BILL ANALYSIS �
SENATE JUDICIARY COMMITTEE
Senator Noreen Evans, Chair
2011-2012 Regular Session
AB 2282 (Berryhill)
As Amended May 10, 2012
Hearing Date: June 26, 2012
Fiscal: Yes
Urgency: No
NR
SUBJECT
Disability Access: Standing: Injunctive Relief
DESCRIPTION
Existing law establishes the California Commission on Disability
Access (CCDA). Among the purposes of the CCDA is to develop
recommendations that will both enable persons with disabilities
to exercise their right to full and equal access to public
facilities, and will facilitate business compliance with the
laws and regulations to avoid unnecessary litigation.
This bill would require the CCDA to analyze and make
recommendations to the Legislature regarding whether compliance
with state and federal construction-related disability
accessibility laws would be improved or potentially deterred by
changes to state rules regarding legal standing for actions
seeking injunctive relief to correct alleged violations of
disability access laws or the manner by which these claims are
pleaded.
BACKGROUND
Since 1969, persons with disabilities have enjoyed protection
under Civil Code
Sections 54 and 54.1, which entitle individuals with
disabilities and medical conditions to full and free access to
and use of roadways, sidewalks, buildings and facilities open to
the public, hospitals and medical facilities, and housing. After
Congress enacted the Americans with Disabilities Act (ADA) in
1990, the state made a violation of the ADA also a violation of
section 54 or 54.1. Generally speaking, the state protections
(more)
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provided to disabled persons are comparatively higher than those
provided under the ADA and are independent of the ADA.
Under the California Unruh Civil Rights Act, all persons,
regardless of sex, race, color, religion, ancestry, national
origin, disability or medical condition, are entitled to the
full and equal accommodations, advantages, facilities,
privileges, or services in all business establishments of every
kind. (Civ. Code Sec. 51.) A violation of the ADA also
constitutes a violation of section 51, which would subject a
person to actual damages incurred by an injured party, plus the
greater of $4,000, or treble actual damages, and any attorney's
fees as awarded by the court. (Civ. Code Sec. 52.)
To address compliance issues with disability access laws, SB
1608 (Corbett and Harmon, Chapter 549, Statutes of 2009) created
the California Commission on Disability Access (CCDA) to develop
recommendations to enable persons with disabilities to exercise
their right to full and equal access to public facilities,
facilitate business compliance with laws, and to formulate
regulations to avoid unnecessary litigation. 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.
This bill would require the CCDA to look specifically at legal
standing for injunctive relief for violations of state and
federal disability access laws, and make recommendations to the
Legislature on whether these laws would be improved by changes
to existing law. This bill would require that the study and
recommendations be undertaken promptly in light of urgent
concerns among businesses regarding the alleged misuse of
existing law.
CHANGES TO EXISTING LAW
Existing federal law , under the Americans with Disabilities Act
(ADA), provides that no individual shall be discriminated
against on the basis of disability in the full and equal
enjoyment of the goods, services, facilities, privileges,
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advantages, or accommodations of any place of public
accommodation by any person who owns, leases, or leases to, or
operates a place of public accommodation. (42 U.S.C. Sec.
12182.)
Existing law provides that individuals with disabilities or
medical conditions have the same right as the general public to
the full and free use of the streets, highways, sidewalks,
walkways, public buildings, medical facilities, including
hospitals, clinics and physicians' offices, public facilities
and other public places. It also provides that a violation of
an individual's rights under the ADA constitutes a violation of
state law. (Civ. Code Sec. 54.)
Existing law 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, state, or federal regulation, and applicable alike to all
persons. It 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 conditions
and limitations established by law. (Civ. Code Sec. 54.1.)
Existing law provides that a violation of the ADA also
constitutes a violation of Section 54.1. A violation of Section
54.1 subjects a person to actual damages, plus treble actual
damages but not less than $1,000, and attorney's fees as the
court deems proper. (Civ. Code Sec. 55.)
Existing law , the Unruh Civil Rights Act, declares that all
persons, regardless of sex, race, color, religion, ancestry,
national origin, disability or medical condition, are entitled
to the full and equal accommodations, advantages, facilities,
privileges, or services in all business establishments of every
kind whatsoever. A violation of the ADA also constitutes a
violation of Unruh, which subjects a person to actual damages
incurred by an injured party, treble actual damages but not less
than $4,000, and any attorney's fees as the court may determine
to be proper. (Civ. Code Sec. 51 et seq.)
Existing law established the California Commission on Disability
Access (CCDA), an independent state agency composed of 19
members, 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
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disability access. (Gov. Code Sec. 8299 et seq.)
This bill would require the CCDA to analyze and make
recommendations to the Legislature regarding whether compliance
with state and federal construction-related disability
accessibility laws would be improved or potentially deterred by
changes to state rules regarding legal standing for actions
seeking injunctive relief to correct alleged violations of
disability access laws or the manner by which these claims are
pleaded.
COMMENT
1.Stated need for the bill
According to the author:
Businesses all over California are experiencing hardships due
to the influx of drive-by litigants who cite violations of
disability access laws. The inconsistencies between the
federal and state laws pertaining to disability access,
combined with an increase in lawsuits regarding this issue,
have resulted in confusion and untempered liability for small
business owners.
