BILL ANALYSIS                                                                                                                                                                                                    



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          Date of Hearing:  January 19, 2016


                           ASSEMBLY COMMITTEE ON JUDICIARY


                                  Mark Stone, Chair


          SB  
          269 (Roth) - As Amended January 11, 2016


                              As Proposed to be Amended


          SENATE VOTE:  NOT RELEVANT 


          SUBJECT:  CIVIL RIGHTS: DISABILITY ACCESS


          KEY ISSUES:


          1)Should existing state laws governing construction-related  
            accessibility claims be modified to create a rebuttable  
            presumption that certain specified "technical violations" of  
            construction-related accessibility standards do not cause a  
            person difficulty, discomfort or embarrassment for the purpose  
            of an award of minimum statutory damages, where the defendant  
            is a small business, the defendant has, within 15 days of the  
            service of a summons and complaint, corrected all of the  
            technical violations that are the basis of the claim?

          2)Should a business with 50 or fewer employees be protected from  
            liability for minimum statutory damages in a  
            construction-related accessibility claim during the 120-day  
            period after the business has obtained an inspection of its  








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            premises by a Certified access specialist, allowing the  
            business to identify and correct violations during that period  
            under certain conditions?

          3)Should the above changes in the law take effect immediately  
            and apply to construction-related accessibility claims filed  
            on or after the date when this bill becomes law?

                                      SYNOPSIS


          In its original form and as approved by the Senate last year,  
          this bill would have allowed a person who successfully petitions  
          for a third party to be appointed as a conservator and that  
          person's attorney to be compensated by the conservatee.  On  
          January 11th of this year, the bill was amended to remove its  
          entire contents and add the current language, which is very  
          similar to last year's SB 251 (Roth), dealing with  
          construction-related accessibility claims, that was vetoed by  
          the governor. 


          According to the author, the bill is necessary because many  
          small businesses remain out of compliance with longstanding  
          state and federal disability access laws, leaving them  
          vulnerable to lawsuits.  Some of these suits, the author and  
          supporters allege (and even some of the opponents concede), are  
          brought by plaintiffs for personal financial benefit, not out of  
          a desire to improve access for disabled consumers and have  
          access barriers removed, and some of these suits are brought  
          against businesses that are willing to comply but are hampered  
          by the complexity of the law.  Disability rights advocates (and  
          this Committee) have opposed prior efforts to give defendants  
          the right to cure violations of the law after they are sued, but  
          agree with the supporters on a number of points, including that  
          many businesses are not in compliance with access laws despite  
          these laws' long-standing existence and that many lawsuits are  
          filed, some by plaintiffs seeking monetary recovery, rather than  
          improved access.  Disability advocates, in opposition to the  








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          bill, argue that they have supported prior legislation to  
          increase business awareness of access obligations, improve  
          voluntary compliance, and reward responsible behavior and that  
          those reforms should be furthered, not circumvented.  Opponents  
          argue that this bill singles out people with disabilities for  
          unprecedented obstacles to the enforcement of their civil  
          rights, deprives them of a remedy for actual violations, and  
          will deter, rather than encourage, compliance with disability  
          discrimination laws.  Moreover, opponents state that the promise  
          of the bill may be misleadingly unattainable because the  
          requirements it would impose are inconsistent with federal  
          disability discrimination law and therefore would not preclude  
          many of the lawsuits (in federal court) against which businesses  
          seek protection.


          The author of this bill asserts that additional tools are  
          necessary to protect small businesses from high-frequency  
          litigants and to encourage compliance with the 25 year-old state  
          and federal laws.  Therefore, the author proposes a number of  
          changes to the law in this bill that provide financial relief to  
          small businesses, and encourage compliance by businesses with  
          construction-related accessibility standards so that disabled  
          consumers can exercise their civil rights to fully and equally  
          access all of the public accommodations in the state.   
          Specifically, in its most significant provision, this bill, like  
          SB 251, protects a qualified business from liability for minimum  
          statutory damages in a construction-related accessibility claim  
          for the 120-day period after the business has obtained an  
          inspection of its premises by a CASp, allowing the business to  
          identify and correct violations during that period under certain  
          conditions, including the following: 1) The structure or area of  
          the alleged violation was the subject of an inspection report  
          indicating "CASp determination pending" or "Inspected by a  
          CASp"; 2) The inspection predates the filing of the claim by, or  
          receipt of a demand letter; and 3) The defendant corrects,  
          within 120 days of the date of the inspection, all  
          construction-related violations in the area or structure  
          inspected by the CASp that are noted in the CASp report and  








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          which are the basis of the claim.  Unlike SB 251, which made  
          this provision applicable to all businesses with 100 or fewer  
          employees, this bill limits the provision to those businesses  
          with 50 or fewer employees.


