Important New Legislation (Back to Overview)

Reform of Disability Access Law (SB 1608): This is a bipartisan, bicameral comprehensive reform measure, authored by Senators Ellen Corbett (D-San Leandro), Tom Harman (R-Huntington Beach) and Ron Calderon (D-Montebello), and Assembly Members Cameron Smyth (R-Santa Clarita) and Lois Wolk (D-Davis).

The legislation is the culmination of a two-year collaborative effort involving countless hours of work, crafting reforms within an extremely complex body of law that appropriately balanced the interests of those impacted. The bill received unanimous support by both houses of the Legislature before being sent to the Governor.

Goals of Legislation

SB 1608 is designed to address two important goals:

1. promoting and increasing compliance with state and federal civil rights laws providing for equal access for individuals with disabilities in public accommodations; and
2. reducing unwarranted, unnecessary litigation that does not advance the goals of disability access.

Reform Provisions

SB 1608 arrives at a solution through a combination of the following key reform provisions:

1. Clarifications in the law to help reduce unwarranted damages and attorney' fees.
2. A new disability commission which will be tasked with evaluating and providing recommendations on further disability issues having an impact on the disability community and business.
3. Improved continuing education in disability access laws for building inspectors and architects.
4. Incentivizing building owners to use state-certified access specialists to ensure compliance.
5. A new court procedure to encourage early resolution of disability access lawsuits.

One of the important reforms in SB 1608 is a provision clarifying that plaintiffs may recover damages only for a violation they personally encountered or that deterred access on a particular occasion, rather than for alleged violations that may exist at a place of business but did not cause a denial of access.

In addition, SB 1608 clarifies that a court can consider reasonable written settlement offers made and rejected in determining the amount of reasonable attorneys fees to be awarded at the end of a case, which is aimed at reducing unnecessary protraction of litigation by either party.

Addresses Long-Term Problem

The California Hote & Lodging Association, the California Chamber of Commerce, and many other business organizations have worked diligently for a number of years toward reform of the disability access laws because of the significant, ongoing state harm inflicted upon businesses by a small but widely destructive, atypical group of plaintiffs and lawyers using the disability laws and court system to seek monetary profits rather than access. Too many California businesses have closed their doors for good.

Businesses have both a vested interest and responsibility to comply with disability access laws. At the same time, California's laws should facilitate and acknowledge the efforts of businesses that desire to comply and take steps accordingly. We believe SB 1608 strikes a fair and reasonable balance. SB 1608 is an important benchmark for the state, not only as an advancement of disability access with less litigation, but also as a meaningful collaborative and bipartisan reform

This analysis was prepared by the California Chamber of Commerce.

Nutritional Labeling Information (SB 1420): The new law could apply to many franchised lodging properties. Attached is a copy of the bill the governor signed that requires specified chains and franchised food facilities (including hotels) to provide nutritional information starting 7/1/09.

Concerns about obesity and all of the serious health problems associated with it have made people aware of the need to “watch what they eat,” both in terms of quantity and quality. This has led to a growing movement to insist that restaurants and other food service establishments provide nutritional information, much as one finds on most food products in grocery stores, because it is felt that this information would allow customers to make more informed decisions about the food they purchase.

Some local jurisdictions (e.g., New York City and Kings County, WA) have already adopted nutritional information laws. When Governor Schwarzenegger signed Senate Bill 1420 (Padilla) on September 30, 2008, California became the first state to mandate that restaurants and other food service establishments provide nutritional information. While many in the hospitality industry feel that there is no need for government to enact mandates in this area, it became clear during the current legislative session that a bill dealing with this issue was likely to pass. Consequently, the industry negotiated with the author to craft legislation that achieves important public health goals while limiting the scope of the bill and providing affected food facilities with flexibility and compliance options. Importantly, SB 1420 prohibits local governmental entities from enacting their own nutritional labeling ordinances.

SB 1420 does not cover only “chain” or “franchise” restaurants; it can also apply to many hotels, depending on how they conduct their food service operations. This article discusses which hotels might fall under this new law and, if so, what they must do to comply with it.

1. Who Is Covered by SB 1420?

SB 1420 applies to “food facilities,” which are defined as follows:

"Food facility" means a food facility in the state that operates under common ownership or control with at least 19 other food facilities with the same name in the state that offer for sale substantially the same menu items, or operates as a franchised outlet of a parent company with at least 19 other franchised outlets with the same name in the state that offer for sale substantially the same menu items…. (Emphasis added.)

As far as the lodging industry is concerned, SB 1420 expressly exempts from the definition of food facilities bed and breakfast inns with 20 rooms or less, agricultural homestay facilities that have no more than six guest rooms and do not accommodate more than 15 guests, and vending machines. It is unlikely that any bed and breakfast inns or agricultural homestay properties will meet the 20-or-more threshold, regardless of how many rooms or guests they have.