AB 2282 submits the issue for further consideration and
recommendations to the California Commission on Disability
Access (CCDA) - an independent state agency with expertise in
these issues established as the result of bipartisan and
bicameral effort with disability rights organizations and
business advocates over a period of years pursuant to SB 1608
(Corbett and Harmon) in 2008.
2.Study concerning legal standing for injunctive relief
This bill would require the California Commission on Disability
Access (CCDA) to study legal standing for injunctive relief for
violations of state and federal disability access laws, and make
recommendations to the Legislature on whether these laws would
be improved by changes to existing law.
Under existing law, compliance with the American Disabilities
Act (ADA) requires that new facilities be readily accessible and
useable by individuals with disabilities, unless this would be
structurally impracticable. (42 U.S.C. Sec. 12183.) Generally,
a facility is compliant if it meets the requirements in the ADA
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Accessibility guidelines, which are issued by the Attorney
General. If a feature of a place of public accommodation is
inconsistent with these guidelines, a plaintiff can bring a
civil action claiming that the feature constitutes a barrier
that denies the plaintiff full and equal enjoyment of the
premises. Under the ADA, money damages are not available, and
therefore, plaintiffs may only sue for injunctive relief, (e.g.,
removal of the barrier.). Thus, in order to seek damages,
plaintiffs must attach parallel claims under state civil rights
laws.
A proper claim for relief must be based on sufficient legal
standing. The doctrine of standing requires a plaintiff to have
suffered some direct or substantial injury as a result of the
action or inaction of the defendant. For litigants alleging an
injury under the ADA, standing may be compromised when a
defendant fixes the alleged defect prior to the conclusion of
the civil action because the relief sought in the law suit is no
longer at issue. However, when a violation is corrected thereby
making the plaintiff's claim for injunctive relief moot, the
court has discretion to still hear the related state claim
attached to the claim for injunctive relief. The court may also
choose to remand the state claim back to state court for a
determination of the state law damages and attorney's fees
award.
The CCDA is charged with monitoring compliance with state laws
and regulations governing the accessibility of places of public
accommodation by persons with disabilities. Among other duties,
the CCDA is required to study and make reports to the
Legislature on several issue areas, including compliance with
state laws, conflicting federal law, and regulations that might
create compliance issues within the state. The CCDA is also
required to develop, prepare, recommend, or coordinate
materials, projects, or other activities related to disability
access as appropriate.
Because pleading standards regarding injunctive relief are
central to the issue of disability access compliance, the
concerns noted above regarding legal standing for injunctive
relief are arguably consistent with the subject matter and
responsibilities charged to the CCDA. Furthermore, pending
legislation, SB 1186 (Steinberg and Dutton, 2012), would require
the CCDA to conduct concurrent and prospective review of
legislative measures and recommendations on any additional ideas
or options to promote disability access and reduce unnecessary
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litigation. The requirements of this bill are arguably
complimentary with the duties that may be imposed on the CCDA by
concurrent legislation, making the provisions of this bill
timely as well.
Support : Civil Justice Association of California (CJAC);
Disability Rights California
Opposition : None Known.
HISTORY
Source : Author
Related Pending Legislation : SB 1186 (Steinberg and Dutton,
2012) would prohibit an attorney or any person from issuing a
demand for money to a building owner or tenant for a violation
of a construction-related accessibility standard. This bill is
being heard in the Assembly Judiciary Committee.
Prior Legislation :
SB 1163 (Walters, 2012) This bill was identical to SB 783
(Dutton, 2011). This bill failed passage in the Senate
Judiciary Committee.
SB 783 (Dutton, 2011) would establish notice requirements for an
aggrieved party to follow before he or she can bring a
disability access suit and give the business owner a 120-day
time period to remedy the violation. This bill failed passage
in the Senate Judiciary Committee.
SB 209 (Corbett & Harman, Chapter 569, Statutes of 2009)
required a CASp inspection report to remain confidential rather
than be under seal and subject to protective order.
SB 1608 (Corbett et al., Chapter 549, Statutes of 2008) provided
for an early evaluation of a filed complaint if the property of
the defendant was certified by a Certified Access Specialist
prior to the filing of the complaint.
SB 1766 (McClintock, 2008) would have imposed a duty on a
plaintiff to first notify the owner of a public accommodation in
violation of the full and equal access laws and impose a duty on
the owner to remedy the violation within six months. This bill
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failed passage in the Senate Judiciary Committee.
AB 2533 (Keene, 2008) would have required a person alleging
violations of full and equal access laws to deliver a specified
notice to the owner, and would have required the owner to make a
good faith effort to remedy the condition. This bill failed
passage in the Assembly Judiciary Committee.
SB 855 (Poochigian, 2005) would have required pre-litigation
procedures for a plaintiff to undertake prior to filing a
complaint bases on violation of full and fair access laws,
including notice to the owner of the property.
Prior Vote :
Assembly Floor (Ayes 72, Noes 1)
Assembly Committee on Appropriations (Ayes 17, Noes 0)
Assembly Committee on Judiciary (Ayes 10, Noes 0)
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