BILL ANALYSIS �
AB 1885
Page 1
Date of Hearing: May 6, 2014
ASSEMBLY COMMITTEE ON JUDICIARY
Bob Wieckowski, Chair
AB 1885 (Bigelow) - As Amended: April 1, 2014
SUBJECT : DISABILITY DISCRIMINATION: PLACES OF PUBLIC
ACCOMMODATION
KEY ISSUE : DOES THIS MEASURE, IN ITS EFFORT TO LIMIT THE
OBLIGATIONS OF 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?
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 to provide relief
to businesses who are having lawsuits filed against them because
they are not in compliance with certain ADA regulations. The
author argues that thousands of small businesses across the
state are having lawsuits filed against them for not being in
compliance with the smallest of building standards established
under the Americans with Disabilities Act and should have a
90-day window to correct any violations to come into compliance
with the often times complex and confusing regulations before a
lawsuit can be filed against them.
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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 1186 in
2012 (Steinberg-Dutton), as well as its predecessor SB 1608
(Corbett and Harman) of 2008, both of which were historic
bipartisan measures to reduce disability access violations and
unnecessary lawsuits.
SUMMARY : Denies statutory remedies to persons with disabilities
unless the person first gives an unprecedented pre-litigation
notice to the violator. Specifically, this bill :
1)Provides that notwithstanding any other provision of law,
prior to filing a claim under Section 51, 52, 54, 54.1, or
54.3 of the Civil Code, or Section 4450 or 4452 of the
Government Code, the alleged aggrieved party shall notify the
owner of the property, agent, or other responsible party where
the alleged violation occurred by personal service, in
accordance with applicable state or federal laws, or certified
mail, of all alleged special access violations for which a
claim may be filed by the alleged aggrieved party.
2)Further provides the precise content that prescribed notice
must contain as follows:
This letter is to inform you that the property located at
(address of property), for which you are the property
owner, agent, or other responsible party, may be in
violation of federal and/or state special access laws
pursuant to (expressly cite the federal and/or California
statute of which the property is believed to be in
violation) and caused harm to (list the name of the alleged
aggrieved party). Specifically, the possible violation(s)
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has/have been identified as follows: (Notice must identify
the specific facts that constitute the alleged violation,
including the date on which the alleged violation occurred
and identification of the location of the alleged violation
with sufficient detail, so that the location can be
identified by the property owner, agent, or other
responsible party). Under Section 55.4 of the California
Civil Code, you have 30 days to respond to this notice by
certified mail or personal service. Your response must be
addressed to (give address where personal service may be
received or certified mail may be sent). California law
allows you to respond in one of three ways:
You may expressly state that improvements will be made to
bring the premises into compliance with applicable special
access laws. If you respond in this fashion, you have a
maximum of 90 days to make these improvements or repairs.
The 90-day period shall begin on the date your response to
this notice is received at the address given above. If the
improvements or repairs necessary to bring the property
into compliance with federal and state special access laws
are not completed in 90 days, a lawsuit may be brought
against you.
You may challenge the validity of the alleged violations.
If you respond in this fashion, a lawsuit may be brought
against you immediately.
If the violations listed above are the same or similar to
previous violations that you believe have been corrected,
you may respond by stating that the necessary repairs have
been made to bring the property into compliance with
federal and state special access laws. You must also attach
evidence that verifies those improvements.
If you have any questions about this notice or your rights
under federal or California law, please contact your legal
counsel.
3)Provides that beginning with the date of notice, the property
owner, agent, or other responsible party where the alleged
violation occurred shall have 30 days to respond by certified
mail or personal service to the alleged aggrieved party. That
response shall communicate any of the following:
a) Expressly state that improvements will be made to bring
the premises into compliance with applicable laws. A
response in this fashion by the property owner, agent, or
other responsible party where the alleged violation
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occurred shall not be considered an admission of guilt and
is inadmissible in any future claims based on the same
facts filed against the property owner, agent, or other
responsible party.
b) Challenge the validity of the alleged violation. If the
property owner, agent, or other responsible party where the
alleged violation occurred so responds, the alleged
aggrieved party may file a claim, subject to any applicable
statutes of limitations, any time after receipt of notice
as prescribed in this section.
c) State that the alleged violations identified by the
alleged aggrieved party have been corrected to comply with
applicable state and federal special access laws. The
property owner, agent, or other responsible party where the
alleged violation occurred shall also attach evidence that
verifies those improvements.
