2017 -- H 5696

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LC001597

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     STATE OF RHODE ISLAND

IN GENERAL ASSEMBLY

JANUARY SESSION, A.D. 2017

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A N   A C T

RELATING TO PROPERTY -- RHODE ISLAND FAIR HOUSING PRACTICES ACT

     

     Introduced By: Representatives Vella-Wilkinson, Lancia, Lima, Williams, and Canario

     Date Introduced: March 01, 2017

     Referred To: House Judiciary

     It is enacted by the General Assembly as follows:

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

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

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     34-37-5. Prevention of unlawful housing practices.

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     (a) The commission is empowered and directed to prevent any person from violating any

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of the provisions of this chapter, provided that before instituting a formal proceeding it shall

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

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with this chapter.

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

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

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

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

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

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

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

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

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

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

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

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

 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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decision of the case after hearing.

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

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

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examine and cross-examine witnesses.

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

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rules of evidence prevailing in the courts.

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

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

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predetermined pattern of discrimination in housing.

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

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

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further testimony or hear argument.

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

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

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

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

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

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

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

 

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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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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under this title.

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

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

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

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

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

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deems proper.

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

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

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

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

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

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

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

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

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

 

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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.

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

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

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

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

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

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

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

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

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

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damages as the court deems just and proper.

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

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

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

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

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

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

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

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

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

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determined.

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

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

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provided in section 34-37-6.

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

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

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arises.

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

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

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

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

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

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

 

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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.

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

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over all other civil matters then pending before the court.

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

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

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

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

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

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

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

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

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

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

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with a copy of the notice sent to all parties.

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

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

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

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

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

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or mediate.

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

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

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

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

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of an election under subsection (n);

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

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

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action;

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

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

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

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

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

 

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the settlement.

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

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

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     42-87-5. Enforcement of anti-discrimination provisions.

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     (a) Except as specifically set forth in subsections (b) and (c), the Rhode Island

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commission for human rights is empowered and directed to prevent any person from violating

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any of the provisions of sections 42-87-1 -- 42-87-4, provided that before instituting a formal

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

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

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

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of safeguarding civil liberties or rights of persons with disabilities, the individual or organization

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being hereinafter referred to as the "complainant", makes a charge to the commission that any

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person, agency, bureau, corporation or association, hereinafter referred to as the "respondent", has

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violated or is violating any of the provisions of sections 42-87-1 -- 42-87-4, the commission may

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proceed in the same manner and with the same powers as provided in sections 28-5-16 -- 28-5-26,

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and the provisions of sections 28-5-13 and 28-5-16 -- 28-5-36, as to the powers, duties and rights

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of the commission, its members, hearing examiners, the complainant, respondent, interviewer,

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and the court shall apply in any proceedings under this section. Provided further, that with respect

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to charges that respondents have violated the provisions of this chapter with respect to

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discrimination in housing, the provisions of §34-37-5 shall also apply.

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

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

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physical inaccessibility of buildings and structures.

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

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

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

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

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

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

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by this section.

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

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

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

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

 

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complaint as to the respondent.

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

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

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

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

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

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this chapter.

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

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

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

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

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

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

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

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

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

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forth in chapter 39 of title 16.

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

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

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     40-9.1-4. Enforcement of anti-discrimination provisions.

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     The Rhode Island commission for human rights is empowered and directed, as

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hereinafter provided, to prevent any person from violating any of the provisions of this chapter;

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

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

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

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

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

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

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

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provisions of this chapter, the said commission may proceed in the same manner and with the

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same powers as provided in sections 28-5-16 -- 28-5-27, and the provisions of sections 28-5-13

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

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

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proceedings under this section. Provided further, that with respect to charges that respondents

 

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have violated the provisions of this chapter with respect to discrimination in housing, the

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provisions of §34-37-5 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

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

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

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     This act would take effect upon passage.

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