H. B. 2479


(By Delegates Compton, Leach, Hunt, Hutchins,

Hubbard, Burke and Fleischauer)

[Introduced February 14, 1995; referred to the
Committee on the Judiciary then Finance.]



A BILL to amend and reenact sections three, five, six, seven and
thirteen, article eleven-a, chapter five of the code of West Virginia, one thousand nine hundred thirty-one, as amended, all relating to the West Virginia Fair Housing Act; changing references from handicap and handicapped to disability and disabled; award of attorney fees; special fund created; use of funds.

 Be it enacted by the Legislature of West Virginia:
That sections three, five, six, seven and thirteen, article eleven-a, chapter five of the code of West Virginia, one thousand nine hundred thirty-one, as amended, be amended and reenacted, all to read as follows:
ARTICLE 11A. WEST VIRGINIA FAIR HOUSING ACT.

§5-11A-3. Definitions.

As used in this article:
(a) "Commission" means the West Virginia human rights commission;
(b) "Dwelling" means any building, structure or portion thereof which is occupied as, or designed or intended for occupancy as, a residence or sleeping place by one or more persons or families, and any vacant land which is offered for sale or lease for the construction or location thereon of any such building, structure or portion thereof;
(c) "Family" includes a single individual;
(d) "Person" includes one or more individuals, corporations, partnerships, associations, labor organizations, legal representatives, mutual companies, joint-stock companies, trusts, unincorporated organizations, trustees, trustees in cases under Title 11 of the United States Code, receivers and fiduciaries;
(e) "To rent" includes to lease, to sublease, to let and otherwise to grant for a consideration the right to occupy premises not owned by the occupant;
(f) "Discriminatory housing practice" means an act that is unlawful under section five, six, seven or nineteen of this article;
(g) "Handicap" "Disability" means, with respect to a person:
(1) A physical or mental impairment which substantially limits one or more of such person's major life activities;
(2) A record of having such an impairment; or
(3) Being regarded as having such an impairment, but such term does not include current, illegal use of or addiction to a controlled substance, as defined in Section 102 of the Controlled Substances Act, Title 21, United States Code, Section 802;
(h) "Aggrieved person" includes any person who:
(1) Claims to have been injured by a discriminatory housing practice; or
(2) Believes that such person will be injured by a discriminatory housing practice that is about to occur;
(i) "Complainant" means the person, including the commission, who files a complaint under section eleven of this article;
(j) "Familial status" means:
(1) One or more individuals who have not attained the age of eighteen years being domiciled with:
(A) A parent or another person having legal custody of such individual or individuals; or
(B) The designee of such parent or other person having such custody with the written permission of such parent or other person; or
(2) Any person who is pregnant or is in the process of securing legal custody of any individual who has not attained the age of eighteen years;
(k) "Conciliation" means the attempted resolution of issues raised by a complaint or by the investigation of such complaint through informal negotiations involving the aggrieved person, the respondent and the commission;
(l) "Conciliation agreement" means a written agreement setting forth the resolution of the issues in conciliation;
(m) "Respondent" means:
(1) The person or other entity accused in a complaint of an unfair housing practice; and
(2) Any other person or entity identified in the course of investigation and notified as required with respect to respondents so identified under subsection (a), section eleven of this article; and
(n) The term "rooming house" means a house or building where there are one or more bedrooms which the proprietor can spare for the purpose of giving lodgings to such persons as he chooses to receive.
§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 disability 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 disability 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 disability, 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 disability, 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 disability, 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 disability 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 disability 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 disabled 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 disabled 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 disabled 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 disabled people, commonly cited as ANSI A117.1, suffices to satisfy the requirements of subparagraph (3)(C)(iii) of this subdivision.
(5) (A) If a unit of general local government has incorporated into its laws the requirements set forth in subparagraph (3)(C) 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 (3)(C) 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 (3)(C) 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 (3)(C) 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 (5) (A) and (B) 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 disabled 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.
§5-11A-6. Discrimination in residential real estate-related

transactions.

