SENATE BILL NO. 315
AS AMENDED BY SENATE AMENDMENT NO. 1
AN ACT TO AMEND CHAPTER 45, TITLE 6, DELAWARE CODE, RELATING TO EQUAL ACCOMMODATIONS; AND CHAPTER 30, TITLE 31, DELAWARE CODE, RELATING TO THE STATE HUMAN RELATIONS COMMISSION.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF DELAWARE:
Section 1. Chapter 45, Title 6, Delaware Code, is amended by striking it in its entirety and inserting in lieu thereof a new Chapter 45 to read as follows:
"CHAPTER 45 EQUAL ACCOMMODATIONS
4500 Short Title
4501 Purpose and Construction
4503 Persons Entitled to Protection
4504 Unlawful Practices
4505 Commission's Authority; Power to Delegate Authority
4506 Commission's Power to Adopt Rules
4507 Education and Conciliation
4508 Procedure on Complaint
4509 Commission's Power to Investigate Compliance
4510 Compelling Attendance of Witnesses and Production of Documents, Oaths,
4511 Judicial Review
4512 Enforcement by the Attorney General
§ 4500. Short Title
This chapter may be cited as the 'Delaware Equal Accommodations Law.' § 4501. Purpose_and Construction
This chapter is intended to prevent, in places of public accommodations, practices of discrimination against any person because of race, age, marital status, creed, color, sex, handicap or national origin. This chapter shall be liberally construed to the end that the rights herein provided for all people, without regard to race, age, marital status, creed, color, sex, handicap or national origin, may be effectively safeguarded.
§ 4502. Definitions.
As uscd in this chapter:
( I ) A 'place of public accommodation' means any establishment which caters
to or offers goods or services or facilities to, or solicits-patronage from, the general public. This definition shall apply to hotels and motels catering to the transient public, but it shall not apply to the sale or rental of houses,- housing units, apartments, rooming houses or other dwellings, nor to tourist homes with less than ten rental units catering to the transient public.
(2) 'Chairperson means the Chairperson of the State Human Relations Commission.
(3) 'Commission' means the State Human Relations Commission.
(4) 'Complainant' means the person who files a complaint under § 4508 of this chapter.
(5) 'Conciliation' means the attempted resolution of issues raised by a complaint, or by the investigation of such complaint, through informal negotiations.
(6) 'Conciliation agreement' means a written agreement setting forth the resolution of the issues in conciliation.
(7) 'Discriminatory public accommodations practice' means an act that is unlawful under this chapter.
(8) 'Handicap' means a physical or mental impairment which substantially limits a person's major life activities, or being regarded as having such an impairment, but such terms do not include current, illegal use of a controlled substance as defined in Section 102 of the Controlled Substance Act (21 U.S.C. 802) or Delaware Code Title 16, Chapter 47, Uniform Controlled Substance Act. Discrimination against a handicapped person includes discrimination against the use of a support animal because of a physical handicap of the user. Support animal means any animal individually trained to do work or perform tasks to meet the requirements of a physically disabled person, including, but not limited to, minimal protection work, rescue work, pulling a wheelchair or fetching dropped items.
(9) 'Marital status' means the legal relationship of parties as determined by the laws of marriage applicable to them or the absence of such a legal relationship.
(2) 'Panel' means a group of three (3) or more Commissioners appointed by the Chairperson to perform any task authorized by this chapter.
(3) 'Panel Chair' means that Commissioner serving on a Panel who is designated by the Chairperson to serve as the chairperson of the Panel.
(2) 'Respondent' means a person who is alleged to have committed a
discriminatory public accommodations practice.
(2) 'Special Administration Fund' mcans the fund created pursuant to 31 Del. C. §3005.
§ 4503. Persons Entitled to Protection
All persons within the jurisdiction of this State are entitled to the full and equal accommodations, facilities, advantages and privileges of any place of public accommodation regardless of the race, age, marital status, creed, color, sex, handicap or national origin of such persons.
§ 4504. Unlawful Practices.
