SB 1142: Disability access.

(1)Existing law prohibits discrimination on the basis of various specified personal characteristics, including disability. Existing law provides that individuals with disabilities are entitled to full and equal access to places to which the general public is invited, subject to specified conditions and limitations.

This bill would provide that when there is a conflict or difference between the federal Americans with Disabilities Act of 1990 and any state law, standard, or regulation relating to the access of individuals with disabilities to any place to which the general public is invited, the federal Americans with Disabilities Act of 1990 shall control.

(2)Existing law allows a plaintiff to collect statutory damages in a construction-related accessibility claim against a place of public accommodation only if a violation of a construction-related accessibility standard denied the plaintiff full and equal access to the place of public accommodation on a particular occasion, as specified. Existing law reduces a defendants liability for statutory damages in a construction-related accessibility claim against a place of public accommodation to a minimum of $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 meets certain requirements, or a minimum of $2,000 for each offense if the defendant has corrected all construction-related violations that are the basis of a claim within 30 days of being served with the complaint and is a small business, as specified.

This bill would prohibit a construction-related accessibility claim for statutory damages from being initiated in a legal proceeding against a defendant unless the defendant has been served with a demand letter specifying each alleged violation of a construction-related accessibility standard and the alleged violations have not been corrected within 120 days of service. The bill would provide that a defendant is not liable for statutory damages, costs, or plaintiffs attorneys fees for an alleged violation that is corrected within 120 days of service of a demand letter alleging the violation.

(1)Existing law prohibits discrimination on the basis of various specified personal characteristics, including disability. Existing law provides that individuals with disabilities are entitled to full and equal access to places to which the general public is invited, subject to specified conditions and limitations.

This bill would provide that when there is a conflict or difference between the federal Americans with Disabilities Act of 1990 and any state law, standard, or regulation relating to the access of individuals with disabilities to any place to which the general public is invited, the federal Americans with Disabilities Act of 1990 shall control.

(2)Existing law allows a plaintiff to collect statutory damages in a construction-related accessibility claim against a place of public accommodation only if a violation of a construction-related accessibility standard denied the plaintiff full and equal access to the place of public accommodation on a particular occasion, as specified. Existing law reduces a defendants liability for statutory damages in a construction-related accessibility claim against a place of public accommodation to a minimum of $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 meets certain requirements, or a minimum of $2,000 for each offense if the defendant has corrected all construction-related violations that are the basis of a claim within 30 days of being served with the complaint and is a small business, as specified.

This bill would prohibit a construction-related accessibility claim from being initiated in a legal proceeding against a defendant unless the defendant has been served with a demand letter specifying each alleged violation of a construction-related accessibility standard and the alleged violations have not been corrected within 120 days of service. The bill would provide that a defendant is not liable for statutory damages, costs, or plaintiffs attorneys fees for an alleged violation that is corrected within 120 days of service of a demand letter alleging the violation.

SENATE JUDICIARY COMMITTEE

Senator Hannah-Beth Jackson, Chair

2015-2016 Regular Session

Bill No: SB 1142 (Author:Moorlach)

Version: April 13, 2016

Hearing Date: April 26, 2016

Fiscal: No

Urgency: No

Consultant: NR

SUBJECT

Disability access

DESCRIPTION

This bill would prohibit a construction-related accessibility claim for statutory damages from being initiated in a legal proceeding against a defendant unless the defendant has: 1) been served with a demand letter specifying each alleged violation of a construction-related accessibility standard; and 2) the alleged violations have not been corrected within 120 days of service. This bill would provide that a defendant is not liable for statutory damages, costs, or plaintiff’s attorney’s fees for an alleged violation that is corrected within 120 days of service of a demand letter.

This bill would provide that when there is a conflict or difference between the federal Americans with Disabilities Act (ADA) and any state law, standard, or regulation relating to the access of individuals with disabilities to any place to which the general public is invited, the ADA shall control.