          Like SB 251, this bill also establishes a 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, where the defendant is a small business,  
          the defendant has, 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,  
          corrected all of the technical violations that are the basis of  
          the claim, and the claim is based on a number of specified  
          violations, such as the lack of exterior signs; the order in  
          which parking signs are placed or the exact location or wording  
          of parking signs; the color of parking signs; the color of  
          parking lot striping; faded, chipped, damaged or deteriorated  
          paint in otherwise fully compliant parking spaces and passenger  
          access aisles in parking lots; and the presence or condition of  
          detectable warning surfaces (also known as "truncated domes") 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 author proposes to add an Urgency Clause and co-authors to  
          the bill so that most of its provisions will take effect  
          immediately upon being signed into law.  The amendments specify  
          that while the "technical violations" provision and the 120-day  
          protection from liability for minimum statutory damages  
          provision take effect immediately, they only apply to complaints  
          that are filed on or after the day when this bill takes effect.   
          Supported by Consumer Attorneys of California, the Civil Justice  
          Association of California, the California Chamber of Commerce  
          and other business groups, the bill is opposed by Disability  
          Rights California.  If this bill passes out of this Committee,  








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          it will be referred to the Assembly Appropriations Committee. 




          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 (with 25 or fewer  
            employees), 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);










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










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          3)Protects a business with 50 or fewer employees 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)Requires a CASp to provide, within 30 days of the date when it  
            is requested by a qualifying business, a copy of a report  
            prepared pursuant to the provisions described in 4), above, to  
            the business that requested it.


          5)Requires a CASp to file, within ten days of inspecting a  
            business pursuant to the provisions of this bill, a notice  
            with the State Architect for listing on the State Architect's  
            Internet Web site, indicating that the CASp has inspected the  
            business, the name and address of the business, the date of  
            the filing, the date of the inspection of the business, the  
            name and license number of the CASp, and a description of the  
            area or structure inspected by the CASp.


          6)Provides that, notwithstanding any other law, a defendant who  
            claims the benefit of the reduction of minimum statutory  
            damages under this subdivision shall disclose the date and  
            findings of any CASp inspection to a plaintiff if relevant to  
            a claim or defense in an action. 


          7)Allows a defendant to assert the protection from liability for  
            minimum statutory damages described in 3), above, only once  
            for each area or structure inspected by a CASp, unless the  
            inspected area or structure has undergone modifications or  
            alterations that affect the compliance with  
            construction-related accessibility standards of those areas  
            after the date of the last inspection, and the defendant  








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            obtains an additional CASp inspection within 30 days of final  
            approval by the building department or certificate of  
            occupancy, as appropriate, regarding the modification or  
            alterations.


          8)Provides 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 that  
            are noted in the CASp report, the defendant shall not receive  
            any reduction of minimum statutory damages (allowing a  
            business that qualifies for reduced minimum statutory damages  
            may receive them for violations not noted in the CASp report).


          9)Provides an exception to 8), above, when a building permit is  
            required for the repairs which cannot reasonably be completed  
            by the defendant within 120 days and the defendant is in the  
            process of correcting the violations noted in the CASp report,  
            as evidenced by having, at least, an active building permit  
            necessary for the repairs to correct the violation that was  
            noted, but not corrected, in the CASp report and all of the  
            repairs are completed within 180 days of the date of the  
            inspection.


          10)Requires the State Architect to do the following:


             a)   Publish and regularly update, on its existing Internet  
               Web site, an easily accessible list of small businesses  
               that have filed a notice that they have obtained a CASp  
               inspection.
             b)   Develop a process by which businesses may notify the  
               State Architect of an inspection by a certified access  
               specialist indicating "CASp determination pending" or  
               "Inspected by a CASp," which shall include the date of the  
               notification, the date of the inspection, and a description  
               of the structure or area inspected.








