Assigned to JUD                                                                                                      AS PASSED BY COMMITTEE

ARIZONA STATE SENATE

Fifty-Third Legislature, First Regular Session

AMENDED

FACT SHEET FOR S.B. 1198

public accommodations; service; civil actions

Purpose

Establishes a notice period for an aggrieved person seeking relief through civil action for an alleged violation of the Arizona Americans with Disability Act (Arizona ADA).

Background

            The Americans with Disability Act (ADA) was signed into law on July 26, 1990, and 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. 

            The Department issued a final rule on March 28, 2014, that allows civil penalties available under Title III enforced by the Civil Rights Division of the Department to receive a maximum civil penalty for a first violation from $55,000 to $75,000 or up to $150,000 for a subsequent violation for a violation occurring on or after April 28, 2014. 

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).

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). 

Statute provides that, in a noncriminal case, the presiding judge of the superior court or the judge’s designee may declare a pro se litigant a vexatious litigant if certain conditions are met. A vexatious litigant cannot file a new pleading, motion or other document without prior leave of the court. Vexatious conduct includes: 1) repeated filing of court actions solely or primarily to harass; 2) unreasonably expanding or delaying court proceedings; 3) initiating or defending court actions without substantial justification; 4) engaging in abuse of discovery or conduct in discovery that has resulted in sanctions; 5) engaging in a pattern of making unreasonable, repetitive and excessive requests for information; and 6) repeated filing of documents or requests for relief that have been the subject of previous rulings by the court in the same litigation (A.R.S. § 12-3201).

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

Provisions

1. Specifies an aggrieved person who believes a covered person or entity has either engaged in or is about to engage in a prohibited act or practice or has not complied with action required with the Arizona ADA may pursue civil action relief.

2. Requires an aggrieved person or his or her attorney to submit written notice describing the prohibited act or practice to the covered person or entity and allow the following time to comply with the law before filing a civil action under Arizona ADA:

a) 60 days if the estimated cost to cure the violation is less than $10,000; or

b) 90 days if the business has fewer than 15 employees.

3. 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 authorizes by statute or rule.

4. Prohibits a demand for money but allows the aggrieved person or attorney to state the covered person or entity may be civilly liable for a violation.

5. 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.

6. Stipulates that if the AG brings a civil action based on an investigation of alleged violations and the covered person or entity is a small business with 15 or fewer employees that the civil penalty for the first offense is $2,500.

7. Prohibits the court from awarding civil penalties and compensatory damages in civil actions filed pursuant the Arizona ADA.

8. Allows the award of attorney's fees to the prevailing party for any fees incurred after the applicable cure period.

9. Adds the definitions of aggrieved person and sufficient detail.

10. Includes a legislative intent clause.

11. Makes technical and conforming changes.

12. Becomes effective on January 1, 2018.

Amendments Adopted by Committee

1. Removes the requirement that an aggrieved person must 90 days after submitting a notice of the cost to resolve the violation is more than $10,000.

2. Adds definitions.

3. Adds a legislative intent clause.

Senate Action

JUD                 2/16/2017     DPA     4-3-1

Prepared by Senate Research

February 17, 2017

RH/rr