Existing law prohibits discrimination on the basis of various specified personal characteristics, including disability. Existing law imposes civil liability upon any person or persons, firm, or corporation who denies or interferes with admittance to or enjoyment of public facilities or otherwise interferes with the rights of an individual with a disability, as specified. 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 prohibit a cause of action on the basis of a construction-related access barrier in an existing public accommodation by an individual who alleges to have been aggrieved by the existence of the access barrier from accruing unless specified conditions are met, including that a written notice has been sent to the owner and operator, as specified. The bill would create a specified 90-day period and an additional 30-day period during which the owner or operator of the public accommodation shall be permitted to remove the barrier or to make substantial progress toward removing the barrier, or to made a good faith effort to remove the barrier, as defined, before a cause of action accrues. The bill would also specify that a cause of action against an owner or operator of a public accommodation on the basis of a construction-related access barrier by an individual who alleges to have been aggrieved by the existence of the access barrier shall not accrue under the Unruh Civil Rights Act, provisions that impose civil liability upon those who deny or interfere with admittance to or enjoyment of public facilities or otherwise interfere with the rights of an individual with a disability, or the Construction-Related Accessibility Standards Compliance Act during a 90-day period, and, if applicable, the additional 30-day period, if a civil action relating to the same construction-related access barrier is pending. The bill would also require the Judicial Council to submit a report to the Legislature on or before January 1, 2021, that analyzes the impact of these provisions, as specified.

Existing law establishes the Department of Rehabilitation in the California Health and Human Services Agency to provide vocational rehabilitation services to individuals with disabilities, and directs the department to cooperate with the federal government in carrying out the purposes of federal statutes pertaining to those individuals. Existing law provides for the inspection of places of public accommodation by certified access specialists to determine if the sites meet all applicable construction-related accessibility standards, and the provision of specified certificates and reports regarding those inspections.

This bill would require the department, on or before January 1, 2020, to develop a program to educate cities, counties, cities and counties, local government agencies, and private property owners on effective and efficient strategies for promoting access to public accommodations for individuals with disabilities by engaging certified access specialists to provide guidance for remediation of potential violations of the federal Americans with Disabilities Act.

Existing law prohibits discrimination on the basis of various specified personal characteristics, including disability. Existing law imposes civil liability upon any person or persons, firm, or corporation who denies or interferes with admittance to or enjoyment of public facilities or otherwise interferes with the rights of an individual with a disability, as specified. 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 prohibit a cause of action on the basis of a construction-related access barrier in an existing public accommodation by an individual who alleges to have been aggrieved by the existence of the access barrier from accruing unless specified conditions are met, including that a written notice has been sent to the owner and operator, as specified. The bill would create a specified 90-day period and an additional 30-day period during which the owner or operator of the public accommodation shall be permitted to remove the barrier or to make substantial progress toward removing the barrier, or to made a good faith effort to remove the barrier, as defined, before a cause of action accrues. The bill would also specify that a cause of action against an owner or operator of a public accommodation on the basis of a construction-related access barrier by an individual who alleges to have been aggrieved by the existence of the access barrier shall not accrue under the Unruh Civil Rights Act, provisions that impose civil liability upon those who deny or interfere with admittance to or enjoyment of public facilities or otherwise interfere with the rights of an individual with a disability, or the Construction-Related Accessibility Standards Compliance Act during a 90-day period, and, if applicable, the additional 30-day period, if a civil action relating to the same construction-related access barrier is pending. The bill would also require the Judicial Council to submit a report to the Legislature on or before January 1, 2021, that analyzes the impact of these provisions, as specified.

Existing law establishes the Department of Rehabilitation in the California Health and Human Services Agency to provide vocational rehabilitation services to individuals with disabilities, and directs the department to cooperate with the federal government in carrying out the purposes of federal statutes pertaining to those individuals. Existing law provides for the inspection of places of public accommodation by certified access specialists to determine if the sites meet all applicable construction-related accessibility standards, and the provision of specified certificates and reports regarding those inspections.

This bill would require the department, on or before January 1, 2020, to develop a program to educate cities, counties, cities and counties, local government agencies, and private property owners on effective and efficient strategies for promoting access to public accommodations for individuals with disabilities by engaging certified access specialists to provide guidance for remediation of potential violations of the federal Americans with Disabilities Act.

Date of Hearing: April 10, 2018

ASSEMBLY COMMITTEE ON JUDICIARY

Mark Stone, Chair

ABPCA Bill Id:AB 3158

Author:(Mathis) – As Amended Ver:March 19, 2018

SUBJECT: DISABILITY ACCESS: CONSTRUCTION-RELATED ACCESS BARRIERS: CIVIL ACTIONS

KEY ISSUES:

1. SHOULD SPECIAL PROCEDURAL OBSTACLES BE ENACTED TO LIMIT THE ABILITY OF DISABLED PERSONS TO ENFORCE THEIR RIGHT OF ACCESS TO PUBLIC ACCOMMODATIONS UNDER STATE LAW?
2. SHOULD THE LEGISLATURE ENACT CHANGES TO STATE LAW THAT SUBJECT DISABLED PERSONS TO DIFFERENT REQUIREMENTS AND RESTRICTIONS THAN OTHER SIMILARLY SITUATED PERSONS WHO SEEK TO ENFORCE THEIR CIVIL RIGHTS, IN APPARENT VIOLATION OF MULTIPLE STATUTES AND CONSTITUTIONAL PROVISIONS, INCLUDING PROHIBITIONS ON DISCRIMINATION ON THE BASIS OF DISABILITY?
3. SHOULD THE RIGHT OF DISABLED PERSONS TO PURSUE THEIR RIGHT OF ACCESS TO PUBLIC ACCOMMODATIONS AND THEIR RIGHT TO FILE CIVIL COMPLAINTS FOR DENIAL OF SUCH ACCESS DEPEND ON WHETHER ANOTHER CLAIM IS PENDING AGAINST AN OWNER OR OPERATOR OF THE ACCOMMODATION THAT DENIES THEIR RIGHT OF ACCESS?
4. SHOULD AN OWNER OR OPERATOR OF A PUBLIC ACCOMMODATION BE EXCUSED FROM THE LEGAL OBLIGATION TO PROVIDE ACCESS TO THE ACCOMMODATION FOR 165 DAYS (OR MORE) AFTER A DISABLED PERSON HAS BEEN DENIED ACCESS TO THE ACCOMMODATION?
5. COULD THE CHANGES TO EXISTING LAW PROPOSED BY THIS BILL INVITE FRAUD AND MISCHIEF AND DISCOURAGE COMPLIANCE WITH CONSTRUCTION-RELATED ACCESSIBILITY LAWS BY GIVING OWNERS AND OPERATORS THE FALSE IMPRESSION THAT COMPLIANCE IS NOT REQUIRED UNTIL AFTER THEY ARE NOTIFIED OF VIOLATIONS?
6. SHOULD THE STATE OF CALIFORNIA ENACT THE DRAMATIC AND APPARENTLY DISCRIMINATORY CHANGES PROPOSED BY THIS BILL EVEN THOUGH THE CHANGES MAY NOT REDUCE THE NUMBER OF CONSTRUCTION-RELATED ACCESSIBILITY CLAIMS BROUGHT AGAINST PUBLIC ACCOMMODATIONS AND COULD, IN FACT, ACCELERATE THE TREND OF FILING SUCH CLAIMS IN FEDERAL COURT, WHERE THERE ARE FEWER MECHANISMS AVAILABLE TO LIMIT LIABILITY AND AVOID LITIGATION?

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 in response to noncompliance. 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., 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 the ADA, as well as 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 the Unruh Civil Rights Act (Unruh), which incorporate 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 alleging a construction-related accessibility violation until and unless (1) the plaintiff satisfies a number of difficult and specific requirements, including to notify the owner or operator of the public accommodation a list of specific laws and regulations that have been violated and have no contact with the owner or operator for the next 45 days, and to wait at least 90 and as long as 120 days (resulting in a minimum of 135 days from the date when access is denied, to well over 165 days, depending on when the initial 45 day period starts running); (2) the entity alleged to have denied the plaintiff access to the public accommodation fails to do a long list of specific actions; and (3) it is determined, regardless of whether the above requirements are satisfied, that no other complaint alleging a construction-related accessibility violation by the owner or operator of a public accommodation is pending.

Finally, the bill imposes new requirements on two government agencies in relation to construction-related accessibility standards. First, it requires, the Judicial Council, by January 1, 2023, to submit a report to the Legislature about the number of individuals in each county who filed 10 or more actions alleging violations of construction-related accessibility violations each year between 2019 and 2022, something that the Judicial Council does not have the means to calculate. It also requires the Judicial Council to make a number of highly subjective judgments about a number of policy proposals, that the Judicial Council is not accustomed to making. Second, it requires, on or before January 1, 2020, the Department of Rehabilitation in the California Health and Human Services Agency to develop a program to educate cities, counties, cities and counties, local government agencies, and private property owners on effective and efficient strategies for promoting access to public accommodations for individuals with disabilities, something that is not within its current duties or subject matter expertise of that department.

