Amended in Assembly March 28, 2014

California Legislature—2013–14 Regular Session

Assembly Bill No. 1848

Introduced by Assembly Member Allen

February 19, 2014

An act to amend Section 55.56 of begin insert , and to add Section 55.56.1 to, end insert the Civil Code, relating to public accommodations.

LEGISLATIVE COUNSEL’S DIGEST

AB 1848, as amended, Allen. Public accommodations: begin delete access: damages end delete begin insert construction-related accessibility claims: notice. end insert

Existing law provides that a plaintiff may recover statutory damages in a construction-related accessibility claim against a place of public accommodation only if a violation of construction-related accessibility standards denied the plaintiff full and equal access to that site on a particular occasion, as specified. begin insert Existing law also requires a demand letter, as defined, alleging such a construction-related accessibility claim end insert begin insert , to state facts sufficient to allow a reasonable person to identify the basis of the violation or violations supporting the claim. end insert

begin insert

This bill would require an alleged aggrieved party to undertake prescribed notice procedures at least 30 days before filing an action against a business for an alleged violation of the above-described provisions. The notice would advise the recipient of the nature of the accessibility violation and that the recipient may be civilly liable for actual and statutory damages if the access barriers that constitute the basis of the construction-related accessibility claim are not removed during the 30-day time period. This bill would further specify the required content of the notice and would declare that a demand letter that includes specified prelitigation settlement negotiations, sent within the bill’s 30-day time period, constitutes compliance with the requirements of the bill.

end insert begin delete

This bill would make a nonsubstantive change to these provisions.

end delete

Vote: majority. Appropriation: no. Fiscal committee: no. State-mandated local program: no.

The people of the State of California do enact as follows:

SECTION 1.  

Section 55.56 of the Civil Code is amended to
read:

55.56.  

(a) Statutory damages under either subdivision (a) of
Section 52 or subdivision (a) of Section 54.3 may be recovered in
a construction-related accessibility claim against a place of public
accommodation 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 begin insert and the access barriers that constitute the basis
of the construction-related accessibility claim have not been
removed following the notification provided for in Section 55.56.1 end insert .

(b) A plaintiff is denied full and equal access only if the plaintiff
personally encountered the violation on a particular occasion, or
the plaintiff was deterred from accessing a place of public
accommodation on a particular occasion.

(c) A violation personally encountered by a plaintiff may be
sufficient to cause a denial of full and equal access if the plaintiff
experienced difficulty, discomfort, or embarrassment because of
the violation.

(d) A plaintiff demonstrates that he or she was deterred from
accessing a place of public accommodation on a particular occasion
only if both of the following apply:

(1) The plaintiff had actual knowledge of a violation or
violations that prevented or reasonably dissuaded the plaintiff from
accessing a place of public accommodation that the plaintiff
intended to use on a particular occasion.

(2) The violation or violations would have actually denied the
plaintiff full and equal access if the plaintiff had accessed the place
of public accommodation on that particular occasion.

(e) Statutory damages may be assessed pursuant to subdivision
(a) based on each particular occasion that the plaintiff was denied
full and equal access, and not upon the number of violations of
construction-related accessibility standards identified at the place
of public accommodation where the denial of full and equal access
occurred. If the place of public accommodation consists of distinct
facilities that offer distinct services, statutory damages may be
assessed based on each denial of full and equal access to the distinct
facility, and not upon the number of violations of
construction-related accessibility standards identified at the place
of public accommodation where the denial of full and equal access
occurred.

(f) (1) Notwithstanding any other law, a defendant’s liability
for statutory damages in a construction-related accessibility claim
against a place of public accommodation is reduced to a minimum
of one thousand dollars ($1,000) for each offense if the defendant
demonstrates that it has corrected all construction-related violations
that are the basis of a claim within 60 days of being served with
the complaint, and the defendant demonstrates any of the following:

(A) The structure or area of the alleged violation was determined
to be “CASp-inspected” or “meets applicable standards” and, to
the best of the defendant’s knowledge, there were no modifications
or alterations that impacted compliance with construction-related
accessibility standards with respect to the plaintiff’s claim that
were completed or commenced between the date of that
determination and the particular occasion on which the plaintiff
was allegedly denied full and equal access.

