ORDER
1501 Equal Accommodations Regulations of the State Human Relations Commission
A public hearing was held on August 14, 2003 for comment on changes to Rules 10 and 27 of the Equal Accommodations Rules and Regulations of the Human Relations Commission. No verbal comment was received. The written comment is summarized below.
SUMMARY OF THE EVIDENCE AND INFORMATION
Rita Landgraf, Chairperson, State Council for Persons with Disabilities, submitted a memorandum dated July 28, 2003. She recommended that the Commission retain the original language in Rule 10A & B since it is similar to the court rules regarding dismissal. She also suggested language that would give a Panel discretion to entertain argument when considering a application for dismissal. In addition, Ms. Landgraf recommended that there be a provision for advance notice before a case is dismissed for lack of activity or cooperation.
With regard to the proposed change to Rule 27, Ms. Landgraf suggested that the five days to file a application for reconsideration of an order should run from the date of receipt by the party and not from the date of mailing. In the alternative, the period could be expanded to 10 instead of 5 days.
FINDINGS OF FACT BASED ON THE INFORMATION RECEIVED
1. The Commission agrees that language similar to the court rules related to dismissal is desirable for clarity and consistency. The proposed changes to Rule 10A and B are withdrawn.
The suggestion to include the words “without prejudice” in Rule 10A will clarify the ability of a Complainant to re-file after voluntary dismissal.
2. Notice is currently given before a case is closed for lack of cooperation or activity. However, it is desirable to include that requirement in the Rule.
3. Since a Panel may want to consider oral argument in dismissal proceedings, the suggested language -“Unless directed by the Panel based on compelling or unusual circumstances...” - should be included to preserve the discretion of the Panel.
4. A motion for reconsideration should be timely if filed within 5 days of receipt instead of mailing.
DECISION AND EFFECTIVE DATE
The Commission is withdrawing or modifying the previously published changes to Public Accommodations Rules 10 and 27 after considering the public comment. Because the changes included in the Revised Text are procedural and non-substantive, republication is not required. Rules 10 and 27 as modified and set forth above are hereby adopted effective 10 days following publication in the Register of Regulations.
SO ORDERED THIS 13th day of November, 2003.
HUMAN RELATIONS COMMISSION
Calvin H. Christopher, Chairperson
Dawn Brown Chok-Fun C. Chui
Wallace R. Dixon Bernice M. Edwards
Ralph A. Figueroa Katherine V. Cropper
James E. Gray Shirley Horowitz
Eleanor M. Kiesel Mookkan Periyasamy
1501 Equal Accommodations Regulations Of The State Human Relations Commission
Introduction
These Rules and Regulations have been prepared pursuant to the powers granted the Human Relations Commission and are intended to meet the applicable requirements of the Administrative Procedures Act.
These Regulations shall govern individual cases over which the Human Relations Commission and the Division of Human Relations have jurisdiction pursuant to Chapter 45, Title 6 of the Delaware Code, as it may be amended from time to time.
These Regulations refer to "hearings" for case decisions only and are, therefore, to be distinguished from any other public hearings which may be held by the Commission to address general issues of public concern and which are not controlled by these Regulations.
These Rules and Regulations are specific to the processing of complaints of discrimination under the Delaware Equal Accommodations Law. The Commission believes these Rules and Regulations are necessary to ensure the appropriate administration of the Equal Accommodations Law.
These Regulations shall apply to Equal Accommodation causes of action arising under the Delaware Equal Accommodations Law on or after July 1, 1996. Delaware Fair Housing Act actions under Chapter 46, Title 6 of the Delaware Code are not affected by these Regulations.
