Rule 186-2-.04 - Administrative Proceedings Under O.C.G.A. Section 8-3-213 of the Georgia Fair Housing Law, as Amende(1) General Information. (a) Scope. 1. Applicability. This part contains the rules of practice and procedure established by the Commission on Equal Opportunity for administrative proceedings before the Board of Commissioners adjudicating the claims asserted in a charge issued under Rule 186-2-.03(6)et seq., where no party -the complainant, the respondent, or an aggrieved party-elects to have the claims decided in a civil action under O.C.G.A. Section 8-3-213(a) of the Georgia Fair Housing Law.2. General application of rules. Hearings under this subpart shall be conducted as expeditiously and inexpensively as possible, consistent with the needs and rights of the parties to obtain a fair hearing and a complete record.3. Conduct of proceedings. The Commission will reasonably accommodate persons with disabilities who are participants in the hearing process or interested members of the general public.(b) Definitions. 1."Administrator" means the Administrator of the Commission on Equal Opportunity.2."Aggrieved person" includes any person who:(i) Claims to have been injured by a discriminatory housing practice; or(ii) Believes that such person will be injured by a discriminatory housing practice that is about to occur.3."Attorney General" means the Attorney General for the State of Georgia.4."Board" means the members of the Board of Commissioners of the Commission on Equal Opportunity.5."Chief Commissioner" means the Chief on the panel from the Board of Commissioners assigned to adjudicate a matter which is to continue through the administrative hearing process.6."Commission" means the Commission on Equal Opportunity.7."Complainant" means the person (including the Administrator of the Commission on Equal Opportunity) who filed the complaint under Rule 186-2-.03(2).8."Complaint" means a complaint filed under Rule 186-2-.03(2).9."Charge" means the statement of facts issued under Rule 186-2-.04(4)(b) upon which the Commission has found reasonable cause to believe that a discriminatory housing practice has occurred or is about to occur.10.Discriminatory housing practice" means an act that is unlawful under O.C.G.A. Sections 8-3-202, 8-3-203, 8-3-204, and 8-3-222 of the Georgia Fair Housing Law.11."Georgia Fair Housing Law" means Title 8, Article 4, Section 3; and codified as Section 8-3-200et seq.12."Hearing" means that part of an administrative proceeding that involves the submission of evidence, either by oral presentation or written submission, and includes the submission of briefs and oral arguments on the evidence and applicable law.13."Panel" means the members of the Board of Commissioners assigned to adjudicate a fair housing case in an administrative hearing. At least one of the panel members must be an attorney licensed to practice law in the State of Georgia.14."Party" means a person or agency named or admitted as a party to a proceeding. Party includes an aggrieved person who intervenes under Rule 186-2-.04(4)(d).15."Person" includes one or more individuals, corporations, partnerships, associations, labor organizations, legal representatives, mutual companies, joint-stock companies, trusts, unincorporated organizations, trustees, trustees in cases under Title 11 of the United States Code, receivers and fiduciaries.16."Personal service" means handing a copy of the document to the person to be served or leaving a copy of the document with a person of suitable age and discretion at the place of business, residence or usual place of abode of the person to be served.17."Prevailing party" has the same meaning as the term has in section 722 of the Revised Statutes of the United States (42 U.S.C. Section 1988).18."Respondent" means the person accused in a charge of discriminatory housing practice.19."State" means the State of Georgia.(c) Time computations.1. In general. In computing time under this part, the time period begins the day following the act, event, or default and includes the last day of the period, unless the last day is a Saturday, Sunday, or legal holiday observed by the State, in which case the time period includes the next business day. When the prescribed time period is seven days or less, intermediate Saturdays, Sundays, and legal holidays shall be excluded from the computation.2. Modification of time periods. Except for time periods required by statute, the Commission may enlarge or reduce any time period required under this part where necessary to avoid prejudicing the public interest or the rights of the parties.3. Entry of orders. In computing any time period involving the date of the issuance of an order or decision by the Commission, the date of issuance is the date the order or decision is served by the Chief Commissioner on the panel assigned to adjudicate the matter at issue.4. Computation of time for delivery by mail. Documents are not filed until received by the Chief Commissioner. However, when documents are filed by mail, three days shall be added to the prescribed time period. (i) Service is effected at the time of mailing.(ii) When a party has the right or is required to take an action within a prescribed period after the service of a document upon the party, and the document is served by mail, three days shall be added to the prescribed period.(d) Service and filing. 1. Generally. Copies of all filed documents shall be served on all parties of record. All filed documents shall clearly designate the docket number, if any, and title of the proceeding. If the Administrator is not a party to the proceeding, all documents to be filed shall be delivered or mailed to the Commission at 710 Cain Tower, Peachtree Center, 229 Peachtree Street, N.E., Atlanta, Georgia 30303-1605. If the Administrator is a party to the proceeding, all documents to be filed shall be delivered or mailed to the Chief Commissioner at the address shown in the Charge upon assignment of the panel to adjudicate the matter.2. By parties. Parties shall file all documents with the Chief Commissioner and the Commission with a copy to all other parties of record. Service of documents upon any party may be made by personal service or by mailing a copy to the last known address. When a party is represented by an attorney, service shall be made upon the attorney. The person serving the document shall certify to the manner and date of service.3. By the Panel. The Chief Commissioner of the panel shall serve all notices, orders, decisions and all other documents by mail to the last known address of each party.(2) BOARD OF COMMISSIONERS. (a) Designation. 1. Proceedings under this part shall be presided over by a panel of at least three members of the Board of Commissioners of the Commission on Equal Opportunity, as provided for pursuant to O.C.G.A. Section 8-3-213(e).2. The Board shall annually designate panels made up of at least three members from the Board of Commissioners which will preside over proceedings adjudicated under O.C.G.A. Section 8-3-213(e). At least one of the commissioners on each panel must be an attorney licensed to practice law in the state. At the time the Board designates panel members, the Board shall also designate the Chief Commissioner of each such panel and he or she will be responsible for accepting documents for filing and issuing notices, orders, decisions and all other documents throughout the course of the proceeding.(b) Authority. 