BILL NUMBER: SB 1608 CHAPTERED
BILL TEXT
CHAPTER 549
FILED WITH SECRETARY OF STATE SEPTEMBER 28, 2008
APPROVED BY GOVERNOR SEPTEMBER 28, 2008
PASSED THE SENATE AUGUST 28, 2008
PASSED THE ASSEMBLY AUGUST 19, 2008
AMENDED IN ASSEMBLY AUGUST 12, 2008
AMENDED IN ASSEMBLY AUGUST 8, 2008
AMENDED IN ASSEMBLY JULY 2, 2008
AMENDED IN SENATE MAY 27, 2008
AMENDED IN SENATE MAY 6, 2008
AMENDED IN SENATE APRIL 21, 2008
INTRODUCED BY Senators Corbett, Harman, Steinberg, Runner, and
Calderon
(Principal coauthors: Assembly Members Smyth, Wolk, and Jones)
FEBRUARY 22, 2008
An act to amend Section 5600 of the Business and Professions Code,
to add Section 55.3 to, and to add Part 2.52 (commencing with
Section 55.51) and Part 2.53 (commencing with Section 55.55) to
Division 1 of, the Civil Code, to amend Sections 4450 and 4459.5 of,
and to add Chapter 3.7 (commencing with Section 8299) to Division 1
of Title 2 of, the Government Code, and to amend Section 18949.29 of
the Health and Safety Code, relating to disability access, and making
an appropriation therefor.
LEGISLATIVE COUNSEL'S DIGEST
SB 1608, Corbett. Disabled persons: equal access rights: civil
actions.
(1) Existing law provides for the licensure and regulation of
persons engaged in the practice of architecture by the California
Architects Board.
This bill would require a person licensed to practice
architecture, as a condition of license renewal, to complete
coursework regarding disability access requirements, as specified,
certify that completion to the California Architects Board, and
provide specified documentation from the course provider.
(2) Existing law prohibits any person, firm, or corporation from
denying or interfering with a disabled person's admittance to or
enjoyment of public facilities, or from otherwise interfering with
the rights of an individual with a disability, including the right to
be accompanied by a guide dog, signal dog, or service dog, as
specified. Existing federal law, the Americans with Disabilities Act
of 1990, prohibits discrimination against an individual with a
disability on the basis of that disability in specified situations,
including employment opportunities and access to public
accommodations, services, and transportation.
This bill would require an attorney to provide a specified written
advisory to a building owner or tenant with each demand for money or
complaint for any construction-related accessibility claim, as
defined, in a form to be developed by the Judicial Council, and on a
separate page clearly distinguishable from the demand for money, as
specified.
(3) Existing law authorizes the State Architect to establish a
program for voluntary certification by the state of any person who
meets specified criteria as a certified access specialist with
respect to access to buildings for persons with disabilities.
This bill would authorize the State Architect to implement that
program with startup funds derived, as a loan, from the reserve of
the Public School Planning, Design, and Construction Review Revolving
Fund, upon appropriation by the Legislature, to be repaid as
specified. The bill would enact the Construction-Related
Accessibility Standards Compliance Act, which would provide for the
inspection of sites by certified access specialists and the provision
of specified certificates and reports regarding those inspections.
The bill would require a local agency, commencing July 1, 2010, to
employ or retain at least one building inspector who is a certified
access specialist and, commencing January 1, 2014, to 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, as specified. The bill would allow a local agency to
charge a permit applicant or member of the public for these services,
and would allow a local government to charge or increase inspection
fees to the extent necessary to offset the costs of complying with
these provisions. By imposing a new requirement on local agencies
with respect to building inspectors, the bill would impose a
state-mandated local program.
The bill would require a court, with respect to an action
involving a construction-related accessibility claim, to issue an
order that, among other things, grants a 90-day stay of the
proceedings with respect to that claim, schedules an early evaluation
conference, and directs the defendant to file with the court under
seal and serve on the plaintiff a copy of any relevant Certified
Access Specialist inspection report, which shall be subject to a
protective court order, as specified, if the defendant has satisfied
certain requirements relating to inspection of the site at issue. The
bill would require that early evaluation conferences be conducted by
a superior court judge or commissioner, or a court early evaluation
conference officer, as defined. The bill would provide that damages
may be recovered in a construction-related accessibility claim
against a place of public accommodation only if a violation of
construction-related accessibility standards denied the plaintiff
full and equal access to the place of public accommodation on a
particular occasion, as specified.
(4) Existing law establishes various boards and commissions within
state government.
The bill would establish the California Commission on Disability
Access for certain purposes relating to disability access, and would
require the commission to conduct studies and make reports to the
Legislature, as specified. The bill would provide that these
provisions shall not be implemented, and shall not remain operative,
unless funds are appropriated for that purpose. The bill would
appropriate $80,000 from the General Fund to the commission, which
would be available May 1, 2009, to fund its startup, as specified.
(5) Existing law requires all construction inspectors, plans
examiners, and building officials to complete a minimum of 45 hours
of continuing education for every 3-year period, as specified.
This bill would require that at least 8 of those hours of
continuing education relate to disability access requirements, as
specified. The bill would allow a local government to charge or
increase inspection fees to the extent necessary to offset any added
costs incurred in complying with these provisions.
(6) The California Constitution requires the state to reimburse
local agencies and school districts for certain costs mandated by the
state. Statutory provisions establish procedures for making that
reimbursement.
This bill would provide that no reimbursement is required by this
act for a specified reason.
