Bill Text: CA AB1610 | 2011-2012 | Regular Session | Introduced
Bill Title: Special access: liability.
Spectrum: Partisan Bill (Republican 1-0)
Status: (Introduced - Dead) 2012-04-24 - In committee: Hearing postponed by committee. [AB1610 Detail]
Download: California-2011-AB1610-Introduced.html
BILL NUMBER: AB 1610 INTRODUCED
BILL TEXT
INTRODUCED BY Assembly Member Wagner
FEBRUARY 7, 2012
An act to add Sections 55.4 and 55.41 to the Civil Code, and to
amend Section 4452 of the Government Code, relating to special
access.
LEGISLATIVE COUNSEL'S DIGEST
AB 1610, as introduced, Wagner. Special access: liability.
Under existing law, a person, firm, or corporation that interferes
with the access rights of a disabled individual is liable for the
actual damages of each offense and any amount determined by a judge
or jury of up to 3 times the amount of the actual damages, but in no
case less than $1,000. 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.
This bill would establish notice requirements for an alleged
aggrieved party to follow before bringing an action against a
business for an alleged violation of the above-described provisions.
The bill would require that party to provide specified notice to the
owner of the property, agent, or other responsible party where the
alleged violation occurred. The bill would require that owner, agent,
or other responsible party to respond within 30 days with a
description of the improvements to be made or with a rebuttal to the
allegations, as specified. If that owner, agent, or other responsible
party elects to fix the alleged violation, the bill would provide
120 days to do so. The bill would provide that its provisions do not
apply to claims for recovery of special damages for an injury in
fact, and would authorize the court to consider previous or pending
actual damage awards received or prayed for by the alleged aggrieved
party for the same or similar injury. The bill would further state
the intent of the Legislature to institute certain educational
programs related to special access laws.
Vote: majority. Appropriation: no. Fiscal committee: no.
State-mandated local program: no.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. The Legislature finds and declares all of the
following:
(a) The federal Americans with Disabilities Act of 1990 (Public
Law 101-336) and this state's complementary special access laws set
forth in Sections 51, 52, 54, 54.1, and 54.3 of the Civil Code and
Sections 4450 and 4452 of the Government Code are intended to protect
Californians with special needs from unlawful and unfair
restrictions on access to the full and free use of the streets,
highways, sidewalks, walkways, public buildings, medical facilities,
including hospitals, clinics, and physicians' offices, public
facilities, and other public places.
(b) These special access laws are susceptible to abuse through
vexatious litigation that is not pursued with the primary intent of
rectifying a wrong or advancing or creating a public benefit.
(c) Vexatious special access lawsuits unduly burden our courts and
taxpayers and do not result in improved access for those with
special access needs. Those lawsuits cost California jobs and
economic prosperity, unfairly threaten small businesses, force
businesses to respond with higher costs for goods and services, and
have adverse impacts on levels of employment and employee
compensation.
(d) It is the intent of the Legislature in enacting this act to
eliminate vexatious special access lawsuits while protecting the
right of individuals to retain counsel and file an action for relief
pursuant to the federal Americans with Disabilities Act of 1990
(Public Law 101-336) and Sections 51, 52, 54, 54.1, and 54.3 of the
Civil Code and Sections 4450 and 4452 of the Government Code.
(e) It is the intent of the Legislature in enacting this act to
restrict the filing of special access lawsuits under California law
without first notifying and allowing property owners, agents, or
other responsible parties the opportunity to improve access by curing
any violations.
(f) It is not the intent of the Legislature in enacting this act
to prohibit the filing of special access lawsuits where, because of
an alleged violation of this state's special access laws, an
individual has suffered an injury in fact for which a proceeding in a
court of competent jurisdiction is proper.
SEC. 2. Section 55.4 is added to the Civil Code, to read:
55.4. (a) Notwithstanding any other provision of law, prior to
filing a claim under Section 51, 52, 54, 54.1, or 54.3, or Section
4450 or 4452 of the Government Code, the alleged aggrieved party
shall notify the owner of the property, agent, or other responsible
party where the alleged violation occurred by personal service, in
accordance with applicable state or federal laws, or certified mail,
of all alleged special access violations for which a claim may be
filed by the alleged aggrieved party. That notice shall contain the
following language:
"This letter is to inform you that the property located at
(address of property), for which you are the property owner, agent,
or other responsible party, may be in violation of federal and/or
state special access laws pursuant to (expressly cite the federal
and/or California statute of which the property is believed to be in
violation) and caused harm to (list the name of the alleged aggrieved
party).
Specifically, the possible violation(s) has/have been identified
as follows: (Notice must identify the specific facts that constitute
the alleged violation, including the date on which the alleged
violation occurred and identification of the location of the alleged
violation with sufficient detail, so that the location can be
identified by the property owner, agent, or other responsible party).
