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
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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
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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
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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
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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
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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,
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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
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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'
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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
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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
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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
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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
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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,
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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
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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
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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
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Analysis Prepared by:Alison Merrilees / JUD. / (916)
319-2334