(7) The bill would provide that certain provisions described above
shall become operative only upon the issuance of a notice by the
Director of Finance declaring that the California Commission on
Disability Access has been funded and has commenced operations, and
certain of those provisions shall cease to be operative if the
commission loses funding, or for any other reason ceases operations,
as specified.
Appropriation: yes.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 5600 of the Business and Professions Code is
amended to read:
5600. (a) All licenses issued or renewed under this chapter shall
expire at 12 midnight on the last day of the birth month of the
licenseholder in each odd-numbered year following the issuance or
renewal of the license.
(b) To renew an unexpired license, the licenseholder shall, before
the time at which the license would otherwise expire, apply for
renewal on a form prescribed by the board and pay the renewal fee
prescribed by this chapter.
(c) The renewal form shall include a statement specifying whether
the licensee was convicted of a crime or disciplined by another
public agency during the preceding renewal period and that the
licensee's representations on the renewal form are true, correct, and
contain no material omissions of fact, to the best knowledge and
belief of the licensee.
(d) (1) As a condition of license renewal, a licensee shall have
completed coursework regarding disability access requirements
pursuant to paragraphs (2) and (3). A licensee shall certify to the
board, as a part of the license renewal process, that he or she has
completed the required coursework prior to approval of his or her
license renewal and shall provide documentation from the course
provider that shall include the course title, subjects covered, name
of provider and trainer or educator, date of completion, number of
hours completed, and a statement about the trainer or educator's
knowledge and experience background.
(2) (A) For licenses renewed on and after July 1, 2009, and before
January 1, 2010, a licensee shall have completed one hour of
coursework.
(B) For licenses renewed on and after January 1, 2010, and before
January 1, 2011, a licensee shall have completed two and one-half
hours of coursework.
(C) For licenses renewed on and after January 1, 2011, a licensee
shall have completed five hours of coursework within the previous two
years.
(3) Coursework regarding disability access requirements shall
include information and practical guidance concerning requirements
imposed by the Americans with Disabilities Act of 1990 (Public Law
101-336; 42 U.S.C. Sec. 12101 et seq.), state laws that govern access
to public facilities, and federal and state regulations adopted
pursuant to those laws. Coursework provided pursuant to this
paragraph shall be presented by trainers or educators with knowledge
and expertise in these requirements. The board shall require that a
licensee certify that he or she has satisfied the requirements of
this subdivision as a condition of license renewal.
SEC. 2. Section 55.3 is added to the Civil Code, to read:
55.3. (a) For purposes of this section, the following shall
apply:
(1) "Complaint" means a civil complaint that is filed or is to be
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) "Demand for money" means a written document 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).
(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 demand
for money or complaint 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 demand
for money or complaint, 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
http://www.courtinfo.ca.gov.
Existing law requires that you receive this information because the
demand for money or complaint 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. Commencing September 1, 2009,
information will also be available from the California Commission on
Disability Access Internet Web site.
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 demand for money or complaint 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 demand for money or complaint 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.dsa.dgs.ca.gov/casp), 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 http://www.courtinfo.ca.gov/selfhelp/. 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 Web site.
If you choose to hire an attorney to represent you, the attorney
who sent you the demand for money or complaint 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, when operational, the California Commission
on Disability Access.
(d) Subdivision (b) shall apply only to a demand for money or
complaint 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. Additionally, nothing in this section requires a party
acting in propria persona to provide or send a demand for money to
another party before proceeding against that party with a civil
complaint.
(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. 3. Part 2.52 (commencing with Section 55.51) is added to
Division 1 of the Civil Code, to read:
PART 2.52. CONSTRUCTION-RELATED ACCESSIBILITY STANDARDS
COMPLIANCE
55.51. This part shall be known, and may be cited, as the
Construction-Related Accessibility Standards Compliance Act.
Notwithstanding any other provision of law, the provisions of this
part shall apply to any construction-related accessibility claim, as
defined in this part, including, but not limited to, any claim
brought under Section 51, 54, 54.1, or 55.
55.52. (a) For purposes of this part, the following definitions
apply:
(1) "Construction-related accessibility claim" means any civil
claim in a civil action with respect to a place of public
accommodation, including, but not limited to, a claim brought under
Section 51, 54, 54.1, or 55, based wholly or in part on an alleged
violation of any construction-related accessibility standard, as
defined in paragraph (6).
(2) "Application for stay and early evaluation conference" means
an application to be filed with the court that meets the requirements
of subdivision (c) of Section 55.54.
(3) "Certified access specialist" or "CASp" means any person who
has been certified pursuant to Section 4459.5 of the Government Code.
(4) "CASp-inspected" means the site was inspected by a CASp and
determined to meet all applicable construction-related accessibility
standards pursuant to paragraph (1) of subdivision (a) of Section
55.53.
(5) "CASp determination pending" means the site was inspected by a
CASp and is pending a determination by the CASp that the site meets
applicable construction-related accessibility standards pursuant to
paragraph (2) of subdivision (a) of Section 55.53.
(6) "Construction-related accessibility standard" means a
provision, standard, or regulation under state or federal law
requiring compliance with standards for making new construction and
existing facilities accessible to persons with disabilities,
including, but not limited to, any such provision, standard, or
regulation set forth in Section 51, 54, 54.1, or 55 of this code,
Section 19955.5 of the Health and Safety Code, the California
Building Standards Code (Title 24 of the California Code of
Regulations), the Americans with Disabilities Act of 1990 (Public Law
101-336; 42 U.S.C. Sec. 12101 et seq.), and the Americans with
Disabilities Act Accessibility Guidelines (Appendix A to Part 36,
Title 28, Code of Federal Regulations).
(7) "Place of public accommodation" has the same meaning as
"public accommodation," as set forth in Section 12181(7) of Title 42
of the United States Code and the federal regulations adopted
pursuant to that section.