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             c)   Develop a form for businesses to notify the public that  
               the business has obtained a CASp inspection, which shall  
               include the date of the notification, the date of the  
               inspection, and a description of the structure or area  
               inspected.


          11)Provides that the "area or structure inspected" by a CASp  
            means either the interior of the premises, the exterior of the  
            premises, or the interior and exterior of the premises.


          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.  (42 U.S.C. Section  
            12182.)
          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.  (Civil Code Section 51 et seq.  All further  
            statutory references are to the California Civil Code, unless  
            otherwise indicated.)  









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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.  (Section 54.)


          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.  (Section  
            54.1.)  


          5)Provides that a violation of the ADA also constitutes a  
            violation of Section 54.1.  A violation of Section 54.1  
            subjects a person to injunctive and actual damages - plus  
            treble actual damages but not less than $1,000, and attorney's  
            fees as the court deems proper.  (Section 55.)


          6)Provides the California Commission on Disability Access  
            (Commission), an independent state agency composed of 19  
            members, with general responsibility for monitoring disability  
            access compliance in California, and with authority to make  
            recommendations to the Legislature for necessary changes in  
            order to facilitate implementation of state and federal laws  
            on disability access.  (Gov. Code Section 8299 et seq.)


          7)Provides that upon being served with a complaint asserting a  








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            construction-related accessibility claim, a defendant may move  
            for a court stay and early evaluation conference if the  
            defendant is: (A)  Until January 1, 2018, a defendant whose  
            site had new construction or improvement between January 1,  
            2008, and January 1, 2016 and was approved pursuant to the  
            local building permit and inspection process; (B) a defendant  
            whose site had new construction or improvement that was  
            approved by a local public building department inspector who  
            is a CASp; or (C) a defendant who is a small business, as  
            described.  The stay to the construction-related accessibility  
            claim, as provided, may be for 90-days unless the plaintiff  
            has obtained temporary injunctive relief.  (Section 55.54.)  


          8)Authorizes a defendant who does not qualify for an early  
            evaluation conference pursuant to these provisions, or who  
            forgoes those provisions, to request a mandatory evaluation  
            conference, as specified, and authorizes a plaintiff to make  
            that request if the defendant does not make that request.   
            (Section 55.54.)


          9)Requires a local planning agency to employ or retain at least  
            one building inspector who is a CASp a local building  
            department to employ or retain a sufficient number of building  
            inspectors who are CASps.  (Section 55.53.)


          10)Provides that statutory damages may be recovered in a  
            construction-related accessibility claim only if a violation  
            or violations of one or more construction-related  
            accessibility standards denied the plaintiff full and equal  
            access to the place of public accommodation on a particular  
            occasion.  Existing law specifies that a plaintiff is denied  
            full and equal access only if he or she personally encountered  
            the violation on a particular occasion or was deterred from  
            accessing the public accommodation on a particular occasion.   
            (Section 55.56.)









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          11)Requires the court, in assessing liability in any action  
            alleging multiple claims for the same construction-related  
            accessibility violation on different particular occasions, to  
            consider the reasonableness of the plaintiff's conduct in  
            light of the plaintiff's obligation, if any, to mitigate  
            damages.  (Section 55.56.)


          12)Reduces a defendant's minimum liability for statutory damages  
            in a construction-related accessibility claim against a place  
            of public accommodation to $1,000 for each unintentional  
            offense if the defendant has corrected all  
            construction-related violations that are the basis of the  
            claim within 60 days of being served with the complaint and  
            other specified conditions apply, and reduces that minimum  
            liability to $2,000 for each unintentional offense if the  
            defendant has corrected all construction-related violations  
            that are the basis of the claim within 30 days of being served  
            with the complaint and the defendant is a small business, as  
            specified.  (Section 55.56(f).)


          13)Requires the Department of General Services to make a  
            biannual adjustment to financial criteria defining a small  
            business for these purposes, and to post those adjusted  
            amounts on its Internet Web site.  (Section 55.56.)


