S*1157 Session 108 (1989-1990)
S*1157(Rat #0491, Act #0423 of 1990) General Bill, By Senate Judiciary
A Bill to amend the Code of Laws of South Carolina, 1976, by adding Chapter 9
to Title 45 so as to provide for the revocation of any license or permit
issued by the State or its political subdivisions to an establishment of
public accommodations found to practice discrimination on account of race,
color, religion, or national origin after a hearing by the South Carolina
Human Affairs Commission, to provide exceptions, to provide for judicial
review, and to provide for criminal and civil penalties and remedies for
violations.-amended title
01/25/90 Senate Introduced, read first time, placed on calendar
without reference SJ-10
02/06/90 Senate Special order SJ-27
02/07/90 Senate Debate interrupted SJ-30
02/08/90 Senate Amended SJ-51
02/08/90 Senate Read second time SJ-62
02/08/90 Senate Unanimous consent for third reading on next
legislative day SJ-62
02/09/90 Senate Read third time and sent to House SJ-47
02/13/90 House Introduced and read first time HJ-9
02/13/90 House Referred to Committee on Judiciary HJ-9
03/08/90 House Committee report: Favorable with amendment
Judiciary HJ-6
03/28/90 House Debate adjourned until Thursday, March 29, 1990 HJ-244
03/29/90 House Amended HJ-19
03/29/90 House Read second time HJ-20
03/29/90 House Unanimous consent for third reading on next
legislative day HJ-20
03/30/90 House Read third time and returned to Senate with
amendments HJ-3
04/04/90 Senate Concurred in House amendment and enrolled SJ-3
04/19/90 Ratified R 491
04/25/90 Signed By Governor
04/25/90 Effective date 04/25/90
04/25/90 Act No. 423
05/14/90 Copies available
(A423, R491, S1157)
AN ACT TO AMEND THE CODE OF LAWS OF SOUTH CAROLINA, 1976, BY ADDING
CHAPTER 9 TO TITLE 45 SO AS TO PROVIDE FOR THE REVOCATION OF ANY LICENSE
OR PERMIT ISSUED BY THE STATE OR ITS POLITICAL SUBDIVISIONS TO AN
ESTABLISHMENT OF PUBLIC ACCOMMODATIONS FOUND TO PRACTICE DISCRIMINATION
ON ACCOUNT OF RACE, COLOR, RELIGION, OR NATIONAL ORIGIN AFTER A HEARING
BY THE SOUTH CAROLINA HUMAN AFFAIRS COMMISSION, TO PROVIDE EXCEPTIONS,
TO PROVIDE FOR JUDICIAL REVIEW, AND TO PROVIDE FOR CRIMINAL AND CIVIL
PENALTIES AND REMEDIES FOR VIOLATIONS.
Be it enacted by the General Assembly of the State of South Carolina:
Equal enjoyment and privileges to public accommodations
SECTION 1. Title 45 of the 1976 Code is amended by adding:
"CHAPTER 9
Equal Enjoyment and Privileges to
Public Accommodations
Article 1
Section 45-9-10. (A) All persons shall be entitled to the full and
equal enjoyment of the goods, services, facilities, privileges,
advantages, and accommodations of any place of public accommodation, as
defined in Article 1 of this chapter, without discrimination or
segregation on the ground of race, color, religion, or national origin.
(B) Each of the following establishments which serves the public
is a place of public accommodation within the meaning of this chapter if
discrimination or segregation by it is supported by state action:
(1) any inn, hotel, motel, or other establishment which
provides lodging to transient guests, other than an establishment located
within a building which contains not more than five rooms for rent or
hire and which is actually occupied by the proprietor of such
establishment as his residence;
(2) any restaurant, cafeteria, lunchroom, lunch counter, soda
fountain, or other facility principally engaged in selling food for
consumption on the premises, including, but not limited to, any such
facility located on the premises of any retail establishment, or any
gasoline station;
(3) any hospital, clinic, or other medical facility which
provides overnight accommodations;
(4) any retail or wholesale establishment;
(5) any motion picture house, theater, concert hall, billiard
parlor, saloon, barroom, golf course, sports arena, stadium, or other
place of amusement, exhibition, recreation, or entertainment; and
(6) any establishment which is physically located within the
premises of any establishment otherwise covered by this subsection, or
within the premises of which is physically located any such covered
establishment, and which holds itself out as serving patrons of such
covered establishment.
