SB 1186 Impacting Public Accomodations Access for People With Disabilities Amended Significantly
By Marty Omoto
Community Disability Community Action Network
New amendments approved on April 30th on the State Senate floor gutted a controversial bill, SB 1186, introduced by former Senate Republican Leader Bob Dutton (Republican – Rancho Cucamonga, 31st State Senate District), that originally proposed new restrictions on people with disabilities right to sue for violations of access to public accommodations under the State’s landmark Unruh Civil Rights Act that would have implemented what is referred to as “right to cure” provisions that gives a specified time period for the business or property owner to respond to the allegations and fix the violations.
The amendments include a proposed ban on what is referred to as “demand for money” letters prior to a lawsuit being filed against a business for alleged disability access violations. Another amendment made a change in the primary author from Dutton to Senate President Pro Tem Darrell Steinberg (Democrat – Sacramento, 6th State Senate District). Dutton is now the primary co-author.
The bill is currently in the Senate Judiciary Committee, though no hearing date has been set. Unless rules are waived, the bill would have to be heard and reported out of that committee to the Senate floor on or before May 11th.
Steinberg, the Democratic State Senate Leader, reportedly reached out to Republican Dutton with the hope of trying to work on solutions that can address the problems that they both can agree need solving – rather than simply killing the original version of SB 1186 in Senate Judiciary Committee in the coming weeks, as was all but certain to happen.
Wide Range of People With Disabilities, People With Mental Health Needs, the Blind, Deaf and Seniors Impacted by Access Bill
The issues raised in the legislation impacts children and adults with disabilities – including developmental, people with autism, people with mental health needs, seniors, people with MS and other disorders, people with traumatic brain and other injuries, people who are blind or sight impaired, people who are deaf or hearing impaired, their families covered under the State’s landmark civil rights law, the Unruh Civil Rights Act and the federal Americans with Disabilities Act (ADA), and people and their families that run or work in businesses covered in the bill.
Legislation on Access Usually Generates Controversy
- Previous bills on the issue of disability access no matter who the author or level of support or opposition, usually generates strong reaction among some disability advocates.
- The changes in SB 1186 that delete the “right to cure” provisions will likely be strongly supported and welcomed by many disability advocates, who feared such provisions would seriously weaken rights under the State’s Unruh Civil Rights Act for people with disabilities.
- However some advocates may be just as concerned about – or even strongly opposed to the new amendments to the bill, especially in the proposed ban on “demand for money” and a new proposed requirement of providing a list of alleged access violations to the business 30 days before any lawsuit could be filed in State or federal court. They contend that any change of rights under the Unruh Civil Rights Act can seriously undermine or even stop compliance of disability access. Some have argued that businesses in California – and across the nation – have had decades to comply, and have not. Some advocates have claimed there has been no lawsuit abuse by any attorney filing a claim under the Unruh Civil Rights Act.
- Other advocates may view the proposed provisions – that are tentative as further discussions on the bill are held by the authors – as a reasonable step that, depending on the details, may not violate rights under the Unruh Civil Rights Act and could help further compliance regarding access.
- Advocates for people in small and large businesses are also similarly divided – with some feeling that much stronger measures are needed to curb what they view as lawsuit abuse that have harmed businesses who they claim are victims; while others agree that steps need to be taken that protect rights under State law for people with disabilities and disability access but at the same time puts in place provisions that make it more difficult for some who may abuse the legal system by simply demanding money regardless of whether a violation is fixed or not.
New Amendments Would Propose Banning “Demand for Money Letters”
- While strongly opposing Dutton’s original bill that called for up to 120 days for a business to fix alleged violations - the “right to cure” provisions – Steinberg wanted to work with Dutton on what he viewed as needed changes in State law to address issues of compliance of federal and State laws regarding access to public accommodations for people with disabilities, mental health needs and seniors – and also curbing reported abuses of the law by some attorneys representing people with disabilities, mental health needs and seniors against some businesses.
- The new amendments, tentatively propose to prohibit anyone – including persons with disabilities or their legal representatives from presenting to a business who may be in violation of the federal or state access requirements a “demand for money” letter. While the “demand for money” letters would be banned, SB 1186, as amended, would also require that any attorney intending to file a federal American with Disabilities Act (ADA) or State Unruh Civil Rights claim for damages, to send the business a notice of the alleged violations 30 days before being able to file any lawsuit for damages in federal or state court.
- Persons knowledgeable about the amendments indicated that this provision was deemed useful because listing alleged violations (which “demand for money” letters do) can be helpful to the business or property to correct violations, but that the new amendments do not contain any “right to cure” provisions – which Steinberg had opposed in the original version of SB 1186.
- There is also intent language proposed for SB 1186 to express the Legislature’s intent to examine the issues and look at solutions that improve access for people with disabilities, mental health needs and seniors and reduce unnecessary litigation, and intent language proposed to examine issues that small businesses face from litigation and tactics that many small business and other advocates claim have been used primarily for private gain and not to actually correct a disability access violation. Those claims have been strongly disputed by many – though not all – disability advocates, who say that those businesses and owners of property have had decades to correct violations.
- The amendments made to SB 1186 on April 30th are seen by both Steinberg and Dutton’s offices as “tentative” and a “work in progress” and are “not set in stone” and that both the Steinberg and Dutton offices – and others – will be working in the coming weeks to see “what is doable and what is not doable”. It is possible, according to insiders, that given the initial enormous differences of what the problems are – and what solutions are needed – that no agreement can be reached that will result in legislation that can be passed this year.
- The original bill’s “urgency” provision was also removed in the amendments approved by the State Senate on April 30th, which means the bill must follow the regular legislative process, unless those rules are waived by the Senate and Assembly leadership. That means, unless rules are waived, SB 1186 has to be heard in Senate Judiciary Committee on or before May 11, 2011 (Friday) – the last day for policy committees (such as Judiciary) to hear and report bills to deemed “not fiscal” (meaning does not impact the State general directly and is not required to be referred to Senate or Assembly Appropriations Committee) to the Senate (or Assembly) floor. No hearing date has been set for the bill yet.
Original Version of SB 1186 Called for “Right To Cure”
- The Dutton legislation, SB 1186, would have established, for a person with disabilities or their legal representative, wishing to file a lawsuit, notice requirements – referred to as “the right to cure”, to the owner of the property, agent or other responsible party that would have to be made before bringing an action against a business for an alleged violation of their access rights. The original version of the bill would have given 30 days for that owner, agent, or other responsible party to respond with a description of the improvements to be made or with a rebuttal to the allegations, and provide for another 90 days if that owner, agent, or other responsible party decides to fix the alleged violation.
- US Senator Dianne Feinstein (Democrat – California) sent a letter to Steinberg earlier in March that appeared to support the original Dutton bill, setting off a storm of controversy among many disability advocates. Steinberg responded to Feinstein, with a letter dated March 28th to her that indicated he was opposed to such “right to cure” restrictions, in light of the 2008 passage of SB 1608 that he said encouraged compliance without taking away rights of people with disabilities for violations of access under the Unruh Act.
Marty Omoto is Executive Director ofthe California Disability Community Action Network, a non-partisan link to thousands of Californians with developmental and other disabilities, people with traumatic brain injuries, the blind, the deaf, their families, community organizations and providers, direct care, homecare and other workers, and other advocates to provide information on state and local public policy issues.