BILL ANALYSIS                                                                                                                                                                                                    Ó





                             SENATE JUDICIARY COMMITTEE
                         Senator Hannah-Beth Jackson, Chair
                             2015-2016  Regular  Session


          SB 1406 (Mendoza)
          Version: February 19, 2016
          Hearing Date:  April 19, 2016
          Fiscal: Yes
          Urgency: No
          NR


                                        SUBJECT
                                           
                Construction-related accessibility:  public entities

                                      DESCRIPTION  

          This bill would require an attorney who sends or serves a  
          complaint alleging a construction-related accessibility  
          violation against a public entity to send a copy of the  
          complaint and submit the notification of judgment, settlement,  
          or dismissal to the California Commission on Disability Access,  
          as specified.  

                                      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.  
          After Congress enacted the ADA in 1990, the state made a  
          violation of the ADA also constitute a violation of Section 54  
          or 54.1 and 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, Ch.  
          872, Stats. 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  








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          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 (Ch.  
          383, Stats. 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 Certified Access  
          Specialist (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.


                                CHANGES TO EXISTING LAW
           
           Existing federal law  , the Americans with Disabilities Act (ADA),  
          provides that no individual shall be discriminated against on  
          the basis of disability in the full and equal enjoyment of the  
          goods, 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.)

           Existing law  , the Unruh Civil Rights Act, declares 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 entitles persons to $4000 minimum statutory  
          damages for violations of Unruh. (Civ. Code Sec. 51 et seq.)  

           Existing law  provides that individuals with disabilities or  
          medical conditions have the same right as the general public to  
          the full and free use of the streets, highways, sidewalks,  
          walkways, public buildings, medical facilities, including  
          hospitals, clinics and physicians' offices, public facilities,  
          and other public places.  It also provides that a violation of  
          an individual's rights under the ADA constitutes a violation of  







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          state law.  (Civ. Code Secs. 54, 54.1.)

           Existing law  provides that a violation of the ADA also  
          constitutes a violation of Sections 54 or 54.1, and entitles a  
          prevailing party to recover reasonable attorney's fees.  (Civ.  
          Code Sec. 55.)

           Existing law  prohibits a demand letter from including a request  
          or demand for money or an offer or agreement to accept money,  
          unless the claim involves a physical injury and special damages,  
          and provides that a violation of this provision constitutes  
          cause for attorney discipline. (Civ. Code Sec. 55.31.)  
           
          Existing law  requires, until January 1, 2019, an attorney to  
          submit a copy of any demand letter to the Commission and the  
          State Bar, and to submit a copy of a complaint to the  
          Commission, and subjects the attorney to possible disciplinary  
          action for violations of this requirement.  (Civ. Code Sec.  
          55.32.)
          
           This bill  would require an attorney who sends or serves a  
          complaint alleging a construction-related accessibility claim  
          against a public entity to send a copy of the complaint and  
          submit the notification of judgment, settlement, or dismissal to  
          the Commission within five business days. 

                                        COMMENT
           
           1.Stated need for the bill
           
          According to the author:

            In recent years, there has been an increase in the number of  
            lawsuits against community colleges citing  
            construction-related accessibility violations. These types of  
            lawsuits can result in facility modifications and upgrades  
            that are not in alignment with existing facilities transition  
            plans, ignore the availability of funding for repairs, and  
            instead put a strain on a district's general fund, thereby  
            affecting programs and services offered to students.  In  
            addition to the cost associated with the repairs, community  
            colleges have incurred significant costs from the legal fees  
            associated with these lawsuits. 

            SB 1406 seeks to accurately track the number of lawsuits that  







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            impact the California Community Colleges and K-12 school  
            districts to better understand the problem, and the outcome of  
            the lawsuits. This bill requires an attorney who serves a  
            complaint alleging a construction-related accessibility claim  
            against a public entity, to send a copy of the complaint to  
            the California Commission on Disability Access. The attorney  
            would also be required to submit the notification of  
            judgement, settlement, or dismissal to the Commission.

