BILL ANALYSIS Ó SB 1406 Page 1 Date of Hearing: June 21, 2016 ASSEMBLY COMMITTEE ON JUDICIARY Mark Stone, Chair SB 1406 (Mendoza) - As Amended May 10, 2016 PROPOSED CONSENT (Proposed to be Amended) SENATE VOTE: 39-0 SUBJECT: CONSTRUCTION-RELATED ACCESSIBILITY: EDUCATION ENTITIES KEY ISSUE: IN ORDER TO GATHER INFORMATION ABOUT THE NUMBER OF COMPLAINTS AND prelitigation LETTERS ALLEGing VIOLATIONS OF CONSTRUCTION-RELATED ACCESSIBILITY STANDARDS that are SENT TO EDUCATION ENTITIES, SHOULD ATTORNEYS be required to report information about such COMPLAINTS and LETTERS TO the california commission on disability access? SYNOPSIS Existing law requires an attorney, when serving a letter demanding money or a complaint that alleges the violation of a construction-related accessibility standard by a public accommodation, to submit a copy of the demand letter or complaint to the California Commission on Disability Access (CCDA) and the State Bar, and also to submit information about SB 1406 Page 2 the demand letter and complaint to the CCDA. Failure to comply with these requirements subjects the attorney to disciplinary action by the State Bar. This bill would impose similar requirements on attorneys who serve prelitigation letters or complaints that allege the violation of a construction-related accessibility standard by education entities. The author asserts that there has been a recent increase in prelitigation letters demanding money and civil complaints served on education entities. It is difficult to know whether this is true because there is no statewide data about the number of these letters and complaints. The lack of data is likely related to the fact that compliance with construction-related accessibility standards (commonly called "ADA compliance") by public entities, including schools, has not been the subject of either media or Legislative attention. To the extent that issues and problems with ADA compliance have come to the attention of the public and the Legislature, including the fact that an extremely small number of highly litigious attorneys makes a business practice out of filing complaints and sending demand letters to small businesses, those issues and problems have involved a type of cases covered by Title III of the ADA, which establishes compliance rules for businesses that are open to and serve the public, referred to as "public accommodations." The ADA compliance rules that apply to public entities, on the other hand, are governed by a different title of the ADA: Title II cases (government services and programs). Title II cases are the subject of this bill. Because of this lack of statewide data regarding prelitigation letters and complaints filed in Title II cases, it is also impossible to verify whether there has been, in fact, any increase in the numbers of prelitigation letters and complaints against education entities in recent months or past years. As the author correctly observes: "Currently, accessibility lawsuits filed against community colleges and K-12 institutions are not collected by one entity. As a result, it is difficult SB 1406 Page 3 to understand the magnitude of these cases and to understand the common types of violations schools are sued over." In order to assist policy makers understand the trends of complaints in Title II cases, it makes sense for attorneys who serve prelitigation letters or complaints against education entities to also report the information about those complaints to the CCDA and to report it in a consistent and understandable manner. Given that the CCDA currently collects similar information about construction-related accessibility claims against public accommodations (private businesses that are open to the public), it makes sense for CCDA to also collect information from education entities and to collect and report on it in the same manner. The bill uses Section 55.32 of the Civil Code, which imposes specific reporting requirements on attorneys who send demand letters or complaints to business owners regarding violations of construction-related accessibility claims as a model for its provisions. However, the bill does not include a number of provisions that are in Section 55.32 which seem appropriate to include in this bill. Also, a number of definitions in the bill, as it is currently in print, should be revised for clarity. Finally, it is necessary and important to clarify that the definitions and reporting requirements for prelitigation letters and complaints in the bill do not apply to presentations and claims that are made under a different provision of law, the Government Claims Act. The author proposes to amend the bill to address all of these issues and those amendments are reflected in this analysis. The bill is sponsored by the Rancho Santiago Community College District and supported by a large number of education entities, as well as the Civil Justice Association of California. It has no opposition on file. SUMMARY: Requires an attorney, when serving a prelitigation letter or a complaint alleging a construction-related accessibility claim or noncompliance by an education entity to submit a copy of the demand letter and complaint and information SB 1406 Page 4 to the California Commission on Disability Access. Specifically, this bill: 1)Requires an attorney who provides a "prelitigation letter" to an educational entity to do all of the following: (a) Include the attorney's State Bar license number in the demand letter; (b) Within five business days of providing the prelitigation letter, send a copy of the prelitigation letter to the California Commission on Disability Access (CCDA). 