Florida Senate - 2011                        COMMITTEE AMENDMENT
       Bill No. SB 208
       
       
       
       
       
       
                                Barcode 907230                          
       
                              LEGISLATIVE ACTION                        
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       The Committee on Children, Families, and Elder Affairs (Rich)
       recommended the following:
       
    1         Senate Amendment (with title amendment)
    2  
    3         Delete everything after the enacting clause
    4  and insert:
    5         Section 1. Paragraph (g) of subsection (3) and subsection
    6  (5) of section 393.13, Florida Statutes, are amended to read:
    7         393.13 Treatment of persons with developmental
    8  disabilities.—
    9         (3) RIGHTS OF ALL PERSONS WITH DEVELOPMENTAL DISABILITIES.
   10  The rights described in this subsection shall apply to all
   11  persons with developmental disabilities, whether or not such
   12  persons are clients of the agency.
   13         (g) Persons with developmental disabilities shall have a
   14  right to be free from harm, including unnecessary physical,
   15  chemical, or mechanical restraint, isolation, excessive
   16  medication, abuse, or negligence neglect.
   17         (5) LIABILITY FOR VIOLATIONS.—An individual or entity that
   18  Any person who violates or abuses any rights or privileges of
   19  persons with developmental disabilities as provided by this
   20  chapter is liable for damages as determined by law. An
   21  individual or entity acting Any person who acts in good faith
   22  compliance with the provisions of this chapter is immune from
   23  civil or criminal liability for actions in connection with the
   24  evaluation, admission, habilitative programming, education,
   25  treatment, or discharge of a client. However, this subsection
   26  section does not relieve an individual or entity any person from
   27  liability if the individual or entity person is commits an act
   28  of guilty of negligence, misfeasance, nonfeasance, or
   29  malfeasance.
   30         Section 2. Subsection (9) is added to section 413.08,
   31  Florida Statutes, to read:
   32         413.08 Rights of an individual with a disability; use of a
   33  service animal; discrimination in public employment or housing
   34  accommodations; penalties.—
   35         (9) A person aggrieved by a violation of this section has a
   36  right of action pursuant to s. 760.11.
   37         Section 3. Section 509.092, Florida Statutes, is amended to
   38  read:
   39         509.092 Public lodging establishments and public food
   40  service establishments; rights as private enterprises.—Public
   41  lodging establishments and public food service establishments
   42  are private enterprises, and the operator has the right to
   43  refuse accommodations or service to any person who is
   44  objectionable or undesirable to the operator, but such refusal
   45  may not be based upon race, creed, color, sex, physical
   46  disability, or national origin. A person aggrieved by a
   47  violation of this section or a violation of a rule adopted under
   48  this section has a right of action pursuant to s. 760.11.
   49         Section 4. Section 553.513, Florida Statutes, is amended to
   50  read:
   51         553.513 Enforcement.—
   52         (a) It shall be the responsibility of each local government
   53  and each code enforcement agency established pursuant to s.
   54  553.80 to enforce the provisions of this part. This act
   55  expressly preempts the establishment of handicapped
   56  accessibility standards to the state and supersedes any county
   57  or municipal ordinance on the subject. However, nothing in this
   58  section shall prohibit municipalities and counties from
   59  enforcing the provisions of this act.
   60         (b) A person aggrieved by a violation of this part or a
   61  violation of a rule adopted under this part has a right of
   62  action pursuant to s. 760.11.
   63         Section 5. Subsections (1) and (2) of section 760.01,
   64  Florida Statutes, are amended to read:
   65         760.01 Purposes; construction; title.—
   66         (1) This part Sections 760.01-760.11 and s. 509.092 may
   67  shall be cited as the “Florida Civil Rights Act of 1992.”
   68         (2) The general purposes of the Florida Civil Rights Act of
   69  1992 are to secure for all individuals within the state freedom
   70  from discrimination because of race, color, religion, sex,
   71  national origin, age, disability handicap, or marital status and
   72  thereby to protect their interest in personal dignity, to make
   73  available to the state their full productive capacities, to
   74  secure the state against domestic strife and unrest, to preserve
   75  the public safety, health, and general welfare, and to promote
   76  the interests, rights, and privileges of individuals within the
   77  state.
   78         Section 6. Section 760.02, Florida Statutes, is reordered
   79  and amended to read:
   80         760.02 Definitions.—For the purposes of this part ss.
