HomeMy WebLinkAboutAgenda - 09-14-1993 - No Item Number 1
ORANGE COUNTY
BOARD OF COMMISSIONERS
Action Agenda
Item No.
ACTION AGENDA ITEM ABSTRACT
Meeting Date: Sept. 14, 1993
SUBJECT: Proposed Civil Rights Ordinance
DEPARTMENT: PUBLIC HEARING: x Yes No
ATTACHMENT(S) : INFORMATION CONTACT:
(under separate cover) Lucy Lewis, ext 2251
• Ordinance Summary
• Proposed Civil Rights
Ordinance
• 1991 Enabling Legislation TELEPHONE NUMBER:
• 1993 Enabling Legislation Hillsborough - 732-8181
Chapel Hill - 968-4501
Durham - 688-7331
Mebane - 227-2031
PURPOSE: To receive public comment on the proposed civil rights
ordinance.
BACKGROUND The Board of County Commissioners established the
Orange County Human Relations Commission (HRC) in 1987 in order
"to encourage mutual understanding and fair treatment of all
citizens and . . . encourage actions which reduce tensions among
groups of citizens in Orange County. " In 1991 , the HRC duly
organized, advertised, and conducted public hearings on
discrimination in areas including employment, housing, and public
accomodations. The HRC has determined that discrimination exists
in Orange County in areas including employment, housing, and
public accomodations on the basis of, or because of, race, color,
religions, sex, national origin, age, disability, marital status,
familial status and veteran status.
A public hearing was advertised publicly and held on April 1 ,
1991 to receive public comment on enabling legislation which
would authorize Orange County to adopt and implement a civil
rights ordinance. This enabling legislation was passed by the
General Assembly on June 10, 1991 . In 1993, technical
ammendments were proposed to the original enabling legislation to
include enforcement authority and to add familial status and
national origin as protected classes; this enabling legislation
was passed on July 16, 1993 .
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The proposed civil rights ordinance has been drafted by the
county attorneys . The county attorney' s office has researched
the law on each of these subjects. The civil rights ordinance
provides for local administration of Federal and State laws
prohibiting discrimination on the basis of race, color, religion,
sex, national origin, age, disability, marital status, or veteran
status in the areas of employment, housing, public accomodations,
and hate violence incidents .
Staff and commission members have provided public information
about the proposed ordinance in speaking with numerous local
business and civic groups . Copies of the civil rights
ordinance draft are available in the Orange County Public
Library, the Chapel Hill Public Library, and the Clerk to the
Commissioners ' office. The September 14 public hearing has been
publicly advertised.
RECOMMENDATION: The Board should receive citizen comments on the
proposed civil rights ordinance.
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ORANGE COUNTY CIVIL RIGHTS ORDINANCE SUMMARY
Orange County is considering adoption of a civil rights ordinance which
would provide for a local process of mediating, conciliating and
enforcing laws prohibiting discrimination. The County is also seeking
the support of Chapel Hill , Carrboro , and Hillsborough in considering
adoption of the ordinance . The County will hold a public hearing on
Tuesday, September 14 , 7 : 30 p.m. , at the new Orange County Superior
Courthouse in Hillsborough.
BACKGROUND
The Board of County Commissioners established the Orange County Human
Relations Commission in 1987 in order "to encourage mutual under-
standing and fair treatment of all citizens and . . . encourage actions
which reduce tensions among groups of citizens in Orange County. "
The Human Relations Commission is composed of twenty-three members . The
towns of Carrboro , Chapel Hill and Hillsborough are each allocated two
seats , with the remaining seventeen considered at-large seats with
representation sought from all townships .
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Following a series of public hearings in 1989 , the Commission reported
to the Board of Commissioners that state and federal laws and mechanisms
to protect against discrimination do not adequately protect the rights
of Orange County citizens . The Board then instructed the Commission to
draft a civil rights ordinance that would achieve the goals stated by
the Board when it created the Human Relations Commission.
HUMAN RELATIONS COMMISSION ACTIVITIES
The Human Relations Commission is committed to promoting understanding
and good human relations among all Orange County citizens . Last fall ,
the Commission sponsored a diversity training workshop for local
community leaders . This spring, the group co-sponsored a "Fair Housing
and Lending Laws Forum" for the real estate and financial communities .
The Human Relations Commission is currently seeking nominations for the
annual Pauli Murray Human Relations Award.
Regular Commission meetings are held the second Monday of each month.
Meetings are open to the public and citizens are welcome to attend.
ORDINANCE PURPOSE AND SCOPE
The purpose of the Ordinance is "to promote the equal treatment of all
individuals; to prohibit discrimination in Orange County based on race ,
color , religion, sex , national origin, age, disability, marital status ,
familial status , and veteran status; to protect residents ' lawful
interests and their personal dignity. . . and to prevent public and
domestic strife, crime, and unrest within Orange County" . It is the
further purpose of the ordinance "to carry out in Orange County the
policies provided for in various federal rules, regulations , and laws
prohibiting discrimination in, among other areas , housing, employment,
public accommodations . "
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COMMONLY ASKED QUESTIONS AND ANSWERS
Q. What are the benefits of a local civil rights ordinance?
A. Benefits cited by other N.C. human relations commissions include :
1 . Improved access for complainants and respondents
2 . Increased opportunities for mediation and conciliation
3 . Quicker, less expensive, and more effective resolution of
complaints
4 . Educational workshops , seminars and technical assistance
A local enforcement agency provides a more accessible, user-friendly
way to ask questions, and address and handle problems . The
ordinance seeks resolutions to complaints through mediation and
conciliation whenever possible, facilitating positive resolution of
complaints without time-consuming, expensive litigation . A local
process can usually handle complaints faster than a federal or state
agency, and provide individualized attention to both complainant and
respondent. Staff can provide up-to-date technical assistance,
training seminars and workshops , and consultation to prevent
discriminatory practices and provide equal opportunities for all
Orange County citizens .
Q . Does the proposed ordinance add another level of regulation to
existing federal rules, regulations, and laws prohibiting
discrimination?
A. No . The ordinance would replace federal and state enforcement
levels with a local process for mediation, conciliation, and if
necessary, enforcement of laws prohibiting discrimination.
Q . Does the proposed ordinance expand existing citizen rights?
A. No. The ordinance would prohibit discrimination in the areas of
housing , employment, public accommodations and hate violence
incidents , areas currently protected by federal and state laws .
Q . Does the proposed ordinance infringe on the constitutionally
protected right to free speech?
A. No . The ordinance prohibits language or conduct "which communicate
in a threatening manner words that incite imminent lawless action or
. . . an immediate breach of the peace" directed at an individual ( s )
based on race, color, religion, sex , national origin, age ,
disability, marital status , familial status or veteran status . This
is consistent with existing state laws . However, the ordinance also
states , "No person shall be found to have violated this ordinance on
the basis of the content of the utterance, speech, or communication
used by such person. "
For more information, contact:
Orange County Human Relations Commission
P .O. Box 8181
Hillsborough, NC 27278
967-9251/732-8181/227-2031/688-7331 ext . 2250
GENERAL ASSEMBLY OF NORTH CAROLINA
1991 SESSION
RATIFIED BILL
CHAPTER 246
SENATE BILL 623
AN ACT TO MAKE VARIOUS AMENDMENTS TO LAWS APPLICABLE IN
ORANGE AND CHATHAM COUNTIES.
The General Assembly of North Carolina enacts:
TITLE I. ORANGE COUNTY.
Part 1. Orange County Land Use and Development.
Section 1. The first paragraph of G.S. 153A-331(a), as applicable to
Orange County because of Sections 17 and 17.1 of Chapter 460 of the 1987 Session
Laws, reads as rewritten:
"A subdivision control ordinance may provide for the orderly growth and
development of the county; for the coordination of streets and highways within
proposed subdivisions with existing or planned streets and highways and with other
public facilities; for the dedication or reservation of recreation areas serving residents
of the immediate neighborhood within the subdivision and residents of the immediate
area within which the subdivision is located and of rights-of-way or easements for
Pt street and utility purposes including the dedication of rights-of-way pursuant to G.S.
136-66.10 or G.S. 136-66.11; and for the distribution of population and traffic in a
manner that will avoid congestion and overcrowding and will create conditions
essential to public health, safety, and the general welfare. The ordinance may include
requirements that the final plat show sufficient data to determine readily and
reproduce accurately on the ground the location, bearing, and length of every street
and alley line, lot line, easement boundary line, and other property boundaries,
including the radius and other data for curved. property lines, to an appropriate
accuracy and in conformity with good surveying practice. A subdivision control
ordinance may provide that a developer may be required to provide funds to the
county whereby the county may acquire and develop recreational land or areas to
serve the development or subdivision, including the purchase of land which may be
used to serve more than one subdivision or development within the immediate area.
A subdivision control ordinance may define immediate area by reference to a
comprehensive system of parks and recreation areas within the county."
Sec. 2. G.S. 153A-340, as applicable to Orange County because of
Sections 18 and 18.1 of Chapter 460 of the 1987 Session Laws, is amended by adding
a new subsection (al) to read:
"(a 1) Density bonus. For the purposes of increasing the availability of housing for
persons of low and moderate income, and thereby promoting the public health, safety
and welfare, a county may grant a density bonus or provide other incentives of
equivalent financial value to a developer of housing within the county if the
developer agrees:
(1) To construct at least 40 percent (40%) of the total duplex or
multifamily units of a housing development for rent to persons and
families earninc less than sixty percent (60%) of Orange County
median income, adjusted for family size, as determined by the U.S.
Department of FIOLISill 'r and Urban Development hereinafter
'median income');
(2) To construct at least twenty percent (20%) of the total duplex or
multifamily units of a housing development for rent to families
earning less than fifty percent (50%) of median income;
(3) To construct the greater of two or all of the bonus of the total
single family residential units of a housing development for sale to
persons and families earning less than eighty percent (80%) of the
median income: or
4) To donate land to Orange County to be used for the purpose of
the development of affordable housing. provided that the land
donated must have suitable soils or access to public water and
sewer and be sufficient in size for the greater of two or all the
bonus Linits.
For the purposes of this subsection. 'density bonus' means a density increase of at
least twenty-five percent (25%) over the otherwise maximum allowable residential
density under the applicable zoning classification, The density bonus shall not be
included when determining the number of housing units that constitutes the
minimum required to be made available to low and moderate income housing."
Sec. 3. O.S. 153A-342 reads as rewritten:
"§ 153A-342. Districts; zoning less than entire jurisdiction.
A county may divide its territorial jurisdiction into districts of any number, shape,
and area that it may consider best suited to carry out the purposes of this Part, Within
these districts a county may regulate and restrict the erection, construction,
reconstruction, alteration, repair, or use of buildings, structures, or land. Such
districts may include, but shall not be limited to, general use districts, in which a
variety of uses are permissible in accordance with general standards; overlay districts,
in which additional requirements are imposed on certain properties within one or
more underlying general or special use districts; and special use districts or
conditional use districts, in which uses are permitted only upon the issuance of a
special use permit or a conditional use permit. Property may be placed in a special
use district or conditional use district only in response to a petition by the owners of
all the property to be included. Except as authorized by the foregoing, and by G.S.
153A-340, all regulations shall be uniform for each class or kind of building
throughout each district, but the regulations in one district may differ from those in
other districts.
A county may determine that the public interest does not require that the entire
territorial jurisdiction of the county be zoned and may designate one or more
portions of that jurisdiction as a zoning area or areas. A zoning area must originally
contain at least 640 acres and at least 10 separate tracts of land in separate ownership
and may thereafter be expanded by the addition of any amount of territory. A zoning
area may be regulated in the same manner as if the entire county were zoned, and
the remainder of the county need not be regulated."
Sec. 4. G.S. 160A-407 reads as rewritten:
"§ 160A-407. Definitions.
(a) For the purpose of this Part an 'open space' or 'open area' is any space or area
(i) characterized by great natural scenic beauty ert. (ii) whose existing openness,
natural condition, or present state of use, if retained, would enhance the present or
potential value of abutting or surrounding urban development, or would maintain or
enhance the conservation of natural or scenic - - . resources, (iii) that would
assure, preserve, and protect watershed. areas as a basic asset and natural resource so
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as to prevent the impairment of drinking water supplies, or (iv) that would assure.
preserve, protect, and maintain the purity and the quality of reservoir waters and
would promote the health, safety, and welfare of the people of the State.
(b) For the purposes of this Part `open space' or `open area' and the `public use
and enjoyment' of interests or rights in real property shall also include open space
land and open space uses. The term `open space land' means any undeveloped or
predominantly undeveloped land in an urban area that has value for one or more of
the following purposes: (i) park and recreational purposes, (ii) conservation of land
and other natural resources, Of (iii) historic or scenic purposes. purposes, (iv)
farmland, or (v) conservation of watershed areas and drinking water supplies to
prevent the impairment thereof and assure, preserve, protect, and maintain the purity
and quality of reservoir waters. The term `open space uses' means any use of open
space land for (i) park and recreational purposes, (ii) conservation of land and other
natural resources, or (iii) historic or scenic purposes. purposes, (iv) farmland, or (v)
conservation of watershed areas and drinking water supplies to prevent the
impairment thereof and assure, preserve, protect, and maintain the purity and quality
of reservoir waters,"
Sec. 5, G.S. 153A-121 is amended by adding a new subsection to read:
"(d) A county may by ordinance require the owners and the operators of
community systems of sewage collection, treatment, and disposal, to provide the
county with performance bonds, letters of credit, or certificates of deposit in amounts
sufficient to cover (i) the initial design, installation, and performance of the system to
design standards; (ii) system component replacement; and (iii) system maintenance.
A community system of sewage collection, treatment, and disposal is one which
serves more than one user and is not owned or operated by a local government unit
or a North Carolina water and sewer authority."
Part 2. Orange County Civil Rights Ordinance.