2)Requires an attorney who sends or serves a complaint against an "educational entity" to send a copy of the complaint and submit information about the complaint in a standard format specified by the CCDA to the commission within five business days of sending or serving the complaint. 3)Requires an attorney who sends or serves a complaint against an "educational entity" to notify the CCDA within five business days of judgment, settlement, or dismissal of the claim or claims alleged in the complaint of the following information in a standard format specified by the commission: a) The date of the judgment, settlement, or dismissal. b) Whether or not the construction-related accessibility violations alleged in the complaint were remedied in whole or in part after the plaintiff filed a complaint. c) If the construction-related accessibility violations alleged in the complaint were not remedied in whole or in part after the plaintiff filed a complaint, whether or not another favorable result was achieved after the plaintiff filed the complaint. 1)Provides that failure by an attorney to comply with 2) or 3), above, shall constitute cause for discipline of the attorney SB 1406 Page 5 by the State Bar. 2)Requires the CCDA to review and report on the demand letters, complaints, and notifications of case outcomes it receives in the same manner as it does for demand letters, complaints, and notifications of case outcomes regarding construction-related accessibility claims against places of public accommodation. 3)Exempts a qualified legal services project or a qualified support center from the reporting requirements of the bill. 4)Clarifies that the bill does not apply to claims for money or damages filed pursuant to the Government Claims Act. 5)Defines relevant terms, including the following: a) "Construction-related accessibility claim" or "claim" means any claim of a violation of any construction-related accessibility standard, as defined by paragraph (6) of subdivision (a) of Section 55.52, with respect to a public building, public facility, or other public place of an education entity. b) "Education entity" means the Regents of the University of California, the Trustees of the California State University and the California State University, the California Community Colleges Office of the Chancellor and the California Community Colleges, a K-12 school district, or any local education agency. c) "Prelitigation letter" means a prelitigation written document that alleges the site is in violation of one or more construction-related accessibility standards, as defined in paragraph (6) of subdivision (a) of Section 55.52 and is provided to the education entity whether or not the attorney intends to file a complaint, or eventually SB 1406 Page 6 files a complaint, in state or federal court. A prelitigation letter does not include a claim for money or damages against local public entities governed by Division 3.6 of Title 1 of the Government Code. EXISTING LAW: 1)Prohibits, pursuant to federal law, discrimination on the basis of disability in all services, programs, and activities provided to the public by state and local governments (e.g. public education, employment, transportation, recreation, health care, social services, courts, voting, and town meetings). (42 U.S. C. 12131.) 2)Provides that no person in the State of California shall, on the basis of race, national origin, ethnic group identification, religion, age, sex, sexual orientation, color, genetic information, or disability, be unlawfully denied full and equal access to the benefits of, or be unlawfully subjected to discrimination under, any program or activity that is conducted, operated, or administered by the state or by any state agency, is funded directly by the state, or receives any financial assistance from the state. (Gov. Code Section 11135.) 3)Provides the California Commission on Disability Access (CCDA), an independent state agency composed of 19 members, with general responsibility for monitoring disability access compliance in California, and with authority to make recommendations to the Legislature for necessary changes in order to facilitate implementation of state and federal laws on disability access. (Gov. Code Section 8299 et seq.) 4)Ensures 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, SB 1406 Page 7 walkways, public buildings, medical facilities, including hospitals, clinics, and physicians' offices, public facilities, and other public places and makes a violation of the right of an individual under the Americans with Disabilities Act of 1990 (Public Law 101-336) also constitute a violation of the Disabled Persons Act (DPA). (Civil Code Section 54. All further references are to this code unless otherwise stated.) 