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HomeMy WebLinkAbout077 - 04/21/1998 - REENACTING ARTICLE II OF CHAPTER 13 (DISCRIMINATION) OF THE CITY CODE AS IT EXISTED PRIOR TO ENACTME EMERGENCY ORDINANCE NO. 77, 1998 OF THE COUNCIL OF THE CITY OF FORT COLLINS REENACTING ARTICLE II OF CHAPTER 13 OF THE CITY CODE AS IT EXISTED PRIOR TO THE ENACTMENT OF ORDINANCE NO. 21, 1998 WHEREAS, on March 3, 1998,the City Council adopted on second reading Ordinance No. 21, 1998, repealing and reenacting Article II of Chapter 13 of the City Code pertaining to Human Relations; and WHEREAS, on that same date, the City Council also adopted Ordinance No. 22, 1998, amending portions of Article II of Chapter 13 of the City Code by adding sexual orientation as a basis of discrimination; and WHEREAS, on April 7, 1998, referendum petitions were filed with the office of the City Clerk with regard to Ordinance No. 21, 1998 and Ordinance No. 22, 1998; and WHEREAS, the City Clerk has certified said referendum petitions as sufficient for referendum and has presented the same to the City Council; and WHEREAS, said Section 2(e) of Article X of the City Charter provides that, following the presentation to the Council of a referendum petition that has been certified by the City Clerk as sufficient,the Council must reconsider the referred ordinance at the next regular special meeting of the Council following the receipt of the petition and, at such meeting, repeal said ordinance or submit the same to a vote of the registered electors at the next regular or special city election scheduled for that or any other purpose; and WHEREAS,Article X,Section 2(e)of the City Charter further provides that the presentation to Council of a petition certified by the City Clerk as sufficient for referendum shall automatically suspend the operation of the ordinance in question pending repeal by the Council or final determination by the electors; and WHEREAS, the City Council believes that the City should not be without a local anti- discrimination ordinance pending the outcome of the referendum, and that Article II of Chapter 13 of the City Code should be reenacted as it existed prior to the enactment of Ordinance No. 21, 1998 and Ordinance No. 22, 1998, until such time, if at all, that Ordinance No. 21, 1998, is approved by the voters; and WHEREAS, under Section 6 of Article II of the City Charter, the City Council, upon the affirmative vote of at least five (5) members of the Council, may enact an emergency ordinance as necessary to protect the health, safety and welfare of its citizens, which ordinance shall take effect immediately upon its passage; and WHEREAS, the City Council believes that the enactment of an emergency ordinance to reinstate the provisions of Article II, Chapter 13 of the City Code as the same existed prior to the enactment of Ordinance No.21, 1998 is necessary and appropriate in order to avoid any lapse in the existence of a local anti-discrimination ordinance. NOW, THEREFORE, BE IT ORDAINED BY THE COUNCIL OF THE CITY OF FORT COLLINS as follows: Section 1. That Article 11 of Chapter 13 of the City Code, as the same existed immediately prior to the going into effect of Ordinance No. 21, 1998 is hereby reenacted, as shown on Exhibit "A," which is on file in the office of the City Clerk, and incorporated herein by this reference ("the Reenacted Ordinance"). Section 2. That the Reenacted Ordinance shall remain in full force and effect until such time, if at all,that Ordinance No. 21, 1998 is approved by the registered electors of the City or until Article 11 of Chapter 13 of the City Code is further amended or repealed by the City Council. Section 3. That the immediate adoption of this ordinance is necessary to preserve, protect and advance the general welfare of the residents of the City of Fort Collins by ensuring the continuing existence of a local anti-discrimination law,and that the Council hereby determines that an emergency exists requiring the immediate passage of this ordinance. Section 4. That,for the foregoing reasons,this ordinance is enacted pursuant to Section 8 of Article II of the Charter of the City of Fort Collins as an emergency ordinance,and that the same shall be immediately effective upon its passage. Introduced, considered favorably by seven (7) members of the Council of the City of Fort Collins and finally passed as an emergency ordinance and ordered publi§bod-this 21 st day of April, A.D. 1998. Mayor ATTEST: City Clerk EXHIBIT "A" HUMAN RELATIONS § 13-16 ARTICLE I. IN GENERAL following sense or meaning and at the same time save repeated use of the term based upon or be- Secs. 13-1-13-15. Reserved. cause of the race, color, religion, national origin, sex or marital status of the other person, or be- cause of the race, color, religion, national origin, ARTICLE II. DISCRIMINATION• sex or marital status of such other person's friends or associates. The foregoing terms will include Sec. 13-16. Definitions. the phrase age between forty (40) and seventy(70) when used in the area of employment under § The following words, terms and phrases, when 13-17. The foregoing