaluation conference pursuant to these provisions, or who
forgoes those provisions, to request a mandatory evaluation
conference, as specified, and authorizes a plaintiff to make
that request if the defendant does not make that request. (Civ.
Code Sec. 55.545.)
Existing law requires a local agency to employ or retain at
least one building inspector who is a CASp, commencing on
January 1, 2014, to employ or retain a sufficient number of
building inspectors who are CASp to conduct inspections with
respect to new construction. (Civ. Code Sec. 55.53(d).)
Existing law provides that statutory damages may be recovered in
a construction-related accessibility claim only if a violation
or violations of one or more construction-related accessibility
standards denied the plaintiff full and equal access to the
place of public accommodation on a particular occasion, by
personally encountering the violation or being deterred from
accessing the public accommodation on a particular occasion.
(Civ. Code Sec. 55.56.)
Existing law requires the court, in assessing liability in any
action alleging multiple claims in which the plaintiff claims he
or she was deterred from accessing a place of public
accommodation on multiple occasions, to consider the
reasonableness of the plaintiff's conduct in light of the
plaintiff's obligation, if any, to mitigate damages. (Civ. Code
Sec. 55.56(h).)
Existing law requires a commercial property owner to state on a
lease form or rental agreement executed on or after July 1,
2013, if the property being leased or rented has undergone
inspection by a certified access specialist. (Civ. Code Sec.
1938.)
Existing law reduces a defendant's minimum liability for
statutory damages in a construction-related accessibility claim
against a place of public accommodation to $1,000 for each
unintentional offense if the defendant has had a CASp
inspection, or occupies a building constructed after 2008, and
corrected all construction-related violations that are the basis
of the claim within 60 days of being served with the complaint.
(Civ. Code Sec. 55.56(f)(1).)
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Existing law reduces a defendant's minimum liability for
statutory damages to $2,000 for each unintentional offense if
the defendant has corrected all construction-related violations
that are the basis of the claim within 30 days of being served
with the complaint and the defendant is a small business,
defined as less than $3.5 million in gross receipts and 25 or
fewer employees, on average, over the past three years. (Civ.
Code Sec. 55.56(f)(2).)
This bill would provide that a business is not liable for
violating a construction-related liability standard if the
business is inspected by a CASp and the alleged violation is
corrected within 90 days of receiving the CASp inspection
report.
This bill would provide that a business shall not be liable for
a violation if it is a minor matter, defined as signage, the
color and condition of parking lot paint striping, and truncated
domes, if the violation is corrected within 30 days of receiving
a complaint or written notice, as specified.
This bill would provide that a micobusiness, as defined in the
Government Code, shall not be liable for statutory damages for
more than one construction-related accessibility claim if the
business corrects the violation prior to the filing of the law
suit.
This bill would require a commercial property owner to state on
every lease executed after 2016 that the owner and the tenant
are both responsible for compliance with the ADA, and that the
responsibility for compliance may be allocated between the
parties by the terms of the lease or other contract.
This bill would require the State Architect to collect
information about the city, county, or city and county in which
CASp inspector applicants intend to provide services, and post
that information to the State Architect's Web site.
This bill would require the CCDA to provide a link, on its Web
site, to the State Architect's Web site, as specified.
This bill would require each local agency to develop materials
relating to the requirements of the ADA, and provide those
materials to permit applicants, along with a notice that
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provides that approval of a permit does not signify compliance
with the ADA.
This bill would provide for the expedited review of project
applications if the applicant provides a CASp report that
indicates the site meets applicable standards.
This bill would provide tax credits, as specified, to
microbusinesses for eligible access expenditures.
COMMENT
1.Stated need for the bill
According to the author:
California's higher accessibility standard and the ability for
a disabled person who has been discriminated against to seek
civil statutory damages has been a powerful force in making
many more businesses and buildings accessible to those with
disabilities. Unfortunately, small businesses are frequently
unaware of ADA requirements. They move into retail or office
space that has been certified as habitable by local government
planning and code inspections, receiving a certificate of
occupancy and believe that with this certification they are
fully able to operate as a lawful enterprise. They do not
discover they may have potential ADA violations until they are
threatened with litigation. Many of these small businesses
would, in good faith, address and remediate the ADA violations
had they been educated of their responsibilities and the
requirements of the law. For some businesses the potential
costs of repairs, in addition to costs associated with
defending a potential lawsuit to avoid litigation have forced
them to close their businesses. Businesses are not utilizing a
CASp to help them comply with the law as much as they should
be. Part of this is businesses not being aware of the
existence and purpose of certified CASps. Rather than rely
solely on the court system to enforce the ADA, it is the
intent of this bill to provide businesses who wish to comply
fully with the law an incentive to use a CASp to find and fix
their construction related violations, while protecting the
ability of disabled persons who encounter discrimination to
sue for compliance and damages if that business fails to fix
its violations.
