BILL ANALYSIS �
AB 1878
Page 1
Date of Hearing: May 8, 2012
ASSEMBLY COMMITTEE ON JUDICIARY
Mike Feuer, Chair
AB 1878 (Gaines) - As Amended: April 24, 2012
SUBJECT : DISABILITY DISCRIMINATION
KEY ISSUE : DOES THIS MEASURE, IN ITS EFFORT TO PROVIDE RELIEF
TO SMALLER BUSINESSES THAT FEEL THEY ARE UNFAIRLY SUBJECT TO
LAWSUITS UNDER OUR DISABILITY DISCRIMINATION LAWS, INADVERTENTLY
AND UNFAIRLY SINGLE OUT PEOPLE WITH DISABILITIES BY FORCING THEM
TO OVERCOME ADDITIONAL AND SUBSTANTIAL NEW BARRIERS TO THE
ENFORCEMENT OF THEIR CIVIL RIGHTS AND BY DENYING REMEDIES TO
VICTIMS OF DISABILITY DISCRIMINATION?
FISCAL EFFECT : As currently in print this bill is keyed
non-fiscal.
SYNOPSIS
Like other civil rights statutes that prohibit discrimination in
businesses open to the public, the statutory scheme for
enforcement of disability access laws rests on voluntary
compliance and individual legal actions. There is no
governmental entity charged with administrative or judicial
enforcement of these obligations.
This bill reiterates a controversial question that the
Legislature has frequently heard and consistently rejected:
should people with disabilities be required to comply with
special procedural barriers not facing others who endure
discrimination before they can assert legal claims against
businesses that violate disability access laws, and should they
also be prevented from recovering for their injuries when they
suffer unlawful discrimination if the business corrects the
violation in the future?
According to the author, the bill is necessary because many
businesses are out of compliance with longstanding state and
federal disability access laws, which leaves them vulnerable to
lawsuits. Some of these suits, supporters allege, are brought by
plaintiffs for personal benefit, not out of altruistic desire to
improve disability access, and some of these suits are brought
against businesses that are willing to comply but are hampered
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by the complexity of the law.
Disability rights advocates oppose the bill, but they agree with
the supporters on a number of points, including that many
businesses are not in compliance with access laws despite their
long duration and that many lawsuits are filed, some by
plaintiffs seeking monetary recovery. Opponents argue that they
have supported prior legislation to increase business awareness
of access obligations, improve voluntary compliance, and reward
responsible behavior. However, opponents argue that this bill
singles out people with disabilities for unprecedented obstacles
to the enforcement of civil rights, deprives them of a remedy
for actual violations, and will deter, not encourage, compliance
with disability discrimination law. Moreover, opponents state
that the promise of the bill may be misleadingly unattainable
because the requirements it would impose are inconsistent with
federal disability discrimination law and therefore would not
preclude the law suits from which businesses seek protection.
In contrast to prior measures, this bill has attracted much less
support from business advocacy groups, apparently reflecting the
continuing consensus that lead to the adoption of SB 1608
(Corbett and Harman) of 2008, the historic bipartisan measure to
reduce disability access violations and unnecessary lawsuits.
In addition to adopting new procedural and substantive
protections for all businesses, that measure established the
California Commission on Disability Access (CCDA), an
independent state agency composed of 19 members representing
business interests and disability rights groups, with the
general responsibility for monitoring disability access
compliance in California, and making recommendations to the
Legislature for necessary changes in order to facilitate
implementation of state and federal laws on disability access.
SUMMARY : Creates unprecedented new obstacles to and
prohibitions against recovery for violation of existing
disability discrimination laws by certain businesses.
Specifically, this bill :
1)Imposes pre-litigation procedural requirements upon the filing
of claims for undefined "special access violations" under the
state's civil rights and equal access to public accommodations
and housing accommodation laws, limits an aggrieved party's
right to damages and precludes attorney's fees in specified
cases against two types of businesses:
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a) Those with average annual gross receipts of $2,500,000
or less over the previous three years; and
b) Any manufacturer primarily engaged in the chemical or
mechanical transformation of raw materials or processed
substances into new products that is classified between
Codes 31 to 33, inclusive, of the North American Industry
Classification System, and which employs 25 or fewer
employees.
2)Requires the aggrieved party, prior to the filing of any
claim, to serve a notice by personal service or certified mail
on the owner of the property or other responsible person,
detailing:
a) the specific federal or California statute of which the
property is believed to be in violation;
b) the identity of the person harmed by the violation;
c) the possible violations that have been identified,
specifying the facts constituting the violation, including
the date on which the violation occurred, the exact
location of the violation so that the owner or other
responsible party may locate the violation; and
d) the rights of the owner or responsible party to respond
in one of three ways, and detailing what those three ways
are.
3)Grants the property owner or responsible party 30 days from
the date of the notice to respond, by personal service or
certified mail, in one of three ways:
a) expressly state that improvements will be made to bring
the property into compliance with applicable laws, in which
case the owner would have another 120 days from the date
the response is received by the aggrieved party to complete
those improvements or apply for permits;
b) challenge the validity of the alleged violation, in
which case the aggrieved party may file a claim; and
c) state that the alleged violations have been corrected,
and attach evidence that verifies the improvements.
