BILL ANALYSIS Ó ----------------------------------------------------------------- |SENATE RULES COMMITTEE | SB 251| |Office of Senate Floor Analyses | | |(916) 651-1520 Fax: (916) | | |327-4478 | | ----------------------------------------------------------------- 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 SB 251 Page 2 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.) SB 251 Page 3 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 SB 251 Page 4 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. SB 251 Page 5 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 SB 251 Page 6 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. SB 251 Page 7 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 SB 251 Page 8 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 SB 251 Page 9 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 **** END ****