S.B. 212

1

FAIR HOUSING AMENDMENT
2 1999 GENERAL SESSION
3 STATE OF UTAH
4 Sponsor: L. Steven Poulton
5 AN ACT RELATING TO THE UTAH FAIR HOUSING ACT; DELETING SOURCE OF
6 INCOME AS A PROHIBITED TYPE OF DISCRIMINATION; DELETING THE SUBPOENA
7 POWER OF THE DIVISION OF ANTIDISCRIMINATION AND LABOR; REQUIRING A
8 FILING FEE FOR COMPLAINTS; REQUIRING THE ATTORNEY GENERAL TO CONCUR
9 WITH CERTAIN DETERMINATIONS OF THE DIVISION; LIMITING THE AVAILABLE
10 REMEDIES; AND MAKING TECHNICAL CHANGES.
11 This act affects sections of Utah Code Annotated 1953 as follows:
12 AMENDS:
13 57-21-2, as last amended by Chapter 375, Laws of Utah 1997
14 57-21-5, as last amended by Chapter 114, Laws of Utah 1993
15 57-21-6, as last amended by Chapter 114, Laws of Utah 1993
16 57-21-7, as last amended by Chapter 114, Laws of Utah 1993
17 57-21-8, as last amended by Chapter 375, Laws of Utah 1997
18 57-21-9, as last amended by Chapter 375, Laws of Utah 1997
19 57-21-10, as last amended by Chapter 375, Laws of Utah 1997
20 57-21-11, as last amended by Chapter 375, Laws of Utah 1997
21 57-21-12, as enacted by Chapter 114, Laws of Utah 1993
22 Be it enacted by the Legislature of the state of Utah:
23 Section 1. Section 57-21-2 is amended to read:
24 57-21-2. Definitions.
25 As used in this chapter:
26 (1) "Aggrieved person" includes any person who:
27 (a) claims to have been injured by a discriminatory housing practice; or

28 (b) believes that he will be injured by a discriminatory housing practice that is about to
29 occur.
30 (2) "Commission" means the Labor Commission.
31 (3) "Complainant" means an aggrieved person, including the director, who has commenced
32 a complaint with the division.
33 (4) "Conciliation" means the attempted resolution of issues raised by a complaint of
34 discriminatory housing practices by the investigation of the complaint through informal
35 negotiations involving the complainant, the respondent, and the division.
36 (5) "Conciliation agreement" means a written agreement setting forth the resolution of the
37 issues in conciliation.
38 (6) "Conciliation conference" means the attempted resolution of issues raised by a
39 complaint or by the investigation of a complaint through informal negotiations involving the
40 complainant, the respondent, and the division. The conciliation conference is not subject to Title
41 63, Chapter 46b, Administrative Procedures Act.
42 (7) "Covered multifamily dwellings" means:
43 (a) buildings consisting of four or more dwelling units if the buildings have one or more
44 elevators; and
45 (b) ground floor units in other buildings consisting of four or more dwelling units.
46 (8) "Director" means the director of the division or a designee.
47 (9) (a) "Disability" means a physical or mental impairment that substantially limits one or
48 more of a person's major life activities, including a person having a record of such an impairment
49 or being regarded as having such an impairment.
50 (b) "Disability" does not include current illegal use of, or addiction to, any federally
51 controlled substance, as defined in Section 102 of the Controlled Substances Act, 21 U.S.C. 802.
52 (10) "Discriminate" includes segregate or separate.
53 (11) "Discriminatory housing practice" means an act that is unlawful under this chapter.
54 (12) "Division" means the Division of Antidiscrimination and Labor established under the
55 commission.
56 (13) (a) "Dwelling" means any building or structure, or a portion of a building or structure,
57 occupied as, or designed or intended for occupancy as, a residence of one or more families.
58 (b) "Dwelling" also includes vacant land that is offered for sale or lease for the construction