(8) "Qualified defendant" means a defendant in an action that
includes a construction-related accessibility claim that is asserted
against a place of public accommodation that met the requirements of
"CASp-inspected" or "CASp determination pending" prior to the date
the defendant was served with the summons and complaint in that
action. To be a qualified defendant, the defendant is not required to
have been the party who hired any CASp, so long as the basis of the
alleged liability of the defendant is a construction-related
accessibility claim. To determine whether a defendant is a qualified
defendant, the court need not make a finding that the place of public
accommodation complies with all applicable construction-related
accessibility standards as a matter of law. The court need only
determine that the place of public accommodation has a status of
"CASp-inspected" or "CASp determination pending."
(9) "Site" means a place of public accommodation.
(b) Unless otherwise indicated, terms used in this part relating
to civil procedure have the same meanings that those terms have in
the Code of Civil Procedure.
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 CASp-inspected 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 of compliance 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 a CASp determination pending 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 STAY (TEMPORARY STOPPAGE) 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 http://www.courtinfo.ca.gov/selfhelp/.
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 either
meets applicable construction-related accessibility standards
pursuant to paragraph (1) of subdivision (a) or is "CASp
determination pending" 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 been inspected 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). The certificate shall be in substantially the
following form: (GRAPHIC INSERT HERE: SEE PRINTED VERSION OF THE
BILL)
(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 provision of 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.
55.54. (a) (1) An attorney who causes a summons and complaint to
be served in an action that includes a construction-related
accessibility claim, including, but not limited to, a claim brought
under Section 51, 54, 54.1, or 55, shall, at the same time, cause to
be served a copy of the application form specified in subdivision (c)
and a copy of the following notice to the defendant on separate
papers that shall be served with the summons and complaint:
NOTICE TO DEFENDANT
YOU MAY BE ENTITLED TO ASK FOR A STAY (TEMPORARY STOPPAGE) AND
EARLY EVALUATION CONFERENCE IN THIS LAWSUIT.
If the construction-related accessibility claim pertains to a site
that has been inspected by a Certified Access Specialist (CASp) and
you have an inspection report for that site, you may make an
immediate request for a court stay and early evaluation conference in
the construction-related accessibility claim by filing the attached
application form with the court. You may be entitled to the court
stay and early evaluation conference regarding the accessibility
claim only if ALL of the statements in the application form are true.
The court will schedule the conference to be held within 50 days
after you file the attached application form. The court will also
issue an immediate stay of the proceedings unless the plaintiff has
obtained a temporary restraining order in the construction-related
accessibility claim. At your option, you may be, but need not be,
represented by an attorney to file the application to request the
early evaluation conference. You may obtain a copy of the application
form, filing instructions, and additional information about the stay
and early evaluation conference through the Judicial Council
Internet Web site at http://www.courtinfo.ca.gov/selfhelp/.
You may file the application after you are served with a summons
and complaint, but no later than your first court pleading or
appearance in this case, which is due within 30 days after you
receive the summons and complaint. If you do not have an attorney,
you will need to file the application within 30 days after you
receive the summons and complaint to request the stay and early
evaluation conference. If you do not file the application, you will
still need to file your reply to the lawsuit within 30 days after you
receive the summons and complaint to contest it. You may obtain more
information about how to represent yourself and how to file a reply
without hiring an attorney at http://www.courtinfo.ca.gov/selfhelp/.
If a plaintiff representing himself or herself hires an attorney
after the case is filed, you will have 30 days to file an application
for a court stay and early evaluation conference after you receive a
Notice of Substitution of Counsel, unless an early evaluation
conference or settlement conference has already been held.
You may file the application form without the assistance of an
attorney, but it may be in your best interest to immediately seek the
assistance of an attorney experienced in disability access laws when
you receive a summons and complaint. You may make an offer to settle
the case, and it may be in your interest to put that offer in
writing so that it may be considered under Civil Code Section 55.55.
(2) An attorney who files a Notice of Substitution of Counsel to
appear as counsel for a plaintiff who, acting in propia persona, had
previously filed a complaint in an action that includes a
construction-related accessibility claim, including, but not limited
to, a claim brought under Section 51, 54, 54.1, or 55, shall, at the
same time, cause to be served a copy of the application form
specified in subdivision (c) and a copy of the notice specified in
paragraph (1) upon the defendant on separate pages that shall be
attached to the Notice of Substitution of Counsel.
(b) (1) Notwithstanding any other provision of law, upon being
served with a summons and complaint asserting a construction-related
accessibility claim, including, but not limited to, a claim brought
under Section 51, 54, 54.1, or 55, a qualified defendant may file a
request for a court stay and early evaluation conference in the
proceedings of that claim prior to or simultaneous with the qualified
defendant's responsive pleading or other initial appearance in the
action that includes the claim. If the qualified defendant filed a
timely request for stay and early evaluation conference before a
responsive pleading was due, the period for filing a responsive
pleading shall be tolled until the stay is lifted. Any responsive
pleading filed simultaneously with a request for stay and early
evaluation conference may be amended without prejudice, and the
period for filing that amendment shall be tolled until the stay is
lifted.
(2) Notwithstanding any other provision of law, if the plaintiff
had acted in propia persona in filing a complaint that includes a
construction-related accessibility claim, including, but not limited
to, a claim brought under Section 51, 54, 54.1, or 55, a qualified
defendant who is served with a Notice of Substitution of Counsel
shall have 30 days to file an application for a stay and an early
evaluation conference. The application may be filed prior to or after
the defendant's filing of a responsive pleading or other initial
appearance in the action that includes the claim, except that an
application may not be filed in a claim in which an early evaluation
conference or settlement conference has already been held on the
claim.
