November 14, 2019
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       Florida Senate - 2010                                    SB 2396
       
       
       
       By Senator Fasano
       
       
       
       
       11-00314E-10                                          20102396__
    1                        A bill to be entitled                      
    2         An act relating to persons with disabilities; amending
    3         s. 393.13, F.S.; providing that persons with
    4         developmental disabilities have a right to be free
    5         from abuse, regardless of the setting, and from
    6         negligence; specifying that entities as well as
    7         individuals are liable for damages; amending s.
    8         509.092, F.S.; providing that the operator of a public
    9         lodging or food establishment may not discriminate on
   10         the basis of disability; amending s. 760.01, F.S.;
   11         conforming provisions to changes made by the act;
   12         substituting the term “disability” for the term
   13         “handicap”; reordering and amending s. 760.02, F.S.;
   14         conforming provisions to changes made by the act;
   15         redefining the term “public accommodation”; amending
   16         ss. 760.05, 760.07, 760.08, and 760.10, F.S.;
   17         conforming provisions to changes made by the act;
   18         substituting the term “disability” for the term
   19         “handicap”; amending s. 760.11, F.S.; applying
   20         administrative and civil remedies available under the
   21         Florida Civil Rights Act of 1992 to certain violations
   22         against persons with disabilities; creating s. 760.15,
   23         F.S.; creating the “Floridians with Disabilities Act”;
   24         providing legislative intent; adopting the federal
   25         Americans with Disabilities Act into state law and
   26         making it part of the Florida Civil Rights Act of
   27         1992; providing an effective date.
   28  
   29  Be It Enacted by the Legislature of the State of Florida:
   30  
   31         Section 1. Paragraphs (a) and (g) of subsection (3) and
   32  subsection (5) of section 393.13, Florida Statutes, are amended
   33  to read:
   34         393.13 Treatment of persons with developmental
   35  disabilities.—
   36         (3) RIGHTS OF ALL PERSONS WITH DEVELOPMENTAL DISABILITIES.
   37  The rights described in this subsection shall apply to all
   38  persons with developmental disabilities, whether or not such
   39  persons are clients of the agency.
   40         (a) Persons with developmental disabilities shall have a
   41  right to dignity, privacy, and humane care, including the right
   42  to be free from abuse, including sexual abuse, neglect, and
   43  exploitation in residential facilities.
   44         (g) Persons with developmental disabilities shall have a
   45  right to be free from harm, including unnecessary physical,
   46  chemical, or mechanical restraint, isolation, excessive
   47  medication, abuse, or negligence neglect.
   48         (5) LIABILITY FOR VIOLATIONS.—An individual or entity that
   49  Any person who violates or abuses any rights or privileges of
   50  persons with developmental disabilities provided by this chapter
   51  is liable for damages as determined by law. An individual or
   52  entity acting Any person who acts in good faith compliance with
   53  the provisions of this chapter is immune from civil or criminal
   54  liability for actions in connection with evaluation, admission,
   55  habilitative programming, education, treatment, or discharge of
   56  a client. However, this section does not relieve an individual
   57  or entity any person from liability if the individual or entity
   58  person is liable for or guilty of negligence, misfeasance,
   59  nonfeasance, or malfeasance.
   60         Section 2. Section 509.092, Florida Statutes, is amended to
   61  read:
   62         509.092 Public lodging establishments and public food
   63  service establishments; rights as private enterprises.—Public
   64  lodging establishments and public food service establishments
   65  are private enterprises, and the operator has the right to
   66  refuse accommodations or service to any person who is
   67  objectionable or undesirable to the operator, but such refusal
   68  may not be based upon race, creed, color, sex, physical
   69  disability, or national origin. A person aggrieved by a
   70  violation of this section or a violation of a rule adopted under
   71  this section has a right of action pursuant to s. 760.11.
   72         Section 3. Subsections (1) and (2) of section 760.01,
   73  Florida Statutes, are amended to read:
   74         760.01 Purposes; construction; title.—
   75         (1) This part may Sections 760.01-760.11 and 509.092 shall
   76  be cited as the “Florida Civil Rights Act of 1992.”
