HF 2955

2nd Engrossment - 89th Legislature (2015 - 2016) Posted on 05/11/2016 02:58pm

A bill for an act
relating to human rights; establishing requirement for demand letter involving
architectural barriers limiting accessibility; providing for accessibility audits;
amending Minnesota Statutes 2014, section 363A.28, subdivision 3; proposing
coding for new law in Minnesota Statutes, chapter 363A.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA:

Section 1.

Minnesota Statutes 2014, section 363A.28, subdivision 3, is amended to read:

Subd. 3.

For filing claim; filing options.

new text begin (a) new text end A claim of an unfair discriminatory
practice must be brought as a civil action pursuant to section 363A.33, subdivision 1, filed
in a charge with a local commission pursuant to section 363A.07, subdivision 3, or filed in
a charge with the commissioner within one year after the occurrence of the practice.

new text begin (b) new text end The running of the one-year limitation period is suspended during the time a
potential charging party and respondent are voluntarily engaged in a dispute resolution
process involving a claim of unlawful discrimination under this chapter, including
arbitration, conciliation, mediation or grievance procedures pursuant to a collective
bargaining agreement or statutory, charter, ordinance provisions for a civil service or
other employment system or a school board sexual harassment or sexual violence policy.
A potential respondent who participates in such a process with a potential charging
party before a charge is filed or a civil action is brought shall notify the department and
the charging party in writing of the participation in the process and the date the process
commenced and shall also notify the department and the charging party of the ending date
of the process. A respondent who fails to provide this notification is barred from raising
the defense that the statute of limitations has run unless one year plus a period of time
equal to the suspension period has passed.

new text begin (c) The running of the one-year limitation period is suspended during the time period
provided for in a demand letter under section 363A.331, subdivision 3.
new text end

Sec. 2.

new text begin [363A.331] ACTIONS INVOLVING ARCHITECTURAL BARRIERS
THAT LIMIT ACCESSIBILITY.
new text end

new text begin Subdivision 1. new text end

new text begin Definitions. new text end

new text begin (a) For the purposes of this section, the following terms
have the meanings given.
new text end

new text begin (b) "Accessibility requirements under law" means requirements governing removal
of architectural barriers that limit access to public accommodations by persons with
disabilities under the following laws and rules:
new text end

new text begin (1) section 363A.11, subdivision 3, clause (4) or (5);
new text end

new text begin (2) United States Code, title 42, section 12182, paragraph (b), clause (2),
subparagraph (A), subclause (iv) or (v); or
new text end

new text begin (3) Code of Federal Regulations, title 28, section 36.304 or 36.305.
new text end

new text begin (c) "Certified professional" means:
new text end

new text begin (1) an individual who is certified under section 326B.133, subdivision 3a, paragraph
(d); or
new text end

new text begin (2) a licensed, registered, or otherwise certified professional with demonstrated
knowledge of accessibility requirements under law.
new text end

new text begin Subd. 2. new text end

new text begin Affirmative defense; challenging audit. new text end

new text begin (a) In a civil action brought
against an entity required to comply with section 363A.11, subdivision 3, for the failure to
remove an architectural barrier, the defendant has an affirmative defense to the action if
the defendant:
new text end

new text begin (1) demonstrates that the defendant has removed the architectural barrier in a manner
that complies with accessibility requirements under law;
new text end

new text begin (2) demonstrates that compliance with the accessibility requirements under law is
not readily achievable or cannot be accomplished by alternative means; or
new text end

new text begin (3) demonstrates that the alleged architectural barrier does not violate accessibility
standards under law.
new text end

new text begin (b) In a civil action brought against an entity required to comply with section
363A.11, subdivision 3, a plaintiff challenging an audit, performed by a certified
professional, that an alleged architectural barrier complies with accessibility requirements
under law, or that compliance is not readily achievable or alternative means cannot be
employed, has the burden to show that the architectural barrier does not comply with those
accessibility requirements or that compliance is readily achievable or can be accomplished
by alternative means.
new text end

new text begin Subd. 3. new text end

new text begin Demand letter seeking removal of an architectural barrier. new text end

new text begin (a) Before
bringing a civil action under section 363A.33, an attorney representing a person who
alleges that an entity required to comply with section 363A.11, subdivision 3, has violated
accessibility requirements under state law must provide a demand letter consistent with
subdivision 4. A demand letter sent pursuant to this section is not invalidated if a good
faith attempt to comply with the requirements of subdivision 4 are made. The demand
letter must provide a reasonable time to respond which must be no less than 30 days.
new text end

new text begin (b) A person who is not represented by an attorney, may, but is not required to, send
a demand letter. A person who elects to send the demand letter under this section must
comply with the requirements of this section.
new text end

