Under existing law, a person, firm, or corporation that interferes with various specified rights of a disabled individual is liable for the actual damages of each offense and any amount determined by a judge or jury of up to 3 times the amount of the actual damages, but in no case less than $1,000.

This bill would establish notice requirements for a plaintiff to follow before bringing an action against a small business, as defined, for an alleged violation of the Americans with Disabilities Act of 1990 (ADA). The bill would require the plaintiff to provide notice to a business at least 6 months before filing the complaint. The bill would also preclude commencement of an action against a small business for an alleged ADA violation if the small business has made a good faith effort to correct the alleged violation.

Date of Hearing: April 4, 2017

ASSEMBLY COMMITTEE ON JUDICIARY

Mark Stone, Chair

ABPCA Bill Id:AB 150 (

Author:Mathis) – As Introduced Ver:January 10, 2017

SUBJECT: DISABLED PERSONS: RIGHTS: LIABILITY

KEY ISSUES:

1. SHOULD A PERSON WHO IS DENIED FULL AND EQUAL ACCESS TO A PLACE OF PUBLIC ACCOMMODATION BE REQUIRED TO COMPLETE A PROCEDURAL HURDLE BEFORE FILING A LAWSUIT – NOTIFYING THE OWNER, AGENT, OR OTHER PARTY RESPONSIBLE FOR THE PREMISES ABOUT THE VIOLATION – THAT NO OTHER VICTIM OF DISCRIMINATION IN VIOLATION OF THE DISABLED PERSONS ACT IS REQUIRED TO COMPLETE?
2. SHOULD A PERSON WHO IS DENIED FULL AND EQUAL ACCESS TO A PLACE OF PUBLIC ACCOMMODATION BE PRECLUDED FROM EVER BRINGING A COMPLAINT AGAINST THE OWNER OR OPERATOR OF THE PLACE OF PUBLIC ACCOMMODATION IF THE OWNER MAKES A GOOD FAITH EFFORT TO CORRECT THE VIOLATION WITHIN SIX MONTHS OF RECEIVING NOTICE ABOUT THE VIOLATION?
3. DOES THIS MEASURE INADVERTENTLY AND UNFAIRLY SINGLE OUT PEOPLE WITH DISABILITIES BY FORCING THEM TO OVERCOME ADDITIONAL AND SUBSTANTIAL BARRIERS TO THE ENFORCEMENT OF THEIR CIVIL RIGHTS AND BY DENYING REMEDIES TO VICTIMS OF DISABILITY DISCRIMINATION?
4. SHOULD THE 27 YEARS SINCE THE ENACTMENT OF THE AMERICANS WITH DISABILITIES ACT CONSTITUTE ADEQUATE NOTICE TO SMALL BUSINESSES ABOUT THE REQUIREMENTS OF THE AMERICANS WITH DISABILITIES ACT?
5. WHAT EVIDENCE, IF ANY, SUPPORTS THE NEED FOR THIS BILL IN LIGHT OF DATA SHOWING THAT THE NUMBER OF COMPLAINTS ALLEGING CONSTRUCTION-RELATED ACCESSIBILITY CLAIMS FILED IN CALIFORNIA COURTS HAS DROPPED SIGNIFICANTLY IN THE PAST THREE YEARS SINCE THE RECENT ENACTMENT OF REFORMS THAT WERE INTENDED TO PROVIDE SIGNIFICANT RELIEF TO SMALL BUSINESSES ACCUSED OF THESE VIOLATIONS?

SYNOPSIS

Like other civil rights statutes that prohibit discrimination in businesses open to the public, the statutory scheme for enforcement of disability access laws rests on voluntary compliance and individual legal actions. There is no governmental entity charged with administrative or judicial enforcement of these obligations. Under the federal Americans with Disabilities Act (ADA), a business that constitutes a place of public accommodation (e.g., many places of lodging, entertainment, recreation, restaurants, bars, theaters, stores, health clubs, etc.) is prohibited from discriminating on the basis of disability if its operations affect interstate commerce. Public accommodations in California are required to comply with not only the ADA, but also with state building standards for access that are periodically promulgated by the State Architect. Violations of such standards constitute violations of the state’s Disabled Persons Act (DPA) and Unruh Act, which incorporates the ADA into their provisions and allow a person who is denied access to a public accommodation in violation of the ADA to pursue the remedies afforded by both the DPA and Unruh.

This author-sponsored bill seeks to prevent a plaintiff from filing a complaint under the DPA against businesses with fewer than 50 full-time employees by requiring her to notify the businesses of the violations, waiting six months to see if the violations continue to exist, and then precluding the plaintiff from pursuing her complaint if the owner or operator of the small business makes a “good faith effort” to correct the violation. This bill is similar to a number of prior notice and right to cure proposals that have been rejected by the Legislature in recent years. But this bill’s version of notice and a right to cure is far more problematic than prior versions for a number of reasons, including the following: 1) the bill has an exceptionally long duration of notice (six months) before a claim may be filed; 2) the bill only applies to claims made under the DPA, but not to Unruh or the ADA, so would undermine an important civil rights law but would have no practical effect; 3) the bill would make it difficult for a victim of discrimination to comply with the notice requirements without legal representation while making it virtually impossible to hire an attorney because it allows violations of the law to be forgiven retroactively; 4) the bill requires the injured party to specifically inform the alleged violator of not only all violations, but also the proper remedial actions that are needed to remedy the violations; and 5) the bill only requires a business owner to make a “good faith effort” to correct violations of the law, but does not define “good faith effort” and therefore allows violations to continue if they are difficult to correct. As a result, the bill would harm the public and be counterproductive in that it could mislead businesses into believing that they were protected from liability for access violations when they could still be in violation of Unruh and the ADA itself. The bill also fails to acknowledge the major reforms to this area of the law that have taken place in recent years, some of which have only been in effect for a matter of weeks, and which apparently correspond with a dramatic decline in the number of construction-related accessibility claims filed in state court. Finally, the procedural changes in this bill arguably will cause more of these claims to be filed in federal court, where small businesses do not have the opportunity to take advantage of the reforms to this area of the law that have been put into place in recent years to help small businesses.

This bill is supported by the Porterville and Visalia Chambers of Commerce, California Apartment Association, California Optometric Association, Civil Justice Association of California, and Family Winemakers of California. The bill is opposed by the ACLU, Consumer Attorneys of California, Californians for Disability Rights, Disability Rights California, and California Advocates for Nursing Home Reform.

