SB 251: Disability access: civil rights: income tax credit.
- Session Year: 2015-2016
- House: Senate
- Latest Version Date: 2015-09-15
(1)Existing law prohibits discrimination on the basis of various specified personal characteristics, including disability. The Construction-Related Accessibility Standards Compliance Act establishes standards for making new construction and existing facilities accessible to persons with disabilities and provides for construction-related accessibility claims for violations of those standards. Existing law requires that a demand letter alleging a violation of a construction-related accessibility standard or asserting a construction-related accessibility claim include specified information, and that copies of the demand letter be sent to the State Bar of California. Existing law repeals the requirement that a copy of a demand letter be sent to the State Bar of California on January 1, 2016.
This bill would extend the above-described January 1, 2016, repeal date, to January 1, 2019.
Existing law requires that a copy of the demand letter and the complaint be sent to the California Commission on Disability Access.
This bill would, in addition, require that information about the demand letter and the complaint be submitted to the commission in a standard format specified by the commission.
(2)Existing law specifies that a violation of construction-related accessibility standards 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.
This bill would exclude certain technical violations from the scope of this provision, if specified conditions are met.
(3)Under existing law, a defendant is liable for actual damages plus minimum statutory damages for each instance of discrimination relating to a construction-related accessibility standard.
This bill would exempt a defendant from liability for minimum statutory damages with respect to a structure or area inspected by a certified access specialist for a period of 120 days if specified conditions are met. The bill would require a defendant who claims the benefit of this provision to disclose the date and findings of any certified access specialist (CASp) inspection to the plaintiff.
(4) Existing law requires the State Architect to establish and publicize a program for the voluntary certification by the state of any person who meets specified criteria as a CASp. Existing law requires the State Architect to annually publish a list of CASps. Existing law requires each applicant for CASp certification or renewal to pay certain fees, and requires the State Architect to periodically review those fees, as specified. Existing law provides for the deposit of those fees into the Certified Access Specialist Fund, which is continuously appropriated for use by the State Architect to implement the CASp program.
This bill would additionally require the State Architect to publish, and regularly update, easily accessible lists of businesses that file prescribed notices of inspection, and businesses which have been inspected by a CASp on or after January 1, 2016, including the date of the inspection. The bill would require the State Architect to develop a process by which a small business may notify the State Architect that a structure or area has had a CASp inspection and to develop a form for businesses to notify the public that the business has obtained a CASp inspection. The bill would also require applicants for CASp certification or renewal to additionally provide to the State Architect the name of the city, county, or city and county in which the applicant intends to provide or has provided services, and would require the Division of the State Architect to post that information on its Internet Web site.
(5)Existing law establishes the California Commission on Disability Access for purposes of developing recommendations to enable persons with disabilities to exercise their right to full and equal access to public facilities and facilitating business compliance with applicable state and federal laws and regulations. Existing law sets forth the powers and duties of the commission, including developing educational materials and information for businesses, building owners, tenants, and building officials, posting that information on the commissions Internet Web site, and coordinating with other state agencies and local building departments to ensure that information provided to the public on disability access requirements is uniform and complete.
This bill would additionally require the commission to provide a link on its Internet Web site to the Internet Web site of the Division of the State Architects CASp certification program, and make the commissions educational materials and information available to other state agencies and local building departments.
(6)The Planning and Zoning Law establishes procedures for the application, and review of an application, for a development project. Existing law requires a public agency to notify applicants for development permits of specified information, including the time limits established for the review and approval of development permits.
This bill would additionally require local agencies to develop and provide to applicants materials relating to the requirements of the federal Americans with Disabilities Act of 1990, or to instead provide similar materials developed by the California Commission on Disability Access. The bill would require a local agency to notify an applicant that approval of a permit does not signify that the applicant has complied with that act. The bill would also require local agencies to expedite review of projects for which the applicant provides a copy of a disability access certificate, demonstrates that the project is necessary to address an alleged violation of a construction-related access standard or a violation noted in a CASp report, and, if project plans are necessary for approval, has had a CASp review the project plans for compliance with all applicable construction-related accessibility standards. The bill would declare that these provisions constitute a matter of statewide concern and shall apply to charter cities and charter counties.
By imposing additional duties on local agencies with respect to the receipt and review of applications for development projects, this bill would impose a state-mandated local program.
(7)Existing federal law allows a credit against federal income taxes for eligible small businesses for eligible access expenditures, as those terms are defined, in an amount equal to 50% of eligible access expenditures for a taxable year that exceed $250 but do not exceed $10,250. The Personal Income Tax Law and the Corporation Tax Law allow a credit against the taxes imposed by those laws for the amount paid or incurred for eligible access expenditures in an amount equal to 50% of eligible access expenditures for a taxable year as do not exceed $250, as specified.
This bill would, for taxable years beginning on or after January 1, 2016, and before January 1, 2021, allow a credit under both the Personal Income Tax Law and the Corporation Tax Law for eligible access expenditures in accordance with the above-described federal tax credit, except with a credit amount equal to 10% of eligible access expenditures for a taxable year, as specified.
(8)The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.
This bill would provide that, if the Commission on State Mandates determines that the bill contains costs mandated by the state, reimbursement for those costs shall be made pursuant to these statutory provisions.
(9)This bill would incorporate additional changes to Section 55.32 of the Civil Code proposed by AB 1521 that would become operative if this bill and AB 1521 are both enacted and this bill is enacted last.
(10)This bill would incorporate additional changes to Section 8299.06 of the Government Code proposed by AB 1342 that would become operative if this bill and AB 1342 are both enacted and this bill is enacted last.
(1)Existing law prohibits discrimination on the basis of various specified personal characteristics, including disability. The Construction-Related Accessibility Standards Compliance Act establishes standards for making new construction and existing facilities accessible to persons with disabilities and provides for construction-related accessibility claims for violations of those standards. Existing law requires that a demand letter alleging a violation of a construction-related accessibility standard or asserting a construction-related accessibility claim include specified information, and that copies of the demand letter be sent to the State Bar of California. Existing law repeals the requirement that a copy of a demand letter be sent to the State Bar of California on January 1, 2016.
This bill would extend the above-described January 1, 2016, repeal date, to January 1, 2019.
Existing law requires that a copy of the demand letter and the complaint be sent to the California Commission on Disability Access.
This bill would, in addition, require that information about the demand letter and the complaint be submitted to the commission in a standard format specified by the commission.
(2)Existing law specifies that a violation of construction-related accessability accessibility standards 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.
This bill would exclude certain technical violations from the scope of this provision, if specified conditions are met.
(3)Under existing law, a defendant is liable for actual damages plus minimum statutory damages for each instance of discrimination relating to a construction-related accessibility standard.
This bill would exempt a defendant from liability for minimum statutory damages with respect to a structure or area inspected by a certified access specialist for a period of 120 days if specified conditions are met. The bill would require a defendant who claims the benefit of this provision, to disclose the date and findings of any certified access specialist (CASp) inspection to the plaintiff.
(4) Existing law requires the State Architect to establish and publicize a program for the voluntary certification by the state of any person who meets specified criteria as a CASp. Existing law requires the State Architect to annually publish a list of CASps. Existing law requires each applicant for CASp certification or renewal to pay certain fees, and requires the State Architect to periodically review those fees, as specified. Existing law provides for the deposit of those fees into the Certified Access Specialist Fund, which is continuously appropriated for use by the State Architect to implement the CASp program.
This bill would additionally require the State Architect to publish, and regularly update, easily accessible lists of businesses that file prescribed notices of inspection, and businesses which have been inspected by a CASp on or after January 1, 2016, including the date of the inspection. The bill would require the State Architect to develop a process by which a small business may notify the State Architect that a structure or area has had a CASp inspection and to develop a form for businesses to notify the public that the business has obtained a CASp inspection. The bill would also require applicants for CASp certification or renewal to additionally provide to the State Architect the name of the city, county, or city and county in which the applicant intends to provide or has provided services, and would require the Division of the State Architect to post that information on its Internet Web site.
(5)Existing law establishes the California Commission on Disability Access for purposes of developing recommendations to enable persons with disabilities to exercise their right to full and equal access to public facilities and facilitating business compliance with applicable state and federal laws and regulations. Existing law sets forth the powers and duties of the commission, including developing educational materials and information for businesses, building owners, tenants, and building officials, posting that information on the commissions Internet Web site, and coordinating with other state agencies and local building departments to ensure that information provided to the public on disability access requirements is uniform and complete.
This bill would additionally require the commission to provide a link on its Internet Web site to the Internet Web site of the Division of the State Architects CASp certification program, and make the commissions educational materials and information available to other state agencies and local building departments.
(6)The Planning and Zoning Law establishes procedures for the application, and review of an application, for a development project. Existing law requires a public agency to notify applicants for development permits of specified information, including the time limits established for the review and approval of development permits.
This bill would additionally require local agencies to develop and provide to applicants materials relating to the requirements of the federal Americans with Disabilities Act of 1990, or to instead provide similar materials developed by the California Commission on Disability Access. The bill would require a local agency to notify an applicant that approval of a permit does not signify that the applicant has complied with that act. The bill would also require local agencies to expedite review of projects for which the applicant provides a copy of a disability access certificate, demonstrates that the project is necessary to address an alleged violation of a construction-related access standard or a violation noted in a CASp report, and, if project plans are necessary for approval, has had a CASp review the project plans for compliance with all applicable construction-related accessibility standards. The bill would declare that these provisions constitute a matter of statewide concern and shall apply to charter cities and charter counties.
By imposing additional duties on local agencies with respect to the receipt and review of applications for development projects, this bill would impose a state-mandated local program.
(7)Existing federal law allows a credit against federal income taxes for eligible small businesses for eligible access expenditures, as those terms are defined, in an amount equal to 50% of eligible access expenditures for a taxable year that exceed $250 but do not exceed $10,250. The Personal Income Tax Law and the Corporation Tax Law allow a credit against the taxes imposed by those laws for the amount paid or incurred for eligible access expenditures in an amount equal to 50% of eligible access expenditures for a taxable year as do not exceed $250, as specified.
This bill would, for taxable years beginning on or after January 1, 2016, and before January 1, 2021, allow a credit under both the Personal Income Tax Law and the Corporation Tax Law for eligible access expenditures in accordance with the above-described federal tax credit, except with a credit amount equal to 10% of eligible access expenditures for a taxable year, as specified.
(8)The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.
This bill would provide that, if the Commission on State Mandates determines that the bill contains costs mandated by the state, reimbursement for those costs shall be made pursuant to these statutory provisions.
(9)This bill would incorporate additional changes to Section 55.32 of the Civil Code proposed by AB 1521 that would become operative if this bill and AB 1521 are both enacted and this bill is enacted last.
(9)
(10)This bill would incorporate additional changes to Section 8299.06 of the Government Code proposed by AB 1342 that would become operative if this bill and AB 1342 are both enacted and this bill is enacted last.
(1)Existing law prohibits discrimination on the basis of various specified personal characteristics, including disability. The Construction-Related Accessibility Standards Compliance Act establishes standards for making new construction and existing facilities accessible to persons with disabilities and provides for construction-related accessibility claims for violations of those standards. Existing law requires that a demand letter alleging a violation of a construction-related accessibility standard or asserting a construction-related accessibility claim include specified information, and that copies of the demand letter be sent to the State Bar of California. Existing law repeals the requirement that a copy of a demand letter be sent to the State Bar of California on January 1, 2016.
This bill would extend the above-described January 1, 2016, repeal date, to January 1, 2019.
Existing law requires that a copy of the demand letter and the complaint be sent to the California Commission on Disability Access.
This bill would, in addition, require that information about the demand letter and the complaint be submitted to the commission in a standard format specified by the commission.
(2)Existing law specifies that a violation of construction-related accessability standards 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.
This bill would exclude certain technical violations from the scope of this provision, if specified conditions are met.
(3)Under existing law, a defendant is liable for actual damages plus minimum statutory damages for each instance of discrimination relating to a construction-related accessibility standard.
This bill would exempt a defendant from liability for minimum statutory damages with respect to a structure or area inspected by a certified access specialist for a period of 120 days if specified conditions are met. The bill would require a defendant who claims the benefit of this provision, to disclose the date and findings of any certified access specialist (CASp) inspection to the plaintiff.
(4) Existing law requires the State Architect to establish and publicize a program for the voluntary certification by the state of any person who meets specified criteria as a CASp. Existing law requires the State Architect to annually publish a list of CASps. Existing law requires each applicant for CASp certification or renewal to pay certain fees, and requires the State Architect to periodically review those fees, as specified. Existing law provides for the deposit of those fees into the Certified Access Specialist Fund, which is continuously appropriated for use by the State Architect to implement the CASp program.
This bill would additionally require the State Architect to publish, and regularly update, easily accessible lists of businesses that file prescribed notices of inspection, and businesses which have been inspected by a CASp on or after January 1, 2016, including the date of the inspection. The bill would require the State Architect to develop a process by which a small business may notify the State Architect that a structure or area has had a CASp inspection and to develop a form for businesses to notify the public that the business has obtained a CASp inspection. The bill would also require applicants for CASp certification or renewal to additionally provide to the State Architect the name of the city, county, or city and county in which the applicant intends to provide or has provided services, and would require the Division of the State Architect to post that information on its Internet Web site.
(5)Existing law establishes the California Commission on Disability Access for purposes of developing recommendations to enable persons with disabilities to exercise their right to full and equal access to public facilities and facilitating business compliance with applicable state and federal laws and regulations. Existing law sets forth the powers and duties of the commission, including developing educational materials and information for businesses, building owners, tenants, and building officials, posting that information on the commissions Internet Web site, and coordinating with other state agencies and local building departments to ensure that information provided to the public on disability access requirements is uniform and complete.
This bill would additionally require the commission to provide a link on its Internet Web site to the Internet Web site of the Division of the State Architects CASp certification program, and make the commissions educational materials and information available to other state agencies and local building departments.
(6)The Planning and Zoning Law establishes procedures for the application, and review of an application, for a development project. Existing law requires a public agency to notify applicants for development permits of specified information, including the time limits established for the review and approval of development permits.
This bill would additionally require local agencies to develop and provide to applicants materials relating to the requirements of the federal Americans with Disabilities Act of 1990, or to instead provide similar materials developed by the California Commission on Disability Access. The bill would require a local agency to notify an applicant that approval of a permit does not signify that the applicant has complied with that act. The bill would also require local agencies to expedite review of projects for which the applicant provides a copy of a disability access certificate, demonstrates that the project is necessary to address an alleged violation of a construction-related access standard or a violation noted in a CASp report, and, if project plans are necessary for approval, has had a CASp review the project plans for compliance with all applicable construction-related accessibility standards. The bill would declare that these provisions constitute a matter of statewide concern and shall apply to charter cities and charter counties.
By imposing additional duties on local agencies with respect to the receipt and review of applications for development projects, this bill would impose a state-mandated local program.
(7)Existing federal law allows a credit against federal income taxes for eligible small businesses for eligible access expenditures, as those terms are defined, in an amount equal to 50% of eligible access expenditures for a taxable year that exceed $250 but do not exceed $10,250. The Personal Income Tax Law and the Corporation Tax Law allow a credit against the taxes imposed by those laws for the amount paid or incurred for eligible access expenditures in an amount equal to 50% of eligible access expenditures for a taxable year as do not exceed $250, as specified.
This bill would, for taxable years beginning on or after January 1, 2016, and before January 1, 2021, allow a credit under both the Personal Income Tax Law and the Corporation Tax Law for eligible access expenditures in accordance with the above-described federal tax credit, except with a credit amount equal to 10% of eligible access expenditures for a taxable year, as specified.
(8)The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.
This bill would provide that, if the Commission on State Mandates determines that the bill contains costs mandated by the state, reimbursement for those costs shall be made pursuant to these statutory provisions.
(9)This bill would incorporate additional changes to Section 8299.06 of the Government Code proposed by AB 1342 that would become operative if this bill and AB 1342 are enacted and this bill is enacted last.
(1)Existing law prohibits discrimination on the basis of various specified personal characteristics, including disability. The Construction-Related Accessibility Standards Compliance Act establishes standards for making new construction and existing facilities accessible to persons with disabilities and provides for construction-related accessibility claims for violations of those standards. Existing law requires that a demand letter alleging a violation of a construction-related accessibility standard or asserting a construction-related accessibility claim include specified information, and that copies of the demand letter be sent to the State Bar of California. Existing law repeals the requirement that a copy of a demand letter be sent to the State Bar of California on January 1, 2016.
This bill would extend the above-described January 1, 2016, repeal date, to January 1, 2019.
Existing law requires that a copy of the demand letter and the complaint be sent to the California Commission on Disability Access.
This bill would, in addition, require that information about the demand letter and the complaint be submitted to the commission in a standard format specified by the commission.
(2)Existing law specifies that a violation of construction-related accessability standards 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.
This bill would exclude certain technical violations from the scope of this provision, if specified conditions are met.
(3)Under existing law, a defendant is liable for actual damages plus minimum statutory damages for each instance of discrimination relating to a construction-related accessibility standard.
This bill would exempt a defendant from liability for minimum statutory damages with respect to a structure or area inspected by a certified access specialist for a period of 120 days if specified conditions are met. The bill would require a defendant who claims the benefit of this provision, to disclose the date and findings of any certified access specialist (CASp) inspection to the plaintiff.
(4) Existing law requires the State Architect to establish and publicize a program for the voluntary certification by the state of any person who meets specified criteria as a CASp. Existing law requires the State Architect to annually publish a list of CASps. Existing law requires each applicant for CASp certification or renewal to pay certain fees, and requires the State Architect to periodically review those fees, as specified. Existing law provides for the deposit of those fees into the Certified Access Specialist Fund, which is continuously appropriated for use by the State Architect to implement the CASp program.
This bill would additionally require the State Architect to publish, and regularly update, easily accessible lists of businesses that file prescribed notices of inspection, and businesses which have been inspected by a CASp on or after January 1, 2016, including the date of the inspection. The bill would require the State Architect to develop a process by which a small business may notify the State Architect that a structure or area has had a CASp inspection and to develop a form for businesses to notify the public that the business has obtained a CASp inspection. The bill would also require applicants for CASp certification or renewal to additionally provide to the State Architect the name of the city, county, or city and county in which the applicant intends to provide or has provided services, and would require the Division of the State Architect to post that information on its Internet Web site.
(5)Existing law establishes the California Commission on Disability Access for purposes of developing recommendations to enable persons with disabilities to exercise their right to full and equal access to public facilities and facilitating business compliance with applicable state and federal laws and regulations. Existing law sets forth the powers and duties of the commission, including developing educational materials and information for businesses, building owners, tenants, and building officials, posting that information on the commissions Internet Web site, and coordinating with other state agencies and local building departments to ensure that information provided to the public on disability access requirements is uniform and complete.
This bill would additionally require the commission to provide a link on its Internet Web site to the Internet Web site of the Division of the State Architects CASp certification program, and make the commissions educational materials and information available to other state agencies and local building departments.
(6)The Planning and Zoning Law establishes procedures for the application, and review of an application, for a development project. Existing law requires a public agency to notify applicants for development permits of specified information, including the time limits established for the review and approval of development permits.
This bill would additionally require local agencies to develop and provide to applicants materials relating to the requirements of the federal Americans with Disabilities Act of 1990, or to instead provide similar materials developed by the California Commission on Disability Access. The bill would require a local agency to notify an applicant that approval of a permit does not signify that the applicant has complied with that act. The bill would also require local agencies to expedite review of projects for which the applicant provides a copy of a disability access certificate, demonstrates that the project is necessary to address an alleged violation of a construction-related access standard or a violation noted in a CASp report, and, if project plans are necessary for approval, has had a CASp review the project plans for compliance with all applicable construction-related accessibility standards. The bill would declare that these provisions constitute a matter of statewide concern and shall apply to charter cities and charter counties.
By imposing additional duties on local agencies with respect to the receipt and review of applications for development projects, this bill would impose a state-mandated local program.
(7)Existing federal law allows a credit against federal income taxes for eligible small businesses for eligible access expenditures, as those terms are defined, in an amount equal to 50% of eligible access expenditures for a taxable year that exceed $250 but do not exceed $10,250. The Personal Income Tax Law and the Corporation Tax Law allow a credit against the taxes imposed by those laws for the amount paid or incurred for eligible access expenditures in an amount equal to 50% of eligible access expenditures for a taxable year as do not exceed $250, as specified.
This bill would, for taxable years beginning on or after January 1, 2016, and before January 1, 2023, 2021, allow to small businesses, as defined, a credit under both the Personal Income Tax Law and the Corporation Tax Law for eligible access expenditures in an accordance with the above-described federal tax credit, except with a credit amount equal to 50% 10% of eligible access expenditures for a taxable year, as specified.
(8)The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.
This bill would provide that, if the Commission on State Mandates determines that the bill contains costs mandated by the state, reimbursement for those costs shall be made pursuant to these statutory provisions.
(1)Existing law prohibits discrimination on the basis of various specified personal characteristics, including disability. The Construction-Related Accessibility Standards Compliance Act establishes standards for making new construction and existing facilities accessible to persons with disabilities and provides for construction-related accessibility claims for violations of those standards. Existing law requires that a demand letter alleging a violation of a construction-related accessibility standard or asserting a construction-related accessibility claim include specified information, and that copies of the demand letter be sent to the California Commission on Disability Access and the State Bar of California. Existing law repeals the requirement that a copy of a demand letter be sent to the State Bar of California on January 1, 2016.
This bill would extend the above-described January 1, 2016, repeal date, to January 1, 2019.
Existing law requires that a copy of the demand letter and the complaint be sent to the California Commission on Disability Access.
This bill would, in addition, require that information about the demand letter and the complaint be submitted to the commission in a standard format specified by the commission.
(2)Existing law requires a certified access specialist (CASp), upon completion of an inspection of a site, to issue a written inspection report for the site, as specified. Existing law provides, upon being served with a summons and complaint asserting a construction-related accessibility claim, that a defendant may file a request for a court stay and early evaluation conference in the proceedings, as specified. Under existing law, a defendant is liable for actual damages plus minimum statutory damages for each instance of discrimination. specifies that a violation of construction-related accessability standards 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.
This bill would provide that a business, prior to the initiation of litigation, receipt of a demand letter, or a business that is otherwise on notice of a violation of a construction-related accessibility standard prior to a CASp inspection, is not liable for minimum statutory damages for violating a construction-related liability standard if the violation is corrected within 90 days of the date of an inspection by a CASp. The bill would also provide that a small business is not liable for minimum statutory damages for an alleged violation if the violation concerns interior or exterior signage, the color and condition of parking lot paint striping, or truncated domes and is corrected within 15 days of service of a summons and complaint in a construction-related accessibility claim or receipt of a written notice, whichever is earlier. exclude certain technical violations from the scope of this provision, if specified conditions are met.
(3)Under existing law, a defendant is liable for actual damages plus minimum statutory damages for each instance of discrimination relating to a construction-related accessibility standard.
This bill would exempt a defendant from liability for minimum statutory damages with respect to a structure or area inspected by a certified access specialist for a period of 120 days if specified conditions are met. The bill would require a defendant who claims the benefit of this provision, to disclose the date and findings of any certified access specialist (CASp) inspection to the plaintiff.
(3)Under existing federal law, a landlord and tenant are both responsible for compliance with the federal Americans with Disabilities Act of 1990 and implementing regulations. The parties to a lease agreement may allocate responsibility by the lease or other contract. Existing law requires a commercial property owner or lessor to state on every lease form or rental agreement executed on or after July 1, 2013, whether the property has been inspected by a CASp and, if so, whether or not the property has been determined to meet all applicable construction-related accessibility standards.
This bill would require a commercial property owner to state on every lease form or rental agreement executed on or after January 1, 2016, that the owner or lessor and the tenant are both responsible for compliance with the federal Americans with Disabilities Act of 1990 and that responsibility for compliance may be allocated between the parties by the terms of the lease or other contract.
(4) Existing law requires the State Architect to establish and publicize a program for the voluntary certification by the state of any person who meets specified criteria as a CASp. Existing law requires the State Architect to annually publish a list of CASps. Existing law requires each applicant for CASp certification or renewal to pay certain fees, and requires the State Architect to periodically review those fees, as specified. Existing law provides for the deposit of those fees into the Certified Access Specialist Fund, which is continuously appropriated for use by the State Architect to implement the CASp program.
This bill would additionally require the State Architect to publish, and periodically regularly update, an easily accessible list lists of businesses that file prescribed notices of inspection, and businesses which have been inspected by a CASp on or after January 1, 2016, including the date of the inspection. The bill would require the State Architect to develop a process by which a small business may notify the State Architect that a structure or area has had a CASp inspection and to develop a form for businesses to notify the public that the business has obtained a CASp inspection. The bill would also require applicants for CASp certification or renewal to additionally provide to the State Architect the name of the city, county, or city and county in which the applicant intends to provide or has provided services, and would require the Division of the State Architect to post that information on its Internet Web site.
(5)Existing law establishes the California Commission on Disability Access for purposes of developing recommendations to enable persons with disabilities to exercise their right to full and equal access to public facilities and facilitating business compliance with applicable state and federal laws and regulations. Existing law sets forth the powers and duties of the commission, including developing educational materials and information for businesses, building owners, tenants, and building officials, posting that information on the commissions Internet Web site, and coordinating with other state agencies and local building departments to ensure that information provided to the public on disability access requirements is uniform and complete.
This bill would additionally require the commission to provide a link on its Internet Web site to the Internet Web site of the Division of the State Architects CASp certification program, and make the commissions educational materials and information available to other state agencies and local building departments.
(6)The Planning and Zoning Law establishes procedures for the application, and review of an application, for a development project. Existing law requires a public agency to notify applicants for development permits of specified information, including the time limits established for the review and approval of development permits.
This bill would additionally require local agencies to develop and provide to applicants materials relating to the requirements of the federal Americans with Disabilities Act of 1990, or to instead provide similar materials developed by the California Commission on Disability Access. The bill would require a local agency to notify an applicant that approval of a permit does not signify that the applicant has complied with that act. The bill would also require local agencies to expedite review of projects for which the applicant provides a copy of a disability access certificate, demonstrates that the project is necessary to address an alleged violation of a construction-related access standard or a violation noted in a CASp report, and, if project plans are necessary for approval, has had a CASp review the project plans for compliance with all applicable construction-related accessibility standards. The bill would declare that these provisions constitute a matter of statewide concern and shall apply to charter cities and charter counties.
By imposing additional duties on local agencies with respect to the receipt and review of applications for development projects, this bill would impose a state-mandated local program.
(7)Existing federal law allows a credit against federal income taxes for eligible small businesses for eligible access expenditures, as those terms are defined, in an amount equal to 50% of eligible access expenditures for a taxable year that exceed $250 but do not exceed $10,250. The Personal Income Tax Law and the Corporation Tax Law allow a credit against the taxes imposed by those laws for the amount paid or incurred for eligible access expenditures in an amount equal to 50% of eligible access expenditures for a taxable year as do not exceed $250, as specified.
This bill would, for taxable years beginning on or after January 1, 2016, and before January 1, 2023, allow to small businesses, as defined, a credit under both the Personal Income Tax Law and the Corporation Tax Law for eligible access expenditures in an amount equal to 50% of eligible access expenditures for a taxable year, as specified.
(8)The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.
This bill would provide that, if the Commission on State Mandates determines that the bill contains costs mandated by the state, reimbursement for those costs shall be made pursuant to these statutory provisions.
(1)Existing law prohibits discrimination on the basis of various specified personal characteristics, including disability. The Construction-Related Accessibility Standards Compliance Act establishes standards for making new construction and existing facilities accessible to persons with disabilities and provides for construction-related accessibility claims for violations of those standards. Existing law requires that a demand letter alleging a violation of a construction-related accessibility standard or asserting a construction-related accessibility claim include specified information, and that copies of the demand letter be sent to the California Commission on Disability Access and the State Bar of California. Existing law repeals the requirement that a copy of a demand letter be sent to the State Bar of California on January 1, 2016.
This bill would extend the above-described January 1, 2016, repeal date, to January 1, 2019.
(2)Existing law requires a certified access specialist (CASp), upon completion of an inspection of a site, to issue a written inspection report for the site, as specified. Existing law provides, upon being served with a summons and complaint asserting a construction-related accessibility claim, that a defendant may file a request for a court stay and early evaluation conference in the proceedings, as specified. Under existing law, a defendant is liable for actual damages plus minimum statutory damages for each instance of discrimination.
This bill would provide that a business, prior to the initiation of litigation, receipt of a demand letter, or a business that is otherwise on notice of a violation of a construction-related accessibility standard prior to a CASp inspection, is not liable for minimum statutory damages for violating a construction-related liability standard if the violation is corrected within 90 days of the date of an inspection by a CASp. The bill would also provide that a small business is not liable for minimum statutory damages for an alleged violation if the violation concerns interior or exterior signage, the color and condition of parking lot paint striping, or truncated domes and is corrected within 15 days of service of a summons and complaint in a construction-related accessibility claim or receipt of a written notice, whichever is earlier.
(3)Under existing federal law, a landlord and tenant are both responsible for compliance with the federal Americans with Disabilities Act of 1990 and implementing regulations. The parties to a lease agreement may allocate responsibility by the lease or other contract. Existing law requires a commercial property owner or lessor to state on every lease form or rental agreement executed on or after July 1, 2013, whether the property has been inspected by a CASp and, if so, whether or not the property has been determined to meet all applicable construction-related accessibility standards.
This bill would require a commercial property owner to state on every lease form or rental agreement executed on or after January 1, 2016, that the owner or lessor and the tenant are both responsible for compliance with the federal Americans with Disabilities Act of 1990 and that responsibility for compliance may be allocated between the parties by the terms of the lease or other contract.
(4)Existing law requires the State Architect to establish and publicize a program for the voluntary certification by the state of any person who meets specified criteria as a CASp. Existing law requires the State Architect to annually publish a list of CASps. Existing law requires each applicant for CASp certification or renewal to pay certain fees, and requires the State Architect to periodically review those fees, as specified. Existing law provides for the deposit of those fees into the Certified Access Specialist Fund, which is continuously appropriated for use by the State Architect to implement the CASp program.
This bill would additionally require the State Architect to publish, and periodically update, an easily accessible list of businesses which have been inspected by a CASp on or after January 1, 2016, including the date of the inspection. The bill would also require applicants for CASp certification or renewal to additionally provide to the State Architect the name of the city, county, or city and county in which the applicant intends to provide or has provided services, and would require the Division of the State Architect to post that information on its Internet Web site.
(5)Existing law establishes the California Commission on Disability Access for purposes of developing recommendations to enable persons with disabilities to exercise their right to full and equal access to public facilities and facilitating business compliance with applicable state and federal laws and regulations. Existing law sets forth the powers and duties of the commission, including developing educational materials and information for businesses, building owners, tenants, and building officials, posting that information on the commissions Internet Web site, and coordinating with other state agencies and local building departments to ensure that information provided to the public on disability access requirements is uniform and complete.
This bill would additionally require the commission to provide a link on its Internet Web site to the Internet Web site of the Division of the State Architects CASp certification program, and make the commissions educational materials and information available to other state agencies and local building departments.
(6)The Planning and Zoning Law establishes procedures for the application, and review of an application, for a development project. Existing law requires a public agency to notify applicants for development permits of specified information, including the time limits established for the review and approval of development permits.
This bill would additionally require local agencies to develop and provide to applicants materials relating to the requirements of the federal Americans with Disabilities Act, Act of 1990, or to instead provide similar materials developed by the California Commission on Disability Access. The bill would require a local agency to notify an applicant that approval of a permit does not signify that the applicant has complied with that act. The bill would also require local agencies to expedite review of projects for which the applicant provides a copy of a disability access certificate, demonstrates that the project is necessary to address an alleged violation of a construction-related access standard or a violation noted in a CASp report, and, if project plans are necessary for approval, has had a CASp review the project plans for compliance with all applicable construction-related accessibility standards. The bill would declare that these provisions constitute a matter of statewide concern and shall apply to charter cities and charter counties.
By imposing additional duties on local agencies with respect to the receipt and review of applications for development projects, this bill would impose a state-mandated local program.
(7)Existing federal law allows a credit against federal income taxes for eligible small businesses for eligible access expenditures, as those terms are defined, in an amount equal to 50% of eligible access expenditures for a taxable year that exceed $250 but do not exceed $10,250. The Personal Income Tax Law and the Corporation Tax Law allow a credit against the taxes imposed by those laws for the amount paid or incurred for eligible access expenditures in an amount equal to 50% of eligible access expenditures for a taxable year as do not exceed $250, as specified.
This bill would, for taxable years beginning on or after January 1, 2016, and before January 1, 2023, allow to small businesses, as defined, a credit under both the Personal Income Tax Law and the Corporation Tax Law for eligible access expenditures in an amount equal to 50% of eligible access expenditures for a taxable year, as specified.
(8)The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.
This bill would provide that, if the Commission on State Mandates determines that the bill contains costs mandated by the state, reimbursement for those costs shall be made pursuant to these statutory provisions.
(1)Existing law prohibits discrimination on the basis of various specified personal characteristics, including disability. The Construction-Related Accessibility Standards Compliance Act establishes standards for making new construction and existing facilities accessible to persons with disabilities and provides for construction-related accessibility claims for violations of those standards. Existing law requires certified that a demand letter alleging a violation of a construction-related accessibility standard or asserting a construction-related accessibility claim include specified information, and that copies of the demand letter be sent to the California Commission on Disability Access and the State Bar of California. Existing law repeals the requirement that a copy of a demand letter be sent to the State Bar of California on January 1, 2016.
This bill would extend the above-described January 1, 2016, repeal date, to January 1, 2019.
(2)Existing law requires a certified access specialists (CASps), specialist (CASp), upon completion of an inspection of a site, to issue a written inspection report for the site, as specified. Existing law provides, upon being served with a summons and complaint asserting a construction-related accessibility claim, that a defendant may file a request for a court stay and early evaluation conference in the proceedings, as specified. Under existing law, a defendant is liable for actual damages plus minimum statutory damages for each instance of discrimination.
This bill would provide that a business business, prior to the initiation of litigation, receipt of a demand letter, or a business that is otherwise on notice of a violation of a construction-related accessibility standard prior to a CASp inspection, is not liable for minimum statutory damages for violating a construction-related liability standard if the business is an inspected by a CASp site and the violation is corrected within 90 days of receiving the above-described written the date of an inspection report from by a CASp. If the alleged violation is a minor matter, as provided, the The bill would also provide that the a small business is not liable for the minimum statutory damages for an alleged violation if the violation concerns interior or exterior signage, the color and condition of parking lot paint striping, or truncated domes and is corrected within 30 15 days of service of a summons and complaint in a construction-related accessibility claim or receipt of a written notice, whichever is earlier.
(2)Existing law establishes remedies for discrimination on the basis of personal characteristics. Under existing law, a defendant is liable for actual damages plus an additional amount, up to three times actual damages but no less than $4,000, for each offense. A defendants liability for statutory damages for a violation of a construction-related accessibility standard may be reduced to $1,000 for each offense if the defendant demonstrates, among other things, that it has corrected the construction-related violations within 60 days of being served with the complaint. Under existing law, a person who interferes with the rights of an individual with disabilities, as provided, is liable for actual damages plus an additional amount, up to three times actual damages but no less than $1,000, for each offense.
This bill would provide that a defendant is not liable for statutory damages for more than one offense if the defendant is a microbusiness, as defined, and has corrected the construction-related violation prior to the filing of the lawsuit.
(3)Under existing federal law, a landlord and tenant are both responsible for compliance with the federal Americans with Disabilities Act and implementing regulations. The parties to a lease agreement may allocate responsibility by the lease or other contract. Existing law requires a commercial property owner or lessor to state on every lease form or rental agreement executed on or after July 1, 2013, whether the property has been inspected by a certified access specialist CASp and, if so, whether or not the property has been determined to meet all applicable construction-related accessibility standards.
This bill would require a commercial property owner to state on every lease form or rental agreement executed on or after January 1, 2016, that the owner or lessor and the tenant are both responsible for compliance with the Americans with Disabilities Act and that responsibility for compliance may be allocated between the parties by the terms of the lease or other contract.
(4)Existing law requires the State Architect to establish and publicize a program for the voluntary certification by the state of any person who meets specified criteria as a CASp. Existing law requires the State Architect to annually publish a list of CASps. Existing law requires each applicant for CASp certification or renewal to pay certain fees, and requires the State Architect to periodically review those fees, as specified. Existing law provides for the deposit of those fees into the Certified Access Specialist Fund, which is continuously appropriated for use by the State Architect to implement the CASp program.
This bill would additionally require the State Architect to publish, and periodically update, an easily accessible list of businesses which have been inspected by a CASp on or after January 1, 2016, including the date of the inspection. The bill would also require applicants for CASp certification or renewal to additionally provide to the State Architect information about the name of the city, county, or city and county in which the applicant intends to provide or has provided services, and would require the Division of the State Architect to post that information on its Internet Web site.
(5)Existing law establishes the California Commission on Disability Access for purposes of developing recommendations to enable persons with disabilities to exercise their right to full and equal access to public facilities and facilitating business compliance with applicable state and federal laws and regulations. Existing law sets forth the powers and duties of the commission, including developing educational materials and information for businesses, building owners, tenants, and building officials, posting that information on the commissions Internet Web site, and coordinating with other state agencies and local building departments to ensure that information provided to the public on disability access requirements is uniform and complete.
This bill would additionally require the commission to provide a link on its Internet Web site to the Internet Web site of the Division of the State Architects CASp certification program, and make the commissions educational materials and information available to other state agencies and local building departments.
(6)The Planning and Zoning Law establishes procedures for the application, and review of an application, for a development project. Existing law requires a public agency to notify applicants for development permits of specified information, including the time limits established for the review and approval of development permits.
This bill would additionally require local agencies to develop and provide to applicants materials relating to the requirements of the federal Americans with Disabilities Act. Act, or to instead provide similar materials developed by the California Commission on Disability Access. The bill would require a local agency to notify an applicant that approval of a permit does not signify that the applicant has complied with that act. The bill would also require local agencies to expedite review of projects that have received a written report from a CASp indicating that the site meets applicable CASp standards, as specified. for which the applicant provides a copy of a disability access certificate, demonstrates that the project is necessary to address an alleged violation of a construction-related access standard or a violation noted in a CASp report, and, if project plans are necessary for approval, has had a CASp review the project plans for compliance with all applicable construction-related accessibility standards. The bill would declare that these provisions constitute a matter of statewide concern and shall apply to charter cities and charter counties.
By imposing additional duties on local agencies with respect to the receipt and review of applications for development projects, this bill would impose a state-mandated local program.
(7)Existing federal law allows a credit against federal income taxes for eligible small businesses for eligible access expenditures, as those terms are defined, in an amount equal to 50% of eligible access expenditures for a taxable year that exceed $250 but do not exceed $10,250. The Personal Income Tax Law and the Corporation Tax Law allow a credit against the taxes imposed by those laws for the amount paid or incurred for eligible access expenditures in an amount equal to 50% of eligible access expenditures for a taxable year as do not exceed $250, as specified.
This bill would, for taxable years beginning on or after January 1, 2016, and before January 1, 2023, allow a credit under both the Personal Income Tax Law and the Corporation Tax Law for eligible access expenditures in an amount equal to 50% of eligible access expenditures for a taxable year, as specified. If the taxpayer is a microbusiness, as defined, the bill would provide that the credit is the amount calculated pursuant to these provisions, plus an additional $5,000.
(8)The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.
This bill would provide that, if the Commission on State Mandates determines that the bill contains costs mandated by the state, reimbursement for those costs shall be made pursuant to these statutory provisions.
Existing
(1)Existing law establishes remedies for prohibits discrimination on the basis of various specified personal characteristics, including disability. The Construction-Related Accessibility Standards Compliance Act establishes standards for making new construction and existing facilities accessible to persons with disabilities and provides for construction-related accessibility claims for violations of those standards. Existing law requires certified access specialists (CASps), upon completion of an inspection of a site, to issue a written inspection report for the site, as specified. Existing law provides, upon being served with a summons and complaint asserting a construction-related accessibility claim, that a defendant may file a request for a court stay and early evaluation conference in the proceedings, as specified.
This bill would make technical, nonsubstantive changes to these provisions.
This bill would provide that a business is not liable for violating a construction-related liability standard if the business is an inspected by a CASp site and the violation is corrected within 90 days of receiving the above-described written inspection report from a CASp. If the alleged violation is a minor matter, as provided, the bill would provide that the business is not liable for the alleged violation if the violation is corrected within 30 days of service of a summons and complaint in a construction-related accessibility claim or receipt of a written notice, whichever is earlier.
(2)Existing law establishes remedies for discrimination on the basis of personal characteristics. Under existing law, a defendant is liable for actual damages plus an additional amount, up to three times actual damages but no less than $4,000, for each offense. A defendants liability for statutory damages for a violation of a construction-related accessibility standard may be reduced to $1,000 for each offense if the defendant demonstrates, among other things, that it has corrected the construction-related violations within 60 days of being served with the complaint. Under existing law, a person who interferes with the rights of an individual with disabilities, as provided, is liable for actual damages plus an additional amount, up to three times actual damages but no less than $1,000, for each offense.
This bill would provide that a defendant is not liable for statutory damages for more than one offense if the defendant is a microbusiness, as defined, and has corrected the construction-related violation prior to the filing of the lawsuit.
(3)Under existing federal law, a landlord and tenant are both responsible for compliance with the federal Americans with Disabilities Act and implementing regulations. The parties to a lease agreement may allocate responsibility by the lease or other contract. Existing law requires a commercial property owner or lessor to state on every lease form or rental agreement executed on or after July 1, 2013, whether the property has been inspected by a certified access specialist and, if so, whether or not the property has been determined to meet all applicable construction-related accessibility standards.
This bill would require a commercial property owner to state on every lease form or rental agreement executed on or after January 1, 2016, that the owner or lessor and the tenant are both responsible for compliance with the Americans with Disabilities Act and that responsibility for compliance may be allocated between the parties by the terms of the lease or other contract.
(4)Existing law requires the State Architect to establish and publicize a program for the voluntary certification by the state of any person who meets specified criteria as a CASp. Existing law requires each applicant for CASp certification or renewal to pay certain fees, and requires the State Architect to periodically review those fees, as specified. Existing law provides for the deposit of those fees into the Certified Access Specialist Fund, which is continuously appropriated for use by the State Architect to implement the CASp program.
This bill would require applicants for CASp certification or renewal to additionally provide to the State Architect information about the city, county, or city and county in which the applicant intends to provide or has provided services, and would require the Division of the State Architect to post that information on its Internet Web site.
(5)Existing law establishes the California Commission on Disability Access for purposes of developing recommendations to enable persons with disabilities to exercise their right to full and equal access to public facilities and facilitating business compliance with applicable state and federal laws and regulations. Existing law sets forth the powers and duties of the commission, including developing educational materials and information for businesses, building owners, tenants, and building officials, posting that information on the commissions Internet Web site, and coordinating with other state agencies and local building departments to ensure that information provided to the public on disability access requirements is uniform and complete.
This bill would additionally require the commission to provide a link on its Internet Web site to the Internet Web site of the Division of the State Architects CASp certification program, and make the commissions educational materials and information available to other state agencies and local building departments.
(6)The Planning and Zoning Law establishes procedures for the application, and review of an application, for a development project. Existing law requires a public agency to notify applicants for development permits of specified information, including the time limits established for the review and approval of development permits.
This bill would additionally require local agencies to develop and provide to applicants materials relating to the requirements of the federal Americans with Disabilities Act. The bill would require a local agency to notify an applicant that approval of a permit does not signify that the applicant has complied with that act. The bill would also require local agencies to expedite review of projects that have received a written report from a CASp indicating that the site meets applicable CASp standards, as specified. The bill would declare that these provisions constitute a matter of statewide concern and shall apply to charter cities and charter counties.
By imposing additional duties on local agencies with respect to the receipt and review of applications for development projects, this bill would impose a state-mandated local program.
(7)Existing federal law allows a credit against federal income taxes for eligible small businesses for eligible access expenditures, as those terms are defined, in an amount equal to 50% of eligible access expenditures for a taxable year that exceed $250 but do not exceed $10,250. The Personal Income Tax Law and the Corporation Tax Law allow a credit against the taxes imposed by those laws for the amount paid or incurred for eligible access expenditures in an amount equal to 50% of eligible access expenditures for a taxable year as do not exceed $250, as specified.
This bill would, for taxable years beginning on or after January 1, 2016, and before January 1, 2023, allow a credit under both the Personal Income Tax Law and the Corporation Tax Law for eligible access expenditures in an amount equal to 50% of eligible access expenditures for a taxable year, as specified. If the taxpayer is a microbusiness, as defined, the bill would provide that the credit is the amount calculated pursuant to these provisions, plus an additional $5,000.
(8)The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.
This bill would provide that, if the Commission on State Mandates determines that the bill contains costs mandated by the state, reimbursement for those costs shall be made pursuant to these statutory provisions.
Existing law establishes remedies for discrimination on the basis of various specified personal characteristics, including disability. The Construction-Related Accessibility Standards Compliance Act establishes standards for making new construction and existing facilities accessible to persons with disabilities and provides for construction-related accessibility claims for violations of those standards.
This bill would make technical, nonsubstantive changes to these provisions.
(a)An attorney who provides a demand letter, as defined in subdivision (a) of Section 55.3, shall do all of the following:
(1)Include the attorneys State Bar license number in the demand letter.
(2)Contemporaneously with providing the demand letter, send a copy of the demand letter to the State Bar of California by facsimile transmission at 1-415-538-2171, or by mail to 180 Howard Street, San Francisco, CA, 94105, Attention: Professional Competence.
(3)Within five business days of providing the demand letter, send a copy of the demand letter to the California Commission on Disability Access.
(b)An attorney who sends or serves a complaint, as defined in subdivision (a) of Section 55.3, shall send a copy of the complaint to the California Commission on Disability Access within five business days of sending or serving the complaint.
(c)A violation of paragraph (2) or (3) of subdivision (a) or subdivision (b) shall constitute cause for the imposition of discipline of an attorney where a copy of the complaint or demand letter is not sent to the California Commission on Disability Access within five business days, or a copy of the demand letter is not sent to the State Bar within five business days. In the event the State Bar receives information indicating that an attorney has failed to send a copy of the complaint or demand letter to the California Commission on Disability Access within five business days, the State Bar shall investigate to determine whether paragraph (3) of subdivision (a) or subdivision (b) has been violated.
(d)Notwithstanding subdivisions (a) and (b), an attorney is not required to send to the State Bar of California or the California Commission on Disability Access a copy of any subsequent demand letter or amended complaint in the same dispute following the initial demand letter or complaint, unless that subsequent demand letter or amended complaint alleges a new construction-related accessibility claim.
(e)A demand letter or complaint sent to the California Commission on Disability Access shall be for the informational purposes of Section 8299.08 of the Government Code. A demand letter received by the State Bar from either the sender or recipient of the demand letter shall be reviewed by the State Bar to determine whether subdivision (b) or (c) of Section 55.31 has been violated.
(f)(1)Commencing July 31, 2013, and annually each July 31 thereafter, the State Bar shall report to the Legislature and the Chairs of the Senate and Assembly Committees on Judiciary, both of the following with respect to demand letters received by the State Bar:
(A)The number of investigations opened to date on a suspected violation of subdivision (b) or (c) of Section 55.31.
(B)Whether any disciplinary action resulted from the investigation, and the results of that disciplinary action.
(2)A report to be submitted pursuant to this subdivision shall be submitted in compliance with Section 9795 of the Government Code.
(g)The California Commission on Disability Access shall review and report on the demand letters and complaints it receives as provided in Section 8299.08 of the Government Code.
(h)Paragraphs (2) and (3) of subdivision (a) and subdivision (b) shall not apply to a demand letter or complaint sent or filed by an attorney employed or retained by a qualified legal services project or a qualified support center, as defined in Section 6213 of the Business and Professions Code, when acting within the scope of employment in asserting a construction-related accessibility claim. The Legislature finds and declares that qualified legal services projects and support centers are extensively regulated by the State Bar of California, and that there is no evidence of any abusive use of demand letters or complaints by these organizations. The Legislature further finds that, in light of the evidence of the extraordinarily small number of construction-related accessibility cases brought by regulated legal services programs, and given the resources of those programs, exempting regulated legal services programs from the requirements of this section to report to the California Commission on Disability Access will not affect the purpose of the reporting to, and tabulation by, the commission of all other construction-related accessibility claims.
(i)This section shall become operative on January 1, 2013.
(j)This section shall remain in effect only until January 1, 2019, and as of that date is repealed.
SEC. 1.5.Section 55.32 of the Civil Code, as added by Section 5 of Chapter 383 of the Statutes of 2012, is amended to read:55.32.(a)An attorney who provides a demand letter, as defined in subdivision (a) of Section 55.3, shall do all of the following:
(1)Include the attorneys State Bar license number in the demand letter.
(2)Contemporaneously with providing the demand letter, send a copy of the demand letter to the State Bar of California by facsimile transmission at 1-415-538-2171, or by mail to 180 Howard Street, San Francisco, CA, 94105, Attention: Professional Competence.
(3)Within five business days of providing the demand letter, send a copy of the demand letter to the California Commission on Disability Access.
(b)An attorney who sends or serves a complaint, as defined in subdivision (a) of Section 55.3, shall do both of the following:
(1)Send a copy of the complaint to the California Commission on Disability Access within five business days of sending or serving the complaint.
(2)Notify the California Commission on Disability Access within five business days of judgment, settlement, or dismissal of the claim or claims alleged in the complaint of the following information in a standard format specified by the commission:
(A)The date of the judgment, settlement, or dismissal.
(B)Whether or not the construction-related accessibility violations alleged in the complaint were remedied in whole or in part after the plaintiff filed a complaint or provided a demand letter, as defined by Section 55.3.
(C)If the construction-related accessibility violations alleged in the complaint were not remedied in whole or in part after the plaintiff filed a complaint or provided a demand letter, as defined by Section 55.3, whether or not another favorable result was achieved after the plaintiff filed the complaint or provided the demand letter.
(D)Whether or not the defendant submitted an application for an early evaluation conference and stay pursuant to Section 55.54, whether the defendant requested a site inspection, the date of any early evaluation conference, and the date of any site inspection.
(c)A violation of paragraph (2) or (3) of subdivision (a) or subdivision (b) shall constitute cause for the imposition of discipline of an attorney where a copy of the complaint, demand letter, or notification of a case outcome is not sent to the California Commission on Disability Access within five business days, or a copy of the demand letter is not sent to the State Bar within five business days. In the event the State Bar receives information indicating that an attorney has failed to send a copy of the complaint, demand letter, or notification of a case outcome to the California Commission on Disability Access within five business days, the State Bar shall investigate to determine whether paragraph (3) of subdivision (a) or subdivision (b) has been violated.
(d)Notwithstanding subdivisions (a) and (b), an attorney is not required to send to the State Bar of California or the California Commission on Disability Access a copy of any subsequent demand letter or amended complaint in the same dispute following the initial demand letter or complaint, unless that subsequent demand letter or amended complaint alleges a new construction-related accessibility claim.
(e)A demand letter, complaint, or notification of a case outcome sent to the California Commission on Disability Access shall be for the informational purposes of Section 8299.08 of the Government Code. A demand letter received by the State Bar from either the sender or recipient of the demand letter shall be reviewed by the State Bar to determine whether subdivision (b) or (c) of Section 55.31 has been violated.
(f)(1)Commencing July 31, 2013, and annually each July 31 thereafter, the State Bar shall report to the Legislature and the Chairs of the Senate and Assembly Committees on Judiciary, both of the following with respect to demand letters received by the State Bar:
(A)The number of investigations opened to date on a suspected violation of subdivision (b) or (c) of Section 55.31.
(B)Whether any disciplinary action resulted from the investigation, and the results of that disciplinary action.
(2)A report to be submitted pursuant to this subdivision shall be submitted in compliance with Section 9795 of the Government Code.
(g)The California Commission on Disability Access shall review and report on the demand letters, complaints, and notifications of case outcomes it receives as provided in Section 8299.08 of the Government Code.
(h)Paragraphs (2) and (3) of subdivision (a) and subdivision (b) shall not apply to a demand letter or complaint sent or filed by an attorney employed or retained by a qualified legal services project or a qualified support center, as defined in Section 6213 of the Business and Professions Code, when acting within the scope of employment in asserting a construction-related accessibility claim. The Legislature finds and declares that qualified legal services projects and support centers are extensively regulated by the State Bar of California, and that there is no evidence of any abusive use of demand letters or complaints by these organizations. The Legislature further finds that, in light of the evidence of the extraordinarily small number of construction-related accessibility cases brought by regulated legal services programs, and given the resources of those programs, exempting regulated legal services programs from the requirements of this section to report to the California Commission on Disability Access will not affect the purpose of the reporting to, and tabulation by, the commission of all other construction-related accessibility claims.
(i)This section shall become operative on January 1, 2013.
(j)This section shall remain in effect only until January 1, 2019, and as of that date is repealed.
SEC. 2.Section 55.32 of the Civil Code, as added by Section 6 of Chapter 383 of the Statutes of 2012, is amended to read:55.32.(a)An attorney who provides a demand letter, as defined in subdivision (a) of Section 55.3, shall do all of the following:
(1)Include the attorneys State Bar license number in the demand letter.
(2)Within five business days of providing the demand letter, send a copy of the demand letter, and submit information about the demand letter in a standard format specified by the California Commission on Disability Access, to the commission.
(b)An attorney who sends or serves a complaint, as defined in subdivision (a) of Section 55.3, shall send a copy of the complaint and submit information about the complaint in a standard format specified by the California Commission on Disability Access to the commission within five business days of sending or serving the complaint.
(c)A violation of paragraph (2) of subdivision (a) or subdivision (b) shall constitute cause for the imposition of discipline of an attorney if a copy of the demand letter or complaint is not sent to the California Commission on Disability Access within five business days. In the event the State Bar receives information indicating that an attorney has failed to send a copy of the demand letter or complaint to the California Commission on Disability Access within five business days, the State Bar shall investigate to determine whether paragraph (2) of subdivision (a) or subdivision (b) has been violated.
(d)Notwithstanding subdivisions (a) and (b), an attorney is not required to send to the California Commission on Disability Access a copy of any subsequent demand letter or amended complaint in the same dispute following the initial demand letter or complaint, unless that subsequent demand letter or amended complaint alleges a new construction-related accessibility claim.
(e)A demand letter sent to the California Commission on Disability Access shall be for the informational purposes of Section 8299.08 of the Government Code. A demand letter received by the State Bar from the recipient of the demand letter shall be reviewed by the State Bar to determine whether subdivision (b) or (c) of Section 55.31 has been violated.
(f)(1)Notwithstanding Section 10231.5 of the Government Code, on or before July 31, 2019, and annually thereafter, the State Bar shall report to the Legislature and the Chairs of the Senate and Assembly Judiciary Committees, both of the following with respect to demand letters received by the State Bar:
(A)The number of investigations opened to date on a suspected violation of subdivision (b) or (c) of Section 55.31.
(B)Whether any disciplinary action resulted from the investigation, and the results of that disciplinary action.
(2)A report to be submitted pursuant to this subdivision shall be submitted in compliance with Section 9795 of the Government Code.
(g)The California Commission on Disability Access shall review and report on the demand letters and complaints it receives as provided in Section 8299.08 of the Government Code.
(h)The expiration of any ground for discipline of an attorney shall not affect the imposition of discipline for any act prior to the expiration. An act or omission that constituted cause for imposition of discipline of an attorney when committed or omitted prior to January 1, 2019, shall continue to constitute cause for the imposition of discipline of that attorney on and after January 1, 2019.
(i)Paragraph (2) of subdivision (a) and subdivision (b) shall not apply to a demand letter or complaint sent or filed by an attorney employed or retained by a qualified legal services project or a qualified support center, as defined in Section 6213 of the Business and Professions Code, when acting within the scope of employment in asserting a construction-related accessibility claim. The Legislature finds and declares that qualified legal services projects and support centers are extensively regulated by the State Bar of California, and that there is no evidence of any abusive use of demand letters or complaints by these organizations. The Legislature further finds that, in light of the evidence of the extraordinarily small number of construction-related accessibility cases brought by regulated legal services programs, and given the resources of those programs, exempting regulated legal services programs from the requirements of this section to report to the California Commission on Disability Access will not affect the purpose of the reporting to, and tabulation by, the commission of all other construction-related accessibility claims.
(j)This section shall become operative on January 1, 2019.
SEC. 2.5.Section 55.32 of the Civil Code, as added by Section 6 of Chapter 383 of the Statutes of 2012, is amended to read:55.32.(a)An attorney who provides a demand letter, as defined in subdivision (a) of Section 55.3, shall do all of the following:
(1)Include the attorneys State Bar license number in the demand letter.
(2)Within five business days of providing the demand letter, send a copy of the demand letter, and submit information about the demand letter in a standard format specified by the California Commission on Disability Access, to the commission.
(b)An attorney who sends or serves a complaint, as defined in subdivision (a) of Section 55.3, shall do both of the following:
(1)Send a copy of the complaint and submit information about the complaint in a standard format specified by the California Commission on Disability Access to the commission within five business days of sending or serving the complaint.
(2)Notify the California Commission on Disability Access within five business days of judgment, settlement, or dismissal of the claim or claims alleged in the complaint of the following information in a standard format specified by the commission:
(A)The date of the judgment, settlement, or dismissal.
(B)Whether or not the construction-related accessibility violations alleged in the complaint were remedied in whole or in part after the plaintiff filed a complaint or provided a demand letter, as defined by Section 55.3.
(C)If the construction-related accessibility violations alleged in the complaint were not remedied in whole or in part after the plaintiff filed a complaint or provided a demand letter, as defined by Section 55.3, whether or not another favorable result was achieved after the plaintiff filed the complaint or provided the demand letter.
(D)Whether or not the defendant submitted an application for an early evaluation conference and stay pursuant to Section 55.54, whether the defendant requested a site inspection, the date of any early evaluation conference, and the date of any site inspection.
(c)A violation of paragraph (2) of subdivision (a) or subdivision (b) shall constitute cause for the imposition of discipline of an attorney if a copy of the demand letter, complaint, or notification of a case outcome is not sent to the California Commission on Disability Access within five business days. In the event the State Bar receives information indicating that an attorney has failed to send a copy of the demand letter, complaint, or notification of a case outcome to the California Commission on Disability Access within five business days, the State Bar shall investigate to determine whether paragraph (2) of subdivision (a) or subdivision (b) has been violated.
(d)Notwithstanding subdivisions (a) and (b), an attorney is not required to send to the California Commission on Disability Access a copy of any subsequent demand letter or amended complaint in the same dispute following the initial demand letter or complaint, unless that subsequent demand letter or amended complaint alleges a new construction-related accessibility claim.
(e)A demand letter or notification of a case outcome sent to the California Commission on Disability Access shall be for the informational purposes of Section 8299.08 of the Government Code. A demand letter received by the State Bar from the recipient of the demand letter shall be reviewed by the State Bar to determine whether subdivision (b) or (c) of Section 55.31 has been violated.
(f)(1)Notwithstanding Section 10231.5 of the Government Code, on or before July 31, 2019, and annually thereafter, the State Bar shall report to the Legislature and the Chairs of the Senate and Assembly Judiciary Committees, both of the following with respect to demand letters received by the State Bar:
(A)The number of investigations opened to date on a suspected violation of subdivision (b) or (c) of Section 55.31.
(B)Whether any disciplinary action resulted from the investigation, and the results of that disciplinary action.
(2)A report to be submitted pursuant to this subdivision shall be submitted in compliance with Section 9795 of the Government Code.
(g)The California Commission on Disability Access shall review and report on the demand letters, complaints, and notifications of case outcomes it receives as provided in Section 8299.08 of the Government Code.
(h)The expiration of any ground for discipline of an attorney shall not affect the imposition of discipline for any act prior to the expiration. An act or omission that constituted cause for imposition of discipline of an attorney when committed or omitted prior to January 1, 2019, shall continue to constitute cause for the imposition of discipline of that attorney on and after January 1, 2019.
(i)Paragraph (2) of subdivision (a) and subdivision (b) shall not apply to a demand letter or complaint sent or filed by an attorney employed or retained by a qualified legal services project or a qualified support center, as defined in Section 6213 of the Business and Professions Code, when acting within the scope of employment in asserting a construction-related accessibility claim. The Legislature finds and declares that qualified legal services projects and support centers are extensively regulated by the State Bar of California, and that there is no evidence of any abusive use of demand letters or complaints by these organizations. The Legislature further finds that, in light of the evidence of the extraordinarily small number of construction-related accessibility cases brought by regulated legal services programs, and given the resources of those programs, exempting regulated legal services programs from the requirements of this section to report to the California Commission on Disability Access will not affect the purpose of the reporting to, and tabulation by, the commission of all other construction-related accessibility claims.
(j)This section shall become operative on January 1, 2019.
SEC. 3.Section 55.53 of the Civil Code is amended to read:55.53.(a)For purposes of this part, a certified access specialist shall, upon completion of the inspection of a site, comply with the following:
(1)For a meets applicable standards site, if the CASp determines the site meets all applicable construction-related accessibility standards, the CASp shall provide a written inspection report to the requesting party that includes both of the following:
(A)An identification and description of the inspected structures and areas of the site.
(B)A signed and dated statement that includes both of the following:
(i)A statement that, in the opinion of the CASp, the inspected structures and areas of the site meet construction-related accessibility standards. The statement shall clearly indicate whether the determination of the CASp includes an assessment of readily achievable barrier removal.
(ii)If corrections were made as a result of the CASp inspection, an itemized list of all corrections and dates of completion.
(2)For an inspected by a CASp site, if the CASp determines that corrections are needed to the site in order for the site to meet all applicable construction-related accessibility standards, the CASp shall provide a signed and dated written inspection report to the requesting party that includes all of the following:
(A)An identification and description of the inspected structures and areas of the site.
(B)The date of the inspection.
(C)A statement that, in the opinion of the CASp, the inspected structures and areas of the site need correction to meet construction-related accessibility standards. This statement shall clearly indicate whether the determination of the CASp includes an assessment of readily achievable barrier removal.
(D)An identification and description of the structures or areas of the site that need correction and the correction needed.
(E)A schedule of completion for each of the corrections within a reasonable timeframe.
(3)The CASp shall provide, within 30 days of the date of the inspection of a business that qualifies for the provisions of subparagraph (A) of paragraph (3) of subdivision (g) of Section 55.56, a copy of a report prepared pursuant to that subparagraph to the business.
(4)The CASp shall file, within 10 days of inspecting a business pursuant to subparagraph (A) of paragraph (3) of subdivision (g) of Section 55.56, a notice with the State Architect for listing on the State Architects Internet Web site, as provided by subdivision (d) of Section 4459.7 of the Government Code, indicating that the CASp has inspected the business, the name and address of the business, the date of the filing, the date of the inspection of the business, the name and license number of the CASp, and a description of the structure or area inspected by the CASp.
(5)The CASp shall post the notice described in paragraph (4), in a form prescribed by the State Architect, in a conspicuous location within five feet of all public entrances to the building on the date of the inspection and instruct the business to keep it in place until the earlier of either of the following:
(A)One hundred twenty days after the date of the inspection.
