41-1492.09. Enforcement by the attorney general; sanctions; use of sanction monies

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 brought under this article the court:

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. For the purposes of 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.

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.

H. In addition to any sanction that the court may award to a party pursuant to any rule or law in any civil action brought under this article, the court may impose a sanction on a plaintiff or the plaintiff's attorney if the court determines that an action or series of actions is brought under this article for the primary purpose of obtaining a payment from the defendant due to the costs of defending the action in a court. When imposing a sanction, the court may consider the totality of the abusive litigation-related practices of the plaintiff and the plaintiff's attorney.

I. If the court imposes a sanction pursuant to subsection H of this section, the court may order a party to pay a part of the sanction to the governor's office of youth, faith and family and, if ordered, the parties must notify the governor's office of youth, faith and family of the court's order. The governor's office of youth, faith and family must use these monies for the following purposes:

1. To educate covered persons or entities about the person's or entity's obligations under this article.

2. To award attorney fees to claimants who file a meritorious complaint with the attorney general and who resolve the complaint without litigation.