2.Protection from liability for 90 days to implement
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recommendations of a CASp report
This bill would protect a business from liability for violating
a construction-related liability standard if that business had
been inspected by a CASp and corrected the alleged violation
within 90 days of receiving the CASp report.
Opposition argues that this is a notice and opportunity to cure
provision. Disability Rights California writes in opposition
that "notice requirements are unjustified. They have repeatedly
been rejected by the Legislature. Notice requirements are
unworkable?.Further, the advance notice requirement effectively
precludes most people with disabilities from ever asserting
their rights. Even if notice is properly provided, and the
barriers are removed within the specified time frames, the
aggrieved party is not entitled to statutory damages for the
harm encountered, including injunctive relief or actual damages.
This is a policy the state of California should not endorse or
promote."
The author responds, "This bill does not encourage businesses to
'wait to be caught' with regard to disability access issues.
Rather, this narrowly crafted provision provides for much needed
disability access education and training, facilitates an
increase in the number of qualified access specialists to assist
business, provides substantial tax incentives in an attempt to
ensure equal access for all, and allows a small business that
has gone to the expense of proactively hiring a CASp and
securing an inspection, a reasonable amount of time to fix the
problems identifies before the lawsuit arises. It is good public
policy to do so"
Arguably, this provision, which the author describes as a
"moratorium" is distinct from prior "notice and opportunity to
cure" provisions which have been rejected by the Legislature, in
that this protection would apply only to businesses that are
proactively identifying and removing access barriers prior to
the commencement of litigation. An advocate from the disability
community noted, "[t]here is a critical distinction to be made
between giving post-litigation behavior a white-wash and asking
for forbearance during a time that a business is attempting to
actually effect remediation of barriers."
The opposition notes a number of issues relating to the
workability of this provision. The American Civil Liberties
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Union of California (ACLU) argues that this provision is overly
broad and that it would exempt even very large and sophisticated
businesses from liability, pardon all misconduct, including
intentional acts of discrimination and violations that cause
actual injuries, and that it bars any remedy, including actual
damages and injunctive relief. The ACLU further notes that this
provision only affects liability under state law claims, and
could not affect liability under the ADA because of federal
preemption.
Disability Rights California, also in opposition, notes that, as
drafted, this provision could result in fraud: "For a business
inspected by a CASp, the bill states that business will not be
liable if the problem is corrected within 90 days of receiving
the written CASp report. Because of this provision, business
owners will not have an incentive to get the report in a timely
manner. Rather they could just adopt a 'wait and see' approach,
(as is currently done by some businesses), and request that
inspectors not provide reports until they receive written notice
of the violations."
The following amendment would address the above concerns by
providing that a business who corrects violations noted in a
CASp report shall not be liable for minimum statutory damages
for those violations. The business would be required to have
the property inspected prior to receiving a demand letter or
claim of a construction-related access violation, and the
protection would only extend to violations that are both (1)
listed in the CASp report, and (2) removed within the 90 day
period. Because damages are not available under a federal ADA
claim, the amendment would make it clear that this protection
extends only to state law claims. Further, businesses would not
be protected against liability for actual harm or injunctive
relief.
Suggested amendment :
55.535 (a)(1) of the Civil Code is amended to read: A
business, prior to the initiation of litigation, receipt of a
demand letter, or that is otherwise not on notice of a
violation of a construction-related accessibility standard
prior to a CASp inspection, shall not be liable for minimum
statutory damages for violating a construction-related
accessibility standard, as defined in Section 55.52 that is
noted in the CASp report, if the violation is corrected within
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90 days of the date of the CASp inspection.
Staff further notes that potential plaintiffs should be on
notice that a business is in the process of implementing the
recommendations of a CASp report, and thus protected from suit
for 90 days if the barriers are removed in that time period.
