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SB-1486 Accessibility: internet websites.(2023-2024)

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Date Published: 03/20/2024 09:00 PM
SB1486:v98#DOCUMENT

Amended  IN  Senate  March 20, 2024

CALIFORNIA LEGISLATURE— 2023–2024 REGULAR SESSION

Senate Bill
No. 1486

Introduced by Senator Dahle

February 16, 2024

An act to amend Section 669 of the Civil Code, relating to property. 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 Section 2 of Chapter 842 of the Statutes of 2023, relating to accessibility.


LEGISLATIVE COUNSEL'S DIGEST


SB 1486, as amended, Dahle. Property ownership. Accessibility: internet websites.
Existing law imposes liability upon a person who denies, aids or incites a denial of, 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.
This bill would provide 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 make statutory damages for internet website inaccessibility contingent on the plaintiff proving that they had one of 2 sets of experiences. Specifically, the plaintiff may prove that they personally encountered a specific barrier that caused a difference in the plaintiff’s access to or use of the internet website as compared to other users, as specified. Alternatively, the plaintiff may prove that they were deterred from accessing all or part of the internet website, as specified, because of the internet 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. Under the bill, an entity’s internet website would be presumed to comply with the above-described accessibility requirements, as specified, if the internet website has a certain certification by a professional reviewer, as defined, that, among other things, the internet website is designed and intended to conform to the internet website-related accessibility standard, as defined.
This bill would make it unlawful for a resource service provider, as defined, in exchange for remuneration, to intentionally, negligently, recklessly, or knowingly construct, license, distribute, or maintain for online use an internet website that fails to provide equally effective communication or fails to 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 a person with a disability. The bill would also make it unlawful for a resource provider to intentionally, negligently, knowingly, or recklessly make certain false representations, including that the resource provider is a professional reviewer or otherwise qualified to assess the accessibility of an internet website. The bill would authorize a civil action, with specified remedies, by a person or entity that pays, compensates, or contracts with a resource service provider to construct, license, distribute, or maintain an internet website that complies with the above-described accessibility requirements, as specified. The bill would also authorize the Attorney General, the Civil Rights Department, 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 a resource service provider that seeks to waive liability under these provisions, or otherwise shift liability to a person or entity that pays, compensates, or contracts with the resource provider, as provided, is void as a matter of public policy and subject to specified provisions of the Ralph Civil Rights Act of 1976 relating to waiver of rights.
Existing law enacts specified provisions requiring an attorney, with each demand letter or complaint alleging an internet website-related disability claim, to provide the defendant with a copy of a written advisory notice pertaining to disability access. Existing law makes those provisions operative only if AB 1757 of the 2023–24 Regular Session is enacted and goes into effect on or before January 1, 2025.
This bill would instead make those provisions operative on January 1, 2025.

Existing law provides that all property has an owner, whether that owner is the state, and the property is public, or the owner is an individual, and the property is private.

This bill would make nonsubstantive changes to those provisions.

