Originally assigned to APPROP                                                                           AS PASSED BY THE HOUSE

Now JUD-related

 

 

 

 

ARIZONA STATE SENATE

Fifty-Third Legislature, First Regular Session

 

AMENDED

FACT SHEET FOR S.B. 1406

 

contributions; committed youth; repeal; committee

(NOW: public accommodations; exemptions; enforcement; sanctions)

 

 

            As passed by the Senate, S.B. 1406 established a juvenile corrections and justice reform study committee to assess and report on the current state of juvenile justice and potential cost saving measures.

 

Purpose

 

Modifies the litigation processes for alleged violations covered under the Arizona Americans with Disability Act (Arizona ADA).

 

Background

 

The Americans with Disability Act (ADA) was signed into law on July 26, 1990, and was later amended with the ADA Amendments Act of 2008 (42 U.S.C. 12101 et seq). The ADA prohibits discrimination and ensures people with disabilities have the same opportunity to participate in employment opportunities, purchase goods and services and participate in government programs and services.  According to the United States Department of Justice (Department) the United States Attorney General is responsible for publishing regulations for state and local government services in Title II and public accommodations and commercial facilities in Title III of the ADA. 

 

Laws 1992, Chapter 224, Section 4 established the Arizona ADA and became effective January 27, 1994. The Arizona ADA as defined by statute means the 42 United States Code sections 12101 through 12213 and 47 United States Code sections 225 and 611 and the ADA Amendments Act of 2008 (A.R.S. § 41-1492).  

 

All buildings and facilities used by public entities and are leased or constructed with public monies are required to comply with the ADA (A.R.S. § 41-1492.01).  In addition, statute prohibits discrimination against an individual on the basis of their disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages or accommodations of any place of public accommodation by person who owns, leases, leases to others or operates a place of public accommodation (A.R.S. § 41-1492.02).  Building codes for new construction and alterations of buildings must reflect the standards, specifications and requirements outlined in law (A.R.S. §§ 41-1492.03, 41-1492.04).  Discrimination against an individual in the use of public transportation provided by a private entity is prohibited (A.R.S. § 41-1492.05).  A person who believes that a covered person or entity has engaged in or will engage in an illegal act or practice as outlined above or that a covered entity has not performed an act required by the Arizona ADA may file a civil action for preventative or mandatory relief (A.R.S. § 41-1492.08).

 

The Arizona Attorney General (AG) is required to investigate all alleged violations to the Arizona ADA within 180 days of the occurrence or termination of the alleged discriminatory practice.  The allegations must be in writing, under oath and provided in the form required by the AG.  If the AG determines that a violation occurred, the AG will attempt to reach a conciliation agreement within 30 days. The AG is required to file a civil action if an agreement is not reached.  The complaint is dismissed if the AG determines no reasonable cause exists to believe that a violation occurred (A.R.S. § 41-1492.09). 

 

Civil actions brought by the AG allow the court to grant any equitable relief that the court considers to be appropriate, including: 1) granting temporary, preliminary or permanent relief; 2) providing an auxiliary aid or service, a modification of a policy, practice or procedure or an alternative method; and 3) making facilities readily accessible to and usable by individuals with disabilities.  The court may award monetary damages to an aggrieved person of no more than $5,000 for a first violation and $10,000 for any subsequent violation. The court shall consider any good faith effort or attempt to comply in determining the appropriate civil penalty (A.R.S. § 41-1492.09). 

 

            There is no anticipated fiscal impact to the state General Fund associated with this legislation.

 

Provisions

 

1.      Specifies that only an aggrieved person who is subjected to discrimination for a violation under the Arizona ADA may pursue civil action relief.

 

2.      Exempts websites from the Arizona ADA.

 

3.      Requires an aggrieved person or their attorney to submit a written notice prior to filing a civil action for an alleged violation for a building, facility or parking lot if operated by a private entity.

 

4.      Specifies a private entity is allowed 30 days to comply with the Arizona ADA, unless a building permit is required. 

 

5.      Specifies if a building permit is required to resolve the violation the private entity must provide the aggrieved person or their attorney a corrective action plan and submit an application for a building permit within 30 days.

 

6.      Allows an additional 60 days for a private entity to resolve a violation and specifies the time is tolled from the time after submitting an application until a final determination is provided and is not included in the calculation unless the delay is caused by the private entity.

 

7.      Stipulates during the additional 60 days the private entity must comply with requirements outlined for new construction and alterations under Arizona ADA.

 

8.      Requires an aggrieved person filing a civil action to submit an affidavit, under penalty of perjury, that the person has read the entire complaint, agrees with all of the allegations and has not been promised anything of value in exchange for filing a civil action, unless authorized by statute or rule.

 

9.      Prohibits a demand for money prior to the completion of the notice period, but allows the aggrieved person or their attorney to state the private entity may be civilly liable for a violation.

 

10.  Allows the court to stay an action filed pursuant to the Arizona ADA to determine if:

a)      the aggrieved person or attorney is a vexatious litigant; or

b)      there are multiple civil actions that involve the same plaintiff or attorney that should be consolidated.

 

11.  Allows a court to impose additional sanctions on a plaintiff or the plaintiff's attorney if the court determines the primary purpose for bringing the action was to obtain payment from the defendant and may consider the totality of the abusive litigation practices.

 

12.  Stipulates the court may order part of the sanctions to be paid to the Governor's Office of Youth, Faith and Family (GOYFF).

 

13.  Requires GOYFF to use the money received from sanctions to educate covered persons or entities about their obligations under Arizona ADA and award attorney fees to claimants who resolve a meritorious complaint without litigation.

 

14.  Defines sufficient detail to include all of the following:

a)      the name of the aggrieved person who encountered the barrier;

b)      the date when the barrier was encountered by the aggrieved person; and

c)      a description of the barrier that was encountered by the aggrieved person.

 

15.  Makes technical and conforming changes.

 

16.  Includes a legislative finding and severability clause.

 

17.  Becomes effective on the general effective date.

 

Amendments Adopted by the House of Representatives

 

ˇ            Adopted a strike everything amendment related to litigation arising from an alleged Arizona ADA violation.

 

 

 

 

 

House Action

 

APPROP         3/29/17     DPA/SE     13-0-0-1

3rd Read          4/13/17                        38-22-0

 

Prepared by Senate Research

April 13, 2017

RH/rr