           2.Increased data collection
           
          Existing law requires attorneys who serve demand letters and/or  
          file complaints alleging violations of any construction-related  
          accessibility standard, to send a copy of the complaint to the  
          California Commission on Disability Access (Commission) within  
          five business days of sending or serving the complaint.  
          Additionally, the attorney must notify the Commission of  
          judgment, settlement, or dismissal of the claim or claims  
          alleged in the complaint within five business days.  (Civ. Code  
          Sec. 55.32.)  This bill would additionally require an attorney  
          who files a complaint alleging any violation of a  
          construction-related accessibility standard against a public  
          entity to send a copy of that complaint to the Commission within  
          five days, and additionally report to the Commission: (1) the  
          date of the judgment, settlement, or dismissal; (2) whether or  
          not the violations alleged in the complaint were remedied after  
          the plaintiff filed a complaint; and (3) if the violations  
          alleged in the complaint were not remedied, whether or not  
          another favorable result was achieved.

          The Rancho Santiago Community College District (RSCCD), sponsor,  
          argues that "public entities, such as RSCCD, receive funding  
          from the State, local tax revenue, and fees paid by the  
          students. Therefore, the cost [of these law suits] is ultimately  
          burdened by the classroom, students, and day-to-day teaching  
          necessities." 

          A number of groups from the disability community, expressing  
          concern over this bill, write: 

            First, CCDA was set up to be a bridge between business and  
            disability community and to deal with alleged attorney and  
            plaintiff "abuse" of mom and pop businesses; particularly on  
            the part of high frequency filing plaintiffs. Though we  
            believe that the CCDA is doing its job, we are concerned that  







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            their data has occasionally been used to bolster claims that  
            are not supported by the data or to suggest that CCDA has  
            collected data points with respect to the alleged motives of  
            civil rights plaintiffs.   

            Governmental entities have had generations old obligations to  
            make their programs, services and activities accessible;  
            including the duty to undertake the steps required to provide  
            physical access in existing facilities, when required. Many in  
            the disability community believe that far too many public  
            entities have failed to discharge these duties.  

            Unlike small businesses, governmental entities have long  
            standing self-evaluation requirements. For instance, under  
            section 35.150 of 28 CFR part 35, governmental entities had to  
            complete self-evaluations (an internal audit) of their  
            programs, services and activities and were supposed to develop  
            transition plans by 1993. All the physical alterations to  
            existing facilities required in order to meet the "program  
            access standard" was supposed to have been set forth in the  
            transition plan and work required to remove barriers was  
            supposed to be completed by 1995. The ADA's requirements in  
            this reflected similar requirements going all the way back to  
            Section 504 of the Rehabilitation Act of 1973.

            Unlike mom and pop businesses, public entities clearly have  
            the resources and sophistication to discharge their duties  
            under the Americans with Disabilities Act, Section 504 of the  
            Rehabilitation Act and State law. Additionally, for decades,  
            public entities have had to appoint a designated a responsible  
            party for ADA and Section 504 compliance (often known as and  
            ADA coordinator).
            So, though we do not oppose gathering data about access  
            litigation, we do not believe that merely counting lawsuits  
            will provide a window to help determine whether or not school  
            districts and community college districts have been complying  
            with their long standing obligations.  Perhaps, any law that  
            addresses data collection from attorneys representing persons  
            with disabilities should also require school districts and  
            community college districts to lodge their active (or most  
            recent) transition plans with the CCDA. 

            We can't think of another area of civil rights law where  
            merely looking at the number of lawsuits filed by those  
            allegedly aggrieved by the acts or omissions of a public  







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            entity would allow a person to make reasonable conclusions as  
            to whether that entity is complying with its duties and  
            obligations.

          The Orange County Community College Legislative Task Force  
          (OCCLTF), in support, argues that the state has an interest in  
          the data collection required under this bill.  OCCLTF writes,  
          "with the ability to track and collect data on these types of  
          lawsuits, the State, interested stakeholders, and other public  
          education facilities will be able to better understand the  
          problem of construction-related accessibility claims and the  
          final outcomes."


           Support  :  Civil Justice Association of California; Foothill (De  
          Anza, Los Rios, South Orange County, and San Diego Community  
          College Districts); Orange County Community College Legislative  
          Task Force

           Opposition  :  None Known

                                        HISTORY
           
           Source  :  Rancho Santiago Community College District

           Related Pending Legislation  :

          SB 269 (Roth) is substantially similar to SB 251 (see below),  
          with the exception of the tax credit, which the author removed  
          to address the Governor's concerns. This bill is currently in  
          the Assembly Appropriations Committee. 

          AB 54 (Olsen) would require that demand letters and complaints  
          are sent to the Commission on Disability Access in a standard  
          format specified by the Commission.  This bill is currently in  
          the Senate Judiciary Committee.  