   77         (2) The general purposes of the Florida Civil Rights Act of
   78  1992 are to secure for all individuals within the state freedom
   79  from discrimination because of race, color, religion, sex,
   80  national origin, age, disability handicap, or marital status and
   81  thereby to protect their interest in personal dignity, to make
   82  available to the state their full productive capacities, to
   83  secure the state against domestic strife and unrest, to preserve
   84  the public safety, health, and general welfare, and to promote
   85  the interests, rights, and privileges of individuals within the
   86  state.
   87         Section 4. Section 760.02, Florida Statutes, is reordered
   88  and amended to read:
   89         760.02 Definitions.—For the purposes of this part ss.
   90  760.01-760.11 and s. 509.092, the term:
   91         (7)(1) “Florida Civil Rights Act of 1992” means the
   92  provisions of this part and s. ss. 760.01-760.11 and 509.092.
   93         (2) “Commission” means the Florida Commission on Human
   94  Relations created by s. 760.03.
   95         (3) “Commissioner” or “member” means a member of the
   96  commission.
   97         (4) “Discriminatory practice” means any practice made
   98  unlawful by the Florida Civil Rights Act of 1992.
   99         (9)(5) “National origin” includes ancestry.
  100         (10)(6) “Person” includes an individual, association,
  101  corporation, joint apprenticeship committee, joint-stock
  102  company, labor union, legal representative, mutual company,
  103  partnership, receiver, trust, trustee in bankruptcy, or
  104  unincorporated organization; any other legal or commercial
  105  entity; the state; or any governmental entity or agency.
  106         (5)(7) “Employer” means any person employing 15 or more
  107  employees for each working day in each of 20 or more calendar
  108  weeks in the current or preceding calendar year, and any agent
  109  of such a person.
  110         (6)(8) “Employment agency” means any person regularly
  111  undertaking, with or without compensation, to procure employees
  112  for an employer or to procure for employees opportunities to
  113  work for an employer, and includes an agent of such a person.
  114         (8)(9) “Labor organization” means any organization that
  115  which exists for the purpose, in whole or in part, of collective
  116  bargaining or of dealing with employers concerning grievances,
  117  terms or conditions of employment, or other mutual aid or
  118  protection in connection with employment.
  119         (1)(10) “Aggrieved person” means any person who files a
  120  complaint with the Human Relations commission.
  121         (11) “Public accommodations” means places of public
  122  accommodation, lodgings, facilities principally engaged in
  123  selling food for consumption on the premises, gasoline stations,
  124  places of exhibition or entertainment, and other covered
  125  establishments. The term includes Each of the following
  126  establishments which serves the public is a place of public
  127  accommodation within the meaning of this section:
  128         (a) An Any inn, hotel, motel, or other establishment which
  129  provides lodging to transient guests, other than an
  130  establishment located within a building which contains not more
  131  than four rooms for rent or hire and which is actually occupied
  132  by the proprietor of such establishment as his or her residence.
  133         (b) A Any restaurant, cafeteria, lunchroom, lunch counter,
  134  soda fountain, or other facility principally engaged in selling
  135  food for consumption on the premises, including, but not limited
  136  to, any such facility located on the premises of any retail
  137  establishment, or any gasoline station.
  138         (c) A Any motion picture theater, theater, concert hall,
  139  sports arena, stadium, or other place of exhibition or
  140  entertainment.
  141         (d) An Any establishment that which is physically located
  142  within the premises of an any establishment otherwise covered by
  143  this subsection, or within the premises of which is physically
  144  located any such covered establishment, and which holds itself
  145  out as serving patrons of such covered establishment.
  146  
  147  For the purposes of the Floridians with Disabilities Act under
  148  s. 790.15, the term also includes a facility or entity included
  149  in the definition of the term “place of public accommodation”
  150  under Title III of the federal Americans with Disabilities Act,
  151  whichever is more inclusive.
  152         Section 5. Section 760.05, Florida Statutes, is amended to
  153  read:
  154         760.05 Functions of the commission.—The commission shall
  155  promote and encourage fair treatment and equal opportunity for
  156  all persons regardless of race, color, religion, sex, national
  157  origin, age, disability handicap, or marital status and mutual
  158  understanding and respect among all members of all economic,
  159  social, racial, religious, and ethnic groups; and shall endeavor
  160  to eliminate discrimination against, and antagonism between,
  161  religious, racial, and ethnic groups and their members.