(B)The date when all of the construction-related violations in the structure or area inspected by the CASp are corrected.
(b)For purposes of this section, in determining whether the site meets applicable construction-related accessibility standards when there is a conflict or difference between a state and federal provision, standard, or regulation, the state provision, standard, or regulation shall apply unless the federal provision, standard, or regulation is more protective of accessibility rights.
(c)Every CASp who conducts an inspection of a place of public accommodation shall, upon completing the inspection of the site, provide the building owner or tenant who requested the inspection with the following notice, which the State Architect shall make available as a form on the State Architects Internet Web site:
NOTICE TO PRIVATE PROPERTY OWNER/TENANT:
YOU ARE ADVISED TO KEEP IN YOUR RECORDS ANY WRITTEN INSPECTION REPORT AND ANY OTHER DOCUMENTATION CONCERNING YOUR PROPERTY SITE THAT IS GIVEN TO YOU BY A CERTIFIED ACCESS SPECIALIST.
IF YOU BECOME A DEFENDANT IN A LAWSUIT THAT INCLUDES A CLAIM CONCERNING A SITE INSPECTED BY A CERTIFIED ACCESS SPECIALIST, YOU MAY BE ENTITLED TO A COURT STAY (AN ORDER TEMPORARILY STOPPING ANY LAWSUIT) OF THE CLAIM AND AN EARLY EVALUATION CONFERENCE.
IN ORDER TO REQUEST THE STAY AND EARLY EVALUATION CONFERENCE, YOU WILL NEED TO VERIFY THAT A CERTIFIED ACCESS SPECIALIST HAS INSPECTED THE SITE THAT IS THE SUBJECT OF THE CLAIM. YOU WILL ALSO BE REQUIRED TO PROVIDE THE COURT AND THE PLAINTIFF WITH THE COPY OF A WRITTEN INSPECTION REPORT BY THE CERTIFIED ACCESS SPECIALIST, AS SET FORTH IN CIVIL CODE SECTION 55.54. THE APPLICATION FORM AND INFORMATION ON HOW TO REQUEST A STAY AND EARLY EVALUATION CONFERENCE MAY BE OBTAINED AT www.courts.ca.gov/selfhelp-start.htm.
YOU ARE ENTITLED TO REQUEST, FROM A CERTIFIED ACCESS SPECIALIST WHO HAS CONDUCTED AN INSPECTION OF YOUR PROPERTY, A WRITTEN INSPECTION REPORT AND OTHER DOCUMENTATION AS SET FORTH IN CIVIL CODE SECTION 55.53. YOU ARE ALSO ENTITLED TO REQUEST THE ISSUANCE OF A DISABILITY ACCESS INSPECTION CERTIFICATE, WHICH YOU MAY POST ON YOUR PROPERTY.
(d)(1)Commencing July 1, 2010, a local agency shall employ or retain at least one building inspector who is a certified access specialist. The certified access specialist shall provide consultation to the local agency, permit applicants, and members of the public on compliance with state construction-related accessibility standards with respect to inspections of a place of public accommodation that relate to permitting, plan checks, or new construction, including, but not limited to, inspections relating to tenant improvements that may impact access. If a local agency employs or retains two or more certified access specialists to comply with this subdivision, at least one-half of the certified access specialists shall be building inspectors who are certified access specialists.
(2)Commencing January 1, 2014, a local agency shall employ or retain a sufficient number of building inspectors who are certified access specialists to conduct permitting and plan check services to review for compliance with state construction-related accessibility standards by a place of public accommodation with respect to new construction, including, but not limited to, projects relating to tenant improvements that may impact access. If a local agency employs or retains two or more certified access specialists to comply with this subdivision, at least one-half of the certified access specialists shall be building inspectors who are certified access specialists.
(3)If a permit applicant or member of the public requests consultation from a certified access specialist, the local agency may charge an amount limited to a reasonable hourly rate, an estimate of which shall be provided upon request in advance of the consultation. A local government may additionally charge or increase permitting, plan check, or inspection fees to the extent necessary to offset the costs of complying with this subdivision. Any revenues generated from an hourly or other charge or fee increase under this subdivision shall be used solely to offset the costs incurred to comply with this subdivision. A CASp inspection pursuant to subdivision (a) by a building inspector who is a certified access specialist shall be treated equally for legal and evidentiary purposes as an inspection conducted by a private CASp. Nothing in this subdivision shall preclude permit applicants or any other person with a legal interest in the property from retaining a private CASp at any time.
(e)(1)Every CASp who completes an inspection of a place of public accommodation shall, upon a determination that the site meets applicable standards pursuant to paragraph (1) of subdivision (a) or is inspected by a CASp pursuant to paragraph (2) of subdivision (a), provide the building owner or tenant requesting the inspection with a numbered disability access inspection certificate indicating that the site has undergone inspection by a certified access specialist. The disability access inspection certificate shall be dated and signed by the CASp inspector, and shall contain the inspectors name and license number. Upon issuance of a certificate, the CASp shall record the issuance of the numbered certificate, the name and address of the recipient, and the type of report issued pursuant to subdivision (a) in a record book the CASp shall maintain for that purpose.
(2)Beginning March 1, 2009, the State Architect shall make available for purchase by any local building department or CASp sequentially numbered disability access inspection certificates that are printed with a watermark or other feature to deter forgery and that comply with the information requirements specified in subdivision (a).
(3)The disability access inspection certificate may be posted on the premises of the place of public accommodation, unless, following 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.
(f)Nothing in this section or any other law is intended to require a property owner or tenant to hire a CASp. A property owners or tenants election not to hire a CASp shall not be admissible to prove that persons lack of intent to comply with the law.
SEC. 4.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.
(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)(1)The following technical violations are presumed to not cause a person difficulty, discomfort, or embarrassment for the purpose of an award of minimum statutory damages in a construction-related accessibility claim, as set forth in subdivision (c), where the defendant is a small business, as described by subparagraph (B) of paragraph (2) of subdivision (g), the defendant has corrected, within 15 days of the service of a summons and complaint asserting a construction-related accessibility claim or receipt of a written notice, whichever is earlier, all of the technical violations that are the basis of the claim, and the claim is based on one or more of the following violations:
(A)Interior signs, other than directional signs or signs that identify the location of accessible elements, facilities, or features, when not all such elements, facilities, or features are accessible.
(B)The lack of exterior signs, other than parking signs and directional signs, including signs that indicate the location of accessible pathways or entrance and exit doors when not all pathways, entrance and exit doors are accessible.
(C)The order in which parking signs are placed or the exact location or wording of parking signs, provided that the parking signs are clearly visible and indicate the location of accessible parking and van-accessible parking.
(D)The color of parking signs, provided that the color of the background contrasts with the color of the information on the sign.
(E)The color of parking lot striping, provided that it exists and provides sufficient contrast with the surface upon which it is applied to be reasonably visible.
(F)Faded, chipped, damaged, or deteriorated paint in otherwise fully compliant parking spaces and passenger access aisles in parking lots, provided that it indicates the required dimensions of a parking space or access aisle in a manner that is reasonably visible.
(G)The presence or condition of detectable warning surfaces on ramps, except where the ramp is part of a pedestrian path of travel that intersects with a vehicular lane or other hazardous area.
(2)The presumption set forth in paragraph (1) affects the plaintiffs burden of proof and is rebuttable by evidence showing, by a preponderance of the evidence, that the plaintiff did, in fact, experience difficulty, discomfort, or embarrassment on the particular occasion as a result of one or more of the technical violations listed in paragraph (1).
(f)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.
(g)(1)Notwithstanding any other law, a defendants 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 defendants knowledge, there were no modifications or alterations that impacted compliance with construction-related accessibility standards with respect to the plaintiffs 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 defendants knowledge, there were no modifications or alterations that impacted compliance with respect to the plaintiffs 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 defendants knowledge, there were no modifications or alterations that affected compliance with respect to the plaintiffs 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 defendants 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)(A)Notwithstanding any other law, a defendant shall not be liable for minimum statutory damages in a construction-related accessibility claim, with respect to a violation noted in a report by a certified access specialist (CASp), for a period of 120 days following the date of the inspection if the defendant demonstrates compliance with each of the following:
(i)The defendant is a business that has employed 100 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 Employment Development Department.
(ii)The structure or area of the alleged violation was the subject of an inspection report indicating CASp determination pending or Inspected by a CASp.
(iii)The inspection predates the filing of the claim by, or receipt of a demand letter from, the plaintiff regarding the alleged violation of a construction-related accessibility standard, and the defendant was not on notice of the alleged violation prior to the CASp inspection.
(iv)The defendant has corrected, within 120 days of the date of the inspection, all construction-related violations in the structure or area inspected by the CASp that are noted in the CASp report that are the basis of the claim.
(B)Notwithstanding any other law, a defendant who claims the benefit of the reduction of minimum statutory damages under this subdivision shall disclose the date and findings of any CASp inspection to a plaintiff if relevant to a claim or defense in an action.
(4)A defendant may assert the reduction of minimum statutory damages under this subdivision only once for each structure or area inspected by a CASp, unless the inspected structure or area has undergone modifications or alterations that affect the compliance with construction-related accessibility standards of those structures or areas after the date of the last inspection, and the defendant obtains an additional CASp inspection within 30 days of final approval by the building department or certificate of occupancy, as appropriate, regarding the modification or alterations.
(5)If the defendant has failed to correct, within 120 days of the date of the inspection, all construction-related violations in the structure or area inspected by the CASp that are noted in the CASp report, the defendant shall not receive any reduction of minimum statutory damages, unless a building permit is required for the repairs which cannot reasonably be completed by the defendant within 120 days and the defendant is in the process of correcting the violations noted in the CASp report, as evidenced by having, at least, an active building permit necessary for the repairs to correct the violation that was noted, but not corrected, in the CASp report and all of the repairs are completed within 180 days of the date of the inspection.
(6)This subdivision shall not be applicable to intentional violations.
(7)Nothing in this subdivision affects the awarding of actual damages, or affects the awarding of treble actual damages.
(8)This subdivision shall apply only to claims filed on or after the effective date of Senate Bill 1186 of the 201112 Regular Session of the Legislature, except for paragraphs (3), (4), and (5), which shall apply to claims filed on or after January 1, 2016. Nothing in this subdivision is intended to affect a complaint filed before that date.
(h)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, nor alter any legal obligation of a party to mitigate damages.
(i)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 plaintiffs conduct in light of the plaintiffs obligation, if any, to mitigate damages.
(j)For purposes of this section, the structure or area inspected means one of the following: the interior of the premises, the exterior of the premises, or both the interior and exterior.
SEC. 5.Section 4459.7 of the Government Code is amended to read:4459.7.(a)(1)No later than October 31 of each year, the State Architect shall publish and make available to the public a list of certified access specialists who have met the requirements of Section 4459.5.
(2)The State Architect shall publish and regularly update on its Internet Web site easily accessible lists of all of the following:
(A)Businesses that have obtained a CASp inspection and have filed, or a CASp has filed on their behalf, a notice pursuant to paragraph (4) of subdivision (a) of Section 55.53 of the Civil Code.
(B)Businesses which have been inspected by a certified access specialist on or after January 1, 2016, including the date of the inspection.
(3)The lists required pursuant to this section shall include a written disclaimer of liability as specified in subdivision (b).
(b)Notwithstanding any other provision of law, a state agency or employee of a state agency may not be held liable for any injury or damages resulting from any service provided by a certified access specialist whose name appears on the list published pursuant to subdivision (a).
(c)The State Architect may perform periodic audits of work performed by a certified access specialist as deemed necessary to ensure the desired standard of performance. A certified access specialist shall provide an authorized representative of the State Architect with complete access, at any reasonable hour of the day, to all technical data, reports, records, photographs, design outlines and plans, and files used in building inspection and plan review, with the exception of proprietary and confidential information.
(d)By January 1, 2016, the State Architect shall develop a process by which a certified access specialist (CASp) may notify the State Architect that a structure or area on the premises of a business has been inspected by a CASp and to notify the public that the business has a CASp determination pending, or has been Inspected by a CASp, as provided by paragraph (3) of subdivision (g) of Section 55.56 of the Civil Code, which shall include the name and address of the business, the date of the notification, the date of the inspection of the business, the name and license number of the CASp, and a description of the structure or area inspected by a CASp.
(e)By January 1, 2016, the State Architect shall develop a form for a business to notify the public that the business has obtained a CASp inspection pursuant to paragraph (3) of subdivision (g) of Section 55.56 of the Civil Code, which shall include the date of the notification, the date of the inspection, and a description of the structure or area inspected by a CASp.
(f)For purposes of this section, the structure or area inspected means one of the following: the interior of the premises, the exterior of the premises, or both the interior and exterior.
SEC. 6.Section 4459.8 of the Government Code is amended to read:4459.8.(a)The certification authorized by Section 4459.5 is effective for three years from the date of initial certification and expires if not renewed. The State Architect, upon consideration of any factual complaints regarding the work of a certified access specialist or of other relevant information, may suspend certification or deny renewal of certification.
(b)(1)The State Architect shall require each applicant for certification as a certified access specialist to do both of the following:
(A)Pay fees, including an application and course fee and an examination fee, at a level sufficient to meet the costs of application processing, registration, publishing a list, and other activities that are reasonably necessary to implement and administer the certified access specialist program.
(B)Provide to the State Architect the name of the city, county, or city and county in which the applicant intends to provide services.
(2)The State Architect shall require each applicant for renewal of certification to do both of the following:
(A)Pay a fee sufficient to cover the reasonable costs of reassessing qualifications of renewal applicants.
(B)Provide to the State Architect the name of the city, county, or city and county in which the applicant has provided services since the last day of certification by the State Architect.
(3)The State Architect shall periodically review his or her schedule of fees to ensure that the fees for certification are not excessive while covering the costs to administer the certified access specialist program. The application fee for a California licensed architect, landscape architect, civil engineer, or structural engineer shall not exceed two hundred fifty dollars ($250).
(c)All fees collected pursuant to this section shall be deposited into the Certified Access Specialist Fund, which is hereby created in the State Treasury. Notwithstanding Section 13340, this fund is continuously appropriated without regard to fiscal years for use by the State Architect to implement Sections 4459.5 to 4459.8, inclusive.
(d)The State Architect shall post on his or her Internet Web site the name of the city, county, or city and county in which each certified access specialist provides or intends to provide services.
SEC. 7.Section 8299.06 of the Government Code is amended to read:8299.06.(a)A priority of the commission shall be the development and dissemination of educational materials and information to promote and facilitate disability access compliance.
(b)The commission shall work with other state agencies, including the Division of the State Architect and the Department of Rehabilitation, to develop educational materials and information for use by businesses to understand its obligations to provide disability access and to facilitate compliance with construction-related accessibility standards.
(c)The commission shall develop and make available on its Internet Web site, or make available on its Internet Web site if developed by another governmental agency, including Americans with Disabilities Act centers, toolkits or educational modules to assist a California business to understand its obligations under the law and to facilitate compliance with respect to the top 10 alleged construction-related violations, by type, as specified in subdivision (a) of Section 8299.08. Upon completion of this requirement, the commission shall develop and make available on its Internet Web site, or work with another agency to develop, other toolkits or educational modules that would educate businesses of the accessibility requirements and to facilitate compliance with that requirement.
(d)The commission shall post the following on its Internet Web site:
(1)Educational materials and information that will assist building owners, tenants, building officials, and building inspectors to understand the disability accessibility requirements and to facilitate compliance with disability access laws. The commission shall at least annually review the educational materials and information on disability access requirements and compliance available on the Internet Web site of other local, state, or federal agencies, including Americans with Disabilities Act centers, to augment the educational materials and information developed by the commission.
(2)A link to the Internet Web site of the Division of the State Architects certified access specialist (CASp) program to assist building owners and tenants in locating or hiring a CASp.
(e)The commission shall, to the extent feasible, coordinate with other state agencies and local building departments to ensure that information provided to the public on disability access requirements is uniform and complete, and make its educational materials and information available to those agencies and departments.
SEC. 7.5.Section 8299.06 of the Government Code is amended to read:8299.06.(a)A priority of the commission shall be the development and dissemination of educational materials and information to promote and facilitate disability access compliance.
(b)The commission shall work with other state agencies, including the Division of the State Architect and the Department of Rehabilitation, to develop educational materials and information for use by businesses to understand their obligations to provide disability access and to facilitate compliance with construction-related accessibility standards.
(c)The commission shall develop and make available on its Internet Web site, or make available on its Internet Web site if developed by another governmental agency, including Americans with Disabilities Act centers, toolkits or educational modules to assist a California business to understand its obligations under the law and to facilitate compliance with respect to the top 10 alleged construction-related violations, by type, as specified in subdivision (a) of Section 8299.08. Upon completion of this requirement, the commission shall develop and make available on its Internet Web site, or work with another agency to develop, other toolkits or educational modules that would educate businesses of the accessibility requirements and to facilitate compliance with that requirement.
(d)The commission shall post the following on its Internet Web site:
(1)Educational materials and information that will assist building owners, tenants, building officials, and building inspectors to understand the disability accessibility requirements and to facilitate compliance with disability access laws. The commission shall at least annually review the educational materials and information on disability access requirements and compliance available on the Internet Web sites of other local, state, or federal agencies, including Americans with Disabilities Act centers, to augment the educational materials and information developed by the commission.
(2)A link to the Internet Web site of the Division of the State Architects Certified Access Specialist (CASp) Program to assist building owners and tenants in locating or hiring a CASp.
(e)The commission shall, to the extent feasible, coordinate with other state agencies and local building departments to ensure that information provided to the public on disability access requirements is uniform and complete, and make its educational materials and information available to those agencies and departments.
(f)The commission shall establish a permanent legislative outreach coordinator position and a permanent educational outreach coordinator position.
SEC. 8.Section 65941.6 is added to the Government Code, to read:65941.6.(a)Each local agency shall develop materials relating to the requirements of the federal Americans with Disabilities Act of 1990 (42 U.S.C. Sec. 12101 et seq.). The local agency shall provide these materials to an applicant along with notice that approval of a permit does not signify that the applicant has complied with the federal Americans with Disabilities Act of 1990.
(b)For the purposes of complying with the requirements of subdivision (a), a local agency may, in lieu of developing its own materials, provide applicants with those materials which the California Commission on Disability Access has developed and made available pursuant to Section 8299.06.
SEC. 9.Article 4 (commencing with Section 65946) is added to Chapter 4.5 of Division 1 of Title 7 of the Government Code, to read:4.Expedited Review65946.(a)For the purposes of this section, the following definitions shall apply:
(1)Certified access specialist or CASp means any person who has been certified pursuant to Section 4459.5.
(2)Construction-related accessibility standard means a provision, standard, or regulation under state or federal law requiring compliance with standards for making new construction and existing facilities accessible to persons with disabilities, including, but not limited to, any provision, standard, or regulation set forth in Section 51, 54, 54.1, or 55 of the Civil Code, Section 19955.5 of the Health and Safety Code, the California Building Standards Code (Title 24 of the California Code of Regulations), the federal Americans with Disabilities Act of 1990 (Public Law 101-336; 42 U.S.C. Sec. 12101 et seq.), and the federal Americans with Disabilities Act Accessibility Guidelines (Appendix A to Part 36 of Title 28 of the Code of Federal Regulations).
(3)Written inspection report means the CASp report required to be provided pursuant to subdivision (a) of Section 55.53 of the Civil Code.
(b)A local agency shall expedite review of a project application if the project applicant meets all of the following conditions:
(1)The applicant provides a copy of a disability access inspection certificate, provided by a CASp pursuant to subdivision (e) of Section 55.53 of the Civil Code, pertaining to the site of the proposed project.
(2)The applicant demonstrates that the proposed project is necessary to address either an alleged violation of a construction-related accessibility standard or a violation noted in a written inspection report.
(3)If project plans are necessary for the approval of a project, the applicant has had a CASp review the project plans for compliance with all applicable construction-related accessibility standards.
SEC. 10.Section 17053.43 is added to the Revenue and Taxation Code, to read:17053.43.(a)For each taxable year beginning on or after January 1, 2016, and before January 1, 2021, there shall be allowed as a credit against the net tax, as defined in Section 17039, the amount paid or incurred for eligible access expenditures. The credit shall be allowed in accordance with Section 44 of the Internal Revenue Code, relating to expenditures to provide access to disabled individuals, except that the credit amount specified in subdivision (b) shall be substituted for the credit amount specified in Section 44(a) of the Internal Revenue Code.
(b)The credit amount allowed under this section shall be an amount equal to 10 percent of so much of the eligible access expenditures for the taxable year as exceed two hundred fifty dollars ($250) but do not exceed ten thousand two hundred fifty dollars ($10,250).
(c)In the case where the credit allowed by this section exceeds the net tax, the excess may be carried over to reduce the net tax in the following year, and the succeeding four years, if necessary, until the credit is exhausted.
(d)The credit allowed by this section may be claimed only on a timely filed original return of the taxpayer.
(e)The Franchise Tax Board may prescribe rules, guidelines, or procedures necessary or appropriate to carry out the purposes of this section, including any guidelines regarding the substantiation of the credit allowed by this section. Chapter 3.5 (commencing with Section 11340) of Part 1 of Division 3 of Title 2 of the Government Code does not apply to any rule, guideline, or procedure prescribed by the Franchise Tax Board pursuant to this section.
(f)This section shall remain in effect only until December 1, 2021, and as of that date is repealed.
SEC. 11.Section 23643 is added to the Revenue and Taxation Code, to read:23643.(a)For each taxable year beginning on or after January 1, 2016, and before January 1, 2021, there shall be allowed as a credit against the tax, as defined in Section 23036, the amount paid or incurred for eligible access expenditures. The credit shall be allowed in accordance with Section 44 of the Internal Revenue Code, relating to expenditures to provide access to disabled individuals, except that the credit amount specified in subdivision (b) shall be substituted for the credit amount specified in Section 44(a) of the Internal Revenue Code and the second sentence of Section 44(d)(3) of the Internal Revenue Code, relating to partnerships and S corporations, shall not apply.
(b)The credit amount allowed under this section shall be an amount equal to 10 percent of so much of the eligible access expenditures for the taxable year as exceed two hundred fifty dollars ($250) but do not exceed ten thousand two hundred fifty dollars ($10,250).
(c)In the case where the credit allowed by this section exceeds the tax, the excess may be carried over to reduce the tax in the following year, and the succeeding four years, if necessary, until the credit is exhausted.
(d)The credit allowed by this section may be claimed only on a timely filed original return of the taxpayer.
(e)The Franchise Tax Board may prescribe rules, guidelines, or procedures necessary or appropriate to carry out the purposes of this section, including any guidelines regarding the substantiation of the credit allowed by this section. Chapter 3.5 (commencing with Section 11340) of Part 1 of Division 3 of Title 2 of the Government Code does not apply to any rule, guideline, or procedure prescribed by the Franchise Tax Board pursuant to this section.
(f)This section shall remain in effect only until December 1, 2021, and as of that date is repealed.
SEC. 12.The Legislature finds and declares that Sections 8 and 9 of this act, pertaining to the review and approval of development permit applications, constitute matters of statewide concern, and shall apply to charter cities and charter counties. These sections shall supersede any inconsistent provisions in the charter of any city, county, or city and county.
SEC. 13.It is the intent of the Legislature to make the findings required by Section 41 of the Revenue and Taxation Code with respect to the tax credits allowed by Sections 10 and 11 of this act.
SEC. 14.(a)Sections 1.5 and 2.5 of this bill incorporate amendments to Section 55.32 of the Civil Code proposed by this bill and Assembly Bill 1521. They shall only become operative if (1) both bills are enacted and become effective on or before January 1, 2016, (2) each bill amends Section 55.32 of the Civil Code, and (3) this bill is enacted after Assembly Bill 1521, in which case Section 55.32 of the Civil Code, as amended by Assembly Bill 1521, shall remain operative only until the operative date of this bill, at which time Sections 1.5 and 2.5 of this bill shall become operative, and Sections 1 and 2 of this bill shall not become operative.
(b)Section 7.5 of this bill incorporates amendments to Section 8299.06 of the Government Code proposed by both this bill and Assembly Bill 1342. It shall only become operative if (1) both bills are enacted and become effective on or before January 1, 2016, (2) each bill amends Section 8299.06 of the Government Code, and (3) this bill is enacted after Assembly Bill 1342, in which case Section 7 of this bill shall not become operative.
SEC. 15.If the Commission on State Mandates determines that this act contains costs mandated by the state, reimbursement to local agencies and school districts for those costs shall be made pursuant to Part 7 (commencing with Section 17500) of Division 4 of Title 2 of the Government Code.
(a)An attorney who provides a demand letter, as defined in subdivision (a) of Section 55.3, shall do all of the following:
(1)Include the attorneys State Bar license number in the demand letter.
(2)Contemporaneously with providing the demand letter, send a copy of the demand letter to the State Bar of California by facsimile transmission at 1-415-538-2171, or by mail to 180 Howard Street, San Francisco, CA, 94105, Attention: Professional Competence.
(3)Within five business days of providing the demand letter, send a copy of the demand letter to the California Commission on Disability Access.
(b)An attorney who sends or serves a complaint, as defined in subdivision (a) of Section 55.3, shall send a copy of the complaint to the California Commission on Disability Access within five business days of sending or serving the complaint.
(c)A violation of paragraph (2) or (3) of subdivision (a) or subdivision (b) shall constitute cause for the imposition of discipline of an attorney where a copy of the complaint or demand letter is not sent to the California Commission on Disability Access within five business days, or a copy of the demand letter is not sent to the State Bar within five business days. In the event the State Bar receives information indicating that an attorney has failed to send a copy of the complaint or demand letter to the California Commission on Disability Access within five business days, the State Bar shall investigate to determine whether paragraph (3) of subdivision (a) or subdivision (b) has been violated.
(d)Notwithstanding subdivisions (a) and (b), an attorney is not required to send to the State Bar of California or the California Commission on Disability Access a copy of any subsequent demand letter or amended complaint in the same dispute following the initial demand letter or complaint, unless that subsequent demand letter or amended complaint alleges a new construction-related accessibility claim.
(e)A demand letter or complaint sent to the California Commission on Disability Access shall be for the informational purposes of Section 8299.08 of the Government Code. A demand letter received by the State Bar from either the sender or recipient of the demand letter shall be reviewed by the State Bar to determine whether subdivision (b) or (c) of Section 55.31 has been violated.
(f)(1)Commencing July 31, 2013, and annually each July 31 thereafter, the State Bar shall report to the Legislature and the Chairs of the Senate and Assembly Committees on Judiciary, both of the following with respect to demand letters received by the State Bar:
(A)The number of investigations opened to date on a suspected violation of subdivision (b) or (c) of Section 55.31.
(B)Whether any disciplinary action resulted from the investigation, and the results of that disciplinary action.
(2)A report to be submitted pursuant to this subdivision shall be submitted in compliance with Section 9795 of the Government Code.
(g)The California Commission on Disability Access shall review and report on the demand letters and complaints it receives as provided in Section 8299.08 of the Government Code.
(h)Paragraphs (2) and (3) of subdivision (a) and subdivision (b) shall not apply to a demand letter or complaint sent or filed by an attorney employed or retained by a qualified legal services project or a qualified support center, as defined in Section 6213 of the Business and Professions Code, when acting within the scope of employment in asserting a construction-related accessibility claim. The Legislature finds and declares that qualified legal services projects and support centers are extensively regulated by the State Bar of California, and that there is no evidence of any abusive use of demand letters or complaints by these organizations. The Legislature further finds that, in light of the evidence of the extraordinarily small number of construction-related accessibility cases brought by regulated legal services programs, and given the resources of those programs, exempting regulated legal services programs from the requirements of this section to report to the California Commission on Disability Access will not affect the purpose of the reporting to, and tabulation by, the commission of all other construction-related accessibility claims.
(i)This section shall become operative on January 1, 2013.
(j)This section shall remain in effect only until January 1, 2019, and as of that date is repealed.
SEC. 1.5.Section 55.32 of the Civil Code, as added by Section 5 of Chapter 383 of the Statutes of 2012, is amended to read:55.32.(a)An attorney who provides a demand letter, as defined in subdivision (a) of Section 55.3, shall do all of the following:
(1)Include the attorneys State Bar license number in the demand letter.
(2)Contemporaneously with providing the demand letter, send a copy of the demand letter to the State Bar of California by facsimile transmission at 1-415-538-2171, or by mail to 180 Howard Street, San Francisco, CA, 94105, Attention: Professional Competence.
(3)Within five business days of providing the demand letter, send a copy of the demand letter to the California Commission on Disability Access.
(b)An attorney who sends or serves a complaint, as defined in subdivision (a) of Section 55.3, shall send do both of the following:
(1)Send a copy of the complaint to the California Commission on Disability Access within five business days of sending or serving the complaint.
(2)Notify the California Commission on Disability Access within five business days of judgment, settlement, or dismissal of the claim or claims alleged in the complaint of the following information in a standard format specified by the commission:
(A)The date of the judgment, settlement, or dismissal.
(B)Whether or not the construction-related accessibility violations alleged in the complaint were remedied in whole or in part after the plaintiff filed a complaint or provided a demand letter, as defined by Section 55.3.
(C)If the construction-related accessibility violations alleged in the complaint were not remedied in whole or in part after the plaintiff filed a complaint or provided a demand letter, as defined by Section 55.3, whether or not another favorable result was achieved after the plaintiff filed the complaint or provided the demand letter.
(D)Whether or not the defendant submitted an application for an early evaluation conference and stay pursuant to Section 55.54, whether the defendant requested a site inspection, the date of any early evaluation conference, and the date of any site inspection.
(c)A violation of paragraph (2) or (3) of subdivision (a) or subdivision (b) shall constitute cause for the imposition of discipline of an attorney where a copy of the complaint or complaint, demand letter letter, or notification of a case outcome is not sent to the California Commission on Disability Access within five business days, or a copy of the demand letter is not sent to the State Bar within five business days. In the event the State Bar receives information indicating that an attorney has failed to send a copy of the complaint or complaint, demand letter letter, or notification of a case outcome to the California Commission on Disability Access within five business days, the State Bar shall investigate to determine whether paragraph (3) of subdivision (a) or subdivision (b) has been violated.
(d)Notwithstanding subdivisions (a) and (b), an attorney is not required to send to the State Bar of California or the California Commission on Disability Access a copy of any subsequent demand letter or amended complaint in the same dispute following the initial demand letter or complaint, unless that subsequent demand letter or amended complaint alleges a new construction-related accessibility claim.
(e)A demand letter or complaint letter, complaint, or notification of a case outcome sent to the California Commission on Disability Access shall be for the informational purposes of Section 8299.08 of the Government Code. A demand letter received by the State Bar from either the sender or recipient of the demand letter shall be reviewed by the State Bar to determine whether subdivision (b) or (c) of Section 55.31 has been violated.
(f)(1)Commencing July 31, 2013, and annually each July 31 thereafter, the State Bar shall report to the Legislature and the Chairs of the Senate and Assembly Committees on Judiciary, both of the following with respect to demand letters received by the State Bar:
(A)The number of investigations opened to date on a suspected violation of subdivision (b) or (c) of Section 55.31.
(B)Whether any disciplinary action resulted from the investigation, and the results of that disciplinary action.
(2)A report to be submitted pursuant to this subdivision shall be submitted in compliance with Section 9795 of the Government Code.
(g)The California Commission on Disability Access shall review and report on the demand letters and complaints letters, complaints, and notifications of case outcomes it receives as provided in Section 8299.08 of the Government Code.
(h)Paragraphs (2) and (3) of subdivision (a) and subdivision (b) shall not apply to a demand letter or complaint sent or filed by an attorney employed or retained by a qualified legal services project or a qualified support center, as defined in Section 6213 of the Business and Professions Code, when acting within the scope of employment in asserting a construction-related accessibility claim. The Legislature finds and declares that qualified legal services projects and support centers are extensively regulated by the State Bar of California, and that there is no evidence of any abusive use of demand letters or complaints by these organizations. The Legislature further finds that, in light of the evidence of the extraordinarily small number of construction-related accessibility cases brought by regulated legal services programs, and given the resources of those programs, exempting regulated legal services programs from the requirements of this section to report to the California Commission on Disability Access will not affect the purpose of the reporting to, and tabulation by, the commission of all other construction-related accessibility claims.
(i)This section shall become operative on January 1, 2013.
(j)This section shall remain in effect only until January 1, 2016, 2019, and as of that date is repealed, unless a later enacted statute, that is enacted before January 1, 2016, deletes or extends that date. repealed.
SEC. 2.Section 55.32 of the Civil Code, as added by Section 6 of Chapter 383 of the Statutes of 2012, is amended to read:55.32.(a)An attorney who provides a demand letter, as defined in subdivision (a) of Section 55.3, shall do all of the following:
(1)Include the attorneys State Bar license number in the demand letter.
(2)Within five business days of providing the demand letter, send a copy of the demand letter, and submit information about the demand letter in a standard format specified by the California Commission on Disability Access, to the commission.
(b)An attorney who sends or serves a complaint, as defined in subdivision (a) of Section 55.3, shall send a copy of the complaint and submit information about the complaint in a standard format specified by the California Commission on Disability Access to the commission within five business days of sending or serving the complaint.
(c)A violation of paragraph (2) of subdivision (a) or subdivision (b) shall constitute cause for the imposition of discipline of an attorney if a copy of the demand letter or complaint is not sent to the California Commission on Disability Access within five business days. In the event the State Bar receives information indicating that an attorney has failed to send a copy of the demand letter or complaint to the California Commission on Disability Access within five business days, the State Bar shall investigate to determine whether paragraph (2) of subdivision (a) or subdivision (b) has been violated.
(d)Notwithstanding subdivisions (a) and (b), an attorney is not required to send to the California Commission on Disability Access a copy of any subsequent demand letter or amended complaint in the same dispute following the initial demand letter or complaint, unless that subsequent demand letter or amended complaint alleges a new construction-related accessibility claim.
(e)A demand letter sent to the California Commission on Disability Access shall be for the informational purposes of Section 8299.08 of the Government Code. A demand letter received by the State Bar from the recipient of the demand letter shall be reviewed by the State Bar to determine whether subdivision (b) or (c) of Section 55.31 has been violated.
(f)(1)Notwithstanding Section 10231.5 of the Government Code, on or before July 31, 2019, and annually thereafter, the State Bar shall report to the Legislature and the Chairs of the Senate and Assembly Judiciary Committees, both of the following with respect to demand letters received by the State Bar:
(A)The number of investigations opened to date on a suspected violation of subdivision (b) or (c) of Section 55.31.
(B)Whether any disciplinary action resulted from the investigation, and the results of that disciplinary action.
(2)A report to be submitted pursuant to this subdivision shall be submitted in compliance with Section 9795 of the Government Code.
(g)The California Commission on Disability Access shall review and report on the demand letters and complaints it receives as provided in Section 8299.08 of the Government Code.
(h)The expiration of any ground for discipline of an attorney shall not affect the imposition of discipline for any act prior to the expiration. An act or omission that constituted cause for imposition of discipline of an attorney when committed or omitted prior to January 1, 2019, shall continue to constitute cause for the imposition of discipline of that attorney on and after January 1, 2019.
(i)Paragraph (2) of subdivision (a) and subdivision (b) shall not apply to a demand letter or complaint sent or filed by an attorney employed or retained by a qualified legal services project or a qualified support center, as defined in Section 6213 of the Business and Professions Code, when acting within the scope of employment in asserting a construction-related accessibility claim. The Legislature finds and declares that qualified legal services projects and support centers are extensively regulated by the State Bar of California, and that there is no evidence of any abusive use of demand letters or complaints by these organizations. The Legislature further finds that, in light of the evidence of the extraordinarily small number of construction-related accessibility cases brought by regulated legal services programs, and given the resources of those programs, exempting regulated legal services programs from the requirements of this section to report to the California Commission on Disability Access will not affect the purpose of the reporting to, and tabulation by, the commission of all other construction-related accessibility claims.
(j)This section shall become operative on January 1, 2019.
SEC. 2.5.Section 55.32 of the Civil Code, as added by Section 6 of Chapter 383 of the Statutes of 2012, is amended to read:55.32.(a)An attorney who provides a demand letter, as defined in subdivision (a) of Section 55.3, shall do all of the following:
(1)Include the attorneys State Bar license number in the demand letter.
(2)Within five business days of providing the demand letter, send a copy of the demand letter to letter, and submit information about the demand letter in a standard format specified by the California Commission on Disability Access. Access, to the commission.
(b)An attorney who sends or serves a complaint, as defined in subdivision (a) of Section 55.3, shall send do both of the following:
(1)Send a copy of the complaint to the and submit information about the complaint in a standard format specified by the California Commission on Disability Access to the commission within five business days of sending or serving the complaint.
(2)Notify the California Commission on Disability Access within five business days of judgment, settlement, or dismissal of the claim or claims alleged in the complaint of the following information in a standard format specified by the commission:
(A)The date of the judgment, settlement, or dismissal.
(B)Whether or not the construction-related accessibility violations alleged in the complaint were remedied in whole or in part after the plaintiff filed a complaint or provided a demand letter, as defined by Section 55.3.
(C)If the construction-related accessibility violations alleged in the complaint were not remedied in whole or in part after the plaintiff filed a complaint or provided a demand letter, as defined by Section 55.3, whether or not another favorable result was achieved after the plaintiff filed the complaint or provided the demand letter.
(D)Whether or not the defendant submitted an application for an early evaluation conference and stay pursuant to Section 55.54, whether the defendant requested a site inspection, the date of any early evaluation conference, and the date of any site inspection.
(c)A violation of paragraph (2) of subdivision (a) or subdivision (b) shall constitute cause for the imposition of discipline of an attorney if a copy of the demand letter or complaint letter, complaint, or notification of a case outcome is not sent to the California Commission on Disability Access within five business days. In the event the State Bar receives information indicating that an attorney has failed to send a copy of the demand letter or complaint letter, complaint, or notification of a case outcome to the California Commission on Disability Access within five business days, the State Bar shall investigate to determine whether paragraph (2) of subdivision (a) or subdivision (b) has been violated.
(d)Notwithstanding subdivisions (a) and (b), an attorney is not required to send to the California Commission on Disability Access a copy of any subsequent demand letter or amended complaint in the same dispute following the initial demand letter or complaint, unless that subsequent demand letter or amended complaint alleges a new construction-related accessibility claim.
(e)A demand letter or notification of a case outcome sent to the California Commission on Disability Access shall be for the informational purposes of Section 8299.08 of the Government Code. A demand letter received by the State Bar from the recipient of the demand letter shall be reviewed by the State Bar to determine whether subdivision (b) or (c) of Section 55.31 has been violated.
(f)(1)Notwithstanding Section 10231.5 of the Government Code, on or before July 31, 2016, 2019, and annually thereafter, the State Bar shall report to the Legislature and the Chairs of the Senate and Assembly Judiciary Committees, both of the following with respect to demand letters received by the State Bar:
(A)The number of investigations opened to date on a suspected violation of subdivision (b) or (c) of Section 55.31.
(B)Whether any disciplinary action resulted from the investigation, and the results of that disciplinary action.
(2)A report to be submitted pursuant to this subdivision shall be submitted in compliance with Section 9795 of the Government Code.
(g)The California Commission on Disability Access shall review and report on the demand letters and complaints letters, complaints, and notifications of case outcomes it receives as provided in Section 8299.08 of the Government Code.
(h)The expiration of any ground for discipline of an attorney shall not affect the imposition of discipline for any act prior to the expiration. An act or omission that constituted cause for imposition of discipline of an attorney when committed or omitted prior to January 1, 2016, 2019, shall continue to constitute cause for the imposition of discipline of that attorney on and after January 1, 2016. 2019.
(i)Paragraph (2) of subdivision (a) and subdivision (b) shall not apply to a demand letter or complaint sent or filed by an attorney employed or retained by a qualified legal services project or a qualified support center, as defined in Section 6213 of the Business and Professions Code, when acting within the scope of employment in asserting a construction-related accessibility claim. The Legislature finds and declares that qualified legal services projects and support centers are extensively regulated by the State Bar of California, and that there is no evidence of any abusive use of demand letters or complaints by these organizations. The Legislature further finds that, in light of the evidence of the extraordinarily small number of construction-related accessibility cases brought by regulated legal services programs, and given the resources of those programs, exempting regulated legal services programs from the requirements of this section to report to the California Commission on Disability Access will not affect the purpose of the reporting to, and tabulation by, the commission of all other construction-related accessibility claims.
(j)This section shall become operative on January 1, 2016. 2019.
SEC. 3.Section 55.53 of the Civil Code is amended to read:55.53.(a)For purposes of this part, a certified access specialist shall, upon completion of the inspection of a site, comply with the following:
(1)For a meets applicable standards site, if the CASp determines the site meets all applicable construction-related accessibility standards, the CASp shall provide a written inspection report to the requesting party that includes both of the following:
(A)An identification and description of the inspected structures and areas of the site.
(B)A signed and dated statement that includes both of the following:
(i)A statement that, in the opinion of the CASp, the inspected structures and areas of the site meet construction-related accessibility standards. The statement shall clearly indicate whether the determination of the CASp includes an assessment of readily achievable barrier removal.
(ii)If corrections were made as a result of the CASp inspection, an itemized list of all corrections and dates of completion.
(2)For an inspected by a CASp site, if the CASp determines that corrections are needed to the site in order for the site to meet all applicable construction-related accessibility standards, the CASp shall provide a signed and dated written inspection report to the requesting party that includes all of the following:
(A)An identification and description of the inspected structures and areas of the site.
(B)The date of the inspection.
(C)A statement that, in the opinion of the CASp, the inspected structures and areas of the site need correction to meet construction-related accessibility standards. This statement shall clearly indicate whether the determination of the CASp includes an assessment of readily achievable barrier removal.
(D)An identification and description of the structures or areas of the site that need correction and the correction needed.
(E)A schedule of completion for each of the corrections within a reasonable timeframe.
(3)The CASp shall provide, within 30 days of the date of an the inspection for of a business that qualifies for the provisions of subparagraph (A) of paragraph (3) of subdivision (g) of Section 55.56, a copy of a report prepared pursuant to that subparagraph to the business.
(4)The CASp shall file, within 10 days of inspecting a business pursuant to subparagraph (A) of paragraph (3) of subdivision (g) of Section 55.56, a notice with the State Architect for listing on the State Architects Internet Web site, as provided by subdivision (d) of Section 4459.7 of the Government Code, indicating that the CASp has inspected the business, the name and address of the business, the date of the filing, the date of the inspection of the business, the name and license number of the CASp, and a description of the structure or area inspected by the CASp.
(5)The CASp shall post the notice described in paragraph (4), in a form prescribed by the State Architect, in a conspicuous location within five feet of all public entrances to the building on the date of the inspection and instruct the business to keep it in place until the earlier of either of the following:
(A)One hundred twenty days after the date of the inspection.
(B)The date when all of the construction-related violations in the structure or area inspected by the CASp are corrected.
(b)For purposes of this section, in determining whether the site meets applicable construction-related accessibility standards when there is a conflict or difference between a state and federal provision, standard, or regulation, the state provision, standard, or regulation shall apply unless the federal provision, standard, or regulation is more protective of accessibility rights.
(c)Every CASp who conducts an inspection of a place of public accommodation shall, upon completing the inspection of the site, provide the building owner or tenant who requested the inspection with the following notice, which the State Architect shall make available as a form on the State Architects Internet Web site:
NOTICE TO PRIVATE PROPERTY OWNER/TENANT:
YOU ARE ADVISED TO KEEP IN YOUR RECORDS ANY WRITTEN INSPECTION REPORT AND ANY OTHER DOCUMENTATION CONCERNING YOUR PROPERTY SITE THAT IS GIVEN TO YOU BY A CERTIFIED ACCESS SPECIALIST.
IF YOU BECOME A DEFENDANT IN A LAWSUIT THAT INCLUDES A CLAIM CONCERNING A SITE INSPECTED BY A CERTIFIED ACCESS SPECIALIST, YOU MAY BE ENTITLED TO A COURT STAY (AN ORDER TEMPORARILY STOPPING ANY LAWSUIT) OF THE CLAIM AND AN EARLY EVALUATION CONFERENCE.
IN ORDER TO REQUEST THE STAY AND EARLY EVALUATION CONFERENCE, YOU WILL NEED TO VERIFY THAT A CERTIFIED ACCESS SPECIALIST HAS INSPECTED THE SITE THAT IS THE SUBJECT OF THE CLAIM. YOU WILL ALSO BE REQUIRED TO PROVIDE THE COURT AND THE PLAINTIFF WITH THE COPY OF A WRITTEN INSPECTION REPORT BY THE CERTIFIED ACCESS SPECIALIST, AS SET FORTH IN CIVIL CODE SECTION 55.54. THE APPLICATION FORM AND INFORMATION ON HOW TO REQUEST A STAY AND EARLY EVALUATION CONFERENCE MAY BE OBTAINED AT www.courts.ca.gov/selfhelp-start.htm.
YOU ARE ENTITLED TO REQUEST, FROM A CERTIFIED ACCESS SPECIALIST WHO HAS CONDUCTED AN INSPECTION OF YOUR PROPERTY, A WRITTEN INSPECTION REPORT AND OTHER DOCUMENTATION AS SET FORTH IN CIVIL CODE SECTION 55.53. YOU ARE ALSO ENTITLED TO REQUEST THE ISSUANCE OF A DISABILITY ACCESS INSPECTION CERTIFICATE, WHICH YOU MAY POST ON YOUR PROPERTY.
(d)(1)Commencing July 1, 2010, a local agency shall employ or retain at least one building inspector who is a certified access specialist. The certified access specialist shall provide consultation to the local agency, permit applicants, and members of the public on compliance with state construction-related accessibility standards with respect to inspections of a place of public accommodation that relate to permitting, plan checks, or new construction, including, but not limited to, inspections relating to tenant improvements that may impact access. If a local agency employs or retains two or more certified access specialists to comply with this subdivision, at least one-half of the certified access specialists shall be building inspectors who are certified access specialists.
(2)Commencing January 1, 2014, a local agency shall employ or retain a sufficient number of building inspectors who are certified access specialists to conduct permitting and plan check services to review for compliance with state construction-related accessibility standards by a place of public accommodation with respect to new construction, including, but not limited to, projects relating to tenant improvements that may impact access. If a local agency employs or retains two or more certified access specialists to comply with this subdivision, at least one-half of the certified access specialists shall be building inspectors who are certified access specialists.
(3)If a permit applicant or member of the public requests consultation from a certified access specialist, the local agency may charge an amount limited to a reasonable hourly rate, an estimate of which shall be provided upon request in advance of the consultation. A local government may additionally charge or increase permitting, plan check, or inspection fees to the extent necessary to offset the costs of complying with this subdivision. Any revenues generated from an hourly or other charge or fee increase under this subdivision shall be used solely to offset the costs incurred to comply with this subdivision. A CASp inspection pursuant to subdivision (a) by a building inspector who is a certified access specialist shall be treated equally for legal and evidentiary purposes as an inspection conducted by a private CASp. Nothing in this subdivision shall preclude permit applicants or any other person with a legal interest in the property from retaining a private CASp at any time.
(e)(1)Every CASp who completes an inspection of a place of public accommodation shall, upon a determination that the site meets applicable standards pursuant to paragraph (1) of subdivision (a) or is inspected by a CASp pursuant to paragraph (2) of subdivision (a), provide the building owner or tenant requesting the inspection with a numbered disability access inspection certificate indicating that the site has undergone inspection by a certified access specialist. The disability access inspection certificate shall be dated and signed by the CASp inspector, and shall contain the inspectors name and license number. Upon issuance of a certificate, the CASp shall record the issuance of the numbered certificate, the name and address of the recipient, and the type of report issued pursuant to subdivision (a) in a record book the CASp shall maintain for that purpose.
(2)Beginning March 1, 2009, the State Architect shall make available for purchase by any local building department or CASp sequentially numbered disability access inspection certificates that are printed with a watermark or other feature to deter forgery and that comply with the information requirements specified in subdivision (a).
(3)The disability access inspection certificate may be posted on the premises of the place of public accommodation, unless, following 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.
(f)Nothing in this section or any other law is intended to require a property owner or tenant to hire a CASp. A property owners or tenants election not to hire a CASp shall not be admissible to prove that persons lack of intent to comply with the law.
SEC. 4.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.
(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)(1)The following technical violations are presumed to not cause a person difficulty, discomfort, or embarrassment for the purpose of an award of minimum statutory damages in a construction-related accessibility claim, as set forth in subdivision (c), where the defendant is a small business, as described by subparagraph (B) of paragraph (2) of subdivision (g), the defendant has corrected, within 15 days of the service of a summons and complaint asserting a construction-related accessibility claim or receipt of a written notice, whichever is earlier, all of the technical violations that are the basis of the claim, and the claim is based on one or more of the following violations:
(A)Interior signs, other than directional signs or signs that identify the location of accessible elements, facilities, or features, when not all such elements, facilities, or features are accessible.
(B)The lack of exterior signs, other than parking signs and directional signs, including signs that indicate the location of accessible pathways or entrance and exit doors when not all pathways, entrance and exit doors are accessible.
(C)The order in which parking signs are placed or the exact location or wording of parking signs, provided that the parking signs are clearly visible and indicate the location of accessible parking and van-accessible parking.
(D)The color of parking signs, provided that the color of the background contrasts with the color of the information on the sign.
(E)The color of parking lot striping, provided that it exists and provides sufficient contrast with the surface upon which it is applied to be reasonably visible.
(F)Faded, chipped, damaged, or deteriorated paint in otherwise fully compliant parking spaces and passenger access aisles in parking lots, provided that it indicates the required dimensions of a parking space or access aisle in a manner that is reasonably visible.
(G)The presence or condition of detectable warning surfaces on ramps, except where the ramp is part of a pedestrian path of travel that intersects with a vehicular lane or other hazardous area.
(2)The presumption set forth in paragraph (1) affects the plaintiffs burden of proof and is rebuttable by evidence showing, by a preponderance of the evidence, that the plaintiff did, in fact, experience difficulty, discomfort, or embarrassment on the particular occasion as a result of one or more of the technical violations listed in paragraph (1).
(f)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.
(g)(1)Notwithstanding any other law, a defendants 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 defendants knowledge, there were no modifications or alterations that impacted compliance with construction-related accessibility standards with respect to the plaintiffs 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 defendants knowledge, there were no modifications or alterations that impacted compliance with respect to the plaintiffs 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 defendants knowledge, there were no modifications or alterations that affected compliance with respect to the plaintiffs 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 defendants 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)(A)Notwithstanding any other law, a defendant shall not be liable for minimum statutory damages in a construction-related accessibility claim, with respect to a violation noted in a report by a certified access specialist (CASp), for a period of 120 days following the date of the inspection if the defendant demonstrates compliance with each of the following:
(i)The defendant is a business that has employed 100 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 Employment Development Department.
(ii)The structure or area of the alleged violation was the subject of an inspection report indicating CASp determination pending or Inspected by a CASp.
(iii)The inspection predates the filing of the claim by, or receipt of a demand letter from, the plaintiff regarding the alleged violation of a construction-related accessibility standard, and the defendant was not on notice of the alleged violation prior to the CASp inspection.
(iv)The defendant has corrected, within 120 days of the date of the inspection, all construction-related violations in the structure or area inspected by the CASp that are noted in the CASp report that are the basis of the claim.
(B)Notwithstanding any other law, a defendant who claims the benefit of the reduction of minimum statutory damages under this subdivision shall disclose the date and findings of any CASp inspection to a plaintiff if relevant to a claim or defense in an action.
(4)A defendant may assert the reduction of minimum statutory damages under this subdivision only once for each structure or area inspected by a CASp, unless the inspected structure or area has undergone modifications or alterations that affect the compliance with construction-related accessibility standards of those structures or areas after the date of the last inspection, and the defendant obtains an additional CASp inspection within 30 days of final approval by the building department or certificate of occupancy, as appropriate, regarding the modification or alterations.
(5)If the defendant has failed to correct, within 120 days of the date of the inspection, all construction-related violations in the structure or area inspected by the CASp that are noted in the CASp report, the defendant shall not receive any reduction of minimum statutory damages, unless a building permit is required for the repairs which cannot reasonably be completed by the defendant within 120 days and the defendant is in the process of correcting the violations noted in the CASp report, as evidenced by having, at least, an active building permit necessary for the repairs to correct the violation that was noted, but not corrected, in the CASp report and all of the repairs are completed within 180 days of the date of the inspection.
(6)This subdivision shall not be applicable to intentional violations.
(7)Nothing in this subdivision affects the awarding of actual damages, or affects the awarding of treble actual damages.
(8)This subdivision shall apply only to claims filed on or after the effective date of Senate Bill 1186 of the 201112 Regular Session of the Legislature, except for paragraphs (3), (4), and (5), which shall apply to claims filed on or after January 1, 2016. Nothing in this subdivision is intended to affect a complaint filed before that date.
(h)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, nor alter any legal obligation of a party to mitigate damages.
(i)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 plaintiffs conduct in light of the plaintiffs obligation, if any, to mitigate damages.
(j)For purposes of this section, the structure or area inspected means one of the following: the interior of the premises, the exterior of the premises, or both the interior and exterior.
SEC. 5.Section 4459.7 of the Government Code is amended to read:4459.7.(a)(1)No later than October 31 of each year, the State Architect shall publish and make available to the public a list of certified access specialists who have met the requirements of Section 4459.5.
(2)The State Architect shall publish and regularly update on its Internet Web site easily accessible lists of all of the following:
(A)Businesses that have obtained a CASp inspection and have filed, or a CASp has filed on their behalf, a notice pursuant to paragraph (3) (4) of subdivision (g) (a) of Section 55.56 55.53 of the Civil Code.
(B)Businesses which have been inspected by a certified access specialist on or after January 1, 2016, including the date of the inspection.
(3)The lists required pursuant to this section shall include a written disclaimer of liability as specified in subdivision (b).
(b)Notwithstanding any other provision of law, a state agency or employee of a state agency may not be held liable for any injury or damages resulting from any service provided by a certified access specialist whose name appears on the list published pursuant to subdivision (a).
(c)The State Architect may perform periodic audits of work performed by a certified access specialist as deemed necessary to ensure the desired standard of performance. A certified access specialist shall provide an authorized representative of the State Architect with complete access, at any reasonable hour of the day, to all technical data, reports, records, photographs, design outlines and plans, and files used in building inspection and plan review, with the exception of proprietary and confidential information.
(d)By January 1, 2016, the State Architect shall develop a process by which a certified access specialist (CASp) may notify the State Architect that a structure or area on the premises of a business has been inspected by a CASp and to notify the public that the business has a CASp determination pending, or has been Inspected by a CASp, as provided by paragraph (3) of subdivision (g) of Section 55.56 of the Civil Code, which shall include the name and address of the business, the date of the notification, the date of the inspection of the business, the name and license number of the CASp, and a description of the structure or area inspected by a CASp.
(e)By January 1, 2016, the State Architect shall develop a form for a business to notify the public that the business has obtained a CASp inspection pursuant to paragraph (3) of subdivision (g) of Section 55.56 of the Civil Code, which shall include the date of the notification, the date of the inspection, and a description of the structure or area inspected by a CASp.
(f)For purposes of this section, the structure or area inspected means one of the following: the interior of the premises, the exterior of the premises, or both the interior and exterior.
SEC. 6.Section 4459.8 of the Government Code is amended to read:4459.8.(a)The certification authorized by Section 4459.5 is effective for three years from the date of initial certification and expires if not renewed. The State Architect, upon consideration of any factual complaints regarding the work of a certified access specialist or of other relevant information, may suspend certification or deny renewal of certification.
(b)(1)The State Architect shall require each applicant for certification as a certified access specialist to do both of the following:
(A)Pay fees, including an application and course fee and an examination fee, at a level sufficient to meet the costs of application processing, registration, publishing a list, and other activities that are reasonably necessary to implement and administer the certified access specialist program.
(B)Provide to the State Architect the name of the city, county, or city and county in which the applicant intends to provide services.
(2)The State Architect shall require each applicant for renewal of certification to do both of the following:
(A)Pay a fee sufficient to cover the reasonable costs of reassessing qualifications of renewal applicants.
(B)Provide to the State Architect the name of the city, county, or city and county in which the applicant has provided services since the last day of certification by the State Architect.
(3)The State Architect shall periodically review his or her schedule of fees to ensure that the fees for certification are not excessive while covering the costs to administer the certified access specialist program. The application fee for a California licensed architect, landscape architect, civil engineer, or structural engineer shall not exceed two hundred fifty dollars ($250).
(c)All fees collected pursuant to this section shall be deposited into the Certified Access Specialist Fund, which is hereby created in the State Treasury. Notwithstanding Section 13340, this fund is continuously appropriated without regard to fiscal years for use by the State Architect to implement Sections 4459.5 to 4459.8, inclusive.
(d)The State Architect shall post on his or her Internet Web site the name of the city, county, or city and county in which each certified access specialist provides or intends to provide services.
SEC. 7.Section 8299.06 of the Government Code is amended to read:8299.06.(a)A priority of the commission shall be the development and dissemination of educational materials and information to promote and facilitate disability access compliance.
(b)The commission shall work with other state agencies, including the Division of the State Architect and the Department of Rehabilitation, to develop educational materials and information for use by businesses to understand its obligations to provide disability access and to facilitate compliance with construction-related accessibility standards.
(c)The commission shall develop and make available on its Internet Web site, or make available on its Internet Web site if developed by another governmental agency, including Americans with Disabilities Act centers, toolkits or educational modules to assist a California business to understand its obligations under the law and to facilitate compliance with respect to the top 10 alleged construction-related violations, by type, as specified in subdivision (a) of Section 8299.08. Upon completion of this requirement, the commission shall develop and make available on its Internet Web site, or work with another agency to develop, other toolkits or educational modules that would educate businesses of the accessibility requirements and to facilitate compliance with that requirement.
(d)The commission shall post the following on its Internet Web site:
(1)Educational materials and information that will assist building owners, tenants, building officials, and building inspectors to understand the disability accessibility requirements and to facilitate compliance with disability access laws. The commission shall at least annually review the educational materials and information on disability access requirements and compliance available on the Internet Web site of other local, state, or federal agencies, including Americans with Disabilities Act centers, to augment the educational materials and information developed by the commission.
(2)A link to the Internet Web site of the Division of the State Architects certified access specialist (CASp) program to assist building owners and tenants in locating or hiring a CASp.
(e)The commission shall, to the extent feasible, coordinate with other state agencies and local building departments to ensure that information provided to the public on disability access requirements is uniform and complete, and make its educational materials and information available to those agencies and departments.
SEC. 7.5.Section 8299.06 of the Government Code is amended to read:8299.06.(a)A priority of the commission shall be the development and dissemination of educational materials and information to promote and facilitate disability access compliance.
(b)The commission shall work with other state agencies, including the Division of the State Architect and the Department of Rehabilitation, to develop educational materials and information for use by businesses to understand their obligations to provide disability access and to facilitate compliance with construction-related accessibility standards.
(c)The commission shall develop and make available on its Internet Web site, or make available on its Internet Web site if developed by another governmental agency, including Americans with Disabilities Act centers, toolkits or educational modules to assist a California business to understand its obligations under the law and to facilitate compliance with respect to the top 10 alleged construction-related violations, by type, as specified in subdivision (a) of Section 8299.08. Upon completion of this requirement, the commission shall develop and make available on its Internet Web site, or work with another agency to develop, other toolkits or educational modules that would educate businesses of the accessibility requirements and to facilitate compliance with that requirement.
(d)The commission shall post the following on its Internet Web site:
(1)Educational materials and information that will assist building owners, tenants, building officials, and building inspectors to understand the disability accessibility requirements and to facilitate compliance with disability access laws. The commission shall at least annually review the educational materials and information on disability access requirements and compliance available on the Internet Web sites of other local, state, or federal agencies, including Americans with Disabilities Act centers, to augment the educational materials and information developed by the commission.
(2)A link to the Internet Web site of the Division of the State Architects Certified Access Specialist (CASp) Program to assist building owners and tenants in locating or hiring a CASp.
(e)The commission shall, to the extent feasible, coordinate with other state agencies and local building departments to ensure that information provided to the public on disability access requirements is uniform and complete, and make its educational materials and information available to those agencies and departments.
(f)The commission shall establish a permanent legislative outreach coordinator position and a permanent educational outreach coordinator position.
SEC. 8.Section 65941.6 is added to the Government Code, to read:65941.6.(a)Each local agency shall develop materials relating to the requirements of the federal Americans with Disabilities Act of 1990 (42 U.S.C. Sec. 12101 et seq.). The local agency shall provide these materials to an applicant along with notice that approval of a permit does not signify that the applicant has complied with the federal Americans with Disabilities Act of 1990.
(b)For the purposes of complying with the requirements of subdivision (a), a local agency may, in lieu of developing its own materials, provide applicants with those materials which the California Commission on Disability Access has developed and made available pursuant to Section 8299.06.
SEC. 9.Article 4 (commencing with Section 65946) is added to Chapter 4.5 of Division 1 of Title 7 of the Government Code, to read:4.Expedited Review65946.(a)For the purposes of this section, the following definitions shall apply:
(1)Certified access specialist or CASp means any person who has been certified pursuant to Section 4459.5.
(2)Construction-related accessibility standard means a provision, standard, or regulation under state or federal law requiring compliance with standards for making new construction and existing facilities accessible to persons with disabilities, including, but not limited to, any provision, standard, or regulation set forth in Section 51, 54, 54.1, or 55 of the Civil Code, Section 19955.5 of the Health and Safety Code, the California Building Standards Code (Title 24 of the California Code of Regulations), the federal Americans with Disabilities Act of 1990 (Public Law 101-336; 42 U.S.C. Sec. 12101 et seq.), and the federal Americans with Disabilities Act Accessibility Guidelines (Appendix A to Part 36 of Title 28 of the Code of Federal Regulations).
(3)Written inspection report means the CASp report required to be provided pursuant to subdivision (a) of Section 55.53 of the Civil Code.
(b)A local agency shall expedite review of a project application if the project applicant meets all of the following conditions:
(1)The applicant provides a copy of a disability access inspection certificate, provided by a CASp pursuant to subdivision (e) of Section 55.53 of the Civil Code, pertaining to the site of the proposed project.
(2)The applicant demonstrates that the proposed project is necessary to address either an alleged violation of a construction-related accessibility standard or a violation noted in a written inspection report.
(3)If project plans are necessary for the approval of a project, the applicant has had a CASp review the project plans for compliance with all applicable construction-related accessibility standards.
SEC. 10.Section 17053.43 is added to the Revenue and Taxation Code, to read:17053.43.(a)For each taxable year beginning on or after January 1, 2016, and before January 1, 2021, there shall be allowed as a credit against the net tax, as defined in Section 17039, the amount paid or incurred for eligible access expenditures. The credit shall be allowed in accordance with Section 44 of the Internal Revenue Code, relating to expenditures to provide access to disabled individuals, except that the credit amount specified in subdivision (b) shall be substituted for the credit amount specified in Section 44(a) of the Internal Revenue Code.
(b)The credit amount allowed under this section shall be an amount equal to 10 percent of so much of the eligible access expenditures for the taxable year as exceed two hundred fifty dollars ($250) but do not exceed ten thousand two hundred fifty dollars ($10,250).