4)Provides that if the property owner, agent, or responsible
party where the alleged violation occurred responds in the
manner described in paragraph (1) of subdivision (b), the
property owner, agent, or responsible party where the alleged
violation occurred shall have 90 days to remedy the alleged
violation. The 90-day period shall begin on the date the
alleged aggrieved party receives a response, pursuant to
subdivision (b), from the owner, agent, or responsible party
where the alleged violation occurred.
5)Provides in addition that if, at the end of the 90-day period,
the property owner, agent, or responsible party where the
alleged violation occurred has not made the improvements
described in paragraph (1) of subdivision (b) and fails to
provide satisfactory explanation as to why those repairs were
not yet completed, the alleged aggrieved party may file a
claim.
6)Also provides that if the property owner, agent, or other
responsible party where the alleged violation occurred has
made the improvements described in paragraph (1) of
subdivision (b), no current or future alleged aggrieved party
shall receive any damages or attorney's fees, other than
special damages, for any claim arising out of the same or
similar facts that served as a basis for the alleged
violation.
7)Provides that in making a determination of the amount of
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damages awarded to a successful plaintiff, a court or jury
shall consider previous or pending actual damage awards
received or prayed for by that plaintiff for the same or
similar injury.
1)States the intent of the Legislature to institute programs to
educate business property owners and local municipalities
about the accessibility requirements of federal and state
special access laws.
EXISTING LAW:
1)Pursuant to 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,
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.)
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. It also provides that a violation of
an individual's rights under the ADA constitutes a violation
of state law. (Civ. Code Sec. 54.)
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. 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.)
4)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.)
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5)Provides pursuant to the Unruh Civil Rights Act 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. A violation of this section
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.)
6)Establishes 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 disability access.
(Gov. Code Sec. 8299 et seq.)
7)Requires an attorney, when serving a demand for money letter
or a complaint on a defendant, to 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 the allegations
in the complaint. This written advisory is required from an
attorney only and is not required from a pro per plaintiff.
(Civ. Code Sec 55.3.)
8)Defines terms for a disability access action, specifically, as
follows:
a) defines a qualified defendant as a defendant in an
action that includes an accessibility claim as to a place
of public accommodation that has been inspected by a
certified access specialist (CASp) and determined to meet
applicable construction-related accessibility standards or
pending determination by a CASp;
b) defines a certified access specialist whose inspection
report would be the basis for a defendant to qualify for
the early evaluation conference;
c) defines the construction-related accessibility standard
that a CASp would use to inspect and prepare a report on
the place of public accommodation; and
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d) enumerates the duties of the CASp with respect to the
inspection, the corrections that may need to be made to the
site, written inspection report, and the statement of
compliance, including the issuance, upon completion of the
inspection and a determination that the site meets
applicable construction-related accessibility standards, of
a specified, watermarked, and sequentially numbered
disability access certificate that may be displayed at the
site. (Civ. Code Sec. 55.52.)
9)Provides that if a 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.)
10)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 standards 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.)
11)Outlines the specific process to be followed when filing a
disability access claim:
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 a qualified 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 qualified defendants a 90-day stay of the
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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
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.)
12)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.)
13)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.)
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14)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.)
15)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.)
16)Requires an attorney to provide a written advisory with each
demand letter or complaint, as defined, sent to or served upon
a defendant or potential defendant for any
construction-related accessibility claim, as specified.
(Civil Code Sec. 55.3.)
