HOUSE BILL NO. 4498

A bill to amend 1976 PA 220, entitled

"Persons with disabilities civil rights act,"

by amending section 606 (MCL 37.1606), as amended by 1998 PA 20, and by adding section 606a.

the people of the state of michigan enact:

Sec. 606. (1) A person alleging a violation of this act or of another accessibility law, as that term is defined in section 606a, may bring a civil action for appropriate injunctive relief or damages, or both.

(2) An action commenced pursuant to under subsection (1) may be brought in the circuit court for the county where the alleged violation occurred, or for the county where the person against whom the civil complaint is filed resides or has his or her principal place of business.

(3) As used in subsection (1), "damages" means damages for injury or loss caused by each violation of this act, including, subject to subsections (7) and (8), reasonable attorneys' attorney fees.

(4) The amount of compensation awarded for lost wages under this act for an injury under article 2 shall must be reduced by the amount of compensation received for lost wages under the worker's disability compensation act of 1969, 1969 PA 317, MCL 418.101 to 418.941, for that injury and by the present value of the future compensation for lost wages to be received under the worker's disability compensation act of 1969, 1969 PA 317, MCL 418.101 to 418.941, for that injury.

(5) A person with a disability may not bring a civil action under subsection (1) for a failure to accommodate under article 2 unless he or she the person with a disability has notified the person against whom the civil complaint is filed of the need for accommodation as required under section 210(18). This subsection does not apply if the person against whom the civil complaint is filed failed to comply with the requirements of section 210(19).

(6) A person alleging a violation of an accessibility law, as that term is defined in section 606a, shall not file a civil action under subsection (1) unless the person alleging the violation has served a notice as allowed under section 606a and 1 of the following has occurred:

(a) The person alleging a violation has received a response as described in section 606a(3)(a) and the owner of the facility, agent of the owner, or other responsible person has failed to make the improvements or bring the facility into compliance with accessibility laws within 120 days as required by section 606a(4) and, in the opinion of the person alleging the violation, has failed to provide a reasonable explanation for the failure.

(b) The person alleging a violation has received a response as described in section 606a(3)(b).

(c) The person alleging a violation has received a response as described in section 606a(3)(c), but the person alleging a violation reasonably believes that the alleged violation continues to exist.

(d) The owner of the facility, agent of the owner, or other responsible person has failed to respond to the notice within 15 business days as required by section 606a(3).

(7) A person alleging a violation of an accessibility law, as that term is defined in section 606a, that does not serve a notice as allowed under section 606a is not entitled to attorney fees in an action under subsection (1) unless the court determines that attorney fees are appropriate because of the nature of the violation, including their willfulness, duration, or severity.

(8) A person alleging a violation of an accessibility law, as that term is defined in section 606a, that serves a notice as allowed under section 606a is not entitled to attorney fees if all of the following are true:

(a) The person alleging the violation filed the civil action before the expiration of an allowable 120-day extension under section 606a(4).

(b) The court determines that the defendant's explanation of the necessity of the extension was reasonable.

(c) The defendant makes the improvements to bring the facility into compliance with applicable accessibility laws during the period of extension.

Sec. 606a. (1) Before filing a civil action alleging violation of an accessibility law, the person alleging the violation may notify the owner of the facility, agent of the owner, or other responsible person by personal service, in accordance with applicable state or federal laws, or by certified mail, of alleged accessibility law violations for which an action may be filed by the person alleging the violation.

(2) A notice under subsection (1) must furnish information or be in a form substantially similar to the following:

This letter is to inform you that the facility located at (address of facility) for which you are the owner, agent, or other responsible person, may be in violation of federal or state accessibility laws, or both, and the name of the person alleging the violation is (name of person alleging the violation).

Specifically, the possible violation or violations have been identified as follows:

(Notice must identify the specific facts that constitute the alleged violation, including the approximate date on which the alleged violation occurred or was observed and identification of the location of the alleged violation with sufficient detail so that the location can be identified by the owner of the facility, agent of the owner, or other responsible person.)

You have 15 business days to respond to this notice by personal service or certified mail. Your response must be addressed to (address where personal service may be received or certified mail may be sent).

