PROPOSED RULEMAKING

HUMAN RELATIONS COMMISSION

[16 PA CODE CH. 45]

Housing Accommodations/Commercial Property

[29 Pa.B. 4443]

   The Human Relations Commission (Commission), is proposing the following schedule of penalties, procedure for their imposition and procedures for appeal, to read as set forth in Annex A. The schedule of penalties, procedure for their imposition and procedure for appeal were originally published at 28 Pa.B. 5136 (October 10, 1998) as guidelines/statement of policy, in compliance with and under the authority of section 9.3 of the Pennsylvania Human Relations Act (act) (43 P. S. § 959.3). The schedule of penalties, procedure for their imposition and procedure for appeal was not subject to review under section 205 of the act of July 31, 1968 (P. L. 769, No. 240) (45 P. S. § 1205) and are effective as guidelines/statement of policy for a period not to exceed 2 years from the effective date of their publication. On or before the expiration of the 2-year period, the schedule of penalties, procedure for their imposition and procedure for appeal will expire and will be replaced by regulations which shall have been promulgated, adopted and published as provided by law. This publication is to serve as this proposed rulemaking under section 9.3 of the act.

   The purpose of these proposed regulations is to create a schedule of penalties, procedure for their imposition and procedure for appeal, for violations of section 5(h)(5) of the act (43 P. S. § 955(h)(5)), by advertisers and publishers, in instances where the complainant does not take action to secure housing accommodations or financing and is not denied housing accommodations or financing based on the alleged discriminatory language in the advertisement.

Fiscal Impact

   The Commission believes that the schedule of penalties, procedure for their imposition and procedure for appeal will result in no additional cost to the Commission or to the general public. Costs which arise to advertisers or publishers due to a fine imposed upon them are more than offset by the absence of costs of the current adversarial method of case processing.

Paperwork Requirements

   Additional paperwork created by the system will be offset by the elimination of the paperwork created by the normal case processing system.

Regulatory Review

   Under section 5(a) of the Regulatory Review Act (71 P. S. § 745.5(a)), on August 11, 1999, the Commission submitted a copy of these proposed regulations to the Independent Regulatory Review Commission (IRRC) and the Chairpersons of the House State Government Committee and the Senate Committee on Labor and Industry. In addition to submitting the proposed regulations, the Commission has provided IRRC and the Committees with a copy of a detailed Regulatory Analysis Form prepared by the Commission in compliance with Executive Order 1996-1. A copy of this material is available to the public upon request.

   If the Legislative committees have objection to any portion of the proposed regulations, they will notify the Commission within 20 days of the close of the public comment period. If IRRC has objections to any portion of the proposed regulations, it will notify the Commission within 10 days after the close of the Committees' review period. The notification shall specifiy the regulatory review criteria which have not been met by that portion. The Regulatory Review Act specifies detailed procedures for review, prior to final publication of the regulations, by the Commission, the General Assembly and the Governor of any objections raised.

Effective Date

   The schedule of penalties, procedure for their imposition and procedure for appeal shall take effect as regulations upon final publication in the Pennsylvania Bulletin.

Contact Person/Public Comments

   Interested persons are invited to submit written comments regarding the proposed schedule of penalties, procedure for their imposition and procedure for appeal in writing to Nancy L. Gippert, Assistant Chief Counsel, Human Relations Commission, 101 South Second Street, Suite 300, P. O. Box 3145, Harrisburg, PA 17101. Comments should be submitted within 30 days of publication.

HOMER C. FLOYD,   
Executive Director

   Fiscal Note:  52-011. No fiscal impact; (8) recommends adoption.

   (Editor's Note:  The Commission is proposing to delete the policy statement which currently appears in §§ 45.201--45.208, Pennsylvania Code pages 45-20 to 45-27, serial pages (249156) to (249163) and replace it with regulations in §§ 45.301--45.308.)

Annex A

TITLE 16.  COMMUNITY AFFAIRS

PART II.  GOVERNOR'S OFFICE

Subpart A.  HUMAN RELATIONS COMMISSION

CHAPTER 45.  HOUSING ACCOMMODATIONS/COMMERICAL PROPERTY

Subchapter C.  CITATION PROCEDURE

§§ 45.201--45.208.  (Reserved)

Sec.

45.301.	Purpose.
45.302.	Initial procedure.
45.303.	Administrative procedures.
45.304.	Hearing.
45.305.	Appeals.
45.306.	Enforcement of orders/nonpayment of civil penalties/default judgment.
45.307.	Schedule of civil penalties.
45.308.	Form.

§ 45.301.  Purpose.