4)Exempts the defendant from legal responsibility to the victim
as well as any attorney's fees liability for disability
discrimination if the condition that caused the violation is
corrected within the 120-day period or if the defendant has
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applied for the appropriate permits necessary to remedy the
violation, except that the injured party may be awarded
"special damages" (out-of-pocket expenses). In addition, the
defendant would be immunized from any claim for damages or
attorney's fees for any future aggrieved parties arising out
of the same or similar facts that served as the basis for the
violation.
5)Provides that if the violation is not corrected within the 120
day period and the owner or responsible party fails to provide
a satisfactory explanation, the aggrieved party may file a
claim.
6)Provides that statements made by the owner or responsible
party in the response to the notice of violation, expressly
stating that the property would be brought into compliance
shall not be considered an admission of guilt and are
inadmissible in any future claim based on the same facts.
7)Provides that the foregoing procedure is required for all
claims for damages or fees, other than those praying for
special damages arising out of an injury in fact because of a
denial of full and equal access under the state's access laws.
8)Requires a court or jury to consider previous or pending
actual damage awards received or prayed for by the plaintiff
for the same or similar injury in making a determination of
the amount of damages awarded to a successful plaintiff.
EXISTING LAW :
1)Provides under the federal Americans with Disabilities Act
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. Section 12181.)
2)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. Further provides that a
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violation of the right of an individual under the ADA also
constitutes a violation of state law. (Civil Code section 54.
All further statutory references are to this code unless
otherwise noted.)
3)Provides that individuals with disabilities shall be entitled
to full and equal access to public accommodations, subject
only to the conditions and limitations established by law, or
state or federal regulation, and applicable alike to all
persons. Further provides that individuals with disabilities
shall be entitled to full and equal access to all housing
accommodations offered for rent or lease, subject to the
conditions and limitations established by law. (Section
54.1.)
4)Provides that all persons within the jurisdiction of this
state are free and equal, and no matter what their 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. (Section 51.)
5)Does not require an individual with a disability, or any other
person, to provide notice, wait a certain time period, or
comply with any other procedural hurdles before bringing suit
for discrimination or denial of equal access on the basis of,
for example, race or sex, to public accommodations or other
facilities, programs or services. (Section 52.)
6)Pursuant to SB 1608, provides for the California Commission on
Disability Access (CCDA), an independent state agency composed
of 19 members representing business groups and disability
rights advocates, with the general responsibility for
monitoring disability access compliance in California, and
making recommendations to the Legislature for necessary
changes in order to facilitate implementation of state and
federal laws on disability access. (Gov. Code Sec. 8299 et
seq.)
7)Pursuant to SB 1608, requires an attorney, when serving a
demand for money letter or a complaint on a defendant, include
a written advisory to the defendant of the defendant's rights
and obligations, including the right of a qualified defendant
to request a stay and an early evaluation conference regarding
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the allegations in the complaint. (Civ. Code Sec 55.3.)
8)Pursuant to SB 1608, provides that if a Certified Access
Specialist (CASp) determines that a site meets all applicable
construction-related accessibility claims the CASp must
provide a written inspection report to the requesting party
that includes specified information. If the CASp determines
that corrections are needed to the site in order for it to
meet all applicable construction-related accessibility
standards, the CASp must provide a written inspection report
to the requesting party that identifies the needed corrections
and a schedule for completion. (Civ. Code Sec. 55.53.)
9)Pursuant to SB 1608, requires every CASp who completes an
inspection of a site to provide the owner or tenant with a
disability access inspection certificate if the site either
meets applicable construction-related accessibility standard
or is a CASp determination pending site. Existing law permits
the building owner or tenant to post the certificate on the
premises unless, after the date of inspection, the inspected
site has been modified or construction has commenced to modify
the inspected site in a way that may impact compliance with
construction-related accessibility standards. (Civ. Code Sec.
55.53.)
10)Pursuant to SB 1608, outlines the specific process to be
followed when filing a disability access claim, specifically,
existing law:
a) specifies the contents of the request and includes a
link to the Judicial Council of California's Web site to
access the appropriate court forms;
b) provides that the defendant may file an application
requesting an early evaluation conference (EEC) after the
defendant is served with the summons and complaint within
30 days of receiving the summons and complaint;
c) grants a 90-day stay of the proceedings with respect to
the construction-related accessibility claims, unless the
plaintiff has obtained temporary injunctive relief;
d) requires a mandatory EEC to be scheduled no later than
50 days after issuance of the order but no earlier than 21
days after the request is filed;
e) directs the parties to appear in person at the time set
for the conference;
f) directs the defendant to file with the court and serve
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on the plaintiff a copy of any relevant CASp inspection
report at least 15 days prior to the date of the EEC;
g) directs the plaintiff to file with the court and serve
on the defendant at least 15 days prior to the date of the
EEC a statement containing, to the extent reasonably known,
an itemized list of the alleged violations, the amount of
damages claimed, the amount of attorney's fees and costs
claimed, and any demand for settlement of the case in its
entirety;
h) specifies that the court shall lift the stay when the
defendant has failed to file and serve the CASp inspection
report when required and also did not produce the report at
the EEC, unless good cause for the failure is shown;
i) specifies that the court may lift the stay at the
conclusion of the EEC upon a showing of good cause by the
plaintiff;
j) specifies the court's authority to schedule additional
conferences or to extend the stay for no more than an
additional 90 days, upon a showing of good cause; and
aa) specifies the determinations the court would make at the
EEC. (Civ. Code Sec. 55.54.)