This bill is somewhat 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 most other failed prior versions for a number of reasons, including the fact that it clearly discriminates against disabled persons and the fact that it includes an unprecedented, unfair, impractical (and likely unconstitutional) prohibition on filing a civil complaint alleging a construction-related accessibility violation by an owner or operator of a public accommodation when any lawsuit alleging such a violation is pending against the owner or operator. This latter provision is not only fraught with legal issues, as explained more in the analysis, but could also invite fraud and mischief by those seeking to immunize themselves, on an ongoing and theoretically permanent basis, from liability and the cost of litigation, at least in state court.

The significant and legally questionable changes to state law proposed by this bill arguably will not reduce the total number of civil claims filed against the state’s public accommodations and is likely to exacerbate recent trends showing an increasing percentage of such cases being filed in federal court. These trends are counterproductive to efforts to help small businesses avoid so-called “predatory ADA lawsuits” because small businesses cannot take advantage of the substantive and procedural reforms that have been enacted by the Legislature in recent years when they are sued in federal court. Recent reforms to state law were enacted to help small businesses avoid litigation and minimize their exposure to liability, but coincide with a dramatic decline in the number of construction-related accessibility claims that are being filed in state court and a corresponding increase in claims being filed in federal court. This bill would likely accelerate that trend, without necessarily reducing the total number of lawsuits filed against businesses in California for access violations. This bill is supported by the California Grocers Association, the California Apartment Association, California Independent Oil Marketers Association, and Civil Justice Association 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: Limits the ability of disabled plaintiffs to pursue civil remedies for violations of construction-related accessibility laws that apply to public accommodations by imposing special procedural requirements and restrictions on such claims. Specifically, this bill:

1. Provides that a cause of action for denial of access to a public accommodation on the basis of the violation of a construction-related standard in an existing public accommodation shall not accrue unless all of the following conditions are met:
   1. The person affected by the alleged violation provides a written notice to both the owner and operator of the public accommodation by certified mail, stating facts sufficient to allow a reasonable person to identify the specific access barrier or barriers the individual encountered in the public accommodation, or by which the individual alleges he or she was deterred from attempting to access the public accommodation and the notice complies with all of the requirements set forth in 2), below.
   2. The person affected by the alleged violation does not send a demand letter, request for settlement, or other communication, other than the written notice described in subdivision a), above, to the owner or operator of the public accommodation for 45 days after the owner or operator receives that notice.
   3. The owner or operator of the public accommodation failed to provide a written description of improvements that will be made to remove the barrier in the 45 days after receiving the notice described in subdivision a), above.
   4. The owner or operator of the public accommodation failed to remove the barrier or to make substantial progress toward removing the barrier in the 90 days after the person affected by the alleged violation receives the description of improvements that will be made.
2. Requires that the written notice by the person who alleges they have been denied access to the public accommodation, or deterred from seeking access, described in subdivision (a) of 1), above, to include all of the following:
3. The circumstances under which the individual who alleges to have been aggrieved by the existence of an access barrier was actually denied access to the public accommodation.
4. The address of the public accommodation.
5. The date and time that the individual who alleges to have been aggrieved by the existence of an access barrier was denied access to, or denied reasonable use of, the public accommodation due to the alleged existence of the barrier.
6. The specific sections of the federal Americans with Disabilities Act of 1990, Public Law 101-336 (42 U.S.C. Sec. 12102) or of the California Building Code (Part 2 of Title 24 of the California Code of Regulations) that are alleged to have been violated.
7. Whether a request for assistance in removing the access barrier was made to the owner or operator of the public accommodation, or to their employee, at the time that the individual who alleges to have been aggrieved by the existence of an access barrier was denied access to, or denied reasonable use of, the public accommodation, and, if so, the name of the individual to whom the request was made.
8. Requires an owner or operator of a public accommodation, within 45 days of receiving the written notice described in subdivision (a) of 1), above, to provide to the person who provided the notice a written description of the improvements that will be made to remove the barrier.
9. Entitles the owner or operator to an additional 30 days before a cause of action accrues for the individual who alleges to have been aggrieved by the existence of the access barrier if the owner or operator has made a good faith effort to remove the barrier but failed to do so.
10. Provides that the owner or operator of the public accommodation has made a “good faith effort” to remove the alleged access barrier within the 90-day period if the owner or operator of the public accommodation did any of the following:
11. Submitted an application for construction permits, if required, prior to beginning renovations necessary to remove the access barrier or to correct the violation.
12. Hired a contractor to complete renovations necessary to remove the access barrier or to correct the violation, and secured an estimate for when that construction will be complete.
13. Started renovations necessary to remove the access barrier or to correct the violation, and worked to minimize delays to complete the construction.
14. Prohibits any cause of action against an owner or operator of a public accommodation on the basis of a construction-related access violation during the 90-day period after the owner or operator has provided the written description of the improvements that will be made to remove the violation, and, if applicable, an additional 30-day period available if the owner or operator has made a good faith effort to remove the barrier but failed to do so, if a civil action relating to the same construction-related access barrier is pending.
15. Provides that the damages awarded to a plaintiff who brings a cause of action under the Unruh Civil Rights Act, Section 54.3 of the Civil Code, or the Construction-Related Accessibility Standards Compliance Act (Part 2.52 (commencing with Section 55.51) of Division 1 of the Civil Code) on the basis of a construction-related access barrier in an existing public accommodation shall be limited to the individual who was aggrieved by the existence of the access barrier because he or she was denied access to, or reasonable use of, the public accommodation that is the subject of the action.
16. Requires, on or before January 1, 2021, and ending on January 1, 2023, the Judicial Council to submit a report to the Legislature, analyzing the impact of the bill’s provisions, and including all of the following:
17. The number of individuals in each county who filed 10 or more actions alleging a violation of the Unruh Civil Rights Act (Section 51 of the Civil Code), Section 54.3 of the Civil Code, or the Construction-Related Accessibility Standards Compliance Act (Part 2.52 (commencing with Section 55.51) of Division 1 of the Civil Code) within any 12-month period after the operative date of this section.
18. Whether this section has affected the number of causes of action on the basis of a construction-related access barrier in an existing public accommodation that are filed by an individual who alleges to have been aggrieved by the existence of the access barrier.
19. Whether this section has impacted an individual’s ability to bring a legitimate, good faith, accessibility claim under the Unruh Civil Rights Act (Section 51 of the Civil Code), Section 54.3 of the Civil Code, or the Construction-Related Accessibility Standards Compliance Act (Part 2.52 (commencing with Section 55.51) of Division 1 of the Civil Code).
20. Recommendations as to whether a limitation on recoverable attorney fees would reduce the number of actions brought by individual plaintiffs under the Unruh Civil Rights Act (Section 51 of the Civil Code), Section 54.3 of the Civil Code, or the Construction-Related Accessibility Standards Compliance Act (Part 2.52 (commencing with Section 55.51) of Division 1 of the Civil Code).
21. Requires, on or before January 1, 2020, the Department of Rehabilitation in the California Health and Human Services Agency to develop a program to educate cities, counties, cities and counties, local government agencies, and private property owners on effective and efficient strategies for promoting access to public accommodations for individuals with disabilities, as defined in Sections 51 and 54 of the Civil Code.
22. Requires the program described in 9), above, to engage certified access specialists to provide guidance for remediation of potential violations under the Americans with Disabilities Act of 1990, Public Law 101-336 (42 U.S.C. Sec. 12102) (hereafter ADA).

EXISTING LAW:

1. Pursuant to federal law, under the 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. Provides, pursuant to the Unruh Civil Rights Act (Unruh), 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, pursuant to the Disabled Persons Act (DPA), 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, pursuant to the DPA, that individuals with disabilities shall be entitled to full and equal access to, as other members of the general public, to accommodations, advantages, facilities, medical facilities, . . and privileges of all common carriers, . . or any other public conveyances or modes of transportation . . . hotels, lodging places, places of public accommodation, amusement, or resort, and other places to which the general public is invited, subject to conditions and limitations established by law. (Section 54.1.)
5. Provides that a violation of the ADA also constitutes a violation of the DPA. 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 fiscal.

COMMENTS: Under the twenty-eight 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, government facilities, etc.) is prohibited from discriminating on the basis of disability if its operations affect interstate commerce. Prohibited discrimination can take a number of forms, including denial of participation in the facility, or a service, benefit, or good of the business. Under Title III of the ADA, a plaintiff is not entitled to recover damages, but is entitled to obtain injunctive relief and recover attorneys’ fees and costs.

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 (Section 51) and the Disabled Persons Act (Sections 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 Unruh, a plaintiff who prevails in a construction-related accessibility claim, like all plaintiffs in other civil rights cases brought under Unruh, is entitled to minimum statutory damages of $4,000 per violation. Unruh provides an exception for a violation based on a construction-related accessibility claim, in which case reduced damages (a minimum of one thousand or two thousand dollars, depending on the circumstances of the case) apply. (Section 55.56 (g).) The Disabled Persons Act (DPA) provides that a person who prevails in a civil action under the DPA is entitled to recover actual damages and an amount determined by a jury, or the court sitting without a jury, a minimum civil fine of $1,000 and up to a maximum of three times the actual damages, as well as attorney’s fees. However, “[a] person may not be held liable for damages pursuant to both [the DPA] and [Unruh] for the same act or failure to act.”  (Section 54.3 (c).)