Sec. 6. Orange County Civil Rights Ordinance. (a) The Board of
Commissioners of Orange County may adopt an ordinance (hereinafter "Civil Rights
Ordinance" or "Human Rights Ordinance") designed: to promote equal treatment of
all individuals; to discourage discrimination based on religion, age, sex, race,
disability, or marital status; to help residents find ways to meet and solve problems
arising from discrimination by use of public meetings, counseling, mediation where
appropriate, and the civil and criminal courts as necessary; to continue to protect the
lawful interests of residents and to recognize the dignity of each person so as to make
available to the county the full productive and creative capacities of its citizens; to
prevent public and domestic strife, crime and unrest; to preserve the public health,
safety and general welfare; to promote the policy within Orange County that all
individuals, child and adult, female and male, shall have equal rights throughout
Orange County and every place subject to its jurisdiction; to carry out in Orange
County the policies provided for in various federal rules, regulations, and laws
prohibiting discrimination in housing, employment, places of public accommodation,
public transportation, voting and education; and to address the deprivation of the free
exercise or enjoyment of any right, privilege, or immunity secured by the Constitution
of North Carolina, not inconsistent with the Constitution of the United States.
(b) The Board of Commissioners of Orange County may, by ordinance or
otherwise, create an agency or commission (hereinafter "agency") of Orange County
to assist in the enforcement of an Orange County Civil Rights or Human Rights
Ordinance and to receive, initiate, investigate, seek to conciliate, hold hearings on
and pass upon complaints, to mediate alleged violations of the ordinance, to issue
orders against persons it finds, after notice and hearing, to have violated the
ordinance, and to seek court enforcement of its orders.
Senate Bill 623 3
(c) Judicial review of agency orders shall be in accordance with Article 4
of Chapter 150B of the General Statutes (The Administrative Procedure Act).
Provided, however, that all petitions for judicial review shall be filed in the Superior
Court of Orange County. The term "agency," whenever used in Article 4 of Chapter
150B of the General Statutes, shall mean the agency as authorized or created by the
Board of Commissioners of Orange County by authority of this section.
(d) An ordinance adopted pursuant to this section applies to any part of
Orange County not within a municipally incorporated city, town. or village. The
governing board of a city, town, or village within Orange County may, by resolution,
permit an Orange County ordinance adopted pursuant to this section to be applicable
within its corporate boundaries. A city, town, or village may, by resolution, withdraw
its permission to enforce such an ordinance. If it does so, it shall give written notice
to Orange County of its withdrawal of permission. Thirty days after the date Orange
County receives the permission withdrawal notice, the county ordinance ceases to be
applicable within the city, town, or village.
(e) This section applies only to Orange County.
Part 3. Orange County Hunting and Fishing Regulation.
Sec. 7. Section 2 of Chapter 651 of the 1989 Session Laws reads as
rewritten:
"Sec. 2. This act applies only to Alamance Alamance, Orange, and Rockingham
Counties."
Part 4. Orange County School Payday.
Sec. 8. Notwithstanding G.S. 115C-302(a) and G.S. 115C-316(a), the
Orange County Board of Education may pay its academic teachers, occupational
education teachers, guidance counselors, assistant principals, and other instructional
personnel employed for less than 12 months of the school year on the fifteenth day of
each month during which they are employed.
TITLE II. CHATHAM COUNTY.
Sec. 9. Possession and Use of Firearms in Chatham County. (a) It is
unlawful for any person to hunt with a firearm or bow and arrow, or to possess any
firearm or bow and arrow, while on the land of another unless he has, on his person,
a paper writing dated and signed by the owner or lessee of the land granting the
person permission to hunt or possess a firearm or how and arrow while on the land.
If the land is owned by or leased to a club, the permission must be signed by the club
president or other chief executive, by whatever name known. If the land is owned by
or leased to a corporation. the permission must be signed by the president or vice-
president of the corporation, or the authorized designee of the president or vice-
president. Permission shall not be valid for a period in excess of one year, but may be
valid for any shorter period stated in the permission. The written permission shall he
displayed upon request to any law enforcement officer authorized to enforce this
section.
b) Definitions. The following definitions apply to this section:
1) To hunt - To take wild animals or wild birds.
To take - All operations during, immediately preparatory to, and
immediately subsequent to an attempt, whether successful or not,
to capture, kill, pursue, hunt, or otherwise harm or reduce to
possession any wild animal or wild bird.
- • (c) It is unlawful for any person to possess a loaded firearm on the land
of another while under the influence of an impairing substance. For purposes of this
subsection, a person is under the influence of an impairing substance when he has
consumed a sufficient quantity of any impairing substance to cause him to lose the
normal control of his bodily or mental faculties, or both, to such an extent that there
is an appreciable impairment of either or both of these faculties.
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(d) It is unlawful for any parent, guardian, or person standing in loco
parentis, to knowingly permit his child under the age of -16 years to have the
possession, custody, or use in any manner whatever, of a firearm, whether such
weapon is loaded or unloaded, except when the child is under the supervision of the
parent, guardian, or person standing in loco parentis. It is unlawful for any person
other than a parent, guardian, or person standing in loco parentis, to knowingly
furnish a child under the age of 16 years any weapon enumerated herein without first
obtaining permission of the child's parent or guardian, or of the person standing in
loco parentis to the child.
(e) Violation of any provision of this section is a misdemeanor
. punishable by a fine of not less than two hundred fifty dollars ($250.00), by
imprisonment for a period not to exceed two years in the discretion of the court, or
by both.
(f) Any person convicted of violating this section shall be ordered by the
presiding judge to complete a hunter safety course as prescribed by G.S. 113-270.1A.
(g) This section is enforceable by law enforcement officers of the
Wildlife Resources Commission, by sheriffs and deputy sheriffs, and by other law
enforcement officers with general subject matter jurisdiction.
(h) This section applies to Chatham County only.
Sec. 10. Sections 1 through 6 and Section 8 of this act apply to Orange
County only. Section 8 of this act becomes effective August 1, 1991. Section 9 of this
act becomes effective October 1, 1991. The remainder of this act is effective upon
ratification.
In the General Assembly read three times and ratified this the 10th day of
June, 1991.
JAMES C. GARDNER
James C. Gardner
President of the Senate
DANIEL BLUE, JR
Daniel Blue, Jr.
Speaker of the House of Representatives
Senate Bill 623 5
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GENERAL ASSEMBLY OF NORTH CAROLINA
1993 SESSION
RATIFIED BILL
CHAPTER 358
SENATE BILL 809
AN ACT TO NTS IN ORANGE AND CHATHAM AMENDMENTS
COUNTIES.
G TO LOCAL
GOVERNMENTS
The General Assembly of North Carolina enacts:
PART I. TOWN OF CHAPEL HILL
Section 1. (a) Section 4 of Chapter 911 of the 1981 Session Laws reads
as rewritten:
"Sec. 4. Notwithstanding any provision of the State Building Code or any public
or local law to the contrary, including, but not limited to, Chapter 143 of the General
Statutes, a town is authorized to require by ordinance the inclusion of sprinklers
sprinkler systems in all buildings in excess of 50 feet in height constructed within the
corporate limits of the town or within the town's extraterritorial planning jurisdiction
after the effective date of said ordinance.
In addition. a town may require by ordinance the inclusion of sprinkler systems in:
(l) All nonresidential buildings regardless of height; and
(2) Residential buildings having three or more dwelling units
regardless of height
if such buildings are constructed within the corporate limits of the town or within the
town's extraterritorial planning jurisdiction after the effective date of the ordinance."
(b) This section applies to the Town of Chapel Hill only.
Sec. 2. The Charter of the Town of Chapel Hill, being Chapter 473,
Session Laws of 1975, is amended by adding a new section to read:
"Sec. 2.5. Recall of Mayor and Council Members by the People.
The mayor and any member of the Town Council may be removed from office in
the following manner:
(1) Any registered voter of the Town may make and file with the
Supervisor of Elections of the Board of Elections of Orange
County an affidavit containing the name of the official whose
removal is sought and a general statement of the grounds alleged
for removal. The supervisor of elections shall thereupon deliver to
the registered voter making such affidavit copies of petitions for
demanding such a removal, printed forms of which the supervisor
of elections shall keep on hand. Such blank forms shall be issued
by the supervisor of elections with his or her signature thereto
attached and shall be dated and addressed to the Board of
Elections of Orange County, indicate the person to whom issued,
state the name of the official whose removal is sought, and shall
contain the general statement of the grounds on which the removal
4 is sought as alleged in the affidavit.
(2) A copy of the petition shall be promptly delivered to the Town
• Clerk who shall enter the copy of the petition in a record book
kept for that purpose in the office of the clerk. A recall petition to
be effective must be returned within 30 days after the filing of the
affidavit, and to be sufficient must bear the signatures of registered
voters of the Town equal in number to at least eight percent (8%)
of the registered voters of the Town as shown by the registration
records of the last preceding general municipal election. The
signatures to the petition need not all be appended to one paper,
but each signer shall add to his signature his place of residence,
giving the street and number. One of the signers of each such
paper shall make oath before an officer competent to administer
oaths that each signature to the paper appended is the genuine
signature of the person whose name it purports to be.
(3) It is the duty of the Board of Elections of Orange County to
investigate the sufficiency of any such petition and to certify the
results of such investigation to the Town Council. The Board of
Elections may employ such persons as it deems necessary to
undertake such investigation and the reasonable cost of such
investigation shall be reimbursed to the Board of Elections by the
Town. The Board of Elections may adopt such rules and
regulations as it deems necessary or. advisable concerning the
validation of signatures appearing on the recall petition.
(4) The Board of Elections shall complete its investigation and issue its
certification of the results of such investigation within 15 days after
the filing of any such petition. If, by the Board's certification, the
petition.is shown to be insufficient, it may be amended within 10
days from the date of said certificate. The Board shall, within 10
days after such amendment, make like examination of the amended
petition, and if its certificate shall show the same to be insufficient,
it shall he returned to the person filing the same. without
prejudice, however, to the filing of a new petition to the same
effect.
(5) Upon a determination that a sufficient recall petition has been
submitted, the Board of Elections shall order and fix a date for
holding a recall election. Any such election shall be held not less
than 50 nor more than 70 days after'the petition has been certified
as being sufficient. If any other general or special election is
scheduled within such period, the Board shall schedule the special
election at the same time. If the provisions of general law prohibit
the holding of special elections during the time aforesaid, and no
general or special election is otherwise scheduled during said
period of time, then the Board shall schedule said special recall
election for some date within 10 days after the last day of said
period of time during which special elections are prohibited by
general law.
Notwithstanding the requirements of,.the first paragraph of
this subdivision requiring ar, election to be held within 50 to 70
days after a petition has been certified as being sufficient, no recall
election shall be scheduled during the time period beginning on
the first Monday in July and ending on the last Monday in August
in any calendar year.
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Page 2 Senate Bill 809
If the 50- to 70-day time period during which an election is
to be scheduled falls completely within the time period beginning
on the first Monday in July and ending on the last Monday in
August, the recall election shall be postponed and shall be
scheduled within 10 days after the last Monday in August, unless
otherwise prohibited by general law, in which case said election
shall be scheduled within 10 days after the last day of said period
of time during which special elections are prohibited by general
law.
If the 50- to 70-day time period during which an election is
to be scheduled falls partially but not completely within the period
from the first Monday in July to the last Monday in August, a
recall election shall be scheduled during the time period either
before the first Monday in July or after the last Monday in August
which otherwise complies with the 50- to 70-day requirement
unless otherwise prohibited by general law, in which case the
election shall be scheduled within 10 days after the last day of said
period of time during which special elections are prohibited by
general law or this charter.
(6) The Orange County and Durham County Board of Elections shall
make, or cause to be made, publication for 10 days of notice and
all arrangements for holding such election, and the same shall be
conducted, returned, and the results thereof declared in all respects
as other Town elections in the Town of Chapel Hill. The
reasonable costs of such election shall be reimbursed to the Boards
• of Elections by the Town.
(7) The question of recalling any number of officials may be submitted
at the same election, but, as to each such official, a separate
petition shall be filed and there shall be an entirely separate ballot.
(8) The ballots used in a recall election shall submit the following
propositions in the order indicated:
For the recall of (name and title of official).
Against the recall of (name and title of official).
(9) If a majority of the votes cast on the question of recalling an
official be against recall, the official shall continue in office for the
remainder of the unexpired term, but, except as provided by
subdivision (13) of this section, subject to the recall as before. If a
majority of such votes is for the"recall of the official designated on
the ballot, the official shall, regardless of any defects in the recall
petition, be deemed removed from office.
(10) If an official is removed from office as a result of a recall election,
the vacancy so caused shall be filled in the manner provided by
this charter for filling vacancies in such office, or if not provided
by this charter, in the manner provided by general law. An official
removed from office by the voters as a result of a recall election
shall not be appointed to fill the vacancy caused by his own
removal or resignation.
(11) The Boards of Elections of Orange County and Durham County
may enter into such agreements as they may deem appropriate to
share or transfer responsibility for determining the sufficiency of a
petition for a recall election and for carrying out other provisions
of this section.
Senate Bill 809 Page 3
(12) The provisions of Section 2 of Chapter 1023, 1987 Session Laws,
incorporated as Section 2.4 of the Charter of the Town of Chapel
Hill, requiring campaign reporting in Town of Chapel Hill
elections, shall apply to all candidates and political committees as
defined in Article 22A of Chapter 163 of the General Statutes in
Town of Chapel Hill recall elections.
(13) No recall petition shall be filed against an officer who has been
subjected to a recall election and not removed thereby, until at
least six months after that election."
Sec. 3. The Charter of the Town of Chapel Hill, being Chapter 473,
Session Laws of 1975, is amended by adding the following new section to read:
"Sec. 5.7A. `Denver Boot' or `Wheel Lock' Devices. The Town of Chapel Hill may
provide by ordinance for the use of wheel locks on illegally parked vehicles for which
there are outstanding, unpaid, and overdue parking tickets. The ordinance shall
provide for notice or warning to be affixed to the vehicle, immobilization, towing,
impoundment, appeal hearing, an immobilization fee not to exceed fifty dollars
(550.00), and charges for towing or storage. The Town shall not be responsible for
any damage to an immobilized illegally parked vehicle resulting from unauthorized
attempts to free or move such vehicle."
