GENERAL ASSEMBLY OF NORTH CAROLINA

SESSION 1995

S	1 

SENATE BILL 592

Short Title:  Fayetteville Fair Housing Amendments.	(Local)

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Sponsors: Senators Edwards and Rand.

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Referred to:  Local Government and Regional Affairs

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April 5, 1995

A BILL TO BE ENTITLED
AN ACT TO MODIFY THE PROVISIONS OF THE CHARTER OF THE CITY OF FAYETTEVILLE CONCERNING FAIR HOUSING.
The General Assembly of North Carolina enacts:
Section 1. Article 8 of the Charter of the City of Fayetteville, being Chapter 557, Session Laws of 1979, as enacted by Chapter 355 of the Session Laws of 1989, reads as rewritten:
"Article 8. Fair Housing.
"Sec. 8.30.  Equal housing.  The City Council shall have the power to adopt ordinances prohibiting discrimination in real estate transactions on the basis of race, color, sex, religion, handicap, familial status, or national 
				origin in the sale, rental, or advertising of dwellings, in the provision of brokerage services, or in the availability of residential real estate related transactions.  Such ordinances may regulate or prohibit any act, practice, activity, or procedure related directly or indirectly, to the sale, financing, or rental of public or private housing, that affects or may tend to affect the availability or desirability of housing on an equal basis to all persons, and may:
(1)	Provide that discrimination includes:
a.	A refusal to permit, at the expense of a handicapped person, reasonable modifications of existing premises occupied or to be occupied by such person if such modification may be necessary to afford such person full enjoyment of the premises, except that, in the case of a rental, the landlord may, where it is reasonable to do so, condition permission for a modification on the renter agreeing to restore the interior of the premises to the condition that existed before the modification, reasonable wear and tear excepted;
b.	A refusal to make reasonable accommodations in rules, policies, practices, or services when such accommodations may be necessary to afford such handicapped person equal opportunity to use and enjoy a dwelling; or
c.	Failure to design and construct those covered multifamily dwellings available for first occupancy after March 13, 1991, in such a manner that:
1.	The public use and common use portions of such dwelling are readily accessible to and usable by handicapped persons;
2.	All the doors designed to allow passage into and within all premises within such dwelling are sufficiently wide to allow passage by handicapped persons in wheelchairs; and
3.	All premises within such dwellings contain the following features of adaptive design:
I.	An accessible route into and through the dwelling;
II.	Light switches, electrical outlets, thermostats, and other environmental controls in accessible locations;
III.	Reinforcements in the bathroom wall to allow later installation of grab bars; and
IV.	Usable kitchen and bathrooms such that an individual in a wheelchair can maneuver about the space.
	Compliance with the appropriate requirements of the American National Standard for Buildings and Facilities Providing Accessibility and Usability for Physically Handicapped People (commonly cited as 'ANSI A117.1-1968') suffices to satisfy the requirements of subdivision c.3. of this subdivision.
(2)	Provide that Fayetteville Human Relations Commission shall have the power to:
a.	Receive, initiate, investigate, seek to conciliate, hold hearings, and make recommendations to parties named in complaints alleging violations of this Article, approve or disapprove plans to eliminate or reduce discriminatory practices or the effects of discriminatory practices, and monitor compliance with the terms of such plans.
b.	Apply, upon an affirmative vote of a majority, a quorum being present and voting, to the Cumberland County Superior Court upon the failure of any person to respond to or comply with a lawful interrogatory, subpoena, or request for the production of relevant evidence or possible sources of evidence for an order requiring such person to respond or comply.  The court shall have jurisdiction to issue such order after notice to all proper parties.  On petition of the person to whom the subpoena is directed, the court may vacate or modify the subpoena.
c.	Petition the court, with the approval of the Fayetteville City Council, for any appropriate relief, if the Commission determines, following a hearing as provided in this ordinance, that there is a reasonable cause to believe that a violation of this Article has occurred, and if efforts at conciliation have not been concluded to the satisfaction of the Commission, or if the terms of any conciliation agreement negotiated by the Commission under the provision of this Article or said ordinance are not being complied with by respondent(s).
d.	Adopt, promulgate, amend, and rescind such rules and regulations to effectuate the purposes and policies of this Article or said ordinance and the policies and practices of the Commission in connection therewith, including regulations requiring the posting or inclusion in advertising material of notices prepared or approved by the Commission, and regulations as to filing, approval, or disapproval of plans to eliminate or reduce the effects of discriminatory practices.  The Commission may authorize its staff to receive, initiate, seek to conciliate, or carry out investigative duties as specified in this Article and the rules and regulations adopted by the Commission.  Such rules and regulations shall be approved by the City Council and shall only be adopted, amended, or rescinded after the Commission holds a public hearing.  A copy of the text of the proposed rule, amendment, or decision shall be available for public inspection and copying at the office of the Commission.
e.	Impanel a hearing board appointed by the City Council to hear complaints, which board shall consist of five hearing officers who shall not be members of the Commission.  No member of the hearing board shall have a part in the investigation of a complaint, except as to the issuance of subpoenas or interrogatories and other appropriate legal processes.
