BILL ANALYSIS Ó
SB 251
Page 1
SENATE THIRD READING
SB
251 (Roth)
As Amended September 4, 2015
Majority vote
SENATE VOTE: 40-0
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|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, Nazarian, | |
SB 251
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| | |Eggman, Gallagher, | |
| | | | |
| | | | |
| | |Eduardo Garcia, | |
| | |Holden, Jones, Quirk, | |
| | |Rendon, Wagner, Weber, | |
| | |Wood | |
| | | | |
| | | | |
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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;
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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 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
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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 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.
5)Adds chaptering language to avoid a conflict with AB 1521
(Judiciary Committee) of the current legislative session.
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
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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.
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
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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.
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
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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
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
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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.
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
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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.
Analysis Prepared by:
Alison Merrilees / JUD. / (916) 319-2334 FN:
0002161