(a) It shall be unlawful for any person or other entity whose business includes engaging in residential real estate-related transactions to discriminate against any person in making available such a transaction or in the terms or conditions of such a transaction because of race, color, religion, sex, blindness, handicap disability, familial status, ancestry or national origin.
(b) As used in this section, the term "residential real estate-related transaction" means any of the following:
(1) The making or purchasing of loans or providing other financial assistance: (A) For purchasing, constructing, improving, repairing or maintaining a dwelling; or (B) secured by residential real estate; or
(2) The selling, brokering or appraising of residential real property.
(c) Nothing in this article prohibits a person engaged in the business of furnishing appraisals of real property to take into consideration factors other than race, color, religion, national origin, ancestry, sex, blindness, handicap disability or familial status.
§5-11A-7. Discrimination in provision of brokerage services.

It shall be unlawful to deny any person access to or membership or participation in any multiple listing service, real estate broker's organization or other service, organization or facility relating to the business of selling or renting dwellings, or to discriminate against him or her in the terms or conditions of such access, membership or participation on account of race, color, religion, sex, blindness, handicap disability familial status, ancestry or national origin.
§5-11A-13. Election of remedies; administrative hearings and
discovery; exclusivity of remedies; final orders; review by commission; judicial review; remedies; attorney fees.