(c)In the case where the credit allowed by this section exceeds the net tax, the excess may be carried over to reduce the net tax in the following year, and the succeeding four years, if necessary, until the credit is exhausted.
(d)The credit allowed by this section may be claimed only on a timely filed original return of the taxpayer.
(e)The Franchise Tax Board may prescribe rules, guidelines, or procedures necessary or appropriate to carry out the purposes of this section, including any guidelines regarding the substantiation of the credit allowed by this section. Chapter 3.5 (commencing with Section 11340) of Part 1 of Division 3 of Title 2 of the Government Code does not apply to any rule, guideline, or procedure prescribed by the Franchise Tax Board pursuant to this section.
(f)This section shall remain in effect only until December 1, 2021, and as of that date is repealed.
SEC. 11.Section 23643 is added to the Revenue and Taxation Code, to read:23643.(a)For each taxable year beginning on or after January 1, 2016, and before January 1, 2021, there shall be allowed as a credit against the tax, as defined in Section 23036, the amount paid or incurred for eligible access expenditures. The credit shall be allowed in accordance with Section 44 of the Internal Revenue Code, relating to expenditures to provide access to disabled individuals, except that the credit amount specified in subdivision (b) shall be substituted for the credit amount specified in Section 44(a) of the Internal Revenue Code and the second sentence of Section 44(d)(3) of the Internal Revenue Code, relating to partnerships and S corporations, shall not apply.
(b)The credit amount allowed under this section shall be an amount equal to 10 percent of so much of the eligible access expenditures for the taxable year as exceed two hundred fifty dollars ($250) but do not exceed ten thousand two hundred fifty dollars ($10,250).
(c)In the case where the credit allowed by this section exceeds the tax, the excess may be carried over to reduce the tax in the following year, and the succeeding four years, if necessary, until the credit is exhausted.
(d)The credit allowed by this section may be claimed only on a timely filed original return of the taxpayer.
(e)The Franchise Tax Board may prescribe rules, guidelines, or procedures necessary or appropriate to carry out the purposes of this section, including any guidelines regarding the substantiation of the credit allowed by this section. Chapter 3.5 (commencing with Section 11340) of Part 1 of Division 3 of Title 2 of the Government Code does not apply to any rule, guideline, or procedure prescribed by the Franchise Tax Board pursuant to this section.
(f)This section shall remain in effect only until December 1, 2021, and as of that date is repealed.
SEC. 12.The Legislature finds and declares that Sections 8 and 9 of this act, pertaining to the review and approval of development permit applications, constitute matters of statewide concern, and shall apply to charter cities and charter counties. These sections shall supersede any inconsistent provisions in the charter of any city, county, or city and county.
SEC. 13.It is the intent of the Legislature to make the findings required by Section 41 of the Revenue and Taxation Code with respect to the tax credits allowed by Sections 10 and 11 of this act.
SEC. 14.Section (a)Sections 1.5 and 2.5 of this bill incorporate amendments to Section 55.32 of the Civil Code proposed by this bill and Assembly Bill 1521. They shall only become operative if (1) both bills are enacted and become effective on or before January 1, 2016, (2) each bill amends Section 55.32 of the Civil Code, and (3) this bill is enacted after Assembly Bill 1521, in which case Section 55.32 of the Civil Code, as amended by Assembly Bill 1521, shall remain operative only until the operative date of this bill, at which time Sections 1.5 and 2.5 of this bill shall become operative, and Sections 1 and 2 of this bill shall not become operative.
(b)Section 7.5 of this bill incorporates amendments to Section 8299.06 of the Government Code proposed by both this bill and Assembly Bill 1342. It shall only become operative if (1) both bills are enacted and become effective on or before January 1, 2016, (2) each bill amends Section 8299.06 of the Government Code, and (3) this bill is enacted after Assembly Bill 1342, in which case Section 7 of this bill shall not become operative.
SEC. 15.If the Commission on State Mandates determines that this act contains costs mandated by the state, reimbursement to local agencies and school districts for those costs shall be made pursuant to Part 7 (commencing with Section 17500) of Division 4 of Title 2 of the Government Code.
(a)An attorney who provides a demand letter, as defined in subdivision (a) of Section 55.3, shall do all of the following:
(1)Include the attorneys State Bar license number in the demand letter.
(2)Contemporaneously with providing the demand letter, send a copy of the demand letter to the State Bar of California by facsimile transmission at 1-415-538-2171, or by mail to 180 Howard Street, San Francisco, CA, 94105, Attention: Professional Competence.
(3)Within five business days of providing the demand letter, send a copy of the demand letter to the California Commission on Disability Access.
(b)An attorney who sends or serves a complaint, as defined in subdivision (a) of Section 55.3, shall send a copy of the complaint to the California Commission on Disability Access within five business days of sending or serving the complaint.
(c)A violation of paragraph (2) or (3) of subdivision (a) or subdivision (b) shall constitute cause for the imposition of discipline of an attorney where a copy of the complaint or demand letter is not sent to the California Commission on Disability Access within five business days, or a copy of the demand letter is not sent to the State Bar within five business days. In the event the State Bar receives information indicating that an attorney has failed to send a copy of the complaint or demand letter to the California Commission on Disability Access within five business days, the State Bar shall investigate to determine whether paragraph (3) of subdivision (a) or subdivision (b) has been violated.
(d)Notwithstanding subdivisions (a) and (b), an attorney is not required to send to the State Bar of California or the California Commission on Disability Access a copy of any subsequent demand letter or amended complaint in the same dispute following the initial demand letter or complaint, unless that subsequent demand letter or amended complaint alleges a new construction-related accessibility claim.
(e)A demand letter or complaint sent to the California Commission on Disability Access shall be for the informational purposes of Section 8299.08 of the Government Code. A demand letter received by the State Bar from either the sender or recipient of the demand letter shall be reviewed by the State Bar to determine whether subdivision (b) or (c) of Section 55.31 has been violated.
(f)(1)Commencing July 31, 2013, and annually each July 31 thereafter, the State Bar shall report to the Legislature and the Chairs of the Senate and Assembly Committees on Judiciary, both of the following with respect to demand letters received by the State Bar:
(A)The number of investigations opened to date on a suspected violation of subdivision (b) or (c) of Section 55.31.
(B)Whether any disciplinary action resulted from the investigation, and the results of that disciplinary action.
(2)A report to be submitted pursuant to this subdivision shall be submitted in compliance with Section 9795 of the Government Code.
(g)The California Commission on Disability Access shall review and report on the demand letters and complaints it receives as provided in Section 8299.08 of the Government Code.
(h)Paragraphs (2) and (3) of subdivision (a) and subdivision (b) shall not apply to a demand letter or complaint sent or filed by an attorney employed or retained by a qualified legal services project or a qualified support center, as defined in Section 6213 of the Business and Professions Code, when acting within the scope of employment in asserting a construction-related accessibility claim. The Legislature finds and declares that qualified legal services projects and support centers are extensively regulated by the State Bar of California, and that there is no evidence of any abusive use of demand letters or complaints by these organizations. The Legislature further finds that, in light of the evidence of the extraordinarily small number of construction-related accessibility cases brought by regulated legal services programs, and given the resources of those programs, exempting regulated legal services programs from the requirements of this section to report to the California Commission on Disability Access will not affect the purpose of the reporting to, and tabulation by, the commission of all other construction-related accessibility claims.
(i)This section shall become operative on January 1, 2013.
(j)This section shall remain in effect only until January 1, 2019, and as of that date is repealed.
SEC. 2.Section 55.32 of the Civil Code, as added by Section 6 of Chapter 383 of the Statutes of 2012, is amended to read:55.32.(a)An attorney who provides a demand letter, as defined in subdivision (a) of Section 55.3, shall do all of the following:
(1)Include the attorneys State Bar license number in the demand letter.
(2)Within five business days of providing the demand letter, send a copy of the demand letter letter, and submit information about the demand letter in a standard format specified by the California Commission on Disability Access, to the commission.
(b)An attorney who sends or serves a complaint, as defined in subdivision (a) of Section 55.3, shall send a copy of the complaint and submit information about the complaint in a standard format specified by the California Commission on Disability Access to the commission within five business days of sending or serving the complaint.
(c)A violation of paragraph (2) of subdivision (a) or subdivision (b) shall constitute cause for the imposition of discipline of an attorney if a copy of the demand letter or complaint is not sent to the California Commission on Disability Access within five business days. In the event the State Bar receives information indicating that an attorney has failed to send a copy of the demand letter or complaint to the California Commission on Disability Access within five business days, the State Bar shall investigate to determine whether paragraph (2) of subdivision (a) or subdivision (b) has been violated.
(d)Notwithstanding subdivisions (a) and (b), an attorney is not required to send to the California Commission on Disability Access a copy of any subsequent demand letter or amended complaint in the same dispute following the initial demand letter or complaint, unless that subsequent demand letter or amended complaint alleges a new construction-related accessibility claim.
(e)A demand letter sent to the California Commission on Disability Access shall be for the informational purposes of Section 8299.08 of the Government Code. A demand letter received by the State Bar from the recipient of the demand letter shall be reviewed by the State Bar to determine whether subdivision (b) or (c) of Section 55.31 has been violated.
(f)(1)Notwithstanding Section 10231.5 of the Government Code, on or before July 31, 2019, and annually thereafter, the State Bar shall report to the Legislature and the Chairs of the Senate and Assembly Judiciary Committees, both of the following with respect to demand letters received by the State Bar:
(A)The number of investigations opened to date on a suspected violation of subdivision (b) or (c) of Section 55.31.
(B)Whether any disciplinary action resulted from the investigation, and the results of that disciplinary action.
(2)A report to be submitted pursuant to this subdivision shall be submitted in compliance with Section 9795 of the Government Code.
(g)The California Commission on Disability Access shall review and report on the demand letters and complaints it receives as provided in Section 8299.08 of the Government Code.
(h)The expiration of any ground for discipline of an attorney shall not affect the imposition of discipline for any act prior to the expiration. An act or omission that constituted cause for imposition of discipline of an attorney when committed or omitted prior to January 1, 2019, shall continue to constitute cause for the imposition of discipline of that attorney on and after January 1, 2019.
(i)Paragraph (2) of subdivision (a) and subdivision (b) shall not apply to a demand letter or complaint sent or filed by an attorney employed or retained by a qualified legal services project or a qualified support center, as defined in Section 6213 of the Business and Professions Code, when acting within the scope of employment in asserting a construction-related accessibility claim. The Legislature finds and declares that qualified legal services projects and support centers are extensively regulated by the State Bar of California, and that there is no evidence of any abusive use of demand letters or complaints by these organizations. The Legislature further finds that, in light of the evidence of the extraordinarily small number of construction-related accessibility cases brought by regulated legal services programs, and given the resources of those programs, exempting regulated legal services programs from the requirements of this section to report to the California Commission on Disability Access will not affect the purpose of the reporting to, and tabulation by, the commission of all other construction-related accessibility claims.
(j)This section shall become operative on January 1, 2019.
SEC. 3.Section 55.53 of the Civil Code is amended to read:55.53.(a)For purposes of this part, a certified access specialist shall, upon completion of the inspection of a site, comply with the following:
(1)For a meets applicable standards site, if the CASp determines the site meets all applicable construction-related accessibility standards, the CASp shall provide a written inspection report to the requesting party that includes both of the following:
(A)An identification and description of the inspected structures and areas of the site.
(B)A signed and dated statement that includes both of the following:
(i)A statement that, in the opinion of the CASp, the inspected structures and areas of the site meet construction-related accessibility standards. The statement shall clearly indicate whether the determination of the CASp includes an assessment of readily achievable barrier removal.
(ii)If corrections were made as a result of the CASp inspection, an itemized list of all corrections and dates of completion.
(2)For an inspected by a CASp site, if the CASp determines that corrections are needed to the site in order for the site to meet all applicable construction-related accessibility standards, the CASp shall provide a signed and dated written inspection report to the requesting party that includes all of the following:
(A)An identification and description of the inspected structures and areas of the site.
(B)The date of the inspection.
(C)A statement that, in the opinion of the CASp, the inspected structures and areas of the site need correction to meet construction-related accessibility standards. This statement shall clearly indicate whether the determination of the CASp includes an assessment of readily achievable barrier removal.
(D)An identification and description of the structures or areas of the site that need correction and the correction needed.
(E)A schedule of completion for each of the corrections within a reasonable timeframe.
(3)The CASp shall provide, within 30 days of the date when it is requested by of an inspection for a business that qualifies for the provisions of subparagraph (A) of paragraph (3) of subdivision (g) of Section 55.56, a copy of a report prepared pursuant to that subparagraph to the business that requested it. business.
(4)The CASp shall file, within 10 days of inspecting a business pursuant to subparagraph (A) of paragraph (3) of subdivision (g) of Section 55.56, a notice with the State Architect for listing on the State Architects Internet Web site, as provided by subdivision (d) of Section 4459.7 of the Government Code, indicating that the CASp has inspected the business, the name and address of the business, the date of the filing, the date of the inspection of the business, the name and license number of the CASp, and a description of the structure or area inspected by the CASp.
(5)The CASp shall post the notice described in paragraph (4), in a form prescribed by the State Architect, in a conspicuous location within five feet of all public entrances to the building on the date of the inspection and instruct the business to keep it in place until the earlier of either of the following:
(A)One hundred twenty days after the date of the inspection.
(B)The date when all of the construction-related violations in the structure or area inspected by the CASp are corrected.
(b)For purposes of this section, in determining whether the site meets applicable construction-related accessibility standards when there is a conflict or difference between a state and federal provision, standard, or regulation, the state provision, standard, or regulation shall apply unless the federal provision, standard, or regulation is more protective of accessibility rights.
(c)Every CASp who conducts an inspection of a place of public accommodation shall, upon completing the inspection of the site, provide the building owner or tenant who requested the inspection with the following notice, which the State Architect shall make available as a form on the State Architects Internet Web site:
NOTICE TO PRIVATE PROPERTY OWNER/TENANT:
YOU ARE ADVISED TO KEEP IN YOUR RECORDS ANY WRITTEN INSPECTION REPORT AND ANY OTHER DOCUMENTATION CONCERNING YOUR PROPERTY SITE THAT IS GIVEN TO YOU BY A CERTIFIED ACCESS SPECIALIST.
IF YOU BECOME A DEFENDANT IN A LAWSUIT THAT INCLUDES A CLAIM CONCERNING A SITE INSPECTED BY A CERTIFIED ACCESS SPECIALIST, YOU MAY BE ENTITLED TO A COURT STAY (AN ORDER TEMPORARILY STOPPING ANY LAWSUIT) OF THE CLAIM AND AN EARLY EVALUATION CONFERENCE.
IN ORDER TO REQUEST THE STAY AND EARLY EVALUATION CONFERENCE, YOU WILL NEED TO VERIFY THAT A CERTIFIED ACCESS SPECIALIST HAS INSPECTED THE SITE THAT IS THE SUBJECT OF THE CLAIM. YOU WILL ALSO BE REQUIRED TO PROVIDE THE COURT AND THE PLAINTIFF WITH THE COPY OF A WRITTEN INSPECTION REPORT BY THE CERTIFIED ACCESS SPECIALIST, AS SET FORTH IN CIVIL CODE SECTION 55.54. THE APPLICATION FORM AND INFORMATION ON HOW TO REQUEST A STAY AND EARLY EVALUATION CONFERENCE MAY BE OBTAINED AT www.courts.ca.gov/selfhelp-start.htm.
YOU ARE ENTITLED TO REQUEST, FROM A CERTIFIED ACCESS SPECIALIST WHO HAS CONDUCTED AN INSPECTION OF YOUR PROPERTY, A WRITTEN INSPECTION REPORT AND OTHER DOCUMENTATION AS SET FORTH IN CIVIL CODE SECTION 55.53. YOU ARE ALSO ENTITLED TO REQUEST THE ISSUANCE OF A DISABILITY ACCESS INSPECTION CERTIFICATE, WHICH YOU MAY POST ON YOUR PROPERTY.
(d)(1)Commencing July 1, 2010, a local agency shall employ or retain at least one building inspector who is a certified access specialist. The certified access specialist shall provide consultation to the local agency, permit applicants, and members of the public on compliance with state construction-related accessibility standards with respect to inspections of a place of public accommodation that relate to permitting, plan checks, or new construction, including, but not limited to, inspections relating to tenant improvements that may impact access. If a local agency employs or retains two or more certified access specialists to comply with this subdivision, at least one-half of the certified access specialists shall be building inspectors who are certified access specialists.
(2)Commencing January 1, 2014, a local agency shall employ or retain a sufficient number of building inspectors who are certified access specialists to conduct permitting and plan check services to review for compliance with state construction-related accessibility standards by a place of public accommodation with respect to new construction, including, but not limited to, projects relating to tenant improvements that may impact access. If a local agency employs or retains two or more certified access specialists to comply with this subdivision, at least one-half of the certified access specialists shall be building inspectors who are certified access specialists.
(3)If a permit applicant or member of the public requests consultation from a certified access specialist, the local agency may charge an amount limited to a reasonable hourly rate, an estimate of which shall be provided upon request in advance of the consultation. A local government may additionally charge or increase permitting, plan check, or inspection fees to the extent necessary to offset the costs of complying with this subdivision. Any revenues generated from an hourly or other charge or fee increase under this subdivision shall be used solely to offset the costs incurred to comply with this subdivision. A CASp inspection pursuant to subdivision (a) by a building inspector who is a certified access specialist shall be treated equally for legal and evidentiary purposes as an inspection conducted by a private CASp. Nothing in this subdivision shall preclude permit applicants or any other person with a legal interest in the property from retaining a private CASp at any time.
(e)(1)Every CASp who completes an inspection of a place of public accommodation shall, upon a determination that the site meets applicable standards pursuant to paragraph (1) of subdivision (a) or is inspected by a CASp pursuant to paragraph (2) of subdivision (a), provide the building owner or tenant requesting the inspection with a numbered disability access inspection certificate indicating that the site has undergone inspection by a certified access specialist. The disability access inspection certificate shall be dated and signed by the CASp inspector, and shall contain the inspectors name and license number. Upon issuance of a certificate, the CASp shall record the issuance of the numbered certificate, the name and address of the recipient, and the type of report issued pursuant to subdivision (a) in a record book the CASp shall maintain for that purpose.
(2)Beginning March 1, 2009, the State Architect shall make available for purchase by any local building department or CASp sequentially numbered disability access inspection certificates that are printed with a watermark or other feature to deter forgery and that comply with the information requirements specified in subdivision (a).
(3)The disability access inspection certificate may be posted on the premises of the place of public accommodation, unless, following 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.
(f)Nothing in this section or any other law is intended to require a property owner or tenant to hire a CASp. A property owners or tenants election not to hire a CASp shall not be admissible to prove that persons lack of intent to comply with the law.
SEC. 4.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.
(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)(1)The following technical violations are presumed to not cause a person difficulty, discomfort, or embarrassment for the purpose of an award of minimum statutory damages in a construction-related accessibility claim, as set forth in subdivision (c), where the defendant is a small business business, as described by subparagraph (B) of paragraph (2) of subdivision (g), the defendant has corrected, within 15 days of the service of a summons and complaint asserting a construction-related accessibility claim or receipt of a written notice, whichever is earlier, all of the technical violations that are the basis of the claim, and the claim is based on one or more of the following violations:
(A)Interior signs, other than directional signs or signs that identify the location of accessible elements, facilities, or features, when not all such elements, facilities, or features are accessible.
(B)The lack of exterior signs, other than parking signs and directional signs, including signs that indicate the location of accessible pathways or entrance and exit doors when not all pathways, entrance and exit doors are accessible.
(C)The order in which parking signs are placed or the exact location or wording of parking signs, provided that the parking signs are clearly visible and indicate the location of accessible parking and van-accessible parking.
(D)The color of parking signs, provided that the color of the background contrasts with the color of the information on the sign.
(E)The color of parking lot striping, provided that it exists and provides sufficient contrast with the surface upon which it is applied to be reasonably visible.
(F)Faded, chipped, damaged, or deteriorated paint in otherwise fully compliant parking spaces and passenger access aisles in parking lots, provided that it indicates the required dimensions of a parking space or access aisle in a manner that is reasonably visible.
(G)The presence or condition of detectable warning surfaces on ramps, except where the ramp is part of a pedestrian path of travel that intersects with a vehicular lane or other hazardous area.
(2)The presumption set forth in paragraph (1) affects the plaintiffs burden of proof and is rebuttable by evidence showing, by a preponderance of the evidence, that the plaintiff did, in fact, experience difficulty, discomfort, or embarrassment on the particular occasion as a result of one or more of the technical violations listed in paragraph (1).
(f)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.
(g)(1)Notwithstanding any other law, a defendants 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 defendants knowledge, there were no modifications or alterations that impacted compliance with construction-related accessibility standards with respect to the plaintiffs 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 defendants knowledge, there were no modifications or alterations that impacted compliance with respect to the plaintiffs 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 defendants knowledge, there were no modifications or alterations that affected compliance with respect to the plaintiffs 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 defendants 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)(A)Notwithstanding any other law, a defendant shall not be liable for minimum statutory damages in a construction-related accessibility claim, with respect to a violation noted in a report by a certified access specialist (CASp), for a period of 120 days following the date of the inspection if the defendant demonstrates compliance with each of the following:
(i)The defendant is a business that has employed 100 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 Employment Development Department.
(ii)The structure or area of the alleged violation was the subject of an inspection report indicating CASp determination pending or Inspected by a CASp.
(iii)The inspection predates the filing of the claim by, or receipt of a demand letter from, the plaintiff regarding the alleged violation of a construction-related accessibility standard, and the defendant was not on notice of the alleged violation prior to the CASp inspection because of a previous CASp inspection of the premises, or other reasons. inspection.
(iv)Within 10 days of the date of the inspection, the CASp files a notice with the State Architect for listing on the State Architects Internet Web site, stating that the defendant has obtained a CASp inspection, the date of the filing, and the date of the inspection.
(v)The CASp posted the notice described in clause (iv), in a form prescribed by the State Architect, in a conspicuous location within five feet of all public entrances to the building on the date of the inspection and the defendant kept it in place until the earlier of either of the following:
(I)One hundred twenty days after the date of the inspection.
(II)The date when all of the construction-related violations in the structure or area inspected by the CASp are corrected.
(vi)
(iv)The defendant has corrected, within 120 days of the date of the inspection, all construction-related violations in the structure or area inspected by the CASp that are noted in the CASp report that are the basis of the claim.
(B)Notwithstanding any other law, a defendant who claims the benefit of the reduction of minimum statutory damages under this subdivision shall disclose the date and findings of any CASp inspection to a plaintiff if relevant to a claim or defense in an action.
(4)A defendant may assert the reduction of minimum statutory damages under this subdivision only once for each structure or area inspected by a CASp, unless the inspected structure or area has undergone modifications or alterations that affect the compliance with construction-related accessibility standards of those structures or areas after the date of the last inspection, and the defendant obtains an additional CASp inspection within 30 days of final approval by the building department or certificate of occupancy, as appropriate, regarding the modification or alterations.
(5)If the defendant has failed to correct, within 120 days of the date of the inspection, all construction-related violations in the structure or area inspected by the CASp that are noted in the CASp report, the defendant shall not receive any reduction of minimum statutory damages, unless a building permit is required for the repairs which cannot reasonably be completed by the defendant within 120 days and the defendant is in the process of correcting the violations noted in the CASp report, as evidenced by having, at least, an active building permit necessary for the repairs to correct the violation that was noted, but not corrected, in the CASp report and all of the repairs are completed within 180 days of the date of the inspection.
(6)This subdivision shall not be applicable to intentional violations.
(7)Nothing in this subdivision affects the awarding of actual damages, or affects the awarding of treble actual damages.
(8)This subdivision shall apply only to claims filed on or after the effective date of Senate Bill 1186 of the 201112 Regular Session of the Legislature, except that for paragraphs (3), (4), and (5), which shall apply to claims filed on or after January 1, 2016. Nothing in this subdivision is intended to affect a complaint filed before that date.
(h)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, nor alter any legal obligation of a party to mitigate damages.
(i)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 plaintiffs conduct in light of the plaintiffs obligation, if any, to mitigate damages.
(j)For purposes of this section, the structure or area inspected means one of the following: the interior of the premises, the exterior of the premises, or both the interior and exterior.
SEC. 5.Section 4459.7 of the Government Code is amended to read:4459.7.(a)(1)No later than October 31 of each year, the State Architect shall publish and make available to the public a list of certified access specialists who have met the requirements of Section 4459.5.
(2)The State Architect shall publish and regularly update on its Internet Web site easily accessible lists of all of the following:
(A)Businesses that have obtained a CASp inspection and have filed, or a CASp has filed on their behalf, a notice pursuant to paragraph (3) of subdivision (g) of Section 55.56 of the Civil Code.
(B)Businesses which have been inspected by a certified access specialist on or after January 1, 2016, including the date of the inspection.
(3)The lists required pursuant to this section shall include a written disclaimer of liability as specified in subdivision (b).
(b)Notwithstanding any other provision of law, a state agency or employee of a state agency may not be held liable for any injury or damages resulting from any service provided by a certified access specialist whose name appears on the list published pursuant to subdivision (a).
(c)The State Architect may perform periodic audits of work performed by a certified access specialist as deemed necessary to ensure the desired standard of performance. A certified access specialist shall provide an authorized representative of the State Architect with complete access, at any reasonable hour of the day, to all technical data, reports, records, photographs, design outlines and plans, and files used in building inspection and plan review, with the exception of proprietary and confidential information.
(d)By January 1, 2016, the State Architect shall develop a process by which a certified access specialist (CASp) may notify the State Architect that a structure or area on the premises of a business has been inspected by a CASp and to notify the public that the business has a CASp determination pending, or has been Inspected by a CASp, as provided by paragraph (3) of subdivision (g) of Section 55.56 of the Civil Code, which shall include the date of the notification, the date of the inspection, the name and address of the business, the date of the notification, the date of the inspection of the business, the name and license number of the CASp, and a description of the structure or area inspected by a CASp.
(e)By January 1, 2016, the State Architect shall develop a form for a business to notify the public that the business has obtained a CASp inspection pursuant to paragraph (3) of subdivision (g) of Section 55.56 of the Civil Code, which shall include the date of the notification, the date of the inspection, and a description of the structure or area inspected by a CASp.
(f)For purposes of this section, the structure or area inspected means one of the following: the interior of the premises, the exterior of the premises, or both the interior and exterior.
SEC. 6.Section 4459.8 of the Government Code is amended to read:4459.8.(a)The certification authorized by Section 4459.5 is effective for three years from the date of initial certification and expires if not renewed. The State Architect, upon consideration of any factual complaints regarding the work of a certified access specialist or of other relevant information, may suspend certification or deny renewal of certification.
(b)(1)The State Architect shall require each applicant for certification as a certified access specialist to do both of the following:
(A)Pay fees, including an application and course fee and an examination fee, at a level sufficient to meet the costs of application processing, registration, publishing a list, and other activities that are reasonably necessary to implement and administer the certified access specialist program.
(B)Provide to the State Architect the name of the city, county, or city and county in which the applicant intends to provide services.
(2)The State Architect shall require each applicant for renewal of certification to do both of the following:
(A)Pay a fee sufficient to cover the reasonable costs of reassessing qualifications of renewal applicants.
(B)Provide to the State Architect the name of the city, county, or city and county in which the applicant has provided services since the last day of certification by the State Architect.
(3)The State Architect shall periodically review its his or her schedule of fees to ensure that its the fees for certification are not excessive while covering the costs to administer the certified access specialist program. The application fee for a California licensed architect, landscape architect, civil engineer, or structural engineer shall not exceed two hundred fifty dollars ($250).
(c)All fees collected pursuant to this section shall be deposited into the Certified Access Specialist Fund, which is hereby created in the State Treasury. Notwithstanding Section 13340, this fund is continuously appropriated without regard to fiscal years for use by the State Architect to implement Sections 4459.5 to 4459.8, inclusive.
(d)The State Architect shall post on his or her Internet Web site the name of the city, county, or city and county in which each certified access specialist provides or intends to provide services.
SEC. 7.Section 8299.06 of the Government Code is amended to read:8299.06.(a)A priority of the commission shall be the development and dissemination of educational materials and information to promote and facilitate disability access compliance.
(b)The commission shall work with other state agencies, including the Division of the State Architect and the Department of Rehabilitation, to develop educational materials and information for use by businesses to understand its obligations to provide disability access and to facilitate compliance with construction-related accessibility standards.
(c)The commission shall develop and make available on its Internet Web site, or make available on its Internet Web site if developed by another governmental agency, including Americans with Disabilities Act centers, toolkits or educational modules to assist a California business to understand its obligations under the law and to facilitate compliance with respect to the top 10 alleged construction-related violations, by type, as specified in subdivision (a) of Section 8299.08. Upon completion of this requirement, the commission shall develop and make available on its Internet Web site, or work with another agency to develop, other toolkits or educational modules that would educate businesses of the accessibility requirements and to facilitate compliance with that requirement.
(d)The commission shall post the following on its Internet Web site:
(1)Educational materials and information that will assist building owners, tenants, building officials, and building inspectors to understand the disability accessibility requirements and to facilitate compliance with disability access laws. The commission shall at least annually review the educational materials and information on disability access requirements and compliance available on the Internet Web site of other local, state, or federal agencies, including Americans with Disabilities Act centers, to augment the educational materials and information developed by the commission.
(2)A link to the Internet Web site of the Division of the State Architects certified access specialist (CASp) program to assist building owners and tenants in locating or hiring a CASp.
(e)The commission shall, to the extent feasible, coordinate with other state agencies and local building departments to ensure that information provided to the public on disability access requirements is uniform and complete, and make its educational materials and information available to those agencies and departments.
SEC. 7.5.Section 8299.06 of the Government Code is amended to read:8299.06.(a)A priority of the commission shall be the development and dissemination of educational materials and information to promote and facilitate disability access compliance.
(b)The commission shall work with other state agencies, including the Division of the State Architect and the Department of Rehabilitation, to develop educational materials and information for use by businesses to understand its their obligations to provide disability access and to facilitate compliance with construction-related accessibility standards.
(c)The commission shall develop and make available on its Internet Web site, or make available on its Internet Web site if developed by another governmental agency, including Americans with Disabilities Act centers, toolkits or educational modules to assist a California business to understand its obligations under the law and to facilitate compliance with respect to the top 10 alleged construction-related violations, by type, as specified in subdivision (a) of Section 8299.08. Upon completion of this requirement, the commission shall develop and make available on its Internet Web site, or work with another agency to develop, other toolkits or educational modules that would educate businesses of the accessibility requirements and to facilitate compliance with that requirement.
(d)The commission shall post on its Internet Web site educational materials
(d)The commission shall post the following on its Internet Web site:
(1)Educational materials and information that will assist building owners, tenants, building officials, and building inspectors to understand the disability accessibility requirements and to facilitate compliance with disability access laws. The commission shall at least annually review the educational materials and information on disability access requirements and compliance available on the Internet Web site sites of other local, state, or federal agencies, including Americans with Disabilities Act centers, to augment the educational materials and information developed by the commission.
(2)A link to the Internet Web site of the Division of the State Architects Certified Access Specialist (CASp) Program to assist building owners and tenants in locating or hiring a CASp.
(e)The commission shall, to the extent feasible, coordinate with other state agencies and local building departments to ensure that information provided to the public on disability access requirements is uniform and complete. complete, and make its educational materials and information available to those agencies and departments.
(f)The commission shall establish a permanent legislative outreach coordinator position and a permanent educational outreach coordinator position.
SEC. 8.Section 65941.6 is added to the Government Code, to read:65941.6.(a)Each local agency shall develop materials relating to the requirements of the federal Americans with Disabilities Act of 1990 (42 U.S.C. Sec. 12101 et seq.). The local agency shall provide these materials to an applicant along with notice that approval of a permit does not signify that the applicant has complied with the federal Americans with Disabilities Act of 1990.
(b)For the purposes of complying with the requirements of subdivision (a), a local agency may, in lieu of developing its own materials, provide applicants with those materials which the California Commission on Disability Access has developed and made available pursuant to Section 8299.06.
SEC. 9.Article 4 (commencing with Section 65946) is added to Chapter 4.5 of Division 1 of Title 7 of the Government Code, to read:4.Expedited Review65946.(a)For the purposes of this section, the following definitions shall apply:
(1)Certified access specialist or CASp means any person who has been certified pursuant to Section 4459.5.
(2)Construction-related accessibility standard means a provision, standard, or regulation under state or federal law requiring compliance with standards for making new construction and existing facilities accessible to persons with disabilities, including, but not limited to, any provision, standard, or regulation set forth in Section 51, 54, 54.1, or 55 of the Civil Code, Section 19955.5 of the Health and Safety Code, the California Building Standards Code (Title 24 of the California Code of Regulations), the federal Americans with Disabilities Act of 1990 (Public Law 101-336; 42 U.S.C. Sec. 12101 et seq.), and the federal Americans with Disabilities Act Accessibility Guidelines (Appendix A to Part 36 of Title 28 of the Code of Federal Regulations).
(3)Written inspection report means the CASp report required to be provided pursuant to subdivision (a) of Section 55.53 of the Civil Code.
(b)A local agency shall expedite review of a project application if the project applicant meets all of the following conditions:
(1)The applicant provides a copy of a disability access inspection certificate, provided by a CASp pursuant to subdivision (e) of Section 55.53 of the Civil Code, pertaining to the site of the proposed project.
(2)The applicant demonstrates that the proposed project is necessary to address either an alleged violation of a construction-related accessibility standard or a violation noted in a written inspection report.
(3)If project plans are necessary for the approval of a project, the applicant has had a CASp review the project plans for compliance with all applicable construction-related accessibility standards.
SEC. 10.Section 17053.43 is added to the Revenue and Taxation Code, to read:17053.43.(a)For each taxable year beginning on or after January 1, 2016, and before January 1, 2021, there shall be allowed as a credit against the net tax, as defined in Section 17039, the amount paid or incurred for eligible access expenditures. The credit shall be allowed in accordance with Section 44 of the Internal Revenue Code, relating to expenditures to provide access to disabled individuals, except that the credit amount specified in subdivision (b) shall be substituted for the credit amount specified in Section 44(a) of the Internal Revenue Code.
(b)The credit amount allowed under this section shall be an amount equal to 10 percent of so much of the eligible access expenditures for the taxable year as exceed two hundred fifty dollars ($250) but do not exceed ten thousand two hundred fifty dollars ($10,250).
(c)In the case where the credit allowed by this section exceeds the net tax, the excess may be carried over to reduce the net tax in the following year, and the succeeding four years, if necessary, until the credit is exhausted.
(d)The credit allowed by this section may be claimed only on a timely filed original return of the taxpayer.
(e)The Franchise Tax Board may prescribe rules, guidelines, or procedures necessary or appropriate to carry out the purposes of this section, including any guidelines regarding the substantiation of the credit allowed by this section. Chapter 3.5 (commencing with Section 11340) of Part 1 of Division 3 of Title 2 of the Government Code does not apply to any rule, guideline, or procedure prescribed by the Franchise Tax Board pursuant to this section.
(f)This section shall remain in effect only until December 1, 2021, and as of that date is repealed.
SEC. 11.Section 23643 is added to the Revenue and Taxation Code, to read:23643.(a)For each taxable year beginning on or after January 1, 2016, and before January 1, 2021, there shall be allowed as a credit against the tax, as defined in Section 23036, the amount paid or incurred for eligible access expenditures. The credit shall be allowed in accordance with Section 44 of the Internal Revenue Code, relating to expenditures to provide access to disabled individuals, except that the credit amount specified in subdivision (b) shall be substituted for the credit amount specified in Section 44(a) of the Internal Revenue Code and the second sentence of Section 44(d)(3) of the Internal Revenue Code, relating to partnerships and S corporations, shall not apply.
(b)The credit amount allowed under this section shall be an amount equal to 10 percent of so much of the eligible access expenditures for the taxable year as exceed two hundred fifty dollars ($250) but do not exceed ten thousand two hundred fifty dollars ($10,250).
(c)In the case where the credit allowed by this section exceeds the tax, the excess may be carried over to reduce the tax in the following year, and the succeeding four years, if necessary, until the credit is exhausted.
(d)The credit allowed by this section may be claimed only on a timely filed original return of the taxpayer.
(e)The Franchise Tax Board may prescribe rules, guidelines, or procedures necessary or appropriate to carry out the purposes of this section, including any guidelines regarding the substantiation of the credit allowed by this section. Chapter 3.5 (commencing with Section 11340) of Part 1 of Division 3 of Title 2 of the Government Code does not apply to any rule, guideline, or procedure prescribed by the Franchise Tax Board pursuant to this section.
(f)This section shall remain in effect only until December 1, 2021, and as of that date is repealed.
SEC. 12.The Legislature finds and declares that Sections 8 and 9 of this act, pertaining to the review and approval of development permit applications, constitute matters of statewide concern, and shall apply to charter cities and charter counties. These sections shall supersede any inconsistent provisions in the charter of any city, county, or city and county.
SEC. 13.It is the intent of the Legislature to make the findings required by Section 41 of the Revenue and Taxation Code with respect to the tax credits allowed by Sections 10 and 11 of this act.
SEC. 14.Section 7.5 of this bill incorporates amendments to Section 8299.06 of the Government Code proposed by both this bill and Assembly Bill 1342. It shall only become operative if (1) both bills are enacted and become effective on or before January 1, 2016, (2) each bill amends Section 8299.06 of the Government Code, and (3) this bill is enacted after Assembly Bill 1342, in which case Section 7 of this bill shall not become operative.
SEC. 14.SEC. 15.If the Commission on State Mandates determines that this act contains costs mandated by the state, reimbursement to local agencies and school districts for those costs shall be made pursuant to Part 7 (commencing with Section 17500) of Division 4 of Title 2 of the Government Code.
(a)An attorney who provides a demand letter, as defined in subdivision (a) of Section 55.3, shall do all of the following:
(1)Include the attorneys State Bar license number in the demand letter.
(2)Contemporaneously with providing the demand letter, send a copy of the demand letter to the State Bar of California by facsimile transmission at 1-415-538-2171, or by mail to 180 Howard Street, San Francisco, CA, 94105, Attention: Professional Competence.
(3)Within five business days of providing the demand letter, send a copy of the demand letter to the California Commission on Disability Access.
(b)An attorney who sends or serves a complaint, as defined in subdivision (a) of Section 55.3, shall send a copy of the complaint to the California Commission on Disability Access within five business days of sending or serving the complaint.
(c)A violation of paragraph (2) or (3) of subdivision (a) or subdivision (b) shall constitute cause for the imposition of discipline of an attorney where a copy of the complaint or demand letter is not sent to the California Commission on Disability Access within five business days, or a copy of the demand letter is not sent to the State Bar within five business days. In the event the State Bar receives information indicating that an attorney has failed to send a copy of the complaint or demand letter to the California Commission on Disability Access within five business days, the State Bar shall investigate to determine whether paragraph (3) of subdivision (a) or subdivision (b) has been violated.
(d)Notwithstanding subdivisions (a) and (b), an attorney is not required to send to the State Bar of California or the California Commission on Disability Access a copy of any subsequent demand letter or amended complaint in the same dispute following the initial demand letter or complaint, unless that subsequent demand letter or amended complaint alleges a new construction-related accessibility claim.
(e)A demand letter or complaint sent to the California Commission on Disability Access shall be for the informational purposes of Section 8299.08 of the Government Code. A demand letter received by the State Bar from either the sender or recipient of the demand letter shall be reviewed by the State Bar to determine whether subdivision (b) or (c) of Section 55.31 has been violated.
(f)(1)Commencing July 31, 2013, and annually each July 31 thereafter, the State Bar shall report to the Legislature and the Chairs of the Senate and Assembly Committees on Judiciary, both of the following with respect to demand letters received by the State Bar:
(A)The number of investigations opened to date on a suspected violation of subdivision (b) or (c) of Section 55.31.
(B)Whether any disciplinary action resulted from the investigation, and the results of that disciplinary action.
(2)A report to be submitted pursuant to this subdivision shall be submitted in compliance with Section 9795 of the Government Code.
(g)The California Commission on Disability Access shall review and report on the demand letters and complaints it receives as provided in Section 8299.08 of the Government Code.
(h)Paragraphs (2) and (3) of subdivision (a) and subdivision (b) shall not apply to a demand letter or complaint sent or filed by an attorney employed or retained by a qualified legal services project or a qualified support center, as defined in Section 6213 of the Business and Professions Code, when acting within the scope of employment in asserting a construction-related accessibility claim. The Legislature finds and declares that qualified legal services projects and support centers are extensively regulated by the State Bar of California, and that there is no evidence of any abusive use of demand letters or complaints by these organizations. The Legislature further finds that, in light of the evidence of the extraordinarily small number of construction-related accessibility cases brought by regulated legal services programs, and given the resources of those programs, exempting regulated legal services programs from the requirements of this section to report to the California Commission on Disability Access will not affect the purpose of the reporting to, and tabulation by, the commission of all other construction-related accessibility claims.
(i)This section shall become operative on January 1, 2013.
(j)This section shall remain in effect only until January 1, 2019, and as of that date is repealed.
SEC. 2.Section 55.32 of the Civil Code, as added by Section 6 of Chapter 383 of the Statutes of 2012, is amended to read:55.32.(a)An attorney who provides a demand letter, as defined in subdivision (a) of Section 55.3, shall do all of the following:
(1)Include the attorneys State Bar license number in the demand letter.
(2)Within five business days of providing the demand letter, send a copy of the demand letter and submit information about the demand letter in a standard format specified by the California Commission on Disability Access, to the commission.
(b)An attorney who sends or serves a complaint, as defined in subdivision (a) of Section 55.3, shall send a copy of the complaint and submit information about the complaint in a standard format specified by the California Commission on Disability Access to the commission within five business days of sending or serving the complaint.
(c)A violation of paragraph (2) of subdivision (a) or subdivision (b) shall constitute cause for the imposition of discipline of an attorney if a copy of the demand letter or complaint is not sent to the California Commission on Disability Access within five business days. In the event the State Bar receives information indicating that an attorney has failed to send a copy of the demand letter or complaint to the California Commission on Disability Access within five business days, the State Bar shall investigate to determine whether paragraph (2) of subdivision (a) or subdivision (b) has been violated.
(d)Notwithstanding subdivisions (a) and (b), an attorney is not required to send to the California Commission on Disability Access a copy of any subsequent demand letter or amended complaint in the same dispute following the initial demand letter or complaint, unless that subsequent demand letter or amended complaint alleges a new construction-related accessibility claim.
(e)A demand letter sent to the California Commission on Disability Access shall be for the informational purposes of Section 8299.08 of the Government Code. A demand letter received by the State Bar from the recipient of the demand letter shall be reviewed by the State Bar to determine whether subdivision (b) or (c) of Section 55.31 has been violated.
(f)(1)Notwithstanding Section 10231.5 of the Government Code, on or before July 31, 2019, and annually thereafter, the State Bar shall report to the Legislature and the Chairs of the Senate and Assembly Judiciary Committees, both of the following with respect to demand letters received by the State Bar:
(A)The number of investigations opened to date on a suspected violation of subdivision (b) or (c) of Section 55.31.
(B)Whether any disciplinary action resulted from the investigation, and the results of that disciplinary action.
(2)A report to be submitted pursuant to this subdivision shall be submitted in compliance with Section 9795 of the Government Code.
(g)The California Commission on Disability Access shall review and report on the demand letters and complaints it receives as provided in Section 8299.08 of the Government Code.
(h)The expiration of any ground for discipline of an attorney shall not affect the imposition of discipline for any act prior to the expiration. An act or omission that constituted cause for imposition of discipline of an attorney when committed or omitted prior to January 1, 2019, shall continue to constitute cause for the imposition of discipline of that attorney on and after January 1, 2019.
(i)Paragraph (2) of subdivision (a) and subdivision (b) shall not apply to a demand letter or complaint sent or filed by an attorney employed or retained by a qualified legal services project or a qualified support center, as defined in Section 6213 of the Business and Professions Code, when acting within the scope of employment in asserting a construction-related accessibility claim. The Legislature finds and declares that qualified legal services projects and support centers are extensively regulated by the State Bar of California, and that there is no evidence of any abusive use of demand letters or complaints by these organizations. The Legislature further finds that, in light of the evidence of the extraordinarily small number of construction-related accessibility cases brought by regulated legal services programs, and given the resources of those programs, exempting regulated legal services programs from the requirements of this section to report to the California Commission on Disability Access will not affect the purpose of the reporting to, and tabulation by, the commission of all other construction-related accessibility claims.
(j)This section shall become operative on January 1, 2019.
SEC. 3.Section 55.53 of the Civil Code is amended to read:55.53.(a)For purposes of this part, a certified access specialist shall, upon completion of the inspection of a site, comply with the following:
(1)For a meets applicable standards site, if the CASp determines the site meets all applicable construction-related accessibility standards, the CASp shall provide a written inspection report to the requesting party that includes both of the following:
(A)An identification and description of the inspected structures and areas of the site.
(B)A signed and dated statement that includes both of the following:
(i)A statement that, in the opinion of the CASp, the inspected structures and areas of the site meet construction-related accessibility standards. The statement shall clearly indicate whether the determination of the CASp includes an assessment of readily achievable barrier removal.
(ii)If corrections were made as a result of the CASp inspection, an itemized list of all corrections and dates of completion.
(2)For an inspected by a CASp site, if the CASp determines that corrections are needed to the site in order for the site to meet all applicable construction-related accessibility standards, the CASp shall provide a signed and dated written inspection report to the requesting party that includes all of the following:
(A)An identification and description of the inspected structures and areas of the site.
(B)The date of the inspection.
(C)A statement that, in the opinion of the CASp, the inspected structures and areas of the site need correction to meet construction-related accessibility standards. This statement shall clearly indicate whether the determination of the CASp includes an assessment of readily achievable barrier removal.
(D)An identification and description of the structures or areas of the site that need correction and the correction needed.
(E)A schedule of completion for each of the corrections within a reasonable timeframe.
(3)The CASp shall provide, within 30 days of the date when it is requested by a business that qualifies for the provisions of subparagraph (A) of paragraph (3) of subdivision (g) of Section 55.56, a copy of a report prepared pursuant to that subparagraph to the business that requested it.
(4)The CASp shall file, within 10 days of inspecting a business pursuant to subparagraph (A) of paragraph (3) of subdivision (g) of Section 55.56, a notice with the State Architect for listing on the State Architects Internet Web site, as provided by subdivision (d) of Section 4459.7 of the Government Code, indicating that the CASp has inspected the business, the name and address of the business, the date of the filing, the date of the inspection of the business, the name and license number of the CASp, and a description of the structure or area inspected by the CASp.
(b)For purposes of this section, in determining whether the site meets applicable construction-related accessibility standards when there is a conflict or difference between a state and federal provision, standard, or regulation, the state provision, standard, or regulation shall apply unless the federal provision, standard, or regulation is more protective of accessibility rights.
(c)Every CASp who conducts an inspection of a place of public accommodation shall, upon completing the inspection of the site, provide the building owner or tenant who requested the inspection with the following notice, which the State Architect shall make available as a form on the State Architects Internet Web site:
NOTICE TO PRIVATE PROPERTY OWNER/TENANT:
YOU ARE ADVISED TO KEEP IN YOUR RECORDS ANY WRITTEN INSPECTION REPORT AND ANY OTHER DOCUMENTATION CONCERNING YOUR PROPERTY SITE THAT IS GIVEN TO YOU BY A CERTIFIED ACCESS SPECIALIST.
IF YOU BECOME A DEFENDANT IN A LAWSUIT THAT INCLUDES A CLAIM CONCERNING A SITE INSPECTED BY A CERTIFIED ACCESS SPECIALIST, YOU MAY BE ENTITLED TO A COURT STAY (AN ORDER TEMPORARILY STOPPING ANY LAWSUIT) OF THE CLAIM AND AN EARLY EVALUATION CONFERENCE.
IN ORDER TO REQUEST THE STAY AND EARLY EVALUATION CONFERENCE, YOU WILL NEED TO VERIFY THAT A CERTIFIED ACCESS SPECIALIST HAS INSPECTED THE SITE THAT IS THE SUBJECT OF THE CLAIM. YOU WILL ALSO BE REQUIRED TO PROVIDE THE COURT AND THE PLAINTIFF WITH THE COPY OF A WRITTEN INSPECTION REPORT BY THE CERTIFIED ACCESS SPECIALIST, AS SET FORTH IN CIVIL CODE SECTION 55.54. THE APPLICATION FORM AND INFORMATION ON HOW TO REQUEST A STAY AND EARLY EVALUATION CONFERENCE MAY BE OBTAINED AT www.courts.ca.gov/selfhelp-start.htm.
YOU ARE ENTITLED TO REQUEST, FROM A CERTIFIED ACCESS SPECIALIST WHO HAS CONDUCTED AN INSPECTION OF YOUR PROPERTY, A WRITTEN INSPECTION REPORT AND OTHER DOCUMENTATION AS SET FORTH IN CIVIL CODE SECTION 55.53. YOU ARE ALSO ENTITLED TO REQUEST THE ISSUANCE OF A DISABILITY ACCESS INSPECTION CERTIFICATE, WHICH YOU MAY POST ON YOUR PROPERTY.
(d)(1)Commencing July 1, 2010, a local agency shall employ or retain at least one building inspector who is a certified access specialist. The certified access specialist shall provide consultation to the local agency, permit applicants, and members of the public on compliance with state construction-related accessibility standards with respect to inspections of a place of public accommodation that relate to permitting, plan checks, or new construction, including, but not limited to, inspections relating to tenant improvements that may impact access. If a local agency employs or retains two or more certified access specialists to comply with this subdivision, at least one-half of the certified access specialists shall be building inspectors who are certified access specialists.
(2)Commencing January 1, 2014, a local agency shall employ or retain a sufficient number of building inspectors who are certified access specialists to conduct permitting and plan check services to review for compliance with state construction-related accessibility standards by a place of public accommodation with respect to new construction, including, but not limited to, projects relating to tenant improvements that may impact access. If a local agency employs or retains two or more certified access specialists to comply with this subdivision, at least one-half of the certified access specialists shall be building inspectors who are certified access specialists.
(3)If a permit applicant or member of the public requests consultation from a certified access specialist, the local agency may charge an amount limited to a reasonable hourly rate, an estimate of which shall be provided upon request in advance of the consultation. A local government may additionally charge or increase permitting, plan check, or inspection fees to the extent necessary to offset the costs of complying with this subdivision. Any revenues generated from an hourly or other charge or fee increase under this subdivision shall be used solely to offset the costs incurred to comply with this subdivision. A CASp inspection pursuant to subdivision (a) by a building inspector who is a certified access specialist shall be treated equally for legal and evidentiary purposes as an inspection conducted by a private CASp. Nothing in this subdivision shall preclude permit applicants or any other person with a legal interest in the property from retaining a private CASp at any time.
(e)(1)Every CASp who completes an inspection of a place of public accommodation shall, upon a determination that the site meets applicable standards pursuant to paragraph (1) of subdivision (a) or is inspected by a CASp pursuant to paragraph (2) of subdivision (a), provide the building owner or tenant requesting the inspection with a numbered disability access inspection certificate indicating that the site has undergone inspection by a certified access specialist. The disability access inspection certificate shall be dated and signed by the CASp inspector, and shall contain the inspectors name and license number. Upon issuance of a certificate, the CASp shall record the issuance of the numbered certificate, the name and address of the recipient, and the type of report issued pursuant to subdivision (a) in a record book the CASp shall maintain for that purpose.
(2)Beginning March 1, 2009, the State Architect shall make available for purchase by any local building department or CASp sequentially numbered disability access inspection certificates that are printed with a watermark or other feature to deter forgery and that comply with the information requirements specified in subdivision (a).
(3)The disability access inspection certificate may be posted on the premises of the place of public accommodation, unless, following 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.
(f)Nothing in this section or any other law is intended to require a property owner or tenant to hire a CASp. A property owners or tenants election not to hire a CASp shall not be admissible to prove that persons lack of intent to comply with the law.
SEC. 4.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.
(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)(1)The following technical violations are presumed to not cause a person difficulty, discomfort, or embarrassment for the purpose of an award of minimum statutory damages in a construction-related accessibility claim, as set forth in subdivision (c), where the defendant is a small business as described by subparagraph (B) of paragraph (2) of subdivision (g), the defendant has corrected, within 15 days of the service of a summons and complaint asserting a construction-related accessibility claim or receipt of a written notice, whichever is earlier, all of the technical violations that are the basis of the claim, and the claim is based on one or more of the following violations:
(A)Interior signs, other than directional signs or signs that identify the location of accessible elements, facilities, or features, when not all such elements, facilities, or features are accessible.
(B)The lack of exterior signs, other than parking signs and directional signs, including signs that indicate the location of accessible pathways or entrance and exit doors when not all pathways, entrance and exit doors are accessible.
(C)The order in which parking signs are placed or the exact location or wording of parking signs, provided that the parking signs are clearly visible and indicate the location of accessible parking and van-accessible parking.
(D)The color of parking signs, provided that the color of the background contrasts with the color of the information on the sign.
(E)The color of parking lot striping, provided that it exists and provides sufficient contrast with the surface upon which it is applied to be reasonably visible.
(F)Faded, chipped, damaged, or deteriorated paint in otherwise fully compliant parking spaces and passenger access aisles in parking lots, provided that it indicates the required dimensions of a parking space or access aisle in a manner that is reasonably visible.
(G)The presence or condition of detectable warning surfaces on ramps, except where the ramp is part of a pedestrian path of travel that intersects with a vehicular lane or other hazardous area.
(2)The presumption set forth in paragraph (1) affects the plaintiffs burden of proof and is rebuttable by evidence showing, by a preponderance of the evidence, that the plaintiff did, in fact, experience difficulty, discomfort, or embarrassment on the particular occasion as a result of one or more of the technical violations listed in paragraph (1).
(f)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.
(g)(1)Notwithstanding any other law, a defendants 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 defendants knowledge, there were no modifications or alterations that impacted compliance with construction-related accessibility standards with respect to the plaintiffs 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 defendants knowledge, there were no modifications or alterations that impacted compliance with respect to the plaintiffs 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 defendants knowledge, there were no modifications or alterations that affected compliance with respect to the plaintiffs 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 defendants 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)(A)Notwithstanding any other law, a defendant shall not be liable for minimum statutory damages in a construction-related accessibility claim, with respect to a violation noted in a report by a certified access specialist (CASp), for a period of 120 days following the date of the inspection if the defendant demonstrates compliance with each of the following:
(i)The defendant is a business that has employed 100 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 Employment Development Department.
(ii)The structure or area of the alleged violation was the subject of an inspection report indicating CASp determination pending or Inspected by a CASp.
(iii)The inspection predates the filing of the claim by, or receipt of a demand letter from, the plaintiff regarding the alleged violation of a construction-related accessibility standard, and the defendant was not on notice of the alleged violation prior to the CASp inspection because of a previous CASp inspection of the premises, or other reasons.
(iv)Within 10 days of the date of the inspection, the CASp files a notice with the State Architect for listing on the State Architects Internet Web site, stating that the defendant has obtained a CASp inspection, the date of the filing, and the date of the inspection.
(v)The CASp posted the notice described in clause (iv), in a form prescribed by the State Architect, in a conspicuous location within five feet of all public entrances to the building on the date of the inspection and the defendant kept it in place until the earlier of either of the following:
(I)One hundred twenty days after the date of the inspection.
(II)The date when all of the construction-related violations in the structure or area inspected by the CASp are corrected.
(vi)The defendant has corrected, within 120 days of the date of the inspection, all construction-related violations in the structure or area inspected by the CASp that are noted in the CASp report that are the basis of the claim.
(B)Notwithstanding any other law, a defendant who claims the benefit of the reduction of minimum statutory damages under this subdivision shall disclose the date and findings of any CASp inspection to a plaintiff if relevant to a claim or defense in an action.
(4)A defendant may assert the reduction of minimum statutory damages under this subdivision only once for each structure or area inspected by a CASp, unless the inspected structure or area has undergone modifications or alterations that affect the compliance with construction-related accessibility standards of those structures or areas after the date of the last inspection, and the defendant obtains an additional CASp inspection within 30 days of final approval by the building department or certificate of occupancy, as appropriate, regarding the modification or alterations.
(5)If the defendant has failed to correct, within 120 days of the date of the inspection, all construction-related violations in the structure or area inspected by the CASp that are noted in the CASp report, the defendant shall not receive any reduction of minimum statutory damages, unless a building permit is required for the repairs which cannot reasonably be completed by the defendant within 120 days and the defendant is in the process of correcting the violations noted in the CASp report, as evidenced by having, at least, an active building permit necessary for the repairs to correct the violation that was noted, but not corrected, in the CASp report and all of the repairs are completed within 180 days of the date of the inspection.
(6)This subdivision shall not be applicable to intentional violations.
(7)Nothing in this subdivision affects the awarding of actual damages, or affects the awarding of treble actual damages.
(8)This subdivision shall apply only to claims filed on or after the effective date of Senate Bill 1186 of the 201112 Regular Session of the Legislature, except that for paragraphs (3), (4), and (5), which shall apply to claims filed on or after January 1, 2016. Nothing in this subdivision is intended to affect a complaint filed before that date.
(h)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, nor alter any legal obligation of a party to mitigate damages.
(i)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 plaintiffs conduct in light of the plaintiffs obligation, if any, to mitigate damages.
(j)For purposes of this section, the structure or area inspected means one of the following: the interior of the premises, the exterior of the premises, or both the interior and exterior.
SEC. 5.Section 4459.7 of the Government Code is amended to read:4459.7.(a)(1)No later than October 31 of each year, the State Architect shall publish and make available to the public a list of certified access specialists who have met the requirements of Section 4459.5.
(2)The State Architect shall publish and regularly update on its Internet Web site easily accessible lists of all of the following:
(A)Businesses that have obtained a CASp inspection and have filed, or a CASp has filed on their behalf, a notice pursuant to paragraph (3) of subdivision (g) of Section 55.56 of the Civil Code.
(B)Businesses which have been inspected by a certified access specialist on or after January 1, 2016, including the date of the inspection.
(3)The lists required pursuant to this section shall include a written disclaimer of liability as specified in subdivision (b).
(b)Notwithstanding any other provision of law, a state agency or employee of a state agency may not be held liable for any injury or damages resulting from any service provided by a certified access specialist whose name appears on the list published pursuant to subdivision (a).
(c)The State Architect may perform periodic audits of work performed by a certified access specialist as deemed necessary to ensure the desired standard of performance. A certified access specialist shall provide an authorized representative of the State Architect with complete access, at any reasonable hour of the day, to all technical data, reports, records, photographs, design outlines and plans, and files used in building inspection and plan review, with the exception of proprietary and confidential information.
(d)By January 1, 2016, the State Architect shall develop a process by which a certified access specialist (CASp) may notify the State Architect that a structure or area on the premises of a business has been inspected by a CASp and to notify the public that the business has a CASp determination pending, or has been Inspected by a CASp, as provided by paragraph (3) of subdivision (g) of Section 55.56 of the Civil Code, which shall include the date of the notification, the date of the inspection, and a description of the structure or area inspected by a CASp.
(e)By January 1, 2016, the State Architect shall develop a form for a business to notify the public that the business has obtained a CASp inspection pursuant to paragraph (3) of subdivision (g) of Section 55.56 of the Civil Code, which shall include the date of the notification, the date of the inspection, and a description of the structure or area inspected by a CASp.
(f)For purposes of this section, the structure or area inspected means one of the following: the interior of the premises, the exterior of the premises, or both the interior and exterior.
SEC. 6.Section 4459.8 of the Government Code is amended to read:4459.8.(a)The certification authorized by Section 4459.5 is effective for three years from the date of initial certification and expires if not renewed. The State Architect, upon consideration of any factual complaints regarding the work of a certified access specialist or of other relevant information, may suspend certification or deny renewal of certification.
(b)(1)The State Architect shall require each applicant for certification as a certified access specialist to do both of the following:
(A)Pay fees, including an application and course fee and an examination fee, at a level sufficient to meet the costs of application processing, registration, publishing a list, and other activities that are reasonably necessary to implement and administer the certified access specialist program.
(B)Provide to the State Architect the name of the city, county, or city and county in which the applicant intends to provide services.
(2)The State Architect shall require each applicant for renewal of certification to do both of the following:
(A)Pay a fee sufficient to cover the reasonable costs of reassessing qualifications of renewal applicants.
(B)Provide to the State Architect the name of the city, county, or city and county in which the applicant has provided services since the last day of certification by the State Architect.
(3)The State Architect shall periodically review its schedule of fees to ensure that its fees for certification are not excessive while covering the costs to administer the certified access specialist program. The application fee for a California licensed architect, landscape architect, civil engineer, or structural engineer shall not exceed two hundred fifty dollars ($250).
(c)All fees collected pursuant to this section shall be deposited into the Certified Access Specialist Fund, which is hereby created in the State Treasury. Notwithstanding Section 13340, this fund is continuously appropriated without regard to fiscal years for use by the State Architect to implement Sections 4459.5 to 4459.8, inclusive.
(d)The State Architect shall post on his or her Internet Web site the name of the city, county, or city and county in which each certified access specialist provides or intends to provide services.
SEC. 7.Section 8299.06 of the Government Code is amended to read:8299.06.(a)A priority of the commission shall be the development and dissemination of educational materials and information to promote and facilitate disability access compliance.
(b)The commission shall work with other state agencies, including the Division of the State Architect and the Department of Rehabilitation, to develop educational materials and information for use by businesses to understand its obligations to provide disability access and to facilitate compliance with construction-related accessibility standards.
(c)The commission shall develop and make available on its Internet Web site, or make available on its Internet Web site if developed by another governmental agency, including Americans with Disabilities Act centers, toolkits or educational modules to assist a California business to understand its obligations under the law and to facilitate compliance with respect to the top 10 alleged construction-related violations, by type, as specified in subdivision (a) of Section 8299.08. Upon completion of this requirement, the commission shall develop and make available on its Internet Web site, or work with another agency to develop, other toolkits or educational modules that would educate businesses of the accessibility requirements and to facilitate compliance with that requirement.
(d)The commission shall post the following on its Internet Web site:
(1)Educational materials and information that will assist building owners, tenants, building officials, and building inspectors to understand the disability accessibility requirements and to facilitate compliance with disability access laws. The commission shall at least annually review the educational materials and information on disability access requirements and compliance available on the Internet Web site of other local, state, or federal agencies, including Americans with Disabilities Act centers, to augment the educational materials and information developed by the commission.
(2)A link to the Internet Web site of the Division of the State Architects certified access specialist (CASp) program to assist building owners and tenants in locating or hiring a CASp.
(e)The commission shall, to the extent feasible, coordinate with other state agencies and local building departments to ensure that information provided to the public on disability access requirements is uniform and complete, and make its educational materials and information available to those agencies and departments.
SEC. 8.Section 65941.6 is added to the Government Code, to read:65941.6.(a)Each local agency shall develop materials relating to the requirements of the federal Americans with Disabilities Act of 1990 (42 U.S.C. Sec. 12101 et seq.). The local agency shall provide these materials to an applicant along with notice that approval of a permit does not signify that the applicant has complied with the federal Americans with Disabilities Act of 1990.