Most full-service hotels probably will not meet the definition of food facility for purposes of SB 1420, because even if there are 20 or more of them with the same name in California, it is unlikely that they would all “offer for sale substantially the same menu items.” However, full-service hotels that meet the 20-or-more threshold need to analyze their food service operations to determine whether or not 20 or more of them offer substantially similar menu items. If that is the case, they will need to comply with this new law, as described below.

It is quite possible, however, that many limited-service properties will fall within the definition of food facility for purposes of SB 1420. Obviously, many limited-service lodging establishments (either franchised or under common ownership and control) will meet the 20-or-more threshold and also “offer for sale substantially the same menu items.” Note: It could be argued that the breakfasts (and perhaps evening hors d’oeuvres) provided by many hotels are “complimentary, and that they are therefore not “offered for sale.” But the fact of the matter is that the food is included in the price of the room, and this means that it is quite probable that it will be deemed that a “sale” has taken place. For example, it is clear that sales tax applies to complimentary F&B provided by hotels when it is included in the price of the room (unless the fair retail value of the F&B is not more than 10% of the property’s ADR), and lodging establishments that serve alcoholic beverages that are included in the price of the room are deemed to be “selling” the beverages and therefore must have a liquor license.

If you conclude from the foregoing that your establishment is not required to comply with the disclosure requirements of SB 1420, either because there are not 20 or more properties with your same name, and/or they do not offer for sale “substantially similar menu items,” you can stop reading at this point! But even if your property is not covered by this new law, you might want to consider providing nutritional information on a voluntary basis; in that case, the information below will be helpful.

2. What If My Property Is a Food Facility As Defined in SB 1420?

Even though your lodging establishment qualifies as a food facility under SB 1420, this does not necessarily mean that you will have to do anything. The requirement to provide nutritional information applies only to “standard menu items” which the facility offers for sale. SB 1420 defines this important term as follows:

"Standard menu item" means a food or beverage item offered for sale by a food facility through a menu, menu board, or display tag at least 180 days per calendar year, except that "standard menu item does not include any of the following:

• A food item that is customized on a case-by-case basis in response to an unsolicited customer request.
• An alcoholic beverage, the labeling of which is not regulated by the federal Food and Drug Administration.
• A packaged food otherwise subject to the nutrition labeling requirements of the federal Nutrition Labeling and Education Act of 1990.
• A food item when served at a consumer self-service salad bar.
• A food or beverage item when served at a consumer self-service buffet. (Emphasis added.)

Although there are some ambiguities in SB 1420 on this point, it appears that only those food facilities that offer standard menu items for sale will be obligated to provide nutritional information, and even then, only if certain other conditions are met.

3. What Must I Do If I Am Required to Comply with SB 1420?

IF your hotel is a food facility that offers standard menu items for sale, as described above, you need to disclose specified information as discussed below. For these purposes, SB 1420 defines “nutritional information” and “calorie content information” as follows:

"Nutritional information" includes, but is not limited to, all of the following, per standard menu item, as that item is usually prepared and offered for sale:

(A) Total number of calories.

(B) Total number of grams of carbohydrates.

(C) Total number of grams of saturated fat.

(D) Total number of milligrams of sodium.

"Calorie content information" means the total number of calories per standard menu item, as that item is usually prepared and offered for sale.

 

Commencing July 1, 2009, to December 31, 2010, inclusive, you must disclose nutritional information (which includes the total number of calories) either as set forth in this paragraph 3.A or as set forth in paragraph 3.B, below.

• If you do not provide sit-down service, you must “disclose the information in a clear and conspicuous manner on a brochure that is made available at the point of sale prior to or during the placement of an order. ("Point of sale" means the location where a customer makes an order.) Note that each brochure must include the statement: "Recommended limits for a 2,000 calorie daily diet are 20 grams of saturated fat and 2,300 milligrams of sodium."

• If you provide sit-down service, you must “provide the nutritional information in a clear and conspicuous size and typeface on at least one of the following:
  • A brochure available on the table.
  • A menu next to each standard menu item.
  • A menu, under an index section that is separate from the listing of standard menu items.
  • A menu insert.
  • A table tent on the table.

• There are specific rules for food facilities which have a drive-through area. ("Drive-through" means an area where a customer may provide an order for and receive standard menu items while occupying a motor vehicle.)

