ALP

*State law references: Municipal power to investigate discriminatory practices, SDCL 20-12-4.

ARTICLE I. IN GENERAL

Sec. 21 1/2-1. Definitions.

The following words, terms and phrases, when used in this chapter, shall have the meanings ascribed to them in this section, except where the context clearly indicates a different meaning:

Complainant means a person for or on whose behalf a complaint alleging unlawful discrimination has been filed or issued.

Disability means a physical or mental impairment of a person resulting from disease, injury, congenital condition of birth or functional disorder which substantially limits one or more of the person's major life functions; a record of having such an impairment; or being regarded as having such an impairment which:

(1) For purposes of section 21 1/2-3(1) through (3), inclusive, is unrelated to an individual's ability to perform the major duties of a particular job or position, or is unrelated to an individual's qualifications for employment or promotion.

(2) For purposes of section 21 1/2-3(4) and (8) is unrelated to an individual's ability to acquire, rent, or maintain property.

(3) For purposes of section 21 1/2-3(5) and (6) is unrelated to an individual's ability to utilize and benefit from opportunities, programs, and facilities of such accommodations and services.

Discrimination means any unlawful act or attempted unlawful act which, because of race, color, sex, creed, religion, ancestry, national origin, familial status or disability, results in the unequal treatment or separation or segregation of any person or denies, prevents, limits, or otherwise adversely affects or if accomplished would deny, prevent, limit, or otherwise adversely affect the benefit or enjoyment by any person of employment, membership in a labor organization, ownership or occupancy of real property, a public accommodation, a public service, or an educational institution. Such discrimination is unlawful and is a violation of this chapter.

Educational institution means any university, college, or school operating within the city including any school, institution, or organization for vocational training, but the term shall not apply to the students of, or the education provided by, any school maintained and operated by a religious corporation, or association solely for the benefit of its own membership.

Employ means to use or be entitled to the use and benefit of the services of a person as an employee.

Employee means any and all persons who perform services for any employer for compensation, whether in the form of wages, salary, commission, or otherwise.

Employer means any person within the city who hires or employs any employee, and any person wherever situated who hires or employs any employee whose services are to be partially or wholly performed in the city, but the word "employer" shall not include any person with respect to the hiring or employment of a household domestic servant, or any religious corporation, association or society with respect to the hiring or employment of individuals of a particular religion, when religion shall be a bona fide occupational qualification for employment, provided such selection is not based on race, color, ancestry or national origin or disability.

Employment agency means any person regularly undertaking, with or without compensation, to procure employees for any employer or to procure for employees opportunities to work for any employer and includes any agent of such a person.

Familial status means the relationship of individuals by birth, adoption, or guardianship who are domiciled together.

Hire means to engage or contract for or attempt to engage or contract for the services of any person as an employee.

Labor organization means any person, employee representation committee, or plan in which employees participate and which exists wholly or in part for the purpose of dealing with employers concerning grievances, labor disputes, wages, rates of pay, hours or other terms or conditions of employment and shall include any conference, general committee, joint or system board, or joint council.

Lawyer means a person duly authorized and licensed by the state to engage in the practice of law.

Person includes one or more individuals, partnerships, associations, corporations, unincorporated organizations, mutual companies, joint stock companies, trusts, agents, legal representatives, trustees, trustees in bankruptcy, receivers, labor organizations, public bodies, public corporations, and the state and all political subdivisions and agencies thereof.

Public accommodations means the services and facilities of any and all places of business within the city engaged generally in the provision of services or goods to the public or soliciting generally the public patronage, including, without limitation, theaters, hotels, motels, restaurants, taverns, barbershops, beauty shops, insurance companies, lending organizations, financial institutions, and carriers.

Public services means the services or facilities provided within the city to the general public including those provided by any public facility, department, agency, board or commission, owned, operated or managed by or on behalf of the state, any political subdivision thereof, or any other public corporation.

Real estate broker; real estate salesperson means a real estate broker and a real estate salesperson as defined by state law.

Real property means any right, title, interest in or to the possession, ownership, enjoyment, or occupancy of any parcel of land, any building situated thereon, or any portion of such building in the city.

Respondent means a person against whom a complaint alleging unlawful discrimination has been filed or issued.