(b)For the purposes of complying with the requirements of subdivision (a), a local agency may, in lieu of developing its own materials, provide applicants with those materials which the California Commission on Disability Access has developed and made available pursuant to Section 8299.06.
SEC. 9.Article 4 (commencing with Section 65946) is added to Chapter 4.5 of Division 1 of Title 7 of the Government Code, to read:4.Expedited Review65946.(a)For the purposes of this section, the following definitions shall apply:
(1)Certified access specialist or CASp means any person who has been certified pursuant to Section 4459.5.
(2)Construction-related accessibility standard means a provision, standard, or regulation under state or federal law requiring compliance with standards for making new construction and existing facilities accessible to persons with disabilities, including, but not limited to, any provision, standard, or regulation set forth in Section 51, 54, 54.1, or 55 of the Civil Code, Section 19955.5 of the Health and Safety Code, the California Building Standards Code (Title 24 of the California Code of Regulations), the federal Americans with Disabilities Act of 1990 (Public Law 101-336; 42 U.S.C. Sec. 12101 et seq.), and the federal Americans with Disabilities Act Accessibility Guidelines (Appendix A to Part 36 of Title 28 of the Code of Federal Regulations).
(3)Written inspection report means the CASp report required to be provided pursuant to subdivision (a) of Section 55.53 of the Civil Code.
(b)A local agency shall expedite review of a project application if the project applicant meets all of the following conditions:
(1)The applicant provides a copy of a disability access inspection certificate, provided by a CASp pursuant to subdivision (e) of Section 55.53 of the Civil Code, pertaining to the site of the proposed project.
(2)The applicant demonstrates that the proposed project is necessary to address either an alleged violation of a construction-related accessibility standard or a violation noted in a written inspection report.
(3)If project plans are necessary for the approval of a project, the applicant has had a CASp review the project plans for compliance with all applicable construction-related accessibility standards.
SEC. 10.Section 17053.43 is added to the Revenue and Taxation Code, to read:17053.43.(a)(1)For each taxable year beginning on or after January 1, 2016, and before January 1, 2023, 2021, there shall be allowed to a taxpayer that is a small business as a credit against the net tax, as defined in Section 17039, for the amount paid or incurred for eligible access expenditures in excess of two hundred fifty dollars ($250). expenditures. The credit shall be allowed in accordance with Section 44 of the Internal Revenue Code, relating to expenditures to provide access to disabled individuals, except that the credit amount specified in subdivision (b) shall be substituted for the credit amount specified in Section 44(a) of the Internal Revenue Code.
(2)(A) The credit shall be in an amount equal to 50 percent of the difference between the total eligible access expenditures incurred by a taxpayer that is a small business that do not exceed ten thousand two hundred fifty dollars ($10,250) and two hundred fifty dollars ($250).
(B)In the case of a partnership, the limitation under this paragraph shall apply with respect to the partnership and each partner. A similar rule shall apply in the case of an S corporation.
(b)For the purposes of this section, the following definitions shall apply:
(1)Eligible access expenditures has the same meaning as defined in Section 44(c) of the Internal Revenue Code, except that the amounts may be paid or incurred by a taxpayer other than an eligible small business.
(2)(A)Small business means a trade or business that, in the three immediately preceding taxable years, had average gross receipts, less returns and allowances reportable to this state, of less than three million five hundred thousand dollars ($3,500,000) and employed 25 or fewer full-time employees.
(B)For the purposes of this paragraph, gross receipts, less returns and allowances reportable to this state means the sum of the gross receipts from the production of business income, as defined in subdivision (a) of Section 25120, and the gross receipts from the production of nonbusiness income, as defined in subdivision (d) of Section 25120.
(C)For the purposes of this paragraph, full-time employee means an employee of the taxpayer who works at least 30 hours per week.
(b)The credit amount allowed under this section shall be an amount equal to 10 percent of so much of the eligible access expenditures for the taxable year as exceed two hundred fifty dollars ($250) but do not exceed ten thousand two hundred fifty dollars ($10,250).
(c)In the case where the credit allowed by this section exceeds the net tax, the excess may be carried over to reduce the net tax in the following year, and the succeeding six four years, if necessary, until the credit is exhausted.
(d)The credit allowed by this section may be claimed only on a timely filed original return of the taxpayer.
(e)In the case of a credit allowed under this section, the following shall apply:
(1)A deduction or credit shall not be allowed for that amount under any other provision of this part.
(2)An increase in the adjusted basis of any property shall not result from that amount.
(f)
(e)The Franchise Tax Board may prescribe rules, guidelines, or procedures necessary or appropriate to carry out the purposes of this section, including any guidelines regarding the substantiation of the credit allowed by this section. Chapter 3.5 (commencing with Section 11340) of Part 1 of Division 3 of Title 2 of the Government Code does not apply to any rule, guideline, or procedure prescribed by the Franchise Tax Board pursuant to this section.
(g)
(f)This section shall remain in effect only until December 1, 2023, 2021, and as of that date is repealed.
SEC. 11.Section 23643 is added to the Revenue and Taxation Code, to read:23643.(a)(1)For each taxable year beginning on or after January 1, 2016, and before January 1, 2023, 2021, there shall be allowed to a taxpayer that is a small business as a credit against the tax, as defined in Section 23036, for the amount paid or incurred for eligible access expenditures in excess of two hundred fifty dollars ($250). expenditures. The credit shall be allowed in accordance with Section 44 of the Internal Revenue Code, relating to expenditures to provide access to disabled individuals, except that the credit amount specified in subdivision (b) shall be substituted for the credit amount specified in Section 44(a) of the Internal Revenue Code and the second sentence of Section 44(d)(3) of the Internal Revenue Code, relating to partnerships and S corporations, shall not apply.
(2)(A)The credit shall be in an amount equal to 50 percent of the difference between the total eligible access expenditures incurred by a taxpayer that is a small business that do not exceed ten thousand two hundred fifty dollars ($10,250) and two hundred fifty dollars ($250).
(B)In the case of a partnership, the limitation under this paragraph shall apply with respect to the partnership and each partner. A similar rule shall apply in the case of an S corporation.
(b)For the purposes of this section, the following definitions shall apply:
(1)Eligible access expenditures has the same meaning as defined in Section 44(c) of the Internal Revenue Code, except that the amounts may be paid or incurred by a taxpayer other than an eligible small business.
(2)(A)Small business means a trade or business that, in the three immediately preceding taxable years, had average gross receipts, less returns and allowances reportable to this state, of less than three million five hundred thousand dollars ($3,500,000) and employed 25 or fewer full-time employees.
(B)For the purposes of this paragraph, gross receipts, less returns and allowances reportable to this state means the sum of the gross receipts from the production of business income, as defined in subdivision (a) of Section 25120, and the gross receipts from the production of nonbusiness income, as defined in subdivision (d) of Section 25120.
(C)For the purposes of this paragraph, full-time employee means an employee of the taxpayer who works at least 30 hours per week.
(D)The dollar amount specified in subparagraph (A) shall apply to the gross receipts of all taxpayers required or authorized to be included on a combined report pursuant to Section 25101 or 25101.15.
(b)The credit amount allowed under this section shall be an amount equal to 10 percent of so much of the eligible access expenditures for the taxable year as exceed two hundred fifty dollars ($250) but do not exceed ten thousand two hundred fifty dollars ($10,250).
(c)In the case where the credit allowed by this section exceeds the tax, the excess may be carried over to reduce the tax in the following year, and the succeeding six four years, if necessary, until the credit is exhausted.
(d)The credit allowed by this section may be claimed only on a timely filed original return of the taxpayer.
(e)In the case of a credit allowed under this section, the following shall apply:
(1)A deduction or credit shall not be allowed for that amount under any other provision of this part.
(2)An increase in the adjusted basis of any property shall not result from that amount.
(f)
(e)The Franchise Tax Board may prescribe rules, guidelines, or procedures necessary or appropriate to carry out the purposes of this section, including any guidelines regarding the substantiation of the credit allowed by this section. Chapter 3.5 (commencing with Section 11340) of Part 1 of Division 3 of Title 2 of the Government Code does not apply to any rule, guideline, or procedure prescribed by the Franchise Tax Board pursuant to this section.
(g)
(f)This section shall remain in effect only until December 1, 2023, 2021, and as of that date is repealed.
SEC. 12.The Legislature finds and declares that Sections 8 and 9 of this act, pertaining to the review and approval of development permit applications, constitute matters of statewide concern, and shall apply to charter cities and charter counties. These sections shall supersede any inconsistent provisions in the charter of any city, county, or city and county.
SEC. 13.It is the intent of the Legislature to make the findings required by Section 41 of the Revenue and Taxation Code with respect to the tax credits allowed by Sections 10 and 11 of this act.
SEC. 14.If the Commission on State Mandates determines that this act contains costs mandated by the state, reimbursement to local agencies and school districts for those costs shall be made pursuant to Part 7 (commencing with Section 17500) of Division 4 of Title 2 of the Government Code.
(a)An attorney who provides a demand letter, as defined in subdivision (a) of Section 55.3, shall do all of the following:
(1)Include the attorneys State Bar license number in the demand letter.
(2)Contemporaneously with providing the demand letter, send a copy of the demand letter to the State Bar of California by facsimile transmission at 1-415-538-2171, or by mail to 180 Howard Street, San Francisco, CA, 94105, Attention: Professional Competence.
(3)Within five business days of providing the demand letter, send a copy of the demand letter to the California Commission on Disability Access.
(b)An attorney who sends or serves a complaint, as defined in subdivision (a) of Section 55.3, shall send a copy of the complaint to the California Commission on Disability Access within five business days of sending or serving the complaint.
(c)A violation of paragraph (2) or (3) of subdivision (a) or subdivision (b) shall constitute cause for the imposition of discipline of an attorney where a copy of the complaint or demand letter is not sent to the California Commission on Disability Access within five business days, or a copy of the demand letter is not sent to the State Bar within five business days. In the event the State Bar receives information indicating that an attorney has failed to send a copy of the complaint or demand letter to the California Commission on Disability Access within five business days, the State Bar shall investigate to determine whether paragraph (3) of subdivision (a) or subdivision (b) has been violated.
(d)Notwithstanding subdivisions (a) and (b), an attorney is not required to send to the State Bar of California or the California Commission on Disability Access a copy of any subsequent demand letter or amended complaint in the same dispute following the initial demand letter or complaint, unless that subsequent demand letter or amended complaint alleges a new construction-related accessibility claim.
(e)A demand letter or complaint sent to the California Commission on Disability Access shall be for the informational purposes of Section 8299.08 of the Government Code. A demand letter received by the State Bar from either the sender or recipient of the demand letter shall be reviewed by the State Bar to determine whether subdivision (b) or (c) of Section 55.31 has been violated.
(f)(1)Commencing July 31, 2013, and annually each July 31 thereafter, the State Bar shall report to the Legislature and the Chairs of the Senate and Assembly Committees on Judiciary, both of the following with respect to demand letters received by the State Bar:
(A)The number of investigations opened to date on a suspected violation of subdivision (b) or (c) of Section 55.31.
(B)Whether any disciplinary action resulted from the investigation, and the results of that disciplinary action.
(2)A report to be submitted pursuant to this subdivision shall be submitted in compliance with Section 9795 of the Government Code.
(g)The California Commission on Disability Access shall review and report on the demand letters and complaints it receives as provided in Section 8299.08 of the Government Code.
(h)Paragraphs (2) and (3) of subdivision (a) and subdivision (b) shall not apply to a demand letter or complaint sent or filed by an attorney employed or retained by a qualified legal services project or a qualified support center, as defined in Section 6213 of the Business and Professions Code, when acting within the scope of employment in asserting a construction-related accessibility claim. The Legislature finds and declares that qualified legal services projects and support centers are extensively regulated by the State Bar of California, and that there is no evidence of any abusive use of demand letters or complaints by these organizations. The Legislature further finds that, in light of the evidence of the extraordinarily small number of construction-related accessibility cases brought by regulated legal services programs, and given the resources of those programs, exempting regulated legal services programs from the requirements of this section to report to the California Commission on Disability Access will not affect the purpose of the reporting to, and tabulation by, the commission of all other construction-related accessibility claims.
(i)This section shall become operative on January 1, 2013.
(j)This section shall remain in effect only until January 1, 2019, and as of that date is repealed.
SEC. 2.Section 55.32 of the Civil Code, as added by Section 6 of Chapter 383 of the Statutes of 2012, is amended to read:55.32.(a)An attorney who provides a demand letter, as defined in subdivision (a) of Section 55.3, shall do all of the following:
(1)Include the attorneys State Bar license number in the demand letter.
(2)Within five business days of providing the demand letter, send a copy of the demand letter to and submit information about the demand letter in a standard format specified by the California Commission on Disability Access. Access, to the commission.
(b)An attorney who sends or serves a complaint, as defined in subdivision (a) of Section 55.3, shall send a copy of the complaint to and submit information about the complaint in a standard format specified by the California Commission on Disability Access to the commission within five business days of sending or serving the complaint.
(c)A violation of paragraph (2) of subdivision (a) or subdivision (b) shall constitute cause for the imposition of discipline of an attorney if a copy of the demand letter or complaint is not sent to the California Commission on Disability Access within five business days. In the event the State Bar receives information indicating that an attorney has failed to send a copy of the demand letter or complaint to the California Commission on Disability Access within five business days, the State Bar shall investigate to determine whether paragraph (2) of subdivision (a) or subdivision (b) has been violated.
(d)Notwithstanding subdivisions (a) and (b), an attorney is not required to send to the California Commission on Disability Access a copy of any subsequent demand letter or amended complaint in the same dispute following the initial demand letter or complaint, unless that subsequent demand letter or amended complaint alleges a new construction-related accessibility claim.
(e)A demand letter sent to the California Commission on Disability Access shall be for the informational purposes of Section 8299.08 of the Government Code. A demand letter received by the State Bar from the recipient of the demand letter shall be reviewed by the State Bar to determine whether subdivision (b) or (c) of Section 55.31 has been violated.
(f)(1)Notwithstanding Section 10231.5 of the Government Code, on or before July 31, 2019, and annually thereafter, the State Bar shall report to the Legislature and the Chairs of the Senate and Assembly Judiciary Committees, both of the following with respect to demand letters received by the State Bar:
(A)The number of investigations opened to date on a suspected violation of subdivision (b) or (c) of Section 55.31.
(B)Whether any disciplinary action resulted from the investigation, and the results of that disciplinary action.
(2)A report to be submitted pursuant to this subdivision shall be submitted in compliance with Section 9795 of the Government Code.
(g)The California Commission on Disability Access shall review and report on the demand letters and complaints it receives as provided in Section 8299.08 of the Government Code.
(h)The expiration of any ground for discipline of an attorney shall not affect the imposition of discipline for any act prior to the expiration. An act or omission that constituted cause for imposition of discipline of an attorney when committed or omitted prior to January 1, 2019, shall continue to constitute cause for the imposition of discipline of that attorney on and after January 1, 2019.
(i)Paragraph (2) of subdivision (a) and subdivision (b) shall not apply to a demand letter or complaint sent or filed by an attorney employed or retained by a qualified legal services project or a qualified support center, as defined in Section 6213 of the Business and Professions Code, when acting within the scope of employment in asserting a construction-related accessibility claim. The Legislature finds and declares that qualified legal services projects and support centers are extensively regulated by the State Bar of California, and that there is no evidence of any abusive use of demand letters or complaints by these organizations. The Legislature further finds that, in light of the evidence of the extraordinarily small number of construction-related accessibility cases brought by regulated legal services programs, and given the resources of those programs, exempting regulated legal services programs from the requirements of this section to report to the California Commission on Disability Access will not affect the purpose of the reporting to, and tabulation by, the commission of all other construction-related accessibility claims.
(j)This section shall become operative on January 1, 2019.
SEC. 3.Section 55.535 is added to the Civil Code, immediately following Section 55.53, to read:55.535.(a)A business, prior to the initiation of litigation, receipt of a demand letter, or that is otherwise on notice of a violation of a construction-related accessibility standard prior to a CASp inspection, shall not be liable for minimum statutory damages for violating a construction-related liability standard, as defined in Section 55.52, that is noted in the CASp report if the violation is corrected within 90 days of the date of the CASp inspection.
(b)A small business, as that term is defined in subparagraph (B) of paragraph (2) of subdivision (f) of Section 55.56, shall not be liable for minimum statutory damages for violating a construction-related accessibility standard if both of the following conditions are met:
(1)The alleged violation concerns interior or exterior signage, the color or condition of parking lot paint striping, or truncated domes.
(2)The violation is corrected within 15 days of the service of a summons and complaint asserting a construction-related accessibility claim or receipt of a written notice, whichever is earlier.
SEC. 4.Section 1938.5 is added to the Civil Code, to read:1938.5.A commercial property owner or lessor shall state on every lease form or rental agreement executed on or after January 1, 2016, that, pursuant to Section 36.201 of Title 28 of the Code of Federal Regulations, the owner or lessor and the tenant are both responsible for compliance with the federal Americans with Disabilities Act of 1990 (42 U.S.C. Sec. 12101 et seq.) and that responsibility for compliance may be allocated between the parties by the terms of the lease or other contract.
SEC. 3.Section 55.53 of the Civil Code is amended to read:55.53.(a)For purposes of this part, a certified access specialist shall, upon completion of the inspection of a site, comply with the following:
(1)For a meets applicable standards site, if the CASp determines the site meets all applicable construction-related accessibility standards, the CASp shall provide a written inspection report to the requesting party that includes both of the following:
(A)An identification and description of the inspected structures and areas of the site.
(B)A signed and dated statement that includes both of the following:
(i)A statement that, in the opinion of the CASp, the inspected structures and areas of the site meet construction-related accessibility standards. The statement shall clearly indicate whether the determination of the CASp includes an assessment of readily achievable barrier removal.
(ii)If corrections were made as a result of the CASp inspection, an itemized list of all corrections and dates of completion.
(2)For an inspected by a CASp site, if the CASp determines that corrections are needed to the site in order for the site to meet all applicable construction-related accessibility standards, the CASp shall provide a signed and dated written inspection report to the requesting party that includes all of the following:
(A)An identification and description of the inspected structures and areas of the site.
(B)The date of the inspection.
(B)
(C)A statement that, in the opinion of the CASp, the inspected structures and areas of the site need correction to meet construction-related accessibility standards. This statement shall clearly indicate whether the determination of the CASp includes an assessment of readily achievable barrier removal.
(C)
(D)An identification and description of the structures or areas of the site that need correction and the correction needed.
(D)
(E)A schedule of completion for each of the corrections within a reasonable timeframe.
(3)The CASp shall provide, within 30 days of the date when it is requested by a business that qualifies for the provisions of subparagraph (A) of paragraph (3) of subdivision (g) of Section 55.56, a copy of a report prepared pursuant to that subparagraph to the business that requested it.
(4)The CASp shall file, within ten days of inspecting a business pursuant to subparagraph (A) of paragraph (3) of subdivision (g) of Section 55.56, a notice with the State Architect for listing on the State Architects Internet Web site, as provided by subdivision (d) of Section 4459.7 of the Government Code, indicating that the CASp has inspected the business, the name and address of the business, the date of the filing, the date of the inspection of the business, the name and license number of the CASp, and a description of the structure or area inspected by the CASp.
(b)For purposes of this section, in determining whether the site meets applicable construction-related accessibility standards when there is a conflict or difference between a state and federal provision, standard, or regulation, the state provision, standard, or regulation shall apply unless the federal provision, standard, or regulation is more protective of accessibility rights.
(c)Every CASp who conducts an inspection of a place of public accommodation shall, upon completing the inspection of the site, provide the building owner or tenant who requested the inspection with the following notice, which the State Architect shall make available as a form on the State Architects Internet Web site:
NOTICE TO PRIVATE PROPERTY OWNER/TENANT:
YOU ARE ADVISED TO KEEP IN YOUR RECORDS ANY WRITTEN INSPECTION REPORT AND ANY OTHER DOCUMENTATION CONCERNING YOUR PROPERTY SITE THAT IS GIVEN TO YOU BY A CERTIFIED ACCESS SPECIALIST.
IF YOU BECOME A DEFENDANT IN A LAWSUIT THAT INCLUDES A CLAIM CONCERNING A SITE INSPECTED BY A CERTIFIED ACCESS SPECIALIST, YOU MAY BE ENTITLED TO A COURT STAY (AN ORDER TEMPORARILY STOPPING ANY LAWSUIT) OF THE CLAIM AND AN EARLY EVALUATION CONFERENCE.
IN ORDER TO REQUEST THE STAY AND EARLY EVALUATION CONFERENCE, YOU WILL NEED TO VERIFY THAT A CERTIFIED ACCESS SPECIALIST HAS INSPECTED THE SITE THAT IS THE SUBJECT OF THE CLAIM. YOU WILL ALSO BE REQUIRED TO PROVIDE THE COURT AND THE PLAINTIFF WITH THE COPY OF A WRITTEN INSPECTION REPORT BY THE CERTIFIED ACCESS SPECIALIST, AS SET FORTH IN CIVIL CODE SECTION 55.54. THE APPLICATION FORM AND INFORMATION ON HOW TO REQUEST A STAY AND EARLY EVALUATION CONFERENCE MAY BE OBTAINED AT www.courts.ca.gov/selfhelp-start.htm.
YOU ARE ENTITLED TO REQUEST, FROM A CERTIFIED ACCESS SPECIALIST WHO HAS CONDUCTED AN INSPECTION OF YOUR PROPERTY, A WRITTEN INSPECTION REPORT AND OTHER DOCUMENTATION AS SET FORTH IN CIVIL CODE SECTION 55.53. YOU ARE ALSO ENTITLED TO REQUEST THE ISSUANCE OF A DISABILITY ACCESS INSPECTION CERTIFICATE, WHICH YOU MAY POST ON YOUR PROPERTY.
(d)(1)Commencing July 1, 2010, a local agency shall employ or retain at least one building inspector who is a certified access specialist. The certified access specialist shall provide consultation to the local agency, permit applicants, and members of the public on compliance with state construction-related accessibility standards with respect to inspections of a place of public accommodation that relate to permitting, plan checks, or new construction, including, but not limited to, inspections relating to tenant improvements that may impact access. If a local agency employs or retains two or more certified access specialists to comply with this subdivision, at least one-half of the certified access specialists shall be building inspectors who are certified access specialists.
(2)Commencing January 1, 2014, a local agency shall employ or retain a sufficient number of building inspectors who are certified access specialists to conduct permitting and plan check services to review for compliance with state construction-related accessibility standards by a place of public accommodation with respect to new construction, including, but not limited to, projects relating to tenant improvements that may impact access. If a local agency employs or retains two or more certified access specialists to comply with this subdivision, at least one-half of the certified access specialists shall be building inspectors who are certified access specialists.
(3)If a permit applicant or member of the public requests consultation from a certified access specialist, the local agency may charge an amount limited to a reasonable hourly rate, an estimate of which shall be provided upon request in advance of the consultation. A local government may additionally charge or increase permitting, plan check, or inspection fees to the extent necessary to offset the costs of complying with this subdivision. Any revenues generated from an hourly or other charge or fee increase under this subdivision shall be used solely to offset the costs incurred to comply with this subdivision. A CASp inspection pursuant to subdivision (a) by a building inspector who is a certified access specialist shall be treated equally for legal and evidentiary purposes as an inspection conducted by a private CASp. Nothing in this subdivision shall preclude permit applicants or any other person with a legal interest in the property from retaining a private CASp at any time.
(e)(1)Every CASp who completes an inspection of a place of public accommodation shall, upon a determination that the site meets applicable standards pursuant to paragraph (1) of subdivision (a) or is inspected by a CASp pursuant to paragraph (2) of subdivision (a), provide the building owner or tenant requesting the inspection with a numbered disability access inspection certificate indicating that the site has undergone inspection by a certified access specialist. The disability access inspection certificate shall be dated and signed by the CASp inspector, and shall contain the inspectors name and license number. Upon issuance of a certificate, the CASp shall record the issuance of the numbered certificate, the name and address of the recipient, and the type of report issued pursuant to subdivision (a) in a record book the CASp shall maintain for that purpose.
(2)Beginning March 1, 2009, the State Architect shall make available for purchase by any local building department or CASp sequentially numbered disability access inspection certificates that are printed with a watermark or other feature to deter forgery and that comply with the information requirements specified in subdivision (a).
(3)The disability access inspection certificate may be posted on the premises of the place of public accommodation, unless, following 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.
(f)Nothing in this section or any other law is intended to require a property owner or tenant to hire a CASp. A property owners or tenants election not to hire a CASp shall not be admissible to prove that persons lack of intent to comply with the law.
SEC. 4.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.
(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)(1)The following technical violations are presumed to not cause a person difficulty, discomfort, or embarrassment for the purpose of an award of minimum statutory damages in a construction-related accessibility claim, as set forth in subdivision (c), where the defendant is a small business as described by subparagraph (B) of paragraph (2) of subdivision (g), the defendant has corrected, within 15 days of the service of a summons and complaint asserting a construction-related accessibility claim or receipt of a written notice, whichever is earlier, all of the technical violations that are the basis of the claim, and the claim is based on one or more of the following violations:
(A)Interior signs, other than directional signs or signs that identify the location of accessible elements, facilities, or features, when not all such elements, facilities, or features are accessible.
(B)The lack of exterior signs, other than parking signs and directional signs, including signs that indicate the location of accessible pathways or entrance and exit doors when not all pathways, entrance and exit doors are accessible.
(C)The order in which parking signs are placed or the exact location or wording of parking signs, provided that the parking signs are clearly visible and indicate the location of accessible parking and van-accessible parking.
(D)The color of parking signs, provided that the color of the background contrasts with the color of the information on the sign.
(E)The color of parking lot striping, provided that it exists and provides sufficient contrast with the surface upon which it is applied to be reasonably visible.
(F)Faded, chipped, damaged, or deteriorated paint in otherwise fully compliant parking spaces and passenger access aisles in parking lots, provided that it indicates the required dimensions of a parking space or access aisle in a manner that is reasonably visible.
(G)The presence or condition of detectable warning surfaces on ramps, except where the ramp is part of a pedestrian path of travel that intersects with a vehicular lane or other hazardous area.
(2)The presumption set forth in paragraph (1) affects the plaintiffs burden of proof and is rebuttable by evidence showing, by a preponderance of the evidence, that the plaintiff did, in fact, experience difficulty, discomfort, or embarrassment on the particular occasion as a result of one or more of the technical violations listed in paragraph (1).
(e)
(f)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)
(g)(1)Notwithstanding any other law, a defendants 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 defendants knowledge, there were no modifications or alterations that impacted compliance with construction-related accessibility standards with respect to the plaintiffs 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 defendants knowledge, there were no modifications or alterations that impacted compliance with respect to the plaintiffs 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 defendants knowledge, there were no modifications or alterations that affected compliance with respect to the plaintiffs 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 defendants 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)(A)Notwithstanding any other law, a defendant shall not be liable for minimum statutory damages in a construction-related accessibility claim, with respect to a violation noted in a report by a certified access specialist (CASp), for a period of 120 days following the date of the inspection if the defendant demonstrates compliance with each of the following:
(i)The defendant is a business that has employed 100 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 Employment Development Department.
(ii)The structure or area of the alleged violation was the subject of an inspection report indicating CASp determination pending or Inspected by a CASp.
(iii)The inspection predates the filing of the claim by, or receipt of a demand letter from, the plaintiff regarding the alleged violation of a construction-related accessibility standard, and the defendant was not on notice of the alleged violation prior to the CASp inspection because of a previous CASp inspection of the premises, or other reasons.
(iv)Within ten days of the date of the inspection, the CASp files a notice with the State Architect for listing on the State Architects Internet Web site, stating that the defendant has obtained a CASp inspection, the date of the filing, and the date of the inspection.
(v)The CASp posted the notice described in clause (iv), in a form prescribed by the State Architect, in a conspicuous location within five feet of all public entrances to the building on the date of the inspection and the defendant kept it in place until the earlier of either of the following:
(I)One hundred twenty days after the date of the inspection.
(II)The date when all of the construction-related violations in the structure or area inspected by the CASp are corrected.
(vi)The defendant has corrected, within 120 days of the date of the inspection, all construction-related violations in the structure or area inspected by the CASp that are noted in the CASp report that are the basis of the claim.
(B)Notwithstanding any other law, a defendant who claims the benefit of the reduction of minimum statutory damages under this subdivision shall disclose the date and findings of any CASp inspection to a plaintiff if relevant to a claim or defense in an action.
(4)A defendant may assert the reduction of minimum statutory damages under this subdivision only once for each structure or area inspected by a CASp, unless the inspected structure or area has undergone modifications or alterations that affect the compliance with construction-related accessibility standards of those structures or areas after the date of the last inspection, and the defendant obtains an additional CASp inspection within 30 days of final approval by the building department or certificate of occupancy, as appropriate, regarding the modification or alterations.
(5)If the defendant has failed to correct, within 120 days of the date of the inspection, all construction-related violations in the structure or area inspected by the CASp that are noted in the CASp report, the defendant shall not receive any reduction of minimum statutory damages, unless a building permit is required for the repairs which cannot reasonably be completed by the defendant within 120 days and the defendant is in the process of correcting the violations noted in the CASp report, as evidenced by having, at least, an active building permit necessary for the repairs to correct the violation that was noted, but not corrected, in the CASp report and all of the repairs are completed within 180 days of the date of the inspection.
(3)
(6)This subdivision shall not be applicable to intentional violations.
(4)
(7)Nothing in this subdivision affects the awarding of actual damages, or affects the awarding of treble actual damages.
(5)
(8)This subdivision shall apply only to claims filed on or after the effective date of Senate Bill 1186 of the 201112 Regular Session of the Legislature. Legislature, except that for paragraphs (3), (4), and (5), which shall apply to claims filed on or after January 1, 2016. Nothing in this subdivision is intended to affect a complaint filed before that date.
(g)
(h)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, nor alter any legal obligation of a party to mitigate damages.
(h)
(i)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 plaintiffs conduct in light of the plaintiffs obligation, if any, to mitigate damages.
(j)For purposes of this section, the structure or area inspected means one of the following: the interior of the premises, the exterior of the premises, or both the interior and exterior.
SEC. 5.Section 4459.7 of the Government Code is amended to read:4459.7.(a)(1)No later than October 31 of each year, the State Architect shall publish and make available to the public a list of certified access specialists who have met the requirements of Section 4459.5.
(2)The State Architect shall publish an and regularly update on its Internet Web site easily accessible list of businesses lists of all of the following:
(A)Businesses that have obtained a CASp inspection and have filed, or a CASp has filed on their behalf, a notice pursuant to paragraph (3) of subdivision (g) of Section 55.56 of the Civil Code.
(B)Businesses which have been inspected by a certified access specialist on or after January 1, 2016, including the date of the inspection. The State Architect shall periodically update this list.
(3)The lists required pursuant to this section shall include a written disclaimer of liability as specified in subdivision (b).
(b)Notwithstanding any other provision of law, a state agency or employee of a state agency may not be held liable for any injury or damages resulting from any service provided by a certified access specialist whose name appears on the list published pursuant to subdivision (a).
(c)The State Architect may perform periodic audits of work performed by a certified access specialist as deemed necessary to ensure the desired standard of performance. A certified access specialist shall provide an authorized representative of the State Architect with complete access, at any reasonable hour of the day, to all technical data, reports, records, photographs, design outlines and plans, and files used in building inspection and plan review, with the exception of proprietary and confidential information.
(d)By January 1, 2016, the State Architect shall develop a process by which a certified access specialist (CASp) may notify the State Architect that a structure or area on the premises of a business has been inspected by a CASp and to notify the public that the business has a CASp determination pending, or has been Inspected by a CASp, as provided by paragraph (3) of subdivision (g) of section 55.56 of the Civil Code, which shall include the date of the notification, the date of the inspection, and a description of the structure or area inspected by a CASp.
(e)By January 1, 2016, the State Architect shall develop a form for a business to notify the public that the business has obtained a CASp inspection pursuant to paragraph (3) of subdivision (g) of Section 55.56 of the Civil Code, which shall include the date of the notification, the date of the inspection, and a description of the structure or area inspected by a CASp.
(f)For purposes of this section, the structure or area inspected means one of the following: the interior of the premises, the exterior of the premises, or both the interior and exterior.
SEC. 6.Section 4459.8 of the Government Code is amended to read:4459.8.(a)The certification authorized by Section 4459.5 is effective for three years from the date of initial certification and expires if not renewed. The State Architect, upon consideration of any factual complaints regarding the work of a certified access specialist or of other relevant information, may suspend certification or deny renewal of certification.
(b)(1)The State Architect shall require each applicant for certification as a certified access specialist to do both of the following:
(A)Pay fees, including an application and course fee and an examination fee, at a level sufficient to meet the costs of application processing, registration, publishing a list, and other activities that are reasonably necessary to implement and administer the certified access specialist program.
(B)Provide to the State Architect the name of the city, county, or city and county in which the applicant intends to provide services.
(2)The State Architect shall require each applicant for renewal of certification to do both of the following:
(A)Pay a fee sufficient to cover the reasonable costs of reassessing qualifications of renewal applicants.
(B)Provide to the State Architect the name of the city, county, or city and county in which the applicant has provided services since the last day of certification by the State Architect.
(3)The State Architect shall periodically review its schedule of fees to ensure that its fees for certification are not excessive while covering the costs to administer the certified access specialist program. The application fee for a California licensed architect, landscape architect, civil engineer, or structural engineer shall not exceed two hundred fifty dollars ($250).
(c)All fees collected pursuant to this section shall be deposited into the Certified Access Specialist Fund, which is hereby created in the State Treasury. Notwithstanding Section 13340, this fund is continuously appropriated without regard to fiscal years for use by the State Architect to implement Sections 4459.5 to 4459.8, inclusive.
(d)The State Architect shall post on his or her Internet Web site the name of the city, county, or city and county in which each certified access specialist provides or intends to provide services.
SEC. 7.Section 8299.06 of the Government Code is amended to read:8299.06.(a)A priority of the commission shall be the development and dissemination of educational materials and information to promote and facilitate disability access compliance.
(b)The commission shall work with other state agencies, including the Division of the State Architect and the Department of Rehabilitation, to develop educational materials and information for use by businesses to understand its obligations to provide disability access and to facilitate compliance with construction-related accessibility standards.
(c)The commission shall develop and make available on its Internet Web site, or make available on its Internet Web site if developed by another governmental agency, including Americans with Disabilities Act centers, toolkits or educational modules to assist a California business to understand its obligations under the law and to facilitate compliance with respect to the top 10 alleged construction-related violations, by type, as specified in subdivision (a) of Section 8299.08. Upon completion of this requirement, the commission shall develop and make available on its Internet Web site, or work with another agency to develop, other toolkits or educational modules that would educate businesses of the accessibility requirements and to facilitate compliance with that requirement.
(d)The commission shall post the following on its Internet Web site:
(1)Educational materials and information that will assist building owners, tenants, building officials, and building inspectors to understand the disability accessibility requirements and to facilitate compliance with disability access laws. The commission shall at least annually review the educational materials and information on disability access requirements and compliance available on the Internet Web site of other local, state, or federal agencies, including Americans with Disabilities Act centers, to augment the educational materials and information developed by the commission.
(2)A link to the Internet Web site of the Division of the State Architects certified access specialist (CASp) program to assist building owners and tenants in locating or hiring a CASp.
(e)The commission shall, to the extent feasible, coordinate with other state agencies and local building departments to ensure that information provided to the public on disability access requirements is uniform and complete, and make its educational materials and information available to those agencies and departments.
SEC. 8.Section 65941.6 is added to the Government Code, to read:65941.6.(a)Each local agency shall develop materials relating to the requirements of the federal Americans with Disabilities Act of 1990 (42 U.S.C. Sec. 12101 et seq.). The local agency shall provide these materials to an applicant along with notice that approval of a permit does not signify that the applicant has complied with the federal Americans with Disabilities Act of 1990.
(b)For the purposes of complying with the requirements of subdivision (a), a local agency may, in lieu of developing its own materials, provide applicants with those materials which the California Commission on Disability Access has developed and made available pursuant to Section 8299.06.
SEC. 9.Article 4 (commencing with Section 65946) is added to Chapter 4.5 of Division 1 of Title 7 of the Government Code, to read:4.Expedited Review65946.(a)For the purposes of this section, the following definitions shall apply:
(1)Certified access specialist or CASp means any person who has been certified pursuant to Section 4459.5.
(2)Construction-related accessibility standard means a provision, standard, or regulation under state or federal law requiring compliance with standards for making new construction and existing facilities accessible to persons with disabilities, including, but not limited to, any provision, standard, or regulation set forth in Section 51, 54, 54.1, or 55 of the Civil Code, Section 19955.5 of the Health and Safety Code, the California Building Standards Code (Title 24 of the California Code of Regulations), the federal Americans with Disabilities Act of 1990 (Public Law 101-336; 42 U.S.C. Sec. 12101 et seq.), and the federal Americans with Disabilities Act Accessibility Guidelines (Appendix A to Part 36 of Title 28 of the Code of Federal Regulations).
(3)Written inspection report means the CASp report required to be provided pursuant to subdivision (a) of Section 55.53 of the Civil Code.
(b)A local agency shall expedite review of a project application if the project applicant meets all of the following conditions:
(1)The applicant provides a copy of a disability access inspection certificate, provided by a CASp pursuant to subdivision (e) of Section 55.53 of the Civil Code, pertaining to the site of the proposed project.
(2)The applicant demonstrates that the proposed project is necessary to address either an alleged violation of a construction-related accessibility standard or a violation noted in a written inspection report.
(3)If project plans are necessary for the approval of a project, the applicant has had a CASp review the project plans for compliance with all applicable construction-related accessibility standards.
SEC. 10.Section 17053.43 is added to the Revenue and Taxation Code, to read:17053.43.(a)(1)For each taxable year beginning on or after January 1, 2016, and before January 1, 2023, there shall be allowed to a taxpayer that is a small business a credit against the net tax, as defined in Section 17039, for the amount paid or incurred for eligible access expenditures in excess of two hundred fifty dollars ($250).
(2)(A)The credit shall be in an amount equal to 50 percent of the difference between the total eligible access expenditures incurred by a taxpayer that is a small business that do not exceed ten thousand two hundred fifty dollars ($10,250) and two hundred fifty dollars ($250).
(B)In the case of a partnership, the limitation under this paragraph shall apply with respect to the partnership and each partner. A similar rule shall apply in the case of an S corporation.
(b)For the purposes of this section, the following definitions shall apply:
(1)Eligible access expenditures has the same meaning as defined in Section 44(c) of the Internal Revenue Code, except that the amounts may be paid or incurred by a taxpayer other than an eligible small business.
(2)(A)Small business means a trade or business that, in the three immediately preceding taxable years, had average gross receipts, less returns and allowances reportable to this state, of less than three million five hundred thousand dollars ($3,500,000) and employed 25 or fewer full-time employees.
(B)For the purposes of this paragraph, gross receipts, less returns and allowances reportable to this state means the sum of the gross receipts from the production of business income, as defined in subdivision (a) of Section 25120, and the gross receipts from the production of nonbusiness income, as defined in subdivision (d) of Section 25120.
(C)For the purposes of this paragraph, full-time employee means an employee of the taxpayer who works at least 30 hours per week.
(c)In the case where the credit allowed by this section exceeds the net tax, the excess may be carried over to reduce the net tax in the following year, and the succeeding six years, if necessary, until the credit is exhausted.
(d)The credit allowed by this section may be claimed only on a timely filed original return of the taxpayer.
(e)In the case of a credit allowed under this section, the following shall apply:
(1)A deduction or credit shall not be allowed for that amount under any other provision of this part.
(2)An increase in the adjusted basis of any property shall not result from that amount.
(f)The Franchise Tax Board may prescribe rules, guidelines, or procedures necessary or appropriate to carry out the purposes of this section, including any guidelines regarding the substantiation of the credit allowed by this section. Chapter 3.5 (commencing with Section 11340) of Part 1 of Division 3 of Title 2 of the Government Code does not apply to any rule, guideline, or procedure prescribed by the Franchise Tax Board pursuant to this section.
(g)This section shall remain in effect only until December 1, 2023, and as of that date is repealed.
SEC. 11.Section 23643 is added to the Revenue and Taxation Code, to read:23643.(a)(1)For each taxable year beginning on or after January 1, 2016, and before January 1, 2023, there shall be allowed to a taxpayer that is a small business a credit against the tax, as defined in Section 23036, for the amount paid or incurred for eligible access expenditures in excess of two hundred fifty dollars ($250).
(2)(A)The credit shall be in an amount equal to 50 percent of the difference between the total eligible access expenditures incurred by a taxpayer that is a small business that do not exceed ten thousand two hundred fifty dollars ($10,250) and two hundred fifty dollars ($250).
(B)In the case of a partnership, the limitation under this paragraph shall apply with respect to the partnership and each partner. A similar rule shall apply in the case of an S corporation.
(b)For the purposes of this section, the following definitions shall apply:
(1)Eligible access expenditures has the same meaning as defined in Section 44(c) of the Internal Revenue Code, except that the amounts may be paid or incurred by a taxpayer other than an eligible small business.
(2)(A)Small business means a trade or business that, in the three immediately preceding taxable years, had average gross receipts, less returns and allowances reportable to this state, of less than three million five hundred thousand dollars ($3,500,000) and employed 25 or fewer full-time employees.
(B)For the purposes of this paragraph, gross receipts, less returns and allowances reportable to this state means the sum of the gross receipts from the production of business income, as defined in subdivision (a) of Section 25120, and the gross receipts from the production of nonbusiness income, as defined in subdivision (d) of Section 25120.
(C)For the purposes of this paragraph, full-time employee means an employee of the taxpayer who works at least 30 hours per week.
(D)The dollar amount specified in subparagraph (A) shall apply to the gross receipts of all taxpayers required or authorized to be included on a combined report pursuant to Section 25101 or 25101.15.
(c)In the case where the credit allowed by this section exceeds the tax, the excess may be carried over to reduce the tax in the following year, and the succeeding six years, if necessary, until the credit is exhausted.
(d)The credit allowed by this section may be claimed only on a timely filed original return of the taxpayer.
(e)In the case of a credit allowed under this section, the following shall apply:
(1)A deduction or credit shall not be allowed for that amount under any other provision of this part.
(2)An increase in the adjusted basis of any property shall not result from that amount.
(f)The Franchise Tax Board may prescribe rules, guidelines, or procedures necessary or appropriate to carry out the purposes of this section, including any guidelines regarding the substantiation of the credit allowed by this section. Chapter 3.5 (commencing with Section 11340) of Part 1 of Division 3 of Title 2 of the Government Code does not apply to any rule, guideline, or procedure prescribed by the Franchise Tax Board pursuant to this section.
(g)This section shall remain in effect only until December 1, 2023, and as of that date is repealed.
SEC. 12.The Legislature finds and declares that Sections 8 and 9 of this act, pertaining to the review and approval of development permit applications, constitute matters of statewide concern, and shall apply to charter cities and charter counties. These sections shall supersede any inconsistent provisions in the charter of any city, county, or city and county.
SEC. 13.It is the intent of the Legislature to make the findings required by Section 41 of the Revenue and Taxation Code with respect to the tax credits allowed by Sections 10 and 11 of this act.
SEC. 14.If the Commission on State Mandates determines that this act contains costs mandated by the state, reimbursement to local agencies and school districts for those costs shall be made pursuant to Part 7 (commencing with Section 17500) of Division 4 of Title 2 of the Government Code.
(a)An attorney who provides a demand letter, as defined in subdivision (a) of Section 55.3, shall do all of the following:
(1)Include the attorneys State Bar license number in the demand letter.
(2)Contemporaneously with providing the demand letter, send a copy of the demand letter to the State Bar of California by facsimile transmission at 1-415-538-2171, or by mail to 180 Howard Street, San Francisco, CA, 94105, Attention: Professional Competence.
(3)Within five business days of providing the demand letter, send a copy of the demand letter to the California Commission on Disability Access.
(b)An attorney who sends or serves a complaint, as defined in subdivision (a) of Section 55.3, shall send a copy of the complaint to the California Commission on Disability Access within five business days of sending or serving the complaint.
(c)A violation of paragraph (2) or (3) of subdivision (a) or subdivision (b) shall constitute cause for the imposition of discipline of an attorney where a copy of the complaint or demand letter is not sent to the California Commission on Disability Access within five business days, or a copy of the demand letter is not sent to the State Bar within five business days. In the event the State Bar receives information indicating that an attorney has failed to send a copy of the complaint or demand letter to the California Commission on Disability Access within five business days, the State Bar shall investigate to determine whether paragraph (3) of subdivision (a) or subdivision (b) has been violated.
(d)Notwithstanding subdivisions (a) and (b), an attorney is not required to send to the State Bar of California or the California Commission on Disability Access a copy of any subsequent demand letter or amended complaint in the same dispute following the initial demand letter or complaint, unless that subsequent demand letter or amended complaint alleges a new construction-related accessibility claim.
(e)A demand letter or complaint sent to the California Commission on Disability Access shall be for the informational purposes of Section 8299.08 of the Government Code. A demand letter received by the State Bar from either the sender or recipient of the demand letter shall be reviewed by the State Bar to determine whether subdivision (b) or (c) of Section 55.31 has been violated.
(f)(1)Commencing July 31, 2013, and annually each July 31 thereafter, the State Bar shall report to the Legislature and the Chairs of the Senate and Assembly Committees on Judiciary, both of the following with respect to demand letters received by the State Bar:
(A)The number of investigations opened to date on a suspected violation of subdivision (b) or (c) of Section 55.31.
(B)Whether any disciplinary action resulted from the investigation, and the results of that disciplinary action.
(2)A report to be submitted pursuant to this subdivision shall be submitted in compliance with Section 9795 of the Government Code.
(g)The California Commission on Disability Access shall review and report on the demand letters and complaints it receives as provided in Section 8299.08 of the Government Code.
(h)Paragraphs (2) and (3) of subdivision (a) and subdivision (b) shall not apply to a demand letter or complaint sent or filed by an attorney employed or retained by a qualified legal services project or a qualified support center, as defined in Section 6213 of the Business and Professions Code, when acting within the scope of employment in asserting a construction-related accessibility claim. The Legislature finds and declares that qualified legal services projects and support centers are extensively regulated by the State Bar of California, and that there is no evidence of any abusive use of demand letters or complaints by these organizations. The Legislature further finds that, in light of the evidence of the extraordinarily small number of construction-related accessibility cases brought by regulated legal services programs, and given the resources of those programs, exempting regulated legal services programs from the requirements of this section to report to the California Commission on Disability Access will not affect the purpose of the reporting to, and tabulation by, the commission of all other construction-related accessibility claims.
(i)This section shall become operative on January 1, 2013.
(j)This section shall remain in effect only until January 1, 2019, and as of that date is repealed.
SEC. 2.Section 55.32 of the Civil Code, as added by Section 6 of Chapter 383 of the Statutes of 2012, is amended to read:55.32.(a)An attorney who provides a demand letter, as defined in subdivision (a) of Section 55.3, shall do all of the following:
(1)Include the attorneys State Bar license number in the demand letter.
(2)Within five business days of providing the demand letter, send a copy of the demand letter to the California Commission on Disability Access.
(b)An attorney who sends or serves a complaint, as defined in subdivision (a) of Section 55.3, shall send a copy of the complaint to the California Commission on Disability Access within five business days of sending or serving the complaint.
(c)A violation of paragraph (2) of subdivision (a) or subdivision (b) shall constitute cause for the imposition of discipline of an attorney if a copy of the demand letter or complaint is not sent to the California Commission on Disability Access within five business days. In the event the State Bar receives information indicating that an attorney has failed to send a copy of the demand letter or complaint to the California Commission on Disability Access within five business days, the State Bar shall investigate to determine whether paragraph (2) of subdivision (a) or subdivision (b) has been violated.
(d)Notwithstanding subdivisions (a) and (b), an attorney is not required to send to the California Commission on Disability Access a copy of any subsequent demand letter or amended complaint in the same dispute following the initial demand letter or complaint, unless that subsequent demand letter or amended complaint alleges a new construction-related accessibility claim.
(e)A demand letter sent to the California Commission on Disability Access shall be for the informational purposes of Section 8299.08 of the Government Code. A demand letter received by the State Bar from the recipient of the demand letter shall be reviewed by the State Bar to determine whether subdivision (b) or (c) of Section 55.31 has been violated.
(f)(1)Notwithstanding Section 10231.5 of the Government Code, on or before July 31, 2019, and annually thereafter, the State Bar shall report to the Legislature and the Chairs of the Senate and Assembly Judiciary Committees, both of the following with respect to demand letters received by the State Bar:
(A)The number of investigations opened to date on a suspected violation of subdivision (b) or (c) of Section 55.31.
(B)Whether any disciplinary action resulted from the investigation, and the results of that disciplinary action.
(2)A report to be submitted pursuant to this subdivision shall be submitted in compliance with Section 9795 of the Government Code.
(g)The California Commission on Disability Access shall review and report on the demand letters and complaints it receives as provided in Section 8299.08 of the Government Code.
(h)The expiration of any ground for discipline of an attorney shall not affect the imposition of discipline for any act prior to the expiration. An act or omission that constituted cause for imposition of discipline of an attorney when committed or omitted prior to January 1, 2019, shall continue to constitute cause for the imposition of discipline of that attorney on and after January 1, 2019.
(i)Paragraph (2) of subdivision (a) and subdivision (b) shall not apply to a demand letter or complaint sent or filed by an attorney employed or retained by a qualified legal services project or a qualified support center, as defined in Section 6213 of the Business and Professions Code, when acting within the scope of employment in asserting a construction-related accessibility claim. The Legislature finds and declares that qualified legal services projects and support centers are extensively regulated by the State Bar of California, and that there is no evidence of any abusive use of demand letters or complaints by these organizations. The Legislature further finds that, in light of the evidence of the extraordinarily small number of construction-related accessibility cases brought by regulated legal services programs, and given the resources of those programs, exempting regulated legal services programs from the requirements of this section to report to the California Commission on Disability Access will not affect the purpose of the reporting to, and tabulation by, the commission of all other construction-related accessibility claims.
(j)This section shall become operative on January 1, 2019.
SEC. 3.Section 55.535 is added to the Civil Code, immediately following Section 55.53, to read:55.535.(a)A business, prior to the initiation of litigation, receipt of a demand letter, or that is otherwise on notice of a violation of a construction-related accessibility standard prior to a CASp inspection, shall not be liable for minimum statutory damages for violating a construction-related liability standard, as defined in Section 55.52, that is noted in the CASp report if the violation is corrected within 90 days of the date of the CASp inspection.
(b)A small business, as that term is defined in subparagraph (B) of paragraph (2) of subdivision (f) of Section 55.56, shall not be liable for minimum statutory damages for violating a construction-related accessibility standard if both of the following conditions are met:
(1)The alleged violation concerns interior or exterior signage, the color or condition of parking lot paint striping, or truncated domes.
(2)The violation is corrected within 15 days of the service of a summons and complaint asserting a construction-related accessibility claim or receipt of a written notice, whichever is earlier.
SEC. 4.Section 1938.5 is added to the Civil Code, to read:1938.5.A commercial property owner or lessor shall state on every lease form or rental agreement executed on or after January 1, 2016, that, pursuant to Section 36.201 of Title 28 of the Code of Federal Regulations, the owner or lessor and the tenant are both responsible for compliance with the federal Americans with Disabilities Act of 1990 (42 U.S.C. Sec. 12101 et seq.) and that responsibility for compliance may be allocated between the parties by the terms of the lease or other contract.
SEC. 5.Section 4459.7 of the Government Code is amended to read:4459.7.(a)(1)No later than October 31 of each year, the State Architect shall publish and make available to the public both a list of certified access specialists who have met the requirements of Section 4459.5.
(2)The State Architect shall publish an easily accessible list of businesses which have been inspected by a certified access specialist on or after January 1, 2016, including the date of the inspection. The State Architect shall periodically update this list.
(3)The lists required pursuant to this section shall include a written disclaimer of liability as specified in subdivision (b).
(b)Notwithstanding any other provision of law, a state agency or employee of a state agency may not be held liable for any injury or damages resulting from any service provided by a certified access specialist whose name appears on the list published pursuant to subdivision (a).
(c)The State Architect may perform periodic audits of work performed by a certified access specialist as deemed necessary to ensure the desired standard of performance. A certified access specialist shall provide an authorized representative of the State Architect with complete access, at any reasonable hour of the day, to all technical data, reports, records, photographs, design outlines and plans, and files used in building inspection and plan review, with the exception of proprietary and confidential information.
SEC. 6.Section 4459.8 of the Government Code is amended to read:4459.8.(a)The certification authorized by Section 4459.5 is effective for three years from the date of initial certification and expires if not renewed. The State Architect, upon consideration of any factual complaints regarding the work of a certified access specialist or of other relevant information, may suspend certification or deny renewal of certification.
(b)(1)The State Architect shall require each applicant for certification as a certified access specialist to do both of the following:
(A)Pay fees, including an application and course fee and an examination fee, at a level sufficient to meet the costs of application processing, registration, publishing a list, and other activities that are reasonably necessary to implement and administer the certified access specialist program.
(B)Provide to the State Architect the name of the city, county, or city and county in which the applicant intends to provide services.
(2)The State Architect shall require each applicant for renewal of certification to do both of the following:
(A)Pay a fee sufficient to cover the reasonable costs of reassessing qualifications of renewal applicants.
(B)Provide to the State Architect the name of the city, county, or city and county in which the applicant has provided services since the last day of certification by the State Architect.
(3)The State Architect shall periodically review its schedule of fees to ensure that its fees for certification are not excessive while covering the costs to administer the certified access specialist program. The application fee for a California licensed architect, landscape architect, civil engineer, or structural engineer shall not exceed two hundred fifty dollars ($250).
(c)All fees collected pursuant to this section shall be deposited into the Certified Access Specialist Fund, which is hereby created in the State Treasury. Notwithstanding Section 13340, this fund is continuously appropriated without regard to fiscal years for use by the State Architect to implement Sections 4459.5 to 4459.8, inclusive.
(d)The State Architect shall post on his or her Internet Web site the name of the city, county, or city and county in which each certified access specialist provides or intends to provide services.
SEC. 7.Section 8299.06 of the Government Code is amended to read:8299.06.(a)A priority of the commission shall be the development and dissemination of educational materials and information to promote and facilitate disability access compliance.
(b)The commission shall work with other state agencies, including the Division of the State Architect and the Department of Rehabilitation, to develop educational materials and information for use by businesses to understand its obligations to provide disability access and to facilitate compliance with construction-related accessibility standards.
(c)The commission shall develop and make available on its Internet Web site, or make available on its Internet Web site if developed by another governmental agency, including Americans with Disabilities Act centers, toolkits or educational modules to assist a California business to understand its obligations under the law and to facilitate compliance with respect to the top 10 alleged construction-related violations, by type, as specified in subdivision (a) of Section 8299.08. Upon completion of this requirement, the commission shall develop and make available on its Internet Web site, or work with another agency to develop, other toolkits or educational modules that would educate businesses of the accessibility requirements and to facilitate compliance with that requirement.
(d)The commission shall post the following on its Internet Web site:
(1)Educational materials and information that will assist building owners, tenants, building officials, and building inspectors to understand the disability accessibility requirements and to facilitate compliance with disability access laws. The commission shall at least annually review the educational materials and information on disability access requirements and compliance available on the Internet Web site of other local, state, or federal agencies, including Americans with Disabilities Act centers, to augment the educational materials and information developed by the commission.
(2)A link to the Internet Web site of the Division of the State Architects certified access specialist (CASp) program to assist building owners and tenants in locating or hiring a CASp.
(e)The commission shall, to the extent feasible, coordinate with other state agencies and local building departments to ensure that information provided to the public on disability access requirements is uniform and complete, and make its educational materials and information available to those agencies and departments.
SEC. 8.Section 65941.6 is added to the Government Code, to read:65941.6.(a)Each local agency shall develop materials relating to the requirements of the federal Americans with Disabilities Act of 1990 (42 U.S.C. Sec. 12101 et seq.). The local agency shall provide these materials to an applicant along with notice that approval of a permit does not signify that the applicant has complied with the federal Americans with Disabilities Act. Act of 1990.
(b)For the purposes of complying with the requirements of subdivision (a), a local agency may, in lieu of developing its own materials, provide applicants with those materials which the California Commission on Disability Access has developed and made available pursuant to Section 8299.06.
SEC. 9.Article 4 (commencing with Section 65946) is added to Chapter 4.5 of Division 1 of Title 7 of the Government Code, to read:4.Expedited Review65946.(a)For the purposes of this section, the following definitions shall apply:
(1)Certified access specialist or CASp means any person who has been certified pursuant to Section 4459.5.
(2)Construction-related accessibility standard means a provision, standard, or regulation under state or federal law requiring compliance with standards for making new construction and existing facilities accessible to persons with disabilities, including, but not limited to, any provision, standard, or regulation set forth in Section 51, 54, 54.1, or 55 of the Civil Code, Section 19955.5 of the Health and Safety Code, the California Building Standards Code (Title 24 of the California Code of Regulations), the federal Americans with Disabilities Act of 1990 (Public Law 101-336; 42 U.S.C. Sec. 12101 et seq.), and the federal Americans with Disabilities Act Accessibility Guidelines (Appendix A to Part 36 of Title 28 of the Code of Federal Regulations).
(3)Written inspection report means the CASp report required to be provided pursuant to subdivision (a) of Section 55.53 of the Civil Code.
(b)A local agency shall expedite review of a project application if the project applicant meets all of the following conditions:
(1)The applicant provides a copy of a disability access inspection certificate, provided by a CASp pursuant to subdivision (e) of Section 55.53 of the Civil Code, pertaining to the site of the proposed project.
(2)The applicant demonstrates that the proposed project is necessary to address either an alleged violation of a construction-related accessibility standard or a violation noted in a written inspection report.
(3)If project plans are necessary for the approval of a project, the applicant has had a CASp review the project plans for compliance with all applicable construction-related accessibility standards.
SEC. 10.Section 17053.43 is added to the Revenue and Taxation Code, to read:17053.43.(a)(1)For each taxable year beginning on or after January 1, 2016, and before January 1, 2023, there shall be allowed to a taxpayer that is a small business a credit against the net tax, as defined in Section 17039, for the amount paid or incurred for eligible access expenditures in excess of two hundred fifty dollars ($250).
(2)(A)Except as specified in subparagraph (B), the The credit shall be in an amount equal to 50 percent of the difference between the total eligible access expenditures incurred by a taxpayer that is a small business that do not exceed ten thousand two hundred fifty dollars ($10,250) and two hundred fifty dollars ($250).
(B)For a taxpayer that is a small business, the credit shall be in an amount equal to 50 percent of the difference between the total eligible access expenditures incurred by a taxpayer that do not exceed fifteen thousand two hundred fifty dollars ($15,250) and two hundred fifty dollars ($250).
(C)
(B)In the case of a partnership, the limitation under this paragraph shall apply with respect to the partnership and each partner. A similar rule shall apply in the case of an S corporation.
(b)For the purposes of this section, the following definitions shall apply:
(1)Eligible access expenditures has the same meaning as defined in Section 44(c) of the Internal Revenue Code Code, except that the amounts may be paid or incurred by a taxpayer other than an eligible small business.
(2)(A)Small business means a trade or business that, in the three immediately preceding taxable years, had average gross receipts, less returns and allowances reportable to this state, of less than three million five hundred thousand dollars ($3,500,000) and employed 25 or fewer full-time employees.
(B)For the purposes of this paragraph, gross receipts, less returns and allowances reportable to this state means the sum of the gross receipts from the production of business income, as defined in subdivision (a) of Section 25120, and the gross receipts from the production of nonbusiness income, as defined in subdivision (d) of Section 25120.
(C)For the purposes of this paragraph, full-time employee means an employee of the taxpayer who works at least 30 hours per week.
(c)In the case where the credit allowed by this section exceeds the net tax, the excess may be carried over to reduce the net tax in the following year, and the succeeding six years, if necessary, until the credit is exhausted.
(d)The credit allowed by this section may be claimed only on a timely filed original return of the taxpayer.
(e)In the case of a credit allowed under this section, the following shall apply:
(1)A deduction or credit shall not be allowed for that amount under any other provision of this part.
(2)An increase in the adjusted basis of any property shall not result from that amount.
(f)The Franchise Tax Board may prescribe rules, guidelines, or procedures necessary or appropriate to carry out the purposes of this section, including any guidelines regarding the substantiation of the credit allowed by this section. Chapter 3.5 (commencing with Section 11340) of Part 1 of Division 3 of Title 2 of the Government Code does not apply to any rule, guideline, or procedure prescribed by the Franchise Tax Board pursuant to this section.
(g)This section shall remain in effect only until December 1, 2023, and as of that date is repealed.
SEC. 11.Section 23643 is added to the Revenue and Taxation Code, to read:23643.(a)(1)For each taxable year beginning on or after January 1, 2016, and before January 1, 2023, there shall be allowed a credit to a taxpayer that is a small business a credit against the tax, as defined in Section 23036, for the amount paid or incurred for eligible access expenditures in excess of two hundred fifty dollars ($250).
(2)(A)Except as specified in subparagraph (B), the The credit shall be in an amount equal to 50 percent of the difference between the total eligible access expenditures incurred by a taxpayer that is a small business that do not exceed ten thousand two hundred fifty dollars ($10,250) and two hundred fifty dollars ($250).
(B)For a taxpayer that is a small business, the credit shall be in an amount equal to 50 percent of the difference between the total eligible access expenditures incurred by a taxpayer that do not exceed fifteen thousand two hundred fifty dollars ($15,250) and two hundred fifty dollars ($250).
(C)
(B)In the case of a partnership, the limitation under this paragraph shall apply with respect to the partnership and each partner. A similar rule shall apply in the case of an S corporation.
(b)For the purposes of this section, the following definitions shall apply:
(1)Eligible access expenditures has the same meaning as defined in Section 44(c) of the Internal Revenue Code Code, except that the amounts may be paid or incurred by a taxpayer other than an eligible small business.
(2)(A)Small business means a trade or business that, in the three immediately preceding taxable years, had average gross receipts, less returns and allowances reportable to this state, of less than three million five hundred thousand dollars ($3,500,000) and employed 25 or fewer full-time employees.
(B)For the purposes of this paragraph, gross receipts, less returns and allowances reportable to this state means the sum of the gross receipts from the production of business income, as defined in subdivision (a) of Section 25120, and the gross receipts from the production of nonbusiness income, as defined in subdivision (d) of Section 25120.
(C)For the purposes of this paragraph, full-time employee means an employee of the taxpayer who works at least 30 hours per week.
(D)The dollar amount specified in paragraph subparagraph (A) shall apply to the gross receipts of all taxpayers required or authorized to be included on a combined report pursuant to Section 25101 or 25101.15.
(c)In the case where the credit allowed by this section exceeds the tax, the excess may be carried over to reduce the tax in the following year, and the succeeding six years, if necessary, until the credit is exhausted.
(d)The credit allowed by this section may be claimed only on a timely filed original return of the taxpayer.
(e)In the case of a credit allowed under this section, the following shall apply:
(1)A deduction or credit shall not be allowed for that amount under any other provision of this part.
