2014 -- H 7298

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LC003925

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     STATE OF RHODE ISLAND

IN GENERAL ASSEMBLY

JANUARY SESSION, A.D. 2014

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A N   A C T

RELATING TO PROPERTY -- RHODE ISLAND FAIR HOUSING PRACTICES ACT

     Introduced By: Representatives Ajello, Walsh, Blazejewski, Cimini, and Handy

     Date Introduced: January 30, 2014

     Referred To: House Judiciary

     It is enacted by the General Assembly as follows:

     SECTION 1. Section 34-37-5 of the General Laws in Chapter 34-37 entitled "Rhode

Island Fair Housing Practices Act" is hereby amended to read as follows:

     34-37-5. Prevention of unlawful housing practices. -- (a) The commission is

empowered and directed to prevent any person from violating any of the provisions of this

chapter, provided that before instituting a formal proceeding it shall attempt by informal methods

of conference, persuasion, and conciliation to induce compliance with this chapter.

      (b) Upon the commission's own initiative or whenever an aggrieved individual or an

organization chartered for the purpose of or engaged in combating discrimination or racism or of

safeguarding civil liberties, that organization acting on behalf of one or more individuals being

hereinafter referred to as the complainant, makes a charge, in writing, under oath, to the

commission that any person, agency, bureau, corporation, or association, hereinafter referred to as

the respondent, has violated or is violating, to the best of complainant's knowledge and belief, any

of the provisions of this chapter, and that the alleged discriminatory housing practice has occurred

or terminated within one year of the date of filing, the commission may initiate a preliminary

investigation and if it shall determine after the investigation that it is probable that unlawful

housing practices have been or are being engaged in, it shall endeavor to eliminate the unlawful

housing practices by informal methods of conference, conciliation, and persuasion. Nothing said

or done during these endeavors may be used as evidence in any subsequent proceeding. If after

the investigation and conference, the commission is satisfied that any unlawful housing practice

of the respondent will be eliminated, it may, with the consent of the complainant, treat the charge

as conciliated, and entry of that disposition shall be made on the records of the commission. If the

commission fails to effect the elimination of the unlawful housing practices and to obtain

voluntary compliance with this chapter, or, if the circumstances warrant, in advance of any

preliminary investigation or endeavors, the commission shall have the power to issue and cause to

be served upon any person or respondent a complaint stating the charges in that respect and

containing a notice of hearing before the commission, a member thereof, or a hearing examiner at

a place therein fixed to be held not less than ten (10) days after the service of the complaint.

      (c) The commission, member thereof, or hearing examiner conducting the hearing shall

have the power reasonably and fairly to amend any written complaint at any time prior to the

issuance of an order based thereon. The respondents shall have like power to amend its answer to

the original or amended complaint at any time prior to the issuance of the order. The

commissioner assigned to the preliminary hearing of any charge shall take no part in the final

hearing except as a witness upon competent matters and will have no part in the determination or

decision of the case after hearing.

      (d) The respondent shall have the right to file an answer to the complaint and shall

appear at the hearing in person or otherwise with or without counsel to present evidence and to

examine and cross-examine witnesses.

      (e) In any proceeding the commission, its member, or its agent shall not be bound by the

rules of evidence prevailing in the courts.

      (f) The commission shall in ascertaining the practices followed by the respondent take

into account all evidence, statistical or otherwise, which may tend to prove the existence of a

predetermined pattern of discrimination in housing.

      (g) The testimony taken at the hearing shall be under oath and shall be reduced to writing

and filed with the commission. Thereafter, in its discretion, the commission upon notice may take

further testimony or hear argument.

      (h)(1) If upon all the testimony taken the commission shall determine that the respondent

has engaged in or is engaging in unlawful housing practices, the commission shall state its

findings of fact and shall issue and cause to be served on the respondent an order requiring the

respondent to cease and desist from the unlawful housing practices, and to take such further

affirmative or other action as will effectuate the purposes of this chapter.