Thus, 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 DPA, which both 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.)

Author’s Statement. 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. Its regulations should be heeded and adhered to, but there must be some form of protection for small businesses that unintentionally violate these regulations.

While it appears that the author may have the well-intentioned goal of assisting small business owners, it appears that the author also is relying on facts that are either incorrect or outdated (in fact, the author’s statement is virtually identical to the author’s statement regarding his AB 150 of last year, about which the same critiques were made). 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. So California law does, at least in some cases, excuse 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 apparent good intentions, the effect of this bill is to not only significantly alter Unruh and 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).)

Legal and Practical Problems. This author-sponsored bill seeks to prevent a plaintiff from filing a complaint alleging a construction-related accessibility violation unless a substantial number of specific requirements are satisfied. For the reasons described below, among others, the bill’s requirements and restrictions are extremely problematic.

Unfair and Burdensome Demands on Persons Denied Access. Among other things, a person who alleges that they have been denied access to a public accommodation on the basis of a construction-related accessibility violation must provide both the owner and operator of the accommodation with a written notice, by certified mail, that identifies not only the specific access barrier or barriers the individual encountered, but also “the specific sections” of the ADA, or the California Building Code that are alleged to have been violated. The person who was denied access to the public accommodation must also state on the written notice whether assistance was requested in removing the access barrier, implying that such a request is necessary. Therefore, the person who was denied access to the accommodation would presumably be required to have made an additional oral or written request (prior to deliver of the written notice). The person would then be prohibited from having any “other communication” with the owner or operator of the public accommodation for 45 days after the date when the owner or operator receives the notice (which the person may not know, given that they only control when they provide the written notice). After these time-consuming, restrictive, and burdensome requirements are satisfied, the person who was denied access to the public accommodation would have to continue to monitor the owner or operator’s efforts to remove access barriers, wait additional time (90-120 days) to see whether and what progress is made, and then presumably research whether any other claims alleging violations of construction-related accessibility standards are pending against the owner or operator. No similarly burdensome requirement (let alone a panoply of burdensome requirements) is imposed on a victim of apparent discrimination under existing law.

No Requirement on Owner/Operator to Actually Remove Barriers or Bring Property Into Compliance with State and Federal Law. Assuming that the person who was denied access to the public accommodation complied with all of the unfair and burdensome demands outlined above, the person would nevertheless be prohibited from filing a civil action unless the owner or operator of the public accommodation failed to do a number of other things, including (1) communicate within 45 days of receiving the written notice of the improvements that will be made to remove the barrier; and (2) remove the barrier or “make substantial progress toward removing the barrier” in 90 days after the person who was denied access to the accommodation receives the description of improvements that will be made (or the 120 days after receipt of such notice if the owner or operator made a “good faith effort to remove the barrier” within 90 days of receiving the notice). The bill does not define what is “substantial progress” toward removing the barrier, but confusingly defines “good faith” to mean the following de minimis efforts:

• Submitted an application for construction permits, if required.
• Hired a contractor and secured an estimate for when that construction will be complete.
• Started renovations necessary to remove the access barrier or to correct the violation, and worked to minimize delays to complete the construction.

Therefore, if the owner or operator submits an application for a construction permit (but does not obtain one), hires a contractor (and fires the contractor shortly thereafter), or does anything to “start” renovations, the person whose access rights were violated would have no legal recourse for such violations. The victim of discrimination would not even be able to recover out of pocket costs, such as attorney’s fees (which would likely be substantial, given the highly technical and time-intensive requirements of the bill).

It is highly unusual for a violation of any law to be overlooked or forgiven because the victim has not given notice in advance to the violator or done something perfectly legal (and protected by the U.S. Constitution), such as communicating with a business. It is even more unusual for a violator to avoid any legal responsibility for the violation simply by making “substantial progress” towards correcting the violation, but never actually being required to comply with the law. 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.

Discriminatory and Unconstitutional Effects. “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. By imposing special requirements on and limiting the civil rights of disabled persons, the bill likely violates numerous provisions of the U.S. Constitution, as well as state civil rights laws.

Equal Protection/Unlawful Discrimination: The Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution prohibits states from denying any person within its territory the equal protection of the laws, meaning that a state must treat an individual in the same manner as others in similar conditions and circumstances.

This bill seeks to apply new restrictions and requirements on just one class of individuals (disabled persons) who are seeking redress for one type of legal violation (construction-related accessibility standards) which are designed to protect only those disabled persons. Therefore, if this bill were to become law, a plaintiff who alleged that a public accommodation denied a service on the basis of the plaintiff’s race, gender, or sexual orientation could immediately file a civil complaint alleging a violation of Unruh, whereas a plaintiff who alleged that a service was denied on the basis of disability—because the plaintiff was denied or deterred from accessing the accommodation because of a construction-related accessibility violation—could not. This bill alters Unruh and the DPA in a way that actually hurts the protected class of vulnerable persons and likely violates those underlying laws, as well as the Equal Protection Clause of the 14^th Amendment to the U.S. Constitution.

First Amendment Rights: The First Amendment to the U.S. Constitution provides that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” (U.S. Const., amend. I.) It guarantees a number of distinct rights, including the rights to exercise the freedom of speech (prohibiting governmental restrictions on the press or the rights of individuals to speak freely), freedom of assembly, and ability to petition the government for redress of grievances.

The bill appears to violate all three of these rights enshrined within the First Amendment. Most obviously, it prohibits a person who alleges that they have been denied access to a public accommodation on the basis of a construction-related accessibility violation from having any other communication with the owner or operator of that public accommodation for 45 days after providing notice of the violation to the owner or operator by certified mail. This restriction infringes not only on the freedom of speech, but also on the freedom of assembly (i.e. right to visit a place of public accommodation, such as a business or facility, that is, by definition, open to the public). How could a person reasonably obtain access to a public accommodation without also having communication with the owner or operator of that accommodation?

This bill establishes major obstacles to a person’s First Amendment right of access to the courts in order to obtain redress for grievances in two significant ways. First, the bill makes it extremely difficult, if not impossible, for a person who is denied access to a public accommodation because of a construction-related accessibility violation to bring a civil claim in state court by imposing a long list of complicated requirements—that apply only to them, and not other similarly situated persons—that are conditions precedent to making such a claim. Second, it provides that all complaints alleging a construction-related accessibility violation are barred as long as any lawsuit alleging a violation of a construction-related accessibility standard is pending against the owner or operator of the public accommodation. Taken together, these provisions appear to deny the First Amendment right of persons who are denied access to public accommodations to petition the government for redress of grievances based upon such a denial.

Unanswered Questions About Workability. Although, as explained above, many of the bill’s provisions are problematic in terms of their impact on the rights of disabled persons, the bill nevertheless raises numerous questions about how its provisions are intended to be implemented. For example:

Is the statute of limitations tolled while requirements of the bill are being satisfied? A statute of limitations provides a time limit for bringing forward a civil claim in order to resolve a legal dispute in a timely manner. The applicable statute of limitations depends on the nature of the claim and generally runs from the date of the alleged injury (or discovery of the injury). A claim is timely if it is filed within the statute of limitations, but not after (unless the statute is tolled, usually for public policy reasons).

This bill provides that a “cause of action . . . shall not accrue” during the period of time when the requirements and restrictions of the bill are pending (up to 165 days or more). Of course, the person’s claim would generally accrue when they were denied access to the accommodation (the date of their injury) and the statute of limitations on bringing the claim would start to run at that time. Does the bill mean that the statute of limitations for bringing a cause of action against the owner or operator is tolled during that period? If, for example, the person waited to provide notice of the violation until 150 days before providing notice of the violation, would they be precluded from bringing their otherwise valid claim?

How is a person expected to know whether other claims are pending against the accommodation? The bill provides that a “cause of action” for a construction-related accessibility claim “shall not accrue” during the 90-120 day period when the owner or operator is expected to make “substantial progress” (whatever that means) toward removing the barrier “if a civil action relating to the same construction-related access barrier is pending.” It is not clear why the latter condition is necessary, given that the bill already provides that a cause of action shall not accrue unless numerous requirements, including waiting the 90-120 days (which is realistically closer to 165 days or more). Nevertheless, the provision raises questions about how the injured party would find out that information. Are they expected to research county court records to determine whether another claim is pending and then obtain copies of complaints and make a legal determination whether those claims are based upon the same violation?

Does the bill impact the ability of an injured party who obtains damages in a judgment to spend those funds as they choose? The bill provides that “the damages awarded to a plaintiff on the basis of a construction-related access barrier in an existing public accommodation shall be limited to the individual who was aggrieved by the existence of the access barrier because he or she was denied access to, or reasonable use of, the public accommodation that is the subject of the action.” The intent and purpose of this language is unclear. Existing law provides that only a person who was personally denied or deterred would be entitled to bring a claim under Unruh or the DPA (and therefore to obtain damages from a judgment based upon such a claim). (Section 55.56 (c).) It could be argued that this provision is designed to restrict the plaintiff’s expenditure of any damages they receive, but the meaning, intent, and effect of this provision is unclear.