1.0 Definitions (Formerly Part I)
1.1 The following terms used in these Regulations shall have the same definitions as those terms contained in the Equal Accommodations Law, Chapter 45, Title 6, Section 4502 of the Delaware Code:
A "place of public accommodation"
"Chairperson"
"Commission"
"Complainant"
"Conciliation"
"Conciliation Agreement"
"Discriminatory public accommodation practice"
"Handicap"
"Marital Status"
"Panel"
"Panel Chair"
"Respondent"
"Special Administration Fund"
1.2 As used in these Regulations, the following terms are defined:
Commissioner: A person duly serving as a member of the Commission.
Director: The administrator and head of the Division of Human Relations, or other person duly authorized to act as such.
Office: Any one of the places of business of the Division of Human Relations.
Party or Parties: The Complainant(s) or Respondent(s).
Staff: A person who is employed by the Division of Human Relations of the State of Delaware.
2.0 Commencement of Proceedings (Formerly Rules 3,4,5,6,7)
2.1 (Formerly Rule 1) Any person claiming to be aggrieved by discriminatory public accommodations practices within the jurisdiction of the Commission may file a written complaint with the Commission. Minors shall be represented by a parent, guardian or other responsible adult for the purpose of bringing an action.
2.2 (Formerly Rule 2) The Commission may initiate an investigation into compliance with the Equal Accommodations Law, whether or not a complaint is filed. Such investigations may be initiated by written statement showing justification signed by the Chairperson or by such person as may be authorized by the Commission. In accordance with applicable provisions of the law, and to the extent practicable, the procedures in these Regulations shall apply to Commission-initiated investigations.
2.3 A complaint shall be filed at any one of the places of business of the Division of Human Relations.(Formerly Rule 3)
2.4 (Formerly Rule 4) Complaints made with the Commission through the Division of Human Relations shall be in writing and deemed to be "filed" when received at the Division in substantially completed form.
2.5 (Formerly Rule 5) All complaints must be filed on a complaint form provided by the Office.
2.6 All complaint forms shall include the following information:
2.6.1 the complainant's name and address;
2.6.2 the name and location of the place of public accommodation at which the discriminatory public accommodation practice(s) occurred, and the date, time and other details; and
2.6.3 if known, the name and address of each Respondent and, if different, the name of the owner, lessee, proprietor, manager or superintendent of the place of public accommodations.
2.6.4 The date of the first occurrence of the alleged discriminatory practice and whether the practice is of a continuing nature.
2.6.5 The signature of the complainant or his/her attorney.
2.7 (Formerly Rule 6) Complainants and Respondents must keep the Division of Human Relations informed of their current addresses and telephone numbers during the pendency of any proceedings.
2.8 (Formerly Rule 7) Service of the complaint shall be made by the Division of Human Relations in accordance with 12.2 (Formerly Rule 30) of these regulations.
3.0 Response to Complaint (Formerly Rule 8)
3.1 Respondent shall file a written response to the complaint, on a form provided by the Division of Human Relations, or a notice of intention to pursue no-fault settlement, within twenty (20) days of receipt of service of the complaint.
3.2 Either of such documents shall be signed by the Respondent or Respondent's attorney and shall be filed at the Office of the Division where the complaint was filed, showing a copy has been served on the Complainant.
4.0 Amending a Complaint (Formerly Rule 9)
4.1 The Complainant(s) may amend a complaint at any time prior to service of the response on the Complainant(s); thereafter, amendment is subject to approval by the Panel Chair or the Chairperson of the Commission.
4.2 Respondent shall serve an answer to any amended complaint within ten (10) days of receipt of service of the amended complaint, whichever is greater, or within the time remaining to respond to the initial complaint.
