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REFERENCE TITLE: public accommodation; services; civil actions

State of Arizona
Senate
Fifty-third Legislature
First Regular Session
2017

SB 1198
Introduced by
Senators Kavanagh: Yee

AN ACT
AMENDING SECTIONS 41-1492.08 AND 41-1492.09, ARIZONA REVISED STATUTES;
RELATING TO PUBLIC ACCOMMODATION AND SERVICES.

(TEXT OF BILL BEGINS ON NEXT PAGE)

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


Section 1. Section 41-1492.08, Arizona Revised Statutes, is amended
to read:
41-1492.08. Enforcement; notice; affidavit; prohibited demand
for money, compensatory damages and fines
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 AGAINST THE AGGRIEVED PERSON THAT IS 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 ESTIMATED COST TO CURE THE VIOLATION IS LESS
THAN TEN THOUSAND DOLLARS.
2. NINETY DAYS IF THE ESTIMATED COST TO CURE THE VIOLATION IS TEN
THOUSAND DOLLARS OR MORE OR THE COVERED PERSON OR ENTITY IS A SMALL
BUSINESS THAT HAS FEWER THAN FIFTEEN EMPLOYEES.
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
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THE ALLEGATIONS AND FACTS CONTAINED IN THE COMPLAINT AND THAT THE
AGGRIEVED PERSON IS NOT RECEIVING ANYTHING OF VALUE FROM AN ATTORNEY IN
EXCHANGE FOR FILING THE CIVIL ACTION.
G. AN AGGRIEVED PERSON OR THE AGGRIEVED PERSON'S ATTORNEY MAY NOT
DEMAND A SPECIFIC AMOUNT OF MONEY FROM THE COVERED PERSON OR ENTITY BEFORE
A CIVIL ACTION IS COMMENCED 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 AGGRIEVED PERSON FILING THE
CIVIL ACTION OR THE AGGRIEVED 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 FOR TRIAL.
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.
Sec. 2. Section 41-1492.09, Arizona Revised Statutes, is amended to
read:
41-1492.09. 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:
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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.
(c) Making facilities readily accessible to and usable by
individuals with disabilities.
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.
Sec. 3. Effective date
This act is effective from and after December 31, 2017.

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