Utah Admin. Code R82-2-105 - Americans with Disabilities Act Grievance Procedures
(1) Authority and Purpose.
(a) This rule is made under authority of
sections 32B-2-202 and
63G-3-201. As required by
28 CFR
35.107, the Department of Alcoholic Beverage
Services, as a public entity that employs more than 50 persons, adopts and
publishes the grievance procedures within this rule for the prompt and
equitable resolution of complaints alleging any action prohibited by Title II
of the Americans with Disabilities Act, as amended.
(b) The purpose of this rule is to implement
the provisions of 28 CFR 35 which in turn implements Title II of the Americans
with Disabilities Act, which provides that no individual shall be excluded from
participation in or be denied the benefits of the services, programs, or
activities of a public entity, or be subjected to discrimination by the
Department because of a disability.
(2) Definitions.
(a) "ADA Coordinator" means the employee
assigned by the executive director to investigate and facilitate the prompt and
equitable resolution of complaints filed by qualified persons with
disabilities. The ADA Coordinator may be a representative of the Department of
Human Resource Management assigned to the Department.
(b) "Department" means the Department of
Alcoholic Beverage Services.
(c)
"Designee" means an individual appointed by the executive director or a
director to investigate allegations of ADA non-compliance in the event the ADA
Coordinator is unable or unwilling to conduct an investigation for any reason,
including a conflict of interest. A designee does not have to be an employee of
the Department; however, the designee must have a working knowledge of the
responsibilities and obligations required of employers and employees by the
ADA.
(d) "Director" means the head
of the division of the Department affected by a complaint filed under this
rule.
(e) "Disability" means, with
respect to an individual, a physical or mental impairment that substantially
limits one or more of the major life activities of such individual; a record of
such an impairment; or being regarded as having such an impairment.
(f) "Executive Director" means the executive
director of the Department.
(g)
"Major life activities" include caring for oneself, performing manual tasks,
seeing, hearing, eating, sleeping, walking, standing, lifting, bending,
speaking, breathing, learning, reading, concentrating, thinking, and working. A
major life activity also includes the operation of a major bodily function,
such as functions of the immune system, normal cell growth, digestive, bowel,
bladder, neurological, brain, respiratory, circulatory, endocrine, and
reproductive functions.
(h)
"Qualified Individual" means an individual who meets the essential eligibility
requirements for the receipt of services or the participation in programs or
activities provided by the Department. A "qualified individual" is also an
individual who, with or without reasonable accommodation, can perform the
essential functions of the employment position that individual holds or
desires.
(3) Filing of
Complaints.
(a) Any qualified individual may
file a complaint alleging noncompliance with Title II of the Americans with
Disabilities Act, as amended, or the federal regulations promulgated
thereunder.
(b) Qualified
individuals shall file their complaints with the Department's ADA Coordinator,
unless the complaint alleges that the ADA Coordinator was non-compliant, in
which case qualified individuals shall file their complaints with the
Department's designee.
(c)
Qualified individuals shall file their complaints within 90 days after the date
of the alleged noncompliance to facilitate the prompt and effective
consideration of pertinent facts and appropriate remedies; however, the
Executive Director has the discretion to direct that the grievance process be
utilized to address legitimate complaints filed more than 90 days after alleged
noncompliance.
(d) Each complaint
shall:
(i) include the complainant's name and
address;
(ii) include the nature
and extent of the individual's disability;
(iii) describe the Department's alleged
discriminatory action in sufficient detail to inform the Department of the
nature and date of the alleged violation;
(iv) describe the action and accommodation
desired; and
(v) be signed by the
complainant or by his or her legal representative.
(e) Complaints filed on behalf of classes or
third parties shall describe or identify by name, if possible, the alleged
victims of discrimination.
(f) If
the complaint is not in writing, the ADA coordinator or designee shall
transcribe or otherwise reduce the complaint to writing upon receipt of the
complaint.
(g) By the filing of a
complaint or a subsequent appeal, the complainant authorizes necessary parties
to conduct a confidential review all relevant information, including records
classified as private or controlled under the Government Records Access and
Management Act, subsection
63G-2-302(1)(b)
and section
63G-2-304, consistent with
42 U.S.C.
12112(d)(4)(A), (B), and (C)
and 42 U.S.C.
12112(d)(3)(B) and (C), and
relevant information otherwise protected by statute, rule, regulation, or other
law.
(4) Investigation of
Complaints.