1. The panel shall have all the powers necessary to the conduct of fair and impartial hearings as well as authority granted to agencies in conducting hearings and rendering final orders under Chapter 13 of Title 50, the "Georgia Administrative Procedure Act," including, but not limited to the power:(i) To conduct hearings in accordance with this part;(ii) To administer oaths and affirmations and examine witnesses;(iii) To issue subpoenas in accordance with Rule 186-2-.04(6);(iv) To rule on offers of proof and receive evidence;(v) To take depositions or have depositions taken when the ends of justice would be served;(vi) To regulate the course of the hearing and the conduct of parties and their counsel;(vii) To hold conferences for the settlement or simplification of the issues by consent of the parties;(viii) To dispose of motions, procedural requests, and similar matters;(ix) To make initial decisions as described under Rule 186-2-.04(9);(x) To exercise such powers vested in the Administrator as are necessary and appropriate for the purpose of the hearing and conduct of the proceeding.(c) Disqualification. 1.Disqualification. If any member of the panel assigned to adjudicate a matter finds that there is a basis for his or her disqualification in a proceeding, the Commissioner shall withdraw from the proceeding. Withdrawal is accomplished by entering a notice in the record and by providing a copy of the notice to the Chief Commissioner.2.Motion for recusal. If a party believes that the Chief Commissioner or any other members of the assigned panel of Commissioners should be disqualified in a proceeding for any reason, the party may file a motion to recuse with the Chief Commissioner of the panel. The motion shall be supported by an affidavit setting forth the alleged grounds for disqualification. The assigned panel of Commissioners shall rule on the motion. If the panel denies the motion, the Chief Commissioner shall incorporate a written statement of the reasons for the denial in the record.3.Redesignation of Commissioner. If a Commissioner is disqualified, the Chief Commissioner, or another member of the panel, shall designate another Commissioner to replace the Commissioner recused.(d) Ex Parte communications. 1. General. Any ex parte communication is any direct or indirect communication concerning the merits of a pending proceeding, made by a party in the absence of any other party, to the Chief Commissioner or any of the panel members assigned to the proceeding and which was neither on the record nor on reasonable prior notice to all parties. Ex parte communications do not include communications made for the sole purpose of scheduling hearings, requesting extensions of time, or requesting information on the status of cases.2. Prohibition. Ex parte communications are prohibited.3. Procedure upon receipt. If any member of the panel of Commissioners assigned to a case receives an ex parte communication that the Commissioner knows or has reason to believe is prohibited, the Commissioner shall promptly place the communication, or a written statement of the substance of the communication, in the record and shall furnish copies to all parties. Unauthorized communications shall not be taken into consideration in deciding any matter in issue. Any party making a prohibited ex parte communication may be subject to sanctions including, but not limited to, exclusion from the proceeding, and adverse ruling on the issue that is the subject of the prohibited communication.(e) Separation of functions. No officer, employee, or agent of the State government engaged in the performance of investigative, conciliatory, or prosecutorial functions in connection with the proceeding shall, in that proceeding or any factually related proceeding under this part, participate or advise in the decision of the panel, except as a witness or counsel during the proceedings.(3) PARTIES. (a) In general. 1. Parties. Parties to the proceeding include:(i) The Commission. The Commission files the charge under Rule 186-2-.03(6)(b) seeking appropriate relief for an aggrieved party and vindication of the public interest.(ii) Respondent. The respondent is a person named in the charge issued under Rule 186-2-.02(6)(b) against whom relief is sought.(iii) Intervenors. An aggrieved person may file a request for intervention under Rule 186-2-.04(4)(d). Intervention shall be permitted if the request is timely and; (I) The intervenor is the aggrieved person on whose behalf the charge is issued; or(II) The intervenor is an aggrieved person who claims an interest in the property or transaction that is the subject of the charge and the disposition of the charge may as a practical matter impair or impede the aggrieved person's ability to protect that interest, unless the aggrieved person is adequately represented by the existing parties.2. Rights of the parties. Each party may appear in person, be represented by counsel, examine or cross-examine witnesses, introduce documentary or other relevant evidence into the record, and request the issuance of subpoenas.3. Amicus Curiae. Briefs of amicus curiae may be permitted at the discretion of the panel of Commissioners. Such participants are not parties to the proceeding.(b) Representation. 1. Representation of the Commission. The Commission is represented by the Attorney General, when the Commission is a part to a proceeding in state court or U.S. District Court.2. Representation of other parties. Other parties maybe represented as follows: (i) Individuals may appear on their own behalf;(ii) A member of a partnership may represent the partnership;(iii) An officer of a corporation, trust or association may represent the corporation, trust or association;(iv) An officer or employee of any governmental unit, agency or authority may represent that unit, agency or authority;(v) An attorney admitted to practice in the State of Georgia or in any state. The attorney's representation that he or she is in good standing in any state is sufficient evidence of the attorney's qualifications under this section, unless otherwise ordered by the panel of Commissioners.3. Notice of appearance. Each attorney or other representative of a party shall file a notice of appearance. The notice must indicate the party on whose behalf the appearance is made. Any individual acting in a representative capacity may be required by the panel to demonstrate authority to act in that capacity.4. Withdrawal. An attorney or other representative of a party must file a written notice of intent before withdrawing from participation in the proceeding.(c) Standards of conduct. 1. In general. All persons appearing in proceedings under this part shall act with integrity and an ethical manner.2. Exclusion. The panel may exclude parties or their representatives for refusal to comply with directions, continued use of dilatory tactics, refusal to adhere to reasonable standards of orderly and ethical conduct, failure to act in good faith, or violations of the prohibitions against ex parte communications. If an attorney is suspended or barred from participation in a proceeding by the panel, the panel shall include in the record the reasons for the action. An attorney that is suspended or barred from participation may appeal to another attorney member of the Board of Commissioners. The proceeding will not be delayed or suspended pending disposition on the appeal except that the panel shall suspend the proceeding for a reasonable time to enable the party to obtain another attorney.(4) PLEADING AND MOTIONS. (a) In general. 1. Form. Every pleading, motion, brief, or other document shall contain a caption setting forth the title of the proceeding, the docket number assigned by the Commission, and the designation of the type of document (e.g., charge, answer or motion to dismiss).2. Signature. Every pleading, motion, brief, or other document filed by a party shall be signed by the party, the party's representative, or the attorney representing the party, and must include the signer's address and telephone number. The signature constitutes a certification that the signer has read the document; that to the best of the signer's knowledge, information and belief there is good ground to support the document; and that it is not interposed for delay.3. Timely filing. The panel may refuse to consider any motion or other pleading that is not filed in a timely fashion and in compliance with this part.