Florida Senate - 2006                      COMMITTEE AMENDMENT
    Bill No. SB 558
                        Barcode 972880
                            CHAMBER ACTION
              Senate                               House
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 1           Comm: WD              .                    
       03/29/2006 01:06 PM         .                    
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11  The Committee on Banking and Insurance (Lawson) recommended
12  the following amendment:
13  
14         Senate Amendment (with title amendment) 
15         Delete everything after the enacting clause
16  
17  and insert:  
18         Section 1.  Section 760.09, Florida Statutes, is
19  created to read:
20         760.09  Discrimination with respect to lending or
21  credit transactions.--It is unlawful for any person that is
22  engaged in the business of making personal or commercial
23  loans, or extending personal or commercial credit, to
24  discriminate against any applicant with respect to any aspect
25  of the loan or credit transaction on the basis of race, color,
26  religion, gender, national origin, marital status, handicap,
27  or age, as long as the applicant has the capacity to enter
28  into a contract.
29         Section 2.  Section 760.07, Florida Statutes, is
30  amended to read:
31         760.07  Remedies for unlawful discrimination.--Any
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Florida Senate - 2006 COMMITTEE AMENDMENT Bill No. SB 558 Barcode 972880 1 violation of any Florida statute making unlawful 2 discrimination because of race, color, religion, gender, 3 national origin, age, handicap, or marital status in the areas 4 of education, employment, housing, lending or extension of 5 credit, or public accommodations gives rise to a cause of 6 action for all relief and damages described in s. 760.11(5), 7 unless greater damages are expressly provided for. If the 8 statute prohibiting unlawful discrimination provides an 9 administrative remedy, the action for equitable relief and 10 damages provided for in this section may be initiated only 11 after the plaintiff has exhausted his or her administrative 12 remedy. The term "public accommodations" does not include 13 lodge halls or other similar facilities of private 14 organizations which are made available for public use 15 occasionally or periodically. The right to trial by jury is 16 preserved in any case in which the plaintiff is seeking actual 17 or punitive damages. 18 Section 3. Section 760.021, Florida Statutes, reads: 19 760.021 Enforcement.-- 20 (1) The Attorney General may commence a civil action 21 for damages, injunctive relief, civil penalties not to exceed 22 $10,000 per violation, and such other relief as may be 23 appropriate under the laws of this state if the Attorney 24 General has reasonable cause to believe that any person or 25 group: 26 (a) Has engaged in a pattern or practice of 27 discrimination as defined by the laws of this state; or 28 (b) Has been discriminated against as defined by the 29 laws of this state and such discrimination raises an issue of 30 great public interest. 31 (2) The Attorney General may file an action under this 2 12:37 PM 03/27/06 s0558d-bi06-b01
Florida Senate - 2006 COMMITTEE AMENDMENT Bill No. SB 558 Barcode 972880 1 section in the circuit court of the county where the cause of 2 action arises or in the circuit court of the Second Judicial 3 Circuit, in and for Leon County. 4 (3) In any proceeding under this section, the 5 respondent may request, before any responsive pleading is due, 6 that a hearing be held no earlier than 5 days but no more than 7 30 days after the filing of the complaint, at which hearing 8 the court shall determine whether the complaint on its face 9 makes a prima facie showing that a pattern or practice of 10 discrimination exists or that, as a result of discrimination, 11 an issue of great public interest exists. 12 (4) The prevailing party in an action brought under 13 this section is entitled to an award of reasonable attorney's 14 fees and costs. 15 (5) Any damages recovered under this section shall 16 accrue to the injured party. 17 Section 4. Section 760.11, Florida Statutes, reads: 18 760.11 Administrative and civil remedies; 19 construction.-- 20 (1) Any person aggrieved by a violation of ss. 21 760.01-760.10 may file a complaint with the commission within 22 365 days of the alleged violation, naming the employer, 23 employment agency, labor organization, or joint 24 labor-management committee, or, in the case of an alleged 25 violation of s. 760.10(5), the person responsible for the 26 violation and describing the violation. Any person aggrieved 27 by a violation of s. 509.092 may file a complaint with the 28 commission within 365 days of the alleged violation naming the 29 person responsible for the violation and describing the 30 violation. The commission, a commissioner, or the Attorney 31 General may in like manner file such a complaint. On the same 3 12:37 PM 03/27/06 s0558d-bi06-b01