   81  760.01-760.11 and s. 509.092, the term:
   82         (8)(1) “Florida Civil Rights Act of 1992” means the
   83  provisions of this part and s. ss. 760.01-760.11 and 509.092.
   84         (2) “Commission” means the Florida Commission on Human
   85  Relations created by s. 760.03.
   86         (3) “Commissioner” or “member” means a member of the
   87  commission.
   88         (4) “Disability” means:
   89         (a) A person has a physical or mental impairment which
   90  substantially limits one or more major life activities, or he or
   91  she has a record of having, or is regarded as having, such
   92  physical or mental impairment; or
   93         (b) A person has a developmental disability as defined in
   94  s. 393.063.
   95         (5)(4) “Discriminatory practice” means any practice made
   96  unlawful by the Florida Civil Rights Act of 1992.
   97         (10)(5) “National origin” includes ancestry.
   98         (11)(6) “Person” includes an individual, association,
   99  corporation, joint apprenticeship committee, joint-stock
  100  company, labor union, legal representative, mutual company,
  101  partnership, receiver, trust, trustee in bankruptcy, or
  102  unincorporated organization; any other legal or commercial
  103  entity; the state; or any governmental entity or agency.
  104         (6)(7) “Employer” means any person employing 15 or more
  105  employees for each working day in each of 20 or more calendar
  106  weeks in the current or preceding calendar year, and any agent
  107  of such a person.
  108         (7)(8) “Employment agency” means any person regularly
  109  undertaking, with or without compensation, to procure employees
  110  for an employer or to procure for employees opportunities to
  111  work for an employer, and includes an agent of such a person.
  112  	(9) “Labor organization” means any organization that which
  113  exists for the purpose, in whole or in part, of collective
  114  bargaining or of dealing with employers concerning grievances,
  115  terms or conditions of employment, or other mutual aid or
  116  protection in connection with employment.
  117         (1)(10) “Aggrieved person” means any person who files a
  118  complaint with the Human Relations commission.
  119         (12)(11) “Public accommodations” means places of public
  120  accommodation, lodgings, facilities principally engaged in
  121  selling food for consumption on the premises, gasoline stations,
  122  places of exhibition or entertainment, and other covered
  123  establishments. The term includes Each of the following
  124  establishments which serves the public is a place of public
  125  accommodation within the meaning of this section:
  126         (a) An Any inn, hotel, motel, or other establishment which
  127  provides lodging to transient guests, other than an
  128  establishment located within a building which contains not more
  129  than four rooms for rent or hire and which is actually occupied
  130  by the proprietor of such establishment as his or her residence.
  131  	(b) A Any restaurant, cafeteria, lunchroom, lunch counter,
  132  soda fountain, or other facility principally engaged in selling
  133  food for consumption on the premises, including, but not limited
  134  to, any such facility located on the premises of any retail
  135  establishment, or any gasoline station.
  136         (c) A Any motion picture theater, theater, concert hall,
  137  sports arena, stadium, or other place of exhibition or
  138  entertainment.
  139         (d) An Any establishment that which is physically located
  140  within the premises of an any establishment otherwise covered by
  141  this subsection, or within the premises of which is physically
  142  located any such covered establishment, and that which holds
  143  itself out as serving patrons of such covered establishment.
  144         For the purposes of the Floridians with Disabilities Act
  145  under s. 760.15, the term also includes a facility or entity
  146  included in the definition of the term “place of public
  147  accommodation” under Title III of the federal Americans with
  148  Disabilities Act, whichever is more inclusive.
  149         Section 7. Section 760.05, Florida Statutes, is amended to
  150  read:
  151         760.05 Functions of the commission.—The commission shall
  152  promote and encourage fair treatment and equal opportunity for
  153  all persons regardless of race, color, religion, sex, national
  154  origin, age, disability handicap, or marital status and mutual
  155  understanding and respect among all members of all economic,
  156  social, racial, religious, and ethnic groups; and shall endeavor
  157  to eliminate discrimination against, and antagonism between,
  158  religious, racial, and ethnic groups and their members.
  159         Section 8. Section 760.07, Florida Statutes, is amended to
  160  read:
  161         760.07 Remedies for unlawful discrimination.—Any violation
  162  of any state law Florida statute making unlawful discrimination
  163  because of race, color, religion, gender, national origin, age,
  164  disability handicap, or marital status in the areas of
  165  education, employment, housing, or public accommodations gives
  166  rise to a cause of action for all relief and damages described
  167  in s. 760.11(5), unless greater damages are expressly provided
  168  for. If the law statute prohibiting unlawful discrimination
  169  provides an administrative remedy, the action for equitable
  170  relief and damages provided for in this section may be initiated
  171  only after the plaintiff has exhausted his or her administrative
  172  remedy. The term “public accommodations” does not include lodge
  173  halls or other similar facilities of private organizations which
  174  are made available for public use occasionally or periodically.