SUMMARY: Requires a plaintiff, who is denied access to a public building, public accommodation, or other facility that is required by law to be open to the public and accessible to all persons, regardless of disability, to overcome a number of procedural hurdles before pursuing his or her claim and prohibits such a claim in some circumstances, even if the accessibility violation is not corrected. Specifically, this bill:

1. Restricts a plaintiff from filing an action pursuant to the DPA for denial or interference with her access to a public building, public accommodation, or other facility that is required by law to be open to the public and accessible to all persons, regardless of disability against a “small business”, unless both of the following conditions are met:
2. At least six months prior to filing the complaint, the plaintiff provided the defendant with notice of the alleged violation, including the specific facts that constitute the alleged violation, and a description of how the violation or violations can be remedied; and
3. The defendant failed to make a “good faith effort” to correct the alleged violation within six months of the date when the notice of the alleged violation was received.
4. Defines “small business” to be a business that employs fewer than 50 full-time employees.

EXISTING LAW:

1. Pursuant to federal law, under the Americans with Disabilities Act (ADA), provides that no individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation by any person who owns, leases, or leases to, or operates a place of public accommodation. (42 U.S.C. Section 12182.)
2. 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.)
3. 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.)
4. 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.)
5. 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.)
6. 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 (f).)
7. Establishes a presumption that certain "technical violations" (including faded parking lot striping and the lack of certain signs) 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 (with 25 or fewer employees), 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. (Section 55.56 (e)(1).)
8. Reduces a defendant’s liability for statutory damages in a construction-related accessibility claim against a place of public accommodation 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 that the property was previously inspected by one of a number of building standards experts, including a Certified Access Specialist (CASp). (Section 55.56 (g)(1).)
9. Reduces a defendant’s liability for statutory damages in a construction-related accessibility claim against a place of public accommodation to a minimum of two thousand dollars ($2,000) for each offense if the defendant demonstrates that it has corrected all construction-related violations that are the basis of a claim within 30 days of being served with the complaint and the defendant is a business with 25 or fewer employees. (Section 55.56 (g)(2).)
10. Protects a business with 50 or fewer employees from all 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 specified conditions. (Section 55.56 (g)(3).)
11. Allows a defendant to assert the protection from liability for minimum statutory damages described in 10), above, 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. (Section 55.56 (g)(4).)

FISCAL EFFECT: As currently in print this bill is keyed non-fiscal.

COMMENTS: Under the twenty-seven 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 the like that 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.

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 and Disabled Persons Act, which incorporate the ADA into their provisions and make a violation of the ADA punishable as a violation of Unruh and the Disabled Persons Act. (Sections 51, 54.) All violations under the Disabled Persons Act are liable for the actual damages and an amount determined by a jury, or the court sitting without a jury, up to a maximum of three times the actual damages (there is a minimum fine of $1,000) and attorney’s fees. All violations of Unruh are subject to statutory damages of at least four thousand dollars per violation, except some cases where the violation is based on a construction-related accessibility claim, in which case lower damages (a minimum of one thousand or two thousand dollars, depending on the circumstances of the case) apply.

This bill singles out one minority group for special barriers to enforcement of civil rights protections in a manner that likely violates state and federal civil right laws, including the ADA. This bill would prohibit a plaintiff from commencing an action against what it defines as a “small business” (defined as a business that employees fewer than 50 full-time employees) for a violation of the Disabled Persons Act (but not Unruh) unless all of the following conditions were satisfied: 1) the plaintiff provided notice of the violation to the defendant six months prior to filing the complaint; 2) the notice included specific facts that constitute the alleged violation; 3) the notice specified how the violations can be remedied; and 4) the defendant failed to make a “good faith effort” to correct the alleged violation within six months from the date the notice was received for the alleged violation.

In support of this bill and the need for legislation in this area, the author states the following:

Under existing law, a person, firm, or corporation that interferes with various specified rights of a disabled individual is liable for the actual damages of each offense and any amount determined by a judge or jury of up to 3 times the amount of the actual damages, but in no case less than $1,000. However, this law does not allow for corrections for persons, firms, or corporations that did not intentionally violate ADA regulations. Furthermore, it provides no grace periods for these organizations to rectify the violation, prior to expensive legal proceedings.

Throughout the state, predatory ADA litigation has forced many small businesses to undergo expensive court proceedings. While only 12% of the country’s disabled population resides in California, almost 40% of the recent ADA lawsuits nationwide have been filed within the state. In some cases, businesses have closed their doors in wake of accidental violation of ADA regulations. While the law is intended to ensure inclusion and access for all individuals, it has been altered into a program designed to generate revenue for predatory lawyers.

While it appears that the author has the well-intentioned goal of assisting small business owners, it appears that the author may rely on facts that are either incorrect, or outdated. For example, current law does allow the owner of a small business (with 25 or fewer employees) that is a public accommodation to correct violations of construction-related accessibility standards on her business premises and enjoy a 120-day period of immunity from liability for minimum statutory damages for any violations after obtaining a CASp inspection of the premises so that corrections can be made. (Section 55.56 (g)(2).) And while it is true that current law does not excuse unintentional violations (because intent and even knowledge is not relevant to the issue of whether a violation exists under Unruh and the DPA, as well as the ADA), state law does provide a presumption that certain “technical violations” of construction-related accessibility standards (such as faded paint on parking spaces or missing signage, as long as parking spaces are visible and a path of travel is clear) do not constitute grounds for a complaint under Unruh or the DPA, effectively excusing minor violations about which the owner may be unaware (thereby effectively excusing unknown and unintentional violations) as long as those violations are corrected within 15 days of the business owner being notified about them. (Section 55.56 (e)(1).)

Furthermore, despite the author’s good intentions, the effect of this bill is to not only significantly alter the DPA, but also to reduce compliance with requirements designed to ensure that all public accommodations are open and accessible to all persons in the state, regardless of their disability. As a result, this bill appears to frustrate the Legislature’s intent to provide special protections and remedies to a group the Legislature has deemed to be particularly vulnerable to discrimination because of their “disability or medical condition.” (Section 54 (b).) It creates a special barrier to the courts for those individuals who, unlike any other plaintiffs with any other types of claims, are required to wait six months, explain how violations of the law prohibit their access to public accommodations, and describe how to correct those violations in order to pursue their legal right to access and remedies for denial of access. This bill alters the DPA in a way that actually hurts the protected class of vulnerable persons and likely violates the DPA itself, as well as other crucial civil rights laws, including Unruh and the ADA, because it discriminates against persons who are disabled.