Sec. 4. The North Carolina Department of Transportation may lease a
portion of the "air rights" area of the right-of-way on the east side of U.S. 15-501
Business.(Columbia Street) between Franklin Street and Cameron Avenue in Chapel
Hill to a development company owning property adjacent to the right-of-way if all of
the following conditions are met:
(1) The leased right-of-way is used in connection with a development
for which a special use permit has been approved by the governing
board of the Town of Chapel Hill pursuant to Chapter 160A of the
General Statutes.
(2) The Department of Transportation determines that the use
authorized by the lease will not unreasonably interfere with or
impair any property rights or easements of abutting owners or
unreasonably interfere with or obstruct the maintenance of the
highway structure located on the right-of-way.
(3) The State is held harmless for any injury occurring on the leased
property; and the lease agreement contains any other reasonable
terms and conditions the Department of Transportation considers
appropriate.
Sec. 5. Section 1 of Chapter 478 of the 1989 Session Laws reads as
rewritten:
"Section 1. The Charter of the Town of Chapel Hill, being Chapter 473. Session
Laws of 1975, is hereby amended by adding a new Section 5.20 to read as follows:
`Sec. 5.20. Ordinances permitting low and moderate housing and providing density
bonuses.
(a) For the purpose of increasing the availability of housing for persons of low
and moderate income, and thereby promoting the public health, safety and welfare,
the Town of Chapel Hill may grant a density, bonus or provide other incentives of
equivalent financial value to a developer of housing within• the Town and its
extraterritorial planning jurisdiction, if the developer agrees:
(1) To construct at lcaA up to but no more than twenty-five percent
(25c7c) of the total units of a housing development for persons and
families of low or moderate income; or, or
•
Page 4 Senate Bill 809
(2) To construct at least up to but no more than ten percent (10%) of
the total units of a housing development for lower income
households.
(b) For the purposes of this Article, "density bonus" means a density increase of
at least up to but no more than twenty-five percent (25%) over of the otherwise
maximum allowable residential density under the applicable zoning classification.
The density bonus shall not be included when determining the number of housing
units which is equal to up to but no more than ten percent (10%) or twenty-five
percent (25%) of the total. The Town may apply the density bonus to housing
developments consisting of five or more dwelling units."
PART II. TOWN OF CARRBORO
Sec. 6. The Charter of the Town of Carrboro, being Chapter 476,
Session Laws of 1987, is hereby amended by adding a new section to read:
"Sec. 2-6. Recall of Mayor and Members of the Board of Aldermen. (a) The
Mayor and any member of the Board of Aldermen may be removed from office in
the manner provided for in this section.
(b) Any registered voter of the Town of Carrboro may make and file with the
Supervisor of Elections of the Board of Elections of Orange County an affidavit
containing the name of the official whose removal is sought and a general statement
of the grounds alleged for removal. The supervisor of elections shall thereupon
deliver to the registered voter,-- making such affidavit copies of petitions for
demanding such a removal, printed forms of which the supervisor of elections shall
keep on hand. Such blank forms shall be issued by the supervisor of elections with
his or her signature thereto attached and shall be dated and addressed to the Board
of Elections of Orange County, indicate the person to whom issued, state the name of
the official whose removal is sought, and shall contain the general statement of the
• grounds on which the removal is sought as alleged in the affidavit.
(c) A copy of the petition shall be promptly delivered to the town clerk, who shall
enter the copy of the petition in a record book kept for that purpose in the office of
the clerk. A recall petition to be effective must he returned within 30 days after the
filing of the affidavit, and to be sufficient must bear the signatures of registered voters
of the town equal in number to at least eight percent (8%) of the registered voters of
the town as shown by the registration records of the last preceding general municipal .
election. The signatures to the petition need not all be appended to one paper, but
each signer shall add to his signature his place. of residence, giving the street and
number. One of the signers of each such paper shall take an oath before an officer
competent to administer oaths that each signature to the Paper appended is the
genuine signature of the person whose name it purports to be.
(d) It is the duty of the Board of Elections of Orange County to investigate the
sufficiency of any such petition and to certify the results of such investigation to the
Board of Aldermen. The Board of Elections may employ such persons as it deems
necessary to undertake such investigations, and the reasonable cost of such
investigation shall be reimbursed to the Board of Elections by the Town. The Board
of Elections may adopt such rules and regulations as it deems necessary or advisable
concerning the validation of signatures appearing on the recall petition.
(e) The Board of Elections shall complete its investigation and issue its
certification of the results of such investigation within 15, days after the filing of any
such petition. lf, by the Board of Elections' certification, the petition is shown to be
insufficient, it may be amended within 10 days from the date of said certificate. The
Board shall, within 10 days after such amendment, make like examination of the
amended petition. and if its certificate shall show the same to be insufficient, it shall
• be returned to the person filing the same, without prejudice, however, to the filing of
a new petition to the same effect.
Senate Bill 809 Page 5
(f) Upon a determination that a sufficient recall petition has been submitted, the
Board of Elections shall order and fix a date for holding a recall election. Subject to
the remaining provisions of this subsection, any such election shall be held not less
than 50 nor more than 70 days after the petition has been certified as being sufficient.
If any other general or special election is scheduled within such period, the Board of
Elections shall schedule the special election at the same time. If the provisions of
general law prohibit the holding of special elections during the time aforesaid, and no
general or special election is otherwise scheduled during said period of time, then the
Board of Elections shall schedule said special recall election for some date within 10
days after the last day of said period of time during which special elections are
prohibited by general law.
Notwithstanding the other provisions of this subsection, no recall election shall be
scheduled during the time period beginning on the first Monday in July and ending
on the last Monday in August in any calendar year.
If the 50- to 70-day time period during which an election is to be scheduled falls
completely within the time period beginning on the first Monday in July and ending
on the last Monday in August, the recall election shall be postponed and shall be
scheduled within 10 days after the last Monday in August, unless otherwise
prohibited by general law, in which case said election shall be scheduled within 10
days after the last day of said period of time during which special elections are
prohibited by general law.
If the 50- to 70-day time period during which an election is to be scheduled falls
partially but not completely within the period from the first Monday in July to the
last Monday in August. a recall election shall be scheduled during the time period
either before the first Monday in July or after the last Monday in August which
otherwise complies with the 50- to 70-day requirement unless otherwise prohibited by
general law, in which case said election shall be scheduled within 10 days after the
last day of said period of time during which special elections are prohibited by
general law or this charter.
(g) The Orange County Board of Elections shall cause legal notice of the election
to be published and shall make all arrangements for holding such election in
accordance with general law, and the same shall be conducted, returned, and the
results thereof declared in all respects as other town elections in the Town of
Carrboro. The reasonable costs of such election shall be reimbursed to the Board of
Elections by the town.
(h) The question of recalling any number of officials may be submitted at the
same election, but, as to each such official, a separate petition shall be filed and there
shall be an entirely separate ballot.
(i) The ballots used in a recall election shall submit the following propositions in
the order indicated:
For the recall of (name and title of official)
Against the recall of (name and title of official).
(j) If a majority of the votes cast on the question of recalling an official be against
recall, the official shall continue in office for the remainder of the unexpired term,
but, except as provided by subsection (1) of this section, subject to the recall as
before. If a majority of such votes be for the recall of the official designated on the
ballot, the official shall. regardless of any defects in the recall, petition, be deemed
removed from office.
(k) If an official is removed from office as a result of a recall election, the vacancy
so caused shall be filled in the manner provided by this charter for filling vacancies
in such office, or if not provided by this charter, in the manner provided by general
law. An official removed from office by the voters as a result of a recall election
shall not be appointed to fill the vacancy caused by his own removal or resignation.
Page 6 Senate Bill 809
(1) No recall petition shall be filed against an officer who has been subjected to a
recall election, and not removed thereby, until at least one year after that election."
PART III. TOWN OF PITTSBORO
Sec. 7. (a) In addition to the purposes listed under G.S. 136-41.3, a town
may expend funds allocated to it under the provisions of G.S. 136-41.2 for
construction of sidewalk cuts made necessary by the Americans with Disabilities Act.
All the other provisions of G.S. 136-41.3 apply as if such expenditure were
authorized by that section.
(b) This section applies only to contracts entered into, or construction
begun, by the Town of Pittsboro within one year of the date of ratification of this act.
Sec. 8. (a) Notwithstanding G.S. 160A-384 or any other provision of
law, when a town is adopting a local water supply watershed protection program as
required by G.S. 143-214.5, in lieu of mailing a notice of proposed zoning
classification actions to any party or other person, the town may publish once a week
for four successive calendar weeks in a newspaper having general circulation in the
area maps showing the boundaries of the area affected by the proposed watershed
regulation. The map shall not be less than one-half of a newspaper page in size. The
notice shall only be effective for property owners who reside in the area of general
circulation of the newspaper that publishes the notice. Property owners who reside
outside of the newspaper circulation area, according to the address listed on the most
recent property tax listing for'the affected property, shall be notified by mail pursuant
to G.S. 160A-384. The person or persons mailing the notices shall certify to the city
council that fact, and the certificates shall be deemed conclusive in'the absence of
fraud. Further, one or more signs giving notice of the proposed zoning change shall
be posted adjacent to the subject property that shall be reasonably calculated to give
public notice of the proposed change. •
(b) Notwithstanding G.S. 160A-364 or any other provision of law, when
a town is adopting or amending any ordinance in order to adopt a local water supply
watershed protection program as required by G.S. 143-214.5, the town shall hold a
public hearing on the ordinance or amendment. Notice of the hearing shall be
published along with the notice required by subsection (a) of this section. The
hearing shall be held not less than 10 days nor more than 25 days after the day of last
publication required by subsection (a) of this act. In computing such period, the day
of last publication is not to be included, but the day of hearing shall be included.
(c) This section applies to the Town of Pittsboro only.
. Sec. 9. (a) Notwithstanding the provisions of G.S. 105-53(a) and (m), the
Town of Pittsboro may levy a license tax on peddlers who travel from place to place
on foot, other than peddlers exempt from tax' pursuant to G.S. 105-53(e), in an
amount that does not exceed twenty-five dollars (S25.00). Notwithstanding the
provisions of G.S. 105-33(c), the Town of Pittsboro may require peddlers, other than
peddlers exempt from tax pursuant to G.S. 105-53(e), who begin business in the town
after the expiration of seven months of the town's current license year to pay one
hundred percent (100%) of the applicable license tax levied by the town.
(b) This section applies to the Town of Pittsboro only.
PART IV. CHATHAM COUNTY/TOWNS OF PITTSBOROISILER CITY
Sec. 10. (a) G.S. 158-7.1(a) reads as rewritten:
"(a) Each county and city in this State is authorized,to make appropriations for
the purposes of aiding and encouraging the location of 'manufacturing enterprises,
making industrial surveys and locating industrial and commercial plants in or near
such city or in the county; encouraging the building of railroads or other purposes
which, in the discretion of the governing body of the city or of the county
commissioners of the county, will increase the population, taxable property,
agricultural industries and business prospects of any city or county. These
Senate Bill 809 Page 7
appropriations may be funded by levy of property taxes pursuant to G.S. 153A-149
and 160.\ 20') G.S. 160A-209. by the allocation of general fund and utility fund
revenues. and by the allocation of other revenues unless the use of the other revenues
for local development purposes has been expressly prohibited whose use is not
otherwirse restricted by law."
(b) This section applies to Chatham C ounty and the Towns of Pittsboro
and Siler City.
Sec. 11. (a) G.S. 158-7.1(b)(1) reads as rewritten:
"(1) A county or city may acquire and develop land for an industrial
park, to be used for manufacturing, assembly, fabrication,
processing, warehousing, research and development, office use, or
similar industrial or commercial purposes. A county may acquire
land anywhere in the county, including inside of cities, for an
industrial park, while a city may acquire land anywhere in the
county or counties in which it is located. A county or city may
develop the land by installing utilities, drainage facilities, street and
transportation facilities, street lighting, and similar facilities; may
demolish or rehabilitate existing structures; and may prepare the
site for industrial or commercial uses. A county or city may
-engage in site preparation including installation of utilities. grading,
and paving for industrial properties or facilities. whether the
industrial property is publicly or privately owned. Site preparation
includes. but is not limited to, grading. clearing. installation of
utilities. and construction and paving of roads. A county or city
may convey property located in an industrial park pursuant to
subsection (d) of this section."
(b) This section applies only to Chatham County and the Towns of
Pittsboro and Siler City.
Sec. 12. (a) G.S. 158-7.1(b) is amended by adding the following new
subdivision:
"(6) The county or city may expend funds for or may provide for or
assist in the extension of water and sewer lines to industrial
properties or facilities whether the industrial property or facility is
publicly or privately owned."
(b) This section applies only to Chatham County and the Towns of
Pittsboro and Siler City.
Sec. 13. G.S. 158-7.1(d1), as amended, reads as rewritten:
"(dl) In arriving at the amount of consideration that it receives, the Board may
take into account prospective tax revenues from improvements to he constructed on
the property, prospective sales tax revenues to be generated in the area, as well as
any other prospective tax revenues or income coming to the county or city over the
next 10 years as a result of the conveyance or lease provided the following conditions
are met:
(1) The governing board of the, county or city shall determine that the
conveyance of the property will stimulate the local economy,
promote business, and result in the creation of a substantial
number of jobs in the county or city.
(2) The governing board of the county or city shall contractually bind
the purchaser of the property to construct improvements on the
property within a specified period of time, not to exceed 10 years,
which improvements are sufficient to generate the tax revenue
taken into account in arriving at the consideration. Upon failure
Page 8 Senate Bill S09
to construct the improvements specified in the contract, the
purchaser shall reconvey the property back to the county or city.