Michigan law allows you to respond in 1 of 3 ways:

1. You may expressly state that improvements will be made to bring the facility into compliance with applicable accessibility laws. If you respond in this manner, you have a maximum of 120 days to complete these improvements. The 120-day period begins on the date your response to this notice is received at the address given above. If the improvements necessary to bring the facility into compliance with the applicable accessibility laws are not completed within the 120-day period, a person alleging the violation may bring a lawsuit against you. You may extend the 120-day period only if you provide a reasonable explanation why improvements cannot be made within the 120 days. A reasonable explanation includes a demonstrated need for delay, such as problems related to construction and permitting.

2. You may challenge the validity of the alleged violations. If you respond in this manner, a person alleging the violation may bring a lawsuit against you immediately.

3. If the violation or violations listed above are the same as or similar to 1 or more previous violations that you believe have been corrected, you may respond by stating that the necessary improvements have been made to bring the facility into compliance with the applicable accessibility laws. You must also attach evidence that verifies those improvements.

If you have any questions about this notice or your rights under federal or Michigan law, please contact your legal counsel.

(3) Within 15 business days after a person serves or sends a notice under subsection (1), the owner of the facility, agent of the owner, or other responsible person shall respond to the notice by personal service on or certified mail to the person alleging the violation. The response must do 1 of the following:

(a) Expressly state that improvements will be made to bring the facility into compliance with applicable accessibility laws.

(b) Challenge the validity of the alleged violation. If the owner of the facility, agent of the owner, or other responsible person responds in this manner, the person alleging the violation may file an action, subject to any applicable statutes of limitations, any time after receipt of the response.

(c) State that the alleged violations identified by the person alleging the violation have been corrected to comply with applicable accessibility laws. The owner of the facility, agent of the owner, or other responsible person shall attach evidence to the response that verifies those improvements.

(4) If an owner of the facility, agent of the owner, or other responsible person responds in the manner described in subsection (3)(a), the owner, agent, or responsible person shall remedy the alleged violation within 120 days. The 120-day period begins on the date the person alleging the violation receives the response. The owner, agent, or other responsible person may extend the 120-day period by not more than 120 days by providing a reasonable explanation why the improvement requires more than 120 days to complete. A reasonable explanation includes a demonstrated need for extension, such as a problem related to construction or permitting.

(5) If an owner of the facility, agent of the owner, or other responsible person responds in the manner described in subsection (3)(a) and makes the improvements to bring the facility into compliance with applicable accessibility laws within the 120-day period described in subsection (4) or provides a reasonable explanation why the improvements are not completed, the response must not be considered an admission of guilt and is not admissible as evidence in any action based on the same facts filed against the owner of the facility, agent of the owner, or other responsible person.

(6) If the owner of the facility, agent of the owner, or other responsible person makes the improvements to bring the facility into compliance with the applicable accessibility laws within the 120-day period described in subsection (4) and provides evidence to the person alleging the violation that the improvements have been made, or if the owner of the facility, agent of the owner, or other responsible person demonstrates to the court's satisfaction that the explanation given for the necessity of an extension was reasonable, the person alleging the violation is not entitled to receive any damages or attorney fees in an action arising out of the same or similar facts that served as a basis for the alleged violation. The person alleging the violation may receive damages and attorney fees for actions arising out of a recurrence of the same or similar alleged accessibility law violation if it is determined that the owner of the facility, agent of the owner, or other responsible person failed to maintain accessibility following the initial improvements.

(7) This section and section 606 do not limit an action for recovery of special damages filed by a person who suffers an injury in fact because the person was denied full and equal access to an accommodation as required by federal or state law.

(8) This section does not apply to a complaint filed with the commission under this act or deferred to the commission under federal law. This section does not preclude the commission from investigating charges of discrimination against a place of public accommodation.

(9) As used in this section:

(a) "Accessibility law" means article 3 or any federal law that ensures accessibility to services, programs, places of public accommodation, public conveyances and modes of transportation, streets, highways, sidewalks, walkways, buildings, medical facilities, and other public places for a person with a disability. Accessibility law does not include article 5.

(b) "Business day" means a day of the week excluding Sunday and a legal holiday.