The premise of the bill, according to the author, is to allow business owners to have a grace period of six-months to bring their properties into compliance with the DPA, or at least make “good faith” efforts to bring the properties into compliance, after being served with notice of their violation. The premise is flawed for a number of reasons, as explained below.

The provisions of this bill would apply only to claims made under the DPA and not to other laws that prohibit the same type of disability discrimination as the DPA. A claim for disability discrimination may be asserted under either Unruh, or the DPA, or both Unruh and the DPA. (Flowers v. Prasad (2015) 238 Cal. App. 4^th 930.) As drafted, this bill would only affect a business’s liability for access violations brought under the DPA, so it would have a very limited impact. The bill would still allow a plaintiff who was denied access to a public accommodation to bring an action for that violation under the Unruh Act without complying with the requirements of the bill, including the notice and six month waiting provisions. Furthermore, the bill’s restrictions and filing barriers would have no effect whatsoever on complaints alleging ADA violations which could still be filed in federal court, regardless of any state restrictions in this area of the law.

Given that—if this bill were to become law—a business owner would still be responsible for compliance with, and therefore at risk of civil liability for violation of Unruh or the ADA (which do not provide a grace period to correct violations under the conditions specified in this bill) and businesses would be misled about their exposure to liability under other laws, including Unruh and the ADA. Thus, despite the bill’s beguiling appeal of protection from one set of state violations, it would not change the fact that businesses that deny access to their public accommodations remain liable for money damages, civil penalties and attorney's fees for such violations.

The bill purports to deem “good faith efforts” to comply with the DPA to constitute compliance with the DPA. Under this bill, a plaintiff could only bring an action under the DPA for being denied access to a public building, public accommodation, or other facility if the defendant failed to make a “good faith effort” to correct the access violation without defining what “good faith effort” means. What type, amount, and quality of effort is required? Does the amount of effort depend on the expense of the repairs; the financial means of the business owner; or the time and effort required to make the repairs?

Regardless of what it means to make a “good faith effort,” the concept is inconsistent with both the letter and spirit of existing law. Neither Unruh, the DPA, nor the ADA make exceptions for “good faith” (or mistaken, or inadvertent) violations of their requirements. In keeping with their goals of ensuring that all public accommodations are accessible to the public and that all business owners bring their public accommodations into compliance with the 27 year-old ADA, these laws require compliance, regardless of the intent or effort (or even knowledge) of the business owner. Therefore, even if this bill were to become law, a business owner who made a “good faith effort” to bring her property into compliance with the DPA would still be liable for denial of access pursuant to Unruh and the ADA.

The bill inappropriately requires the plaintiff to comply with notice requirements that effectively require the plaintiff to have legal representation, but also make it virtually impossible, as a practical matter, to retain an attorney. It is unlikely that a person who was not represented by an attorney would be able to satisfy the notice requirements specified in the bill. Since the information contained in the notice must be highly specific in terms of not only each violation, but also the repairs necessary to correct the violations, this obligation would likely result in most claimants needing the assistance of an attorney. However, the need for an attorney would be frustrated by the prospect that attorney's fees would not be awarded, even if the plaintiff's claims were meritorious, as long as the defendant made “good faith efforts” to correct the violation(s). Even if a disabled person found the right person to assist her, crafted exactly the right notice that included all the required information, the person would nevertheless be prohibited from any recovery, including recovery for attorney’s fees, for a genuine act of discrimination if the cause of the problem were later rectified. The defendant would not be required to compensate the plaintiff for the denial of her rights. Business owners would have no incentive to correct access violations on their premises because they could always correct the problem in the future.

It is highly unusual for a violation of any law to be overlooked or forgiven because the violator victim has not given notice in advance. It is even more unusual for a violator to avoid any legal responsibility for the violation simply by correcting the problem in response to the violation. The general principle of our civil (and criminal) laws is that everyone is held accountable for the wrongs they have committed, even if they are not warned in advance and even if they comply with the law in the future. The Committee is unaware of any comparable provision in civil rights law.

The bill inappropriately places a burden on the plaintiff to specify how the access violations can be remedied. By prohibiting a plaintiff from bringing a civil action under the DPA without, at least six months prior to filing the complaint, having provided the defendant with “notice of the alleged violation, including . . . a description of how the violation or violations can be remedied,” this bill effectively requires the plaintiff to provide the business owner with information about how to correct the access violations on the owner’s property. This requirement is both impractical and unfair and may be illegal. How and why is a plaintiff who simply wishes to have fair and equal access to the business premises (and who alleges that he or she has unlawfully been denied access thereto) expected to know how to remedy construction-related accessibility violations without being an expert, or hiring an expert, on such standards? The business owner or tenant, on the other hand, has access to the property and has the ability to obtain a CASp inspection to determine what repairs are needed to bring the property into compliance with construction-related accessibility standards. Also, because of special benefits and reduced damages (including those discussed immediately below) available when a public accommodation is either inspected by a CASp, or brought into compliance with accessibility standards, the business owner clearly has a financial incentive to obtain such an inspection. Because the owner or tenant of a business which is a public accommodation is in a far better position than a person denied access to that business to obtain information about bringing the business into compliance with state and federal construction-related accessibility standards, this requirement may not be appropriate.

Recent data shows that the number of construction-related accessibility claims filed in STATE COURT has decreased dramatically in recent years, demonstrating the success of recent reform measures and showing that this bill is not needed. According to the 2016 report of the California Commission on Disability Access (CCDA), only 839 complaints alleging violations of construction-related accessibility claims were filed in California state courts and transmitted to the CCDA in 2016. That number represents a dramatic decrease in the number of these complaints since 2013 (1,950 complaints), 2014 (1,412 complaints), and even 2015 (1,240 complaints). The recent dramatic decline in state filings and increase in federal filings likely means that the recent changes to state law have motivated plaintiffs to stop filing claims in state courts. Naturally, California cannot impact the number of claims filed in federal courts and should stop listening to the siren call to “do more” and enact more reforms, which ultimately undermine the rights of disabled consumers. If the calls are based on the false premise that claims are increasing in the state, or representing increases in federal claims as something that can be addressed by state law, then those calls will never end and the callers will never be satisfied. At some point—apparently now, based upon the most recent data from CCDA—enough [ADA “reform”] is enough.