(a) The ADA coordinator or
designee shall investigate complaints to the extent necessary to assure all
relevant facts are collected and documented. This may include gathering all
information listed in (3)(d) and subpart (g) of this rule if it is not made
available by the complainant.
(b)
The ADA coordinator or designee may seek assistance from the Attorney General's
staff, and the Department's human resource and budget staff in determining what
action, if any, should be taken on the complaint. The ADA coordinator or
designee may also consult with the director of the affected division in making
a recommendation.
(c) The ADA
coordinator or designee shall consult with representatives from other state
agencies that may be affected by the decision, including the Office of Planning
and Budget, the Department of Human Resource Management, the Division of Risk
Management, the Division of Facilities Construction Management, and the Office
of the Attorney General before making any recommendation that would:
(i) involve an expenditure of funds beyond
what is reasonably able to be accommodated within the applicable line item so
that it would require a separate appropriation;
(ii) require facility modifications;
or
(iii) require reassignment to a
different position.
(5) Recommendation and Decision.
(a) Within 15 working days after receiving
the complaint, the ADA coordinator or designee shall recommend to the director
what action, if any, should be taken on the complaint. The recommendation shall
be in writing or in another accessible format suitable to the
complainant.
(b) If the ADA
coordinator or designee is unable to make a recommendation within the 15
working day period, the complainant shall be notified in writing, or in another
accessible format suitable to the complainant, stating why the recommendation
is delayed and what additional time is needed.
(c) The director may confer with the ADA
coordinator or designee and the complainant and may accept or modify the
recommendation to resolve the complaint. The director shall render a decision
within 15 working days after the director's receipt of the recommendation from
the ADA coordinator or designee. The director shall take all reasonable steps
to implement the decision. The director's decision shall be in writing, or in
another accessible format suitable to the complainant, and shall be promptly
delivered to the complainant.
(6) Appeals.
(a) The complainant may appeal the director's
decision to the executive director within 10 working days after the
complainant's receipt of the director's decision.
(b) The appeal shall be in writing or in
another accessible format reasonably suited to the complainant's
ability.
(c) The executive director
may name a designee to assist on the appeal. The ADA coordinator and the
director's designee may not also be the executive director's designee for the
appeal.
(d) In the appeal the
complainant shall describe in sufficient detail why the decision does not
effectively address the complainant's needs.
(e) The executive director or designee shall
review the ADA coordinator's recommendation, the director's decision, and the
points raised on appeal before reaching a decision. The executive director may
direct additional investigation as necessary. The executive director shall
consult with representatives from other state agencies that would be affected
by the decision, including the Office of Planning and Budget, the Department of
Human Resource Management, the Division of Risk Management, the Division of
Facilities Construction Management, and the Office of the Attorney General
before making any decision that would:
(i)
involve an expenditure of funds beyond what is reasonably able to be
accommodated within the applicable line item so that it would require a
separate appropriation;
(ii) require
facility modifications; or
(iii)
require reassignment to a different position.
(f) The executive director shall issue a
final decision within 15 working days after receiving the complainant's appeal.
The decision shall be in writing, or in another accessible format suitable to
the complainant, and shall be promptly delivered to the complainant.
(g) If the executive director or designee is
unable to reach a final decision within the 15 working day period, the
complainant shall be notified in writing, or by another accessible format
suitable to the complainant, why the final decision is being delayed and the
additional time needed to reach a final decision.
(7) Record Classification.
(a) Records created in administering this
rule are classified as "protected" under subsections
63G-2-305(9), (22), (24), and
(25).
(b) After issuing a decision under subpart
(5) or a final decision upon appeal under subpart (6), portions of the record
pertaining to the complainant's medical condition shall be classified as
"private" under subsection
63G-2-302(1)(b)
or "controlled" under section
63G-2-304, consistent with
42 U.S.C.
12112(d)(4)(A), (B), and (C)
and 42 U.S.C.
12112(d)(3)(B) and (C), at
the option of the ADA coordinator.
(c) The written decision of the division
director or executive director shall be classified as "public," and all other
records, except controlled records under subpart (7)(b), classified as
"private."
(8)
Relationship to Other Laws. This rule does not prohibit or limit the use of
remedies available to individuals under:
(a)
the state Anti-Discrimination Complaint Procedures, sections
34A-5-107 and
67-19-32;
(c) any other Utah or federal law that
provides equal or greater protection for the rights of individuals with
disabilities.
Notes
State regulations are updated quarterly; we currently have two versions available. Below is a comparison between our most recent version and the prior quarterly release. More comparison features will be added as we have more versions to compare.
No prior version found.