shall include discrimination used in this Article, shall have the meanings as- against a disabled individual, as defined herein, cribed to them in this Section: when used in the areas of housing under § 13-18, City Manager shall mean the chief administra- employment under § 13-17 and public accommo- tive official of the city including any person ap- dations under § 13-19 of the Code. pointed or designated by the City Manager to Employer shall mean any person employing any carry out any or all of the duties, obligations, person in any capacity other than domestic ser- rights and powers appointed to the City Manager vice in the employer's own home. under this Article. Employment shall mean any character of ser- Complainant shall mean the person filing a for- vice rendered or to be rendered for wages, salary, mal charge or accusation of violation of this Article. commission or other form of remuneration, and to use or engage any character of service rendered Developmental disability shall mean a rebr al l- or to be rendered for wages, salary, commission ity attributable to mental retardation, cerebral or other form of remuneration. palsy or epilepsy. Employment agency shall mean any person un- Disabled individual shall mean any person who dertaking, with or without compensation, to pro- has, has had or is regarded as having a physical cure employees or opportunities to work for any impairment or is developmentally disabled, as de- person or holding itself out as equipped to do so. fined herein, from a physiological or neurological condition which prevents the exercise of a normal Person shall mean any individual, group, asso- physical function. In reference to employment, ciation, corporation, joint apprenticeship, commit- disabled individual means a disabled individual tee,joint stock company, labor union,legal repre- as defined herein who is capable of performing a sentative, mutual company, partnership, receiv- particular job,with reasonable accommodation to er, trustee or unincorporated organization or other his or her disability, at the level of productivity legal,commercial or governmental entity but shall applicable to a nondisabled employee. not include an agency or school district of the State of Colorado or an agency of the United States Discriminate and discriminate against; discrimi- of America. natory reason or reason of discrimination shall mean under the given circumstances, a person Place of public accommodations shall mean any makes a limitation or specification as to another place of business engaged in any sales to the gen- because of the latter person's race,color,religion, eral public and any place that offers services, national origin, sex or marital status or because facilities, privileges or advantages to the general of the race, color, religion, national origin, sex or public or that receives financial support through marital status of the other person's friends or solicitation of the general public or through gov- associates.The term discriminatory reason or rea- ernmental subsidy of any kind. son of discrimination may be used to have the Real estate transaction shall mean the sale, ex- Cross references—The Commission on Disability, § 2-166 change, rental or lease of any real property and el seq.;Commission on the Status of Women, § 2-181 et seq.; also includes offering or listing of any real prop- Human Relations Commission,§2-261 et seq. erty for sale, exchange, rental or lease. Supp.No.5 879 § 13-16 FORT COLLINS CODE Respondent shall mean the person being for- ment practice for any employer, employment agency mally charged with a violation of this Article. or labor organization prior to employment or ad- (Code 1972, § 45-1;Ord.No. 105, 1988, § 1,8-16-88) mission to membership to: Cross reference—Definitions and rules of construction gen- erally, § 1-2. (1) Elicit any information for the purpose of discrimination against any applicant for em- Sec. 13-17. Discriminatory employment prac- ployment or membership; tices prohibited. (2) Make or keep a record for the purpose of (a) It is a discriminatory employment practice discrimination against any applicant for em- and a violation of this Section for: ployment or membership; (1) Any employer, because of discriminatory (3) Use any form of application for employment or personnel or membership blank seeking reason, to refuse to hire another or other- to elicit information for the purpose of wise to discriminate against any person with discrimination; respect to the hire, tenure, terms, condi- tions or privileges of employment or any (4) Print or publish or cause to be printed or matter directly or indirectly related to em- published any notice or advertisement re- ployment except where based upon a bona lating to employment or membership indi- fide occupational qualification; cating any preference, limitation or speci- fication based on a discriminatory reason; (2) Any employment agency to fail or refuse to classify properly, refer for employment or (5) Establish, announce or follow a policy of otherwise to discriminate against any per- denying or limiting through a quota sys- son relating