The bill would undermine recently enacted bipartisan disability access reform legislation that was the result of negotiated collaboration and compromise which provided pre-litigation relief to small businesses. In response to complaints that small businesses were the victims of lawsuits by highly litigious plaintiffs and attorneys that filed civil complaints alleging violations of disability access laws as a business practice, rather than a response to a denial of access, a bipartisan and bicameral effort led to the adoption of AB 1521 (Assembly Committee on Judiciary) in 2015 and SB 269 (Roth and Vidak) in 2016.

AB 1521 provided additional information and legal resources to small business owners who may not realize how to minimize their liability for ADA violations or respond to a lawsuit filed against them. It also limited the practice of high-volume lawsuits motivated by quick settlement with business owners, rather than correction of ADA violations. Specifically, AB 1521 did the following: 1) required the Judicial Council, by July 1, 2016, to develop a form to answer the complaint; 2) required a plaintiff's attorney to provide a defendant with a copy of the answer form when serving the defendant with a complaint or demand letter; 3) defined a "high-frequency litigant" (HFL) as either a plaintiff who has filed 10 or more complaints alleging violations of construction-related accessibility standards in the past 12 months, or an attorney who has represented 10 or more such plaintiffs in the past year (for attorneys, claims that result in correction of violations are not included); and 4) imposed new procedural requirements on HFLs who file new claims, such as a higher filing fee, special pleading requirements, and a certification by the attorney about the merits of the claim. Finally, AB 1521 required attorneys who file construction-related accessibility claims to notify the California Commission on Disability Access about how their claims are resolved.

SB 269, approved the following year, was the product of extended and careful consideration by policymakers; input from civil rights advocates and members of the disability community; and support from both Consumer Attorneys of California and the Civil Justice Association of California, as well as business organizations, such as the California Chamber of Commerce, California Business Properties Association, and Southwest California Legislative Council.

SB 269 enacted several reforms to increase ADA compliance and financial security to small businesses. Specifically, in one of its most significant provision, SB 269 protects a business with 50 or fewer employees 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. SB 269 also established a presumption that certain “technical violations” of construction-related accessibility standards (such as faded paint on parking spaces or missing signage) do not constitute grounds for a complaint under Unruh or the DPA as long as those violations are corrected within 15 days of the business owner being notified about them.

Some provisions of AB 1521 took effect in October of 2015, while others took effect in January and even July of 2016. SB 269 took effect in May of 2016, but some of its provisions did not become effective until January 1, 2017. Because of the recent implementation of these measures, there is no data about their impact. Thus, it may be reasonable for the Legislature to wait and see what are the effects of these recent reforms before approving additional changes to the law.

Enactment of this bill—which would put in place yet another procedural hurdle for the filing of ADA claims--could inadvertently undermine the Legislature’s efforts to curtail the small percentage of ADA claims which are filed in bad faith in order to obtain quick settlements but prey on unsophisticated small business owners who may not be aware of their legal rights and responsibilities under the ADA. All of the above measures affect the procedural aspects of ADA claims filed in state court. The measures do not apply to claims filed in federal court because federal courts apply federal law for procedural matters and state law for substantive matters. (Erie R.R. v. Tompkins (1938) 304 U.S. 64, 78.) The more procedural rules regarding ADA claims that are added to California law in an effort to deter serial litigation, the more likely it will be that claims will be filed in federal court in order to avoid those provisions. Although it is impossible to know for certain the reason why the number of ADA claims filed in state court has dramatically fallen while the number filed in federal court has substantially risen, the trend may very well be the inadvertent effect of the enactment of the above provisions.

Conclusion. For all of the reasons stated above, the Committee may wish to be wary of a proposed law that limits rights of access to the courts, such as this one. In addition, as the federal 9^th Circuit Court of Appeals observed, the Committee should be particularly mindful of measures that restrict access to the courts. “Because the right to access the courts implicates due process and First Amendment rights, courts have been exceedingly reluctant to restrict such access.” (Moy v. United States (9th Cir. 1990) 906 F.2d 467, 470.) This is especially true regarding a measure like this one that appears on its face to discriminate against a class of citizens who are entitled under state and federal law to special protections.

ARGUMENTS IN SUPPORT: According to the Porterville Chamber of Commerce:

Law suit abuse is a growing problem for the Chamber’s member-business. This legislation aims to reduce frivolous lawsuits while preserving the intent of the Americans with Disabilities Act of 1990 (ADA). The establishment of noticing requirements before plaintiffs can take action will provide much needed relief for those businesses that made a good faith effort to correct violations of the ADA. Legislation will reduce unnecessary lawsuits while ensuring compliance to the ADA.

ARGUMENTS IN OPPOSITION: In opposition to the bill, the California Advocates for Nursing Home Reform argue:

If passed, residents living in non-ADA compliant facilities will have no legal recourse for a minimum of six months.  Even after six months, conditions for those residents won’t change if the operator can demonstrate they are “making a good faith effort” to rectify the situation.  As a practical matter, if six months have gone by and the problem persists there then should be a rebuttable presumption that the business was not acting in good faith to rectify the situation.

It is an undeniable fact that many businesses put profits before people.  When these businesses are in violation of the ADA, there is a legal and moral obligation to come into compliance as swiftly as possible.  AB 150 creates more than a set of stalling tactics for bad actors; it creates a “Get Out of ADA Liability Free” card. 

Related Pending Legislation. AB 1569 (Caballero), as introduced, would require current or prospective tenants requesting disability-related reasonable accommodations to keep an animal on the real property to be subjected to third party evaluation and verification, at the request of the landlord or person renting out the property.

Related previous legislation. SB 1608 (Corbett and Harman), Chapter 549, Statutes of 2008, enacted several reforms to increase voluntary compliance with state and federal laws requiring access to the disabled in any place of public accommodation. It established incentives for compliance and protection from litigation by responsible businesses, including a process by which businesses, if sued for violation of accessibility standards, could obtain a temporary stay of any litigation along with an in-person early evaluation conference with the court, attended by persons with authority to resolve the dispute between the parties.

