Bill Text: CA AB54 | 2015-2016 | Regular Session | Amended

NOTE: There are more recent revisions of this legislation. Read Latest Draft

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Bill Title: Disability access: construction-related accessibility claims: demand letters.

Spectrum: Moderate Partisan Bill (Republican 9-1)

Status: (Passed) 2016-09-30 - Chaptered by Secretary of State - Chapter 872, Statutes of 2016. [AB54 Detail]

Download: California-2015-AB54-Amended.html

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BILL NUMBER: AB 54	AMENDED
	BILL TEXT

	AMENDED IN ASSEMBLY  MARCH 16, 2015
	AMENDED IN ASSEMBLY  FEBRUARY 18, 2015

INTRODUCED BY   Assembly Member Olsen
   (Principal coauthor: Assembly Member Gray)
   (Principal coauthors: Senators Berryhill, Cannella, and Galgiani)
   (Coauthors: Assembly Members Achadjian, Travis Allen, Baker,
Bigelow, Brough, Chang, Chávez, Cooper, Beth Gaines, Gallagher,
Grove, Lackey, Linder, Maienschein, Mathis, Mayes, Obernolte,
Patterson, Perea, Salas,  Steinorth,  Waldron, and Wilk)
   (Coauthors: Senators Anderson, Fuller, Gaines,  Huff, 
Nielsen, Stone, and Vidak)

                        DECEMBER 1, 2014

   An act to amend  Section   Sections 55.53 and
 55.56 of, and to add Section 55.565 to, the Civil Code, 
and to amend Sections 17053.42 and 23642 of the Revenue and Taxation
Code,   relating to public accommodations.



	LEGISLATIVE COUNSEL'S DIGEST


   AB 54, as amended, Olsen. Public accommodations:
construction-related accessibility  claims.  
standards: tax credit.  
   Existing 
    (1)     Existing  law allows a
plaintiff to collect statutory damages in a construction-related
accessibility claim against a place of public accommodation only if
the plaintiff was denied full and equal access to the place of public
accommodation on a particular occasion, as specified. Existing law
imposes a $1,000 limit on statutory damages when a defendant
demonstrates that the defendant has, among other things, cured the
construction-related accessibility violation within 60 days of being
served with a complaint. Existing law requires a demand letter
alleging a construction-related accessibility claim to, among other
things, state facts sufficient to allow a reasonable person to
identify the basis of the claim.
   This bill would, when a plaintiff brings a claim alleging a
violation of a construction-related accessibility standard within 3
years of a change in that standard, allow a plaintiff to collect
statutory damages only if the plaintiff also provides the owner,
agent, or other party responsible for the place in violation with a
written notice or demand letter at least 60 days prior to filing any
action and the violation is not cured. The bill would require the
written notice or demand letter to contain specified information.

   (2) Existing law grants an owner or tenant of a site, defined as a
place of public accommodation, that has been inspected by a
certified access specialist (CASp) and determined to meet all
applicable construction-related accessibility standards specified
rights in an action that includes a construction-related
accessibility claim.  
   The Personal Income Tax Law and the Corporation Tax Law, in
specified conformity to federal law, allow a credit against the taxes
imposed by those laws, to eligible small businesses for 50% of
eligible access expenditures, which are defined as those amounts paid
or incurred by the taxpayer to comply with the Americans With
Disabilities Act of 1990, as provided, not to exceed $250.  

   This bill, for taxable years beginning on or after January 1,
2016, would include as an eligible access expenditure any amount paid
or incurred by a taxpayer to receive an inspection by a CASp. 

   Vote: majority. Appropriation: no. Fiscal committee:  no
  yes  . State-mandated local program: no.


THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:

