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
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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
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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
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:
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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
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
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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)
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.
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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)
319-2081