(C) 'Supported by state action' means the licensing or permitting
of any establishment or any agent of an establishment listed above,
subject to the exclusion provided in Section 45-9-20, which has or must
have a license or permit from the State, its agencies, or local
governmental entities to lawfully operate.
Section 45-9-20. The provisions of this chapter do not apply
to a private club or other establishment not in fact open to the general
public. An institution, a club, an organization, or a place of
accommodation, as defined in Section 45-9-10, which offers memberships
for less than thirty days is not private within the meaning of this
section.
Section 45-9-30. No person shall withhold, deny, or attempt to
withhold or deny, or deprive, or attempt to deprive any person of any
right or privilege secured by the provisions of Section 45-9-10; or
intimidate, threaten, or coerce, or attempt to intimidate, threaten, or
coerce any person with the purpose of interfering with any right or
privilege secured by the provisions of Section 45-9-10; or punish or
attempt to punish any person for exercising or attempting to exercise any
right or privilege secured by the provisions of Section 45-9-10.
Article 3
Section 45-9-40. Whenever the Attorney General receives a
complaint and has cause to believe that a person or group of persons is
engaged in a pattern or practice of resistance to the full enjoyment of
any of the rights secured by the provisions of Article 1, and that the
pattern or practice is of a nature so as to deny the full exercise of the
rights described in the provisions of Article 1, the Attorney General
shall notify the State Law Enforcement Division which shall conduct an
investigation. The results of this investigation must be reported to the
State Human Affairs Commission. A panel of not fewer than three
commission members, designated by the chairman, shall determine if there
is reasonable cause to believe that the facts alleged, based upon the
results of this investigation, are sufficient to state a violation of
Article 1 by a pattern or practice of discrimination or segregation.
If this panel finds reasonable cause, the chairman shall inform the
Attorney General, and the Attorney General or his designee shall begin
an action by filing a complaint with the commission and serving, by
certified mail, return receipt requested, the parties named in the
complaint. The commission members which serve on this panel may not
serve on the panel conducting a hearing on the allegations contained in
the complaint if a license revocation proceeding is initiated. If a
person alleged to have violated the provisions of Article 1 by a pattern
or practice of discrimination or segregation is an employee or agent of
an establishment as defined in Section 45-9-10, the Attorney General
shall make a diligent effort to include in the complaint the name of the
employer, principal, or a third party who may be the holder of a license
or permit under which the establishment or an agent of the establishment
operates. The complaint must set forth a description of the charges,
including the facts pertaining to the pattern or practice of
discrimination or segregation and a listing of those licenses or permits
which are sought to be revoked under the provisions of this article and
must state clearly the remedy or penalty available pursuant to Sections
45-9-60 and 45-9-80 if the allegations are found to be true.
Section 45-9-50. A panel of not fewer than five commission members,
designated by the chairman, must conduct a hearing on the allegations
contained in the complaint by the Attorney General within sixty days of
its filing, but not sooner than twenty days from the date of the filing
of the complaint. The panel, for cause shown, may at any time in its
discretion (1) with or without written motion or notice order the period
of time prior to the hearing enlarged if request therefor is made before
the expiration of the time period as originally prescribed or extended
or (2) upon motion made after the expiration of the specified time
period, for good cause shown, permit a continuance or further extension.
Notification of the hearing must be sent by certified mail, return
receipt requested. The notification of the hearing must include a
description of the charges, the date, time, and location of the hearing,
and a statement in bold type that a failure to appear may result in
revocation of licenses or permits under which the establishment or an
agent of the establishment operates. The notice must be sent to the
person or group of persons accused of discriminatory conduct as well as
to all persons listed in the Attorney General's complaint as having been
aggrieved by the alleged discriminatory conduct. The notice also must
be sent to any employer, principal, or any third party who may be the
holder of a license or permit under which the establishment or an agent
of the establishment operates. A license or permit of any party, for
whom there is no receipt of the notice showing delivery or attempted
delivery of the certified mail, shall not be revoked.
Section 45-9-60. The commission may establish rules of
procedure for the conduct of the panel hearings as provided in this
article and is not governed by the Administrative Procedures Act in
establishing these rules or in the conduct of panel hearings. The
commissioner, upon request of the panel conducting a hearing, may issue
subpoenas and subpoenas duces tecum to allow the panel to interview any
person it deems necessary and review any document it deems relevant.