(1957 Rev. Ords., § 2.1802; Ord. No. 2700, 8-17-70; Ord. No. 52-73, § 1, 6-25-73; Ord. No. 22-81, §§ 1--4, 3-16-81; Ord. No. 63-86, § 1, 6-23-86; Ord. No. 51-91, § 1, 6-10-91; Code 1972, § 13-1)

Sec. 21 1/2-2. Declaration of policy and purpose.

(1) That discriminatory practices based on race, color, sex, creed, religion, ancestry, national origin, familial status, or disability with respect to employment, labor union membership, housing accommodations, property rights, education, public accommodations, and public services, or any of them, tend to create and intensify conditions of poverty, ill health, unrest, lawlessness, and vice and adversely affect the public health, safety, order, convenience, and general welfare; the rights, privileges and opportunities threatened by such discriminatory practices are hereby declared to be civil rights;

(2) To declare as civil rights the rights of all persons to the fullest extent of their capacities, and without regard to race, color, sex, creed, religion, ancestry, national origin, familial status, or disability, equal opportunities with respect to employment, labor union membership, housing accommodations, property rights, education, public accommodations and public services;

(3) To prevent and prohibit any and all discriminatory practices based on race, color, sex, creed, religion, ancestry, national origin, familial status, or disability, with respect to employment, labor union membership, housing accommodations, property rights, education, public accommodations, or public services;

(4) To protect all persons from unfounded charges of discriminatory practices; and

(5) To effectuate this policy by means of public information and education, mediation and conciliation, and enforcement.

(1957 Rev. Ords., § 2.1801; Ord. No. 2700, 8-17-70; Ord. No. 52-73, § 2, 6-25-73; Ord. No. 63-86, § 2, 6-23-86; Ord. No. 51-91, § 2, 6-10-91; Code 1972, § 13-2)

Sec. 21 1/2-3. Act of discrimination.

(1) For an employer, because of race, color, sex, creed, religion, ancestry, national origin, or disability, to fail or refuse to hire, to discharge an employee, or to accord adverse, unlawful or unequal treatment to any person or employee with respect to application, hiring, training, apprenticeship, tenure, promotion, upgrading, compensation, layoff, discharge, or any term or condition of employment.

(2) For an employment agency, because of race, color, creed, religion, sex, ancestry, disability or national origin, to accord adverse or unequal treatment to any person in connection with any application for employment, any referral, or any request for assistance in procurement of employees, or to accept any listing of employment on such a basis.

(3) For any labor organization, because of race, color, sex, creed, religion, ancestry, national origin, or disability, to deny full and equal membership rights to an applicant for membership or to a member; to expel, suspend or otherwise discipline a member; or to accord adverse, unlawful or unequal treatment to any person with respect to his hiring, apprenticeship, training, tenure, compensation, upgrading, layoff or any term or condition of employment.

(4) For any owner of rights to housing or real property, or any person acting for an owner, with or without compensation, including any person licensed as a real estate broker or salesman, attorney, auctioneer, agent or representative by power of attorney or appointment, or to any person acting under court order, deed of trust, or will, because of race, color, sex, creed, religion, ancestry, national origin, familial status, or disability, to fail or refuse to sell, rent, assign, or otherwise transfer any real property to any other person, or to accord adverse, unlawful, or unequal treatment to any person with respect to the acquisition, occupancy, use, and enjoyment of any real property. The provisions of this section do not apply to rooms or units in dwellings that contain living quarters for no more than two families living independently of each other, if the owner maintains and occupies one of the living quarters as his residence.

a. For the purposes of determining discrimination based on familial status, a family is one or more individuals under the age of 18 who are domiciled with their parent, legal custodian, or person granted custody with permission of the parent or custodian. This definition includes a person who is pregnant or in the process of securing custody of a person under the age of 18. Discrimination based on familial status applies to housing accommodations only.

b. The provisions of this section as they refer to familial status do not apply to residences publicized as specifically designated for older or disabled residents and if:

2. The residences are intended for and solely occupied by persons 62 years of age or older; or

3. Facilities and services for the residence are designed to meet the needs of the elderly, and at least 80 percent of the units occupied or intended to be occupied by one or more persons 55 years of age or older.

c. It is an unfair or discriminatory practice to design or construct for first occupancy any multifamily dwelling with more than four units for sale, rent, lease, assignment, sublease, or transfer that does not enable accessibility to ground floor common areas and usability of ground floor housing units by disabled persons or by wheelchairs. If the building has elevators, all housing units and common areas shall be usable by disabled persons and persons in wheelchairs. The accommodations may include widened doors, lowered electrical switches and outlets, lowered environmental controls, grab bars or reinforcements, kitchens and bathrooms usable by the disabled. Nothing in this subsection may be construed to require prior approval of plans for construction by the commission on human relations.

d. It is also discriminatory to refuse to permit at the expense of the disabled person reasonable modifications of existing property that may be necessary to afford full enjoyment of the property. The landlord may, where it is reasonable to do so, condition permission for remodification on the renter's agreeing to restore the premises to the condition that existed prior to the modification, reasonable wear and tear excepted.