   Advertisements covered under section 5(h) of the act (43 P. S. § 955(h)) shall be subject to a schedule of civil penalties for violation of section 5(h)(5) of the act by the advertiser and the publisher in instances when the complainant does not take action to secure housing accommodations or financing and is not denied housing accommodations or financing based on the alleged discriminatory language in the advertisement. Section 5(h)(5) states that it is an unlawful act to:

''print, publish or circulate any statement or advertisement: (i) relating to the sale, lease or acquisition of any housing accommodation or commercial property or the loan of money, whether or not secured by mortgage, or otherwise for the acquisition, construction, rehabilitation, repair or maintenance of any housing accommodation or commercial property which indicates any preference, limitation, specification, or discrimination based upon race, color, familial status, age, religious creed, ancestry, sex, national origin, handicap or disability or because of the handicap or disability of an individual with whom the person is known to have a relationship or association, or (ii) relating to the sale, lease or acquisition of any housing accommodation or commercial property which indicates any preference limitation, specification, or discrimination based upon use of a guide or support animal because of the blindness, deafness or physical handicap of the user or because the user is a handler or trainer of support or guide animals.''

§ 45.302.  Initial procedure.

   When, within 180 days of the publication of the alleged unlawful advertisement, the Commission becomes aware of an unlawful advertisement, which is subject to a citation, from sources other than aggrieved persons seeking housing or commercial property or financing in connection therewith, the following procedures shall apply:

   (1)  The advertisements shall be forwarded to the appropriate housing staff in their original form, when possible, with information regarding their publication.

   (2)  Housing staff shall complete the Commission Citation Form (see § 45.308 (relating to form).

   (i)  The form shall be forwarded to appropriate housing staff for review and transmittal to the Executive Director/Designee.

   (ii)  The Executive Director/Designee shall review and, if approved, sign the citation.

   (3)  A copy of the citation and the advertising regulations shall be sent to the parties cited and when appropriate to licensing or regulatory agencies, or both. The citation letter shall set forth the following options:

   (i)  Admission of violation and payment of the appropriate civil penalty.

   (ii)  Denial of violation and request for formal hearing. Included in this option is the notice that failure to appear at the hearing will result in a default judgment.

   (iii)  Admission of some violations and payment of appropriate penalty and denial of others with a request for a formal hearing.

   (4)  Failure to respond or take any of the actions listed in this section within 15 days of service of the citation will result in a default judgment for the full amount of the penalty.

   (5)  Failure to pay a civil penalty could result in additional penalties, or a request for revocation, suspension or other disciplinary actions against licensees or other action including court proceedings which the Commission deems appropriate.

§ 45.303.  Administrative procedures.

   (a)  Upon receipt of a response to a citation, the housing staff shall record that response on the appropriate data base.

   (b)  Procedures will be established by the Commission to:

   (1)  Process checks and forward them when violations are admitted.

   (2)  Process checks and forward them when some violations are admitted and other violations are denied.

   (c)  When violations are admitted and payment is made, the following shall apply:

   (1)  The fact shall be noted in the record.

   (2)  The record shall be closed.

   (3)  A letter will be sent to the party cited advising of closing.

   (d)  When violations are denied, the following shall apply:

   (1)  The record shall note the denial.

   (2)  The hearing request will be forwarded to a citation officer.

   (3)  The party cited shall be advised.

   (4)  Staff counsel shall prepare the matter for hearing.

   (e)  If there is no response, a request for a default judgment shall be made to the citation officer.

   (f)  The conduct of the hearing by the citation officer in any of the circumstances listed in this section shall be governed by appropriate Commission regulations/requirements or these procedures, or both.

   (g)  All payments made as a result of a violation, whether the violation is admitted and payment made or the payment is made following an order of the citation officer, will be forwarded by the Commission to the Department of Revenue.

§ 45.304.  Hearing.

   (a)  An order following a hearing shall be issued by the citation officer who may:

   (1)  Order the payment of the amount of the citation.

   (2)  Modify the amount of payment.

   (3)  Dismiss the citation.

   (4)  Order remedial actions or reasonable costs, or both.

   (5)  Order other appropriate equitable relief as authorized by the act.

   (b)  Orders affirming two or more violations shall be referred to appropriate licensing or regulating agencies for action as they deem appropriate.

§ 45.305.  Appeals.

   A decision by the citation officer may be appealed by a party by filing an application for review with the Commission within 30 days of the mailing date of the order. An application for review shall set forth with specificity the grounds for appeal. The Commission will review the record established and in its discretion receive additional evidence.

§ 45.306.  Enforcement of orders/nonpayment of civil penalties/default judgment.

   Requests for enforcement of nonpayment of civil penalties/default judgment shall be made to the Commission and filed with the appropriate court when approved by the Commission.

