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4-22-14 HRO Workshop MINUTES OF THE WORKSHOP OF ATLANTIC BEACH CITY COMMISSION HELD IN THE COMMISSION CHAMBER ON APRIL 22,2014 City Commission Members present: Mayor Carolyn Woods Mayor Pro Tem Mark Beckenbach Commissioner Jonathan Daugherty(arrived at 5:05) Commissioner Jimmy Hill Commissioner Maria Mark Staff present: Nelson Van Liere, City Manager Richard Komando, City Attorney Donna Bartle, City Clerk Nancy Bailey, Recording Secretary Call to order. The meeting, which was held for the purpose of discussing the proposed Human Rights Ordinance (HRO), was called to order at 5:00 p.m. by Mayor Woods. 1. Opening Remarks Mayor Woods stated this meeting will have a time certain from 5:00 p.m. to 7:00 p.m. and if they have time they will have Courtesy of the Floor at the end of the workshop. She further explained there will be no vote on anything tonight. She turned the meeting over to the City Attorney. 2. Items of Discussion A. Exemptions Mr. Komando stated some of the items they have discussed have been outlined under Item 2 A-D. He stated there are some comments that seem to be conflicting that he is hoping to get a consensus on from the Commission. He stated the first is for the exemption and the general comments he has received are whether or not to add the business exemption and whether or not to add a real estate exemption. He further asked should all businesses be exempted from the application of the ordinance. He stated the secondary proposal was whether or not businesses with 15 or fewer employees should be exempted, a number which was brought forward because the Equal Employment Opportunity Commission(EEOC) does provide a level of protection under Federal regulations for EEOC compliant organizations. He stated the second question was, because of the way some of the housing ordinances were written, the proposal he received was should they exempt individuals who rent out four or fewer units from the application of the discriminatory practice. He stated that would mean anyone who has five or more is really in the business of renting properties and would be subject to the provisions. He asked whether the Commission wants to discuss these one at a time or would they like a broad overview on all four areas. Commissioner Hill stated he believes they should look at the bigger picture. He stated he does not believe this Ordinance serves our citizens in the way they intended and believes the concept is good but they have gotten into an issue that is well beyond their means. He stated he would like to discuss whether there is another means to accomplish what they are trying to do and let the citizens know that they are sensitive to the possibility that discrimination may exist. He stated is there any avenue other than making a law that is unenforceable outside our jurisdiction and creating the dilemma that that law is Minutes—City Commission Workshop April 22,2014 Page 2 clearly going to generate litigation that they will be involved in as a City and that our businesses are going to be involved in. He stated he doesn't understand why they are discussing this; after every turn of the page they discover why they shouldn't be doing it and they keep marching on like it is a good idea and he really thinks they might want to switch gears and come up with a better way to provide what it is. Mayor Woods asked if he had a suggestion for a better way. Commissioner Hill stated he believes they should let the Federal law that currently exists do what it does and if someone has an issue with a discrimination case in Atlantic Beach they can take it through the process that exists currently. He stated the word sex is clearly defined and if sexual discrimination doesn't apply, what does. Mayor Woods asked if the Federal law already takes care of this, why is there a movement for people coming forward wanting these kinds of laws. She stated obviously there is something missing in whatever is at the Federal or State level. She stated if there is a movement at the State level to bring this legislation up, then there is something that is not being covered at the Federal level. Commissioner Daugherty stated he has had discussions with proponents of this ordinance and they told him they are not having luck at the State or Federal level so what they need to do is get ordinances at the City level so they can convince the State level that they need something done. He stated basically they are using us to do activism. Mayor Woods stated that is pretty much how things get done in democracy. Commissioner Mark stated if these protections were already in place they wouldn't be having this conversation. She stated the definition of sex under the State and Federal laws does not cover the LGBT community; it only covers whether a male has been discriminated against as a male or whether a female has been discriminated against as a female. Discussion ensued. Commissioner Mark stated Mr. Komando had done a great job in looking at this and at the way other ordinances have been enforced and are being enforced and believes if they ever get to that portion of this workshop then they can talk about that. She stated they are already making assumptions and jumping to conclusions before they have had a fair chance to really discuss it and are shooting this down based on their perceptions