          14)Requires a commercial property owner to state on a lease form  
            or rental agreement executed on or after July 1, 2013, if the  
            property being leased or rented has undergone inspection by a  
                       CASp.  (Section 1938.)


          FISCAL EFFECT:  As currently in print this bill is keyed fiscal.


          COMMENTS:  Under the twenty-five year old federal Americans with  








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          Disabilities Act (ADA), a business that constitutes a place of  
          public accommodation (e.g., many places of lodging,  
          entertainment, recreation, restaurants, bars, theaters, stores,  
          health clubs, etc.) is prohibited from discriminating on the  
          basis of disability if its operations affect interstate  
          commerce.  Prohibited discrimination can take a number of forms  
          - e.g., denial of participation in the facility, or a service,  
          benefit, or good of the business; denial of equal participation  
          in a good, service, or facility; or provision of a different or  
          separate facility, service or good (unless necessary to provide  
          services and are as effective as that provided to others).   
          Government facilities are also covered by the access obligations  
          of the ADA.


          According to the California Supreme Court, "In 1992, shortly  
          after passage of the ADA, the Legislature amended the state's  
          disability protections 'to strengthen California law in areas  
          where it is weaker than the [ADA] and to retain California law  
          when it provides more protection for individuals with  
          disabilities than the [ADA].'  Two overlapping laws, the Unruh  
          Civil Rights Act ( 51) and the Disabled Persons Act (  
          54-55.3), are the principal sources of state disability access  
          protection."  (Jankey v. Lee (2012) 55 Cal.4th 1038, 1044  
          [Citation to internal quotation deleted].)  As a result of  
          incorporating the ADA into the state's Unruh Civil Rights, a  
          plaintiff who prevails in a construction-related accessibility  
          claim, like all plaintiffs in other civil rights cases, is  
          entitled to minimum statutory damages of $4,000 per violation  
          (although later amendments to Unruh, affecting only disabled  
          plaintiffs in only construction-related disability claims,  
          reduced the minimum statutory damages to only $1,000 in some  
          cases, such as when a small business previously obtained a CASp  
          inspection).


          Therefore, since 1992, public accommodations in California have  
          been required to comply with not only the ADA, but also with the  
          state's Unruh Act, which incorporates the ADA into its  








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          provisions and makes a violation of the ADA punishable as a  
          violation of Unruh.  (Section 51.)  All violations of Unruh are  
          subject to statutory damages of at least $4,000 per violation,  
          except some cases where the violation is based on a  
          construction-related accessibility claim, in which case lower  
          damages (a minimum of $1,000, or $2,000, depending on the  
          circumstances of the case) apply.  


          Media coverage and objective data give different perspectives  
          about the magnitude of the problem sought to be addressed by  
          this bill.  There has been widespread media coverage about the  
          problem of what has been described as "serial ADA litigation."   
          For example, last summer, the Modesto Bee and the Merced  
          Sun-Star reported a series of articles, describing "how the  
          Americans with Disabilities Act has been misused to create  
          profit centers for opportunistic lawyers.  These attorneys  
          recruit people - some with minor disabilities, some with  
          criminal records, some here illegally - to visit small  
          businesses in hopes of spotting the most minute ADA violations.   
          The lawyers then demand $4,000 for each violation."  


          It is certainly true that a handful of highly litigious  
          plaintiffs have targeted small businesses, especially those  
          without the financial resources and sophistication to challenge  
          such lawsuits on their merits.  According to data compiled by  
          the California Commission on Disability Access, more than half  
          (54 percent) of the construction-related accessibility  
          complaints filed between 2012 and 2014 were filed by two law  
          firms; and 46 percent of all complaints were filed by just 14  
          parties.  These figures indicate that the vast majority of all  
          construction-related accessibility claims filed in this state  
          are initiated by a very small number of plaintiffs (and their  
          attorneys).  As a result, small businesses are justifiably  
          fearful and angry about being sued, while disabled consumers are  
          viewed with blame or suspicion, even though they have a right to  
          full and equal access and should be able to expect all public  
          accommodations to comply with the 25-year old requirements of  








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          the Americans with Disability Act.  Disabled consumers just want  
          to go about their daily lives without difficulty, discomfort, or  
          embarrassment, and with the basic dignity that comes from being  
          able to go to the same places and have the same access to  
          services as non-disabled persons.  The vast majority would only  
          resort to the extreme measure of filing a lawsuit in response to  
          the most egregious, humiliating, and pervasive violations of  
          their rights.  It is unfair for business owners or policymakers  
          to assume that disabled persons are somehow trying to "game the  
          system" or take advantage of small businesses when they expect  
          compliance with the ADA.  Compliance should be something they  
          can count on as they go about their daily lives.