Ability to Obtain Counsel. The bill’s complex requirements and restrictions would effectively require disabled persons to have legal representation to enforce their civil right to access public accommodations. At the same time, the bill would make it virtually impossible, as a practical matter, to retain legal assistance to enforce those rights. 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. Because the bill requires that the notice include highly technical and complex information--a list of the specific sections of the ADA or of the California Building Code that are alleged to have been violated--most claimants would need the assistance of an attorney to draft the notice. However, the need for an attorney would be frustrated by a number of the bill’s provisions. First, the bill effectively allows a claim to be prohibited for an indefinite basis (as long as another lawsuit is pending against the public accommodation or the owner or operator is making reasonable progress to make repairs).

Even if a disabled person obtained legal counsel, crafted a written notice that included all the required information, and had no communication with the owner or operator or the public accommodation for the requisite period of time, the person would nevertheless apparently be prohibited from any recovery, including recovery for attorney’s fees, even though they were subject to 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, or any of the plaintiff’s expenses, such as legal costs. Business owners would have no incentive to correct access violations on their premises before being notified of violations because they could always correct the problem in the future. They would be mistaken, however, given their responsibilities under the ADA and their liability for those violations in federal court.

Race to the Courthouse--Opportunities for Fraud and Mischief? The bill prohibits any new civil claims from accruing against the owner or operator of a public accommodation, based upon a construction-related accessibility violation, as long as any other such claim is pending. Effectively, this means that an owner or operator of a public accommodation would be immune for liability for such violations as long as at least one claim is pending against him or her. This could invite fraud and mischief, motivating owners and operators of public accommodations to have third parties file claims against them, and eventually dismissing (and perhaps then immediately refiling) in order to prevent others from doing so. Owners or operators could, in fact, agree to sue one another, allow claims to languish, settle their claims for a nominal amount, and then refile claims before persons who are legitimately injured or deterred from filing them.

Undermines and Duplicates Recent Bipartisan ADA Reform Efforts. 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, the Legislature has enacted a number of bipartisan efforts to “reform” state law regarding construction-related accessibility claims in recent years. The measures include SB 269 (Roth and Vidak), Chap. 13, Stats. 2016, which allowed businesses that obtain CASp inspections to limit their damages, and avoid liability for “technical violations” of accessibility standards by correcting them within 15 days. Likewise, in an effort to curtail the small percentage of ADA claims filed in bad faith and motivated to obtain quick settlements which prey on unsophisticated small business owners who are unaware of their legal rights and responsibilities under the ADA (the very group who the author seeks to protect in this bill), the Legislature passed AB 1521 by this Committee (Chap. 755, Stats. 2015), which provides additional resources and information to business owners and limits the practice of high-volume lawsuits that are motivated by a desire to obtain quick settlements (the very problem the author indicates that he seeks to address).

The bill would have no impact on liability for ADA violations in federal court, where more claims are now filed, and is likely to further accelerate the trend of filing claims in federal court. Recent data from the California Commission on Disability Access (CCDA) 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 likely is not needed. According to CCDA’s 2017 Report to the Legislature, only 643 complaints alleging violations of construction-related accessibility claims were filed in California state courts [and transmitted to the CCDA] in 2017. That number represents a dramatic decrease in the number of these complaints filed in state court since 2013, when there were 1,950 complaints filed in state courts and sent to CCDA. The percentage of complaints filed in state court fell from 68 percent of all filings in 2013 to just 27 percent in 2017. (California Commission on Disability Access, 2017 Annual Report to the California State Legislature (Jan. 31, 2018), p. 14.) There has been a corresponding increase in complaints filed in federal court between 2013 (when only 605 complaints were filed) and 2017 (when 1,722 complaints were filed). (Ibid.) The percentage of all complaints that were filed in federal court grew from 24 percent in 2013 to 73 percent in 2017. (Ibid.) The CCDA indicates that it is “unable to ascertain the factors that are contributing to the growth in federal complaints.” (Ibid.)

Another recent trend, according to CCDA, is that “prelitigation letters continue to grow substantially for reasons unknown.” (CCDA 2017 Annual Report, supra, at p. 18.) They accounted for 38 percent of the 3,826 documents relating to access violations that the CCDA received in 2017 and grew by 87 percent over 2016. (Ibid.)

While it is difficult to explain the increase in prelitigation letters, it seems reasonable to conclude that the dramatic decline in state filings and increase in federal filings likely means that recent reforms to state construction-related accessibility laws is likely driving cases out of state court, the only venue where they are generally applicable. Thus, the reforms have been effective in deterring complaints being filed in state court but not federal court.

Naturally, California policy makers cannot change federal law in a way that will similarly decrease the number of claims filed in federal courts. But the changes to construction-related accessibility law proposed by bills like this would have no effect on the number of complaints filed in federal court, other than to further increase them and exacerbate these trends. Why would any plaintiff be motivated to pursue a state claim—considering all of the obstacles and prohibitions, and possible permanent bar on obtaining any remedy for a violation—when a claim that could result in both injunctive relief and recovery of costs, including attorney’s fees, could be obtained by filing in federal court?

The bill requires the Judicial Council to report information that is difficult to obtain or requires highly subjective policy judgments. The bill requires that the Judicial Council reports two types of information: (1) statewide data about the number of individuals who have filed ten or more civil actions regarding access violations; and (2) a number of recommendations that are highly subjective. Without a statewide case management system, the Judicial Council has no mechanism for obtaining data about the number of actions filed in each county alleging violation of construction-related accessibility laws, let alone those which are filed by individuals who filed 10 or more such claims (in any county). However, CCDA now collects information about the number of construction-related accessibility claims filed by such persons, who are defined as “high frequency litigants” (Code of Civil Procedure Section 425.55 (b).) In fact, CCDA recently reported the following about high frequency litigants:

Of the 2,365 federal and state complaints reported to CCDA in 2017, 98 (4 percent) were from self-identified high frequent litigants (HFLs), which are defined in GC 425.55 as plaintiffs that have filed 10 or more complaints alleging a construction-related accessibility violation within a 12-month period.

In 2017, complaints received from HFLs averaged 81 percent of the complaints reported to CCDA; in 2016, such complaints constituted 75 percent.

Of the 2,365 federal and state complaints (excludes prelitigation letters) reported to CCDA in 2017, 1,747 (74 percent) were filed by four law firms. (CCDA 2017 Annual Report, supra, at p. 15.)

In addition, CCDA collects and reports data about the zip codes from which complaints and demand letters are mailed, which provides a snapshot of the geographical areas from which most litigation and prelitigation documents are generated. In addition to creating a map to reflect this data, CCDA’s 2017 report states the following:

In 2017, the number of complaints received remains heavily concentrated in urban areas. Southern California had the highest number of filings, followed by Northern California (Bay Area). Central Valley region ranked third, followed by the Sacramento region. This is consistent with 2016 filings. (Id., at p. 27.)

The bill also requires Judicial Council, on or before January 1, 2021, to submit a report to the Legislature analyzing the impact of these provisions that includes all of the following:

(B) Whether this section has affected the number of causes of action on the basis of a construction-related access barrier in an existing public accommodation that are filed by an individual who alleges to have been aggrieved by the existence of the access barrier.

(C) Whether this section has impacted an individual’s ability to bring a legitimate, good faith, accessibility claim under the Unruh Civil Rights Act (Section 51 of the Civil Code), Section 54.3 of the Civil Code, or the Construction-Related Accessibility Standards Compliance Act (Part 2.52 (commencing with Section 55.51) of Division 1 of the Civil Code).

(D) Recommendations as to whether a limitation on recoverable attorney fees would reduce the number of actions brought by individual plaintiffs under the Unruh Civil Rights Act (Section 51 of the Civil Code), Section 54.3 of the Civil Code, or the Construction-Related Accessibility Standards Compliance Act (Part 2.52 (commencing with Section 55.51) of Division 1 of the Civil Code).

These are highly subjective judgments about the effect and impact of the bill’s policy proposals, rather than the types of facts and data normally reported by the Judicial Council (and other state agencies for that matter) that are used by policy makers in decisions whether policy should be changed. These highly subjective policy judgments are more appropriately made by the Legislature than the Judicial Council.

The bill requires the Department of Rehabilitation to develop an educational program that is not within its current duties or subject matter expertise. At one time, the Department of Rehabilitation (DRR) had a role in the implementation and oversight of construction-related accessibility laws. Government Code Section 4455, adopted in 1970, provides as follows:

The Department of Rehabilitation shall be responsible for educating the public and working with officials of cities, counties, municipalities, and other political subdivisions, private architects, designers, planners, and other interested parties in order to encourage and help them make all buildings, facilities, and improved areas accessible to and usable by handicapped persons for purposes of rehabilitation, employment, business, recreation, and all other aspects of normal living.

However, DRR reportedly never obtained funding to carry out these responsibilities and therefore never carried out the duties in Section 4455 of the Government Code.