  175  The right to trial by jury is preserved in any case in which the
  176  plaintiff is seeking actual or punitive damages.
  177         Section 9. Section 760.08, Florida Statutes, is amended to
  178  read:
  179         760.08 Discrimination in places of public accommodation.
  180  All persons are shall be entitled to the full and equal
  181  enjoyment of the goods, services, facilities, privileges,
  182  advantages, and accommodations of any place of public
  183  accommodation, as defined in this chapter, without
  184  discrimination or segregation on the ground of race, color,
  185  national origin, sex, disability handicap, familial status, or
  186  religion.
  187         Section 10. Section 760.10, Florida Statutes, is amended to
  188  read:
  189         760.10 Unlawful employment practices.—
  190         (1) It is an unlawful employment practice for an employer
  191  to:
  192         (a) To Discharge or to fail or refuse to hire any
  193  individual, or otherwise to discriminate against any individual
  194  with respect to compensation, terms, conditions, or privileges
  195  of employment, because of such individual’s race, color,
  196  religion, sex, national origin, age, disability handicap, or
  197  marital status.
  198         (b) To Limit, segregate, or classify employees or
  199  applicants for employment in any way that deprives which would
  200  deprive or tends tend to deprive any individual of employment
  201  opportunities, or adversely affects affect any individual’s
  202  status as an employee, because of his or her such individual’s
  203  race, color, religion, sex, national origin, age, disability
  204  handicap, or marital status.
  205         (2) It is an unlawful employment practice for an employment
  206  agency to fail or refuse to refer for employment, or otherwise
  207  to discriminate against, any individual because of race, color,
  208  religion, sex, national origin, age, disability handicap, or
  209  marital status or to classify or refer for employment any
  210  individual on the basis of race, color, religion, sex, national
  211  origin, age, disability handicap, or marital status.
  212         (3) It is an unlawful employment practice for a labor
  213  organization to:
  214         (a) To Exclude or to expel from its membership, or
  215  otherwise to discriminate against, any individual because of
  216  race, color, religion, sex, national origin, age, disability
  217  handicap, or marital status.
  218         (b) To Limit, segregate, or classify its membership or
  219  applicants for membership, or to classify or fail or refuse to
  220  refer for employment any individual, in any way that deprives
  221  which would deprive or tends tend to deprive any individual of
  222  employment opportunities, or adversely affects affect any
  223  individual’s status as an employee or as an applicant for
  224  employment, because of such individual’s race, color, religion,
  225  sex, national origin, age, disability handicap, or marital
  226  status.
  227         (c) To Cause or attempt to cause an employer to
  228  discriminate against an individual in violation of this section.
  229         (4) It is an unlawful employment practice for an any
  230  employer, labor organization, or joint labor-management
  231  committee controlling apprenticeship or other training or
  232  retraining, including on-the-job training programs, to
  233  discriminate against any individual because of race, color,
  234  religion, sex, national origin, age, disability handicap, or
  235  marital status in admission to, or employment in, any program
  236  established to provide apprenticeship or other training.
  237         (5) If Whenever, in order to engage in a profession,
  238  occupation, or trade, it is required that a person must receive
  239  a license, certification, or other credential;, become a member
  240  or an associate of any club, association, or other
  241  organization;, or pass an any examination, it is an unlawful
  242  employment practice for any person to discriminate against any
  243  other person seeking such license, certification, or other
  244  credential;, seeking to become a member or associate of such
  245  club, association, or other organization;, or seeking to take or
  246  pass such examination, because of such other person’s race,
  247  color, religion, sex, national origin, age, disability handicap,
  248  or marital status.
  249         (6) It is an unlawful employment practice for an employer,
  250  labor organization, employment agency, or joint labor-management
  251  committee to print, or cause to be printed or published, any
  252  notice or advertisement relating to employment, membership,
  253  classification, referral for employment, or apprenticeship or
  254  other training, indicating any preference, limitation,
  255  specification, or discrimination, based on race, color,
  256  religion, sex, national origin, age, absence of disability
  257  handicap, or marital status.