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. The state protections provided to disabled persons are comparatively higher than those provided under the ADA and are independent of the ADA. Additionally, under the 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 whatsoever. (Civil Code Sec. 51.) A violation of the ADA also constitutes a violation of Section 51.

In 2003 and 2005, several bills were introduced after multiple lawsuits were filed in state court by a few plaintiffs and attorneys against business owners and operators for allegedly technical violations of the state’s access or ADA regulations. (SB 69 (Oller, 2003), AB 209 (Leslie, 2003), AB 20 (Leslie, 2005), SB 855 (Poochigian, 2005).) Three of those bills would have required a plaintiff to undertake prelitigation steps prior to the filing of a complaint, including providing notice to the owner of the property or business of the alleged violations, and provided a specified time period for the owner or business to cure the violations. One bill, (AB 20, Leslie, 2005) would have precluded an action for damages for a de minimus violation, allowing only injunctive relief and attorney’s fees. All of those bills failed passage in the Judiciary Committees of their respective houses. In 2008, two bills were introduced relating to disability access. AB 2533 (Keene, 2008) and SB 1766 (McClintock, 2008) would have both imposed prelitigation hurdles on plaintiffs claiming violations of construction-related disability access laws. Both of these bills failed in the Judiciary Committees of their respective houses. In 2011, SB 783 (Dutton, 2011) would have established notice requirements for an aggrieved party to follow before he or she can bring a disability access suit and given the business owner a 120-day time period to remedy the violation. That bill failed passage in this Committee.

Alternatively, SB 1608 (Corbett et al., Ch. 549, Stats. 2008), which took effect January 1, 2009, did not create any pre-litigation hurdles for a person with a disability but instead, among other things, provided for an early evaluation of a filed complaint if the defendant is a qualified defendant who had the identified place of public accommodation inspected and determined to meet applicable physical access standards by a state Certified Access Specialist (CASp) prior to the filing of the complaint. In 2012, Senators Steinberg and Dutton authored SB 1186 (Ch. 383, Stats. 2012) which sought to comprehensively address continued issues with disability litigation. Ultimately, the bipartisan effort was viewed as a compromise that hoped to end the abusive litigation tactics of some attorneys, protect the rights of disabled persons, and promote compliance with state and federal access laws. SB 1186 created a number of protections for small businesses and defendants who had, prior to a claim being filed, sought out a CASp inspection. These protections included reduced minimum statutory damages, early evaluation conferences, and mandatory stays of court proceedings while the violations were corrected. That bill also prevented the stacking of multiple claims to increase damages, banned pre-litigation demands for money, and increased data collection regarding alleged access violations.

Last year a number of bills were introduced to further combat perceived issues with disability litigation. AB 1521 (Committee on Judiciary, Ch. 755, Stats. 2015) created a new class of plaintiff, a “high frequency litigant,” upon which it imposed additional costs and procedural burdens. Two bills, one which created a tax credit for certain access expenditures to businesses, and the other that would have provided funding to the Commission on Disability Access, were vetoed by the Governor who stated that such legislation is more appropriately considered in the annual budget process (SB 251 (Roth) and AB 1342 (Steinorth); see Prior Legislation below). This bill, seeking to further address concerns of the business community, would require plaintiffs to serve a demand letter on a business, and then give the business 120 days to correct any violations prior to being able to file a suit for statutory damages.

CHANGES TO EXISTING LAW

Existing federal law, 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.)

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, and entitles persons to $4000 minimum statutory damages for violations of Unruh. (Civ. Code Sec. 51 et seq.)

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 Secs. 54, 54.1.)

Existing law provides that a violation of the ADA also constitutes a violation of Sections 54 or 54.1, and entitles a prevailing party to recover reasonable attorney’s fees. (Civ. Code Sec. 55.)

Existing law requires the State Architect to establish the Certified Access Specialist Program (CASp) and develop the specified criteria to have a person qualify as a certified access specialist. (Gov. Code Sec. 4459.5; Civ. Code Sec. 55.52.)

