§ 34-37-5 - Prevention of unlawful housing practices.
SECTION 34-37-5
§ 34-37-5 Prevention of unlawful housingpractices. – (a) The commission is empowered and directed to prevent any person fromviolating any of the provisions of this chapter, provided that beforeinstituting a formal proceeding it shall attempt by informal methods ofconference, persuasion, and conciliation to induce compliance with this chapter.
(b) Upon the commission's own initiative or whenever anaggrieved individual or an organization chartered for the purpose of or engagedin combating discrimination or racism or of safeguarding civil liberties, thatorganization acting on behalf of one or more individuals being hereinafterreferred to as the complainant, makes a charge, in writing, under oath, to thecommission that any person, agency, bureau, corporation, or association,hereinafter referred to as the respondent, has violated or is violating, to thebest of complainant's knowledge and belief, any of the provisions of thischapter, and that the alleged discriminatory housing practice has occurred orterminated within one year of the date of filing, the commission may initiate apreliminary investigation and if it shall determine after the investigationthat it is probable that unlawful housing practices have been or are beingengaged in, it shall endeavor to eliminate the unlawful housing practices byinformal methods of conference, conciliation, and persuasion. Nothing said ordone during these endeavors may be used as evidence in any subsequentproceeding. If after the investigation and conference, the commission issatisfied that any unlawful housing practice of the respondent will beeliminated, it may, with the consent of the complainant, treat the charge asconciliated, and entry of that disposition shall be made on the records of thecommission. If the commission fails to effect the elimination of the unlawfulhousing practices and to obtain voluntary compliance with this chapter, or, ifthe circumstances warrant, in advance of any preliminary investigation orendeavors, the commission shall have the power to issue and cause to be servedupon any person or respondent a complaint stating the charges in that respectand containing a notice of hearing before the commission, a member thereof, ora 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 examinerconducting the hearing shall have the power reasonably and fairly to amend anywritten 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 oramended complaint at any time prior to the issuance of the order. Thecommissioner assigned to the preliminary hearing of any charge shall take nopart in the final hearing except as a witness upon competent matters and willhave no part in the determination or decision of the case after hearing.
(d) The respondent shall have the right to file an answer tothe complaint and shall appear at the hearing in person or otherwise with orwithout counsel to present evidence and to examine and cross-examine witnesses.
(e) In any proceeding the commission, its member, or itsagent shall not be bound by the rules of evidence prevailing in the courts.
(f) The commission shall in ascertaining the practicesfollowed by the respondent take into account all evidence, statistical orotherwise, which may tend to prove the existence of a predetermined pattern ofdiscrimination in housing.
(g) The testimony taken at the hearing shall be under oathand shall be reduced to writing and filed with the commission. Thereafter, inits discretion, the commission upon notice may take further testimony or hearargument.
(h) If upon all the testimony taken the commission shalldetermine that the respondent has engaged in or is engaging in unlawful housingpractices, the commission shall state its findings of fact and shall issue andcause to be served on the respondent an order requiring the respondent to ceaseand desist from the unlawful housing practices, and to take such furtheraffirmative or other action as will effectuate the purposes of this chapter.
(2) The commission may also order the respondent to pay thecomplainant damages sustained thereby; costs, including reasonable attorney'sfees incurred at any time in connection with the commission of the unlawfulact, and civil penalties, any amounts awarded to be deposited in the statetreasury. The civil penalty shall be (i) an amount not exceeding ten thousanddollars ($10,000) if the respondent has not been adjudged to have committed anyprior discriminatory housing practice; (ii) in an amount not exceedingtwenty-five thousand dollars ($25,000) if the respondent has been adjudged tohave committed one other discriminatory housing practice during the five (5)year period ending on the date of filing this charge; and (iii) in an amountnot exceeding fifty thousand dollars ($50,000) if the respondent has beenadjudged to have committed two (2) or more discriminatory housing practicesduring the seven (7) year period ending on the date of the filing of thischarge; except that if the acts constituting the discriminatory housingpractice that is the object of the charge are committed by the same naturalperson who has been previously adjudged to have committed acts constituting adiscriminatory housing practice, then the civil penalties set forth in (ii) and(iii) may be imposed without regard to the period of time within which anysubsequent discriminatory housing practice occurred. When determining theamount of civil penalties, the commission shall consider as a mitigating factorwhether the respondent has acted in good faith and whether the respondent hasactively engaged in regular antidiscrimination educational programs. Providedthat no order shall affect any contract, sale, encumbrance, or leaseconsummated before the issuance of the order and involving a bona fidepurchaser, encumbrancer or tenant without actual notice of the charge filedunder this title.
