§5-11A-13. Election of remedies; administrative hearings and discovery; exclusivity of remedies; final orders; review by commission; judicial review; remedies; attorney fees


Published: 2015

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WEST VIRGINIA CODE











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WVC 5-11A-13

§5-11A-13. Election of remedies; administrative hearings and

discovery; exclusivity of remedies; final orders;

review by commission; judicial review; remedies;

attorney fees.

(a) When a charge is filed under section eleven of this

article, a complainant, a respondent or an aggrieved person on

whose behalf the complaint was filed, may elect to have the claims

asserted in that charge decided in a civil action under subsection

(o) of this section in lieu of a hearing under subsection (b) of

this section. The election must be made not later than twenty days

after the receipt by the electing person of service under section

eleven of this article or, in the case of the commission, not later

than twenty days after such service. The person making such

election shall give notice of doing so to the commission and to all

other complainants and respondents to whom the charge relates.

(b) If an election is not made under subsection (a) of this

section with respect to a charge filed under section eleven of this

article, the commission shall provide an opportunity for a hearing

on the record with respect to a charge issued under said section.

The commission shall delegate the conduct of a hearing under this

section to an administrative law judge who shall be a licensed

attorney. The administrative law judge shall conduct the hearing

at a place in the county in which the discriminatory housing

practice is alleged to have occurred or is about to occur.

(c) At a hearing under this section, each party may appear in person, be represented by counsel, present evidence, cross-examine

witnesses and obtain the issuance of subpoenas under section twelve

of this article. Any aggrieved person may intervene as a party in

the proceeding. The rules of evidence apply to the presentation of

evidence in such hearing as they would in a civil action in the

circuit courts of this state. The case in support of the complaint

shall be presented before the administrative law judge by the

attorney general.

(d) (1) Discovery in administrative proceedings under this

section shall be conducted as expeditiously and inexpensively as

possible, consistent with the need of all parties to obtain

relevant evidence.

(2) A hearing under this section shall be conducted as

expeditiously and inexpensively as possible, consistent with the

needs and rights of the parties to obtain a fair hearing and a

complete record.

(3) The commission shall, not later than one hundred eighty

days after the date of enactment of this subsection, issue rules to

implement this subsection.

(e) Any resolution of a charge before a final order under this

section shall require the consent of the aggrieved person on whose

behalf the charge is issued.

(f) An administrative law judge may not continue

administrative proceedings under this section regarding any alleged

discriminatory housing practice after the beginning of the trial of a civil action commenced by the aggrieved party under an act of

Congress or a state law seeking relief with respect to that

discriminatory housing practice.

(g) (1) The administrative law judge shall commence the

hearing under this section no later than one hundred twenty days

following the issuance of the charge, unless it is impracticable to

do so. If the administrative law judge is unable to commence the

hearing within one hundred twenty days after the issuance of the

charge, the administrative law judge shall notify the commission,

the aggrieved person on whose behalf the charge was filed and the

respondent in writing of the reasons for not doing so.

(2) The administrative law judge shall make findings of fact

and conclusions of law within sixty days after the end of the

hearing under this section, unless it is impracticable to do so.

If the administrative law judge is unable to make findings of fact

and conclusions of law within such period, or any succeeding

sixty-day period thereafter, the administrative law judge shall

notify the commission, the aggrieved person on whose behalf the

charge was filed and the respondent in writing of the reasons for

not doing so.

(3) If the administrative law judge finds that a respondent

has engaged or is about to engage in a discriminatory housing

practice, such administrative law judge shall promptly issue an

order for such relief as may be appropriate, which may include

actual damages suffered by the aggrieved person and injunctive or other equitable relief. Such order may, to vindicate the public

interest, assess a civil penalty against the respondent: (A) In an

amount not exceeding ten thousand dollars if the respondent has not

been adjudged to have committed any prior discriminatory housing

practice; (B) in an amount not exceeding twenty-five thousand

dollars if the respondent has been adjudged to have committed one

other discriminatory housing practice during the five-year period

ending on the date of the filing of this charge; and (C) in an

amount not exceeding fifty thousand dollars if the respondent has

been adjudged to have committed two or more discriminatory housing

practices during the seven-year period ending on the date of the

filing of this charge; except that if the acts constituting the

discriminatory housing practice that are the object of the charge

are committed by the same natural person who has been previously

adjudged to have committed acts constituting a discriminatory

housing practice, then the civil penalties set forth in

subparagraphs (B) and (C) may be imposed without regard to the

period of time within which any subsequent discriminatory housing

practice occurred.

(4) No such order shall affect any contract, sale, encumbrance

or lease consummated before the issuance of such order and

involving a bona fide purchaser, encumbrancer or tenant without

actual notice of the charge filed under this article.

(5) In the case of an order with respect to a discriminatory

housing practice that occurred in the course of a business subject to licensing or regulation by a governmental agency, the commission

shall, not later than thirty days after the date of the issuance of

such order or, if such order is judicially reviewed, thirty days

after such order is in substance affirmed upon such review: (A)

Send copies of the findings of fact, conclusions of law and the

order to that governmental agency; and (B) recommend to that

governmental agency appropriate disciplinary action, including,

where appropriate, the suspension or revocation of the license of

the respondent.

(6) In the case of an order against a respondent against whom

another order was issued within the preceding five years under this

section, the commission shall send a copy of each such order to the

attorney general.