Fortunately, a new commission was formed many years later that has a similar mission and at least a small budget. AB 1608 (Corbett), Chap. 549, Stats. 2008, established the California Commission on Disability Access (CCDA) for certain purposes relating to disability access, and required the commission to conduct studies and make reports to the Legislature. SB 1608 appropriated $80,000 from the General Fund to the commission, available May 1, 2009, to fund its startup. The mission of the CCDA, according to the commission’s website, is to do the following:

[P]romote disability access in California through dialogue and collaboration with stakeholders including, but not limited to, the disability and business communities as well as all levels of government. . .[And] to act as an information resource; to research and prepare advisory reports of findings to the Legislature on issues related to disability access, compliance inspections and continuing education; to increase coordination between stakeholders; to make recommendations to promote compliance with federal, and state laws and regulations; and to provide uniform information about programmatic and architectural disability access requirements to the stakeholders.

The bill requires DRR, not CCDA, to “develop a program to educate [local governments] and private property owners on effective and efficient strategies for promoting access to public accommodations” even though CCDA, not DRR, has the current mission and expertise to do so. Furthermore, there is no evidence that CCDA has not already done what this bill requires DRR to do. Therefore, this provision of the bill is duplicative and unnecessary.

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.

ARGUMENTS IN SUPPORT: Supporters of the bill argue that it is necessary because “The law does not provide for corrections by businesses for unintended violations or provide time to rectify situations prior to the commencement of legal proceedings.” They also say that it will “create a window to allow a business to remove barriers to access while maintaining their ability to serve their customers. The bill will ensure that ADA regulations remain in place while allowing small businesses time to correct and cure violations without being subject to costly litigation.”

ARGUMENTS IN OPPOSITION: Opponents echo many of the discrimination and civil rights concerns that are explained in the analysis. In addition, Disability Rights California observes the following:

AB 3158 fundamentally limits the ability to enforce disability civil rights laws. It is important to note that the access laws do not require state inspectors to enforce the law or fine business owners for noncompliance. While fire marshals protect us from fires, there are no disability inspectors to make sure businesses comply with the access laws. When a business violates the law, people with disabilities are the only ones who can hold them accountable through a private lawsuit. Therefore, current law serves as a deterrent to noncompliance, preventing violations and helping to ensure access.

REGISTERED SUPPORT / OPPOSITION:

Support

California Apartment Association

California Grocers Association

California Independent Oil Marketers Association

Civil Justice Association of California

Opposition

ACLU of California

California Advocates for Nursing Home Reform

Californians for Disability Rights

Consumer Attorneys of California

Disability Rights California

One individual

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

Date of Hearing: April 3, 2018

ASSEMBLY COMMITTEE ON JUDICIARY

Mark Stone, Chair

ABPCA Bill Id:AB 3158

Author:(Mathis) – As Amended Ver:March 19, 2018

SUBJECT: DISABILITY ACCESS: CONSTRUCTION-RELATED ACCESS BARRIERS: CIVIL ACTIONS

KEY ISSUES:

1. SHOULD SPECIAL PROCEDURAL OBSTACLES BE ENACTED TO LIMIT THE ABILITY OF DISABLED PERSONS TO ENFORCE THEIR RIGHT OF ACCESS TO PUBLIC ACCOMMODATIONS UNDER STATE LAW?
2. SHOULD THE LEGISLATURE ENACT CHANGES TO STATE LAW THAT SUBJECT DISABLED PERSONS TO DIFFERENT REQUIREMENTS AND RESTRICTIONS THAN OTHER SIMILARLY SITUATED PERSONS WHO SEEK TO ENFORCE THEIR CIVIL RIGHTS, IN APPARENT VIOLATION OF MULTIPLE STATUTES AND CONSTITUTIONAL PROVISIONS, INCLUDING PROHIBITIONS ON DISCRIMINATION ON THE BASIS OF DISABILITY?
3. SHOULD THE RIGHT OF DISABLED PERSONS TO PURSUE THEIR RIGHT OF ACCESS TO PUBLIC ACCOMMODATIONS AND THEIR RIGHT TO FILE CIVIL COMPLAINTS FOR DENIAL OF SUCH ACCESS DEPEND ON WHETHER ANOTHER CLAIM IS PENDING AGAINST AN OWNER OR OPERATOR OF THE ACCOMMODATION THAT DENIES THEIR RIGHT OF ACCESS?
4. SHOULD AN OWNER OR OPERATOR OF A PUBLIC ACCOMMODATION BE EXCUSED FROM THE LEGAL OBLIGATION TO PROVIDE ACCESS TO THE ACCOMMODATION FOR 165 DAYS (OR MORE) AFTER A DISABLED PERSON HAS BEEN DENIED ACCESS TO THE ACCOMMODATION?
5. COULD THE CHANGES TO EXISTING LAW PROPOSED BY THIS BILL INVITE FRAUD AND MISCHIEF AND DISCOURAGE COMPLIANCE WITH CONSTRUCTION-RELATED ACCESSIBILITY LAWS BY GIVING OWNERS AND OPERATORS THE FALSE IMPRESSION THAT COMPLIANCE IS NOT REQUIRED UNTIL AFTER THEY ARE NOTIFIED OF VIOLATIONS?
6. SHOULD THE STATE OF CALIFORNIA ENACT THE DRAMATIC AND APPARENTLY DISCRIMINATORY CHANGES PROPOSED BY THIS BILL EVEN THOUGH THE CHANGES MAY NOT REDUCE THE NUMBER OF CONSTRUCTION-RELATED ACCESSIBILITY CLAIMS BROUGHT AGAINST PUBLIC ACCOMMODATIONS AND COULD, IN FACT, ACCELERATE THE TREND OF FILING SUCH CLAIMS IN FEDERAL COURT, WHERE THERE ARE FEWER MECHANISMS AVAILABLE TO LIMIT LIABILITY AND AVOID LITIGATION?

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 in response to noncompliance. 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., 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 the ADA, as well as 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 the Unruh Civil Rights Act (Unruh), which incorporate 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 alleging a construction-related accessibility violation until and unless (1) the plaintiff satisfies a number of difficult and specific requirements, including to notify the owner or operator of the public accommodation a list of specific laws and regulations that have been violated and have no contact with the owner or operator for the next 45 days, and to wait at least 90 and as long as 120 days (resulting in a minimum of 135 days from the date when access is denied, to well over 165 days, depending on when the initial 45 day period starts running); (2) the entity alleged to have denied the plaintiff access to the public accommodation fails to do a long list of specific actions; and (3) it is determined, regardless of whether the above requirements are satisfied, that no other complaint alleging a construction-related accessibility violation by the owner or operator of a public accommodation is pending.

Finally, the bill imposes new requirements on two government agencies in relation to construction-related accessibility standards. First, it requires, the Judicial Council, by January 1, 2023, to submit a report to the Legislature about the number of individuals in each county who filed 10 or more actions alleging violations of construction-related accessibility violations each year between 2019 and 2022, something that the Judicial Council does not have the means to calculate. It also requires the Judicial Council to make a number of highly subjective judgments about a number of policy proposals, that the Judicial Council is not accustomed to making. Second, it requires, on or before January 1, 2020, the Department of Rehabilitation in the California Health and Human Services Agency to develop a program to educate cities, counties, cities and counties, local government agencies, and private property owners on effective and efficient strategies for promoting access to public accommodations for individuals with disabilities, something that is not within its current duties or subject matter expertise of that department.

This bill is somewhat 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 most other failed prior versions for a number of reasons, including the fact that it clearly discriminates against disabled persons and the fact that it includes an unprecedented, unfair, impractical (and likely unconstitutional) prohibition on filing a civil complaint alleging a construction-related accessibility violation by an owner or operator of a public accommodation when any lawsuit alleging such a violation is pending against the owner or operator. This latter provision is not only fraught with legal issues, as explained more in the analysis, but could also invite fraud and mischief by those seeking to immunize themselves, on an ongoing and theoretically permanent basis, from liability and the cost of litigation, at least in state court.

The significant and legally questionable changes to state law proposed by this bill arguably will not reduce the total number of civil claims filed against the state’s public accommodations and is likely to exacerbate recent trends showing an increasing percentage of such cases being filed in federal court. These trends are counterproductive to efforts to help small businesses avoid so-called “predatory ADA lawsuits” because small businesses cannot take advantage of the substantive and procedural reforms that have been enacted by the Legislature in recent years when they are sued in federal court. Recent reforms to state law were enacted to help small businesses avoid litigation and minimize their exposure to liability, but coincide with a dramatic decline in the number of construction-related accessibility claims that are being filed in state court and a corresponding increase in claims being filed in federal court. This bill would likely accelerate that trend, without necessarily reducing the total number of lawsuits filed against businesses in California for access violations. This bill is supported by the California Grocers Association, the California Apartment Association, California Independent Oil Marketers Association, and one individual. 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: Limits the ability of disabled plaintiffs to pursue civil remedies for violations of construction-related accessibility laws that apply to public accommodations by imposing special procedural requirements and restrictions on such claims. Specifically, this bill:

1. Provides that a cause of action for denial of access to a public accommodation on the basis of the violation of a construction-related standard in an existing public accommodation shall not accrue unless all of the following conditions are met:
   1. The person affected by the alleged violation provides a written notice to both the owner and operator of the public accommodation by certified mail, stating facts sufficient to allow a reasonable person to identify the specific access barrier or barriers the individual encountered in the public accommodation, or by which the individual alleges he or she was deterred from attempting to access the public accommodation and the notice complies with all of the requirements set forth in 2), below.
   2. The person affected by the alleged violation does not send a demand letter, request for settlement, or other communication, other than the written notice described in subdivision a), above, to the owner or operator of the public accommodation for 45 days after the owner or operator receives that notice.
   3. The owner or operator of the public accommodation failed to provide a written description of improvements that will be made to remove the barrier in the 45 days after receiving the notice described in subdivision a), above.
   4. The owner or operator of the public accommodation failed to remove the barrier or to make substantial progress toward removing the barrier in the 90 days after the person affected by the alleged violation receives the description of improvements that will be made.
2. Requires that the written notice by the person who alleges they have been denied access to the public accommodation, or deterred from seeking access, described in subdivision (a) of 1), above, to include all of the following:
3. The circumstances under which the individual who alleges to have been aggrieved by the existence of an access barrier was actually denied access to the public accommodation.
4. The address of the public accommodation.
5. The date and time that the individual who alleges to have been aggrieved by the existence of an access barrier was denied access to, or denied reasonable use of, the public accommodation due to the alleged existence of the barrier.
6. The specific sections of the federal Americans with Disabilities Act of 1990, Public Law 101-336 (42 U.S.C. Sec. 12102) or of the California Building Code (Part 2 of Title 24 of the California Code of Regulations) that are alleged to have been violated.
7. Whether a request for assistance in removing the access barrier was made to the owner or operator of the public accommodation, or to their employee, at the time that the individual who alleges to have been aggrieved by the existence of an access barrier was denied access to, or denied reasonable use of, the public accommodation, and, if so, the name of the individual to whom the request was made.
8. Requires an owner or operator of a public accommodation, within 45 days of receiving the written notice described in subdivision (a) of 1), above, to provide to the person who provided the notice a written description of the improvements that will be made to remove the barrier.
9. Entitles the owner or operator to an additional 30 days before a cause of action accrues for the individual who alleges to have been aggrieved by the existence of the access barrier if the owner or operator has made a good faith effort to remove the barrier but failed to do so.
10. Provides that the owner or operator of the public accommodation has made a “good faith effort” to remove the alleged access barrier within the 90-day period if the owner or operator of the public accommodation did any of the following:
11. Submitted an application for construction permits, if required, prior to beginning renovations necessary to remove the access barrier or to correct the violation.
12. Hired a contractor to complete renovations necessary to remove the access barrier or to correct the violation, and secured an estimate for when that construction will be complete.
13. Started renovations necessary to remove the access barrier or to correct the violation, and worked to minimize delays to complete the construction.
14. Prohibits any cause of action against an owner or operator of a public accommodation on the basis of a construction-related access violation during the 90-day period after the owner or operator has provided the written description of the improvements that will be made to remove the violation, and, if applicable, an additional 30-day period available if the owner or operator has made a good faith effort to remove the barrier but failed to do so, if a civil action relating to the same construction-related access barrier is pending.
15. Provides that the damages awarded to a plaintiff who brings a cause of action under the Unruh Civil Rights Act, Section 54.3 of the Civil Code, or the Construction-Related Accessibility Standards Compliance Act (Part 2.52 (commencing with Section 55.51) of Division 1 of the Civil Code) on the basis of a construction-related access barrier in an existing public accommodation shall be limited to the individual who was aggrieved by the existence of the access barrier because he or she was denied access to, or reasonable use of, the public accommodation that is the subject of the action.
16. Requires, on or before January 1, 2021, and ending on January 1, 2023, the Judicial Council to submit a report to the Legislature, analyzing the impact of the bill’s provisions, and including all of the following:
17. The number of individuals in each county who filed 10 or more actions alleging a violation of the Unruh Civil Rights Act (Section 51 of the Civil Code), Section 54.3 of the Civil Code, or the Construction-Related Accessibility Standards Compliance Act (Part 2.52 (commencing with Section 55.51) of Division 1 of the Civil Code) within any 12-month period after the operative date of this section.
18. Whether this section has affected the number of causes of action on the basis of a construction-related access barrier in an existing public accommodation that are filed by an individual who alleges to have been aggrieved by the existence of the access barrier.
19. Whether this section has impacted an individual’s ability to bring a legitimate, good faith, accessibility claim under the Unruh Civil Rights Act (Section 51 of the Civil Code), Section 54.3 of the Civil Code, or the Construction-Related Accessibility Standards Compliance Act (Part 2.52 (commencing with Section 55.51) of Division 1 of the Civil Code).
20. Recommendations as to whether a limitation on recoverable attorney fees would reduce the number of actions brought by individual plaintiffs under the Unruh Civil Rights Act (Section 51 of the Civil Code), Section 54.3 of the Civil Code, or the Construction-Related Accessibility Standards Compliance Act (Part 2.52 (commencing with Section 55.51) of Division 1 of the Civil Code).
21. Requires, on or before January 1, 2020, the Department of Rehabilitation in the California Health and Human Services Agency to develop a program to educate cities, counties, cities and counties, local government agencies, and private property owners on effective and efficient strategies for promoting access to public accommodations for individuals with disabilities, as defined in Sections 51 and 54 of the Civil Code.
22. Requires the program described in 9), above, to engage certified access specialists to provide guidance for remediation of potential violations under the Americans with Disabilities Act of 1990, Public Law 101-336 (42 U.S.C. Sec. 12102) (hereafter ADA).

EXISTING LAW:

1. Pursuant to federal law, under the 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. Provides, pursuant to the Unruh Civil Rights Act (Unruh), 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, pursuant to the Disabled Persons Act (DPA), 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, pursuant to the DPA, that individuals with disabilities shall be entitled to full and equal access to, as other members of the general public, to accommodations, advantages, facilities, medical facilities, . . and privileges of all common carriers, . . or any other public conveyances or modes of transportation . . . hotels, lodging places, places of public accommodation, amusement, or resort, and other places to which the general public is invited, subject to conditions and limitations established by law. (Section 54.1.)
5. Provides that a violation of the ADA also constitutes a violation of the DPA. 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 fiscal.

COMMENTS: Under the twenty-eight 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, government facilities, etc.) is prohibited from discriminating on the basis of disability if its operations affect interstate commerce. Prohibited discrimination can take a number of forms, including denial of participation in the facility, or a service, benefit, or good of the business. Under Title III of the ADA, a plaintiff is not entitled to recover damages, but is entitled to obtain injunctive relief and recover attorneys’ fees and costs.

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 (Section 51) and the Disabled Persons Act (Sections 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 Unruh, a plaintiff who prevails in a construction-related accessibility claim, like all plaintiffs in other civil rights cases brought under Unruh, is entitled to minimum statutory damages of $4,000 per violation. Unruh provides an exception for a violation based on a construction-related accessibility claim, in which case reduced damages (a minimum of one thousand or two thousand dollars, depending on the circumstances of the case) apply. (Section 55.56 (g).) The Disabled Persons Act (DPA) provides that a person who prevails in a civil action under the DPA is entitled to recover actual damages and an amount determined by a jury, or the court sitting without a jury, a minimum civil fine of $1,000 and up to a maximum of three times the actual damages, as well as attorney’s fees. However, “[a] person may not be held liable for damages pursuant to both [the DPA] and [Unruh] for the same act or failure to act.”  (Section 54.3 (c).)

Thus, 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 DPA, which both 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.)

Author’s Statement. 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. Its regulations should be heeded and adhered to, but there must be some form of protection for small businesses that unintentionally violate these regulations.

While it appears that the author may have the well-intentioned goal of assisting small business owners, it appears that the author also is relying on facts that are either incorrect or outdated (in fact, the author’s statement is virtually identical to the author’s statement regarding his AB 150 of last year, about which the same critiques were made). 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. So California law does, at least in some cases, excuse 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 apparent good intentions, the effect of this bill is to not only significantly alter Unruh and 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).)

Legal and Practical Problems. This author-sponsored bill seeks to prevent a plaintiff from filing a complaint alleging a construction-related accessibility violation unless a substantial number of specific requirements are satisfied. For the reasons described below, among others, the bill’s requirements and restrictions are extremely problematic.

Unfair and Burdensome Demands on Persons Denied Access. Among other things, a person who alleges that they have been denied access to a public accommodation on the basis of a construction-related accessibility violation must provide both the owner and operator of the accommodation with a written notice, by certified mail, that identifies not only the specific access barrier or barriers the individual encountered, but also “the specific sections” of the ADA, or the California Building Code that are alleged to have been violated. The person who was denied access to the public accommodation must also state on the written notice whether assistance was requested in removing the access barrier, implying that such a request is necessary. Therefore, the person who was denied access to the accommodation would presumably be required to have made an additional oral or written request (prior to deliver of the written notice). The person would then be prohibited from having any “other communication” with the owner or operator of the public accommodation for 45 days after the date when the owner or operator receives the notice (which the person may not know, given that they only control when they provide the written notice). After these time-consuming, restrictive, and burdensome requirements are satisfied, the person who was denied access to the public accommodation would have to continue to monitor the owner or operator’s efforts to remove access barriers, wait additional time (90-120 days) to see whether and what progress is made, and then presumably research whether any other claims alleging violations of construction-related accessibility standards are pending against the owner or operator. No similarly burdensome requirement (let alone a panoply of burdensome requirements) is imposed on a victim of apparent discrimination under existing law.