4.3 Amended complaints and the answers shall be signed by the Party(s) or their attorneys.
5.0 Case Closing Prior to Hearing (Formerly Rule 10)
5.1 Voluntary Termination
5.1.1 [A case may be dismissed by the Complainant without order of the Commission by filing a notice of dismissal at any time before service of a response to the complaint or by filing a stipulation of dismissal signed by all parties who have appeared in the case. Unless otherwise stated in the notice of dismissal or stipulation, the dismissal is without prejudice, except that a notice of dismissal operates as an adjudication upon the merits when filed by a Complainant who has once dismissed a case before the Commission based on or including the same claim. A Complainant who dismisses a case pursuant to this paragraph may refile a complaint within ninety (90) days after the occurrence of the alleged discriminatory public accommodation practice. A case shall be considered to have been closed or voluntarily terminated upon withdrawal of complaint by Complainant with or without prejudice prior to answer by the Respondent. Such withdrawal shall be in writing. However, after answer by Respondent, a complaint may be withdrawn with or without prejudice only with the consent of the Respondent or with approval by the Chairperson or designee to preserve the public interest.]
A case may be dismissed by the Complainant without order of the Commission by filing a notice of dismissal at any time before service of a response to the complaint or by filing a stipulation of dismissal signed by all parties who have appeared in the case. Unless otherwise stated in the notice of dismissal or stipulation, the dismissal is without prejudice, except that a notice of dismissal operates as an adjudication upon the merits when filed by a Complainant who has once dismissed a case before the Commission based on or including the same claim. A Complainant who dismisses a case pursuant to this paragraph [without predjudice] may refile a complaint within ninety (90) days after the occurrence of the alleged discriminatory public accommodation practice.
5.1.2 After a Respondent has filed a response to the complaint, a case shall not be dismissed at the Complainant's request except upon order of the Commission and upon such terms and conditions as the Commission deems proper. Unless otherwise specified in the order, a dismissal under this paragraph is without prejudice.
5.1.3 [After a Respondent has filed a response to the complaint, a case shall not be dismissed at the Complainant’s request except upon order of the Commission and upon such terms and conditions as the Commission deems proper. Unless otherwise specified in the order, a dismissal under this paragraph is without prejudice. A case may be dismissed for lack of activity in the case for more than 1 year. Application shall be made in writing by the Division staff to a Panel or if no Panel has been appointed, then to the Division Director or Chairperson, stating the reason for the proposed closing.]
[A case may be dismissed, upon notice of the Commission, for lack of activity. Application shall be made in writing by the Division staff to a Panel of if no Panel has been appointed, then to the Division Director of Chairperson, stating the reason for the proposed dismissal.]
5.1.4 A case may be dismissed, [upon notice of the Commission] for failure of Complainant to cooperate upon application of the Division staff to the Panel or if no Panel has been appointed, then to the Division Director or Chairperson. Failure to cooperate includes, but is not limited to, failure to keep the Division informed of Complainant’s current address.
5.1.5 A case may be dismissed upon written application to the Panel by the Respondent or the Division Director when
5.1.5.1 the Commission does not have jurisdiction to determine the case; or
5.1.5.2 the facts alleged do not state a violation of the law.
5.1.6 An application for dismissal by the Respondent shall show proof of service of the application upon the Complainant. Complainant shall have 10 days after being served to respond to the Respondent and Commission. An application for dismissal by the Division shall show proof of service on all parties and all parties shall have 10 days after being served to respond to the Commission.
5.1.7 A Panel will convene to consider the application for dismissal. [Unless directed by the Panel based on compelling or unusual circumstances, such consideration shall be] without an evidentiary hearing or oral argument. The Panel will consider only the facts in the pleadings. The facts alleged by the claimant will be considered as true for the purpose of the dismissal proceeding.
5.1.8 All notices of case dismissals shall be served on all parties and shall include a statement of the right to appeal, to have the case reopened for good cause shown to the Panel, or if no Panel has been appointed, then to the Division Director or Chairperson.
6.0 Investigation (Formerly Rule 11)
Investigation of the complaint shall be conducted by Staff and shall commence promptly after the filing of the complaint. Investigation may include, without limitation: interviews, questionnaires, fact finding conferences, searching of records, testing, identification of any witnesses, development of statistics, other studies of practices and patterns, or other work to gather relevant evidence.
