Disability access: construction-related accessibility claim.

Existing law authorizes the assessment of statutory damages under these provisions based on each particular occasion that the plaintiff was denied full and equal access, as specified, not upon the number of violations of construction-related accessibility standards.

Existing law prohibits a defendant from being liable for minimum statutory damages in a construction-related accessibility claim, with respect to a violation noted in a report by a certified access specialist (CASp), for a period of 120 days following the date of the inspection if the defendant demonstrates compliance with each of specified requirements. Existing law includes in these specified requirements that the inspection predates the filing of the claim by, or receipt of a demand letter from, the plaintiff, as specified, and that the defendant was not on notice of the alleged violation before the CASp inspection.

This bill would establish, until January 1, 2034, the Small Business Right to Cure Program and would prohibit a defendant who qualifies for the program from being liable for minimum statutory damages for any construction-related accessibility claim for a period of 6 years following a CASp report, as provided. To qualify for the program, the bill would require the defendant to demonstrate specified conditions, among others, that the defendant has posted, as provided, both the CASp inspection notice and a Notice of Participation in the Small Business Right to Cure Program, as defined. The bill would authorize the State Architect to develop, as specified, a form Notice of Participation in the Small Business Right to Cure Program, and would authorize a business to satisfy any requirement to provide the notice by providing a specified written statement until and unless the State Architect promulgates the form. The bill would require a public accommodation that participates in the program to make available specified documents for public inspection, including the CASp report that is the basis for the public accommodation asserting that it qualifies for the program. The bill would provide that no provision of the program applies under any of specified conditions, including that the plaintiff or prospective plaintiff alleges an intentional violation of any state or federal disability rights law, a violation related to policies, practices, or procedures, or seeks special damages that arise from physical personal injuries or damage to personal property.

Existing law establishes the California Commission on Disability Access for purposes of developing recommendations to enable persons with disabilities to exercise their right to full and equal access to public facilities and facilitating business compliance with applicable state and federal laws and regulations. Existing law requires an attorney who sends or serves a complaint on the basis of one or more construction-related accessibility claims, as specified, to notify the commission, as provided, of specified information, including, among other requirements, the date of the judgment, settlement, or dismissal. Existing law requires the commission to make an annual report to the Legislature of tabulated data relating to the various types of construction-related physical access violations alleged in demand letters and complaints by January 31 of each year.

This bill would, until January 1, 2034, additionally require an attorney to include in the above-described notification to the commission whether the defendant qualified for and used the Small Business Notice and Right to Cure Program. The bill would require the commission, beginning on or before July 1, 2027, and until January 1, 2034, to include in the above-described annual report information about the number of businesses that participate in the Small Business Notice and Right to Cure Program.

(2) The Unfair Competition Law makes various practices unlawful and provides that a person who engages, has engaged, or proposes to engage in unfair competition is liable for a civil penalty, as specified.

This bill would provide that a person who posts a specified notice, including a Notice of Participation in the Small Business Right to Cure Program on the premises of a place of public accommodation, or authorizes the document to remain posted on the premises, and knows or should know that the document is inauthentic, materially inaccurate, or that the place of public accommodation does not qualify for the applicable program or other limitation on liability provided by law shall be subject to enforcement under the Unfair Competition Law.

(3) Existing law requires a property owner or lessor to state on every lease form or rental agreement whether the subject premises have undergone inspection by a CASp. Existing law provides that making repairs or modifications necessary to correct violations of construction-related accessibility standards that are noted in a CASp report is presumed to be the responsibility of the property owner or lessor unless otherwise mutually agreed upon by the commercial property owner or lessor and the lessee or tenant, as prescribed.

This bill would extend the above-described presumption to include repairs or modifications necessary to correct violations of construction-related accessibility standards in the common area of a commercial property. In the event that a commercial property owner fails to comply with specified requirements in relation to certain lease agreements, the bill would make void and unenforceable an indemnity provision or contractual agreement that seeks to shift the financial responsibility for construction-related accessibility violations from the commercial property owner or lessor to the lessee or tenant within a lease for a commercial property.