17)Requires an allegation of a construction-related
accessibility claim in a demand letter, or any allegation of
noncompliance with a construction-related accessibility
standard in a complaint, to state facts sufficient to allow
the defendant to identify the basis for the claim. (Civil
Code Sec. 55.31.)
18)Prohibits such a demand letter from including a request or
demand for money or an offer or agreement to accept money.
(Id.)
19)Requires an attorney to include his or her State Bar license
number in such a demand letter, and to submit copies of the
demand letter to the California Commission on Disability
Access (CCDA) and, until January 1, 2016, to the State Bar.
(Civil Code Sec. 55.32.)
20)Requires, until January 1, 2016, an attorney to submit a copy
of a complaint to the CCDA and subjects the attorney to
disciplinary action for violation. (Id.)
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21)Requires the CCDA to review and report on the demand letters
and complaints it receives until January 1, 2016. Also
requires the State Bar, commencing July 31, 2013, and annually
each July 31 thereafter, to report specified information to
the Legislature regarding the demand letters that it receives.
(Id.)
22)Permits other defendants to file a request for a court stay
and early evaluation conference pursuant to this provision,
including (A) a defendant, until January 1, 2018, whose site's
new construction or improvement on or after January 1, 2008,
and before January 1, 2016, was approved pursuant to the local
building permit and inspection process, (B) a defendant whose
site's new construction or improvement was approved by a local
public building department inspector who is a certified access
specialist, and (C) a defendant who is a small business, as
described. (Civil Code Sec. 55.54.)
23)Authorizes a defendant who does not qualify for an early
evaluation conference pursuant to these provisions, or who
forgoes those provisions, to request a mandatory evaluation
conference, as specified, and authorizes a plaintiff to make
that request if the defendant does not make that request.
(Id.)
24)Requires the court, in assessing liability in any action
alleging multiple claims for the same construction-related
accessibility violation on different particular occasions, to
consider the reasonableness of the plaintiff's conduct in
light of the plaintiff's obligation, if any, to mitigate
damages. (Civil Code Sec. 55.56.)
25)Reduces a defendant's minimum liability for statutory damages
in a construction-related accessibility claim against a place
of public accommodation to $1,000 for each unintentional
offense if the defendant has corrected all
construction-related violations that are the basis of the
claim within 60 days of being served with the complaint and
other specified conditions apply, and would reduce that
minimum liability to $2,000 for each unintentional offense if
the defendant has corrected all construction-related
violations that are the basis of the claim within 30 days of
being served with the complaint and the defendant is a small
business, as specified. (Civil Code Sec. 55.56.)
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26)Requires the Department of General Services to make a
biannual adjustment to financial criteria defining a small
business for these purposes, and to post those adjusted
amounts on its Internet Web site. (Id.)
27)Requires a commercial property owner to state on a lease form
or rental agreement executed on or after July 1, 2013, if the
property being leased or rented has undergone inspection by a
certified access specialist. (Civil Code Sec. 1938.)
FISCAL EFFECT : As currently in print this bill is keyed
non-fiscal.
COMMENTS : The author states the justification for the bill as
follows:
The main issue this bill seeks to address is providing
relief to businesses who are having lawsuits filed against
them because they are not in compliance with certain ADA
regulations. Currently, thousands of small businesses
across the state are having lawsuits filed against them for
not being in compliance with the smallest of building
standards established under the Americans with Disabilities
Act. AB 1885 seeks to provide these businesses with a 90
day window to correct any violations to come into
compliance with the often times complex and confusing
regulations before a lawsuit can be filed against them.
The Asserted Need For This Bill Rests On The Premise That The
Bipartisan Landmark Revision Of Disability Access Obligations
Pursuant To SB 1186 of 2012 Is Inadequate Or Has Failed,
Although No Evidence On That Point Has Been Produced. This
Committee in 2012 was directly involved in negotiating and
drafting SB 1186 (Steinberg-Dutton), a landmark bipartisan
measure carried by the Senate's majority and minority leaders.
