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AB-950 Accessibility: internet websites.(2023-2024)

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Date Published: 04/26/2023 09:00 PM
AB950:v97#DOCUMENT

Amended  IN  Assembly  April 26, 2023
Amended  IN  Assembly  April 18, 2023

CALIFORNIA LEGISLATURE— 2023–2024 REGULAR SESSION

Assembly Bill
No. 950

Introduced by Assembly Member Maienschein

February 14, 2023

An act to amend the heading of Part 2.53 (commencing with Section 55.55) of Division 1 of, and to add Sections 55.565 and 55.566 to, the Civil Code, and to amend Sections 4469.5 and 14985.6 of the Government Code, relating to accessibility.


LEGISLATIVE COUNSEL'S DIGEST


AB 950, as amended, Maienschein. Accessibility: internet websites.
(1) Existing law imposes liability upon a person who denies, aids or incites a denial, or makes any discrimination or distinction contrary to rights afforded by law, for actual damages suffered, exemplary damages, a civil penalty, and attorney’s fees, as specified, to any person who was denied the specified rights. Existing law also imposes liability upon a person, firm, or corporation that denies or interferes with admittance to or enjoyment of public facilities or otherwise interferes with the rights of an individual with a disability, as specified, for damages and attorney’s fees to a person who was denied those rights. Existing law establishes in state government the California Commission on Disability Access, which is required to provide information regarding preventing or minimizing problems of compliance by California businesses by providing educational services, including outreach efforts, and by preparing and hosting on its internet website a Guide to Compliance with State Laws and Regulations Regarding Disability Access Requirements.
This bill would specify that statutory damages based upon the inaccessibility of an internet website under these provisions shall only be recovered against an entity, as defined, if the internet website fails to provide equally effective communication or facilitate full and equal enjoyment of the entity’s goods and services to all members of the public. The bill would require, in order for a plaintiff to be entitled to statutory damages for internet website inaccessibility, the plaintiff to prove either that they personally encountered a barrier that caused them to experience a difference in their access to, or use of, the website as compared to other users, as specified, or that they were deterred from accessing all or part of the internet website or the content of the website because of the website’s failure to provide equally effective communication or to facilitate full and equal enjoyment of the entity’s goods and services offered to the public. The bill would specify that an internet website is presumed to provide equally effective communication for the purpose of determining whether an award of minimum statutory damages is warranted, as specified, if the internet website website, taking into account the variety of conforming implementations that may be used to meet the internet website-related accessibility standard, complies with an internet website-related accessibility standard, as defined. The bill would require the California Commission on Disability Access to review those standards described in the definition of internet website-related accessibility standard to determine whether they are the most up-to-date standards for effective communication by means of internet websites, and to notify the Legislature if they are not up to date and should be revised.
This bill would make it unlawful for any resource service provider, in exchange for remuneration, to intentionally or knowingly construct, license, distribute, or maintain for online use, an internet website that fails to comply with the internet website-related accessibility standard. The bill would authorize a civil action by a person who is unable to obtain equally effective communication or full and equal enjoyment of an internet website, the content of an internet website, or goods and services offered to the public on an internet website, as a result of the failure of an internet website to meet the internet website-related accessibility standard, with remedies as prescribed. The bill would further authorize a civil action by a person or entity that pays, compensates, or contracts with an internet website a resource service provider to construct, license, distribute, or maintain an internet website for the purpose of providing equally effective communication or facilitating full and equal enjoyment of the person or entity’s goods and services to all members of the public, including any member of the public who is disabled, with remedies as prescribed. The bill would also authorize the Attorney General or a district attorney, county counsel, or city attorney to bring an action to obtain injunctive or declaratory relief and attorney’s fees and costs. The bill would provide that a provision within a contract between a person or entity and an internet website a resource service provider that seeks to waive liability under these provisions is subject to specified provisions of the Ralph Civil Rights Act of 1976 relating to waiver of rights.
(2) Existing law requires each city, county, or city and county that issues business licenses, building permits for additions, alterations, and structural repairs to commercial property, or building permits for new construction of commercial property to make available, and, upon receipt of an application for a business license or building permit to provide to the applicant, an informational notice to the applicant containing, among other things, general information about the compliance requirements pursuant to the federal Americans with Disabilities Act of 1990 and the state’s disability access laws and advisories to both building permit applicants and business license applicants encouraging consultations and inspections by certified access specialists.
This bill would also require the information about the compliance requirements pursuant to the state’s disability access laws to include a statement that a business’ internet website is required to be accessible, and to provide equally effective communication or facilitate full and equal enjoyment of the entity’s goods and services, to the public, including any member of the public who is disabled. The bill would require the advisories to encourage applicants to include in specified contracts warranty and indemnification clauses relating to accessibility standards and to consider not working with individuals or organizations unwilling to warranty their work and to indemnify the applicant for judgements rendered against them for violating website-related accessibility standards. By imposing new requirements on local government agencies, the bill would create a state-mandated local program. The bill would also make other conforming changes.
The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.
This bill would provide that, if the Commission on State Mandates determines that the bill contains costs mandated by the state, reimbursement for those costs shall be made pursuant to the statutory provisions noted above.
Vote: MAJORITY   Appropriation: NO   Fiscal Committee: YES   Local Program: YES  

The people of the State of California do enact as follows:


SECTION 1.