SB 1186 (Steinberg), Chapter 383, Statutes of 2012, enacted a number of provisions that were intended to increase compliance with the ADA and protect small business owners, including the following: prohibit attorneys issuing to a building owner or tenant a "demand for money" alleging construction-related accessibility violations as the basis of one or more construction-related accessibility claims; require a commercial property owner to state on the lease form or rental agreement whether property being leased or rented has been inspected by a Certified Access Specialist (CASp); and add to the responsibilities of the Commission on Disability Access to review legislative measures and recommendations to promote disability access and reduce litigation.

AB 1230 (Gomez), Chapter 787, Statutes of 2015, 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. 

AB 2093 (Steinorth), Chap 379, Statutes of 2016, similar to AB 1342 (Steinorth, 2015) which was vetoed, requires a commercial property owner to state on every lease form or rental agreement executed after January 1, 2017, 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.

SB 251 (Roth), among other things, would have established 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 certain conditions are satisfied. This would have protected 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, provided that all violations were corrected within the 120 day period and other conditions were satisfied. The bill also would have provided a tax credit for eligible expenditures to increase accessibility. Virtually identical to SB 269, except for the fact that it included a tax credit, SB 251 was vetoed by the Governor.

REGISTERED SUPPORT / OPPOSITION:

Support

California Apartment Association

California Optometric Association

Civil Justice Association of California

Family Winemakers of California

Porterville Chamber of Commerce

Visalia Chamber of Commerce

Opposition

ACLU

California Advocates for Nursing Home Reform

Californians for Disability Rights

Consumer Attorneys of California

Disability Rights California

Analysis Prepared by: Alison Merrilees and Karim Troost / JUD. / (916) 319-2334

Date of Hearing: March 14, 2017

ASSEMBLY COMMITTEE ON JUDICIARY

Mark Stone, Chair

ABPCA Bill Id:AB 150 (

Author:Mathis) – As Introduced Ver:January 10, 2017

SUBJECT: DISABLED PERSONS: RIGHTS: LIABILITY

KEY ISSUES:

1. SHOULD A PERSON WHO IS DENIED FULL AND EQUAL ACCESS TO A PLACE OF PUBLIC ACCOMMODATION BE REQUIRED TO COMPLETE A PROCEDURAL HURDLE BEFORE FILING A LAWSUIT – NOTIFYING THE OWNER, AGENT, OR OTHER PARTY RESPONSIBLE FOR THE PREMISES ABOUT THE VIOLATION – THAT NO OTHER VICTIM OF DISCRIMINATION IN VIOLATION OF THE DISABLED PERSONS ACT IS REQUIRED TO COMPLETE?
2. SHOULD A PERSON WHO IS DENIED FULL AND EQUAL ACCESS TO A PLACE OF PUBLIC ACCOMMODATION BE PRECLUDED FROM EVER BRINGING A COMPLAINT AGAINST THE OWNER OR OPERATOR OF THE PLACE OF PUBLIC ACCOMMODATION IF THE OWNER MAKES A GOOD FAITH EFFORT TO CORRECT THE VIOLATION WITHIN SIX MONTHS OF RECEIVING NOTICE ABOUT THE VIOLATION?
3. DOES THIS MEASURE INADVERTENTLY AND UNFAIRLY SINGLE OUT PEOPLE WITH DISABILITIES BY FORCING THEM TO OVERCOME ADDITIONAL AND SUBSTANTIAL BARRIERS TO THE ENFORCEMENT OF THEIR CIVIL RIGHTS AND BY DENYING REMEDIES TO VICTIMS OF DISABILITY DISCRIMINATION?
4. SHOULD THE 27 YEARS SINCE THE ENACTMENT OF THE AMERICANS WITH DISABILITIES ACT CONSTITUTE ADEQUATE NOTICE TO SMALL BUSINESSES ABOUT THE REQUIREMENTS OF THE AMERICANS WITH DISABILITIES ACT?
5. WHAT EVIDENCE, IF ANY, SUPPORTS THE NEED FOR THIS BILL IN LIGHT OF RECENT MAJOR REFORMS TO THIS AREA OF THE LAW WHICH WERE INTENDED TO PROVIDE SIGNIFICANT RELIEF TO SMALL BUSINESSES ACCUSED OF CONSTRUCTION-RELATED ACCESSIBILITY VIOLATIONS AND HAVE ONLY BEEN IN EFFECT SINCE JANUARY OF 2017?

SYNOPSIS

Like other civil rights statutes that prohibit discrimination in businesses open to the public, the statutory scheme for enforcement of disability access laws rests on voluntary compliance and individual legal actions. There is no governmental entity charged with administrative or judicial enforcement of these obligations. Under the federal Americans with Disabilities Act (ADA), a business that constitutes a place of public accommodation (e.g., many places of lodging, entertainment, recreation, restaurants, bars, theaters, stores, health clubs, etc.) is prohibited from discriminating on the basis of disability if its operations affect interstate commerce. Public accommodations in California are required to comply with not only the ADA, but also with state building standards for access that are periodically promulgated by the State Architect. Violations of such standards constitute violations of the state’s Disabled Persons Act (DPA) and Unruh Act, which incorporates the ADA into their provisions and allow a person who is denied access to a public accommodation in violation of the ADA to pursue the remedies afforded by both the DPA and Unruh.

This author-sponsored bill seeks to prevent a plaintiff from filing a complaint under the DPA against businesses with fewer than 50 full-time employees by requiring her to notify the businesses of the violations, waiting six months to see if the violations continue to exist, and then precluding the plaintiff from pursuing her complaint if the owner or operator of the small business makes a “good faith effort” to correct the violation. This bill is similar to a number of prior notice and right to cure proposals that have been rejected by the Legislature in recent years. But this bill’s version of notice and a right to cure is far more problematic than prior versions for a number of reasons, including the following: 1) the bill has an exceptionally long duration of notice (six months) before a claim may be filed; 2) the bill only applies to claims made under the DPA, but not to Unruh or the ADA, so would undermine an important civil rights law but would have no practical effect; 3) the bill would make it difficult for a victim of discrimination to comply with the notice requirements without legal representation while making it virtually impossible to hire an attorney because it allows violations of the law to be forgiven retroactively; 4) the bill requires the injured party to specifically inform the alleged violator of not only all violations, but also the proper remedial actions that are needed to remedy the violations; and 5) the bill only requires a business owner to make a “good faith effort” to correct violations of the law, but does not define “good faith effort” and therefore allows violations to continue if they are difficult to correct. As a result, the bill would harm the public and be counterproductive in that it could mislead businesses into believing that they were protected from liability for access violations when they could still be in violation of Unruh and the ADA itself. Finally, the bill also fails to acknowledge the major reforms to this area of the law that have taken place in recent years, some of which have only been in effect for a matter of weeks.