  162         Section 6. Section 760.07, Florida Statutes, is amended to
  163  read:
  164         760.07 Remedies for unlawful discrimination.—Any violation
  165  of any state Florida statute making unlawful discrimination
  166  because of race, color, religion, gender, national origin, age,
  167  disability handicap, or marital status in the areas of
  168  education, employment, housing, or public accommodations gives
  169  rise to a cause of action for all relief and damages described
  170  in s. 760.11(5), unless greater damages are expressly provided
  171  for. If the statute prohibiting unlawful discrimination provides
  172  an administrative remedy, the action for equitable relief and
  173  damages provided for in this section may be initiated only after
  174  the plaintiff has exhausted his or her administrative remedy.
  175  The term “public accommodations” does not include lodge halls or
  176  other similar facilities of private organizations which are made
  177  available for public use occasionally or periodically. The right
  178  to trial by jury is preserved in any case in which the plaintiff
  179  is seeking actual or punitive damages.
  180         Section 7. Section 760.08, Florida Statutes, is amended to
  181  read:
  182         760.08 Discrimination in places of public accommodation.
  183  All persons are shall be entitled to the full and equal
  184  enjoyment of the goods, services, facilities, privileges,
  185  advantages, and accommodations of any place of public
  186  accommodation, as defined in this chapter, without
  187  discrimination or segregation on the ground of race, color,
  188  national origin, sex, disability handicap, familial status, or
  189  religion.
  190         Section 8. Section 760.10, Florida Statutes, is amended to
  191  read:
  192         760.10 Unlawful employment practices.—
  193         (1) It is an unlawful employment practice for an employer
  194  to:
  195         (a) To Discharge or to fail or refuse to hire any
  196  individual, or otherwise to discriminate against any individual
  197  with respect to compensation, terms, conditions, or privileges
  198  of employment, because of such individual’s race, color,
  199  religion, sex, national origin, age, disability handicap, or
  200  marital status.
  201         (b) To Limit, segregate, or classify employees or
  202  applicants for employment in any way that which would deprive or
  203  tend to deprive any individual of employment opportunities, or
  204  adversely affect any individual’s status as an employee, because
  205  of such individual’s race, color, religion, sex, national
  206  origin, age, disability handicap, or marital status.
  207         (2) It is an unlawful employment practice for an employment
  208  agency to fail or refuse to refer for employment, or otherwise
  209  to discriminate against, any individual because of race, color,
  210  religion, sex, national origin, age, disability handicap, or
  211  marital status or to classify or refer for employment any
  212  individual on the basis of race, color, religion, sex, national
  213  origin, age, disability handicap, or marital status.
  214         (3) It is an unlawful employment practice for a labor
  215  organization to:
  216         (a) To Exclude or to expel from its membership, or
  217  otherwise to discriminate against, any individual because of
  218  race, color, religion, sex, national origin, age, disability
  219  handicap, or marital status.
  220         (b) To Limit, segregate, or classify its membership or
  221  applicants for membership, or to classify or fail or refuse to
  222  refer for employment any individual, in any way that which would
  223  deprive or tend to deprive any individual of employment
  224  opportunities, or adversely affect any individual’s status as an
  225  employee or as an applicant for employment, because of such
  226  individual’s race, color, religion, sex, national origin, age,
  227  disability handicap, or marital status.
  228         (c) To Cause or attempt to cause an employer to
  229  discriminate against an individual in violation of this section.
  230         (4) It is an unlawful employment practice for an any
  231  employer, labor organization, or joint labor-management
  232  committee controlling apprenticeship or other training or
  233  retraining, including on-the-job training programs, to
  234  discriminate against any individual because of race, color,
  235  religion, sex, national origin, age, disability handicap, or
  236  marital status in admission to, or employment in, any program
  237  established to provide apprenticeship or other training.
