BILL ANALYSIS                                                                                                                                                                                                    

                                                                     SB 269  

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          Date of Hearing:   April 13, 2016


                               Lorena Gonzalez, Chair

          SB 269  
          (Roth) - As Amended January 25, 2016

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          Urgency:  Yes State Mandated Local Program:  YesReimbursable:   


          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  


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            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  

          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:


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             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,


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             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  

          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  

          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.


          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  


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            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)  

            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.


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          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)