(5) For any person engaged in the provision of public accommodations, because of race, color, sex, creed, religion, ancestry, national origin, or disability, to fail or refuse to provide to any person access to the use of and benefit from the services and facilities of such public accommodations; or to accord adverse, unlawful, or unequal treatment to any person with respect to the availability of such services and facilities, the price or other consideration therefor, the scope and quality thereof, or the terms and conditions under which such are made available, including terms and conditions relating to credit, payment, warranties, delivery, installation, and repair.

(6) For any person engaged in the provision of public services, because of race, color, sex, creed, religion, ancestry, national origin, or disability, to fail or refuse to provide to any person access to the use and benefit thereof, or the terms and conditions under which such are made available.

(7) For any person, because of race, color, sex, creed, religion, ancestry, national origin, or disability, directly or indirectly, to conceal any unlawful discrimination; to aid, abet, compel, coerce, incite or induce another person to discriminate; or by any means, trick, artifice, advertisement or sign, to use any form of application, or make any record or inquiry, or device whatsoever to bring about or facilitate discrimination; or to engage in or threaten to engage in any reprisal, economic or otherwise, against any person because of the latter's filing a charge, testifying or assisting in the observance and support of the purposes and provisions of this chapter.

(8) For any person, bank, banking organization, mortgage company, insurance company, or other financial institution or lender to whom application is made for financial assistance for the purchase, lease, acquisition, construction, rehabilitation, repair, or maintenance of any real property or any agent or employee thereof to discriminate against any person or group of persons, because of the race, color, sex, creed, religion, ancestry, national origin, or disability of such person or group of persons or of the prospective occupants or tenants of such real property in the granting, withholding, extending, modifying, renewing, or in the rates, terms, conditions, and the extension of services in connection therewith.

(9) Wherever religious organizations or bodies are exempt from any of the provisions of this chapter, such exemption shall apply only to religious qualifications for employment or residence in church-owned or -operated property, and such organizations shall not be exempt from any provisions of this chapter relating to discrimination based upon race, color, sex, ancestry, national origin, familial status or disability.

(10) Nothing contained in this chapter shall apply to any business or enterprise on or near an Indian reservation with respect to any publicly announced employment practice of such business or enterprise under which a preferential treatment is given to any individual because the individual is an Indian living on or near a reservation.

e. Person acting on behalf of any of the persons listed in subsections (11)a.--d. of this section, with or without compensation, including but not limited to any person licensed as a real estate broker or salesman, attorney, auctioneer, agent, or representative by power of attorney or appointment;

to modify property in any way, incur any additional expenses, or exercise a higher degree of care for persons having a disability than for a person who does not have a disability nor does this chapter relieve any person of any obligations generally imposed on all persons, regardless of any disability, in a written lease, rental agreement, or contract of purchase or sale, or to forbid distinctions based on the inability to fulfill the terms and conditions, including, but not limited to, financial obligations of the lease, agreement or contract.

(1957 Rev. Ords., § 2.1803; Ord. No. 2700, 8-17-70; Ord. No. 52-73, § 3, 6-25-73; Ord. No. 22-81, §§ 5--7, 3-16-81; Ord. No. 63-86, § 3, 6-23-86; Ord. No. 51-91, § 3, 6-10-91; Code 1972, § 13-3)

Sec. 21 1/2-4. Contracts with city.

The city and all of its contracting agencies, departments, and units shall include in all contracts entered into or renewed or extended provisions whereby each other contracting party agrees that:

(1) With respect to any and all business conducted or acts performed pursuant to such contract, such other contracting party shall be deemed an employer within the meaning of this chapter and shall be subject to the provisions of this chapter.