(7) If the administrative law judge finds that the respondent

has not engaged or is not about to engage in a discriminatory

housing practice, as the case may be, such administrative law judge

shall enter an order dismissing the charge. The commission shall

make public disclosure of each such dismissal.

(h) (1) The commission may review any finding, conclusion or

order issued under subsection (g) of this section. Such review

shall be completed not later than thirty days after the finding,

conclusion or order is so issued; otherwise the finding, conclusion

or order becomes final.

(2) The commission shall cause the findings of fact and

conclusions of law made with respect to any final order for relief under this section, together with a copy of such order, to be

served on each aggrieved person and each respondent in the

proceeding.

(i) (1) Any party aggrieved by a final order for relief under

this section granting or denying, in whole or in part, the relief

sought may obtain a review of such order under section four,

article five, chapter twenty-nine-a of this code.

(2) Notwithstanding chapter twenty-nine-a of this code, venue

of the proceeding shall be in the judicial circuit in which the

discriminatory housing practice is alleged to have occurred and

filing of the petition for review shall be not later than thirty

days after the order is entered.

(j) (1) The commission may petition the circuit court in the

circuit in which the discriminatory housing practice is alleged to

have occurred or in which any respondent resides or transacts

business for the enforcement of the order of the administrative law

judge and for appropriate temporary relief or injunctive relief by

filing in such court a written petition praying that such order be

enforced and for appropriate temporary relief or injunctive relief.

(2) The commission shall file in court with the petition the

record in the proceeding. A copy of such petition shall be

forthwith transmitted by the clerk of the court to the parties to

the proceeding before the administrative law judge.

(k) (1) Upon the filing of a petition under subsection (i) or

(j) of this section, the court may:

(A) Grant to the petitioner, or any other party, such

temporary relief, injunction or other order as the court deems just

and proper;

(B) Affirm the order or decision of the administrative law

judge or remand the case for further proceedings. It shall

reverse, vacate or modify the order or decision of the

administrative law judge if the substantial rights of the parties

have been prejudiced because the administrative findings,

inferences, conclusions, decision or order are: (i) In violation

of constitutional or statutory provisions; or (ii) in excess of the

statutory authority or jurisdiction of the commission; or (iii)

made upon unlawful procedures; or (iv) affected by other error of

law; or (v) clearly wrong in view of the reliable, probative and

substantial evidence on the whole record; or (vi) arbitrary or

capricious or characterized by abuse of discretion or clearly

unwarranted exercise of discretion; and

(C) Enforce such order to the extent that such order is

affirmed or modified.

(2) Any party to the proceeding before the administrative law

judge may intervene in the circuit court.

(3) No objection not made before the administrative law judge

shall be considered by the court, unless the failure or neglect to

urge such objection is excused because of extraordinary

circumstances.

(4) The judgment of the circuit court shall be final unless reversed, vacated or modified on appeal to the supreme court of

appeals of this state in accordance with the provisions of section

one, article six, chapter twenty-nine-a of this code.

(l) If no petition for review is filed under subsection (i) of

this section before the expiration of forty-five days after the

date the administrative law judge's order is entered, the

administrative law judge's findings of fact and order shall be

conclusive in connection with any petition for enforcement: (1)

Which is filed by the commission under subsection (j) of this

section after the end of such day; or (2) under subsection (m) of

this section.

(m) If before the expiration of sixty days after the date the

administrative law judge's order is entered, no petition for review

has been filed under subsection (i) of this section, and the

commission has not sought enforcement of the order under subsection

(j) of this section, any person entitled to relief under the order

may petition for a decree enforcing the order in the circuit court

for the circuit in which the discriminatory housing practice is

alleged to have occurred.

(n) The judge of the circuit court in which a petition for

enforcement is filed under subsection (l) or (m) of this section

shall forthwith enter a decree enforcing the order and shall

transmit a copy of such decree to the commission, the respondent

named in the petition and to any other parties to the proceeding

before the administrative law judge. The judgment of the circuit court shall be final unless reversed, vacated or modified on appeal

to the supreme court of appeals pursuant to section one, article

six, chapter twenty-nine-a of this code.

(o) (1) If an election is made under subsection (a) of this

section, the commission shall authorize, and not later than thirty

days after the election is made the attorney general shall commence

and maintain, a civil action on behalf of the aggrieved person in

the appropriate circuit court seeking relief under this subsection.

Venue for such civil action shall be in the circuit court in the

county in which the alleged discriminatory housing practice

occurred.

(2) Any aggrieved person with respect to the issues to be

determined in a civil action under this subsection may intervene as

of right in that civil action.

(3) In a civil action under this subsection, if the court

finds that a discriminatory housing practice has occurred or is

about to occur, the court may grant as relief any relief which a

court could grant with respect to such discriminatory housing

practice in a civil action under section fourteen of this article.

Any relief so granted that would accrue to an aggrieved person in

a civil action commenced by that aggrieved person under said

section shall also accrue to that aggrieved person in a civil

action under this subsection. If monetary relief is sought for the

benefit of an aggrieved person who does not intervene in the civil

action, the court shall not award such relief if that aggrieved person has not complied with discovery orders entered by the court.

(p) In any administrative proceeding brought under this

section, or any court proceeding arising therefrom, or any civil

action under section fourteen of this article, the administrative

law judge or the court, as the case may be, in its discretion, may

allow a prevailing complainant a reasonable attorney's fee and

costs.





Note: WV Code updated with legislation passed through the 2015 Regular Session

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