1)Pursuant to SB 1608, provides that the stay and early
evaluation conference shall not be deemed to make any
inspection report or opinion of a CASp binding on the court or
to abrogate the court's authority to make appropriate findings
of fact and law. (Civ. Code Sec. 55.54.)
2)Pursuant to SB 1608, provides that the stay and early
evaluation conference shall not be construed to invalidate or
limit any California construction-related accessibility
standard that provides greater or equal protection for the
rights of persons with disabilities than is afforded by the
ADA and the federal regulations adopted pursuant to that act.
(Civ. Code Sec. 55.54.)
3)Pursuant to SB 1608, provides that notwithstanding the
requirement that offers of compromise are privileged and
protected under Evidence Code Section 1152, the court may
consider, along with other relevant information, settlement
offers made and rejected by the parties, in determining an
award of reasonable attorney's fees and recoverable costs in
any construction-related accessibility claim. (Civ. Code Sec.
55.55.)
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4)Pursuant to SB 1608, provides that statutory damages may be
recovered in a construction-related accessibility claim only
if a violation or violations of one or more
construction-related accessibility standards denied the
plaintiff full and equal access to the place of public
accommodation on a particular occasion. Existing law
specifies that a plaintiff is denied full and equal access
only if he or she personally encountered the violation on a
particular occasion or was deterred from accessing the public
accommodation on a particular occasion. (Civ. Code Sec.
55.56.)
COMMENTS : The author describes the purpose of this bill as
follows:
California businesses are extremely vulnerable to lawsuit
abusers. The complex and inconsistent regulations regarding
disability access make it difficult for willing business
owners to comply with the strict regulations. Approximately
98% of California businesses are out of compliance with
state or federal disability access laws. This is harmful to
both individuals with a disability seeking access and
businesses that are exposed to civil actions.
There are individuals who are capitalizing on the complex
access regulations enacted by the State and Federal
government for personal benefit. Businesses can be sued for
thousands of dollars for simple faults such as a railing
height being off by a centimeter or the color blue parking
lot striping not being the right shade. Many times,
businesses want to correct the error to allow for more
access to their place of business. These frivolous lawsuits
are making it harder for the business to come into
compliance especially in this difficult economic
environment.
Lawsuit abuse is not leading to greater access and
compliance, which was the intended purpose of the State and
Federal access laws that came into place in 1960 and 1990
respectively. Rather, these landmark pieces of legislation
have created unintentional consequence - having businesses
close their doors because of great cost and limited
options. While there is a need to preserve the right for a
person to have access, there is a corresponding need to
create opportunities for a business to give people access
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to do what the original legislation intended - create more
access.
Although the author notes that disability access laws are of
long duration, she argues that "additional resources and time
need to be granted to responsible parties to accommodate the
vast and detailed regulations."
The Federal ADA Prohibits Businesses From Discriminating Against
Persons With Disabilities . Under the federal Americans with
Disabilities Act (ADA), a business that constitutes a place of
public accommodation (e.g., many places of lodging,
entertainment, recreation, restaurants, bars, theaters, stores,
health clubs, etc.) is prohibited from discriminating on the
basis of disability if its operations affect interstate
commerce. Prohibited discrimination can take a number of forms
- e.g., denial of participation in the facility, or a service,
benefit, or good of the business; denial of equal participation
in a good, service, facility, etc; or provision of a different
or separate facility, service, good, etc. (unless necessary to
provide services and the like that are as effective as that
provided to others). Government facilities are also covered by
the access obligations of the ADA.
Non-Compliance With The ADA Is Believed To Be Widespread . It is
generally believed by observers on all sides of this issue that
widespread violations of disability access laws are still common
many years after the enactment of these requirements. Indeed,
the author's premise appears to be that businesses are in fact
violating the ADA - albeit in ways they may sometimes not be
unaware of - and the cost of fighting these violations in a
lawsuit may be financially ruinous because of the damages that
may be recovered by a victim. As a result, supporters complain,
businesses are settling cases out of court. As discussed below,
opponents of the bill agree that non-compliance with the ADA is
all too commonplace. They disagree however that compliance with
existing obligations will be enhanced by enacting a new notice
obligation that potentially hinders enforcement efforts and
absolves violators of responsibility for their failure to comply
with the law.
State Law Makes Violation of the ADA a Violation of State Law As
Well, And Provides Comparable Penalties. A violation of the ADA
by a business, housing accommodation or governmental facility
also constitutes a per se violation of state disability
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discrimination law under two provisions of the Civil Code. Yet,
wholly apart from the ADA, conduct that violates the ADA may
also offend the separate obligations of state law. For the
purposes of this bill, the only relevant difference between
state and federal law in the consequences of an ADA violation is
with respect to money damages. Under the ADA, a victim may
obtain equitable relief and attorney's fees in a private action.