   SECTION 1.    (a)     The
Legislature finds and declares that the federal Americans with
Disabilities Act of 1990 (ADA) is a well-intentioned law empowering
private citizens to bring claims against businesses that do not make
their establishments accessible to those with disabilities. However,
because the ADA authorizes damages of up to $4,000   on top
of legal fees, California is a hotbed for predatory, serial litigants
seeking to win settlements from businesses out of compliance with
the ADA.  
   (b) The Legislature further finds and declares all of the
following:  
   (1) Current law permits defendants to request a court stay and an
early evaluation conference upon being served with a
construction-related accessibility claim if, among other things, the
site in question had new construction approved by a local public
building department inspector who is a certified access specialist
(CASp), no subsequent modifications or alterations have been made,
and all violations are corrected within 60 days.  
   (2) The purpose of this tax credit is to promote increased
compliance with disabled accessibility building codes throughout the
state by encouraging business and property owners to become CASp
certified. Using the relief provided by this tax credit, business and
property owners will be more likely to obtain a CASp inspection
whenever modifying or altering a site.  
   (c) The California Commission on Disability Access shall include
in its annual report to the Legislature the impact the tax credit has
had on reducing ADA compliance lawsuits. 
   SEC. 2.    Section 55.53 of the   Civil Code
  is amended to read: 
   55.53.  (a) For purposes of this part, a certified access
specialist shall, upon completion of the inspection of a site, comply
with the following:
   (1) For a meets applicable standards site, if the CASp determines
the site meets all applicable construction-related accessibility
standards, the CASp shall provide a written inspection report to the
requesting party that includes both of the following:
   (A) An identification and description of the inspected structures
and areas of the site.
   (B) A signed and dated statement that includes both of the
following:
   (i) A statement that, in the opinion of the CASp, the inspected
structures and areas of the site meet construction-related
accessibility standards. The statement shall clearly indicate whether
the determination of the CASp includes an assessment of readily
achievable barrier removal.
   (ii) If corrections were made as a result of the CASp inspection,
an itemized list of all corrections and dates of completion.
   (2) For an inspected by a CASp site, if the CASp determines that
corrections are needed to the site in order for the site to meet all
applicable construction-related accessibility standards, the CASp
shall provide a signed and dated written inspection report to the
requesting party that includes all of the following:
   (A) An identification and description of the inspected structures
and areas of the site.
   (B) A statement that, in the opinion of the CASp, the inspected
structures and areas of the site need correction to meet
construction-related accessibility standards. This statement shall
clearly indicate whether the determination of the CASp includes an
assessment of readily achievable barrier removal.
   (C) An identification and description of the structures or areas
of the site that need correction and the correction needed.
   (D) A schedule of completion for each of the corrections within a
reasonable timeframe.
   (b) For purposes of this section, in determining whether the site
meets applicable construction-related accessibility standards when
there is a conflict or difference between a state and federal
provision, standard, or regulation, the state provision, standard, or
regulation shall apply unless the federal provision, standard, or
regulation is more protective of accessibility rights.
   (c) Every CASp who conducts an inspection of a place of public
accommodation shall, upon completing the inspection of the site,
provide the building owner or tenant who requested the inspection
with the following notice, which the State Architect shall make
available as a form on the State Architect's Internet Web site:
      NOTICE TO PRIVATE PROPERTY OWNER/TENANT:

   YOU ARE ADVISED TO KEEP IN YOUR RECORDS ANY WRITTEN INSPECTION
REPORT AND ANY OTHER DOCUMENTATION CONCERNING YOUR PROPERTY SITE THAT
IS GIVEN TO YOU BY A CERTIFIED ACCESS SPECIALIST.
   IF YOU BECOME A DEFENDANT IN A LAWSUIT THAT INCLUDES A CLAIM
CONCERNING A SITE INSPECTED BY A CERTIFIED ACCESS SPECIALIST, YOU MAY
BE ENTITLED TO A COURT STAY (AN ORDER TEMPORARILY STOPPING ANY
LAWSUIT) OF THE CLAIM AND AN EARLY EVALUATION CONFERENCE.
   IN ORDER TO REQUEST THE STAY AND EARLY EVALUATION CONFERENCE, YOU
WILL NEED TO VERIFY THAT A CERTIFIED ACCESS SPECIALIST HAS INSPECTED
THE SITE THAT IS THE SUBJECT OF THE CLAIM. YOU WILL ALSO BE REQUIRED
TO PROVIDE THE COURT AND THE PLAINTIFF WITH THE COPY OF A WRITTEN
INSPECTION REPORT BY THE CERTIFIED ACCESS SPECIALIST, AS SET FORTH IN
CIVIL CODE SECTION 55.54. THE APPLICATION FORM AND INFORMATION ON
HOW TO REQUEST A STAY AND EARLY EVALUATION CONFERENCE MAY BE OBTAINED
AT www.courts.ca.gov/selfhelp-start.htm.
   YOU ARE ENTITLED TO REQUEST, FROM A CERTIFIED ACCESS SPECIALIST
WHO HAS CONDUCTED AN INSPECTION OF YOUR PROPERTY, A WRITTEN
INSPECTION REPORT AND OTHER DOCUMENTATION AS SET FORTH IN CIVIL CODE
SECTION 55.53. YOU ARE ALSO ENTITLED TO REQUEST THE ISSUANCE OF A
DISABILITY ACCESS INSPECTION CERTIFICATE, WHICH YOU MAY POST ON YOUR
PROPERTY.