      (2) The commission may also order the respondent to pay the complainant damages

sustained thereby; costs, including reasonable attorney's fees incurred at any time in connection

with the commission of the unlawful act, and civil penalties, any amounts awarded to be

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deposited in the state treasury. The civil penalty shall be (i) an amount not exceeding ten

thousand dollars ($10,000) if the respondent has not been adjudged to have committed any prior

discriminatory housing practice; (ii) in an amount not exceeding twenty-five thousand dollars

($25,000) if the respondent has been adjudged to have committed one other discriminatory

housing practice during the five (5) year period ending on the date of filing this charge; and (iii)

in an amount not exceeding fifty thousand dollars ($50,000) if the respondent has been adjudged

to have committed two (2) or more discriminatory housing practices during the seven (7) year

period ending on the date of the filing of this charge; except that if the acts constituting the

discriminatory housing practice that is the object of the charge are committed by the same natural

person who has been previously adjudged to have committed acts constituting a discriminatory

housing practice, then the civil penalties set forth in (ii) and (iii) may be imposed without regard

to the period of time within which any subsequent discriminatory housing practice occurred.

When determining the amount of civil penalties, the commission shall consider as a mitigating

factor whether the respondent has acted in good faith and whether the respondent has actively

engaged in regular antidiscrimination educational programs. Provided that no order shall affect

any contract, sale, encumbrance, or lease consummated before the issuance of the order and

involving a bona fide purchaser, encumbrancer or tenant without actual notice of the charge filed

under this title.

      (i) If the commission shall find that no probable cause exists for crediting the charges, or,

if upon all the evidence, it shall find that a respondent has not engaged in unfair housing

practices, the commission shall state its findings of fact and shall issue and cause to be served on

the complainant an order dismissing the complaint as to the respondent. A copy of the order shall

be delivered in all cases to the attorney general and such other public officers as the commission

deems proper.

      (j) Until a transcript of the record in a case shall be filed in a court as provided in

subsection (m), the commission may at any time, upon reasonable notice, and in such manner as

it shall deem proper, modify or set aside, in whole or in part, any of its findings or orders.

      (k) Until such time as a hearing is convened pursuant to this section, no publicity shall be

given to any proceedings before the commission, either by the commission or any employee

thereof, the complainant, or the respondent, except that in the event of a conciliation agreement

the agreement shall be made public unless the complainant and respondent otherwise agree and

the commission determines that disclosure is not required to further the purposes of this chapter.

After the complaint issues and before an order issues, the commission shall not initiate any public

notice of any charge or complaint before the commission, however, the commission may respond

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to inquiries about the status of a complaint.

      (l) A complainant may seek a right to sue in state court if not less than one hundred and

twenty (120) days and not more than two (2) years have elapsed from the date of filing of a

charge, if the commission has been unable to secure a settlement agreement or conciliation

agreement and if the commission has not commenced hearing on a complaint. The commission

shall grant the right to sue within thirty (30) days after receipt of the request. This shall terminate

all proceedings before the commission and shall give to the complainant the right to commence

suit in the superior court within any county as provided in section 28-5-28 within ninety (90) days

after the granting of the request. Any party may claim a trial by jury. The superior court may

make orders consistent with subsection (h) and may also award punitive damages and such other

damages as the court deems just and proper.

      (m)(1) The commission is further empowered to file a complaint in the superior court in

any county in which the unlawful housing practice allegedly occurs, or has occurred, or in which

a defendant resides or maintains a business office, or in Providence County, seeking injunctive

relief, including a temporary restraining order, against the defendant.

      (2) No preliminary injunction shall be effective for more than thirty (30) days; provided

that, if the defendant has sought judicial review of an order of the commission issued pursuant to

this section, or if the commission has sought a decree of the court for the enforcement of the

order, the preliminary injunction shall remain in full force and effect until such time as the

judicial review or the commission's petition for the decree of enforcement is finally heard and

determined.

      (3) In any proceeding under this subsection, the commission may, if the prayer of the

original or amended complaint so requests, proceed at the proper time to obtain the relief

provided in section 34-37-6.