          But it is also important to put these figures into perspective.   
          According to data compiled by the Commission, from January 2014  
          until January 2015, there were 3,468 demand letters and  
          complaints sent or filed in the state.  In contrast, according  
          to the Judicial Council of California, a total of 800,091  
          lawsuits were filed in the state in 2013 (the most recent year  
          available).  Meanwhile, California has approximately 3.3 million  
          small businesses.  These figures mean that less than one percent  
          of small businesses (and a far smaller percentage of all  
          businesses) were sued in 2014 for access violations; and the  
          3,468 demand letters or complaints regarding accessibility  
          violations represent less than one-half of one percent (.43%) of  
          the total number of lawsuits filed in the state.  And the actual  
          percentage is even smaller, because the Commission figure  
          includes demand letters that are not complaints. 


          What can be done or should be done about (the small number of)  
          plaintiffs and attorneys who file large numbers of Unruh Act-ADA  
          lawsuits?  The Ninth Circuit Court of Appeals addressed this  
          issue in Molski v. Evergreen Dynasty Corp. (9th Cir. 2007) 500  
          F.3d 1047.  Molski, the plaintiff, was paralyzed from the chest  
          down, needed a wheelchair to get around, and filed about 400  
          lawsuits in the federal courts within the districts in  
          California.  (Id. at p. 1051.)  Upon motion of the defendant  








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          businesses (including the named defendant, a restaurant) the  
          district court declared Molski a vexatious litigant and granted  
          the defendants' request for a pre-filing order (requiring court  
          approval before Molski could file additional lawsuits).  (Ibid.)  
           The Ninth Circuit acknowledged that "pre-filing orders are an  
          extreme remedy that should rarely be used" and that courts  
          "should not enter pre-filing orders with undue haste because  
          such sanctions can tread on a litigant's due process right of  
          access to the courts."  (Id. at p. 1057.)  Nevertheless, the  
          Ninth Circuit upheld the order, finding that it was within the  
          district court's power, "In light of the district court's  
          finding that Molski did not suffer the injuries he claimed . . .  
          to conclude that the large number of complaints filed by Molski  
          containing false or exaggerated allegations of injury were  
          vexatious" and the pre-filing requirement could be issued.  (Id.  
          at p. 1059.)


          At the same time, there is no evidence that lawsuits filed by  
          high-frequency litigants, such as Molski, are "frivolous."  The  
          Merriam-Webster Dictionary defines "frivolous" as "of little  
          weight or importance," or "having no sound basis (as in fact or  
          law) ."  In other words, a lawsuit alleging  
          a violation of the Unruh Act because of a denial of access would  
          only be "frivolous" if it had no basis in the law (i.e. it did  
          not state an actual violation).  In fact, there is no evidence  
          that the complaints which are filed are without merit.   
          According to data collected by the Commission, most complaints  
          identify multiple access violations.  For example, of the cases  
          filed in July 2014, most complaints identified multiple or  
          significant single violations, such as missing grab bars.  Only  
          two out of 201 complaints reviewed identified a single  
          violation, such as a soap or seat cover dispenser being too  
          high.  




          While the Molski case shows that existing law provides  








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          businesses with a way to deal with a vexatious litigant, the  
          process is difficult.  As the Ninth Circuit Court of Appeals  
          observed in Molski, obtaining a "pre-filing order" is an  
          "extreme remedy that should rarely be used."  (Molski v.  
          Evergreen Dynasty Corp., supra, at p. 1059.)  The author of this  
          bill (like the Committee, when it authored last year's  
          high-frequency litigant reforms in AB 1521) observes that other  
          tools are necessary to protect small businesses from  
          high-frequency litigants and encourage compliance with the 25  
          year-old state and federal laws.  Therefore, the authors propose  
          a number of changes to the law in this bill that provide  
          financial relief to businesses, and encourage businesses to  
          obtain CASp inspection and comply with construction-related  
          accessibility standards so that disabled consumers can exercise  
          their rights to fully and equally access public accommodations  
          in the state.