(2) If such other contracting party fails to perform the contractual provisions, the contract may forthwith be terminated and cancelled in whole or in part by the city, and the other contracting party shall be liable for any costs or expense incurred by it in obtaining from other sources the work and services to be rendered or performed or the goods or properties to be furnished or delivered to the city under the contract so terminated or cancelled.

(3) Should the commission on human relations in a proceeding brought as provided in this chapter find that the contracting party has engaged in discrimination in connection with any such contract and issue a cease and desist order with respect thereto, the city shall withhold up to 15 percent of the contract price until such time as the commission's order has been complied with or the other contracting party has been adjudicated not guilty of such discrimination.

(4) Such other contracting party will permit access to any and all records pertaining to hiring and employment and to other pertinent data and records for the purpose of enabling the commission on human relations, its agencies or representatives, to ascertain compliance with the provisions of this chapter applicable to such other contracting party.

Sec. 21 1/2-5. Responsibilities and duties of city employees.

All officials, commissioners, agents, employees and servants of the city, elected and appointed, including civil service employees, and whether serving with or without compensation, shall observe the terms and provisions of this chapter and shall, except as expressly prohibited by law, respond promptly to any and all requests by the commission on human relations for information and for access to data and records for the purpose of enabling the commission to carry out its responsibilities under this chapter. The failure of any such official, commissioner, agent, employee or servant of the city to comply with any provision of this chapter relating to any matter within the scope of his official duties shall be deemed a violation of this chapter.

Sec. 21 1/2-6. Good faith accommodation of disabled.

For the purposes of employment, public accommodation, public service, and education or housing, good faith efforts shall be made to reasonably accommodate the disabled person unless the accommodation would impose undue hardship.

Secs. 21 1/2-7--21 1/2-15. Reserved.

ARTICLE II. COMMISSION ON HUMAN RELATIONS*

State law references: Local commission on human relations, SDCL 20-12-5 et seq.; state commission of human rights, SDCL 20-13-2 et seq.

Sec. 21 1/2-16. Created.

There is hereby created a commission on human relations of the city for the purpose of carrying forward the policies of the city in the field of human relations, to promote civil rights, and to enforce the provisions of this chapter.

Sec. 21 1/2-17. Composition.

The commission on human relations shall consists of 11 voting members. The chair of the disability awareness commission shall act as a non-voting member. Each member of the commission shall be a resident of the city.

(1957 Rev. Ords., § 2.1806; Ord. No. 2700, 8-17-70; Ord. No. 11-88, § 1, 2-8-88; Ord. No. 90-88, § 1, 10-17-88; Code 1972, § 13-17; Ord. No. 100-95, § 1, 7-17-95; Ord. No. 26-99, § 9, 3-1-99; Ord. No. 13-01, § 1, 2-12-01)

Sec. 21 1/2-18. Appointment.

The members of the commission on human relations shall be appointed by the mayor with due regard being given to representation of minorities on the commission.

(1957 Rev. Ords., § 2.1806; Ord. No. 2700, 8-17-70; Ord. No. 58-87, § 1, 7-27-87; Code 1972, § 13-18; Ord. No. 153-95, § 1, 12-18-95)

Sec. 21 1/2-19. Terms.

Members of the commission on human relations shall be appointed for five-year staggered terms to expire on May 1 of the fifth year of their terms and shall serve no more than two consecutive or partial terms of office.

(1957 Rev. Ords., § 2.1806; Ord. No. 2700, 8-17-70; Code 1972, § 13-19; Ord. No. 153-95, § 2, 12-18-95)

Sec. 21 1/2-20. Reserved.

Sec. 21 1/2-21. Filling of vacancies.

Any vacancy occurring in the membership of the commission on human relations occasioned by resignation, death or removal shall be filled for the balance of the unexpired term in the same manner as provided for the original appointment.

Sec. 21 1/2-22. Compensation.

Members of the commission on human relations shall serve as such without compensation.

Sec. 21 1/2-23. Officers.

At the first regular meeting of the commission on human relations in May of each year, the commission shall designate from its number a chair, a vice chair, and a secretary, each of whom shall serve until the first meeting of the commission in May of the following year. The vice chair shall act in the absence or disability of the chair.

(1957 Rev. Ords., § 2.1806; Ord. No. 2700, 8-17-70; Ord. No. 22-81, § 8, 3-16-81; Code 1972, § 13-23; Ord. No. 153-95, § 3, 12-18-95)

Sec. 21 1/2-24. Meetings.

