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HomeMy WebLinkAboutORD-2021-001 Amendment to the Code of Ordinances – Non-Discrimination Ordinance 1 ORANGE COUNTY BOARD OF COMMISSIONERS ACTION AGENDA ITEM ABSTRACT Meeting Date: January 19, 2021 Action Agenda Item No. 6-b SUBJECT: Amendment to the Code of Ordinances — Non-Discrimination Ordinance DEPARTMENT: County Attorney ATTACHMENT(S): INFORMATION CONTACT: Draft Ordinance John Roberts, County Attorney, 245- Resolution 2318 PURPOSE: To amend the Code of Ordinances to add a Non-Discrimination Ordinance. BACKGROUND: In 2016 the North Carolina General Assembly adopted House Bill 2, widely known as the "bathroom bill." This law had the effect of discriminating against transgender people in the use of public facilities and established a limited statewide non-discrimination law while simultaneously prohibiting local governments from adopting their own non-discrimination ordinances. In 2017 Governor Roy Cooper signed a repeal of the bathroom bill. Among the terms of that repeal was a provision that repealed the prohibition on local governments enacting non-discrimination ordinances, and it provided that local governments could only consider action after December 1, 2020. In early 2020 the Board instructed the County Attorney to draft a non- discrimination ordinance for consideration by the Board. The draft ordinance was submitted to the Human Relations Commission for review and comment and the Commission's recommendations are incorporated. The attached draft non-discrimination ordinance is offered for the Board's consideration. If adopted the ordinance would: • Establish a clear policy of non-discrimination in Orange County. • Create a protected class consisting of persons who may not be discriminated against based on "age (as defined in the Orange County Civil Rights Ordinance), race, ethnicity, color, national origin, religion, creed, sex, gender, gender identity, gender expression, marital status, familial status, source of income, disability, political affiliation, veteran status, disabled veteran status." • Prohibit the denial to any person the full and equal enjoyment of the goods, services, facilities, privileges, advantages, and accommodations of a place of public accommodation on the basis of protected class status. • Prohibit the printing, circulation, posting, or mailing of a statement, advertisement, or sign which indicates that the full and equal enjoyment of the transportation, access, goods, services, facilities, privileges, advantages, and accommodations of a place of public 2 accommodation will be refused, withheld from, or denied any person on the basis of protected class status. • Prohibit actions which directly or indirectly result 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 protected class status. • Require all potential contractors submitting a bid or proposal to certify they do not and will not discriminate against any person based on the protected class status and to require their subcontractors to do the same. Falsification or violation of the certification would result in rejection of the bid or proposal or termination of the contract. • Provide for the same investigation, enforcement, and remedies authorized by the Orange County Civil Rights Ordinance. The relevant enforcement provisions may be reviewed at https://Iibrary.municode.com/nc/orange county/codes/code of ordinances?nodeld=PTIG FOR CH12CIR1. FINANCIAL IMPACT: The financial impact associated with this action is unknown. Enforcement of this ordinance could lead to the need for more investigative personnel in the Human Rights and Relations Department. SOCIAL JUSTICE IMPACT: The following Orange County Social Justice Goal is applicable to this item: • GOAL: FOSTER A COMMUNITY CULTURE THAT REJECTS OPPRESSION AND INEQUITY The fair treatment and meaningful involvement of all people regardless of race or color; religious or philosophical beliefs; sex, gender or sexual orientation; national origin or ethnic background; age; military service; disability; and familial, residential or economic status. ENVIRONMENTAL IMPACT: There is no Orange County Environmental Responsibility Goal impact associated with this action. RECOMMENDATION(S): The Manager recommends the Board adopt the Ordinance and Resolution of approval and authorize the Chair to sign the Resolution amending the Code of Ordinances. 3 ORD-2021-001 Chapter 12 Civil Rights. Sections 12-23 — 12-49 Reserved. AN ORDINANCE PROHIBITING DISCRIMINATION THROUGHOUT ORANGE COUNTY Sec. 12-50. - Title. This Ordinance shall be known and may be cited as the Orange County Non-Discrimination Ordinance. Sec. 12-51.—Policy and Severability. (a) It is the policy of Orange County not to enter into a contract with any business,company, or firm that has discriminated in the solicitation, selection, hiring or treatment of vendors, suppliers, subcontractors or commercial customers against a Protected Class, or on the basis of any otherwise unlawful use of individual or personal characteristics regarding such vendor's, suppliers, commercial customers, employees, or owners in connection with a county contract or solicitation; provided that nothing in this non-discrimination policy shall prohibit or limit otherwise lawful efforts to remedy the effects of discrimination that has occurred or is occurring in the marketplace. 