7.0 Conciliation (Formerly Rules 12, 13 & 14)
7.1 The opportunity to conciliate or settle a case is available at any stage of the complaint process and may include a no-fault settlement offer. The Complainant(s) shall be notified of the opportunity to conciliate when a complaint is filed, and the Respondent(s) shall be so notified when a complaint is served. Staff shall schedule an informal conciliation conference to be held with the Complainant(s), the Respondent(s) and, if they so choose, attorneys representing them, within thirty (30) days after the receipt of the response to the complaint, unless it is impractical to do so.
7.2 (Formerly Rule 13) Conciliation shall be initiated upon request of any Party, or upon the request or recommendation of Staff or a member of the Commission.
7.3 (Formerly Rule 14) Any agreement achieved by conciliation shall be set forth in writing and shall specify the appropriate relief agreed upon by the Parties. Forms of relief may include, without limitation:
7.3.1 binding arbitration to resolve the dispute;
7.3.2 payment of damages; other monetary relief;
7.3.3 payment to the Special Administration Fund; monitoring of the future activities of Respondent(s);
7.3.4 measures taken to ensure future compliance with the Equal Accommodations Law; and/or such other relief as is agreed upon by the Parties.
7.4 Executed copies of such agreements shall be given to all Parties.
8.0 Hearings (Formerly Rules 15, 16, 17, 18, 19, 20, 21, 22 & 23)
8.1 The purpose of a hearing is:
8.1.1 to hear argument;
8.1.2 where appropriate, to receive evidence and determine facts; and
8.1.3 in all events to render an adjudication in accordance with applicable law.
8.2 If a complaint cannot be resolved through conciliation, as provided in Section 4508(c) of the Delaware Equal Accommodations Law, the Commission shall appoint a Panel to hold a public hearing within 60 days after the expiration of the 120-day period for investigation and conciliation. The deadlines provided in Section 4508(c) and Section 4508(e) may be extended by the Chairperson or the Panel Chair at the request of any Party or Staff upon a showing of good cause.
8.3 The date, time, place and a brief description of the subject matter of the hearing shall be included in the Notice of Hearing sent to all Parties, the Panel and the Attorney General's representative, as well as other information required by the Administrative Procedures Act.
8.4 The Hearing shall be held within the county in which the discriminatory practice is alleged to have occurred.
8.5 A subpoena shall be issued upon written request by any Party, Staff, or a Panel Member. Such requests shall be submitted no later than ten (10) days in advance of the Hearing. Witnesses and documents must be clearly described in writing. The consequence of failure to request a subpoena in a timely fashion shall be in the discretion of the Panel.
8.6 Subpoenas may be served by Staff, a Commissioner, or by another person who is not a Party and is not less than 18 years of age. The return of service of each subpoena shall be promptly filed at the appropriate Division office.
8.7 No fewer than the majority of the Commissioners appointed to a Panel shall constitute a quorum for all Panel hearings. In the absence of any duly appointed Panel Member, for any reason whatsoever, the Chairperson or designee shall be empowered to make a substitution, without notice to the Parties, provided the Hearing has not yet begun.
8.8 A written list of witnesses a Party intends to call during a panel hearing must be delivered to the office of the Division of Human Relations where the complaint was filed and to all other Parties at least ten (10) days prior to a hearing.
8.8.1 The Panel, in its discretion, may refuse to receive into evidence any testimony of a witness who has not been named on the witness list.
8.9 Copies or photographs of all exhibits, except exhibits intended solely for impeachment, must be delivered to the office of the Division of Human Relations where the complaint was filed and to all other parties at least ten (10) business days prior to the Hearing. The Panel shall consider such exhibits without formal proof unless the parties and the Commission have been notified at least five (5) business days prior to the Hearing that an adverse Party intends to raise an issue concerning the authenticity of the exhibit.
8.9.1 The Panel may refuse to receive into evidence any exhibit, a copy or photographs of which has not been delivered to the Commission and to an adverse Party as provided herein.