Under Section 55.4 of the California Civil Code, you have 30 days
to respond to this notice by certified mail or personal service. Your
response must be addressed to (give address where personal service
may be received or certified mail may be sent). California law allows
you to respond in one of three ways:
(1) You may expressly state that improvements will be made to
bring the premises into compliance with applicable special access
laws. If you respond in this fashion, you have a maximum of 120 days
to make these improvements or repairs. The 120-day period shall begin
on the date your response to this notice is received at the address
given above. If the improvements or repairs necessary to bring the
property into compliance with federal and state special access laws
are not completed in 120 days, a lawsuit may be brought against you.
(2) You may challenge the validity of the alleged violations. If
you respond in this fashion, a lawsuit may be brought against you
immediately.
(3) If the violations listed above are the same or similar to
previous violations that you believe have been corrected, you may
respond by stating that the necessary repairs have been made to bring
the property into compliance with federal and state special access
laws. You must also attach evidence that verifies those improvements.
If you have any questions about this notice or your rights under
federal or California law, please contact your legal counsel."
(b) Beginning with the date of notice, the property owner, agent,
or other responsible party where the alleged violation occurred shall
have 30 days to respond by certified mail or personal service to the
alleged aggrieved party. That response shall communicate any of the
following:
(1) Expressly state that improvements will be made to bring the
premises into compliance with applicable laws. A response in this
fashion by the property owner, agent, or other responsible party
where the alleged violation occurred shall not be considered an
admission of guilt and is inadmissible in any future claims based on
the same facts filed against the property owner, agent, or other
responsible party.
(2) Challenge the validity of the alleged violation. If the
property owner, agent, or other responsible party where the alleged
violation occurred so responds, the alleged aggrieved party may file
a claim, subject to any applicable statutes of limitations, any time
after receipt of notice as prescribed in this section.
(3) State that the alleged violations identified by the alleged
aggrieved party have been corrected to comply with applicable state
and federal special access laws. The property owner, agent, or other
responsible party where the alleged violation occurred shall also
attach evidence that verifies those improvements.
(c) If the property owner, agent, or responsible party where the
alleged violation occurred responds in the manner described in
paragraph (1) of subdivision (b), the property owner, agent, or
responsible party where the alleged violation occurred shall have 120
days to remedy the alleged violation. The 120-day period shall begin
on the date the alleged aggrieved party receives a response,
pursuant to subdivision (b), from the owner, agent, or responsible
party where the alleged violation occurred.
(d) If, at the end of the 120-day period, the property owner,
agent, or responsible party where the alleged violation occurred has
not made the improvements described in paragraph (1) of subdivision
(b) and fails to provide satisfactory explanation as to why those
repairs were not yet completed, the alleged aggrieved party may file
a claim.
(e) If the property owner, agent, or other responsible party where
the alleged violation occurred has made the improvements described
in paragraph (1) of subdivision (b), no current or future alleged
aggrieved party shall receive any damages or attorney's fees, other
than special damages, for any claim arising out of the same or
similar facts that served as a basis for the alleged violation.
(f) This section applies to all claims for damages or fees, other
than those praying for special damages arising out of injuries in
fact. This section shall not be construed to limit claims for
recovery of special damages filed by any person who suffers an injury
in fact because they were denied full and equal access to an
accommodation as required by Section 51, 52, 54, 54.1, or 54.3, or
Section 4450 or 4452 of the Government Code.
(g) In making a determination of the amount of damages awarded to
a successful plaintiff, a court or jury shall consider previous or
pending actual damage awards received or prayed for by that plaintiff
for the same or similar injury.
SEC. 3. Section 55.41 is added to the Civil Code, to read:
55.41. It is the intent of the Legislature to institute programs
to educate business property owners and local municipalities about
the accessibility requirements of federal and state special access
laws.
SEC. 4. Section 4452 of the Government Code is amended to read:
4452. (a) It is the intent of the
Legislature that the building standards published in the State
Building Standards Code relating to access by the physically
handicapped and the other regulations adopted by the State Architect
pursuant to Section 4450 shall be used as minimum requirements to
insure that buildings, structures and related facilities covered by
this chapter are accessible to, and functional for, the physically
handicapped to, through, and within their doors, without loss of
function, space, or facility where the general public is concerned.
Any
(b) Any unauthorized deviation
from such those regulations or building
standards shall be rectified by full compliance within 90 days after
discovery of the deviation.
(c) Notwithstanding subdivision (b), prior to any action commenced
for an alleged violation of Section 4450 or this section, the notice
requirements specified in Section 55.4 of the Civil Code shall apply
to the alleged aggrieved party.