(b) The charge. 1. Filing and service. Within three days after the issuance of a charge under Rule 186-2-.03(6)(b), the Administrator shall file the charge with the Chief Commissioner of the panel assigned to the matter and serve copies (with the additional information required under paragraph 2. of this section) on the respondent and the aggrieved person on whose behalf the complaint was filed.2. Contents. The charge shall consist of a short plain written statement of the facts upon which the Administrator has found reasonable cause to believe that a discriminatory housing practice has occurred or is about to occur. The following notifications shall be served with the charge:(i) The notice shall state that a complainant (including the Commission, if the Commission filed the complaint), a respondent, or an aggrieved person on whose behalf the complaint was filed may elect to have the claims asserted in the charge decided in a civil action under O.C.G.A. Section 8-3-213(a)(1) of the Act, in lieu of an administrative proceeding under this part. The notice shall state that the election must be made not later than 20 days after the receipt of the service of the charge. Where the Commission is the complainant, the Administrator must make the election not later than 20 days after the service of the charge. The notice shall state that the notification of the election must be served on the Chief Commissioner, the respondent, the aggrieved party on whose behalf the complaint was filed, and the Administrator.(ii) The notice shall state that if no person timely elects under paragraph 2. (i) of this section to have the claims asserted in the charge decided in a civil action under O.C.G.A. Section 8-3-213(a)(1) of the Act, an administrative proceeding will be conducted. The notice shall state that if an administrative hearing is conducted: (I) The parties will have an opportunity for a hearing at a date and place specified in the notice;(II) The respondent will have an opportunity to file an answer to the charge within 30 days of the date of the service of the charge;(III) The aggrieved person may participate as a party to the administrative proceeding by filing a timely request for intervention;(IV) All discovery must be concluded 15 days before the date set for hearing.(iii) The notice shall state that if at any time following the service of the charge on the respondent, the respondent intends to enter into a contract, sale, encumbrance, or lease with any person regarding the property that is the subject of the charge, the respondent must provide a copy of the charge to the person before the respondent and the person enter into the contract, sale, encumbrance or lease.(c) Answer to charge. 1. Within the 30 days after the service of the charge, a respondent contesting material facts alleged in a charge or contending that the respondent is entitled to judgment as a matter of law shall file an answer to the charge. An answer shall include: (i) A statement that the respondent admits, denies, or does not have and is unable to obtain sufficient information to admit or deny, each allegation made in the charge. A statement of lack of information shall have the effect of a denial. Any allegation that is not denied shall be deemed to be admitted.(ii) A statement of each affirmative defense and a statement of facts supporting each affirmative defense.(d) Request for intervention. Upon timely application, any aggrieved person may file a request for intervention to participate as a party to the proceeding. Requests for intervention submitted within 30 days after the filing of the charge shall be considered to be timely filed.(e) Amendments and supplemental pleading. 1. Amendments By Right. The Commission may amend its charge once as a matter of right prior to filing of the answer.2. By leave. Upon such conditions as are necessary to avoid prejudicing the public interest and the rights of the parties, the panel may allow amendments to pleading upon motion of the party.3. Conformance to the evidence. When issues not raised by the pleading are reasonably within the scope of the original charge and have been tried by the express or implied consent of the parties, the issues shall be treated in all respects as if they had been raised in the pleading and amendments may be made as necessary to make the pleading conform to evidence.4. Supplemental pleading. The panel may, upon reasonable notice, permit supplemental pleading concerning transactions, occurrences or events that have happened or been discovered since the date of the pleading and which are relevant to any of the issues involved.(f) Motions. 1. Motions. Any application for an order or other request shall be made by a motion which, unless made during an appearance before the panel, shall be made in writing. Motions or requests made during an appearance before the panel shall be stated orally and made a part of the transcript. All parties shall be given a reasonable opportunity to respond to written or oral motions or requests.2. Answers to written motions. Within five days after a written motion is served, any party to the proceeding may file an answer in support of, or in opposition to the motion. Unless otherwise ordered by the panel, no further responsive documents may be filed.3. Oral argument. The panel may order oral argument on any motion.(5) DISCOVERY. (a) Discovery. 1. In general. This subpart governs discovery in aid of administrative proceedings under this Part. Except for time periods stated in these rules, to the extent that these rules conflict with discovery procedures in aid of civil actions in the Superior Courts of the State of Georgia in which the investigation of the discriminatory housing practice took place, the rules contained in the Civil Practice Act, codified at O.C.G.A. Section 9-11-1et seq., apply.2. Scope. The parties are encouraged to engage in voluntary discovery procedures. Discovery shall be conducted as expeditiously and inexpensively as possible, consistent with the needs of all parties to obtain relevant evidence. Unless otherwise ordered by the panel, the parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the proceeding, including the existence, description, nature, custody, condition, and location of documents or persons having knowledge of any discoverable matter. It is not grounds for objection that information sought will not be admissible if the information sought appears reasonably calculated to lead to the discovery of admissible evidence.3. Methods. Parties may obtain discovery by one or more of the following methods: (i) Deposition upon oral examination or written questions;(ii) Written interrogatories;(iii) Requests for production of documents or other evidence, for inspection and other purposes, and physical and mental examinations;(iv) Request for admissions.4. Frequency and sequence. Unless otherwise ordered by the panel or restricted by this subpart, the frequency or sequence of these methods is not limited.5. Completion of discovery. All discovery shall be completed 15 days before the date scheduled for hearing.6. Not intervening aggrieved person. For the purposes of obtaining discovery from a non-intervening aggrieved person, the term "party" as used in this subpart includes the aggrieved person and whose behalf the charge was issued.(b) Depositions. 