BILL ANALYSIS Ó
SB 251
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Date of Hearing: July 14, 2015
ASSEMBLY COMMITTEE ON JUDICIARY
Mark Stone, Chair
SB
251 (Roth) - As Amended July 13, 2015
SENATE VOTE: 40-0
SUBJECT: CIVIL RIGHTS: DISABILITY ACCESS
KEY ISSUES:
1)Should existing state laws governing construction-related
accessibility claims be modified to create a rebuttable
presumption that certain specified "technical violations" of
construction-related accessibility standards do not cause a
person difficulty, discomfort or embarrassment for the purpose
of an award of minimum statutory damages, where the defendant
is a small business, the defendant has, within 15 days of the
service of a summons and complaint, corrected all of the
technical violations that are the basis of the claim?
2)Should a business with 100 or fewer employees be protected
from liability for minimum statutory damages in a
construction-related accessibility claim during the 120-day
period after the business has obtained an inspection of its
premises by a Certified access specialist, allowing the
business to identify and correct violations during that period
under certain conditions?
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SYNOPSIS
There is no governmental entity charged with administrative or
judicial enforcement of construction-related accessibility
claims. Like other civil rights statutes that prohibit
discrimination in businesses open to the public, the statutory
scheme for enforcement of disability access laws rests on
voluntary compliance and individual legal actions.
Unfortunately, a very small number of highly litigious
plaintiffs and attorneys is abusing the law by making a practice
of filing and quickly settling lawsuits from small businesses
without getting the underlying access issue corrected.
According to information from the California Commission on
Disability Access, more than half (54%) of construction-related
accessibility complaints filed between 2012 and 2014 were filed
by two law firms. Forty-six percent of all complaints were
filed by 14 parties. These figures indicate that the vast
majority of the construction-related accessibility lawsuits
filed in this state are filed by a very small number of
plaintiffs. As a result, small businesses are justifiably
fearful and angry about being sued, while disabled consumers,
who reasonably expect businesses to be compliant with 25
year-old access laws so they can exercise their civil rights,
are unfairly viewed by some businesses and policymakers with
blame or suspicion.
The Legislature has frequently heard and consistently rejected
the idea that people with disabilities should be required to
comply with special procedural barriers not faced by others who
endure discrimination before they can assert legal claims
against businesses that violate their rights, and has also
rejected the idea that a disabled consumer should be precluded
from recovering the minimum statutory damages to which he or she
is entitled if the business that has violated the disabled
person's rights, after being notified of the violation, corrects
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the illegal condition at some point in the future.
According to the author, the bill, which is co-sponsored by the
Consumer Attorneys of California and the California Chamber of
Commerce, is necessary because many small businesses remain out
of compliance with longstanding state and federal disability
access laws, leaving them vulnerable to lawsuits. Some of these
suits, the author and supporters allege (and even some of the
opponents concede), are brought by plaintiffs for personal
financial benefit, not out of a desire to improve access for
disabled consumers and have access barriers removed, and some of
these suits are brought against businesses that are willing to
comply but are hampered by the complexity of the law.
Disability rights advocates have opposed prior versions of the
bill, but they agree with the supporters on a number of points,
including that many businesses are not in compliance with access
laws despite these laws' long-standing existence and that many
lawsuits are filed, some by plaintiffs seeking monetary
recovery, rather than improved access. Opponents to the prior
versions of the bill argue that they have supported prior
legislation to increase business awareness of access
obligations, improve voluntary compliance, and reward
responsible behavior and that those reforms should be furthered,
not circumvented. Opponents argue that this bill, even as
recently amended, singles out people with disabilities for
unprecedented obstacles to the enforcement of their civil
rights, deprives them of a remedy for actual violations, and
will deter, rather than encourage, compliance with disability
discrimination laws. Moreover, opponents of the bill state that
the promise of the bill may be misleadingly unattainable because
the requirements it would impose are inconsistent with federal
disability discrimination law and therefore would not preclude
many of the lawsuits (in federal court) against which businesses
seek protection.
The author of this bill asserts that additional tools are
necessary to protect small businesses from high-frequency
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litigants and to encourage compliance with the 25 year-old state
and federal laws. Therefore, the author proposes a number of
changes to the law in this bill that provide financial relief to
small businesses, and encourage compliance by businesses with
construction-related accessibility standards so that disabled
consumers can exercise their civil rights to fully and equally
access all of the public accommodations in the state.