This bill is supported by the Porterville Chamber of Commerce. The bill is opposed by the ACLU, Consumer Attorneys of California, Californians for Disability Rights, Disability Rights California, and California Advocates for Nursing Home Reform.

SUMMARY: Requires a plaintiff, who is denied access to a public building, public accommodation, or other facility that is required by law to be open to the public and accessible to all persons, regardless of disability, to overcome a number of procedural hurdles before pursuing his or her claim and prohibits such a claim in some circumstances, even if the accessibility violation is not corrected. Specifically, this bill:

1. Restricts a plaintiff from filing an action pursuant to the DPA for denial or interference with her access to a public building, public accommodation, or other facility that is required by law to be open to the public and accessible to all persons, regardless of disability against a “small business”, unless both of the following conditions are met:
2. At least six months prior to filing the complaint, the plaintiff provided the defendant with notice of the alleged violation, including the specific facts that constitute the alleged violation, and a description of how the violation or violations can be remedied; and
3. The defendant failed to make a “good faith effort” to correct the alleged violation within six months of the date when the notice of the alleged violation was received.
4. Defines “small business” to be a business that employs fewer than 50 full-time employees.

EXISTING LAW:

1. Pursuant to federal law, under the Americans with Disabilities Act (ADA), provides that no individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation by any person who owns, leases, or leases to, or operates a place of public accommodation. (42 U.S.C. Section 12182.)
2. 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.)
3. 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.)
4. 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.)
5. 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.)
6. 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 (f).)
7. Establishes a presumption that certain "technical violations" (including faded parking lot striping and the lack of certain signs) 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 (with 25 or fewer employees), 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. (Section 55.56 (e)(1).)
8. Reduces a defendant’s liability for statutory damages in a construction-related accessibility claim against a place of public accommodation 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 that the property was previously inspected by one of a number of building standards experts, including a Certified Access Specialist (CASp). (Section 55.56 (g)(1).)
9. Reduces a defendant’s liability for statutory damages in a construction-related accessibility claim against a place of public accommodation to a minimum of two thousand dollars ($2,000) for each offense if the defendant demonstrates that it has corrected all construction-related violations that are the basis of a claim within 30 days of being served with the complaint and the defendant is a business with 25 or fewer employees. (Section 55.56 (g)(2).)
10. Protects a business with 50 or fewer employees from all 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 specified conditions. (Section 55.56 (g)(3).)
11. Allows a defendant to assert the protection from liability for minimum statutory damages described in 10), above, 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. (Section 55.56 (g)(4).)

FISCAL EFFECT: As currently in print this bill is keyed non-fiscal.

COMMENTS: Under the twenty-seven 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 the like that 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.

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 and Disabled Persons Act, which incorporate the ADA into their provisions and make a violation of the ADA punishable as a violation of Unruh and the Disabled Persons Act. (Sections 51, 54.) All violations under the Disabled Persons Act are liable for the actual damages and an amount determined by a jury, or the court sitting without a jury, up to a maximum of three times the actual damages (there is a minimum fine of $1,000) and attorney’s fees. All violations of Unruh are subject to statutory damages of at least four thousand dollars per violation, except some cases where the violation is based on a construction-related accessibility claim, in which case lower damages (a minimum of one thousand or two thousand dollars, depending on the circumstances of the case) apply.

This bill singles out one minority group for special barriers to enforcement of civil rights protections in a manner that likely violates state and federal civil right laws, including the ADA. This bill would prohibit a plaintiff from commencing an action against what it defines as a “small business” (defined as a business that employees fewer than 50 full-time employees) for a violation of the Disabled Persons Act (but not Unruh) unless all of the following conditions were satisfied: 1) the plaintiff provided notice of the violation to the defendant six months prior to filing the complaint; 2) the notice included specific facts that constitute the alleged violation; 3) the notice specified how the violations can be remedied; and 4) the defendant failed to make a “good faith effort” to correct the alleged violation within six months from the date the notice was received for the alleged violation.

In support of this bill and the need for legislation in this area, the author states the following:

Under existing law, a person, firm, or corporation that interferes with various specified rights of a disabled individual is liable for the actual damages of each offense and any amount determined by a judge or jury of up to 3 times the amount of the actual damages, but in no case less than $1,000. However, this law does not allow for corrections for persons, firms, or corporations that did not intentionally violate ADA regulations. Furthermore, it provides no grace periods for these organizations to rectify the violation, prior to expensive legal proceedings.

Throughout the state, predatory ADA litigation has forced many small businesses to undergo expensive court proceedings. While only 12% of the country’s disabled population resides in California, almost 40% of the recent ADA lawsuits nationwide have been filed within the state. In some cases, businesses have closed their doors in wake of accidental violation of ADA regulations. While the law is intended to ensure inclusion and access for all individuals, it has been altered into a program designed to generate revenue for predatory lawyers.

While it appears that the author has the well-intentioned goal of assisting small business owners, it appears that the author may rely on facts that are either incorrect, or outdated. For example, current law does allow the owner of a small business (with 25 or fewer employees) that is a public accommodation to correct violations of construction-related accessibility standards on her business premises and enjoy a 120-day period of immunity from liability for minimum statutory damages for any violations after obtaining a CASp inspection of the premises so that corrections can be made. (Section 55.56 (g)(2).) And while it is true that current law does not excuse unintentional violations (because intent and even knowledge is not relevant to the issue of whether a violation exists under Unruh and the DPA, as well as the ADA), state law does provide a presumption that certain “technical violations” of construction-related accessibility standards (such as faded paint on parking spaces or missing signage, as long as parking spaces are visible and a path of travel is clear) do not constitute grounds for a complaint under Unruh or the DPA, effectively excusing minor violations about which the owner may be unaware (thereby effectively excusing unknown and unintentional violations) as long as those violations are corrected within 15 days of the business owner being notified about them. (Section 55.56 (e)(1).)

