Bill Text: CA SB1186 | 2011-2012 | Regular Session | Amended
NOTE: There are more recent revisions of this legislation. Read Latest Draft
Bill Title: Disability access.
Spectrum: Bipartisan Bill
Status: (Passed) 2012-09-19 - Chaptered by Secretary of State. Chapter 383, Statutes of 2012. [SB1186 Detail]
Download: California-2011-SB1186-Amended.html
Bill Title: Disability access.
Spectrum: Bipartisan Bill
Status: (Passed) 2012-09-19 - Chaptered by Secretary of State. Chapter 383, Statutes of 2012. [SB1186 Detail]
Download: California-2011-SB1186-Amended.html
BILL NUMBER: SB 1186 AMENDED
BILL TEXT
AMENDED IN SENATE MAY 16, 2012
AMENDED IN SENATE APRIL 30, 2012
INTRODUCED BY Senators Steinberg and Dutton
( Coauthors: Senators
Cannella and Gaines )
FEBRUARY 22, 2012
An act to amend Section 55.3 of, and to add Sections 55.31 and
1938 to, the Civil Code, and to amend Section 8299.05 of the
Government Code, relating to disability access.
LEGISLATIVE COUNSEL'S DIGEST
SB 1186, as amended, Steinberg. Disability access: liability.
Existing law requires an attorney to provide a written advisory to
a building owner or tenant with each demand for money or complaint
for any construction-related accessibility claim, as specified. The
requirement to provide the written advisory applies whether or not
the attorney intends to file a complaint or eventually files a
complaint in state or federal court. A violation of this requirement
may subject the attorney to disciplinary action.
This bill would, instead, require an attorney to provide a written
advisory to a building owner or tenant with each complaint or
settlement demand for any construction-related accessibility claim,
as specified. The requirement to provide the written advisory would
apply where the attorney or party has filed a complaint in state or
federal court on the basis of one or more construction-related
accessibility claims.
This bill also would prohibit an attorney or other person from
issuing a demand for money to a building owner or tenant, or an agent
or employee of a building owner or tenant, or from receiving any
payment, settlement, compensation, or other remuneration pursuant to
a demand for money that is provided or issued without or prior to the
filing of a complaint on the basis of one or more
construction-related accessibility violations, as specified. The bill
would require an attorney to provide to a building owner or tenant,
or an agent or employee of a building owner or tenant, a document
that notifies the recipient of any alleged construction-related
accessibility violation that may be a basis for a damages claim at
least 30 days prior to filing any claim for damages based on an
alleged construction-related accessibility violation or violations,
except in a case solely seeking injunctive relief. The bill would
provide that a violation of these requirements may subject the
attorney to disciplinary action.
Existing law requires the State Architect to develop and submit
for approval and adoption building standards for making buildings,
structures, sidewalks, curbs, and related facilities accessible to,
and usable by, persons with disabilities, as specified. 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. Existing law regulates the hiring of real property.
This bill would require a commercial property owner to state on a
lease form or rental agreement if the property being leased or rented
has been inspected by a certified access specialist.
Existing law establishes the California Commission on Disability
Access to develop recommendations that will enable persons with
disabilities to exercise their right to full and equal access to
public facilities, and that will facilitate business compliance with
disability access laws and regulations to avoid unnecessary
litigation. Existing law requires the commission to study specified
disability access issues, and to make reports on those issues to the
Legislature.
This bill would provide that the functions and responsibilities of
the commission include the concurrent and prospective review of
legislative measures, including this measure, and recommendations on
any additional ideas or options to promote disability access and
reduce unnecessary litigation.
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. Section 55.3 of the Civil Code is amended to read:
55.3. (a) For purposes of this section, the following shall
apply:
(1) "Complaint" means a civil complaint that is filed with a court
and is sent to or served upon a defendant on the basis of one or
more construction-related accessibility claims, as defined in this
section.
(2) "Settlement demand" means a written document or oral statement
that is provided to a building owner or tenant, or an agent or
employee of a building owner or tenant, that contains a request for
money on the basis of one or more construction-related accessibility
claims, as defined in paragraph (3), where the attorney or party has
filed a complaint or eventually files a complaint in state or federal
court on the basis of one or more construction-related accessibility
claims.
(3) "Construction-related accessibility claim" means any claim of
a violation of any construction-related accessibility standard, as
defined by paragraph (6) of subdivision (a) of Section 55.52, with
respect to a place of public accommodation. "Construction-related
accessibility claim" does not include a claim of interference with
housing within the meaning of paragraph (2) of subdivision (b) of
Section 54.1, or any claim of interference caused by something other
than the construction-related accessibility condition of the
property, including, but not limited to, the conduct of any person.