This subsection applies to the Cities of Angier, Broadway, Burnsville, Charlotte,
Clinton, Coats, Concord, Connelly Springs, Conover, Drexel, Dunn, Erwin, Glen
Alpine, Granite Falls, Greensboro, High Point, Hildebran, Hot Springs, Kannapolis,
Lillington, Marion, Mars Hill, Marshall, Monroe, Mocksville, Mooresville, Morganton,
Mount Airy, Old Fort, Pittsboro, Rhodhiss, Rocky Mount, St. Pauls, Sanford, Selma,
Siler City, Smithfield, Statesville, Troutman, Valdese, and Winston-Salem, and the
Counties of Alleghany, Ashe, Burke, Cabarrus, Chatham, Cleveland, Davie, Forsyth,
Franklin, Guilford, Harnett, Iredell, Johnston, Lee, McDowell, Madison,
Mecklenburg, Nash, Polk, Richmond, Rockingham, Sampson, Wayne, and Yancey.
This subsection also applies to Columbus County and all incorporated municipalities
located therein."
PART V. ORANGE COUNTY
Sec. 14. Section 6 of Chapter 246, Session Laws of 1991, reads as
rewritten:
"Sec. 6. Orange County Civil Rights Ordinance. (a) The Board of
Commissioners of Orange County may adopt an ordinance (hereinafter `Civil Rights
Ordinance' or 'Hum-an Ri-gins Ordinance') desig -. : - • - -
all individuals; to el eats-tage der iria-ti•en based on religion, agc, sex, race,•• • .', • : : ' •-. : : : : : • ;• 115
arising from disernnp a-se of pb-1-ic meetings, counseling, mediation 'where
individuals, child and a-l•tik, femal-e attel. i l-e, sl-al4 have equal rights tlirou,zl,out
• •
prohibiting disci-imiiiati@-a in housing, cmp•I-oyment, : - - : : • •
e._ •
of North Carolina, i}0+ iinoi�sister�t it-ki tie Con titution'of the United Statues.
(b) The Board of Cot-nt •ssie•i3•crs O-f O-rang,c County may, by ordinance or
otherwise, creme a-n a ety or ce}rmim-i-iss-i-o-a (keierna-fter 'ate O - - :,
to assist in the enforcement of at e :• • • . - : • ' •
Ordinance and to e ecive, i ia-te, investigate, seek t-o conciliate, hold hearings on
_ •� - - - __ . _r
Chapter l.)OB of the Cen-c-ia•1 Stat-i.i-tes (The Administrat " : i . :
-- - e - : • • - a - : - 'a - . (hereafter `Board of
Commissioners') may adopt an ordinance (hereafter the Ordinance') to prohibit
discrimination in employment. housing. and public accommodations on the basis of
race• color, religion. gender. national origin. age. disability, marital status. familial
status. and veteran status.
The Board of Commissioners may include in the Ordinance a prohibition of
language or conduct or both directed at an individual or at a group of individuals
•
Senate Bill 809 Page 9
because of that individual's or group of individuals' actual or perceived race, color,
religion, gender, national origin. age. disability, marital status, familial status. or
veteran status which communicates in a threatening manner words that incite,
imminent lawless action or which tend to incite an immediate breach of the peace.
(b) The Board of Commissioners may, in the Ordinance adopt procedures and
delegate powers to the Orange County Human Relations Commission (hereafter the
Commission') which are necessary and proper for carrying out and enforcing the,
Ordinance. To assist in the enforcement of the Ordinance, the Commission has, but
is not limited to. the following powers:
(1) Receiving and reviewing complaints that allege a violation of the
Ordinance has occurred, is occurring, or is about to occur;
(2) Conducting investigations into the basis of complaints. In this
regard, the Commission may issue subpoenas compelling the
production of documents or compelling witnesses, or both. to,
appear before the Commission to give testimony and to take
depositions and serve interrogatories in accordance with the North
Carolina Rules of Civil Procedure. In the event any person refuses
to comply with a subpoena or discovery request, the Commission
may apply to the Orange County Superior Court (hereafter the
Superior Court') for an order to compel compliance with the
subpoena or discovery request. Information and records
discovered by the Commission during an investigation or
conciliation are not subject to the provisions of G.S. 132-6 and,
G.S. 132-9 until and unless they are offered into evidence in an
administrative hearing conducted by the Office of Administrative
Hearings or offered into evidence in a judicial proceeding
authorized by this section:
03) Applying_ to the superior court for mandatory and/or prohibitory
injunctive relief pursuant to Rule 65 of the North Carolina Rules
of Civil Procedure if it determines. after a preliminary
investigation. that prompt judicial action is necessary to carry out
the purposes of the Ordinance:
(4) Making a determination of whether or not there is reasonable
cause to . believe that an unlawful discriminatory practice has
occurred. is occurring, or is about to`occur:
Dismissing complaints in such cases as the Commission determines
that reasonable cause does not exist;
(6) Issuing a right-to-sue letter to any complainant in such instances
where the Commission has failed to make a determination on the
issue of reasonable cause in a timely manner: determines that a
reasonable cause does not exist: or where conciliation efforts have
failed:
(7) Attempting to conciliate a resolution of the complaint between the
parties;
Entering into conciliation agreements in such instances where
conciliation efforts have been successful;
(9 Making application, in its discretion, ' to the Office of
Administrative Hearings for the designation of an administrative
law judge to preside over a hearing in cases involving allegedly
unlawful employment practices. public accommodations. or other
conduct made unlawful by subsection (a) of this section after
conciliation efforts have failed: and
Page 10 Senate Bill 809
n
(10) Making application to the Office of Administrative Hearings for
the designation of an administrative law judge to preside over a DI
hearing in cases involving allegedly unlawful housing practices.
(c) The Ordinance may provide that in any case that is referred to the Office of
Administrative Hearings. the administrative law judge shall make written findings of
fact and conclusions of law, and shall issue a recommended decision to the
Commission, which decision shall become final and binding unless the Commission
acts within 30 days of the date of the recommended decision to modify or reverse it.
The Ordinance may also provide, in cases where the Commission has determined
that reasonable cause exists to believe that a discriminatory housing -practice has
occurred, is occurring, or is about to occurs that the complainant or the respondent
may elect to have the issues decided in a civil action in lieu of an administrative
hearing,
(d) The administrative law judge may recommend the imposition of mandatory
and prohibitory injunctive relief, compensatory damages (which, as provided by the
1991 Civil Rights Act, includes emotional pain, humiliation, embarrassment, and
inconvenience), punitive damages, and any other relief the administrative law judge
deems appropriate: provided that:
.(1) Punitive damages may be recommended only if the administrative
law judge finds that the respondent engaged in a practice made
unlawful under the ordinance with malice or with- reckless
indifference to the protected rights of the complainant: and
(2) In cases involving unlawful employment practices, the
administrative law judge may recommend reinstatement. hiring.
and/or back pay.
In all cases- wherein the Commission applies to the Office of Administrative
Hearings for the designation of an administrative law judge, the Commission shall he
the complainant and the case in support of the Commission shall be presented by the
Commission's attorney.
The administrative law judge may. in his or her discretion. recommend that the
• respondent he awarded reasonable costs and attorneys' fees in the event the
respondent prevails.
(el Judicial review of any final agency decision shall he in accordance with
Article 4 of Chapter 150B of the General Statutes (the Administrative Procedure
Act). All petitions for judicial review, however. shall be filed in the Superior Court
of Orange County. The term 'Agencv'. whenever used in Article 4 of Chapter 150B
of the General Statutes. shall mean the Commission.
(f) The Ordinance max provide that complainants who receive a right-to-sue letter
from the Commission may file an action in superior court against the respondent. In
such actions the superior court shall he authorized to impose mandatory and
prohibitory injunctive relief. compensatory damages, and punitive damages. and any
other appropriate relief to the same extent and subject to the same limitations as
applies to any recommended decision made by an administrative law-judge. •
In any action brought in the superior court pursuant to the Ordinance, the court
may allow the prevailing party reasonable costs and attorneys' fees from the other
party or parties. Attorneys' fees, however. may not be awarded to the Commission.
and 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.
{; (g) An The ordinance _: : -_ :. applies to any part of
Orange County not within a municipally incorporated city, town, or village. The
governing board of a city, town, or village within Orange County may, by resolution.
-permit an Orange County ordinance adopted pursuant to this section to be applicable
Senate Bill 809 Page 11
within its corporate boundaries. A city, town, or village may, by resolution, withdraw
its permission to enforce such an ordinance. If it does so, it shall give written noilice
to Orange County of its withdrawal of permission. Thirty days after the date Orange
County receives the permission withdrawal notice, the county ordinance ceases to be
applicable within the city, town, or village.
(e-} (h) This section applies only to Orange County."
Sec. 15. (a) Notwithstanding G.S. 153A-343 or any other provision of
law, when a county is adopting a local water supply watershed protection program as
required by G.S. 143-214.5, in lieu of mailing a notice of proposed zoning
classification actions to any party or other person, the county may publish once a
week for four successive calendar weeks in a newspaper having general circulation in
the area maps showing the boundaries of the area affected by the proposed watershed
regulation. The map shall not be less than one-half of a newspaper page in size. The
notice shall only be effective for property owners who reside in the area of general
circulation of the newspaper that publishes the notice. Property owners who reside
outside of the newspaper circulation area, according to the address listed on the most
. recent property tax listing for the affected property, shall be notified by mail pursuant
to G.S. 153A-343. The person or persons mailing the notices shall certify to the
board of commissioners that fact, and the certificates shall be deemed conclusive in
the absence._ of fraud. Further, one or more signs giving notice of the proposed
zoning change shall be posted adjacent to the subject property that shall be
reasonably calculated to give public notice of the proposed change.
(b) Notwithstanding G.S. 153A-343 or any other provision of law, when
a county is adopting or amending any ordinance in order to adopt a local water
supply watershed protection program as required by G.S. 143-214.5, the county shall
hold a public hearing on the ordinance or amendment. Notice of the hearing shall be
published along with the notice required by subsection (a) of this section. The
hearing shall be held not less than 10 days nor more than 25 days after the day of last
publication required by subsection (a) of this section. In computing such period, the
day of last publication is not to be included, but the day of hearing shall be included.
(c) This section applies to Orange County only.
Sec. 16. Except as provided otherwise, this act is effective upon
ratification.
In the General Assembly read three times and ratified this the 16th day of
July, 1993.
DENNIS P
Dennis A. Wicker
President of the Senate
DANIFt Bl l_tE JR
Daniel Blue, Jr. •
Speaker of the House of Representatives
Page 12 Senate Bill 809
ORANGE COUNTY
CIVIL RIGHTS ORDINANCE
(DRAFT)
Prepared by:
Geoffrey E . Gledhill
and
Mark T. Sheridan
Coleman, Gledhill & Hargrave
129 East Tryon Street
Post Office Drawer 1529
Hillsborough, NC 27278
( 919). 732-2196
November 20 , 1992
OFFICIAL DRAFT JUNE 23, 1993
ORANGE COUNTY CIVIL RIGHTS ORDINANCE
TABLE OF CONTENTS
Page No .
ARTICLE I Title 1
ARTICLE II Findings of Fact, Purpose,
Construction & Severability 1
ARTICLE III Definitions 3
ARTICLE IV Unfair Employment
Sec . 4 . 1 Unfair Employment Practices 9
Sec . 4 . 2 Exemptions and Defenses 16
ARTICLE V Unfair Housing
Sec . 5 . 1 Unfair Housing Practices 26 '
4
Sec . 5 .2 Proof of Violation 31.
Sec . 5 . 3 Exemptions 31
ARTICLE VI Public Accomodations and Public Transportation
Sec . 6 . 1 Definitions 34
Sec . 6 . 2 Prohibited Practices 36
Sec . 6 . 3 Exemptions 37
ARTICLE VII Other Prohibited Discriminatory Acts 37
ARTICLE VIII Enforcement 38
Sec . 8 . 1 Filing of Complaint and
Investigation 39
Sec . 8 . 2 Reasonable Cause, Conciliation
Efforts, and Right-to-Sue Letters 42
Sec . 8 . 3 Referral to Office of
Administrative Hearings 44
Subdiv. 8 . 3 . 1 Hearings 44
Subdiv . 8 . 3 . 2 Remedies 46
ARTICLE IX Judicial Review 50
ARTICLE X Civil Actions 51
ii
ORANGE COUNTY
CIVIL RIGHTS ORDINANCE
ARTICLE I Title
Sec . 1 . 1 This Ordinance shall be known and may be cited as
the Orange County Civil Rights Ordinance .
ARTICLE II Findings of Fact, Purpose,
Construction, and Severability
Sec . 2 . 1 Findings of Fact
(a) The Orange County Board of Commissioners created the
Orange County Human Relations Commission to : (1) study and make
recommendations concerning problems in the field of human
relationships ; (2 ) anticipate and discover practices and customs
most likely to create animosity and unrest and to seek solutions to
problems as they arise; (3 ) make recommendations designed to
promote goodwill and harmony among racial , ethnic, religious , and
other groups in the County; (4 ) monitor complaints involving
discrimination; (5) address and attempt to remedy the violence,
tensions, polarization, and other harm created through the
practice of discrimination, bias, hatred, and civil inequality;
and ( 6) promote harmonious relations within the county through
hearings and due process of law; and
(b) The Orange County Human Relations Commission duly
organized, advertised, and conducted public hearings on
discrimination in the areas of, among others , employment , housing,
1
public accomodations, and public transportation; and
(c) The Orange County Human Relations Commission has
determined that discrimination exists in Orange County in the areas
of, among others, employment, housing, public accomodations , and
public transportation on the basis of, or because of, race, color,
religion, sex, national origin, age, disability, marital status,
and veteran status .
Sec . 2 . 2 Purpose
(a) It is the purpose of this Ordinance and the policy of
Orange County to promote the equal treatment of all individuals ; to
prohibit discrimination in Orange County based on race, color,
religion, sex, national origin, age, disability, marital status,
and veteran status ; to protect residents ' lawful interests and
their personal dignity so as to make available to the County their
full productive and creative capacities, and to prevent public and
domestic strife, crime, and unrest within Orange County.
(b) It is the further purpose- of this Ordinance to carry out
in Orange County the policies provided for in various federal
rules, regulations , and laws prohibiting discrimination in, among
other areas, housing, employment , public accomodations, and public
transportation.