1. It is the policy of Orange County that every Orange County created contract and subcontract for goods or services shall contain a non-discrimination clause that prohibits discrimination as that term is defined herein. (b) It is further the policy of Orange County that discrimination has no place in Orange County, North Carolina and it is the intent of this ordinance to provide uniform legal protection to individuals in all Protected Classes, making it unlawful for any person to discriminate in housing,public accommodations, and transportation. (c) 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 affect the enforceability of the remaining provisions of the Ordinance. Sec. 12-52. -Definitions. (a) Discrimination means any disadvantage, difference, or distinction in the solicitation, selection, hiring, service to, or treatment of a vendor, supplier, subcontractor, or customer on the basis of Protected Class status or on the basis of any otherwise unlawful use of personal or individual characteristics. (b) Housing and public accommodations have the same common meaning as those terms are defined in the Orange County Civil Rights Ordinance. 4 (c) Person means any individual, business, or company, regardless of organizational structure, providing for profit goods, facilities, services, accommodations, transportation, or access to the general public. (d) Protected Class means age (as defined in the Orange County Civil Rights Ordinance), race, ethnicity,color,national origin,religion,creed,sex,sexual orientation,gender,gender identity, gender expression, marital status, familial status, source of income, disability, political affiliation, veteran status, disabled veteran status. (e) Public Accommodation has the same meaning as that term is defined in the Orange County Civil Rights Ordinance except that for purposes of this Ordinance Public Accommodation includes: 1. Transportation companies and transportation providers operating company-owned or privately-owned vehicles providing transportation to the general public; and 2. Private residences providing short-term rentals to members of the general public. A short-term rental means the provision of a room, space, or residential unit that is suitable or intended for occupancy for dwelling, sleeping, or lodging purposes, for a period of fewer than 30 consecutive days, in exchange for a charge for the occupancy. Sec. 12-53. -Contractor bid requirements. (a) All requests for bids or proposals issued for county contracts shall include a certification to be completed by the bidder or proposer in substantially the following form: The undersigned bidder or proposer hereby certifies and agrees that the following information is correct: 1. In preparing its enclosed bid or proposal, the bidder or proposer has considered all bids and proposals submitted from qualified, potential subcontractors and suppliers, and has not engaged in discrimination as defined in Section 12-52 of the Orange County Non-discrimination Ordinance. 2. Without limiting any other remedies that Orange County may have for a false certification, it is understood and agreed that, if this certification is false, such false certification will constitute grounds for Orange County to reject the bid or proposal submitted with this certification, and terminate any contract awarded based on such bid or proposal. It shall also subject the bidder or proposer to disqualification from participating in county contracts or bid processes for up to two years. 3. As a condition of contracting with Orange County, the bidder or proposer agrees to promptly provide to Orange County all information and documentation that may be requested by Orange County from time to time regarding the solicitation and selection of suppliers and subcontractors in connection with this solicitation process. Failure to maintain or failure to provide such information constitutes grounds for Orange County to reject the bid or proposal and to terminate, without penalty to Orange County, any contract awarded on such bid or proposal. All 5 such information and documentation shall be maintained for a period of three years after the expiration of the contract. 4. As part of its bid or proposal, the bidder or proposer shall provide to Orange County a list of all instances within the past ten years where a complaint was filed or pending against bidder or proposer in a legal or administrative proceeding alleging that bidder or proposer discriminated against its subcontractors, vendors, suppliers, or commercial customers, and a description of the status or resolution of that complaint, including any remedial action taken. 