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  ****