Sec . 2 . 3 Construction
(a) This Ordinance shall be liberally construed according to
the fair import of its terms , with full and careful consideration
given to its humanitarian nature and remedial purpose .
2
(b) Words importing the masucline gender shall include the
feminine and words importing the feminine gender shall include the
masculine .
Sec . 2 . 4 Severability
Should any provision of this Ordinance be found to be
unconstitutional by a court of law, such provision shall be severed
from the remainder of the Ordinance, and such action shall not
effect the enforceability of the remaining provisions of the
Ordinance .
ARTICLE III Definitions
Unless otherwise defined, as used in this Ordinance :
"Because of age" or "on the basis of age" applies to persons
persons 40 years of age or older.
"Because of sex" or "on the basis of sex" includes , but is not
limited to, because of or on the basis of pregnancy, childbirth, or
related medical conditions .
"Board" means the Orange County Board of Commissioners .
"Commission" means the Orange County Human Relations
Commission .
"Coftiplainant " means a person who has filed a written, signed,
and verified Complaint with the Commission pursuant to this
Ordinance .
"Covered entity" means an employer, employment agency, labor
organization, or joint labor-management committee .
"Covered multifamily dwellings" means
3
a . buildings consisting of 4 or more units if such
buildings have one or more elevators; and
b. ground floor units in other buildings consisting
of 4 or more units .
"Direct threat" means a significant risk to the health or
safety of others that cannot be eliminated by reasonable
accommodation.
"Disability" means, with respect to an individual :
a . A physical or mental impairment that substantially
limits one or more of the major life activities of such
individual;
b. A record of having such an impairment ; or
4
c . Being regarded as having such an impairment as
described in a . or b. of this definition .
"Drug" means a controlled substance as defined by section 202
of the Controlled Substances Act (21 U. S .C . § 812 ) .
"Employer" means a person engaged in an industry affecting
commerce who has 15 or more employees for each working day in each
of 20 or more calendar weeks in the current or preceding calendar
year, and any agent of such a person . Employer does not include :
a . The State of North Carolina, any of its agencies
or departments, or any of its political subdivisions ;
b. The United States or a corporation wholly owned by the
government of the United States ;
c . An Indian Tribe; or
d . A bona fide private membership club (other than a labor
4
organization) which is exempt under section 501 (c) of
the Internal Revenue Code .
"Employment agency" means any person regularly undertaking
with or without compensation to procure employees for an employer
or to procure for employees opportunities to work for an employer
and includes an agent of such a person.
"Family" includes a single individual .
"Financial institution" means any banking corporation or trust
company, savings and loan association, credit union, insurance
company, or related corporation, partnership, foundation, or other
institution engaged primarily in lending or investing funds;
"Housing accomodation" means any improved or unimproved real
property, or part thereof, which is used or occupied, or is
intended, arranged, or designed to be used or occupied, as the home
or residence of one or more individuals ;
" Illegal use of drugs " means the use of drugs, the possession
or distribution of which is unlawful under the Controlled
Substances Act (21 U. S .C . § 812 ) . Such term does not include the
use of a drug taken under supervision by a licensed health care
professional , or other uses authorized by the Controlled Substances
Act or other provisions of federal law.
"Labor organization" means a labor organization and any agent
of such an organization, and includes any organization of any kind,
any agency, or employee representation committee, group,
association, or plan so engaged in which employees participate and
which exists for the purpose, in whole or in part , of dealing with
5
employers concerning grievances , labor disputes, wages , rates of
pay, hours, or other terms or conditions of employment, and any
conference, general committee, joint or system board, or joint
council so engaged which is subordinate to a national or
international labor organization.
"Marital status" means the condition of being legally married,
single, separated, or divorced; of having a surname different from
that of one 's spouse, cohabitant, biological or legal parent or
guardian; having a parent who was not legally married to the other
biological or legal parent at the time of the person' s birth;
cohabiting with a person or persons to whom the person is not
related by legal marriage; or the condition of one or more children
being domiciled with a person who is not legally married.
" Person" means any individual, association, corporation,
partnership, labor union, legal representative, mutual company,
joint stock company, trust, trustee in bankruptcy, unincorporated
organization, or other legal or commercial entity.
" Public accommodation" means any •place or facility, of
whatever nature, located in Orange County which is open to the
public .
"Qualified individual with a disability" means an individual
with a disability who, with or without reasonable accommodation,
can perform the essential functions of the employment position that
the individual holds, desires, or held. For purposes of this
Ordinance, consideration shall be given to the employer' s judgment
as to what functions of a job are essential, and if an employer has
6
prepared a written description before advertising or interviewing
applicants for the job, this description shall be considered
evidence of the essential functions of the job.
"Real estate transaction" means the sale, exchange, rental
or lease of real property, or any policy, practice, decision, act,
or failure to act that affects the availability of real property or
the conditions under which real property is available or is
occupied for residential purposes .
"Real property" means a building, structure, real estate,
land, tenement, leasehold, interest in real estate cooperatives,
condominium, and hereditament, corporeal and incorporeal , or any
interest therein.
"Reasonable accommodation" means :
a . Making existing facilities readily accessible to
and usable by individuals with disabilities ; and
b. Job restructuring; part-time or modified work
schedules ; reassignment to a vacant position; acquisition
or modification of equipment or devices ; appropriate
adjustment or ' modification Of examination, training
materials , or policies ; providing qualified readers or
interpreters ; and other similar accommodations for
individuals with disabilities .
"Religion" means all aspects of religious observance and
practice, as well as belief, unless an employer demonstrates that
he is unable to reasonably accommodate an employee ' s or prospective
employee' s religious observance or practice without undue hardship
7
on the conduct of the employer' s business .
"Respondent " means a person, employer, employment agency,
labor organization, or joint labor-management committee against
whom a Complaint has been filed pursuant to this Ordinance .
"Right-to-sue letter" means a letter issued by the Commission
to a Complainant which authorizes the Complainant to bring a civil
action against the Respondent in the Superior Court .
"Superior Court" means the Orange County Superior Court .
"Undue hardship" means an action requiring significant
difficulty or expense, when considered in light of the following
factors :
•
a . The nature and cost of the accommodation needed
k
pursuant to this OrCinance;
b. The overall financial resources of the facility involved
in the provision of the reasonable accommodation; the
number of the persons employed at such facility; the
effect on expenses and resources, or the impact otherwise
of such accommodation upon the operation of the facility;
c . The overall financial resources of the covered entity;
the overall size of the business of a covered entity with
respect to the number of its employees ; the number, type,
and location of its facilities ; and
d. The type of operation of the covered entity, including
the composition, structure, and functions of the work
force of such entity; the geographic separateness ,
administrative, or fiscal relationship of the facility to
8
the covered entity .
"Veteran status " means past service as an employee or member
of the United States military, or any agency, or subdivision
thereof .
ARTICLE IV Unfair Employment
Sec . 4 . 1 Unlawful Employment Practices
(a) It is unlawful for an employer:
(1) To fail or refuse to hire or to discharge any individual ,
or otherwise to discriminate against any individual with respect to
his compensation, terms, conditions, or privileges of employment,
because of such individual ' s race, color, religion, sex, national
origin, age, disability, marital status, or veteran status . .
(2 ) To limit, segregate, or classify employees or applicants
for employment in any way which would deprive or tend to deprive
any individual of employment opportunities or otherwise adversely
affect an individual ' s status as an employee, because of such
individual ' s race, color, religion, sex, national origin, age,
disability, marital status , or veteran status ;
(3 ) To reduce the wage rate of any employee in order to
comply with this Article; or
(4 ) To discriminate against any woman affected by pregnancy,
childbirth, or related medical conditions . Women affected by
pregnancy, childbirth, or related medical conditions shall be
treated the same for all employment-related purposes , including
receipt of benefits under fringe benefit programs , as other persons
9
not so affected but similar in their ability or inability to
work .
(b) It is unlawful for an employment agency to fail or refuse
to refer for employment , or otherwise to discriminate against , any
individual because of the individual ' s race, color, religion, sex,
national origin, age, disability, marital status, or veteran
status, or to classify or refer for employment any individual on
the basis of race, color, religion, sex, national origin, age,
disability, marital status, or veteran status .
(c) It is unlawful for a labor organization to :
(1) Exclude or to expel from its membership, or otherwise
to discriminate against, any individual because of the individual ' s
race, color, religion, sex, national origin, age, disability,
marital status , or veteran status ;
(2 ) Limit, segregate, or classify its membership or
applicants for membership, or to classify or fail or refuse to
refer for employment any individual, in any way which would deprive
or tend to deprive any individual of employment opportunities, or
would limit such employment opportunities or otherwise adversely
affect such individual ' s status as an employee or as an applicant
for employment , because of the individual ' s race, color, religion,
sex, national origin, age, disability, marital status, or veteran
status ; or
(3 ) Cause or attempt to cause an employer to discriminate
against an individual in violation of this Ordinance .
(d) It is unlawful for any employer, labor organization, or
10
joint labor-management committee controlling apprenticeship or
other training or retraining, including on-the-job training
programs, to discriminate against any individual because of the
individual ' s race, color, religion, sex, national origin, age,
disability, marital status, or veteran status in admission to, or
employment in, any program established to provide apprenticeship or
other training.
(e) It is unlawful for any employer, labor organization, or
joint labor-management committee controlling apprenticeship or
other training or retraining, including on-the-job training
programs, controlling apprenticeship or other training or
retraining, including on-the-job training programs, to print or
publish, or cause to be printed or published, any notice or
advertisement relating to employment by such an employer, or
membership in or any classification or referral for employment by
such a labor organization, or relating to any classification or
referral for employment by such an employment agency, or relating
to admission to, or employment in, any, program established to
provide apprenticeship or other training by such a joint labor-
management Committee, indicating any preference, limitation,
specification, or discrimination, based an race, color, religion,
sex, national origin, age, disability, marital status, or veteran
status . Nothwithstanding the foregoing, an employer may indicate
a preference based on disability or veteran status .
( f) It is unlawful for an employer to discriminate against
any employee or applicant for employment, for an employment agency
11
or joint labor-management committee controlling apprenticeship or
other training or retraining, including on-the-job training
programs, to discriminate against any individual, or for a labor
organization to discriminate against any member thereof or
applicant for membership, because he or she has opposed any
practice made an unlawful employment practice by this Ordinance, or
because he or she has filed a Complaint, testified, assisted, or
participated in any manner in an investigation, proceeding, or
hearing under this Ordinance .
Furthermore, it is unlawful to coerce, intimidate, threaten,
or interfere with any individual in the exercise or enjoyment of,
or on account of such individual having aided or encouraged any
other individual in the exercise or enjoyment of , any right granted
or protected by this Ordinance .
(g) It is unlawful for a covered entity to discriminate
against a qualified individual with a disability because of the
disability of such individual in regard to job application
procedures , the hiring, advancement, or discharge of employees,
employee compensation, job training, and ' other terms, conditions,
and privileges of employment . As used in this subsection, the term
"discriminate" includes :
(1) limiting, segregating, or classifying a job applicant or
employee in a way that adversely affects the opportunities or
status of such applicant or employee because of the disability of
the applicant or employee;
(2 ) participating in a contractual or other relationship that
12
has the effect of subjecting a covered entity' s qualified applicant
or employee with a disability to the discrimination prohibited by
this Ordinance . Such relationship includes a relationship with an
employment or referral agency, labor union, an organization
providing fringe benefits to an employee of the covered entity, or
an organization providing training and apprenticeship programs ;
(3 ) using standards, criteria, or methods of
administration that :
a . have the effect of discrimination on the basis of a
disability; or
b. perpetuate the discrimination of others who are subject
to common administrative control ;
it>
(4) excluding or otherwise denying equal jobs or benefits to
a qualified individual because of the known disability of an
individual with whom the qualified individual is known to have a
relationship or association;
(5) not making reasonable accommodations to the known
physical or mental limitations of an otherwise qualified individual
with a disability who is an applicant or employee, unless such
covered entity can demonstrate that the accommodation would impose
an undue hardship on the operation of the business of such covered
entity;
(6) denying employment opportunities to a job
applicant or employee who is an otherwise qualified individual with
a disability, if such denial is based on the need of such covered
entity to make reasonable accommodation to the physical or mental
13
impairments of the employee or applicant ;
(7 ) using qualification standards , employment tests, or
other selection criteria that screen out or tend to screen out or
otherwise deny a job or benefit to an individual with a disability
or a class of individuals with disabilities, unless the standard,
test, or other selection criteria, as used by the covered entity,
is shown to be job related for the position in question, is
consistent with business necessity, and cannot be accomplished by
reasonable accommodation as required under this Ordinance;
(8 ) failing to select and administer tests concerning
employment in the most effective manner to ensure that when such
test is administered to a job applicant or employee who has a
disability that impairs sensory, manual, or speaking skills, the
test results accurately reflect the skills, aptitude, or whatever
other factor of the applicant or employee that such test purports
to measure, rather than reflecting the impaired sensory, manual, or
speaking skills of the employee or applicant, except where such
skills are the factors that the test purports to measure;
(9 ) conducting a medical examination or making inquiries of a
job applicant as to whether such applicant is an individual with a
disability or as to the nature or severity of such disability.
However, a covered entity may make pre-employment inquiries into
the ability of an applicant to perform job-related functions, may
require a medical examination after an offer of employment has been
made to a job applicant and prior to the commencement of the
employment duties of the applicant, and may condition an offer of
14
employment on the results of the examination, provided that :
a . All entering employees are subjected to such an
examination regardless of disability;
b. Information obtained regarding the medical condition or
history of the applicant is collected and maintained on
separate forms and in separate medical files and is treated as
a confidential medical record, except that :
1 . Supervisors and managers may be informed regarding
necessary restrictions on the work or duties of the
employee and necessary accommodations ;
2 . First aid and safety personnel may be informed,
when appropriate, if the disability might require
4
emergency treatment ; and
3 . Government officials investigating compliance with
this section shall be provided relevant information
on request;
c . The results of the examination are used only in
accordance with this section; and
(10 ) requiring a medical examination or making inquiries
of an employee as to whether such employee is an individual
with a disability or as to the nature or severity of the
disability, unless the examination or inquiry is shown to be
job-related and consistent with business necessity . A covered
entity may make inquiries into the ability of an employee to
perform job-related functions, and may conduct voluntary
medical examinations , including voluntary medical histories,
15
which are part of an employee health program available to
employees at the work site . Information obtained in such
medical examinations or medical histories is subject to the
same restrictions and requirement as information obtained
pursuant to pre-employment medical examinations , as described
in subsections 9 (b) and 9 (c) of this section.
