Civil Rights... Where are they now?? SB 251

This post provides a step-by-step review of the most relevant sections of SB 251.  The SB 251 does not contain a purpose.  However, by reading the bill as a whole, UAAAC has determined that the purpose is to stop ADA lawsuits.  The reason for this deduction is because by requiring written notice and allowing the businesses to correct the violation, the lawyer will not need to file the lawsuits. However, as noted below, the ADA lawsuits will continue because the California legislature only has the power to reduce or to eliminate statutory damages but it does not have the power to stop the lawyers from filing ADA lawsuits.  This post does not explain why SB 251 may violate the rights of people with disabilities. This post focuses on what could be the practical approach of SB 251.  The outcome will not achieve the purposes of the author of SB 251.  The constituents of the author will quickly become dissatisfied with the outcome of SB 251 and will become dissatisfied with the author. 

UAAAC ANALYSIS OF SB 251

A. A person must give written notice before filing a barrier lawsuit. See amendment 7, Section 2(a). UAAAC opposes.  For the purposes of this analysis, we ignore the fact this section may violate the U.S. Constitution. Instead we focus on if written will stop ADA suits. What would be the practical effect of SB 251?  First, a lawyer will file a state lawsuit without any damages allegations. Then he or she will serve the lawsuit with the written notice. Thereafter the defendant must answer the lawsuit and correct the violations within 30 or 90 days to reduce the damages. Further, most defendant retain counsel. A simple cost analysis will force the defendant to litigate or settle regardless of receiving written notice. Second, a lawyer files in federal court for ADA only. BOTTOM LINE: Businesses will say SB 251 failed to stop the ADA and demand that the Senate do more to stop said suits. However, the State Senate cannot stop ADA suits.

B. A business will not be liable for violating the access standards if it corrects the violations 90 days of getting the access report.  See amendment 7, Section 2(b). UAAAC opposes. For a second, let us assumed that statutory damages are not allowed at all, the ADA suits will continue. So reducing damages will not stop ADA suits.

C. If a business corrects signage, painting of a parking lot or truncated domes within 30 days of getting written notice then the business is not liable for the violations.  See amendment 7, Section 2(b)(2). UAAAC opposes. Simply stated, a lawyer will allege more substantial violations or reject the case. This section will not work.

D. Section 3 repeats existing law - Plaintiff must personally encounter a violation; or Plaintiff was deterred by the violation.  See amendment 7, Section 3(a-e). UAAAC supports.

E. Plaintiff's damages will be reduced to $1,000 if the business corrects the violations within 60 days of receiving the complaint and the property had a certified inspection, a certified inspection is pending or the improvement was approved by a building inspector.  See amendment 7, Section 3(f)(1)(A-D). UAAAC opposes for the reasons already stated as to this section.

F. A plaintiff's damages will be reduced to $2,000 if the business corrects the violation within 30 days of receiving the complaint and it shows it corrected the violations and it has less 26 employees or it has annual gross revenues of $3.5 million. See amendment 7, Section 3(f)(2)(A-B). UAAAC opposes for the reasons already stated as to this section.

G. If a micro-business corrects the violations before receiving a complaint it is not liable for any statutory damages. See amendment 7, Section 3(g).  UAAAC opposes for the reasons already stated as to this section. 

I. The owner and tenant of commercial property are both responsible for ADA compliance. The commercial must state this. See amendment 7, Section 4 UAAAC supports.

J. The certification for a certified access specialist will last 3 years. See amendment 7, Section 3. UAAAC supports.

K. Expanding the duties of the California Commission On Disability including the development of educational materials and a web site. See amendment 7, Section 6. UAAAC opposes. Why are tax payers paying for this agency? All its functions are or can be subsumed by other agencies.

L. Local governments must develop ADA materials to be provided with approval permits. See amendment 7, Section 7. UAAAC opposes. ADA information is free all over the Internet. Cities are struggling. Why should cities the costs of gathering, organizing, printing and distributing ADA information for businesses?

M. Article 4 defines terms.   UAAAC opposes all term definitions except 65946(1)(6). See amendment 7, Section 8.

N.  Provide tax credits to businesses. See amendment 7, Section 9. UAAAC opposes. Why should the State agree to allow tax credits for doing what the law has required for 40 years when the State is near broke?