Florida Senate - 2006 COMMITTEE AMENDMENT Bill No. SB 558 Barcode 972880 1 day the complaint is filed with the commission, the commission 2 shall clearly stamp on the face of the complaint the date the 3 complaint was filed with the commission. In lieu of filing the 4 complaint with the commission, a complaint under this section 5 may be filed with the federal Equal Employment Opportunity 6 Commission or with any unit of government of the state which 7 is a fair-employment-practice agency under 29 C.F.R. ss. 8 1601.70-1601.80. If the date the complaint is filed is clearly 9 stamped on the face of the complaint, that date is the date of 10 filing. The date the complaint is filed with the commission 11 for purposes of this section is the earliest date of filing 12 with the Equal Employment Opportunity Commission, the 13 fair-employment-practice agency, or the commission. The 14 complaint shall contain a short and plain statement of the 15 facts describing the violation and the relief sought. The 16 commission may require additional information to be in the 17 complaint. The commission, within 5 days of the complaint 18 being filed, shall by registered mail send a copy of the 19 complaint to the person who allegedly committed the violation. 20 The person who allegedly committed the violation may file an 21 answer to the complaint within 25 days of the date the 22 complaint was filed with the commission. Any answer filed 23 shall be mailed to the aggrieved person by the person filing 24 the answer. Both the complaint and the answer shall be 25 verified. 26 (2) In the event that any other agency of the state or 27 of any other unit of government of the state has jurisdiction 28 of the subject matter of any complaint filed with the 29 commission and has legal authority to investigate the 30 complaint, the commission may refer such complaint to such 31 agency for an investigation. Referral of such a complaint by 4 12:37 PM 03/27/06 s0558d-bi06-b01
Florida Senate - 2006 COMMITTEE AMENDMENT Bill No. SB 558 Barcode 972880 1 the commission shall not constitute agency action within the 2 meaning of s. 120.52. In the event of any referral under this 3 subsection, the commission shall accord substantial weight to 4 any findings and conclusions of any such agency. The referral 5 of a complaint by the commission to a local agency does not 6 divest the commission's jurisdiction over the complaint. 7 (3) Except as provided in subsection (2), the 8 commission shall investigate the allegations in the complaint. 9 Within 180 days of the filing of the complaint, the commission 10 shall determine if there is reasonable cause to believe that 11 discriminatory practice has occurred in violation of the 12 Florida Civil Rights Act of 1992. When the commission 13 determines whether or not there is reasonable cause, the 14 commission by registered mail shall promptly notify the 15 aggrieved person and the respondent of the reasonable cause 16 determination, the date of such determination, and the options 17 available under this section. 18 (4) In the event that the commission determines that 19 there is reasonable cause to believe that a discriminatory 20 practice has occurred in violation of the Florida Civil Rights 21 Act of 1992, the aggrieved person may either: 22 (a) Bring a civil action against the person named in 23 the complaint in any court of competent jurisdiction; or 24 (b) Request an administrative hearing under ss. 25 120.569 and 120.57. 26 27 The election by the aggrieved person of filing a civil action 28 or requesting an administrative hearing under this subsection 29 is the exclusive procedure available to the aggrieved person 30 pursuant to this act. 31 (5) In any civil action brought under this section, 5 12:37 PM 03/27/06 s0558d-bi06-b01
Florida Senate - 2006 COMMITTEE AMENDMENT Bill No. SB 558 Barcode 972880 1 the court may issue an order prohibiting the discriminatory 2 practice and providing affirmative relief from the effects of 3 the practice, including back pay. The court may also award 4 compensatory damages, including, but not limited to, damages 5 for mental anguish, loss of dignity, and any other intangible 6 injuries, and punitive damages. The provisions of ss. 768.72 7 and 768.73 do not apply to this section. The judgment for the 8 total amount of punitive damages awarded under this section to 9 an aggrieved person shall not exceed $100,000. In any action 10 or proceeding under this subsection, the court, in its 11 discretion, may allow the prevailing party a reasonable 12 attorney's fee as part of the costs. It is the intent of the 13 Legislature that this provision for attorney's fees be 14 interpreted in a manner consistent with federal case law 15 involving a Title VII action. The right to trial by jury is 16 preserved in any such private right of action in which the 17 aggrieved person is seeking compensatory or punitive damages, 18 and any party may demand a trial by jury. The commission's 19 determination of reasonable cause is not admissible into 20 evidence in any civil proceeding, including any hearing or 21 trial, except to establish for the court the right to maintain 22 the private right of action. A civil action brought under this 23 section shall be commenced no later than 1 year after the date 24 of determination of reasonable cause by the commission. The 25 commencement of such action shall divest the commission of 26 jurisdiction of the complaint, except that the commission may 27 intervene in the civil action as a matter of right. 28 Notwithstanding the above, the state and its agencies and 29 subdivisions shall not be liable for punitive damages. The 30 total amount of recovery against the state and its agencies 31 and subdivisions shall not exceed the limitation as set forth 6 12:37 PM 03/27/06 s0558d-bi06-b01
