The N.C. Human Relations Comm'n v. Carriages at Allyn's Landing Owners Ass'n, Inc
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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure. NO. COA13-823 NORTH CAROLINA COURT OF APPEALS Filed: 6 May 2014 THE NORTH CAROLINA HUMAN RELATIONS COMMISSION, On behalf of CINDY BLOCK, IAN BLOCK and JEREMY BLOCK, Plaintiff v. Wake County No. 13 CVS 75 CARRIAGES AT ALLYN S LANDING OWNERS ASSOCIATION, INC. and VICTOR JONES, Defendants Appeal by both plaintiff and defendants from order entered 10 May 2013 by Judge Howard Manning in Wake County Superior Court. Heard in the Court of Appeals 11 December 2013. Agency Counsel Richard Boulden, appellee/cross-appellant North Carolina Commission. for plaintiffHuman Relations Jordan Price Wall Gray Jones & Carlton, by Brian S. Edlin and J. Matthew Waters, for defendant-appellants/crossappellees. CALABRIA, Judge. Carriages at Allyn s Landing Owners Association, Inc. ( HOA Board ) and Victor Jones ( Jones ) (collectively defendants ) -2appeal from an order purportedly conferring jurisdiction of the case on the North Carolina Office of Administrative Hearings ( NCOAH ). The North Carolina Human Relations Commission ( the Commission ) also appeals from the portion of the same order granting defendants motion to dismiss. We reverse. In February 2009, complainants Cindy Block ( Mrs. Block ), Ian Block, and Jeremy Block (collectively the Blocks ) purchased a townhome located in the Carriages at Allyn s Landing community in Raleigh, North Carolina, subject to the same restrictive covenants that apply to all lots in the community. The Blocks sought HOA Board approval for a wheelchair ramp for Mrs. Block s elderly mother, who lived in the townhome with the Blocks. The HOA Board approved the ramp, with conditions that the ramp be painted to match the siding of the townhome and that the Blocks remove it if, and when, it is no longer needed[.] Mrs. Block s mother died in September 2010. In January 2011, the HOA Board sent the Blocks a letter requesting removal of the ramp. However, Mrs. Block indicated to a member of the HOA Board that the Blocks intended to sell the townhome and market it as handicap-accessible. Several weeks later, Jones, the community property manager, received a handwritten note from Ian Block, stating his intention to keep the ramp. Ian Block s -3note included a letter from Academy Eye Associates that stated Mrs. Block was congenitally visually impaired and legally blind, and recommended that she be allowed to use and have handicapped ramp access maintained whenever and wherever possible. The HOA Board subsequently consulted an attorney regarding the matter. On 25 February 2011, Jones, on behalf of the HOA Board, notified the Blocks that the wheelchair ramp could remain on the property as long as a member of the family had a certifiable disability that required it. that the ramp must be However, the HOA Board indicated maintained in accordance with the community s restrictive covenants, including painting the ramp to match the siding of the townhome. In addition, the HOA Board required removal of the ramp when the Blocks sold the townhome unless the new owner has a certifiable disability that requires a wheelchair ramp. In a letter dated 8 March 2011, the Commission informed defendants that the Blocks had filed a housing discrimination complaint with the Commission, alleging, inter alia, that defendants had engaged in discrimination and refused to make reasonable accommodations investigation by the for Mrs. Commission Block s found disability. reasonable grounds An to believe unlawful discriminatory housing practices had occurred -4regarding some of the Blocks claims, but that there were no reasonable grounds to support the Blocks allegations that defendants had coerced, intimidated, threatened, or interfered with the Blocks housing rights in violation of N.C. Gen. Stat. § 41A-4(e) and § 818 of the Federal Fair Housing Act. Although the Commission attempted conciliation between the parties, those attempts failed. Subsequently, the Blocks were informed in the Commission s conciliation failure letters of their election of remedies. On 24 October 2012, the Blocks timely notified the Commission of their election to have the Commission file a civil action on their behalf in State Superior Court. filed a Superior complaint Court defendants on on behalf 7 actions of January the 2013, constituted an Blocks The Commission in illegal County inter alleging, Wake alia, discriminatory housing practice against the Blocks request for a reasonable accommodation to keep the ramp without an obligation to remove it. The Commission sought compensatory and punitive damages as well as injunctive relief. Defendants filed a motion to dismiss the hearing, complaint. defendants motion After to a dismiss, action was untimely filed. the finding trial that court the granted Commission s Under the default forum provisions -5of the Fair Housing Act, the trial court directed the Commission to apply to the Director of the Office of Administrative Hearings for the cause to be heard under the procedures set forth in N.C.G.S. § 41A-7(l), intervene was denied as moot. and the Blocks motion to The Commission and defendants both appeal. The Commission argues (1) that the trial court erred in granting defendants motion to dismiss; and (2) that if an action is dismissed for failure to file within the statutory time period, the Commission must proceed with the action before the NCOAH. Defendants argue that the trial court erred by directing the Commission to pursue a hearing before the NCOAH after dismissing the Commission s complaint for failing to commence the action within 60 days of the Blocks election, because the NCOAH does not have subject matter jurisdiction over an untimely filed action. Whether the time provisions for filing an action pursuant to N.C. Gen. Stat. § 41A-7 (2013) are jurisdictional in nature depends on the legislative intent. Raeford Farms, (1996). The 124 N.C. statute App. 