BILL ANALYSIS Ó SB 251 Page 1 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, | | SB 251 Page 2 | | |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 SB 251 Page 3 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 SB 251 Page 4 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. SB 251 Page 5 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. SB 251 Page 6 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 SB 251 Page 7 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. SB 251 Page 8 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. SB 251 Page 9 Analysis Prepared by: Alison Merrilees / JUD. / (916) 319-2334 FN: 0001662