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 SB 1406 (Mendoza) Page 2 of ? 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 SB 1406 (Mendoza) Page 3 of ? 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 SB 1406 (Mendoza) Page 4 of ? 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 SB 1406 (Mendoza) Page 5 of ? 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 SB 1406 (Mendoza) Page 6 of ? 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 SB 1406 (Mendoza) Page 7 of ? 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 SB 1406 (Mendoza) Page 8 of ? 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. SB 1406 (Mendoza) Page 9 of ? SB 855 (Poochigian, 2005) See Background. **************