(B) The structure or area of the alleged violation was the subject
of an inspection report indicating “CASp determination pending”
or “Inspected by a CASp,” and the defendant has either
implemented reasonable measures to correct the alleged violation
before the particular occasion on which the plaintiff was allegedly
denied full and equal access, or the defendant was in the process
of correcting the alleged violation within a reasonable time and
manner before the particular occasion on which the plaintiff was
allegedly denied full and equal access.

(C) For a claim alleging a construction-related accessibility
violation filed before January 1, 2018, the structure or area of the
alleged violation was a new construction or an improvement that
was approved by, and passed inspection by, the local building
department permit and inspection process on or after January 1,
2008, and before January 1, 2016, and, to the best of the
defendant’s knowledge, there were no modifications or alterations
that impacted compliance with respect to the plaintiff’s claim that
were completed or commenced between the completion date of
the new construction or improvement and the particular occasion
on which the plaintiff was allegedly denied full and equal access.

(D) The structure or area of the alleged violation was new
construction or an improvement that was approved by, and passed
inspection by, a local building department official who is a certified
access specialist, and, to the best of the defendant’s knowledge,
there were no modifications or alterations that affected compliance
with respect to the plaintiff’s claim that were completed or
commenced between the completion date of the new construction
or improvement and the particular occasion on which the plaintiff
was allegedly denied full and equal access.

(2) Notwithstanding any other law, a defendant’s liability for
statutory damages in a construction-related accessibility claim
against a place of public accommodation is reduced to a minimum
of two thousand dollars ($2,000) for each offense if the defendant
demonstrates both of the following:

(A) The defendant has corrected all construction-related
violations that are the basis of a claim within 30 days of being
served with the complaint.

(B) The defendant is a small business that has employed 25 or
fewer employees on average over the past three years, or for the
years it has been in existence if less than three years, as evidenced
by wage report forms filed with the Economic Development
Department, and has average annual gross receipts of less than
three million five hundred thousand dollars ($3,500,000) over the
previous three years, or for the years it has been in existence if
less than three years, as evidenced by federal or state income tax
returns. The average annual gross receipts dollar amount shall be
adjusted biannually by the Department of General Services for
changes in the California Consumer Price Index for All Urban
Consumers, as compiled by the Department of Industrial Relations.
The Department of General Services shall post that adjusted
amount on its Internet Web site.

(3) This subdivision shall not be applicable to intentional
violations.

(4) Nothing in this subdivision affects the awarding of actual
damages, or affects the awarding of treble actual damages.

(5) This subdivision shall apply only to claims filed on or after
the effective date of Senate Bill 1186 of the 2011-12 Regular
Session of the Legislature. Nothing in this subdivision is intended
to affect a complaint filed before that date.

(g) This section does not alter the applicable law for the
awarding of injunctive or other equitable relief for a violation or
violations of one or more construction-related accessibility
standards or alter any legal obligation of a party to mitigate
damages.

(h) In assessing liability under subdivision (d), in an action
alleging multiple claims for the same construction-related
accessibility violation on different particular occasions, the court
shall consider the reasonableness of the plaintiff’s conduct in light
of the plaintiff’s obligation, if any, to mitigate damages.

begin insert

begin insert SEC. 2. end insert   

end insert

begin insert Section 55.56.1 is added to the end insert begin insert Civil Code end insert begin insert , to read: end insert

begin insert

begin insert 55.56.1. end insert   

(a) Statutory damages under either subdivision (a)
of Section 52 or subdivision (a) of Section 54.3 may be recovered
in a lawsuit alleging the existence of a construction-related
accessibility claim, as that term is defined in Section 55.52, against
a place of public accommodation only if the alleged aggrieved
party provides the owner of the property, agent, or other
responsible party where the alleged violation occurred with written
notice of the allegations on which the claim is based, at least 30
days prior to the filing of any action. The notice shall be prepared
with the specificity required by subdivision (a) of Section 55.31,
sufficient to allow a reasonable person to identify the basis of the
construction-related accessibility claim. The notice also shall state
that the recipient may be civilly liable for actual and statutory
damages for a violation of a construction-related accessibility
requirement if the access barriers that constitute the basis of the
construction-related accessibility claim are not removed within
the 30-day time period.

(b) A written demand letter that offers prelitigation settlement
negotiations, in accordance with subdivision (b) of Section 55.31,
that is provided within the 30-day time period required by this
section, shall constitute compliance with the notice requirement
described in subdivision (a).

end insert