BILL ANALYSIS                                                                                                                                                                                                    Ó



                                                                     SB 251


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          SENATE THIRD READING


          SB  
          251 (Roth)


          As Amended  August 20, 2015


          Majority vote


          SENATE VOTE:  40-0


           ------------------------------------------------------------------ 
          |Committee       |Votes|Ayes                  |Noes                |
          |                |     |                      |                    |
          |                |     |                      |                    |
          |                |     |                      |                    |
          |----------------+-----+----------------------+--------------------|
          |Judiciary       |10-0 |Mark Stone, Weber,    |                    |
          |                |     |Wagner, Alejo, Chau,  |                    |
          |                |     |Chiu, Gallagher,      |                    |
          |                |     |Cristina Garcia,      |                    |
          |                |     |Maienschein, Thurmond |                    |
          |                |     |                      |                    |
          |----------------+-----+----------------------+--------------------|
          |Revenue &       |9-0  |Ting, Brough,         |                    |
          |Taxation        |     |Dababneh, Gipson,     |                    |
          |                |     |Roger Hernández,      |                    |
          |                |     |Mullin, Patterson,    |                    |
          |                |     |Quirk, Wagner         |                    |
          |                |     |                      |                    |
          |----------------+-----+----------------------+--------------------|
          |Appropriations  |17-0 |Gomez, Bigelow,       |                    |
          |                |     |Bloom, Bonta,         |                    |
          |                |     |Calderon, Chang,      |                    |








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          |                |     |Nazarian, Eggman,     |                    |
          |                |     |Gallagher, Eduardo    |                    |
          |                |     |Garcia, Holden,       |                    |
          |                |     |Jones, Quirk, Rendon, |                    |
          |                |     |Wagner, Weber, Wood   |                    |
          |                |     |                      |                    |
           ------------------------------------------------------------------ 


          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, in its  
          primary provisions, this bill: 


          1)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  








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               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 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.


          2)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  








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            the particular occasion as a result of one or more of the  
            technical violations listed in 1) above.


          3)Protects a business from liability for minimum statutory  
            damages in a construction-related accessibility claim made  
            during the 120 day period after the business obtains an  
            inspection of its premises by a Certified Access Specialist  
            (CASp), allowing the business to identify and correct  
            violations during that period, under specified conditions.


          4)Makes a number of related technical and enabling changes to  
            the law.  


          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.  
          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.  










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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.  


          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.  




          FISCAL EFFECT:  According to the Assembly Appropriations  
          Committee:


          1)The Franchise Tax Board estimates General Fund revenue losses  
            of $250,000 in 2015-16, $450,000 in 2016-17, and $500,000 in  
            2017-18 and until the tax credit expires.


          2)Minor ongoing costs ($20,000) to the State Architect  
            associated with updating the existing CASp database to provide  
            a mechanism to capture the required information, developing a  
            process and form documents for the new notice requirements.  
            The requirement to collect and post the service locations of  
            CASps is a minor and absorbable cost, as the State Architect  
            already collects and posts this information on a voluntary  
            basis.








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          3)Potential significant ongoing state-reimbursable General Fund  
            costs for local building departments to provide expedited  
            review for qualifying permit applications.


          COMMENTS:  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  
            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  








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            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  
          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.  








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          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 business obtains a CASp inspection of the  
          interior, the exterior, or the entirety of the premises.  The  
          120-day protection period only exists if specified conditions  
          are satisfied, including that the business has employed 100 or  
          fewer employees on average over the past three years: the  
          structure or area of the alleged violation was the subject of an  
          inspection report indicating "CASp determination pending" or  
          "Inspected by a CASp"; and 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. 


          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.











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          Analysis Prepared by:  Alison Merrilees / JUD. / (916) 319-2334   
          FN: 0001662