1. In general. Depositions may be taken upon oral examination or upon written interrogatory before any person having the power to administer oaths.2. Notice. Any party desiring to take the deposition of a witness shall indicate to the witness and to all parties the time and place of the deposition, the name and post office address of the person before whom the deposition is to be taken, the name and address of the witness, and the subject matter of the testimony of the witness. Notice of the taking of a deposition shall be given not less than five days before the deposition is scheduled. The attendance of a witness may be compelled by subpoena under Rule 186-2-.04(6).3. Procedure at deposition. Each witness deposed shall be placed under oath or affirmation, and other parties shall have the right to cross-examine. The questions propounded and all answers and objections shall be reduced to writing; read by or to, and subscribed by, the witness; and certified by the person before whom the deposition was taken.4. Objections. During a deposition, a party or deponent may request suspension of the deposition on grounds of bad faith in the conduct of the examination, oppression of a deponent or party, or improper questioning or conduct. Upon the request for suspension, the deposition will be adjourned. The objecting party or deponent must immediately move the panel for a ruling on the objections. The panel may then limit the scope or manner of taking the deposition.5. Payment of costs of deposition. The party requesting the deposition shall bear all costs of the deposition.(c) Use of deposition at hearings. 1. In general. At the hearing, any part or all of a deposition, so far as admissible under the Civil Practice Act, may be used against any party who was present or represented at the taking of the deposition or who had due notice of the taking of the deposition, in accordance with the following provisions:(i) Any deposition maybe used by any party for the purpose for contradicting or impeaching the testimony of the deponent as a witness.(ii) The deposition of expert witnesses, may be used by any party for any purpose, unless the panel rules that such use is unfair or a violation of due process.(iii) The deposition of a party or of anyone who at the time of the taking of the deposition was an officer, director, or duly authorized agent of a public or private corporation, partnership, or association that is a party, may be used by any other party for any purpose.(iv) The deposition of a witness, whether or not a party, may be used by any party for any purpose if the panel finds:(I) That the witness is dead;(II) That the witness is out of the State or more than 100 miles from the place of hearing, unless it appears that the absence of the witness was procured by the party offering the deposition;(III) That the witness is unable to attend to testify because of age, sickness, infirmity, or imprisonment;(IV) That the party offering the deposition has been unable to procure the attendance of the witness by subpoena; or(V) Whenever exceptional circumstances exist as to make it desirable, in the interest of justice and with due regard to the importance of presenting the testimony of witnesses orally in open hearing, to allow the deposition to be used.(v) If a part of a deposition is offered in evidence by a party, any other party may require the party to introduce all of the deposition that is relevant to the part introduced. Any party may introduce any other part of the deposition.(vi) Substitution of parties does not affect the right to use depositions previously taken. If a proceeding has been dismissed and another proceeding involving the same subject matter is later brought between the same parties or their representative or successors in interests, all depositions lawfully taken in the former proceeding may be used in the latter proceeding.2. Objections to admissibility. Except as provided in this paragraph, objection may be made at the hearing to receiving in evidence any deposition or part of a deposition for any reason that would require the exclusion of the evidence if the witness were present and testifying.(i) Objections to the competency of a witness or to the competency, relevancy, or materiality of testimony are not waived by failure to make them before or during the taking of the deposition, unless the basis of the objection is one which might have been obviated or removed if presented at that time.(ii) Errors and irregularities occurring at the oral examination in the manner of taking the deposition, in the form of the questions or answers, in the oath or affirmation, or in the conduct of parties, and errors of any kind which might be obviated, removed or cured if promptly presented, are waived unless reasonable objection is made at the taking of the deposition.(iii) Objections to the form of written interrogatories are waived unless served in writing upon the party propounding the interrogatories.(d) Written interrogatories. 1. Written interrogatories to parties. Any party may serve on any other party written interrogatories to be answered by the party served. If the part served is a public or private corporation, a partnership, an association, or a governmental agency, the interrogatories may be answered by any authorized officer or agent who shall furnish such information as may be available to the party. A party may serve not more than 30 written interrogatories on another party without an order of the panel.2. Responses to written interrogatories. Each interrogatory shall be answered separately and fully in writing under oath or affirmation, unless the party objects to interrogatory. If a party objects to an interrogatory, the response shall state the reasons for the objection in lieu of an answer. The answer and objections shall be signed by the person making them, except that objections may be signed by the counsel for the party. The party upon whom the interrogatories were served shall serve a copy of the answers and objections upon all parties within 15 days after service of the interrogatories.(e) Production of documents and other evidence; entry upon land for inspection and other purposes; and physical and mental examinations.1. In general. Any party may serve on any other party a request to: (i) Produce and permit the party making the request, or a person acting on the party's behalf, to inspect and copy any designated documents, or to inspect and copy, test, or sample any tangible things that are in the possession, custody, or control of the party upon whom the request is served;(ii) Permit entry upon designated land or other property in the possession or control of the party upon whom the request is served for the purpose of inspection and measuring; photographing, testing, or other purposes stated in paragraph 1. (i) hereof; or(iii) Submit to a physical or mental examination by a physician.2. Contents of request. The request shall: (i) Set forth the items to be inspected by individual item or by category of items;(ii) Describe each item or category with reasonable particularity;(iii) Specify a reasonable time, place and manner for making the inspection and performing the related acts; and(iv) Specify the time, place, manner, conditions, and scope of the physical or mental examination, and the person or persons who will make the examination. A report of the examining physician shall be made in accordance with O.C.G.A. Section 9-11-35(b) of the Civil Practice Act.3. Response to request. Within 15 days of the service of the request, the party upon whom the request is served shall serve a written response on the party submitting the request. The response shall state, with regard to each item or category: (i) That inspection and related activities will be permitted as requested;or(ii) That objection is made to the request in whole or in part. If an objection is made, the response must state the reasons for the objection.(f) Admissions. 