(c) (1) An application for an early evaluation conference and stay
shall include a signed declaration that declares both of the
following:
(A) The site identified in the
complaint has been CASp-inspected or is CASp determination pending
and, if the site is CASp-inspected, there have been no modifications
completed or commenced since the date of inspection that may impact
compliance with construction-related accessibility standards to the
best of the defendant's knowledge.
(B) An inspection report pertaining to the site has been issued by
a CASp. The inspection report shall be provided to the court and the
plaintiff at least 15 days prior to the court date set for the early
evaluation conference.
(2) The following provisional request form may be used and filed
by a qualified defendant until a form is adopted by the Judicial
Council for that purpose pursuant to subdivision (k): (GRAPHIC INSERT
HERE: SEE PRINTED VERSION OF THE BILL)
(3) The provisional form and any replacement Judicial Council form
shall also provide space for the court's order pursuant to
subdivision (d), the defendant's declaration of proof of service of
the application, and the notice of the court's order.
(d) Upon the filing of an application for stay and early
evaluation conference by a qualified defendant, the court shall
immediately issue an order that does all of the following:
(1) Grants a 90-day stay of the proceedings with respect to the
construction-related accessibility claim, unless the plaintiff has
obtained temporary injunctive relief that is still in place for the
construction-related accessibility claim.
(2) Schedules a mandatory early evaluation conference for a date
as soon as possible from the date of the order, but in no event later
than 50 days after issuance of the order, and in no event earlier
than 21 days after the filing of the request.
(3) Directs the parties, and any other person whose authority is
required to negotiate and enter into settlement, to appear in person
at the time set for the conference. Appearance by counsel shall not
satisfy the requirement that the parties or those with negotiation
and settlement authority personally appear, provided, however, that
the court may allow a party who is unable to attend in person due to
his or her disability to participate in the hearing by telephone or
other alternative means or through a representative authorized to
settle the case.
(4) Directs the defendant to file with the court under seal and
serve on the plaintiff a copy of any relevant CASp inspection report
at least 15 days before the date of the conference, which shall be
subject to a protective court order maintaining the confidentiality
of the report.
(5) Directs the plaintiff to file with the court and serve on the
defendant at least 15 days before the date of the conference a
statement that includes, to the extent reasonably known, for use
solely for the purpose of the early evaluation conference, all of the
following:
(A) An itemized list of specific conditions on the subject
premises that are the basis of the claimed violations of
construction-related accessibility standards in the plaintiff's
complaint.
(B) The amount of damages claimed.
(C) The amount of attorney's fees and costs incurred to date, if
any, that are being claimed.
(D) Any demand for settlement of the case in its entirety.
(e) (1) A party failing to comply with any court order may be
subject to court sanction at the court's discretion.
(2) The court shall lift the stay when the defendant has failed to
file and serve the CASp inspection report prior to the early
evaluation conference and has failed also to produce the report at
the time of the early evaluation conference, unless the defendant
shows good cause for that failure.
(3) The court may lift the stay at the conclusion of the early
evaluation conference upon a showing of good cause by the plaintiff.
Good cause may include the defendant's failure to make reasonably
timely progress toward completion of corrections noted by a CASp.
(4) The court may lift the seal and protective order on a CASp
inspection report filed and served pursuant to subdivision (d) at the
conclusion of the stay or a later time upon a showing of good cause
by any party. Good cause may include the defendant's failure to make
reasonably timely progress toward completion of corrections noted by
a CASp. Any protective order or court seal imposed pursuant to
subdivision (d) shall terminate upon the conclusion of the claim.
(f) All discussions at the early evaluation conference shall be
subject to Section 1152 of the Evidence Code. It is the intent of the
Legislature that the purpose of the evaluation conference shall
include, but not be limited to, evaluation of all of the following:
(1) Whether the defendant is entitled to the 90-day stay for some
or all of the identified issues in the case, as a qualified
defendant.
(2) The current condition of the site and the status of any plan
of corrections, including whether the qualified defendant has
corrected or is willing to correct the alleged violations, and the
timeline for doing so.
(3) Whether the case, including any claim for damages or
injunctive relief, can be settled in whole or in part.
(4) Whether the parties should share other information that may
facilitate early evaluation and resolution of the dispute.
(g) Nothing in this section precludes any party from making an
offer to compromise pursuant to Section 998 of the Code of Civil
Procedure.
(h) The court may schedule additional conferences and may extend
the 90-day stay for good cause shown, but not to exceed one
additional 90-day extension.
(i) Early evaluation conferences shall be conducted by a superior
court judge or commissioner, or a court early evaluation conference
officer. A commissioner shall not be qualified to conduct early
evaluation conferences pursuant to this subdivision unless he or she
has received training regarding disability access requirements
imposed by the Americans with Disabilities Act of 1990 (Public Law
101-336; 42 U.S.C. Sec. 12101 et seq.), state laws that govern access
to public facilities, and federal and state regulations adopted
pursuant to those laws. For purposes of this subdivision, a "court
early evaluation conference officer" means an attorney employed by
the court who has received training regarding disability access
requirements imposed by the Americans with Disabilities Act of 1990,
state laws that govern access to public facilities, and federal and
state regulations adopted pursuant to those laws. Attorneys serving
in this capacity may also be utilized by the court for other purposes
not related to these proceedings.