  238         (5) If Whenever, in order to engage in a profession,
  239  occupation, or trade, it is required that a person must receive
  240  a license, certification, or other credential;, become a member
  241  or an associate of any club, association, or other
  242  organization;, or pass an any examination, it is an unlawful
  243  employment practice for any person to discriminate against any
  244  other person seeking such license, certification, or other
  245  credential;, seeking to become a member or associate of such
  246  club, association, or other organization;, or seeking to take or
  247  pass such examination, because of such other person’s race,
  248  color, religion, sex, national origin, age, disability handicap,
  249  or marital status.
  250         (6) It is an unlawful employment practice for an employer,
  251  labor organization, employment agency, or joint labor-management
  252  committee to print, or cause to be printed or published, any
  253  notice or advertisement relating to employment, membership,
  254  classification, referral for employment, or apprenticeship or
  255  other training, indicating any preference, limitation,
  256  specification, or discrimination, based on race, color,
  257  religion, sex, national origin, age, absence of disability
  258  handicap, or marital status.
  259         (7) It is an unlawful employment practice for an employer,
  260  an employment agency, a joint labor-management committee, or a
  261  labor organization to discriminate against any person because
  262  that person has opposed any practice that which is an unlawful
  263  employment practice under this section, or because that person
  264  has made a charge, testified, assisted, or participated in any
  265  manner in an investigation, proceeding, or hearing under this
  266  section.
  267         (8) Notwithstanding any other provision of this section, it
  268  is not an unlawful employment practice under this part ss.
  269  760.01-760.10 for an employer, employment agency, labor
  270  organization, or joint labor-management committee to:
  271         (a) Take or fail to take any action on the basis of
  272  religion, sex, national origin, age, disability handicap, or
  273  marital status in those certain instances in which religion,
  274  sex, national origin, age, absence of a particular disability
  275  handicap, or marital status is a bona fide occupational
  276  qualification reasonably necessary for the performance of the
  277  particular employment to which such action or inaction is
  278  related.
  279         (b) Observe the terms of a bona fide seniority system, a
  280  bona fide employee benefit plan, such as a retirement, pension,
  281  or insurance plan, or a system that which measures earnings by
  282  quantity or quality of production and, which is not designed,
  283  intended, or used to evade the purposes of this part ss. 760.01
  284  760.10. However, no such employee benefit plan or system that
  285  which measures earnings does not shall excuse the failure to
  286  hire, and no such seniority system, employee benefit plan, or
  287  system that which measures earnings does not shall excuse the
  288  involuntary retirement of, any individual on the basis of any
  289  factor not related to the ability of such individual to perform
  290  the particular employment for which the such individual has
  291  applied or in which the such individual is engaged. This
  292  subsection does shall not prohibit be construed to make unlawful
  293  the rejection or termination of employment if when the
  294  individual applicant or employee has failed to meet bona fide
  295  requirements for the job or position sought or held or to
  296  require any changes in any bona fide retirement or pension
  297  programs or existing collective bargaining agreements during the
  298  life of the contract, and or for 2 years after October 1, 1981,
  299  whichever occurs first, nor shall this part does not act
  300  preclude such physical and medical examinations of applicants
  301  and employees as an employer may require of applicants and
  302  employees to determine fitness for the job or position sought or
  303  held.
  304         (c) Take or fail to take any action on the basis of age,
  305  pursuant to law or regulation governing any employment or
  306  training program designed to benefit persons of a particular age
  307  group.
  308         (d) Take or fail to take any action on the basis of marital
  309  status if that status is prohibited under its antinepotism
  310  policy.
  311         (9)  This section does shall not apply to any religious
  312  corporation, association, educational institution, or society
  313  that which conditions opportunities in the area of employment or
  314  public accommodation to members of that religious corporation,
  315  association, educational institution, or society or to persons
  316  who subscribe to its tenets or beliefs. This section does shall
  317  not prohibit a religious corporation, association, educational
  318  institution, or society from giving preference in employment to
  319  individuals of a particular religion to perform work connected
  320  with the carrying on by such corporations, associations,
  321  educational institutions, or societies of its various
  322  activities.