without the Commission even discussing it yet. She stated if they believe, as an elected official, that it is not part of their duty to represent the citizens and to support legislation that gives citizens a fair quality of life here, then she is not sure why they are here, because that is where most of these laws have been enacted, from the grassroots up. Mayor Woods stated she knows there are a lot of people in this community that this affects. She stated it is our duty and responsibility to create a fair and equitable lifestyle for everybody in our community. She stated by just categorically saying no, this is over our head, they are shutting a lot of people out. Further discussion ensued. Commissioner Beckenbach asked the City Attorney to give an opinion regarding frivolous lawsuits and what would be considered frivolous at this time. Mr. Komando stated a concern early on by those on the Commission was if someone created an allegation that wasn't supported by evidence or didn't really occur. He explained because of that the ordinance, as drafted currently, has a provision that allows someone to basically recover all of their fees and costs for defending a frivolous suit under Chapter 57 of the Florida Statutes. Commissioner Beckenbach stated his concern, more than anything else, is for the business community. He stated as far as rentals are concerned, to discriminate against anyone for a rental or to purchase a piece of property, or a loan for a piece of property to him there should be no discrimination. He stated his major concern is Minutes—City Commission Workshop April 22, 2014 Page 3 for the small business, i.e. especially as related to transgenders. He stated he would like them to come up with some wording that the small businesses would not be sued frivolously. Mayor Woods asked if he would be comfortable with, as the City Attorney suggested, having an exemption from the entire ordinance for businesses with 15 or fewer employees. Commissioner Beckenbach stated that would move him more toward an agreement. Discussion ensued over whether the Commission believes there is discrimination against the LGBT community in Atlantic Beach. Answering the question of whether the existing Federal laws regarding sexual discrimination are being used to address some of these issues, Mr. Komando stated he is not aware of where an LGBT individual is able to use the sexual discrimination portions of Federal law to claim protection, successfully. He stated there is some protection under the EEOC guidelines. He stated there are two recent rulings that have expanded the definition of discrimination to include sexual orientation as well as gender identity and gender expression so there is the protection on that level that he is aware of, but there may be some other attempt to use sexual discrimination as a basis or claim for protection that he is not aware of He further explained rulings guide the U.S. court system; statutes are to provide the general guidance and codification, however the interpretations of those codes or statutes or Federal regulations oftentimes provide authority and support, so a ruling is a form of law depending on what your particular circumstances are. He reiterated under sexual orientation there is protection by the EEOC via those two rulings. Mayor Woods asked if all of the businesses in Atlantic Beach are under the EEOC. Mr. Komando stated no; governments are required to be protected, generally businesses with 15+ employees, restaurants with 20+ employees, and some huge corporations that have satellite offices or retail locations in Atlantic Beach are generally part of EEOC. He stated there is not a requirement of all small businesses to remain EEOC compliant. Mayor Woods reiterated that any business with more than 15 employees is covered under Federal statutes. Mr. Komando stated, yes, he believes they have the ability to file an employment discrimination claim under the EEOC. Mayor Woods stated that covers gender identity or expression, and sexual orientation. Mr. Komando stated that is the only context that has been brought to his attention. Mayor Woods asked if there is anything else this ordinance would cover. Mr. Komando stated it covered race, color, religion, sex, national origin and then included sexual orientation, gender identity or expression. Mayor Woods asked if there are Federal or State discriminatory laws that protect people against discrimination in housing. Mr. Komando stated not the way they are discussing it here. He stated that is subject to interpretation; there are some people who claim Federal regulations do provide housing protection. He stated the Fair Housing Act prohibits housing discrimination based on race, color, national origin, religion, sex, disability and familial status, but it doesn't specifically include sexual orientation and gender identity as a prohibitive basis. He stated HUD implemented a policy to ensure that its core programs are open to all eligible individuals and families regardless of sexual orientation, gender identity or marital status. Discussion ensued. Mr. Komando stated the courts are split about whether or not a complaint based upon sexual discrimination protects sexual orientation. He stated currently the split of protected activity of Title 7 is that the 9th Circuit Court and District Courts within the 2nd Circuit