Specifically, in its most significant provision, this bill, as
amended on July 13th, protects a business with 100 employees or
less from liability for minimum statutory damages in a
construction-related accessibility claim for the 120-day period
after the business has obtained an inspection of its premises by
a CASp, allowing the business to identify and correct violations
during that period under certain conditions, including the
following: 1) The structure or area of the alleged violation was
the subject of an inspection report indicating "CASp
determination pending" or "Inspected by a CASp"; 2) The
inspection predates the filing of the claim by, or receipt of a
demand letter; and 3) The defendant corrects, within 120 days of
the date of the inspection, all construction-related violations
in the area or structure inspected by the CASp that are noted in
the CASp report and which are the basis of the claim.
As amended on July 13th, this bill also establishes a rebuttable
presumption that certain "technical violations" do not cause a
person difficulty, discomfort or embarrassment for the purpose
of an award of minimum statutory damages in a
construction-related accessibility claim, where the defendant is
a small business, the defendant has, 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, corrected all of the technical
violations that are the basis of the claim, and the claim is
based on a number of specified violations, such as the lack of
exterior signs; the order in which parking signs are placed or
the exact location or wording of parking signs; the color of
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parking signs; the color of parking lot striping; faded,
chipped, damaged or deteriorated paint in otherwise fully
compliant parking spaces and passenger access aisles in parking
lots; and the presence or condition of detectable warning
surfaces (also known as "truncated domes") on ramps, except
where the ramp is part of a pedestrian path of travel that
intersects with a vehicular lane or other hazardous area.
Prior to the July 13th amendments, this bill was supported by a
large number of business groups and opposed by a large number of
civil rights and disability advocacy organizations. It is
unknown at this time how the July 13th amendments to the bill,
which are described in detail in this analysis, will affect the
positions of the supporters and opponents. If this bill passes
out of this Committee, it will be referred to the Assembly
Revenue and Taxation Committee.
SUMMARY: Makes a number of changes to provide financial relief
to businesses, and encourage compliance with
construction-related accessibility standards so that disabled
consumers can exercise their rights to fully and equally access
public accommodations in the state. Specifically, this bill:
1)Extends until January 1, 2019 the following requirements,
scheduled to sunset on January 1, 2016:
a) For attorneys to send copies of demand letters regarding
violations of construction-related accessibility standards
to the State Bar of California.
b) For attorneys to send copies of complaints alleging
violations of construction-related accessibility standards
to the California Commission on Disability Access.
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c) For the State Bar of California to report to the
Legislature various information about the complaints and
demand letters it receives from attorneys.
d) For the California Commission on Disability Access to
review and report on the demand letters and complaints it
receives from attorneys.
2)Establishes a presumption that certain "technical violations"
are presumed to not cause a person difficulty, discomfort or
embarrassment for the purpose of an award of minimum statutory
damages in a construction-related accessibility claim, where
the defendant is a small business, the defendant has
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, all of
the technical violations that are the basis of the claim, and
the claim is based on one or more of the following violations:
a) Interior signs, other than directional signs or signs
that identify the location of accessible elements,
facilities, or features, when all such elements, facilities
or features are accessible;
b) The lack of exterior signs, other than parking signs
and, directional signs (including, signs that indicate the
location of accessible pathways or entrance and exit doors
when not all pathways, entrance and exit doors are
accessible);
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c) The order in which parking signs are placed or the exact
location or wording of parking signs, provided that the
parking sign is clearly visible and indicates the location
of accessible parking and van-accessible parking;
d) The color of parking signs, provided that the color of
the background contrasts with the color of the information
on the sign;
e) The color of parking lot striping, provided that it
exists and provides sufficient contrast with the surface
upon which it is applied is reasonably visible;
f) Faded, chipped, damaged or deteriorated paint in
otherwise fully compliant parking spaces and passenger
access aisles in parking lots, provided that it indicates
the required dimensions of a parking space or access aisle
in a manner that is reasonably visible; or
g) The presence or condition of detectable warning surfaces
on ramps, except where the ramp is part of a pedestrian
path of travel that intersects with a vehicular lane or
other hazardous area.
3)States that the above presumption affects the plaintiff's
burden of proof and is rebuttable by evidence showing, by a
preponderance of the evidence, that the plaintiff did, in
fact, experience difficulty, discomfort, or embarrassment on
the particular occasion as a result of one or more of the
technical violations listed in 2), above.