(i) If the commission shall find that no probable causeexists for crediting the charges, or, if upon all the evidence, it shall findthat a respondent has not engaged in unfair housing practices, the commissionshall state its findings of fact and shall issue and cause to be served on thecomplainant an order dismissing the complaint as to the respondent. A copy ofthe order shall be delivered in all cases to the attorney general and suchother public officers as the commission deems proper.
(j) Until a transcript of the record in a case shall be filedin a court as provided in subsection (m), the commission may at any time, uponreasonable notice, and in such manner as it shall deem proper, modify or setaside, in whole or in part, any of its findings or orders.
(k) Until such time as a hearing is convened pursuant to thissection, no publicity shall be given to any proceedings before the commission,either by the commission or any employee thereof, the complainant, or therespondent, except that in the event of a conciliation agreement the agreementshall be made public unless the complainant and respondent otherwise agree andthe commission determines that disclosure is not required to further thepurposes of this chapter. After the complaint issues and before an orderissues, the commission shall not initiate any public notice of any charge orcomplaint before the commission, however, the commission may respond toinquiries about the status of a complaint.
(l) A complainant may seek a right to sue in state court ifnot less than one hundred and twenty (120) days and not more than two (2) yearshave elapsed from the date of filing of a charge, if the commission has beenunable to secure a settlement agreement or conciliation agreement and if thecommission has not commenced hearing on a complaint. The commission shall grantthe right to sue within thirty (30) days after receipt of the request. Thisshall terminate all proceedings before the commission and shall give to thecomplainant the right to commence suit in the superior court within any countyas provided in § 28-5-28 within ninety (90) days after the granting of therequest. Any party may claim a trial by jury. The superior court may makeorders consistent with subsection (h) and may also award punitive damages andsuch other damages as the court deems just and proper.
(m) The commission is further empowered to file a complaintin the superior court in any county in which the unlawful housing practiceallegedly occurs, or has occurred, or in which a defendant resides or maintainsa 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 morethan thirty (30) days; provided that, if the defendant has sought judicialreview of an order of the commission issued pursuant to this section, or if thecommission has sought a decree of the court for the enforcement of the order,the preliminary injunction shall remain in full force and effect until suchtime as the judicial review or the commission's petition for the decree ofenforcement is finally heard and determined.
(3) In any proceeding under this subsection, the commissionmay, if the prayer of the original or amended complaint so requests, proceed atthe proper time to obtain the relief provided in § 34-37-6.
(4) The application by the commission for injunctive reliefshall not prevent the commission from continuing to prosecute the proceedingbefore it out of which the application arises.
(5) Whenever a complaint shall be filed under the provisionsof 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 sufferedby the defendant should final judgment be entered upon the complaint in favorof the defendant, or should the commission, having been denied temporary reliefafter the entry of a restraining order, fail to prosecute the matter further,or should the commission, having been granted temporary relief, fail toprosecute the matter further, unless, in the latter two (2) instances, failureto prosecute is caused by the making of an agreed settlement of any kind withthe defendant, including a conciliation agreement.
(6) All proceedings taken pursuant to the provisions of thissection shall take precedence over all other civil matters then pending beforethe court.
(n) When a complaint issues after a finding of probable causeunder subsection (b), any party may elect to have the claims asserted in thatcomplaint 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 thereceipt by the electing person of service of the complaint under subsection(b). The person making the election shall give notice of doing so to thecommission, the attorney general, and to all other complainants and respondentsto whom the charge relates.
(o) If an election is made under subsection (n):
(1) The complainant, the commission, or the attorney generalmay commence a civil action on behalf of the aggrieved person in the superiorcourt within any county as provided in § 28-5-28 within ninety (90) daysafter receipt of notice of an election under subsection (n);
(2) Any party may claim a trial by jury. Any aggrieved personwith respect to the issues to be determined in a civil action under thissubsection may intervene as of right in that civil action;
(3) The superior court may make orders consistent withsubsection (h) and may also award punitive damages and such damages as thecourt deems just and proper.