have found that the action is protected, which the 6th and 7th Circuits disagree. Further discussion ensued. Mr. Komando explained Title 7. Commissioner Beckenbach stated, as far as the strength of the law they are talking about with the EEOC that was for the business. He stated the Minutes—City Commission Workshop April 22,2014 Page 4 business community already has it from 16 on up and 15 and below they are looking at giving an exemption so that might not be needed at this time. He stated as far as the rentals, sale of homes, etc. it says as far as HUD is concerned this rule follows a January 24, 2011 proposed rule which noted evidence suggesting that lesbian, gay, bisexual and transgender individuals and families are being arbitrarily excluded from housing opportunities in the private sector. He stated the Federal government is working for the betterment of the citizens to a certain extent but if they can't pass Senate Bill 348 and House Bill 239 in Florida maybe they need to give them a push. He stated they did send a Resolution stating we were in agreement with it. He stated if the State of Florida doesn't have a law to prevent discrimination then maybe they should consider that for housing, rentals, loans, etc. Commissioner Hill asked the City Attorney why has the State not done this, if it is so cut and dried. Mr. Komando stated his understanding is that there is just not the support for it right now. Commissioner Daugherty suggested drafting a letter to the State saying we support legislation on this issue. He stated he doesn't know why everybody is so bound and determined to have an Atlantic Beach law saying this and are willing to accept whatever watered down version they can get just to say Atlantic Beach has a law. He stated he doesn't want to use this dais as a means of activism. He stated he believes he is being used by a lobbying group to promote a larger agenda on a State level. He stated this is something that should happen, but not in Atlantic Beach. Mayor Woods stated she believes what she heard Commissioner Daugherty say was that the community supports this, he supports not being discriminatory, everybody in the room supports not being discriminatory. She stated if the community supports this, why should they, as a Commission and as a community, not put it in writing; have the strength to say yes, this is who we are and this is the way we want the community to be. She asked what is so wrong with that. Commissioner Hill stated that would be like saying Atlantic Beach is going to provide the only free parking to the beach; what do they think would happen. He stated there is going to be a hoard of people coming only to Atlantic Beach. He stated you are opening the flood gates to the small percentage of people who are going to be targeting communities with open, easy picking litigation points. Mayor Woods stated she finds that as a discriminatory accusation that Commissioner Hill thinks people are going to rush into Atlantic Beach to start suing just because they are gay, lesbian and transgender. Mayor Woods recapped that they have vetted that, on the Federal level, there are some protections available for employment in companies with more than 15 employees; and housing still remains uncovered by the State or Federal level except for HUD housing. Mr. Komando stated that was correct. Mayor Woods stated, therefore, they need to decide if they want to move forward with something to cover housing and the equality in lending practices for mortgages, etc. She asked if they would want any exceptions for number of homes owned, rented, sold, etc. Commissioner Daugherty stated he would like four or fewer houses excepted. Commissioner Mark stated that would be consistent with what we currently have now. Mr. Komando stated that was correct. Commissioner Mark stated she also believes businesses with 15 or fewer employees is reasonable for an exception. Mr. Komando clarified that the Commission is asking for the 15 business employee exception and for the four rental units. Discussion ensued. Mr. Komando further explained for someone to claim that they are protected under Federal laws for sexual discrimination and to claim that that also applies to sexual orientation, that claim is being made but it has not been very successful. He stated to say someone has Minutes—City Commission Workshop April 22, 2014 Page 5 an ability to make a claim, yes, that is true. Discussion about specific businesses in Atlantic Beach ensued and whether there is a need to have any kind of business provision in the ordinance. Mr. Komando pointed out that the ability to file a complaint is not the same as the ability to file a suit; there are many people who file complaints who don't necessarily, under EEOC, receive a letter for a right to sue. He stated there are a few times, he fears, that two of those concepts interchanged but they are different mechanisms. Mayor Woods asked if they passed an ordinance would it be in contradiction to what is going on in the Federal level; would it be an additional burdensome layer, or would it be an outlet for remediation for people. Mr. Komando stated he does not believe it would be in contradiction; it would be in addition to some of the protections that are afforded that they have discussed already. He stated the way our ordinance is written right now it would offer more