Existing law prohibits a demand letter from including a request or demand for money or an offer or agreement to accept money, unless the claim involves a physical injury and special damages, and provides that a violation of this provision constitutes cause for attorney discipline. (Civ. Code Sec. 55.31.)

Existing law requires a demand letter alleging a construction-related accessibility claim or noncompliance to state facts sufficient to allow the defendant to identify the basis for the claim, including a plain language explanation of the specific barriers the individual encountered, the way in which the barrier was entered, and the date or dates of each particular occasion on which the individual encountered the barrier. (Civ. Code Sec. 55.31(a).)

Existing law provides that certain qualified defendants may move for a 90-day stay and early evaluation conference. Defendants who do not qualify for an early evaluation conference pursuant to these provisions, or who forgoe those provisions, may request a mandatory evaluation conference, as specified. (Civ. Code Secs. 55.45 and 55.545.)

Existing law 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 had a CASp inspection, or occupies a building constructed after 2008, and corrected all construction-related violations that are the basis of the claim within 60 days of being served with the complaint. (Civ. Code Sec. 55.56(f)(1).)

Existing law reduces a defendant’s minimum liability for statutory damages 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, defined as less than $3.5 million in gross receipts and 25 or fewer employees, on average, over the past three years. (Civ. Code Sec. 55.56(f)(2).)

This bill would prohibit a construction-related accessibility claim for statutory damages from being initiated against a defendant unless:

• the defendant has been served with a demand letter specifying each alleged violation of a construction-related accessibility standard; and
• the alleged violations have not been corrected within 120 days of service.

This bill would provide that a defendant is not liable for statutory damages, costs, or plaintiff’s attorney’s fees for an alleged violation that is corrected within 120 days of service of a demand letter alleging the violation.

This bill would provide, when there is a conflict or difference between the ADA and any state law, standard, or regulation relating to the access of individuals with disabilities to any place to which the general public is invited, the ADA shall control.

COMMENT

1. Stated need for the bill

According to the author:

Across the state, businesses are being targeted for failing to be in compliance with the ever-changing disability access guidelines, resulting in lawsuits that cost the business thousands, and put money in the pockets of serial plaintiffs and trial attorneys. … Because California law provides that the plaintiff is entitled to minimum damages that can start as high as $4,000 per violation, triple the damages, and may be awarded attorney’s fees, mom-and-pop businesses are finding themselves fixing a $10 mirror, but owing tens of thousands of dollars to the plaintiff’s attorneys for their fees. …

Additionally, because California has implemented its own version of the ADA, the Construction-Related Accessibility Standards Compliance Act, there is often confusion as to which standards a business is supposed to adhere to. A plaintiff can sue under a cause of action that is not provided for in the ADA, but is under California law.

1. Removes incentives for businesses to proactively comply with access laws

Existing law provides certain protections to businesses who actively seek out a Certified Access sSpecialist (CASp) inspection prior to being sued for construction-related accessibility violations. These businesses are entitled to a 90-day stay and an early evaluation conference. They also qualify for reduced minimum statutory damages of $1000 per violation if the violations are corrected within 60 days. In addition, existing law extends similar protections to small businesses that have not had a CASp inspection, in that they qualify for minimum statutory damages of $2000 per violation if the violations are cured within 30 days.

This bill would instead give all businesses approximately four months to correct any identified access violations before being vulnerable to a law suit. If the identified violations are corrected within 120 days, businesses would be immune from any costs, fees, or damages. Under existing law, damages function as a penalty against business owners who have failed to make their property comply with accessibility laws. The potential threat of these penalties creates an incentive for business owners to make their buildings accessible because it protects them from liability. Thus, by eliminating a plaintiff’s ability to file suit and be awarded damages, this bill would also eliminate a powerful incentive for business owners to proactively make improvements to their properties. Businesses would instead have financial reasons to wait until being served a demand letter to fix accessibility violations, which is exactly the practice the Legislature sought to curb with SB 1608 and SB 1186 (see Background). Staff further notes that by allowing all potential defendants 120 days to correct any violations, this bill eliminates any benefit for businesses that have proactively taken action, through a CASp inspection, to comply with access laws and make their businesses accessible. In opposition, Disability Rights California writes:

