[oklahoma-l] ALERT: HB-2946 and the ADA

[Jean Jones]

Alert!

HB-2946 by Jordan of the House and Anderson of the Senate creates new state law that is patterned after the language that was in the "ADA Notification Act," a federal bill introduced several years in a row, essentially to water down the enforcement mechanism provided in the ADA, and to make it harder for consumers to gain correction of accessibility violations under the ADA.  The ADA Notification Act has been deflected but not without the expression of substantial opposition on the part of Americans with disabilities and their organizations.  This kind of language has been strongly opposed by the disability community.  It is uncertain whether a state provision like this would work, since the provisions of the ADA and its rules should hold sway...


The bill as it passed the House is presented below.  It also passed the Senate Judiciary Committee very recently, on a unanimous vote.  The fact is, so few legislators are hearing from folks with disabilities, that they don't know what our issues are or how their actions could affect us.

Jean Jones


ENGROSSED HOUSE
BILL NO. 2946                                                                                           By:       Jordan of the House

                                                                                                                                                    and

                                                                                                                                    Anderson of the Senate






<StartFT>An Act relating to civil procedure; providing procedure and requirements for commencement of certain civil actions; providing for dismissal of action if requirements are not met; providing for dismissal of action in certain circumstances; providing for award of costs and attorney fees in certain circumstances; providing for sanctions; authorizing extension of time to complete corrections; providing for codification; and providing an effective date.<EndFT>




BE IT ENACTED BY THE PEOPLE OF THE STATE OF OKLAHOMA:
SECTION 1.     NEW LAW     A new section of law to be codified in the Oklahoma Statutes as Section <2003.2> of Title <12>, unless there is created a duplication in numbering, reads as follows:
COMMENCEMENT OF ACTION BASED ON CONSTRUCTION-RELATED ACCESSIBILITY CLAIM.
A.  Prior to filing a civil action based on a construction-related accessibility claim that a facility does not conform with applicable law, codes and standards for facilities for the physically disabled, the plaintiff shall notify the defendant in writing of the plaintiff's assertion that the facility does not comply with applicable law, codes and standards regulating construction of facilities to accommodate physically disabled individuals and the specific violations that the plaintiff asserts.  The notice shall be sent by certified mail with return receipt requested at least one hundred twenty (120) days prior to the filing of a petition.
B.  In any civil action based on a construction-related accessibility claim that a facility does not conform with applicable law, codes and standards for facilities for the physically disabled, the plaintiff shall attach to the petition:
1.  A copy of the notice required by subsection A of this section; and
2.  A copy of the certified mail return receipt signed by the defendant or person authorized to receive service of process for the defendant.
C.  If a civil action based on a construction-related accessibility claim that a facility does not conform with applicable law, codes and standards for facilities for the physically disabled is filed without the documentation required by subsection B of this section or if the petition is filed less than one hundred twenty (120) days after the date the notice required by subsection A of this section is sent, the court shall, upon motion of the defendant, dismiss the action without prejudice to its refiling.
D.  If the defendant corrects the alleged defect prior to the filing of the petition and the plaintiff files the petition, the court shall dismiss the action and award court costs and reasonable attorney fees to the defendant.  In addition, the court shall impose sanctions if the action is determined to be frivolous pursuant to Section 2011 of Title 12 of the Oklahoma Statutes.
E.  If the defendant has made a reasonable effort to correct the defect but has not completed the correction within one hundred twenty (120) days of notification as directed in subsection A of this section or prior to the filing of the petition, the court may, upon application of the defendant for good cause shown, grant the defendant a reasonable extension of time, based on the nature of construction needed to correct the deficiency.  If the correction is completed within that period of time, the court shall dismiss the action.
SECTION 2.  This act shall become effective <November 1, 2010>.
Passed the House of Representatives the <8th> day of <March>, 2010.




Presiding Officer of the House of
                                                                                                                                                                                    Representatives


Passed the Senate the ____ day of __________, 2010.




Presiding Officer of the Senate





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