Currently, businesses that receive a CASp inspection receive a
sign to place in the window that informs the community that the
property has been inspected. To protect individuals who are
denied access to a property during the period in which a
business owner is implementing the recommendations of a CASp
report from the cost of initiating litigation that will
ultimately be moot, the author may wish to consider requiring
the State Architect to compile and publicly post a list of
businesses who have had a CASp inspection, including the date of
that inspection.
Suggested amendment:
Require the State Architect to post an easily accessible,
updated list of businesses who have received a CASp inspection
after January 1, 2016, and the date of that inspection.
3."Minor matters"
The California Commission on Disability Access noted that for
the entire September 2012 - October 2014 period, the number one
ranking violation was non-compliant loading zones/van access
isles. A non-compliant parking space trended downward from the
number two ranking violation to the number three and was
replaced by parking lot signage as the number two ranking
violation in 2014. The author argues that many of these
violations are simple to fix, and compliance would be best
achieved by allowing business owners to quickly remedy the
violation. Accordingly, this bill would provide that business
owners are not liable for "minor matters," if fixed within 30
days from the time the business owner receives a demand letter
or complaint alleging a construction-related access violation.
This bill would define "minor matter" as a violation concerning
interior and exterior signage, the color and condition of
parking lot paint striping, and truncated domes. In opposition,
the ACLU writes:
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This immunity undeservedly applies to even very large and
sophisticated businesses, exonerates all misconduct including
intentional acts of discrimination and violations of law that
cause injuries, and bars any remedy including actual damages.
Even if the provision were narrowed to certain businesses or
excluded physical injuries, it would still be overly broad
because it wrongly assumes that these violations never affect
accessibility. The flawed premise of this proposal appears to
be that these "minor matters" should not be the basis of
liability because they do not affect disability access. In
fact, the presence of signage for parking, as well as and
restrooms, among other things, may indeed affect full and
equal access to a facility. Likewise, whether a parking space
is striped for disability access can affect whether it is
detectable by patrons and sufficiently sized to permit safe
parking.
Also in opposition, Disability Rights California argues that
"these provisions are not needed because current law already
precludes damages for violations that have not actually
prevented or deterred access, such as signs and paint."
Thus, the opposition is divided over whether these types of
violations could be the basis for a construction-related
accessibility claim. Supporters, however, contend that these
violations "do not actually impede access to the public
accommodation, [and this bill would provide] businesses with 30
days from the service of the summons and complaint to resolve
any alleged violation regarding signage, parking lot striping,
and truncated domes. This limited period will provide a business
owner the opportunity to devote their financial resources to
resolving these minor issues before being subjected to statutory
penalties and attorney's fees."
Staff notes that the Legislature has consistently rejected
similar provisions that would have protected businesses that
corrected a violation prior to the commencement of litigation
from liability (see Background) largely because that type of
protection encourages businesses to wait until litigation is
threatened before actually complying with accessibility
standards. Accordingly, as a matter of public policy, the
Committee may wish to only extend protections to businesses who
have proactively removed barriers. The following amendments
would limit this protection to small businesses who correct
these technical violations within 15 days.
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Suggested amendments:
55.535. (a)(2) of the Civil Code is amended to read: A small
business shall not be liable for minimum statutory damages for
violating a construction-related accessibility standard if the
following conditions are met:
A. the alleged violation concerns interior or exterior
signage, the color and condition of parking lot paint
striping, or truncated domes; and
B. the violation is corrected within 15 days of the
service of a summons and complaint asserting a
construction-related accessibility claim or receipt of a
written notice, whichever is earlier.
The Consumer Attorneys of California, a co-sponsor of this bill,
writes that they are "seeking in good faith to find a solution
to a problem plaguing many California communities: how to make
buildings more accessible for people with disabilities while at
the same time stopping the abusive practices of some attorneys
who are filing multiple lawsuits against mostly small businesses
and seeking fees, not compliance. While we fully understand
that the current contents of SB 251 are not a final solution
(indeed, there is no easy solution) and that the language and
concepts need work, SB 251 offers a good first step." To that
end, the author should continue to work with stakeholders to
ensure that the above provision reflects his intent and does not
preclude persons who were actually denied access from bringing a
suit for statutory damages.