If the U.S. Attorney General sues to enforce the ADA, the court
may award equitable relief, monetary damages and a civil penalty
up to $100,000. State law for an ADA violation is much the
same, except that the victim may recover actual damages, the
court may award up to treble actual damages in its discretion,
and there is a statutory minimum damage recovery of either $1000
(under the Disabled Persons Act) or $4000 (under the Unruh Civil
Rights Act) depending on which of these two overlapping
provisions of the Civil Code is invoked.
Unlike Any Other Type Of Civil Rights Violation, This Bill Would
Allow Violators Of Disability Discrimination Laws To Potentially
Avoid Legal Responsibility And Would Deprive The Victim Of
Remedies If A Specific Notice Were Not Given - Or Even If The
Notice Were Given But The Violator Corrected The Condition After
The Violation. The bill requires delivery of a notice to the
person alleged to have committed the violation. However, the
identity and location of the business owner, landlord or other
violator may not always be apparent to the person who has been
denied access to the facility. Indeed, because they have been
denied access to the facility the disabled person may not have
any information beyond the name of the business and the address
of the facility. Moreover, the notice is required to specify
all the conditions constituting the violation, an accomplishment
that may be frustrated by a person's inability to access the
facility at all. It should be noted that unless all of these
obstacles were overcome, the bill would bar not just damages,
but any remedy, including injunctive or other equitable relief.
However, notice of the violations would not be enough by itself.
The bill contains specific language that the notice must
include as well as the specific violations being alleged, the
person or persons who suffered an injury as a result of the
violations, and the options that are available to the property
owner or responsible party. Since the information contained in
the notice must be specific to each and every violation,
including citations of any state or federal statute, this
obligation would likely result in most claimants needing the
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assistance of an attorney. However, the need for an attorney
would be frustrated by the prospect that attorney's fees would
not be awarded, even if the plaintiff's claims were fully
merited. That is because the bill provides that if a disabled
person finds the right person, crafts exactly the right notice,
and accomplishes the required delivery by the prescribed method,
the victim would nevertheless be prohibited from recovering
attorney's fees for a genuine act of discrimination if the cause
of the problem were rectified in the future - or even if the
problem were not rectified but the defendant had an undefined
"satisfactory explanation." Supporters of the bill refer to
this provision as a "right to cure." But that term misstates
the concept. The defendant would not be required to remedy the
violation of the plaintiff's rights, only to address the problem
in the future.
It is highly unusual for a violation of any law to be overlooked
or forgiven because the victim has not given notice in advance.
It is even more unusual for a violator to avoid any legal
responsibility for the violation simply by correcting the
problem for the future. The general principle of our civil (and
criminal) laws is that everyone is held accountable for the
wrongs they have committed, even if they are not warned in
advance and even if they comply with the law in the future. The
Committee is unaware of any comparable provision in civil rights
law.
Apart from the question of precedent, it may be asked whether
this bill promotes voluntary compliance and prevents violations,
as should be the goal of any law, or whether it might instead
inadvertently encourage and reward noncompliance by allowing a
business to avoid taking any steps to follow the law -- unless
and until a notice is provided, at which point it can avoid
responsibility for the legal wrongs and injuries it has caused.
The bill also treats disability discrimination victims uniquely
in other ways. First, the victim may be denied attorney's fees
and any recovery for injuries for bona fide discriminatory acts
simply because a prior unrelated complaint had - unbeknownst to
the new victim - previously alleged the same or even a "similar"
violation.
Secondly, even if all of the foregoing hurdles were cleared, the
bill would require the court or jury to consider previous or
pending actual damage awards to a successful plaintiff or
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requested in other pending lawsuits when making a determination
of the amount of damages to award to a plaintiff. This appears
to be a novel proposition in civil rights law, and it is not
clear why the remedy for damages suffered by a disability
discrimination victim should depend on whether the victim has
sustained for prior acts of discrimination. It must also be
noted by contrast that the defendant's prior violations are
apparently not to be taken into account.
Should State Law Provide a Defense for ADA Violations That the
ADA Itself Does Not Allow? This bill might immunize many ADA
violations as a matter of state law. But the ADA itself imposes
none of the requirements of this bill. Of course, state
legislation cannot affect liability under federal law, and acts
that violate the ADA would therefore still be actionable in
state and federal court. Thus, despite the beguiling appeal of
protection from state law violations, businesses that violate
the ADA would continue to be subject to costly litigation,
including money damages, civil penalties and attorney's fees,
irrespective of this bill.
Should State Law Single-Out One Minority Group For Special
Barriers To Enforcement Of Civil Rights Protections? Persons
with disabilities are one group protected against discrimination
in the use and enjoyment of public facilities and
accommodations. Under the Unruh Civil Rights Act, other
protected characteristics include race, national origin, sex and
sexual orientation. This bill would uniquely impose its
advance-notice and good-faith-efforts rules on persons with
disabilities before they could seek a remedy for violations of
their civil rights.