§ 45.307.  Schedule of civil penalties.

   A single advertisement shall be cited as a single citation regardless of the number of unlawful words and phrases within that single advertisement. An advertisement shall be cited only once, for the publication of the same advertisement, run a reasonable number of days in the course of the contract with the newspaper or other publication for that advertisement. If the unlawful advertisement is placed again in a newspaper or other publication, or is not withdrawn reasonably upon service of citation, it may be cited a second time. Both the publisher and the advertiser are subject to liability.

   (1)  Penalties. The following penalties apply:

First Citation	$250
Second Citation	$500
Third Citation	Formal Process

   (b)  Formal process:  When, in the Commission's judgment, the action of a party in the event of a third citation warrants, the Commission will have the following options:

   (i)  To impose a maximum penalty on a multiple basis.

   (ii)  To file a Commission initiated complaint.

   (iii)  To seek legal recourse, including those under section 11 of the act (43 P. S. § 961).

§ 45.308.  Form.

COMMONWEALTH OF PENNSYLVANIA
PENNSYLVANIA HUMAN RELATIONS COMMISSION
101 SOUTH SECOND STREET, SUITE 300
HARRISBURG, PA 17101-2515

CITATION

READ THE ATTACHED PLEA AND THE EXPLANATION OF YOUR RIGHTS AND OBLIGATIONS FOR SETTLEMENT OF THIS MATTER. YOU MUST ELECT AN OPTION AND FOLLOW THE APPROPRIATE DIRECTIONS WITH FIFTEEN (15) DAYS TO AVOID FURTHER LEGAL ACTION AGAINST YOU.

SHOULD YOU ELECT TO DEMAND A HEARING ON THIS MATTER, FOLLOW THE INSTRUCTIONS ON THE ATTACHED PLEA. YOUR HEARING DATE WILL BE SET BY A HEARING OFFICER. ALL HEARINGS ARE HELD IN HARRISBURG IN THE PENNSYLVANIA HUMAN RELATIONS COMMISSION CONFERENCE ROOM.

NOTICE OF RIGHTS AND OBLIGATIONS

1.	The original of this citation will be filed with the Housing Director of the Pennsylvania Human Relations Commission at Pennsylvania Human Relations Commission, Housing Division, 101 South Second Street--Suite 300, Harrisburg, PA 17105.
2.	Within fifteen (15) days of the issuance or receipt of this citation, you must:
	a.   ADMIT TO THE VIOLATION(S) by signing the appropriate plea below and mailing the entire Citation along with an amount equal to the Total Due as specified on the Citation (attached) to the Housing Director, at the address listed above, or;
	b.   DENY THE VIOLATION(S)
		i.   in whole by signing the appropriate plea as specified in Section (b) of the Plea (attached) and mailing the Citation to the Housing Director at the address listed specified above.
		ii.   in part by signing the appropriate plea as specified in section ''c'' of the Plea (attached) below and mailing the Citation to the Housing Director at the address specified above.
If you deny the violation(s), a formal hearing will be scheduled in Harrisburg at which you may present evidence on your behalf. Failure to appear at the formal hearing will result in the entry of a default judgment against you for the full amount of the civil penalty (''Total Due'') as specified on the citation.
3.	All payments must be made by certified or cashier's check or money order and made payable to the ''Commonwealth of Pennsylvania,'' and mailed to the Housing Director at the address specified above. Please place the Citation Number on certified or cashier's check or money order. Personal Checks WILL NOT be accepted.
4.	FAILURE TO RESPOND WITHIN THE TIME SPECIFIED ABOVE will result in the entry of a default judgment against you for the full amount of the civil penalty (''Total Due'') as specified on the Citation. Failure to pay a civil penalty could result in additional fines and the revocation, suspension or other disciplinary action against any license which you may hold.
__________
	a.	I ADMIT to the violation(s) on the reverse side of this Citation         ______         ______ Signature                     Date
	b.	I DENY the violation(s) on the reverse side of this Citation         ______         ______ Signature                     Date
	c.	I ADMIT to violations
		Enter Violation Number(s) here
		have enclosed the amount for these violations and DENY the remaining violation(s) on the reverse side of this Citation         _________________         ______ Signature                              Date
PLEASE PLACE THE CITATION NUMBER(S) ON YOUR CERTIFIED OR CASHIER'S CHECK OR MONEY ORDER

__________

Note:  A copy of the Pennsylvania Human Relations Commission's guidelines and policy statement on advertising pursuant to Act 34 is attached and incorporated by reference here unto.

[Pa.B. Doc. No. 99-1370. Filed for public inspection August 20, 1999, 9:00 a.m.]

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