Sec . 4 . 2 Exemptions and Defenses
(a) Notwithstanding any other provision of this Article, it is
not unlawful for :
(1) a covered entity to employ, admit, classify, or refer
any individual on the basis of religion, sex, national origin, age,
marital status, or veteran status, in those certain instances where
religion, sex, national origin, age, marital status, or veteran
status is a bona fide occupational qualification reasonably
necessary to the normal operation of that particular business or
enterprise .
(2) a covered entity to print \or publish, or caused to
be printed or published, any notice or advertisement indicating any
preference, limitation, specification, or discrimination, based on
religion, sex,- national origin, age, marital status, or veteran
status , in such instances when religion, sex, national origin, age,
disability, marital status, or veteran status is a bona fide
occupation qualification for employment .
(3 ) a school, college, university, or other educational
institution, or institution of learning to hire and employ
employees of a particular religion if such school , college,
16
university, or other educational institution or institution of
learning is, in whole or in substantial part, owned, supported,
controlled, or managed by a particular religion or by a particular
religious corporation, association, or society, or if the
curriculum of such school, college, university, or other '
educational institution or institution of learning is directed
toward the propagation of a particular religion .
(4 ) an employer to apply different standards of
compensation, or different terms, conditions, or privileges of
employment pursuant to a bona fide seniority or merit, system, or a
system which measures earnings by quantity or quality of production
or to employees who work in different locations, so long as the
4
differences are not the result of an intention to discriminate
because of race, color, religion, sex, national origin, age,
disability, marital status, or veteran status .
(5) an employer to give and to act upon the results of any
professionally developed ability test provided that the test , its
administration, or action upon the results is not designed,
intended, or used to discriminate because of race, color, religion,
sex, national origin, age, marital status, or veteran status .
( 6) . an employer to differentiate upon the basis of sex in
determining the amount of the wages or compensation paid or to be
paid to employees of the employer if the differentiation is
authorized by the provisions of section 6 (d) of the Fair Labor
Standards Act of 1938 , as amended (29 U . S .C . § 206 (d) ) .
(7 ) a covered entity to refuse to assign or continue to
17
assign an individual to a job involving food handling in any case
in which such individual has an infectious or communicable disease
that is : (i) transmitted to others through the handling of food;
(ii) is included on the list developed by the Secretary of the
United States Department of Health and Human Services pursuant to
section 103 (d) of the Americans with Disabilities Act of 1990 , (42
U. S .C . §5 12101, et . seq. ) ; and (iii ) cannot be eliminated by
reasonable accommodation. Nothing in this subsection shall be
construed to preempt, modify, or amend any state, county, or local
law, ordinance, or regulation applicable to food handling.
(b) (1) For purposes of this Article the term "qualified
individual with a disability" shall not include any employee .or
applicant who is currently engaging in the illegal use of drugs ,
when the covered entity acts on the basis of such use. However, an
individual shall not be excluded as a qualified individual with a
disability who :
(a) has successfully completed a supervised drug
rehabilitation program and is no .longer engaging in the
illegal use of drugs, or has otherwise been rehabilitated
successfully and is no longer engaging in such use; or
(b) is participating in a supervised rehabilitation
program and is no longer engaging in such use; or
(c) is erroneously regarded as engaging in such use .
(b) (2 ) It is not a violation of this Ordinance for a covered
entity to adopt or administer reasonable policies or procedures,
including but not limited to drug testing, designed to ensure that
18
an individual described in subdivision (a) or (b) of this
subsection is no longer engaging in the illegal use of drugs .
(c) A covered entity may:
(1 ) prohibit the illegal use of drugs and the use of
alcohol at the workplace by employees ;
(2 ) require that employees shall not be under the
influence of alcohol or be engaging in the illegal use of
drugs at the workplace;
(3 ) require that employees behave in conformance with
the requirements established under the Drug-Free Workplace Act
of 1988 (41 U. S .C . §§ 701 et . seq. ) ;
(4) hold an employee who engages in the illegal use of
drugs or who is an alcoholic to the same qualification
standards for employment or job performance and behavior that
the entity holds other employees, even if any unsatisfactory
performance or behavior is related to the drug use or
alcoholism of the employee; and
(5) with respect to federal regu,lations regarding alcohol
and the illegal use of drugs, require that employees comply
with the standards established in federal regulations of the
Department of Defense, the Nuclear Regulatory Commission,
and/or the Department of Transportation, if the employees of
the covered entity are employed in an industry subject to the
regulations of any such federal agency.
(d) For the purposes of this Ordinance, a test to
determine the illegal use of drugs shall not be considered a
19
medical exam. Furthermore, nothing in this Ordinance shall be
construed to encourage, prohibit, or authorize the conducting
of drug testing for the illegal use of drugs by job applicants
or employees or making employment decisions based on such test
results .
(e) The prohibitions in this Ordinance against
discrimination based upon disability shall not be construed to
prohibit or restrict :
(1) An insurer, hospital, medical service company, health
maintenance organization, or any agent, or entity that administers
benefit plans, or similar organizations from underwriting risks,
classifying risks, or administering such risks that are based on Of
not inconsistent with State law; or
(2 ) A person or organization covered by this Ordinance
from establishing, sponsoring, observing, or administering the
terms of a bona fide benefit plan that are based on
underwriting risks, classifying risks, or administering those
risks that are based on or not incons.istent with State law; or
(3 ) A person or organization covered by this Ordinance
from establishing, sponsoring, observing, or administering the
terms of a bona fide benefit plan that is not subject to State
laws that regulate insurance .
Subsections (1 ) , (2 ) , and (3 ) of this section shall not
be used as a subterfuge to evade the purposes of this
Ordinance .
20
(f) Nothing in this Ordinance shall be construed to require
an individual with a disability to accept an accommodation, aid,
service, opportunity, or benefit which such individual chooses not
to accept ;
(g) Nothing contained in this Ordinance shall apply to any
business or enterprise on or near an Indian reservation with
respect to any publicly announced employment practice of such
business or enterprise under which preferential treatment is given
to any individual because he or she is an Indian living on or near
a reservation .
(h) Nothing contained in this Ordinance. shall apply to a
religious corporation, association, educational institution, or
society with respect to the employment of individuals of . a
particular religion to perform work connected with the carrying on
by such corporation, association, educational institution, or
society of its activities .
(i) Nothing contained in this Ordinance shall be interpreted
to require any covered entity to grant preferential treatment to
any individual or to any group because of the race, color,
religion, sex, national origin, age, or marital status of such
individual or group on account of an imbalance which may exist with
respect to the total number or percentage of persons of any race,
color, religion, sex, national origin, age, or marital status
referred or classified for employment by any employment agency or
labor organization, admitted to membership or classified by any
labor organization, or admitted to, or employed in, any
21
apprenticeship or other training program, in comparison with the
total number or percentage of persons of such race, color,
religion, sex, national origin, age, or marital status in the
community, State, section, or other area .
(j ) With respect to discrimination based on age, it is not
unlawful for a covered entity to take any action otherwise
prohibited under subsections (a) , (b) , (c) , (d) or (e) of Section 4 . 1
of this Article :
(1) Where the differentiation is based on reasonable factors
other than age;
(2 ) Where such practices involve an employee in a workplace in
a foreign country, and compliance with those subsections would
cause such employer, or a corporation controlled by such employer,
to violate the laws of the country in which such workplace is
located; or
(3 ) To observe the terms of a bona fide seniority system that
is not intended to evade the purposes of this Article, except that
no such seniority system shall require the involuntary retirement
of any individual who is at least 40 years of age because of the
age of such individual ; or
(4) To observe the terms of a bona fide employee benefit plan :
a. Where, for each benefit or benefit package, the actual
amount of payment made or cost incurred on behalf of an older
worker is no less than that made or incurred on behalf of a
younger worker, as permissible under section 1625 . 10 , Title
29 , Code of Federal Regulations, as in effect on June 22 ,
22
1989 ; or
b. That is a voluntary early retirement incentive plan
consistent with the relevant purposes of this Ordinance.
c . Notwithstanding the provisions of subsection a . or b.
of this subdivision, no employee benefit plan or voluntary
early retirement incentive plan shall excuse the failure to
hire any individual, and no such employee benefit plan shall
require or permit the involuntary retirement of any individual
age 40 or older, because of the age of such individual . A
covered entity acting under subdivision (3 ) or subdivision (4 )
of this section, shall have the burden of proving that such
actions are lawful in any proceeding brought pursuant to thi
4
Ordinance; or •
(5) To discharge or otherwise discipline an individual for
good cause.
(k) Notwithstanding the provisions of subdivision (4 ) of
subsection (j ) above :
(1) (1) Nothing in this Ordinance shall be construed to
prohibit compulsory retirement of any employee who has attained 65
years of age and who, for the two-year period immediately before
retirement-, is employed in a bona fide executive or high policy-
making position, if such employee is entitled to an immediate
nonforfeitable annual retirement benefit from a pension, profit-
sharing, savings , or deferred compensation plan, or any combination
of such plans, of the employer of such employee, which equals , in
the aggregate, at least forty-four thousand dollars ($44, 000 ) .
23
(1 ) (2 ) In applying the retirement benefit test of
subdivision (1) of this subsection, if any such retirement benefit
is in a form other than a straight life annuity, with no ancillary
benefits, or if employees contribute to any such plan or make
rollover contributions, the benefit shall be adjusted in accordance
with regulations prescribed by the Equal Employment Opportunity
Commission, pursuant to 29 U. S .C . § 631 (c) (2 ) , so that the benefit
is the equivalent of a straight life annuity with no ancillary
benefits under a plan to which employees do not contribute and
under which no rollover contributions are made .
(m) An unlawful employment practice based on disparate impact
is established under this Ordinance only if :
1 . a complaining party demonstrates that a respondent uses a
particular employment practice that causes a disparate impact on
the basis of race, color, religion, sex, national origin, age,
disability, marital status, or veteran status and the respondent
fails to demonstrate that the challenged practice is job related
for the position in question and consistent with business
necessity; or
2 . the complaining party makes a demonstration with respect
to an alternative employment practice and the respondent refuses to
adopt such alternative employment practice . A "demonstration with
respect to an alternative employment practice" shall be in
accordance with the law as it existed on June 4 , 1989 .
3 . (a) With respect to demonstrating that a particular
employment practice causes a disparate impact as described in
24
herein, the complaining party shall demonstrate that each
particular challenged employment practice causes a disparate
impact, except that if the complaining party can demonstrate to the
court that the elements of a respondent ' s decision making process
are not capable of separation for analysis, the decision making
process may be analyzed as one employment practice .
(b) If the respondent demonstrates that a specific employment
practice does not cause the disparate impact, the respondent shall
not be required to demonstrate that such practice is required by
business necessity .
(n) A demonstration that an employment practice is required
by business necessity may not be used as a defense against a claim
A
of intentional discrimination under this Ordinance.
(o) Notwithstanding any other provision of this title, a rule
barring the employment of an individual who currently and knowingly
uses or possesses a controlled substance, as defined in schedules
I and II of Section 812 of the Controlled Substances Act (21 U. S .C .
§812 ) other than the use or possession of a drug taken under the
supervision of a licensed health care professional , or any other
use or posseSsion authorized by the Controlled Substances Act or
any other provision of Federal law, shall be considered an unlawful
employment practice under this Ordinance only if such rule is
adopted or applied with an intent to discriminate because of race,
color, religion, sex, national origin, age, disability, marital
status, or veteran status .
(p) Except as otherwise provided in this Article, an unlawful
25
employment _ practice is established when the complaining party
demonstrates that race, color, religion, sex, national origin, age,
disability, marital status , or veteran status was a motivating
factor for any employment practice, even though other factors also
motivated the practice.
(q) On a claim in which an individual proves a violation
under subsection (p) and a respondent demonstrates that the
respondent would have taken the same action in the absence of the
impermissible motivating factor, the court :
(a) may grant declaratory relief, injunctive relief and
attorney' s fees and costs demonstrated to be directly attributable
only to the pursuit of a claim under section (p) ; and
(b) shall not award damages or issue an order requiring any
admission, reinstatement , hiring, promotion, or payment, as
described in Article VIII of this Ordinance .