 The heading of Part 2.53 (commencing with Section 55.55) of Division 1 of the Civil Code is amended to read:

PART 2.53. ATTORNEY'S FEES AND STATUTORY DAMAGES IN ACCESSIBILITY STANDARDS CLAIMS

SEC. 2.

 Section 55.565 is added to the Civil Code, immediately following Section 55.56, to read:

55.565.
 (a) Statutory damages under subdivision (a) of either Section 52 or Section 54.3 shall only be recovered against an entity based upon the inaccessibility of an internet website developed, procured, maintained, or used by that entity if the internet website fails to provide equally effective communication or facilitate full and equal enjoyment of the entity’s goods and services to all members of the public, including any member of the public who is disabled.
(b) To be entitled to statutory damages for internet website inaccessibility, a plaintiff must prove one of the following:
(1) That the plaintiff personally encountered a barrier that caused the plaintiff to experience a difference in their ability to access or use the website as compared to other users such that the plaintiff was unable to acquire the same information, engage in the same interactions, or enjoy the same services with substantially equivalent ease of use, or to have the same level of privacy and independence as other users who are not disabled.
(2) That the plaintiff was deterred from accessing all or part of the website or the content of the website because of the website’s failure to provide equally effective communication or to facilitate full and equal enjoyment of the entity’s goods and services offered to the public.
(c) (1) An internet website is presumed to provide equally effective communication for the purpose of determining whether an award of minimum statutory damages, damages is warranted under subdivision (a) of Section 52 or 54.3, if the internet website website, taking into account the variety of conforming implementations that may be used to meet the internet website-related accessibility standard, complies with the internet website-related accessibility standard.
(2) The presumption set forth in paragraph (1) affects the plaintiff’s burden of proof. Upon the defendant establishing by a preponderance of the evidence that the internet website complies with the standard set forth in paragraph (1), internet website-related accessibility standard, the plaintiff may rebut the presumption with clear and convincing evidence, showing that, notwithstanding the internet website’s compliance with the standard, the elements of one of the violations set forth in subdivision (b) are established.
(d) This section is not intended to do any of the following:
(1) Limit the rights and remedies available to disabled persons under federal law, or any other state law.
(2) Affect whether an entity is responsible under either Section 51 or 51.5 for making its premises accessible to all members of the public, including the disabled and including by means of accessing and using the entity’s internet website.
(3) Resolve, or otherwise address, whether an internet website that is a standalone website-only business and not associated with a business that has a physical location in California is subject to liability under Sections 51, 54, and 54.1.
(e) For purposes of this section, the following definitions apply:
(1) “Entity” means a business establishment that is open to the public, a public place, or a place of public accommodation.
(2) “Internet website” includes all internet web-based technology, including, but not limited to, a mobile application or app that can be accessed by a mobile device.
(3) “Internet website-related accessibility standard” means the Web Content Accessibility Guidelines (WCAG) 2.1 Level AA standard for the accessibility of internet websites established by the World Wide Web Consortium (W3C) Accessibility Guidelines Working Group on June 5, 2018, or the accessibility standards for Section 508 of the federal Rehabilitation Act of 1973 (29 U.S.C. Sec. 794d) in Part 1194 of Title 36 of the Code of Federal Regulations. To the extent that there is an overlap between the applicable standards for internet websites under WCAG 2.1 and standards for information or communication technology under Section 508 of the federal Rehabilitation Act of 1973, the more recent WCAG 2.1 standard shall apply. Any subsequent more stringent update, revision, or replacement to either standard adopted by any final rule of the U.S. Access Board shall apply to this section.
(f) This section applies to any civil action filed on or after January 1, 2024.

SEC. 3.