      (4) The application by the commission for injunctive relief shall not prevent the

commission from continuing to prosecute the proceeding before it out of which the application

arises.

      (5) Whenever a complaint shall be filed under the provisions of this subsection, the state

shall be liable, in an action brought against it, for the payment of such costs and damages as may

have been incurred or suffered by the defendant should final judgment be entered upon the

complaint in favor of the defendant, or should the commission, having been denied temporary

relief after the entry of a restraining order, fail to prosecute the matter further, or should the

commission, having been granted temporary relief, fail to prosecute the matter further, unless, in

the latter two (2) instances, failure to prosecute is caused by the making of an agreed settlement

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of any kind with the defendant, including a conciliation agreement.

      (6) All proceedings taken pursuant to the provisions of this section shall take precedence

over all other civil matters then pending before the court.

      (n) When a complaint issues after a finding of probable cause under subsection (b), any

party may elect to have the claims asserted in that complaint decided in a civil action in lieu of a

hearing under subsections (b) -- (k). The election must be made not later than twenty (20) days

after the receipt by the electing person of service of the complaint under subsection (b). The

person making the election shall give notice of doing so to the commission, the attorney general,

and to all other complainants and respondents to whom the charge relates.

     (n)(1) The complainant or the respondent may elect, within twenty (20) days after receipt

of a finding of probable cause, to terminate by written notice to the commission all proceedings

before the commission and have the case heard in the superior court. In the event of an election to

terminate the proceedings, the commission shall issue a right to sue notice to the complaint with a

copy of the notice sent to all parties.

     (2) The complainant shall have the right to commence suite in the superior court within

any county as provided in § 25-5-28 within ninety (90) days of the date of the right to sue notice.

Either party may claim a trial by jury in the superior court.

     (3) Notwithstanding the termination of proceedings before the commission upon the

granting of the right to sue notice, the parties may agree to have the commission seek to conciliate

or mediate.

     (o) If an election is made under subsection (n):

      (1) The complainant, the commission, or the attorney general may commence a civil

action on behalf of the aggrieved person in the superior court within any county as provided in

section 28-5-28 within ninety (90) days of the date of the right to sue notice after receipt of notice

of an election under subsection (n);

      (2) Any party may claim a trial by jury. Any aggrieved person with respect to the issues

to be determined in a civil action under this subsection may intervene as of right in that civil

action;

      (3) The superior court may make orders consistent with subsection (h) and may also

award punitive damages and such damages as the court deems just and proper, provided that the

court shall not enter a consent order, dismissal stipulation or judgment settling claims of

discrimination in an action or proceeding under this chapter, unless the parties and their counsel

attest that a waiver of all or substantially all attorney's fees was not compelled as a condition of

the settlement.

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     SECTION 2. Section 42-87-5 of the General Laws in Chapter 42-87 entitled "Civil

Rights of People With Disabilities" is hereby amended to read as follows:

     42-87-5. Enforcement of anti-discrimination provisions. -- (a) Except as specifically

set forth in subsections (b) and (c), the Rhode Island commission for human rights is empowered

and directed to prevent any person from violating any of the provisions of sections 42-87-1 -- 42-

87-4, provided that before instituting a formal hearing it shall attempt by informal methods of

conference, persuasion, and conciliation, to induce compliance with those sections. Upon the

commission's own initiative or whenever an aggrieved individual or an organization chartered for

the purpose of combating discrimination or of safeguarding civil liberties or rights of persons

with disabilities, the individual or organization being hereinafter referred to as the "complainant",

makes a charge to the commission that any person, agency, bureau, corporation or association,

hereinafter referred to as the "respondent", has violated or is violating any of the provisions of

sections 42-87-1 -- 42-87-4, the commission may proceed in the same manner and with the same

powers as provided in sections 28-5-16 -- 28-5-26, and the provisions of sections 28-5-13 and 28-

5-16 -- 28-5-36, as to the powers, duties and rights of the commission, its members, hearing

examiners, the complainant, respondent, interviewer, and the court shall apply in any proceedings

under this section. Provided further, that with respect to changes that respondents have violated

the provisions of this chapter with respect to discrimination in housing, the provisions of § 34-37-

35 shall also apply.