  323         (10) Each employer, employment agency, and labor
  324  organization shall post and keep posted in conspicuous places
  325  upon its premises a notice provided by the commission setting
  326  forth such information as the commission deems appropriate to
  327  effectuate the purposes of this part ss. 760.01-760.10.
  328         Section 9. Subsection (1) of section 760.11, Florida
  329  Statutes, is amended to read:
  330         760.11 Administrative and civil remedies; construction.—
  331         (1) Any person aggrieved by a violation of this part,
  332  including the Floridians with Disabilities Act, ss. 760.01
  333  760.10 may file a complaint with the commission within 365 days
  334  after of the alleged violation, naming the employer, employment
  335  agency, labor organization, or joint labor-management committee,
  336  public accommodation, or, in the case of an alleged violation of
  337  s. 760.10(5), the person responsible for the violation and
  338  describing the violation. Any person aggrieved by a violation of
  339  s. 413.08, s. 509.092, or ss. 553.501-553.513 may file a
  340  complaint with the commission within 365 days after of the
  341  alleged violation naming the person responsible for the
  342  violation and describing the violation. The commission, a
  343  commissioner, or the Attorney General may in like manner file
  344  such a complaint. On the same day the complaint is filed with
  345  the commission, the commission shall clearly stamp on the face
  346  of the complaint the date the complaint was filed with the
  347  commission on the face of the complaint. In lieu of filing the
  348  complaint with the commission, a complaint under this section
  349  may be filed with the federal Equal Employment Opportunity
  350  Commission or with any unit of government of the state which is
  351  a fair-employment-practice agency under 29 C.F.R. ss. 1601.70
  352  1601.80. If the date the complaint is filed is clearly stamped
  353  on the face of the complaint, that date is the date of filing.
  354  The date the complaint is filed with the commission for purposes
  355  of this section is the earliest date for of filing with the
  356  Equal Employment Opportunity Commission, the fair-employment
  357  practice agency, or the commission. The complaint must shall
  358  contain a short and plain statement of the facts describing the
  359  violation and the relief sought. The commission may require
  360  additional information to be in the complaint. The commission,
  361  Within 5 days after of the complaint being filed, the commission
  362  shall by registered mail send a copy of the complaint by
  363  registered mail to the person who allegedly committed the
  364  violation. The person who allegedly committed the violation may
  365  file an answer to the complaint within 25 days after of the date
  366  the complaint was filed with the commission. Any answer filed
  367  must shall be mailed to the aggrieved person by the person
  368  filing the answer. Both The complaint and the answer must shall
  369  be verified.
  370         Section 10. Section 760.15, Florida Statutes, is created to
  371  read:
  372         760.15 Floridians with Disabilities Act.—
  373         (1) This section may be cited as the Floridians with
  374  Disabilities Act.
  375         (2) The Legislature finds that, while the federal Americans
  376  with Disabilities Act applies to state and local government
  377  agencies and to many private entities within this state, there
  378  remain many barriers that prevent persons with disabilities from
  379  accessing the full range of public and private programs and
  380  services otherwise available in this state to persons without
  381  disabilities. The Legislature therefore intends to promote a
  382  greater awareness by the state’s public and private entities of
  383  their obligations under the federal act by enacting the
  384  Americans with Disabilities Act as the law of this state, and to
  385  thereby make the civil and administrative remedies of the
  386  Florida Civil Rights Act of 1992 available to redress violations
  387  of the federal act.
  388         (3) The federal Americans with Disabilities Act of 1990, as
  389  amended by the Americans with Disabilities Amendments Act of
  390  2008, is adopted as the law of this state and made part of the
  391  Florida Civil Rights Act of 1992, to be administered by the
  392  Florida Commission on Human Relations.
  393         (4) The provisions of this part, including the civil and
  394  administrative remedies for alleged violations, apply to this
  395  section, unless expressly exempted.
  396         (5) An individual may not seek relief under this section if
  397  that individual has commenced an action in state or federal
  398  court under the federal Americans with Disabilities Act.
  399         (6) This section does not expand substantive protections
  400  against discrimination based on disability beyond those provided
  401  in the federal Americans with Disabilities Act or in other
  402  sections of state law.
  403         Section 11. This act shall take effect July 1, 2010.

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