(2)An increase in the adjusted basis of any property shall not result from that amount.
(f)The Franchise Tax Board may prescribe rules, guidelines, or procedures necessary or appropriate to carry out the purposes of this section, including any guidelines regarding the substantiation of the credit allowed by this section. Chapter 3.5 (commencing with Section 11340) of Part 1 of Division 3 of Title 2 of the Government Code does not apply to any rule, guideline, or procedure prescribed by the Franchise Tax Board pursuant to this section.
(g)This section shall remain in effect only until December 1, 2023, and as of that date is repealed.
SEC. 12.The Legislature finds and declares that Sections 8 and 9 of this act, pertaining to the review and approval of development permit applications, constitute matters of statewide concern, and shall apply to charter cities and charter counties. These sections shall supersede any inconsistent provisions in the charter of any city, county, or city and county.
SEC. 13.It is the intent of the Legislature to make the findings required by Section 41 of the Revenue and Taxation Code with respect to the tax credits allowed by Sections 10 and 11 of this act.
SEC. 14.If the Commission on State Mandates determines that this act contains costs mandated by the state, reimbursement to local agencies and school districts for those costs shall be made pursuant to Part 7 (commencing with Section 17500) of Division 4 of Title 2 of the Government Code.
(a)For purposes of this part, the following definitions apply:
(1)Construction-related accessibility claim means a civil claim in a civil action with respect to a place of public accommodation, including, but not limited to, a claim brought under Section 51, 54, 54.1, or 55, based wholly or in part on an alleged violation of any construction-related accessibility standard, as defined in paragraph (6).
(2)Application for stay and early evaluation conference means an application to be filed with the court that meets the requirements of subdivision (c) of Section 55.54.
(3)Certified access specialist or CASp means any person who has been certified pursuant to Section 4459.5 of the Government Code.
(4)Meets applicable standards means the site was inspected by a CASp and determined to meet all applicable construction-related accessibility standards pursuant to paragraph (1) of subdivision (a) of Section 55.53. A site that is CASp inspected on or before the effective date of the amendments made to this section by Chapter 383 of the Statutes of 2012 means that the site meets applicable standards.
(5)Inspected by a CASp means the site was inspected by a CASp and is pending a determination by the CASp that the site meets applicable construction-related accessibility standards pursuant to paragraph (2) of subdivision (a) of Section 55.53. A site that is CASp determination pending on or before the effective date of the amendments made to this section by Chapter 383 of the Statutes of 2012 means that the site was inspected by a CASp.
(6)Construction-related accessibility standard means a provision, standard, or regulation under state or federal law requiring compliance with standards for making new construction and existing facilities accessible to persons with disabilities, including, but not limited to, any provision, standard, or regulation set forth in Section 51, 54, 54.1, or 55 of this code, Section 19955.5 of the Health and Safety Code, the California Building Standards Code (Title 24 of the California Code of Regulations), the federal Americans with Disabilities Act of 1990 (Public Law 101-336; 42 U.S.C. Sec. 12101 et seq.), and the federal Americans with Disabilities Act Accessibility Guidelines (Appendix A to Part 36 of Title 28 of the Code of Federal Regulations).
(7)Place of public accommodation has the same meaning as defined in Section 12181(7) of Title 42 of the United States Code and the federal regulations adopted pursuant to that section.
(8)Qualified defendant means a defendant in an action that includes a construction-related accessibility claim that is asserted against a place of public accommodation that met the requirements of meets applicable standards or inspected by a CASp prior to the date the defendant was served with the summons and complaint in that action. To be a qualified defendant, the defendant is not required to have been the party who hired any CASp, so long as the basis of the alleged liability of the defendant is a construction-related accessibility claim. To determine whether a defendant is a qualified defendant, the court need not make a finding that the place of public accommodation complies with all applicable construction-related accessibility standards as a matter of law. The court need only determine that the place of public accommodation has a status of meets applicable standards or inspected by a CASp.
(9)Site means a place of public accommodation.
(10)Microbusiness has the same meaning as defined in Section 14837 of the Government Code.
(b)Unless otherwise indicated, terms used in this part relating to civil procedure have the same meanings that those terms have in the Code of Civil Procedure.
SECTION 1.Section 55.32 of the Civil Code, as added by Section 5 of Chapter 383 of the Statutes of 2012, is amended to read:55.32.(a)An attorney who provides a demand letter, as defined in subdivision (a) of Section 55.3, shall do all of the following:
(1)Include the attorneys State Bar license number in the demand letter.
(2)Contemporaneously with providing the demand letter, send a copy of the demand letter to the State Bar of California by facsimile transmission at 1-415-538-2171, or by mail to 180 Howard Street, San Francisco, CA, 94105, Attention: Professional Competence.
(3)Within five business days of providing the demand letter, send a copy of the demand letter to the California Commission on Disability Access.
(b)An attorney who sends or serves a complaint, as defined in subdivision (a) of Section 55.3, shall send a copy of the complaint to the California Commission on Disability Access within five business days of sending or serving the complaint.
(c)A violation of paragraph (2) or (3) of subdivision (a) or subdivision (b) shall constitute cause for the imposition of discipline of an attorney where a copy of the complaint or demand letter is not sent to the California Commission on Disability Access within five business days, or a copy of the demand letter is not sent to the State Bar within five business days. In the event the State Bar receives information indicating that an attorney has failed to send a copy of the complaint or demand letter to the California Commission on Disability Access within five business days, the State Bar shall investigate to determine whether paragraph (3) of subdivision (a) or subdivision (b) has been violated.
(d)Notwithstanding subdivisions (a) and (b), an attorney is not required to send to the State Bar of California or the California Commission on Disability Access a copy of any subsequent demand letter or amended complaint in the same dispute following the initial demand letter or complaint, unless that subsequent demand letter or amended complaint alleges a new construction-related accessibility claim.
(e)A demand letter or complaint sent to the California Commission on Disability Access shall be for the informational purposes of Section 8299.08 of the Government Code. A demand letter received by the State Bar from either the sender or recipient of the demand letter shall be reviewed by the State Bar to determine whether subdivision (b) or (c) of Section 55.31 has been violated.
(f)(1)Commencing July 31, 2013, and annually each July 31 thereafter, the State Bar shall report to the Legislature and the Chairs of the Senate and Assembly Committees on Judiciary, both of the following with respect to demand letters received by the State Bar:
(A)The number of investigations opened to date on a suspected violation of subdivision (b) or (c) of Section 55.31.
(B)Whether any disciplinary action resulted from the investigation, and the results of that disciplinary action.
(2)A report to be submitted pursuant to this subdivision shall be submitted in compliance with Section 9795 of the Government Code.
(g)The California Commission on Disability Access shall review and report on the demand letters and complaints it receives as provided in Section 8299.08 of the Government Code.
(h)Paragraphs (2) and (3) of subdivision (a) and subdivision (b) shall not apply to a demand letter or complaint sent or filed by an attorney employed or retained by a qualified legal services project or a qualified support center, as defined in Section 6213 of the Business and Professions Code, when acting within the scope of employment in asserting a construction-related accessibility claim. The Legislature finds and declares that qualified legal services projects and support centers are extensively regulated by the State Bar of California, and that there is no evidence of any abusive use of demand letters or complaints by these organizations. The Legislature further finds that, in light of the evidence of the extraordinarily small number of construction-related accessibility cases brought by regulated legal services programs, and given the resources of those programs, exempting regulated legal services programs from the requirements of this section to report to the California Commission on Disability Access will not affect the purpose of the reporting to, and tabulation by, the commission of all other construction-related accessibility claims.
(i)This section shall become operative on January 1, 2013.
(j)This section shall remain in effect only until January 1, 2016, 2019, and as of that date is repealed, unless a later enacted statute, that is enacted before January 1, 2016, deletes or extends that date. repealed.
SEC. 2.Section 55.32 of the Civil Code, as added by Section 6 of Chapter 383 of the Statutes of 2012, is amended to read:55.32.(a)An attorney who provides a demand letter, as defined in subdivision (a) of Section 55.3, shall do all of the following:
(1)Include the attorneys State Bar license number in the demand letter.
(2)Within five business days of providing the demand letter, send a copy of the demand letter to the California Commission on Disability Access.
(b)An attorney who sends or serves a complaint, as defined in subdivision (a) of Section 55.3, shall send a copy of the complaint to the California Commission on Disability Access within five business days of sending or serving the complaint.
(c)A violation of paragraph (2) of subdivision (a) or subdivision (b) shall constitute cause for the imposition of discipline of an attorney if a copy of the demand letter or complaint is not sent to the California Commission on Disability Access within five business days. In the event the State Bar receives information indicating that an attorney has failed to send a copy of the demand letter or complaint to the California Commission on Disability Access within five business days, the State Bar shall investigate to determine whether paragraph (2) of subdivision (a) or subdivision (b) has been violated.
(d)Notwithstanding subdivisions (a) and (b), an attorney is not required to send to the California Commission on Disability Access a copy of any subsequent demand letter or amended complaint in the same dispute following the initial demand letter or complaint, unless that subsequent demand letter or amended complaint alleges a new construction-related accessibility claim.
(e)A demand letter sent to the California Commission on Disability Access shall be for the informational purposes of Section 8299.08 of the Government Code. A demand letter received by the State Bar from the recipient of the demand letter shall be reviewed by the State Bar to determine whether subdivision (b) or (c) of Section 55.31 has been violated.
(f)(1)Notwithstanding Section 10231.5 of the Government Code, on or before July 31, 2016, 2019, and annually thereafter, the State Bar shall report to the Legislature and the Chairs of the Senate and Assembly Judiciary Committees, both of the following with respect to demand letters received by the State Bar:
(A)The number of investigations opened to date on a suspected violation of subdivision (b) or (c) of Section 55.31.
(B)Whether any disciplinary action resulted from the investigation, and the results of that disciplinary action.
(2)A report to be submitted pursuant to this subdivision shall be submitted in compliance with Section 9795 of the Government Code.
(g)The California Commission on Disability Access shall review and report on the demand letters and complaints it receives as provided in Section 8299.08 of the Government Code.
(h)The expiration of any ground for discipline of an attorney shall not affect the imposition of discipline for any act prior to the expiration. An act or omission that constituted cause for imposition of discipline of an attorney when committed or omitted prior to January 1, 2016, 2019, shall continue to constitute cause for the imposition of discipline of that attorney on and after January 1, 2016. 2019.
(i)Paragraph (2) of subdivision (a) and subdivision (b) shall not apply to a demand letter or complaint sent or filed by an attorney employed or retained by a qualified legal services project or a qualified support center, as defined in Section 6213 of the Business and Professions Code, when acting within the scope of employment in asserting a construction-related accessibility claim. The Legislature finds and declares that qualified legal services projects and support centers are extensively regulated by the State Bar of California, and that there is no evidence of any abusive use of demand letters or complaints by these organizations. The Legislature further finds that, in light of the evidence of the extraordinarily small number of construction-related accessibility cases brought by regulated legal services programs, and given the resources of those programs, exempting regulated legal services programs from the requirements of this section to report to the California Commission on Disability Access will not affect the purpose of the reporting to, and tabulation by, the commission of all other construction-related accessibility claims.
(j)This section shall become operative on January 1, 2016. 2019.
SEC. 2.SEC. 3.Section 55.535 is added to the Civil Code, immediately following Section 55.53, to read:55.535.(a)(1)A business shall not be liable A business, prior to the initiation of litigation, receipt of a demand letter, or that is otherwise on notice of a violation of a construction-related accessibility standard prior to a CASp inspection, shall not be liable for minimum statutory damages for violating a construction-related liability standard standard, as defined in Section 55.52, that is noted in the CASp report if the business is an inspected by a CASp site and the alleged the violation is corrected within 90 days of the date of the written inspection report required pursuant to subdivision (a) of Section 55.53. CASp inspection.
(2)A business
(b)A small business, as that term is defined in subparagraph (B) of paragraph (2) of subdivision (f) of Section 55.56, shall not be liable for minimum statutory damages for a violation of violating a construction-related accessibility standard if the both of the following conditions are met:
(1)The alleged violation is a minor matter and is corrected within 30 days of the service of a summons and complaint asserting a construction-related accessibility claim or receipt of a written notice, whichever is earlier. For the purposes of this paragraph, minor matter shall be limited to a violation concerning concerns interior and or exterior signage, the color and or condition of parking lot paint striping, and or truncated domes.
(b)For the purposes of the period provided for in paragraph (2) of subdivision (a), a written notice shall be deemed received when it is delivered to the business premises.
(2)The violation is corrected within 15 days of the service of a summons and complaint asserting a construction-related accessibility claim or receipt of a written notice, whichever is earlier.
SEC. 3.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.
(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 defendants 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 defendants knowledge, there were no modifications or alterations that impacted compliance with construction-related accessibility standards with respect to the plaintiffs 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 defendants knowledge, there were no modifications or alterations that impacted compliance with respect to the plaintiffs 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 defendants knowledge, there were no modifications or alterations that affected compliance with respect to the plaintiffs 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 defendants 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 201112 Regular Session of the Legislature. Nothing in this subdivision is intended to affect a complaint filed before that date.
(g)Notwithstanding any other law, including, but not limited to, Sections 52 and 54.3, a defendant in a construction-related accessibility claim against a place of public accommodation shall not be liable for statutory damages for more than one offense if the site is a microbusiness, as that term is defined in paragraph (10) of subdivision (a) of Section 55.52, and the defendant has corrected the violation prior to the filing of the lawsuit.
(h)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, nor alter any legal obligation of a party to mitigate damages.
(i)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 plaintiffs conduct in light of the plaintiffs obligation, if any, to mitigate damages.
SEC. 4.Section 1938.5 is added to the Civil Code, to read:1938.5.A commercial property owner or lessor shall state on every lease form or rental agreement executed on or after January 1, 2016, that, pursuant to Section 36.201 of Title 28 of the Code of Federal Regulations, the owner or lessor and the tenant are both responsible for compliance with the Americans with Disabilities Act (42 U.S.C. Sec. 12101 et seq.) and that responsibility for compliance may be allocated between the parties by the terms of the lease or other contract.
SEC. 5.Section 4459.7 of the Government Code is amended to read:4459.7.(a)(1)No later than October 31 of each year, the State Architect shall publish and make available to the public both a list of certified access specialists who have met the requirements of Section 4459.5. This list
(2)The State Architect shall publish an easily accessible list of businesses which have been inspected by a certified access specialist on or after January 1, 2016, including the date of the inspection. The State Architect shall periodically update this list.
(3)The lists required pursuant to this section shall include a written disclaimer of liability as specified in subdivision (b).
(b)Notwithstanding any other provision of law, a state agency or employee of a state agency may not be held liable for any injury or damages resulting from any service provided by a certified access specialist whose name appears on the list published pursuant to subdivision (a).
(c)The State Architect may perform periodic audits of work performed by a certified access specialist as deemed necessary to ensure the desired standard of performance. A certified access specialist shall provide an authorized representative of the State Architect with complete access, at any reasonable hour of the day, to all technical data, reports, records, photographs, design outlines and plans, and files used in building inspection and plan review, with the exception of proprietary and confidential information.
SEC. 5.SEC. 6.Section 4459.8 of the Government Code is amended to read:4459.8.(a)The certification authorized by Section 4459.5 is effective for three years from the date of initial certification and expires if not renewed. The State Architect, upon consideration of any factual complaints regarding the work of a certified access specialist or of other relevant information, may suspend certification or deny renewal of certification.
(b)(1)The State Architect shall require each applicant for certification as a certified access specialist to do the following:
(A)Pay fees, including an application and course fee and an examination fee, at a level sufficient to meet the costs of application processing, registration, publishing a list, and other activities that are reasonably necessary to implement and administer the certified access specialist program.
(B)Provide to the State Architect information about the name of the city, county, or city and county in which the applicant intends to provide services.
(2)The State Architect shall require each applicant for renewal of certification to do the following:
(A)Pay a fee sufficient to cover the reasonable costs of reassessing qualifications of renewal applicants.
(B)Provide to the State Architect information about the name of the city, county, or city and county in which the applicant has provided services since the last day of certification by the State Architect.
(3)The State Architect shall periodically review its schedule of fees to ensure that its fees for certification are not excessive while covering the costs to administer the certified access specialist program. The application fee for a California licensed architect, landscape architect, civil engineer, or structural engineer shall not exceed two hundred fifty dollars ($250).
(c)All fees collected pursuant to this section shall be deposited into the Certified Access Specialist Fund, which is hereby created in the State Treasury. Notwithstanding Section 13340, this fund is continuously appropriated without regard to fiscal years for use by the State Architect to implement Sections 4459.5 to 4459.8, inclusive.
(d)The State Architect shall post on his or her Internet Web site information about the name of the city, county, or city and county in which each certified access specialist provides or intends to provide services.
SEC. 6.SEC. 7.Section 8299.06 of the Government Code is amended to read:8299.06.(a)A priority of the commission shall be the development and dissemination of educational materials and information to promote and facilitate disability access compliance.
(b)The commission shall work with other state agencies, including the Division of the State Architect and the Department of Rehabilitation, to develop educational materials and information for use by businesses to understand its obligations to provide disability access and to facilitate compliance with construction-related accessibility standards.
(c)The commission shall develop and make available on its Internet Web site, or make available on its Internet Web site if developed by another governmental agency, including Americans with Disabilities Act centers, toolkits or educational modules to assist a California business to understand its obligations under the law and to facilitate compliance with respect to the top 10 alleged construction-related violations, by type, as specified in subdivision (a) of Section 8299.08. Upon completion of this requirement, the commission shall develop and make available on its Internet Web site, or work with another agency to develop, other toolkits or educational modules that would educate businesses of the accessibility requirements and to facilitate compliance with that requirement.
(d)The commission shall post the following on its Internet Web site:
(1)Educational materials and information that will assist building owners, tenants, building officials, and building inspectors to understand the disability accessibility requirements and to facilitate compliance with disability access laws. The commission shall at least annually review the educational materials and information on disability access requirements and compliance available on the Internet Web site of other local, state, or federal agencies, including Americans with Disabilities Act centers, to augment the educational materials and information developed by the commission.
(2)A link to the Internet Web site of the Division of the State Architects Certified Access Specialist (CASp) Program certified access specialist (CASp) program to assist building owners and tenants in locating or hiring a CASp.
(e)The commission shall, to the extent feasible, coordinate with other state agencies and local building departments to ensure that information provided to the public on disability access requirements is uniform and complete, and make its educational materials and information available to those agencies and departments.
SEC. 7.SEC. 8.Section 65941.6 is added to the Government Code, to read:65941.6.(a)Each local agency shall develop materials relating to the requirements of the Americans with Disabilities Act (42 U.S.C. Sec. 12101 et seq.). The local agency shall provide these materials to an applicant along with notice that approval of a permit does not signify that the applicant has complied with the Americans with Disabilities Act.
(b)For the purposes of complying with the requirements of subdivision (a), a local agency may, in lieu of developing its own materials, provide applicants with those materials which the California Commission on Disability Access has developed and made available pursuant to Section 8299.06.
SEC. 8.SEC. 9.Article 4 (commencing with Section 65946) is added to Chapter 4.5 of Division 1 of Title 7 of the Government Code, to read:4.Expedited Review65946.(a)For the purposes of this section, the following definitions shall apply:
(1)Certified access specialist or CASp means any person who has been certified pursuant to Section 4459.5.
(2)Construction-related accessibility standard means a provision, standard, or regulation under state or federal law requiring compliance with standards for making new construction and existing facilities accessible to persons with disabilities, including, but not limited to, any provision, standard, or regulation set forth in Section 51, 54, 54.1, or 55 of the Civil Code, Section 19955.5 of the Health and Safety Code, the California Building Standards Code (Title 24 of the California Code of Regulations), the federal Americans with Disabilities Act of 1990 (Public Law 101-336; 42 U.S.C. Sec. 12101 et seq.), and the federal Americans with Disabilities Act Accessibility Guidelines (Appendix A to Part 36 of Title 28 of the Code of Federal Regulations).
(3)Meets applicable standards means the site was inspected by a CASp and determined to meet all applicable construction-related accessibility standards pursuant to paragraph (1) of subdivision (a) of Section 55.53.
(4)Place of public accommodation has the same meaning as defined in Section 12181(7) of Title 42 of the United States Code and the federal regulations adopted pursuant to that section.
(5)Site means a place of public accommodation.
(6)
(3)Written inspection report means the CASp report required to be provided pursuant to subdivision (a) of Section 55.53 of the Civil Code.
(b)A local agency shall expedite review of a project application if the applicant project applicant meets all of the following conditions:
(1)The applicant provides a written inspection report copy of a disability access inspection certificate, provided by a CASp indicating that the project is a site that meets applicable standards. pursuant to subdivision (e) of Section 55.53 of the Civil Code, pertaining to the site of the proposed project.
(2)The applicant demonstrates that the proposed project is necessary to address either an alleged violation of a construction-related accessibility standard or a violation noted in a written inspection report.
(3)If project plans are necessary for the approval of a project, the applicant has had a CASp review the project plans for compliance with all applicable construction-related accessibility standards.
SEC. 9.SEC. 10.Section 17053.43 is added to the Revenue and Taxation Code, to read:17053.43.(a)(1)For each taxable year beginning on or after January 1, 2016, and before January 1, 2023, there shall be allowed to a taxpayer a credit against the net tax, as defined in Section 17039, for the amount paid or incurred for eligible access expenditures in excess of two hundred fifty dollars ($250).
(2)(A)Except as specified in subparagraph (B), the credit shall be in an amount equal to 50 percent of the difference between the total eligible access expenditures incurred by a taxpayer that do not exceed ten thousand two hundred fifty dollars ($10,250) and two hundred fifty dollars ($250).
(B)For a taxpayer that is a microbusiness, small business, the credit shall be in an amount equal to the amount calculated pursuant to subparagraph (A), plus an additional five thousand dollars ($5,000). 50 percent of the difference between the total eligible access expenditures incurred by a taxpayer that do not exceed fifteen thousand two hundred fifty dollars ($15,250) and two hundred fifty dollars ($250).
(C)In the case of a partnership, the limitation under this paragraph shall apply with respect to the partnership and each partner. A similar rule shall apply in the case of an S corporation.
(b)For the purposes of this section, the following definitions shall apply:
(1)Eligible access expenditures has the same meaning as defined in Section 44 44(c) of the Internal Revenue Code except that the amounts may be paid or incurred by a taxpayer other than an eligible small business.
(2)Microbusiness has the same meaning as defined in Section 14837 of the Government Code.
(2)(A)Small business means a trade or business that, in the three immediately preceding taxable years, had average gross receipts, less returns and allowances reportable to this state, of less than three million five-hundred thousand dollars ($3,500,000) and employed 25 or fewer full-time employees.
(B)For the purposes of this paragraph, gross receipts, less returns and allowances reportable to this state means the sum of the gross receipts from the production of business income, as defined in subdivision (a) of Section 25120, and the gross receipts from the production of nonbusiness income, as defined in subdivision (d) of Section 25120.
(C)For the purposes of this paragraph, full-time employee means an employee of the taxpayer who works at least 30 hours per week.
(c)In the case where the credit allowed by this section exceeds the net tax, the excess may be carried over to reduce the net tax in the following year, and the succeeding six years, if necessary, until the credit is exhausted.
(d)The credit allowed by this section may be claimed only on a timely filed original return of the taxpayer.
(e)In the case of a credit allowed under this section, the following shall apply:
(1)A deduction or credit shall not be allowed for that amount under any other provision of this part.
(2)An increase in the adjusted basis of any property shall not result from that amount.
(d)
(f)The Franchise Tax Board may prescribe rules, guidelines, or procedures necessary or appropriate to carry out the purposes of this section, including any guidelines regarding the substantiation of the credit allowed by this section. Chapter 3.5 (commencing with Section 11340) of Part 1 of Division 3 of Title 2 of the Government Code does not apply to any rule, guideline, or procedure prescribed by the Franchise Tax Board pursuant to this section.
(e)
(g)This section shall remain in effect only until December 1, 2023, and as of that date is repealed.
SEC. 10.SEC. 11.Section 23643 is added to the Revenue and Taxation Code, to read:23643.(a)(1)For each taxable year beginning on or after January 1, 2016, and before January 1, 2023, there shall be allowed a credit to a taxpayer against the tax, as defined in Section 23036, for the amount paid or incurred for eligible access expenditures in excess of two hundred fifty dollars ($250).
(2)(A)Except as specified in subparagraph (B), the credit shall be in an amount equal to 50 percent of the difference between the total eligible access expenditures incurred by a taxpayer that do not exceed ten thousand two hundred fifty dollars ($10,250) and two hundred fifty dollars ($250).
(B)For a taxpayer that is a microbusiness, small business, the credit shall be in an amount equal to the amount calculated pursuant to subparagraph (A), plus an additional five thousand dollars ($5,000). 50 percent of the difference between the total eligible access expenditures incurred by a taxpayer that do not exceed fifteen thousand two hundred fifty dollars ($15,250) and two hundred fifty dollars ($250).
(C)In the case of a partnership, the limitation under this paragraph shall apply with respect to the partnership and each partner. A similar rule shall apply in the case of an S corporation.
(b)For the purposes of this section, the following definitions shall apply:
(1)Eligible access expenditures has the same meaning as defined in Section 44 44(c) of the Internal Revenue Code except that the amounts may be paid or incurred by a taxpayer other than an eligible small business.
(2)Microbusiness has the same meaning as defined in Section 14837 of the Government Code.
(2)(A)Small business means a trade or business that, in the three immediately preceding taxable years, had average gross receipts, less returns and allowances reportable to this state, of less than three million five-hundred thousand dollars ($3,500,000) and employed 25 or fewer full-time employees.
(B)For the purposes of this paragraph, gross receipts, less returns and allowances reportable to this state means the sum of the gross receipts from the production of business income, as defined in subdivision (a) of Section 25120, and the gross receipts from the production of nonbusiness income, as defined in subdivision (d) of Section 25120.
(C)For the purposes of this paragraph, full-time employee means an employee of the taxpayer who works at least 30 hours per week.
(D)The dollar amount specified in paragraph (A) shall apply to the gross receipts of all taxpayers required or authorized to be included on a combined report pursuant to Section 25101 or 25101.15.
(c)In the case where the credit allowed by this section exceeds the tax, the excess may be carried over to reduce the tax in the following year, and the succeeding six years, if necessary, until the credit is exhausted.
(d)The credit allowed by this section may be claimed only on a timely filed original return of the taxpayer.
(e)In the case of a credit allowed under this section, the following shall apply:
(1)A deduction or credit shall not be allowed for that amount under any other provision of this part.
(2)An increase in the adjusted basis of any property shall not result from that amount.
(d)
(f)The Franchise Tax Board may prescribe rules, guidelines, or procedures necessary or appropriate to carry out the purposes of this section, including any guidelines regarding the substantiation of the credit allowed by this section. Chapter 3.5 (commencing with Section 11340) of Part 1 of Division 3 of Title 2 of the Government Code does not apply to any rule, guideline, or procedure prescribed by the Franchise Tax Board pursuant to this section.
(e)
(g)This section shall remain in effect only until December 1, 2023, and as of that date is repealed.
SEC. 11.SEC. 12.The Legislature finds and declares that Sections 7 8 and 8 9 of this act, pertaining to the review and approval of development permit applications, constitute matters of statewide concern, and shall apply to charter cities and charter counties. These sections shall supersede any inconsistent provisions in the charter of any city, county, or city and county.
SEC. 12.SEC. 13.It is the intent of the Legislature to make the findings required by Section 41 of the Revenue and Taxation Code with respect to the tax credits allowed by Sections 9 10 and 10 11 of this act.
SEC. 13.SEC. 14.If the Commission on State Mandates determines that this act contains costs mandated by the state, reimbursement to local agencies and school districts for those costs shall be made pursuant to Part 7 (commencing with Section 17500) of Division 4 of Title 2 of the Government Code.
(a)Whoever denies, aids or incites a denial, or makes any discrimination or distinction contrary to Section 51, 51.5, or 51.6, is liable for each offense for the actual damages suffered by any person denied those rights and both of the following:
(1)An amount to be determined by a jury, or a court sitting without a jury, not more than three times the amount of actual damages but not less than four thousand dollars ($4,000).
(2)Attorneys fees as may be determined by the court.
(b)Whoever denies the right provided by Section 51.7 or 51.9, or aids, incites, or conspires in that denial, is liable for each offense for the actual damages suffered by any person denied that right and, in addition, the following:
(1)An amount to be determined by a jury, or a court sitting without a jury, for exemplary damages.
(2)A civil penalty of twenty-five thousand dollars ($25,000) to be awarded to the person denied the right provided by Section 51.7 in an action brought by the person denied the right, or by the Attorney General, a district attorney, or a city attorney. An action for that penalty brought pursuant to Section 51.7 shall be commenced within three years of the alleged practice.
(3)Attorneys fees as may be determined by the court.
(c)Whenever there is reasonable cause to believe that a person or group of persons is engaged in conduct of resistance to the full enjoyment of any of the rights described in this section, and that conduct is of that nature and is intended to deny the full exercise of those rights, the Attorney General, a district attorney, a city attorney, or any person aggrieved by the conduct may bring a civil action in the appropriate court by filing with it a complaint. The complaint shall contain the following:
(1)The signature of the officer, or, in his or her absence, the individual acting on behalf of the officer, or the signature of the person aggrieved.
(2)The facts pertaining to the conduct.
(3)A request for preventive relief, including an application for a permanent or temporary injunction, restraining order, or other order against the person or persons responsible for the conduct, as the complainant deems necessary to ensure the full enjoyment of the rights described in this section.
(d)Whenever an action has been commenced in a court seeking relief from the denial of equal protection of the laws under the Fourteenth Amendment to the Constitution of the United States on account of race, color, religion, sex, national origin, or disability, the Attorney General, district attorney, or city attorney for or in the name of the people of the State of California may intervene in the action upon timely application if the Attorney General, district attorney, or city attorney certifies that the case is of general public importance. In that action, the people of the State of California shall be entitled to the same relief as if it had instituted the action.
(e)Actions brought pursuant to this section are independent of any other actions, remedies, or procedures that may be available to an aggrieved party pursuant to any other law.
(f)Any person claiming to be aggrieved by an alleged unlawful practice in violation of Section 51 or 51.7 may also file a verified complaint with the Department of Fair Employment and Housing pursuant to Section 12948 of the Government Code.
(g)This section does not require any construction, alteration, repair, structural or otherwise, or modification beyond that construction, alteration, repair, or modification that is otherwise required by other provisions of law, to any new or existing establishment, facility, building, improvement, or any other structure, nor does this section augment, restrict, or alter in any way the authority of the State Architect to require construction, alteration, repair, or modifications that the State Architect otherwise possesses pursuant to other laws.
(h)For the purposes of this section, actual damages means special and general damages. This subdivision is declaratory of existing law.
(i)Subdivisions (b) to (f), inclusive, shall not be waived by contract except as provided in Section 51.7.
SEC. 2.SECTION 1.Section 55.52 of the Civil Code is amended to read:55.52.(a)For purposes of this part, the following definitions apply:
(1)Construction-related accessibility claim means a civil claim in a civil action with respect to a place of public accommodation, including, but not limited to, a claim brought under Section 51, 54, 54.1, or 55, based wholly or in part on an alleged violation of any construction-related accessibility standard, as defined in paragraph (6).
(2)Application for stay and early evaluation conference means an application to be filed with the court that meets the requirements of subdivision (c) of Section 55.54.
(3)Certified access specialist or CASp means any person who has been certified pursuant to Section 4459.5 of the Government Code.
(4)Meets applicable standards means the site was inspected by a CASp and determined to meet all applicable construction-related accessibility standards pursuant to paragraph (1) of subdivision (a) of Section 55.53. A site that is CASp inspected on or before the effective date of the amendments made to this section by Chapter 383 of the Statutes of 2012 means that the site meets applicable standards.
(5)Inspected by a CASp means the site was inspected by a CASp and is pending a determination by the CASp that the site meets applicable construction-related accessibility standards pursuant to paragraph (2) of subdivision (a) of Section 55.53. A site that is CASp determination pending on or before the effective date of the amendments made to this section by Chapter 383 of the Statutes of 2012 means that the site was inspected by a CASp.
(6)Construction-related accessibility standard means a provision, standard, or regulation under state or federal law requiring compliance with standards for making new construction and existing facilities accessible to persons with disabilities, including, but not limited to, any provision, standard, or regulation set forth in Section 51, 54, 54.1, or 55 of this code, Section 19955.5 of the Health and Safety Code, the California Building Standards Code (Title 24 of the California Code of Regulations), the federal Americans with Disabilities Act of 1990 (Public Law 101-336; 42 U.S.C. Sec. 12101 et seq.), and the federal Americans with Disabilities Act Accessibility Guidelines (Appendix A to Part 36 of Title 28 of the Code of Federal Regulations).
(7)Place of public accommodation has the same meaning as public accommodation, as set forth defined in Section 12181(7) of Title 42 of the United States Code and the federal regulations adopted pursuant to that section.
(8)Qualified defendant means a defendant in an action that includes a construction-related accessibility claim that is asserted against a place of public accommodation that met the requirements of meets applicable standards or inspected by a CASp prior to the date the defendant was served with the summons and complaint in that action. To be a qualified defendant, the defendant is not required to have been the party who hired any CASp, so long as the basis of the alleged liability of the defendant is a construction-related accessibility claim. To determine whether a defendant is a qualified defendant, the court need not make a finding that the place of public accommodation complies with all applicable construction-related accessibility standards as a matter of law. The court need only determine that the place of public accommodation has a status of meets applicable standards or inspected by a CASp.
(9)Site means a place of public accommodation.
(10)Microbusiness has the same meaning as defined in Section 14837 of the Government Code.
(b)Unless otherwise indicated, terms used in this part relating to civil procedure have the same meanings that those terms have in the Code of Civil Procedure.
SEC. 2.Section 55.535 is added to the Civil Code, immediately following Section 55.53, to read:55.535.(a)(1)A business shall not be liable for violating a construction-related liability standard if the business is an inspected by a CASp site and the alleged violation is corrected within 90 days of the date of the written inspection report required pursuant to subdivision (a) of Section 55.53.
(2)A business shall not be liable for a violation of a construction-related accessibility standard if the alleged violation is a minor matter and is corrected within 30 days of the service of a summons and complaint asserting a construction-related accessibility claim or receipt of a written notice, whichever is earlier. For the purposes of this paragraph, minor matter shall be limited to a violation concerning interior and exterior signage, the color and condition of parking lot paint striping, and truncated domes.
(b)For the purposes of the period provided for in paragraph (2) of subdivision (a), a written notice shall be deemed received when it is delivered to the business premises.
SEC. 3.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.
(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 defendants 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 defendants knowledge, there were no modifications or alterations that impacted compliance with construction-related accessibility standards with respect to the plaintiffs 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 defendants knowledge, there were no modifications or alterations that impacted compliance with respect to the plaintiffs 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 defendants knowledge, there were no modifications or alterations that affected compliance with respect to the plaintiffs 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 defendants 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 201112 Regular Session of the Legislature. Nothing in this subdivision is intended to affect a complaint filed before that date.
(g)Notwithstanding any other law, including, but not limited to, Sections 52 and 54.3, a defendant in a construction-related accessibility claim against a place of public accommodation shall not be liable for statutory damages for more than one offense if the site is a microbusiness, as that term is defined in paragraph (10) of subdivision (a) of Section 55.52, and the defendant has corrected the violation prior to the filing of the lawsuit.
(g)
(h)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, nor alter any legal obligation of a party to mitigate damages.
(h)
(i)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 plaintiffs conduct in light of the plaintiffs obligation, if any, to mitigate damages.
SEC. 4.Section 1938.5 is added to the Civil Code, to read:1938.5.A commercial property owner or lessor shall state on every lease form or rental agreement executed on or after January 1, 2016, that, pursuant to Section 36.201 of Title 28 of the Code of Federal Regulations, the owner or lessor and the tenant are both responsible for compliance with the Americans with Disabilities Act (42 U.S.C. Sec. 12101 et seq.) and that responsibility for compliance may be allocated between the parties by the terms of the lease or other contract.
SEC. 5.Section 4459.8 of the Government Code is amended to read:4459.8.(a)The certification authorized by Section 4459.5 is effective for three years from the date of initial certification and expires if not renewed. The State Architect, upon consideration of any factual complaints regarding the work of a certified access specialist or of other relevant information, may suspend certification or deny renewal of certification.
(b)(1)The State Architect shall require each applicant for certification as a certified access specialist to pay do the following:
(A)Pay fees, including an application and course fee and an examination fee, at a level sufficient to meet the costs of application processing, registration, publishing a list, and other activities that are reasonably necessary to implement and administer the certified access specialist program. The
(B)Provide to the State Architect information about the city, county, or city and county in which the applicant intends to provide services.
(2)The State Architect shall require each applicant for renewal of certification to pay do the following:
(A)Pay a fee sufficient to cover the reasonable costs of reassessing qualifications of renewal applicants.
(B)Provide to the State Architect information about the city, county, or city and county in which the applicant has provided services since the last day of certification by the State Architect.
(2)
(3)The State Architect shall periodically review its schedule of fees to ensure that its fees for certification are not excessive while covering the costs to administer the certified access specialist program. The application fee for a California licensed architect, landscape architect, civil engineer, or structural engineer shall not exceed two hundred fifty dollars ($250).
(c)All fees collected pursuant to this section shall be deposited into the Certified Access Specialist Fund, which is hereby created in the State Treasury. Notwithstanding Section 13340, this fund is continuously appropriated without regard to fiscal years for use by the State Architect to implement Sections 4459.5 to 4459.8, inclusive.
(d)The State Architect shall post on his or her Internet Web site information about the city, county, or city and county in which each certified access specialist provides or intends to provide services.
SEC. 6.Section 8299.06 of the Government Code is amended to read:8299.06.(a)A priority of the commission shall be the development and dissemination of educational materials and information to promote and facilitate disability access compliance.
(b)The commission shall work with other state agencies, including the Division of the State Architect and the Department of Rehabilitation, to develop educational materials and information for use by businesses to understand its obligations to provide disability access and to facilitate compliance with construction-related accessibility standards.
(c)The commission shall develop and make available on its Internet Web site, or make available on its Internet Web site if developed by another governmental agency, including Americans with Disabilities Act centers, toolkits or educational modules to assist a California business to understand its obligations under the law and to facilitate compliance with respect to the top 10 alleged construction-related violations, by type, as specified in subdivision (a) of Section 8299.08. Upon completion of this requirement, the commission shall develop and make available on its Internet Web site, or work with another agency to develop, other toolkits or educational modules that would educate businesses of the accessibility requirements and to facilitate compliance with that requirement.
(d)The commission shall post the following on its Internet Web site educational site:
(1)Educational materials and information that will assist building owners, tenants, building officials, and building inspectors to understand the disability accessibility requirements and to facilitate compliance with disability access laws. The commission shall at least annually review the educational materials and information on disability access requirements and compliance available on the Internet Web site of other local, state, or federal agencies, including Americans with Disabilities Act centers, to augment the educational materials and information developed by the commission.
(2)A link to the Internet Web site of the Division of the State Architects Certified Access Specialist (CASp) Program to assist building owners and tenants in locating or hiring a CASp.
(e)The commission shall, to the extent feasible, coordinate with other state agencies and local building departments to ensure that information provided to the public on disability access requirements is uniform and complete. complete, and make its educational materials and information available to those agencies and departments.
SEC. 7.Section 65941.6 is added to the Government Code, to read:65941.6.Each local agency shall develop materials relating to the requirements of the Americans with Disabilities Act (42 U.S.C. Sec. 12101 et seq.). The local agency shall provide these materials to an applicant along with notice that approval of a permit does not signify that the applicant has complied with the Americans with Disabilities Act.
SEC. 8.Article 4 (commencing with Section 65946) is added to Chapter 4.5 of Division 1 of Title 7 of the Government Code, to read:4.Expedited Review65946.(a)For the purposes of this section, the following definitions shall apply:
(1)Certified access specialist or CASp means any person who has been certified pursuant to Section 4459.5.
(2)Construction-related accessibility standard means a provision, standard, or regulation under state or federal law requiring compliance with standards for making new construction and existing facilities accessible to persons with disabilities, including, but not limited to, any provision, standard, or regulation set forth in Section 51, 54, 54.1, or 55 of the Civil Code, Section 19955.5 of the Health and Safety Code, the California Building Standards Code (Title 24 of the California Code of Regulations), the federal Americans with Disabilities Act of 1990 (Public Law 101-336; 42 U.S.C. Sec. 12101 et seq.), and the federal Americans with Disabilities Act Accessibility Guidelines (Appendix A to Part 36 of Title 28 of the Code of Federal Regulations).
(3)Meets applicable standards means the site was inspected by a CASp and determined to meet all applicable construction-related accessibility standards pursuant to paragraph (1) of subdivision (a) of Section 55.53.
(4)Place of public accommodation has the same meaning as defined in Section 12181(7) of Title 42 of the United States Code and the federal regulations adopted pursuant to that section.
(5)Site means a place of public accommodation.
(6)Written inspection report means the report required to be provided pursuant to subdivision (a) of Section 55.53 of the Civil Code.
(b)A local agency shall expedite review of a project application if the applicant provides a written inspection report provided by a CASp indicating that the project is a site that meets applicable standards.
SEC. 9.Section 17053.43 is added to the Revenue and Taxation Code, to read:17053.43.(a)(1)For each taxable year beginning on or after January 1, 2016, and before January 1, 2023, there shall be allowed to a taxpayer a credit against the net tax, as defined in Section 17039, for the amount paid or incurred for eligible access expenditures in excess of two hundred fifty dollars ($250).
(2)(A)Except as specified in subparagraph (B), the credit shall be in an amount equal to 50 percent of the difference between the total eligible access expenditures incurred by a taxpayer that do not exceed ten thousand two hundred fifty dollars ($10,250) and two hundred fifty dollars ($250).
(B)For a taxpayer that is a microbusiness, the credit shall be in an amount equal to the amount calculated pursuant to subparagraph (A), plus an additional five thousand dollars ($5,000).
(b)For the purposes of this section, the following definitions shall apply:
(1)Eligible access expenditures has the same meaning as defined in Section 44 of the Internal Revenue Code except that the amounts may be paid or incurred by a taxpayer other than an eligible small business.
(2)Microbusiness has the same meaning as defined in Section 14837 of the Government Code.
(c)In the case where the credit allowed by this section exceeds the net tax, the excess may be carried over to reduce the net tax in the following year, and the succeeding six years, if necessary, until the credit is exhausted.
(d)The Franchise Tax Board may prescribe rules, guidelines, or procedures necessary or appropriate to carry out the purposes of this section, including any guidelines regarding the substantiation of the credit allowed by this section. Chapter 3.5 (commencing with Section 11340) of Part 1 of Division 3 of Title 2 of the Government Code does not apply to any rule, guideline, or procedure prescribed by the Franchise Tax Board pursuant to this section.
(e)This section shall remain in effect only until December 1, 2023, and as of that date is repealed.
SEC. 10.Section 23643 is added to the Revenue and Taxation Code, to read:23643.(a)(1)For each taxable year beginning on or after January 1, 2016, and before January 1, 2023, there shall be allowed a credit to a taxpayer against the tax, as defined in Section 23036, for the amount paid or incurred for eligible access expenditures in excess of two hundred fifty dollars ($250).
(2)(A)Except as specified in subparagraph (B), the credit shall be in an amount equal to 50 percent of the difference between the total eligible access expenditures incurred by a taxpayer that do not exceed ten thousand two hundred fifty dollars ($10,250) and two hundred fifty dollars ($250).
(B)For a taxpayer that is a microbusiness, the credit shall be in an amount equal to the amount calculated pursuant to subparagraph (A), plus an additional five thousand dollars ($5,000).
(b)For the purposes of this section, the following definitions shall apply:
(1)Eligible access expenditures has the same meaning as defined in Section 44 of the Internal Revenue Code except that the amounts may be paid or incurred by a taxpayer other than an eligible small business.
(2)Microbusiness has the same meaning as defined in Section 14837 of the Government Code.
(c)In the case where the credit allowed by this section exceeds the tax, the excess may be carried over to reduce the tax in the following year, and the succeeding six years, if necessary, until the credit is exhausted.
(d)The Franchise Tax Board may prescribe rules, guidelines, or procedures necessary or appropriate to carry out the purposes of this section, including any guidelines regarding the substantiation of the credit allowed by this section. Chapter 3.5 (commencing with Section 11340) of Part 1 of Division 3 of Title 2 of the Government Code does not apply to any rule, guideline, or procedure prescribed by the Franchise Tax Board pursuant to this section.
(e)This section shall remain in effect only until December 1, 2023, and as of that date is repealed.
SEC. 11.The Legislature finds and declares that Sections 7 and 8 of this act, pertaining to the review and approval of development permit applications, constitute matters of statewide concern, and shall apply to charter cities and charter counties. These Sections shall supersede any inconsistent provisions in the charter of any city, county, or city and county.
SEC. 12.It is the intent of the Legislature to make the findings required by Section 41 of the Revenue and Taxation Code with respect to the tax credits allowed by Sections 9 and 10 of this act.
SEC. 13.If the Commission on State Mandates determines that this act contains costs mandated by the state, reimbursement to local agencies and school districts for those costs shall be made pursuant to Part 7 (commencing with Section 17500) of Division 4 of Title 2 of the Government Code.
(a)Whoever denies, aids or incites a denial, or makes any discrimination or distinction contrary to Section 51, 51.5, or 51.6, is liable for each and every offense for the actual damages, and any amount that may be determined by a jury, or a court sitting without a jury, up to a maximum of three times the amount of actual damage but in no case less than four thousand dollars ($4,000), and any attorneys fees that may be determined by the court in addition thereto, damages suffered by any person denied the those rights provided in Section 51, 51.5, or 51.6. and both of the following:
(1)An amount to be determined by a jury, or a court sitting without a jury, not more than three times the amount of actual damages but not less than four thousand dollars ($4,000).
(2)Attorneys fees as may be determined by the court.
(b)Whoever denies the right provided by Section 51.7 or 51.9, or aids, incites, or conspires in that denial, is liable for each and every offense for the actual damages suffered by any person denied that right and, in addition, the following:
(1)An amount to be determined by a jury, or a court sitting without a jury, for exemplary damages.
(2)A civil penalty of twenty-five thousand dollars ($25,000) to be awarded to the person denied the right provided by Section 51.7 in any an action brought by the person denied the right, or by the Attorney General, a district attorney, or a city attorney. An action for that penalty brought pursuant to Section 51.7 shall be commenced within three years of the alleged practice.
(3)Attorneys fees as may be determined by the court.
(c)Whenever there is reasonable cause to believe that any a person or group of persons is engaged in conduct of resistance to the full enjoyment of any of the rights described in this section, and that conduct is of that nature and is intended to deny the full exercise of those rights, the Attorney General, any a district attorney or attorney, a city attorney, or any person aggrieved by the conduct may bring a civil action in the appropriate court by filing with it a complaint. The complaint shall contain the following:
(1)The signature of the officer, or, in his or her absence, the individual acting on behalf of the officer, or the signature of the person aggrieved.
(2)The facts pertaining to the conduct.
(3)A request for preventive relief, including an application for a permanent or temporary injunction, restraining order, or other order against the person or persons responsible for the conduct, as the complainant deems necessary to ensure the full enjoyment of the rights described in this section.
(d)Whenever an action has been commenced in any a court seeking relief from the denial of equal protection of the laws under the Fourteenth Amendment to the Constitution of the United States on account of race, color, religion, sex, national origin, or disability, the Attorney General or any General, district attorney attorney, or city attorney for or in the name of the people of the State of California may intervene in the action upon timely application if the Attorney General or any General, district attorney attorney, or city attorney certifies that the case is of general public importance. In that action, the people of the State of California shall be entitled to the same relief as if it had instituted the action.
(e)Actions brought pursuant to this section are independent of any other actions, remedies, or procedures that may be available to an aggrieved party pursuant to any other law.
(f)Any person claiming to be aggrieved by an alleged unlawful practice in violation of Section 51 or 51.7 may also file a verified complaint with the Department of Fair Employment and Housing pursuant to Section 12948 of the Government Code.
(g)This section does not require any construction, alteration, repair, structural or otherwise, or modification of any sort whatsoever, modification beyond that construction, alteration, repair, or modification that is otherwise required by other provisions of law, to any new or existing establishment, facility, building, improvement, or any other structure, nor does this section augment, restrict, or alter in any way the authority of the State Architect to require construction, alteration, repair, or modifications that the State Architect otherwise possesses pursuant to other laws.
(h)For the purposes of this section, actual damages means special and general damages. This subdivision is declaratory of existing law.
(i)Subdivisions (b) to (f), inclusive, shall not be waived by contract except as provided in Section 51.7.
SEC. 2.Section 55.52 of the Civil Code is amended to read:55.52.(a)For purposes of this part, the following definitions apply:
(1)Construction-related accessibility claim means any a civil claim in a civil action with respect to a place of public accommodation, including, but not limited to, a claim brought under Section 51, 54, 54.1, or 55, based wholly or in part on an alleged violation of any construction-related accessibility standard, as defined in paragraph (6).
(2)Application for stay and early evaluation conference means an application to be filed with the court that meets the requirements of subdivision (c) of Section 55.54.
(3)Certified access specialist or CASp means any person who has been certified pursuant to Section 4459.5 of the Government Code.
(4)Meets applicable standards means the site was inspected by a CASp and determined to meet all applicable construction-related accessibility standards pursuant to paragraph (1) of subdivision (a) of Section 55.53. A site that is CASp inspected on or before the effective date of the amendments made to this section by Senate Bill 1186 of the 201112 Regular Session of the Legislature Chapter 383 of the Statutes of 2012 means that the site meets applicable standards.
(5)Inspected by a CASp means the site was inspected by a CASp and is pending a determination by the CASp that the site meets applicable construction-related accessibility standards pursuant to paragraph (2) of subdivision (a) of Section 55.53. A site that is CASp determination pending on or before the effective date of the amendments made to this section by Senate Bill 1186 of the 201112 Regular Session of the Legislature Chapter 383 of the Statutes of 2012 means that the site was inspected by a CASp.
(6)Construction-related accessibility standard means a provision, standard, or regulation under state or federal law requiring compliance with standards for making new construction and existing facilities accessible to persons with disabilities, including, but not limited to, any provision, standard, or regulation set forth in Section 51, 54, 54.1, or 55 of this code, Section 19955.5 of the Health and Safety Code, the California Building Standards Code (Title 24 of the California Code of Regulations), the federal Americans with Disabilities Act of 1990 (Public Law 101-336; 42 U.S.C. Sec. 12101 et seq.), and the federal Americans with Disabilities Act Accessibility Guidelines (Appendix A to Part 36 of Title 28 of the Code of Federal Regulations).
(7)Place of public accommodation has the same meaning as public accommodation, as set forth in Section 12181(7) of Title 42 of the United States Code and the federal regulations adopted pursuant to that section.
(8)Qualified defendant means a defendant in an action that includes a construction-related accessibility claim that is asserted against a place of public accommodation that met the requirements of meets applicable standards or inspected by a CASp prior to the date the defendant was served with the summons and complaint in that action. To be a qualified defendant, the defendant is not required to have been the party who hired any CASp, so long as the basis of the alleged liability of the defendant is a construction-related accessibility claim. To determine whether a defendant is a qualified defendant, the court need not make a finding that the place of public accommodation complies with all applicable construction-related accessibility standards as a matter of law. The court need only determine that the place of public accommodation has a status of meets applicable standards or inspected by a CASp.
(9)Site means a place of public accommodation.
(b)Unless otherwise indicated, terms used in this part relating to civil procedure have the same meanings that those terms have in the Code of Civil Procedure.
|
Date
|
Status
|
|---|---|
| Sep 4, 2015 | Ordered to third reading. |
| Jul 14, 2015 | From committee: Do pass and re-refer to Com. on REV. & TAX. (Ayes 10. Noes 0.) (July 14). Re-referred to Com. on REV. & TAX. |
| Jul 16, 2015 | Joint Rule 62(a) suspended. |
| Jul 16, 2015 | Joint Rule 62(a) suspended. (Ayes 51. Noes 25. Page 2398.) |
| Aug 17, 2015 | (Received at desk July 17 pursuant to JR 61(a)(10)) |
| Aug 17, 2015 | From committee: Do pass as amended and re-refer to Com. on APPR. (Ayes 9. Noes 0.) (July 16). |
| Aug 18, 2015 | Read second time and amended. Re-referred to Com. on APPR. |
| Aug 20, 2015 | From committee with author's amendments. Read second time and amended. Re-referred to Com. on APPR. |
| Aug 26, 2015 | August 26 set for first hearing. Placed on APPR. suspense file. |
| Aug 27, 2015 | Joint Rule 62(a) suspended. |
| Aug 28, 2015 | From committee: Do pass. (Ayes 17. Noes 0.) (August 27). |
| Aug 28, 2015 | Read second time. Ordered to third reading. |
| Jul 13, 2015 | From committee with author's amendments. Read second time and amended. Re-referred to Com. on JUD. |
| Sep 4, 2015 | Read third time and amended. |
| Sep 10, 2015 | In Senate. Concurrence in Assembly amendments pending. |
| Sep 10, 2015 | Read third time. Passed. Ordered to the Senate. |
| Sep 10, 2015 | Read third time. Passed. (Ayes 70. Noes 6. Page 3091.) Ordered to the Senate. |
| Sep 11, 2015 | Assembly amendments concurred in. (Ayes 40. Noes 0. Page 2751.) Ordered to engrossing and enrolling. |
| Sep 11, 2015 | Assembly amendments concurred in. (Ayes 40. Noes 0.) Ordered to engrossing and enrolling. |
| Sep 16, 2015 | Enrolled and presented to the Governor at 4:45 p.m. |
| Oct 10, 2015 | In Senate. Consideration of Governor's veto pending. |
| Oct 10, 2015 | Vetoed by the Governor. |
| Apr 25, 2016 | Last day to consider Governors veto pursuant to Joint Rule 58.5. |
| Apr 25, 2016 | Last day to consider Governor’s veto pursuant to Joint Rule 58.5. |
| May 22, 2015 | Joint Rule 62(a) suspended. |
| Feb 19, 2015 | From printer. May be acted upon on or after March 21. |
| Feb 26, 2015 | Referred to Com. on RLS. |
| May 4, 2015 | From committee with author's amendments. Read second time and amended. Re-referred to Com. on RLS. |
| May 7, 2015 | Re-referred to Coms. on JUD. and GOV. & F. |
| May 8, 2015 | Set for hearing May 12. |
| May 8, 2015 | Set for hearing May 13 in GOV. & F. pending receipt. |
| May 13, 2015 | From committee: Do pass and re-refer to Com. on GOV. & F. (Ayes 6. Noes 0. Page 982.) (May 12). Re-referred to Com. on GOV. & F. |
| May 13, 2015 | From committee: Do pass and re-refer to Com. on GOV. & F. (Ayes 6. Noes 0.) (May 12). Re-referred to Com. on GOV. & F. |
| May 19, 2015 | From committee: Do pass as amended and re-refer to Com. on APPR. (Ayes 7. Noes 0. Page 951.) (May 13). |
| May 19, 2015 | From committee: Do pass as amended and re-refer to Com. on APPR. (Ayes 7. Noes 0.) (May 13). |
| May 20, 2015 | Read second time and amended. Re-referred to Com. on APPR. |
| Feb 18, 2015 | Introduced. Read first time. To Com. on RLS. for assignment. To print. |
| May 22, 2015 | Set for hearing May 26. |
| May 26, 2015 | May 26 hearing: Placed on APPR. suspense file. |
| May 27, 2015 | Set for hearing May 28. |
| Jun 1, 2015 | From committee: Do pass as amended. (Ayes 7. Noes 0. Page 1150.) (May 28). |
| Jun 1, 2015 | From committee: Do pass as amended. (Ayes 7. Noes 0.) (May 28). |
| Jun 2, 2015 | Read second time and amended. Ordered to third reading. |
| Jun 3, 2015 | Read third time. Passed. (Ayes 40. Noes 0. Page 1297.) Ordered to the Assembly. |
| Jun 3, 2015 | Read third time. Passed. (Ayes 40. Noes 0.) Ordered to the Assembly. |
| Jun 4, 2015 | In Assembly. Read first time. Held at Desk. |
| Jun 18, 2015 | Referred to Coms. on JUD. and REV. & TAX. |
| Jul 7, 2015 | July 7 hearing postponed by committee. |
|
Date
|
Description
|
Location
|
Votes
|
|
|---|---|---|---|---|
| Sep 11, 2015 | Unfinished Business SB251 Roth Concurrence | Senate Floor |
Passed |
|
| Sep 10, 2015 | SB 251 Roth Senate Third Reading By STONE | Assembly Floor |
Passed |
|
| Aug 27, 2015 | Do pass. | Assembly Standing Committee on Appropriations |
Passed |
|
| Jul 16, 2015 | Do pass as amended and be re-referred to the Committee on [Appropriations] | Assembly Standing Committee on Revenue and Taxation |
Passed |
|
| Jul 14, 2015 | Do pass and be re-referred to the Committee on [Revenue and Taxation] | Assembly Standing Committee on Judiciary |
Passed |
|
| Jun 3, 2015 | Senate 3rd Reading SB251 Roth | Senate Floor |
Passed |
|
| May 28, 2015 | Do pass as amended | Senate Standing Committee on Appropriations |
Passed |
|
| May 26, 2015 | Placed on suspense file | Senate Standing Committee on Appropriations |
Passed |
|
| May 13, 2015 | Do pass as amended, but first amend, and re-refer to the Committee on [Appropriations] | Senate Standing Committee on Governance and Finance |
Passed |
|
| May 12, 2015 | Do pass, but first be re-referred to the Committee on [Governance and Finance] | Senate Standing Committee on Judiciary |
Passed |
This list shows positions taken on this bill by organizations on the date displayed, which is linked to the original source.
Positions by individuals are not included.
|
Organization
|
Position
|
Date
|
|---|---|---|
| American Civil Liberties Union of California | ** Against | Sep 10, 2015 |
| Apartment Association Of Orange County | ** Support | Sep 10, 2015 |
| Apartment Association, California Southern Cities | ** Support | Sep 4, 2015 |
| Associated Builders And Contractors Of California | ** Support | Sep 10, 2015 |
| CalAsian Chamber of Commerce | ** Support | Sep 10, 2015 |
| California Ambulance Association | ** Support | Sep 10, 2015 |
| California Asian Pacific Chamber Of Commerce | * Support | Jul 7, 2015 |
| California Association of Bed and Breakfast Inns | ** Support | Sep 10, 2015 |
| California Building Officials | ** Against | Sep 10, 2015 |
| California Business Properties Association | ** Support | Sep 10, 2015 |
| California Chamber Of Commerce | ** Support | Sep 10, 2015 |
| California Citizens Against Lawsuit Abuse | ** Support | Sep 10, 2015 |
| California Council Of The Blind | * Indeterminate | Jul 14, 2015 |
| California Foundation For Independent Living Centers | ** Against | Sep 10, 2015 |
| California Grocers Association | ** Support | Sep 10, 2015 |
| California Hotel and Lodging Association | ** Support | Sep 10, 2015 |
| California Landscape Contractor'S Association | * Support | Jul 14, 2015 |
| California Manufacturers And Technology Association | ** Support | Sep 10, 2015 |
| California Retailers Association | ** Support | Sep 10, 2015 |
| Californians for Disability Rights | * Against | Jul 14, 2015 |
| Camarillo Chamber of Commerce | ** Support | Sep 10, 2015 |
| Chamber of Commerce Alliance of Ventura and Santa Barbara County | * Support | Jul 14, 2015 |
| Chamber of Commerce Mountain View | ** Support | Sep 10, 2015 |
| Civil Justice Association Of California | ** Support | Sep 10, 2015 |
| Civil RIghts | * Indeterminate | May 12, 2015 |
| Coachella Chamber of Commerce | ** Support | Sep 10, 2015 |
| Coalition of Disability Access Professionals | * Indeterminate | May 12, 2015 |
| Consumer Attorneys Of California | ** Support | Sep 10, 2015 |
| Culver City Chamber of Commerce | ** Support | Sep 10, 2015 |
| Democratic Party Disabilities Caucus | * Indeterminate | May 12, 2015 |
| Designing Accessible Communities | * Against | Jul 7, 2015 |
| Disabilities Caucus of the California Democratic Party | * Against | Jul 14, 2015 |
| Disability Community | * Indeterminate | May 12, 2015 |
| Disability Rights California | ** Against | Sep 10, 2015 |
| East Bay Rental Housing Association | ** Support | Sep 10, 2015 |
| Fairfield-Suisun Chamber of Commerce | ** Support | Sep 10, 2015 |
| Family Business Association of California | * Support | Jul 14, 2015 |
| Fullerton Chamber of Commerce | ** Support | Sep 10, 2015 |
| Gilroy Chamber of Commerce | ** Support | Sep 10, 2015 |
| Greater Bakersfield Chamber of Commerce | ** Support | Sep 10, 2015 |
| Greater Fresno Area Chamber of Commerce | ** Support | Sep 4, 2015 |
| Greater Riverside Chamber of Commerce | ** Support | Sep 4, 2015 |
| Greater San Francisco Valley Chamber of Commerce | ** Support | Sep 4, 2015 |
| Indio Chamber of Commerce | ** Support | Sep 10, 2015 |
| La Quinta Chamber of Commerce | ** Support | Sep 10, 2015 |
| Legislative Committee | * Against | Jul 14, 2015 |
| Moreno Valley Chamber of Commerce | ** Support | Sep 10, 2015 |
| National Association of Theatre Owners of California | ** Support | Sep 10, 2015 |
| National Federation Of Independent Business | ** Support | Sep 10, 2015 |
| Nevada | ** Support | Sep 10, 2015 |
| Nor Cal Rental Housing Association | ** Support | Sep 10, 2015 |
| NorCal Rental Housing Association | ** Support | Sep 4, 2015 |
| North Lake Tahoe Chamber of Commerce | ** Support | Sep 4, 2015 |
| North Valley Property Owners Association | ** Support | Sep 10, 2015 |
| Orange County Business Council | ** Support | Sep 10, 2015 |
| Oxnard Chamber of Commerce | ** Support | Sep 10, 2015 |
| Page O | ** Support | Sep 4, 2015 |
| Page P | ** Support | Sep 4, 2015 |
| Page Q | ** Support | Sep 4, 2015 |
| Rancho Cordova Chamber of Commerce | ** Support | Sep 10, 2015 |
| Redondo Beach Changer of Commerce and Visitors Bureau | ** Support | Sep 10, 2015 |
| San Jose Silicon Valley Chamber of Commerce | ** Support | Sep 10, 2015 |
| Santa Ana Chamber of Commerce | ** Support | Sep 4, 2015 |
| Simi Valley Chamber of Commerce and Visitors Bureau | ** Support | Sep 10, 2015 |
| South Bay Association of Chamber of Commerce | ** Support | Sep 10, 2015 |
| South Lake Tahoe Chamber of Commerce | ** Support | Sep 10, 2015 |
| Southwest California Legislative Council | ** Support | Sep 10, 2015 |
| State Farm Automobile Insurance Company | ** Support | Sep 10, 2015 |
| State Of California Auto Dismantlers Association | ** Support | Sep 4, 2015 |
| Torrance Area Chamber of Commerce | ** Support | Sep 4, 2015 |
| United African-Asian Abilities Club | ** Against | Jun 3, 2015 |
SB 251
Page 8
|
Office of Senate Floor Analyses (916) 651-1520 Fax: (916) 327-4478 |
SB 251 |
VETO
Bill No: SB 251
Amended: 9/4/15
SENATE JUDICIARY COMMITTEE: 6-0, 5/12/15
AYES: Jackson, Anderson, Hertzberg, Leno, Monning, Wieckowski
NO VOTE RECORDED: Moorlach
SENATE GOVERNANCE & FIN. COMMITTEE: 7-0, 5/13/15
AYES: Hertzberg, Nguyen, Beall, Hernandez, Lara, Moorlach, Pavley
SENATE APPROPRIATIONS COMMITTEE: 7-0, 5/28/15
AYES: Lara, Bates, Beall, Hill, Leyva, Mendoza, Nielsen
SENATE FLOOR: 40-0, 6/3/15
AYES: Allen, Anderson, Bates, Beall, Berryhill, Block, Cannella, De León, Fuller, Gaines, Galgiani, Glazer, Hall, Hancock, Hernandez, Hertzberg, Hill, Hueso, Huff, Jackson, Lara, Leno, Leyva, Liu, McGuire, Mendoza, Mitchell, Monning, Moorlach, Morrell, Nguyen, Nielsen, Pan, Pavley, Roth, Runner, Stone, Vidak, Wieckowski, Wolk
SENATE FLOOR: 40-0, 9/11/15
AYES: Allen, Anderson, Bates, Beall, Berryhill, Block, Cannella, De León, Fuller, Gaines, Galgiani, Glazer, Hall, Hancock, Hernandez, Hertzberg, Hill, Hueso, Huff, Jackson, Lara, Leno, Leyva, Liu, McGuire, Mendoza, Mitchell, Monning, Moorlach, Morrell, Nguyen, Nielsen, Pan, Pavley, Roth, Runner, Stone, Vidak, Wieckowski, Wolk
ASSEMBLY FLOOR: 70-6, 9/10/15 - See last page for vote
SUBJECT: Disability access: civil rights: income tax credit
SOURCE: California Chamber of Commerce
Consumer Attorneys of California
DIGEST: This bill makes various changes to the law as it pertains to construction-related accessibility claims.