(b) An attorney shall provide a written advisory with each
complaint or settlement demand sent to or served by him or her upon a
defendant, in the form described in subdivision (c), and on a page
or pages that are separate and clearly distinguishable from the
complaint or settlement demand, as follows:
IMPORTANT INFORMATION FOR BUILDING OWNERS AND TENANTS
This form is available in English, Spanish, Chinese, Vietnamese,
and Korean through the Judicial Council of California. Persons with
visual impairments can get assistance in viewing this form through
the Judicial Council Internet Web site at www.courts.ca.gov.
Existing law requires that you receive this information because
the complaint or settlement demand you received with this document
claims that your building or property does not comply with one or
more existing construction-related accessibility laws or regulations
protecting the civil rights of persons with disabilities to access
public places.
YOU HAVE IMPORTANT LEGAL OBLIGATIONS. Compliance with disability
access laws is a serious and significant responsibility that applies
to all California building owners and tenants with buildings open for
business to the public. You may obtain information about your legal
obligations and how to comply with disability access laws through the
Division of the State Architect. Information is also available from
the California Commission on Disability Access at
www.ccda.ca.gov/guide.htm.
YOU HAVE IMPORTANT LEGAL RIGHTS. You are not required to pay any
money unless and until a court finds you liable. Moreover, RECEIPT OF
THIS ADVISORY DOES NOT NECESSARILY MEAN YOU WILL BE FOUND LIABLE FOR
ANYTHING.
You may wish to promptly consult an attorney experienced in this
area of the law to get helpful legal advice or representation in
responding to the complaint or settlement demand you received. You
may contact the local bar association in your county for information
on available attorneys in your area. If you have insurance, you may
also wish to contact your insurance provider. You have the right to
seek assistance or advice about this complaint or settlement demand
from any person of your choice, and no one may instruct you
otherwise. Your best interest may be served by seeking legal advice
or representation from an attorney.
If a complaint has been filed and served on you and your property
has been inspected by a Certified Access Specialist (CASp; see
www.dgs.ca.gov/dsa/Programs/programCert/casp.aspx
www.dgs.ca.gov/dsa/Programs/programCert/casp.aspx) , you
may have the right to a court stay (temporary stoppage) and early
evaluation conference to evaluate the merits of the
construction-related accessibility claim against you pursuant to
Civil Code Section 55.54. At your option, you may be, but need not
be, represented by an attorney to file a reply and to file an
application for a court stay and early evaluation conference. If you
choose not to hire an attorney to represent you, you may obtain
additional information about how to represent yourself and how to
file a reply without hiring an attorney through the Judicial Council
Internet Web site at www.courts.ca.gov/selfhelp-start.htm. You may
also obtain a form to file your reply to the lawsuit, as well as the
form and information for filing an application to request the court
stay and early evaluation conference at that same Internet
Web site.
If you choose to hire an attorney to represent you, the attorney
who sent you the complaint or settlement demand is prohibited from
contacting you further unless your attorney has given the other
attorney permission to contact you. If the other attorney does try to
contact you, you should immediately notify your attorney.
(c) On or before July 1, 2009, the Judicial Council shall adopt a
form that may be used by attorneys to comply with the requirements of
subdivision (b). The form shall be in substantially the same format
and include all of the text set forth in subdivision (b). The form
shall be available in English, Spanish, Chinese, Vietnamese, and
Korean, and shall include a statement that the form is available in
additional languages, and the Judicial Council Internet Web site
address where the different versions of the form may be located. The
form shall include Internet Web site information for the Division of
the State Architect and the California Commission on Disability
Access.
(d) Subdivision (b) shall apply to a complaint or settlement
demand made by an attorney. Nothing in this section is intended to
affect the right to file a civil complaint under any other law or
regulation protecting the physical access rights of persons with
disabilities.
(e) This section shall not apply to any action brought by the
Attorney General, or by any district attorney, city attorney, or
county counsel.
SEC. 2. Section 55.31 is added to the Civil Code, to read:
55.31. (a) "Demand for money" means a written document or oral
statement that is provided or issued to a building owner or tenant,
or an agent or employee of a building owner or tenant, that meets all
of the following requirements:
(1) Alleges one or more construction-related accessibility
violations as the basis of one or more construction-related
accessibility claims, as defined in paragraph (3) of subdivision (a)
of Section 55.3.
(2) Contains or makes a request for money, or states or implies
that the building owner or tenant is liable for damages or attorney's
fees, or both, on the basis of one or more construction-related
accessibility violations.
(3) Is provided or issued without or prior to the filing of a
complaint in state or federal court on the basis of one or more
construction-related accessibility violations.
(b) An attorney or person shall not issue a demand for money to a
building owner or tenant, or an agent or employee of a building owner
or tenant, or receive any payment, settlement, compensation ,
or other remuneration pursuant to a demand for money, as
defined in subdivision (a).