          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 (with 25 or fewer employees);  
          (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.








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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 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  








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          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.  Therefore, it is appropriate to allow a  
          plaintiff to overcome the presumption with evidence showing, by  
          a preponderance of the evidence, that he or she did, in fact,  
          experience difficulty, discomfort, or embarrassment on the  
          particular occasion as a result of one or more of the technical  
          violations listed above.


          There are aspects of this provision that are troubling to the  
          Committee.  First, it could be interpreted by some that these  
          "technical violations" are not real violations of the ADA, when  
          they clearly are.  Second, this provision may provide a false  
          sense of protection from liability to a business because even if  
          a business met the conditions precedent and qualified for this  
          presumption by correcting these violations within 15 days, the  
          business could still be sued in federal court during that 15-day  
          period.  As the American Civil Liberties Union of California,  
          for example, observes that "this offer of immunity will be  
          highly misleading to the businesses that obtain a CASp  
          inspection because it will not prevent law suits - including  
          attorney's fees and equitable relief - brought under the federal  
          Americans with Disability Act (ADA), which of course the state  
          is powerless to affect."


          Third, this provision establishes a first precedent that a  
          business is not liable for violations about which the business  
          is notified and has an opportunity to cure.  This Committee has  
          consistently rejected such proposals.  Finally, this provision  
          opens the door to the possibility that the Legislature may  
          expand the list of "technical violations" in the future to the  








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          point that they are no longer technical and are substantial.   
          However, this list of technical violations is carefully,  
          deliberately, and narrowly crafted in an effort to focus on  
          those violations of construction-related accessibility standards  
          which are more about formal than substantive compliance with  
          those standards and reportedly lead to "frivolous" complaints  
          that are designed to extract quick settlements from business  
          owners, rather than to improve access.


          According to the author, this provision seeks to address the  
          problem of high-frequency litigants who file  
          construction-related accessibility lawsuits based upon  
          conditions usually present on the exterior of premises, such as  
          signs that are posted in an incorrect manner, faded or chipped  
          striping of parking spaces, and signs that are the wrong color.   
          The current wording of this provision, identical to the language  
          in last year's SB 251, was developed with substantial input from  
          the Committee and provides specificity and guidance about the  
          specific types of minor violations that are considered  
          "technical."  It allows a plaintiff to prove that one or more of  
          these "technical violations" did, in fact, cause difficulty,  
          discomfort or embarrassment for the purpose of awarding the  
          plaintiff minimum statutory damages.  Because the presumption is  
          rebuttable and the language is very specific, the technical  
          violation provision appears to be sufficiently limited that it  
          will help small businesses avoid paying minimum statutory  
          damages to high-frequency litigants who sue them for truly  
          trivial and inconsequential matters without violating the access  
          rights of disabled consumers in an egregious and unacceptable  
          manner.


          Protection for businesses that employ 50 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  








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          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 all of the following  
          conditions are satisfied:


          a)The defendant is a business that has employed 50 or fewer  
            employees on average over the past three years, or for the  
            years it has been in existence if less than three years, as  
            evidenced by wage report forms filed with the Economic  
            Development Department.
          b)The structure or area of the alleged violation was the subject  
            of an inspection report indicating "CASp determination  
            pending" or "Inspected by a CASp."


          c)The inspection predates the filing of the claim by, or receipt  
            of a demand letter from, the plaintiff regarding the alleged  
            violation of a construction-related accessibility standard,  
            and the defendant was not on notice of the alleged violation  
            prior to the CASp inspection. 


          d)Within ten days of the date of the inspection, the CASp files  
            a notice with the State Architect for listing on the State  
            Architect's Internet Web site, stating that the defendant has  
            obtained a CASp inspection, the date of the filing, and the  
            date of the inspection. 


          e)The CASp posts a notice, in a form prescribed by the State  
            Architect, in a conspicuous location within five feet of all  
            public entrances to the building on the date of the inspection  
            and the defendant kept it in place until the earlier of the  
            following: 120 days after the date of the inspection, or the  
            date when all of the construction-related violations in the  
            area or structure inspected by the CASp are corrected.










