BILL ANALYSIS Ó
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|SENATE RULES COMMITTEE | SB 251|
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UNFINISHED BUSINESS
Bill No: SB 251
Author: Roth (D), et al.
Amended: 9/4/15
Vote: 21
SENATE JUDICIARY COMMITTEE: 6-0, 5/12/15
AYES: Jackson, Anderson, Hertzberg, Leno, Monning, Wieckowski
NO VOTE RECORDED: Moorlach
SENATE GOVERNANCE & FIN. COMMITTEE: 7-0, 5/13/15
AYES: Hertzberg, Nguyen, Beall, Hernandez, Lara, Moorlach,
Pavley
SENATE APPROPRIATIONS COMMITTEE: 7-0, 5/28/15
AYES: Lara, Bates, Beall, Hill, Leyva, Mendoza, Nielsen
SENATE FLOOR: 40-0, 6/3/15
AYES: Allen, Anderson, Bates, Beall, Berryhill, Block,
Cannella, De León, Fuller, Gaines, Galgiani, Glazer, Hall,
Hancock, Hernandez, Hertzberg, Hill, Hueso, Huff, Jackson,
Lara, Leno, Leyva, Liu, McGuire, Mendoza, Mitchell, Monning,
Moorlach, Morrell, Nguyen, Nielsen, Pan, Pavley, Roth, Runner,
Stone, Vidak, Wieckowski, Wolk
ASSEMBLY FLOOR: 70-6, 9/10/15 - See last page for vote
SUBJECT: Disability access: civil rights: income tax credit
SOURCE: California Chamber of Commerce
Consumer Attorneys of California
DIGEST: This bill makes various changes to the law as it
pertains to construction-related accessibility claims.
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Assembly Amendments expand the period of time in which certain
businesses are protected from liability for minimum statutory
damages after receiving a Certified Access Specialist (CASp)
inspection, clarify the definition of "technical violation," and
reduce the tax credit extended to small businesses that make
construction-related access improvements.
ANALYSIS:
Existing law:
1)Provides, under the Americans with Disabilities Act, that no
individual shall be discriminated against on the basis of
disability in the full and equal enjoyment of the goods,
services, facilities, privileges, advantages, or
accommodations of any place of public accommodation by any
person who owns, leases, or leases to, or operates a place of
public accommodation. (42 U.S.C. Sec. 12182.)
2)Declares, under the Unruh Civil Rights Act, that all persons,
regardless of sex, race, color, religion, ancestry, national
origin, disability or medical condition, are entitled to the
full and equal accommodations, advantages, facilities,
privileges, or services in all business establishments of
every kind whatsoever, and provides that a violation of the
ADA also constitutes a violation of state law. (Civ. Code
Sec. 51 et seq.)
3)Requires the State Architect to establish the CASp Program and
develop the specified criteria to have a person qualify as a
CASp. (Gov. Code Sec. 4459.5 ; Civ. Code Sec. 55.52.)
4)Prohibits a demand letter from including a request or demand
for money or an offer or agreement to accept money. (Civ. Code
Sec. 55.31.)
5)Provides that statutory damages may be recovered if the
plaintiff was denied full and equal access to the place of
public accommodation, as specified. (Civ. Code Sec. 55.56.)
6)Reduces a defendant's minimum liability for statutory damages
to $1,000 for each unintentional offense if the defendant has
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had a CASp inspection. (Civ. Code Sec. 55.56(f)(1).)
7)Reduces a defendant's minimum liability for statutory damages
to $2,000 if the defendant has corrected all violations, as
specified, within 30 days of being served with the complaint
and the defendant is a small business, as defined. (Civ. Code
Sec. 55.56(f)(2).)
This bill:
1)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);
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;
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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 a preponderance of the
evidence showing 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 certain businesses 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 CASp, 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.
Background
Since 1969, persons with disabilities have enjoyed protection
under Civil Code Sections 54 and 54.1, which entitle individuals
with disabilities and medical conditions to full and free access
to and use of roadways, sidewalks, buildings and facilities open
to the public, hospitals and medical facilities, and housing.
After Congress enacted ADA in 1990, the state made a violation
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of the ADA also a violation of Section 54 or 54.1A violation of
the ADA also constitutes a violation of California's Unruh Civil
Rights Act, either of which subject a person to actual damages
incurred by an injured party, plus treble actual damages, but in
no event less than $4,000.
The California Legislature has taken further steps to ensure
disability access laws are complied with. SB 262 (Kuehl,
Chapter 872, Statutes of 2003) established in the Division of
the State Architect, a voluntary "access specialist
certification program" in order to assist business and property
owners in complying with ADA and state access laws. Since that
time, several bills have been introduced that would have
precluded an action for damages for a de minimus violation,
allowing only injunctive relief and attorney's fees. All of
those bills failed passage in the Judiciary Committees of their
respective houses.
In 2012, Senators Steinberg and Dutton authored SB 1186 (Chapter
383, Statutes of 2012) which sought to comprehensively address
continued issues with disability litigation. SB 1186 created a
number of protections for small businesses and defendants who
had, prior to a claim being filed, sought out a CASp inspection.