to employment or prospective tem or otherwise employment or member- employment; ship opportunities of any group because of a discriminatory reason; (3) Any labor organization to discriminate against any person or to limit, segregate or (6) Utilize in the recruitment or hiring l in- against its membership in any way which meet ter any employment agency, place- would tend to deprive any person of em- merit service,training school or center,labor ployment opportunities or would limit the organization or any other employee refer- employment opportunities or otherwise ad- ring service known by such person to versely affect the status as an employee or discriminate; as an applicant for employment or would (7) Intentionally utilize in the recruitment,hir- adversely affect the wages, hours or em- ing, upgrading or promotion of any person ployment terms, conditions or privileges be- any test which tends to discriminate; pro- cause of a discriminatory reason; vided, however, that it shall not be a dis- (4) Any person to use a threat communicated criminatory practice to have programs which either by physical,oral or written means of provide opportunities for persons who have been the traditional targets of discrimina- harm or injury to another person, reputa- tion or to use a form or make a record of tion or property to coerce such a person to not accept or discontinue employment; inquiry as above described for the purpose of required governmental reporting. This (5) Any person seeking employment to publish subsection shall not be construed to pro- or cause to be published any advertisement h:bit a person giving or being required to for employment with specification or limi- give the person's name. tation based upon a discriminatory reason. (c) The provisions of this section shall not apply (b) Except where based on a bona fide occupa- to prohibit a religious organization or institution tional qualification, it is a discriminatory employ- from restricting employment opportunities and Supp.No.5 880 HUMAN RELATIONS § 13-18 advertising such restrictions so as to give prefer- tunities for persons who have been the tra- ence to members of its own religion or denomina- ditional targets of discrimination or to use tion or to make such selection as is reasonably a form or make a record of inquiry as above calculated by such organization or institution to described for the purpose of required gov- promote the religious principles for which it is ernmental reporting. This subsection shall established or maintained, not be construed so as to prohibit a person (Code 1972, § 45-3; Ord. No. 105, 1988, §§ 2, 3, giving or being required to give the per- 8-16-88) son's name; Cross references—The Commission on Disability, §2-166 et seq.;Commission on the Status of Women, § 2-181 et seq.; (3) Offer, solicit, accept, use or retain a listing Human Relations Commission, §2-261 et seq. of real property with the understanding that a person may be discriminated against in a Sec. 13.18. Discriminatory housing practices real estate transaction, or in the furnish- prohibited;exemptions. ing of facilities or services in connection therewith; (a) No person for any reason of discrimination (4) Initiate, instigate or participate in repre- shall: sentations, advertisements or contacts within (1) Refuse to negotiate for and/or engage in a a block, neighborhood or area designed to real estate transaction with another person; promote real estate transactions therein on the implication directly or indirectly that (2) Discriminate against another person in the changes have occurred or will or may occur terms, conditions or privileges of a real es- in the composition thereof with respect to tate transaction or in the furnishing of fa- discrimination against the owners or occu- cilities or services in connection therewith; pants, or that such changes will or may (3) Refuse to receive from or fail to transmit to result in lowering of property values or an another person a bona fide offer to engage increase in criminal or antisocial behavior in a real estate transaction; or decline in the quality of schools in the block, neighborhood or area. (4) Represent to another person that any real property is not available for inspection or (c) A person or a representative of such person for a real estate transaction when in fact it to whom application is made for financial assis- is available; Lance in connection with a real estate transac- tion, or for the construction, rehabilitation, re- (5) Fail, in the ordinary course of business, to pair, maintenance or improvement of real property, _bring a property listing to another person's shall not: attention or to refuse to permit him to in- spect real property under reasonable condi- 1 1) Discriminate against the applicant; tions. (2) Use a form of application for financial as- (b) No person shall: sistance or make or keep a record of in- quiry in connection with applications for (1) Publish or advertise, directly or indirectly, financial assistance, for the purpose of mak- an intent to make a limitation or specifica- ing a limitation or specification based on a tion