No Requirement on Owner/Operator to Actually Remove Barriers or Bring Property Into Compliance with State and Federal Law. Assuming that the person who was denied access to the public accommodation complied with all of the unfair and burdensome demands outlined above, the person would nevertheless be prohibited from filing a civil action unless the owner or operator of the public accommodation failed to do a number of other things, including (1) communicate within 45 days of receiving the written notice of the improvements that will be made to remove the barrier; and (2) remove the barrier or “make substantial progress toward removing the barrier” in 90 days after the person who was denied access to the accommodation receives the description of improvements that will be made (or the 120 days after receipt of such notice if the owner or operator made a “good faith effort to remove the barrier” within 90 days of receiving the notice). The bill does not define what is “substantial progress” toward removing the barrier, but confusingly defines “good faith” to mean the following de minimis efforts:

• Submitted an application for construction permits, if required.
• Hired a contractor and secured an estimate for when that construction will be complete.
• Started renovations necessary to remove the access barrier or to correct the violation, and worked to minimize delays to complete the construction.

Therefore, if the owner or operator submits an application for a construction permit (but does not obtain one), hires a contractor (and fires the contractor shortly thereafter), or does anything to “start” renovations, the person whose access rights were violated would have no legal recourse for such violations. The victim of discrimination would not even be able to recover out of pocket costs, such as attorney’s fees (which would likely be substantial, given the highly technical and time-intensive requirements of the bill).

It is highly unusual for a violation of any law to be overlooked or forgiven because the victim has not given notice in advance to the violator or done something perfectly legal (and protected by the U.S. Constitution), such as communicating with a business. It is even more unusual for a violator to avoid any legal responsibility for the violation simply by making “substantial progress” towards correcting the violation, but never actually being required to comply with the law. 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.

Discriminatory and Unconstitutional Effects. “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. By imposing special requirements on and limiting the civil rights of disabled persons, the bill likely violates numerous provisions of the U.S. Constitution, as well as state civil rights laws.

Equal Protection/Unlawful Discrimination: The Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution prohibits states from denying any person within its territory the equal protection of the laws, meaning that a state must treat an individual in the same manner as others in similar conditions and circumstances.

This bill seeks to apply new restrictions and requirements on just one class of individuals (disabled persons) who are seeking redress for one type of legal violation (construction-related accessibility standards) which are designed to protect only those disabled persons. Therefore, if this bill were to become law, a plaintiff who alleged that a public accommodation denied a service on the basis of the plaintiff’s race, gender, or sexual orientation could immediately file a civil complaint alleging a violation of Unruh, whereas a plaintiff who alleged that a service was denied on the basis of disability—because the plaintiff was denied or deterred from accessing the accommodation because of a construction-related accessibility violation—could not. This bill alters Unruh and the DPA in a way that actually hurts the protected class of vulnerable persons and likely violates those underlying laws, as well as the Equal Protection Clause of the 14^th Amendment to the U.S. Constitution.

First Amendment Rights: The First Amendment to the U.S. Constitution provides that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” (U.S. Const., amend. I.) It guarantees a number of distinct rights, including the rights to exercise the freedom of speech (prohibiting governmental restrictions on the press or the rights of individuals to speak freely), freedom of assembly, and ability to petition the government for redress of grievances.

The bill appears to violate all three of these rights enshrined within the First Amendment. Most obviously, it prohibits a person who alleges that they have been denied access to a public accommodation on the basis of a construction-related accessibility violation from having any other communication with the owner or operator of that public accommodation for 45 days after providing notice of the violation to the owner or operator by certified mail. This restriction infringes not only on the freedom of speech, but also on the freedom of assembly (i.e. right to visit a place of public accommodation, such as a business or facility, that is, by definition, open to the public). How could a person reasonably obtain access to a public accommodation without also having communication with the owner or operator of that accommodation?

This bill establishes major obstacles to a person’s First Amendment right of access to the courts in order to obtain redress for grievances in two significant ways. First, the bill makes it extremely difficult, if not impossible, for a person who is denied access to a public accommodation because of a construction-related accessibility violation to bring a civil claim in state court by imposing a long list of complicated requirements—that apply only to them, and not other similarly situated persons—that are conditions precedent to making such a claim. Second, it provides that all complaints alleging a construction-related accessibility violation are barred as long as any lawsuit alleging a violation of a construction-related accessibility standard is pending against the owner or operator of the public accommodation. Taken together, these provisions appear to deny the First Amendment right of persons who are denied access to public accommodations to petition the government for redress of grievances based upon such a denial.

Unanswered Questions About Workability. Although, as explained above, many of the bill’s provisions are problematic in terms of their impact on the rights of disabled persons, the bill nevertheless raises numerous questions about how its provisions are intended to be implemented. For example:

Is the statute of limitations tolled while requirements of the bill are being satisfied? A statute of limitations provides a time limit for bringing forward a civil claim in order to resolve a legal dispute in a timely manner. The applicable statute of limitations depends on the nature of the claim and generally runs from the date of the alleged injury (or discovery of the injury). A claim is timely if it is filed within the statute of limitations, but not after (unless the statute is tolled, usually for public policy reasons).

This bill provides that a “cause of action . . . shall not accrue” during the period of time when the requirements and restrictions of the bill are pending (up to 165 days or more). Of course, the person’s claim would generally accrue when they were denied access to the accommodation (the date of their injury) and the statute of limitations on bringing the claim would start to run at that time. Does the bill mean that the statute of limitations for bringing a cause of action against the owner or operator is tolled during that period? If, for example, the person waited to provide notice of the violation until 150 days before providing notice of the violation, would they be precluded from bringing their otherwise valid claim?

How is a person expected to know whether other claims are pending against the accommodation? The bill provides that a “cause of action” for a construction-related accessibility claim “shall not accrue” during the 90-120 day period when the owner or operator is expected to make “substantial progress” (whatever that means) toward removing the barrier “if a civil action relating to the same construction-related access barrier is pending.” It is not clear why the latter condition is necessary, given that the bill already provides that a cause of action shall not accrue unless numerous requirements, including waiting the 90-120 days (which is realistically closer to 165 days or more). Nevertheless, the provision raises questions about how the injured party would find out that information. Are they expected to research county court records to determine whether another claim is pending and then obtain copies of complaints and make a legal determination whether those claims are based upon the same violation?

Does the bill impact the ability of an injured party who obtains damages in a judgment to spend those funds as they choose? The bill provides that “the damages awarded to a plaintiff on the basis of a construction-related access barrier in an existing public accommodation shall be limited to the individual who was aggrieved by the existence of the access barrier because he or she was denied access to, or reasonable use of, the public accommodation that is the subject of the action.” The intent and purpose of this language is unclear. Existing law provides that only a person who was personally denied or deterred would be entitled to bring a claim under Unruh or the DPA (and therefore to obtain damages from a judgment based upon such a claim). (Section 55.56 (c).) It could be argued that this provision is designed to restrict the plaintiff’s expenditure of any damages they receive, but the meaning, intent, and effect of this provision is unclear.

Ability to Obtain Counsel. The bill’s complex requirements and restrictions would effectively require disabled persons to have legal representation to enforce their civil right to access public accommodations. At the same time, the bill would make it virtually impossible, as a practical matter, to retain legal assistance to enforce those rights. 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. Because the bill requires that the notice include highly technical and complex information--a list of the specific sections of the ADA or of the California Building Code that are alleged to have been violated--most claimants would need the assistance of an attorney to draft the notice. However, the need for an attorney would be frustrated by a number of the bill’s provisions. First, the bill effectively allows a claim to be prohibited for an indefinite basis (as long as another lawsuit is pending against the public accommodation or the owner or operator is making reasonable progress to make repairs).

Even if a disabled person obtained legal counsel, crafted a written notice that included all the required information, and had no communication with the owner or operator or the public accommodation for the requisite period of time, the person would nevertheless apparently be prohibited from any recovery, including recovery for attorney’s fees, even though they were subject to 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, or any of the plaintiff’s expenses, such as legal costs. Business owners would have no incentive to correct access violations on their premises before being notified of violations because they could always correct the problem in the future. They would be mistaken, however, given their responsibilities under the ADA and their liability for those violations in federal court.

Race to the Courthouse--Opportunities for Fraud and Mischief? The bill prohibits any new civil claims from accruing against the owner or operator of a public accommodation, based upon a construction-related accessibility violation, as long as any other such claim is pending. Effectively, this means that an owner or operator of a public accommodation would be immune for liability for such violations as long as at least one claim is pending against him or her. This could invite fraud and mischief, motivating owners and operators of public accommodations to have third parties file claims against them, and eventually dismissing (and perhaps then immediately refiling) in order to prevent others from doing so. Owners or operators could, in fact, agree to sue one another, allow claims to languish, settle their claims for a nominal amount, and then refile claims before persons who are legitimately injured or deterred from filing them.