      (b) (1) The governor's commission on disabilities is empowered and directed to

investigate and hear all complaints relating to alleged violations of this chapter relating to the

physical inaccessibility of buildings and structures.

      (2) The governor's commission on disabilities shall have the power and duties to adopt,

promulgate, amend and rescind rules and regulations to effectuate the provisions of this section.

      (i) Prior to instituting a formal hearing, the governor's commission on disabilities shall

attempt by informal methods of conference, persuasion and conciliation, to induce compliance

with this chapter. If the complaint or any portion of the complaint cannot be resolved by these

informal methods, the governor's commission on disabilities shall conduct a hearing as provided

by this section.

      (ii) If the governor's commission on disabilities shall upon all the evidence find that the

respondent has not engaged in violations of the civil rights of individuals with disabilities caused

by the physical inaccessibility of buildings and structures, the commission shall state its findings

of fact and shall issue and cause to be served on the complainant an order dismissing the

complaint as to the respondent.

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      (iii) If upon all the testimony taken, the commission shall determine that the respondent

has engaged in violations of the civil rights of individuals with disabilities caused by the physical

inaccessibility of buildings and structures, then the commission shall state its findings of fact and

shall issue and cause to be served upon the respondent an order requiring the respondent to cease

and desist from such practices, and to take any further action that will effectuate the purposes of

this chapter.

      (iv) Any complainant or respondent claiming to be aggrieved by a final order of the

commission may obtain judicial review of the final order; any party may obtain an order of court

for enforcement of a final order of the commission. These proceedings shall be brought in the

superior court within any county where the unlawful practices, which are the subject of the

commission's order, were committed or where any respondent, required in the order to cease and

desist from unlawful practices or to take other affirmative action resides or transacts business.

      (c) The Rhode Island department of elementary and secondary education is empowered

and directed to hear all complaints relating to violations of this chapter in the area of elementary

and secondary education. Those complaints shall be heard in accordance with the process set

forth in chapter 39 of title 16.

     SECTION 3. Section 40-9.1-4 of the General Laws in Chapter 40-9.1 entitled "Equal

Rights of Blind and Deaf Persons to Public Facilities" is hereby amended to read as follows:

     40-9.1-4. Enforcement of anti-discrimination provisions. -- The Rhode Island

commission for human rights is empowered and directed, as hereinafter provided, to prevent any

person from violating any of the provisions of this chapter; provided, that before instituting a

formal hearing it shall attempt by informal methods of conference, persuasion and conciliation, to

induce compliance with those sections. Upon the commission's own initiative or whenever an

aggrieved individual or an organization chartered for the purpose of combating discrimination or

of safeguarding civil liberties or rights of persons with disabilities, such individual or

organization being hereinafter referred to as "the complainant", makes a charge to the

commission that any person, agency, bureau, corporation or association, hereinafter referred to as

"the respondent", has violated or is violating any of the provisions of this chapter, the said

commission may proceed in the same manner and with the same powers as provided in sections

28-5-16 -- 28-5-27, and the provisions of sections 28-5-13 and 28-5-16 -- 28-5-36, as to the

powers, duties and rights of the commission, its members, hearing examiners, the complainant,

respondent, interviewer and the court shall apply in any proceedings under this section. Provided

further, that with respect to changes that respondents have violated the provisions of this chapter

with respect to discrimination in housing, the provisions of § 34-37-35 shall also apply.

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     SECTION 4. This act shall take effect upon passage.

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EXPLANATION

BY THE LEGISLATIVE COUNCIL

OF

A N   A C T

RELATING TO PROPERTY -- RHODE ISLAND FAIR HOUSING PRACTICES ACT

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     This act would make uniform the process for filing a complaint in superior court when

there has been an election to terminate proceedings before the commission after a finding of

probable cause under the fair housing practices act and other anti-discrimination laws.

     This act would take effect upon passage.

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