59 or location of a dwelling as described in Subsection (13)(a).
60 (14) (a) "Familial status" means one or more individuals who have not attained the age of
61 18 years being domiciled with:
62 (i) a parent or another person having legal custody of the individual or individuals; or
63 (ii) the designee of the parent or other person having custody, with the written permission
64 of the parent or other person.
65 (b) The protections afforded against discrimination on the basis of familial status shall
66 apply to any person who:
67 (i) is pregnant;
68 (ii) is in the process of securing legal custody of any individual who has not attained the
69 age of 18 years; or
70 (iii) is a single individual.
71 (15) "National origin" means the place of birth of an individual or of any lineal ancestors.
72 (16) "Person" includes one or more individuals, corporations, limited liability companies,
73 partnerships, associations, labor organizations, legal representatives, mutual companies, joint-stock
74 companies, trusts, unincorporated organizations, trustees, trustees in cases under the United States
75 Bankruptcy Code, receivers, and fiduciaries.
76 (17) "Presiding officer" has the same meaning as provided in Section 63-46b-2 .
77 (18) "Real estate broker" or "salesperson" means a principal real estate broker, an associate
78 real estate broker, or a real estate sales agent as those terms are defined in Section 61-2-2 .
79 (19) "Respondent" means a person against whom a complaint of housing discrimination
80 has been initiated.
81 (20) "Sex" means gender and includes pregnancy, childbirth, and disabilities related to
82 pregnancy or childbirth.
83 [(21) "Source of income" means the verifiable condition of being a recipient of federal,
84 state, or local assistance, including medical assistance, or of being a tenant receiving federal, state,
85 or local subsidies, including rental assistance or rent supplements.]
86 Section 2. Section 57-21-5 is amended to read:
87 57-21-5. Discriminatory practices enumerated -- Protected persons, classes
88 enumerated.
89 (1) It is a discriminatory housing practice to do any of the following because of a person's

90 race, color, religion, sex, national origin, familial status, [source of income,] or disability:
91 (a) refuse to sell or rent after the making of a bona fide offer, refuse to negotiate for the
92 sale or rental, or otherwise deny or make unavailable any dwelling from any person;
93 (b) discriminate against any person in the terms, conditions, or privileges of the sale or
94 rental of any dwelling or in providing facilities or services in connection with the dwelling; or
95 (c) represent to any person that any dwelling is not available for inspection, sale, or rental
96 when in fact the dwelling is available.
97 (2) It is a discriminatory housing practice to make a representation orally or in writing or
98 make, print, circulate, publish, post, or cause to be made, printed, circulated, published, or posted
99 any notice, statement, or advertisement, or to use any application form for the sale or rental of a
100 dwelling, that directly or indirectly expresses any preference, limitation, or discrimination based
101 on race, color, religion, sex, national origin, familial status, [source of income,] or disability, or
102 expresses any intent to make any such preference, limitation, or discrimination.
103 (3) It is a discriminatory housing practice to induce or attempt to induce, for profit, any
104 person to buy, sell, or rent any dwelling by making representations about the entry or prospective
105 entry into the neighborhood of persons of a particular race, color, religion, sex, national origin,
106 familial status, [source of income,] or disability.
107 (4) A discriminatory housing practice includes:
108 (a) a refusal to permit, at the expense of the disabled person, reasonable modifications of
109 existing premises occupied or to be occupied by the person if the modifications are necessary to
110 afford that person full enjoyment of the premises, except that in the case of a rental, the landlord,
111 where it is reasonable to do so, may condition permission for a modification on the renter agreeing
112 to restore the interior of the premises, when reasonable, to the condition that existed before the
113 modification, reasonable wear and tear excepted; and
114 [(b) a refusal to make reasonable accommodations in rules, policies, practices, or services
115 when the accommodations may be necessary to afford the person equal opportunity to use and
116 enjoy a dwelling; and]
117 [(c)] (b) in connection with the design and construction of covered multifamily dwellings
118 for first occupancy after March 13, 1991, a failure to design and construct those dwellings in a
119 manner that:
120 (i) the dwellings have at least one building entrance on an accessible route, unless it is

