Draft Ordinance

Here is the September 26 draft "Equitable and Inclusive Practices" ordinance presented at the City Council work session.

PROPOSED DRAFT AS OF 9.26.2022

AN ORDINANCE TO AMEND THE CODE OF ORDINANCES OF THE CITY OF TUCKER, GEORGIA, BY ADOPTING A NEW ARTICLE VIII, “EQUITABLE AND INCLUSIVE PRACTICES” IN CHAPTER 30, “OFFENSES AND MISCELLANEOUS PROVISIONS” AND FOR ALL OTHER LAWFUL PURPOSES

Be it ordained and it is hereby ordained by the Mayor and City Council of Tucker, Georgia that the Code of Ordinances of the City of Tucker shall be amended as follows:

PART I:
A new Article VIII titled “Equitable and Inclusive Practices” shall be created in Chapter 30, “Offenses and Miscellaneous Provisions”, which shall read as follows:

ARTICLE VIII – EQUITABLE AND INCLUSIVE PRACTICES

Sec. 30-301 - Purpose and Intent. It is the purpose and intent of the Mayor and City Council of Tucker to protect and safeguard the right and opportunity of all persons to be free from discrimination, including discrimination based on actual or perceived sex, sexual orientation, gender identity, race, color, age, disability, national origin, religion, marital status, familial status, veteran or military status. The Mayor and Council's purpose in enacting this ordinance is to promote the public health and welfare of all persons who live and work in the City of Tucker. It is important for the City to ensure that persons within the City have equal access to employment, housing, and public accommodations.
The City of Tucker hereby declares that it is intended that whenever possible any complaints arising under this Ordinance be resolved by good faith discussion, mediation or other forms of voluntary dispute resolution. The City of Tucker further expresses its desire that to the extent possible the parties to any complaint under this ordinance shall work to resolve the complaint with the goal of equity, inclusion and compliance.

Sec. 30-302- Definitions. For the purposes of this ordinance, the following terms shall have the following meanings:

AGE. An individual's status as having obtained forty or more years of age.
BUSINESS. Any person or entity conducting business within the city, which is required to obtain a license or occupational tax certificate. For purposes of the article, no department of any government agency, shall be considered to be a business (notwithstanding licensure by the City).
DISCRIMINATE, DISCRIMINATION OR DISCRIMINATORY. Any act, policy or practice that, regardless of intent, has the effect of subjecting any person to differential treatment as a result of that person's actual or perceived sex, sexual orientation, gender identity, race, color, age, disability, national origin, religion, marital status, familial status, veteran or military status.
EMPLOYEE. Any individual employed by or seeking employment from an employer, excluding any individual employed by his or her parents, spouse or ex-spouse, or child.
EMPLOYER. A person who employs one or more employees in the City of Tucker, or any agent of such person.
FAMILIAL STATUS. Means an individual's past, current or prospective status as parent or legal guardian to a child or children below the age of eighteen (18) who may or may not reside with that individual.
GENDER IDENTITY. The actual or perceived gender-related identity, expression, appearance, or mannerisms, or other gender-related characteristics of an individual, regardless of the individual's designated sex at birth.
HEARING OFFICER. A person charged with determining the validity of alleged violations of this article, and upon determining that a violation has occurred, assessing appropriate damages, penalties, fines or costs. The hearing officer shall be a member of the State Bar of Georgia in good standing and have been a practicing attorney for at least five (5) years.
MARITAL STATUS. An individual's past, current, or prospective status as single, married, domestically partnered, in a civil union, divorced, or widowed.
MEDIATOR. A qualified neutral third party registered with the Georgia Office of Dispute Resolution that will attempt to assist the complainant and the respondent(s) to arrive at a mutual agreement to resolve a complaint.
MEDIATION. A process through which the parties seek to reach an agreed upon resolution of their differences, with the guidance of a neutral mediator. The mediator is not an arbitrator and does not render a ruling. Information provided to the mediator by the parties shall remain confidential unless otherwise consented to by the parties.
NATIONAL ORIGIN. An individual's, or an individual’s ancestor's, place of origin.
PLACE OF PUBLIC RESORT, ACCOMMODATION, ASSEMBLAGE, OR AMUSEMENT. Any place, store, or other establishment, either licensed or unlicensed, that supplies accommodations, goods, or services to the general public, or that solicits or accepts the patronage or trade of the general public, or that is supported directly or indirectly by government funds. This term does not include any private club, bona fide membership organization or other establishment that is not in fact open to the public.
RELIGION. All aspects of religious belief and nonbelief, observance, and practice.
RELIGIOUS ORGANIZATION. An entity, which includes, but is not limited to churches, mosques, synagogues, temples, nondenominational ministries, interdenominational and ecumenical organizations, mission organizations, faith-based social agencies, religious schools and other entities whose principal purpose is the study, practice and advancement of religion.