1.Redefining responsibility for compliance between property
owners and tenants
In response to concerns that many businesses who rent their
premises do not know the compliance status of their property, SB
1186 required a commercial property owner to state on a lease
form or rental agreement if the property being leased or rented
had undergone inspection by a CASp. (Civ. Code Sec. 1938.)
This bill would additionally require landlords to clearly
indicate in a lease if tenants are responsible, and thus liable,
for access violations.
Disability Rights California writes, "While we believe
strengthening lease provisions makes sense, we don't believe the
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bill goes far enough. We suggest lease provisions shift
responsibility for access fixes to landlords. Landlords should
be required to inspect properties, identify barriers and fix
them prior to leasing the property. This will ensure small
businesses are not the unwitting recipients of demand letters
and lawsuits."
Arguably, access standards in parking lots, entry ways, and
related to the structural elements of a building should be the
responsibility of the property owner, and tenants should be
responsible for anything that the tenant builds out or changes
to fit the needs of his or her particular business. In
addition, it is the property owner who is in the best position
to pass on the cost of improvements to the tenant through
increased rent. To that end, the author may wish to consider
amending the bill to prohibit property owners from shifting all
responsibility for construction-related access to a tenant.
2.Continued education, community outreach, and data collection
This bill contains a number of provisions to increase compliance
with accessibility laws in the state through education and
strengthening of existing programs.
Specifically, this bill would require applicants for CASp
certification or renewal to provide to the State Architect with
information about where that person plans to practice, and
require the State Architect to post that information on its Web
site.
This bill would also require the CCDA to link its Web site to
the State Architect's CASp certification program, and make the
CCDA's educational materials and information available to other
state agencies and local building departments. Finally, this
bill would require local agencies to develop and provide to
applicants materials relating to the requirements of the ADA and
to notify an applicant that approval of a permit does not
signify compliance with the ADA.
These requirements are a natural extension of many of the data
collection and education requirements under SB 1186 which have
proven to be helpful in educating the community about access
laws. SB 1186 also required, for a three-year period, a copy of
a demand letter sent by an attorney to a potential defendant,
alleging a construction-related accessibility violation to be
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sent to the State Bar and the CCDA. The information collected
thus far has been useful in a number of ways, including
determining which type of barriers are most common, which
communities are achieving higher levels of access, and which
attorneys are failing to follow the law. Because these
requirements are set to sunset in 2016, the author may wish to
extend the sunset for another three years so that the State Bar
and the CCDA may continue collecting and analyzing demand
letters and claims.
Suggested amendment:
Extend sunset from Civil Code Section 55.32 until January 1,
2019.
3.Additional Amendments
In response to concerns that provisions pertaining to
"microbusinesses" in this bill were vague and arguably
unnecessary in that microbusinesses fall under the umbrella of
"small businesses" which are protected under existing law and
this bill, the following amendments would remove the provisions
related to microbusinesses.
Suggested amendments:
On page 8, strike lines 13 and 14
On page 11, strike lines 31 through 37
Replace "microbusiness" with "small business" in Sections 9
and 10.
Support : Apartment Association of Orange County; Associated
Builders and Contractors of California; CalAsian Chamber of
Commerce; California Ambulance Association; California
Association of Bed and Breakfast Inns; California Business
Properties Association; California Citizens Against Lawsuit
Abuse; California Grocers Association; California Hotel and
Lodging Association; California Manufacturers and Technology
Association; California Retailers Association; Camarillo Chamber
of Commerce; Chambers of Commerce Alliance of Ventura and Santa
Barbara Counties; Chamber of Commerce Mountain View; Civil
Justice Association of California; Culver City Chamber of
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Commerce; East Bay Rental Housing Association; Fairfield-Suisun
Chamber of Commerce; Family Business Association; Fullerton
Chamber of Commerce; Greater Bakersfield Chamber of Commerce;
Greater Fresno Area Chamber of Commerce; Greater Riverside
Chambers of Commerce; Greater San Fernando Valley Chamber of
Commerce; Moreno Valley Chamber of Commerce; National
Association of Theatre Owners of California/Nevada; National
Federation of Independent Business; Nor Cal Rental Housing
Association; North Lake Tahoe Chamber of Commerce; North Valley
Property Owners Association; Orange County Business Council;
Oxnard Chamber of Commerce; Rancho Cordova Chamber of Commerce;
Redondo Beach Chamber of Commerce and Visitors Bureau; San Jose
Silicon Valley Chamber of Commerce; Santa Maria Valley Chamber
of Commerce Visitor and Convention Bureau; Simi Valley Chamber
of Commerce and Visitors Bureau; South Bay Association of
Chambers of Commerce; South Lake Tahoe Chamber of Commerce;
Southwest California Legislative Council
Opposition : American Civil Liberties Union of California;
Californians for Disability Rights; California Foundation for
Independent Living Centers; Disability Rights California; United
African Asian Abilities Club
HISTORY
Source : Consumer Attorneys of California; California Chamber of
Commerce
Related Pending Legislation :
AB 52 (Gray, 2015) would provide that the defendant's maximum
liability for statutory damages in a construction-related
accessibility claim against a place of public accommodation is
$1,000 for each offense if the defendant has corrected all
construction-related violations within 180 days of being served
with the complaint. This bill is currently in the Assembly
Judiciary Committee.