4)Protects a business from liability for minimum statutory
damages in a construction-related accessibility claim made
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during the 120 day period after the business obtains an
inspection of its premises by a CASp, allowing the business to
identify and correct violations during that period, under the
following conditions:
a) The defendant is a business that has employed 100 or
fewer employees on average over the past three years, or
for the years it has been in existence if less than three
years, as evidenced by wage report forms filed with the
Economic Development Department.
b) The structure or area of the alleged violation was the
subject of an inspection report indicating "CASp
determination pending" or "Inspected by a CASp."
c) The inspection predates the filing of the claim by, or
receipt of a demand letter from, the plaintiff regarding
the alleged violation of a construction-related
accessibility standard, and the defendant was not on notice
of the alleged violation.
d) Within ten days of the date of the inspection, the CASp
files a notice with the State Architect for listing on the
State Architect's Internet Web site, stating that the
defendant has obtained a CASp inspection, the date of the
filing, and the date of the inspection.
e) The CASp posts the notice described in (d), above, in a
form prescribed by the State Architect, in a conspicuous
location within five feet of all public entrances to the
building on the date of the inspection and the defendant
kept it in place until the earlier of the following: 120
days after the date of the inspection, or the date when all
of the construction-related violations in the area or
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structure inspected by the CASp are corrected.
f) The defendant has corrected, within 120 days of the date
of the inspection, all construction-related violations in
the area or structure inspected by the CASp that are noted
in the CASp report which are the basis of the claim.
5)Requires a CASp to provide, within 30 days of the date when it
is requested by a qualifying business, a copy of a report
prepared pursuant to the provisions described in 4), above, to
the business that requested it.
6)Requires a CASp to file, within ten days of inspecting a
business pursuant to the provisions of this bill, a notice
with the State Architect for listing on the State Architect's
Internet Web site, indicating that the CASp has inspected the
business, the name and address of the business, the date of
the filing, the date of the inspection of the business, the
name and license number of the CASp, and a description of the
area or structure inspected by the CASp.
7)Provides that, notwithstanding any other law, a defendant who
claims the benefit of the reduction of minimum statutory
damages under this subdivision shall disclose the date and
findings of any CASp inspection to a plaintiff if relevant to
a claim or defense in an action.
8)Allows a defendant to assert the reduction of minimum
statutory damages under this subdivision only once for each
area or structure inspected by a CASp, unless the inspected
area or structure has undergone modifications or alterations
that affect the compliance with construction-related
accessibility standards of those areas after the date of the
last inspection, and the defendant obtains an additional CASp
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inspection within 30 days of final approval by the building
department or certificate of occupancy, as appropriate,
regarding the modification or alterations.
9)Provides that if the defendant fails to correct, within 120
days of the date of the inspection, all construction-related
violations in the area or structure inspected by the CASp that
are noted in the CASp report, the defendant shall not receive
any reduction of minimum statutory damages (allowing a
business that qualifies for reduced minimum statutory damages
may receive them for violations not noted in the CASp report).
10)Provides an exception to 9), above, when a building permit is
required for the repairs which cannot reasonably be completed
by the defendant within 120 days and the defendant is in the
process of correcting the violations noted in the CASp report,
as evidenced by having, at least, an active building permit
necessary for the repairs to correct the violation that was
noted, but not corrected, in the CASp report and all of the
repairs are completed within 180 days of the date of the
inspection.
11)Requires the State Architect to do the following:
a) Publish and regularly update, on its existing Internet
Web site, an easily accessible list of small businesses
that have filed a notice that they have obtained a CASp
inspection.
b) Develop a process by which businesses may notify the
State Architect of an inspection by a certified access
specialist indicating "CASp determination pending" or
"Inspected by a CASp," which shall include the date of the
notification, the date of the inspection, and a description
of the structure or area inspected.
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c) Develop a form for businesses to notify the public that
the business has obtained a CASp inspection, which shall
include the date of the notification, the date of the
inspection, and a description of the structure or area
inspected.
12)Provides that the "area or structure inspected" by a CASp
means either the interior of the premises, the exterior of the
premises, or the interior and exterior of the premises.
EXISTING LAW:
1)Pursuant to federal law, under 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. Section
12182.)
2)Pursuant to the Unruh Civil Rights Act (Unruh), provides 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. A violation of the
ADA also constitutes a violation of Unruh. A violation of
this section subjects a person to actual damages incurred by
an injured party, treble actual damages but not less than
$4,000, and any attorney's fees as the court may determine to
be proper. (Civil Code Section 51 et seq. All further
statutory references are to the California Civil Code, unless
otherwise indicated.)
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3)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. (Section 54.)
4)Provides that individuals with disabilities shall be entitled
to full and equal access to public accommodations, subject
only to the conditions and limitations established by law, or
state or federal regulation, and applicable alike to all
persons. It further provides that individuals with
disabilities shall be entitled to full and equal access to all
housing accommodations offered for rent or lease, subject to
conditions and limitations established by law. (Section
54.1.)