5)Makes a violation of the DPA punishable by "up to a maximum of three times the amount of actual damages but in no case less than $1,000, and attorney's fees as may be determined by the court." (Section 54.3.) 6)Prohibits such a demand letter alleging the construction-related accessibility claim or noncompliance regarding a public accommodation from including a request or demand for money or an offer or agreement to accept money, unless the claim involves a physical injury or special damages but allows a building owner, tenant, authorized agent or employee, after receiving a duly-provided demand letter, to request a settlement figure or specification of damages and allows an attorney to present a settlement figure or specification of damages in response. (Section 55.31.) 7)Requires, until January 1, 2019, an attorney to submit a copy of any demand letter alleging the construction-related accessibility claim or noncompliance regarding a public accommodation to the State Bar and subjects the attorney to possible disciplinary action for violations of this requirement. (Section 55.32.) 8)Requires an attorney to submit a copy of any letter demanding a payment of money and alleging the construction-related accessibility claim or noncompliance regarding a public SB 1406 Page 8 accommodation to the CCDA, and to submit a copy of a complaint to the CCDA, and subjects the attorney to possible disciplinary action for violations of this requirement. (Section 55.32.) FISCAL EFFECT: As currently in print this bill is keyed fiscal. COMMENTS: The Americans with Disabilities Act (ADA) was signed into law on July 26, 1990, by President George H.W. Bush. The ADA is one of America's most comprehensive pieces of civil rights legislation that prohibits discrimination and guarantees that people with disabilities have the same opportunities as everyone else to participate in the mainstream of American life -- to enjoy employment opportunities, to purchase goods and services, and to participate in State and local government programs and services. Modeled after the Civil Rights Act of 1964, which prohibits discrimination on the basis of race, color, religion, sex, or national origin - and Section 504 of the Rehabilitation Act of 1973 -- the ADA is an "equal opportunity" law for people with disabilities. Distinction between the ADA's application privately owned "public accommodations" (Title III) and public "services, programs, and activities" (Title II). The Unruh Civil Rights Act broadly outlaws arbitrary discrimination in public accommodations and includes disability as one among many prohibited bases. (Section 51, subd. (b).) As part of the 1992 reformation of state disability law, the Legislature amended the Unruh Civil Rights Act to incorporate by reference the ADA, making violations of the ADA per se violations of the Unruh Civil Rights Act. Title III of the ADA is therefore applicable via the Unruh Civil Rights Act because it applies to businesses and nonprofit service providers that are public accommodations, specifically private entities who own, lease, lease to, or operate facilities such as restaurants, retail stores, hotels, movie theatres, private schools, convention centers, doctors' SB 1406 Page 9 offices, homeless shelters, transportation depots, zoos, funeral homes, day care centers, and recreation facilities. The California Legislature's incorporation of Title III of the ADA into the Unruh Civil Rights Act was intended to extend to disabled individuals aggrieved by an ADA violation "the full panoply of Unruh Civil Rights Act remedies." (Jankey v. Lee (2012) 55 Cal.4th 1038, 1044 [150 Cal.Rptr.3d 191, 290 P.3d 187].) As a result of the 1992 amendment of the Unruh Civil Rights Act, a plaintiff who prevails in a construction-related accessibility claim, like all plaintiffs in other civil rights cases, is now entitled to minimum statutory damages of $4,000 per violation (although later amendments were made to Unruh, affecting only disabled plaintiffs in only construction-related disability claims (though minimum statutory damages can be reduced to $1,000 in some cases, such as when a small business has obtained a CASp inspection)). However, these provisions apply only to "public accommodations," and do not apply to construction-related accessibility claims against government services, programs, and activities. Claims against government services, programs and activities, or "Title II cases," which are governed by different rules, regulations, and enforcement mechanisms than the Title III cases involving private businesses, are the subject of this bill. Title II of the ADA prohibits discrimination on the basis of disability in all services, programs, and activities provided to the public by state and local governments (e.g. public education, employment, transportation, recreation, health care, social services, courts, voting, and town meetings). (42 U.S.C. 12131.) Regulations promulgated by the U.S. Department of Justice to interpret the ADA provide that facilities that are constructed or altered by, on behalf of, or for the use of a public entity shall be designed, constructed, or altered to be readily accessible to and usable by individuals with disabilities. (28 