It may be instructive on this point to note a recent federal
court decision noting:
The First Amendment right to "petition the Government for a
redress of grievances" - which includes the filing of
lawsuits - is "one of 'the most precious of the liberties
safeguarded by the Bill of Rights.'" ? Because the right to
access the courts implicates due process and First
Amendment rights, courts have been exceedingly reluctant to
restrict such access. We have noted that �pre-litigation
restrictions on] an individual's access to the court
system, ? is an extraordinary remedy that should be
narrowly tailored and rarely used." This is so even �when]
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litigants and lawyers covered by �such restrictions] are
not entirely enjoined from filing suits, but must �merely]
obtain the court's approval first. �Even a] pre-clearance
requirement is in itself a serious imposition on the right
to access the courts: "Among all other citizens, he is to
be restricted in his right of access to the courts. As far
as he is concerned, his future filings run the risk of
delay and even possible rejection before he can call upon
defendants to respond to those filings. (Molski v.
Evergreen Dynasty Corp., 2008 U.S. App. LEXIS 7372 (9th
Cir. Cal. Apr. 7, 2008) (Berzon, Kozinski, et al,
dissenting from petition for rehearing en banc)(citations
omitted).)
This Bill Appears to Undermine Recent Groundbreaking Bipartisan
Collaboration and Compromise on Disability Access Reform And The
Essential Role Established For The Disability Access Commission.
A bipartisan and bicameral effort with disability rights
organizations and business advocates over a period of years
ultimately lead to the adoption of SB 1608 (Corbett and Harman)
in 2008. That measure was the product of extended and careful
consideration by thoughtful legislators and members of the
disability and business communities including Disability Rights
California, the California Chamber of Commerce, California
Foundation for Independent Living Centers, California Restaurant
Association, Business Properties Association, California Hotel
Association and several others.
SB 1608 enacted several reforms to increase voluntary compliance
with state and federal laws requiring access to the disabled in
any place of public accommodation. It established incentives
for compliance and protection from litigation by responsible
businesses, including a process by which businesses, if sued for
violation of accessibility standards, may obtain a temporary
stay of any litigation along with an in-person early evaluation
conference with the court, attended by persons with authority to
resolve the dispute between the parties, for the purpose of
deterring frivolous cases and evaluating prospects for early
settlement. Moreover, it clarified the standards for awarding
damages and attorney's fees with respect to a claim alleging a
violation of construction-related accessibility standards. It
also required an attorney, when serving a written demand for
money or a complaint on a defendant, to include a written
advisory to the defendant of the defendant's rights and
obligations. In addition, the bill required architects to
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complete coursework regarding disability access requirements and
imposed continuing education requirements on local building
officials relating to disability access requirements.
Importantly, SB 1608 also established the California Commission
on Disability Access "to develop�] recommendations that will
enable persons with disabilities to exercise their right to full
and equal access to public facilities, and that will facilitate
business compliance with the laws and regulations to avoid
unnecessary litigation." (Government Code section 8299.) Among
other things, the Commission is required to conduct studies and
make reports to the Legislature. The CCDA is composed of 19
members: two Senators and two Assembly Members; two public
members appointed by the Senate Committee on Rules (one from the
disability community and one from the business community); two
public members appointed by the Speaker of the Assembly (one
from the disability community and one from the business
community); nine public members appointed by the Governor,
subject to confirmation by the Senate (five from the disability
community and four from the business community); the Attorney
General; and the State Architect. The CCDA seeks to balance the
number of appointees from the disability community and from the
business community. The Members of the Legislature, by their
offices, represent the state's interest in ensuring compliance
with the full and equal access laws. The State Architect and
the Attorney General are included for their expertise. The
Governor's appointees from the disability community must
represent a cross-section of people with disabilities, including
a person with a physical disability, a person who is visually
impaired or blind, a person who is with a cognitive disability,
and a person who is hearing impaired or deaf.
The CCDA meetings are subject to the Bagley-Keene Open Meeting
Act, meaning that all meetings are noticed and its agenda is
published. The meetings are also open to the public and
accessible to all. The CCDA is responsible for monitoring
compliance, reporting and making recommendations to the
Legislature. Despite initial funding difficulties and delays,
the Commission now has staff, has been meeting regularly, and is
carrying out its responsibilities. Due in part to some of the
delays the CCDA has experienced, the process provided for under
SB 1608 has not been given the opportunity to be fully
operational. However, this bill would appear to undermine the
SB 1608 accord and the fundamental role the Legislature has
established for the Commission by bypassing it entirely, and it
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is notable that the stakeholders whose efforts produced the
historic reforms of SB 1608 and who have worked hard to make the
CCDA a success do not support this bill.
