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  







          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.  

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