Existing law:
Provides, under the Americans with Disabilities Act, that no individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation by any person who owns, leases, or leases to, or operates a place of public accommodation. (42 U.S.C. Sec. 12182.)
Declares, under 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, and provides that a violation of the ADA also constitutes a violation of state law. (Civ. Code Sec. 51 et seq.)
Requires the State Architect to establish the Certified Access Specialist (CASp) Program and develop the specified criteria to have a person qualify as a CASp. (Gov. Code Sec. 4459.5 ; Civ. Code Sec. 55.52.)
Prohibits a demand letter from including a request or demand for money or an offer or agreement to accept money. (Civ. Code Sec. 55.31.)
Provides that statutory damages may be recovered if the plaintiff was denied full and equal access to the place of public accommodation, as specified. (Civ. Code Sec. 55.56.)
Reduces a defendant’s minimum liability for statutory damages to $1,000 for each unintentional offense if the defendant has had a CASp inspection. (Civ. Code Sec. 55.56(f)(1).)
Reduces a defendant’s minimum liability for statutory damages to $2,000 if the defendant has corrected all violations, as specified, within 30 days of being served with the complaint and the defendant is a small business, as defined. (Civ. Code Sec. 55.56(f)(2).)
This bill:
Establishes a presumption that certain "technical violations" are presumed to not cause a person difficulty, discomfort or embarrassment for the purpose of an award of minimum statutory damages in a construction-related accessibility claim, where the defendant is a small business, the defendant has corrected, within 15 days of the service of a summons and complaint asserting a construction-related accessibility claim or receipt of a written notice, whichever is earlier, all of the technical violations that are the basis of the claim, and the claim is based on one or more of the following violations:
Interior signs, other than directional signs or signs that identify the location of accessible elements, facilities, or features, when all such elements, facilities or features are accessible;
The lack of exterior signs, other than parking signs and, directional signs (including, signs that indicate the location of accessible pathways or entrance and exit doors when not all pathways, entrance and exit doors are accessible);
The order in which parking signs are placed or the exact location or wording of parking signs, provided that the parking sign is clearly visible and indicates the location of accessible parking and van-accessible parking;
The color of parking signs, provided that the color of the background contrasts with the color of the information on the sign;
The color of parking lot striping, provided that it exists and provides sufficient contrast with the surface upon which it is applied is reasonably visible;
Faded, chipped, damaged or deteriorated paint in otherwise fully compliant parking spaces and passenger access aisles in parking lots, provided that it indicates the required dimensions of a parking space or access aisle in a manner that is reasonably visible; or
The presence or condition of detectable warning surfaces on ramps, except where the ramp is part of a pedestrian path of travel that intersects with a vehicular lane or other hazardous area.
States that the above presumption affects the plaintiff’s burden of proof and is rebuttable by a preponderance of the evidence showing that the plaintiff did, in fact, experience difficulty, discomfort, or embarrassment on the particular occasion as a result of one or more of the technical violations listed in 1) above.
Protects certain businesses from liability for minimum statutory damages in a construction-related accessibility claim made during the 120 day period after the business obtains an inspection of its premises by a CASp, under specified conditions.
Makes a number of related technical and enabling changes to the law.
Adds chaptering language to avoid a conflict with AB 1521 (Judiciary Committee) of the current legislative session.
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 ADA in 1990, the state made a violation of the ADA also a violation of Section 54 or 54.1A violation of the ADA also constitutes a violation of California’s Unruh Civil Rights Act, either of which subject a person to actual damages incurred by an injured party, plus treble actual damages, but in no event less than $4,000.
The California Legislature has taken further steps to ensure disability access laws are complied with. SB 262 (Kuehl, Chapter 872, Statutes of 2003) established in the Division of the State Architect, a voluntary “access specialist certification program” in order to assist business and property owners in complying with ADA and state access laws. Since that time, several bills have been introduced that 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 2012, Senators Steinberg and Dutton authored SB 1186 (Chapter 383, Statutes of 2012) which sought to comprehensively address continued issues with disability litigation. 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.
This bill, seeking to further promote compliance among small businesses by allowing a business owner 90 days from the date of a CASp inspection to fix violations before being subject to liability, also protects small businesses from liability for certain violations if the business corrected the violation within 15 days of receiving notice of the potential violation. This bill also creates tax incentives for businesses to correct violations, and requires the State Architect and the California Commission on Disability Compliance to post specified information to their respective Web sites for the purpose of educating the public on disability access laws.
FISCAL EFFECT: Appropriation: No Fiscal Com.: Yes Local: Yes
According to the Assembly Appropriations Committee:
The Franchise Tax Board estimates General Fund revenue losses of $250,000 in 2015-16, $450,000 in 2016-17, and $500,000 in 2017-18 and until the tax credit expires.
Minor ongoing costs ($20,000) to the State Architect associated with updating the existing CASp database to provide a mechanism to capture the required information, developing a process and form documents for the new notice requirements. The requirement to collect and post the service locations of CASps is a minor and absorbable cost, as the State Architect already collects and posts this information on a voluntary basis.
Potential significant ongoing state-reimbursable General Fund costs for local building departments to provide expedited review for qualifying permit applications.
California Chamber of Commerce (co-source)
Consumer Attorneys of California (co-source)
Apartment Association of Orange County
Associated Builders and Contractors of California
CalAsian Chamber of Commerce
California Ambulance Association
California Association of Bed and Breakfast Inns
California Business Properties Association
California Citizens Against Lawsuit Abuse
California Grocers Association
California Hotel and Lodging Association
California Manufacturers and Technology Association
California Retailers Association
Camarillo Chamber of Commerce
Chamber of Commerce Alliance of Ventura and Santa Barbara Counties
Chamber of Commerce Mountain View
Civil Justice Association of California
Coachella Chamber of Commerce
Culver City Chamber of Commerce
East Bay Rental Housing Association
Fairfield-Suisun Chamber of Commerce
Family Business Association
Fullerton Chamber of Commerce
Gilroy Chamber of Commerce
Greater Bakersfield Chamber of Commerce
Indio Chamber of Commerce
La Quinta Chamber of Commerce
Moreno Valley Chamber of Commerce
National Association of Theatre Owners of California/Nevada
National Federation of Independent Business
Nor Cal Rental Housing Association
North Valley Property Owners Association
Orange County Business Council
Oxnard Chamber of Commerce
Rancho Cordova Chamber of Commerce
Redondo Beach Changer of Commerce and Visitors Bureau
San Jose Silicon Valley Chamber of Commerce
Santa Maria Valley Chamber of Commerce Visitors and Convention Bureau
Simi Valley Chamber of Commerce and Visitors Bureau
South Bay Association of Chamber of Commerce
South Lake Tahoe Chamber of Commerce
Southwest California Legislative Council
State Farm Automobile Insurance Company
OPPOSITION: (Verified 9/10/15)
American Civil Liberties Union of California
California Building Officials
California for Disability Rights, Inc.
California Foundation for Independent Living Centers
Disability Rights California
United African-Asian Abilities Club
ARGUMENTS IN SUPPORT: Consumer Attorneys of California writes that they are “seeking 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. …
“The current system needs improvement. People with disabilities should have full access to public accommodations. Similarly, businesses need some help in order to become compliant. SB 251 attempts to do both.”
ARGUMENTS IN OPPOSITION: Disability Rights California states that this bill protects a business from liability for violating a construction-related liability standard if that business had been inspected by a CASp and corrected the alleged violation within 120 days of receiving the CASp inspection. Disability Rights California writes in opposition to this bill, “Notice requirements are unjustified. They have repeatedly been rejected by the Legislature. Notice requirements are unworkable….Further, the advance notice requirement effectively precludes most people with disabilities from ever asserting their rights. Even if notice is properly provided, and the barriers are removed within the specified time frames, the aggrieved party is not entitled to statutory damages for the harm encountered … This is a policy the state of California should not endorse or promote.”
GOVERNOR'S VETO MESSAGE:
I am returning the following nine bills without my signature:
Assembly Bill 35
Assembly Bill 88
Assembly Bill 99
Assembly Bill 428
Assembly Bill 437
Assembly Bill 515
Assembly Bill 931
Senate Bill 251
Senate Bill 377
Each of these bills creates a new tax credit or expands an existing tax credit.
Despite strong revenue performance over the past few years, the state's budget has remained precariously balanced due to unexpected costs and the provision of new services. Now, without the extension of the managed care organization tax that I called for in special session, next year's budget faces the prospect of over $1 billion in cuts.
Given these financial uncertainties, I cannot support providing additional tax credits that will make balancing the state's budget even more difficult. Tax credits, like new spending on programs, need to be considered comprehensively as part of the budget deliberations.
ASSEMBLY FLOOR: 70-6, 9/10/15
AYES: Achadjian, Alejo, Travis Allen, Baker, Bigelow, Brough, Brown, Burke, Calderon, Campos, Chang, Chau, Chávez, Chiu, Chu, Cooley, Cooper, Dababneh, Dahle, Daly, Dodd, Eggman, Frazier, Beth Gaines, Gallagher, Cristina Garcia, Eduardo Garcia, Gatto, Gipson, Gomez, Gordon, Gray, Hadley, Harper, Roger Hernández, Holden, Irwin, Jones, Jones-Sawyer, Kim, Lackey, Levine, Linder, Lopez, Low, Maienschein, Mathis, Mayes, McCarty, Medina, Melendez, Mullin, Obernolte, O'Donnell, Olsen, Patterson, Perea, Quirk, Ridley-Thomas, Rodriguez, Salas, Santiago, Steinorth, Mark Stone, Wagner, Waldron, Wilk, Williams, Wood, Atkins
NOES: Bonilla, Gonzalez, Grove, Rendon, Thurmond, Ting
NO VOTE RECORDED: Bloom, Bonta, Nazarian, Weber
Prepared by: Nichole Rapier / JUD. / (916) 651-4113
11/4/15 14:10:47
**** END ****
SB 251
Page 8
|
Office of Senate Floor Analyses (916) 651-1520 Fax: (916) 327-4478 |
UNFINISHED BUSINESS
Bill No: SB 251
Amended: 9/4/15
SENATE JUDICIARY COMMITTEE: 6-0, 5/12/15
AYES: Jackson, Anderson, Hertzberg, Leno, Monning, Wieckowski
NO VOTE RECORDED: Moorlach
SENATE GOVERNANCE & FIN. COMMITTEE: 7-0, 5/13/15
AYES: Hertzberg, Nguyen, Beall, Hernandez, Lara, Moorlach, Pavley
SENATE APPROPRIATIONS COMMITTEE: 7-0, 5/28/15
AYES: Lara, Bates, Beall, Hill, Leyva, Mendoza, Nielsen
SENATE FLOOR: 40-0, 6/3/15
AYES: Allen, Anderson, Bates, Beall, Berryhill, Block, Cannella, De León, Fuller, Gaines, Galgiani, Glazer, Hall, Hancock, Hernandez, Hertzberg, Hill, Hueso, Huff, Jackson, Lara, Leno, Leyva, Liu, McGuire, Mendoza, Mitchell, Monning, Moorlach, Morrell, Nguyen, Nielsen, Pan, Pavley, Roth, Runner, Stone, Vidak, Wieckowski, Wolk
ASSEMBLY FLOOR: 70-6, 9/10/15 - See last page for vote
SUBJECT: Disability access: civil rights: income tax credit
SOURCE: California Chamber of Commerce
Consumer Attorneys of California
DIGEST: This bill makes various changes to the law as it pertains to construction-related accessibility claims.
Assembly Amendments expand the period of time in which certain businesses are protected from liability for minimum statutory damages after receiving a Certified Access Specialist (CASp) inspection, clarify the definition of “technical violation,” and reduce the tax credit extended to small businesses that make construction-related access improvements.
Existing law:
Provides, under the Americans with Disabilities Act, that no individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation by any person who owns, leases, or leases to, or operates a place of public accommodation. (42 U.S.C. Sec. 12182.)
Declares, under 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, and provides that a violation of the ADA also constitutes a violation of state law. (Civ. Code Sec. 51 et seq.)
Requires the State Architect to establish the CASp Program and develop the specified criteria to have a person qualify as a CASp. (Gov. Code Sec. 4459.5 ; Civ. Code Sec. 55.52.)
Prohibits a demand letter from including a request or demand for money or an offer or agreement to accept money. (Civ. Code Sec. 55.31.)
Provides that statutory damages may be recovered if the plaintiff was denied full and equal access to the place of public accommodation, as specified. (Civ. Code Sec. 55.56.)
Reduces a defendant’s minimum liability for statutory damages to $1,000 for each unintentional offense if the defendant has had a CASp inspection. (Civ. Code Sec. 55.56(f)(1).)
Reduces a defendant’s minimum liability for statutory damages to $2,000 if the defendant has corrected all violations, as specified, within 30 days of being served with the complaint and the defendant is a small business, as defined. (Civ. Code Sec. 55.56(f)(2).)
This bill:
Establishes a presumption that certain "technical violations" are presumed to not cause a person difficulty, discomfort or embarrassment for the purpose of an award of minimum statutory damages in a construction-related accessibility claim, where the defendant is a small business, the defendant has corrected, within 15 days of the service of a summons and complaint asserting a construction-related accessibility claim or receipt of a written notice, whichever is earlier, all of the technical violations that are the basis of the claim, and the claim is based on one or more of the following violations:
Interior signs, other than directional signs or signs that identify the location of accessible elements, facilities, or features, when all such elements, facilities or features are accessible;
The lack of exterior signs, other than parking signs and, directional signs (including, signs that indicate the location of accessible pathways or entrance and exit doors when not all pathways, entrance and exit doors are accessible);
The order in which parking signs are placed or the exact location or wording of parking signs, provided that the parking sign is clearly visible and indicates the location of accessible parking and van-accessible parking;
The color of parking signs, provided that the color of the background contrasts with the color of the information on the sign;
The color of parking lot striping, provided that it exists and provides sufficient contrast with the surface upon which it is applied is reasonably visible;
Faded, chipped, damaged or deteriorated paint in otherwise fully compliant parking spaces and passenger access aisles in parking lots, provided that it indicates the required dimensions of a parking space or access aisle in a manner that is reasonably visible; or
The presence or condition of detectable warning surfaces on ramps, except where the ramp is part of a pedestrian path of travel that intersects with a vehicular lane or other hazardous area.
States that the above presumption affects the plaintiff’s burden of proof and is rebuttable by a preponderance of the evidence showing that the plaintiff did, in fact, experience difficulty, discomfort, or embarrassment on the particular occasion as a result of one or more of the technical violations listed in 1) above.
Protects certain businesses from liability for minimum statutory damages in a construction-related accessibility claim made during the 120 day period after the business obtains an inspection of its premises by a CASp, under specified conditions.
Makes a number of related technical and enabling changes to the law.
Adds chaptering language to avoid a conflict with AB 1521 (Judiciary Committee) of the current legislative session.
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 ADA in 1990, the state made a violation of the ADA also a violation of Section 54 or 54.1A violation of the ADA also constitutes a violation of California’s Unruh Civil Rights Act, either of which subject a person to actual damages incurred by an injured party, plus treble actual damages, but in no event less than $4,000.
The California Legislature has taken further steps to ensure disability access laws are complied with. SB 262 (Kuehl, Chapter 872, Statutes of 2003) established in the Division of the State Architect, a voluntary “access specialist certification program” in order to assist business and property owners in complying with ADA and state access laws. Since that time, several bills have been introduced that 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 2012, Senators Steinberg and Dutton authored SB 1186 (Chapter 383, Statutes of 2012) which sought to comprehensively address continued issues with disability litigation. 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.
This bill, seeking to further promote compliance among small businesses by allowing a business owner 90 days from the date of a CASp inspection to fix violations before being subject to liability, also protects small businesses from liability for certain violations if the business corrected the violation within 15 days of receiving notice of the potential violation. This bill also creates tax incentives for businesses to correct violations, and requires the State Architect and the California Commission on Disability Compliance to post specified information to their respective Web sites for the purpose of educating the public on disability access laws.
FISCAL EFFECT: Appropriation: No Fiscal Com.: Yes Local: Yes
According to the Assembly Appropriations Committee:
The Franchise Tax Board estimates General Fund revenue losses of $250,000 in 2015-16, $450,000 in 2016-17, and $500,000 in 2017-18 and until the tax credit expires.
Minor ongoing costs ($20,000) to the State Architect associated with updating the existing CASp database to provide a mechanism to capture the required information, developing a process and form documents for the new notice requirements. The requirement to collect and post the service locations of CASps is a minor and absorbable cost, as the State Architect already collects and posts this information on a voluntary basis.
Potential significant ongoing state-reimbursable General Fund costs for local building departments to provide expedited review for qualifying permit applications.
California Chamber of Commerce (co-source)
Consumer Attorneys of California (co-source)
Apartment Association of Orange County
Associated Builders and Contractors of California
CalAsian Chamber of Commerce
California Ambulance Association
California Association of Bed and Breakfast Inns
California Business Properties Association
California Citizens Against Lawsuit Abuse
California Grocers Association
California Hotel and Lodging Association
California Manufacturers and Technology Association
California Retailers Association
Camarillo Chamber of Commerce
Chamber of Commerce Alliance of Ventura and Santa Barbara Counties
Chamber of Commerce Mountain View
Civil Justice Association of California
Coachella Chamber of Commerce
Culver City Chamber of Commerce
East Bay Rental Housing Association
Fairfield-Suisun Chamber of Commerce
Family Business Association
Fullerton Chamber of Commerce
Gilroy Chamber of Commerce
Greater Bakersfield Chamber of Commerce
Indio Chamber of Commerce
La Quinta Chamber of Commerce
Moreno Valley Chamber of Commerce
National Association of Theatre Owners of California/Nevada
National Federation of Independent Business
Nor Cal Rental Housing Association
North Valley Property Owners Association
Orange County Business Council
Oxnard Chamber of Commerce
Rancho Cordova Chamber of Commerce
Redondo Beach Changer of Commerce and Visitors Bureau
San Jose Silicon Valley Chamber of Commerce
Santa Maria Valley Chamber of Commerce Visitors and Convention Bureau
Simi Valley Chamber of Commerce and Visitors Bureau
South Bay Association of Chamber of Commerce
South Lake Tahoe Chamber of Commerce
Southwest California Legislative Council
State Farm Automobile Insurance Company
OPPOSITION: (Verified 9/10/15)
American Civil Liberties Union of California
California Building Officials
California for Disability Rights, Inc.
California Foundation for Independent Living Centers
Disability Rights California
United African-Asian Abilities Club
ARGUMENTS IN SUPPORT: Consumer Attorneys of California writes that they are “seeking 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. …
“The current system needs improvement. People with disabilities should have full access to public accommodations. Similarly, businesses need some help in order to become compliant. SB 251 attempts to do both.”
ARGUMENTS IN OPPOSITION: Disability Rights California states that this bill protects a business from liability for violating a construction-related liability standard if that business had been inspected by a CASp and corrected the alleged violation within 120 days of receiving the CASp inspection. Disability Rights California writes in opposition to this bill, “Notice requirements are unjustified. They have repeatedly been rejected by the Legislature. Notice requirements are unworkable….Further, the advance notice requirement effectively precludes most people with disabilities from ever asserting their rights. Even if notice is properly provided, and the barriers are removed within the specified time frames, the aggrieved party is not entitled to statutory damages for the harm encountered … This is a policy the state of California should not endorse or promote.”
ASSEMBLY FLOOR: 70-6, 9/10/15
AYES: Achadjian, Alejo, Travis Allen, Baker, Bigelow, Brough, Brown, Burke, Calderon, Campos, Chang, Chau, Chávez, Chiu, Chu, Cooley, Cooper, Dababneh, Dahle, Daly, Dodd, Eggman, Frazier, Beth Gaines, Gallagher, Cristina Garcia, Eduardo Garcia, Gatto, Gipson, Gomez, Gordon, Gray, Hadley, Harper, Roger Hernández, Holden, Irwin, Jones, Jones-Sawyer, Kim, Lackey, Levine, Linder, Lopez, Low, Maienschein, Mathis, Mayes, McCarty, Medina, Melendez, Mullin, Obernolte, O'Donnell, Olsen, Patterson, Perea, Quirk, Ridley-Thomas, Rodriguez, Salas, Santiago, Steinorth, Mark Stone, Wagner, Waldron, Wilk, Williams, Wood, Atkins
NOES: Bonilla, Gonzalez, Grove, Rendon, Thurmond, Ting
NO VOTE RECORDED: Bloom, Bonta, Nazarian, Weber
Prepared by: Nichole Rapier / JUD. / (916) 651-4113
9/10/15 23:25:15
**** END ****
SB 251
Page 4
SENATE THIRD READING
SB 251
(Roth)
As Amended September 4, 2015
Majority vote
SENATE VOTE: 40-0
Committee |
Votes |
Ayes |
Noes |
Judiciary |
10-0 |
Mark Stone, Weber, Wagner, Alejo, Chau, Chiu, Gallagher, Cristina Garcia, Maienschein, Thurmond |
|
Revenue & Taxation |
9-0 |
Ting, Brough, Dababneh, Gipson, Roger Hernández, Mullin, Patterson, Quirk, Wagner |
|
Appropriations |
17-0 |
Gomez, Bigelow, Bloom, Bonta, Calderon, Chang, Nazarian, Eggman, Gallagher, Eduardo Garcia, Holden, Jones, Quirk, Rendon, Wagner, Weber, Wood |
|
SUMMARY: Makes a number of changes to provide financial relief to businesses, and encourage compliance with construction-related accessibility standards so that disabled consumers can exercise their rights to fully and equally access public accommodations in the state. Specifically, in its primary provisions, this bill:
Establishes a presumption that certain "technical violations" are presumed to not cause a person difficulty, discomfort or embarrassment for the purpose of an award of minimum statutory damages in a construction-related accessibility claim, where the defendant is a small business, the defendant has corrected, within 15 days of the service of a summons and complaint asserting a construction-related accessibility claim or receipt of a written notice, whichever is earlier, all of the technical violations that are the basis of the claim, and the claim is based on one or more of the following violations:
Interior signs, other than directional signs or signs that identify the location of accessible elements, facilities, or features, when all such elements, facilities or features are accessible;
The lack of exterior signs, other than parking signs and, directional signs (including, signs that indicate the location of accessible pathways or entrance and exit doors when not all pathways, entrance and exit doors are accessible);
The order in which parking signs are placed or the exact location or wording of parking signs, provided that the parking sign is clearly visible and indicates the location of accessible parking and van-accessible parking;
The color of parking signs, provided that the color of the background contrasts with the color of the information on the sign;
The color of parking lot striping, provided that it exists and provides sufficient contrast with the surface upon which it is applied is reasonably visible;
Faded, chipped, damaged or deteriorated paint in otherwise fully compliant parking spaces and passenger access aisles in parking lots, provided that it indicates the required dimensions of a parking space or access aisle in a manner that is reasonably visible; or
The presence or condition of detectable warning surfaces on ramps, except where the ramp is part of a pedestrian path of travel that intersects with a vehicular lane or other hazardous area.
States that the above presumption affects the plaintiff’s burden of proof and is rebuttable by evidence showing, by a preponderance of the evidence, that the plaintiff did, in fact, experience difficulty, discomfort, or embarrassment on the particular occasion as a result of one or more of the technical violations listed in 1) above.
Protects a business from liability for minimum statutory damages in a construction-related accessibility claim made during the 120 day period after the business obtains an inspection of its premises by a Certified Access Specialist (CASp), allowing the business to identify and correct violations during that period, under specified conditions.
Makes a number of related technical and enabling changes to the law.
Adds chaptering language to avoid a conflict with AB 1521 (Judiciary Committee) of the current legislative session.
EXISTING LAW:
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.
Pursuant to the Unruh Civil Rights Act (Unruh), provides 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.
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.
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.
FISCAL EFFECT: According to the Assembly Appropriations Committee:
The Franchise Tax Board estimates General Fund revenue losses of $250,000 in 2015-16, $450,000 in 2016-17, and $500,000 in 2017-18 and until the tax credit expires.
Minor ongoing costs ($20,000) to the State Architect associated with updating the existing CASp database to provide a mechanism to capture the required information, developing a process and form documents for the new notice requirements. The requirement to collect and post the service locations of CASps is a minor and absorbable cost, as the State Architect already collects and posts this information on a voluntary basis.
Potential significant ongoing state-reimbursable General Fund costs for local building departments to provide expedited review for qualifying permit applications.
COMMENTS: Rebuttable presumption that certain "technical violations" do not cause a person difficulty, discomfort or embarrassment for the purpose of an award of minimum statutory damages in a construction-related accessibility claim. This bill establishes a list of "technical violations" that are presumed to not cause a person difficulty, discomfort or embarrassment for the purpose of awarding the plaintiff minimum statutory damages, where all three of the following conditions precedent are satisfied: 1) the defendant is a small business; 2) the defendant has corrected, within 15 days of the service of a summons and complaint asserting a construction-related accessibility claim or receipt of a written notice, whichever is earlier, all of the technical violations that are the basis of the claim; and 3) the claim is based on one or more of the following violations:
Interior signs, other than directional signs or signs that identify the location of accessible elements, facilities, or features, when all such elements, facilities or features are accessible.
The lack of exterior signs, other than parking signs and, directional signs (including, signs that indicate the location of accessible pathways or entrance and exit doors when not all pathways, entrance and exit doors are accessible).
The order in which parking signs are placed or the exact location or wording of parking signs, provided that the parking sign is clearly visible and indicates the location of accessible parking and van-accessible parking.
The color of parking signs, provided that the color of the background contrasts with the color of the information on the sign.
The color of parking lot striping, provided that it exists and provides sufficient contrast with the surface upon which it is applied to be reasonably visible.
Faded, chipped, damaged or deteriorated paint in otherwise fully compliant parking spaces and passenger access aisles in parking lots, provided that it indicates the required dimensions of a parking space or access aisle in a manner that is reasonably visible.
The presence or condition of detectable warning surfaces on ramps, except where the ramp is part of a pedestrian path of travel that intersects with a vehicular lane or other hazardous area.
The presumption affects the plaintiff’s burden of proof. This is appropriate because a "presumption affecting the burden of proof is a presumption established to implement some public policy other than to facilitate the determination of the particular action in which the presumption is applied." (Evidence Code Section 605.) As a practical matter, the presumption means that the plaintiff will recover no minimum statutory damages for these specific violations. However, the presumption is rebuttable, rather than conclusive. This is also appropriate because some of these conditions could, in some circumstances, cause a person difficulty, discomfort or embarrassment for the purpose of awarding the plaintiff minimum statutory damages.
Protection for businesses that employee 100 or fewer employees and obtain a CASp inspection against liability for violations of accessibility standards that occur in the 120 day period after the inspection. This bill protects a business from liability for minimum statutory damages for violations of construction-related accessibility standards during the 120 day period after the business obtains a CASp inspection of the interior, the exterior, or the entirety of the premises. The 120-day protection period only exists if specified conditions are satisfied, including that the business has employed 100 or fewer employees on average over the past three years: 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 corrected, within 120 days of the date of the inspection, all construction-related violations in the area or structure inspected by the CASp that are the basis of the claim.
This provision allows the business to identify and correct violations during that 120-day period. It does not preclude a lawsuit by a plaintiff who suffers actual damages (i.e. from an injury) on the premises of the business during the 120-day period. The provision would not impact such a plaintiff’s ability to recover those damages. Furthermore, it does not protect a business that does not correct violations on the premises during the 120-day period, providing that if the defendant fails to correct, within 120 days of the date of the inspection, all construction-related violations in the area or structure inspected by the CASp, the defendant shall not receive any reduction of minimum statutory damages. Also, a defendant is allowed to assert the reduction of minimum statutory damages set forth here only once for each area or structure inspected by a CASp.
Analysis Prepared by: Alison Merrilees / JUD. / (916) 319-2334 FN: 0002161
SB 251
Page 4
SENATE THIRD READING
SB 251
(Roth)
As Amended August 20, 2015
Majority vote
SENATE VOTE: 40-0
Committee |
Votes |
Ayes |
Noes |
Judiciary |
10-0 |
Mark Stone, Weber, Wagner, Alejo, Chau, Chiu, Gallagher, Cristina Garcia, Maienschein, Thurmond |
|
Revenue & Taxation |
9-0 |
Ting, Brough, Dababneh, Gipson, Roger Hernández, Mullin, Patterson, Quirk, Wagner |
|
Appropriations |
17-0 |
Gomez, Bigelow, Bloom, Bonta, Calderon, Chang, Nazarian, Eggman, Gallagher, Eduardo Garcia, Holden, Jones, Quirk, Rendon, Wagner, Weber, Wood |
|
SUMMARY: Makes a number of changes to provide financial relief to businesses, and encourage compliance with construction-related accessibility standards so that disabled consumers can exercise their rights to fully and equally access public accommodations in the state. Specifically, in its primary provisions, this bill:
Establishes a presumption that certain "technical violations" are presumed to not cause a person difficulty, discomfort or embarrassment for the purpose of an award of minimum statutory damages in a construction-related accessibility claim, where the defendant is a small business, the defendant has corrected, within 15 days of the service of a summons and complaint asserting a construction-related accessibility claim or receipt of a written notice, whichever is earlier, all of the technical violations that are the basis of the claim, and the claim is based on one or more of the following violations:
Interior signs, other than directional signs or signs that identify the location of accessible elements, facilities, or features, when all such elements, facilities or features are accessible;
The lack of exterior signs, other than parking signs and, directional signs (including, signs that indicate the location of accessible pathways or entrance and exit doors when not all pathways, entrance and exit doors are accessible);
The order in which parking signs are placed or the exact location or wording of parking signs, provided that the parking sign is clearly visible and indicates the location of accessible parking and van-accessible parking;
The color of parking signs, provided that the color of the background contrasts with the color of the information on the sign;
The color of parking lot striping, provided that it exists and provides sufficient contrast with the surface upon which it is applied is reasonably visible;
Faded, chipped, damaged or deteriorated paint in otherwise fully compliant parking spaces and passenger access aisles in parking lots, provided that it indicates the required dimensions of a parking space or access aisle in a manner that is reasonably visible; or
The presence or condition of detectable warning surfaces on ramps, except where the ramp is part of a pedestrian path of travel that intersects with a vehicular lane or other hazardous area.
States that the above presumption affects the plaintiff’s burden of proof and is rebuttable by evidence showing, by a preponderance of the evidence, that the plaintiff did, in fact, experience difficulty, discomfort, or embarrassment on the particular occasion as a result of one or more of the technical violations listed in 1) above.
Protects a business from liability for minimum statutory damages in a construction-related accessibility claim made during the 120 day period after the business obtains an inspection of its premises by a Certified Access Specialist (CASp), allowing the business to identify and correct violations during that period, under specified conditions.
Makes a number of related technical and enabling changes to the law.
EXISTING LAW:
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.
Pursuant to the Unruh Civil Rights Act (Unruh), provides 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.
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.
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.
FISCAL EFFECT: According to the Assembly Appropriations Committee:
The Franchise Tax Board estimates General Fund revenue losses of $250,000 in 2015-16, $450,000 in 2016-17, and $500,000 in 2017-18 and until the tax credit expires.
Minor ongoing costs ($20,000) to the State Architect associated with updating the existing CASp database to provide a mechanism to capture the required information, developing a process and form documents for the new notice requirements. The requirement to collect and post the service locations of CASps is a minor and absorbable cost, as the State Architect already collects and posts this information on a voluntary basis.
Potential significant ongoing state-reimbursable General Fund costs for local building departments to provide expedited review for qualifying permit applications.
COMMENTS: Rebuttable presumption that certain “technical violations” do not cause a person difficulty, discomfort or embarrassment for the purpose of an award of minimum statutory damages in a construction-related accessibility claim. This bill establishes a list of "technical violations" that are presumed to not cause a person difficulty, discomfort or embarrassment for the purpose of awarding the plaintiff minimum statutory damages, where all three of the following conditions precedent are satisfied: 1) the defendant is a small business; 2) the defendant has corrected, within 15 days of the service of a summons and complaint asserting a construction-related accessibility claim or receipt of a written notice, whichever is earlier, all of the technical violations that are the basis of the claim; and 3) the claim is based on one or more of the following violations:
Interior signs, other than directional signs or signs that identify the location of accessible elements, facilities, or features, when all such elements, facilities or features are accessible.
The lack of exterior signs, other than parking signs and, directional signs (including, signs that indicate the location of accessible pathways or entrance and exit doors when not all pathways, entrance and exit doors are accessible).
The order in which parking signs are placed or the exact location or wording of parking signs, provided that the parking sign is clearly visible and indicates the location of accessible parking and van-accessible parking.
The color of parking signs, provided that the color of the background contrasts with the color of the information on the sign.
The color of parking lot striping, provided that it exists and provides sufficient contrast with the surface upon which it is applied to be reasonably visible.
Faded, chipped, damaged or deteriorated paint in otherwise fully compliant parking spaces and passenger access aisles in parking lots, provided that it indicates the required dimensions of a parking space or access aisle in a manner that is reasonably visible.
The presence or condition of detectable warning surfaces on ramps, except where the ramp is part of a pedestrian path of travel that intersects with a vehicular lane or other hazardous area.
The presumption affects the plaintiff’s burden of proof. This is appropriate because a "presumption affecting the burden of proof is a presumption established to implement some public policy other than to facilitate the determination of the particular action in which the presumption is applied." (Evidence Code Section 605.) As a practical matter, the presumption means that the plaintiff will recover no minimum statutory damages for these specific violations. However, the presumption is rebuttable, rather than conclusive. This is also appropriate because some of these conditions could, in some circumstances, cause a person difficulty, discomfort or embarrassment for the purpose of awarding the plaintiff minimum statutory damages.
Protection for businesses that employee 100 or fewer employees and obtain a CASp inspection against liability for violations of accessibility standards that occur in the 120 day period after the inspection. This bill protects a business from liability for minimum statutory damages for violations of construction-related accessibility standards during the 120 day period after the business obtains a CASp inspection of the interior, the exterior, or the entirety of the premises. The 120-day protection period only exists if specified conditions are satisfied, including that the business has employed 100 or fewer employees on average over the past three years: 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 corrected, within 120 days of the date of the inspection, all construction-related violations in the area or structure inspected by the CASp that are the basis of the claim.
This provision allows the business to identify and correct violations during that 120-day period. It does not preclude a lawsuit by a plaintiff who suffers actual damages (i.e. from an injury) on the premises of the business during the 120-day period. The provision would not impact such a plaintiff’s ability to recover those damages. Furthermore, it does not protect a business that does not correct violations on the premises during the 120-day period, providing that if the defendant fails to correct, within 120 days of the date of the inspection, all construction-related violations in the area or structure inspected by the CASp, the defendant shall not receive any reduction of minimum statutory damages. Also, a defendant is allowed to assert the reduction of minimum statutory damages set forth here only once for each area or structure inspected by a CASp.
Analysis Prepared by: Alison Merrilees / JUD. / (916) 319-2334 FN: 0001662
Date of Hearing: August 26, 2015
ASSEMBLY COMMITTEE ON APPROPRIATIONS
Jimmy Gomez, Chair
SB 251
(Roth) – As Amended August 20, 2015
Policy Committee: |
Judiciary |
Vote: |
10 - 0 |
|
Revenue and Taxation |
|
9 - 0 |
|
|
|
|
Urgency: No State Mandated Local Program: Yes Reimbursable: Yes
SUMMARY:
This bill makes numerous changes to provide financial relief to small businesses with respect to construction-related accessibility litigation and to encourage compliance with construction-related accessibility standards. Specifically, this bill:
Provides, beginning on or after January 1, 2016 and before January 1, 2021, a credit under the Personal Income Tax (PIT) Law and the Corporation Tax (CT) Law to a small business equal to 10% of eligible access expenditures in excess of $250 but less than $10,250.
Defines small business, for purpose of the above, as consistent with definition in a parallel federal tax credit, i.e. one either with gross receipts of $1 million or less in the prior year or with not more than 30 full-time employees in the prior year.
Establishes a presumption that certain "technical violations," as specified, do not cause a person difficulty, discomfort, or embarrassment for the purpose of awarding minimum statutory damaged in a construction-related disability claim, if the defendant is a small business that has corrected the violations within 15 days of receipt of the claim.
Protects a business from liability for minimum statutory damages in a construction-related disability claim during the 120-day period after the business obtains in inspection, which predates the claim, by a Certified Accessibility Specialist (CASp) under specified conditions, including:
That the business employed 100 or fewer employees on average over the prior three years and
That the business corrects, within 120 days of the CASp inspection, all construction-related violations noted in the CASp's inspection report that are the bases of the claim.
Requires a CASp to file, within ten days of inspecting a business pursuant to the provisions of this bill, a specified notice with the State Architect for listing on the State Architect’s website, indicating that the CASp has inspected the business.
Requires the State Architect to do the following:
Publish and regularly update, on its website, an easily accessible list of small businesses that have filed a notice that they have obtained a CASp inspection.
Develop a process by which businesses may notify the State Architect, as specified, of an inspection by a certified access specialist.
Develop a form for businesses to notify the public that the business has obtained a CASp inspection.
Require each applicant for CASp certification and recertification to provide the State Architect with information about location (city, county) where they intend to, or have provided services, and requires the State Architect to post this information on its website.
Requires local building departments, including charter cities and counties, to develop and provide, to applicants for a building permit, materials relating to the requirements of the Americans with Disabilities Act (ADA) and a notice that approval of a permit does not signify compliance with the ADA. Agencies may, in lieu of developing their own materials, provide applicants with materials developed by the California Commission on Disability Access (CCDA).
Requires local building departments, including charter cities and counties, to expedite review of a building permit if:
The applicant provides a copy of a disability access inspection certification provided by a CASp.
The project is necessary to address either an alleged violation of a construction-related accessibility standard or a violation noted in the inspection.
The applicant has had a CASp review any project plans for compliance with construction-related accessibility standards.
Extends the sunset, from January 1, 2016 to January ,1, 2019, on the following requirements:
For attorneys to send copies of demand letters regarding violations of construction-related accessibility standards to the State Bar of California, and for the Bar to report on this information to the Legislature.
For attorneys to send copies of complaints and demand letters alleging violations of construction-related accessibility standards to the CCDA, and for the CCDA to review and report on this information to the Legislature.
FISCAL EFFECT:
The Franchise Tax Board estimates General Fund revenue losses of $250,000 in 2015-16, $450,000 in 2016-17, and $500,000 in 2017-18 and until the tax credit expires.
Minor ongoing costs ($20,000) to the State Architect associated with updating the existing CASp database to provide a mechanism to capture the required information, developing a process and form documents for the new notice requirements. The requirement to collect and post the service locations of CASps is a minor and absorbable cost, as the State Architect already collects and posts this information on a voluntary basis.
Potential significant ongoing state-reimbursable General Fund costs for local building departments to provide expedited review for qualifying permit applications.
COMMENTS:
Background and Purpose. Under the twenty-five year old federal 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. Since 1992, public accommodations in California have been required to comply with not only the ADA, but also with the state’s Unruh Act, which incorporates the ADA into its provisions and makes a violation of the ADA punishable as a violation of Unruh. All violations of Unruh are subject to statutory damages of at least $4,000 per violation, except some cases where the violation is based on a construction-related accessibility claim, in which case lower damages (a minimum of $1,000, or $2,000, depending on the circumstances of the case) apply.
There has been widespread media coverage about the problem of what has been described as "serial ADA litigation." A handful of highly litigious plaintiffs have in fact targeted small businesses, especially those without the financial resources and sophistication to challenge such lawsuits on their merits. According to data compiled by the California Commission on Disability Access, more than half (54%) of the construction-related accessibility complaints filed between 2012 and 2014 were filed by two law firms; and 46 percent of all complaints were filed by just 14 parties.
The author of this bill contends that additional tools are necessary to protect small businesses from high-frequency litigants and encourage compliance with the 25-year-old state and federal laws. The author therefore proposes a number of changes as described above to provide financial relief to businesses and encourage businesses to obtain CASp inspection and comply with construction-related accessibility standards so that disabled consumers can exercise their rights to fully and equally access public accommodations in the state.
Related Legislation. AB 1342 (Steinorth), pending in Senate Appropriations, provides funding for two new outreach positions at the CCDA, requires a commercial property owner to state on every lease form or rental agreement executed after July 1, 2016, whether or not the property being leased has undergone inspection by a CASp, and requires a commercial property owner to provide additional information to the tenant or lessor about the condition of the rented or leased property.
AB 1521 (Assembly Committee on the Judiciary), pending in Senate Judiciary, enacts new pre-filing procedures and an additional filing fee for "high-frequency litigants" and provides new tools for businesses to use when they are served with complaints alleging violations of construction-related accessibility claims.
Analysis Prepared by: Chuck Nicol / APPR. / (916) 319-2081
SB 251
Page 8
Date of Hearing: July 16, 2015
ASSEMBLY COMMITTEE ON REVENUE AND TAXATION
Philip Ting, Chair
SB 251
(Roth) – As Amended July 13, 2015
PENDING TWO-DAY FILE NOTICE WAIVER
Majority vote. Fiscal committee.
SENATE VOTE: 40-0
SUBJECT: Civil rights: disability access
SUMMARY: Provides a credit under the Personal Income Tax (PIT) Law and the Corporation Tax (CT) Law to a small business for eligible access expenditures in excess of $250 but less than $10,250. Specifically, the tax-related provisions of this bill:
Provide, beginning on or after January 1, 2016, and before January 1, 2023, a credit equal to 50% of the eligible access expenditures that are in excess of $250 but less than $10,250.
Define an “eligible access expenditure” as having the same meaning as defined in Internal Revenue Code (IRC) Section 44(c), except that the amount may be paid or incurred by a taxpayer other than an eligible small business.
Define a “small business” as a trade or business that has average gross receipts, less returns and allowances reportable to California, of less than $3.5 million and has employed 25 or fewer employees in the three immediately preceding taxable years.
Define a “full-time employee” as an employee of the taxpayer who works at least 30 hours per week.
Define “gross receipts, less returns and allowances reportable to this state” as the sum of the gross receipts from the production of business income, as defined in Revenue and Taxation Code (R&TC) Section 25120(a), and the gross receipts from the production of nonbusiness income, as defined in R&TC Section 25120(d).
Provide that the $3.5 million threshold includes the gross receipts of all taxpayers required or authorized to be included in a combined report pursuant to R&TC Section 25101 or 25101.15.
Provide that in the case of a partnership, the limitation under this bill shall apply with respect to the partnership and each partner. A similar rule shall apply in the case of an “S” corporation.
Provide that the credit may only be claimed on a timely filed original return of the taxpayer.
Provide that no credit or deduction would be allowed for the same expenses for which this credit is allowed and that the adjusted basis of property would not be increased by the amount of credit allowed.
Provide that any unused portion of the credit may be carried over to the following year, and the succeeding six year until the credit is exhausted.
Provide that the Franchise Tax Board (FTB) may prescribe rules, guidelines, or procedures necessary or appropriate to carry out the purpose of this bill.
Provide that it is the intent of the Legislature to make the findings required by R&TC Section 41.
Repeal the credit on December 1, 2023.
EXISTING FEDERAL LAW:
Allows a credit to eligible small businesses related to costs paid or incurred for complying with the Americans with Disabilities Act (ADA). An eligible small business means an electing taxpayer with either gross receipts for the preceding taxable year of $1 million or less, or not more than 30 full-time employees during the preceding taxable year. The credit is computed as 50% of the eligible access expenditures for the taxable year in excess of $250 but not more than $10,250.
Provides that eligible access expenditures must be made to enable the qualified small business to comply with the ADA requirements, including costs to remove the architectural, communication, physical, or transportation barriers of persons with disabilities. Costs also include qualified interpreters or equipment to make materials available to person with hearing impairments, costs of qualified readers or equipment to make material available to persons with visual impairments, and costs to acquire or modify equipment for persons with disabilities.
Provides that the tax credit may be used against the net tax of the taxpayer and the excess, while not refundable, is available for carryback to the immediately preceding tax year and may be carried forward to the following 20 taxable years or until exhausted. Taxpayers may not increase the adjusted basis of property or claim any deduction for eligible access expenditures that qualify for the credit.
EXISTING STATE LAW:
Allows, in modified conformity to federal law, a tax credit for the amount paid or incurred by eligible small business for the improvements to the property in order to provide access to disabled individuals of up to 50% of the eligible access expenditures for the taxable year, but not to exceed $250. The maximum allowed to a small business is $125.
Creates a Certified Access Specialists Program (CASp) designed to meet the public’s need for experienced, trained, and tested individuals who can inspect buildings and sites for compliance with applicable state and federal construction accessibility standards.
Defines a “certified access specialist” (CAS) as a person that has met the certification requirements as provided for by the State Architect
FISCAL EFFECT: The FTB estimates General Fund revenue loss of $3 million for Fiscal Year (FY) 2015-16, $7.6 million for FY 2016-17, and $10 million for FY 2017-18
COMMENTS:
Author’s Statement: The author has provided the following statement in support of this bill:
California’s higher accessibility standard and the ability for a disabled person who has been discriminated against to seek civil statutory damages has been a powerful force in making many more businesses and buildings accessible to those with disabilities. Unfortunately, small (micro) businesses are frequently unaware of ADA requirements. They move into retail or office space that has been certified as habitable by local government planning and code inspections, receiving a certificate of occupancy and believe that with this certification they are fully able to operate as a lawful enterprise. They do not discover they may have potential ADA violations until they are threatened with litigation. Many of these small businesses would, in good faith, address and remediate the ADA violations had they been educated of their responsibilities and the requirements of the law. For some businesses the potential costs of repairs, in addition to costs associated with defending a potential lawsuit to avoid litigation have forced them to close their businesses. Businesses are not utilizing a CASp to help them comply with the law as much as they should be. Part of this is businesses not being aware of the existence and purpose of certified CASps. Rather than rely solely on the court system to enforce the ADA, it is the intent of this bill to provide businesses who wish to comply fully with the law an incentive to use a CASp to find and fix their construction related violations, while protecting the ability of disabled persons who encounter discrimination to sue for compliance and damages if that business fails to fix its violations. This bill will help ensure individuals with disabilities have a full and fair opportunity to access facilities and services in California and further ensure that business owners and operators have the education and training necessary to comply with federal and state disability access law and regulation.
Arguments in Support: Consumer Attorneys of California argue that this bill seeks to balance the interest of making “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.” Proponents of this bill are open to other solutions such as an amnesty program for businesses to hire a CAS.
What Does this Bill Do: This bill contains three main provisions: (a) a rebuttable presumption that certain “technical violations” do not cause a person difficulty, discomfort, or embarrassment; (b) protection for businesses with 100 or less employees from liability from minimum statutory damages in construction-related accessibility claims, as specified, and provides 120 days to correct violations after the business has obtained an inspection of its premises by a CAS; and (c) a tax credit for specified access disability expenditures. Access disability expenditures include amounts paid to:
Remove barriers that prevent a business from being accessible to or usable by individuals with disabilities;
Provide qualified interpreters or other methods of making audio materials available to hearing-impaired individuals;
Provide qualified readers, taped texts, and other methods of making visual materials available to individuals with visual impairments; and,
Acquire or modify equipment or devices for individuals with disabilities.
Purpose of the Tax Credit: As explained by the author, the purpose of the bill is, in part, to “ensure that business owners and operators have the education and training necessary to comply with federal and state disability access law and regulation.” The author further states that “[m]any of these small businesses would, in good faith, address and remediate the ADA violations had they been educated of their responsibilities and the requirements of the law.” Despite the stated purpose, it is unclear how a tax credit for accessibility improvements would help educate business owners or help them become aware of unknown violations. Assuming that a lack of knowledge is the biggest problem, a business owner who wrongly believes himself/herself to be in compliance with the law is unlikely to utilize this credit specifically because he/she wrongly believes he/she is in compliance. A business owner is also unlikely to seek the assistance of a CAS if the business owner wrongly believes he/she is in compliance. It appears that this credit has the potential of only encouraging compliance with the law from business owners who are aware that their places of business currently violate building standards.
The possibility of helping individuals who know that they are in violation of the law also raises an interesting policy question as to whether or not the state should be subsidizing compliance. Citizens are expected to know and comply with the law, irrespective of the law’s complexity. Furthermore, a violation of law is generally accompanied by a fine or imprisonment, not a subsidy to comply.
Cost-Benefit Analysis of Improving Disability Access: Despite providing a substantial subsidy, it is unclear if the credit would have a substantial impact on increasing disability access. Business owners may decide to make disability access improvements because it is the right thing to do or in response to the risk of litigation, but business decisions are primarily driven with the goal of making a profit. To that end, improving disability access may bring in new customers that would otherwise not patronize the store, but the costs of making disability improvements would have to be outweighed by any increase in revenue that might occur from new customers. Remodeling bathrooms, adding automatic doors, making substantial modifications to the entry way of a store can all be very expensive improvements, far exceeding the $10,250 cap on qualifying expenditures. Accessibility improvements would also have to be weighed against other available opportunities to increase revenue and profit such as purchasing new software, computers, or making changes to the façade of the store to attract more customers.
Increasing the tax credit available to business owners might encourage a few businesses owners to make additional improvements but, as with any tax credit, some of the subsidy will be provided to individuals who would have made improvements because of a legal obligation. If the purpose of the bill is to educate businesses and improve accessibility, increasing penalties for violating building and accessibility standards may be more effective.
100% of Eligible Expenses: The state credit, when taken with the federal credit, provides a dollar-for-dollar reduction in income tax liability equal to 100% (50% state credit + 50% federal credit) of “eligible access expenditures.” In essence, the Federal Government and the State of California pay for almost all qualifying expenses under $10,250. As a general policy, California has almost always provided a much smaller percentage of credits than those provided by federal law. As existing law demonstrates, California provides $125 to small businesses for eligible access expenditures while the Federal Government provides $5,000. As currently drafted, not only would this bill move away from existing tax policy, it would also require California to pay more of the qualifying expenses than the Federal Government ($5,125 from the state versus $5,000 from the Federal Government) because the existing state credit of $125 is maintained. As such, the Committee may wish to reduce the credit percentage from 50% to 10%.
Tax Expenditure vs. Direct Expenditure: Existing law provides various credits, deductions, exclusions, and exemptions for particular taxpayer groups. In the late 1960s, U.S. Treasury officials began arguing that these features of the tax law should be referred to as “expenditures” since they are generally enacted to accomplish some governmental purpose and there is a determinable cost associated with each (in the form of foregone revenues). Former Federal Reserve Chairman Alan Greenspan has stated that tax expenditures are “misclassified” because they are identical to outlays. Additionally, Gregory Mankiw, who led President George W. Bush’s Council of Economic Advisers, calls expenditures “stealth spending implemented through the tax code.”1
As the Department of Finance notes in its annual Tax Expenditure Report, there are several key differences between tax expenditures and direct expenditures. First, tax expenditures are reviewed less frequently than direct expenditures once they are put in place. While this affords taxpayers greater financial predictability, it can also result in tax expenditures remaining a part of the tax code without demonstrating any public benefit. Second, there is generally no control over the amount of revenue losses associated with any given tax expenditure. The FTB estimates annual revenue losses of $10 million for this credit but the costs could be far greater. Finally, it should also be noted that, once enacted, it takes a two-thirds vote to rescind an existing tax expenditure absent a sunset date, effectively resulting in a “one-way ratchet” whereby tax expenditures can be conferred by a majority vote, but cannot be rescinded, irrespective of their cost or efficacy, without a supermajority vote. In light of these concerns, the Committee may wish to reduce the sunset date to five years.
Definition of Small Business differs from Federal Definition: This bill provides a credit to a “small business” with an average of less than $3.5 million in gross receipts and less than 25 employees in the preceding three years. The federal program defines a "small business" as having gross receipts of less than $1 million in gross receipts or a business with no more than 30 full-time employees during the preceding taxable year. Having two different definitions can create confusion among taxpayers. The small business definition found in this bill was chosen because the author is attempting to aid small businesses that may be subject to statutory damages under Civil Code (CC) Section 55.56. However, in order mitigate confusion among taxpayers seeking this credit, the Committee may wish to conform entirely to the federal credit and provide a 10% credit to businesses that meet the requirements of the federal definition.
California already Conforms to IRC Section 44: This bill does not specifically conform to federal law, but instead creates a standalone credit that borrows many of the definitions found in IRC Section 44. The enactment of a separate credit seems odd since California already conforms to IRC Section 44. As noted above, conformity can reduce administrative costs and confusion among taxpayers. As such, the Committee may wish to modify the state’s existing tax credit instead of creating a standalone credit.
Performance Measurement Standards: Existing law requires any bill, introduced on or after January 1, 2015, that would authorize a new credit under either the PIT Law or the CT Law to provide performance measurement standards. According to legislative findings and declarations, tax preferences represent a major exercise of government power, but face less oversight than the spending side of the budget. As a way of ensuring transparency and accountability when investing public dollars through tax credit programs, the Legislature has decided to apply performance measurement standards as a way of reviewing tax credits with the same level of scrutiny as spending programs.
This bill does not currently address requirements as provided for under Revenue and Taxation Code Section 41, but the author’s office has provided a statement specifying that this tax credit advances the public policy that a small business’ funds are better spent correcting violations than defending lawsuits. To this end, the author’s office has proposed looking at the following performance indicators:
The number of businesses statewide that claim the tax credit compared to the number of eligible businesses with construction violations;
Whether the number of businesses claiming the credit has increased from the number of businesses currently claiming the tax credit;
Within the years this tax credit is available, the number of businesses that claim the tax credit on an annual basis, with year over year increases and whether the growth, if any, is due to an increase in awareness of the ADA;
The average and median amounts claimed by businesses, the number of businesses claiming the full credit, and whether the credit offered is adequate to incentivize costly construction related improvements; and,
The average amount a business spends on accessibility improvements when claiming the credit and comparing the increase with existing enforcement measures and incentives.
Furthermore, the FTB and the State Architecture shall annually collect the following information:
The estimated number of businesses with accessibility violations;
The number of businesses that claimed the existing $250 credit and the loss to the General Fund as a result;
The number of businesses that claim this increased credit annually; and,
Information regarding the expenditures made by businesses claiming the credit.
Double Referral: This bill was double-referred to the Assembly Committee on Judiciary, which passed this bill on July 14, 2015, with a vote of 10-0. For additional discussion of disability access laws related to this bill, please refer to the analysis prepared by the Assembly Committee on Judiciary.
REGISTERED SUPPORT / OPPOSITION:
Support
Consumer Attorneys of California (Co-Sponsor)
Apartment Association, California Southern Cities
Apartment Association of Orange County
Associated Builders and Contractors of California
CalAsian Chamber of Commerce
California Chamber of Commerce
California Ambulance Association
California Association of Bed and Breakfast Inns
California Business Properties Association
California Citizens Against Lawsuit Abuse
California Grocers Association
California Hotel and Lodging Association
California Manufacturers and Technology Association
California Retailers Association
Camarillo Chamber of Commerce
Chamber of Commerce Alliance of Ventura and Santa Barbara Counties
Chamber of Commerce Mountain View
Civil Justice Association of California
Culver City Chamber of Commerce
East Bay Rental Housing Association
Fairfield-Suisun Chamber of Commerce
Family Business Association
Fullerton Chamber of Commerce
Greater Bakersfield Chamber of Commerce
Greater Fresno Area Chamber of Commerce
Greater Riverside Chamber of Commerce
Greater San Francisco Valley Chamber of Commerce
National Association of Theater Owners of California/Nevada
National Federation of Independent Business
NorCal Rental Housing Association
North Lake Tahoe Chamber of Commerce
North Valley Property Owners Association
Orange County Business Council
Oxnard Chamber of Commerce
Rancho Cordova Chamber of Commerce
Redondo Beach Chamber of Commerce and Visitors Bureau
San Jose Silicon Valley Chamber of Commerce
Santa Ana Chamber of Commerce
Santa Maria Valley Chamber of Commerce Visitor and Convention Bureau
Simi Valley Chamber of Commerce and Visitors Bureau
South Bay Association of Chamber of Commerce
South Lake Tahoe Chamber of Commerce
Southwest California Legislative Council
State of California Auto Dismantlers Association
Torrance Area Chamber of Commerce
Opposition
None on file
Analysis Prepared by: Carlos Anguiano / REV. & TAX. / (916) 319-2098
1 Ezra Klein, Wonkbook: Tax Spending vs. Government Spending, Washington Post, 2012.
SB 251
Page 16
Date of Hearing: July 14, 2015
ASSEMBLY COMMITTEE ON JUDICIARY
Mark Stone, Chair
SB 251
(Roth) – As Amended July 13, 2015
SENATE VOTE: 40-0
SUBJECT: CIVIL RIGHTS: DISABILITY ACCESS
KEY ISSUES:
Should existing state laws governing construction-related accessibility claims be modified to create a rebuttable presumption that certain specified “technical violations” of construction-related accessibility standards do not cause a person difficulty, discomfort or embarrassment for the purpose of an award of minimum statutory damages, where the defendant is a small business, the defendant has, within 15 days of the service of a summons and complaint, corrected all of the technical violations that are the basis of the claim?
Should a business with 100 or fewer employees be protected from liability for minimum statutory damages in a construction-related accessibility claim during the 120-day period after the business has obtained an inspection of its premises by a Certified access specialist, allowing the business to identify and correct violations during that period under certain conditions?
SYNOPSIS
There is no governmental entity charged with administrative or judicial enforcement of construction-related accessibility claims. 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. Unfortunately, a very small number of highly litigious plaintiffs and attorneys is abusing the law by making a practice of filing and quickly settling lawsuits from small businesses without getting the underlying access issue corrected. According to information from the California Commission on Disability Access, more than half (54%) of construction-related accessibility complaints filed between 2012 and 2014 were filed by two law firms. Forty-six percent of all complaints were filed by 14 parties. These figures indicate that the vast majority of the construction-related accessibility lawsuits filed in this state are filed by a very small number of plaintiffs. As a result, small businesses are justifiably fearful and angry about being sued, while disabled consumers, who reasonably expect businesses to be compliant with 25 year-old access laws so they can exercise their civil rights, are unfairly viewed by some businesses and policymakers with blame or suspicion.
The Legislature has frequently heard and consistently rejected the idea that people with disabilities should be required to comply with special procedural barriers not faced by others who endure discrimination before they can assert legal claims against businesses that violate their rights, and has also rejected the idea that a disabled consumer should be precluded from recovering the minimum statutory damages to which he or she is entitled if the business that has violated the disabled person’s rights, after being notified of the violation, corrects the illegal condition at some point in the future.
According to the author, the bill, which is co-sponsored by the Consumer Attorneys of California and the California Chamber of Commerce, is necessary because many small businesses remain out of compliance with longstanding state and federal disability access laws, leaving them vulnerable to lawsuits. Some of these suits, the author and supporters allege (and even some of the opponents concede), are brought by plaintiffs for personal financial benefit, not out of a desire to improve access for disabled consumers and have access barriers removed, and some of these suits are brought against businesses that are willing to comply but are hampered by the complexity of the law. Disability rights advocates have opposed prior versions of the bill, but they agree with the supporters on a number of points, including that many businesses are not in compliance with access laws despite these laws’ long-standing existence and that many lawsuits are filed, some by plaintiffs seeking monetary recovery, rather than improved access. Opponents to the prior versions of the bill argue that they have supported prior legislation to increase business awareness of access obligations, improve voluntary compliance, and reward responsible behavior and that those reforms should be furthered, not circumvented. Opponents argue that this bill, even as recently amended, singles out people with disabilities for unprecedented obstacles to the enforcement of their civil rights, deprives them of a remedy for actual violations, and will deter, rather than encourage, compliance with disability discrimination laws. Moreover, opponents of the bill 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 many of the lawsuits (in federal court) against which businesses seek protection.
The author of this bill asserts that additional tools are necessary to protect small businesses from high-frequency litigants and to encourage compliance with the 25 year-old state and federal laws. Therefore, the author proposes a number of changes to the law in this bill that provide financial relief to small businesses, and encourage compliance by businesses with construction-related accessibility standards so that disabled consumers can exercise their civil rights to fully and equally access all of the public accommodations in the state.
Specifically, in its most significant provision, this bill, as amended on July 13th, protects a business with 100 employees or less from liability for minimum statutory damages in a construction-related accessibility claim for the 120-day period after the business has obtained an inspection of its premises by a CASp, allowing the business to identify and correct violations during that period under certain conditions, including the following: 1) The structure or area of the alleged violation was the subject of an inspection report indicating “CASp determination pending” or “Inspected by a CASp”; 2) The inspection predates the filing of the claim by, or receipt of a demand letter; and 3) The defendant corrects, within 120 days of the date of the inspection, all construction-related violations in the area or structure inspected by the CASp that are noted in the CASp report and which are the basis of the claim.