 Section 55.566 is added to the Civil Code, to read:

55.566.
 (a) It is unlawful for any resource service provider, in exchange for money or any other form of remuneration, to intentionally or knowingly construct, license, distribute, or maintain for online use, an internet website that fails to comply with the internet website-related accessibility standard.
(b) The following parties may bring a civil action pursuant to this subdivision:
(1) (A) A person who is unable to obtain equally effective communication or full and equal enjoyment of an internet website, the content of an internet website, or goods and services offered to the public on an internet website, as a result of the failure of an internet website to meet the internet website-related accessibility standard.
(B) The remedies for a violation of this section pursuant to this paragraph are the remedies provided in subdivision (a) of Section 52.
(2) (A) A person or entity that pays, compensates, or contracts with, the internet website resource service provider to construct, license, distribute, or maintain an internet website for the purpose of providing equally effective communication or facilitating full and equal enjoyment of the person or entity’s goods and services to all members of the public, including any member of the public who is disabled.
(B) A plaintiff party who prevails under this paragraph shall be entitled to collect all damages, including, but not limited to, any statutory damages and attorney’s fees paid by the person or entity as a result of a lawsuit against the person or entity pursuant to Sections 51, 54, and 54.1, based upon the inaccessibility of the person or entity’s website, and all costs of bringing their internet website into compliance with the internet website-related accessibility standard.
(c) Notwithstanding subdivision (b), the Attorney General or a district attorney, county counsel, or city attorney may bring an action under this section to obtain the following:
(1) Injunctive or declaratory relief.
(2) Attorney’s fees and costs.
(d) A provision within a contract between a person or entity and an internet website a resource service provider that seeks to waive liability under this section is subject to subdivision (c) of Section 51.7.
(e) This section does not limit or alter the application of other laws, including, but not limited to, Sections 51, 54, and 54.1, or the ability of a plaintiff to bring a civil action under any other theory of the law, including, but not limited to, breach of contract, implied warranty of merchantability, or false or deceptive advertising.
(f) For purposes of this section, the following terms have the following meanings:
(1) “Entity” has the same meaning as provided in subdivision (e) of Section 55.565.
(2) “Internet website” has the same meaning as provided in subdivision (e) of Section 55.565.
(3) “Internet website-related accessibility standard” has the same meaning as provided in subdivision (e) of Section 55.565.
(4) “Resource service provider” means a person or entity that, in exchange for money or any other form of remuneration, constructs, licenses, distributes, or maintains for online use any internet website or resource to be used within or in conjunction with an internet website.

SEC. 4.

 Section 4469.5 of the Government Code is amended to read:

4469.5.
 (a) In addition to the information required by Section 4469, each city, county, or city and county that issues business licenses, building permits for additions, alterations, and structural repairs to commercial property, or building permits for new construction of commercial property, shall make readily available, and, upon submission to the city, county, or city and county of an application for a business license or building permit, shall provide to the applicant, an informational notice to the applicant containing all of the following:
(1) General information about the compliance requirements pursuant to the federal Americans with Disabilities Act of 1990 (42 U.S.C. Sec. 12101 et seq.) and the state’s disability access laws. Information about compliance with the state’s disability access laws shall include a statement that pursuant to Section 51 of the Civil Code, a business’ internet website is required to be accessible, and to provide equally effective communication and facilitate full and equal enjoyment of the entity’s goods and services, to the public, including any member of the public who is disabled.
(2) An advisory to the applicant for a building permit that strongly encourages the applicant to do all of the following:
(A) Obtain a consultation by a Certified Access Specialist (CASp) before alteration or construction in order for the property to be in compliance with disability access laws after the work is completed, so that the applicant can benefit from the advantages of compliance.
(B) Obtain an inspection by a Certified Access Specialist (CASp) after alteration or construction in order to benefit from the legal protections afforded business and property owners under the Construction-Related Accessibility Compliance Act (Part 2.52 (commencing with Section 55.51) of Division 1 of the Civil Code).
(C) Include warranty and indemnification clauses in contracts with companies that provide internet website accessibility resources and services and consider not working with individuals or organizations who are unwilling to warranty that their work meets all applicable accessibility standards and to indemnify the business for a judgment rendered against the business for violating website-related accessibility standards.
(3) An advisory to the applicant for a business license that strongly encourages the applicant to do all of the following:
(A) Obtain a consultation by a Certified Access Specialist (CASp) before engaging in business on the premises in order for the property to be in compliance with disability access laws, so that the applicant can benefit from the advantages of compliance.
(B) Obtain an inspection by a Certified Access Specialist (CASp) after beginning to engage in business on the premises in order to benefit from the legal protections afforded business and property owners under the Construction-Related Accessibility Compliance Act (Part 2.52 (commencing with Section 55.51) of Division 1 of the Civil Code).
(C) Include warranty and indemnification clauses in contracts with web consultants and consider not working with individuals or organizations that are unwilling to agree to warranty that their work meets all applicable accessibility standards and to indemnify the business for a judgment rendered against the business for violating website-related accessibility standards.
(4) Information about how to locate CASp inspectors, including a link to the internet website of the State Architect where CASp inspectors are listed, pursuant to Section 4459.8, by geographic area in which they provide or intend to provide services and information about how to obtain CASp services.
(5) A notice of the federal and state programs that are available to assist small businesses with disability compliance and access expenditures, including, but not limited to, Section 44 of the Internal Revenue Code (disabled access credit for eligible small businesses); Section 190 of the Internal Revenue Code (deduction for expenditures to remove architectural and transportation barriers); the California Capital Access Program Americans with Disabilities Act Financing Program (CalCAP/ADA); and the Disabled Access Credit for Eligible Small Businesses specified in Sections 17053.42 and 23642 of the Revenue and Taxation Code.
(6) A link to the home page and the resource page of the California Commission on Disability Access.
(b) The informational notice specified in subdivision (a) shall be translated and made available in all of the languages specified in paragraph (3) of subdivision (a) of Section 1632 of the Civil Code and shall be provided to the applicant in whichever format the building permit or business license application is required to be submitted and shall also be made available in alternative formats upon request.
(c) For purposes of this section, the term “commercial property” means property that is operating, or is intended to be operated, as a “place of public accommodation” as defined in Section 202 of Title 24 of the California Code of Regulations, or as a facility to which the general public is invited at those premises.
(d) (1) The Division of the State Architect shall develop a model notice that local agencies can use to comply with the requirements of this section.
(2) The Division of the State Architect shall post the model notice on the publicly available portion of the division’s internet website.