new text begin (c) A person who sends a demand letter is entitled to a civil penalty of $250 to be
paid by the entity required to comply with section 363A.11, subdivision 3, if the alleged
architectural barrier or barriers are found to be a violation of accessibility requirements
in a barrier removal audit, administrative proceeding under section 363A.28, or a court
of law. Payment of the civil penalty does not relieve the entity required to comply with
section 363A.11, subdivision 3, from the obligation to remove the architectural barrier.
new text end

new text begin (d) When a demand letter has been sent pursuant to paragraph (a), a civil action may
not be filed or pursued by a plaintiff if, within the response time provided in the demand
letter, the entity required to comply with section 363A.11, subdivision 3:
new text end

new text begin (1) removes the architectural barrier in a manner that complies with accessibility
requirements under law and provides reasonable proof of the removal to the attorney
representing the person alleging the violation;
new text end

new text begin (2) demonstrates that the business has scheduled a barrier removal audit to be
conducted at the earliest time that a certified accessibility specialist or other certified
professional is available and agrees to produce the audit report as soon as practicable after
it is completed and, if the report contains a remedial plan, comply with the plan; or
new text end

new text begin (3) produces a barrier removal audit report prepared by a certified professional:
new text end

new text begin (i) finding that the alleged architectural barrier does not violate accessibility
requirements under law or that compliance with accessibility requirements under law is
not readily achievable or cannot be accomplished by alternative means; or
new text end

new text begin (ii) containing a remedial plan, with a reasonable timetable for completion, for
removal of the architectural barrier and compliance with accessibility requirements
under law.
new text end

new text begin (e) Nothing in this subdivision bars a person from bringing an action:
new text end

new text begin (1) if a plaintiff believes a potential defendant has failed to comply with a timetable
for completion of a plan to remove an architectural barrier;
new text end

new text begin (2) if a person is challenging a finding or remedial plan under paragraph (b), clause
(3);
new text end

new text begin (3) if a person has a claim for damages resulting from an injury; or
new text end

new text begin (4) if a person is filing charges pursuant to section 363A.28.
new text end

new text begin (f) The requirements of this subdivision do not apply to attorneys representing the
state or a political subdivision of the state.
new text end

new text begin Subd. 4. new text end

new text begin Statutory short form; demand letter for removal of an architectural
barrier. new text end

new text begin The demand letter required under subdivision 3 must be in the following, or
substantially similar form:
new text end

new text begin "This demand letter is to advise you of your rights under Minnesota law in
connection with a claim that you or your business has engaged in an unfair discriminatory
practice. The undersigned attorney represents [Individual/Organization], who alleges that
there are architectural barriers that limit the accessibility of persons with disabilities at
[Place of Public Accommodation/Business], located at [Address, City, State, Zip].
new text end

new text begin [Individual/Organization] alleges that [Place of Public Accommodation] is in
violation of [Specific Laws] because [Detailed Description of Architectural Barrier] is
limiting access to persons with disabilities. Before filing a lawsuit against you under
Minnesota Statutes, section 363A.33, [Individual/Organization] are required under
Minnesota Statutes, section 363A.331, subdivision 3, to submit this demand letter seeking
removal of the alleged architectural barriers. [Individual/Organization] demands that
[Place of Public Accommodation] remove the described architectural barriers on or before
[Deadline of at Least 30 Days], or [Individual/Organization] may file a lawsuit against you
under Minnesota Statutes, section 363A.33.
new text end

new text begin A lawsuit may not be filed against you for failure to remove the above-described
architectural barriers if, within the response period provided above, [Place of Public
Accommodation] does one of the following, as required by Minnesota Statutes, section
363A.331, subdivision 3:
new text end

new text begin (1) removes the architectural barrier in a manner that complies with accessibility
requirements under law and provides proof of the removal to the undersigned attorney; or
new text end

new text begin (2) produces a barrier removal audit report prepared or developed by a certified
accessibility specialist or other certified professional with demonstrated knowledge of
accessibility requirements that:
new text end

new text begin (i) contains a remedial plan, with a reasonable timetable for completion for removal
of the architectural barrier and compliance with accessibility requirements under law;
new text end

new text begin (ii) finds that the alleged architectural barrier does not violate accessibility
requirements under law or that compliance with accessibility requirements is not readily
achievable or cannot be accomplished by alternative means; or
new text end

new text begin (iii) demonstrates that [Place of Public Accommodation] has scheduled a barrier
removal audit to be conducted at the earliest time that a certified professional is available
and agrees to produce the audit report as soon as practicable after it is completed and, if
the report contains a remedial plan, comply with the plan.
new text end

new text begin Under Minnesota law, if the alleged architectural barrier is a violation of
accessibility requirements under law, you will be required to pay a civil penalty of $250
to [Individual/Organization], in addition to removing the architectural barrier. Failure to
comply with Minnesota law may result in a lawsuit being filed against you."
new text end