Increasing the time period to 120 days to correct violations is unjustified. Since the enactment of SB 1186 in 2012 which allowed for a reduction in damages and a specific time period to correct construction-related barriers, there is no evidence to suggest that the current time periods to fix problems are not workable or insufficient.

Rather than encouraging businesses to wait and see if they are caught, this bill should provide incentives to businesses to comply, such as stronger lease provisions to ensure landlords have buildings inspected and brought into compliance before they are leased. SB 1186 (Steinberg, 2012) requires leases to state whether they have been inspected for accessibility. This would ensure small businesses are not the unwitting recipients of demand letters and lawsuits.

1. Creates an unprecedented pre-litigation procedural hurdle for disabled persons

Under existing law, if an individual’s civil rights or liberties are violated, he or she has a right to seek recourse in a court of law by filing a complaint. While there are situations where a plaintiff is required to take some preliminary steps before commencing an action or proceeding, those situations generally relate to contract and quasi-contract actions, beneficiary-trustee lawsuits against third parties, and to cases of professional malpractice (Witkin, California Procedure 4^th Ed., Vol. 3, 198 et seq.). Further, existing law does create demand letter requirements with regard to access suits, but it does not require that a demand letter be sent to a potential defendant prior to commencing litigation. Instead, to curb abusive practices by some actors, existing law outlines the permissible contents of a demand letter, including a prohibition on demands for money. This bill, by requiring that potential plaintiffs serve a pre-litigation demand letter on business, would create an unprecedented pre-litigation hurdle for persons with disabilities who are seeking to enforce their civil rights.

In opposition, the California Association of Public Authorities writes, “no other protected class is required to follow additional procedural and legal hurdles before they can enforce their civil rights. This is a policy the state of California should not endorse or promote. Furthermore, litigation of access violations is the only means available to people with disabilities to compel compliance by businesses. Without the ability to recover attorney’s fees, costs, and civil rights (statutory) damages, the majority of people with disabilities would not be able to enforce their civil rights and ensure compliance.”

4. Awards of attorney’s fees, costs, and statutory damages would be eliminated

Under existing law, persons who are deterred from accessing a business, are entitled to, at the very least, minimum statutory damages ranging from $1000 per violation to $4000 per violation, depending on the type of business. In addition, persons who are able to demonstrate some type of harm, may be entitled to “actual” damages, although actual damages in access suites are rarely present because they are very difficult to ascertain except in situations involving, for example, hospitals and clinics when the plaintiff needed medical attention. Thus, the law provides for the minimum of $1,000 in statutory damages so that businesses are deterred from ignoring access standards with regard to their establishments.

While the proponents argue that this bill is necessary to curb “needless payments of overly burdensome attorney’s fees,” this bill would in fact also curb meritorious claims by disabled plaintiffs. Other laws relating to the exercise of civil rights (such as access to senior housing, gender discrimination, discrimination by business establishments based on specified characteristics) provide for similar recovery of actual damages, attorney’s fees and costs, and minimum statutory damages. Denying disabled persons the ability to seek the same recovery under civil rights laws would single out their claims for less favorable treatment. The disabled community asserts that after over 40 years of state and 20 years of federal law guaranteeing full and equal access, compliance by businesses across the state leaves much to be desired. Further, staff notes that the value of attorney’s fees and costs, as well as the minimum $1,000 in statutory damages, to plaintiffs seeking redress is immeasurable because without the court’s ability to make this award, many plaintiffs could not afford to file suit to compel compliance.