(a) No person being the owner, lessee, proprietor, manager, superintendent, agent or employee of any place of public accommodation, shall directly or indirectly refuse, withhold from or deny to any person, on account of race, age, marital status, creed, color, sex, handicap or national origin, any of the accommodations, facilities, advantages, or privileges thereof. For the purpose of training support animals to be used by the handicapped, all trainers and their support animals shall be included within those covered by this subsection.
(b) No person, being the owner, lessee, proprietor, manager, superintendent, agent or employee of any place of public accommodation, shall directly or indirectly publish, issue, circulate, post or display any written, typewritten, mimeographed, printed or radio communications notice or advertisement to the effect that any of the accommodations, facilities, advantages and privileges of any place of public accommodation shall be refused, withheld from or denied to any person on account of race, age, marital status, creed, color, sex, handicap or national origin, or that the patronage or custom thereat of any person belonging to or purporting to be appearing to be of any particular race, age, marital status, creed, color, sex, handicap or national origin is unlawful, objectionable, or not acceptable, desired, accommodated or solicited, or that the patronage of persons of any particular race, age, marital status, creed, color, sex, handicap or national origin is preferred or is particularly welcomed, desired or solicited.
(c) It shall be unlawful to assist, induce, incite or coerce another person to commit any discriminatory public accommodations practice prohibited by subsection (a) or (b) of this section.
(a) The authority and responsibility for administering this chapter shall be vested in the State Human Relations Commission.
(b) The Commission may delegate to a Panel any of its functions, duties and powers
under this chapter including, but not limited to, the holding of public hearings and the ordering of relief pursuant to this chapter.
(c) The Commission may delegate to employees of the Division of Human Relations
any of its functions, duties and powers with respect to investigating, conciliating, reporting or otherwise acting as to any work, business or matter under this chapter but may not delegate to such employees any of its functions, duties and powers with respect to the holding of public hearings or the ordering of relief pursuant to this chapter.
§ 4506. Commission's Power to Adopt Rules.
The Commission shall have the power in accordance with the Administrative Procedures Act in Title 29 to adopt rules and regulations concerning the manner in which complaints shall be investigated or other investigations pursuant to this chapter shall be conducted, the manner in which public hearings shall be conducted, the general form and content of agreements and orders provided for in this chapter and such other rules as the Commission shall consider appropriate to assist it in performing its duties and in carrying out the purposes of this chapter. Such rules and regulations shall have the force and effect of law.
§ 4507. Education mid Conciliation
The Commission may commence such educational and conciliatory activities as, in its judgement, will further the purposes of this chapter. It may call conferences of persons in the business industry and other interested parties to acquaint them with the provisions of this chapter and its suggested means of implementing it and endeavor, with their advice, to work out programs of voluntary compliance and of enforcement. The Commission may consult with State and local officials and other interested parties to learn the extent, if any, to which discriminatory public accommodations practices exist in the State or locality, and whether and how State or local enforcement programs might be utilized to combat such discrimination. The Commission may issue reports on such conferences and consultations as it deems appropriate.
§ 4508. Procedure on Complaint.
(a) A person believing himself aggrieved by a discriminatory public accommodation
practice proscribed by § 4504 of this chapter may, by himself or his attorney-at-law, file with the Commission a complaint in writing stating:
(1) his or her name and address;
(2) the name and location of the place of public accommodation at which the discriminatory public accommodation practice occurred, and the date, time and an explanation thereof;
(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 accommodation; and
(4) such other information as the Commission requires.
(b) No complaint shall be filed with the Commission more than 90 days after the
occurrence of the alleged discriminatory public accommodation practice.
(c) Within 120 days after the complaint is filed, the Commission shall investigate the
complaint and endeavor to eliminate any unlawful discriminatory practice discovered through conciliation. Insofar as possible, conciliation meetings shall be held in the county where the alleged discriminatory public accommodations practice occurred. If the matter is resolved through conciliation, the parties shall enter a conciliation agreement stating the terms of the resolution of the matter.
(d) Whenever the Commission has reasonable cause to believe that a Respondent has
breached a conciliation agreement, the Commission shall refer the matter to the Attorney General with a recommendation that a civil action be filed under § 4512 of this chapter for the enforcement of such agreement.