C.F.R. 35.151 (a)(1).) The regulations also SB 1406 Page 10 provide that full compliance with accessibility standards is not required where an entity can demonstrate that it is structurally impracticable to meet the requirements. (28 C.F.R. 35.151 (a)(2).) Most significantly for the purposes of compliance with Title II by education entities, according to technical assistance from the U.S. Department of Justice, Title II "may not necessarily mandate physical access to all parts of all facilities. Provision of services to individuals with disabilities in a different location, for example, is one method of achieving program accessibility." (https://www.ada.gov/taman2.html#II-3.4200.) Title II of the ADA is expressly incorporated into state law pursuant to the California Disabled Persons Act (DPA) in Civil Code Section 54, which provides: 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. . . . A violation of the right of an individual under the Americans with Disabilities Act of 1990 (Public Law 101-336) also constitutes a violation of this section. (Section 54.) A violation of the DPA is punishable by "up to a maximum of three times the amount of actual damages but in no case less than $1,000, and attorney's fees as may be determined by the court." (Section 54.3.) To the extent that issues and problems with ADA compliance have come to the attention of the public and the Legislature, including the fact that an extremely small number of highly litigious attorneys makes a business practice out of filing SB 1406 Page 11 complaints and sending demand letters to small businesses, those issues and problems have involved Title III of the ADA, which establishes compliance rules for businesses that are open to and serve the public, referred to as "public accommodations." Those high-profile issues and problems have not involved Title II cases (government services and programs), which are the subject of this bill. Author's statement regarding the necessity of the bill. According to the author, this bill is necessary to address a recent rise in the number of lawsuits filed against educational institutions, specifically community colleges. The author states the following regarding the problem that the bill seeks to address: 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. Likewise, supporters also state, in letters that are virtually identical to the author's statement, that there has been an increase in lawsuits against community colleges. It is noteworthy that the author and supporters do not say that the lawsuits are frivolous or without merit. Instead, to the extent that "facility modifications and upgrades" are necessary to comply with construction-related accessibility standards in existing law, the author and supporters state that those improvements "are not in alignment with existing facilities SB 1406 Page 12 transition plans, ignore the availability of funding for repairs, and instead put a strain on a district's general fund." Basically, community colleges have longer term plans to correct violations of construction-related accessibility standards and it is not convenient or financially wise to do so in response to a lawsuit. While this may be true, it ignores the reality that persons with limited disability have the right of full and equal access to all public buildings, including schools and community colleges, under existing law. They should not have to wait for a school or community college to correct violations of construction-related accessibility standards until it is optimal from the college's perspective to do so in order to exercise their rights. Furthermore, it is difficult to confirm or deny the author's (and supporters) claims about an increase in the number of lawsuits against education entities because no statewide data appears to be available about the number of complaints filed in the state. Because of this lack of statewide data, it is also impossible to verify whether there is, in fact, any trend of more complaints being filed against education entities in recent months or past years. As the author correctly observes: Currently, accessibility lawsuits filed against community colleges and K-12 institutions are not collected by one entity. As a result, it is difficult to understand the magnitude of these cases and to understand the common types of violations schools are sued over. In order to assist policy makers, it makes sense for attorneys who serve prelitigation letters or complaints against education entities to also report the information in a consistent and understandable manner. Given that the California Commission on Disability Access (CCDA) currently collects similar information SB 1406 Page 13 about construction-related accessibility claims against public accommodations (private businesses that are open to the public), it makes sense for CCDA to also collect information for education entities. This bill furthers recent legislative efforts to collect more information about ADA claims and to collect the information in a more efficient manner. Last year the Legislature approved and the Governor signed into law AB 1521, authored by this Committee, which, among other things, requires attorneys in