(a) When a charge is filed under section eleven of this article, a complainant, a respondent or an aggrieved person on whose behalf the complaint was filed, may elect to have the claims asserted in that charge decided in a civil action under subsection (o) of this section in lieu of a hearing under subsection (b) of this section. The election must be made not later than twenty days after the receipt by the electing person of service under section eleven of this article or, in the case of the commission, not later than twenty days after such service. The person making such election shall give notice of doing so to the commission and to all other complainants and respondents to whom the charge relates.
(b) If an election is not made under subsection (a) of this section with respect to a charge filed under section eleven of this article, the commission shall provide an opportunity for a hearing on the record with respect to a charge issued under said section. The commission shall delegate the conduct of a hearing under this section to an administrative law judge who shall be a licensed attorney. The administrative law judge shall conduct the hearing at a place in the county in which the discriminatory housing practice is alleged to have occurred or is about to occur.
(c) At a hearing under this section, each party may appear in person, be represented by counsel, present evidence, cross-examine witnesses and obtain the issuance of subpoenas under section twelve of this article. Any aggrieved person may intervene as a party in the proceeding. The rules of evidence apply to the presentation of evidence in such hearing as they would in a civil action in the circuit courts of this state. The case in support of the complaint shall be presented before the administrative law judge by the attorney general.
(d) (1) Discovery in administrative proceedings under this section shall be conducted as expeditiously and inexpensively as possible, consistent with the need of all parties to obtain relevant evidence.
(2) A hearing under this section shall be conducted as expeditiously and inexpensively as possible, consistent with the needs and rights of the parties to obtain a fair hearing and a complete record.
(3) The commission shall, not later than one hundred eighty days after the date of enactment of this subsection, issue rules to implement this subsection.
(e) Any resolution of a charge before a final order under this section shall require the consent of the aggrieved person on whose behalf the charge is issued.
(f) An administrative law judge may not continue administrative proceedings under this section regarding any alleged discriminatory housing practice after the beginning of the trial of a civil action commenced by the aggrieved party under an act of Congress or a state law seeking relief with respect to that discriminatory housing practice.
(g) (1) The administrative law judge shall commence the hearing under this section no later than one hundred twenty days following the issuance of the charge, unless it is impracticable to do so. If the administrative law judge is unable to commence the hearing within one hundred twenty days after the issuance of the charge, the administrative law judge shall notify the commission, the aggrieved person on whose behalf the charge was filed and the respondent in writing of the reasons for not doing so.
(2) The administrative law judge shall make findings of fact and conclusions of law within sixty days after the end of the hearing under this section, unless it is impracticable to do so. If the administrative law judge is unable to make findings of fact and conclusions of law within such period, or any succeeding sixty-day period thereafter, the administrative law judge shall notify the commission, the aggrieved person on whose behalf the charge was filed and the respondent in writing of the reasons for not doing so.
(3) If the administrative law judge finds that a respondent has engaged or is about to engage in a discriminatory housing practice, such administrative law judge shall promptly issue an order for such relief as may be appropriate, which may include actual damages suffered by the aggrieved person and injunctive or other equitable relief. Such order may, to vindicate the public interest, assess a civil penalty against the respondent: (A) In an amount not exceeding ten thousand dollars if the respondent has not been adjudged to have committed any prior discriminatory housing practice; (B) in an amount not exceeding twenty-five thousand dollars 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 this charge; and (C) in an amount not exceeding fifty thousand dollars if the respondent has been adjudged to have committed two or more discriminatory housing practices during the seven-year period ending on the date of the filing of this charge; except that if the acts constituting the discriminatory housing practice that are 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 subparagraphs (B) and (C) may be imposed without regard to the period of time within which any subsequent discriminatory housing practice occurred.
(4) No such order shall affect any contract, sale, encumbrance or lease consummated before the issuance of such order and involving a bona fide purchaser, encumbrancer or tenant without actual notice of the charge filed under this article.
(5) In the case of an order with respect to a discriminatory housing practice that occurred in the course of a business subject to licensing or regulation by a governmental agency, the commission shall, not later than thirty days after the date of the issuance of such order or, if such order is judicially reviewed, thirty days after such order is in substance affirmed upon such review: (A) Send copies of the findings of fact, conclusions of law and the order to that governmental agency; and (B) recommend to that governmental agency appropriate disciplinary action, including, where appropriate, the suspension or revocation of the license of the respondent.
(6) In the case of an order against a respondent against whom another order was issued within the preceding five years under this section, the commission shall send a copy of each such order to the attorney general.
(7) In instances in which the attorney general renders legal services to the commission, the attorney general is entitled to an award of attorney's fees against any person found to be committing an unlawful discriminatory act in the like manner as a private attorney representing a person claiming to be aggrieved by an unlawful discriminatory act. All money received by the state on and after the first day of July, one thousand nine hundred ninety-five, as a result of this provision, shall be deposited in a special revenue fund hereby created in the state treasury and designated "The Human Rights Commission Litigation Fund," and such money shall be used solely for payment of fees, costs, expenses and other charges incurred by the commission in connection with proceedings under this article. At the close of the fiscal year ending the thirtieth day of June, one thousand nine hundred ninety-six, all sums in such funds in excess of one hundred thousand dollars shall expire into the state general revenue fund and the balance shall remain therein for expenditure. At the close of the fiscal year ending the thirtieth day of June, one thousand nine hundred ninety-seven, all sums in such fund in excess of one hundred seventy-five thousand dollars shall expire in the state general revenue fund and the balance shall remain therein for expenditure. At the close of the fiscal year ending the thirtieth day of June, one thousand nine hundred ninety-eight, and each year thereafter, all sums in such fund in excess of two hundred fifty thousand dollars shall expire into the state general revenue fund and the balance shall remain therein for expenditure.