Florida Senate - 2006 COMMITTEE AMENDMENT Bill No. SB 558 Barcode 972880 1 in s. 768.28(5). 2 (6) Any administrative hearing brought pursuant to 3 paragraph (4)(b) shall be conducted under ss. 120.569 and 4 120.57. The commission may hear the case provided that the 5 final order is issued by members of the commission who did not 6 conduct the hearing or the commission may request that it be 7 heard by an administrative law judge pursuant to s. 8 120.569(2)(a). If the commission elects to hear the case, it 9 may be heard by a commissioner. If the commissioner, after 10 the hearing, finds that a violation of the Florida Civil 11 Rights Act of 1992 has occurred, the commissioner shall issue 12 an appropriate proposed order in accordance with chapter 120 13 prohibiting the practice and providing affirmative relief from 14 the effects of the practice, including back pay. If the 15 administrative law judge, after the hearing, finds that a 16 violation of the Florida Civil Rights Act of 1992 has 17 occurred, the administrative law judge shall issue an 18 appropriate recommended order in accordance with chapter 120 19 prohibiting the practice and providing affirmative relief from 20 the effects of the practice, including back pay. Within 90 21 days of the date the recommended or proposed order is 22 rendered, the commission shall issue a final order by 23 adopting, rejecting, or modifying the recommended order as 24 provided under ss. 120.569 and 120.57. The 90-day period may 25 be extended with the consent of all the parties. An 26 administrative hearing pursuant to paragraph (4)(b) must be 27 requested no later than 35 days after the date of 28 determination of reasonable cause by the commission. In any 29 action or proceeding under this subsection, the commission, in 30 its discretion, may allow the prevailing party a reasonable 31 attorney's fee as part of the costs. It is the intent of the 7 12:37 PM 03/27/06 s0558d-bi06-b01
Florida Senate - 2006 COMMITTEE AMENDMENT Bill No. SB 558 Barcode 972880 1 Legislature that this provision for attorney's fees be 2 interpreted in a manner consistent with federal case law 3 involving a Title VII action. 4 (7) If the commission determines that there is not 5 reasonable cause to believe that a violation of the Florida 6 Civil Rights Act of 1992 has occurred, the commission shall 7 dismiss the complaint. The aggrieved person may request an 8 administrative hearing under ss. 120.569 and 120.57, but any 9 such request must be made within 35 days of the date of 10 determination of reasonable cause and any such hearing shall 11 be heard by an administrative law judge and not by the 12 commission or a commissioner. If the aggrieved person does 13 not request an administrative hearing within the 35 days, the 14 claim will be barred. If the administrative law judge finds 15 that a violation of the Florida Civil Rights Act of 1992 has 16 occurred, he or she shall issue an appropriate recommended 17 order to the commission prohibiting the practice and 18 recommending affirmative relief from the effects of the 19 practice, including back pay. Within 90 days of the date the 20 recommended order is rendered, the commission shall issue a 21 final order by adopting, rejecting, or modifying the 22 recommended order as provided under ss. 120.569 and 120.57. 23 The 90-day period may be extended with the consent of all the 24 parties. In any action or proceeding under this subsection, 25 the commission, in its discretion, may allow the prevailing 26 party a reasonable attorney's fee as part of the costs. It is 27 the intent of the Legislature that this provision for 28 attorney's fees be interpreted in a manner consistent with 29 federal case law involving a Title VII action. In the event 30 the final order issued by the commission determines that a 31 violation of the Florida Civil Rights Act of 1992 has 8 12:37 PM 03/27/06 s0558d-bi06-b01