Vote: MAJORITY   Appropriation: NO   Fiscal Committee: NOYES   Local Program: NO  

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 ATTORNEY’S FEES AND STATUTORY DAMAGES IN CONSTRUCTION-RELATED 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 a person with a disability.
(b) To be entitled to statutory damages for internet website inaccessibility, a plaintiff shall prove one of the following:
(1) That the plaintiff personally encountered a specific barrier that caused the plaintiff to experience a difference in the plaintiff’s ability to access or use the internet 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 persons with a disability.
(2) That the plaintiff was deterred from accessing all or part of the internet website or the content of the internet website because of the internet 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 entity’s internet website is presumed to provide equally effective communication and to facilitate full and equal enjoyment of the entity’s goods and services to all members of the public for the purpose of determining whether an award of statutory damages is warranted under subdivision (a) of Section 52 or 54.3 if both of the following criteria are satisfied:
(A) The internet website has a certification by a professional reviewer that all of the following are true:
(i) The internet website is designed and intended to conform to the internet website-related accessibility standard.
(ii) The internet website has been tested, in both an automated manner and a manual manner by qualified users, and has been determined to conform to the internet website-related accessibility standard.
(iii) All third-party content that is available on the entity’s internet website by means of a link from the internet website and that allows members of the public to access, view, utilize, conduct transactions with respect to, or in any other way interact with, the entity or the entity’s goods, services, or presentations, has been tested, in both an automated and manual manner, and has been determined to conform to the internet website-related accessibility standard.
(B) The certification described in subparagraph (A) meets all of the following requirements:
(i) The certification is made within the prior 12 months or after revisions to the internet website that impact accessibility, whichever is more recent, and is based on a review that includes testing by qualified users.
(ii) The certification is posted, or available by means of a clearly marked link, on the home page of the entity’s internet website.
(iii) The certification includes a statement from the professional reviewer explaining how that person qualifies to be a professional reviewer. If the professional reviewer is not a Certified Professional in Web Accessibility (CPWA) with a certificate issued by the International Association of Accessibility Professionals (IAAP), the professional reviewer shall list the type of certification that person has obtained from another source of professional training for front-end internet website developers, as well as the criteria for issuance of that certificate, in order to demonstrate that the criteria are equivalent to, or higher than, the requirements for the issuance of a CPWA certificate.
(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 criteria set forth in paragraph (1) are satisfied and that the entity’s internet website is therefore presumed to provide equally effective communication and to facilitate full and equal enjoyment of the entity’s goods and services to all members of the public, the plaintiff may rebut the presumption with clear and convincing evidence, showing that, notwithstanding the presumption set forth in paragraph (1), the elements of one of the violations set forth in subdivision (b) are established.
(3) A defendant who qualifies for the presumption set forth in paragraph (1) is entitled to seek a court stay and early evaluation conference, as described in Section 55.54.
(4) The Judicial Council may adopt a form, or modify its existing forms, to implement this section. Before the Judicial Council promulgates a modified form, an entity covered by this part and served with an action regarding an internet website may use or adapt the existing form implementing Section 55.54.
(d) This section does not do any of the following:
(1) Limit the rights and remedies available to persons with a disability 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 persons with a disability 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 internet 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.
(4) Establish a presumption of liability, affect the burden of proof, or otherwise impact a court’s determination of liability if the presumption established in paragraph (1) of subdivision (c) does not apply or if a plaintiff does not seek statutory damages.
(5) (A) Subject to subparagraph (B), require an entity to conform to the internet website-related accessibility standard or impose liability upon the entity for the inaccessibility of an internet website or resource that is accessed by any links that navigate the user from the entity’s internet website to a third-party internet website.
(B) An entity shall comply with both of the following:
(i) An entity shall not unduly rely on links to third-party resources as a means of evading its responsibility to provide an internet website that provides equally effective communication and facilitates 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 a person with a disability.
(ii) If a user is required, in order to access, view, utilize, conduct transactions with respect to, or in any other way interact with the business of the entity or the entity’s goods, services, or presentations via the internet, to utilize a link to third-party content, the entity shall ensure that the third-party content complies with the internet website-related accessibility standard.
(6) Demonstrate an intent by the Legislature, in enacting this section, to deprive or limit the exercise of jurisdiction by federal courts over state law claims brought in conjunction with any federal claim under the Americans with Disabilities Act of 1990 (42 U.S.C. Sec. 12101 et seq.) or other federal law.
(e) For purposes of this section:
(1) “Conform” means that the entity’s internet website, taking into account the variety of conforming implementations, meets the criteria specified by the applicable internet website-related accessibility standard. For purposes of 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, an entity conforms to that standard if the entity’s internet website meets all of the success criteria set forth in the standard, except if conformance to the standard is either not necessary or not possible due to the nature of the data sought to be presented on the internet website, and any instance of nonconformance does not impact the ability of a person with a disability to acquire information, engage in interactions, and enjoy the services of the entity’s internet website with an ease of use and level of privacy that is substantially equivalent to the experience of other users who are not persons with a disability.
(2) “Entity” means a business establishment that is open to the public, a public place, or a place of public accommodation or any other business or place that is subject to the provisions of Section 51, 54, or 54.1.
(3) “Internet website” includes all internet web-based technology, including, but not limited to, a mobile site or application, that can be accessed by a mobile device or other electronic device.
(4) “Internet website-related accessibility standard” means the WCAG 2.1 Level AA standard for the accessibility of internet websites established by the 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 (commencing with Section 1194.1) of Title 36 of the Code of Federal Regulations. To the extent that there is a difference or conflict between the applicable standards for internet websites under WCAG 2.1 Level AA and standards for information or communication technology under Section 508 of the federal Rehabilitation Act of 1973, the more recent WCAG 2.1 Level AA standard shall apply, unless a more stringent update, revision, or replacement to the accessibility standards for Section 508 of the federal Rehabilitation Act of 1973 (29 U.S.C. Sec. 794d) in Part 1194 (commencing with Section 1194.1) of Title 36 of the Code of Federal Regulations is adopted by any final rule of the federal United States Access Board after the date of the enactment of this section, in which case, that final rule shall apply to this section.
(5) “Professional reviewer” means an expert in internet website design and accessibility who has a professional certificate in internet website accessibility issued by the W3C, a certificate as a CPWA issued by the IAAP or a certification issued by another source of professional training for front-end internet website developers with criteria for issuance that are equivalent to, or higher than, the requirements for the issuance of a CPWA certificate.
(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, immediately following Section 55.565, to read:

