BILL ANALYSIS Ó
SB 269
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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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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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