Florida Senate - 2006 COMMITTEE AMENDMENT Bill No. SB 558 Barcode 972880 1 occurred, the aggrieved person may bring, within 1 year of the 2 date of the final order, a civil action under subsection (5) 3 as if there has been a reasonable cause determination or 4 accept the affirmative relief offered by the commission, but 5 not both. 6 (8) In the event that the commission fails to 7 conciliate or determine whether there is reasonable cause on 8 any complaint under this section within 180 days of the filing 9 of the complaint, an aggrieved person may proceed under 10 subsection (4), as if the commission determined that there was 11 reasonable cause. 12 (9) No liability for back pay shall accrue from a date 13 more than 2 years prior to the filing of a complaint with the 14 commission. 15 (10) A judgment for the amount of damages and costs 16 assessed pursuant to a final order by the commission may be 17 entered in any court having jurisdiction thereof and may be 18 enforced as any other judgment. 19 (11) If a complaint is within the jurisdiction of the 20 commission, the commission shall simultaneously with its other 21 statutory obligations attempt to eliminate or correct the 22 alleged discrimination by informal methods of conference, 23 conciliation, and persuasion. Nothing said or done in the 24 course of such informal endeavors may be made public or used 25 as evidence in a subsequent civil proceeding, trial, or 26 hearing. The commission may initiate dispute resolution 27 procedures, including voluntary arbitration, by special 28 magistrates or mediators. The commission may adopt rules as 29 to the qualifications of persons who may serve as special 30 magistrates and mediators. 31 (12) All complaints filed with the commission and all 9 12:37 PM 03/27/06 s0558d-bi06-b01
Florida Senate - 2006 COMMITTEE AMENDMENT Bill No. SB 558 Barcode 972880 1 records and documents in the custody of the commission, which 2 relate to and identify a particular person, including, but not 3 limited to, a complainant, employer, employment agency, labor 4 organization, or joint labor-management committee shall be 5 confidential and shall not be disclosed by the commission, 6 except to the parties or in the course of a hearing or 7 proceeding under this section. The restriction of this 8 subsection shall not apply to any record or document which is 9 part of the record of any hearing or court proceeding. 10 (13) Final orders of the commission are subject to 11 judicial review pursuant to s. 120.68. The commission's 12 determination of reasonable cause is not final agency action 13 that is subject to judicial review. Unless specifically 14 ordered by the court, the commencement of an appeal does not 15 suspend or stay the order of the commission, except as 16 provided in the Rules of Appellate Procedure. In any action 17 or proceeding under this subsection, the court, in its 18 discretion, may allow the prevailing party a reasonable 19 attorney's fee as part of the cost. It is the intent of the 20 Legislature that this provision for attorney's fees be 21 interpreted in a manner consistent with federal case law 22 involving a Title VII action. In the event the order of the 23 court determines that a violation of the Florida Civil Rights 24 Act of 1992 has occurred, the court shall remand the matter to 25 the commission for appropriate relief. The aggrieved party 26 has the option to accept the relief offered by the commission 27 or may bring, within 1 year of the date of the court order, a 28 civil action under subsection (5) as if there has been a 29 reasonable cause determination. 30 (14) The commission may adopt, promulgate, amend, and 31 rescind rules to effectuate the purposes and policies of this 10 12:37 PM 03/27/06 s0558d-bi06-b01
Florida Senate - 2006 COMMITTEE AMENDMENT Bill No. SB 558 Barcode 972880 1 section and to govern the proceedings of the commission under 2 this section. 3 (15) In any civil action or administrative proceeding 4 brought pursuant to this section, a finding that a person 5 employed by the state or any governmental entity or agency has 6 violated s. 760.10 shall as a matter of law constitute just or 7 substantial cause for such person's discharge. 8 Section 5. This act shall take effect October 1, 2006. 9 10 11 ================ T I T L E A M E N D M E N T =============== 12 And the title is amended as follows: 13 Delete everything before the enacting clause 14 15 and insert: 16 A bill to be entitled 17 An act relating to discriminatory lending 18 practices; creating s. 760.09, F.S.; making it 19 unlawful for any person engaged in the business 20 of making personal or commercial loans, or 21 extending personal or commercial credit, to 22 discriminate against an applicant with respect 23 to any aspect of the loan or credit transaction 24 on the basis of certain factors; amending s. 25 760.07, F.S.; creating a cause of action and 26 providing specified remedies for a violation of 27 any state statute that makes discrimination 28 because of certain factors in the area of 29 lending or extension of credit unlawful; 30 republishing s. 760.021, F.S., relating to 31 enforcement of laws relating to discrimination, 11 12:37 PM 03/27/06 s0558d-bi06-b01
Florida Senate - 2006 COMMITTEE AMENDMENT Bill No. SB 558 Barcode 972880 1 and s. 760.11, F.S., relating to administrative 2 and civil remedies and to construction; 3 providing an effective date. 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 12 12:37 PM 03/27/06 s0558d-bi06-b01