5. As a condition of submitting a bid or proposal to Orange County the bidder or proposer agrees to comply with the Orange County Non-discrimination Ordinance. Falsification of this certification shall constitute a violation of the Orange County Non-Discrimination Ordinance and shall be grounds for rejection of the bid or proposal or termination, without fault to Orange County, of a contract. 6. As a condition of submitting a bid or proposal to Orange County the bidder or proposer agrees that Orange County may consider the information submitted as part of this certification in its determination of the responsibility of the bidder or proposer. The bidder or proposer, as the case may be,waives the right to challenge the rejection of a bid or proposal when such rejection is based, in its entirety, on information contained in this certification. Sec. 12-54. - Prohibited acts. (a) It shall be unlawful for any person to deny any person the full and equal enjoyment of the goods, services, facilities, privileges, advantages, and accommodations of a place of public accommodation on the basis of Protected Class status or on the basis of any otherwise unlawful use of individual or personal characteristics. (b) It shall be unlawful for any person to make, print, circulate, post, mail or otherwise cause to be published a statement, advertisement, or sign which indicates that the full and equal enjoyment of the transportation, access, goods, services, facilities, privileges, advantages, and accommodations of a place of public accommodation will be refused, withheld from, or denied any person on the basis of Protected Class status or on the basis of any otherwise unlawful use of individual or personal characteristics, or that any person's patronage of or presence at a place of public accommodation is objectionable, unwelcome, unacceptable, or undesirable on the basis of Protected Class status or on the basis of any otherwise unlawful use of individual or personal characteristics; provided, however, this section does not apply to a private club or other establishment not, in fact, open to the public. (c) It shall be unlawful for any person to intentionally or knowingly: 1. Perform or attempt 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 Protected Class status or on the basis of any otherwise unlawful use of individual or personal characteristics. 6 2. Solicit, encourage, compensate, assist, or conspire with another to perform or attempt 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 Protected Class status or on the basis of any otherwise unlawful use of individual or personal characteristics. (d) No person shall be found to have violated this Ordinance solely on the basis of the content of any speech or communication used by such person. Sec. 12-55. Exemptions. (a) All applicable exemptions found in Section 12-11 of the Orange County Civil Rights Ordinance related to housing shall apply to alleged violations of Section 12-54 of this Ordinance. Sec. 12-56. Investigation, Enforcement, and Remedy. (a) Sections 12-16 through and including 12-21 of the Orange County Civil Rights Ordinance shall be followed and adhered to during the investigation of any alleged violation of this Ordinance. Any remedies available through said sections of the Orange County Civil Rights Ordinance shall be available hereunder. 7 RES-2021-001 RESOLUTION OF AMENDMENT A RESOLUTION AMENDING CHAPTER 12 OF THE ORANGE COUNTY CODE OF ORDINANCES Be it Resolved and Ordained by the Board of Commissioners of Orange County, North Carolina: WHEREAS, in 2016 the North Carolina Legislature passed and Governor Pat McCrory signed Session Law 3, a law that came to be known as the "bathroom bill," which among other things, restricted the authority of local governments to prohibit discrimination against groups and classes of residents of North Carolina; and WHEREAS, in 2017 the North Carolina Legislature passed and Governor Roy Cooper signed Session Law 4, a repeal of Session Law 2016-3, which among other things, removed the restriction on the authority of local governments to prohibit discrimination against groups and classes of residents of North Carolina in the provision of public accommodations effective December 1, 2020; and WHEREAS, the Board of Commissioners of Orange County believes all residents of Orange County who may seek public services or public accommodations should be free to do so without encountering discrimination based on age (as defined in the Orange County Civil Rights Ordinance), race, ethnicity, color, national origin, religion, creed, sex, gender, gender identity, gender expression, marital status, familial status, source of income, disability, political affiliation, veteran status, and disabled veteran status. NOW THEREFORE BE IT RESOLVED AND ORDAINED, that the Code of Ordinances, Orange County, North Carolina, Chapter 12, is hereby amended by adding sections to be numbered 12-50 through 12-56, which sections read as shown in the attached revised ordinance to further prohibit discrimination in Orange County. This Amendment is effective upon adoption. Adopted by the Orange County Board of Commissioners this day of , 2021. By: Attest: Renee Price, Chair Laura Jensen, Clerk to the Board Orange County Board of Commissioners [SEAL]