  258         (7) It is an unlawful employment practice for an employer,
  259  an employment agency, a joint labor-management committee, or a
  260  labor organization to discriminate against any person because
  261  that person has opposed any practice that which is an unlawful
  262  employment practice under this section, or because that person
  263  has made a charge, testified, assisted, or participated in any
  264  manner in an investigation, proceeding, or hearing under this
  265  section.
  266         (8) Notwithstanding any other provision of this section, it
  267  is not an unlawful employment practice under this part ss.
  268  760.01-760.10 for an employer, employment agency, labor
  269  organization, or joint labor-management committee to:
  270         (a) Take or fail to take any action on the basis of
  271  religion, sex, national origin, age, disability handicap, or
  272  marital status in those certain instances in which religion,
  273  sex, national origin, age, absence of a particular disability
  274  handicap, or marital status is a bona fide occupational
  275  qualification reasonably necessary for the performance of the
  276  particular employment to which such action or inaction is
  277  related.
  278         (b) Observe the terms of a bona fide seniority system, a
  279  bona fide employee benefit plan, such as a retirement, pension,
  280  or insurance plan, or a system that which measures earnings by
  281  quantity or quality of production and, which is not designed,
  282  intended, or used to evade the purposes of this part ss. 760.01
  283  760.10. However, no such employee benefit plan or system that
  284  which measures earnings does not shall excuse the failure to
  285  hire, and no such seniority system, employee benefit plan, or
  286  system that which measures earnings does not shall excuse the
  287  involuntary retirement of, any individual on the basis of any
  288  factor not related to the ability of such individual to perform
  289  the particular employment for which the such individual has
  290  applied or in which the such individual is engaged. This
  291  subsection does shall not prohibit be construed to make unlawful
  292  the rejection or termination of employment if when the
  293  individual applicant or employee has failed to meet bona fide
  294  requirements for the job or position sought or held or to
  295  require any changes in any bona fide retirement or pension
  296  programs or existing collective bargaining agreements during the
  297  life of the contract, and or for 2 years after October 1, 1981,
  298  whichever occurs first, nor shall this part does not act
  299  preclude such physical and medical examinations of applicants
  300  and employees as an employer may require of applicants and
  301  employees to determine fitness for the job or position sought or
  302  held.
  303         (c) Take or fail to take any action on the basis of age,
  304  pursuant to law or regulation governing any employment or
  305  training program designed to benefit persons of a particular age
  306  group.
  307         (d) Take or fail to take any action on the basis of marital
  308  status if that status is prohibited under its antinepotism
  309  policy.
  310         (9)  This section does shall not apply to any religious
  311  corporation, association, educational institution, or society
  312  that which conditions opportunities in the area of employment or
  313  public accommodation to members of that religious corporation,
  314  association, educational institution, or society or to persons
  315  who subscribe to its tenets or beliefs. This section does shall
  316  not prohibit a religious corporation, association, educational
  317  institution, or society from giving preference in employment to
  318  individuals of a particular religion to perform work connected
  319  with the carrying on by such corporations, associations,
  320  educational institutions, or societies of its various
  321  activities.
  322         (10) Each employer, employment agency, and labor
  323  organization shall post and keep posted in conspicuous places
  324  upon its premises a notice provided by the commission setting
  325  forth such information as the commission deems appropriate to
  326  effectuate the purposes of this part ss. 760.01-760.10.
  327         Section 11. Subsection (1) of section 760.11, Florida
  328  Statutes, is amended to read:
  329         760.11 Administrative and civil remedies; construction.—
  330         (1) Any person aggrieved by a violation of this part,
  331  including the Floridians with Disabilities Act, ss. 760.01
  332  760.10 may file a complaint with the commission within 365 days
  333  after of the alleged violation, naming the employer, employment
  334  agency, labor organization, or joint labor-management committee,
  335  public accommodation, or, in the case of an alleged violation of
  336  s. 760.10(5), the person responsible for the violation and
  337  describing the violation. Any person aggrieved by a violation of
  338  s. 413.08, s. 509.092, or ss. 553.501-553.513 may file a
  339  complaint with the commission within 365 days after of the
  340  alleged violation naming the person responsible for the
  341  violation and describing the violation. The commission, a
  342  commissioner, or the Attorney General may in like manner file
  343  such a complaint. On the same day the complaint is filed with
  344  the commission, the commission shall clearly stamp on the face
  345  of the complaint the date the complaint was filed with the
  346  commission on the face of the complaint. In lieu of filing the
  347  complaint with the commission, a complaint under this section
  348  may be filed with the federal Equal Employment Opportunity
  349  Commission or with any unit of government of the state agency
  350  that which is a fair-employment-practice agency under 29 C.F.R.