This Bill Goes Further Than Prior Proposals By Applying Not Only
To Physical Barriers To Disability Access In Businesses But Also
To Housing Discrimination Against People With Visual And Hearing
Impairments. Among the disability access obligations covered by
this bill is the statute prohibiting the refusal to lease or
rent housing accommodations to an individual who is blind or
visually impaired on the basis that the individual uses the
services of a guide dog, or an individual who is deaf or
hearing-impaired on the basis that the individual uses the
services of a signal dog, or an individual with any other
disability on the basis that the individual uses the services of
a service dog, or refuses to permit such an individual who is
blind or visually impaired to keep a guide dog, an individual
who is deaf or hearing impaired to keep a signal dog, or an
individual with any other disability to keep a service dog on
the premises. (Civil Code Section 54.1(b)(6).) Similarly, the
bill would cover the existing prohibition against refusing to
lease or rent housing accommodations to an individual who is
blind or visually impaired, an individual who is deaf or hearing
impaired, or other individual with a disability on the basis
that the individual with a disability is partially or wholly
dependent upon the income of his or her spouse, if the spouse is
a party to the lease or rental agreement. (Civil Code Section
54.1(b)(7).) In addition, the bill would apply to
discrimination against persons who train guide dogs and who
under current law are allowed to take training dogs into places
of public accommodation. (Civil Code Section 54.1(c).)
ARGUMENTS IN SUPPORT : California Citizens Against Lawsuit Abuse
states:
AB l878 would help protect businesses from predatory
lawsuits alleging violations of the Americans with
Disabilities Act (ADA) and would help improve disability
access. Every year, there are thousands of lawsuits
against California small business owners alleging
violations of the ADA Many of these "drive by" cases result
in an attorney being paid a settlement of thousands of
dollars to simply make the case go away, without any
changes to improve disabled access. These lawsuits hurt
small businesses, hinder job growth and endanger our
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economic recovery. AB 1878 would ensure that business
owners are given an opportunity to correct these violations
before burdensome and costly litigation begins. The bill
will help to increase disabled access without hurting job
growth in our state.
The National Federation of Independent Business argues:
Frivolous lawsuits have become a growing problem and create
a negative climate for California small businesses. While
some claims may prove legitimate, a large percentage is
completely without merit. However, individuals and entities
that are sued still have to defend themselves, and this
defense is often costly to both business and consumers.
Small businesses, usually without a legal or administrative
department or the infrastructure to defend themselves, are
usually an easy target for plaintiff's attorneys who have
converted this into a cottage industry of sorts over the
years. While the accrual of various taxes and regulations
prove to adversely impact mom and pop small businesses, one
frivolous lawsuit can put an employer out of business
forever.
By establishing a short window of time for businesses to
fix alleged ADA violations without legal action, AB 1878
will help to rid our courts of lawsuits motivated by greed
and instead focus on making sure that customers have a safe
and comfortable experience while frequenting businesses in
our communities. AB 1878 ensures a comprehensive process
that promotes the original intent of the Americans with
Disabilities Act, reasonable and fair access for persons
with disabilities, while not impeding the ability
California's small businesses to create jobs and support
our communities during these uncertain times. AB 1878 will
help to ensure that barriers to entry are remedied,
improving access to public accommodations for the disabled,
while decreasing abusive ADA lawsuits aimed at extracting
money from businesses rather than improving access.
There is no dispute that the principles and goals of the
ADA are necessary to ensure that businesses are
accommodating to all citizens, but abusive ADA lawsuits are
hurting California's businesses and residents. In a time
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when our courts have had their funding cut dramatically and
our state's economy continues to struggle, California can
ill afford more abusive lawsuits that clog our courts and
hurt job growth while rewarding plaintiffs attorneys who
prove to be the only beneficiaries in these cases.
Civil Justice Association of California writes:
SB 1608 enacted a number of changes, including giving
property owners that had been deemed accessible by a
Certified Access Specialist the ability to request an early
evaluation conference with a court and a 90-day stay before
any litigation could proceed. The bill also created the
California Commission on Disability Access, which was
charged with issuing a number of reports to the Legislature
on this issue between 2011 and 2014, including
recommendations on how to reduce "unnecessary civil
actions."
Unfortunately, SB 1608 has not fully resolved the
underlying problem, which is the serial filing of disabled
access lawsuits by plaintiffs that prioritize financial
gain, not disabled access. These types of plaintiffs are
often filing "drive-by" lawsuits, where they simply request
a settlement payment, not that the property be made
accessible.
There are not only a lot of rules, but they are extremely
specific, such as requiring a specific height of a bathroom
mirror. A mirror that is one inch too high could be the
basis of a lawsuit. Moreover, the rules continue to change,
both at the federal and state level, making it difficult
for property owners to know what exactly is required of
them.
Given the difficulty for small businesses to consistently
meet all disabled access requirements, it is appropriate to
provide a short window of time for them to make the
necessary modifications before they are subject to a
lawsuit. There will still be an incentive for property
owners to pursue compliance prior to being notified of a
violation because many major modifications cannot be
completed in 120 days. There are many well-intentioned
property owners who are trying to comply but still may have
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minor technical violations due to the complexity and
specificity of the regulations. Lawsuits are not necessary
in these situations.
Moreover, the problem is greater in California because our
state's Unruh Act goes above and beyond the federal ADA.
In California, penalties for Unruh Act violations are
considered actual damages, and plaintiffs may recover three
times the actual damages or $4,000 per violation, whichever
is greater, plus attorney fees. That creates a situation
that can be exploited by lawyers looking for technical
violations because there is a high incentive for property
owners to settle rather than take on the risks and costs of
litigation.