The authors of that measure noted that it applied a common sense
approach to resolve difficult issues by maintaining the
hard-fought civil rights of the disabled community while helping
to protect California businesses from predatory demand for money
letters and lawsuits.
Among the far-reaching reforms worked by that bill was a
reduction in the minimum statutory damages for unintentional
violations by defendants, including all specified small
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businesses, provided that they fix the alleged violations. That
bill also prohibited both written and oral demands for money by
both lawyers and non-lawyers, and regulated the content and
provision of demand letters, including that both demand letters
and complaints be written with specificity, and the required
that demand letters and civil complaints be submitted to the
State Bar of California and to the California Commission on
Disability Access (CCDA). That bill was supported by a lengthy
list of business advocates who argued that it would curb lawsuit
abuse regarding the American's With Disabilities Act (ADA) while
promoting increased compliance with disabled accessibility
building codes throughout the state.
Although SB 1186 has been in effect for only a scant few months,
the premise of this bill appears to be that the bipartisan
approach taken by that measure has already failed. However, the
supporters of this bill have provided no evidence in support of
that contention.
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, or facility; or provision of a different or
separate facility, service or good (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.
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
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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.
However, notice of the violations would not be enough by itself.
The bill contains specific requirements that must be included.
Since the information contained in the notice must apparently be
specific to each and every violation, this obligation would
likely result in most claimants needing the 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 any recovery, including recover
for attorney's fees for a genuine act of discrimination if the
cause of the problem were rectified in the future. 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
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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.
Would Businesses Be Potentially Misled About Their Exposure To
Liability If State Law Provided 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]
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
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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).)
ARGUMENTS IN SUPPORT : The California Apartment Association
writes in support, stating:
As an organization, CAA supports the federal and state goal
to ensure that individuals with disabilities have an equal
opportunity for independent living. CAA does not support,
however, unscrupulous attorneys who have profited from
accessibility laws by pursuing small property owners for
minor violations or misconceptions of the accessibility
laws. While CAA does not condone ignorance of the law, CAA
has found that accessibility laws and compliance is not
easily understood by the general public. In fact, because
of the flexibility in the legal standard referred to as
"readily achievable" (meaning changes to a building are
required only if they can be easily accomplished and can be
carried out by the property owner without much "difficulty
or expense"), a property owner cannot be completely sure
he/she has complied with the law.
The California Dental Association also writes in support:
As a health care provider organization, CDA and its 24,000
members are especially sensitive to the importance of
providing access to disabled individuals, and we strive to
educate and encourage our members to accommodate all
patients, family members, and others who need access to the
dental office by achieving full compliance with federal and
state standards wherever needed. However, too many of our
members have been impacted by the frivolous lawsuits that
have continued to proliferate despite previous reform
efforts.
CDA supported SB 1186, enacted in 2012, which established a
number of new protections including reducing minimum
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statutory damages, increasing notice requirements, and
prohibiting pre-lawsuit "demand letters" seeking payment.
Unfortunately, SB 1186 has not adequately resolved the
problem.
Disabled access modifications can be very costly and become
harder to afford after making a settlement payment to a
plaintiff. By providing a 90-day window to make necessary
fixes that will help prevent costly lawsuits and
settlements, AB 1885 will help foster disabled access
compliance. The bill does not impact the ability of anyone
to file a complaint over an access barrier. However, given
that the ADA has been in effect for 24 years and lawsuits
over violations continue to proliferate, it is clear that
costly litigation is not going to achieve access for all.
AB 1885 builds upon SB 1186 and will help resolve a
critical issue for disabled individuals and the dental
offices that have every desire to serve them.
In addition, the Civil Justice Association of California argues:
The Civil Justice Association is pleased to support AB 1885
(Bigelow) as amended April 1, 2014, a bill that will
provide businesses with a 90 day window to correct any
technical American with Disabilities Act (ADA)
accessibility violation before a lawsuit commences.
The Legislature approved SB 1186 in 2012, which CJAC
supported, to help reduce the number of disabled access
lawsuits in California, recognizing that awareness of
disabled access obligations was lacking and that some were
abusing disabled access laws for financial gain.
