ENGROSSED
COMMITTEE SUBSTITUTE
FOR
Senate Bill No. 459
(By Senators Prezioso, Hunter, Sharpe, Boley, Rowe and Unger)
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[Originating in the Committee on the Judiciary;
reported February 20, 2004.]
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A BILL to amend and reenact §5-11A-5 of the code of West Virginia,
1931, as amended, relating to providing immunity from civil
damages to a worker, contractor, engineer or architect who, in
good faith, provides services or materials, without
remuneration, to build or install certain universal
accessibility features in accordance with applicable state and
federal laws.
Be it enacted by the Legislature of West Virginia:
That §5-11A-5 of the code of West Virginia, 1931, as amended,
be amended and reenacted to read as follows:
ARTICLE 11A. WEST VIRGINIA FAIR HOUSING ACT.
§5-11A-5. Discrimination in sale or rental of housing and other
prohibited practices.
As made applicable by section four of this article and except as exempted by sections four and eight of this article, it shall be
unlawful:
(a) To refuse to sell or rent after the making of a bona fide
offer or to refuse to negotiate for the sale or rental of, or
otherwise make unavailable or deny, a dwelling to any person
because of race, color, religion, ancestry, sex, familial status,
blindness, handicap or national origin;
(b) To discriminate against any person in the terms,
conditions or privileges of sale or rental of a dwelling, or in the
provision of services or facilities in connection therewith,
because of race, color, religion, ancestry, sex, familial status,
blindness, handicap or national origin;
(c) To make, print or publish or cause to be made, printed or
published any notice, statement or advertisement, with respect to
the sale or rental of a dwelling that indicates any preference,
limitation or discrimination based on race, color, religion, sex,
blindness, handicap, familial status, ancestry or national origin
or an intention to make any such preference, limitation or
discrimination;
(d) To represent to any person because of race, color,
religion, sex, blindness, handicap, familial status, ancestry or
national origin that any dwelling is not available for inspection,
sale or rental when such dwelling is in fact so available;
(e) For profit, to induce or attempt to induce any person to
sell or rent any dwelling by representations regarding the entry or
prospective entry into the neighborhood of a person or persons of
a particular race, color, religion, sex, blindness, handicap,
familial status, ancestry or national origin; or
(f) (1) To discriminate in the sale or rental, or to otherwise
make unavailable or deny, a dwelling to any buyer or renter because
of a handicap of: (A) That buyer or renter; (B) a person residing
in or intending to reside in that dwelling after it is so sold,
rented or made available; or (C) any person associated with that
buyer or renter;
(2) To discriminate against any person in the terms,
conditions or privileges of sale or rental of a dwelling, or in the
provision of services or facilities in connection with such
dwelling, because of a handicap of: (A) That person; (B) a person
residing in or intending to reside in that dwelling after it is so
sold, rented or made available; or (C) any person associated with
that person;
(3) For purposes of this subdivision, discrimination includes:
(A) A refusal to permit, at the expense of the handicapped
person, reasonable modifications of existing premises occupied or
to be occupied by such person if such modifications 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 person equal opportunity to use and enjoy
a dwelling; or
(C) In connection with the design and construction of covered multifamily dwellings for first occupancy after the date that is
thirty months after the date of enactment of the West Virginia fair
housing act, a failure to design and construct those dwellings in
such a manner that:
(i) The public use and common use portions of such dwellings
are readily accessible to and usable by handicapped persons;
(ii) All the doors designed to allow passage into and within
all premises within such dwellings are sufficiently wide to allow
passage by handicapped persons in wheelchairs; and
(iii) 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 bathroom walls to allow later
installation of grab bars; and (IV) usable kitchens and bathrooms
such that an individual in a wheelchair can maneuver about the
space;
(4) 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, suffices to satisfy the requirements
of clause (iii), subparagraph (C), paragraph (3) of this
subdivision;
(5)(A) If a unit of general local government has incorporated
into its laws the requirements set forth in subparagraph (C),
paragraph (3) of this subdivision, compliance with such laws shall
be deemed to satisfy the requirements of that subparagraph;
(B) The commission or unit of general local government may review and approve newly constructed covered multifamily dwellings
for the purpose of making determinations as to whether the design
and construction requirements of subparagraph (C), paragraph (3) of
this subdivision are met;
(C) The commission shall encourage, but may not require, units
of local government to include in their existing procedures for the
review and approval of newly constructed covered multifamily
dwellings determinations as to whether the design and construction
of such dwellings are consistent with subparagraph (C), paragraph
(3) of this subdivision and may provide technical assistance to
units of local government and other persons to implement the
requirements of such subparagraph;
(D) Nothing in this article shall be construed to require the
commission to review or approve the plans, designs or construction
of all covered multifamily dwellings to determine whether the
design and construction of such dwellings are consistent with the
requirements of subparagraph (C), paragraph (3) of this
subdivision;
(6) (A) Nothing in paragraph (5) of this subdivision shall be
construed to affect the authority and responsibility of the
commission or a local public agency to receive and process
complaints or otherwise engage in enforcement activities under this
article;
(B) Determinations by a unit of general local government under
subparagraphs (A) and (B), paragraph (5) of this subdivision shall
not be conclusive in enforcement proceedings under this article;
(7) As used in this section, the term "covered multifamily
dwellings" means: (A) Buildings consisting of four or more units if such buildings have one or more elevators; and (B) ground floor
units in other buildings consisting of four or more units;
(8) Nothing in this article shall be construed to invalidate
or limit any law of this state or any political subdivision hereof
that requires dwellings to be designed and constructed in a manner
that affords handicapped persons greater access than is required by
this article;
(9) Nothing in this section requires that a dwelling be made
available to an individual whose tenancy would constitute a direct
threat to the health or safety of other individuals or whose
tenancy would result in substantial physical damage to the property
of others. The burden of proving such threat to health or safety
or the likelihood of such damage shall be upon the respondent;
(g) Any person, including a worker, contractor, engineer or
architect, who in good faith provides services or materials,
without remuneration, to build or install universal accessibility
features as set forth in section four of this article, may not be
liable for any civil damages as the result of any act or omission
in providing such services or materials: Provided, That the
universal accessible feature or features shall be built or
constructed in accordance with applicable state and federal laws.