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8 LONG TITLE
9 General Description:
10 This bill enacts a cause of action for abuse of process and demands concerning the
11 Americans with Disabilities Act.
12 Highlighted Provisions:
13 This bill:
14 ▸ provides legislative findings;
15 ▸ defines terms;
16 ▸ prohibits abuse of process and payment demands;
17 ▸ establishes remedies;
18 ▸ provides for exceptions; and
19 ▸ provides for severability.
20 Money Appropriated in this Bill:
21 None
22 Other Special Clauses:
23 None
24 Utah Code Sections Affected:
25 ENACTS:
26 78B-6-2201, Utah Code Annotated 1953
27 78B-6-2202, Utah Code Annotated 1953
28 78B-6-2203, Utah Code Annotated 1953
29 78B-6-2204, Utah Code Annotated 1953
30 78B-6-2205, Utah Code Annotated 1953
31 78B-6-2206, Utah Code Annotated 1953
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33 Be it enacted by the Legislature of the state of Utah:
34 Section 1. Section 78B-6-2201 is enacted to read:
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36 78B-6-2201. Title -- Purpose.
37 (1) This part is known as the "Abuse of Process Concerning Americans with
38 Disabilities Act."
39 (2) This part seeks to protect Utah persons, businesses, and property owners from
40 abuse of process when a person wrongfully asserts a violation of the public accommodations
41 protections of the Americans with Disabilities Act and demands settlement compensation by
42 threatening to commence litigation alleging violation of public accommodations protections of
43 the Americans with Disabilities Act by the persons, business owners, or property owners to
44 induce or compel payment of unjust compensation.
45 (3) This part is intended to apply only to public accommodations protections of the
46 Americans with Disabilities Act and is not intended to apply to demands or communications in
47 other areas of the law.
48 Section 2. Section 78B-6-2202 is enacted to read:
49 78B-6-2202. Definitions.
50 As used in this part:
51 (1) "Abusive compensation demand" means a letter, email, or other written
52 communication directed to a target that wrongfully asserts, as determined under Section
53 78B-6-2203, that the target has violated the public accommodations protections of the
54 Americans with Disabilities Act to obtain compensation, in excess of the reasonable attorney
55 fees that the Americans with Disabilities Act allows, as a condition of forbearance of filing
56 threatened litigation.
57 (2) "Disability advocate agency" means an entity that:
58 (a) has as its primary purpose advocating or assisting persons with a disability;
59 (b) is exempt from federal income taxation under Section 501(c)(3), Internal Revenue
60 Code; and
61 (c) is primarily funded from federal grants, charitable contributions, and money from
62 the state.
63 (3) "Protection and advocacy agency" means an entity designated by the governor
64 pursuant to federal law for the protection and advocacy of persons with disabilities.
65 (4) "Public accommodations protections of the Americans with Disabilities Act" means
66 a violation of Title III of the Americans with Disabilities Act, 42 U.S.C. Secs. 12181 through
67 12189.
68 (5) "Sponsor" means a party responsible, in whole or in part, directly or indirectly, for
69 issuance of an abusive compensation demand.
70 (6) "Target" means a person residing in, doing business in, incorporated in, or
71 organized under the laws of this state that receives an abusive compensation demand.
72 Section 3. Section 78B-6-2203 is enacted to read:
73 78B-6-2203. Prohibition against abusive compensation demands.
74 (1) A sponsor may not issue an abusive compensation demand to a target under threat
75 of litigation.
76 (2) A court may consider the following factors as evidence in determining whether a
77 sponsor has issued an abusive compensation demand:
78 (a) whether the demand fails to contain a description of a valid instance that constitutes
79 a violation of the public accommodations protections of the Americans with Disabilities Act in
80 sufficient detail to allow the target to assess the merits of the alleged violation of the public
81 accommodations protections of the Americans with Disabilities Act;
82 (b) whether the demand contains any of the following:
83 (i) an assertion of a violation of the public accommodations protections of the
84 Americans with Disabilities Act that the sponsor knows has been previously adjudicated or
85 settled;
86 (ii) an assertion that a complaint has been filed alleging that the target has violated the
87 public accommodations protections of the Americans with Disabilities Act, when no complaint
88 has been filed;
89 (iii) an assertion of a violation of the public accommodations protections of the
90 Americans with Disabilities Act for which the sponsor does not have the right to file a
91 complaint;
92 (iv) an assertion or threat that the settlement amount will increase if the target retains
93 counsel to defend against the assertions in the demand;
94 (v) a false or misleading statement; or
95 (vi) a demand for payment of compensation within an unreasonably short period of
96 time depending on the number and complexity of the claims;
97 (c) whether the sponsor has shown a pattern or practice of issuing abusive
98 compensation demands in excess of reasonable attorney fees;
99 (d) whether the sponsor received any unjust enrichment; and
100 (e) any other factor the court considers relevant.
101 Section 4. Section 78B-6-2204 is enacted to read:
102 78B-6-2204. Action -- Enforcement -- Remedies -- Damages.
103 (1) (a) A target who receives an abusive compensation demand may bring an action in
104 district court.
105 (b) (i) A court may award or impose any relief the court considers equitable, including
106 the following remedies to a target who prevails in an action brought pursuant to this part:
107 (A) equitable relief; and
108 (B) actual damages.
109 (ii) A court may award reasonable attorney fees and court costs to the prevailing party.
110 (2) A court may dismiss with prejudice an action brought under this section if the court
111 determines that the person bringing the action is doing so for a purpose that violates 42 U.S.C.
112 Sec. 12203 or this part.
113 Section 5. Section 78B-6-2205 is enacted to read:
114 78B-6-2205. Exceptions.
115 The following are exempt from this part:
116 (1) a protection and advocacy agency;
117 (2) a disability advocate agency; or
118 (3) an individual or professional who:
119 (a) acts in good faith; and
120 (b) does not have a pattern of abusive compensation demands.
121 Section 6. Section 78B-6-2206 is enacted to read:
122 78B-6-2206. Severability clause.
123 If any provision of this part, or the application of any provision to any person or
124 circumstance, is held invalid, the invalidity does not affect other provisions or applications of
125 this part that can be given effect without the invalid provision or application, and to this end
126 the provisions of this part are severable.