ADA modifications can be very costly, and they become
harder to afford after making a settlement payment.
Drive-by lawsuits that result only in settlement payments
are not the way to achieve the goal of disabled access.
Education and greater awareness of disabled access
regulations is the better approach. AB 1878 strikes the
right balance between the need for equal access and
reasonable expectations of small businesses.
ARGUMENTS IN OPPOSITION : Disability Rights California writes in
opposition to the bill:
Federal and state disability access laws and regulations
are vital to the promotion of the total integration of
people with disabilities into social and economic life.
Further, California access laws and policies have been in
effect for decades and full compliance by businesses still
falls significantly short of what is required. Since
information regarding the requirements of the law is
widespread and available, there is no excuse that
compliance is so often dependent on individual complaints
and lawsuits.
It is essential to remember that the current law contains
the minimum standards needed to provide access and already
takes into account such things as whether a building
pre-existed the adoption of the law, whether barrier
removal is achievable, and what resources are available to
do so. To the extent that it can be shown that there are
abuses in the use of access law remedies, any proposed
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solution must be narrowly crafted to target only those
abuses, without impairing legitimate actions pursuant to
laws necessary to ensure access and civil rights.
Procedures already exist to deal with "vexatious litigants"
and "frivolous" law suits. People with disabilities should
not have enforcement of their civil rights limited or
delayed because of the actions of a few, especially when
current procedures deal adequately with the problem. AB
1878 is not targeted to the alleged problem. It affects
everyone who files lawsuits, not just vexatious litigants.
It treats people with disabilities as second class citizens
by targeting them for additional procedural and legal
barriers to enforce their rights. The bill singles out
people with disabilities, alone among all groups with civil
rights protections, to jump through legal hoops before
being able to have their civil rights violations addressed.
Entities that violate the law do not need advance written
notice of their legal obligations. The federal Americans
with Disabilities Act has been in force for more than 15
years and California disability access provisions date back
to the late 1960's. Businesses are already required to know
and comply with these laws.
Current law serves as a deterrent to noncompliance, thereby
preventing violations and helping to ensure access. AB 1878
would eliminate this effect since businesses would not need
to correct violations unless they received notice of a
violation.
The California Foundation for Independent Living Centers (CFILC)
adds:
CFILC opposes AB 1878 because it is yet another
manifestation of a series of similar "notice and delay"
bills sponsored by some business associations and other
civil lawsuit reform groups that seek to weaken the
physical access mandates of the ADA and state law. These
bills are founded on the proposition that people with
disabilities are responsible for the filing of "rampant,
vexatious" civil lawsuits to enforce "special" access laws.
Despite assertions to the contrary, people with
disabilities do not, in fact, have any special access legal
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rights. Rather, they have the same civil right protections
to enjoy equal opportunities under the law as are afforded
to all Americans.
It is true that there are a handful of plaintiff attorneys
who have exploited Federal and state disability access laws
by engaging in the practice of sending multiple defendants
settlement demand letters. However, it is also important
to acknowledge that there is a cottage industry of defense
attorneys who exploit defendants through outreach campaigns
to convince defendants that they need to defend the
lawsuits. These practices do not help either people with
disabilities that are denied access to those premises or
the owners or operators of those businesses or facilities.
Many of these plaintiff attorneys have no intention of
actually following through with the case to remedy the
physical access violations. In many other cases, defense
attorneys do not disclose to their clients that the
expenses associated with removing barriers or making the
necessary accommodations may be less expensive than
defending a lawsuit, as well as future lawsuits.
SB 1608 was a collaborative effort to bring meaningful
changes to the lack of enforcement of alleged accessibility
violations and these exploitive practices by plaintiff and
defense attorneys. It brought representatives of the
disability community and California business and restaurant
associations to the bargaining table. Following 2-years of
intensive negotiations, there was consensus agreement for a
broad range of meaningful reforms to deter the abuse of the
legal system and to provide incentives for voluntary
compliance through an expeditious resolution of these
complaints. The organizations that negotiated SB 1608 have
continued to support its implementation since it went into
effect on January 1, 2009. They have met periodically to
sponsor an educational program to distribute materials to
small business owners and publicize the reforms enacted by
SB 1608. The coalition remains open to assessing how well
the laws are being implemented at the ground level and to
support additional curative legislation, if necessary.
Prior Related Legislation. SB 783 (Dutton) of 2011 was a
substantially similar measure that failed passage in the Senate
Judiciary Committee. That bill would have imposed
pre-litigation procedural requirements upon the filing of any
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claim under the state's civil rights and equal access to public
or housing accommodation laws, including claims of violations of
the Americans with Disabilities Act (ADA) in state-owned
facilities. Specifically, that bill would have required a
30-day notice of violation served by personal service or
certified mail on the property owner or other responsible party,
with a possible 120-day additional waiting period during which
the property owner or other responsible party may bring the
property into compliance with disability access laws; if
correction of the violation did not occur by the end of the
additional 120 days and the owner failed to provide a
satisfactory explanation, the claimant would have been permitted
to file the claim; if correction of the violation did occur, the
aggrieved party and all future aggrieved parties would be
prohibited from receiving any award of damages, other than
defined "special damages," or any award of attorney's fees, in
any claim filed based on the same or similar facts.
