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 SB 251 (Roth) Page 2 of ? 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, SB 251 (Roth) Page 3 of ? 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 SB 251 (Roth) Page 4 of ? 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, SB 251 (Roth) Page 5 of ? 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 SB 251 (Roth) Page 6 of ? 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.) SB 251 (Roth) Page 7 of ? 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).) SB 251 (Roth) Page 8 of ? 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 SB 251 (Roth) Page 9 of ? 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 SB 251 (Roth) Page 10 of ? 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 SB 251 (Roth) Page 11 of ? 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 SB 251 (Roth) Page 12 of ? 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: SB 251 (Roth) Page 13 of ? 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. SB 251 (Roth) Page 14 of ? 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 SB 251 (Roth) Page 15 of ? 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 SB 251 (Roth) Page 16 of ? 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 SB 251 (Roth) Page 17 of ? 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. **************