5)Provides that a violation of the ADA also constitutes a
violation of Section 54.1. A violation of Section 54.1
subjects a person to injunctive and actual damages - plus
treble actual damages but not less than $1,000, and attorney's
fees as the court deems proper. (Section 55.)
6)Provides the California Commission on Disability Access
(Commission), an independent state agency composed of 19
members, with general responsibility for monitoring disability
access compliance in California, and with authority to make
recommendations to the Legislature for necessary changes in
order to facilitate implementation of state and federal laws
on disability access. (Gov. Code Section 8299 et seq.)
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7)Requires an attorney, when serving a demand letter or a
complaint on a defendant alleging a construction-related
accessibility claim or noncompliance, to provide a written
advisory with each demand letter or complaint, as defined. The
written advisory shall include information about the
defendant's rights and obligations, including the right of a
qualified defendant to request a stay and an early evaluation
conference regarding the allegations in the complaint. The
written advisory is only required from any attorney, and not
from a pro per plaintiff. (Section 55.3.)
8)Requires an attorney alleging the construction-related
accessibility claim or noncompliance to state facts sufficient
to allow the defendant to identify the basis for the claim.
(Section 55.31.)
9)Prohibits such 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 or special
damages. After receiving a duly-provided demand letter, a
building owner, tenant, authorized agent or employee may
request a settlement figure or specification of damages. Upon
such a request, an attorney may present a settlement figure or
specification of damages. (Section 55.31.)
10)Requires, until January 1, 2016, an attorney to submit a copy
of the complaint to the Commission and the State Bar, and
subjects the attorney to disciplinary action for violation.
(Section 55.31.)
11)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
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that it receives. (Section 55.31)
12)Provides that upon being served with a complaint asserting a
construction-related accessibility claim, a defendant may move
for a court stay and early evaluation conference if the
defendant is: (A) Until January 1, 2018, a defendant whose
site had new construction or improvement between January 1,
2008, and January 1, 2016 and was approved pursuant to the
local building permit and inspection process; (B) a defendant
whose site had new construction or improvement that was
approved by a local public building department inspector who
is a CASp; or (C) a defendant who is a small business, as
described. The stay to the construction-related accessibility
claim, as provided, may be for 90-days unless the plaintiff
has obtained temporary injunctive relief. (Section 55.54.)
13)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.
(Section 55.54.)
14)Requires a local planning agency to employ or retain at least
one building inspector who is a CASp a local building
department to employ or retain a sufficient number of building
inspectors who are CASps. (Section 55.53.)
15)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. Existing law specifies that a plaintiff is denied
full and equal access only if he or she personally encountered
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the violation on a particular occasion or was deterred from
accessing the public accommodation on a particular occasion.
(Section 55.56.)
16)Requires the court, in assessing liability in any action
alleging multiple claims for the same construction-related
accessibility violation on different particular occasions, to
consider the reasonableness of the plaintiff's conduct in
light of the plaintiff's obligation, if any, to mitigate
damages. (Section 55.56.)
17)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 corrected all
construction-related violations that are the basis of the
claim within 60 days of being served with the complaint and
other specified conditions apply, and reduces that minimum
liability 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, as
specified. (Section 55.56.)
18)Requires the Department of General Services to make a
biannual adjustment to financial criteria defining a small
business for these purposes, and to post those adjusted
amounts on its Internet Web site. (Section 55.56.)
19)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
CASp. (Section 1938.)
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FISCAL EFFECT: As currently in print this bill is keyed fiscal.
COMMENTS: Under the twenty-five year old federal Americans with
Disabilities Act (ADA), a business that constitutes a place of
public accommodation (e.g., many places of lodging,
entertainment, recreation, restaurants, bars, theaters, stores,
health clubs, etc.) is prohibited from discriminating on the
basis of disability if its operations affect interstate
commerce. Prohibited discrimination can take a number of forms
- e.g., denial of participation in the facility, or a service,
benefit, or good of the business; denial of equal participation
in a good, service, or facility; or provision of a different or
separate facility, service or good (unless necessary to provide
services and are as effective as that provided to others).
Government facilities are also covered by the access obligations
of the ADA.
