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Teen Challenge of Kentucky, Inc. v. The Kentucky Commission On Human Rights

Court of Appeals of Kentucky

December 7, 2018

TEEN CHALLENGE OF KENTUCKY, INC. APPELLANT
v.
THE KENTUCKY COMMISSION ON HUMAN RIGHTS, GEORGE W. STINSON, ROBERT ASSEO, DUANE BONIFER, RICHARD BROWN, DORIS CLARK-STARR, SAMUEL R. COLEMAN JR., HENRY CURTIS, ANTHONY EVERETT, CAROL L. JACKSON SANDRA D. MOORE, TIMOTHY W. THOMAS, & THE LEXINGTON FAIR HOUSING COUNCIL, INC. APPELLEES

          APPEAL FROM JEFFERSON CIRCUIT COURT HONORABLE SUSAN SCHULTZ GIBSON, JUDGE ACTION NO. 16-CI-001910

          BRIEF AND ORAL ARGUMENT APPELLANT Joshua S. Harp Frankfort, Kentucky

          BRIEF AND ORAL ARGUMENT: FOR APPELLEES: Keith D. Duerr Louisville, Kentucky

          BEFORE: JOHNSON, [1] JONES, AND KRAMER, JUDGES.

          OPINION

          JONES, JUDGE.

         The Appellant, Teen Challenge of Kentucky Inc., ("Teen Challenge"), appeals from the October 11, 2016 order of the Jefferson Circuit Court. Therein, the circuit court dismissed Teen Challenge's petition for writ of mandamus. Having reviewed the record and applicable law, for the reasons more fully explained below, we REVERSE and REMAND.

         I. The Parties

         A. Teen Challenge

         Teen Challenge is a Kentucky nonprofit corporation. It operates two religiously-based, residential addiction recovery treatment centers in Kentucky, one for women and one for men. The women's center, Priscilla's Place, is located in Louisville, Kentucky. The men's center, Chad's Hope, is located in Manchester, Kentucky. As a condition for admittance, Teen Challenge requires applicants to agree to participate in Christian assemblies. Additionally, all applicants must be physically fit enough to climb stairs and perform chores and cannot be taking prescription medications for mental health. Female applicants cannot be pregnant.

         B. The Lexington Fair Housing Council

         The Lexington Fair Housing Council ("Council") is a nonprofit civil rights agency that investigates complaints of housing discrimination throughout Kentucky. Individuals who believe they have been the victims of housing discrimination in Kentucky may contact the Council. The Council investigates the complaints. If the Council determines that the complaints are valid, it assists the individuals in filing complaints in court, with the Commission, and/or with the U.S. Department of Housing and Urban Development ("HUD").

         C. The Kentucky Commission on Human Rights

         The Kentucky Commission on Human Rights ("Commission") is a state agency. It was created by the General Assembly in 1960. See KRS 344.150. The Commission consists of eleven members. Id. The members are appointed for three-year terms by the Governor. Id. The Governor also selects one of the eleven members to serve as the chairperson. Id. During the relevant time period, George Stinson was serving as the chairperson of the Commission. The Commission's purpose is "to encourage fair treatment for, to foster mutual understanding and respect among and to discourage discrimination against any racial or ethnic group or its members." KRS 344.170. Among other powers, the Commission is vested with the authority to "to receive and investigate complaints relating to discrimination, to offer recommendations to eliminate any injustices it discovers, and to hold public hearings and request the attendance of witnesses." Owen v. Univ. of Ky., 486 S.W.3d 266, 269 (Ky. 2016) (citing KRS 344.180 and KRS 344.190)).

         KRS 344.600 governs complaints filed before the Commission alleging discriminatory housing practices. Such complaints must be filed with the Commission "not later than one (1) year after an alleged discriminatory housing practice has occurred or terminated[.]" KRS 344.600(1)(a)1. After a housing discrimination complaint has been filed, the Commission "shall within five (5) days serve written notice upon the aggrieved person acknowledging the filing and advising the aggrieved person of the time limits and choice of forums provided in KRS 344.635."[2] KRS 344.600(1)(b)1. Within ten days of the complaint, the Commission must "serve on the respondent a written notice identifying the alleged discriminatory housing practice and advising the respondent of the procedural rights and obligations of respondents under this chapter, together with a copy of the original complaint." KRS 344.600(1)(b)2. The respondent has ten days after receiving the Commission's notification to file an answer. KRS 344.600(1)(b)3.