A person or group of persons charged in the complaint with engaging
in a pattern or practice of discrimination or segregation in violation
of Article 1 shall have the right in the hearing to present physical and
documentary evidence, the testimony of witnesses, and other relevant
information. In procuring the testimony of witnesses, such persons shall
have the benefit of the commissioner's subpoena power. Such persons
shall have the right to appear before the panel and be represented by an
attorney, to call witnesses, to confront and cross examine adverse
witnesses, and to make oral and written legal arguments.
All testimony given must be under oath in the presence of a court
reporter who shall record the proceedings. The rules of evidence
applicable in circuit court shall be used in all hearings. Except to the
extent necessary to establish a pattern or practice of discrimination or
segregation or to allow for the participation of those intervenors as may
be allowed by Section 45-9-70, the panel conducting the hearing must
limit the scope of the hearing to the items delineated in the description
of the charges or in the allegations in the complaint.
Notwithstanding any other provision of law to the contrary, all
deliberations and votes of the panel may be conducted in executive
session. The deliberations, findings, and conclusions of the panel are
confidential and may not be disclosed by any person until the final order
or determination is made public as provided in this article.
Except as otherwise provided by this article, if it is determined
that the rights and privileges secured by Article 1 have been violated
by a pattern or practice of discrimination or segregation by an owner of
an establishment, an employee of an establishment, or an agent of an
establishment, the panel shall grant the relief authorized in Section
45-9-80. The panel may further order any persons found to have violated
the provisions of Article 1 by a pattern or practice of discrimination
or segregation to reimburse the State for the actual costs incurred in
conducting the hearing, including reasonable attorney's fees.
Section 45-9-65. No establishment or agent of an establishment
shall be compelled to forfeit a license or permit because of the actions
of an employee who has no authority to determine who shall enjoy the
goods, services, facilities, privileges, and advantages of an
establishment of public accommodations as defined in Section 45-9-10.
If the panel finds that a pattern or practice of discriminatory conduct
by such an employee was known, or was so open and notorious that it
reasonably should have become known to the licensee, permittee, or its
managing agent, and such licensee, permittee, or agent did not stop the
discriminatory conduct, the license or permit may be revoked. If the
action prohibited in Article 3 is committed by an employee or agent, and
is not done in the presence of the employer, manager, or other person in
charge, and is done without knowledge, consent, or approval of the person
in charge, the license or permit revocation provisions do not apply.
A panel may find a pattern or practice of discriminatory conduct
violating Article 1 and not revoke a particular license or permit under
which an establishment or agent of an establishment operates if:
(1) the panel concludes the establishment is one of public
necessity and the revocation of a license or permit to operate would be
severely detrimental to the community and that the establishment is
acting to eliminate any discriminatory conduct; or
(2) the panel concludes that the pattern or practice of
discriminatory conduct is limited to a segment of the establishment's
operations and concludes that only the licenses or permits issued to
operate that segment may be revoked; or
(3) the panel concludes that the pattern or practice of
discriminatory conduct is limited to one person or a group of persons
whose licenses or permits may be revoked.
Section 45-9-70. (A) Upon timely application anyone shall be
permitted to intervene in an action when the applicant claims an interest
relating to the allegations of the complaint and he is so situated that
the disposition of the action may as a practical matter impair or impede
his ability to protect that interest, unless the applicant's interest is
adequately represented by existing parties.
(B) Upon timely application anyone may be permitted to intervene
in an action when an applicant's claim or defense and the main action
have a question of law or fact in common. In exercising its discretion,
the panel shall consider whether the intervention will unduly delay or
prejudice the adjudication of the rights of the original parties.
(C) A person desiring to intervene shall timely serve a motion to
intervene upon the panel. The motion shall state the ground therefor and
shall be accompanied by a statement setting forth the claim or defense
for which intervention is sought.
Section 45-9-75. The final decision or order of the panel must
be in writing and shall include the findings of fact and conclusions of
law, separately stated. Findings of fact, if set forth in statutory
language, shall be accompanied by a concise and explicit statement of the
underlying facts supporting the findings. The panel must list licenses
or permits to be revoked in its order. No finding or conclusion may be
included in the order of the panel unless it is supported by substantial
evidence in the record before the panel.