121 impracticable to have one because of the terrain or unusual characteristics of the site; and
122 (ii) with respect to dwellings with a building entrance on an accessible route:
123 (A) the public use and common use portions of the dwelling are readily accessible to and
124 usable by disabled persons;
125 (B) all the doors designed to allow passage into and within the dwellings are sufficiently
126 wide to allow passage by disabled persons in wheelchairs; and
127 (C) all premises within these dwellings contain the following features of adaptive design:
128 (I) an accessible route into and through the dwelling;
129 (II) light switches, electrical outlets, thermostats, and other environmental controls in
130 accessible locations;
131 (III) reinforcements in the bathroom walls to allow later installation of grab bars; and
132 (IV) kitchens and bathrooms such that an individual in a wheelchair can maneuver about
133 and use the space.
134 (5) This section also applies to discriminatory housing practices because of race, color,
135 religion, sex, national origin, familial status, [source of income,] or disability based upon a person's
136 association with another person.
137 Section 3. Section 57-21-6 is amended to read:
138 57-21-6. Discriminatory housing practices regarding residential real estate-related
139 transactions -- Discriminatory housing practices regarding the provisions of brokerage
140 services.
141 (1) It is a discriminatory housing practice for any person whose business includes engaging
142 in residential real estate-related transactions to discriminate against any person in making available
143 such a transaction, or in the terms or conditions of the transaction, because of race, color, religion,
144 sex, disability, familial status, [source of income,] or national origin. Residential real estate-related
145 transactions include:
146 (a) making or purchasing loans or providing other financial assistance:
147 (i) for purchasing, constructing, improving, repairing, or maintaining a dwelling; or
148 (ii) secured by residential real estate; or
149 (b) selling, brokering, or appraising residential real property.
150 (2) It is a discriminatory housing practice to deny any person access to, or membership or
151 participation in, any multiple-listing service, real estate brokers' organization, or other service,

152 organization, or facility relating to the business of selling or renting dwellings or to discriminate
153 against any person in the terms or conditions of access, membership, or participation in the
154 organization, service, or facility because of race, color, religion, sex, disability, familial status,
155 [source of income,] or national origin.
156 (3) This section also applies to discriminatory housing practices because of race, color,
157 religion, sex, national origin, familial status, [source of income,] or disability based upon a person's
158 association with another person.
159 Section 4. Section 57-21-7 is amended to read:
160 57-21-7. Prohibited conduct -- Aiding or abetting in discriminatory actions --
161 Obstruction of division investigation -- Reprisals.
162 (1) It is a discriminatory housing practice to do any of the following:
163 (a) coerce, intimidate, threaten, or interfere with any person:
164 (i) in the exercise or enjoyment of any right granted or protected under this chapter;
165 (ii) because that person exercised any right granted or protected under this chapter; or
166 (iii) because that person aided or encouraged any other person in the exercise or enjoyment
167 of any right granted or protected under this chapter;
168 (b) aid, abet, incite, compel, or coerce a person to engage in any of the practices prohibited
169 by this chapter;
170 (c) attempt to aid, abet, incite, compel, or coerce a person to engage in any of the practices
171 prohibited by this chapter;
172 (d) obstruct or prevent any person from complying with this chapter, or any order issued
173 under this chapter;
174 (e) resist, prevent, impede, or interfere with the director or any division employees or
175 representatives in the performance of duty under this chapter; or
176 (f) engage in any reprisal against any person because that person:
177 (i) opposed a practice prohibited under this chapter; or
178 (ii) filed a complaint, testified, assisted, or participated in any manner in any investigation,
179 proceeding, or hearing under this chapter.
180 (2) This section also applies to discriminatory housing practices because of race, color,
181 religion, sex, national origin, familial status, [source of income,] or disability based upon a person's
182 association with another person.

