(A) If not sooner resolved, the investigator, upon completion of his investigation, shall submit to the commissioner a statement of the facts disclosed by his investigation and recommend either that the complaint be dismissed or that a panel of commission members be designated to hear the complaint. The commissioner, after review of the case file and the statement and recommendation of the investigator, shall issue an order either of dismissal or for a hearing, which is not subject to judicial or other further review.
(B) If the order is for dismissal, the commissioner shall mail a copy of the order to the complainant and the respondent at their last known addresses. The complainant may bring an action against the respondent in circuit court within ninety days of the date of the dismissal or within one year from the date of the violation alleged, whichever occurs later, to enforce the rights granted or protected by this chapter and to seek relief as provided for in Section 31-21-140.
(C)(1) If the order is for a hearing, the commissioner shall attach to it a notice and a copy of the complaint and require the respondent to answer the complaint at a hearing at a time and place specified in the notice and shall serve upon the respondent a copy of the order, the complaint, and the notice.
(2) Either party may elect to have the claims asserted in the complaint decided in a civil action. The commissioner's notice must be sent to all parties and inform them of their right to take civil action. An election must be made within twenty days after receipt of the notice. A party making this election shall notify the commissioner and all other parties.
If an election is made for a civil action, the commissioner shall, within thirty days from the date of election, commence and maintain a civil action pursuant to Section 31-21-140 on behalf of the aggrieved person.
(D) At any time before a hearing, a complaint may be amended by the commissioner upon the request of the investigator or of the complainant or of the respondent. Complaints may be amended during a hearing only upon a majority vote of the panel of commission members for the hearing.
(E) Upon request by any party, the commissioner shall issue appropriate subpoenaes or subpoenaes duces tecum to any witnesses or other custodians of documents desired to be present at the hearing, or at prehearing depositions, unless the commissioner determines that issuance of the subpoenaes or subpoenaes duces tecum would be unreasonable or unduly burdensome.
(F) Upon notification by any party that any party or witness has failed to permit access, failed to comply with a subpoena or subpoena duces tecum, refused to have his deposition taken, refused to answer interrogatories, or otherwise refused to allow discovery, the commission, upon notice to the party or witness, shall apply to a court of competent jurisdiction for an order requiring discovery and other good-faith compliance unless the commission determines that the discovery would be unreasonably or unduly burdensome.
(G) Upon request by the commissioner, the chairman of the commission shall designate a panel of three members of the commission to sit as the commission to hear the complaint.
(H) At any hearing held pursuant to this section, the case in support of the complaint must be presented before the panel by one or more of the commission's employees or agents or by legal representatives of the complaining party. Endeavors at conciliation by the investigator may not be received into evidence nor otherwise made known to the members of the panel.
(I) The respondent shall submit a written answer to the complaint and appear at the hearing in person or by counsel and may submit evidence. The respondent may amend his answer reasonably and fairly.
(J) The complainant must be permitted to be present and submit evidence.
(K) Proceedings under this section are subject to the provisions of Chapter 23 of Title 1 (Administrative Procedures Act) and, in the case of conflict between the provisions of this chapter and Chapter 23 of Title 1, the provisions of Chapter 23 of Title 1 shall govern. A recording of the proceedings must be made, which may be transcribed subsequently upon request and payment of a reasonable fee by the complainant or the respondent. The fee must be set by the commission or upon motion of the panel, in which case copies of the transcription must be made available to the complainant or the respondent upon request and payment of a reasonable fee to be set by the commission.
(L) If, upon all the evidence at the hearing, the panel shall find that the respondent has engaged in any unlawful discriminatory practice, it shall state its findings of fact and serve upon the complainant and the respondent in the name of the commission an opinion and order for appropriate relief which may include that the unlawful discriminatory practice be discontinued, actual damages, civil penalties which may not be greater than civil penalties established by the federal Fair Housing Act in Section 3612, and reasonable attorney's fees. The commission may retain jurisdiction of the case until it is satisfied of compliance by the respondent of its order.
(M) If, upon all the evidence at the hearing, the panel finds that the respondent has not engaged in any unlawful discriminatory practice, the panel shall state its findings of fact and serve upon the complainant and the respondent an opinion and order dismissing the complaint as to the respondent. A prevailing respondent may apply to the commission for an award of reasonable attorney's fees and costs.
(N) A copy of the opinion and order of the commission must be delivered in all cases to the Attorney General and to such other public officers as the commission considers proper. Copies of the opinion and order must be available to the public for inspection upon request, and copies must be made available to any person upon payment of a reasonable fee set by the commission.
(O)(1) If an application for review is made to the commission within fourteen days from the date of the order of the commission, the commission, for good cause shown, shall review the order and evidence, receive further evidence, rehear the parties or their representatives, and, if proper, amend the order.
(2) The order of the commission, as provided in subsection (L), if not reviewed in due time, or an order of the commission upon the review, as provided for in item (1), is conclusive and binding as to all questions of fact unless clearly erroneous in view of the reliable, probative, and substantive evidence in the whole record. Either party to the dispute, within thirty days after receipt of notice to be sent by registered mail of the order, but not after that time, may appeal from the decision of the commission to the Administrative Law Court as provided in Sections 1-23-380(B) and 1-23-600(D). In case of an appeal from the decision of the commission, the appeal operates as a supersedeas for thirty days only, unless otherwise ordered by the administrative law judge, and after that the respondent is required to comply with the order involved in the appeal or certification until the questions at issue in it are determined fully in accordance with the provisions of this chapter.
(3) The commission may institute a proceeding for enforcement of its order of subsection (L), or its amended order of item (1) after thirty days from the date of the order, by filing a petition in the court of common pleas of the county in which the hearing occurred, or where a person against whom the order is entered resides or transacts business.
(4) If no appeal pursuant to item (2) is initiated, the commission may obtain a decree of the court for enforcement of its order upon a showing that a copy of the petition for enforcement was served upon the party subject to the dictates of the commission's order.
HISTORY: 1989 Act No. 72, Section 1; 1990 Act No. 445, Sections 3-5; 2006 Act No. 387, Section 16, eff July 1, 2006.
Editor's Note
2006 Act No. 387, Section 53, provides as follows:
"This act is intended to provide a uniform procedure for contested cases and appeals from administrative agencies and to the extent that a provision of this act conflicts with an existing statute or regulation, the provisions of this act are controlling."
2006 Act No. 387, Section 57, provides as follows:
"This act takes effect on July 1, 2006, and applies to any actions pending on or after the effective date of the act. No pending or vested right, civil action, special proceeding, or appeal of a final administrative decision exists under the former law as of the effective date of this act, except for appeals of Department of Health and Environmental Control Ocean and Coastal Resource Management and Environmental Quality Control permits that are before the Administrative Law Court on the effective date of this act and petitions for judicial review that are pending before the circuit court. For those actions only, the department shall hear appeals from the administrative law judges and the circuit court shall hear pending petitions for judicial review in accordance with the former law. Thereafter, any appeal of those actions shall proceed as provided in this act for review. For all other actions pending on the effective date of this act, the action proceeds as provided in this act for review."
Effect of Amendment
The 2006 amendment, in subsection (O), in subparagraph (2) in the second sentence substituted "Administrative Law Court as provided in Sections 1-23-380(B) and 1-23-600(D)" for "court of common pleas of the county in which the hearing occurred, or in which the respondent resides or has his principal office", and in the third sentence substituted "administrative law judge" for "court"; and made nonsubstantive changes throughout.