BILL ANALYSIS Ó ----------------------------------------------------------------- |SENATE RULES COMMITTEE | SB 269| |Office of Senate Floor Analyses | | |(916) 651-1520 Fax: (916) | | |327-4478 | | ----------------------------------------------------------------- UNFINISHED BUSINESS Bill No: SB 269 Author: Roth (D) and Vidak (R), et al. Amended: 1/25/16 Vote: 27 - Urgency PRIOR VOTES NOT RELEVANT ASSEMBLY FLOOR: 79-0, 4/21/16 (Consent) - See last page for vote SUBJECT: Disability access SOURCE: Author DIGEST: This bill makes various changes to the law as it pertains to construction-related accessibility claims. Assembly Amendments delete the Senate version of this bill relating to conservator appointments and instead add the current language relating to construction-related accessibility claims, and also add an urgency clause. ANALYSIS: Existing law: 1)Provides, under the Americans with Disabilities Act (ADA), that no individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, SB 269 Page 2 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. Sec. 12182.) 2)Declares, under the Unruh Civil Rights Act, 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, and provides that a violation of the ADA also constitutes a violation of state law. (Civ. Code Sec. 51 et seq.) 3)Requires the State Architect to establish the Certified Access Specialist (CASp) Program and develop the specified criteria to have a person qualify as a CASp. (Gov. Code Sec. 4459.5 ; Civ. Code Sec. 55.52.) 4)Prohibits a demand letter from including a request or demand for money or an offer or agreement to accept money. (Civ. Code Sec. 55.31.) 5)Provides that statutory damages may be recovered if the plaintiff was denied full and equal access to the place of public accommodation, as specified. (Civ. Code Sec. 55.56.) 6)Reduces a defendant's minimum liability for statutory damages to $1,000 for each unintentional offense if the defendant has had a CASp inspection. (Civ. Code Sec. 55.56(f)(1).) 7)Reduces a defendant's minimum liability for statutory damages to $2,000 if the defendant has corrected all violations, as specified, within 30 days of being served with the complaint and the defendant is a small business, as defined. (Civ. Code Sec. 55.56(f)(2).) SB 269 Page 3 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, 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); 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; SB 269 Page 4 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 a preponderance of the evidence showing 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. 3)Protects certain businesses 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 CASp, under specified conditions. 4)Makes a number of related technical and enabling changes to the law. Background Since 1969, persons with disabilities have enjoyed protection under Civil Code Sections 54 and 54.1, which entitle individuals with disabilities and medical conditions to full and free access to and use of roadways, sidewalks, buildings and facilities open to the public, hospitals and medical facilities, and housing. SB 269 Page 5 After Congress enacted the ADA in 1990, the state made a violation of the ADA also a violation of Section 54 or 54.1. A violation of the ADA also constitutes a violation of California's Unruh Civil Rights Act, either of which subject a person to actual damages incurred by an injured party, plus treble actual damages, but in no event less than $4,000. The California Legislature has taken further steps to ensure disability access laws are complied with. SB 262 (Kuehl, Chapter 872, Statutes of 2003) established in the Division of the State Architect, a voluntary "access specialist certification program" in order to assist business and property owners in complying with ADA and state access laws. Since that time, several bills have been introduced that would have precluded an action for damages for a de minimus violation, allowing only injunctive relief and attorney's fees. All of those bills failed passage in the Judiciary Committees of their respective houses. In 2012, Senators Steinberg and Dutton authored SB 1186 (Chapter 383, Statutes of 2012) which sought to comprehensively address continued issues with disability litigation. SB 1186 created a number of protections for small businesses and defendants who had, prior to a claim being filed, sought out a CASp inspection. These protections included reduced minimum statutory damages, early evaluation conferences, and mandatory stays of court proceedings while the violations were corrected. That bill also prevented the stacking of multiple claims to increase damages, banned pre-litigation demands for money, and increased data collection regarding alleged access violations. This bill, seeking to further promote compliance among small businesses by allowing a business owner 90 days from the date of a CASp inspection to fix violations before being subject to liability, also protects small businesses from liability for certain violations if the business corrected the violation within 15 days of receiving notice of the potential violation. This bill also creates tax incentives for businesses to correct violations, and requires the State Architect and the California SB 269 Page 6 Commission on Disability Compliance to post specified information to their respective Web sites for the purpose of educating the public on disability access laws. FISCAL EFFECT: Appropriation: No Fiscal Com.:YesLocal: Yes According to the Assembly Appropriations Committee: 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. SUPPORT: (Verified4/22/16) American Society of Interior Designers Apartment Association, California Southern Cities Apartment Association of Orange County Associated Builders and Contractors - San Diego Chapter CalAsian Chamber of Commerce California Ambulance Association California Apartment Association California Business Properties Association California Chamber of Commerce California Grocers Association California Hotel and Lodging Association SB 269 Page 7 California Manufacturers and Technology Association California Political Consulting Group California Retailers Association Civil Justice Association of California Consumer Attorneys of California CSAC Excess Insurance Authority East Bay Rental Housing Association Family Business Association of California Greater Bakersfield Chamber of Commerce Greater Riverside Chamber of Commerce League of California Cities Metro Chamber National Association of Theatre Owners Association National Federation of Independent Business Nor Cal Rental Property Association North Orange County Chamber North Valley Property Owners Association Pacific Advocacy Group Santa Maria Valley Chamber of Commerce Visitor & Convention Bureau South Lake Tahoe Chamber of Commerce Southwest California Legislative Council State of California Auto Dismantlers Association Torrance Area Chamber of Commerce OPPOSITION: (Verified4/22/16) American Civil Liberties Union of California Disability Rights California California Building Officials Certified Access Specialist Institute ARGUMENTS IN SUPPORT: The California Chamber of Commerce writes in support: SB 269 is a balanced approach between preserving the civil rights of those who are disabled to ensure their access to all public accommodations, while limiting the number of SB 269 Page 8 frivolous lawsuits threatened or filed against businesses that do not improve accessibility. SB 269 seeks to incentivize businesses to proactively take steps to become accessible by providing them with 120 days from receipt of a CASp report to resolve any violations identified without being subject to the statutory penalties or litigation costs. This proposal will assist businesses who are trying to ensure they are compliant from being subject to frivolous claims or litigation. ARGUMENTS IN OPPOSITION: 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. ASSEMBLY FLOOR: 79-0, 4/21/16 AYES: Achadjian, Alejo, Travis Allen, Arambula, Atkins, Baker, Bigelow, Bloom, Bonilla, Bonta, Brough, Brown, Burke, Calderon, Campos, Chang, Chau, Chávez, Chiu, Chu, Cooley, Cooper, Dababneh, Dahle, Daly, Dodd, Eggman, Frazier, Beth Gaines, Gallagher, Cristina Garcia, Eduardo Garcia, Gatto, Gipson, Gomez, Gonzalez, Gordon, Gray, Grove, Hadley, Harper, Roger Hernández, Holden, Irwin, Jones, Jones-Sawyer, Kim, Lackey, Levine, Linder, Lopez, Low, Maienschein, Mathis, Mayes, McCarty, Medina, Melendez, Mullin, Nazarian, Obernolte, O'Donnell, Olsen, Patterson, Quirk, Rodriguez, Salas, Santiago, Steinorth, Mark Stone, Thurmond, Ting, Wagner, Waldron, Weber, Wilk, Williams, Wood, Rendon NO VOTE RECORDED: Ridley-Thomas SB 269 Page 9 Prepared by:Nichole Rapier / JUD. / (916) 651-4113 4/22/16 12:32:12 **** END ****