BILL ANALYSIS                                                                                                                                                                                                    Ó






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          |SENATE RULES COMMITTEE            |                        SB 251|
          |Office of Senate Floor Analyses   |                              |
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                                    THIRD READING


          Bill No:  SB 251
          Author:   Roth (D), et al.
          Amended:  6/2/15  
          Vote:     21  

           SENATE JUDICIARY COMMITTEE:  6-0, 5/12/15
           AYES:  Jackson, Anderson, Hertzberg, Leno, Monning, Wieckowski
           NO VOTE RECORDED:  Moorlach

           SENATE GOVERNANCE & FIN. COMMITTEE:  7-0, 5/13/15
           AYES:  Hertzberg, Nguyen, Beall, Hernandez, Lara, Moorlach,  
            Pavley

           SENATE APPROPRIATIONS COMMITTEE:  7-0, 5/28/15
           AYES:  Lara, Bates, Beall, Hill, Leyva, Mendoza, Nielsen

           SUBJECT:   Civil rights:  disability access


          SOURCE:    California Chamber of Commerce 
                     Consumer Attorneys of California


          DIGEST:  This bill provides 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. This bill also provides that a small business  
          is not liable certain technical violations if corrected within  
          15 days. This bill requires the State Architect and the  
          California Commission on Disability Access provide specified  
          information on their Internet Web sites, requires local agencies  
          to develop and provide to applicants materials relating to of  








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          the Americans with Disabilities Act (ADA), and requires a local  
          agency to notify an applicant that approval of a permit does not  
          signify that the applicant has complied with the ADA. This bill  
          also requires local agencies to expedite review of projects that  
          have received a written report from a CASp indicating that the  
          site meets applicable standards. This bill also allows a tax  
          credit for small in an amount equal to 50% of eligible access  
          expenditures that do not exceed $10,250 and $250, as specified. 


          ANALYSIS:   


          Existing law: 


          1)Provides, under ADA, 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.)


          2)Declares, under the Unruh Civil Rights Act, that 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, and provides that a violation of the  
            ADA also constitutes a violation of state law.  (Civ. Code  
            Sec. 51 et seq.)  


          3)Requires the State Architect to establish the CASp Program and  
            develop the specified criteria to have a person qualify as a  
            CASp. (Gov. Code Sec. 4459.5 ; Civ. Code Sec. 55.52.)


          4)Prohibits a demand letter from including a request or demand  
            for money or an offer or agreement to accept money. (Civ. Code  
            Sec. 55.31.)  








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          5)Requires that an attorney who provides a demand letter must  
            provide a copy of the demand letter to the State Bar and the  
            California Commission on Disability Access (CCDA), who must  
            report on those letters, as specified. (Civ. Code Sec.  
            55.32(a) and (b), repealed January 1, 2016.)  


          6)Provides that statutory damages may be recovered if the  
            plaintiff was denied full and equal access to the place of  
            public accommodation, as specified.  (Civ. Code Sec. 55.56.)


          7)Reduces a defendant's minimum liability for statutory damages  
            to $1,000 for each unintentional offense if the defendant has  
            had a CASp inspection. (Civ. Code Sec. 55.56(f)(1).)


          8)Reduces a defendant's minimum liability for statutory damages  
            to $2,000 if the defendant has corrected all violations, as  
            specified, within 30 days of being served with the complaint  
            and the defendant is a small business, as defined. (Civ. Code  
            Sec. 55.56(f)(2).)


          This bill: 


          1)Provides 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.


          2)Provides that a small business shall not be liable for an  
            alleged violation if it signage, the color and condition of  
            parking lot paint striping, or truncated domes, and the  
            violation is corrected within 15 days of receiving a complaint  
            or written notice, as specified. 


          3)Requires 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  







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            responsibility for compliance may be allocated between the  
            parties by the terms of the lease or other contract. 


          4)Requires 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.


          5)Requires the CCDA to provide a link, on its Web site, to the  
            State Architect's Web site, as specified.


          6)Requires 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 provides that  
            approval of a permit does not signify compliance with the ADA.  