AB 54 (Olsen, 2015) would include any amount paid or incurred by
a taxpayer to receive an inspection by a CASp as an eligible
access expenditure for the Personal Income Tax Law and the
Corporation Tax Law which allows a credit to eligible small
businesses for 50 percent of eligible access expenditures. This
bill is currently in the Assembly Revenue and Taxation
Committee.
SB 251 (Roth)
Page 18 of ?
AB 1230 (Gomez, 2015) would establish the California Americans
with Disabilities Act Small Business Compliance Finance Act to
provide loans to assist small businesses finance the costs of
projects that alter or retrofit existing small business
facilities to comply with the federal American with Disabilities
Act. This bill is currently in the Assembly Appropriations
Committee.
AB 1342 (Steinorth, 2015) would provide additional revenue to
the California Commission on Disability Access. This bill is
currently in the Assembly Appropriations Committee.
AB 1468 (Baker, 2014) would provide that a public entity's
possession of a close out letter from the State Architect
certifying that the buildings, facilities, and other places meet
the applicable construction-related accessibility standards of
the federal Americans with Disabilities Act, serves as
presumptive evidence of compliance with the federal Americans
with Disabilities Act. This bill is currently in the Assembly
Judiciary Committee.
SB 67 (Galgiani) would limit recovery against a small business
for construction-related accessibility claims to injunctive
relief and reasonable attorney's fees, and would allow
businesses who have undergone a CASp inspection 120 days to
correct violations in order to qualify for reduced statutory
minimum damages.
Prior Legislation :
SB 1186 (Steinberg and Dutton, Chapter 383, Statutes of 2012)
reduced statutory damages and provided litigation protections
for specified defendants who timely correct construction-related
accessibility violations of the Unruh Civil Rights Act. That
bill also banned prelitigation "demands for money" and created
rules for demand letters and complaints in claims involving
construction-related accessibility violations.
AB 2282 (Berryhill, 2012) would have authorized an aggrieved
person to bring a disability access suit only if: (1) the person
has suffered an injury in fact; (2) the injury in fact was
caused by the violation; and (3) the violation is redressable,
was held under submission in the Senate Appropriations
Committee.
SB 251 (Roth)
Page 19 of ?
AB 1878 (Gaines, 2011) which is substantially similar to SB 1163
but applies to "microbusinesses," defined by the bill, failed
passage in the Assembly Judiciary Committee.
SB 1163 (Walters, 2012) would have established notice
requirements for an aggrieved party to follow before he or she
can bring a disability access suit and give the business owner a
120-day time period to remedy the violation. If the property
owner cures the violation, the aggrieved party cannot receive
any damages or attorney's fees, except for special damages.
This bill failed passage in this Committee.
SB 783 (Dutton, 2011), which was identical to SB 1163, failed
passage in this Committee.
SB 384 (Evans, Ch. 419, Stats. 2011) clarified that attorneys
who file complaints or send demand letters related to disability
access violations must provide a written notice of legal rights
and obligations whether or not the attorney intends to file an
action in state or federal court.
SB 209 (Corbett & Harman, Ch. 569, Stats. 2009) required a CASp
inspection report, to remain confidential rather than be under
seal and subject to protective order.
SB 1608 (Corbett et al., Ch. 549, Stats. 2008) See Background;
Comment 6.
SB 1766 (McClintock, 2008) See Background.
AB 2533 (Keene, 2008) See Background.
SB 855 (Poochigian, 2005) See Background.
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