(j) Nothing in this part shall be deemed to make any inspection
report, opinion, statement, or other finding or conclusion of a CASp
binding on the court, or to abrogate in any manner the ultimate
authority of the court to make all appropriate findings of fact and
law. The CASp inspection report and any opinion, statement, finding,
or conclusion therein shall be given the weight the trier of fact
finds that it deserves.
(k) Nothing in this part shall be construed to invalidate or limit
any California construction-related accessibility standard that
provides greater or equal protection for the rights of individuals
with disabilities than is afforded by the Americans with Disabilities
Act (Public Law 101-336; 42 U.S.C. Sec. 12101 et seq.) and the
federal regulations adopted pursuant to that act.
(l) (1) The Judicial Council shall prepare and post on its
Internet Web site instructions and a form for a qualified defendant
to use to file an application for stay and early evaluation
conference as provided in subdivisions (b) and (c), and a form for
the court's notice of stay and early evaluation conference. Until
those forms are adopted, the Judicial Council shall post on its
Internet Web site the provisional forms set forth in subdivision (c).
(2) The Judicial Council shall also prepare and post on its
Internet Web site instructions and a cover page to assist plaintiffs
and defendants, respectively, to comply with their filing
responsibilities under subdivision (d). The cover page shall also
provide for the party's declaration of proof of service of the
pertinent document served under the court order.
(m) The stay provisions shall not apply to any
construction-related accessibility claim in which the plaintiff has
been granted temporary injunctive relief that remains in place.
(n) This section shall not apply to any action brought by the
Attorney General, or by any district attorney, city attorney, or
county counsel.
(o) This part shall apply only to claims filed on or after January
1, 2009. Nothing in this part is intended to affect litigation filed
before that date.
(p) Nothing in this part is intended to affect existing law
regarding class action requirements.
SEC. 4. Part 2.53 (commencing with Section 55.55) is added to
Division 1 of the Civil Code, to read:
PART 2.53. ATTORNEY'S FEES AND STATUTORY DAMAGES IN
CONSTRUCTION-RELATED ACCESSIBILITY STANDARDS CLAIMS
55.55. Notwithstanding subdivision (f) of Section 55.54, in
determining an award of reasonable attorney's fees and recoverable
costs with respect to any construction-related accessibility claim,
the court may consider, along with other relevant information,
written settlement offers made and rejected by the parties. Nothing
in this section affects or modifies the inadmissibility of evidence
regarding offers of compromise pursuant to Section 1152 of the
Evidence Code, including, but not limited to, inadmissibility to
prove injury or damage.
55.56. (a) Statutory damages under either subdivision (a) of
Section 52 or subdivision (a) of Section 54.3 may be recovered in a
construction-related accessibility claim against a place of public
accommodation only if a violation or violations of one or more
construction-related accessibility standards denied the plaintiff
full and equal access to the place of public accommodation on a
particular occasion.
(b) A plaintiff is denied full and equal access only if the
plaintiff personally encountered the violation on a particular
occasion, or the plaintiff was deterred from accessing a place of
public accommodation on a particular occasion.
(c) A violation personally encountered by a plaintiff may be
sufficient to cause a denial of full and equal access if the
plaintiff experienced difficulty, discomfort, or embarrassment
because of the violation.
(d) A plaintiff demonstrates that he or she was deterred from
accessing a place of public accommodation on a particular occasion
only if both of the following apply:
(1) The plaintiff had actual knowledge of a violation or
violations that prevented or reasonably dissuaded the plaintiff from
accessing a place of public accommodation that the plaintiff intended
to use on a particular occasion.
(2) The violation or violations would have actually denied the
plaintiff full and equal access if the plaintiff had accessed the
place of public accommodation on that particular occasion.
(e) Statutory damages may be assessed pursuant to subdivision (a)
based on each particular occasion that the plaintiff was denied full
and equal access, and not upon the number of violations of
construction-related accessibility standards identified at the place
of public accommodation where the denial of full and equal access
occurred. If the place of public accommodation consists of distinct
facilities that offer distinct services, statutory damages may be
assessed based on each denial of full and equal access to the
distinct facility, and not upon the number of violations of
construction-related accessibility standards identified at the place
of public accommodation where the denial of full and equal access
occurred.
(f) 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.
55.57. (a) This part shall apply only to claims filed on or after
January 1, 2009. Nothing in this part is intended to affect
litigation filed before that date, and no inference shall be drawn
from provisions contained in this part concerning the state of the
law as it existed prior to January 1, 2009.
(b) Nothing in this part is intended to affect existing law
regarding class action requirements.
SEC. 5. Section 4450 of the Government Code is amended to read:
4450. (a) It is the purpose of this chapter to ensure that all
buildings, structures, sidewalks, curbs, and related facilities,
constructed in this state by the use of state, county, or municipal
funds, or the funds of any political subdivision of the state shall
be accessible to and usable by persons with disabilities.
(b) The State Architect shall develop and submit proposed building
standards to the California Building Standards Commission for
approval and adoption pursuant to Chapter 4 (commencing with Section
18935) of Part 2.5 of Division 13 of the Health and Safety Code and
shall develop other regulations for making buildings, structures,
sidewalks, curbs, and related facilities accessible to and usable by
persons with disabilities. The regulations and building standards
relating to access for persons with disabilities shall be consistent
with the standards for buildings and structures that are contained in
pertinent provisions of the latest edition of the selected model
code, as adopted by the California Building Standards Commission, and
these regulations and building standards shall contain additional
requirements relating to buildings, structures, sidewalks, curbs, and
other related facilities the State Architect determines are
necessary to assure access and usability for persons with
disabilities. In developing and revising these additional
requirements, the State Architect shall consult with the Department
of Rehabilitation, the League of California Cities, the California
State Association of Counties, and at least one private organization
representing and comprised of persons with disabilities.