183 Section 5. Section 57-21-8 is amended to read:
184 57-21-8. Jurisdiction -- Department -- Division.
185 (1) The commission has jurisdiction over the subject of housing discrimination under this
186 chapter and may delegate the responsibility of receiving, processing, and investigating allegations
187 of discriminatory housing practices and enforcing this chapter to the division.
188 (2) The commission may:
189 (a) adopt rules necessary to administer this chapter in accordance with Title 63, Chapter
190 46a, Utah Administrative Rulemaking Act; and
191 (b) appoint and prescribe the duties of investigators, legal counsel, and other employees
192 and agents that it considers necessary for the enforcement of this chapter.
193 (3) The division [may]:
194 (a) shall receive, reject, investigate, and determine complaints alleging discriminatory
195 housing practices prohibited by this chapter;
196 [(b) issue subpoenas to compel the attendance of witnesses or the production of evidence
197 for use in any investigation, conference, or hearing conducted by the division, and if a person fails
198 to comply with such a subpoena, petition a court of competent jurisdiction for an order to show
199 cause why that person should not be held in contempt;]
200 [(c)] (b) shall attempt conciliation between the parties through informal efforts,
201 conference, persuasion, or other reasonable methods for the purposes of resolving the complaint;
202 [(d)] (c) may seek prompt judicial action for appropriate temporary or preliminary relief
203 pending final disposition of a complaint if the division [concludes] and the attorney general
204 conclude that such an action is necessary to carry out the purposes of this chapter;
205 [(e)] (d) may request that the attorney general initiate a civil action in a court of competent
206 jurisdiction to:
207 (i) enforce the rights granted or protected under this chapter;
208 (ii) seek injunctive or other equitable relief, including temporary restraining orders,
209 preliminary injunctions, or permanent injunctions;
210 (iii) seek damages; and
211 (iv) enforce final commission orders on the division's [own] behalf or on behalf of another
212 person in order to carry out the purposes of this chapter; and
213 [(f)] (e) may upon agreement of all parties initiate formal agency action under Title 63,

214 Chapter 46b, Administrative Procedures Act[; and].
215 [(g) promote public awareness of the rights and remedies under this chapter.]
216 Section 6. Section 57-21-9 is amended to read:
217 57-21-9. Procedure for an aggrieved person to file a complaint -- Conciliation --
218 Investigation -- Determination.
219 (1) Any person aggrieved by a discriminatory housing practice may file a written verified
220 complaint with the division within 180 days after the alleged discriminatory housing practice
221 occurs by filing the complaint with the division and paying a $35 filing fee. The division shall not
222 proceed with any complaint without the payment of the filing fee.
223 (2) (a) The commission shall adopt rules consistent with the provisions of 24 C.F.R. Sec.
224 115.3 (1990), relating to procedures under related federal law, to govern:
225 (i) the form of the complaint;
226 (ii) the form of any answer to the complaint;
227 (iii) procedures for filing or amending a complaint or answer; and
228 (iv) the form of notice to parties accused of the acts or omissions giving rise to the
229 complaint.
230 (b) The commission may, by rule, prescribe any other procedure pertaining to the division's
231 processing of the complaint.
232 (3) During the period beginning with the filing of the complaint and ending with the
233 director's determination and order, the division shall, to the extent feasible, engage in conciliation
234 with respect to the complaint.
235 (4) The division shall commence proceedings to investigate and conciliate a complaint
236 alleging a discriminatory housing practice within 30 days after the filing of the complaint.
237 (5) The division shall complete the investigation within 100 days after the filing of the
238 complaint, unless it is impracticable to do so. If the division is unable to complete the
239 investigation within 100 days after the filing of the complaint, the division shall notify the
240 complainant and respondent in writing of the reasons for the delay.
241 (6) If the division determines that there is no reasonable cause to support the allegations
242 in the complaint:
243 (a) the director or the director's designee shall issue a written determination and order for
244 the dismissal of the complainant and respondent; and

245 (b) the complainant, respondent, or an aggrieved party may submit a written request for
246 a reconsideration of the director's or designee's determination and order within 20 days after the
247 date of issuance of the director's determination and order pursuant to Section 63-46b-13 . The
248 decision of the Division of Adjudication may be appealed in accordance with Title 34A, Chapter
249 1, Part 3, Adjudicative Proceedings.
250 (7) If the director or designee fails to receive a timely request for review under Subsection
251 (6)(b), the determination and order become the final order of the commission.
252 (8) If the division determines that there is reasonable cause to support the allegations in
253 the complaint, all of the following apply:
254 (a) The division shall informally endeavor to eliminate or correct the discriminatory
255 housing practice through a conciliation conference between the parties, presided over by the
256 division. Nothing said or done in the course of the conciliation conference may be made public
257 or admitted as evidence in a subsequent proceeding under this chapter without the written consent
258 of the parties concerned.
259 (b) If the conciliation conference results in voluntary compliance with this chapter, a
260 conciliation agreement setting forth the resolution of the issues shall be executed by the parties and
261 approved by the division. The parties may enforce the conciliation agreement in an action filed
262 in a court of competent jurisdiction.
263 (c) If the division is unable to obtain a conciliation agreement, the director shall issue a
264 written determination and order to the complainant and respondent stating the findings of the
265 division that the allegations of the complaint are supported by reasonable cause and ordering any
266 appropriate relief under Section 57-21-11 .
267 Section 7. Section 57-21-10 is amended to read:
268 57-21-10. Judicial election or formal adjudicative hearing.
269 (1) If the director's determination and order finds that there is reasonable cause to believe
270 that a discriminatory housing practice has occurred, or is about to occur, the complainant,
271 respondent, or an aggrieved person on whose behalf a complaint has been filed may elect to have
272 the findings of the division asserted in either a formal adjudicative hearing or in a civil action.
273 (2) The election shall be submitted in writing to the director of the Division of
274 Adjudication within 20 days from the date of issuance of the director's determination and order.
275 If the director fails to receive a timely election, [the director's determination and order become the