ARTICLE V Unfair Housing
Sec . 5 . 1 Unlawful Housing Practices,
(a) It is an unlawful discriminatory housing practice for any
person, because of race, color, religion, sex, national origin,
age, disability, marital status, or veteran status to :
(1) Refuse to engage in a real estate transaction;
(2 ) Discriminate against a person in the terms, conditions,
or privileges of a real estate transaction or in the furnishing of
facilities or services in connection therewith;
(3 ) Refuse to permit , at the expense of a qualfied individual
26
with a disability, reasonable modifications of existing premises
occupied or to be occupied by the individual if the modifications
are necessary to such individual ' s full enjoyment of the premises ;
except that, in the case of a rental unit , the landlord may, where
it is reasonable to do so, condition pelmission for modifications
on agreement by the renter to restore the interior of the premises
to the condition that existed before the modifications, reasonable
wear and tear excepted, if after six months the landlord is unable
to relet the unit in the modified condition . The landlord shall
have the burden of showing that the unit could not be relet within
the six month period because of the modifications rather than for
some other reason or reasons;
(4) Refuse to make reasonable accommodations in rules,
policies , practices, or services, when these accommodations may be
necessary to a disabled person' s equal use and enjoyment of a
dwelling;
(5) Fail to design and construct covered multifamily
dwellings available for first occupancy after March 13 , 1991, so
that :
a . The dwellings have at least one building entrance on an
accessible rOute, unless it is impractical to do so
because of terrain or unusual site characteristics ; or
b. With respect to dwellings with a building entrance on an
accessible route :
1 . The public and common use portions are readily
accessible to and usable by individuals with a
27
disability;
2 . There is an accessible route into and through all
dwellings and units;
3 . All doors designed to allow passage into, within,
and through these dwellings and individual units are wide
enough for wheelchairs ;
4 . Light switches, electrical switches , electrical
outlets, thermostats, and other environmental controls
are in accessible locations ;
5 . Bathroom walls are reinforced to allow later
insulation of grab bars; and
6 . Kitchens and bathrooms have space for an
A
individual in a wheelchair to maneuver;
( 6) Refuse to receive or fail to transmit a bona fide offer
to engage in a real estate transaction;
(7 ) Refuse to negotiate for a real estate transaction;
(8) Represent to a person that real property is not available
for inspection, sale, rental , or lease when in fact it is so
available, or fail to bring a property listing to such person' s
attention, or refuse to permit, such person to inspect real
property;
( 9) Make, print, circulate, post, or mail, or cause to be so
published, a statement , advertisement , or sign, or use a form or
application for a real estate transaction, or make a record or
inquiry in connection with a prospective real estate transaction,
which indicates directly or indirectly, an intent to make a
28
limitation, specification, preference, or discrimination with
respect thereto;
(10) Offer, solicit, accept , use, or retain a listing of real
property with the understanding that any person may be
discriminated against in a real estate transaction or in the
furnishing of facilities or services in connection therewith; or
(11) Otherwise make unavailable or deny housing.
(b) It is an unlawful discriminatory housing practice 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, because
of race, color, religion, sex, national origin, age, disability,'
marital status, or veteran status .
As used in this subsection, "residential real estate related
transaction" means :
(1 ) The making or purchasing of loans or providing
financial assistance (i ) for purchasing, constructing, improving,
repairing, or maintaining a dwelling, or (ii) where the security is
residential real estate; or
(2 ) The selling, brokering, or appraising of residential
real estate .
The provision of this subsection shall not prohibit any
financial institution from using a loan application which inquires
into a person' s financial and dependent obligations or from basing
its actions on the income or financial abilities of any person .
(c) It is an unlawful discriminatory housing practice for a
29
person to induce or attempt to induce another to enter into a real
estate transaction from which such person may profit :
(1 ) By representing that a change has occurred, or may occur
in the composition of the residents of the block,
neighborhood, or area in which the real property is
located with respect to the race, color, religion, sex,
national origin, age, disability, marital status, or
veteran status of the owners or occupants ; or
(2 ) By representing that a change has resulted, or may or
will result in the lowering of property values, an
increase in criminal or antisocial behavior, or a decline
in the quality of schools in the block, neighborhood, or
4
area in which the real property is located.
(d) It is an unlawful housing practice to deny any person, who
is otherwise qualified by State law, access to or membership or
participation in any real estate brokers ' organization, multiple
listing service, or other service, organization, or facility
relating to the business of engaging in real estate transactions ,
or to discriminate in the terms or conditions of such access,
membership, Or participation because of race, color, religion, sex,
national origin, age, disability, marital status , or veteran
status .
(e) It is an unlawful housing practice to coerce, intimidate,
threaten, or interfere with any person in the exercise or enjoyment
of, on account of having exercised or enjoyed, or on account of
having aided or encouraged any other person in the exercise or
30
enjoyment of any right granted or protected by this Ordinance .
Sec . 5 . 2 Proof of Violation
(a) It is a violation of this Ordinance if :
(1 ) A person by his act or failure to act intends to
discriminate against a person . A person intends to discriminate
if, in committing an unlawful housing practice in Section 5 . 1 of
this Article if he or she was motivated in full, or in any part at
all, by race, color, religion, sex, national origin, age,
disability, marital status, or veteran status . An intent to
discriminate may be established by direct or circumstantial
evidence; or
(2 ) A person' s actor failure to act has the effect,
regardless of intent, of discriminating, as set forth in Section
5 . 1 of this Article, against a person of a particular race, color,
religion, sex, national origin, age, disability, marital status, or
veteran status .
(3 ) However, it is not a violation of this Article if a
person whose action or inaction has an unintended discriminatory
effect , proves that his or her action or inaction was motivated and
justified by business necessity .
(4) , It shall be no defense to a violation of this Ordinance
that the violation was requested, sought , or otherwise procured by
another person .
Sec . 5 . 3 Exemptions
(a) Nothing in this Article (other than subsection ( 9 ) of
Section 5 . 1) shall apply to the following :
31
( 1) The rental of rooms or units in dwellings containing
living quarters occupied or intended to be occupied by no more than
four families living independently of each other, if the owner
actually maintains and occupies one of such living quarters as his
residence;
(2 ) 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, from limiting the sale, rental, or
occupancy of dwellings which it owns or operates for other than a
coituuercial purpose to persons of the same religion, or from giving
preference to such persons of the same religion, or from giving
_ eference to such persons, unless membership in such religion is
restricted on account of race, color, or national origin .
(3 ) Private clubs, not in fact open to the public, which as
an incident to their primary purpose or purposes provide lodging
which they own or operate for other than a commercial purpose, for
limiting the rental or occupancy of such lodgings to its members or
from giving preference to its members ;
(b) Nothing in Subsection (a) (3 ) , (4 ) , or (5 ) of Section 5 . 1
of this Article shall require 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 .
(c) No provision of this Ordinance limits the applicability
of any reasonable local or state restriction regarding the maximum
32
number of occupants permitted to occupy a dwelling unit ,
(d) Nothing in this Ordinance shall be deemed to nullify any
provisions of the North Carolina Building Code applicable to the
construction of residential housing for the handicapped .
(e) No provision of this Ordinance regarding marital status
applies with respect to housing for older persons . "Housing for
older persons" mean housing :
(1) Provided under any state or federal program specifically
designed and operated to assist elderly persons as defined in the
program;
(2 ) Intended for and solely occupied by person 62 years or
older. Housing satisfies the requirements of this subdivision even
A
though there are persons residing in such housing on September 13 ,
1988, who are under 62 years of age, provided that all new
occupants after September 13 , 1988, are 62 years or older; or
(3 ) Intended for and operated for occupancy by at least one
person 55 years of age or older per unit as shown by such mandatory
factors as (i) the existence of significant facilities and services
specifically designed to meet the physical and social needs of
older persons or, if this is not practicable, that the housing
provides important housing opportunities for older persons ; (ii) at
least eighty percent (80%) of the units 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 . Housing satisfies the
33
requirements of this subdivision even though on September 13 , 1988,
under eighty percent (80%) of the units in the housing facility are
occupied by at least one person 55 years or older per unit,
provided that eighty percent (80%) of the units that are occupied
by new tenants after September 13 , 1988, are occupied by at least
one person 55 years or older per unit such time as eighty percent
(80%) of all the units in the housing facility are occupied by at
least one person 55 years or older . Housing facilities newly
constructed for first occupancy after March 12 , 1989, shall satisfy
the requirements of this subdivision if (i) 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 or
older, and thereafter ( ii) eighty percent (80%) of all newly
occupied units are occupied by at least one person 55 years or
older until such time as eighty percent (80%) of all the units in
the housing facility are occupied by at least one person 55 years
of age or older .
Housing satisfies the requirements of. subdivisions (2 ) and (3 )
of this subsection even though there are units occupied by
employees of the housing facility who are under the minimum age or
family members of the employees residing in the same unit who are
under the minimum age, provided the employees perform substantial
duties directly related to the management of the housing .
ARTICLE VI Public Accommodations
Sec . 6 . 1 Definitions
34
(a) A place of public accommodation includes, but is not
limited to, each of the following establishments located in Orange
County which caters or offers its services or facilities or goods
to the general public :
(1 ) any inn, hotel, motel, or other establishment which
provides lodging to transient guests ;
(2 ) any restaurant, cafeteria, lunchroom, lunch counter, soda
fountain, bar, or other establishment engaged in the selling or
serving of food or drink;
(3 ) any motion picture house, theater, concert hall, sports
arena, stadium, or other place of exhibition or entertainment;
(4) any auditorium, convention center, lecture hall, or other
place of public gathering;
(5) any bakery, grocery store, clothing store, hardware
store, shopping center, or other sales or rental establishment;
( 6) any laundromat , dry-cleaner, bank, barber shop, beauty
shop, travel service, shoe repair service, funeral parlor, gas
station, office of an accountant or lawyer, pharmacy, insurance
office, professional offie of a health care provider, hospital, or
other service establishment ;
(7) any terminal , depot , or other station used for specified
public transportation;
(8) any museum, library, gallery, or other place of public
display or collection;
(9 ) any park, zoo, amusement park, or other place of
recreation;
35
(10 ) any nursery, elementary, secondary, undergraduate, or
postgraduate private school , or other place of education;
(11) any day care center, senior citizen center, homeless
shelter, food bank, adoption agency, or other social service center
establishment;
(12 ) any gymnasium, health spa, bowling alley, golf course,
or other place of exercise or recreation.
(13 ) any establishment offering the viewing, sale, use,
lease, or hire of printed matter, audiotapes, videotapes,
phonograph records, compact discs, videotape or film loops, or
other such establishment ;
(14) any area or structure provided for the purpose of
storing personal property; and
(15 ) any other establishment which is (a) (i ) physically
located within the premises of any establishment otherwise covered
by this section, or (ii) within the premises of which is physically
located any such covered establishment, and (b) which holds itself
out as serving patrons of such establishment .
Sec . 6 . 2 Prohibited Practices
(a) All persons shall be entitled to the full and equal
enjoyment of the goods , services , facilities, privileges,
advantages , and accommodations of any place of public
accommodation, as defined in this section, without discrimination
or segregation on the basis of race, color, religion, sex, national
origin, age, disability, marital status, or veteran status .
(b) It shall be an unlawful discriminatory practice under
36
this Ordinance for any person to (1) withhold, deny, or attempt to
withhold or deny, or deprive or attempt to deprive, any person of
any right or privilege secured by subsection (a) of this section,
or (2 ) intimidate, threaten, or coerce, or attempt to intimidate,
threaten, or coerce any person with the purpose of interfering with
any right or privilege secured by subsection (a) of this Section,
or (3 ) punish or attempt to punish any person for exercising or
attempting to exercise any right or privilege secured by subsection
(a) of this Section .
Sec . 6 . 3 Exemptions
(a) The provisions of this Ordinance shall not apply to a
private club or other establdshment not in fact open to the public .
ARTICLE VII Other Prohibited Discriminatory Acts
1 . It shall be unlawful for any person to intentionally or
knowingly:
a . Utter, speak, or otherwise communicate in a threatening
manner words that incite imminent lawless action or which by their
very utterance tend to incite an immediate breach of the peace
where such words are directed, at an individual or a group of
individuals because of that person' s or that group ' s perceived or
actual race, color, religion, sex, national origin, age,
disability, marital status, or veteran status ;
b. Solicit , encourage, compensate, assist , or conspire with
another to utter, speak, or otherwise communicate in a threatening
37
manner words that incite imminent lawless action or which by their
very utterance tend to incite an immediate breach of the peace
where such words are directed at an individual or a group of
individuals because of that person' s or that group' s perceived or
actual race, color, religion, sex, national origin, age,
disability, marital status, or veteran status ;
c . Perform, attempt to perform, or threaten to perform, any
act which directly or indirectly results in an individual ' s bodily
injury or property damage where such act is directed at an
individual or a group of individuals because of that person' s or
that group ' s perceived or actual race, color, religion, sex,
national origin, age, disability, marital status, or veteran
A
status .
d. Solicit, encourage, compensate, assist , or conspire with
another to perform, attempt to perform, or threaten to perform, any
act which directly or indirectly results in an individual ' s bodily
injury or property damage where such act is directed at an
individual or a group of individuals because of that person ' s or
that group ' s perceived or actual race, color, religion, sex,
national origin, age, disability, marital status, or veteran
status .
2 . No person shall be found to have violated this Ordinance
on the basis of the content of the utterance, speech, or
communication used by such person .
Article VIII Enforcement
38
Subsec . 8 . 1 Filing of Complaint and Investigation
(a) Any person who claims to have been injured, or claims to
be currently being injured, or who reasonably believes that he or
she will be injured, by any practice made unlawful under this
Ordinance may file a Complaint with the Commission .
(b) Complaints shall be in writing, signed and verified by
the Complainant . Complaints shall state the facts upon which the
allegation of an unlawful discriminatory practice is based and
shall contain such other information and be in such form as the
Commission requires .
Commission members or employees shall assist Complainants, if
necessary, in reducing Complaints to writing and shall assist in
setting forth the information in the Complaint as may be required
by the Commission .
(c) (1) A Complaint that alleges an unlawful employment
practice under this Ordinance must be filed with the Commission no
later than 180 days after the occurrence, or cessation of the
alleged unlawful employment practice .
(c) (2 ) A Complaint that alleges an practice made unlawful
under this Ordinance, other than an unlawful employment practice,
must be filed with the Commission no later than one (1) year from
the date of the occurrence, or cessation of the alleged unlawful
practice .
(d) The Commission shall serve upon the Respondent , in
accordance with the North Carolina Rules of Civil Procedure, a copy
of the Complaint and a notice advising the Respondent of his or her
39
procedural rights and obligations under this Ordinance within ten
(10 ) days after the Complaint is filed with the Commission .
(e) A Respondent may file an answer to the Complaint within
ten (10 ) days after receiving a copy of the Complaint . Answers
shall be signed and verified by the Respondent and shall be filed
with the Commission .
( f) With leave of the Commission, which leave shall be granted
whenever it would be reasonable and fair to do so, Complaints and
Answers may be amended at any time . Amendments shall be reduced to
writing, signed, verified, and filed with the Commission .
Amendments shall relate back to the date the original Complaint or
Answer was filed.
(g) The Commission shall, within 30 days after the filing of
a Complaint , commence an investigation into the allegations
contained in the Complaint .
(h) 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 to
ascertain the factual basis of the allegations contained in the
Complaint .