1. Request for admissions. A party may serve on any other party a written request for the admission of the genuineness and authenticity of any relevant document described in or attached to the request, or for the admission of the truth of any specified relevant mater of fact.2. Response to request. Each matter for which an admission is requested is admitted unless, within 15 days after service of the request, the party to whom the request is directed serves on the requesting party: (i) A written statement specifically denying the relevant matters for which an admission is requested;(ii) A written statement setting forth in detail why the party cannot truthfully admit or deny the matters; or(iii) Written objections to the request alleging that the matters are privileged or irrelevant, or that the request is otherwise improper.3. The party to whom the request is directed may not give lack of information or knowledge as a reason for failure to admit or deny, unless the party states that it has made a reasonable inquiry and that the information known or readily obtainable is insufficient to enable the party to admit or deny.4. Sufficiency of response. The party requesting admissions may move for a determination of the sufficiency of answers or objections. Unless the panel determines that an objection is justified, the panel shall order that an answer be served. If the Board determines that answer does not comply with the requirements of this section, the panel may order either that the matter is admitted or that an amended answer be served.5. Effect of admission. Any matter admitted under this section is conclusively established unless, upon the motion of a party, the Board permits the withdrawal or amendment of the admission. Any admission made under this section is made for the purposes of the pending proceeding only, is not an admission by the party for any other purpose, and may not be used against the party in any other proceeding.6. Service of requests. Each request for admission and each written response must be served on all parties and filed with the Chief Commissioner of the panel.(g) Supplementation of responses.1. In general. A party who responded to a request for discovery with a response that was complete when made is under no duty to supplement the response to include information acquired after the response was made except: (i) A party is under a duty to timely supplement responses with respect to any question directly addressed to: (I) The identity and location of persons having knowledge of discoverable matters; and(II) The identity of each person expected to be called as an expert witness at the hearing, the subject matter on which the expert witness is expected to testify, and the substance of the testimony.(ii) A party is under a duty to timely amend a previous response if the party later obtains information upon the basis of which:(I) The party knows the response was incorrect when made; or(II) The party knows the response though correct when made is no longer true and the circumstances are such that a failure to amend the response is, in substance, a knowing concealment.2. By order or agreement. A duty to supplement responses may be imposed by order of the panel or by agreement of the parties.(h) Protective orders. 1. Upon motion of a party of a person from whom discovery is sought or in accordance with Rule 186-2-.04(5)(i)3., the panel may make appropriate orders to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense as a result of the requested discovery request. The order may direct that: (i) The discovery may not be had;(ii) The discovery may be had only on specified terms and conditions, including a designation of time and place for discovery;(iii) The discovery may be had by a method of discovery other than that selected by the party seeking discovery;(iv) Certain irrelevant matters may not be the subject of discovery or that the scope of discovery be limited to certain matters;(v) Discovery may be conducted with no one present other than persons designated by the panel;(vi) A trade secret or other confidential research, development or commercial information may not be disclosed, or may be disclosed only in a designated way; or(i) Failure to make or cooperate in discovery.1. Motion to compel discovery. If a deponent fails to answer a question propounded, or a party upon whom a request is made under Rules 186-2-.04(5)(d) through 186-2-.04(5)(f) fails to respond adequately, objects to a request, or fails to permit inspection as requested, the discovering party may move the panel for an order compelling a response or an inspection in accordance with the request. The motion shall:(i) State the nature of the request;(ii) Set forth the response or objection of the party upon whom the request was served;(iii) Present arguments supporting the motion; and(iv) Attach copies of all relevant discovery requests and responses.2. Evasive or incomplete answers. For the purposes of this section, an evasive or incomplete answer or response will be treated as a failure to answer or respond.3. Panel rulings. In ruling on a motion under this section, the panel may enter an order compelling a response or an inspection in accordance with the request, may issue sanctions under paragraph 4. of this section, or may enter a protective order under Rule 186-2-.04(5)(h).4. Sanctions. If a party fails to comply with an order (including an order for taking a deposition, the production of evidence within the party's control, a request for admission, or the production of witness) the panel may: (i) Draw an inference in favor of the requesting party with regard to the information sought;(ii) Prohibit the party failing to comply with the order from introducing evidence concerning, or otherwise relying upon, testimony relating to the information sought;(iii) Permit the requesting party to introduce secondary evidence concerning the information sought;(iv) Strike any appropriate part of the pleadings or other submissions of the party failing to comply with such order; or(v) Take such other action as may be appropriate.(6) SUBPOENAS. (a) Subpoenas. 1. In general. This section governs the issuance of subpoenas in administrative proceedings under this part. Except for time periods stated in these rules, to the extent that this rule conflicts with procedures for the issuance of subpoenas in civil actions in the Superior Courts of the State, the rules of the Civil Practice Act apply.2. Issuance of subpoena. Upon the written request of a party, the Chief Commissioner or any member of the panel may issue a subpoena requiring: (i) The attendance of a witness for the purpose of giving testimony at a deposition;(ii) The attendance of a witness for the purpose of giving testimony at a hearing; and(iii) The production of relevant books, papers, documents, or tangible things.3. Time of request. Requests for subpoenas in aid of discovery must be submitted in time to permit the conclusion of discovery 15 days before the date scheduled for the hearing. If a request for subpoenas of a witness for testimony at a hearing is submitted three days or less before the hearing, the subpoena shall be issued at the discretion of the Chief Commissioner or any member of the panel, as appropriate.4. Service. A subpoena may be served by any person who is not a party and is not less than 18 years of age. Service on a person shall be made by delivering a copy of the subpoena to the person and by tendering witness fees and mileage to that person. When the subpoena is issued on behalf of the Commission, witness fees and mileage need not be tendered with the subpoena.5. Amount of witness fees and mileage. A witness summoned by a subpoena issued under this part is entitled to the same witness and mileage fees as a witness in proceedings in the Superior Courts of the State. Fees payable to a witness summoned by a subpoena shall be paid by the party requesting the issuance of the subpoena, or where the panel determines that a party is unable to pay the fees, the fees shall be paid by the CEO.6. Motion to quash or limit subpoena. Upon a motion by the person served with a subpoena or by a party, made within five days of the service of the subpoena (but in any event not less than the time specified in the subpoena for compliance), the panel may:(i) Quash or modify the subpoena if it is unreasonable and oppressive or for other good cause shown; or(ii) Condition denial of the motion upon the advancement, by the party on whose behalf the subpoena was issued, of the reasonable costs of producing subpoenaed books, papers or documents. Where the circumstances require, the panel may act upon such a motion at any time after a copy of the motion has been served upon the party on whose behalf the subpoena was issued.7. Failure to comply with subpoena. If a person fails to comply with a subpoena issued under this section, the party requesting the subpoena may refer the matter to the Attorney General for enforcement in appropriate proceedings under O.C.G.A. Section 8-3-218(c) of the Georgia Fair Housing Law.