  351  ss. 1601.70-1601.80. If the date the complaint is filed is
  352  clearly stamped on the face of the complaint, that date is the
  353  date of filing. The date the complaint is filed with the
  354  commission for purposes of this section is the earliest date of
  355  filing with the Equal Employment Opportunity Commission, the
  356  fair-employment-practice agency, or the commission. The
  357  complaint must shall contain a short and plain statement of the
  358  facts describing the violation and the relief sought. The
  359  commission may require additional information to be in the
  360  complaint. The commission, Within 5 days after of the complaint
  361  is being filed, the commission shall by registered mail send a
  362  copy of the complaint by registered mail to the person who
  363  allegedly committed the violation. The person who allegedly
  364  committed the violation may file an answer to the complaint
  365  within 25 days after of the date the complaint was filed with
  366  the commission. Any answer filed must shall be mailed to the
  367  aggrieved person by the person filing the answer. Both The
  368  complaint and the answer must shall be verified.
  369         Section 12. Section 760.15, Florida Statutes, is created to
  370  read:
  371         760.15 Floridians with Disabilities Act.—
  372         (1) This section may be cited as the “Floridians with
  373  Disabilities Act.”
  374         (2) The Legislature finds that, while the federal Americans
  375  with Disabilities Act applies to state and local government
  376  agencies and to many private entities within this state, there
  377  remain many barriers that prevent persons with disabilities from
  378  accessing the full range of public and private programs and
  379  services otherwise available in this state to persons without
  380  disabilities. The Legislature, therefore, intends to promote a
  381  greater awareness by the state’s public and private entities of
  382  their obligations under the federal act by enacting the
  383  Americans with Disabilities Act as the law of this state by
  384  making the civil and administrative remedies of the Florida
  385  Civil Rights Act of 1992 available to redress violations of the
  386  federal act.
  387         (3) The federal Americans with Disabilities Act of 1990, as
  388  amended by the Americans with Disabilities Amendments Act of
  389  2008, is adopted as the law of this state and made part of the
  390  Florida Civil Rights Act of 1992, to be administered by the
  391  Florida Commission on Human Relations.
  392         (4) The provisions of this part, including the civil and
  393  administrative remedies for alleged violations, apply to this
  394  section, unless expressly exempted.
  395         (5) An individual may not seek relief under this section if
  396  he or she has commenced an action in state or federal court
  397  under the federal Americans with Disabilities Act.
  398         (6) This section does not expand substantive protections
  399  against discrimination based on disability beyond those provided
  400  in the federal Americans with Disabilities Act or in other
  401  sections of state law.
  402         Section 13. This act shall take effect July 1, 2011.
  403     
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                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                            
  405  ================= T I T L E  A M E N D M E N T ================
  406         And the title is amended as follows:
  407         Delete everything before the enacting clause
  408  and insert:
  409                        A bill to be entitled                      
  410         An act relating to persons with disabilities; amending s.
  411  393.13, F.S.; providing that persons with developmental
  412  disabilities have a right to be free from negligence; specifying
  413  that entities as well as individuals are liable for damages;
  414  amending s. 413.08, F.S., providing that that persons have a
  415  right of action for a violation of the section; amending s.
  416  509.092, F.S.; prohibiting the operator of a public lodging or
  417  food establishment from discriminating on the basis of
  418  disability; amending s. 553.513, F.S., providing that persons
  419  have a right of action for a violation of part I of ch. 553,
  420  F.S.; amending s. 760.01, F.S.; conforming provisions to changes
  421  made by the act; substituting the term “disability” for the term
  422  “handicap”; reordering and amending s. 760.02, F.S.; conforming
  423  provisions to changes made by the act; defining the term
  424  “disability”; redefining the term “public accommodations”;
  425  amending ss. 760.05, 760.07, 760.08, and 760.10, F.S.;
  426  conforming provisions to changes made by the act; substituting
  427  the term “disability” for the term “handicap”; amending s.
  428  760.11, F.S.; applying administrative and civil remedies
  429  available under the Florida Civil Rights Act of 1992 to certain
  430  violations against persons with disabilities; creating s.
  431  760.15, F.S.; creating the “Floridians with Disabilities Act”;
  432  providing legislative intent; adopting the federal Americans
  433  with Disabilities Act into state law and making it part of the
  434  Florida Civil Rights Act of 1992; providing an effective date.