The commission on human relations shall meet at such times and places as may be determined by the commission, by standing or special rule, or on call of the chair.

Sec. 21 1/2-25. Quorum.

Five members of the commission on human relations shall constitute a quorum for probable cause determination pursuant to section 21 1/2-31. Three members of the commission shall constitute a quorum for public hearing panels pursuant to section 21 1/2-33. A majority of the voting members then holding a current appointment shall constitute a quorum for the transaction of all other business.

(1957 Rev. Ords., § 2.1806; Ord. No. 2700, 8-17-70; Ord. No. 19-88, § 1, 3-7-88; Code 1972, § 13-25; Ord. No. 13-01, § 1, 2-12-01)

Sec. 21 1/2-26. Rules, regulations.

The commission on human relations, with the approval of the city council, shall adopt suitable rules and regulations for the conduct of its operations and the effectuation of the purposes of this chapter.

(1957 Rev. Ords., § 2.1806; Ord. No. 2700, 8-17-70; Ord. No. 22-81, § 9, 3-16-81; Code 1972, § 13-26)

Sec. 21 1/2-27. Appointment of committees.

The commission on human relations shall designate and appoint such additional committees as it may from time to time deem appropriate. The membership of such committees may consist of both members and nonmembers of the commission or may consist entirely of nonmembers of the commission. Such committees shall assist and advise the commission in carrying out the objectives of this chapter.

Sec. 21 1/2-28. Substantive and procedural powers and duties.

(1) Seek to prevent and eliminate bias and discrimination because of race, color, sex, creed, religion, ancestry, national origin, familial status, or disability by means of education, persuasion, conciliation, and enforcement, and utilize all the powers at its disposal to carry into execution the provisions of this chapter.

(2) Conduct or direct a program of research and study for the purpose of ascertaining how the objectives of this chapter may best be attained and sustained.

(4) Advise the mayor, the city commission and departments or agencies of government with respect to matters relating to the commission's purposes.

(5) Cooperate with and seek to advise and coordinate the activities of persons or groups interested in the objectives of this chapter.

(6) Receive or, on the basis of its own information, initiate complaints alleging discrimination and conduct such investigations and inquiries as may reasonably appear necessary to find the facts with respect thereto.

(7) Conduct public meetings and hearings, gather and disseminate information to governmental agencies and to the public.

(8) Utilize the records and services of municipal, state and federal governmental departments and agencies to the extent permitted by law, and pursuant to agreement with departments and agencies may refer matters for preliminary inquiry, conciliation, hearings and findings.

(9) Furnish to any appropriate state or federal agency having jurisdiction in the premises a transcript of the proceedings and findings in any case in which a court of competent jurisdiction or the commission has, after hearings, found that any person has unlawfully discriminated.

(10) Execute programs of compliance review designed to determine whether persons who contract with the city are observing the terms of this chapter; and to that end the commission shall have power to require such persons to submit such periodic reports concerning hiring, compensation, promotion and discharge policies and the racial, religious, and national composition of their work forces as they shall deem necessary, and failure to provide such information shall constitute grounds for the city to revoke any contract in effect between the city and the person so failing to comply.

(1957 Rev. Ords., § 2.1806; Ord. No. 2700, 8-17-70; Ord. No. 52-73, § 4, 6-25-73; Code 1972, § 13-28)

Sec. 21 1/2-29. Filing complaint.

Any person claiming to be aggrieved by a discriminatory practice may file with the commission on human relations a verified written complaint which shall state the name and address of each person complained against (respondent) and shall set forth the pertinent facts as known to the complainant. Whenever the commission has information indicating that any person has discriminated, it may issue and file a verified complaint.

The city may, however, dismiss a complaint if the complainant fails to state a claim upon which relief can be granted or if the city determines the complaint has been abandoned or withdrawn.

(1957 Rev. Ords., § 2.1807; Ord. No. 2700, 8-17-70; Ord. No. 55-76, § 1, 6-21-76; Code 1972, § 13-29; Ord. No. 89-01, § 1, 10-9-01)

Sec. 21 1/2-30. Service of respondent and answer.

Promptly upon the filing of any complaint the commission on human relations shall serve a copy thereof, by personal service or registered or certified mail, upon the respondent. Respondent shall file a written answer thereto within ten calendar days after receipt thereof or within any period of extension granted by the representative of the city as designated by the human relations commission.