The commission must send copies of the final order of determination
to each party named in the complaint, any attorney of record, and any
other interested party within fifteen days of the conclusion of the
hearing.
Notwithstanding any other provision of law, the determination by the
panel is not subject to appeal to the full commission and is the final
administrative review. Any appeal must be made pursuant to Sections
1-23-380 and 1-23-390.
Section 45-9-80. Notwithstanding any other provision of law or
ordinance to the contrary, if the panel determines that the provisions
of Article 1 have been violated by a pattern or practice of
discrimination or segregation by the owner of an establishment, an
employee of an establishment, or an agent of an establishment of public
accommodations as defined in Section 45-9-10, the Attorney General must
immediately notify the appropriate state or local permitting, regulatory,
or licensing authority that those licenses or permits so designated in
the panel's order must be revoked immediately, notwithstanding the
provisions of Section 1-23-380(C), upon expiration of the time allowed
for an appeal if no appeal has been filed. After appeals, if the panel's
order is not reversed, the license or permit must be revoked as provided
in this article.
If necessary, a writ of mandamus may be sought by the Attorney
General or any individual to effectuate the provisions of this section.
Nothing in this section shall be construed as requiring the issuance of
a writ of mandamus, and no civil action shall lie against any regulatory
or licensing official acting pursuant to an order of the panel.
No owner of an establishment, employee of an establishment, or agent
of an establishment who is found to have violated the provisions of
Article 1 by a pattern or practice of discrimination or segregation may
obtain a license or permit from the same regulatory or licensing entity
or seek the reissuance of a revoked license or permit within three years
from the date of the panel's order or a final determination of a court
of competent jurisdiction, whichever is later.
Section 45-9-85. Any person violating the confidentiality
provision of Section 45-9-60 is guilty of a misdemeanor and, upon
conviction, shall be fined not more than one thousand dollars or
imprisoned for not more than one year, or both, in the discretion of the
court. If the person convicted is an officer or employee of the State,
he shall be dismissed from office or employment and shall be ineligible
to hold any public office or public employment in this State for a period
of three years after such conviction.
Article 5
Section 45-9-90. A person violating the provisions of Article
1 is guilty of a misdemeanor and, upon conviction, must be fined not more
than two thousand dollars or imprisoned for not less than six months nor
more than three years, or both, in the discretion of the court. Each
violation is considered a separate offense.
Section 45-9-100. Subject to the limitations in Section
45-9-110, a party aggrieved as a result of a person or group of persons
violating the provisions of Article 1 may institute an action in his own
name in the circuit court to recover damages for violations of Article
1. A single act of discrimination or segregation may constitute proof
of a violation of Article 1 without the necessity of proving a pattern
or practice of discrimination or segregation. Upon a finding that a
person has violated the provisions of Article 1, the amount of damages
that an aggrieved party has sustained is declared to be a minimum of five
thousand dollars. In addition, the court, upon a finding that a person
violated the provisions of Article 1, shall award the aggrieved party
reasonable attorney's fees, as determined by the court, and costs.
Section 45-9-110. An aggrieved party must file a charge alleging
unlawful discrimination or segregation under Article 1 with the State
Human Affairs Commission and seek conciliation of any civil action under
Section 45-9-100 prior to bringing such action in the circuit court. The
commission has sixty days to investigate the charge, attempt
conciliation, and negotiate a settlement. The commission may establish
regulations governing the conciliation of a charge filed pursuant to this
section, but the failure to promulgate regulations shall not relieve a
party from the requirements of this section. No civil action may be
commenced by an aggrieved party until sixty days after the filing of the
charge with the commission or until the commission issues a letter
stating that the conciliation process has concluded, whichever occurs
first. After the sixty-day period has expired, the person filing the
charge is deemed to have exhausted his administrative remedy
notwithstanding whether the commission has concluded its attempts at
conciliation.
Section 45-9-120. The limitations on the right to pursue a civil
action in Section 45-9-110 shall not be construed to limit the right to
pursue the license or permit revocation procedure provided in Article 3
or the criminal penalties provided in Section 45-9-90. The penalties and
remedies provided in Article 5 may be pursued as independent actions and
may not be construed as prohibiting or limiting the right to pursue the
administrative remedy provided in Article 3."
Time effective
SECTION 2. This act takes effect upon approval by the Governor.
Approved the 25th day of April, 1990.
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