Like this bill, AB 2533 (Keene) of 2008 would have required
persons with disabilities to deliver a notice prior to suit to
the person, firm, or corporation that is alleged to have denied
or interfered with a right of access, specifying the physical
conditions that are alleged to deny or interfere with the
disabled person's right of access. If the notice were given,
the alleged discriminatory entity would be allowed to make a
"good faith effort to remedy" the condition cited in the notice,
which would have barred any action for a remedy. The measure
failed passage in this Committee.
SB 1766 (McClintock) of 2008 would have taken a similar approach
by imposing a duty on a person with a disability to first notify
by certified mail the owner or manager of the housing or public
accommodation in violation of the full and equal access laws and
also impose a duty on the owner or manager to remedy the
condition complained of within six months. It would have
prohibited the person with a disability from filing a complaint
until six months after the certified letter of notification was
received. That bill failed passage in the Senate Judiciary
Committee.
AB 20 (Leslie) of 2005 would have precluded commencement of an
action for damages against a public facility for a de minimus
deviation from a code or regulation that has no significant
impact on a disabled person's right to the goods and services
provided by the facility, and would have specified instead that
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the remedy for a technical violation, as defined, is injunctive
relief and the recovery of attorney's fees. That measure was
referred to this Committee but the author chose not to seek a
hearing.
SB 855 (Poochigian) of 2005 would have imposed pre-litigation
procedural requirements upon the filing of any claim under the
state's civil rights and equal access to public or housing
accommodation laws, and limited an aggrieved party's right to
damages and attorney's fees, as specified, including by
requiring the aggrieved party, prior to the filing of any claim,
to serve a notice by personal service or certified mail on the
owner of the property or other responsible person, stating
specific information about the violation and granting the owner
or responsible party 30 days from the date of the notice to
respond and a period in which to make improvements. That
measure failed passage in the Senate Judiciary Committee.
AB 2594 (Leslie) of 2004 would have imposed additional
procedural requirements and limitations on persons with
disabilities who seek to redress violations of state law
regarding disability discrimination by businesses, housing
accommodations and public facilities by authorizing certain
persons to "certify" that a place of business or housing
accommodation complies with the federal Americans with
Disabilities Act, subject to specified limitations, requiring
persons with disabilities to provide 65 days advance notice in
writing and by certified mail to the owner of premises covered
by an ADA compliance certificate regarding all specific
violations of disability access laws, and to provide the owner
an opportunity to respond to the notice and address the
allegations in the notice prior to suit, and would have provided
immunity from disability discrimination laws for persons who
obtain such certificates for violations that occur prior to the
65-day notice period if the owner addresses the allegations in
the notice. That measure was referred to this Committee but the
author chose not to seek a hearing.
AB 209 (Leslie) of 2003 would have established a 60-day notice
requirement before bringing an action for damages under state
law against a business with fewer than 50 employees for an
alleged violation of the federal Americans with Disabilities Act
if the business has made a good faith effort to comply with the
ADA. This bill further provided that such a business may not be
sued under state law for violating the federal law if the
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business corrected the alleged violation within 60 days of the
date the notice of violation was received. For larger business
(50 or more employees), the bill provided that a potential
plaintiff shall make a reasonable effort to provide the
foregoing notice. If the plaintiff failed to provide the
notice, the amount of damages that a plaintiff may recover
against such a business is limited to $2,000 per violation.
That measure failed passage in this Committee.
SB 69 (Oller) of 2003 would have required that an individual
with a disability who in good faith believes that a public
accommodation or housing accommodation does not provide full and
equal access, to notify the owner or manager of that
accommodation. The bill would also set forth the duty of the
owner or manager, or other responsible party, to notify the
individual of planned access improvements, as defined, and to
make those improvements within a specified period, during which
period the individual would be prohibited from commencing a
cause of action under any state disabled access law. The bill
would also prohibit the recovery of attorney's fees, treble
damages, or any other costs, with respect to any action or
proceeding regarding access improvements. That measure failed
passage in the Senate Judiciary Committee.
AB 1040 (Dutra) of 2001 would have provided for certain notice
obligations and defenses with respect to violations of the ADA
under state law. After convening a wide range of business and
disability rights advocates in a series of substantive
discussions, the author ultimately elected not to move this
bill.
AB 2189 (Baldwin) of 2000 failed passage in this Committee.
That bill would have required a disability discrimination victim
to notify the owner or manager of a place of public
accommodation by certified mail clearly identifying the specific
access problems alleged, and give the responsible party 90 days
to make an "undisputed access improvement."
REGISTERED SUPPORT / OPPOSITION :
Support
American Council of Engineering Companies
California Citizens Against Lawsuit Abuse
California Grocers Association
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Civil Justice Association of California
El Dorado County Chamber of Commerce
National Federation of Independent Business
Two individuals
Opposition
American Civil Liberties Union
California Foundation for Independent Living Centers
Consumer Attorneys of California
Disability Rights California
Analysis Prepared by : Kevin G. Baker / JUD. / (916) 319-2334