(c) In no case shall the State Architect's regulations and
building standards prescribe a lesser standard of accessibility or
usability than provided by the Accessibility Guidelines prepared by
the federal Access Board as adopted by the United States Department
of Justice to implement the Americans with Disabilities Act of 1990
(Public Law 101-336).
(d) On or before December 31, 2010, the Division of the State
Architect shall prepare and submit to the United States Department of
Justice for certification proposed amendments to Part 2 of Title 24
of the California Code of Regulations that would ensure California's
building standards for disability access in commercial occupancies
are consistent with the federal regulations cited in subdivision (c).
SEC. 6. Section 4459.5 of the Government Code is amended to read:
4459.5. (a) The State Architect shall establish and publicize a
program for voluntary certification by the state of any person who
meets specified criteria as a certified access specialist. No later
than January 1, 2005, the State Architect shall determine minimum
criteria a person is required to meet in order to be a certified
access specialist, which may include knowledge sufficient to review,
inspect, or advocate universal design requirements, completion of
specified training, and testing on standards governing access to
buildings for persons with disabilities.
(b) The State Architect may implement the program described in
subdivision (a) with startup funds derived, as a loan, from the
reserve of the Public School Planning, Design, and Construction
Review Revolving Fund, upon appropriation by the Legislature. That
loan shall be repaid when sufficient fees have been collected
pursuant to Section 4459.8.
SEC. 7. Chapter 3.7 (commencing with Section 8299) is added to
Division 1 of Title 2 of the Government Code, to read:
CHAPTER 3.7. THE CALIFORNIA COMMISSION ON DISABILITY ACCESS
8299. The Legislature finds and declares that, despite the fact
that state law has provided persons with disabilities the right to
full and equal access to public facilities since 1968, and that a
violation of the right of any person under the Americans with
Disabilities Act of 1990 (Public Law 101-336; 42 U.S.C. Sec. 12101 et
seq.) has also constituted a violation of the Unruh Civil Rights Act
(Section 51 of the Civil Code) since 1992, persons with disabilities
are still being denied full and equal access to public facilities in
many instances. The Legislature further finds and declares that
businesses in California have the responsibility to provide full and
equal access to public facilities as required in the laws and
regulations, but that compliance may be thwarted in some cases by
conflicting state and federal regulations, which in turn results in
unnecessary litigation. With a view to developing 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 the laws and regulations to avoid
unnecessary litigation, the Legislature has created the California
Commission on Disability Access.
8299.01. (a) There shall be established in the state government,
on or before May 1, 2009, the California Commission on Disability
Access. The commission shall consist of 11 public members, and six ex
officio nonvoting members, appointed as follows:
(1) Two public members appointed by the Senate Committee on Rules,
with one appointee from the business community and one appointee
from the disability community. The Senate Committee on Rules shall
request and consider nominations from the business community and the
disability community for these appointments.
(2) Two public members appointed by the Speaker of the Assembly,
with one appointee from the business community and one appointee from
the disability community. The Speaker of the Assembly shall request
and consider nominations from the business community and the
disability community for these appointments.
(3) Seven public members appointed by the Governor, with the
consent of the Senate. Four of the Governor's appointees shall be
from the disability community. Three appointees shall be from the
business community, including an appointee representative from the
California Business Properties Association. The Governor shall
request and consider nominations from the business community and the
disability community for these appointments.
(4) The State Architect, or his or her representative, as a
nonvoting ex officio member.
(5) The Attorney General, or his or her representative, as a
nonvoting ex officio member.
(6) Two members of the Senate, appointed by the Senate Committee
on Rules as nonvoting ex officio members. One member shall be from
the majority party and one member shall be from the minority party.
(7) Two members of the Assembly, appointed by the Speaker of the
Assembly, as nonvoting ex officio members. One member shall be from
the majority party, and one member shall be from the minority party.
(b) It is the intent of this section that the commission shall be
broadly representative of the ethnic, gender, and racial diversity of
the population of California. It is further the intent of this
section that both of the following apply:
(1) The appointees from the disability community shall be persons
with a disability relating to, but not limited to, vision, hearing,
mobility, breathing, speech, cognitive, cardiac, emotional,
developmental, learning, psychological, or immunological
disabilities.
(2) The commission recruitment and appointment process engage in
identifying qualified disability community representatives who should
possess elements of the following qualifications:
(A) Identify as people with disabilities, activity limitations, or
both.
(B) Have personal experience with disability and disability
advocacy and the ability to speak broadly on disability access
issues.
(C) Are knowledgeable about cross-disability access issues,
including, but not limited to, hearing, vision, mobility, speech, and
cognitive limitations.
(D) Are knowledgeable about a variety of physical, communication,
and program access issues.
(E) Are involved with segments of national, state, or local
constituencies of the disability community, such as active
involvement in broad-based disability organizations.
(F) Have in place and use communication networks to facilitate
communication with the segments of the disability community they are
representing, including, but not limited to, segments of diverse
ethnic, cultural, sex, sexual orientation, age, and linguistic
communities that are representative of the diverse population of
Californians with disabilities.
(c) Public members shall be appointed for three-year terms, except
that, with respect to the initial appointees, the Governor shall
appoint three members for a one-year term, two members for a two-year
term, and two members for a three-year term. The Senate Committee on
Rules and the Speaker of the Assembly shall each initially appoint
one member for a two-year term and one member for a three-year term.
Public members may be reappointed for additional terms.
(d) Vacancies shall be filled by the appointing authority for the
unexpired portion of the terms.