   (d) (1) Commencing July 1, 2010, a local agency shall employ or
retain at least one building inspector who is a certified access
specialist. The certified access specialist shall provide
consultation to the local agency, permit applicants, and members of
the public on compliance with state construction-related
accessibility standards with respect to inspections of a place of
public accommodation that relate to permitting, plan checks, or new
construction, including, but not limited to, inspections relating to
tenant improvements that may impact access. If a local agency employs
or retains two or more certified access specialists to comply with
this subdivision, at least one-half of the certified access
specialists shall be building inspectors who are certified access
specialists.
   (2) Commencing January 1, 2014, a local agency shall employ or
retain a sufficient number of building inspectors who are certified
access specialists to conduct permitting and plan check services to
review for compliance with state construction-related accessibility
standards by a place of public accommodation with respect to new
construction, including, but not limited to, projects relating to
tenant improvements that may impact access. If a local agency employs
or retains two or more certified access specialists to comply with
this subdivision, at least one-half of the certified access
specialists shall be building inspectors who are certified access
specialists.
   (3) If a permit applicant or member of the public requests
consultation from a certified access specialist, the local agency may
charge an amount limited to a reasonable hourly rate, an estimate of
which shall be provided upon request in advance of the consultation.
A local government may additionally charge or increase permitting,
plan check, or inspection fees to the extent necessary to offset the
costs of complying with this subdivision. Any revenues generated from
an hourly or other charge or fee increase under this subdivision
shall be used solely to offset the costs incurred to comply with this
subdivision. A CASp inspection pursuant to subdivision (a) by a
building inspector who is a certified access specialist shall be
treated equally for legal and evidentiary purposes as an inspection
conducted by a private CASp. Nothing in this subdivision shall
preclude permit applicants or any other person with a legal interest
in the property from retaining a private CASp at any time.
   (e) (1) Every CASp who completes an inspection of a place of
public accommodation shall, upon a determination that the site meets
applicable standards pursuant to paragraph (1) of subdivision (a) or
is inspected by a CASp pursuant to paragraph (2) of subdivision (a),
provide the building owner or tenant requesting the inspection with a
numbered disability access inspection certificate indicating that
the site has undergone inspection by a certified access specialist.
The disability access inspection certificate shall be dated and
signed by the CASp inspector, and shall contain the inspector's name
and license number. Upon issuance of a certificate, the CASp shall
record the issuance of the numbered certificate, the name and address
of the recipient, and the type of report issued pursuant to
subdivision (a) in a record book the CASp shall maintain for that
purpose.
   (2) Beginning March 1, 2009, the State Architect shall make
available for purchase by any local building department or CASp
sequentially numbered disability access inspection certificates that
are printed with a watermark or other feature to deter forgery and
that comply with the information requirements specified in
subdivision (a).
   (3) The disability access inspection certificate may be posted on
the premises of the place of public accommodation, unless, following
the date of inspection, the inspected site has been modified or
construction has commenced to modify the inspected site in a way that
may impact compliance with construction-related accessibility
standards.
   (f) Nothing in this section or any other law is intended to
require a property owner or tenant to hire a CASp. A property owner's
or tenant's election not to hire a CASp shall not be admissible to
prove that person's lack of intent to comply with the law. 
   (g) An owner or tenant of a site that a CASp has determined meets
applicable standards may be allowed for a tax credit, as described in
Section 17053.43 or 23643 of the Revenue and Taxation Code, to
offset a portion of the costs of obtaining the CASp inspection. 