based on a discriminatory reason; discriminatory reason. It shall not be a dis- (2) Use a form of application for a real estate criminatory practice to have programs which transaction, or make a record of inquiry in provide opportunities for persons who have connection with a real estate transaction, been the traditional targets of discrimina- for the purpose of making a limitation or tion or to use a form or make a record of specification based on a discriminatory rea- inquiry as above described for the purpose son. It shall not be a discriminatory prat- of required governmental reporting. This tice to have programs which provide oppor- subsection shall not be construed so as to Supp.No.12 881 § 13-18 FORT COLLINS CODE: prohibit a person giving or being required (2) Uae a threat communicated either by phys- to give the person's name. ical, oral or written means of harm or in- (d) No person for a reason of discrimination jury to another person, reputation or prop- shall: erty to coerce such person to not utilize a place of public accommodation; W Provide unequal terms, conditions, privileges and services to another person in regard to (3) Advertise or cause to be advertised a place real estate ownership, rental or leasing; of public accommodation as being restricted t2) Use a threat communicated either by phys- on the basis of discriminatory reason. ical, oral or written means of harm or in- jury to another person, reputation or prop- �) The provisions of this Section shall not apply rty to coerce such person not buy, rent to prohibit a religious organization or institution e r lease, or to discontinue ownership, rental from restricting the use of its facilities and adver- or leasing real estate. tising such restrictions, thereby discriminating against certain persons so as to give preference to (e) The following exemptions shall apply to the members of its own religion or denomination or provisions of this Section: to make such selection as is reasonably calculated (1) The owner of an owner-occupied single-family by such organization or institution to promote the or two-family dwelling or housing facility religious principles for which it is established or may restrict occupancy of such facility on maintained. the basis of the sex of the proposed occu- agent (c; Notwithstanding any other provisions of this pant, and such owner or authorized can effectuate said restrictions adverbs- person it is not a discriminatory practice for a ing or otherwise arranging for the occupancy person to restrict admission to a place of public Of the dwelling. accommodation to individuals of one sex if such restriction has a bona fide relationship to the (2) A religious organization or institution may goods, services, facilities, privileges, advantages restrict its facilities or housing which are or accommodations of such place of public accom- operated in connection with its religious modation. activities and may advertise such restric- (Code 1972, § 45-4; Ord. No. 105, 1988, §§ 5, 6, tions so as to give preference to members of 8-16-88; Ord. No. 42, 1990, § 1, 5-1-90) its own religion or denomination or to make Cross references—The Commission on Disability, §2-166 such selection as is reasonably calculated et seq.; Commission on the Status of Women, § 2-181 et seq.; by such organization or institution to pro- Human Relations Commission, § 2-261 et seq. mote the religious principles for which it is established or maintained. Sec. 13-20. Interference with operation of regu- (Code 1972, § 45-2;Ord. No. 105, 1988, § 4,8-16-88) lations prohibited. Cross references—The Commission on Disability, §2-166 et seq.; Commission on the Status of Women, § 2-181 et seq.; (a) No person shall: Human Relations Commission, §2-261 et seq. (1) Use a threat communicated either by phys- Sec. 13-19. Discriminatory public accommo- ical, oral or written means of harm or in- dation practices prohibited. ury to another person, reputation or prop- rty or discriminate against any person or (a) It shall be prohibited as a discriminatory provide unequal terms, conditions or privi- practice for any person to: leges because that person has entered into (1) Deny or limit access to a place of public i conciliation agreement under this Arti- accommodation or provide unequal terms, ale or because such other person has op- conditions or privileges to a person because posed a discriminatory practice or because of a discriminatory reason; -uch person has made a charge, filed a com- Supp.No.12 882 HUMAN RELATIONS § 13-23 plaint, testified, assisted or participated in addition, the complaint shall state, if and as sp- an investigation, proceedings or hearing be- plicable, that any acts or conduct of the com- fore anybody charged by law with the duty plainant were for the purpose of accomplishing to hear complaints relating to problems of the real estate transaction, employment objective discrimination; or public accommodation use in question, and not for the purpose of harassment or entrapment of (2) Use a threat communicated by physical, the person against whom the complaint is made. oral or written means of harm or