         The Commission "shall commence an investigation of the alleged discriminatory housing practice within thirty (30) days of filing the complaint and complete the investigation within one hundred (100) days after the filing of the complaint, unless it is impracticable to do so." KRS 344.600(1)(b)4. "If the [C]ommission is unable to complete the investigation within one hundred (100) days after the filing of the complaint, the [C]ommission shall notify the complainant and respondent in writing of the reasons for not doing so." KRS 344.600(1)(c). Following its investigation, "[t]he [C]ommission shall determine, based on the facts, whether probable cause exists to believe that a discriminatory housing practice made unlawful under this chapter has occurred or is about to occur." KRS 344.625(1). The Commission "shall" make its probable cause determination "not later than the one hundredth day after the date a complaint is filed unless: (a) It is impracticable to make the determination; or (b) The [C]ommission has approved a conciliation agreement relating to the discriminatory housing complaint." KRS 344.625(2). "If it is impracticable to make the determination within the time period provided by subsection (2) of this section, the [C]ommission shall notify the complainant and respondent in writing of the reasons for the delay." KRS 344.625(3).

         "If the [C]ommission determines that probable cause exists to believe that a discriminatory housing practice has occurred or is about to occur, the [C]ommission shall, except as provided in subsection (6) of this section, immediately issue a charge on behalf of the aggrieved person for further proceeding under KRS 344.635." KRS 344.625(4). "If the [C]ommission determines that no probable cause exists to believe that a discriminatory housing practice has occurred or is about to occur, the [C]ommission shall promptly dismiss the complaint. The [C]ommission shall make public disclosure of each dismissal at the request of the respondent." KRS 344.625(7).[3]

         After the Commission issues a discriminatory housing charge, the Commission shall cause a copy thereof, together with information as to how to make an election of an administrative or judicial choice of forum under KRS 344.635, and the effect of such election, to be served on each respondent named in the charge, together with a written notice of opportunity for a hearing at a time and place specified in the notice, unless that election is made, and on each aggrieved person on whose behalf the discriminatory housing complaint was filed. See KRS 344.630. When a discriminatory housing charge is filed, a complainant, a respondent, or the aggrieved person on whose behalf the complaint is filed, may elect to have the claims asserted in that charge decided in a civil action under KRS 344.670, in lieu of an administrative hearing before the Commission under KRS 344.640. See KRS 344.635. This election must be made not later than twenty days after the receipt by the electing person of service under KRS 344.630, from the Commission or, in the case of the Commission, not later than twenty days after service to the respondent and complainant. Id.

         Assuming that no election is made to have the matter decided in a civil action, the Commission must provide an opportunity for an administrative hearing in accordance with KRS Chapter 13B with respect to the charge issued under KRS 344.625. See KRS 340.640. Following the administrative hearing, the Commission must determine whether the respondent engaged in discriminatory conduct. See KRS 344.645. Thereafter, "the Commission shall issue a final order in accordance with the provisions of KRS Chapter 13B." Id. "If the [C]ommission finds that a respondent has engaged or is about to engage in a discriminatory housing practice, the [C]ommission shall promptly issue a final order for appropriate relief, which may include actual damages suffered by the aggrieved person and injunctive or other equitable relief." KRS 344.645. "If the [C]ommission finds that the respondent has not engaged or is not about to engage in a discriminatory housing practice, the [C]ommission shall enter a final order dismissing the charge." KRS 344.645(3).

         D. HUD

         While HUD is not a party to this appeal, it is necessary to understand how HUD and the Commission overlap when a complaint is filed with both agencies. HUD is an agency of the federal government. It was established by the Department of Housing and Urban Development Act of 1965. One of HUD's charges is to enforce the Fair Housing Act, 42 U.S.C. § 3601, et seq., which applies to almost all housing in the country. The Fair Housing Act prohibits discrimination in housing based on race, color, religion, sex, national origin, disability, or familial status.

         Like the Commission, HUD receives complaints from individuals regarding claims of housing discrimination. Pursuant to 42 U.S.C.[4] § 3610(f), HUD refers complaints to state agencies, like the Commission,

(1) Whenever a complaint alleges a discriminatory housing practice-
(A) within the jurisdiction of a State or local public agency; and
(B) as to which such agency has been certified by the Secretary under this subsection[.]

Id. If both of the above criteria are present, "the Secretary shall refer such complaint to that certified agency before taking any action with respect to ...


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