f.	Authorize its hearing board appointed by the City Council impaneled at any time after a complaint is filed with the Commission, and upon a majority vote of said board, to issue subpoenas and subpoenas duces tecum compelling witnesses to attend and testify at the hearing and compelling witnesses to bring with them at the hearing certain specified evidence and to require, by summons, subpoena, or other appropriate legal process, answers to interrogatories, to administer oaths, and to examine witnesses under oath or affirmation in person or by deposition.  If any person refuses to obey a subpoena issued pursuant to this ordinance, answer interrogatories or other appropriate legal process, the Commission may apply to the superior court for an order requiring such person to obey the subpoena, answer the interrogatories, or other appropriate legal process.  The court may take any appropriate legal action to compel compliance.  Witnesses whose depositions are taken or who are summoned before the Commission or its agents shall be entitled to the same witness and mileage fees as are paid to witnesses in the courts of this State.
g.	Authorize the hearing board, upon receipt of a written application to said board, to grant a respondent a reasonable number of subpoenas and interrogatories by and in the name of the Commission to the same extent and subject to the same limitations as the Commission itself.
h.	Petition the superior court for injunctive relief, including temporary restraining orders, after the filing of a complaint and upon a majority vote of the Commission, a quorum being present and voting.
(3)	Provide that an aggrieved person, his agent, or a member of the Commission may file a written complaint with the Commission within one year after the alleged violation occurred, setting forth the facts upon which the complaint is based, and setting forth facts sufficient to enable the hearing board to identify the person charged (hereinafter the respondent).  Upon the filing of a complaint, the Commission shall serve notice upon the complainant acknowledging such filing and advising the complainant of the time limits and choice of forums provided under this Article.  No later than 10 days after the filing of a complaint, the Commission shall serve on the respondent a notice identifying the alleged discriminatory housing practice and advising such respondent of the procedural rights and obligations of respondents under this Article, together with a copy of the original complaint.
(4)	Provide that the Commission shall investigate complaints filed herein, make determinations of probable cause, and seek to conciliate apparent violations of this Article.  Investigations shall commence within 30 days after the filing of a complaint.  The investigation shall be completed in 100 days.  If for any reason, the 100-day period must be extended, or delayed, the Commission shall write to the parties explaining the reasons for said extension or delay.  Conciliation efforts may be initiated by any party, aggrieved person, the Commission, staff or hearing board.
(5)	Provide that a conciliation agreement negotiated herein may include, but is not limited to:
a.	Sale, exchange, lease, rental, assignment, or sublease of real property to a person.
b.	Extension to all persons of the full and equal enjoyment of the advantages, facilities, privileges, and services of the respondent.
c.	Reporting as to the manner of compliance.
d.	Posting of notices in conspicuous places in the respondent's place of business in a form prescribed by the court to the Commission.
e.	Payment to the complainant of actual damages, including compensation for humiliation and embarrassment, and reasonable attorneys' fees.
f.	At any time, but not later than one year from the date of a conciliation agreement, the Commission or Director shall investigate whether the terms of the agreement are being complied with by the respondent.  Upon deciding that the terms of the agreement are not being complied with by the respondent, the Commission or staff shall informally seek voluntary compliance with the conciliation agreement.  If informal methods fail, the Commission, with the approval of the City Council, shall file a civil action seeking enforcement of the terms of the conciliation agreement.
g.	At any time after a complaint is filed, the Commission may file a petition in the superior court, seeking appropriate temporary injunctive relief, against the respondent, pending final determination of proceedings under the ordinance.
h.	Each conciliation 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 Article.
(6)	Provide that the City Council shall establish a hearing board consisting of five members, one of whom shall be a representative of the real estate industry, and one of whom shall be a licensed attorney, to hear complaints and make appropriate findings.  The Fair Housing Board heretofore appointed shall continue in existence for purposes of carrying out the powers, duties, and responsibilities authorized in this Article and said ordinance.  All appointments shall be for two-year terms, with no member eligible to serve more than two consecutive terms.  The Fair Housing Board so appointed shall commence whenever the Commission determines there is probable cause to believe the Article has been violated and a conciliation failure has occurred.  Hearings open to the public may be initiated by the respondent at any time during the conciliation process.  If the hearing board determines:
a.	That the respondent has not engaged in an unlawful practice, the board shall state its findings of fact and conclusions of law and shall issue an order dismissing the complaint; or
b.	That the respondent has engaged in an unlawful practice, it shall state its findings of fact and conclusions of law.