injury to another person, reputation or property to (b) The complaint must state: coerce such person to engage in a discrimi- (1) Whether or not a complaint concerning this natory practice or other violation of this same matter has been filed with another Article; agency; (3) Willfully obstruct, hinder or interfere with (2) Whether any complaint concerning this same the performance or the proper exercise of a matter that has been filed with another duty, obligation. right or power by the City agency has been dismissed without a final Manager, the M. _.icipal Court or any other official or body with duties,obligations,rights, judgment on the merits. and powers under this Article. (c) Upon receiving a complaint which conforms (b) A complaint for a violation of this Section to the requirements of this Section,the City Man- ager may proceed with a local investigation pur- shall be processed in accordance with §§ 13-22 suant to this Article. In the alternative, the City through 13-25. Manager may request that the complaint be in- (Code 1972, § 45-5) vestigated, conciliated and fully determined by Cross references—The Commission on Disability, §2-166 the State of Colorado in accordance with the pro- et seq.;Commission on the Status of Women, § 2-181 et seq. visions of Title 24, Article 34, Parts 3 through 7, C.R.S. If the City Manager's request is accepted Sec. 13-21. Appointment of enforcing official. by the state or if a complaint concerning the same subject matter has been previously filed by the A person may be appointed or designated by complainant with the Colorado Civil Rights Com- the City Manager to carry out any or all of the mission or another public agency, the City Man- duties, obligations, rights or powers under the ager shall hold the city's investigation in abey- provisions of this Article. Such appointee shall ante pending further action by the commission or have such job titles as designated by the City other agency. If such other agency makes a final Manager. (Code 1972, § 45-6) judgment on the merits, the City Manager shall dismiss the complaint filed with the city. If such other agency dismisses the complaint without a Sec. 13-22. Complaint. final judgment on the merits or waives jurisdic- tion, the City Manager shall proceed with an in- (a) Any person claiming to be aggrieved by a vestigation pursuant to the provisions of§ 13-23. violation of this Article may,within sixty(60)days In any event, the City Manager shall furnish a of the alleged violation, or thirty (30) days after copy of the complaint to the respondent within any complaint concerning the same matter has ten (10) days after the complaint is filed with the been dismissed by another agency without a final city. judgment on the merits,whichever shall last occur, (Code 1972, § 45-7(A); Ord. No. 42, 1990, §§ 2, 3, file a written complaint under oath with the City 5-1-90) Manager. The complaint shall contain the name Sec. 13-23. Investigation by City Manager; of the alleged violator, or set forth facts sufficient appeal. to identify such person, and include an outline of the material facts upon which the complaint is (a) The City Manager shall promptly conduct a based and the date of the alleged violation. In preliminary investigation to determine whether Supp.No.12 883 § 13-23 FORT COLLINS CODE the factual allegations of the complaint consti- that a violation has occurred, he or she shall en- tute probable cause to believe that there has been deavor to eliminate the alleged violation by Ion- a violation of this Article. ference, conciliation and persuasion. The City Man- ager is authorized to work toward conciliation (b) If at any time the City Manager determines agreements whereunder the alleged violation is that the factual allegations of a complaint are eliminated and the complaining person is made materially untrue or, if true,that a violation under ehole at the extent possible. this Article cannot be established, he or shall shall dismiss the complaint and notify the com- (b) Neither the complaint nor information gath- plainant and the respondent of such action,which ered in the investigation shall be made public by notice shall inform the complainant of the follow- the city or any officer, employee, board or com- ing right of appeal. If the complainant is dissatis- mission thereof prior to the time a conciliation is Pied with the City Manager's decision to dismiss reached or the City Manager determines that he the complaint, the complainant shall have the or she is unable to effectuate a conciliation, un- right to appeal such decision to the Human Rela- less the disclosure is made in connection with the tions Commission. Such appeal shall be perfected conduct of the investigation or at a public hearing by filing a notice of appeal with the City Manager held pursuant to § 13-23(b), above. within thirty (30) days of the complainant's re- (c) If such an agreement is reached, it will be ceipt of the notice of dismissal. Within ten (10) signed by the complainant and the respondent. days of the City Manager's receipt of the notice of appeal, the City Manager shall notify the com- The