Undermines and Duplicates Recent Bipartisan ADA Reform Efforts. 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, the Legislature has enacted a number of bipartisan efforts to “reform” state law regarding construction-related accessibility claims in recent years. The measures include SB 269 (Roth and Vidak), Chap. 13, Stats. 2016, which allowed businesses that obtain CASp inspections to limit their damages, and avoid liability for “technical violations” of accessibility standards by correcting them within 15 days. Likewise, in an effort to curtail the small percentage of ADA claims filed in bad faith and motivated to obtain quick settlements which prey on unsophisticated small business owners who are unaware of their legal rights and responsibilities under the ADA (the very group who the author seeks to protect in this bill), the Legislature passed AB 1521 by this Committee (Chap. 755, Stats. 2015), which provides additional resources and information to business owners and limits the practice of high-volume lawsuits that are motivated by a desire to obtain quick settlements (the very problem the author indicates that he seeks to address).

The bill would have no impact on liability for ADA violations in federal court, where more claims are now filed, and is likely to further accelerate the trend of filing claims in federal court. Recent data from the California Commission on Disability Access (CCDA) 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 likely is not needed. According to CCDA’s 2017 Report to the Legislature, only 643 complaints alleging violations of construction-related accessibility claims were filed in California state courts [and transmitted to the CCDA] in 2017. That number represents a dramatic decrease in the number of these complaints filed in state court since 2013, when there were 1,950 complaints filed in state courts and sent to CCDA. The percentage of complaints filed in state court fell from 68 percent of all filings in 2013 to just 27 percent in 2017. (California Commission on Disability Access, 2017 Annual Report to the California State Legislature (Jan. 31, 2018), p. 14.) There has been a corresponding increase in complaints filed in federal court between 2013 (when only 605 complaints were filed) and 2017 (when 1,722 complaints were filed). (Ibid.) The percentage of all complaints that were filed in federal court grew from 24 percent in 2013 to 73 percent in 2017. (Ibid.) The CCDA indicates that it is “unable to ascertain the factors that are contributing to the growth in federal complaints.” (Ibid.)

Another recent trend, according to CCDA, is that “prelitigation letters continue to grow substantially for reasons unknown.” (CCDA 2017 Annual Report, supra, at p. 18.) They accounted for 38 percent of the 3,826 documents relating to access violations that the CCDA received in 2017 and grew by 87 percent over 2016. (Ibid.)

While it is difficult to explain the increase in prelitigation letters, it seems reasonable to conclude that the dramatic decline in state filings and increase in federal filings likely means that recent reforms to state construction-related accessibility laws is likely driving cases out of state court, the only venue where they are generally applicable. Thus, the reforms have been effective in deterring complaints being filed in state court but not federal court.

Naturally, California policy makers cannot change federal law in a way that will similarly decrease the number of claims filed in federal courts. But the changes to construction-related accessibility law proposed by bills like this would have no effect on the number of complaints filed in federal court, other than to further increase them and exacerbate these trends. Why would any plaintiff be motivated to pursue a state claim—considering all of the obstacles and prohibitions, and possible permanent bar on obtaining any remedy for a violation—when a claim that could result in both injunctive relief and recovery of costs, including attorney’s fees, could be obtained by filing in federal court?

The bill requires the Judicial Council to report information that is difficult to obtain or requires highly subjective policy judgments. The bill requires that the Judicial Council reports two types of information: (1) statewide data about the number of individuals who have filed ten or more civil actions regarding access violations; and (2) a number of recommendations that are highly subjective. Without a statewide case management system, the Judicial Council has no mechanism for obtaining data about the number of actions filed in each county alleging violation of construction-related accessibility laws, let alone those which are filed by individuals who filed 10 or more such claims (in any county). However, CCDA now collects information about the number of construction-related accessibility claims filed by such persons, who are defined as “high frequency litigants” (Code of Civil Procedure Section 425.55 (b).) In fact, CCDA recently reported the following about high frequency litigants:

Of the 2,365 federal and state complaints reported to CCDA in 2017, 98 (4 percent) were from self-identified high frequent litigants (HFLs), which are defined in GC 425.55 as plaintiffs that have filed 10 or more complaints alleging a construction-related accessibility violation within a 12-month period.

In 2017, complaints received from HFLs averaged 81 percent of the complaints reported to CCDA; in 2016, such complaints constituted 75 percent.

Of the 2,365 federal and state complaints (excludes prelitigation letters) reported to CCDA in 2017, 1,747 (74 percent) were filed by four law firms. (CCDA 2017 Annual Report, supra, at p. 15.)

In addition, CCDA collects and reports data about the zip codes from which complaints and demand letters are mailed, which provides a snapshot of the geographical areas from which most litigation and prelitigation documents are generated. In addition to creating a map to reflect this data, CCDA’s 2017 report states the following:

In 2017, the number of complaints received remains heavily concentrated in urban areas. Southern California had the highest number of filings, followed by Northern California (Bay Area). Central Valley region ranked third, followed by the Sacramento region. This is consistent with 2016 filings. (Id., at p. 27.)

The bill also requires Judicial Council, on or before January 1, 2021, to submit a report to the Legislature analyzing the impact of these provisions that includes all of the following:

(B) Whether this section has affected the number of causes of action on the basis of a construction-related access barrier in an existing public accommodation that are filed by an individual who alleges to have been aggrieved by the existence of the access barrier.

(C) Whether this section has impacted an individual’s ability to bring a legitimate, good faith, accessibility claim under the Unruh Civil Rights Act (Section 51 of the Civil Code), Section 54.3 of the Civil Code, or the Construction-Related Accessibility Standards Compliance Act (Part 2.52 (commencing with Section 55.51) of Division 1 of the Civil Code).

(D) Recommendations as to whether a limitation on recoverable attorney fees would reduce the number of actions brought by individual plaintiffs under the Unruh Civil Rights Act (Section 51 of the Civil Code), Section 54.3 of the Civil Code, or the Construction-Related Accessibility Standards Compliance Act (Part 2.52 (commencing with Section 55.51) of Division 1 of the Civil Code).

These are highly subjective judgments about the effect and impact of the bill’s policy proposals, rather than the types of facts and data normally reported by the Judicial Council (and other state agencies for that matter) that are used by policy makers in decisions whether policy should be changed. These highly subjective policy judgments are more appropriately made by the Legislature than the Judicial Council.

The bill requires the Department of Rehabilitation to develop an educational program that is not within its current duties or subject matter expertise. At one time, the Department of Rehabilitation (DRR) had a role in the implementation and oversight of construction-related accessibility laws. Government Code Section 4455, adopted in 1970, provides as follows:

The Department of Rehabilitation shall be responsible for educating the public and working with officials of cities, counties, municipalities, and other political subdivisions, private architects, designers, planners, and other interested parties in order to encourage and help them make all buildings, facilities, and improved areas accessible to and usable by handicapped persons for purposes of rehabilitation, employment, business, recreation, and all other aspects of normal living.

However, DRR reportedly never obtained funding to carry out these responsibilities and therefore never carried out the duties in Section 4455 of the Government Code.

Fortunately, a new commission was formed many years later that has a similar mission and at least a small budget. AB 1608 (Corbett), Chap. 549, Stats. 2008, established the California Commission on Disability Access (CCDA) for certain purposes relating to disability access, and required the commission to conduct studies and make reports to the Legislature. SB 1608 appropriated $80,000 from the General Fund to the commission, available May 1, 2009, to fund its startup. The mission of the CCDA, according to the commission’s website, is to do the following:

[P]romote disability access in California through dialogue and collaboration with stakeholders including, but not limited to, the disability and business communities as well as all levels of government. . .[And] to act as an information resource; to research and prepare advisory reports of findings to the Legislature on issues related to disability access, compliance inspections and continuing education; to increase coordination between stakeholders; to make recommendations to promote compliance with federal, and state laws and regulations; and to provide uniform information about programmatic and architectural disability access requirements to the stakeholders.

The bill requires DRR, not CCDA, to “develop a program to educate [local governments] and private property owners on effective and efficient strategies for promoting access to public accommodations” even though CCDA, not DRR, has the current mission and expertise to do so. Furthermore, there is no evidence that CCDA has not already done what this bill requires DRR to do. Therefore, this provision of the bill is duplicative and unnecessary.

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.

ARGUMENTS IN SUPPORT: Supporters of the bill argue that it is necessary because “The law does not provide for corrections by businesses for unintended violations or provide time to rectify situations prior to the commencement of legal proceedings.” They also say that it will “create a window to allow a business to remove barriers to access while maintaining their ability to serve their customers. The bill will ensure that ADA regulations remain in place while allowing small businesses time to correct and cure violations without being subject to costly litigation.”

ARGUMENTS IN OPPOSITION: Opponents echo many of the discrimination and civil rights concerns that are explained in the analysis. In addition, Disability Rights California observes the following:

AB 3158 fundamentally limits the ability to enforce disability civil rights laws. It is important to note that the access laws do not require state inspectors to enforce the law or fine business owners for noncompliance. While fire marshals protect us from fires, there are no disability inspectors to make sure businesses comply with the access laws. When a business violates the law, people with disabilities are the only ones who can hold them accountable through a private lawsuit. Therefore, current law serves as a deterrent to noncompliance, preventing violations and helping to ensure access.

REGISTERED SUPPORT / OPPOSITION:

Support

California Apartment Association

California Grocers Association

California Independent Oil Marketers Association

One individual

Opposition

ACLU of Northern California

California Advocates for Nursing Home Reform

Californians for Disability Rights

Consumer Attorneys of California

Disability Rights California

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