Senate Bill 1186 enacted a number of new protections
including reducing the minimum statutory damages for
specified businesses, increasing the notice requirements to
businesses, prohibiting pre-lawsuit "demand letters"
seeking money, and imposing a $1 fee on business licenses
to increase the state's supply of disabled-access experts.
Unfortunately, SB 1186 has not fully resolved the
underlying problem, which is the ongoing serial filing of
disabled access lawsuits by plaintiffs that prioritize
financial gain, over disabled access. These types of
plaintiffs are still filing "drive-by" lawsuits.
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ADA modifications can be very costly, and they become
harder to afford after making a settlement payment. This
bill would allow a business to describe the modifications
that will be made within 30 days of a complaint and then
provide 90 days to complete them before a lawsuit
commences. This bill does not impact the ability for a
person injured by a barrier to file a lawsuit. Drive-by
lawsuits that result only in settlement payments are not
the way to achieve the goal of disabled access. There are
many well-intentioned property owners who are trying to
comply but still may have minor technical violations due to
the complexity and specificity of the regulations.
Furthermore, education and the fixing of barriers would
encourage disabled access.
This bill will build on SB 1186 and hopefully alleviate
some of the continuing shakedown lawsuits.
ARGUMENTS IN OPPOSITION : Disability Rights California writes in
opposition:
Under existing law, a person, firm, or corporation that
interferes with the access rights of a disabled individual
is liable for the actual damages of each offense and any
amount determined by a judge or jury of up to 3 times the
amount of the actual damages, but in no case less than
$1,000. Existing law requires the State Architect to
develop and submit for approval and adoption building
standards for making buildings, structures, sidewalks,
curbs, and related facilities accessible to, and usable by,
persons with disabilities.
This bill would establish notice requirements for an
alleged aggrieved party to follow before bringing an action
against a business for an alleged violation of the
above-described provisions. The bill would require that
party to provide specified notice to the owner of the
property, agent, or other responsible party where the
alleged violation occurred. The bill would require that
owner, agent, or other responsible party to respond within
30 days with a description of the improvements to be made
or with a rebuttal to the allegations. If that owner,
agent, or other responsible party elects to fix the alleged
violation, the bill would provide 90 days to do so. The
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bill would provide that its provisions do not apply to
claims for recovery of special damages for an injury in
fact, and would authorize the court to consider previous or
pending actual damage awards received or prayed for by the
alleged aggrieved party for the same or similar injury.
The bill would further state the intent of the Legislature
to institute certain educational programs related to
special access laws.
Any proposed revisions to access laws must be considered in
this context: 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 solution must
be narrowly crafted to target only those abuses, without
impairing legitimate actions pursuant to laws necessary to
ensure access and civil rights.
SB 1186 (Steinberg) signed into law in late 2012 was such a
bill. It provides that businesses who make good faith
efforts to comply with the law have reduced damage
liability and in fact even businesses who had not
undertaken any efforts to comply with the law receive
damage reductions. Further SB 1186 has been in effect for
about one year, hardly time to assess its impact.
Both SB 1608 (Corbett) passed in 2008 and SB 1186 took
steps to minimize attorney fee exposure for businesses by
setting up processes such as early settlement conferences.
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As you know, attorney fees are allowable under federal law,
thus changes in state law will have no impact on attorney
fee claims and in fact state law changes as proposed by
this bill may lead to fewer suits under state law resulting
in increased litigation costs.
This bill is without factual foundation. No hard data has
been provided regarding the scope and magnitude of the
alleged problems. In fact the California Commission on
Disability Access has identified the top ten access
problems - four of the top ten are related to parking. See
http://www.ccda.ca.gov/Reports.htm. Parking is one of the
easiest access violations to understand and correct.
Further, other common violations are easy to understand and
correct in advance of a lawsuit. Entities that violate the
law do not need advance written notice of their legal
obligations and time to correct the violation. The federal
Americans with Disabilities Act has been in force for more
than15 years and California disability access provisions
date back to the late 1960's. Businesses should know and
comply with these laws.