(e) If a complaint cannot be resolved through conciliation as provided in subsection
(c), the Commission shall appoint a Panel to hold a public hearing within 60 days after the expiration of 120-day period for investigation and conciliation. The deadlines provided in subsections (c) and (e) may be extended by the Chairperson or the Panel Chair at the request of any party or an employee of the Division of Human Relations upon a showing of good cause.
(f) Public hearings shall be conducted in accordance with rules prescribed by the Commission. Each party may appear in person, be represented by counsel, present evidence, cross-examine witnesses and obtain the issuance of subpoenas under § 4509 of this chapter. The Delaware Rules of Evidence shall apply to the presentation of evidence in a public hearing as they would in an administrative hearing conducted in accordance with Subchapter Ill of the Administrative Procedures Act. A record shall be kept of all public hearings, a transcript of which shall be provided at cost upon request of a party. Decisions of the Panel shall be made by a majority of the members of the Panel.
(g) If the Panel determines that a violation of § 4504 has not occurred, it shall issue
an order dismissing the complaint. The Panel may award reasonable attorneys' fees, costs and expenses to the Respondent pursuant to this subsection if it determines that the complaint was brought for an improper purpose, such as to harass or embarrass the Respondent.
(h) If the Panel determines that a violation of § 4504 has occurred, it shall issue an
order stating its findings of tact and conclusions of law and containing such relief as may be appropriate, including actual damages suffered by the aggrieved person 'including damages caused by humiliation and embarrassment', costs, expenses, reasonable attorneys' fees and injunctive or other equitable relief. To vindicate the public interest, the Panel may assess a civil penalty against the Respondent(s), to be paid to the Special Administration Fund:
(1) in an amount not exceeding $5,000 for each discriminatory public
accommodations practice if the Respondent has not been adjudged to have committed any prior discriminatory public accommodations practice;
(2) in an amount not exceeding $15,000 for each discriminatory public accommodations practice if the Respondent has been adjudged to have committed one other discriminatory public accommodations practice during the 5-year period ending on the date of the complaint; and
(3) in an amount not exceeding $25,000 for each discriminatory public accommodations practice if the Respondent has been adjudged to have committed two or more discriminatory public accommodations practices during the 7-year period ending on the date of the complaint.
(i) Copies of orders entered pursuant to subsections (g) and (h) shall be served personally or by registered or certified mail to each party or their counsel.
(j) If the Commission concludes, at any time following the filing of a complaint, that prompt judicial action is necessary to carry out the purpose of this chapter, the Commission may authorize a civil action for appropriate temporary or preliminary relief pending final disposition of the complaint under this section. Upon receipt of such authorization, the Attorney General may elect, in the absence of a conflict of duties, to commence and maintain such an action in the Court of Chancery on behalf of the Commission. If the Attorney General does not elect to pursue such an action, the Commission may, with the written authorization of the Secretary of State, employ special counsel to pursue such action notwithstanding 29 Del. C. Section 2507. The commencement of a civil action under this subsection does not affect the initiation or continuation of proceedings under this section.
§ 4509. Commission's Power to Investigate compliance.
The Commission is empowered to investigate compliance with this chapter whether or not a complaint is filed pursuant to § 4508. In furtherance of and not in limitation of this power, the Commission may review practices of any place of public accommodation within this State. Investigations pursuant to this section that cannot be resolved through conciliation may be referred by the Commission to the Attorney General for further proceedings pursuant to §4512 of this chapter.
§ 4510. Compelling Attendance of Witnesses and Production of Documents Oaths, Subpoenas.
(a) The Commission may issue subpoenas and order discovery in aid of investigations and hearings under this chapter. Such subpoenas shall be signed by the Chairperson or Panel Chair and may be served by any sheriff, deputy sheriff, constable or any member of the Commission or employee of the Division of Human Relations and return thereof shall be made to the Commission. Such subpoenas and discovery may he ordered to the same extent and subject to the same limitations as would apply if the subpoenas or discovery were ordered or served in aid of a civil action in the Superior Court.
(b) At any public hearing, any member of the Commission may administer oaths to all witnesses who may be called before the Commission.
