BILL ANALYSIS Ó ----------------------------------------------------------------- |SENATE RULES COMMITTEE | SB 251| |Office of Senate Floor Analyses | | |(916) 651-1520 Fax: (916) | | |327-4478 | | ----------------------------------------------------------------- VETO 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 SENATE FLOOR: 40-0, 9/11/15 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 SB 251 Page 2 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. 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 Certified Access Specialist (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.) SB 251 Page 3 6)Reduces a defendant's minimum liability for statutory damages to $1,000 for each unintentional offense if the defendant has 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 SB 251 Page 4 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 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 SB 251 Page 5 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 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 SB 251 Page 6 information to their respective Web sites for the purpose of educating the public on disability access laws. 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 SB 251 Page 7 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 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 SB 251 Page 8 California for Disability Rights, Inc. California Foundation for Independent Living Centers Disability Rights California 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." GOVERNOR'S VETO MESSAGE: SB 251 Page 9 I am returning the following nine bills without my signature: Assembly Bill 35 Assembly Bill 88 Assembly Bill 99 Assembly Bill 428 Assembly Bill 437 Assembly Bill 515 Assembly Bill 931 Senate Bill 251 Senate Bill 377 Each of these bills creates a new tax credit or expands an existing tax credit. Despite strong revenue performance over the past few years, the state's budget has remained precariously balanced due to unexpected costs and the provision of new services. Now, without the extension of the managed care organization tax that I called for in special session, next year's budget faces the prospect of over $1 billion in cuts. Given these financial uncertainties, I cannot support providing additional tax credits that will make balancing the state's budget even more difficult. Tax credits, like new spending on programs, need to be considered comprehensively as part of the budget deliberations. 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 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, SB 251 Page 10 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 11/4/15 14:10:47 **** END ****