8.9.2 Exhibits submitted at Panel Hearings are to be kept by the Commission during the passage of time for judicial review under §4511 of the Delaware Equal Accommodations Law or until all relevant proceedings have been concluded, whichever is later. The exhibits shall then be returned to the Party which submitted such or, at the request of that Party, destroyed.
8.10 Hearings shall be recorded by electronic instrument or court reporter.
8.11 Certain Hearings may address purely legal issues, in which event all Parties or their counsel may, at the discretion of the Panel, have an opportunity to present oral argument.
8.12 In evidentiary hearings, all Parties or their counsel shall be given the opportunity to make a brief opening statement prior to the introduction of any evidence in the case.
8.13 Testimony shall be under oath or affirmation administered by the Panel Chair.
8.14 Staff shall be required to attend the Hearing in order to assist in the proceedings, or, where appropriate, to be a witness.
8.15 The Panel Chair shall have full authority to control the hearing proceedings, including, but not limited to the authority to call and examine witnesses; to admit or exclude evidence; and to rule upon all motions and objections subject to the following:
8.15.1 Formal rules of evidence need not be strictly followed.
8.15.2 Direct and cross examination shall be preserved and may be conducted by the Parties or their attorney(s), or Panel Members or the Deputy Attorney General representing the panel may question any witness.
8.15.3 Testimony from any person may be allowed at the discretion of the Panel.
8.15.4 Witnesses may be sequestered at the discretion of the Panel Chair upon the request of any Party(ies).
8.15.5 Evidence on the behalf of the Complainant(s) should ordinarily be introduced first, to be followed by the Respondent(s)' evidence, then allowing rebuttal, if any.
8.15.6 The Panel may continue a hearing from day to day or adjourn it to a later date or to a different place by so announcing at the Hearing or by appropriate notice to all Parties.
8.15.7 Following the presentation of the evidence, an opportunity shall be given to each Party to make a closing statement.
8.15.8 The Panel may recall the Parties for further testimony if necessary to reach a decision.
8.16 A written transcript shall be prepared, if and as required, on the written request of any Party, provided that such Party pays for the cost of preparing the transcript. Staff shall coordinate this process under State contract. A deposit may be required. Such recordings and transcripts shall be preserved with the official file record of a case.
9.0 Decision and Orders (Formerly Rules 25, 26, & 27)
9.1 The case decision may be rendered immediately following the Hearing or the Panel may reserve its decision to a later date. Case decisions shall be by a majority vote of the Panel.
9.2 A copy of the Panel's Final Order shall be mailed by certified mail, return receipt requested, delivered by hand or delivered by regular first class mail to the last address which each Party has provided to the Division of Human Relations for the Party or, if the Party is represented, the Party's attorney.
9.3 Any Party, within five(5) business days after receipt of the Final Order, may apply to the Panel for reconsideration, briefly and distinctly stating the grounds therefor. Within five (5) business days after service of such a motion, an opposing Party may serve and file a brief answer to each ground asserted in the motion. Any motion or answer filed under this Rule shall be submitted with five (5) copies to the office of the Division of Human Relations where the complaint was filed. The Panel shall promptly convene to consider a motion for reconsideration. The filing of such a motion shall not extend the time for judicial review as set forth in 6 Delaware Code, Section 4511. A copy of the Panel’s decision on the motion for reconsideration shall be mailed by certified mail, return receipt requested, delivered by hand, or delivered by regular first class mail to the last address which each Party has provided to the Division of Human Relations for the Party or if the Party is represent to the Party’s attorney.
Any party within five (5) business days after [mailing receipt] of the Final order may apply to the Panel for reconsideration by briefly and distinctly stating the grounds. The application shall show that it was served on the opposing party. Within five (5) business days after service of such application, the opposing party may serve and file a brief answer to each ground asserted. The Panel shall promptly convene to consider such application for reconsideration. The filing of such application shall extend the time for judicial review under 6 Del. C. §4511.