8299.02. (a) Public members of the commission shall receive one
hundred dollars ($100) per diem while on official business of the
commission, not to exceed 12 days per year. Each member of the
commission shall also be entitled to receive his or her actual
necessary traveling expenses while on official business of the
commission.
(b) The commission shall select annually from its membership a
chairperson who shall be a representative from the disability
community, and a vice chairperson who shall be a representative from
the business community.
8299.03. Meetings of the commission shall be subject to the
Bagley-Keene Open Meeting Act (Article 9 (commencing with Section
11120) of Chapter 1 of Part 1 of Division 3 of Title 2).
8299.04. The commission shall have the powers and authority
necessary to carry out the duties imposed upon it by this chapter,
including, but not limited to, the following:
(a) To employ any administrative, technical, or other personnel
that may be necessary for the performance of its powers and duties.
(b) To hold hearings, make and sign any agreement, and do or
perform any act, including the collection of relevant information,
that may be necessary, desirable, or proper to carry out the purposes
of this chapter.
(c) To cooperate with, and secure the cooperation of, any
department, division, board, bureau, commission, or other agency of
the state to facilitate the proper execution of its powers and duties
under this chapter.
(d) To appoint advisers or advisory committees from time to time
when the commission determines that the experience or expertise of
those advisers or advisory committees is needed for projects of the
commission. Section 11009 shall apply to advisers or advisory
committees.
(e) To accept any federal funds granted by an act of Congress or
by executive order for any purpose of this chapter.
(f) To accept any gift, donation, grant, or bequest for any
purpose of this chapter.
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 commission may recommend, develop, prepare, or coordinate
materials, projects, or other activities, as appropriate, relating to
any subject within its jurisdiction.
(d) 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) 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.
8299.06. The commission, as soon as practicable, but in no event
later than July 1, 2010, shall develop, in consultation with the
staff of the California Building Standards Commission, a master
checklist for disability access compliance that may be used by
building inspectors.
8299.07. The commission shall study the operation of Section 55.54
of the Civil Code to assess whether it is operating to achieve its
desired goal of reducing unnecessary civil actions that seek attorney'
s fees and damages but that do not facilitate compliance with state
laws and regulations governing disability access, and whether that
section is unduly impacting claims brought to facilitate compliance.
The commission shall report its findings and any recommendations to
the Legislature no earlier than July 1, 2013, and no later than July
1, 2014.
8299.08. (a) The commission, within its purview, is expressly
authorized to inform the Legislature of its position on any
legislative proposal pending before the Legislature and to urge the
introduction of legislative proposals.
(b) The commission is expressly authorized to state its position
and viewpoint on issues developed in the performance of its duties
and responsibilities as specified in this chapter.
8299.09. With respect to its duties, the commission shall be an
advisory commission only, and there shall be no right or obligation
on the part of the state to implement the findings of the commission
without further legislation that specifically authorizes that the
evaluations, determinations, and findings of the commission be
implemented.
8299.10. The commission shall hire staff or contract for those
experts or technical and professional services that may be required
for the completion of any task authorized or study required by this
chapter. Staff hired pursuant to this section shall be hired in
compliance with the State Civil Service Act (Part 2 (commencing with
Section 18500) of Division 5 of Title 2). Contracts awarded pursuant
to this section shall be in compliance with Section 19130. The
commission is expressly encouraged and authorized to seek the
technical and legal assistance of other state agencies and
departments in fulfilling its statutory responsibilities.
8299.11. This chapter shall not be implemented, and shall not
remain operative, unless funds are appropriated for that purpose by
the Legislature in the annual Budget Act or another statute.
SEC. 8. Section 18949.29 of the Health and Safety Code is amended
to read:
18949.29. (a) All construction inspectors, plans examiners, and
building officials shall complete a minimum of 45 hours of continuing
education for every three-year period, with at least eight hours
regarding disability access requirements pursuant to subdivision (d).
A local government may charge or increase inspection fees to the
extent necessary to offset any added costs incurred in complying with
this section.
(b) Providers of continuing education may include any
organizations affiliated with the code enforcement profession,
community colleges, or other providers of similar quality, as
determined by the local agency.
(c) For purposes of this section, "continuing education" is
defined as that education relating to the enforcement of Title 24 of
the California Code of Regulations, and any other locally enforced
building and construction standards, including, but not limited to,
the model uniform codes adopted by the state. When a local agency
selects a model code organization as a provider of continuing
education or certification programs regarding the enforcement of a
model code adopted by the state, the local agency shall give
preference to the organization responsible for promulgating or
drafting that model code.
(d) Continuing education regarding disability access requirements
shall include information and practical guidance concerning
requirements imposed by the Americans with Disabilities Act of 1990
(Public Law 101-336; 42 U.S.C. Sec. 12101 et seq.), state laws that
govern access to public facilities, and federal and state regulations
adopted pursuant to those laws. Continuing education provided
pursuant to this subdivision shall be presented by trainers or
educators with knowledge and expertise in these requirements.
SEC. 9. The Legislature finds and declares all of the following:
(a) Section 55.55 of the Civil Code, as added by Section 4 of this
act, is intended to reflect the longstanding principle that when a
party prevails in a civil rights case the amount of attorney's fees
to be awarded is based upon equitable considerations and a variety of
factors, including, but not limited to, any written settlement
offers made and rejected and whether the prevailing party failed to
obtain a more favorable judgment or award than the settlements
offered.
(b) Section 55.56 of the Civil Code, as added by Section 4 of this
act, concerns eligibility to recover statutory damages under the
Unruh Civil Rights Act or the Disabled Persons Act. It provides that
those damages may be recovered in a construction-related
accessibility claim only when the plaintiff either personally
encounters a violation on a particular occasion or is deterred from
accessing a place of public accommodation on a particular occasion.