   SECTION 1.   SEC. 3.   Section 55.56 of
the Civil Code is amended to read:
   55.56.  (a) Statutory damages under either subdivision (a) of
Section 52 or subdivision (a) of Section 54.3 may be recovered in a
construction-related accessibility claim against a place of public
accommodation only if a violation or violations of one or more
construction-related accessibility standards denied the plaintiff
full and equal access to the place of public accommodation on a
particular occasion, and the requirements of Section 55.565 have been
met, if applicable.
   (b) A plaintiff is denied full and equal access only if the
plaintiff personally encountered the violation on a particular
occasion, or the plaintiff was deterred from accessing a place of
public accommodation on a particular occasion.
   (c) A violation personally encountered by a plaintiff may be
sufficient to cause a denial of full and equal access if the
plaintiff experienced difficulty, discomfort, or embarrassment
because of the violation.
   (d) A plaintiff demonstrates that he or she was deterred from
accessing a place of public accommodation on a particular occasion
only if both of the following apply:
   (1) The plaintiff had actual knowledge of a violation or
violations that prevented or reasonably dissuaded the plaintiff from
accessing a place of public accommodation that the plaintiff intended
to use on a particular occasion.
   (2) The violation or violations would have actually denied the
plaintiff full and equal access if the plaintiff had accessed the
place of public accommodation on that particular occasion.
   (e) Statutory damages may be assessed pursuant to subdivision (a)
based on each particular occasion that the plaintiff was denied full
and equal access, and not upon the number of violations of
construction-related accessibility standards identified at the place
of public accommodation where the denial of full and equal access
occurred. If the place of public accommodation consists of distinct
facilities that offer distinct services, statutory damages may be
assessed based on each denial of full and equal access to the
distinct facility, and not upon the number of violations of
construction-related accessibility standards identified at the place
of public accommodation where the denial of full and equal access
occurred.
   (f) (1) Notwithstanding any other law, a defendant's liability for
statutory damages in a construction-related accessibility claim
against a place of public accommodation is reduced to a minimum of
one thousand dollars ($1,000) for each offense if the defendant
demonstrates that it has corrected all construction-related
violations that are the basis of a claim within 60 days of being
served with the complaint, and the defendant demonstrates any of the
following:
   (A) The structure or area of the alleged violation was determined
to be "CASp-inspected" or "meets applicable standards" and, to the
best of the defendant's knowledge, there were no modifications or
alterations that impacted compliance with construction-related
accessibility standards with respect to the plaintiff's claim that
were completed or commenced between the date of that determination
and the particular occasion on which the plaintiff was allegedly
denied full and equal access.
   (B) The structure or area of the alleged violation was the subject
of an inspection report indicating "CASp determination pending" or
"inspected by a CASp," and the defendant has either implemented
reasonable measures to correct the alleged violation before the
particular occasion on which the plaintiff was allegedly denied full
and equal access, or the defendant was in the process of correcting
the alleged violation within a reasonable time and manner before the
particular occasion on which the plaintiff was allegedly denied full
and equal access.
   (C) For a claim alleging a construction-related accessibility
violation filed before January 1, 2018, the structure or area of the
alleged violation was a new construction or an improvement that was
approved by, and passed inspection by, the local building department
permit and inspection process on or after January 1, 2008, and before
January 1, 2016, and, to the best of the defendant's knowledge,
there were no modifications or alterations that impacted compliance
with respect to the plaintiff's claim that were completed or
commenced between the completion date of the new construction or
improvement and the particular occasion on which the plaintiff was
allegedly denied full and equal access.
   (D) The structure or area of the alleged violation was new
construction or an improvement that was approved by, and passed
inspection by, a local building department official who is a
certified access specialist, and, to the best of the defendant's
knowledge, there were no modifications or alterations that affected
compliance with respect to the plaintiff's claim that were completed
or commenced between the completion date of the new construction or
improvement and the particular occasion on which the plaintiff was
allegedly denied full and equal access.
   (2) Notwithstanding any other law, a defendant's liability for
statutory damages in a construction-related accessibility claim
against a place of public accommodation is reduced to a minimum of
two thousand dollars ($2,000) for each offense if the defendant
demonstrates both of the following:
   (A) The defendant has corrected all construction-related
violations that are the basis of a claim within 30 days of being
served with the complaint.
   (B) The defendant is a small business that has employed 25 or
fewer employees on average over the past three years, or for the
years it has been in existence if less than three years, as evidenced
by wage report forms filed with the  Economic  
Employment  Development Department, and has average annual
gross receipts of less than three million five hundred thousand
dollars ($3,500,000) over the previous three years, or for the years
it has been in existence if less than three years, as evidenced by
federal or state income tax returns. The average annual gross