15. RESPONDENT. The person alleged by the Complainant to have violated a provision of this Article.
16. SEXUAL ORIENTATION. Actual or perceived homosexuality, heterosexuality, bisexuality or asexuality.
17. VERIFIABLE DELIVERY means hand delivery, electronic mail, certified mail, or statutory overnight delivery, provided that the means of delivery allows for verification of the delivery of such notice.
18. VETERAN/MILITARY STATUS. An individual's status as one who serves or served in the United States uniformed services, Army, Navy, Marine Corps, Air Force, Space Force, Coast Guard, the Army National Guard, Air National Guard and Reserve components of federal military service, and the Commissioned Public Health Service, and who was discharged or released under conditions other than dishonorable.

Sec. 30-303 - Civil Rights Declared. The right of an otherwise qualified person to be free from discrimination because of that person's actual or perceived sex, sexual orientation, gender identity, race, color, age, disability, national origin, religion, marital status, familial status, veteran or military status, is recognized as and declared to be a civil right to the extent of the following:

The right to obtain and hold employment and the benefits associated therewith without discrimination.
The right to the full enjoyment of any of the accommodations, advantages, facilities, or privileges of any place of public resort, accommodation, assemblage, or amusement without discrimination.
The right to engage in property transactions, including obtaining housing for rental or sale and credit therefor, without discrimination.
The right to participate as a witness, testify, and exercise any right granted under this ordinance without suffering coercion or retaliation.

Sec. 30-304 - Exceptions.

A religious organization that employs an individual to perform work connected with the organization that insists that the employee adhere to the tenets of the religious organization as a condition of employment.
This ordinance does not prohibit a religious organization from limiting its accommodations, advantages, facilities, membership, and privileges.
An employer who observes the conditions of a bona fide affirmative action plan, and/or a bona fide seniority system which is not a pretext to evade the purposes of this ordinance.
A business is not required to employ unqualified or incompetent personnel.
This ordinance does not prohibit an employer from requiring an employee, during the employee’s hours at work, to adhere to reasonable and equitable dress or grooming standards not prohibited by other provisions of federal, state or local law, provided that all employees are permitted to dress in a manner consistent with their gender identity.
This ordinance does not prohibit a private club in fact not open to the public, which as an incident to its primary purpose provides accommodations and facilities, which it owns or operates for other than a commercial purpose, from limiting the rental or occupancy to its members or from giving preference to its members.
A business is not required to make changes to any existing facility that would require a building permit, except as otherwise required by the Americans with Disabilities Act or other provisions of law.
Housing designated for senior living or for individuals with disabilities, or as otherwise designated or directed by the United States Department of Housing and Urban Development or the State of Georgia and other exceptions included under the Fair Housing Act.
A place of public accommodation to afford beneficial pricing or policies to senior citizens, veterans, students or individuals with disabilities.
A place of public accommodation that includes single-sex designated areas within the place of public accommodations, as long as the place of public accommodation does not discriminate against any other protected group identified in this ordinance.
The right of a place of public accommodation to remove or cause to be removed from such place any person under the influence of alcohol or other drugs, or who is engaged in boisterous conduct or conduct that would constitute criminal activity under any state or federal criminal law, or who violates any regulation of any place of public accommodation that applies to all persons, regardless of sex, sexual orientation, gender identity, race, color, age, disability, national origin, religion, marital status, familial status, veteran or military status.

Sec. 30-305 - Enforcement. Subject to the procedures developed by the City of Tucker, the City shall receive, investigate, seek to conciliate, hold hearings on and/or pass upon complaints alleging violations of this ordinance. Nothing in this chapter shall preclude the Hearing Officer from seeking voluntary compliance with the provisions of this Chapter, or from enforcing this Chapter through notices or warnings of violations or through other informal means designed to achieve compliance in the most efficient and effective manner under the circumstances.