          7)Provides for the expedited review of project applications if  
            the applicant provides a CASp report that indicates the site  
            meets applicable standards.


          8)Provides tax credits, as specified, to small businesses for  
            eligible access expenditures.


          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 ADA in 1990, the state made a violation  
          of the ADA also a violation of Section 54 or 54.1A violation of  
          the ADA also constitutes a violation of California's Unruh Civil  
          Rights Act, either of which subject a person to actual damages  
          incurred by an injured party, plus treble actual damages, but in  
          no event less than $4,000.







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          The California Legislature has taken further steps to ensure  
          disability access laws are complied with.  SB 262 (Kuehl,  
          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.  Since that  
          time, several bills have been introduced that 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 2012, Senators Steinberg and Dutton authored SB 1186 (Chapter  
          383, Statutes of 2012) which sought to comprehensively address  
          continued issues with disability litigation.  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, also protects small businesses from liability for  
          certain violations if the business corrected the violation  
          within 15 days of receiving notice of the potential violation.   
          This bill also creates tax incentives for businesses to correct  
          violations, and requires 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.  


          Comments









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          The author writes: 


            Unfortunately, small businesses are frequently unaware of ADA  
            requirements. ? 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? 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.


          FISCAL EFFECT:   Appropriation:    No          Fiscal  
          Com.:YesLocal:   Yes


          According to the Senate Appropriations Committee: 


           The Franchise Tax Board (FTB) estimates that the amended  
            version of the bill would lead to an annual General Fund  
            revenue loss of $3 million in 2015-16, $7.6 million in  
            2016-17, and $10 million in 2017-18.

           FTB would incur annual administration costs, likely in the  
            hundreds of thousands of dollars minimally, to administer the  
            tax credit.

           The Division of the State Architect within the Department of  
            General Services would incur minor costs to administer its  
            provisions of this bill.









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           Potentially major one-time and ongoing costs to local agencies  
            for material development, applicant notification, and  
            expedited review requirements mandated in this bill. To the  
            extent the increase in local agency workload qualifies as a  
            reimbursable state mandate, local agencies could submit claims  
            for reimbursement of those costs (General Fund). 




          SUPPORT:   (Verified6/2/15)


          California Chamber of Commerce (co-source)
          Consumer Attorneys of California (co-source)
          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
          Chamber of Commerce Alliance of Ventura and Santa Barbara  
          Counties
          Chamber of Commerce Mountain View
          Civil Justice Association of California
          Coachella Chamber of Commerce
          Culver City Chamber of Commerce
          East Bay Rental Housing Association
          Fairfield-Suisun Chamber of Commerce
          Family Business Association
          Fullerton Chamber of Commerce
          Greater Bakersfield Chamber of Commerce
          Indio Chamber of Commerce
          La Quinta 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







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          North Valley Property Owners Association
          Orange County Business Council
          Oxnard Chamber of Commerce
          Rancho Cordova Chamber of Commerce
          Redondo Beach Changer of Commerce and Visitors Bureau
          San Jose Silicon Valley Chamber of Commerce
          Santa Maria Valley Chamber of Commerce Visitors and Convention  
          Bureau
          Simi Valley Chamber of Commerce and Visitors Bureau
          South Bay Association of Chamber of Commerce
          South Lake Tahoe Chamber of Commerce
          Southwest California Legislative Council
          State Farm Automobile Insurance Company 


          OPPOSITION:   (Verified6/2/15)


          American Civil Liberties Union of California
          Disability Rights California
          United African-Asian Abilities Club  


          ARGUMENTS IN SUPPORT:     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."  


          ARGUMENTS IN OPPOSITION:     This bill protects 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 inspection. Disability Rights California writes in  
          opposition to this bill, "Notice requirements are unjustified.   
          They have repeatedly been rejected by the Legislature.  Notice  
          requirements are unworkable?.Further, the advance notice  







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          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 ?  This is a policy the state of  
          California should not endorse or promote."




          Prepared by:Nichole Rapier / JUD. / (916) 651-4113
          6/2/15 21:16:16


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