Furthermore, despite the author’s good intentions, the effect of this bill is to not only significantly alter the DPA, but also to reduce compliance with requirements designed to ensure that all public accommodations are open and accessible to all persons in the state, regardless of their disability. As a result, this bill appears to frustrate the Legislature’s intent to provide special protections and remedies to a group the Legislature has deemed to be particularly vulnerable to discrimination because of their “disability or medical condition.” (Section 54 (b).) It creates a special barrier to the courts for those individuals who, unlike any other plaintiffs with any other types of claims, are required to wait six months, explain how violations of the law prohibit their access to public accommodations, and describe how to correct those violations in order to pursue their legal right to access and remedies for denial of access. This bill alters the DPA in a way that actually hurts the protected class of vulnerable persons and likely violates the DPA itself, as well as other crucial civil rights laws, including Unruh and the ADA, because it discriminates against persons who are disabled.

The premise of the bill, according to the author, is to allow business owners to have a grace period of six-months to bring their properties into compliance with the DPA, or at least make “good faith” efforts to bring the properties into compliance, after being served with notice of their violation. The premise is flawed for a number of reasons, as explained below.

The provisions of this bill would apply only to claims made under the DPA and not to other laws that prohibit the same type of disability discrimination as the DPA. A claim for disability discrimination may be asserted under either Unruh, or the DPA, or both Unruh and the DPA. (Flowers v. Prasad (2015) 238 Cal. App. 4^th 930.) As drafted, this bill would only affect a business’s liability for access violations brought under the DPA, so would have a very limited impact. The bill would still allow a plaintiff who was denied access to a public accommodation to bring an action for that violation under the Unruh Act without complying with the requirements of the bill, including the notice and six month waiting provisions. Furthermore, the bill’s restrictions and filing barriers would have no effect whatsoever on complaints alleging ADA violations which could still be filed in federal court, regardless of any state restrictions in this area of the law.

Given that—if this bill were to become law—a business owner would still be responsible for compliance with, and therefore at risk of civil liability for violation of Unruh or the ADA (which do not provide a grace period to correct violations under the conditions specified in this bill) businesses could be misled about their exposure to liability under other laws, including Unruh and the ADA. Thus, despite the bill’s beguiling appeal of protection from one set of state violations, it would not change the fact that businesses that deny access to their public accommodations remain liable for money damages, civil penalties and attorney's fees for such violations.

The bill purports to deem “good faith efforts” to comply with the DPA to constitute compliance with the DPA. Under this bill, a plaintiff could only bring an action under the DPA for being denied access to a public building, public accommodation, or other facility if the defendant failed to make a “good faith effort” to correct the access violation without defining what “good faith effort” means. What type, amount, and qualify of effort is required? Does the amount of effort depend on the expense of the repairs; the financial means of the business owner; or the time and effort required to make the repairs?

Regardless of what it means to make a “good faith effort,” the concept is inconsistent with both the letter and spirit of existing law. Neither Unruh, the DPA, nor the ADA make exceptions for “good faith” (or mistaken, or inadvertent) violations of their requirements. In keeping with their goals of ensuring that all public accommodations are accessible to the public and that all business owners bring their public accommodations into compliance with the 27 year-old ADA, these laws require compliance, regardless of the intent or effort (or even knowledge) of the business owner. Therefore, even if this bill were to become law, a business owner who made a “good faith effort” to bring her property into compliance with the DPA would still be liable for denial of access pursuant to Unruh and the ADA.

The bill inappropriately requires the plaintiff to comply with notice requirements that effectively require the plaintiff to have legal representation, but also make it virtually impossible, as a practical matter, to retain an attorney. It is unlikely that a person who was not represented by an attorney would be able to satisfy the notice requirements specified in the bill. Since the information contained in the notice must be highly specific in terms of not only each violation, but also the repairs necessary to correct the violations, this obligation would likely result in most claimants needing the assistance of an attorney. However, the need for an attorney would be frustrated by the prospect that attorney's fees would not be awarded, even if the plaintiff's claims were meritorious, as long as the defendant made “good faith efforts” to correct the violation(s). Even if a disabled person found the right person to assist her, crafted exactly the right notice that included all the required information, the person would nevertheless be prohibited from any recovery, including recovery for attorney’s fees, for a genuine act of discrimination if the cause of the problem were later rectified. The defendant would not be required to compensate the plaintiff for the denial of her rights. Business owners would have no incentive to correct access violations on their premises because they could always correct the problem in the future.

It is highly unusual for a violation of any law to be overlooked or forgiven because the violator victim has not given notice in advance. It is even more unusual for a violator to avoid any legal responsibility for the violation simply by correcting the problem in response to the violation. The general principle of our civil (and criminal) laws is that everyone is held accountable for the wrongs they have committed, even if they are not warned in advance and even if they comply with the law in the future. The Committee is unaware of any comparable provision in civil rights law.

The bill inappropriately places a burden on the plaintiff to specify how the access violations can be remedied. By prohibiting a plaintiff from bringing a civil action under the DPA without, at least six months prior to filing the complaint, having provided the defendant with “notice of the alleged violation, including . . . a description of how the violation or violations can be remedied,” this bill effectively requires the plaintiff to provide the business owner with information about how to correct the access violations on the owner’s property. This requirement is both impractical and unfair and may be illegal. How and why is a plaintiff who simply wishes to have fair and equal access to the business premises (and who alleges that he or she has unlawfully been denied access thereto) expected to know how to remedy construction-related accessibility violations without being an expert, or hiring an expert, on such standards? The business owner or tenant, on the other hand, has access to the property and has the ability to obtain a CASp inspection to determine what repairs are needed to bring the property into compliance with construction-related accessibility standards. Also, because of special benefits and reduced damages (including those discussed immediately below) available when a public accommodation is either inspected by a CASp, or brought into compliance with accessibility standards, the business owner clearly has a financial incentive to obtain such an inspection. Because the owner or tenant of a business which is a public accommodation is in a far better position than a person denied access to that business to obtain information about bringing the business into compliance with state and federal construction-related accessibility standards, this requirement may not be appropriate.