disability access cases to notify the Commission, within five business days of any judgment, settlement, or dismissal of the claim or claims alleged in the complaint, of certain information in a standard format specified by the Commission. Specifically, the information required to be reported to the Commission includes: (1) the date of the judgment, settlement, or dismissal; (2) whether or not the construction-related accessibility violations alleged in the complaint were remedied in whole or in part after the plaintiff filed a complaint or provided a demand letter; (3) if the construction-related accessibility violations alleged in the complaint were not remedied in whole or in part after the plaintiff filed a complaint or provided a demand letter, whether or not another favorable result was achieved after the plaintiff filed the complaint or provided the demand letter; and (4) whether or not the defendant submitted an application for an early evaluation conference and stay pursuant to Civil Code Section 55.54, whether the defendant requested a site inspection, the date of any early evaluation conference, and the date of any site inspection. (See Civil Code Section 55.32 (b)(2).) Existing law also requires an attorney who provides a demand letter or who sends or serves a complaint in a construction-related accessibility case to send a copy of the demand letter or complaint to the Commission within five business days. (Existing law also requires a copy of the demand letter to be sent to the State Bar, but only until January 1, SB 1406 Page 14 2019.) This bill would require attorneys who submit pre-litigation letters and complaints alleging construction-related accessibility violations by education entities to submit information about those letters or complaints to the Commission in a standard format specified by the Commission, so that data about accessibility claims can be more effectively compiled by the Commission and provided to the Legislature. Author's amendments to conform this bill more closely to the section of existing law on which it is modeled and make a number of important clarifications. The bill uses Section 55.32 of the Civil Code, which imposes certain requirements on attorneys who send demand letters or complaints to business owners regarding violations of construction-related accessibility claims in "public accommodations," as a model for its requirements. However, the bill does not include a number of provisions that are in Section 55.32--including the requirement for the attorney to include his or her State Bar license number in any prelitigation letter; a penalty for violating the requirements of the bill constitutes cause for the imposition of discipline of an attorney; clarification that duplicate letters or complaints do not have to be sent to CCDA and that the requirements of the bill do not apply to legal services attorneys; and a requirement for CCDA to review and report on the prelitigation letters, complaints, and notifications of case outcomes it receives in the same manner that it does for demand letters and complaints regarding public accommodations-in its provisions. Also, a number of definitions in the bill, as it is currently in print, would appropriately be revised. For example, the bill in print uses the term "public entity" even though it only applies to educational institutions and the term "public entity" is widely used to refer to entities other than schools. The term "demand letter" used in the bill as in print is defined elsewhere in the Civil Code to apply to letters sent to public SB 1406 Page 15 accommodations. To clarify the meaning of these terms, the terms are given new names and revised definitions. Finally, it is necessary and important to clarify that the definitions and reporting requirements for prelitigation letters and complaints in the bill do not apply to presentations and claims made under the Government Claims Act (Government Code Section 900 et seq.), which requires the claimant to submit (or "present") a claim, asking for money damages, to a government entity prior to filing a civil suit. (Gov. Code Section 905.) The bill is not intended to apply to such cases. The author reasonably proposes to amend the bill to address all of the above issues. PENDING SIMILAR LEGISLATION. AB 54 (Olsen) requires demand letters and information about complaints to be submitted to the Commission on Disability Access in a standard format specified by the Commission. This bill is currently in the Senate Appropriations Committee. REGISTERED SUPPORT / OPPOSITION: Support Rancho Santiago Community College District (sponsor) Civil Justice Association of California Coast Community College District SB 1406 Page 16 Community College League of California Foothill-De Anza Community College District Kings Canyon Unified School District Los Rios Community College District Orange County Community College Legislative Task Force Riverside Community College District San Diego Community College District San Joaquin Delta College San Mateo Community College District South Orange Community College District Opposition None on file SB 1406 Page 17 Analysis Prepared by:Alison Merrilees / JUD. / (916) 319-2334