According to the California Supreme Court, "In 1992, shortly
after passage of the ADA, the Legislature amended the state's
disability protections 'to strengthen California law in areas
where it is weaker than the [ADA] and to retain California law
when it provides more protection for individuals with
disabilities than the [ADA].' Two overlapping laws, the Unruh
Civil Rights Act (§ 51) and the Disabled Persons Act (§§
54-55.3), are the principal sources of state disability access
protection." (Jankey v. Lee (2012) 55 Cal.4th 1038, 1044
[Citation to internal quotation deleted].) As a result of
incorporating the ADA into the state's Unruh Civil Rights, a
plaintiff who prevails in a construction-related accessibility
claim, like all plaintiffs in other civil rights cases, is
entitled to minimum statutory damages of $4,000 per violation
(although later amendments to Unruh, affecting only disabled
plaintiffs in only construction-related disability claims,
reduced the minimum statutory damages to only $1,000 in some
cases, such as when a small business previously obtained a CASp
inspection).
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Therefore, since 1992, public accommodations in California have
been required to comply with not only the ADA, but also with the
state's Unruh Act, which incorporates the ADA into its
provisions and makes a violation of the ADA punishable as a
violation of Unruh. (Section 51.) All violations of Unruh are
subject to statutory damages of at least $4,000 per violation,
except some cases where the violation is based on a
construction-related accessibility claim, in which case lower
damages (a minimum of $1,000, or $2,000, depending on the
circumstances of the case) apply.
Media coverage and objective data give different perspectives
about the magnitude of the problem sought to be addressed by
this bill. There has been widespread media coverage about the
problem of what has been described as "serial ADA litigation."
For example, last summer, the Modesto Bee and the Merced
Sun-Star reported a series of articles, describing "how the
Americans with Disabilities Act has been misused to create
profit centers for opportunistic lawyers. These attorneys
recruit people - some with minor disabilities, some with
criminal records, some here illegally - to visit small
businesses in hopes of spotting the most minute ADA violations.
The lawyers then demand $4,000 for each violation."
It is certainly true that a handful of highly litigious
plaintiffs have targeted small businesses, especially those
without the financial resources and sophistication to challenge
such lawsuits on their merits. According to data compiled by
the California Commission on Disability Access, more than half
(54 percent) of the construction-related accessibility
complaints filed between 2012 and 2014 were filed by two law
firms; and 46 percent of all complaints were filed by just 14
parties. These figures indicate that the vast majority of all
construction-related accessibility claims filed in this state
are initiated by a very small number of plaintiffs (and their
attorneys). As a result, small businesses are justifiably
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fearful and angry about being sued, while disabled consumers are
viewed with blame or suspicion, even though they have a right to
full and equal access and should be able to expect all public
accommodations to comply with the 25-year old requirements of
the Americans with Disability Act. Disabled consumers just want
to go about their daily lives without difficulty, discomfort, or
embarrassment, and with the basic dignity that comes from being
able to go to the same places and have the same access to
services as non-disabled persons. The vast majority would only
resort to the extreme measure of filing a lawsuit in response to
the most egregious, humiliating, and pervasive violations of
their rights. It is unfair for business owners or policymakers
to assume that disabled persons are somehow trying to "game the
system" or take advantage of small businesses when they expect
compliance with the ADA. Compliance should be something they
can count on as they go about their daily lives.
But it is also important to put these figures into perspective.
According to data compiled by the Commission, from January 2014
until January 2015, there were 3,468 demand letters and
complaints sent or filed in the state. In contrast, according
to the Judicial Council of California, a total of 800,091
lawsuits were filed in the state in 2013 (the most recent year
available). Meanwhile, California has approximately 3.3 million
small businesses. These figures mean that less than one percent
of small businesses (and a far smaller percentage of all
businesses) were sued in 2014 for access violations; and the
3,468 demand letters or complaints regarding accessibility
violations represent less than one-half of one percent (.43%) of
the total number of lawsuits filed in the state. And the actual
percentage is even smaller, because the Commission figure
includes demand letters that are not complaints.
What can be done or should be done about (the small number of)
plaintiffs and attorneys who file large numbers of Unruh Act-ADA
lawsuits? The Ninth Circuit Court of Appeals addressed this
issue in Molski v. Evergreen Dynasty Corp. (9th Cir. 2007) 500
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F.3d 1047. Molski, the plaintiff, was paralyzed from the chest
down, needed a wheelchair to get around, and filed about 400
lawsuits in the federal courts within the districts in
California. (Id. at p. 1051.) Upon motion of the defendant
businesses (including the named defendant, a restaurant) the
district court declared Molski a vexatious litigant and granted
the defendants' request for a pre-filing order (requiring court
approval before Molski could file additional lawsuits). (Ibid.)