1. Federal law provides minimum protections upon which state law may expand

This bill would provide that when there is a conflict or difference between the ADA and any state law, that the ADA should control. This requirement would, as a practical matter, nullify any state laws, standards, or regulations that are above what is required by the ADA. Not only could this result in the elimination of important protections that disabled Californians are entitled to, it could arguably eliminate updates to building standards that have made California standards easier to follow for businesses and contractors than the ADA. Arguably, this goes against our current notions of how state and federal law should interact, as articulated by Justice Brannan in a 1977 article:

[M]ore and more state courts are construing state constitutional counterparts of provisions of the Bill of Rights as guaranteeing citizens of their states even more protection than the federal provisions, even those identically phrased. This is surely an important and highly significant development for our constitutional jurisprudence and for our concept of federalism. … Federalism need not be a mean-spirited doctrine that serves only to limit the scope of human liberty. (Brennan, State Constitutions and the Protection of Individual Rights, 90 Harv. L. Rev. 489, 495, 503 (1977).)

Staff further notes that applying the ADA when there is any “difference” between federal and California law, as required under this bill, would also apply to remedies, and would therefore arguably limit a plaintiff’s ability to recover anything other than injunctive relief and attorney’s fees.

6. Legislative findings and declarations are not based on empirical data regarding these lawsuits

This bill contains legislative findings and declarations without empirical data supporting those findings. For example, the bill states:

“[O]ppressive lawsuits are needlessly decreasing or limiting access to public facilities since funds that could have been used to create greater accessibility are being taken by some attorneys for their excessive fees through unnecessary litigation.”

While prior to SB 1186 (Steinberg, Ch. 383, Stats. 2012), there was very little information regarding access suits in California, that bill included a number of data collection requirements so that the California Commission on Disability Access, the Legislature, and others could better understand the allegedly predatory practices of a few litigants and attorneys. Accordingly, the California Commission on Disability access has compiled data indicating that from January 2014 until January 2015, less than one percent of small businesses, and a far smaller percentage of all businesses, were sued in 2014 for violations of construction-related accessibility standards. However, of the 5,392 access-related complaints filed between September 2012 and October 2014, 54 percent of the cases were filed by two law firms, and 14 plaintiffs were involved in 46 percent of the cases. Relying on these numbers, the business community continues to argue that an alarming number of construction-related accessibility lawsuits are being filed by a small number of law firms in California.

The author and the proponents of this bill have not alleged that disabled plaintiffs and their attorneys are bringing unmeritorious claims, but instead that the fees charged by the attorneys are too high. However, as a matter of practice, civil laws, including the ADA and Unruh, are enforced through private actions. The ability to seek relief when access has been denied due to a construction-related access violation is the right of a disabled person in the same way that a woman who has been passed over for a promotion because of her gender or a minority who was refused service based on his race, has the right to sue the person who discriminated against them.

In opposition, Consumer Attorneys of California (CAOC) write, “CAOC understands that there have been some suits in this area that have not passed the smell test, but SB 1142 is not the answer.  Instead, CAOC has been working with the California Chamber of Commerce in good faith to find a solution to a problem plaguing many California communities:  how to make buildings more accessible for people with disabilities while at the same time stopping the abusive practices of some attorneys who are filing multiple lawsuits against mostly small businesses and seeking fees, not compliance. Consumer Attorneys wants to encourage compliance and stop, once and for all, the attorneys who are taking advantage of our law.” 

Support: California Apartment Association; California Chamber of Commerce; California Retailers Association; Civil Justice Association of California; CSAC Excess Insurance Authority

Opposition: California Association of Public Authorities; Consumer Attorneys of California; Disability Rights California; Tenants Together; Western Center on Law & Poverty

HISTORY

Source: Author

Related Pending Legislation:

SB 269 (Roth, 2016) is substantially similar to SB 251 (see below), with the exception of the tax credit, which the author removed to address the Governor’s concerns.

AB 54 (Olsen, 2015) would require that demand letters and complaints are sent to the Commission on Disability Access in a standard format specified by the Commission. This bill is currently in the Senate Judiciary Committee.