On and after January 1, 2011, the following requirements apply:

• If you provide a menu, you must disclose the calorie content information for a standard menu item next to the item on the menu in a size and typeface that is clear and conspicuous.
• If you use an indoor menu board, you must disclose calorie content information for a standard menu item next to the item on the menu board in a size and typeface that is clear and conspicuous.
• If you use a display tag as an alternative to a menu or menu board to describe a standard menu item that is displayed for sale in a display case within your facility, you must disclose calorie content information for that standard menu item on the display tag for that item in a size and typeface that is clear and conspicuous.
• There are specific requirements for food facilities that have a drive-through area.

Notes:(1) As described above, in some cases SB 1420 specifies that a food facility must display “nutritional information,” while in other cases it specifies that “calorie content information” must be displayed. SB 1420 requires that covered food facilities disclose the specified nutritional information from July 1, 2009, through December 31, 2010, and that starting January 1, 2011, they only have to provide calorie content information—but not the other nutritional information. (2) Apparently, covered food facilities can use brochures, menu inserts, and table tents only through December 31, 2010, and after thereafter they have to use the appropriate mechanism listed in paragraph 3.B, above.

4. How Do I Determine My Nutritional and Calorie Content Information?

 

• As noted above, on and after January 1, 2011, covered food facilities must disclose calorie content information. SB 1420 provides the following guidance on how to comply with this requirement:

 

• The disclosure of calorie content information on a menu or menu board next to a standard menu item that is a combination of at least two standard menu items on the menu or menu board, shall, based upon all possible combinations for that standard menu item, include both the minimum amount of calories for the calorie count information and the maximum amount of calories for the calorie count information. If there is only one possible total amount of calories, then this total shall be disclosed.
• The disclosure of calorie content information on a menu or menu board next to a standard menu item that is not an appetizer or dessert, but is intended to serve more than one individual, shall include both of the following:
  • The number of individuals intended to be served by the standard menu item.
  • The calorie content information per individual serving. If the standard menu item is a combination of at least two standard menu items, this disclosure shall, based upon all possible combinations for that standard menu item, include both the minimum amount of calories for the calorie count information and the maximum amount of calories. If there is only one possible total amount of calories, then this total shall be disclosed.
• The nutritional information and calorie content information required by this section shall be determined on a reasonable basis. ("Reasonable basis" means any reasonable means recognized by the federal Food and Drug Administration of determining nutritional information, as well as calorie content information, for a standard menu item, as usually prepared and offered for sale, including, but not limited to, nutrient databases and laboratory analyses.) A reasonable basis determination of nutritional information and calorie content information shall be required only once per standard menu item, provided that portion size is reasonably consistent and the food facility follows a standardized recipe and trains to a consistent method of preparation.

 

• Note that SB 1420 states that it “shall not be construed to preclude any food facility from voluntarily providing nutritional information in addition to the requirements of this section.”

5. What Liability Might I Have Under SB 1420?

SB 1420 provides the following:

• Menus and menu boards may include a disclaimer that indicates that there may be variations in nutritional content across servings, based on variations in overall size and quantities of ingredients, and based on special ordering.
• [SB 1420] shall not be construed to create or enhance any claim, right of action, or civil liability that did not previously exist under state law or limit any claim, right of action, or civil liability that otherwise exists under state law. The only enforcement mechanism of [this bill] is the local enforcement agency.
• Commencing July 1, 2009, a food facility that violates this section is guilty of an infraction, punishable by a fine of not less than fifty dollars ($50) or more than five hundred dollars ($500), which may be assessed by a local enforcement agency. However, a food facility may not be found to violate this section more than once during an inspection visit. Notwithstanding [Health and Safety Code] Section 114395, a violation of this section is not a misdemeanor.

6. Can Local Government Enact Nutritional Information Ordinances?

No. SB 1420 provides:

To the extent consistent with federal law, [SB 1420], as well as any other state law that regulates the disclosure of nutritional information, is a matter of statewide concern and occupies the whole field of regulation regarding the disclosure of nutritional information by a food facility. No ordinance or regulation of a local government shall regulate the dissemination of nutritional information by a food facility. Any ordinance or regulation that violates this prohibition is void and shall have no force or effect.

Obviously, a great many franchised restaurant and lodging properties will fall into that definition. If a property is covered, it needs to provide the specified nutritional information (see the definition in the bill).

Important Safety Requirement

HOTELS REQUIRED TO HAVE ANTI-ENTRAPMENT POOL/SPA DRAINS

There is an annual average of 283 drowning deaths (2003-2005) and 2,700 emergency room-treated submersion injuries (2005-2007) involving children younger than 5 in pools and spas. In addition, from 1997-2007, there were 74 reported incidents associated with suction entrapment, including 9 deaths and 63 injuries.