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          f)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 protection from liability for minimum  
          statutory damages only once for each area or structure inspected  
          by a CASp.


          Disability Rights California, writing in opposition to the bill,  
          states the following about this provision: 


               While better than earlier versions of the bill, which  
               provided protections for businesses with up to 100  
               employees, this bill still goes too far because it provides  
               protections to a majority of businesses in the state, over  
               96% of businesses.  This extension is too expansive and  
               should be stricken from the bill.  These businesses are not  
               small.  They have the resources to identify and correct  
               access violations and when they do not do so, they should  
               be responsible for civil rights damages. 


          There are aspects of this provision that are also deeply  








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          troubling to the Committee.  First, it is unprecedented for a  
          civil rights law, including the Unruh Act, to excuse violations  
          of the law for a specific period of time on the basis that a  
          defendant is trying (but not succeeding) to comply with the law.  
           Second, unlike virtually all other past "reforms" to state law  
          regarding construction-related accessibility standards, this  
          provision applies to relatively large businesses.  Although all  
          businesses that obtain a CASp inspection are entitled to a  
          reduction of minimum statutory damages ($1,000 instead of $4,000  
          per violation), all of the other past reforms designed to reduce  
          damages and provide early evaluation conferences have applied to  
          small businesses with 25 or fewer employees.  Also, this  
          provision - like the one dealing with "technical" violations -  
          may provide illusory relief to businesses.  Even if a business  
          met the conditions precedent and qualified for this 120-day  
          amnesty period by correcting all violations noted in a CASp  
          report within 120 days of the CASp inspection, the business  
          could still be sued in federal court during that period.  


          Author's proposed amendments.  The author proposes to add an  
          Urgency Clause to the bill so that most of the provisions of the  
          bill will take effect immediately upon being signed into law.   
                                                                                       The amendments specify that while the "technical violations"  
          provision and the 120-day protection from liability for minimum  
          statutory damages provision take effect immediately, they only  
          apply to complaints that are filed on or after the day when this  
          bill takes effect.  The amendments also add co-authors and make  
          minor technical clarifications. 


          Differences between this bill and last year's SB 251 (Roth).   
          While most of the provisions in this bill are identical to SB  
          251, there are a number of differences between the two bills:


           Reporting information about complaints and settlements to  
            CCDA.  Section 55.32, which requires attorneys to report  
            certain information and send certain documents to the State  








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            Bar and the CCDA, was amended in last year's AB 1521.  AB 1521  
            incorporated SB 251's changes to that section, making SB 251's  
            changes unnecessary.  Therefore, Section 55.32 is not amended  
            by or included in this bill.


           Tax credit provision.  In his message regarding SB 251 and a  
            number of other bills with tax credit provisions, Governor  
            Brown explained, "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."  In light of the governor's veto message, the  
            tax credit provision that was in SB 251 is not included in  
            this bill.


           Reduction in the size of businesses eligible for 120-day  
            protection from liability for minimum statutory damages.  A  
            number of Members raised concerns (and cast No votes)  
            regarding SB 251 when it was on the Assembly Floor on the  
            basis that it gave the 120-day protection from liability for  
            minimum statutory damages to businesses with up to 100  
            employees, making it applicable to large businesses with the  
            resources to obtain CASp inspections and make repairs to their  
            properties without this strong incentive to do so.  In  
            response to those concerns, SB 269 reduces the size of  
            businesses which are eligible for this protection to those  
            with 50 or fewer employees.  Fifty or fewer employees seems to  
            be a reasonable middle ground between 25 employees (used in  
            most past reforms designed to reduce damages and provide early  
            evaluation conferences) and 100 employees (used in SB 251),  
            more narrowly tailoring this provision to apply to the  
            businesses which are most likely to need it.


           Clarification about one-time eligibility for 120-day  
            protection from liability for minimum statutory damages,  
            allowing inspections and repairs to be made.  As explained  








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            above, this bill allows a defendant to assert the protection  
            from liability for minimum statutory damages only once for  
            each area or structure inspected by a CASp.  The wording of  
            this provision in SB 251 was somewhat vague because it used  
            the phrase "reduction of liability" when liability for minimum  
            statutory damages was eliminated, not reduced, during the  
            120-day period.  In response to concerns about the wording of  
            SB 251, this provision has been clarified in SB 269.