The Ninth Circuit acknowledged that "pre-filing orders are an
extreme remedy that should rarely be used" and that courts
"should not enter pre-filing orders with undue haste because
such sanctions can tread on a litigant's due process right of
access to the courts." (Id. at p. 1057.) Nevertheless, the
Ninth Circuit upheld the order, finding that it was within the
district court's power, "In light of the district court's
finding that Molski did not suffer the injuries he claimed . . .
to conclude that the large number of complaints filed by Molski
containing false or exaggerated allegations of injury were
vexatious" and the pre-filing requirement could be issued. (Id.
at p. 1059.)
At the same time, there is no evidence that lawsuits filed by
high-frequency litigants, such as Molski, are "frivolous." The
Merriam-Webster Dictionary defines "frivolous" as "of little
weight or importance," or "having no sound basis (as in fact or
law) ." In other words, a lawsuit alleging
a violation of the Unruh Act because of a denial of access would
only be "frivolous" if it had no basis in the law (i.e. it did
not state an actual violation). In fact, there is no evidence
that the complaints which are filed are without merit.
According to data collected by the Commission, most complaints
identify multiple access violations. For example, of the cases
filed in July 2014, most complaints identified multiple or
significant single violations, such as missing grab bars. Only
two out of 201 complaints reviewed identified a single
violation, such as a soap or seat cover dispenser being too
high.
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While the Molski case shows that existing law provides
businesses with a way to deal with a vexatious litigant, the
process is difficult. As the Ninth Circuit Court of Appeals
observed in Molski, obtaining a "pre-filing order" is an
"extreme remedy that should rarely be used." (Molski v.
Evergreen Dynasty Corp., supra, at p. 1059.) The author of this
bill (like the Committee, in AB 1521) observes that other tools
are necessary to protect small businesses from high-frequency
litigants and encourage compliance with the 25 year-old state
and federal laws. Therefore, the author proposes a number of
changes to the law in this bill that provide financial relief to
businesses, and encourage businesses to obtain CASp inspection
and comply with construction-related accessibility standards so
that disabled consumers can exercise their rights to fully and
equally access public accommodations in the state.
Rebuttable presumption that certain "technical violations" do
not cause a person difficulty, discomfort or embarrassment for
the purpose of an award of minimum statutory damages in a
construction-related accessibility claim. This bill establishes
a list of "technical violations" that are presumed to not cause
a person difficulty, discomfort or embarrassment for the purpose
of awarding the plaintiff minimum statutory damages, where all
three of the following conditions precedent are satisfied: (1)
the defendant is a small business, (2) the defendant has
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, all of the
technical violations that are the basis of the claim, and (3)
the claim is based on one or more of the following violations:
a)Interior signs, other than directional signs or signs that
identify the location of accessible elements, facilities, or
features, when all such elements, facilities or features are
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accessible.
b)The lack of exterior signs, other than parking signs and,
directional signs (including, signs that indicate the location
of accessible pathways or entrance and exit doors when not all
pathways, entrance and exit doors are accessible).
c)The order in which parking signs are placed or the exact
location or wording of parking signs, provided that the
parking sign is clearly visible and indicates the location of
accessible parking and van-accessible parking.
d)The color of parking signs, provided that the color of the
background contrasts with the color of the information on the
sign.
e)The color of parking lot striping, provided that it exists and
provides sufficient contrast with the surface upon which it is
applied to be reasonably visible.
f)Faded, chipped, damaged or deteriorated paint in otherwise
fully compliant parking spaces and passenger access aisles in
parking lots, provided that it indicates the required
dimensions of a parking space or access aisle in a manner that
is reasonably visible.
g)The presence or condition of detectable warning surfaces on
ramps, except where the ramp is part of a pedestrian path of
travel that intersects with a vehicular lane or other
hazardous area.
The presumption affects the plaintiff's burden of proof. This
is appropriate because a "presumption affecting the burden of
proof is a presumption established to implement some public
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policy other than to facilitate the determination of the
particular action in which the presumption is applied."
(Evidence Code Section 605.) As a practical matter, the
presumption means that the plaintiff will recover no minimum
statutory damages for these specific violations. However, the
presumption is rebuttable, rather than conclusive. This is also
appropriate because some of these conditions could, in some
circumstances, cause a person difficulty, discomfort or
embarrassment for the purpose of awarding the plaintiff minimum
statutory damages. Therefore, it is appropriate to allow a
plaintiff to overcome the presumption with evidence showing, by
a preponderance of the evidence, that he or she did, in fact,
experience difficulty, discomfort, or embarrassment on the
particular occasion as a result of one or more of the technical
violations listed above.