On December 19, 2007, the President signed into law the Virginia Graeme Baker Pool and Spa Safety Act, named after the daughter of Nancy Baker and the granddaughter of former Secretary of State James Baker. Graeme Baker died in a tragic incident in June 2002 after the suction from a spa drain entrapped her under the water. The new law is aimed at reducing these deaths and injuries by making pools safer, securing the environment around them, and educating consumers and industry on pool safety.

The Act specifies that on or after December 19, 2008, swimming pool and spa drain covers available for purchase in the United States must meet specific performance requirements. Virtually all swimming pools, wading pools, spas, and hot tubs at hotels and other transient lodging establishments are covered by this law and must meet the requirements for installation of compliant drain covers by 12/19/08

New drain covers which meet the current standard are now beginning to make their way into the marketplace. Additionally, in certain instances, public pools and spas must have additional devices or systems designed to prevent suction entrapment.

On June 18, 2008, U.S. Consumer Product Safety Commission (CPSC) staff a guidance document that spells out the technical requirements of Section 1404 of the Act, along with CPSC staff's answers to certain enforcement and legal issues. This document takes into account comments provided by state government officials, pool industry representatives, safety equipment manufacturers and representatives, consumer safety organizations, and others. CPSC staff urges all public pool and spa owners/operators, state and local health and safety officials, and those in the pool and spa industry to carefully review this document as they work toward complying with Section 1404 of the Act prior to December 19, 2008. The CPSC guidance document is available at http://www.cpsc.gov/phth/vgpsa.pdf Contact CPSC at info@cpsc.gov or 301.504.7908 if you need further assistance.

Important Note: CH&LA is informed that, where suction vacuum release systems (SVRS) are required under the federal statute, older versions of SVRS manufactured by Stingl and VacAlert (two of the major suppliers in this market) meet the standard referenced in the statute. For pools/spas that are required to have SVRS but currently lack them (typically single drain/pump pools, but also some dual drain pools that are not plumbed correctly) the cost is about $1,000-1,200 per device installed. But, the standard specified in the Act for the anti-entrapment drains themselves (i.e., the 2007 version of ASME/ANSI A112.19.8) is substantially different from the 1987 version of the standard. This means that "anti-vortex" drain covers meeting the earlier edition of the standard will not meet the new requirements. Consequently, virtually every pool/spa drain in hotels/inns in the U.S. will need to be replaced. While round drain covers and 9" x 9" square sizes have been manufactured, tested, and certified, larger sizes - typically 12" x 12" and 18" x 18" - have not and are not expected to be approved until early December 2008. ("Seasonal pools" closed before 12/19/08 do not have to comply until they are re-opened.) CH&LA and the American Hotel & Lodging Association are seeking to obtain a one-year delay in the effective date; however, it is unlikely that this will occur prior to December 19, and lodging operators must plan on complying by that date.

The Virginia Graeme Baker Pool and Spa Safety Act states that the requirements of Section 1404(b) shall be treated as a consumer product safety rule under the Consumer Product Safety Act. Under Section 19 of the Consumer Product Safety Act, it is unlawful for any person to manufacture for sale, offer for sale, distribute in commerce or import into the United States any consumer product that is not in conformity with an applicable consumer product safety rule. (15 U.S.C. § 2068(a).) Accordingly, on or after December 19, 2008, it will be unlawful to manufacture for sale, offer for sale, distribute or import into the United States a drain cover that does not meet the entrapment protection standards of the ASME/ASNI A112.19.8 performance standard or any successor standard or be in violation of a consumer product safety rule. Any person who knowingly commits a prohibited act under Section 19 of the Consumer Product Safety Act is subject to a civil penalty under Section 20 of the Consumer Product Safety Act. (15 U.S.C. §2069(a)(1).) Under current law, the maximum penalty for one or more related violations is $1.825 million. Congress is considering legislation that would increase this penalty to $10 million or higher. A willful violation of the drain cover standard could result in criminal penalties, including fines or imprisonment, under Section 21 of the Consumer Product Safety Act. (15 U.S.C. § 2070(a).)

The Act also addresses enforcement of Section 1404(c)(1), which identifies certain required equipment for public pools (including those in hotels and other lodging establishments). Specifically, Section 1404(c)(3) of the Act states that any violation of the required equipment provisions is to be considered a violation of Section 19(a)(1) of the Consumer Product Safety Act. As explained above, any violation of Section 19(a)(1) may result in the imposition of civil or criminal penalties under Sections 20 or 21 of the Consumer Product Safety Act. This means that swimming pools, wading pools, spas, and hot tubs in the lodging industry must comply, or the operators can face the financial and criminal penalties described above!

All lodging operators who have not already done so such immediately check with their engineering/maintenance personnel and/or qualified pool/spa professionals.