349, provides, Comm r of Labor v. House of 353, in 477 S.E.2d pertinent 230, part, 232 the requirements when the Commission elects to file a civil action: -6 [i]f an election is made . . . no later than 60 days after the election is made the Commission shall commence a civil action in superior court in its own name on behalf of the complainant. N.C. Gen. Stat. § 41A-7(k)(2) (2013). The statute legislative is either intent of mandatory a or particular directory, provision and is in a usually ascertained not only from the phraseology of the provision, but also from the nature and purpose, and the consequences which would follow its construction one way or the other. N. Carolina State Art Soc., Inc. v. Bridges, 235 N.C. 125, 130, 69 S.E.2d 1, 5 (1952). lacks specific Our Courts have held that where a statute language requiring an agency to take express action during a statutory review period . . . such statutory language is merely directory, rather than mandatory. N. Carolina State Bd. of Educ. v. N. Carolina Learns, Inc., ___ N.C. App. ___, ___, 751 S.E.2d 625, 630 (2013) (citing State v. Empire Power Co., 112 N.C. App. 265, 435 S.E.2d 553 (1993)). In State v. Empire Power, the Utilities Commission failed to hold a hearing within the statutory three month time period. This Court held that time periods are generally considered to be directory rather than mandatory unless the legislature expresses a consequence for failure to comply within the time -7period. 112 N.C. App. at 277, 435 S.E.2d at 559 (citations omitted). Similarly, this Court has also held that a statute that failed to provide a result in the event the Commissioner of Labor failed to comply with a 90-day time period was directory. House of Raeford, 124 N.C. App. at 355-56, 477 S.E.2d at 234. This Court also expressed concern regarding interpreting statutes to allow an agency delay to prejudice the claims of private citizens. Id. at 356, 477 S.E.2d at 234. Defendants contend that the plain and unambiguous language of word shall, indicates that the statutory time period is mandatory. However, the the statute, word shall specifically was the included in use of the the statute in House of Raeford, and that statute was held to be directory specifically because the statute failed to provide failing to comply within the time period. any consequences for Id. at 355-56, 477 S.E.2d at 233. Defendants also cite HCA Crossroads Residential Ctrs., Inc. v. N. Carolina Dept. of Human Res., 327 N.C. 573, 398 S.E.2d 466 (1990) and Brackett v. SGL Carbon Corp., 158 N.C. App. 252, 580 S.E.2d 757 (2003) to support their contention that the 60-day period is mandatory rather than directory. -8In HCA Crossroads, the statute provided a maximum 150-day review period for applications for certificates of need, and required that a certificate of need be either issued or rejected within that period. Supreme Court jurisdiction by 327 N.C. at 577, 398 S.E.2d at 469. found that failing to the act state where agency the waived statutory Our its language indicated that the Department lost subject matter jurisdiction to reject an application once the review period ended. at 577, 398 S.E.2d at 469. 327 N.C. This Court has interpreted HCA Crossroads to apply to statutes which contain specific language requiring express action to be taken during a statutory review period. N. Carolina Learns, ___ N.C. App. at ___, 751 S.E.2d at 630. In Brackett, alleging a the violation individual of the complainant North filed Carolina an action Retaliatory Employment Discrimination Act pursuant to a right-to-sue letter. 158 N.C. App. at 254, 580 S.E.2d at 759. action was dismissed because he pertinent 180-day statutory period. failed Id. The complainant s to file within the However, this Court held that the rationale of House of Raeford did not apply in that case, noting that House of Raeford concerned governmental -9authorities processing private claims. Id. at 256, 580 S.E.2d at 760. In the instant case, the Blocks did not request a right-tosue letter, but instead elected that the Commission file a civil action on their behalf by notifying the Commission in a letter dated 24 October 2012. January 2013, a date election was made. The Commission filed the complaint on 7 that is more than 60 days after the The trial court granted defendants motion to dismiss because the Commission failed to file their complaint in accordance with the time set in N.C.G.S. § 41A-7(k)(2)[.] The statute states that when a complainant elects to have the Commission commence a civil action, no later than 60 days after the election action in is made superior the court Commission in its shall own name commence on complainant. N.C. Gen. Stat. § 41A-7(k)(2). Gen. 41A-7(k) behalf Stat. § does not expressly a civil of the However, N.C. provide for any consequences should the Commission fail to file a complaint on the complainant s behalf within the 60-day period. statute requires that the Commission file Rather, the an action after a complainant has made an election, with no specific consequences. The instant case concerns a government entity processing a private claim for private complainants. While the Commission -10should have filed the complaint within the 60-day period, the language of the statute does not provide for any consequences, let alone dismissal of a complaint, for an action filed outside the 60-day period. based upon the In addition, to bar a complainant s action inaction of the Commission would effectively allow the Commission s inaction or late action to prejudice the claims of private complainants. at 356, 477 S.E.2d at 234. Stat. § 41A-7(k) is House of Raeford, 124 N.C. App. Accordingly, we hold that N.C. Gen. directory rather than mandatory, and therefore defendants motion to dismiss should have been denied. Since we reverse the trial court s order granting defendants motion to dismiss, it is unnecessary to address the parties remaining arguments. Reversed. Judges BRYANT and GEER concur. Report per Rule 30(e).
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