With respect to deterrence, a plaintiff must, among other
requirements, have had actual knowledge of the violation or
violations in order to be deterred, based on the circumstances of the
individual's experience. This statement is intended to reflect
current case law.
(c) The term "full and equal access," as used in Section 55.56 of
the Civil Code, as added by Section 4 of this act, is intended to
encompass without change the existing obligations of both Section 51
of the Civil Code, including full and equal accommodations,
advantages, facilities, privileges, and services, and Section 54.3 of
the Civil Code, including full and equal access to accommodations,
advantages, facilities, and privileges. "Full and equal access" is
also intended to mean "equal access" as that term is used in case
law, and therefore, is not an expansion of existing law.
(d) Subdivision (e) of Section 55.56 of the Civil Code, as added
by Section 4 of this act, provides that not every violation of a
construction-related accessibility standard constitutes a separate
offense entitling a plaintiff to a separate award of statutory
damages, even if the plaintiff personally encountered more than one
violation. A restaurant, convenience store, or theater normally
serves only one function -- a place to eat, shop, or watch a movie --
and multiple violations of one or more construction-related
accessibility standards at such a place do not constitute separate
denials of full and equal access. By contrast, other places of public
accommodation offer more than one type of service, facility, or
other function. For example, a hotel or resort may offer sleeping
rooms, a restaurant, a golf course, and a spa. Likewise, a shopping
center may consist of one large common area and many separate stores
and restaurants. If the place of public accommodation consists of
such distinct facilities offering distinct services, statutory
damages may be assessed based on each denial of full and equal access
to the distinct facility, but 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.
(e) (1) Section 55.54 of the Civil Code, as added by Section 3 of
this act, requires a qualified defendant to file a copy of the
relevant certified access specialist report with the court, which is
to be maintained under seal and kept confidential during the
litigation, except upon a showing of good cause. Similarly, a
protective order is granted to the certified access specialist report
that the qualified defendant is required to provide to the
plaintiff.
(2) This act uniquely requires the submittal to the court of a
document at a very early stage of the proceedings, whereas that
document might not otherwise become a court record until the trial of
the claim. Although court records are normally presumed to be public
and open, statutorily mandated confidentiality is necessary for
these reports because of the unique and special circumstances
involved here. Specifically, there is an overriding interest in
promoting greater compliance with construction-related accessibility
standards by encouraging businesses to voluntarily obtain CASp
reports and protecting those qualified defendants from unnecessary
litigation. Thus, there is an overriding interest supporting the
sealing of the CASp report that overcomes the normally paramount
right of public access to the record, and there is a substantial
probability that this interest will be prejudiced if the record is
not sealed. In addition, the proposed sealing is narrowly tailored to
the duration of the litigation, and there are no less restrictive
means to achieve the overriding interest.
(3) This act also uniquely requires the defendant to provide the
CASp report to the plaintiff at a very early stage of the
proceedings. Normally, the exchange of potential evidence is handled
through the discovery process, in which case a CASp report might not
be furnished except pursuant to a protective order issued by the
court or pursuant to a stipulation of the parties. In order to
enhance the utility of the early evaluation conference and to avoid
unnecessary court proceedings for a protective order, this act
requires a qualified defendant to provide the plaintiff with the CASp
report at a very early stage of the proceedings, but subject to a
protective order for the duration of the proceedings, unless good
cause is shown by any party for the court to lift the protective
order.
SEC. 10. No reimbursement is required by this act pursuant to
Section 6 of Article XIII B of the California Constitution because a
local agency or school district has the authority to levy service
charges, fees, or assessments sufficient to pay for the program or
level of service mandated by this act, within the meaning of Section
17556 of the Government Code.
SEC. 11. There is hereby appropriated eighty thousand dollars
($80,000) from the General Fund to the California Commission on
Disability Access, which shall be available May 1, 2009, to fund the
startup of the commission pursuant to Section 8299.01 of the
Government Code.
SEC. 12. (a) Sections 2, 3, and 4 of this act shall become
operative only upon issuance of a notice by the Director of Finance
declaring that the California Commission on Disability Access has
been funded and has commenced operations.
(b) If the commission loses funding, or for any other reason
ceases operations, both of the following shall apply:
(1) Sections 55.51 and 55.52, subdivision (c) of Section 55.53,
and subdivision (a) of Section 55.54 of the Civil Code, as added by
Section 3 of this act, shall become inoperative.
(2) The remaining provisions of Section 55.54 shall remain
operative as follows:
(A) Subdivisions (j) and (k) shall have general application.
(B) The remaining subdivisions shall be available only to a
defendant in a construction-related accessibility claim relating to a
place of public accommodation for which a CASp inspection and report
was obtained prior to the date of the commission ceasing operations.
(c) If the commission loses funding or ceases operations for any
other reason on or before January 1, 2014, Sections 55.55 and 55.56
of the Civil Code, as added by Section 4 of this act shall become
inoperative on the date the commission ceases operations, except as
to a construction-related accessibility claim that was filed before
the date the commission ceased operations.
(d) The commission shall issue a notice of its date of ceasing
operation upon the occurrence of that event. The Director of Finance
also shall issue a notice within 30 days of the commission losing its
funding or ceasing operations.
(e) Any notice required under this section shall be sent to the
chairs of the Committee on Judiciary of the Senate and the Assembly,
the Judicial Council, and the State Bar of California, and posted on
the respective Internet Web sites of the Department of Finance, the
Division of the State Architect, and the Commission on Disability
Access.