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U.S. Code as of:
01/19/04
Section 12188. Enforcement
(a) In general
(1) Availability of remedies and procedures
The remedies and procedures set forth in section 2000a-3(a) of
this title are the remedies and procedures this subchapter
provides to any person who is being subjected to discrimination
on the basis of disability in violation of this subchapter or who
has reasonable grounds for believing that such person is about to
be subjected to discrimination in violation of section 12183 of
this title. Nothing in this section shall require a person with a
disability to engage in a futile gesture if such person has
actual notice that a person or organization covered by this
subchapter does not intend to comply with its provisions.
(2) Injunctive relief
In the case of violations of sections 12182(b)(2)(A)(iv) and
section )1(! 12183(a) of this title, injunctive relief shall
include an order to alter facilities to make such facilities
readily accessible to and usable by individuals with disabilities
to the extent required by this subchapter. Where appropriate,
injunctive relief shall also include requiring the provision of
an auxiliary aid or service, modification of a policy, or
provision of alternative methods, to the extent required by this
subchapter.
(b) Enforcement by Attorney General
(1) Denial of rights
(A) Duty to investigate
(i) In general
The Attorney General shall investigate alleged violations
of this subchapter, and shall undertake periodic reviews of
compliance of covered entities under this subchapter.
(ii) Attorney General certification
On the application of a State or local government, the
Attorney General may, in consultation with the Architectural
and Transportation Barriers Compliance Board, and after prior
notice and a public hearing at which persons, including
individuals with disabilities, are provided an opportunity to
testify against such certification, certify that a State law
or local building code or similar ordinance that establishes
accessibility requirements meets or exceeds the minimum
requirements of this chapter for the accessibility and
usability of covered facilities under this subchapter. At any
enforcement proceeding under this section, such certification
by the Attorney General shall be rebuttable evidence that
such State law or local ordinance does meet or exceed the
minimum requirements of this chapter.
(B) Potential violation
If the Attorney General has reasonable cause to believe that
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(i) any person or group of persons is engaged in a pattern
or practice of discrimination under this subchapter; or
(ii) any person or group of persons has been discriminated
against under this subchapter and such discrimination raises
an issue of general public importance,
the Attorney General may commence a civil action in any
appropriate United States district court.
(2) Authority of court
In a civil action under paragraph (1)(B), the court -
(A) may grant any equitable relief that such court considers
to be appropriate, including, to the extent required by this
subchapter -
(i) granting temporary, preliminary, or permanent relief;
(ii) providing an auxiliary aid or service, modification of
policy, practice, or procedure, or alternative method; and
(iii) making facilities readily accessible to and usable by
individuals with disabilities;
(B) may award such other relief as the court considers to be
appropriate, including monetary damages to persons aggrieved
when requested by the Attorney General; and
(C) may, to vindicate the public interest, assess a civil
penalty against the entity in an amount -
(i) not exceeding $50,000 for a first violation; and
(ii) not exceeding $100,000 for any subsequent violation.
(3) Single violation
For purposes of paragraph (2)(C), in determining whether a
first or subsequent violation has occurred, a determination in a
single action, by judgment or settlement, that the covered entity
has engaged in more than one discriminatory act shall be counted
as a single violation.
(4) Punitive damages
For purposes of subsection (b)(2)(B) of this section, the term
"monetary damages" and "such other relief" does not include
punitive damages.
(5) Judicial consideration
In a civil action under paragraph (1)(B), the court, when
considering what amount of civil penalty, if any, is appropriate,
shall give consideration to any good faith effort or attempt to
comply with this chapter 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.
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