An unpublished opinion of the North Carolina Court of Appeals does not constitute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,                  for    plaintiff-
      appellee/cross-appellant North Carolina                  Human Relations
      Commission.

      Jordan Price Wall Gray Jones & Carlton, by Brian S. Edlin
      and J. Matthew Waters, for defendant-appellants/cross-
      appellees.


      CALABRIA, Judge.


      Carriages at Allyn’s Landing Owners Association, Inc. (“HOA

Board”) and Victor Jones (“Jones”) (collectively “defendants”)
                                      -2-
appeal 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
                                         -3-
note 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.             However, the HOA Board indicated

that    the   ramp    must    be   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       for    Mrs.    Block’s    disability.         An

investigation    by    the    Commission       found    reasonable    grounds    to

believe unlawful discriminatory housing practices had occurred
                                            -4-
regarding 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.                          The Commission

filed   a   complaint       on     behalf     of    the     Blocks      in    Wake    County

Superior     Court    on     7     January        2013,     alleging,        inter      alia,

defendants’       actions        constituted        an      illegal      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   complaint.           After    a    hearing,        the    trial    court       granted

defendants’      motion     to     dismiss,     finding        that   the     Commission’s

action was untimely filed.                Under the default forum provisions
                                             -5-
of 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),”       and       the   Blocks’        motion   to

intervene was denied as moot.                      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.                     Comm’r of Labor v. House of

Raeford    Farms,     124     N.C.    App.      349,     353,   477     S.E.2d      230,    232

(1996).         The    statute        provides,          in     pertinent      part,        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     legislative       intent     of    a    particular     provision       in   a

statute     is    either     mandatory    or        directory,     and    is    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).          Our Courts have held that “where a statute

lacks   specific     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
                                        -7-
period.”      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    the   statute,     specifically      the     use   of   the    word   “shall,”

indicates that the statutory time period is mandatory.                      However,

the    word   “shall”     was   included      in   the    statute     in    House    of

Raeford, and that statute was held to be directory specifically

because     the   statute   failed    to      provide     any   consequences        for

failing to comply within the time period.                     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.
                                       -8-
    In 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.         327 N.C. at 577, 398 S.E.2d at 469.                 Our

Supreme    Court     found     that    the     state        agency    waived    its

jurisdiction    by   failing    to    act    where    the    statutory    language

indicated that the Department lost subject matter jurisdiction

to reject an application once the review period ended.                    327 N.C.

at 577, 398 S.E.2d at 469.              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,   the   individual       complainant      filed     an   action

alleging    a    violation     of     the     North    Carolina        Retaliatory

Employment Discrimination Act pursuant to a right-to-sue letter.

158 N.C. App. at 254, 580 S.E.2d at 759.                      The complainant’s

action    was   dismissed    because    he    failed    to     file    within   the

pertinent 180-day statutory period.              Id.        However, this Court

held that the rationale of House of Raeford did not apply in

that case, noting that House of Raeford concerned governmental
                                             -9-
authorities processing private claims.                     Id. at 256, 580 S.E.2d

at 760.

       In the instant case, the Blocks did not request a right-to-

sue 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.            The Commission filed the complaint on 7

January    2013,       a   date   that       is   more    than    60    days     after      the

election was made.            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       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).                     However, N.C.

Gen.    Stat.     §    41A-7(k)    does       not    expressly         provide    for       any

consequences should the Commission fail to file a complaint on

the complainant’s behalf within the 60-day period.                             Rather, the

statute requires that the Commission file                         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
                                      -10-
should 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.      In addition, to bar a complainant’s action

based   upon   the   inaction   of    the    Commission   would   effectively

allow the Commission’s inaction or late action to prejudice the

claims of private complainants.          House of Raeford, 124 N.C. App.

at 356, 477 S.E.2d at 234.           Accordingly, we hold that N.C. Gen.

Stat.   §   41A-7(k)    is   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).