(7) PREHEARING PROCEDURES. (a) Prehearing statements. 1. In general. Before the commencement of the hearing, the panel may direct parties to file prehearing statements.2. Contents of statement. The prehearing statement must state the name of the party or parties presenting the statement and, unless otherwise directed by the panel, briefly set forth the following:(i) Issues involved in the proceeding;(ii) Facts stipulated by the parties and a statement that the parties have made a good faith effort to stipulate to the greatest extent possible;(iv) Witnesses (together with a summary of the testimony expected) and exhibits to be presented at the hearing;(v) A brief statement of applicable law;(vi) Conclusions to be drawn;(vii) Estimated time required for presentation of the party's case;(viii) Such other information as may assist in the disposition of the proceeding.(b) Prehearing conference. 1. In general. Before the commencement or during the course of the hearing, the panel may direct the parties to participate in a conference to expedite the hearing.2. Matters considered. At the conference, the following matters may be considered: (i) Simplification and clarification of the issues;(ii) Necessary amendments to the pleadings;(iii) Stipulations of fact and of the authenticity, accuracy, and admissibility of documents;(iv) Limitations on the number of witnesses;(v) Negotiation, compromise, or settlement of issues;(vi) The exchange of proposed exhibits;(vii) Matters of which official notice will be requested;(viii) A schedule for the completion of actions discussed at the conference;(ix) Such other information as may assist in the disposition of the proceeding.3. Conduct of conference. The conference may be conducted by telephone, correspondence or personal attendance. Conferences, however, shall generally be conducted by a conference call, unless the panel determines that this method is impracticable. The panel shall give reasonable notice of the time, place and manner of the conference.4. Record of conference. Unless otherwise directed by the panel, the conference will not be stenographically recorded. The panel will reduce the actions taken at the conference to a written order or, if the conference takes place less than seven days before the beginning of the hearing, may make a statement on the record summarizing the actions taken at the conference.(c) Settlement negotiations before a settlement commissioner.1. Appointment of settlement commissioner. The panel, upon the motion of a party or upon its own motion, may request the panel to appoint another Commissioner, not necessarily a member of the panel, to conduct settlement negotiations. The order appointing the settlement commissioner may confine the scope of settlement negotiations to specified issues. The order shall direct the settlement commissioner to report to the Chief Commissioner on the panel assigned to hear the matter within specified time periods.2. Duties of settlement commissioner. The settlement commissioner shall convene and preside over conferences and settlement negotiations between the parties and assess the practicalities of a potential settlement.(i) The settlement commissioner shall report to the Chief Commissioner of the assigned panel describing the status of the settlement negotiations, evaluating settlement prospects, and recommending the termination or continuation of settlement negotiations.3. Termination of settlement negotiations. Settlement negotiations shall terminate upon the order of the panel issued after consultation with the settlement commissioner.(8) HEARING PROCEDURES. (a) Date and place of hearing. 1. Date. The hearing shall commence not later than 120 days following the issuance of the charge under Rule 186-2-.03(6)(b), unless it is impracticable to do so. If the hearing cannot be commenced within this time period, the panel shall notify in writing all parties, the aggrieved persons on whose behalf the charge was filed, and the Administrator, of the reasons for the delay.2. Place. The hearing will be conducted at a place in the vicinity in which the discriminatory housing practice is alleged to have occurred or to be about to occur.3. Notification of time and place for hearing. The charge issued under Rule 186-2-.02(6)(b) will specify the time, date and place for the hearing. The panel may change the time, date or place of the hearing, or may temporarily adjourn or continue a hearing for good cause shown. If such a change is made or the hearing is temporarily adjourned, the panel shall give the parties at least five days notice of the revised time, date and place for the hearing, unless otherwise agreed by the parties.(b) Conduct of hearings. The hearings shall be conducted in accordance with the Administrative Procedure Act (O.C.G.A. Section 50-13-13et seq.)(c) Waiver of right to appear. If all parties waive their right to appear before the panel or to present evidence and arguments, it is not necessary for the panel to conduct an oral hearing. Such waivers shall be made in writing and filed with the Chief Commissioner of the panel. Where waivers are submitted by all parties, the panel shall make a record of the relevant written evidence submitted by the parties and pleadings submitted by the parties with respect to the issues in the proceeding. These documents shall constitute the evidence in the proceeding and the decision shall be based upon this evidence. Such hearings shall be deemed to commence on the first day that written evidence may be submitted for the record.(d) Evidence. The rules of evidence contained in the Civil Practice Act shall apply to the presentation of evidence in hearings under this part.(e) In camera and protective orders. The panel may limit discovery or the introduction of evidence, or may issue such protective or other orders necessary to protect privileged communications. If the panel determines that information in documents containing privileged matters should be made available to a party, the panel may order the preparation of a summary or extract of the nonprivileged matter contained in the original.(f) Exhibits. 1. Identification. All exhibits offered into evidence shall be numbered sequentially and marked with a designation identifying the party offering the exhibit.2. Exchange of exhibits. One copy of each exhibit offered into evidence must be furnished to each of the parties and to the panel. If the panel does not fix a time for the exchange of exhibits, the parties shall exchange copies of exhibits at the earliest practicable time before the commencement of the hearing. Exhibits submitted as rebuttal evidence are not required to be exchanged before the commencement of the hearing if the submission of such evidence could not reasonably be anticipated at that time.(g) Authenticity. The authenticity of all documents furnished to the parties as required under Rule 186-2-.04(8)(f) and submitted as proposed exhibits in advance of the hearing shall be admitted unless a party files a written objection to the exhibit before the commencement of the hearing. Upon a clear showing of good cause for failure to file such a written objection, the panel may permit the party to challenge the authenticity.