There are aspects of this provision that are troubling to the
Committee. First, it could be interpreted by some that these
"technical violations" are not real violations of the ADA, when
they clearly are. Second, this provision may provide a false
sense of protection from liability to a business because even if
a business met the conditions precedent and qualified for this
presumption by correcting these violations within 15 days, the
business could still be sued in federal court during that 15-day
period. Third, this provision establishes a first precedent
that a business is not liable for violations about which the
business is notified and has an opportunity to cure. This
Committee has consistently rejected such proposals. Finally,
this provision opens the door to the possibility that the
Legislature may expand the list of "technical violations" in the
future to the point that they are no longer technical and are
substantial. However, this list of technical violations is
carefully, deliberately, and narrowly crafted in an effort to
focus on those violations of construction-related accessibility
standards which are more about formal than substantive
compliance with those standards and reportedly lead to
"frivolous" complaints that are designed to extract quick
settlements from business owners, rather than to improve access.
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According to the author, this provision seeks to address the
problem of high-frequency litigants who file
construction-related accessibility lawsuits based upon
conditions usually present on the exterior of premises, such as
signs that are posted in an incorrect manner, faded or chipped
striping of parking spaces, and signs that are the wrong color.
As previously in print, this provision was vague and could be
interpreted to mean, for example, that striping to indicate
disabled parking spaces could be completely absent and still
constitute a "technical violation." As amended on July 13th,
the bill now provides specificity and guidance about the
specific types of minor violations that are considered
"technical." Furthermore, unlike the previous versions of the
bill, the amendments allow a plaintiff to prove that one or more
of these "technical violations" did, in fact, cause difficulty,
discomfort or embarrassment for the purpose of awarding the
plaintiff minimum statutory damages. Because of the revised and
more specific language in the July 13th amendments, this
provision appears to be sufficiently limited that it will help
small businesses avoid paying minimum statutory damages to
high-frequency litigants who sue them for truly trivial and
inconsequential matters without violating the access rights of
disabled consumers in an egregious and unacceptable manner.
Protection for businesses that employee 100 or fewer employees
and obtain a CASp inspection against liability for violations of
accessibility standards that occur in the 120 day period after
the inspection. This bill protects a business from liability
for minimum statutory damages for violations of
construction-related accessibility standards during the 120 day
period after the businesse obtains a CASp inspection of the
interior, the exterior, or the entirety of the premises. The
120-day protection period only exists if all of the following
conditions are satisfied:
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a)The defendant is a business that has employed 100 or fewer
employees on average over the past three years, or for the
years it has been in existence if less than three years, as
evidenced by wage report forms filed with the Economic
Development Department.
b)The structure or area of the alleged violation was the subject
of an inspection report indicating "CASp determination
pending" or "Inspected by a CASp."
c)The inspection predates the filing of the claim by, or receipt
of a demand letter from, the plaintiff regarding the alleged
violation of a construction-related accessibility standard,
and the defendant was not on notice of the alleged violation
prior to the CASp inspection.
d)Within ten days of the date of the inspection, the CASp files
a notice with the State Architect for listing on the State
Architect's Internet Web site, stating that the defendant has
obtained a CASp inspection, the date of the filing, and the
date of the inspection.
e)The CASp posts a notice, in a form prescribed by the State
Architect, in a conspicuous location within five feet of all
public entrances to the building on the date of the inspection
and the defendant kept it in place until the earlier of the
following: 120 days after the date of the inspection, or the
date when all of the construction-related violations in the
area or structure inspected by the CASp are corrected.
f)The defendant has corrected, within 120 days of the date of
the inspection, all construction-related violations in the
area or structure inspected by the CASp that are the basis of
the claim.
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This provision allows the business to identify and correct
violations during that 120-day period. It does not preclude a
lawsuit by a plaintiff who suffers actual damages (i.e. from an
injury) on the premises of the business during the 120-day
period. The provision would not impact such a plaintiff's
ability to recover those damages. Furthermore, it does not
protect a business that does not correct violations on the
premises during the 120-day period, providing that if the
defendant fails to correct, within 120 days of the date of the
inspection, all construction-related violations in the area or
structure inspected by the CASp, the defendant shall not receive
any reduction of minimum statutory damages. Also, a defendant
is allowed to assert the reduction of minimum statutory damages
set forth here only once for each area or structure inspected by
a CASp.
There are aspects of this provision that are also deeply
troubling to the Committee. First, it is unprecedented for a
civil rights law, including the Unruh Act, to excuse violations
of the law for a specific period of time on the basis that a
defendant is trying (but not succeeding) to comply with the law.