Further, the Commission may examine, record, and copy such
materials and take and record the testimony or statements of such
persons as reasonably necessary for the furtherance of the
investigation .
(i ) In conducting an investigation, the Commission may, in
accordance with the North Carolina Rules of Civil Procedure :
40
(1) issue subpoenas compelling access to or production of
documents, materials, or other evidence;
(2 ) issue subpoenas compelling witnesses, including any
party, to appear and give testimony before the
Commission, or before an employee or agent of the
Commission;
(3 ) issue subpoenas compelling witnesses, including any
party, to appear and give testimony at a deposition;
(4 ) take depositions of witnesses, including any party;
and
(5) issue interrogatories to a Respondent .
(j ) Upon written application to the Commission, a Respondent
A
shall be entitled to the issuance of interrogatories directed to
the Complainant, to the issuance of a reasonable number of
subpoenas for the taking of depositions, and to the issuance of a
reasonable number of subpoenas for the production of evidence .
(k) In the case of refusal to obey a subpoena, answer an
interrogatory, answer a question propounded in a deposition, or
answer a question propounded during an interview conducted by a
Commission employee or agent pursuant to this section, the
Commission or the Respondent may make a motion in the Superior
Court to compel a person to obey the subpoena, answer the
interrogatory, or answer the question . The North Carolina Rules of
Civil Procedure shall apply to the making of such motions . If a
person fails to obey an order issued pursuant to this subsection,
the court may apply any or all of the sanctions available in Rule
41
37 of the North Carolina Rules of Civil Procedure .
(1) Whenever the Commission concludes on the basis of a
preliminary investigation of a Complaint that prompt judicial
action is necessary to carry out the purposes of this Ordinance,
the Commission may commence a civil action in the Superior Court
for injunctive relief pending final disposition of the Complaint .
Any injunctive relief shall be ordered in accordance with Rule 65
of the North Carolina Rules of Civil Procedure .
The commencement of a civil action to obtain injunctive relief
shall not affect the continuation of the Commission' s investigation
or the initiation of a separate civil action provided for in this
•
Ordinance .
(m) Complaints may be resolved at any time by informal
conference, conciliation, or persuasion . Nothing said or done in
the course of such informal procedure may be made public by the
Commission or used as evidence in any subsequent proceeding without
the written consent of the person concerned.
Subsec . 8 . 2 Reasonable Cause, Conciliation Efforts,
and Right to Sue Letters
(a) If the Complaint is not sooner resolved, the Commission
shall , upon completion of the investigation, determine whether or
not there is reasonable cause to believe that an unlawful
discriminatory practice has occurred, is occurring, or is going to
occur.
(b) No member or employee of the Commission who assists the
Complainant in the preparation of the Complaint may participate in
42
the decision of whether or not reasonable cause exists .
(c) The Commission shall make its determination on reasonable
cause as promptly as possible and, so far as practicable, no later
than 100 days after the Complaint was filed .
(d) If the Commission determines that there is not reasonable
cause to believe that an unlawful discriminatory practice has
occurred, is occurring, or is going to occur, it shall dismiss the
Complaint and so notify the Complainant and the Respondent . At the
same time, the Commission shall issue a right-to-sue letter to the
Complainant .
(e) If the Commission determines that reasonable cause exists,
it shall notify the Complainant and the Respondent and shall
attempt to resolve the Complaint by conference, conciliation,
and/or persuasion .
(f) A conciliation agreement signed by the parties is an
enforceable contract . The Commission shall be a party to
conciliation agreements which resolve Complaints .
(g) If the Commission, after making a finding of reasonable
cause, is unable to resolve the Complaint by conference,
conciliation, or persuasion, it shall issue a written declaration
that conciliation efforts have failed.
(h) If the Commission issues a written declaration that
conciliation efforts have failed, the Commission shall, upon
written request of the Complainant , issue a right-to-sue letter to
the Complainant . Such written request shall be filed with the
Commission by the Complainant within fifteen (15) days of the date
43
the declaration of conciliation failure is served on the
Complainant .
(i) (a) Upon making a declaration of conciliation failure, the
Commission may, in cases arising under Article IV (Fair
Employment) , Article VI (Public Accomodations and Public
Transportation) , and Article VII (Other Prohibited Discriminatory
Acts) , apply to the Director of the Office of Administrative
Hearings, pursuant to N.C .G . S . §7A-758, for the designation of an
administrative law judge to preside at a hearing of the case .
(b) In cases arising under Article V (Fair Housing) in
which the Commission has issued a declaration of conciliation
failure, the Commission must apply to the Director of the Office of
4
Administrative Hearings, pursuant to N.C .G . S . §7A-758, for the
4 designation of an administrative law judge to preside at a hearing
of the case .
(c) In the event the Commission chooses to make application
to the Office of Administrative Hearings , it shall do so within
thirty (30) days of the date it issued its written declaration of
conciliation failure .
(j ) If within 130 days from the date the Complaint was filed,
the Commission has failed to make a determination on the issue of
reasonable cause, the Commission shall, upon written request of the
Complainant , issue a right-to-sue letter to the Complainant .
Sec . 8 . 3 Referral to Office of Administrative Hearings
Subdiv . 8 . 3 . 1 Hearings
(a) Upon receipt of an application for a hearing from the
44
Commission, the Director of the Office of Administrative Hearings
shall, without undue delay, assign an administrative law judge to
hear the case . Under this subsection, references to "parties "
means " the Commission" and "the Respondent " and any other party the
administrative law judge permits to intervene . It shall be within
the sound discretion of the administrative law judge to allow or
disallow such motion .
(b) All hearings under this Ordinance shall be de novo, open
to the public, and shall be conducted in an impartial manner.
(c) Venue of cases heard by an administrative law judge under
this Ordinance shall be in Orange County.
(d) If at any time after the commencement of a hearing of a
case under this section, but before the administrative law judge
issues a final decision, the parties successfully conciliate the
Complaint, the Commission shall file a stipulation of settlement or
notice of voluntary dismissal with the presiding administrative law
judge . Upon receipt of such stipulation or notice, the
administrative law judge and the Office of Administrative Hearings
shall take no further action regarding the Complaint .
(e) All hearings held before an administrative law judge
shall, except as provided elsewhere in this Ordinance, be held in
accordance with the provisions of Article 3 , Chapter 150B
(Administrative Procedures Act) and in accordance with Chapter 3 of
Title 26 of the North Carolina Administrative Code .
( f) The case in support of the Commission shall be presented
at the hearing by the Commission ' s attorney .
45
(g) The administrative law judge shall make a recommended
decision, which shall contain findings of fact , conclusions of law,
and recommended relief if appropriate .
(h) The Commission may review any finding of fact , conclusion
of law, or item of relief, if any, contained in the administrative
law judge ' s recommended decision . Such review shall be completed
by the Commission not later than 30 days after the recommended
decision is issued; otherwise the recommended decision becomes
final .
(i) The Office of Administrative Hearings shall prepare an
official record of the case that includes :
1 . Notices, pleadings, motions, and intermediate rulings; •
2 . Questions and offers of proof, objections , and rulings
thereon;
3 . Evidence presented;
4 . Matters officially noticed, except matters so obvious that
a statement of them would serve no useful purpose; and
5 . The administrative law judge ' s recommended decision .
(j ) The Office of Administrative Hearings shall forward the
official record to the Commission and shall forward a copy of its
recommended decision to each party .
Subdiv. 8 . 3 . 2 Remedies
(a) If the administrative law judge, in its recommended
decision; finds that a Respondent has violated, is violating, or is
about to violate any provision of this Ordinance, he may recommend
such affirmative action as may be appropriate, including :
1 . injunctive relief as provided for in Rule 65 of the North
Carolina Rules of Civil Procedure;
2 . compensatory damages ;
3 . punitive damages ; and
4 . any other relief as the administrative law judge deems
46
appropriate .
(b) Punitive damages against a respondent may be recommended
by the administrative law judge only if the complaining party (or
parties) demonstrate (s) that the Respondent engaged in a practice
made unlawful under this Ordinance with malice or with reckless
indifference to the protected rights of the Complainant .
(c) In the case of a finding by the administrative law judge
that the Respondent has committed an unfair employment practice,
then the following provisions shall also apply :
1 . the administrative law judge may recommend, in addition to
any of the remedies set forth above, any one or more of the
following :
a . reinstatement or hiring of an employee; •
b. back pay; provided that it shall not accrue from a
date more than two years prior to the filing of the complaint
with the Commission; and provided further that interim
earnings or amounts earnable with reasonable diligence by the
person discriminated against shall operate to reduce the back
pay otherwise allowable .
2 . Compensatory damages shall not include backpay or interest
on backpay .
3 . The sum of the amount of compensatory damages allowed for
future pecuniary losses, emotional pain, suffering,
inconvenience, mental anguish, loss of enjoyment of life, and
other pecuniary losses, and the amount of punitive damages
awarded under this section shall not exceed, for each
47
complaining party :
a . In the case of a Respondent who has more than 14 and
fewer than 101 employees in each of 20 or more calendar
weeks in the current or preceding calendar year, $50 , 000 ;
and
b. In the case of a Respondent who has more than 100 and
fewer than 201 employees in each of 20 or more calendar
weeks in the current or preceding calendar year,
$100 , 000 ; and
c . In the case of a Respondent who has more than 200 and
fewer than 501 employees in each of 20 or more calendar
weeks in the current or preceding calendar year;
$200 , 000 ; and
d. In the case of a Respondent who has more than 500
employees in each of 20 or more calendar weeks in the
current or preceding calendar year, $300 , 000 .
4 . In cases where an unlawful employment practice involves
the provision of a reasonable , accommodation, neither
compensatory nor punitive damages may be awarded where the
Respondent demonstrates good faith efforts, in consultation
with the person with the disability who has informed the
covered entity that accommodation is needed, to identify and
make a reasonable accommodation that would provide such
individual with an equally effective opportunity and would not
cause an undue hardship on the operation of the Respondent ' s
business .
48
/7v
(d) In the case of a finding that the Respondent has
committed an unfair housing practice, has committed a violation of
any provision of the " Public Accomodations and Public
Transportation" article in this Ordinance, or has committed a
violation of any provision the "Other Prohibited Discriminatory
Acts " article in this Ordinance, then the following provisions
shall also apply :
1 . the amount of punitive damages awarded under this section
shall not exceed, for each complaining party :
a . In an amount not exceeding ten thousand dollars ( $10, 000)
if the Respondent has not been adjudged to have committed any prior
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unlawful discriminatory housing practices;
A
b. In an amount not exceeding twenty-five thousand dollars
($25 , 000 ) if the Respondent has been adjudged to have committed one
other unlawful discriminatory housing practice during the five-year
period ending on the date of the filing of the Complaint ; or
c . In an amount not exceeding fifty thousand dollars
($50 , 000 ) if the Respondent has been adjudged to have committed two
or more unlawful discriminatory housing practices during the seven-
year period ending on the date of the filing of the complaint .
If the act (or act ) constituting the unlawful discriminatory
housing practice (or practices) is committed by the same natural
person who has been previously adjudged to have committed acts
constituting an unlawful discriminatory housing practice, then the
punitive damages set forth above may be imposed without regard to
the period of time within which any subsequent discriminatory
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housing practice occurred .
ARTICLE IX Judicial Review
(a) Judicial review of the final decision of the Commission
shall be in accordance with the provisions provided for judicial
review of agency decisions as set forth in Article 4 , §1503 of the
North Carolina General Statutes .
(b) In reviewing the final decision of the Commission, the
court may affirm the decision or remand the case for further
proceedings . It may also reverse or modify the final decision of
the Commission if the substantial rights of the petitioner may have
been prejudiced because the Commission' s findings, inferences,
conclusions, or decisions are
1 . In violation of constitutional provisions ;
2 . In excess of the statutory authority or jurisdiction
of the agency;
3 . Made upon unlawful procedure;
4 . Affected by other error of law;
5 . Unsupported by substantial evidence; or
6 . Arbitrary or capricious .
(g) The court in a review proceeding may:
1 . Affirm, modify, or reverse the Commission' s decision;
2 . Remand the case to the Commission for further proceedings ;
3 . Grant to any party such temporary relief, restraining
order, or other order as it deems appropriate; or
4 . Issue an order to enforce the Commission' s decision to the
extent that the decision is affirmed or modified.
(c) A party to a review proceeding in Superior Court may
appeal to the appellate division from the final judgment of the
Superior Court as provided in G . S . 7A-27 . Pending the outcome of
an appeal, an appealing party may apply to the court that issued
the judgment under appeal for a stay of that judgment or a stay of
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the decision that is the subject of the appeal, as appropriate .
ARTICLE X Civil Actions
(a) Civil actions brought by a Complainant after the issuance
of a right-to-sue letter by the Commission shall be filed in the
Superior Court no later than 90 days after issuance of the right-
to-sue letter.
(b) Parties to a civil action brought pursuant to this
section shall have the right to a jury trial as provided for by the
North Carolina Rules of Civil Procedure .
(c) Upon application by the Complainant and in such
circumstances as the court may deem 'just , the court may authorize
the commencement of the action without the payment of fees, costs,
or security .
(d) The court may award court costs and reasonable attorney' s
fees to the prevailing party with the following limitations :
(1 ) Attorney' s fees may not be awarded to the Commission;
and
(2 ) A prevailing Respondent may be awarded court costs and
reasonable attorney' s fees only upon a showing that the case is
frivolous, unreasonable, or without foundation .
(e) If the court finds that the Respondent has violated, is
violating, or is about to violate this Ordinance, it may order such
affiimative action as may be appropriate, including each of the
remedies that may be recommended an administrative law judge under
this Ordinance .
(f) No order of the court shall require the admission or
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reinstatement, or promotion of an individual as a member of a
union, or the hiring, reinstatement, or promotion of an individual
as an employee, or the payment to him of any back pay, if such
individual was refused admission, suspended, or expelled, or was
refused employment or advancement or was suspended or discharged
for any reason other than discrimination on account of race, color,
religion, sex, national origin, age, disability, marital status, or
veteran status in the United States armed services .
A
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