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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