The bill would undermine recently enacted bipartisan disability access reform legislation that was the result of negotiated collaboration and compromise which provided pre-litigation relief to small businesses. In response to complaints that small businesses were the victims of lawsuits by highly litigious plaintiffs and attorneys that filed civil complaints alleging violations of disability access laws as a business practice, rather than a response to a denial of access, a bipartisan and bicameral effort led to the adoption of AB 1521 (Assembly Committee on Judiciary) in 2015 and SB 269 (Roth and Vidak) in 2016.

AB 1521 provided additional information and legal resources to small business owners who may not realize how to minimize their liability for ADA violations or respond to a lawsuit filed against them. It also limited the practice of high-volume lawsuits motivated by quick settlement with business owners, rather than correction of ADA violations. Specifically, AB 1521 did the following: 1) required the Judicial Council, by July 1, 2016, to develop a form to answer the complaint; 2) required a plaintiff's attorney to provide a defendant with a copy of the answer form when serving the defendant with a complaint or demand letter; 3) defined a "high-frequency litigant" (HFL) as either a plaintiff who has filed 10 or more complaints alleging violations of construction-related accessibility standards in the past 12 months, or an attorney who has represented 10 or more such plaintiffs in the past year (for attorneys, claims that result in correction of violations are not included); and 4) imposed new procedural requirements on HFLs who file new claims, such as a higher filing fee, special pleading requirements, and a certification by the attorney about the merits of the claim. Finally, AB 1521 required attorneys who file construction-related accessibility claims to notify the California Commission on Disability Access about how their claims are resolved.

SB 269, approved the following year, was the product of extended and careful consideration by policymakers; input from civil rights advocates and members of the disability community; and support from both Consumer Attorneys of California and the Civil Justice Association of California, as well as business organizations, such as the California Chamber of Commerce, California Business Properties Association, and Southwest California Legislative Council.

SB 269 enacted several reforms to increase ADA compliance by and financial security to small businesses. Specifically, in one of its most significant provision, SB 269 protects a business with 50 or fewer employees 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. SB 269 also established a presumption that certain “technical violations” of construction-related accessibility standards (such as faded paint on parking spaces or missing signage) do not constitute grounds for a complaint under Unruh or the DPA as long as those violations are corrected within 15 days of the business owner being notified about them.

Because some provisions on AB 1521 took effect in July of 2016 and SB 269 only took effect on January 1, 2017, there is no data about their impact. Thus, it may be reasonable for the Legislature to wait and see what effect these recent reforms have on this area of the law, on an individual and cumulative basis, before approving additional changes to the law that could inadvertently undermine those efforts.

Conclusion. The Committee may wish to be wary of a proposed law that limits rights of access to the courts, such as this one. As the federal 9^th Circuit Court of Appeals observed, “Because the right to access the courts implicates due process and First Amendment rights, courts have been exceedingly reluctant to restrict such access.” (Moy v. United States (9th Cir. 1990) 906 F.2d 467, 470.) This is especially true regarding a measure that appears on its face to discriminate against a class of citizens who are entitled under state and federal law to special protections.

ARGUMENTS IN SUPPORT: According to the Porterville Chamber of Commerce:

Law suit abuse is a growing problem for the Chamber’s member-business. This legislation aims to reduce frivolous lawsuits while preserving the intent of the Americans with Disabilities Act of 1990 (ADA). The establishment of noticing requirements before plaintiffs can take action will provide much needed relief for those businesses that made a good faith effort to correct violations of the ADA. Legislation will reduce unnecessary lawsuits while ensuring compliance to the ADA.

ARGUMENTS IN OPPOSITION: In opposition to the bill, the California Advocates for Nursing Home Reform argue:

If passed, residents living in non-ADA compliant facilities will have no legal recourse for a minimum of six months.  Even after six months, conditions for those residents won’t change if the operator can demonstrate they are “making a good faith effort” to rectify the situation.  As a practical matter, if six months have gone by and the problem persists there then should be a rebuttable presumption that the business was not acting in good faith to rectify the situation.

It is an undeniable fact that many businesses put profits before people.  When these businesses are in violation of the ADA, there is a legal and moral obligation to come into compliance as swiftly as possible.  AB 150 creates more than a set of stalling tactics for bad actors; it creates a “Get Out of ADA Liability Free” card. 

Related Pending Legislation. AB 1569 (Caballero), as introduced, would require current or prospective tenants requesting disability-related reasonable accommodations to keep an animal on the real property to be subjected to third party evaluation and verification, at the request of the landlord or person renting out the property.

Related previous legislation. SB 1608 (Corbett and Harman), Chapter 549, Statutes of 2008, enacted several reforms to increase voluntary compliance with state and federal laws requiring access to the disabled in any place of public accommodation. It established incentives for compliance and protection from litigation by responsible businesses, including a process by which businesses, if sued for violation of accessibility standards, could obtain a temporary stay of any litigation along with an in-person early evaluation conference with the court, attended by persons with authority to resolve the dispute between the parties.

SB 1186 (Steinberg), Chapter 383, Statutes of 2012, enacted a number of provisions that were intended to increase compliance with the ADA and protect small business owners, including the following: prohibit attorneys issuing to a building owner or tenant a "demand for money" alleging construction-related accessibility violations as the basis of one or more construction-related accessibility claims; require a commercial property owner to state on the lease form or rental agreement whether property being leased or rented has been inspected by a Certified Access Specialist (CASp); and add to the responsibilities of the Commission on Disability Access to review legislative measures and recommendations to promote disability access and reduce litigation.

AB 1230 (Gomez), Chapter 787, Statutes of 2015, 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. 

AB 2093 (Steinorth), Chap 379, Statutes of 2016, similar to AB 1342 (Steinorth, 2015) which was vetoed, requires a commercial property owner to state on every lease form or rental agreement executed after January 1, 2017, 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.

SB 251 (Roth), among other things, would have established 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 certain conditions are satisfied. This would have protected 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, provided that all violations were corrected within the 120 day period and other conditions were satisfied. The bill also would have provided a tax credit for eligible expenditures to increase accessibility. Virtually identical to SB 269, except for the fact that it included a tax credit, SB 251 was vetoed by the Governor.

REGISTERED SUPPORT / OPPOSITION:

Support

Porterville Chamber of Commerce

Opposition

ACLU

California Advocates for Nursing Home Reform

Californians for Disability Rights

Consumer Attorneys of California

Disability Rights California

Analysis Prepared by: Alison Merrilees and Karim Troost / JUD. / (916) 319-2334