receipts dollar amount shall be adjusted biannually by the Department
of General Services for changes in the California Consumer Price
Index for All Urban Consumers, as compiled by the Department of
Industrial Relations. The Department of General Services shall post
that adjusted amount on its Internet Web site.
   (3) This subdivision shall not be applicable to intentional
violations.
   (4) Nothing in this subdivision affects the awarding of actual
damages, or affects the awarding of treble actual damages.
   (5) This subdivision shall apply only to claims filed on or after
the effective date of Senate Bill 1186 of the 2011-12 Regular Session
of the Legislature. Nothing in this subdivision is intended to
affect a complaint filed before that date.
   (g) This section does not alter the applicable law for the
awarding of injunctive or other equitable relief for a violation or
violations of one or more construction-related accessibility
standards, nor alter any legal obligation of a party to mitigate
damages.
   (h) In assessing liability under subdivision (d), in an action
alleging multiple claims for the same construction-related
accessibility violation on different particular occasions, the court
shall consider the reasonableness of the plaintiff's conduct in light
of the plaintiff's obligation, if any, to mitigate damages.
   SEC. 2.   SEC. 4.   Section 55.565 is
added to the Civil Code, to read:
   55.565.  (a) When a plaintiff brings a construction-related
accessibility claim alleging a violation of a construction-related
accessibility standard within three years of a change in that
standard, statutory damages under subdivision (a) of Section 52 or
subdivision (a) of Section 54.3 may be recovered against a place of
public accommodation only if the plaintiff provides the owner, agent,
or other party responsible for the place of public accommodation
where the alleged violation occurred with sufficient written notice
of the allegations and alleged access barriers on which the claim is
based at least 60 days prior to the filing of any action and the
alleged access barriers are not removed.
   (b) A written notice is sufficient for the purposes of subdivision
(a) if either of the following conditions is met:
   (1) The notice states facts sufficient to allow a reasonable
person to identify the basis of the construction-related
accessibility claim under subdivision (a) of Section 55.31 and states
that the recipient may be civilly liable for actual and statutory
damages for a violation of a construction-related accessibility
requirement if the access barriers that constitute the basis of the
construction-related accessibility claim are not removed within 60
days.
   (2) The notice is a written demand letter that offers
prelitigation settlement negotiations in accordance with subdivision
(b) of Section 55.31.
   (c) For the purposes of this section, "construction-related
accessibility claim," "construction-related accessibility standard,"
and "place of public accommodation" have the meanings set forth in
Section 55.52.
   SEC. 5.    Section 17053   .42 of the 
 Revenue and Taxation Code   is amended to read: 
   17053.42.  (a) For each taxable year beginning on or after January
1, 1996, there shall be allowed as a credit against the "net tax,"
as defined in Section 17039, the amount paid or incurred for eligible
access expenditures. The credit shall be allowed in accordance with
Section 44 of the Internal Revenue Code, relating to expenditures to
provide access to disabled individuals, except that the credit amount
specified in subdivision (b) shall be substituted for the credit
amount specified in Section 44(a) of the Internal Revenue 
Code.   Code, relating to general rule. 
   (b) The credit amount allowed under this section shall be 50
percent of so much of the eligible access expenditures for the
taxable year as do not exceed two hundred fifty dollars ($250). 
   (c) (1) For taxable years beginning on or after January 1, 2016,
Section 44 (c)(2) of the Internal Revenue Code, relating to certain
expenditures included, is modified to include the amount paid or
incurred for a site to be inspected by a CASp, which is a certified
access specialist.  
   (2) Certified access specialist," "inspected by a CASp," and "site"
shall have the same meanings as those terms are defined in
subdivision (a) of Section 55.52 of the Civil Code.  
   (c) 
    (d)  In the case where the credit allowed by this
section exceeds the "net tax," the excess may be carried over to
reduce the "net tax" in the following year, and succeeding years if
necessary, until the credit is exhausted.
   SEC. 6.    Section 23642 of the   Revenue
and Taxation Code   is amended to read: 
   23642.  (a) For each taxable year beginning on or after January 1,
1996, there shall be allowed as a credit against the "tax," as
defined in Section 23036, the amount paid or incurred for eligible
access expenditures. The credit shall be allowed in accordance with
Section 44 of the Internal Revenue Code, relating to expenditures to
provide access to disabled individuals, except that the credit amount
specified in subdivision (b) shall be substituted for the credit
amount specified in Section 44(a) of the Internal Revenue 
Code.   Code, relating to general rule. 
   (b) The credit amount allowed under this section shall be 50
percent of so much of the eligible access expenditures for the
taxable year as do not exceed two hundred fifty dollars ($250). 
   (c) (1) For taxable years beginning on or after January 1, 2016,
Section 44 (c)(2) of the Internal Revenue Code, relating to certain
expenditures included, is modified to include the amount paid or
incurred for a site to be inspected by a CASp, which is a certified
access specialist.  
   (2) "Certified access specialist," "inspected by a CASp," and
"site" shall have the same meanings as those terms are defined in
subdivision (a) of Section 55.52 of the Civil Code. 
   (c) 
    (d)  In the case where the credit allowed by this
section exceeds the "tax," the excess may be carried over to reduce
the "tax" in the following year, and succeeding years if necessary,
until the credit is exhausted.