SB1198 - 531R

Be it enacted by the Legislature of the State of Arizona:

Section 1. Section 41-1492.08, Arizona Revised Statutes, is amended to read:

START_STATUTE41-1492.08. Enforcement; notice; affidavit; prohibited demand for money, compensatory damages and fines; definitions

A. Any aggrieved person who believes that any covered person or entity has engaged in, or that there are reasonable grounds to believe that any covered person or entity is about to engage in, any act or practice prohibited by sections 41‑1492.01, through 41‑1492.02, 41‑1492.03, 41‑1492.04 AND 41‑1492.05 or that any covered entity has not performed an act required by this article and its implementing rules may institute a civil action for preventive or mandatory relief, including an application for a permanent or temporary injunction, restraining order or other order.

B. In the case of a violation of sections 41‑1492.02 and 41‑1492.04 injunctive relief includes an order to alter facilities to make these facilities readily accessible to and usable by individuals with disabilities to the extent required by this article. If appropriate, injunctive relief also includes requiring the provision of an auxiliary aid or service, the modification of a policy or the provision of alternative methods, to the extent required by this article.

C. A An aggrieved person may file a civil action in superior court not later than two years after the occurrence or the termination of an alleged discriminatory public accommodation practice or the breach of a conciliation agreement entered into under this article, whichever occurs last, to obtain appropriate relief with respect to the discriminatory public accommodation practice or breach.

D. Nothing in this section requires a person with a disability to engage in a civil action.

E. Before filing a civil action pursuant to this section, an aggrieved person or the person's attorney shall provide written notice to the covered person or entity that includes sufficient detail to allow the covered person or entity to identify the prohibited act or practice or to comply with the law. If the covered person or entity does not cure the prohibited act or practice or comply with the law within the following length of time after receiving the notice, the aggrieved person may file the civil action:

1. Sixty days if the covered person or entity has more than fifteen employees.

2. Ninety days if the covered person or entity is a small business that has fifteen employees or fewer.

F. When filing a civil action pursuant to this section, an aggrieved person must file an affidavit, under penalty of perjury, that the aggrieved person has read the entire complaint and agrees with all of the allegations and facts contained in the complaint and, unless authorized by statute or rule that the aggrieved person is not receiving and has not been promised anything of value in exchange for filing the civil action.

G. An aggrieved person or the aggrieved person's attorney may not demand or collect money from the covered person or entity before THE END OF THE APPLICABLE TIME period PURSUANT TO SUBSECTION E OF THIS SECTION but may state that the covered person or entity may be civilly liable for a violation of this article.

H. On the motion of any party, the court may stay an action filed pursuant to this section to determine if the person filing the civil action or the person's attorney is a vexatious litigant or to determine if there are multiple civil actions that involve the same plaintiff or attorney and that should be consolidated.

I. The court may not award civil penalties and compensatory damages in a civil action commenced pursuant to this section. The court may award the prevailing party reasonable attorney fees for any fees incurred after the applicable cure period prescribed by subsection E of this section.

J. FOR THE PURPOSES OF THIS SECTION:

1. "AGGRIEVED PERSON" MEANS A PERSON WHO PATRONIZED OR ATTEMPTED TO PATRONIZE THE COVERED PERSON OR ENTITY, ENCOUNTERED A BARRIER TO THEIR ACCESS TO THE COVERED PERSON OR ENTITY AND EXPERIENCED A DENIAL OF ACCESS TO THE COVERED PERSON OR ENTITY BASED ON THE AGGRIEVED PERSON'S DISABILITY.

2. "SUFFICIENT DETAIL" INCLUDES 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.

Sec. 2. Section 41-1492.09, Arizona Revised Statutes, is amended to read:

START_STATUTE41-1492.09. Enforcement by the attorney general

A. The attorney general shall investigate all alleged violations of this article. These allegations must be filed within one hundred eighty days after the occurrence or the termination of the alleged discriminatory practice, shall be in writing under oath and shall be in such form as the attorney general requires. The attorney general shall undertake periodic reviews of compliance of covered entities under this article. If the attorney general concludes at any time after the filing of a complaint of alleged violation, or as a result of a periodic compliance review, that prompt judicial action is necessary to carry out the purpose of this article, the attorney general may file a civil action for appropriate temporary or preliminary relief pending final disposition of the complaint or compliance review. If, after investigation, the attorney general determines that reasonable cause exists to believe this article is being violated, the attorney general shall attempt for a period of not more than thirty days to effectuate a conciliation agreement. If no conciliation agreement has been reached after thirty days, the attorney general shall file a civil action in an appropriate court. If the attorney general determines that no reasonable cause exists to believe that a violation of this article has occurred or is about to occur, the attorney general shall promptly dismiss the complaint and give written notice of the dismissal to the complainant and the person or entity complained against. If the attorney general finds reasonable cause to believe that a party has breached a conciliation agreement, the attorney general shall file a civil action for enforcement of the agreement.

B. In any civil action under this article brought by the attorney general, the court:

1. May grant any equitable relief that the court considers to be appropriate, including, to the extent required by this title:

(a) Granting temporary, preliminary or permanent relief.

(b) Providing an auxiliary aid or service, a modification of a policy, practice or procedure or an alternative method.

2. May award such other relief as the court considers appropriate, including monetary damages to aggrieved persons. In this paragraph "monetary damages" and "such other relief" do not include punitive damages.

C. In an action brought by the attorney general, the court, to vindicate the public interest, may assess a civil penalty against the covered person or entity in an amount of not more than:

1. Five thousand dollars for a first violation, except that if the covered person or entity is a small business with fifteen or fewer employees, two thousand five hundred dollars for a first violation.

2. Ten thousand dollars for any subsequent violation.

D. For the purposes of subsection C of this section, in determining whether a first or subsequent violation has occurred, a determination in a single action, by judgment or settlement, that the covered person or entity has engaged in more than one discriminatory act shall be deemed a single violation.

E. In a civil action brought by the attorney general, when considering what amount of civil penalty, if any, is appropriate, the court shall give consideration to any good faith effort or attempt to comply with this article by the entity. In evaluating good faith, the court shall consider, among other factors it deems relevant, whether the entity could have reasonably anticipated the need for an appropriate type of auxiliary aid needed to accommodate the unique needs of a particular individual with a disability.

F. In any action or proceeding under this section, the court may allow the prevailing party, other than the attorney general, reasonable attorney fees as part of the costs.

G. If appropriate, and to the extent authorized by law, the use of alternative means of dispute resolution, including settlement negotiations, conciliation, facilitation, mediation, fact‑finding, mini‑trials and arbitration, is encouraged to resolve disputes arising under this article. END_STATUTE

Sec. 3. Legislative intent

Section 41‑1492.08, subsection A, Arizona Revised Statutes, as amended by this act, is intended to clarify that a private litigant must establish standing in order to bring a claim pursuant to section 41‑1492.08, Arizona Revised Statutes. See Bailey-Null v. ValueOptions, 221 Ariz. 63, 69 ¶ 18 (App. 2009) (The Arizonans with Disabilities Act allows an "aggrieved individual" to institute civil action); see also Bennett v. Napolitano, 206 Ariz. 520, 524-525 ¶¶ 15, 19 (2003) ("[A] litigant seeking relief in the Arizona courts must first establish standing to sue," as the standing issue is a "threshold question[]."); Sears v. Hull, 192 Ariz. 65, 69 ¶ 16 (1998) ("To gain standing to bring an action, a plaintiff must allege a distinct and palpable injury.").

Sec. 4. Effective date

This act is effective from and after December 31, 2017.