Second, unlike virtually all other past "reforms" to state law
regarding construction-related accessibility standards, this
provision applies to relatively large businesses. Although all
businesses that obtain a CASp inspection are entitled to reduced
minimum statutory damages ($2,000 instead of $4,000), all of the
other past reforms designed to reduce damages and provide early
evaluation conferences apply to small businesses employing 25 or
fewer employees. Also, this provision - like the one dealing
with "technical" violations - may provide illusory relief to
businesses. Even if a business met the conditions precedent and
qualified for this 120-day amnesty period by correcting all
violations noted in a CASp report within 120 days of the CASp
inspection, the business could still be sued in federal court
during that period.
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Other miscellaneous changes to the law. In addition to the main
provisions of the bill, discussed above, the bill also makes the
following minor changes that are consistent with the author's
intent:
Requires that information about complaints and demand letters
which is required by current law to be submitted by attorneys
to the Commission is submitted in a "standard format specified
by the [Commission]" so that data about accessibility claims
can be more effectively compiled by the Commission and
provided to the Legislature.
Requires the State Architect to publish and regularly update a
list of businesses that have filed a notice with the State
Architect stating that the business has obtained a CASp
inspection and will correct any violations of accessibility
standards within 120 days of the date of the inspection.
Requires a CASp to note, on his or her inspection report, the
date of the inspection.
Extends until January 1, 2019 the following requirements,
scheduled to sunset on January 1, 2016:
For attorneys to send copies of demand letters
regarding violations of construction-related
accessibility standards to the State Bar of California.
For attorneys to send copies of complaints alleging
violations of construction-related accessibility
standards to the Commission.
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For the State Bar of California to report to the
Legislature various information about the complaints and
demand letters it receives from attorneys.
For the Commission to review and report on the
demand letters and complaints it receives from attorneys.
Similar pending legislation. AB 52 (Gray) provides, among other
things, 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 this Committee as a two-year bill.
AB 54 (Olsen) as introduced, provided that statutory damages
recovered in a construction-related accessibility claim based
upon a violation of a construction-related accessibility
standard which has changed within the past three years can only
be recovered by that plaintiff under certain conditions and
allows business owners who spend money to bring a place of
public accommodation into compliance with construction-related
accessibility standards a tax credit of up to $250. This bill
is currently a two-year bill in the Assembly Revenue and
Taxation Committee.
AB 1230 (Gomez) establishes the California Americans With
Disabilities Act Small Business Capital Access Loan Program
within the California Capital Access Loan Program in order to
create a self-sustaining program to provide loans to assist
small businesses in financing the costs of projects that alter
or retrofit existing small business facilities according to
certain criteria, to comply with the ADA. This bill is
currently in the Senate Business & Professions Committee.
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AB 1342 (Steinorth) - provides additional revenue to the
California Commission on Disability Access; requires a
commercial property owner to state on every lease form or rental
agreement executed after July 1, 2016, whether or not the
property being leased has undergone inspection by a CASp; and
requires a commercial property owner to provide additional
information to the tenant or lessor about the condition of the
rented or leased property. This bill is currently in the Senate
Governmental Organization Committee.
AB 1468 (Baker) - provides, among other things, 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 ADA, serves as presumptive evidence of
compliance with the ADA. This bill is currently in this
Committee as a two-year bill.
AB 1521 (Assembly Committee on the Judiciary) - enacts new
pre-filing procedures for "high-frequency litigants" and
provides new tools for businesses to use when they are served
with complaints alleging violations of construction-related
accessibility claims. This bill is in the Senate Judiciary
Committee.
SB 67 (Galgiani) - among other things, exempts a small business
from statutory damage liability in connection with a
construction-related accessibility claim and extends the period
for correcting construction-related violations that are the
basis of a claim from 60 days to 120 days of being served with
the complaint, for purposes of reducing a defendant's minimum
statutory damage liability to $1,000. This bill is currently in
Senate Judiciary as a two-year bill.
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REGISTERED SUPPORT / OPPOSITION:
Support (to previous version of the bill)
California Chamber of Commerce (co-sponsor)
Consumer Attorneys of California (co-sponsor)
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
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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
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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
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
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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 (to previous version of the bill)
American Civil Liberties Union of California
California Council for the Blind
California Foundation for Independent Living Centers
Californians for Disability Rights
Disability Rights California
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Disability Rights Education & Defense Fund
United African-Asian Abilities Club
Analysis Prepared by:Alison Merrilees / JUD. / (916)
319-2334