These protections included reduced minimum statutory damages,
early evaluation conferences, and mandatory stays of court
proceedings while the violations were corrected. That bill also
prevented the stacking of multiple claims to increase damages,
banned pre-litigation demands for money, and increased data
collection regarding alleged access violations.
This bill, seeking to further promote compliance among small
businesses by allowing a business owner 90 days from the date of
a CASp inspection to fix violations before being subject to
liability, also protects small businesses from liability for
certain violations if the business corrected the violation
within 15 days of receiving notice of the potential violation.
This bill also creates tax incentives for businesses to correct
violations, and requires the State Architect and the California
Commission on Disability Compliance to post specified
information to their respective Web sites for the purpose of
educating the public on disability access laws.
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FISCAL EFFECT: Appropriation: No Fiscal
Com.:YesLocal: Yes
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.
3)Potential significant ongoing state-reimbursable General Fund
costs for local building departments to provide expedited
review for qualifying permit applications.
SUPPORT: (Verified9/10/15)
California Chamber of Commerce (co-source)
Consumer Attorneys of California (co-source)
Apartment Association of Orange County
Associated Builders and Contractors of California
CalAsian Chamber of Commerce
California Ambulance Association
California Association of Bed and Breakfast Inns
California Business Properties Association
California Citizens Against Lawsuit Abuse
California Grocers Association
California Hotel and Lodging Association
California Manufacturers and Technology Association
California Retailers Association
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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
Gilroy Chamber of Commerce
Greater Bakersfield Chamber of Commerce
Indio Chamber of Commerce
La Quinta Chamber of Commerce
Moreno Valley Chamber of Commerce
National Association of Theatre Owners of California/Nevada
National Federation of Independent Business
Nor Cal Rental Housing Association
North Valley Property Owners Association
Orange County Business Council
Oxnard Chamber of Commerce
Rancho Cordova Chamber of Commerce
Redondo Beach Changer of Commerce and Visitors Bureau
San Jose Silicon Valley Chamber of Commerce
Santa Maria Valley Chamber of Commerce Visitors and Convention
Bureau
Simi Valley Chamber of Commerce and Visitors Bureau
South Bay Association of Chamber of Commerce
South Lake Tahoe Chamber of Commerce
Southwest California Legislative Council
State Farm Automobile Insurance Company
OPPOSITION: (Verified9/10/15)
American Civil Liberties Union of California
California Building Officials
California for Disability Rights, Inc.
California Foundation for Independent Living Centers
Disability Rights California
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United African-Asian Abilities Club
ARGUMENTS IN SUPPORT: Consumer Attorneys of California
writes that they are "seeking in good faith to find a solution
to a problem plaguing many California communities: how to make
buildings more accessible for people with disabilities while at
the same time stopping the abusive practices of some attorneys
who are filing multiple lawsuits against mostly small businesses
and seeking fees, not compliance. ? Consumer Attorneys wants to
encourage compliance and stop, once and for all, the attorneys
who are taking advantage of our law. ?
"The current system needs improvement. People with disabilities
should have full access to public accommodations. Similarly,
businesses need some help in order to become compliant. SB 251
attempts to do both."
ARGUMENTS IN OPPOSITION: Disability Rights California states
that this bill protects a business from liability for violating
a construction-related liability standard if that business had
been inspected by a CASp and corrected the alleged violation
within 120 days of receiving the CASp inspection. Disability
Rights California writes in opposition to this bill, "Notice
requirements are unjustified. They have repeatedly been
rejected by the Legislature. Notice requirements are
unworkable?.Further, the advance notice requirement effectively
precludes most people with disabilities from ever asserting
their rights. Even if notice is properly provided, and the
barriers are removed within the specified time frames, the
aggrieved party is not entitled to statutory damages for the
harm encountered ? This is a policy the state of California
should not endorse or promote."
ASSEMBLY FLOOR: 70-6, 9/10/15
AYES: Achadjian, Alejo, Travis Allen, Baker, Bigelow, Brough,
Brown, Burke, Calderon, Campos, Chang, Chau, Chávez, Chiu,
Chu, Cooley, Cooper, Dababneh, Dahle, Daly, Dodd, Eggman,
Frazier, Beth Gaines, Gallagher, Cristina Garcia, Eduardo
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Garcia, Gatto, Gipson, Gomez, Gordon, Gray, Hadley, Harper,
Roger Hernández, Holden, Irwin, Jones, Jones-Sawyer, Kim,
Lackey, Levine, Linder, Lopez, Low, Maienschein, Mathis,
Mayes, McCarty, Medina, Melendez, Mullin, Obernolte,
O'Donnell, Olsen, Patterson, Perea, Quirk, Ridley-Thomas,
Rodriguez, Salas, Santiago, Steinorth, Mark Stone, Wagner,
Waldron, Wilk, Williams, Wood, Atkins
NOES: Bonilla, Gonzalez, Grove, Rendon, Thurmond, Ting
NO VOTE RECORDED: Bloom, Bonta, Nazarian, Weber
Prepared by: Nichole Rapier / JUD. / (916) 651-4113
9/10/15 23:25:15
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