           Prior Legislation  :

          AB 52 (Gray, 2015) would have provided that the defendant's  
          maximum liability for statutory damages in a  
          construction-related accessibility claim against a place of  
          public accommodation is $1,000 for each offense if the defendant  
          has corrected all construction-related violations within 180  
          days of being served with the complaint.  This bill was never  







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          heard in the Assembly Judiciary Committee. 

          AB 1230 (Gomez, Ch. 787, Stats. 2015) establishes the California  
          Americans with Disabilities Act Small Business Compliance  
          Finance Act to provide loans to assist small businesses with  
          financing the costs of projects that alter or retrofit existing  
          small business facilities to comply with the federal Americans  
          with Disabilities Act.  

          AB 1342 (Steinorth, 2015) would have provided additional revenue  
          to the California Commission on Disability Access.  This bill  
          was vetoed by Governor Brown who stated that it was "something  
          more appropriately addressed in the annual budget process."

          AB 1468 (Baker, 2015) would have provided that a public entity's  
          possession of a close out letter from the State Architect  
          certifying that the buildings, facilities, and other places meet  
          the applicable construction-related accessibility standards of  
          the federal Americans with Disabilities Act, serves as  
          presumptive evidence of compliance with the federal Americans  
          with Disabilities Act.  This bill was never heard in the  
          Assembly Judiciary Committee. See Background; Comments 2, 4, and  
          6. 

          AB 1521 (Committee on Judiciary, Ch. 755, Stats. 2015) See  
          Background. 

          SB 67 (Galgiani, 2015) would have limited recovery against a  
          small business for construction-related accessibility claims to  
          injunctive relief and reasonable attorney's fees, and would  
          allow businesses who have undergone a CASp inspection 120 days  
          to correct violations in order to qualify for reduced statutory  
          minimum damages. This bill was never heard in the Senate  
          Judiciary Committee. 

          SB 251 (Roth, 2015) would have made various changes to access  
          laws, including: exempting a defendant from liability for  
          minimum statutory damages if corrections were made within 120  
          days of receiving a CASp report; requiring the State Architect  
          to publish a list of CASp inspected businesses; and providing a  
          tax credit for elibible access expenditures, as specified.  This  
          bill was vetoed by Governor Brown who argued that tax credits  
          are more appropriately addressed in the annual budget process.

          SB 1186 (Steinberg and Dutton, Ch. 383, Stats. 2012) reduced  







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          statutory damages and provided litigation protections for  
          specified defendants who timely correct construction-related  
          accessibility violations of the Unruh Civil Rights Act.  That  
          bill also banned prelitigation "demands for money" and created  
          rules for demand letters and complaints in claims involving  
          construction-related accessibility violations.

          AB 2282 (Berryhill, 2012) would have authorized an aggrieved  
          person to bring a disability access suit only if: (1) the person  
          has suffered an injury in fact; (2) the injury in fact was  
          caused by the violation; and (3) the violation is redressable.  
          This bill was held under submission in the Senate Appropriations  
          Committee. 
          AB 1878 (Gaines, 2011) which is substantially similar to SB 1163  
          but applies to "microbusinesses," defined by the bill, failed  
          passage in the Assembly Judiciary Committee. 

          SB 1163 (Walters, 2012) would have established notice  
          requirements for an aggrieved party to follow before he or she  
          can bring a disability access suit and would have given the  
          business owner a 120-day time period to remedy the violation.   
          If the property owner cured the violation, this bill would have  
          prohibited the plaintiff from receiving any damages or  
          attorney's fees, except for special damages.  This bill failed  
          passage in this Committee.  

          SB 783 (Dutton, 2011), which was identical to SB 1163, failed  
          passage in this Committee. 

          SB 384 (Evans, Ch. 419, Stats. 2011) clarified that attorneys  
          who file complaints or send demand letters related to disability  
          access violations must provide a written notice of legal rights  
          and obligations, regardless of whether the attorney intends to  
          file an action in state or federal court.  

          SB 209 (Corbett & Harman, Ch. 569, Stats. 2009) required a CASp  
          inspection report to remain confidential rather than be under  
          seal and subject to protective order.

          SB 1608 (Corbett et al., Ch. 549, Stats. 2008) See Background;  
          Comment 6.

          SB 1766 (McClintock, 2008) See Background.

          AB 2533 (Keene, 2008) See Background.







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          SB 855 (Poochigian, 2005) See Background.  

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