(1957 Rev. Ords., § 2.1807; Ord. No. 2700, 8-17-70; Ord. No. 52-73, § 5, 6-25-73; Ord. No. 55-76, § 2, 6-21-76; Ord. No. 22-81, § 10, 3-16-81; Ord. No. 52-81, § 1, 6-15-81; Ord. No. 53-88, § 1, 6-27-88; Code 1972, § 13-30; Ord. No. 153-95, § 4, 12-18-95)

Sec. 21 1/2-31. Determination of probable cause.

(a) The commission on human relations shall proceed to make such investigation as it may deem appropriate to determine whether there is probable cause to believe that the allegations of discrimination are well founded. If there is no probable cause to believe that the allegations of discrimination are well founded, the commission shall dismiss the complaint. If, after investigation, it is found that probable cause to believe that the allegations of discrimination are well founded, the commission shall transmit the finding of probable cause, along with the reasons for such finding and a recitation of the evidence and names of witnesses that support such finding, to both complainant and respondent. Both complainant and respondent shall be permitted to inspect any documents not prepared by the commission in the files of the commission that are relevant to the determination of probable cause. If there is probable cause to believe that the allegations of discrimination are well founded, and the matter has not been satisfactorily resolved, the parties shall be served notice of the time and place of a conciliation conference by personal service or registered or certified mail at least five business days prior thereto.

(b) No later than 20 days after notice of the finding of probable cause and prior to hearing, the complaining party or the respondent may elect to have the claims asserted in the complaint decided in a circuit court in lieu of a hearing before the commission. Parties shall be notified of their right to this election in the notice of the finding of probable cause. Upon receipt of notice of election, the commission on human relations shall have no further jurisdiction over the parties concerning the charge filed. In a civil action, if a court or jury finds that an unfair or discriminatory practice has occurred, it may award the charging party compensatory damages. The court may grant as relief any injunctive order including affirmative action. Punitive damages may be awarded under SDCL 21-3-2 for a violation of this chapter as they pertain to housing. Attorney's fees and costs may be awarded to the prevailing party for housing matters.

(1957 Rev. Ords., § 2.1807; Ord. No. 2700, 8-17-70; Ord. No. 55-76, § 3, 6-21-76; Ord. No. 22-81, § 11, 3-16-81; Ord. No. 51-91, § 4, 6-10-91; Code 1972, § 13-31)

Sec. 21 1/2-32. Conciliation.

The conciliation conference shall be conducted by a representative of the city, who shall attempt to achieve a just resolution and obtain assurances that the respondent will eliminate unfair or discriminatory practices and take appropriate affirmative action. The settlement terms shall be set forth in a conciliation agreement which shall be signed by the complainant, respondent and the human relations commission chairman.

(1957 Rev. Ords., § 2.1807; Ord. No. 2700, 8-17-70; Ord. No. 55-76, § 4, 6-21-76; Ord. No. 22-81, § 12, 3-16-81; Code 1972, § 13-32; Ord. No. 153-95, § 5, 12-18-95)

Sec. 21 1/2-33. Public hearing.

(a) If the matter before the commission on human relations cannot be resolved by the conciliation conference panel, it shall be set down for public hearing. The parties shall be served notice of the time and place of a public hearing by personal service or registered or certified mail at least ten days prior thereto. The notice shall include a statement informing the parties of their right to transfer the matter to the circuit court as provided in section 21 1/2-31(b). The public hearing shall be conducted by a public hearing panel which shall be composed of three commissioners, none of whom shall have been involved in the investigation, determination of probable cause, or conciliation.

(b) The public hearing panel shall have authority to conduct prehearing conferences, to subpoena witnesses to appear, testify and produce records, books, papers and other documents, to administer oaths, to take testimony, to receive evidence, to examine and cross examine witnesses, and issue orders authorized by this chapter.

(c) Both complainant and respondent shall appear in person at the hearing and may be represented by counsel. Both may, in accordance with such order of procedures as may be determined by the public hearing panel, present evidence, call witnesses and present arguments bearing upon the facts alleged in the complaint.

(d) All witnesses, including complainant and respondent, may be examined and cross examined. The public hearing panel shall not be bound by the strict rules of evidence applicable to judicial proceedings, but its findings must be based upon competent evidence. Each witness at the hearing shall testify under oath. A stenographic record shall be made of the proceedings or an electronic device may be used. In a judicial review, the commission may, upon request, furnish the complainant and respondent each with a copy of the transcript of the hearing without charge.