agreement shall provide for specific perfor- mance. It will not be necessary for the agreement plainant of a date, time and place when the ap- to contain a declaration or finding that a violation peal will be heard by the Human Relations Com- has in fact occurred. It may provide for the dis- mission, which date shall be no more than thirty missal o£ the complaint without prejudice. The 30) days subsequent to the City Manager's re- complainant and respondent shall be furnished a ceipt of the notice of appeal. The Human Rela- copy of the agreement.The terms of such an agree- tions Commission shall conduct a hearing on the ment may be made public, but no other informa- allegations in the complaint. If the Human Rela- tion relating to any complaint, its investigation tions Commission upholds the City Manager's de- and disposition will be disclosed or made public cision, the complainant may seek judicial review by the city or any officer, employee,board or com- of the decision of the Human Relations"Commis- mission thereof without the consent of the com- sion in the District Court in accordance with the plainant and the respondent. Colorado Rules of Civil Procedure,Rule 106(AX4). Such review must be sought not later than thirty (d, The maximum period for reaching a concil (30) days after the date of the decision of the iation as;reement shall be ninety (90) days from Human Relations Commission. If either the Human the date of the city's receipt of the initial com- Relations Commission or the District Court re- plaint o:,, in the event the matter has been sub- verses the decision of the City Manager, the City mitted f zr review by another agency, the date of Manager shall pursue the complaint in the same the city's receipt of notice from such other agency manner as if the City Manager had found the that the complaint has been dismissed without allegations to be materially true and sufficient to final judgment on the merits or that such agency establish a violation. has waived jurisdiction over the complaint. (Code 1972, § 45-7(B); Ord. No. 105, 1988, § 7, (Code 1972, § 45-7(c), (d); Ord. No. 105, 1988, § 7, 8-16-88) 8-16-88; Ord. No. 42, 1990, §§ 4, 5, 5-1-90) Cross reference—Human Relations Commission, § 2-261. Sec. 13.25. Commencement of action in Mu- nicipal Court. Sec. 13-24. Conciliation. (a) In the event of a finding of probable cause, (a) If, after investigation, the City Manager de- either by the City Manager in the first instance or termines that there is probable cause to believe upon review by the Human Relations Commis- Supp.No.12 884 HUMAN RELATIONS § 13-25 sion or the District Court,and in the further event (c) If the City Manager determines that the in- that the City Manager is unable to effectuate an tent and purposes of this Article would not be agreement through conference,conciliation or per- served by the filing of a complaint in Municipal suasion within the period of time described in § Court, written notice of such determination shall 13.24(d), the City Manager shall review all avail- be given to the complainant; and the jurisdiction able information to determine whether the intent of the city and its Human Relations Commission and purpose of this Article would be served by the over the complaint shall cease. filing of a complaint in Municipal Court. If so de- (Code 1972,§45-8;Ord.No. 105, 1988,§ 7,8-16.88; termined,the City Manager shall file a complaint Ord. No. 42, 1990, §§ 6, 7, 5-1-90) in Municipal Court alleging a violation of the pro- Cross reference—Municipal Court,Ch. 19. visions of this Article.The matter shall thereafter be prosecuted by the city, and the complainant shall be subpoenaed to appear and testify at such court proceeding. Any disclosure or statements made by the person charged during the course of conciliation efforts under this Article will not be used as evidence in such court proceeding. Upon conviction, a violation of the provisions of this Article shall be punishable by fine or imprison- ment as stated in § 1-15 of this Code. (b) Nothing herein shall preclude the Munici- pal Court, upon stipulation between the city and the defendant, from entering an order of deferred prosecution or judgement for such period of time as deemed proper by the Court, upon certain con- ditions,including but not limited to the following: (1) Requiring the defendant to cease and de- sist from the discriminatory practice; (2) Providing for the sale,exchange,lease,rental, assignment or sublease of real property to a particular person; (3) Requiring the defendant to pay back pay for discriminatory termination of employ- ment, layoff or denial of promotion oppor- tunity, or to make an offer of employment in the case of discriminatory refusal of em- ployment, or to make an offer of promotion in the case of discriminatory denial of pro- motion opportunity; (4) Requiring that the defendant make avail- able a place of public accommodation in the case of discriminatory denial of the use of such place; (5) Requiring reporting by the defendant as to the manner of compliance with the order of court. 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