276 final order of the commission] the matter shall be forwarded to the attorney general's office for a
277 determination whether the matter should be adjudicated in a civil action in the district court.
278 (3) If the complainant, respondent, or an aggrieved person elects to have the claims
279 asserted in a formal adjudicative hearing or in a civil action, the Division of Adjudication shall
280 give written notice to the complainant and respondent of that election.
281 (4) If an election is made, the director of the Division of Adjudication or the director's
282 designee and the attorney general shall determine whether the allegations of the complaint are
283 supported by substantial evidence.
284 (5) If the director of the Division of Adjudication or the director's designee [determines]
285 and the attorney general determine that the allegations of the complaint are supported by
286 substantial evidence, the director shall, pursuant to the election, refer the matter to the presiding
287 officer to set a formal adjudicative hearing or commence a civil action in an appropriate district
288 court within 30 days from the date the election is made. The Division of Adjudication shall
289 provide legal representation on behalf of the aggrieved person.
290 (6) If the director of the Division of Adjudication or the director's designee determines that
291 the allegations of the complaint are not supported by substantial evidence, the division shall
292 discontinue its involvement in the matter, and the complainant may commence a private civil
293 action under Subsection 57-21-12 (1).
294 (7) Upon timely application, an aggrieved person may intervene with respect to the issues
295 to be determined in a formal adjudicative hearing or in a civil action brought under this section.
296 (8) If a formal adjudicative hearing is elected, all of the following apply:
297 (a) The presiding officer shall commence the formal adjudicative hearing within 120 days
298 after the complainant, respondent, or aggrieved person makes the election, unless it is
299 impracticable to do so.
300 (b) The investigator who investigated the matter may not participate in the formal
301 adjudicative hearing, except as a witness, nor may the investigator participate in the deliberations
302 of the presiding officer.
303 (c) Any party to the complaint may file a written request to the Division of Adjudication
304 for review of the presiding officer's order in accordance with Section 63-46b-12 and Title 34A,
305 Chapter 1, Part 3, Adjudicative Proceedings.
306 (d) A final order of the commission under this section is subject to judicial review as

307 provided in Section 63-46b-16 and Title 34A, Chapter 1, Part 3, Adjudicative Proceedings.
308 (9) If a civil action is elected, the commission is barred from continuing or commencing
309 any adjudicative proceeding in connection with the same claims under this chapter.
310 (10) The commission shall make final administrative disposition of the complaint alleging
311 a discriminatory housing practice within one year after the filing of the complaint[, unless it is
312 impracticable to do so. If the commission is unable to make final administrative disposition within
313 one year, the commission shall notify the complainant, respondent, and any other interested party
314 in writing of the reasons for the delay].
315 Section 8. Section 57-21-11 is amended to read:
316 57-21-11. Relief granted -- Civil penalties -- Enforcement of final order.
317 (1) Under Sections 57-21-9 and 57-21-10 , if the director, presiding officer, commissioner,
318 Appeals Board, or court finds reasonable cause to believe that a discriminatory housing practice
319 has occurred [or is about to occur], the director, presiding officer, commissioner, Appeals Board,
320 or court may order, as considered appropriate:
321 (a) the respondent to cease any discriminatory housing practice;
322 (b) actual damages, reasonable attorneys' fees and costs to the aggrieved person; and
323 (c) any permanent or temporary injunction, temporary restraining order, or other
324 appropriate order.
325 (2) In addition to the relief granted to an aggrieved person under Subsection (1), in order
326 to vindicate the public interest, the director, presiding officer, or court may also assess civil
327 penalties for intentional violations of this chapter against the respondent in an amount not
328 exceeding:
329 (a) $10,000 if the respondent has not been adjudged in a final order of a formal
330 administrative hearing or a judgement in district court to have committed any prior discriminatory
331 housing practice;
332 (b) $25,000 if the respondent has been adjudged in a separate action concluding in a final
333 order of a formal administrative hearing or a judgement in district court to have committed one
334 other discriminatory housing practice during the previous five-year period ending on the date of
335 the filing of the complaint; or
336 (c) $50,000 if the respondent has been adjudged in two other separate actions concluding
337 in final orders of a formal administrative hearing or judgements in district court to have committed