SEC. 5.

 Section 14985.6 of the Government Code is amended to read:

14985.6.
 (a) A priority of the commission shall be the development and dissemination of educational materials and information to promote and facilitate disability access compliance.
(b) The commission shall work with other state agencies, including the Division of the State Architect and the Department of Rehabilitation, to develop educational materials and information for use by businesses to understand their obligations to provide disability access and to facilitate compliance with construction-related accessibility standards, including, but not limited to, accessibility standards for internet websites.
(c) (1) The commission shall develop and make available on its internet website, or make available on its internet website if developed by another governmental agency, including Americans with Disabilities Act centers, toolkits or educational modules to assist a California business to understand its obligations under the law and to facilitate compliance with respect to the top 10 alleged construction-related violations, by type, as specified in subdivision (a) of Section 14985.8.
(2) (A) Upon completion of this requirement, the commission shall develop and make available on its internet website, or work with another agency to develop, other toolkits or educational modules that would educate businesses of the accessibility requirements, including, but not limited to, accessibility standards for internet websites, and to facilitate compliance with those requirements.
(B) On or before January 1, 2024, the commission shall develop toolkits or educational modules that focus on construction-related accessibility violations in parking lots and exterior paths of travel, including a checklist for businesses to recognize the most common construction-related accessibility violations in those areas.
(C) The Legislature finds and declares, based upon reports of the commission, that construction-related accessibility violations in parking lots and in exterior paths of travel are consistently in the top 10 alleged construction-related accessibility violations, by type, as specified in subdivision (a) of Section 14985.8.
(d) The commission shall post the following on its internet website:
(1) Educational materials and information that will assist building owners, tenants, building officials, and building inspectors to understand the disability accessibility requirements and to facilitate compliance with disability access laws. The commission shall at least annually review the educational materials and information on disability access requirements and compliance available on the internet websites of other local, state, or federal agencies, including Americans with Disabilities Act centers, to augment the educational materials and information developed by the commission.
(2) A link to the internet website of the Division of the State Architect’s certified access specialist (CASp) program to assist building owners and tenants in locating or hiring a CASp.
(e) The commission shall, to the extent feasible, coordinate with other state agencies and local building departments to ensure that information provided to the public on disability access requirements is uniform and complete, and make its educational materials and information available to those agencies and departments.
(f) The commission shall, at a frequency determined by the commission, review the standards established pursuant to paragraph (1) of subdivision (c) described in paragraph (3) of subdivision (e) of Section 55.565 of the Civil Code to determine whether they are the most up-to-date standards for effective communication by means of an internet website and, within 30 days of determining that the standards are not up to date and should be revised, notify the Speaker of the Assembly and President pro Tempore of the Senate and the Chairs of the Assembly and Senate Committees on Judiciary, of its determination.

SEC. 6.

 If the Commission on State Mandates determines that this act contains costs mandated by the state, reimbursement to local agencies and school districts for those costs shall be made pursuant to Part 7 (commencing with Section 17500) of Division 4 of Title 2 of the Government Code.