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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