(c) Witnesses summoned by a subpoena under this chapter shall he entitled to the same witness and mileage fees as witnesses in proceedings in Superior Court.
(d) Where any person fails or neglects w attend and testify or answer any lawful inquiry or to produce records, documents or other evidence, if it is in such person’s power to do so, in obedience to the subpoena or other lawful order under such subsection (a), the Attorney General, on behalf of the Commission, shall petition the Superior Court in the county where such person resides or conducts business for an order requiring such person to appear before the Commission to produce evidence if so ordered or to give testimony pertaining to the matter under investigation or in question. Any failure to obey such order may be punished by the court as being in contempt of court.
(e) Criminal penalties -
(1) Any person who willfully fails or neglects to attend and testify or to answer any lawful inquiry or to produce records, documents or other evidence, if it is in such persons power to do so, in obedience to the subpoena or other lawful order under subsection (a) of this section, shall, in each instance be fined not more than $2,500 or imprisoned not more than one year, or both.
(2) Any person who, with intent thereby to mislead another person in any proceeding under this chapter:
(A) makes or causes to he made any false entry or statement of fact in any report, account, record or other document produced pursuant to subpoena or other lawful order under subsection (a) of this section:
(IS) - willfully neglects or fails to make or cause to he made M11, true and correct entries in such reports, accounts, records or other documents; or
(C) willfully mutilates, alters or by any other means falsities any documentary evidence; shall in each instance be tined not more than $2,500 or imprisoned not more than one year, or both.
§ 4511, .Judicial Review.
(a) Any party aggrieved by an order for relief under § 4508 of this chapter granting or denying, in whole or in part. the relief sought, may obtain a review of such order in the Superior Court in the county in which the discriminatory public accommodations practice is alleged to have occurred, pursuant to the civil rules of that court and the Administrative Procedures Act. Filing of the petition for review shall be not later than 30 days slier the order is entered.
(b) Any party to the proceeding before the Panel may intervene in the Superior Court in the appeal process.
(c) No objection nut made before the Panel shall be considered by the Court. unless the failure or neglect to urge such objection is excused because of extraordinary circumstances or when the interests of justice so require.
§ 4512. Enforcement by the Attorney General.
(a) Whenever the Attorney General has reasonable cause to believe that any person or group of persons is engaging in a pattern of discriminatory public accommodation practices, that any person or group of persons has been denied any of the rights granted by this chapter and such denial raises an issue of general public importance or that any party to a conciliation agreement has breached such agreement, the Attorney General may commence a civil action in the Superior Court, Court of Chancery or both in any county of the State for appropriate relief including, but not limited to, equitable relief, monetary damages, reasonable attorneys fees. costs and expenses. To vindicate the public interest, the court may assess a civil penalty to be paid to the Special Administration Fund in an amount not exceeding $25,000 for a first violation of this section and in an amount not exceeding $50,000 For any subsequent violation of this section.
(b) When a civil action is initiated by the Attorney General pursuant to this section, no COW( shall charge fees of any kind in such proceeding to the Attorney General, the Commission or any of its members,"
Section 2. Amend § 3005(a). Title 31. Delaware Code, by striking subsections (I) and (2) in their entirety and substituting in lieu thereof the following:
"(1) All civil penalties assessed and collected pursuant to Chapter 45 Of 46 of
(2) Costs, attorneys' fees and expenses awarded to the Commission pursuant to Chapter 45 or 46 of Title 6."
Section 3. Amend §3005(b) (2), Title 31, Delaware Code, by striking the words "§§ 4605 and 4606 of Title 6" in the first sentence and replacing them with the words "in Chapters 45 or 46 of Title 6".
Section 4. If any clause, sentence, subsection, provision or part of this Act shall be adjudged to be unconstitutional or invalid for any reason by any court of competent jurisdiction, such judgment shall not impair, invalidate or affect the remainder of this Act which shall remain in full force and effect, and the application of the provision in question to other persons not similarly situated or to other circumstances shall not be affected thereby.
Section 5. This Act shall be effective on July 1, 1996.
Approved May 30, 1996