As amended on July 13th, this bill also establishes a rebuttable presumption that certain “technical violations” do not cause a person difficulty, discomfort or embarrassment for the purpose of an award of minimum statutory damages in a construction-related accessibility claim, where the defendant is a small business, the defendant has, within 15 days of the service of a summons and complaint asserting a construction-related accessibility claim or receipt of a written notice, whichever is earlier, corrected all of the technical violations that are the basis of the claim, and the claim is based on a number of specified violations, such as the lack of exterior signs; the order in which parking signs are placed or the exact location or wording of parking signs; the color of parking signs; the color of parking lot striping; faded, chipped, damaged or deteriorated paint in otherwise fully compliant parking spaces and passenger access aisles in parking lots; and the presence or condition of detectable warning surfaces (also known as “truncated domes”) on ramps, except where the ramp is part of a pedestrian path of travel that intersects with a vehicular lane or other hazardous area.
Prior to the July 13th amendments, this bill was supported by a large number of business groups and opposed by a large number of civil rights and disability advocacy organizations. It is unknown at this time how the July 13th amendments to the bill, which are described in detail in this analysis, will affect the positions of the supporters and opponents. If this bill passes out of this Committee, it will be referred to the Assembly Revenue and Taxation Committee.
SUMMARY: Makes a number of changes to provide financial relief to businesses, and encourage compliance with construction-related accessibility standards so that disabled consumers can exercise their rights to fully and equally access public accommodations in the state. Specifically, this bill:
Extends until January 1, 2019 the following requirements, scheduled to sunset on January 1, 2016:
For attorneys to send copies of demand letters regarding violations of construction-related accessibility standards to the State Bar of California.
For attorneys to send copies of complaints alleging violations of construction-related accessibility standards to the California Commission on Disability Access.
For the State Bar of California to report to the Legislature various information about the complaints and demand letters it receives from attorneys.
For the California Commission on Disability Access to review and report on the demand letters and complaints it receives from attorneys.
Establishes a presumption that certain “technical violations” are presumed to not cause a person difficulty, discomfort or embarrassment for the purpose of an award of minimum statutory damages in a construction-related accessibility claim, where the defendant is a small business, the defendant has corrected, within 15 days of the service of a summons and complaint asserting a construction-related accessibility claim or receipt of a written notice, whichever is earlier, all of the technical violations that are the basis of the claim, and the claim is based on one or more of the following violations:
Interior signs, other than directional signs or signs that identify the location of accessible elements, facilities, or features, when all such elements, facilities or features are accessible;
The lack of exterior signs, other than parking signs and, directional signs (including, signs that indicate the location of accessible pathways or entrance and exit doors when not all pathways, entrance and exit doors are accessible);
The order in which parking signs are placed or the exact location or wording of parking signs, provided that the parking sign is clearly visible and indicates the location of accessible parking and van-accessible parking;
The color of parking signs, provided that the color of the background contrasts with the color of the information on the sign;
The color of parking lot striping, provided that it exists and provides sufficient contrast with the surface upon which it is applied is reasonably visible;
Faded, chipped, damaged or deteriorated paint in otherwise fully compliant parking spaces and passenger access aisles in parking lots, provided that it indicates the required dimensions of a parking space or access aisle in a manner that is reasonably visible; or
The presence or condition of detectable warning surfaces on ramps, except where the ramp is part of a pedestrian path of travel that intersects with a vehicular lane or other hazardous area.
States that the above presumption affects the plaintiff’s burden of proof and is rebuttable by evidence showing, by a preponderance of the evidence, that the plaintiff did, in fact, experience difficulty, discomfort, or embarrassment on the particular occasion as a result of one or more of the technical violations listed in 2), above.
Protects a business from liability for minimum statutory damages in a construction-related accessibility claim made during the 120 day period after the business obtains an inspection of its premises by a CASp, allowing the business to identify and correct violations during that period, under the following conditions:
The defendant is a business that has employed 100 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.
The structure or area of the alleged violation was the subject of an inspection report indicating “CASp determination pending” or “Inspected by a CASp.”
The inspection predates the filing of the claim by, or receipt of a demand letter from, the plaintiff regarding the alleged violation of a construction-related accessibility standard, and the defendant was not on notice of the alleged violation.
Within ten days of the date of the inspection, the CASp files a notice with the State Architect for listing on the State Architect’s Internet Web site, stating that the defendant has obtained a CASp inspection, the date of the filing, and the date of the inspection.
The CASp posts the notice described in (d), above, in a form prescribed by the State Architect, in a conspicuous location within five feet of all public entrances to the building on the date of the inspection and the defendant kept it in place until the earlier of the following: 120 days after the date of the inspection, or the date when all of the construction-related violations in the area or structure inspected by the CASp are corrected.
The defendant has corrected, within 120 days of the date of the inspection, all construction-related violations in the area or structure inspected by the CASp that are noted in the CASp report which are the basis of the claim.
Requires a CASp to provide, within 30 days of the date when it is requested by a qualifying business, a copy of a report prepared pursuant to the provisions described in 4), above, to the business that requested it.
Requires a CASp to file, within ten days of inspecting a business pursuant to the provisions of this bill, a notice with the State Architect for listing on the State Architect’s Internet Web site, indicating that the CASp has inspected the business, the name and address of the business, the date of the filing, the date of the inspection of the business, the name and license number of the CASp, and a description of the area or structure inspected by the CASp.
Provides that, notwithstanding any other law, a defendant who claims the benefit of the reduction of minimum statutory damages under this subdivision shall disclose the date and findings of any CASp inspection to a plaintiff if relevant to a claim or defense in an action.
Allows a defendant to assert the reduction of minimum statutory damages under this subdivision only once for each area or structure inspected by a CASp, unless the inspected area or structure has undergone modifications or alterations that affect the compliance with construction-related accessibility standards of those areas after the date of the last inspection, and the defendant obtains an additional CASp inspection within 30 days of final approval by the building department or certificate of occupancy, as appropriate, regarding the modification or alterations.
Provides that if the defendant fails to correct, within 120 days of the date of the inspection, all construction-related violations in the area or structure inspected by the CASp that are noted in the CASp report, the defendant shall not receive any reduction of minimum statutory damages (allowing a business that qualifies for reduced minimum statutory damages may receive them for violations not noted in the CASp report).
Provides an exception to 9), above, when a building permit is required for the repairs which cannot reasonably be completed by the defendant within 120 days and the defendant is in the process of correcting the violations noted in the CASp report, as evidenced by having, at least, an active building permit necessary for the repairs to correct the violation that was noted, but not corrected, in the CASp report and all of the repairs are completed within 180 days of the date of the inspection.
Requires the State Architect to do the following:
Publish and regularly update, on its existing Internet Web site, an easily accessible list of small businesses that have filed a notice that they have obtained a CASp inspection.
Develop a process by which businesses may notify the State Architect of an inspection by a certified access specialist indicating “CASp determination pending” or “Inspected by a CASp,” which shall include the date of the notification, the date of the inspection, and a description of the structure or area inspected.
Develop a form for businesses to notify the public that the business has obtained a CASp inspection, which shall include the date of the notification, the date of the inspection, and a description of the structure or area inspected.
Provides that the “area or structure inspected” by a CASp means either the interior of the premises, the exterior of the premises, or the interior and exterior of the premises.
EXISTING LAW:
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. Section 12182.)
Pursuant to the Unruh Civil Rights Act (Unruh), provides 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. (Civil Code Section 51 et seq. All further statutory references are to the California Civil Code, unless otherwise indicated.)
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. (Section 54.)
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. (Section 54.1.)
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 injunctive and actual damages – plus treble actual damages but not less than $1,000, and attorney’s fees as the court deems proper. (Section 55.)
Provides the California Commission on Disability Access (Commission), an independent state agency composed of 19 members, with general responsibility for monitoring disability access compliance in California, and with authority to make recommendations to the Legislature for necessary changes in order to facilitate implementation of state and federal laws on disability access. (Gov. Code Section 8299 et seq.)
Requires an attorney, when serving a demand letter or a complaint on a defendant alleging a construction-related accessibility claim or noncompliance, to provide a written advisory with each demand letter or complaint, as defined. The written advisory shall include information about 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. The written advisory is only required from any attorney, and not from a pro per plaintiff. (Section 55.3.)
Requires an attorney alleging the construction-related accessibility claim or noncompliance to state facts sufficient to allow the defendant to identify the basis for the claim. (Section 55.31.)
Prohibits such 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 or special damages. After receiving a duly-provided demand letter, a building owner, tenant, authorized agent or employee may request a settlement figure or specification of damages. Upon such a request, an attorney may present a settlement figure or specification of damages. (Section 55.31.)
Requires, until January 1, 2016, an attorney to submit a copy of the complaint to the Commission and the State Bar, and subjects the attorney to disciplinary action for violation. (Section 55.31.)
Requires the Commission 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. (Section 55.31)
Provides that upon being served with a complaint asserting a construction-related accessibility claim, a defendant may move for a court stay and early evaluation conference if the defendant is: (A) Until January 1, 2018, a defendant whose site had new construction or improvement between January 1, 2008, and January 1, 2016 and was approved pursuant to the local building permit and inspection process; (B) a defendant whose site had new construction or improvement that was approved by a local public building department inspector who is a CASp; or (C) a defendant who is a small business, as described. The stay to the construction-related accessibility claim, as provided, may be for 90-days unless the plaintiff has obtained temporary injunctive relief. (Section 55.54.)
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. (Section 55.54.)
Requires a local planning agency to employ or retain at least one building inspector who is a CASp a local building department to employ or retain a sufficient number of building inspectors who are CASps. (Section 55.53.)
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. (Section 55.56.)
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. (Section 55.56.)
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 reduces 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. (Section 55.56.)
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. (Section 55.56.)
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 CASp. (Section 1938.)
FISCAL EFFECT: As currently in print this bill is keyed fiscal.
COMMENTS: Under the twenty-five year old 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 are as effective as that provided to others). Government facilities are also covered by the access obligations of the ADA.
According to the California Supreme Court, “In 1992, shortly after passage of the ADA, the Legislature amended the state's disability protections ‘to strengthen California law in areas where it is weaker than the [ADA] and to retain California law when it provides more protection for individuals with disabilities than the [ADA].’ Two overlapping laws, the Unruh Civil Rights Act (§ 51) and the Disabled Persons Act (§§ 54–55.3), are the principal sources of state disability access protection.” (Jankey v. Lee (2012) 55 Cal.4th 1038, 1044 [Citation to internal quotation deleted].) As a result of incorporating the ADA into the state’s Unruh Civil Rights, a plaintiff who prevails in a construction-related accessibility claim, like all plaintiffs in other civil rights cases, is entitled to minimum statutory damages of $4,000 per violation (although later amendments to Unruh, affecting only disabled plaintiffs in only construction-related disability claims, reduced the minimum statutory damages to only $1,000 in some cases, such as when a small business previously obtained a CASp inspection).
Therefore, since 1992, public accommodations in California have been required to comply with not only the ADA, but also with the state’s Unruh Act, which incorporates the ADA into its provisions and makes a violation of the ADA punishable as a violation of Unruh. (Section 51.) All violations of Unruh are subject to statutory damages of at least $4,000 per violation, except some cases where the violation is based on a construction-related accessibility claim, in which case lower damages (a minimum of $1,000, or $2,000, depending on the circumstances of the case) apply.
Media coverage and objective data give different perspectives about the magnitude of the problem sought to be addressed by this bill. There has been widespread media coverage about the problem of what has been described as "serial ADA litigation." For example, last summer, the Modesto Bee and the Merced Sun-Star reported a series of articles, describing “how the Americans with Disabilities Act has been misused to create profit centers for opportunistic lawyers. These attorneys recruit people – some with minor disabilities, some with criminal records, some here illegally – to visit small businesses in hopes of spotting the most minute ADA violations. The lawyers then demand $4,000 for each violation.”
It is certainly true that a handful of highly litigious plaintiffs have targeted small businesses, especially those without the financial resources and sophistication to challenge such lawsuits on their merits. According to data compiled by the California Commission on Disability Access, more than half (54 percent) of the construction-related accessibility complaints filed between 2012 and 2014 were filed by two law firms; and 46 percent of all complaints were filed by just 14 parties. These figures indicate that the vast majority of all construction-related accessibility claims filed in this state are initiated by a very small number of plaintiffs (and their attorneys). As a result, small businesses are justifiably fearful and angry about being sued, while disabled consumers are viewed with blame or suspicion, even though they have a right to full and equal access and should be able to expect all public accommodations to comply with the 25-year old requirements of the Americans with Disability Act. Disabled consumers just want to go about their daily lives without difficulty, discomfort, or embarrassment, and with the basic dignity that comes from being able to go to the same places and have the same access to services as non-disabled persons. The vast majority would only resort to the extreme measure of filing a lawsuit in response to the most egregious, humiliating, and pervasive violations of their rights. It is unfair for business owners or policymakers to assume that disabled persons are somehow trying to “game the system” or take advantage of small businesses when they expect compliance with the ADA. Compliance should be something they can count on as they go about their daily lives.
But it is also important to put these figures into perspective. According to data compiled by the Commission, from January 2014 until January 2015, there were 3,468 demand letters and complaints sent or filed in the state. In contrast, according to the Judicial Council of California, a total of 800,091 lawsuits were filed in the state in 2013 (the most recent year available). Meanwhile, California has approximately 3.3 million small businesses. These figures mean that less than one percent of small businesses (and a far smaller percentage of all businesses) were sued in 2014 for access violations; and the 3,468 demand letters or complaints regarding accessibility violations represent less than one-half of one percent (.43%) of the total number of lawsuits filed in the state. And the actual percentage is even smaller, because the Commission figure includes demand letters that are not complaints.
What can be done or should be done about (the small number of) plaintiffs and attorneys who file large numbers of Unruh Act-ADA lawsuits? The Ninth Circuit Court of Appeals addressed this issue in Molski v. Evergreen Dynasty Corp. (9th Cir. 2007) 500 F.3d 1047. Molski, the plaintiff, was paralyzed from the chest down, needed a wheelchair to get around, and filed about 400 lawsuits in the federal courts within the districts in California. (Id. at p. 1051.) Upon motion of the defendant businesses (including the named defendant, a restaurant) the district court declared Molski a vexatious litigant and granted the defendants' request for a pre-filing order (requiring court approval before Molski could file additional lawsuits). (Ibid.) The Ninth Circuit acknowledged that “pre-filing orders are an extreme remedy that should rarely be used” and that courts “should not enter pre-filing orders with undue haste because such sanctions can tread on a litigant's due process right of access to the courts.” (Id. at p. 1057.) Nevertheless, the Ninth Circuit upheld the order, finding that it was within the district court’s power, “In light of the district court's finding that Molski did not suffer the injuries he claimed . . . to conclude that the large number of complaints filed by Molski containing false or exaggerated allegations of injury were vexatious” and the pre-filing requirement could be issued. (Id. at p. 1059.)
At the same time, there is no evidence that lawsuits filed by high-frequency litigants, such as Molski, are “frivolous.” The Merriam-Webster Dictionary defines “frivolous” as “of little weight or importance,” or “having no sound basis (as in fact or law) <a frivolous lawsuit>.” In other words, a lawsuit alleging a violation of the Unruh Act because of a denial of access would only be “frivolous” if it had no basis in the law (i.e. it did not state an actual violation). In fact, there is no evidence that the complaints which are filed are without merit. According to data collected by the Commission, most complaints identify multiple access violations. For example, of the cases filed in July 2014, most complaints identified multiple or significant single violations, such as missing grab bars. Only two out of 201 complaints reviewed identified a single violation, such as a soap or seat cover dispenser being too high.
While the Molski case shows that existing law provides businesses with a way to deal with a vexatious litigant, the process is difficult. As the Ninth Circuit Court of Appeals observed in Molski, obtaining a “pre-filing order” is an “extreme remedy that should rarely be used.” (Molski v. Evergreen Dynasty Corp., supra, at p. 1059.) The author of this bill (like the Committee, in AB 1521) observes that other tools are necessary to protect small businesses from high-frequency litigants and encourage compliance with the 25 year-old state and federal laws. Therefore, the author proposes a number of changes to the law in this bill that provide financial relief to businesses, and encourage businesses to obtain CASp inspection and comply with construction-related accessibility standards so that disabled consumers can exercise their rights to fully and equally access public accommodations in the state.
Rebuttable presumption that certain “technical violations” do not cause a person difficulty, discomfort or embarrassment for the purpose of an award of minimum statutory damages in a construction-related accessibility claim. This bill establishes a list of “technical violations” that are presumed to not cause a person difficulty, discomfort or embarrassment for the purpose of awarding the plaintiff minimum statutory damages, where all three of the following conditions precedent are satisfied: (1) the defendant is a small business, (2) the defendant has corrected, within 15 days of the service of a summons and complaint asserting a construction-related accessibility claim or receipt of a written notice, whichever is earlier, all of the technical violations that are the basis of the claim, and (3) the claim is based on one or more of the following violations:
Interior signs, other than directional signs or signs that identify the location of accessible elements, facilities, or features, when all such elements, facilities or features are accessible.
The lack of exterior signs, other than parking signs and, directional signs (including, signs that indicate the location of accessible pathways or entrance and exit doors when not all pathways, entrance and exit doors are accessible).
The order in which parking signs are placed or the exact location or wording of parking signs, provided that the parking sign is clearly visible and indicates the location of accessible parking and van-accessible parking.
The color of parking signs, provided that the color of the background contrasts with the color of the information on the sign.
The color of parking lot striping, provided that it exists and provides sufficient contrast with the surface upon which it is applied to be reasonably visible.
Faded, chipped, damaged or deteriorated paint in otherwise fully compliant parking spaces and passenger access aisles in parking lots, provided that it indicates the required dimensions of a parking space or access aisle in a manner that is reasonably visible.
The presence or condition of detectable warning surfaces on ramps, except where the ramp is part of a pedestrian path of travel that intersects with a vehicular lane or other hazardous area.
The presumption affects the plaintiff’s burden of proof. This is appropriate because a “presumption affecting the burden of proof is a presumption established to implement some public policy other than to facilitate the determination of the particular action in which the presumption is applied.” (Evidence Code Section 605.) As a practical matter, the presumption means that the plaintiff will recover no minimum statutory damages for these specific violations. However, the presumption is rebuttable, rather than conclusive. This is also appropriate because some of these conditions could, in some circumstances, cause a person difficulty, discomfort or embarrassment for the purpose of awarding the plaintiff minimum statutory damages. Therefore, it is appropriate to allow a plaintiff to overcome the presumption with evidence showing, by a preponderance of the evidence, that he or she did, in fact, experience difficulty, discomfort, or embarrassment on the particular occasion as a result of one or more of the technical violations listed above.
There are aspects of this provision that are troubling to the Committee. First, it could be interpreted by some that these “technical violations” are not real violations of the ADA, when they clearly are. Second, this provision may provide a false sense of protection from liability to a business because even if a business met the conditions precedent and qualified for this presumption by correcting these violations within 15 days, the business could still be sued in federal court during that 15-day period. Third, this provision establishes a first precedent that a business is not liable for violations about which the business is notified and has an opportunity to cure. This Committee has consistently rejected such proposals. Finally, this provision opens the door to the possibility that the Legislature may expand the list of “technical violations” in the future to the point that they are no longer technical and are substantial. However, this list of technical violations is carefully, deliberately, and narrowly crafted in an effort to focus on those violations of construction-related accessibility standards which are more about formal than substantive compliance with those standards and reportedly lead to “frivolous” complaints that are designed to extract quick settlements from business owners, rather than to improve access.
According to the author, this provision seeks to address the problem of high-frequency litigants who file construction-related accessibility lawsuits based upon conditions usually present on the exterior of premises, such as signs that are posted in an incorrect manner, faded or chipped striping of parking spaces, and signs that are the wrong color. As previously in print, this provision was vague and could be interpreted to mean, for example, that striping to indicate disabled parking spaces could be completely absent and still constitute a “technical violation.” As amended on July 13th, the bill now provides specificity and guidance about the specific types of minor violations that are considered “technical.” Furthermore, unlike the previous versions of the bill, the amendments allow a plaintiff to prove that one or more of these “technical violations” did, in fact, cause difficulty, discomfort or embarrassment for the purpose of awarding the plaintiff minimum statutory damages. Because of the revised and more specific language in the July 13th amendments, this provision appears to be sufficiently limited that it will help small businesses avoid paying minimum statutory damages to high-frequency litigants who sue them for truly trivial and inconsequential matters without violating the access rights of disabled consumers in an egregious and unacceptable manner.
Protection for businesses that employee 100 or fewer employees and obtain a CASp inspection against liability for violations of accessibility standards that occur in the 120 day period after the inspection. This bill protects a business from liability for minimum statutory damages for violations of construction-related accessibility standards during the 120 day period after the businesse obtains a CASp inspection of the interior, the exterior, or the entirety of the premises. The 120-day protection period only exists if all of the following conditions are satisfied:
The defendant is a business that has employed 100 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.
The structure or area of the alleged violation was the subject of an inspection report indicating “CASp determination pending” or “Inspected by a CASp.”
The inspection predates the filing of the claim by, or receipt of a demand letter from, the plaintiff regarding the alleged violation of a construction-related accessibility standard, and the defendant was not on notice of the alleged violation prior to the CASp inspection.
Within ten days of the date of the inspection, the CASp files a notice with the State Architect for listing on the State Architect’s Internet Web site, stating that the defendant has obtained a CASp inspection, the date of the filing, and the date of the inspection.
The CASp posts a notice, in a form prescribed by the State Architect, in a conspicuous location within five feet of all public entrances to the building on the date of the inspection and the defendant kept it in place until the earlier of the following: 120 days after the date of the inspection, or the date when all of the construction-related violations in the area or structure inspected by the CASp are corrected.
The defendant has corrected, within 120 days of the date of the inspection, all construction-related violations in the area or structure inspected by the CASp that are the basis of the claim.
This provision allows the business to identify and correct violations during that 120-day period. It does not preclude a lawsuit by a plaintiff who suffers actual damages (i.e. from an injury) on the premises of the business during the 120-day period. The provision would not impact such a plaintiff’s ability to recover those damages. Furthermore, it does not protect a business that does not correct violations on the premises during the 120-day period, providing that if the defendant fails to correct, within 120 days of the date of the inspection, all construction-related violations in the area or structure inspected by the CASp, the defendant shall not receive any reduction of minimum statutory damages. Also, a defendant is allowed to assert the reduction of minimum statutory damages set forth here only once for each area or structure inspected by a CASp.
There are aspects of this provision that are also deeply troubling to the Committee. First, it is unprecedented for a civil rights law, including the Unruh Act, to excuse violations of the law for a specific period of time on the basis that a defendant is trying (but not succeeding) to comply with the law. Second, unlike virtually all other past “reforms” to state law regarding construction-related accessibility standards, this provision applies to relatively large businesses. Although all businesses that obtain a CASp inspection are entitled to reduced minimum statutory damages ($2,000 instead of $4,000), all of the other past reforms designed to reduce damages and provide early evaluation conferences apply to small businesses employing 25 or fewer employees. Also, this provision – like the one dealing with “technical” violations – may provide illusory relief to businesses. Even if a business met the conditions precedent and qualified for this 120-day amnesty period by correcting all violations noted in a CASp report within 120 days of the CASp inspection, the business could still be sued in federal court during that period.
Other miscellaneous changes to the law. In addition to the main provisions of the bill, discussed above, the bill also makes the following minor changes that are consistent with the author’s intent:
Requires that information about complaints and demand letters which is required by current law to be submitted by attorneys to the Commission is submitted in a “standard format specified by the [Commission]” so that data about accessibility claims can be more effectively compiled by the Commission and provided to the Legislature.
Requires the State Architect to publish and regularly update a list of businesses that have filed a notice with the State Architect stating that the business has obtained a CASp inspection and will correct any violations of accessibility standards within 120 days of the date of the inspection.
Requires a CASp to note, on his or her inspection report, the date of the inspection.
Extends until January 1, 2019 the following requirements, scheduled to sunset on January 1, 2016:
For attorneys to send copies of demand letters regarding violations of construction-related accessibility standards to the State Bar of California.
For attorneys to send copies of complaints alleging violations of construction-related accessibility standards to the Commission.
For the State Bar of California to report to the Legislature various information about the complaints and demand letters it receives from attorneys.
For the Commission to review and report on the demand letters and complaints it receives from attorneys.
Similar pending legislation. AB 52 (Gray) provides, among other things, 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 is currently in this Committee as a two-year bill.
AB 54 (Olsen) as introduced, provided that statutory damages recovered in a construction-related accessibility claim based upon a violation of a construction-related accessibility standard which has changed within the past three years can only be recovered by that plaintiff under certain conditions and allows business owners who spend money to bring a place of public accommodation into compliance with construction-related accessibility standards a tax credit of up to $250. This bill is currently a two-year bill in the Assembly Revenue and Taxation Committee.
AB 1230 (Gomez) establishes the California Americans With Disabilities Act Small Business Capital Access Loan Program within the California Capital Access Loan Program in order to create a self-sustaining program to provide loans to assist small businesses in financing the costs of projects that alter or retrofit existing small business facilities according to certain criteria, to comply with the ADA. This bill is currently in the Senate Business & Professions Committee.
AB 1342 (Steinorth) - provides additional revenue to the California Commission on Disability Access; requires a commercial property owner to state on every lease form or rental agreement executed after July 1, 2016, whether or not the property being leased has undergone inspection by a CASp; and requires a commercial property owner to provide additional information to the tenant or lessor about the condition of the rented or leased property. This bill is currently in the Senate Governmental Organization Committee.
AB 1468 (Baker) - provides, among other things, 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 ADA, serves as presumptive evidence of compliance with the ADA. This bill is currently in this Committee as a two-year bill.
AB 1521 (Assembly Committee on the Judiciary) – enacts new pre-filing procedures for "high-frequency litigants" and provides new tools for businesses to use when they are served with complaints alleging violations of construction-related accessibility claims. This bill is in the Senate Judiciary Committee.
SB 67 (Galgiani) - among other things, exempts a small business from statutory damage liability in connection with a construction-related accessibility claim and extends the period for correcting construction-related violations that are the basis of a claim from 60 days to 120 days of being served with the complaint, for purposes of reducing a defendant’s minimum statutory damage liability to $1,000. This bill is currently in Senate Judiciary as a two-year bill.
REGISTERED SUPPORT / OPPOSITION:
Support (to previous version of the bill)
California Chamber of Commerce (co-sponsor)
Consumer Attorneys of California (co-sponsor)
Apartment Association of Orange County
Associated Builders and Contractors of California
CalAsian Chamber of Commerce
California Ambulance Association
California Association of Bed and Breakfast Inns
California Business Properties Association
California Citizens Against Lawsuit Abuse
California Grocers Association
California Hotel and Lodging Association
California Manufacturers and Technology Association
California Retailers Association
Camarillo Chamber of Commerce
Chamber of Commerce Alliance of Ventura and Santa Barbara Counties
Chamber of Commerce Mountain View
Civil Justice Association of California
Coachella Chamber of Commerce
Culver City Chamber of Commerce
East Bay Rental Housing Association
Fairfield-Suisun Chamber of Commerce
Family Business Association
Fullerton Chamber of Commerce
Greater Bakersfield Chamber of Commerce
Indio Chamber of Commerce
La Quinta Chamber of Commerce
Moreno Valley Chamber of Commerce
National Association of Theatre Owners of California/Nevada
National Federation of Independent Business
Nor Cal Rental Housing Association
North Valley Property Owners Association
Orange County Business Council
Oxnard Chamber of Commerce
Rancho Cordova Chamber of Commerce
Redondo Beach Chamber of Commerce and Visitors Bureau
San Jose Silicon Valley Chamber of Commerce
Santa Maria Valley Chamber of Commerce Visitors and Convention Bureau
Simi Valley Chamber of Commerce and Visitors Bureau
South Bay Association of Chamber of Commerce
South Lake Tahoe Chamber of Commerce
Southwest California Legislative Council
State Farm Automobile Insurance Company
Opposition (to previous version of the bill)
American Civil Liberties Union of California
California Council for the Blind
California Foundation for Independent Living Centers
Californians for Disability Rights
Disability Rights California
Disability Rights Education & Defense Fund
United African-Asian Abilities Club
Analysis Prepared by: Alison Merrilees / JUD. / (916) 319-2334
SB 251
Page 17
Date of Hearing: July 7, 2015
ASSEMBLY COMMITTEE ON JUDICIARY
Mark Stone, Chair
SB 251
(Roth) – As Amended June 2, 2015
As Proposed to be Amended
SENATE VOTE: 40-0
SUBJECT: CIVIL RIGHTS: DISABILITY ACCESS
KEY ISSUE: Should existing state laws governing construction-related accessibility claims be modified in a manner that appropriately balances the rights of the disabled community with the interests of small business owners, provides financial relief to small businesses, and (most importantly) encourages businesses to comply with twenty-five year old construction-related accessibility standards so that disabled consumers can exercise their civil rights to fully and equally access all of the public accommodations in the state?
SYNOPSIS
There is no governmental entity charged with administrative or judicial enforcement of construction-related accessibility claims. 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. Unfortunately, a very small number of highly litigious plaintiffs and attorneys is abusing the law by making a practice of filing and quickly settling lawsuits from small businesses without getting the underlying access issue corrected. According to information from the California Commission on Disability Access, more than half (54%) of construction-related accessibility complaints filed between 2012 and 2014 were filed by two law firms. Forty-six percent of all complaints were filed by 14 parties. These figures indicate that the vast majority of the construction-related accessibility lawsuits filed in this state are filed by a very small number of plaintiffs. As a result, small businesses are justifiably fearful and angry about being sued, while disabled consumers, who reasonably expect businesses to be compliant with 25 year-old access laws so they can exercise their civil rights, are unfairly viewed by some businesses and policymakers with blame or suspicion.
The Legislature has frequently heard and consistently rejected the idea that people with disabilities should be required to comply with special procedural barriers not faced by others who endure discrimination before they can assert legal claims against businesses that violate their rights, and has also rejected the idea that a disabled consumer should be precluded from recovering the minimum statutory damages to which he or she is entitled if the business that has violated the disabled person’s rights, after being notified of the violation, corrects the illegal condition at some point in the future.
According to the author, the bill, which is co-sponsored by the Consumer Attorneys of California and the California Chamber of Commerce, is necessary because many small businesses remain out of compliance with longstanding state and federal disability access laws, leaving them vulnerable to lawsuits. Some of these suits, the author and supporters allege (and even some of the opponents concede), are brought by plaintiffs for personal financial benefit, not out of an desire to improve access for disabled consumers and have access barriers removed, and some of these suits are brought against businesses that are willing to comply but are hampered by the complexity of the law. Disability rights advocates oppose the bill as it is now in print, but they agree with the supporters on a number of points, including that many businesses are not in compliance with access laws despite these laws’ long-standing existence and that many lawsuits are filed, some by plaintiffs seeking monetary recovery, rather than improved access. Opponents to the bill in print argue that they have supported prior legislation to increase business awareness of access obligations, improve voluntary compliance, and reward responsible behavior and that those reforms should be furthered, not circumvented. Opponents argue that this bill in print singles out people with disabilities for unprecedented obstacles to the enforcement of their civil rights, deprives them of a remedy for actual violations, and will deter, rather than encourage, compliance with disability discrimination laws. Moreover, opponents of the bill in print 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 federal lawsuits against which businesses seek protection.
The author of this bill (like the Committee, in AB 1521) observes that additional tools are necessary to protect small businesses from high-frequency litigants and encourage compliance with the 25 year-old state and federal laws. Therefore, the author proposes a number of changes to the law in this bill that appropriately balance the rights of the disabled community with the interests of small business owners, provide financial relief to small businesses, and – most importantly - encourage compliance with construction-related accessibility standards so that disabled consumers can exercise their civil rights to fully and equally access all of the public accommodations in the state.
Specifically, in its most significant provision, this bill, as proposed to be amended, protects a small business from liability for minimum statutory damages in a construction-related accessibility claim for the 120-day period after the business has obtained an inspection of its premises by a CASp, allowing the business to identify and correct violations during that period, under certain conditions, including the following: 1) The structure or area of the alleged violation was the subject of an inspection report indicating “CASp determination pending” or “Inspected by a CASp”; 2) The CASp inspection report is provided to the defendant within 30 days of the inspection; 3) The inspection predates the filing of the claim by, or receipt of a demand letter; and 4) The defendant corrects, within 120 days of the date of the inspection, all construction-related violations in the area or structure inspected by the CASp that are the basis of the claim.
As amended, this bill also establishes a rebuttable presumption that certain “technical violations” do not cause a person difficulty, discomfort or embarrassment for the purpose of an award of minimum statutory damages in a construction-related accessibility claim, where the defendant is a small business, the defendant has, within 15 days of the service of a summons and complaint asserting a construction-related accessibility claim or receipt of a written notice, whichever is earlier, corrected all of the technical violations that are the basis of the claim, and the claim is based on a number of specified violations, such as the lack of exterior signs; the order in which parking signs are placed or the exact location or wording of parking signs; the color of parking signs; the color of parking lot striping; faded, chipped, damaged or deteriorated paint in otherwise fully compliant parking spaces and passenger access aisles in parking lots; and the presence or condition of detectable warning surfaces (also known as “truncated domes” on ramps), except where the ramp is part of a pedestrian path of travel that intersects with a vehicular lane or other hazardous area.
The enactment of this bill, as proposed to be amended, is contingent upon the enactment of AB 1521, authored by this Committee, which is pending in the Senate Judiciary Committee. As recently amended, AB 1521 gives new tools to small businesses and seeks to limit the practice by high-frequency litigants of filing lawsuits to obtain quick settlements with business owners, rather than to correct violations of construction-related accessibility standards. It does so by, among other things, requiring a “high-frequency litigant” (which the bill defines as a plaintiff who has filed 15 or more complaints alleging a construction-related accessibility violation within a 12-month period) to comply with new, special procedural requirements. The approach of these two bills – providing additional relief and tools for small businesses to avoid and resolve construction-related accessibility claims, while addressing the small group of high-frequency litigants who are responsible for a majority of the claims filed in the state -- appears to be a comprehensive, fair, and sensible solution to the problem that the author of this bill (and the Committee) wishes to address.
As in print, this bill is supported by a large number of business groups and opposed by a large number of civil rights and disability advocacy organizations. It is unknown at this time how the amendments to the bill, which are described in detail in this analysis, will affect the positions of all supporters and opponents. However, the ACLU is neutral on the bill as proposed to be amended.
If this bill passes out of this Committee, it will be referred to the Assembly Revenue and Taxation Committee where, because of time constraints, the amendments that the author has agreed to take in this Committee will be adopted.
SUMMARY: Makes a number of changes to balance the rights of the disabled community and business owners, provide financial relief to small businesses, and encourage compliance with construction-related accessibility standards so that disabled consumers can exercise their rights to fully and equally access public accommodations in the state. Specifically, this bill:
Extends until January 1, 2019 the following requirements, scheduled to sunset on January 1, 2016:
For attorneys to send copies of demand letters regarding violations of construction-related accessibility standards to the State Bar of California.
For attorneys to send copies of complaints alleging violations of construction-related accessibility standards to the California Commission on Disability Access.
For the State Bar of California to report to the Legislature various information about the complaints and demand letters it receives from attorneys.
For the California Commission on Disability Access to review and report on the demand letters and complaints it receives from attorneys.
Establishes a presumption that certain “technical violations” are presumed to not cause a person difficulty, discomfort or embarrassment for the purpose of an award of minimum statutory damages in a construction-related accessibility claim, where the defendant is a small business, the defendant has corrected, within 15 days of the service of a summons and complaint asserting a construction-related accessibility claim or receipt of a written notice, whichever is earlier, all of the technical violations that are the basis of the claim, and the claim is based on one or more of the following violations:
Interior signs, other than directional signs or signs that identify the location of accessible elements, facilities, or features, when all such elements, facilities or features are accessible;
The lack of exterior signs, other than parking signs and, directional signs (including, signs that indicate the location of accessible pathways or entrance and exit doors when not all pathways, entrance and exit doors are accessible);
The order in which parking signs are placed or the exact location or wording of parking signs, provided that the parking sign is clearly visible and indicates the location of accessible parking and van-accessible parking;
The color of parking signs, provided that the color of the background contrasts with the color of the information on the sign;
The color of parking lot striping, provided that it exists and provides sufficient contrast with the surface upon which it is applied is reasonably visible;
Faded, chipped, damaged or deteriorated paint in otherwise fully compliant parking spaces and passenger access aisles in parking lots, provided that it indicates the required dimensions of a parking space or access aisle in a manner that is reasonably visible; or
The presence or condition of detectable warning surfaces on ramps, except where the ramp is part of a pedestrian path of travel that intersects with a vehicular lane or other hazardous area.
States that the above presumption affects the plaintiff’s burden of proof and is rebuttable by evidence showing, by a preponderance of the evidence, that the plaintiff did, in fact, experience difficulty, discomfort, or embarrassment on the particular occasion as a result of one or more of the technical violations listed in 2), above.
Protects a small business from liability for minimum statutory damages in a construction-related accessibility claim made during the 120 day period after the business obtains an inspection of its premises by a CASp, allowing the business to identify and correct violations during that period, under the following conditions:
The defendant is a small business.
The structure or area of the alleged violation was the subject of an inspection report indicating “CASp determination pending” or “Inspected by a CASp.”
The CASp inspection report was provided to the defendant within 30 days of the inspection.
The inspection predates the filing of the claim by, or receipt of a demand letter from, the plaintiff regarding the alleged violation of a construction-related accessibility standard, and the defendant was not on notice of the alleged violation prior to the CASp inspection whether because of a previous CASp inspection of the premises, or other reasons.
Within seven days of the date of the inspection, the defendant files a notice with the State Architect for listing on the State Architect’s Internet Web site, stating that the defendant has obtained a CASp inspection, the date of the filing, and the date of the inspection; and the State Architect posts the information on a publically accessible area of its website within seven (7) days of the date of receiving the notice from the defendant.
The defendant posted the notice described in (e), above, in a form prescribed by the State Architect, in a conspicuous location within five feet of all public entrances to the building on the date of the inspection and kept it in place until the earlier of the following: 120 days after the date of the inspection, or the date when all of the construction-related violations in the area or structure inspected by the CASp are corrected.
The defendant has corrected, within 120 days of the date of the inspection, all construction-related violations in the area or structure inspected by the CASp that are the basis of the claim.
Requires a CASp to provide, within 30 days of the date when it is requested by a small business, a copy of a report prepared pursuant to the provisions described in 4), above, to the small business that requested it.
Provides that, notwithstanding any other law, a defendant who claims the benefit of the reduction of minimum statutory damages under this subdivision shall disclose the date and findings of any CASp inspection to a plaintiff if relevant to a claim or defense in an action.
Allows a defendant to assert the reduction of minimum statutory damages under this subdivision only once for each area or structure inspected by a CASp.
Provides that if the defendant fails to correct, within 120 days of the date of the inspection, all construction-related violations in the area or structure inspected by the CASp, the defendant shall not receive any reduction of minimum statutory damages.
Requires the State Architect to do the following:
Publish and regularly update, on its existing Internet Web site, an easily accessible list of small businesses that have filed a notice that they have obtained a CASp inspection.
Develop a process by which businesses may notify the State Architect of an inspection by a certified access specialist indicating “CASp determination pending” or “Inspected by a CASp,” which shall include the date of the notification, the date of the inspection, and a description of the structure or area inspected.
Develop a form for businesses to notify the public that the business has obtained a CASp inspection, which shall include the date of the notification, the date of the inspection, and a description of the structure or area inspected.
Provides that the “area or structure inspected” by a CASp means either the interior of the premises, the exterior of the premises, or the interior and exterior of the premises.
Makes the enactment of this bill contingent upon the enactment of AB 1521 (Assembly Judiciary Committee), which gives new tools to small businesses and seeks to limit the practice by high-frequency litigants of filing lawsuits to obtain quick settlements with business owners, rather than to correct violations of construction-related accessibility standards.
EXISTING LAW: 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. Section 12182.)
Pursuant to the Unruh Civil Rights Act (Unruh), provides 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. (Civil Code Section 51 et seq. All further statutory references are to the California Civil Code, unless otherwise indicated.)
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. (Section 54.)
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. (Section 54.1.)
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 injunctive and actual damages – plus treble actual damages but not less than $1,000, and attorney’s fees as the court deems proper. (Section 55.)
Provides the California Commission on Disability Access (Commission), an independent state agency composed of 19 members, with general responsibility for monitoring disability access compliance in California, and with authority to make recommendations to the Legislature for necessary changes in order to facilitate implementation of state and federal laws on disability access. (Gov. Code Section 8299 et seq.)
Requires an attorney, when serving a demand letter or a complaint on a defendant alleging a construction-related accessibility claim or noncompliance, to provide a written advisory with each demand letter or complaint, as defined. The written advisory shall include information about 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. The written advisory is only required from any attorney, and not from a pro per plaintiff. (Section 55.3.)
Requires an attorney alleging the construction-related accessibility claim or noncompliance to state facts sufficient to allow the defendant to identify the basis for the claim. (Section 55.31.)
Prohibits such 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 or special damages. After receiving a duly-provided demand letter, a building owner, tenant, authorized agent or employee may request a settlement figure or specification of damages. Upon such a request, an attorney may present a settlement figure or specification of damages. (Section 55.31.)
Requires, until January 1, 2016, an attorney to submit a copy of the complaint to the Commission and the State Bar, and subjects the attorney to disciplinary action for violation. (Section 55.31.)
Requires the Commission 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. (Section 55.31)
Provides that upon being served with a complaint asserting a construction-related accessibility claim, a defendant may move for a court stay and early evaluation conference if the defendant is: (A) Until January 1, 2018, a defendant whose site had new construction or improvement between January 1, 2008, and January 1, 2016 and was approved pursuant to the local building permit and inspection process; (B) a defendant whose site had new construction or improvement that was approved by a local public building department inspector who is a CASp; or (C) a defendant who is a small business, as described. The stay to the construction-related accessibility claim, as provided, may be for 90-days unless the plaintiff has obtained temporary injunctive relief. (Section 55.54.)
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. (Section 55.54.)
Requires a local planning agency to employ or retain at least one building inspector who is a CASp a local building department to employ or retain a sufficient number of building inspectors who are CASps. (Section 55.53.)
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. (Section 55.56.)
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. (Section 55.56.)
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 reduces 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. (Section 55.56.)
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. (Section 55.56.)
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 CASp. (Section 1938.)
FISCAL EFFECT: As currently in print this bill is keyed fiscal.
COMMENTS: Under the twenty-five year old 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 are as effective as that provided to others). Government facilities are also covered by the access obligations of the ADA.
According to the California Supreme Court, “In 1992, shortly after passage of the ADA, the Legislature amended the state's disability protections ‘to strengthen California law in areas where it is weaker than the [ADA] and to retain California law when it provides more protection for individuals with disabilities than the [ADA].’ Two overlapping laws, the Unruh Civil Rights Act (§ 51) and the Disabled Persons Act (§§ 54–55.3), are the principal sources of state disability access protection.” (Jankey v. Lee (2012) 55 Cal.4th 1038, 1044 [Citation to internal quotation deleted].) As a result of incorporating the ADA into the state’s Unruh Civil Rights, a plaintiff who prevails in a construction-related accessibility claim, like all plaintiffs in other civil rights cases, is entitled to minimum statutory damages of $4,000 per violation (although later amendments to Unruh, affecting only disabled plaintiffs in only construction-related disability claims, reduced the minimum statutory damages to only $1,000 in some cases, such as when a small business previously obtained a CASp inspection).
Therefore, since 1992, public accommodations in California have been required to comply with not only the ADA, but also with the state’s Unruh Act, which incorporates the ADA into its provisions and makes a violation of the ADA punishable as a violation of Unruh. (Section 51.) All violations of Unruh are subject to statutory damages of at least $4,000 per violation, except some cases where the violation is based on a construction-related accessibility claim, in which case lower damages (a minimum of $1,000, or $2,000, depending on the circumstances of the case) apply.
Media coverage and objective data give different perspectives about the magnitude of the problem sought to be addressed by this bill. There has been widespread media coverage about the problem of what has been described as "serial ADA litigation." For example, last summer, the Modesto Bee and the Merced Sun-Star reported a series of articles, describing “how the Americans with Disabilities Act has been misused to create profit centers for opportunistic lawyers. These attorneys recruit people – some with minor disabilities, some with criminal records, some here illegally – to visit small businesses in hopes of spotting the most minute ADA violations. The lawyers then demand $4,000 for each violation.”
It is certainly true that a handful of highly litigious plaintiffs have targeted small businesses, especially those without the financial resources and sophistication to challenge such lawsuits on their merits. According to data compiled by the California Commission on Disability Access, more than half (54 percent) of the construction-related accessibility complaints filed between 2012 and 2014 were filed by two law firms; and 46 percent of all complaints were filed by just 14 parties. These figures indicate that the vast majority of all construction-related accessibility claims filed in this state are initiated by a very small number of plaintiffs (and their attorneys). As a result, small businesses are justifiably fearful and angry about being sued, while disabled consumers are viewed with blame or suspicion, even though they have a right to full and equal access and should be able to expect all public accommodations to comply with the 25-year old requirements of the Americans with Disability Act. Disabled consumers just want to go about their daily lives without difficulty, discomfort, or embarrassment, and with the basic dignity that comes from being able to go to the same places and have the same access to services as non-disabled persons. The vast majority would only resort to the extreme measure of filing a lawsuit in response to the most egregious, humiliating, and pervasive violations of their rights. It is unfair for business owners or policymakers to assume that disabled persons are somehow trying to “game the system” or take advantage of small businesses when they expect compliance with the ADA. Compliance should be something they can count on as they go about their daily lives.
But it is also important to put these figures into perspective. According to data compiled by the Commission, from January 2014 until January 2015, there were 3,468 demand letters and complaints sent or filed in the state. In contrast, according to the Judicial Council of California, a total of 800,091 lawsuits were filed in the state in 2013 (the most recent year available). Meanwhile, California has approximately 3.3 million small businesses. These figures mean that less than one percent of small businesses (and a far smaller percentage of all businesses) were sued in 2014 for access violations; and the 3,468 demand letters or complaints regarding accessibility violations represent less than one-half of one percent (.43%) of the total number of lawsuits filed in the state. And the actual percentage is even smaller, because the Commission figure includes demand letters that are not complaints.
What can be done or should be done about (the small number of) plaintiffs and attorneys who file large numbers of Unruh Act-ADA lawsuits? The Ninth Circuit Court of Appeals addressed this issue in Molski v. Evergreen Dynasty Corp. (9th Cir. 2007) 500 F.3d 1047. Molski, the plaintiff, was paralyzed from the chest down, needed a wheelchair to get around, and filed about 400 lawsuits in the federal courts within the districts in California. (Id. at p. 1051.) Upon motion of the defendant businesses (including the named defendant, a restaurant) the district court declared Molski a vexatious litigant and granted the defendants' request for a pre-filing order (requiring court approval before Molski could file additional lawsuits). (Ibid.) The Ninth Circuit acknowledged that “pre-filing orders are an extreme remedy that should rarely be used” and that courts “should not enter pre-filing orders with undue haste because such sanctions can tread on a litigant's due process right of access to the courts.” (Id. at p. 1057.) Nevertheless, the Ninth Circuit upheld the order, finding that it was within the district court’s power, “In light of the district court's finding that Molski did not suffer the injuries he claimed . . . to conclude that the large number of complaints filed by Molski containing false or exaggerated allegations of injury were vexatious” and the pre-filing requirement could be issued. (Id. at p. 1059.)
At the same time, there is no evidence that lawsuits filed by high-frequency litigants, such as Molski, are “frivolous.” The Merriam-Webster Dictionary defines “frivolous” as “of little weight or importance,” or “having no sound basis (as in fact or law) <a frivolous lawsuit>.” In other words, a lawsuit alleging a violation of the Unruh Act because of a denial of access would only be “frivolous” if it had no basis in the law (i.e. it did not state an actual violation). In fact, there is no evidence that the complaints which are filed are without merit. According to data collected by the Commission, most complaints identify multiple access violations. For example, of the cases filed in July 2014, most complaints identified multiple or significant single violations, such as missing grab bars. Only two out of 201 complaints reviewed identified a single violation, such as a soap or seat cover dispenser being too high.
While the Molski case shows that existing law provides businesses with a way to deal with a vexatious litigant, the process is difficult. As the Ninth Circuit Court of Appeals observed in Molski, obtaining a “pre-filing order” is an “extreme remedy that should rarely be used.” (Molski v. Evergreen Dynasty Corp., supra, at p. 1059.) The author of this bill (like the Committee, in AB 1521) observes that other tools are necessary to protect small businesses from high-frequency litigants and encourage compliance with the 25 year-old state and federal laws. Therefore, the author proposes a number of changes to the law in this bill, as it is amended, that appropriately balance the rights of the disabled community and the interests of business owners, provide financial relief to small businesses, and encourage compliance with construction-related accessibility standards so that disabled consumers can exercise their rights to fully and equally access public accommodations in the state.
Rebuttable presumption that certain “technical violations” do not cause a person difficulty, discomfort or embarrassment for the purpose of an award of minimum statutory damages in a construction-related accessibility claim. This bill establishes a list of “technical violations” that are presumed to not cause a person difficulty, discomfort or embarrassment for the purpose of awarding the plaintiff minimum statutory damages, where all three of the following conditions precedent are satisfied: (1) the defendant is a small business, (2) the defendant has corrected, within 15 days of the service of a summons and complaint asserting a construction-related accessibility claim or receipt of a written notice, whichever is earlier, all of the technical violations that are the basis of the claim, and (3) the claim is based on one or more of the following violations:
Interior signs, other than directional signs or signs that identify the location of accessible elements, facilities, or features, when all such elements, facilities or features are accessible.
The lack of exterior signs, other than parking signs and, directional signs (including, signs that indicate the location of accessible pathways or entrance and exit doors when not all pathways, entrance and exit doors are accessible).
The order in which parking signs are placed or the exact location or wording of parking signs, provided that the parking sign is clearly visible and indicates the location of accessible parking and van-accessible parking.
The color of parking signs, provided that the color of the background contrasts with the color of the information on the sign.
The color of parking lot striping, provided that it exists and provides sufficient contrast with the surface upon which it is applied to be reasonably visible.
Faded, chipped, damaged or deteriorated paint in otherwise fully compliant parking spaces and passenger access aisles in parking lots, provided that it indicates the required dimensions of a parking space or access aisle in a manner that is reasonably visible.
The presence or condition of detectable warning surfaces on ramps, except where the ramp is part of a pedestrian path of travel that intersects with a vehicular lane or other hazardous area.
The presumption affects the plaintiff’s burden of proof. This is appropriate because a “presumption affecting the burden of proof is a presumption established to implement some public policy other than to facilitate the determination of the particular action in which the presumption is applied.” (Evidence Code Section 605.) As a practical matter, the presumption means that the plaintiff will recover no minimum statutory damages for these specific violations. However, the presumption is rebuttable, rather than conclusive. This is also appropriate because some of these conditions could, in some circumstances, cause a person difficulty, discomfort or embarrassment for the purpose of awarding the plaintiff minimum statutory damages. Therefore, it is appropriate to allow a plaintiff to overcome the presumption with evidence showing, by a preponderance of the evidence, that he or she did, in fact, experience difficulty, discomfort, or embarrassment on the particular occasion as a result of one or more of the technical violations listed above.
There are aspects of this provision that are troubling to the Committee. First, it could be interpreted by some that these “technical violations” are not real violations of the ADA, when they clearly are. Even if a business met the conditions precedent and qualified for this presumption by correcting these violations within 15 days, the business could still be sued in federal court during that 15-day period. Second, this provision establishes some precedent that a business is not liable for violations about which the business is notified and has an opportunity to cure. This Committee has consistently rejected such proposals. Finally, this provision opens the door to the possibility that the Legislature may expand the list of “technical violations” in the future to the point that they are no longer technical and are substantial.
According to the author, this provision seeks to address the problem of high-frequency litigants who file construction-related accessibility lawsuits based upon conditions usually present on the exterior of premises, such as signs that are posted in an incorrect manner, faded or chipped striping of parking spaces, and signs that are the wrong color. As now in print, this provision is vague and could be interpreted to mean, for example, that striping to indicate disabled parking spaces could be completely absent and still constitute a “technical violation.” As amended, the bill now provides specificity and guidance about the specific types of minor violations that are considered “technical.” Furthermore, unlike the version of the bill that is now in print, the amendments allow a plaintiff to prove that one or more of these “technical violations” did, in fact, cause difficulty, discomfort or embarrassment for the purpose of awarding the plaintiff minimum statutory damages. Because of the revised and more specific language in the amendments, this provision appears to be sufficiently limited that it will help small businesses avoid paying minimum statutory damages to high-frequency litigants who sue them for truly trivial and inconsequential matters without violating the access rights of disabled consumers.
Protection for a small business that obtains a CASp inspection against liability for violations of accessibility standards that occur in the 120 day period after the inspection. This bill protects a small business from liability for minimum statutory damages for violations of construction-related accessibility standards during the 120 day period after the businesses obtains a CASp inspection of the interior, the exterior, or the entirety of the premises. The 120-day protection period only exists if all of the following conditions are satisfied:
The defendant is a small business.
The structure or area of the alleged violation was the subject of an inspection report indicating “CASp determination pending” or “Inspected by a CASp.”
The CASp inspection report was provided to the defendant within 30 days of the inspection.
The inspection predates the filing of the claim by, or receipt of a demand letter from, the plaintiff regarding the alleged violation of a construction-related accessibility standard, and the defendant was not on notice of the alleged violation prior to the CASp inspection because of a previous CASp inspection of the premises, or other reasons.
Within seven days of the date of the inspection, the defendant files a notice with the State Architect for listing on the State Architect’s Internet Web site, stating that the defendant has obtained a CASp inspection, the date of the filing, and the date of the inspection; and the State Architect posts the information on a publically accessible area of its website within seven days of the date of receiving the notice from the defendant.
The defendant posted a notice, in a form prescribed by the State Architect, in a conspicuous location within five feet of all public entrances to the building on the date of the inspection and kept it in place until the earlier of the following: 120 days after the date of the inspection, or the date when all of the construction-related violations in the area or structure inspected by the CASp are corrected.
The defendant has corrected, within 120 days of the date of the inspection, all construction-related violations in the area or structure inspected by the CASp that are the basis of the claim.
This provision allows the business to identify and correct violations during that 120-day period. It does not preclude a lawsuit by a plaintiff who suffers actual damages (i.e. from an injury) on the premises of the business during the 120-day period. The provision would not impact such a plaintiff’s ability to recover those damages. Furthermore, it does not protect a business that does not correct violations on the premises during the 120-day period, providing that if the defendant fails to correct, within 120 days of the date of the inspection, all construction-related violations in the area or structure inspected by the CASp, the defendant shall not receive any reduction of minimum statutory damages. Also, a defendant is allowed to assert the reduction of minimum statutory damages set forth here only once for each area or structure inspected by a CASp.
Enactment of this bill is contingent upon enactment of AB 1521, authored by this Committee. The enactment of this bill is contingent upon the enactment of AB 1521, authored by this Committee, which is pending in the Senate Judiciary Committee. As recently amended, AB 1521 seeks to give new tools to small businesses for responding to construction-related accessibility claims and to limit the practice of high-volume lawsuits motivated by the goal of obtaining quick settlements with business owners, rather than correcting violations of construction-related accessibility standards. It accomplishes the former goal by providing notice to the defendant and a form answer to the business, setting forth the ways the business may be able to reduce its exposure to minimum statutory damages as a result of the claim. It accomplishes the latter goal by, among other things, requiring a “high-frequency litigant” (which the bill defines as a plaintiff who has filed 15 or more complaints alleging a construction-related accessibility violation within the 12-month period) to comply with new, special procedural requirements, including the following:
Comply with special pleading requirements to include the following with a complaint: (1) The number of complaints alleging a construction-related accessibility claim that the high-frequency litigant has filed during the 12 months prior to filing the complaint; (2) The reason the individual was in the geographic area of the defendant’s business; (3) The reason why the individual desired to access the defendant’s business, including the specific commercial, business, personal, social, leisure, recreational, or other purpose.
If the litigant is represented by an attorney, the attorney must sign the complaint, certifying, among other things, that (1) the complaint is not being presented primarily for an improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation; (2) the claims, defenses, and other legal contentions therein are warranted by existing law or by a nonfrivolous argument for the extension, modification, or reversal of existing law or the establishment of new law; and (3) the allegations and other factual contentions have evidentiary support.
Significantly, AB 1521 also requires a “high frequency litigant” to seek and obtain approval of the court with respect to any settlement of a construction-related accessibility claim against a small business to determine that the proposed settlement is lawful, reasonable, and non-collusive. When combined with the provisions of this bill (as required by contingent enactment), these changes in the law, if they become law, are likely to significantly reduce the incidence of lawsuits by high-frequency litigants, while increasing compliance with accessibility standards by small businesses in California.
Proposed amendment regarding leases of commercial property and the requirement for landlords to notify tenants when they are responsible for the leased or rented property’s compliance with construction-related accessibility standards. As currently in print, the bill would require the following:
A commercial property owner or lessor shall state on every lease form or rental agreement executed on or after January 1, 2016, that, pursuant to Section 36.201 of Title 28 of the Code of Federal Regulations, the owner or lessor and the tenant are both responsible for compliance with the federal Americans with Disabilities Act of 1990 (42 U.S.C. Sec. 12101 et seq.) and that responsibility for compliance may be allocated between the parties by the terms of the lease or other contract.
According to the author, his admirable goal is to give tenants notice that they could be liable for the property’s compliance with all applicable construction-related accessibility standards, so they should be cautious about renting the property and, presumably, may want to verify that the property does, in fact, comply with all applicable accessibility standards. However, the current wording of the lease provision may result in a consequence unintended by the author by encouraging landlords to unfairly skirt responsibility for compliance with accessibility standards in all areas of their property to their tenants. Therefore, the author has agreed to remove the lease provision from this bill.
Fortunately, two other pending bills address this important issue in a manner that is consistent with the author’s goal. AB 1342 (Steinorth), which this Committee previously heard and unanimously passed, enacts a number of provisions related to the lease and rental of commercial property and, among other things, requires landlords to disclose whether or not the property being leased or rented has been inspected by a CASp; to provide a copy of a CASp inspection report and a CASp inspection certificate under certain circumstances; and require the lease form or rental agreement to state the following:
A Certified Access Specialist (CASp) can inspect the subject premises and determine whether the subject premises comply with all of the applicable construction-related accessibility standards under state law. Although state law does not require a CASp inspection of the subject premises, the commercial property owner or lessor may permit the lessee or tenant to obtain a CASp inspection of the subject premises for the occupancy or potential occupancy of the lessee or tenant, at the lessee’s or tenant’s expense, if requested by the lessee or tenant. The parties shall mutually agree on the arrangements for the time and manner of the CASp inspection.
Furthermore, AB 1521, with which this bill is joined, requires landlords to reimburse a tenant that qualifies as a “microbusiness” for the tenant’s cost of correcting construction-related accessibility violations in specified limited circumstances, specifically in cases where the following two conditions are satisfied: (1) The construction-related barrier existed prior to the initiation, renewal, or extension of the lease which is the basis of the microbusiness tenant’s liability; and (2) The construction-related barrier was created by parties other than the microbusiness tenant after the initiation, renewal, or extension of the lease which is the basis of the microbusiness tenant’s liability.
AB 1521 allows the parties to modify this requirement through a written agreement that may be included as a separate rider to the lease agreement, setting forth the terms under which the microbusiness tenant is accepting some or all of the potential liability for construction-related claims, including, but not limited to, a grant of the authority for the microbusiness tenant to modify the structure in order to comply with this part, and a process for determining the owner’s share of the costs of those modifications. Considering the provisions in AB 1521 (and AB 1342), it appears that the author’s intent to provide tenants with more information about their rights and responsibilities can be achieved, despite the removal of the lease provision from this bill.
Other miscellaneous changes to the law. In addition to the main provisions of the bill, discussed above, the bill also makes the following minor changes that are consistent with the author’s intent:
Requires that information about complaints and demand letters which is required by current law to be submitted by attorneys to the Commission is submitted in a “standard format specified by the [Commission]” so that data about accessibility claims can be more effectively compiled by the Commission and provided to the Legislature.
Requires the State Architect to publish and regularly update a list of businesses that have filed a notice with the State Architect stating that the business has obtained a CASp inspection and will correct any violations of accessibility standards within 120 days of the date of the inspection.
Requires a CASp to note, on his or her inspection report, the date of the inspection.
Extends until January 1, 2019 the following requirements, scheduled to sunset on January 1, 2016:
For attorneys to send copies of demand letters regarding violations of construction-related accessibility standards to the State Bar of California.
For attorneys to send copies of complaints alleging violations of construction-related accessibility standards to the Commission.
For the State Bar of California to report to the Legislature various information about the complaints and demand letters it receives from attorneys.
For the Commission to review and report on the demand letters and complaints it receives from attorneys.
Similar pending legislation. AB 52 (Gray) provides, among other things, 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 is currently in this Committee as a two-year bill.
AB 54 (Olsen) as introduced, provided that statutory damages recovered in a construction-related accessibility claim based upon a violation of a construction-related accessibility standard which has changed within the past three years can only be recovered by that plaintiff under certain conditions and allows business owners who spend money to bring a place of public accommodation into compliance with construction-related accessibility standards a tax credit of up to $250. This bill is currently a two-year bill in the Assembly Revenue and Taxation Committee.
AB 1230 (Gomez) establishes the California Americans With Disabilities Act Small Business Capital Access Loan Program within the California Capital Access Loan Program in order to create a self-sustaining program to provide loans to assist small businesses in financing the costs of projects that alter or retrofit existing small business facilities according to certain criteria, to comply with the ADA. This bill is currently in the Senate Business & Professions Committee.
AB 1342 (Steinorth) - provides additional revenue to the California Commission on Disability Access; requires a commercial property owner to state on every lease form or rental agreement executed after July 1, 2016, whether or not the property being leased has undergone inspection by a CASp; and requires a commercial property owner to provide additional information to the tenant or lessor about the condition of the rented or leased property. This bill is currently in the Senate Governmental Organization Committee.
AB 1468 (Baker) - provides, among other things, 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 ADA, serves as presumptive evidence of compliance with the ADA. This bill is currently in this Committee as a two-year bill.
SB 67 (Galgiani) - among other things, exempts a small business from statutory damage liability in connection with a construction-related accessibility claim and extends the period for correcting construction-related violations that are the basis of a claim from 60 days to 120 days of being served with the complaint, for purposes of reducing a defendant’s minimum statutory damage liability to $1,000. This bill is currently in Senate Judiciary as a two-year bill.