10.0 Recovery of Attorney’s Fees and Expenses (Formerly Rule 28)
10.1 Any Party seeking to recover attorneys' fees and expenses pursuant to Section 4508 (g) or (h) shall, at least five (5) business days prior to the hearing, file at the office of the Division of Human Relations where the complaint was filed, and serve upon the other Parties, a motion and affidavit detailing the time spent--and fees incurred and a reasonable estimate of the fees likely to be incurred after such date through the end of the Hearing. Any objections to the motion shall be presented at the Hearing.
11.0 Miscellaneous Provisions (Formerly Rules 29, 30, 31, 32, 33, & 34)
11.1 Time
11.1.1 In computing any period of time prescribed or allowed, by these Regulations or by order of court or by statute, the day of the act, event, or default after which the designated period of time begins to run shall not be included. The last day of the period so computed shall be included, unless it is a Saturday or Sunday, legal holiday, in which event the period shall run until the end of the next business day. When the period of time prescribed or allowed is less than eleven (11) days, intermediate Saturdays, Sundays, and other legal holidays shall be excluded in the computation. As used in this rule, "legal holidays" shall be those days provided by statute or appointed by the Governor or the Chief Justice of the Supreme Court of the State of Delaware.
11.1.2 When, by these Regulations or by a notice given thereunder or by order of court, an act is required, or allowed to be done, at or within a specified time, the Panel Chair or the Chairperson of the Commission, for good cause shown, may, at any time, in its discretion:
11.1.2.1 with or without motion or notice, order the period enlarged if the request therefore is made before the expiration of the period originally prescribed or as extended by a previous order; or
11.1.2.2 upon a motion made after the expiration of a specified period, permit the act to be done where the failure to act was the result of excusable neglect.
11.1.3 Whenever a Party has the right to do, or is required to do, some act or take some proceeding within a prescribed period after being served, and service is by mail, three (3) days shall be added to the prescribed period.
11.2 Service. Unless otherwise specifically required by the Equal Accommodations Law or these Regulations, service of complaints, answers, other pleadings, motions, requests or notices shall be made according to this Rule.
11.2.1 For the initial complaint and any pleading which brings in a new Party, service shall be made by certified mail, return receipt requested with the return receipt card signed by:
11.2.1.1 the person to be served;
11.2.1.2 a person living with or working in the office of the person to be served; or
11.2.1.3 an agent authorized by appointment or by law to receive service of process.
11.2.2 Alternatively, where appropriate, service may be made in accordance with Superior Court Civil Rule 4(f), or Superior Court Civil Rule 4(h) for service under Title 10, Section 3104.
11.2.3 For documents other than the initial complaint and any document which brings in a new Party, once jurisdiction over a party has been established, service shall be
11.2.3.1 by certified mail, return receipt requested;
11.2.3.2 by hand delivery or first class mail, as evidenced by a certificate of service;
11.2.3.3 by an express mail service, with a receipt showing that the notice was delivered to the express mail service; or
11.2.3.4 by telecopier or facsimile machine with confirmation of the transmission from the sender's machine.
11.2.4 Where a Party is represented by an attorney, service shall be made on the attorney only.
11.3 The Administrative Procedures Act (Chapter 101, Title 29), as it may be amended from time to time, shall provide the method by which these Regulations may be amended.
11.4 These Regulations shall be reviewed periodically by the Commission, or a designee and the Director of the Division of Human Relations. Any recommendations for revision shall be submitted in writing to the Commission for consideration at a regularly scheduled meeting.
11.5 These Regulations shall be liberally construed in such a manner as to accomplish the purpose of the Equal Accommodations Law.
11.6 Copies of these Regulations shall be available during regular office hours at each of the offices of the Division of Human Relations or, upon request, by mail. A fee established by the Division of Human Relations may be charged for the provision of copies.