(1957 Rev. Ords., § 2.1807; Ord. No. 2700, 8-17-70; Ord. No. 52-73, § 6, 6-25-73; Ord. No. 55-76, § 5, 6-21-76; Ord. No. 22-81, § 13, 3-16-81; Ord. No. 51-91, § 5, 6-10-91; Code 1972, § 13-33)

Sec. 21 1/2-34. Dismissal of complaint.

(a) If the commission on human relations determines that allegations of discrimination are not well founded, that the unlawful act or practice complained of has been satisfactorily eliminated and that further proceedings are unnecessary, or the allegations complained of are being processed or have been decided upon, to the satisfaction of the commission by another agency or court, it may order the dismissal of the complaint. It shall within five days of such determination serve notice of the order upon the complainant and respondent by personal service or registered or certified mail.

(b) The public hearing panel may also take and direct such affirmative action as in the judgment of the public hearing panel will effectuate its purposes. The powers of the public hearing panel are coextensive with the powers of the state human rights commission as set forth in SDCL 20-13-42. These powers include awarding compensation incidental to the violation other than pain and suffering, punitive or consequential damages; costs allowed under SDCL ch. 15-17 and any other appropriate relief including reasonable attorney fees for housing matters as in the judgment of the public hearing panel will effectuate the purposes of this chapter.

(c) Further, the public hearing panel may order the respondent to cease and desist from discriminatory or unfair practices and to take such affirmative action including hiring, reinstatement, or upgrading of employees with or without back pay, the referring of applicants for employment by any respondent employment agency, and the remittance or restoration of membership by any respondent labor organization.

(1957 Rev. Ords., § 2.1807; Ord. No. 2700, 8-17-70; Ord. No. 55-76, § 6, 6-21-76; Ord. No. 51-91, § 6, 6-10-91; Code 1972, § 13-34; Ord. No. 68-00, § 1, 8-14-00)

Sec. 21 1/2-35. Depositions and discovery.

The commission on human relations, through the city attorney's office, shall have power to cause the deposition of witnesses to be taken or other discovery procedure to be conducted upon notice to the interested person and like manner that depositions of witnesses are taken or other discovery procedure is to be conducted in civil actions pending in court in any manner concerning contested cases.

(1957 Rev. Ords., § 2.1807; Ord. No. 2700, 8-17-70; Ord. No. 55-76, § 7, 6-21-76; Ord. No. 22-81, § 14, 3-16-81; Code 1972, § 13-35; Ord. No. 153-95, § 6, 12-18-95)

Sec. 21 1/2-36. Prosecution of violation.

(a) If a respondent fails to comply with a conciliation agreement or fails to obey an order issued by the public hearing panel, the commission on human relations may request the city attorney to prosecute the respondent in a court of competent jurisdiction for violation of the terms of this chapter. The failure of a person to obey a subpoena issued pursuant to this chapter may be punished as a contempt of court. The commission shall render to the city attorney such assistance as requested in connection with any such prosecution.

(b) The commission or a party may obtain an order of the court for the enforcement of the provisions of this chapter. The court may allow the prevailing party reasonable attorney's fees and costs against the respondent. The court may also assess a civil penalty against the respondent in an amount not to exceed $10,000.00 for willful or repeated violations or refusal to comply with the order of the commission.

(1957 Rev. Ords., § 2.1807; Ord. No. 2700, 8-17-70; Ord. No. 55-76, § 8, 6-21-76; Ord. No. 51-91, § 7, 6-10-91; Code 1972, § 13-36)

Sec. 21 1/2-37. Rights of parties to seek judicial determination.

Nothing contained in this article shall be construed to limit the right of the complainant to make and file a complaint, nor to preclude, abridge or restrict the right of appeal or the right of anyone concerned or affected to a review of the facts and issues in the courts of competent jurisdiction on the evidence and merits in any matter involved.

Sec. 21 1/2-38. Application to other handicaps.

The commission on human relations, as permitted by law, is authorized to apply any portion of this chapter which it may deem applicable to deal with discriminatory actions and practices against individuals or groups disadvantaged by reason of physical, mental or social handicap and not otherwise within the purview of this chapter.

(1957 Rev. Ords., § 2.1807; Ord. No. 2700, 8-17-70; Ord. No. 22-81, § 15, 3-16-81; Code 1972, § 13-38)

Sec. 21 1/2-39. Time limit for filing complaint.

