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November 26, 2012

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Legislative update: SB 1186 brings major changes to construction-related accessibility claims

By Servando R. Sandoval

SB 1186 (Steinberg Dutton), which was signed by Governor Brown Sept. 19, and takes effect Jan. 1, 2013, creates new requirements for attorneys dealing with construction-related accessibility claims and creates new incentives for property owners to comply with construction-related accessibility standards.

The new law replaces Section 6106.2 to the Business and Professions Code, which reads as follows:

(a) It shall constitute cause for the imposition of discipline of an attorney within the meaning of this chapter for an attorney to engage in any conduct in violation of Section 55.3 of the Civil Code.

(b) Commencing January 1, 2013, it shall constitute cause for the imposition of discipline of an attorney within the meaning of this chapter for an attorney to engage in any conduct in violation of subdivision (b) or (c) of Section 55.31, or paragraph (3) of subdivision (a) or subdivision (b) of Section 55.32 of the Civil Code, or paragraph (2) of subdivision (a) of Section 55.32 of the Civil Code as provided in subdivision (c) of that section.

(c) This section shall remain in effect only until January 1, 2016, and as of that date is repealed, unless a later enacted statute, that is enacted before January 1, 2016, deletes or extends that date.

Civil Code Section 55.3 requires attorneys who send demand letters or complaints dealing with construction-related accessibility claims to provide a written advisory to each defendant or potential defendant in a form that complies with subsection (b) of Section 55.3. The Judicial Council is supposed to update the form that may be used by attorneys to comply with this requirement on or before July 1, 2013. Until the Judicial Council form is updated, attorneys are required to provide the required advisory such that it is obvious that the advisory is separate from the demand letter or complaint. This advisory is only required with the initial demand letter or complaint and is not required with subsequent communications with the same defendants.

SB 1186 also adds a new provision to the Civil Code, Section 55.31, which imposes a higher pleading requirement for construction-related accessibility claims contained in a demand letter or complaint. Section 55.31 requires that any demand letter or complaint state facts sufficient to “allow a reasonable person to identify the basis of the violation or violations supporting the claims.” Specifically, Section 55.31 requires the following:

  1. A plain language explanation of the specific access barrier or barriers the individual encountered, or by which the individual alleges he or she was deterred, with sufficient information about the location of the barrier to enable a reasonable person to identify the access barrier.
  2. The way in which the barrier encountered interfered with the individual’s full and equal use or access, or in which it deterred the individual, on each particular occasion.
  3. The date or dates of each particular occasion on which the individual encountered the specific access barrier, or on which he or she was deterred.

Any complaint alleging a construction-related accessibility claim will also need to be verified by the plaintiff. Otherwise, a complaint filed without the plaintiff’s verification is subject to a motion to strike.

Section 55.31 also prohibits the inclusion of a demand for money or an offer or agreement to accept money in any demand letter. Section 55.31 specifically states: “With respect to potential monetary damages for an alleged construction-related accessibility claim or claims, a demand letter shall not state any specific potential monetary liability for any asserted claim or claims, and may only state: ‘The property owner or tenant, or both, may be civilly liable for actual and statutory damages for a violation of a construction-related accessibility requirement.’”

Attorneys, or other person acting at the direction of an attorney, are also prohibited from issuing a demand for money to a building owner or tenant on the basis of one or more construction-related accessibility violations. Additionally, pursuant to the newly added Section 55.32 of the Civil Code, attorneys who send demand letters relating to construction-related violations are required to include their State Bar license number in the demand letter and to submit copies of the demand letter to the California Commission on Disability Access and, until January 1, 2016, to the State Bar. Additionally, a copy of any complaint alleging construction-related claims must be submitted to the California Commission on Disability Access until Jan. 1, 2016. Any attorney who fails to comply with the foregoing provisions may be subjected to disciplinary action.

Property owners may still take advantage of the previously approved Certified Access Specialist (CASp) inspections. In January 2009, a new law took effect that provides property owners with certain incentives to voluntarily come into compliance with existing federal and state law relating to public access. Both State and Federal 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. In 2008, SB 1608 authorized the California Architects Board to implement a program for the voluntary certification of CASp in relation to access to buildings for persons with disabilities. As it pertains to property owners, Senate Bill 1608 included provisions allowing property owners to obtain written inspection report from a CASp showing their properties had been determined to meet all applicable construction-related accessibility standards.

Obtaining a disability access inspection certificate provides a property owner with many benefits. For instance, a property owner who met the requirements of the new law and is served with a summons and complaint asserting a construction-related accessibility claim is able to file a request for a court stay the litigation and to schedule an early evaluation conference.

SB 1186 expands the types of defendants who are allowed to file a request for a court stay and early evaluation conference. Under SB1186, defendants who had new construction or improvements on or after January 1, 2008 and before January 1, 2016, whose new construction or improvements were approved pursuant to a local building permit and inspection process, defendants whose new construction or improvements were approved by a local public building department inspector who is a CASp specialist, and defendants who are small businesses are entitled to seek a stay and an early evaluation conference.

A small business is defined by Civil Code Section 55.56 as a business that has 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, and has average annual gross receipts of less than $3,500,000 over the previous three years, or for the years it has been in existence if less than three years.

Finally, SB 1186 amends existing law as it relates to statutory damages in construction-related accessibility claims. Under existing law, statutory damages can be assessed against a place of public accommodation if a violation of construction-related accessibility standards denied the plaintiff full and equal access to that site on a particular occasion. A plaintiff is denied full and equal access only if, on a particular occasion, the plaintiff personally encountered the violation or was deterred from accessing the site. Under existing law, the statutory damages that can be recovered are in the amount of actual damages and any additional amount determined by a jury or the court up to a maximum of 3 times the amount of actual damages but not less than $4,000, or, for certain violations, $1,000.

The new law requires that a court, in assessing liability in an action alleging multiple claims for the same construction-related accessibility violation on different particular occasions, to consider the reasonableness of the plaintiff’s conduct and also consider the plaintiff’s obligation to mitigate his or her damages. SB 1186 also reduces a defendant’s minimum liability for statutory damages to $1,000 for each offense if the defendant has corrected all construction-related violations that are the basis of the claim within 60 days of being served with the complaint and other applicable conditions, and reduces that minimum liability to $2,000 for each offense if the defendant has corrected all construction-related violations that are the basis of the claim within 30 days of being served with the complaint and the defendant is a small business, as defined above. A plaintiff would still be entitled to his or her actual damages suffered as well as attorney fees.

While SB 1186 does not go as far as some people would have preferred, property owners and small business should hopefully see some relief provided by the restrictions the bill has created on construction-related accessibility claims and by reducing the statutory damages for those property owners and business that are proactive in complying with the accessibility requirements.

Servando R. Sandoval is a partner with Pahl & McCay, a San Jose-based law firm. This article was initially published in the October 2012 E-Bulletin of the Real Property Law Section of the State Bar of California.

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