protection; specifically, before the business exemption, they handle additional businesses with the credit transactions, the employment practices and there are different aspects of prohibited conduct. Discussion ensued. B. Useful Federal Definitions there are different aspects of prohibited conduct C. Inclusions D. Enforcement Mr. Komando answered questions about lawsuits and explained the use of a special magistrate. Discussion ensued. Mayor Woods asked if there is a process the Commission is supporting that they can ask the City Attorney to look into more in-depth to present an option other than the direct route to suing or are they happy with the direct route to sue. Mr. Komando stated if they set up an intermediate or local level of review that would, on the front end, preclude the filing of a lawsuit. He stated a general tenet of civil litigation is that all administered remedies have to be exhausted before they file suit. He stated, can they preclude people from suing, probably not. He further stated will it most likely succeed in a court setting if there is a level of review at the local level that has not happened yet; no, it will probably be dismissed. Further discussion ensued. Mr. Komando pointed out that discrimination requires intent; you cannot accidently discriminate against somebody. 4. Commissioner Closing Comments Mayor Woods allotted each Commissioner one minute for closing comments. Commission Hill asked if he heard correctly that one method of attempted enforcement may actually damage someone's chance of getting a legitimate discrimination case into the proper authority if it wasn't done right. Mr. Komando stated it doesn't damage the validity of the claim, it just requires them to exhaust administrative remedies prior to seeking court intervention. Commissioner Hill asked what effect our ordinance would have on that. Mr. Komando stated they haven't gotten to that part as far as what enforcement mechanism is preferred by the Commission. Commissioner Beckenbach asked Mr. Komando to come back with something that best protects the City so it will be less liable to go into a suit. Komando stated he doesn't know what the best remedy would Minutes—City Commission Workshop April 22, 2014 Page 6 be. He stated there are different avenues and he does not know which is the best way to resolve a complaint, if there is one. Commissioner Daugherty stated he has explained his reasons he is afraid of legislation like this and believes there is a level of sophistication and understanding. He stated the Commissioners are not full time legislators and believes this is a State or Federal issue. He stated he appreciates people's passion and desire to do something about this but the worst thing they can do is pass an irresponsible law that creates liability for people. Commissioner Mark stated she would like the opinion to come back to the Commission, on whether they should have business exemption in there and would like to look at utilizing a special magistrate as a local intervention. She stated she doesn't want to use an internal commission or employee as a part of this enforcement process. 3. Courtesy of the Floor Mayor Woods opened the Courtesy of the Floor and gave the audience one minute each to speak. Sharon Krause, 4845 Plymouth St., spoke against the HRO. Mark Hill, 1726 Selva Marina Drive, believes businesses should be included in the ordinance. Kathleen Thomas,2331 Ocean Forest Dr., spoke against the HRO. Mike Grunik,2051 Vela Norte Circle, spoke against the HRO. Chris Jorgensen,92 W.3rd St., spoke against the HRO. Roger Gannam,4232 Kincardine Dr.,Jacksonville, spoke against the HRO. John Stinson, 150 12th Street, spoke against the HRO. Riley Philo,9910 Old Dixie Hwy,Ponte Vedra, spoke in support of the HRO. Michael Sheklin, 1985 Brista De Mark Circle, spoke in support of the HRO. Tricia Russell, St. Augustine, spoke in support of the HRO. Nicholas de Villiers,4510 Attleboro St., spoke in support of the HRO. Gina Duncan, Transgender Inclusion Director for Equality Florida, spoke in support of the HRO. Kris Matson, 540 Hopkins Street,Neptune Beach, spoke in support of the HRO. Glen Clingenpeel, 11 Quail Lane,Jacksonville Beach, spoke against the HRO. Steven Haerter, 106 19th Avenue S.,Jacksonville Beach, spoke in support of the HRO. Minutes—City Commission Workshop April 22,2014 Page 7 Wells Todd, 1761 Sea Oats Drive, spoke in support of the HRO. Peyton Hopkins, 957 13th Ave. S., spoke in support of the HRO. Judy Sheklin, 1985 Brista De Mar Circle, spoke in support of the HRO. Carole Ann Steiger,338 7th Street, spoke in support of the HRO. Dan Merkan,3159 College Street, spoke in support of the HRO. Raoul Sanchez, 1445 Seminole Road, spoke in support of the HRO. James West, 1445 Seminole Road, spoke in support of the HRO. Jess Osborne, 1206 N. Laura St.,Jacksonville,Equality Florida, spoke in support of the HRO. Carrington Meade,3948 Anvers Blvd.,Jacksonville, spoke in support of the HRO. Max Shafer, 1464 Seminole Road, spoke in support of the HRO. Elliott Zisser, 1937 Beach Avenue, spoke in support of the HRO. No one else from the audience spoke so Mayor Woods closed the Courtesy of the Floor to Visitors. Adjournment There being no further discussion by the City Commission, Mayor Woods declared the meeting adjourned at 7:30 p.m. Carolyn Woods Mayor /411- Donna L. Bartle, CMC City Clerk