(h) Stipulations. The parties may stipulate to any pertinent facts by oral agreement at the hearing or by written agreement at any time. Stipulations may be submitted into evidence at any time before the end of the hearing. When received into evidence, the stipulation is binding on the parties.(i) Record of hearing. 1. Hearing record. All oral hearings shall be recorded and transcribed by a reporter designated by, and under the supervision of, the panel. The original transcript shall be a part of the record and shall constitute the sole official transcript. All exhibits introduced as evidence shall be marked for identification and incorporated as a part of the record. Transcripts may be obtained by the parties and by the public from the official reporter at rates not to exceed the applicable rates fixed by the contract with the reporter.2. Corrections. Corrections to the official transcript will be permitted upon motion of a party. Motions for correction must be submitted within five days of the receipt of the transcript. Corrections of the official transcript will be permitted only where errors of substance are involved and upon the approval of the panel.(j) Arguments and briefs. 1. Arguments. Following the submission of evidence at an oral hearing, the panel may hear oral arguments at the hearing. The panel may limit the time permitted for such arguments to avoid unreasonable delay.2. Submission of written briefs. The panel may permit the submission of written briefs following the adjournment of the oral hearing. Written briefs shall be simultaneously filed by all parties and shall be due not later than 30 days following the adjournment of the oral hearing.(k) End of hearing. 1. Oral hearings. Where there is an oral hearing, the hearing ends on the day of the adjournment of the oral hearing or, where written briefs are permitted, on the date that the written briefs are due.2. Hearing on written record. Where the parties have waived an oral hearing, the hearing ends on the date set by the panel as the final date for the receipt of submissions by the parties. (l) Receipt of evidence following hearing. 1. Following the end of the hearing, no additional evidence may be accepted into the record, except with the permission of the panel. The panel may receive additional evidence upon a determination that new and material evidence was not readily available before the end of the hearing, the evidence has been timely submitted, and its acceptance will not unduly prejudice the rights of the parties. However, the panel shall include in the record any motions for attorneys' fees (including supporting documentation), and any approved corrections to the transcripts.(9) DISMISSALS AND DECISIONS.(a) Dismissal. 1. Election of judicial determination. If the complainant, the respondent, or the aggrieved person on whose behalf a complaint was filed makes a timely election to have the claims asserted in the charge decided in a civil action under O.C.G.A. Section 8-3-213(a) of the Act, the panel shall dismiss the administrative proceeding.2. Effect of a civil action on administrative proceeding. The panel may not continue an administrative proceeding under this part regarding an alleged discriminatory housing practice after the beginning of the trial of a civil action commenced by the aggrieved person under an act of Congress or the Georgia Fair Housing Law seeking relief with respect to that discriminatory housing practice. If such a trial is commenced, the panel shall dismiss the administrative proceeding. The commencement and maintenance of a civil action for appropriate temporary or preliminary relief under O.C.G.A. Section 8-3-209(f)(1) or proceedings for such relief under O.C.G.A. Section 8-3-217 of the Act does not affect administrative proceedings under this part.(b) Initial decision of panel. 1. In general. Within the time period set forth in paragraph 4. of this section, the panel shall issue an initial decision including findings of fact and conclusions of law upon each material issue of fact or law presented on the record. The initial decision of the panel shall be based on the record of the proceeding.2. Finding against respondent. If the panel finds that a respondent has engaged, or is about to engage, in a discriminatory housing practice, the panel shall issue an initial decision against the respondent and order such relief as may be appropriate. The relief may include, but is not limited to, the following: (i) The panel may order the respondent to pay damages to the aggrieved person (including damages caused by humiliation and embarrassment).(ii) The panel may provide for injunctive relief or such other equitable relief as may be appropriate. No such order may affect any contract, sale, encumbrance or lease consummated before the issuance of the initial decision that involved a bona fide purchaser, encumbrance or tenant without actual knowledge of the charge issued under Rule 186-2-.03(6)(b).(iii) To vindicate the public interest, the panel may assess a civil penalty against the respondent. The amount of the civil penalty may not exceed:(I) $10,000, if the respondent has not been adjudged to have committed any prior discriminatory housing practice in any administrative hearing or civil action permitted under the Georgia Fair Housing Law, the Federal Fair Housing Act, or any other State or local fair housing law, or in any licensing or regulatory proceeding conducted by a Federal, State or local governmental agency.(II) $25,000, if the respondent has been adjudged to have committed one other discriminatory housing practice in any administrative hearing or civil action permitted under the Georgia Fair Housing Law, or the Federal Fair Housing Act, or any other State or local fair housing law, or in any licensing or regulatory proceeding conducted by a Federal, State or local government agency, and the adjudication was made during the five-year period preceding the date of filing of the charge.(III) $50,000, if the respondent has been adjudged to have committed two or more discriminatory housing practices in any administrative hearings civil action permitted under the Georgia Fair Housing Law, the Federal Fair Housing Act, or any other State or local fair housing law, or in any licensing or regulatory proceeding conducted by a Federal, State, or local government agency, and the adjudications where made during the seven-year period preceding the date of filing of the charge.(iv) If the acts constituting the discriminatory housing practice that is the subject of the charge were committed by the same natural person who has previously been adjudged, in any administrative proceeding or civil action, to have committed acts constituting a discriminatory housing practice, the time periods set forth in paragraphs 2. (iii)(I),(II) and (III) of this section do not apply.(v) In a proceeding involving two or more respondents, the panel may assess a civil penalty as provided under paragraph 2. of this section against each respondent that the panel determines has been engaged or is about to engage in a discriminatory housing practice.3. Finding in favor of respondent. If the panel finds that a respondent has not engaged, and is not about to engage, in a discriminatory housing practice, the panel shall make an initial decision dismissing the charge.4. Date of issuance. The panel shall issue an initial decision within 60 days after the end of the hearing, unless it is impracticable to do so. If the panel is unable to issue the initial decision within this time period (or within any succeeding 60-day period following the initial 60-day period), the panel shall notify in writing all parties, the aggrieved person on whose behalf the charge was filed, and the Administrator, of the reasons for the delay.