(c) An attorney shall provide to a building owner or tenant, or an
agent or employee of a building owner or tenant, a document that
notifies the recipient of any alleged construction-related
accessibility violation that may be a basis for a damages claim at
least 30 days prior to filing any claim for damages based on an
alleged construction-related accessibility violation or violations.
Nothing in this document or any document accompanying the document
shall demand or request any money to settle or forgo a claim or
potential claim for damages based upon an alleged violation or
violations, or state or imply the building owner's or tenant's
liability for damages or attorney's fees, or both, on the basis of
the alleged construction-related accessibility violation or
violations identified in the notice. This requirement shall apply
whether the attorney intends to file in state or federal court. This
subdivision shall not apply in a case solely seeking injunctive
relief.
(d) A violation of subdivision (b) or (c) shall be cause for the
imposition of disciplinary action against an attorney.
SEC. 3. Section 1938 is added to the Civil Code, to read:
1938. A commercial property owner shall state on the lease form
or rental agreement if the property being leased or rented "is
CASp-Inspected" CASp-inspected" or "is
not CASp-inspected." For the purpose of this section, "CASp-inspected"
is defined in paragraph (4) of subdivision (a) of Section 55.52.
SEC. 4. Section 8299.05 of the
Government Code is amended to read:
8299.05. (a) The commission shall study and make reports to the
Legislature on the following:
(1) Issues regarding compliance with state laws and regulations
that are raised by either persons with disabilities or businesses,
and any recommendations that would promote compliance.
(2) Whether public and private inspection programs, including the
Certified Access Specialist Program, are meeting the needs of both
the business community and the disability community, including by the
provision of timely, competent inspections that properly identify
violations and recommend appropriate remedial measures.
(3) Whether existing training and continuing education
requirements for personnel involved in designing, plan checking,
building, or inspecting a structure are sufficient to provide the
personnel with sufficient knowledge of the state and federal
disability access laws and regulations.
(4) Whether training and continuing education requirements should
be enacted for landscape architects, professional engineers, and
contractors to provide these professionals with sufficient knowledge
of the state and federal disability access laws and regulations. This
study and report shall be completed and delivered to the Legislature
no later than January 1, 2011.
(b) (1) The commission shall act as an information center on the
status of compliance in California with state laws and regulations
providing persons with disabilities full and equal access to public
facilities. To this end, it shall publish a biennial report, which
may be combined with the biennial report required in odd-numbered
years pursuant to subdivision (e), on the state of disability access
compliance by both the public and private sector. The report shall be
written in general terms and shall not identify any particular
violators.
(2) The commission shall, to the extent feasible, coordinate with
other state agencies and local building departments to ensure that
information provided to the public on disability access requirements
is uniform and complete.
(c) The functions and responsibilities of the commission include
the concurrent and prospective review of legislative measures,
including Senate Bill 1186 of the 2011-12 Regular Session of the
Legislature, and recommendations on any additional ideas or options
to promote disability access and reduce unnecessary litigation.
(c)
(d) The commission may recommend, develop, prepare, or
coordinate materials, projects, or other activities, as appropriate,
relating to any subject within its jurisdiction.
(d)
(e) The commission shall provide, within its resources,
technical information regarding any of the following:
(1) Preventing or minimizing problems of compliance by California
businesses by engaging in educational outreach efforts and by
preparing and hosting on its Internet Web site a Guide to Compliance
with State Laws and Regulations Regarding Disability Access
Requirements.
(2) Recommending programs to enable persons with disabilities to
obtain full and equal access to public facilities.
(e)
(f) The commission shall make reports on its
activities, findings, and recommendations to the Legislature from
time to time, but not less often than once during every odd-numbered
year, on or before May 1 of that year, commencing in 2011.
SEC. 4. SEC. 5. It is the intent of
the Legislature to do all of the following:
(a) Examine the federal and state laws that provide persons with
disabilities the right to full and equal access to places of public
accommodation, and to address any conflict between those laws in
construction-related accessibility standards that may lead to
unnecessary litigation.
(b) Facilitate compliance by increased education regarding the
accessibility laws, including requiring the California Commission on
Disability Access to develop tools for use by businesses and building
inspectors, and to post those tools on its public Internet Web site
to facilitate greater compliance.
(c) Examine measures that would lead to greater compliance, to the
benefit of both business and the disability community through
reducing litigation and improving access for the disabled, without
discouraging early compliance efforts and without affecting the right
to sue for uncorrected and other violations. This effort shall
examine and address issues many small businesses face from litigation
and tactics pursued primarily for private gain under the state and
federal disability access laws, rather than to rectify a disability
access violation.
