BILL ANALYSIS Ó SB 269 Page 1 Date of Hearing: April 13, 2016 ASSEMBLY COMMITTEE ON APPROPRIATIONS Lorena Gonzalez, Chair SB 269 (Roth) - As Amended January 25, 2016 ----------------------------------------------------------------- |Policy |Judiciary |Vote:|10 - 0 | |Committee: | | | | | | | | | | | | | | |-------------+-------------------------------+-----+-------------| | | | | | | | | | | | | | | | ----------------------------------------------------------------- Urgency: Yes State Mandated Local Program: YesReimbursable: No SUMMARY: This bill makes numerous changes to provide relief to small businesses with respect to construction-related accessibility litigation and to encourage compliance with construction-related accessibility standards. Specifically, this bill: 1)Establishes a presumption, for construction-related SB 269 Page 2 accessibility claims filed after the effective date of this bill, that certain "technical violations," as specified, do not cause a person difficulty, discomfort, or embarrassment for the purpose of awarding minimum statutory damaged in a construction-related disability claim, if the defendant is a small business (25 employees or less) that has corrected the violations within 15 days of receipt of the claim. 2)Protects a business from liability for minimum statutory damages in a construction-related disability claim, filed after the effective date of this bill, during the 120-day period after the business obtains in inspection, which predates the claim, by a Certified Accessibility Specialist (CASp) under specified conditions, including: a) That the business, as of the date of inspection, employed 50 or fewer employees on average over the prior three years, and b) That the business corrects, within 120 days of the CASp inspection, all construction-related violations noted in the CASp's inspection report that are the bases of the claim. 3)Requires a CASp to file, within ten days of inspecting a business pursuant to the provisions of this bill, a specified notice with the State Architect for listing on the State Architect's website, indicating that the CASp has inspected the business. 4)Requires the State Architect to do the following: SB 269 Page 3 a) Publish and regularly update, on its website, 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, as specified, of an inspection by a certified access specialist. c) Develop a form for businesses to notify the public that the business has obtained a CASp inspection. d) Require each applicant for CASp certification and recertification to provide the State Architect with information about location (city, county) where they intend to provide, or have provided services, and requires the State Architect to post this information on its website. 5)Requires local building departments, including charter cities and counties, to develop and provide, to applicants for a building permit, materials relating to the requirements of the Americans with Disabilities Act (ADA) and a notice that approval of a permit does not signify compliance with the ADA. Agencies may, in lieu of developing their own materials, provide applicants with materials developed by the California Commission on Disability Access (CCDA). 6)Requires local building departments, including charter cities and counties, to expedite review of a building permit if: a) The applicant provides a copy of a disability access inspection certification provided by a CASp, SB 269 Page 4 b) The project is necessary to address either an alleged violation of a construction-related accessibility standard or a violation noted in the inspection, and c) The applicant has had a CASp review any project plans for compliance with construction-related accessibility standards. FISCAL EFFECT: 1)Minor ongoing costs (under $20,000) to the State Architect associated with updating the existing CASp database to provide a mechanism to capture the required information, developing a process and form documents for the new notice requirements. The requirement to collect and post the service locations of CASps is a minor and absorbable cost, as the State Architect already collects and posts this information on a voluntary basis. 2)Potential significant non-state-reimbursable costs for local building departments to provide expedited plan review for qualifying permit applications. Departments may have to adjust their fee schedules in order to cover these additional costs. COMMENTS: 1)Background and Purpose. Under the twenty-five year old federal 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. Since 1992, public accommodations in California have been required SB 269 Page 5 to comply with not only the ADA, but also with the state's Unruh Act, which incorporates the ADA into its provisions and makes a violation of the ADA punishable as a violation of Unruh. 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. There has been widespread media coverage about the problem of what has been described as "serial ADA litigation." A handful of highly litigious plaintiffs have in fact 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%) 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. The author of this bill contends that additional tools are necessary to protect small businesses from high-frequency litigants and encourage compliance with the 25-year-old state and federal laws. The author therefore proposes a number of changes as described above to provide relief to small 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. SB 269 Page 6 2)Prior Legislation. In 2015, SB 251 (Roth) included provisions almost identical to this bill. The Governor vetoed SB 251 because it also contain provisions providing a tax credit, which are not included in SB 269. AB 1521 (Assembly Committee on the Judiciary), Chapter 755, Statutes of 2105, enacted new pre-filing procedures and an additional filing fee for "high-frequency litigants" and provided new tools for businesses to use when they are served with complaints alleging violations of construction-related accessibility claims. 3)Opposition. The California Building Officials (CALBO) are opposed to the provisions requiring expedited plan reviews, arguing that "mandating tiered levels of services creates challenges for local agencies to provide fair and equitable service to all permit applicants." Analysis Prepared by:Chuck Nicol / APPR. / (916) 319-2081