Any person aggrieved by a potential violation of this ordinance may file a complaint with the City Clerk on a form to be provided by the city. The complaint form shall include, but is not limited to, the full name of the complainant, the identity and address of the alleged respondent and a description of the actions alleged to constitute a violation of this article. The complainant shall verify the complaint by providing a sworn statement that the allegations of the complaint are true to the best of the complainant’s knowledge and belief. The City Clerk shall not accept for filing any complaint that fails to comply with the foregoing requirements. Any such complaint must be filed within ninety (90) calendar days after the alleged act of discrimination. A filing fee of $50 shall be paid by the complainant at the time of filing.
To avoid multiple legal actions, if the complainant has filed a complaint with a state or federal agency or court alleging the same facts, the Hearing Officer will dismiss the City of Tucker complaint to allow the appropriate state or federal agency or court to address the allegations.
If the complaint states a claim that would be a violation of existing state or federal law or is within the jurisdiction of a state or federal agency, the Hearing Officer shall refer the complainant to the appropriate agency for action and dismiss the complaint.
The City Clerk shall cause the complaint to be served to the respondent within seven (7) business days of receipt of properly filed complaint via verifiable delivery. The respondent named in the complaint shall have thirty (30) business days to file an answer to the complaint provided, however, the alleged violator shall have no obligation to file an answer to any complaint. The City will provide a form for the respondent but its use will not be mandatory. The respondent shall verify the answer to the complaint by providing a sworn statement that the answer to the complaint is true to the best of the respondent’s knowledge and belief.
The City Clerk shall cause a copy of the complaint to be served upon the Hearing Officer three (3) business days of receipt of properly filed complaint, via electronic mail.
The Hearing Officer shall have fifteen (15) business days to review the complaint and answer, if any, to determine if the complaint is in conformity of the requirements, is unjustified, frivolous, or patently unfounded, or demonstrates facts sufficient enough to invoke disciplinary jurisdiction as set forth in this ordinance. Should the Hearing Officer determine that the complaint does not meet requirements, he/she may dismiss, however must state the reasons for dismissal in his/her written report.
The Hearing Officer shall have the authority to request and share information on referred complaints under this ordinance with the applicable state and/or federal agency(ies) for the purpose determining if the respondent was found in violation or refuses to comply with this ordinance and applicable state and/or federal laws and regulations.
Upon determination that the complaint should not be dismissed, the Hearing Officer shall refer the complaint to a mediator for non-binding mediation. Notice of mediation will be sent to the complainant and respondent not less than ten (10) business days in advance. Participation is voluntary; however, the case shall be dismissed should the complainant not attend or not show just cause for not participating.
The mediator shall be selected by the Hearing Officer from a list of state registered mediators approved by the City Manager and City Attorney. Such mediation services shall be paid by the City, up to a maximum of six (6) hours. The complainant and respondent may agree to obtain additional time with the mediator at their own cost, to be split equally, or as they otherwise agree.
The mediation shall be completed within thirty (30) days, and the Hearing Officer shall be notified by the mediator whether or not the mediation was successful within ten (10) business days of completion.
Within ten (10) business days after the mediator has notified the Hearing Officer that mediation was not successful or if the respondent elects not to participate in mediation, the complaint shall be referred to the Hearing Officer.
In all hearing officer proceedings, the initial burden of proof shall be placed upon the complaining party. Further, the quantum of proof required to establish a violation under this ordinance shall be based upon a preponderance of the evidence.
The Hearing Officer shall be able to advise parties on acceptable evidence and rules for submitting such evidence.
Either party may call a witness by submitting a request in writing to the Hearing Officer, ten (10) business days in advance of the hearing. The request must explain the importance of the witness. Either party may choose to be represented by legal counsel or to not testify.
Within ten (10) business days of conclusion of the hearing, the Hearing Officer shall either:

A) Dismiss the complaint on the grounds that it is unjustified, frivolous, patently unfounded or fails to state facts sufficient to invoke the disciplinary jurisdiction of the City of Tucker, or
B) Find that a violation of this ordinance has occurred, and thus the Hearing Officer may apply a civil penalty. A person or business found to have violated any provisions of this article shall be subject to a civil penalty up to $500 for the first violation and up to $1,000 for each subsequent violation.
C) In addition to or in lieu of a civil penalty, the Hearing Officer may impose or request a corrective action plan for future compliance.
16. The Hearing Officer must submit all documentation of his/her decisions to the City Attorney and City Manager within ten (10) business days of the conclusion and determination of the claim.
17. Any party adversely affected by the final decision regarding the complaint may appeal within thirty (30) days to the Superior Court of DeKalb County pursuant to a writ of certiorari.

Sec. 30-306 - Other Remedies. This ordinance shall not be construed to limit any other remedies available under local, state or federal law.

PART II
The City of Tucker shall not discriminate in matters of employment on the basis of actual or perceived sex, sexual orientation, gender identity, race, color, age disability, national origin, religion, marital status, familial status, veteran or military status.

PART III
Part I of this ordinance shall take effect XX days after passage. Part II of this ordinance shall take effect immediately upon its adoption.

PART IV
The City Manager and City Attorney are authorized to develop administrative procedures as are necessary to give effect to this ordinance.

PART V
The Economic Development Department in conjunction with the Communications Department shall create and implement a plan to inform businesses and residents in the City of Tucker of this ordinance. Plan to include educational opportunities at least once per year.

PART VI
The City’s Finance Director will ensure that a copy of this ordinance be distributed to every holder of an Occupational Tax Certificate within the City of Tucker at least once per year.

PART VII
It is hereby declared to be the intention of the Mayor and City Council that the sections, paragraphs, sentences, clauses and phrases of this ordinance are severable, and if any phrase, clause, sentence, paragraph or section of this ordinance shall be declared unconstitutional by the valid judgment or decree of any court of competent jurisdiction, such unconstitutionality shall not affect any of the remaining phrases, clauses, sentences, paragraphs and sections of this ordinance.

In 2019, we provided the City a draft non-discrimination ordinance for review. It's heavily based on the ordinances adopted by Chamblee and Doraville in 2019.

Here is the original 2019 draft ordinance:

Act