REGISTERED SUPPORT / OPPOSITION:
Support (to the bill in print)
California Chamber of Commerce (co-sponsor)
Consumer Attorneys of California (co-sponsor)
Apartment Association of Orange County
Associated Builders and Contractors of California
CalAsian Chamber of Commerce
California Ambulance Association
California Association of Bed and Breakfast Inns
California Business Properties Association
California Citizens Against Lawsuit Abuse
California Grocers Association
California Hotel and Lodging Association
California Manufacturers and Technology Association
California Retailers Association
Camarillo Chamber of Commerce
Chamber of Commerce Alliance of Ventura and Santa Barbara Counties
Chamber of Commerce Mountain View
Civil Justice Association of California
Coachella Chamber of Commerce
Culver City Chamber of Commerce
East Bay Rental Housing Association
Fairfield-Suisun Chamber of Commerce
Family Business Association
Fullerton Chamber of Commerce
Greater Bakersfield Chamber of Commerce
Indio Chamber of Commerce
La Quinta Chamber of Commerce
Moreno Valley Chamber of Commerce
National Association of Theatre Owners of California/Nevada
National Federation of Independent Business
Nor Cal Rental Housing Association
North Valley Property Owners Association
Orange County Business Council
Oxnard Chamber of Commerce
Rancho Cordova Chamber of Commerce
Redondo Beach Chamber of Commerce and Visitors Bureau
San Jose Silicon Valley Chamber of Commerce
Santa Maria Valley Chamber of Commerce Visitors and Convention Bureau
Simi Valley Chamber of Commerce and Visitors Bureau
South Bay Association of Chamber of Commerce
South Lake Tahoe Chamber of Commerce
Southwest California Legislative Council
State Farm Automobile Insurance Company
Neutral (as proposed to be amended)
American Civil Liberties Union of California
Opposition (to the bill in print)
California Council for the Blind
California Foundation for Independent Living Centers
Californians for Disability Rights
Disability Rights California
Disability Rights Education & Defense Fund
United African-Asian Abilities Club
Analysis Prepared by: Alison Merrilees / JUD. / (916) 319-2334
SB 251
Page 7
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Office of Senate Floor Analyses (916) 651-1520 Fax: (916) 327-4478 |
THIRD READING
Bill No: SB 251
Amended: 6/2/15
SENATE JUDICIARY COMMITTEE: 6-0, 5/12/15
AYES: Jackson, Anderson, Hertzberg, Leno, Monning, Wieckowski
NO VOTE RECORDED: Moorlach
SENATE GOVERNANCE & FIN. COMMITTEE: 7-0, 5/13/15
AYES: Hertzberg, Nguyen, Beall, Hernandez, Lara, Moorlach, Pavley
SENATE APPROPRIATIONS COMMITTEE: 7-0, 5/28/15
AYES: Lara, Bates, Beall, Hill, Leyva, Mendoza, Nielsen
SUBJECT: Civil rights: disability access
SOURCE: California Chamber of Commerce
Consumer Attorneys of California
DIGEST: This bill provides that a business is not liable for violating a construction-related liability standard if the business is inspected by a certified access specialist (CASp) and the violation is corrected within 90 days of receiving the CASp inspection. This bill also provides that a small business is not liable certain technical violations if corrected within 15 days. This bill requires the State Architect and the California Commission on Disability Access provide specified information on their Internet Web sites, requires local agencies to develop and provide to applicants materials relating to of the Americans with Disabilities Act (ADA), and requires a local agency to notify an applicant that approval of a permit does not signify that the applicant has complied with the ADA. This bill also requires local agencies to expedite review of projects that have received a written report from a CASp indicating that the site meets applicable standards. This bill also allows a tax credit for small in an amount equal to 50% of eligible access expenditures that do not exceed $10,250 and $250, as specified.
Existing law:
Provides, under ADA, 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.)
Declares, under 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, and provides that a violation of the ADA also constitutes a violation of state law. (Civ. Code Sec. 51 et seq.)
Requires the State Architect to establish the CASp Program and develop the specified criteria to have a person qualify as a CASp. (Gov. Code Sec. 4459.5 ; Civ. Code Sec. 55.52.)
Prohibits a demand letter from including a request or demand for money or an offer or agreement to accept money. (Civ. Code Sec. 55.31.)
Requires that an attorney who provides a demand letter must provide a copy of the demand letter to the State Bar and the California Commission on Disability Access (CCDA), who must report on those letters, as specified. (Civ. Code Sec. 55.32(a) and (b), repealed January 1, 2016.)
Provides that statutory damages may be recovered if the plaintiff was denied full and equal access to the place of public accommodation, as specified. (Civ. Code Sec. 55.56.)
Reduces a defendant’s minimum liability for statutory damages to $1,000 for each unintentional offense if the defendant has had a CASp inspection. (Civ. Code Sec. 55.56(f)(1).)
Reduces a defendant’s minimum liability for statutory damages to $2,000 if the defendant has corrected all violations, as specified, within 30 days of being served with the complaint and the defendant is a small business, as defined. (Civ. Code Sec. 55.56(f)(2).)
This bill:
Provides that a business is not liable for violating a construction-related liability standard if the business is inspected by a CASp and the alleged violation is corrected within 90 days of receiving the CASp inspection.
Provides that a small business shall not be liable for an alleged violation if it signage, the color and condition of parking lot paint striping, or truncated domes, and the violation is corrected within 15 days of receiving a complaint or written notice, as specified.
Requires a commercial property owner to state on every lease executed after 2016 that the owner and the tenant are both responsible for compliance with the ADA, and that the responsibility for compliance may be allocated between the parties by the terms of the lease or other contract.
Requires the State Architect to collect information about the city, county, or city and county in which CASp inspector applicants intend to provide services, and post that information to the State Architect’s Web site.
Requires the CCDA to provide a link, on its Web site, to the State Architect’s Web site, as specified.
Requires each local agency to develop materials relating to the requirements of the ADA, and provide those materials to permit applicants, along with a notice that provides that approval of a permit does not signify compliance with the ADA.
Provides for the expedited review of project applications if the applicant provides a CASp report that indicates the site meets applicable standards.
Provides tax credits, as specified, to small businesses for eligible access expenditures.
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 ADA in 1990, the state made a violation of the ADA also a violation of Section 54 or 54.1A violation of the ADA also constitutes a violation of California’s Unruh Civil Rights Act, either of which subject a person to actual damages incurred by an injured party, plus treble actual damages, but in no event less than $4,000.
The California Legislature has taken further steps to ensure disability access laws are complied with. SB 262 (Kuehl, Chapter 872, Statutes of 2003) established in the Division of the State Architect, a voluntary “access specialist certification program” in order to assist business and property owners in complying with ADA and state access laws. Since that time, several bills have been introduced that 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 2012, Senators Steinberg and Dutton authored SB 1186 (Chapter 383, Statutes of 2012) which sought to comprehensively address continued issues with disability litigation. 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.
This bill, seeking to further promote compliance among small businesses by allowing a business owner 90 days from the date of a CASp inspection to fix violations before being subject to liability, also protects small businesses from liability for certain violations if the business corrected the violation within 15 days of receiving notice of the potential violation. This bill also creates tax incentives for businesses to correct violations, and requires the State Architect and the California Commission on Disability Compliance to post specified information to their respective Web sites for the purpose of educating the public on disability access laws.
Comments
The author writes:
Unfortunately, small businesses are frequently unaware of ADA requirements. … They do not discover they may have potential ADA violations until they are threatened with litigation. Many of these small businesses would, in good faith, address and remediate the ADA violations had they been educated of their responsibilities and the requirements of the law. For some businesses the potential costs of repairs, in addition to costs associated with defending a potential lawsuit to avoid litigation have forced them to close their businesses. Businesses are not utilizing a CASp to help them comply with the law as much as they should be… Rather than rely solely on the court system to enforce the ADA, it is the intent of this bill to provide businesses who wish to comply fully with the law an incentive to use a CASp to find and fix their construction related violations, while protecting the ability of disabled persons who encounter discrimination to sue for compliance and damages if that business fails to fix its violations.
FISCAL EFFECT: Appropriation: No Fiscal Com.: Yes Local: Yes
According to the Senate Appropriations Committee:
The Franchise Tax Board (FTB) estimates that the amended version of the bill would lead to an annual General Fund revenue loss of $3 million in 2015-16, $7.6 million in 2016-17, and $10 million in 2017-18.
FTB would incur annual administration costs, likely in the hundreds of thousands of dollars minimally, to administer the tax credit.
The Division of the State Architect within the Department of General Services would incur minor costs to administer its provisions of this bill.
Potentially major one-time and ongoing costs to local agencies for material development, applicant notification, and expedited review requirements mandated in this bill. To the extent the increase in local agency workload qualifies as a reimbursable state mandate, local agencies could submit claims for reimbursement of those costs (General Fund).
California Chamber of Commerce (co-source)
Consumer Attorneys of California (co-source)
Apartment Association of Orange County
Associated Builders and Contractors of California
CalAsian Chamber of Commerce
California Ambulance Association
California Association of Bed and Breakfast Inns
California Business Properties Association
California Citizens Against Lawsuit Abuse
California Grocers Association
California Hotel and Lodging Association
California Manufacturers and Technology Association
California Retailers Association
Camarillo Chamber of Commerce
Chamber of Commerce Alliance of Ventura and Santa Barbara Counties
Chamber of Commerce Mountain View
Civil Justice Association of California
Coachella Chamber of Commerce
Culver City Chamber of Commerce
East Bay Rental Housing Association
Fairfield-Suisun Chamber of Commerce
Family Business Association
Fullerton Chamber of Commerce
Greater Bakersfield Chamber of Commerce
Indio Chamber of Commerce
La Quinta Chamber of Commerce
Moreno Valley Chamber of Commerce
National Association of Theatre Owners of California/Nevada
National Federation of Independent Business
Nor Cal Rental Housing Association
North Valley Property Owners Association
Orange County Business Council
Oxnard Chamber of Commerce
Rancho Cordova Chamber of Commerce
Redondo Beach Changer of Commerce and Visitors Bureau
San Jose Silicon Valley Chamber of Commerce
Santa Maria Valley Chamber of Commerce Visitors and Convention Bureau
Simi Valley Chamber of Commerce and Visitors Bureau
South Bay Association of Chamber of Commerce
South Lake Tahoe Chamber of Commerce
Southwest California Legislative Council
State Farm Automobile Insurance Company
American Civil Liberties Union of California
Disability Rights California
United African-Asian Abilities Club
ARGUMENTS IN SUPPORT: The Consumer Attorneys of California, a co-sponsor of this bill, writes that they are “seeking 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. While we fully understand that the current contents of SB 251 are not a final solution (indeed, there is no easy solution) and that the language and concepts need work, SB 251 offers a good first step.”
ARGUMENTS IN OPPOSITION: This bill protects a business from liability for violating a construction-related liability standard if that business had been inspected by a CASp and corrected the alleged violation within 90 days of receiving the CASp inspection. Disability Rights California writes in opposition to this bill, “Notice requirements are unjustified. They have repeatedly been rejected by the Legislature. Notice requirements are unworkable….Further, the advance notice requirement effectively precludes most people with disabilities from ever asserting their rights. Even if notice is properly provided, and the barriers are removed within the specified time frames, the aggrieved party is not entitled to statutory damages for the harm encountered … This is a policy the state of California should not endorse or promote.”
Prepared by: Nichole Rapier / JUD. / (916) 651-4113
6/2/15 21:16:16
SB 251 (Roth) Page 5 of 5
SENATE COMMITTEE ON APPROPRIATIONS
Senator Ricardo Lara, Chair
2015 - 2016 Regular Session
SB 251 (Roth) - Civil rights: disability access
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Version: May 20, 2015 |
Policy Vote: JUD. 6 - 0, GOV. & F. 7 - 0 |
Urgency: No |
Mandate: Yes |
Hearing Date: May 26, 2015 |
Consultant: Robert Ingenito |
SUSPENSE FILE. AS AMENDED.
Bill Summary:
SB 251 would (1) enact a tax credit for businesses that make accessibility improvements and (2) require certain state and local agencies to help businesses make accessibility improvements.
Fiscal Impact (as approved on May 28, 2015):
The Franchise Tax Board (FTB) estimates that the amended version of the bill would lead to an annual General Fund revenue loss of $3 million in 2015-16, $7.6 million in 2016-17, and $10 million in 2017-18.
FTB would incur annual administration costs, likely in the hundreds of thousands of dollars minimally, to administer the tax credit.
The Division of the State Architect within the Department of General Services would incur minor costs to administer its provisions of the bill.
Potentially major one-time and ongoing costs to local agencies for material development, applicant notification, and expedited review requirements mandated in the bill. To the extent the increase in local agency workload qualifies as a reimbursable state mandate, local agencies could submit claims for reimbursement of those costs (General Fund).
Background:
In California, individuals with disabilities and medical conditions have legal protections to ensure 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 Legislature provided that violations of the ADA are also violations of state legal protections, which are comparatively higher and 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. A violation of the ADA also constitutes a violation of the Act. Persons violating the Act are subject to actual damages incurred by an injured party plus treble damages, with a minimum of $4,000, plus any attorney’s fees as the court may determine to be proper.
I. Tax Credits. California law allows various income tax credits, deductions, and sales and use tax exemptions to provide incentives to reward taxpayers that incur certain expenses that benefit the public, such as child adoption, or to influence behavior, including business practices and decisions, such as research and development credits. The Legislature typically enacts such tax incentives to encourage taxpayers to do something that but for the tax credit, they would not do. The Department of Finance is required to annually publish a list of tax expenditures, currently totaling around $51 billion per year.
In 1990, Congress enacted a disabled access tax credit against federal taxes for businesses with annual gross receipts of less than $1 million or fewer than 30 full-time employees equal to 50 percent of the difference between the amount of expenditures reasonable and necessary to accomplish the below purposes and $250, not to exceed $10,000:
Remove barriers that prevent a business from being accessible to or usable by individuals with disabilities;
Provide qualified interpreters or other methods of making audio materials available to hearing-impaired individuals;
Provide qualified readers, taped texts, and other methods of making visual materials available to individuals with visual impairments; and
Acquire or modify equipment or devices for individuals with disabilities.
II. Local Land Use Permitting. Cities and counties have broad authority to oversee land use within their boundaries, including the ability to approve or deny permits, licenses, certificates or other entitlements needed to construct a project or improvement. The Permit Streamlining Act sets deadlines for cities and counties to make some of those land use decisions, such as approving permits. The length of time that a city or county has to act varies for different projects, based on factors such as the type of project and whether the project requires an environmental impact report before the city or county makes its decision. So, local building departments make decisions about how to prioritize permitting applications in order to meet those deadlines and properly exercise local governments’ police power.
III. Construction-Related Accessibility Standards Compliance Act. The Americans with Disabilities Act (ADA) as well as provisions in state law set standards that public buildings—including businesses—must meet to ensure that persons with disabilities have full access. Some of these accessibility standards lay out how public buildings must be constructed. The standards that any given building must meet depends on the history of that building, such as when it was constructed and whether it has been improved.
In 2003, the Legislature enacted the Certified Access Specialist Program, administered by the Office of the State Architect, to inspect places of public accommodation to ensure compliance with disability access standards. Persons being sued in a disability access action over a property that has been inspected by a Certified Access Specialist (CASp), and determined to meet applicable construction-related accessibility standards, or is pending a determination by a CASp, may obtain a stay of the action for 90 days and an early evaluation conference to resolve the case. In 2012, the Legislature again amended the law to provide that (1) any business in California that has received a CASp inspection has 60 days to cure an access violation and the Court may reduce statutory damages by up to 75 percent, and (2) small businesses with 25 or fewer employees that have not had a CASp inspection have 30 days to fix a violation, and the Court may reduce their statutory damages up to 50 percent.
State law additionally directs the California Commission on Disability Access to develop educational materials to help California businesses understand the accessibility standards they must meet and identify common violations of the ADA.
IV. Charter Cities and Counties. The California Constitution allows cities and counties that adopt charters to control their own “municipal affairs.” In all other matters, charter cities must follow the general, statewide laws. Because the Constitution does not define “municipal affairs,” the courts determine whether a topic is a municipal affair or whether it is an issue of statewide concern.
Proposed Law:
This bill would make several changes to assist businesses in complying with ADA requirements.
I. Tax Credits. SB 251 would enact tax credits amounts paid for eligible access expenditures that exceed $250 for the 2016 through 2022 taxable years, based largely on the current federal credit. The credit amount is calculated the same way as the federal credit, and is equal to half of the difference between the amount of the expenditure that exceeds $250. A taxpayer with expenses that exceed $10,250 can take a maximum credit of $5,000.
If the taxpayer meets the definition of small business, the credit would be in an amount equal to 50 percent of the difference between the total eligible access expenditures incurred by a taxpayer that do not exceed fifteen thousand two hundred fifty dollars ($15,250) and two hundred fifty dollars ($250). Overall, the maximum credit a small business could receive would be $7,500.
All taxpayers can carry over the credit for six years. Additionally, FTB may prescribe any rules, guidelines, or procedures necessary to implement the credit, which are exempt from the Administrative Procedures Act. The measure would sunset the credit on December 1, 2023, and contains legislative findings and declarations to comply with SB 1335.
II. Local Land Use Permitting. SB 251 would require local agencies to:
Expedite their review of an application for a project to modify a public building if the building has been inspected by a CASp and the CASp has completed a written inspection report stating that the building currently complies with all of the applicable construction-related standards.
Develop materials on the ADA, and to provide those materials to project applicants, along with a notice stating that approval of the permit does not mean that the project complies with the ADA.
SB 251 states that these two requirements apply to all cities and counties, including charter cities and counties. The bill includes a legislative finding and declaration that the bill addresses a matter of statewide concern because it pertains to development permit applications.
III. Construction-Related Accessibility Standards Compliance Act. SB 251 would amend the Construction-Related Accessibility Standards Compliance Act to:
Import the definition of microbusiness into the Act, and provides that a defendant meeting that definition shall not be liable for statutory damages for more than one offense if they corrected the violation before the lawsuit was filed.
Provide that any business inspected by a CASp that corrects a violation defined as a “minor matter” within 30 days of the service of summons and complaint asserting a claim or receipt of written notice, shall not be liable for a violation of a construction-related accessibility standard. “Minor matters” only include violations for interior and exterior signage, the color and condition of parking lot paint striping, and truncated domes.
Provide that any business that corrects a violation within 90 days of receiving a CASp inspection shall not be liable for a violation of a construction-related accessibility standard.
IV. Other provisions. SB 251 additionally would:
Require commercial property owners and lessors to state on every lease form or renal agreement that both they and the tenant are responsible for compliance with ADA, and that the terms of the lease or other contract must allocate compliance responsibility between the two.
Require an individual who wishes to become a CASp to provide the State Architect with unspecified information about the city or county in which they provide, or plan to provide, service. The State Architect must post that information on its website.
Directs the California Commission on Disability Access to link to the State Architect’s CASp website and provide state agencies and local building departments with educational materials explaining the ADA.
Extend the sunset in Civil Code Section 55.32 until January 1, 2019.
Staff Comments:
By imposing additional duties on local agencies with respect to the receipt and review of applications for development projects, this bill would impose a state-mandated local program. If the Commission on State Mandates determines that the bill contains costs mandated by the state, reimbursement for those costs would be required. The amount is unknown, but potentially significant.
Committee amendments limit the credit to a taxpayer that is a small business, as defined, in an amount equal to 50 percent of the difference between the total eligible access expenditures incurred by a taxpayer that do not exceed ten thousand two hundred fifty dollars $10,250 and $250.
-- END --
SB 251 (Roth) Page 5 of 5
SENATE COMMITTEE ON APPROPRIATIONS
Senator Ricardo Lara, Chair
2015 - 2016 Regular Session
SB 251 (Roth) - Civil rights: disability access
|
|
Version: May 20, 2015 |
Policy Vote: JUD. 6 - 0, GOV. & F. 7 - 0 |
Urgency: No |
Mandate: Yes |
Hearing Date: May 26, 2015 |
Consultant: Robert Ingenito |
This bill meets the criteria for referral to the Suspense File.
Bill Summary:
SB 251 would (1) enact a tax credit for businesses that make accessibility improvements and (2) require certain state and local agencies to help businesses make accessibility improvements.
Fiscal Impact:
The Franchise Tax Board (FTB) estimate of the current version of the bill is pending. The bill would likely lead to an annual General Fund revenue loss in the tens of millions of dollars minimally. FTB estimated previously that the May 4, 2015 version of the bill would result in General Fund revenue losses of $42 million in 2015-16, $100 million in 2016-17, and $120 million in 2017-18. The revenue impact from the current version of the bill would likely be of similar magnitude.
FTB would incur annual administration costs, likely in the hundreds of thousands of dollars minimally, to administer the tax credit.
The Division of the State Architect within the Department of General Services would incur minor costs to administer its provisions of the bill.
Potentially major one-time and ongoing costs to local agencies for material development, applicant notification, and expedited review requirements mandated in the bill. To the extent the increase in local agency workload qualifies as a reimbursable state mandate, local agencies could submit claims for reimbursement of those costs (General Fund).
Background:
In California, individuals with disabilities and medical conditions have legal protections to ensure 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 Legislature provided that violations of the ADA are also violations of state legal protections, which are comparatively higher and 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. A violation of the ADA also constitutes a violation of the Act. Persons violating the Act are subject to actual damages incurred by an injured party plus treble damages, with a minimum of $4,000, plus any attorney’s fees as the court may determine to be proper.
I. Tax Credits. California law allows various income tax credits, deductions, and sales and use tax exemptions to provide incentives to reward taxpayers that incur certain expenses that benefit the public, such as child adoption, or to influence behavior, including business practices and decisions, such as research and development credits. The Legislature typically enacts such tax incentives to encourage taxpayers to do something that but for the tax credit, they would not do. The Department of Finance is required to annually publish a list of tax expenditures, currently totaling around $51 billion per year.
In 1990, Congress enacted a disabled access tax credit against federal taxes for businesses with annual gross receipts of less than $1 million or fewer than 30 full-time employees equal to 50 percent of the difference between the amount of expenditures reasonable and necessary to accomplish the below purposes and $250, not to exceed $10,000:
Remove barriers that prevent a business from being accessible to or usable by individuals with disabilities;
Provide qualified interpreters or other methods of making audio materials available to hearing-impaired individuals;
Provide qualified readers, taped texts, and other methods of making visual materials available to individuals with visual impairments; and
Acquire or modify equipment or devices for individuals with disabilities.
II. Local Land Use Permitting. Cities and counties have broad authority to oversee land use within their boundaries, including the ability to approve or deny permits, licenses, certificates or other entitlements needed to construct a project or improvement. The Permit Streamlining Act sets deadlines for cities and counties to make some of those land use decisions, such as approving permits. The length of time that a city or county has to act varies for different projects, based on factors such as the type of project and whether the project requires an environmental impact report before the city or county makes its decision. So, local building departments make decisions about how to prioritize permitting applications in order to meet those deadlines and properly exercise local governments’ police power.
III. Construction-Related Accessibility Standards Compliance Act. The Americans with Disabilities Act (ADA) as well as provisions in state law set standards that public buildings—including businesses—must meet to ensure that persons with disabilities have full access. Some of these accessibility standards lay out how public buildings must be constructed. The standards that any given building must meet depends on the history of that building, such as when it was constructed and whether it has been improved.
In 2003, the Legislature enacted the Certified Access Specialist Program, administered by the Office of the State Architect, to inspect places of public accommodation to ensure compliance with disability access standards. Persons being sued in a disability access action over a property that has been inspected by a Certified Access Specialist (CASp), and determined to meet applicable construction-related accessibility standards, or is pending a determination by a CASp, may obtain a stay of the action for 90 days and an early evaluation conference to resolve the case. In 2012, the Legislature again amended the law to provide that (1) any business in California that has received a CASp inspection has 60 days to cure an access violation and the Court may reduce statutory damages by up to 75 percent, and (2) small businesses with 25 or fewer employees that have not had a CASp inspection have 30 days to fix a violation, and the Court may reduce their statutory damages up to 50 percent.
State law additionally directs the California Commission on Disability Access to develop educational materials to help California businesses understand the accessibility standards they must meet and identify common violations of the ADA.
IV. Charter Cities and Counties. The California Constitution allows cities and counties that adopt charters to control their own “municipal affairs.” In all other matters, charter cities must follow the general, statewide laws. Because the Constitution does not define “municipal affairs,” the courts determine whether a topic is a municipal affair or whether it is an issue of statewide concern.
Proposed Law:
This bill would make several changes to assist businesses in complying with ADA requirements.
I. Tax Credits. SB 251 would enact tax credits amounts paid for eligible access expenditures that exceed $250 for the 2016 through 2022 taxable years, based largely on the current federal credit. The credit amount is calculated the same way as the federal credit, and is equal to half of the difference between the amount of the expenditure that exceeds $250. A taxpayer with expenses that exceed $10,250 can take a maximum credit of $5,000.
If the taxpayer meets the definition of small business, the credit would be in an amount equal to 50 percent of the difference between the total eligible access expenditures incurred by a taxpayer that do not exceed fifteen thousand two hundred fifty dollars ($15,250) and two hundred fifty dollars ($250). Overall, the maximum credit a small business could receive would be $7,500.
All taxpayers can carry over the credit for six years. Additionally, FTB may prescribe any rules, guidelines, or procedures necessary to implement the credit, which are exempt from the Administrative Procedures Act. The measure would sunset the credit on December 1, 2023, and contains legislative findings and declarations to comply with SB 1335.
II. Local Land Use Permitting. SB 251 would require local agencies to:
Expedite their review of an application for a project to modify a public building if the building has been inspected by a CASp and the CASp has completed a written inspection report stating that the building currently complies with all of the applicable construction-related standards.
Develop materials on the ADA, and to provide those materials to project applicants, along with a notice stating that approval of the permit does not mean that the project complies with the ADA.
SB 251 states that these two requirements apply to all cities and counties, including charter cities and counties. The bill includes a legislative finding and declaration that the bill addresses a matter of statewide concern because it pertains to development permit applications.
III. Construction-Related Accessibility Standards Compliance Act. SB 251 would amend the Construction-Related Accessibility Standards Compliance Act to:
Import the definition of microbusiness into the Act, and provides that a defendant meeting that definition shall not be liable for statutory damages for more than one offense if they corrected the violation before the lawsuit was filed.
Provide that any business inspected by a CASp that corrects a violation defined as a “minor matter” within 30 days of the service of summons and complaint asserting a claim or receipt of written notice, shall not be liable for a violation of a construction-related accessibility standard. “Minor matters” only include violations for interior and exterior signage, the color and condition of parking lot paint striping, and truncated domes.
Provide that any business that corrects a violation within 90 days of receiving a CASp inspection shall not be liable for a violation of a construction-related accessibility standard.
IV. Other provisions. SB 251 additionally would:
Require commercial property owners and lessors to state on every lease form or renal agreement that both they and the tenant are responsible for compliance with ADA, and that the terms of the lease or other contract must allocate compliance responsibility between the two.
Require an individual who wishes to become a CASp to provide the State Architect with unspecified information about the city or county in which they provide, or plan to provide, service. The State Architect must post that information on its website.
Directs the California Commission on Disability Access to link to the State Architect’s CASp website and provide state agencies and local building departments with educational materials explaining the ADA.
Extend the sunset in Civil Code Section 55.32 until January 1, 2019.
Staff Comments:
By imposing additional duties on local agencies with respect to the receipt and review of applications for development projects, this bill would impose a state-mandated local program. If the Commission on State Mandates determines that the bill contains costs mandated by the state, reimbursement for those costs would be required. The amount is unknown, but potentially significant.
-- END --
SB 251 (Roth) 5/4/15 Page 7 of 7
SENATE COMMITTEE ON GOVERNANCE AND FINANCE
Senator Robert M. Hertzberg, Chair
2015 - 2016 Regular
Bill No: |
SB 251 |
Hearing Date: |
5/13/15 |
Author: |
Roth |
Tax Levy: |
No |
Version: |
5/4/15 |
Fiscal: |
Yes |
Consultant: |
Grinnell & Favorini-Csorba |
||
CIVIL RIGHTS: DISABILITY ACCESS
Enacts a tax credit for businesses that make accessibility improvements and requires some state and local agencies to help businesses make accessibility improvements.
Background and Existing Law
In California, individuals with disabilities and medical conditions have legal protections to ensure 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 Legislature provided that violations of the ADA are also violations of state legal protections, which are comparatively higher and 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. A violation of the ADA also constitutes a violation of the Act. Persons violating the Act are subject to actual damages incurred by an injured party plus treble damages, with a minimum of $4,000, plus any attorney’s fees as the court may determine to be proper.
I. Tax Credits. California law allows various income tax credits, deductions, and sales and use tax exemptions to provide incentives to reward taxpayers that incur certain expenses that benefit the public, such as child adoption, or to influence behavior, including business practices and decisions, such as research and development credits. The Legislature typically enacts such tax incentives to encourage taxpayers to do something that but for the tax credit, they would not do. The Department of Finance is required to annually publish a list of tax expenditures, currently totaling around $51 billion per year.
In 1990, Congress enacted a disabled access tax credit against federal taxes for businesses with annual gross receipts of less than $1 million or fewer than 30 full-time employees equal to 50% of the difference between the amount of expenditures reasonable and necessary to accomplish the below purposes and $250, not to exceed $10,000:
Remove barriers that prevent a business from being accessible to or usable by individuals with disabilities;
Provide qualified interpreters or other methods of making audio materials available to hearing-impaired individuals;
Provide qualified readers, taped texts, and other methods of making visual materials available to individuals with visual impairments; and
Acquire or modify equipment or devices for individuals with disabilities.
II. Local Land Use Permitting. Cities and counties have broad authority to oversee land use within their boundaries, including the ability to approve or deny permits, licenses, certificates or other entitlements needed to construct a project or improvement. The Permit Streamlining Act sets deadlines for cities and counties to make some of those land use decisions, such as approving permits. The length of time that a city or county has to act varies for different projects, based on factors such as the type of project and whether the project requires an environmental impact report before the city or county makes its decision. So, local building departments make decisions about how to prioritize permitting applications in order to meet those deadlines and properly exercise local governments’ police power.
III. Construction-Related Accessibility Standards Compliance Act. The Americans with Disabilities Act (ADA) as well as provisions in state law set standards that public buildings—including businesses—must meet to ensure that persons with disabilities have full access. Some of these accessibility standards lay out how public buildings must be constructed. The standards that any given building must meet depends on the history of that building, such as when it was constructed and whether it has been improved.
In 2003, the Legislature enacted the Certified Access Specialist Program, administered by the Office of the State Architect, to inspect places of public accommodation to ensure compliance with disability access standards (SB 262, Kuehl, 2003). Persons being sued in a disability access action over a property that has been inspected by a Certified Access Specialist (CASp), and determined to meet applicable construction-related accessibility standards, or is pending a determination by a CASp, may obtain a stay of the action for 90 days and an early evaluation conference to resolve the case (SB 1608, Corbett, 2008). In 2012, the Legislature again amended the law to provide (SB 1186, Steinberg):
Any business in California that has received a CASp inspection has 60 days to cure an access violation and the Court may reduce statutory damages by up to 75%.
Small businesses with 25 or fewer employees that have not had a CASp inspection have 30 days to fix a violation, and the Court may reduce their statutory damages up to 50%.
State law additionally directs the California Commission on Disability Access to develop educational materials to help California businesses understand the accessibility standards they must meet and identify common violations of the ADA.
IV. Charter Cities and Counties. The California Constitution allows cities and counties that adopt charters to control their own “municipal affairs.” In all other matters, charter cities must follow the general, statewide laws. Because the Constitution does not define “municipal affairs,” the courts determine whether a topic is a municipal affair or whether it is an issue of statewide concern.
Proposed Law
Senate Bill 251 makes several changes to assist businesses in complying with ADA requirements.
I. Tax Credits. SB 251 enacts tax credits against the Personal Income Tax and Corporation Tax for amounts paid or incurred for eligible access expenditures that exceed $250 for the 2016 to 2022 taxable years, based largely on the current federal credit. The credit amount is calculated the same way as the federal credit, and is equal to 50% of the difference between the amount of the expenditure that does not exceed $10,250, and $250. For example, a taxpayer with $7,000 in expenditures obtains a credit of $3,375 (50% x $6,750 [$7,000 - $250]), while a taxpayer with expenses that exceed $10,250 can take a maximum credit of $5,000.
SB 251’s credit is different than the federal one in two notable ways: first, it’s available to all businesses, not just those meeting the definition of small business in federal law. Second, if the taxpayer meets the definition of microbusiness, he or she may increase the credit calculated using the above formula by $5,000.
All taxpayers can carry over the credit for six years. Additionally, FTB may prescribe any rules, guidelines, or procedures necessary to implement the credit, which are exempt from the Administrative Procedures Act. The measure sunsets the credit on December 1, 2023. The bill contains legislative findings and declarations to comply with SB 1335 (Leno, 2014).
II. Local Land Use Permitting. SB 251 requires local agencies to:
Expedite their review of an application for a project to modify a public building if the building has been inspected by a CASp and the CASp has completed a written inspection report stating that the building currently complies with all of the applicable construction-related standards.
Develop materials on the ADA, and to provide those materials to project applicants, along with a notice stating that approval of the permit does not mean that the project complies with the ADA.
SB 251 states that these two requirements apply to all cities and counties, including charter cities and counties. The bill includes a legislative finding and declaration that the bill addresses a matter of statewide concern because it pertains to development permit applications.
III. Construction-Related Accessibility Standards Compliance Act. SB 251 also amends the Construction-Related Accessibility Standards Compliance Act to:
Import the definition of microbusiness into the Act, and provides that a defendant meeting that definition shall not be liable for statutory damages for more than one offense if they corrected the violation before the lawsuit was filed.
Provide that any business inspected by a CASp that corrects a violation defined as a “minor matter” within 30 days of the service of summons and complaint asserting a claim or receipt of written notice, shall not be liable for a violation of a construction-related accessibility standard. “Minor matters” only include violations for interior and exterior signage, the color and condition of parking lot paint striping, and truncated domes.
Provide that any business that corrects a violation within 90 days of receiving a CASp inspection shall not be liable for a violation of a construction-related accessibility standard.
IV. Other provisions. SB 251 additionally:
Requires commercial property owners and lessors to state on every lease form or renal agreement that both they and the tenant are responsible for compliance with ADA, and that the terms of the lease or other contract must allocate compliance responsibility between the two.
Requires an individual who wishes to become a CASp to provide the State Architect with unspecified information about the city or county in which they provide, or plan to provide, service. The State Architect must post that information on its website.
Directs the California Commission on Disability Access to link to the State Architect’s CASp website and provide state agencies and local building departments with educational materials explaining the ADA.
State Revenue Impact
No estimate.
Comments
1. Purpose of the bill. According to the author, “Due to the lack of education and resources, many businesses throughout California are out of compliance with state and federal disability access laws. This situation is preventing Californians in the disability community from having access to facilities and services. This bill will help ensure individuals with disabilities have the opportunity to access facilities and services in California. The bill also will ensure that business owners and operators have the education and training necessary to comply with federal and state disability access laws and regulations. SB 251 also allows small businesses an opportunity to identify and correct a narrow list of deficiencies in order to provide full and fair access for all Californians. By ensuring compliance with the law, the civil rights of the disabled are protected and the ability to assist small business owners to achieve compliance are accomplished.””
2. Sure, but will it work? Tax benefits directed for specific purposes do two things: First, they reward behavior that would have occurred without the subsidy, so-called “deadweight loss.” Some firms will install disabled access improvements without a tax credit, or in response to the federal credit. In these instances, the state receives no marginal benefit, and transfers wealth from purposes it would otherwise spend money on for government purposes to the firm. Second, the bill may lead to more disabled access improvements in California that wouldn’t have occurred but for the credit; the financial incentive provides enough of a marginal benefit for the taxpayer to purchase disabled access improvements. A successful tax credit leads to more improvements at the margin than its deadweight loss, but no tax credit has yet conclusively demonstrated that its benefits outweigh its costs. Firms may install disabled access improvements to draw more customers, in response to the risk of litigation, or simply because it’s the right thing to do. However, these improvements aren’t cheap, and the credit will help reduce the cost. The Committee may wish to consider whether SB 251 will lead to additional disabled access improvements necessary to justify its cost.
3. More to know? Last year, the Legislature enacted SB 1335 (Leno), which required introduced legislative bills enacting tax credits to contain:
Specific goals, purposes, and objectives that the tax credit will achieve.
Detailed performance indicators for the Legislature to use when measuring whether the tax credit met its specific goals, purposes, and objectives.
Data collection requirements to enable the Legislature to determine whether the tax credit is meeting, failing to meet, or exceeding its goals, purposes, and objectives. The requirements shall include specific data and baseline data to be collected and remitted in each year the credit is effective, and the specific taxpayers, state agencies, or other entities required to collect and remit data.
SB 251 enacts its tax credit without specifying these items, compelling no reporting of information to determine whether the measure is effective, although it does contain legislative intent to do so. The Committee may wish to consider whether SB 251 should include provisions called for by SB 1335.
4. Microbusiness. SB 251’s tax credit is increased by $5,000 for a microbusiness that pays for disabled access improvements; however, the taxpayer is entitled to the increase regardless of the amount spent. For example, a microbusiness that spends $252 on disabled access improvements would generate a $5,001 credit (50% times $2 [$252 - $250], plus $5,000). Additionally, the measure imports the definition of microbusiness from the Government Code, which includes affiliates, which is inconsistent with the way FTB groups firms within commonly controlled groups for tax purposes. The Committee may wish to consider amending SB 251 to only allow the $5,000 increase for microbusinesses incurring expenses above a specified amount, and altering the microbusiness definition to ensure consistency with current law.
5. Checklist. Eagle Lodge West is an annual gathering of professional tax attorneys, FTB and Board of Equalization attorneys and legislative tax staff intended to foster dialogue and discussion on difficult tax issues. Last year, a part of the conference drafted a checklist called “general considerations for drafting credit statutes," which attempts to focus on more technical aspects of tax credits important for implementation and to prevent the need for subsequent clean-up bills. While SB 251 includes many items on the checklist, the measure doesn’t speak to:
Requirement that the credit only be claimed on original returns,
Documentation requirements,
Rules for passthrough entities such as limited liability companies, S-Corps, and partnerships,
Denial of business expense deduction for the same costs that generate the credit,
Ability to reduce regular tax below tentative minimum tax,
Items that aren’t on the checklist but could also help implement the credit more cost-effectively would be to capping the credit among taxpayers within the same commonly controlled group, and disallowing the credit for installations for personal, not business, use.
6. Unintended consequences. SB 251 creates an incentive for owners of businesses and public buildings to hire a CASp to inspect their public spaces by promising speedier review of their project applications. However, this incentive might have several unintended consequences. First, it could make it harder for local officials to balance important tradeoffs among permit applications. Local building departments may have good reasons for how they prioritize permit applications, such as a need to address life safety issues. Pushing a project to the top of the queue simply because the existing building meets accessibility standards could override those decisions. Second, because SB 251 doesn’t define how much faster a city or county must review a qualifying application, it could expose cities and counties to litigation for not moving fast enough. Without a more specific definition, cities and counties don’t know what bar they have to meet in order to comply with the law.
7. Intent of the measure. SB 251 might not help a business that is concerned about having an accessibility violation come into compliance more quickly. This is because businesses that do not meet the applicable accessibility standards are ineligible for the expedited review provided by SB 251. Instead, there may be other ways to achieve the goal of improving access for persons with disabilities while giving businesses time to comply with the law. The Committee may wish to consider amending SB 251 to remove this provision and instead extend the period a business has to correct an accessibility violation if the business owner (1) has a CASp review their plans to ensure that the proposed project will meet all applicable standards, and (2) can demonstrate that any delay in correcting the violation is due to an inability to receive a needed permit in a timely fashion.
8. Let’s get specific. SB 251 is unclear about what specific information that it requires CASp applicants to provide to the State Architect about the cities and counties that they serve. The State Architect already maintains a website that lists CASPs and includes a field where a CASp can list their service area. However, because this field is optional, many CASps do not currently provide that information. The Committee may wish to amend SB 251 to clarify what information is required by specifying that CASp applicants must identify the cities or counties in which they provide service. This would make it easier for businesses to find and hire CASps that serve their area.
9. A material world. Since the Commission on Disability Access already develops materials relating to the ADA under current law, SB 251’s requirement for local agencies to also develop materials could result in duplication of effort. The Committee may wish to amend SB 251 to explicitly allow local agencies to satisfy this requirement by providing permit applicants with the materials developed by the commission.
10. Related legislation. Some parts of AB 1342 (Steinorth) overlap with SB 251. Specifically, AB 1342 and SB 251 include identical amendments to the Government Code that require: (1) CASp applicants to provide information to the State Architect, and (2) the California Commission on Disability Access to make educational materials available to relevant state and local agencies. The Assembly Judiciary Committee heard AB 1342 on April 27, 2015, where it passed with a 10-0 vote. It’s currently pending in the Assembly Appropriations Committee.
11. Mandate. The California Constitution generally requires the state to reimburse local agencies for their costs when the state imposes new programs or additional duties on them. According to the Legislative Counsel’s Office, SB 251 creates a new state-mandated local program because local agencies will have to provide increased services when reviewing applications for certain development projects. SB 251 says that if the Commission on State Mandates determines that it creates a state-mandated local program, the state must reimburse local agencies by following the existing statutory process for mandate claims.
12. Incoming! The Senate Committee on Judiciary will hear SB 251 on Tuesday, May 12th, 2015.
Support and Opposition
(5/8/15)
Support: California Chamber of Commerce; Apartment Association of Orange County; Associated Builders and Contractors of California; CalAsian Chamber of Commerce; California Ambulance Association; California Association of Bed and Breakfast Inns; California Business Properties Association; California Citizens Against Lawsuit Abuse; California Grocers Association; California Hotel and Lodging Association; California Manufacturers and Technology Association; California Retailers Association; Camarillo Chamber of Commerce; Chamber of Commerce Alliance of Ventura and Santa Barbara Counties; Chamber of Commerce Mountain View; Civil Justice Association of California; Consumer Attorneys of California (in concept); Culver City Chamber of Commerce; East Bay Rental Housing Association; Fairfield-Suisun Chamber of Commerce; Family Business Association; Fullerton Chamber of Commerce; Greater Bakersfield Chamber of Commerce; National Association of Theatre Owners of California/Nevada; National Federation of Independent Business; Nor Cal Rental Housing Association; North Valley Property Owners Association; Orange County Business Council; Oxnard Chamber of Commerce; Rancho Cordova Chamber of Commerce; Redondo Beach Changer of Commerce and Visitors Bureau; San Jose Silicon Valley Chamber of Commerce; Santa Maria Valley Chamber of Commerce Visitors and Convention Bureau; Simi Valley Chamber of Commerce and Visitors Bureau; South Bay Association of Chamber of Commerce; South Lake Tahoe Chamber of Commerce; Southwest California Legislative Council.
Opposition: American Civil Liberties Union of California, Disability Rights California, United African-Asian Abilities Club.
-- END --
SB 251 (Roth)
Page 16 of 16
Senator Hannah-Beth Jackson, Chair
2015-2016 Regular Session
SB 251 (Roth)
Version: May 4, 2015
Hearing Date: May 12, 2015
Fiscal: Yes
Urgency: No
NR
SUBJECT
Civil rights: disability access
DESCRIPTION
This bill would provide that a business is not liable for violating a construction-related liability standard if the business is inspected by a certified access specialist (CASp) and the violation is corrected within 90 days of receiving the CASp inspection report. This bill would also provide that if an alleged violation is a “minor matter” the business is not liable for the alleged violation if it is corrected within 30 days, as specified.
This bill would provide that a defendant is not liable for statutory damages for more than one offense if the defendant is a microbusiness, as defined, and has corrected the construction-related violation prior to the filing of the lawsuit.
This bill would require a commercial property owner to state on every lease form or rental agreement executed on or after January 1, 2016, that the owner or lessor and the tenant are both responsible for compliance with the Americans with Disabilities Act (ADA) and that responsibility for compliance may be allocated between the parties by the terms of the lease or other contract.
This bill would require applicants for CASp certification or renewal to provide the State Architect with specified information, and would require the State Architect to post that information on its Web site. This bill would also require the California Commission on Disability Access (CCDA) to provide a link on its Web site to the Web site of the State Architect’s CASp certification program, and make the CCDA’s educational materials and information available to other state agencies and local building departments.
This bill would additionally require local agencies to develop and provide to applicants materials relating to the requirements of the ADA, and require a local agency to notify an applicant that approval of a permit does not signify compliance with the ADA.
This bill would, for taxable years beginning on or after January 1, 2016, and before January 1, 2023, allow a credit under both the Personal Income Tax Law and the Corporation Tax Law for eligible access expenditures, as specified.
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. A violation of that section subjects a person to actual damages incurred by an injured party, plus treble actual damages, but in no event less than $4,000, and any attorney’s fees as the court may determine to be proper. (Civil Code Sec. 52.)
The California Legislature has taken further steps to ensure disability access laws are complied with. SB 262 (Kuehl, Chapter 872, Statutes of 2003) established in the Division of the State Architect, a voluntary “access specialist certification program” in order to assist business and property owners in complying with ADA and state access laws. The bill also authorized an enforcement action with civil penalties for noncompliance with the ADA and state access laws, after notification of the business owner or operator by a government agency. The authority to institute a civil action was extended to county counsels (in addition to the Attorney General, district attorney, and city attorney).
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.
This bill, seeking to further promote compliance among small businesses by allowing a business owner 90 days from the date of a CASp inspection to fix violations before being subject to liability, would also could create a list of minor matters that would not be considered a violation if a business corrected the violation within 30 days of receiving notice of the potential violation. This bill would also create tax incentives for businesses to correct violations, and would require the State Architect and the California Commission on Disability Compliance to post specified information to their respective Web sites for the purpose of educating the public on disability access laws. This bill has also been set for hearing in the Senate Governance and Finance Committee on May 13, 2015.
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. (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 establishes the California Commission on Disability Access (CCDA), an independent state agency composed of 17 members, to monitor disability access compliance in California, and make 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.)
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 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 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 that an attorney who provides a demand letter must do the following:
include the attorney’s State Bar license number in the demand letter; and
provide a copy of the demand letter to the State Bar and the California Commission on Disability Access. (Civ. Code Sec. 55.32(a) and (b), repealed January 1, 2016.)
Existing law requires demand letters, after January 1, 2016, to only be sent to the CCDA. (Civ. Code Sec. 55.32, operative January 1, 2016.)
Existing law provides that failure to comply with the above two provisions constitutes a cause for attorney discipline. (Civ. Code Sec. 55.32(c).)
Existing law requires the Commission 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. (Civ. Code Sec. 55.32.)
Existing law provides that upon being served with a complaint asserting a construction-related accessibility claim, a defendant may move for a 90-day stay and early evaluation conference if the defendant is:
until January 1, 2018, a defendant whose site was after January 1, 2008, and approved pursuant to the local building permit and inspection process and the defendant declares that all violations have been corrected, or will be corrected within 60 days of being served the complaint;
a defendant whose site had new construction or improvement that was approved by a local public building department inspector who is a CASp and the defendant declares that all violations have been corrected, or will be corrected within 60 days of being served the complaint; or
a defendant who is a small business, as described, and the process and the defendant declares that all violations have been corrected, or will be corrected within 30 days of being served the complaint. (Civ. Code Sec. 55.54.)
Existing law 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. (Civ. Code Sec. 55.545.)
Existing law requires a local agency to employ or retain at least one building inspector who is a CASp, commencing on January 1, 2014, to employ or retain a sufficient number of building inspectors who are CASp to conduct inspections with respect to new construction. (Civ. Code Sec. 55.53(d).)
Existing law 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, by personally encountering the violation or being deterred from accessing the public accommodation on a particular occasion. (Civ. Code Sec. 55.56.)
Existing law requires the court, in assessing liability in any action alleging multiple claims in which the plaintiff claims he or she was deterred from accessing a place of public accommodation on multiple occasions, to consider the reasonableness of the plaintiff’s conduct in light of the plaintiff’s obligation, if any, to mitigate damages. (Civ. Code Sec. 55.56(h).)
Existing law 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. (Civ. Code Sec. 1938.)
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 provide that a business is not liable for violating a construction-related liability standard if the business is inspected by a CASp and the alleged violation is corrected within 90 days of receiving the CASp inspection report.
This bill would provide that a business shall not be liable for a violation if it is a minor matter, defined as signage, the color and condition of parking lot paint striping, and truncated domes, if the violation is corrected within 30 days of receiving a complaint or written notice, as specified.
This bill would provide that a micobusiness, as defined in the Government Code, shall not be liable for statutory damages for more than one construction-related accessibility claim if the business corrects the violation prior to the filing of the law suit.
This bill would require a commercial property owner to state on every lease executed after 2016 that the owner and the tenant are both responsible for compliance with the ADA, and that the responsibility for compliance may be allocated between the parties by the terms of the lease or other contract.
This bill would require the State Architect to collect information about the city, county, or city and county in which CASp inspector applicants intend to provide services, and post that information to the State Architect’s Web site.
This bill would require the CCDA to provide a link, on its Web site, to the State Architect’s Web site, as specified.
This bill would require each local agency to develop materials relating to the requirements of the ADA, and provide those materials to permit applicants, along with a notice that provides that approval of a permit does not signify compliance with the ADA.
This bill would provide for the expedited review of project applications if the applicant provides a CASp report that indicates the site meets applicable standards.
This bill would provide tax credits, as specified, to microbusinesses for eligible access expenditures.
COMMENT
Stated need for the bill
According to the author:
California’s higher accessibility standard and the ability for a disabled person who has been discriminated against to seek civil statutory damages has been a powerful force in making many more businesses and buildings accessible to those with disabilities. Unfortunately, small businesses are frequently unaware of ADA requirements. They move into retail or office space that has been certified as habitable by local government planning and code inspections, receiving a certificate of occupancy and believe that with this certification they are fully able to operate as a lawful enterprise. They do not discover they may have potential ADA violations until they are threatened with litigation. Many of these small businesses would, in good faith, address and remediate the ADA violations had they been educated of their responsibilities and the requirements of the law. For some businesses the potential costs of repairs, in addition to costs associated with defending a potential lawsuit to avoid litigation have forced them to close their businesses. Businesses are not utilizing a CASp to help them comply with the law as much as they should be. Part of this is businesses not being aware of the existence and purpose of certified CASps. Rather than rely solely on the court system to enforce the ADA, it is the intent of this bill to provide businesses who wish to comply fully with the law an incentive to use a CASp to find and fix their construction related violations, while protecting the ability of disabled persons who encounter discrimination to sue for compliance and damages if that business fails to fix its violations.
Protection from liability for 90 days to implement recommendations of a CASp report
This bill would protect a business from liability for violating a construction-related liability standard if that business had been inspected by a CASp and corrected the alleged violation within 90 days of receiving the CASp report.
Opposition argues that this is a notice and opportunity to cure provision. Disability Rights California writes in opposition that “notice requirements are unjustified. They have repeatedly been rejected by the Legislature. Notice requirements are unworkable….Further, the advance notice requirement effectively precludes most people with disabilities from ever asserting their rights. Even if notice is properly provided, and the barriers are removed within the specified time frames, the aggrieved party is not entitled to statutory damages for the harm encountered, including injunctive relief or actual damages. This is a policy the state of California should not endorse or promote.”
The author responds, “This bill does not encourage businesses to ‘wait to be caught’ with regard to disability access issues. Rather, this narrowly crafted provision provides for much needed disability access education and training, facilitates an increase in the number of qualified access specialists to assist business, provides substantial tax incentives in an attempt to ensure equal access for all, and allows a small business that has gone to the expense of proactively hiring a CASp and securing an inspection, a reasonable amount of time to fix the problems identifies before the lawsuit arises. It is good public policy to do so”
Arguably, this provision, which the author describes as a “moratorium” is distinct from prior “notice and opportunity to cure” provisions which have been rejected by the Legislature, in that this protection would apply only to businesses that are proactively identifying and removing access barriers prior to the commencement of litigation. An advocate from the disability community noted, “[t]here is a critical distinction to be made between giving post-litigation behavior a white-wash and asking for forbearance during a time that a business is attempting to actually effect remediation of barriers.”
The opposition notes a number of issues relating to the workability of this provision. The American Civil Liberties Union of California (ACLU) argues that this provision is overly broad and that it would exempt even very large and sophisticated businesses from liability, pardon all misconduct, including intentional acts of discrimination and violations that cause actual injuries, and that it bars any remedy, including actual damages and injunctive relief. The ACLU further notes that this provision only affects liability under state law claims, and could not affect liability under the ADA because of federal preemption.
Disability Rights California, also in opposition, notes that, as drafted, this provision could result in fraud: “For a business inspected by a CASp, the bill states that business will not be liable if the problem is corrected within 90 days of receiving the written CASp report. Because of this provision, business owners will not have an incentive to get the report in a timely manner. Rather they could just adopt a ‘wait and see’ approach, (as is currently done by some businesses), and request that inspectors not provide reports until they receive written notice of the violations.”
The following amendment would address the above concerns by providing that a business who corrects violations noted in a CASp report shall not be liable for minimum statutory damages for those violations. The business would be required to have the property inspected prior to receiving a demand letter or claim of a construction-related access violation, and the protection would only extend to violations that are both (1) listed in the CASp report, and (2) removed within the 90 day period. Because damages are not available under a federal ADA claim, the amendment would make it clear that this protection extends only to state law claims. Further, businesses would not be protected against liability for actual harm or injunctive relief.
Suggested amendment:
55.535 (a)(1) of the Civil Code is amended to read: A business, prior to the initiation of litigation, receipt of a demand letter, or that is otherwise not on notice of a violation of a construction-related accessibility standard prior to a CASp inspection, shall not be liable for minimum statutory damages for violating a construction-related accessibility standard, as defined in Section 55.52 that is noted in the CASp report, if the violation is corrected within 90 days of the date of the CASp inspection.
Staff further notes that potential plaintiffs should be on notice that a business is in the process of implementing the recommendations of a CASp report, and thus protected from suit for 90 days if the barriers are removed in that time period. Currently, businesses that receive a CASp inspection receive a sign to place in the window that informs the community that the property has been inspected. To protect individuals who are denied access to a property during the period in which a business owner is implementing the recommendations of a CASp report from the cost of initiating litigation that will ultimately be moot, the author may wish to consider requiring the State Architect to compile and publicly post a list of businesses who have had a CASp inspection, including the date of that inspection.
Suggested amendment:
Require the State Architect to post an easily accessible, updated list of businesses who have received a CASp inspection after January 1, 2016, and the date of that inspection.
“Minor matters”
The California Commission on Disability Access noted that for the entire September 2012 – October 2014 period, the number one ranking violation was non-compliant loading zones/van access isles. A non-compliant parking space trended downward from the number two ranking violation to the number three and was replaced by parking lot signage as the number two ranking violation in 2014. The author argues that many of these violations are simple to fix, and compliance would be best achieved by allowing business owners to quickly remedy the violation. Accordingly, this bill would provide that business owners are not liable for “minor matters,” if fixed within 30 days from the time the business owner receives a demand letter or complaint alleging a construction-related access violation. This bill would define “minor matter” as a violation concerning interior and exterior signage, the color and condition of parking lot paint striping, and truncated domes. In opposition, the ACLU writes:
This immunity undeservedly applies to even very large and sophisticated businesses, exonerates all misconduct including intentional acts of discrimination and violations of law that cause injuries, and bars any remedy including actual damages. Even if the provision were narrowed to certain businesses or excluded physical injuries, it would still be overly broad because it wrongly assumes that these violations never affect accessibility. The flawed premise of this proposal appears to be that these “minor matters” should not be the basis of liability because they do not affect disability access. In fact, the presence of signage for parking, as well as and restrooms, among other things, may indeed affect full and equal access to a facility. Likewise, whether a parking space is striped for disability access can affect whether it is detectable by patrons and sufficiently sized to permit safe parking.
Also in opposition, Disability Rights California argues that “these provisions are not needed because current law already precludes damages for violations that have not actually prevented or deterred access, such as signs and paint.”
Thus, the opposition is divided over whether these types of violations could be the basis for a construction-related accessibility claim. Supporters, however, contend that these violations “do not actually impede access to the public accommodation, [and this bill would provide] businesses with 30 days from the service of the summons and complaint to resolve any alleged violation regarding signage, parking lot striping, and truncated domes. This limited period will provide a business owner the opportunity to devote their financial resources to resolving these minor issues before being subjected to statutory penalties and attorney’s fees.”
Staff notes that the Legislature has consistently rejected similar provisions that would have protected businesses that corrected a violation prior to the commencement of litigation from liability (see Background) largely because that type of protection encourages businesses to wait until litigation is threatened before actually complying with accessibility standards. Accordingly, as a matter of public policy, the Committee may wish to only extend protections to businesses who have proactively removed barriers. The following amendments would limit this protection to small businesses who correct these technical violations within 15 days.
Suggested amendments:
55.535. (a)(2) of the Civil Code is amended to read: A small business shall not be liable for minimum statutory damages for violating a construction-related accessibility standard if the following conditions are met:
the alleged violation concerns interior or exterior signage, the color and condition of parking lot paint striping, or truncated domes; and
the violation is corrected within 15 days of the service of a summons and complaint asserting a construction-related accessibility claim or receipt of a written notice, whichever is earlier.
The Consumer Attorneys of California, a co-sponsor of this bill, writes that they are “seeking 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. While we fully understand that the current contents of SB 251 are not a final solution (indeed, there is no easy solution) and that the language and concepts need work, SB 251 offers a good first step.” To that end, the author should continue to work with stakeholders to ensure that the above provision reflects his intent and does not preclude persons who were actually denied access from bringing a suit for statutory damages.
Redefining responsibility for compliance between property owners and tenants
In response to concerns that many businesses who rent their premises do not know the compliance status of their property, SB 1186 required a commercial property owner to state on a lease form or rental agreement if the property being leased or rented had undergone inspection by a CASp. (Civ. Code Sec. 1938.) This bill would additionally require landlords to clearly indicate in a lease if tenants are responsible, and thus liable, for access violations.
Disability Rights California writes, “While we believe strengthening lease provisions makes sense, we don’t believe the bill goes far enough. We suggest lease provisions shift responsibility for access fixes to landlords. Landlords should be required to inspect properties, identify barriers and fix them prior to leasing the property. This will ensure small businesses are not the unwitting recipients of demand letters and lawsuits.”
Arguably, access standards in parking lots, entry ways, and related to the structural elements of a building should be the responsibility of the property owner, and tenants should be responsible for anything that the tenant builds out or changes to fit the needs of his or her particular business. In addition, it is the property owner who is in the best position to pass on the cost of improvements to the tenant through increased rent. To that end, the author may wish to consider amending the bill to prohibit property owners from shifting all responsibility for construction-related access to a tenant.
Continued education, community outreach, and data collection
This bill contains a number of provisions to increase compliance with accessibility laws in the state through education and strengthening of existing programs.
Specifically, this bill would require applicants for CASp certification or renewal to provide to the State Architect with information about where that person plans to practice, and require the State Architect to post that information on its Web site.
This bill would also require the CCDA to link its Web site to the State Architect’s CASp certification program, and make the CCDA’s educational materials and information available to other state agencies and local building departments. Finally, this bill would require local agencies to develop and provide to applicants materials relating to the requirements of the ADA and to notify an applicant that approval of a permit does not signify compliance with the ADA.
These requirements are a natural extension of many of the data collection and education requirements under SB 1186 which have proven to be helpful in educating the community about access laws. SB 1186 also required, for a three-year period, a copy of a demand letter sent by an attorney to a potential defendant, alleging a construction-related accessibility violation to be sent to the State Bar and the CCDA. The information collected thus far has been useful in a number of ways, including determining which type of barriers are most common, which communities are achieving higher levels of access, and which attorneys are failing to follow the law. Because these requirements are set to sunset in 2016, the author may wish to extend the sunset for another three years so that the State Bar and the CCDA may continue collecting and analyzing demand letters and claims.
Suggested amendment:
Extend sunset from Civil Code Section 55.32 until January 1, 2019.
Additional Amendments
In response to concerns that provisions pertaining to “microbusinesses” in this bill were vague and arguably unnecessary in that microbusinesses fall under the umbrella of “small businesses” which are protected under existing law and this bill, the following amendments would remove the provisions related to microbusinesses.
Suggested amendments:
On page 8, strike lines 13 and 14
On page 11, strike lines 31 through 37
Replace “microbusiness” with “small business” in Sections 9 and 10.
Support: Apartment Association of Orange County; Associated Builders and Contractors of California; CalAsian Chamber of Commerce; California Ambulance Association; California Association of Bed and Breakfast Inns; California Business Properties Association; California Citizens Against Lawsuit Abuse; California Grocers Association; California Hotel and Lodging Association; California Manufacturers and Technology Association; California Retailers Association; Camarillo Chamber of Commerce; Chambers of Commerce Alliance of Ventura and Santa Barbara Counties; Chamber of Commerce Mountain View; Civil Justice Association of California; Culver City Chamber of Commerce; East Bay Rental Housing Association; Fairfield-Suisun Chamber of Commerce; Family Business Association; Fullerton Chamber of Commerce; Greater Bakersfield Chamber of Commerce; Greater Fresno Area Chamber of Commerce; Greater Riverside Chambers of Commerce; Greater San Fernando Valley Chamber of Commerce; Moreno Valley Chamber of Commerce; National Association of Theatre Owners of California/Nevada; National Federation of Independent Business; Nor Cal Rental Housing Association; North Lake Tahoe Chamber of Commerce; North Valley Property Owners Association; Orange County Business Council; Oxnard Chamber of Commerce; Rancho Cordova Chamber of Commerce; Redondo Beach Chamber of Commerce and Visitors Bureau; San Jose Silicon Valley Chamber of Commerce; Santa Maria Valley Chamber of Commerce Visitor and Convention Bureau; Simi Valley Chamber of Commerce and Visitors Bureau; South Bay Association of Chambers of Commerce; South Lake Tahoe Chamber of Commerce; Southwest California Legislative Council
Opposition: American Civil Liberties Union of California; Californians for Disability Rights; California Foundation for Independent Living Centers; Disability Rights California; United African Asian Abilities Club
HISTORY
Source: Consumer Attorneys of California; California Chamber of Commerce
Related Pending Legislation:
AB 52 (Gray, 2015) would provide 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 is currently in the Assembly Judiciary Committee.
AB 54 (Olsen, 2015) would include any amount paid or incurred by a taxpayer to receive an inspection by a CASp as an eligible access expenditure for the Personal Income Tax Law and the Corporation Tax Law which allows a credit to eligible small businesses for 50 percent of eligible access expenditures. This bill is currently in the Assembly Revenue and Taxation Committee.
AB 1230 (Gomez, 2015) would establish the California Americans with Disabilities Act Small Business Compliance Finance Act to provide loans to assist small businesses finance the costs of projects that alter or retrofit existing small business facilities to comply with the federal American with Disabilities Act. This bill is currently in the Assembly Appropriations Committee.
AB 1342 (Steinorth, 2015) would provide additional revenue to the California Commission on Disability Access. This bill is currently in the Assembly Appropriations Committee.
AB 1468 (Baker, 2014) would provide 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 is currently in the Assembly Judiciary Committee.
SB 67 (Galgiani) would limit 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.
Prior Legislation:
SB 1186 (Steinberg and Dutton, Chapter 383, Statutes of 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 give the business owner a 120-day time period to remedy the violation. If the property owner cures the violation, the aggrieved party cannot receive 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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Discussed in Hearing
2MIN
Senate Floor
9MIN
Assembly Floor
56SEC
Assembly Floor
1H
Assembly Standing Committee on Judiciary
1H
Assembly Standing Committee on Judiciary
5MIN
Senate Floor
4MIN
Senate Standing Committee on Appropriations
28MIN
Senate Standing Committee on Governance and Finance
Bill Author