Prior Legislation:

AB 52 (Gray, 2015) would have provided that the defendant’s maximum liability for statutory damages in a construction-related accessibility claim against a place of public accommodation is $1,000 for each offense if the defendant has corrected all construction-related violations within 180 days of being served with the complaint.  This bill was never heard in the Assembly Judiciary Committee.

AB 1230 (Gomez, Ch. 787, Stats. 2015) establishes the California Americans with Disabilities Act Small Business Compliance Finance Act to provide loans to assist small businesses to finance the costs of projects that alter or retrofit existing small business facilities to comply with the federal Americans with Disabilities Act. 

AB 1342 (Steinorth, 2015) would have provided additional revenue to the California Commission on Disability Access.  This bill was vetoed by Governor Brown who stated that it was “something more appropriately addressed in the annual budget process.”

AB 1468 (Baker, 2015) would have provided that a public entity’s possession of a close out letter from the State Architect certifying that the buildings, facilities, and other places meet the applicable construction-related accessibility standards of the federal Americans with Disabilities Act, serves as presumptive evidence of compliance with the federal Americans with Disabilities Act.  This bill was never heard in the Assembly Judiciary Committee. See Background; Comments 2, 4, and 6.

AB 1521 (Committee on Judiciary, Ch. 755, Stats. 2015) See Background.

SB 67 (Galgiani, 2015) would have limited recovery against a small business for construction-related accessibility claims to injunctive relief and reasonable attorney’s fees, and would allow businesses who have undergone a CASp inspection 120 days to correct violations in order to qualify for reduced statutory minimum damages. This bill was never heard in the Senate Judiciary Committee.

SB 251 (Roth, 2015) would have made various changes to access laws, including: exempting a defendant from liability for minimum statutory damages if corrections were made within 120 days of receiving a CASp report; requiring the State Architect to publish a list of CASp inspected businesses; and providing a tax credit for elibible access expenditures, as specified. This bill was vetoed by Governor Brown who argued that tax credits are more appropriately addressed in the annual budget process.

SB 1186 (Steinberg and Dutton, Ch. 383, Stats. 2012) reduced statutory damages and provided litigation protections for specified defendants who timely correct construction-related accessibility violations of the Unruh Civil Rights Act. That bill also banned prelitigation “demands for money” and created rules for demand letters and complaints in claims involving construction-related accessibility violations.

AB 2282 (Berryhill, 2012) would have authorized an aggrieved person to bring a disability access suit only if: (1) the person has suffered an injury in fact; (2) the injury in fact was caused by the violation; and (3) the violation is redressable, was held under submission in the Senate Appropriations Committee.

AB 1878 (Gaines, 2011) which is substantially similar to SB 1163 but applies to “microbusinesses,” defined by the bill, failed passage in the Assembly Judiciary Committee.

SB 1163 (Walters, 2012) would have established notice requirements for an aggrieved party to follow before he or she can bring a disability access suit and would have given the business owner a 120-day time period to remedy the violation. If the property owner cured the violation, this bill would have prohibited the plaintiff from receiving any damages or attorney’s fees, except for special damages. This bill failed passage in this Committee.

SB 783 (Dutton, 2011), which was identical to SB 1163, failed passage in this Committee.

SB 384 (Evans, Ch. 419, Stats. 2011) clarified that attorneys who file complaints or send demand letters related to disability access violations must provide a written notice of legal rights and obligations whether or not the attorney intends to file an action in state or federal court.

SB 209 (Corbett & Harman, Ch. 569, Stats. 2009) required a CASp inspection report, to remain confidential rather than be under seal and subject to protective order.

SB 1608 (Corbett et al., Ch. 549, Stats. 2008) See Background; Comment 6.

SB 1766 (McClintock, 2008) See Background.

AB 2533 (Keene, 2008) See Background.

SB 855 (Poochigian, 2005) See Background.

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