           An Urgency Clause, providing that most of the provisions in  
            the bill take effect immediately, as described above. 


          Related pending legislation.  AB 52 (Gray) provides, among other  
          things, that the defendant's maximum liability for statutory  
          damages in a construction-related accessibility claim against a  
          place of public accommodation is $1,000 for each offense if the  
          defendant has corrected all construction-related violations  
          within 180 days of being served with the complaint.  This bill  
          is currently in this Committee as a two-year bill.


          AB 54 (Olsen) As introduced last year, established a  
          controversial notice and right-to-cure procedure limited to  
          construction-related accessibility standards that had changed  
          within the previous three years (all of which were deleted from  
          the bill by this Committee) and a tax credit of up to $250 for  
          business owners who spend money to bring a place of public  
          accommodation into compliance with construction-related  
          accessibility standards (which was approved by this Committee.   
          On January 4, 2016, it was amended to delete the tax credit  
          provisions and replace the contents of the bill with  
          substantially the same language contained in the enrolled  
          version of SB 251 (Roth). As most recently amended on January  
          13th, the bill no longer seeks to enact the majority of the  
          language from last year's SB 251 and merely facilitates more  
          efficient reporting of information about demand letters and  
          complaints to CCDA. This bill is currently in the Assembly  








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          Appropriations Committee.


          AB 1468 (Baker) seeks to provide, among other things, that a  
          public entity's possession of a close out letter from the State  
          Architect certifying that the buildings, facilities, and other  
          places meet the applicable construction-related accessibility  
          standards of the ADA, serves as presumptive evidence of  
          compliance with the ADA.  This bill is currently in this  
          Committee as a two-year bill. 


          SB 67 (Galgiani) seeks to exempt small businesses from statutory  
          damage liability in connection with a construction-related  
          accessibility claim and to extend the period for correcting  
          construction-related violations that are the basis of a claim  
          from 60 days to 120 days of being served with the complaint, for  
          purposes of reducing a defendant's minimum statutory damage  
          liability to $1,000.  This bill is currently in Senate Judiciary  
          as a two-year bill.


          Related previous legislation.  AB 1230 (Gomez), Chapter 787,  
          Statutes of 2015, establishes the California Americans With  
          Disabilities Act Small Business Capital Access Loan Program  
          within the California Capital Access Loan Program in order to  
          create a self-sustaining program to provide loans to assist  
          small businesses in financing the costs of projects that alter  
          or retrofit existing small business facilities according to  
          certain criteria, to comply with the ADA.  


          AB 1342 (Steinorth) would have provided additional revenue to  
          the California Commission on Disability Access.  In addition,  
          the bill would have required a commercial property owner to  
          state on every lease form or rental agreement executed after  
          July 1, 2016, whether or not the property being leased has  
          undergone inspection by a CASp, and would have required a  
          commercial property owner to provide additional information to  








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          the tenant or lessor about the condition of the rented or leased  
          property.  AB 1342 was vetoed by the Governor.


          AB 1521 (Assembly Committee on the Judiciary), Chapter 755,  
          Statutes of 2015, establishes new pre-filing procedures for  
          "high-frequency litigants" and provides new tools for businesses  
          to use when they are served with complaints alleging violations  
          of construction-related accessibility claims.


          SB 251 (Roth), among other things, would have established 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  
          certain conditions are satisfied.  This would have protected 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, provided that all violations were corrected within the  
          120 period and other conditions were satisfied.  The bill also  
          would have provided a tax credit for eligible expenditures to  
          increase accessibility.  SB 251 was vetoed by the Governor.


          REGISTERED SUPPORT / OPPOSITION:




          Support


          Associated Builders and Contractors - San Diego Chapter


          California Ambulance Association









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                                                                    Page  28






          California Business Properties Association


          California Chamber of Commerce


          Civil Justice Association of California


          Consumer Attorneys of California


          Southwest California Legislative Council




          Opposition


          American Civil Liberties Union of California


          Disability Rights California




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
















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