BILL ANALYSIS Ó
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|SENATE RULES COMMITTEE | SB 269|
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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,
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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).)
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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;
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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.
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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
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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
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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
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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
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Prepared by:Nichole Rapier / JUD. / (916) 651-4113
4/22/16 12:32:12
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