(7)	Provide that final administrative disposition of the complaint shall be made within one year of the date the complaint is filed, unless it is impracticable to do so.  If final administrative disposition is not able to be made within one year, the Commission shall notify the complainant and the respondent in writing of the reasons for not doing so.
(8)	Provide that an action alleging a violation of the ordinance may be filed in the Cumberland County Superior Court (hereinafter known as the court) by the city attorney or his designee on behalf of the Commission, the complainant, or aggrieved person, with the approval of the Fayetteville City Council, upon the recommendation of the Commission that there is reasonable cause to believe a violation of the ordinance has occurred or is about to occur and if the City Council finds that:
a.	There is reasonable cause to believe that a person or group of persons is engaged in a pattern or practice of resistance of the full enjoyment of any rights granted by the ordinance;
b.	There is reasonable cause to believe that any person or group of persons has been denied any of the rights granted by the ordinance and such denial raises an issue of general public importance; or
c.	There is reasonable cause to believe that the violation affects an individual's rights under this Article.
(9)	Provide that if the Commission determines that (i) there is reasonable cause to believe that a violation of the ordinance has occurred; (ii) a lawsuit has not been authorized by the City Council; and (iii) if conciliation attempts are unsuccessful, the Commission shall notify the parties of its findings, and the individual complainant may bring a private action in court.
(10)	Provide that if it shall be determined by the court that a discriminatory practice has occurred, an order may issue granting relief to those persons who have suffered the effects of such discrimination.  Before relief may be granted, it shall not be necessary for the court to find that intentional discrimination has occurred.  It shall be sufficient that the respondent's action or failure to act resulted in unlawful discrimination.
(11)	Provide that the court may grant any relief it deems appropriate, including any permanent or preliminary injunction, temporary restraining orders, or other orders, including an order enjoining the defendant from engaging in such practice or ordering such affirmative action as may be appropriate, and may award to the plaintiff actual and punitive damages, may assess civil penalties and may award court costs and reasonable attorneys' fees to a prevailing party.  Provided, however, that a prevailing respondent may be awarded court costs and reasonable attorneys' fees only upon a showing that the case is frivolous, unreasonable, or without foundation.  The judge may assess a civil penalty against the respondent in an amount not:
a.	Exceeding ten thousand dollars ($10,000) if the respondent has not been adjudged to have committed any prior discriminatory housing practice;
b.	Exceeding twenty-five thousand dollars ($25,000) if the respondent has been adjudged to have committed one other discriminatory housing practice during the five-year period ending on the date of the filing of the charge; and
c.	Exceeding fifty thousand dollars ($50,000) if the respondent has been adjudged to have committed two or more discriminatory practices during the seven-year period ending on the date of the filing of this charge.
	However, if the present and previous discriminatory practices were acts, committed by the same natural person, the judge may impose penalties without regard to the time limitations set forth above.
(12)	Provide that all civil actions brought pursuant to the ordinance shall be heard by the court, de novo.
(13)	Provide that in conducting an  investigation, the Commission shall have access at all reasonable times to premises, records, documents, individuals, and other evidence or possible sources of evidence and may examine, record, and copy such materials and take and record the testimony or statements of such persons as are reasonably necessary for the furtherance of the investigation.  In aid of an investigation the Commission and the hearing board may issue subpoenas and order discovery.  Such subpoenas and discovery may be ordered to the same extent and subject to the same limitations as would apply if the subpoenas or discovery were ordered or served in aid of a civil action in the general court of justice.
(14)	Provide that after the Director of the Human Relations Department makes a finding of reasonable cause, the aggrieved person or respondent has the right to elect to proceed immediately to the Cumberland County Superior Court rather than proceed through the administrative hearing process.  Such decision must be submitted in writing to the Human Relations Department within 20 working days of receipt of the Director's decision.  If the right of election is exercised, upon approval of the City Council and findings consistent with subdivision (8) of this section of this Charter, the City will commence and maintain such action on behalf of the complainant(s) or aggrieved person and the Commission.
(15)	Provide that an aggrieved person may commence a civil action in Cumberland County Superior Court not later than two years after the occurrence or the termination of an alleged discriminatory housing practice; the computation of such two-year period shall not include any time during which a complaint was being processed by the Commission or hearing board under this Article with respect to such discriminatory housing practice; an aggrieved person may commence a civil action under this section whether or not a complaint has been filed and without regard to the status of any such complaint, but if the aggrieved person has signed a conciliation no action may be filed under this section by such aggrieved person with respect to the alleged discriminatory housing practice which forms the basis for such complaint.
(16)	Provide that in a civil action commenced pursuant to this section, the court may award, in addition to the relief specified in subdivision (11) of this section, reasonable attorneys' fees and court costs to the prevailing party.
"Sec. 8.31.  Exemptions. Any ordinance enacted pursuant to this Article may provide for exemption from its coverage:
(1)	The rental of housing accommodations in a building containing accommodations for not more than four families living independently of each other, if the owner or a member of his family resides in one of the housing accommodations;
(2)	The rental of a room or rooms in a private house, not a boarding house, if the lessor or a member of his family resides therein;
		(3)	With respect to discrimination based upon sex, the rental or leasing of housing accommodations in single-sex dormitory property;
(4)	The sale or rental of any single-family house by an owner provided such private individual owner does not own or have any interest in more than three such single-family houses at any one time; provided further, that in the case of the sale of any such single-family house by a private individual owner not residing in such house at the time of such sale or who was not the most recent resident of such house prior to such sale, the exemption granted may only apply with respect to one such sale within any 24-month period; provided further, that any single-family house under this exemption may not be sold or rented (i) with the use in any manner of the sales or rental facilities of any real estate broker, agent, salesman, or of any employee of any such broker, agent, or salesman; or (ii) with the publication or posting of any advertisement in violation of this Article.  Nothing in this provision shall prohibit the use of attorneys, escrow agents, abstractors, title companies, and other such provisional assistance as necessary to perfect or transfer the title;
(5)	Housing accommodations owned and operated for other than a commercial purpose by a religious organization, association or society, or any nonprofit institution or organization; operated, supervised, or controlled by or in conjunction with a religious organization, association or society shall not be prohibited by this Article from limiting the sale, rental, or occupancy of dwellings which it owns or operates to persons of the same religion, or from giving preference to such persons unless membership in such religion is restricted on account of race, color, or national origin;
(6)	The sale, rental, exchange, or lease of commercial real estate, which is not real estate intended for residential use;
(7)	A private club not, in fact, open to the public which as an incident to its primary purpose or purposes, provides lodging which it owns or operates for other than commercial purposes limiting the rental or occupancy of such lodging to its members or gives preference to its members;
(8)	The provisions in this Article regarding familial status shall not apply with respect to housing for older persons:
a.	As used in this section 'housing for older persons' means, housing:
1.	Provided under any State or federal program that is specifically designed and operated to assist elderly persons (as defined in the State or federal program);
2.	Intended for, and solely occupied by, persons 62 years of age or older; or
3.	Intended and operated for occupancy by at least one person 55 years of age or older as shown by the following factors:
I.	The existence of significant facilities and services specifically designed to meet the physical or social needs of older persons, or if the provision of such facilities and services is not practicable, that such housing is necessary to provide important housing opportunities for older persons; and
II.	That at least eighty percent (80%) of the dwellings are occupied by at least one person 55 years of age or older per unit; and
III.	The publication of, and adherence to, policies and procedures which demonstrate an intent by the owner or manager to provide housing for persons 55 years of age or older.
b.	Housing shall not fail to meet the requirements for 'housing for older persons' by reason of:
1.	Persons residing in such housing as of the date of enactment of this Article who do not meet the requirements of subdivision (8)a.2. and 3. of this section.
2.	Unoccupied units, provided that such units are reserved for occupancy by persons who meet the age requirements of subdivision (8)a.2. and 3. of this section.
c.	Housing facilities newly constructed for first occupancy after the date of enactment of this Article shall satisfy the requirements of subdivision (8)a.2. and 3. of this section, if:
1.	When twenty-five percent (25%) of the units are occupied, eighty percent (80%) of the occupied units are occupied by at least one person 55 years of age or older thereafter; and
2.	Eighty percent (80%) of all newly occupied units are occupied by at least one person 55 years of age or older until such time as eighty percent (80%) of all units in the housing facility are occupied by at least one person 55 years of age or older.
"Sec. 8.32.  Complaints and other records.  The City Council may provide that neither complaints filed pursuant to the ordinance nor the results of any investigations, discovery, or attempts at conciliation, in whatever form prepared and preserved, shall be subject to inspection, examination, or copying under the provisions of Chapter 132 of the General Statutes.
"Sec. 8.33.  Board meetings.  The City Council may provide that the statutory provisions relating to meetings of government bodies, presently embodied in Article 33C of Chapter 143 of the General Statutes, shall not apply to the activity of the board authorized to enforce the ordinance, to the extent that said board is receiving a complaint or conducting an investigation, discovery, or conciliation pertaining to a complaint filed pursuant to the ordinance.
"Sec. 8.34. Conforming amendments. The City Council may amend any ordinance adopted pursuant to the provisions of this Article to ensure that the ordinance remains substantially equivalent to Title VIII of the Civil Rights Act of 1968, as amended by the Fair Housing Amendments Act of 1988, or any amendment thereafter."
Sec. 2.  This act becomes effective October 1, 1995, and ordinances under it may be adopted prior to that date, but such ordinances do not become effective prior to October 1, 1995.