§ 115.204 Criteria for adequacy of law. ( a ) In order for a determination to be made that a state or local fair housing agency administers a law, which, on its face, provides rights and remedies for alleged discriminatory housing practices that are substantially equivalent to those provided in the Act, the law must: ( 1 ) Provide for an administrative enforcement body to receive and process complaints and provide that: ( i ) Complaints must be in writing;
( ii ) Upon the filing of a complaint, the agency shall serve notice upon the complainant acknowledging the filing and advising the complainant of the time limits and choice of forums provided under the law;
( iii ) Upon the filing of a complaint, the agency shall promptly serve notice on the respondent or person charged with the commission of a discriminatory housing practice advising of his or her procedural rights and obligations under the statute or ordinance, together with a copy of the complaint;
( iv ) A respondent may file an answer to a complaint.
( 2 ) Delegate to the administrative enforcement body comprehensive authority, including subpoena power, to investigate the allegations of complaints, and power to conciliate complaints, and require that: ( i ) The agency commences proceedings with respect to the complaint before the end of the 30th day after receipt of the complaint;
( ii ) The agency investigates the allegations of the complaint and complete the investigation within the timeframe established by section 810(a)(1)(B)(iv) of the Act or comply with the notification requirements of section 810(a)(1)(C) of the Act;
( iii ) The agency make final administrative disposition of a complaint within one year of the date of receipt of a complaint, unless it is impracticable to do so. If the agency is unable to do so, it shall notify the parties, in writing, of the reasons for not doing so;
( iv ) Any conciliation agreement arising out of conciliation efforts by the agency shall be an agreement between the respondent, the complainant, and the agency and shall require the approval of the agency;
( v ) Each conciliation agreement shall be made public, unless the complainant and respondent otherwise agree and the agency determines that disclosure is not required to further the purpose of the law.
( 3 ) Not place excessive burdens on the aggrieved person that might discourage the filing of complaints, such as: ( i ) A provision that a complaint must be filed within any period of time less than 180 days after an alleged discriminatory practice has occurred or terminated;
( ii ) Anti-testing provisions;
( iii ) Provisions that could subject an aggrieved person to costs, criminal penalties, or fees in connection with the filing of complaints.
( 4 ) Not contain exemptions that substantially reduce the coverage of housing accommodations as compared to section 803 of the Act.
( 5 ) Provide the same protections as those afforded by sections 804, 805, 806, and 818 of the Act, consistent with HUD's implementing regulations found at 24 CFR part 100.
( b ) In addition to the factors described in paragraph (a) of this section, the provisions of the state or local law must afford administrative and judicial protection and enforcement of the rights embodied in the law. ( 1 ) The agency must have the authority to: ( i ) Grant or seek prompt judicial action for appropriate temporary or preliminary relief pending final disposition of a complaint, if such action is necessary to carry out the purposes of the law;
( ii ) Issue and seek enforceable subpoenas;
( iii ) Grant actual damages in an administrative proceeding or provide adjudication in court at agency expense to allow the award of actual damages to an aggrieved person;
( iv ) Grant injunctive or other equitable relief, or be specifically authorized to seek such relief in a court of competent jurisdiction;
( v ) Provide an administrative proceeding in which a civil penalty may be assessed or provide adjudication in court, at agency expense, allowing the assessment of punitive damages against the respondent.
( 2 ) If an agency's law offers an administrative hearing, the agency must also provide parties an election option substantially equivalent to the election provisions of section 812 of the Act.
( 3 ) Agency actions must be subject to judicial review upon application by any party aggrieved by a final agency order.
( 4 ) Judicial review of a final agency order must be in a court with authority to: ( i ) Grant to the petitioner, or to any other party, such temporary relief, restraining order, or other order as the court determines is just and proper;
( ii ) Affirm, modify, or set aside, in whole or in part, the order, or remand the order for further proceeding; and
( iii ) Enforce the order to the extent that the order is affirmed or modified.
( c ) The requirement that the state or local law prohibit discrimination on the basis of familial status does not require that the state or local law limit the applicability of any reasonable local, state, or federal restrictions regarding the maximum number of occupants permitted to occupy a dwelling.
( d ) The state or local law may assure that no prohibition of discrimination because of familial status applies to housing for older persons, as described in 24 CFR part 100, subpart E.
( e ) A determination of the adequacy of a state or local fair housing law “on its face” is intended to focus on the meaning and intent of the text of the law, as distinguished from the effectiveness of its administration. Accordingly, this determination is not limited to an analysis of the literal text of the law. Regulations, directives, rules of procedure, judicial decisions, or interpretations of the fair housing law by competent authorities will be considered in making this determination.
( f ) A law will be found inadequate “on its face” if it permits any of the agency's decision-making authority to be contracted out or delegated to a non-governmental authority. For the purposes of this paragraph, “decision-making authority” includes but is not limited to: ( 1 ) Acceptance of a complaint;
( 2 ) Approval of a conciliation agreement;
( 3 ) Dismissal of a complaint;
( 4 ) Any action specified in § 115.204(a)(2)(iii) or (b)(1); and
( 5 ) Any decision-making regarding whether a particular matter will or will not be pursued.
( g ) The state or local law must provide for civil enforcement of the law by an aggrieved person by the commencement of an action in an appropriate court at least one year after the occurrence or termination of an alleged discriminatory housing practice. The court must be empowered to: ( 1 ) Award the plaintiff actual and punitive damages;
( 2 ) Grant as relief, as it deems appropriate, any temporary or permanent injunction, temporary restraining order or other order; and
( 3 ) Allow reasonable attorney's fees and costs.
( h ) If a state or local law is different than the Act in a way that does not diminish coverage of the Act, including, but not limited to, the protection of additional prohibited bases, then the state or local law may still be found substantially equivalent.