55.566.
 (a) It is unlawful for a resource service provider, in exchange for money or any other form of remuneration, to do either of the following:
(1) Intentionally, negligently, recklessly, or knowingly construct, license, distribute, or maintain for online use an internet website that fails to provide equally effective communication or fails to 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 a person with a disability.
(2) Intentionally, negligently, knowingly, or recklessly make a false representation of any of the following:
(A) An internet website provides equally effective communication and facilitates 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 a person with a disability.
(B) An internet website qualifies for the certification described in subdivision (c) of Section 55.565.
(C) The resource provider is a professional reviewer or otherwise qualified to assess the accessibility of an internet website.
(b) The following parties may bring a civil action pursuant to subdivision (a):
(1) (A) A person or entity that pays, compensates, or contracts with, the 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 a person with a disability.
(B) A plaintiff 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 internet website, and all costs of bringing their internet website into conformance to the internet website-related accessibility standard.
(2) The Attorney General, the Civil Rights Department, or a district attorney, county counsel, or city attorney to obtain the following:
(A) Injunctive or declaratory relief.
(B) Attorney’s fees and costs.
(c) A provision within a contract between a person or entity and a resource service provider that seeks to waive liability under this section, or otherwise shift the liability to a person or entity that pays, compensates, or contracts with the resource service provider, as described under paragraph (1) of subdivision (b), is void as a matter of public policy and subject to subdivision (c) of Section 51.7.
(d) This section does not limit or alter the application of other laws, including, but not limited to, Sections 51, 54, 54.1, and 55, 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.
(e) (1) For purposes of this section, the following terms have the same meanings as defined in Section 55.565:
(A) “Conform.”
(B) “Entity.”
(C) “Internet website.”
(D) “Internet website-related accessibility standard.”
(E) “Professional reviewer.”
(2) (A) For purposes of this section, “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.
(B) “Resource service provider” does not mean either of the following:
(i) A person or entity that provides hosting or hardware support to an internet website, but does not design, construct, or control the internet website, or resource to be used within or in conjunction with an internet website, in any manner that affects the ability of the internet website or resource to provide equally effective communication and facilitates full and equal enjoyment of an entity’s goods and services to all members of the public, including any member of the public who is a person with a disability.
(ii) An individual who is hired by a resource service provider, but does not have a contract directly with the entity who owns the internet website, including a manual accessibility tester.
(f) This section does not do any of the following:
(1) Limit the rights and remedies available to a person with disabilities under the 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 persons with a disability 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 internet 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.
(4) Establish a presumption of liability, affect the burden of proof, or otherwise impact a court’s determination of liability if an internet website does not conform to the internet website-related accessibility standard.
(5) (A) Subject to subparagraph (B), require an entity to conform to the internet website-related accessibility standard or impose liability upon the entity for the inaccessibility of an internet website or resource that is accessed by any links that navigate the user from the entity’s internet website to a third-party internet website.
(B) An entity shall comply with both of the following:
(i) An entity shall not unduly rely on links to third-party resources as a means of evading its responsibility to provide an internet website that provides equally effective communication or facilitates 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 a person with a disability.
(ii) If a user is required, in order to access, view, utilize, conduct transactions with respect to, or in any other way interact with the business of the entity or the entity’s goods, services, or presentations via the internet, to utilize a link to third-party content, the entity shall ensure that the third-party content complies with the internet website-related accessibility standard.
(6) Demonstrate an intent by the Legislature, in enacting this section, to deprive or limit the exercise of jurisdiction by federal courts over state law claims brought in conjunction with any federal claim under the Americans with Disabilities Act of 1990 (42 U.S.C. Sec. 12101 et seq.) or other federal law.
(7) Establish liability under subdivision (a) if a resource service provider establishes that, after the date when the resource service provider constructed, licensed, distributed, or maintained for online use an internet website or resource to be used within, or in conjunction with, an internet website, or issued the certification described in subdivision (c) of Section 55.565, an entity other than the resource service provider, without the knowledge or permission of the resource service provider, altered the internet website or resource in a manner that directly resulted in the internet website or resource no longer providing equally effective communication and facilitating 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 a person with a disability.

SEC. 4.

 Section 2 of Chapter 842 of the Statutes of 2023 is amended to read:

SEC. Sec. 2.

 This act shall become operative only if Assembly Bill 1757 of the 2023–24 Regular Session is enacted and takes effect on or before on January 1, 2025.
SECTION 1.Section 669 of the Civil Code is amended to read:
669.

All property has an owner, whether that owner is the state, and the property is public, or the owner is an individual, and the property is private. The state may also hold property as a private proprietor.