338 two or more discriminatory housing practices during the [seven-year] previous five-year period
339 ending on the date of the filing of this complaint.
340 (3) The time periods in Subsections (2)(b) and (c) may be disregarded if the acts
341 constituting the discriminatory housing practice are committed by the same natural person who has
342 previously been adjudged to have committed a discriminatory housing practice.
343 [(4) The division may file a petition in a district court of competent jurisdiction for:]
344 [(a) the enforcement of a final department order; and]
345 [(b) for any appropriate temporary relief or restraining order necessary for the enforcement
346 of a final commission order.]
347 Section 9. Section 57-21-12 is amended to read:
348 57-21-12. Other rights of action.
349 (1) In addition to the procedure outlined in Subsection 57-21-9 (1), a person aggrieved by
350 a discriminatory housing practice may commence a private civil action in a court of competent
351 jurisdiction within two years after an alleged discriminatory housing practice occurred, within two
352 years after the termination of an alleged discriminatory housing practice, or within two years after
353 a breach of a conciliation agreement. [The division shall inform the aggrieved person in writing
354 about this option within 30 days after the aggrieved person files a complaint under Section
355 57-21-9 .]
356 (2) (a) Except as provided in Subsection (2)(b), the computation of this two-year time
357 period does not include any time during which an administrative proceeding under this chapter was
358 pending with respect to a complaint filed under this chapter.
359 (b) The tolling of the two-year time period does not apply to actions arising from a breach
360 of a conciliation agreement.
361 (3) An aggrieved person may commence a private civil action even though a complaint
362 has been filed with the division, in which case the division is barred from continuing or
363 commencing any adjudicative proceeding in connection with the same claims under this chapter
364 after:
365 (a) the beginning of a civil action brought by a complainant or aggrieved person; or
366 (b) the parties have reached an agreement in settlement of claims arising from the
367 complaint.
368 (4) An aggrieved person may not file a private civil action under this section if:

369 (a) the division has obtained a conciliation agreement, except for the purpose of enforcing
370 the terms of the conciliation agreement; or
371 (b) the division has commenced a formal adjudicative hearing under Section 57-21-10
372 regarding the same complaint.
373 [(5) Upon written application by a person alleging a discriminatory housing practice
374 prohibited under this chapter in a private civil action, or by a person against whom the violations
375 are alleged, the court may:]
376 [(a) appoint an attorney for the applicant; and]
377 [(b) authorize the commencement or continuation of a private civil action without the
378 payment of fees, costs, or security if, in the opinion of the court, the applicant is financially unable
379 to bear the costs of the civil action.]
380 [(6) Upon timely application, the division may intervene in a private civil action brought
381 under this subsection if the division certifies that the case is of general importance.]
382 [(7)] (5) In a private civil action, if the court finds that a discriminatory housing practice
383 has occurred [or is about to occur], the court may:
384 (a) order the respondent to cease any discriminatory housing practice;
385 (b) award to the plaintiff actual damages[, punitive damages] and reasonable attorneys' fees
386 and costs; and
387 (c) grant, as the court considers appropriate, any permanent or temporary injunction,
388 temporary restraining order, or other order as may be appropriate, including civil penalties under
389 Section 57-21-11 .
390 [(8)] (6) This chapter does not preclude any private right of action by an aggrieved person
391 based on otherwise applicable law not included in this chapter.




Legislative Review Note
as of 2-4-99 12:52 PM

A limited legal review of this legislation raises no obvious constitutional or statutory concerns.

Office of Legislative Research and General Counsel