SB 269: California Accessibility Legislation Update for 2016
On May 10, 2016, Governor Brown signed into law Senate Bill 269, which provides some extra protection for California small businesses against claims of disabled access violations by eliminating minimum statutory damages for certain minor and technical violations.
Rebuttable Presumption Regarding Certain "Technical Violations"For all new actions regarding discrimination relating to a construction-related accessibility standard filed after May 10, 2016, SB 269 [Civil Code section 55.56(e)] establishes a rebuttable presumption that certain "technical violations" do not cause a plaintiff to experience difficulty, discomfort, or embarrassment sufficient to entitle the plaintiff to an award of minimum statutory damages if certain specified conditions are met:
1) The defendant must be a "small business" as defined by Civil Code section 55.56(g)(2)(B), i.e., employ 25 or fewer employees, and have average annual gross receipts of less than $3.5 million over the previous three years.
2) The defendant must correct within 15 days of the service of the complaint or receipt of a written notice, whichever is earlier, all of the technical violations that are the basis of the claim.
3) Pursuant to Civil Code section 55.56(e)(1), the claim must be based on one or more of the following seven "technical violations":
A) Interior signs (other than directional signs or signs that identify accessible parts of the facility);
B) The lack of exterior signs, other than parking signs and directional signs;
C) The order in which parking signs are placed or the exact location or wording of parking signs, so long as the parking signs are clearly visible and indicate the location of accessible parking and van-accessible parking;
D) The color of parking signs, provided the color of the background contrasts with the color of the information on the sign;
E) The color of parking lot striping;
F) Faded, chipped, damaged or deteriorated paint of otherwise fully compliant parking spaces and passenger access aisles; and
G) The presence or condition of detectable warning surfaces on ramps, except where the ramp is part of a pedestrian path of travel that intersects with a vehicular lane or other hazardous area.
Exemption From Liability for Minimum Statutory Damages For Certain CASp Inspected PropertiesSenate Bill 269 also exempts a defendant from liability for minimum statutory damages with respect to a structure or area inspected by a Certified Access Specialist (CASp) for a period of 120 days following the date of an inspection by a CASp, if all of the following conditions as set forth under Civil Code section 55.56(g)(3) are met:
1) The business employs 50 or fewer employees on average over the last three years, or for the years it has been in existence if fewer than three years;
2) The structure or area of the alleged violation was the subject of an inspection report indicating "CASp determination pending" or "Inspected by a CASp";
3) The CASp inspection predates the filing of a claim or demand letter from a plaintiff; and
4) The business has corrected, within 120 days of the date of the inspection (and up to 180 days if delays are caused by a building permit approval), all construction-related violations in the structure or area inspected by the CASp that are noted in the CASp report that are the basis for the claim.
Note that a business may only claim the protection from liability once for each structure or area inspected by the CASp. [Civil Code section 55.56(g)(4)]