(7) (8) If the administrative law judge finds that the respondent has not engaged or is not about to engage in a discriminatory housing practice, as the case may be, such administrative law judge shall enter an order dismissing the charge. The commission shall make public disclosure of each such dismissal.
(h) (1) The commission may review any finding, conclusion or order issued under subsection (g) of this section. Such review shall be completed not later than thirty days after the finding, conclusion or order is so issued; otherwise the finding, conclusion or order becomes final.
(2) The commission shall cause the findings of fact and conclusions of law made with respect to any final order for relief under this section, together with a copy of such order, to be served on each aggrieved person and each respondent in the proceeding.
(i) (1) Any party aggrieved by a final order for relief under this section granting or denying, in whole or in part, the relief sought may obtain a review of such order under section four, article five, chapter twenty-nine-a of this code.
(2) Notwithstanding chapter twenty-nine-a of this code, venue of the proceeding shall be in the judicial circuit in which the discriminatory housing practice is alleged to have occurred and filing of the petition for review shall be not later than thirty days after the order is entered.
(j) (1) The commission may petition the circuit court in the circuit in which the discriminatory housing practice is alleged to have occurred or in which any respondent resides or transacts business for the enforcement of the order of the administrative law judge and for appropriate temporary relief or injunctive relief by filing in such court a written petition praying that such order be enforced and for appropriate temporary relief or injunctive relief.
(2) The commission shall file in court with the petition the record in the proceeding. A copy of such petition shall be forthwith transmitted by the clerk of the court to the parties to the proceeding before the administrative law judge.
(k) (1) Upon the filing of a petition under subsection (i) or (j) of this section, the court may:
(A) Grant to the petitioner, or any other party, such temporary relief, injunction or other order as the court deems just and proper;
(B) Affirm the order or decision of the administrative law judge or remand the case for further proceedings. It shall reverse, vacate or modify the order or decision of the administrative law judge if the substantial rights of the parties have been prejudiced because the administrative findings, inferences, conclusions, decision or order are: (i) In violation of constitutional or statutory provisions; or (ii) in excess of the statutory authority or jurisdiction of the commission; or (iii) made upon unlawful procedures; or (iv) affected by other error of law; or (v) clearly wrong in view of the reliable, probative and substantial evidence on the whole record; or (vi) arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion; and
(C) Enforce such order to the extent that such order is affirmed or modified.
(2) Any party to the proceeding before the administrative law judge may intervene in the circuit court.
(3) No objection not made before the administrative law judge shall be considered by the court, unless the failure or neglect to urge such objection is excused because of extraordinary circumstances.
(4) The judgment of the circuit court shall be final unless reversed, vacated or modified on appeal to the supreme court of appeals of this state in accordance with the provisions of section one, article six, chapter twenty-nine-a of this code.
(l) If no petition for review is filed under subsection (i) of this section before the expiration of forty-five days after the date the administrative law judge's order is entered, the administrative law judge's findings of fact and order shall be conclusive in connection with any petition for enforcement: (1) Which is filed by the commission under subsection (j) of this section after the end of such day; or (2) under subsection (m) of this section.
(m) If before the expiration of sixty days after the date the administrative law judge's order is entered, no petition for review has been filed under subsection (i) of this section, and the commission has not sought enforcement of the order under subsection (j) of this section, any person entitled to relief under the order may petition for a decree enforcing the order in the circuit court for the circuit in which the discriminatory housing practice is alleged to have occurred.
(n) The judge of the circuit court in which a petition for enforcement is filed under subsection (l) or (m) of this section shall forthwith enter a decree enforcing the order and shall transmit a copy of such decree to the commission, the respondent named in the petition and to any other parties to the proceeding before the administrative law judge. The judgment of the circuit court shall be final unless reversed, vacated or modified on appeal to the supreme court of appeals pursuant to section one, article six, chapter twenty-nine-a of this code.
(o) (1) If an election is made under subsection (a) of this section, the commission shall authorize, and not later than thirty days after the election is made the attorney general shall commence and maintain, a civil action on behalf of the aggrieved person in the appropriate circuit court seeking relief under this subsection. Venue for such civil action shall be in the circuit court in the county in which the alleged discriminatory housing practice occurred.
(2) 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) In a civil action under this subsection, if the court finds that a discriminatory housing practice has occurred or is about to occur, the court may grant as relief any relief which a court could grant with respect to such discriminatory housing practice in a civil action under section fourteen of this article. Any relief so granted that would accrue to an aggrieved person in a civil action commenced by that aggrieved person under said section shall also accrue to that aggrieved person in a civil action under this subsection. If monetary relief is sought for the benefit of an aggrieved person who does not intervene in the civil action, the court shall not award such relief if that aggrieved person has not complied with discovery orders entered by the court.
(p) In any administrative proceeding brought under this section, or any court proceeding arising therefrom, or any civil action under section fourteen of this article, the administrative law judge or the court, as the case may be, in its discretion, may allow a prevailing complainant a reasonable attorney's fee and costs.





NOTE: The purpose of this bill is to change the term "handicap" to "disability" or a person with a disability. This does not change the definition of what constitutes a person with a disability. This bill also includes costs and attorney fees awarded to a special fund to pay for enforcement costs.

Strike-throughs indicate language that would be stricken from the present law, and underscoring indicates new language that would be added.