(c) Service of initial decision. Simultaneously with the issuance of the initial decision, the panel shall serve the initial decision on all parties, the aggrieved person on whose behalf the charge was filed, and the Administrator. The initial decision will include a notice stating that the initial decision will become the final decision of the Commission unless a majority of the entire Board of Commissioners issues a final decision under Rule 186-2-.04(9)(d) within 30 days of the date of the issuance of the initial decision.(d) Resolution of charge. At any time before the issuance of a final decision under Rule 186-2-.04(9)(e), the parties may submit an agreement resolving the charge. The agreement must be signed by the Administrator, the respondent, and the aggrieved person upon whose behalf the charge was issued. The panel shall accept the agreement by issuing an initial decision based on the agreed findings. The submission of an agreement resolving the charge constitutes a waiver of any right to challenge or contest the validity of a decision entered in accordance with the agreement.(e) Final decision. 1. Issuance of final decision by the entire board of commissioners. The Board of Commissioners may review any finding of fact, conclusion of law, or order contained in the initial decision of the panel and issue a final decision in the proceeding. A majority of the Board may affirm, modify or set aside, in whole or in part, the initial decision or remand the initial decision for further proceedings. The Board shall serve the final decision on all parties no later than 30 days from the date of issuance of the initial decision of the panel. The final decision shall be served on all parties, the aggrieved person on whose behalf the charge was filed, and the Administrator.2. No final decision by the board. If the Board does not serve a final decision within the time period described above, the initial decision of the panel will become the final decision of the Commission. For the purposes of this part, such a final decision will be considered to have been issued 30 days following the date of issuance of the initial decision.3. Public disclosure. The Commission shall make public disclosure of each final decision.4. Decisions on remand. If the Board remands the decision for further proceedings, the panel shall issue an initial decision on remand within 60 days of the date of issuance of the Board's decision, unless it is impractical to do so. If the panel is unable to issue the initial decision within this time period (or within any succeeding 60-day period following the initial 60-day period), the panel shall notify in writing the parties, the aggrieved person on whose behalf the charge was filed, and the Administrator, of the reasons for the delay.(f) Action upon issuance of a final decision. 1. Licensed or regulated businesses. If a final decision includes a finding that a respondent has engaged or is about to engage in a discriminatory housing practice in the course of a business that is subject to licensing or regulation by a Federal, State or local governmental agency, the Administrator will notify the governmental agency of the decision by:(i) Sending copies of the findings of fact, conclusions of law and the final decision to the governmental agency by certified mail; and(ii) Recommending appropriate disciplinary action to the governmental agency, including, where appropriate, the suspension or revocation of the license of the respondent.(iii) The Administrator shall notify the appropriate governmental agencies within 30 days alter the date of issuance of the final decision, unless a petition for judicial review of the final decision as described in Rule 186-2-.04(10) has been filed before the issuance of the notification of the agency. If such a petition has been filed, the Administrator will provide the notification to the governmental agency within 30 days of the date that the final decision is affirmed upon review. If a petition for judicial review is timely filed following the notification of the governmental agency, the Administrator will promptly notify the government agency of the petition and withdraw his or her recommendation.2. Notification to the Attorney General. If a final decision includes a finding that a respondent has engaged or is about to engage in a discriminatory housing practice and another final decision including such a finding was issued under this part within the five years preceding the date of issuance of the final decision, the Administrator will notify the Attorney General of the decisions by sending a copy of the final decisions in each administrative proceeding.(g) Attorney's fees and costs. 1. Following the issuance of the final decision under Rule 186-2-.04(9)(e), any prevailing party may apply for attorneys' fees and costs. The panel will issue an initial decision awarding or denying such fees and costs. The initial decision will become the final decision of the Commission unless the Board reviews the initial decision and issues a final decision on fees and costs within 30 days. The recovery of reasonable attorney's fees and costs will be permitted as follows:(i) If the respondent is the prevailing party, an intervenor will be liable for reasonable attorney's fees and costs only to the extent that the intervenor's participation in the administrative proceeding was frivolous or vexatious, or was for the purpose of harassment.(ii) To the extent that an intervenor is a prevailing party, the respondent will be liable for reasonable attorney's fees unless special circumstances make the recovery of such fees and costs unjust.(10) JUDICIAL REVIEW AND ENFORCEMENT OF FINAL DECISION.(a) Judicial review of final decision.1. Petition for review. Any party adversely affected by a final decision under Rule 186-2-.04(9)(e) may file a petition in the appropriate State Superior Court for review of the decision under O.C.G.A. Section 8-3-215(a) of the Georgia Fair Housing Law. The petition must be filed within 30 days of the date of issuance of the final decision.2. No petition for review. If no petition for review is filed under paragraph 1. within 45 days from the date of issuance of the final decision, the findings of fact and final decision shall be conclusive in connection with any petition for enforcement described under Rule 186-2-.04(10)(a)1. filed there after by the Administrator, and in connection with any petition for enforcement described under Rule 186-2-.04(10)(a)2.(b) Enforcement of final decision. 1. Enforcement by the Commission. Following the issuance of a final decision under Rule 186-2-.04(9)(e), the Administrator may petition the appropriate State Superior Court for the enforcement of the final decision and for appropriate temporary relief or restraining order after the final decision has been made an order of the court in accordance with O.C.G.A. Section 8-3-216.2. Enforcement by others. If before the expiration of 60 days from the date of issuance of the final decision under Rule 186-2-.04(9)(e), no petition for review of the final decision described under Rule 186-2-.04(10)(a) has been filed, and the Administrator has not sought enforcement of the final decision as described in paragraph 1. of this section, any person entitled to relief under the final decision may petition the appropriate State Superior Court for the enforcement of the final decision.Ga. Comp. R. & Regs. R. 186-2-.04
O.C.G.A. Secs. 8-3-201, 8-3-212(a)(b)(c), 8-3-212(c)(1)(2), 8-3-213, 8-3-213(a), 8-3-213(c)(1), 8-3-213(e)(1), 8-3-213(5)(1)(A)(B), 8-3-213(e)(1)(B), 8-3-213(e)(1)(8), 8-3-213(e)(3), 8-3-213(e)(4), 8-3-213(e)(7(, 8-3-214, 8-3-214(a)(b), 8-3-214(b), 8-3-214(c), 8-3-215(a), 8-3-215(c), 8-3-216, 8-3-217, 8-3-218(c), 9-11-5, 9-11-6(e).
Original Rule entitled "Administrative Proceedings Under O.C.G.A. Section 8-3-213 of the Georgia Fair Housing Law. as Amended" adopted. F. Dec. 29, 1992; eff. Jan. 18, 1993.