California Governor Arnold Schwarzenegger, in 2008, signed a landmark disability access bill, S.B. 1608, aimed at promoting and increasing compliance with state and federal civil rights laws providing equal access for individuals with disabilities in public accommodations and reducing frivolous, unnecessary litigation that does not advance the goals of disability access.
Conflicting disability access standards under California and federal laws, a lack of continuing education for building inspectors and architects, and inconsistent interpretations of state law have made compliance with disability access standards in California difficult. S.B. 1608's provisions are designed to address those issues and improve accessibility compliance throughout the state. State Senator Ellen Corbett, one of the bill's sponsors, has stated she believes the bill "strikes a much needed balance between the rights of people with disabilities and businesses that need to be in compliance with ADA."
The law adds several new provisions to the California's existing disability access laws, including the Business and Professions Code, Government Code, and the Health and Safety Code. Most provisions took effect January 1, 2009, with some provisions delayed until July 1, 2009.
Some key highlights of the new law:
- Establishes a 19 member California Commission on Disability Access. This independent commission will conduct studies and make reports to the Legislature on disability access throughout the state.
- Requires a court, with respect to an action involving a construction-related accessibility claim, to issue an order granting a 90-day stay of the claim, scheduling an early evaluation conference, and directing the defendant to file with the court and serve on the plaintiff any relevant Certified Access Specialist inspection report if the defendant has satisfied certain requirements relating to inspection of the site at issue. The stay and early evaluation conference is not a "right-to-cure" period nor is it a "safe harbor."
- Provides that in a construction-related accessibility claim, damages may be recovered against a place of public accommodation only if a violation of construction-related accessibility standards denied the plaintiff full and equal access to the site on a particular occasion.
- Requires a plaintiff's attorney to provide a written advisory to a building owner or tenant with each demand for money or complaint for any construction-related accessibility claim, as defined in the law, in a form to be developed by the Judicial Council. The advisory form must explain the right to a court stay and early evaluation conference to assess the merits of the claim. This is not a pre-lawsuit notification provision.
- Requires architects and building inspectors to complete coursework regarding disability access requirements, and requires construction inspectors, plans examiners, and building officials to complete at least 8 hours of continuing education relating to disability access requirements every 3 years.
- Requires every local building department to employ or retain a Certified Access Specialist.
- Enacts the Construction-Related Accessibility Standards Compliance Act providing for the inspection of sites by Certified Access Specialists, the provision of specified certificates, and reports regarding those inspections.
The new law serves as a reminder that employers should evaluate their businesses regularly to ensure they are in compliance with access requirements and other aspects of disability discrimination laws.
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