Any complaint filed under this chapter shall be filed within six months after the alleged discriminatory or unfair practice occurred.

Secs. 21 1/2-40--21 1/2-49. Reserved.

ARTICLE III. DISABILITY AWARENESS COMMISSION

Sec. 21 1/2-50. Created.

Sec. 21 1/2-51. Composition.

The disability awareness commission shall consist of nine members appointed by the mayor with the advice and consent of the city council. Membership shall include representatives of the disabled community.

Sec. 21 1/2-52. Terms.

The appointment of each member of the disability awareness commission shall be for a term of three years with three members to initially serve a two-year term so that there will be a staggering of terms.

Sec. 21 1/2-53. Filling of vacancies.

Any vacancy on the disability awareness commission shall be filled for the unexpired term of the member vacating such board in the same manner as is required for a regular appointment.

Sec. 21 1/2-54. Compensation; expense.

All members of the disability awareness commission shall serve without compensation.

Sec. 21 1/2-55. Officers.

At its first regular meeting of the year, the board shall elect from its number a chair, a vice-chair, and a secretary, each of whom shall serve until the first regular meeting of the board the following year. The vice-chair shall act in the absence of the chair. A successor shall be elected immediately, as determined by the board, if a vacancy creates an unfilled officer position.

Sec. 21 1/2-56. Meetings; quorum, staff.

The disability awareness commission shall meet at such times and places as may be determined by the board, by standing or special rule, or on call of the chair. A majority of members constitute a quorum. The city ADA coordinator or designee shall act as staff to the commission.

Sec. 21 1/2-57. Duties and responsibilities.

The disability awareness commission shall act as an advisory body to the mayor and city council on disability awareness matters. Its duties may include:

(1) Public education to heighten the awareness of physical, social, and economic barriers for people with disabilities.

(3) Educate citizens of the city about the role, function, and activities of the disability awareness commission.

(4) Develop recommendations on the future role of the disability awareness commission.

(5) Advise other public or private entities on disability awareness issues where it appears the board can make a positive contribution to resolution of such issues in the city.

Secs. 21 1/2-58--21 1/2-69. Reserved.

ARTICLE IV. ADA ACCESSIBILITY REVIEW BOARD

Sec. 21 1/2-70. Created.

Sec. 21 1/2-71. Composition.

The ADA accessibility review board shall consist of seven members appointed by the mayor with the advice and consent of the city council. Membership shall include representatives of the disabled community.

Sec. 21 1/2-72. Terms.

The appointment of each member of the ADA accessibility review board shall be for a term of four years with three members to initially serve a two-year term so that there will be a staggering of terms.

Sec. 21 1/2-73. Filling of vacancies.

Any vacancy on the ADA accessibility review board shall be filled for the unexpired term of the member vacating such board in the same manner as is required for a regular appointment.

Sec. 21 1/2-74. Compensation; expense.

All members of the ADA accessibility review board shall serve without compensation.

Sec. 21 1/2-75. Officers.

At its first regular meeting of the year, the board shall elect from its number a chair, a vice-chair, and a secretary, each of whom shall serve until the first regular meeting of the board in the following year. The vice-chair shall act in the absence of the chair. A successor shall be elected immediately, as determined by the board, if a vacancy creates an unfilled officer position.

Sec. 21 1/2-76. Meetings; quorum, staff.

The ADA accessibility review board shall meet at least once each quarter. A majority of members constitute a quorum. The city ADA coordinator or designee shall act as staff to the board.

Sec. 21 1/2-77. Duties and responsibilities.

The ADA accessibility review board shall act as an advisory body to the mayor and city council on matters pertaining to universal accessibility. Its duties may include:

(1) Monitor the progress of the city transition plan and self-evaluation plan and make recommendations, as needed, in prioritizing the resolution of access issues.

(2) Survey city buildings, programs, and services for potential accessibility problems and recommend to the mayor proposed resolutions of these problems in accordance with the Americans with Disabilities Act.

(3) Encourage the incorporation of universal access into the design of city facilities.

(4) Develop recommendations on the future role of the ADA accessibility review board.

(5) Serve as an advisor to other public or private entities on universal access issues where it appears the board can make a positive contribution to resolution of such issues in the city.

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Chapter 21 1/2 HUMAN RELATIONS*