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. In
fact SB 1186 provides for the California State Bar to
review attorney demand letters for possible disciplinary
action if it does not comply with California Civil Code
requirements.
This bill 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.
Current law serves as a deterrent to noncompliance, thereby
preventing violations and helping to ensure access. This
bill would eliminate this effect since businesses and other
entities would not need to correct violations unless they
received notice of a violation.
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Rather than encouraging businesses to wait and see if they
are caught - your bill should be looking for ways to
provide incentives to businesses to comply, such as:
collecting additional fees on business licenses to help
fund certified access specialist inspections and resulting
needed improvements (SB 1186 already require $1 be
collected to fund education activities); lease provisions
to ensure landlords have buildings inspected and brought
into compliance before they are leased (SB 1186 requires
leases to state whether they have been inspected for
accessibility); educational material and training programs
provided to businesses when they apply for a business
license; and inspection programs similar to those conducted
by health and safety departments. Let's have meaningful up
front access improvement efforts rather than efforts to
stop enforcement of the laws.
Any amendments to existing law must fully maintain the
state's commitment to ensuring individuals with
disabilities have full and free use and enjoyment of public
facilities and accommodations. Regrettably, this bill does
not meet this objective.
Consumer Attorneys of California also opposes the bill, stating:
AB 1885 limits the legal rights of persons with
disabilities and treats them differently than other classes
of consumers by requiring notice and an opportunity to cure
violations.
Restrictions on the rights of persons with disabilities
ignore the consensus product found in SB 1608
(Corbett-2008) and SB 1186 (Steinberg-Dutton-2012).
Significant and major legislation in this area passed last
session-let's give it an opportunity to work before we
enact more changes.
Our organization worked for more than five years - meeting
at least weekly and at times daily - with key advocates
from the disability community, the California Chamber of
Commerce, the California Restaurant Association, the
Business Properties Association, the California Hotel
Association, Disability Rights California, the California
Foundation for Independent Living and others to craft a
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workable solution to this issue. The resulting consensus
product, SB 1608 (Corbett-Harman), was signed into law,
effective January 2009. The law provided a number of
measures designed to both increase access and address the
abuse by those few attorneys who are abusing the system by
sending demand letters to businesses with the aim of
collecting fees and not enforcing compliance. The effort
continued last session as CAOC participated in a year of
meetings, which resulted in the bi-partisan SB 1186 which
enacted further changes in the law.
CAOC has been actively involved to stop the few attorneys
who are sending demand letters without seeking access
change.
Since 2008, CAOC has been in the forefront of attempting to
alert businesses about the legal protections received if it
hires a certified access specialist (CASp) and about the
law generally. We produced pamphlets in both English and
Spanish (attached), have put out business alerts via our
website, have participated in workshops and produced a
video for small businesses with 10 steps they can take to
make sure their businesses comply with the law. (The video
may be viewed at www.caoc.org.)
Given the passage of SB 1608 and SB 1186 and our aggressive
outreach on this issue, we strongly believe that those
bills must be given a chance to work. Like any
legislation, they may not be perfect, but we think that it
is an example of diverse interest groups can work toward a
collective solution. CAOC believes that California's
disability access laws should continue to ensure equal
access to business establishments for persons with
disabilities. We are aware of cases that have received
publicity in this area, but believe that the Legislature
must be extremely careful in attempting to amend this area
of the law. We do believe that the goal of any ADA lawsuit
should be to ensure compliance, and we acknowledge that
there have been some suits that failed to target compliance
as the primary goal. We are willing to continue to work on
this issue.
REGISTERED SUPPORT / OPPOSITION :
Support
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California Apartment Association
California Dental Association
Civil Justice Association of California
Opposition
Consumer Attorneys of California
Disability Rights California
Analysis Prepared by : Kevin G. Baker / JUD. / (916) 319-2334