METROPOLITAN MILWAUKEE FAIR HOUSING COUNCIL, Complainant
SOUTH SIDE SPIRIT, Respondent
In a complaint filed by the Metropolitan Milwaukee Fair Housing Council ("MMFHC") on September 20, 1990 it was alleged that "Leonard Helman" and S. R. Wojnowski had violated the Open Housing Act, sec. 101.22, Stats. by causing to be published an advertisement for rental housing stating a preference or limitation based on source of income and marital status. In an "amended complaint" filed by the MMFHC on October 18, 1990 the spelling of the first Respondent was corrected to "Heiman," and the South Side Spirit was added as a Respondent.
In an Initial Determination issued on November 2, 1990, an investigator for the Department concluded that there was no probable cause to believe that S. R. Wojnowski had violated the Act as alleged, but that there was probable cause to believe that Heiman and the South Side Spirit had violated the Act as alleged.
MMFHC did not appeal that part of the Initial Determination which dismissed its complaint against S. R. Wojnowski.
Efforts at conciliation of the charge against Heiman and the South Side Spirit were unsuccessful, and following a hearing an Administrative Law Judge issued a decision on September 20, 1991. It found that Heiman had not violated the Act as alleged, and ordered the charge dismissed as against him, but that the South Side Spirit had violated the Act as alleged. The decision concluded that the violation by the South Side Spirit was not wilful and for that reason no forfeiture was assessed. The decision further granted attorney's fees to MMFHC, albeit subject to a reduction from the amount MMFHC had claimed, based on a conclusion that MMFHC had only partial success and had maintained the action against S. R. Wojnowski without a good faith basis.
The South Side Spirit filed a timely petition for Commission review. The MMFHC filed no petition for review.
Based on its review of the record, and having considered the arguments of the parties, the Commission now makes the following:
1. The Complainant, Metropolitan Milwaukee Fair Housing Council (MMFHC) is a non-profit corporation that seeks to help all individuals obtain equal opportunity in housing and to help expand the housing choices available to minorities. Among other activities, MMFHC collects housing advertisements published in numerous newspapers throughout the metropolitan Milwaukee area and enters the information into a database used to help prospective buyers or tenants. MMFHC also reviews advertisements for evidence of, and otherwise seeks to detect, violations of fair housing laws; conducts research and provides technical assistance on housing matters; and seeks enforcement of fair housing laws in cases in which it suspects violations.
2. Respondent South Side Spirit is a newspaper published by Possibilities Unlimited, Inc. It is distributed to homes, apartments, and businesses on the south side of Milwaukee. It prints classified advertisements, including advertisements for housing.
3. On or about May 16, 1988, the South Side Spirit, and its publisher, Michael Ruppe, Jr., entered into a written conciliation agreement with MMFHC. This agreement resolved a prior discrimination complaint, ERD Case No. 8752011, that MMFHC had filed against the South Side spirit concerning the content of classified ads for housing. Among other responsibilities undertaken by the South Side Spirit and Mr. Ruppe in the agreement, was the adoption of procedures to avoid using words and phrases that MMFHC asserted had a discriminatory impact.
4. On or about June 14, 1990, Leonard Heiman submitted copy to the South Side Spirit for a classified advertisement for one of his apartments. The copy read: "Retired or working couple: upper, utilities. Security deposit. No kids, pets. 672-4510." He paid the fee of $5.50. The South Side Spirit initially accepted the ad for its June 17, 1990, edition.
5. Pursuant to the South Side Spirit's procedure concerning ads with restrictions, the staff forwarded Mr. Heiman's ad to Publisher Michael Ruppe, Jr., for review. He disapproved the ad, but he did so only on the ground that its restriction on "kids" contravened federal law. However, Ruppe did not at that time recognize any potential problem in publication of an ad directing itself to "retired or working" persons. Ruppe's failure to recognize any potential problem in such language was not wilful, but was due to a good faith mistake or lack of recollection.
6. At Mr. Ruppe's direction, a staffer contacted Mr. Heiman, informed him of the problem, and offered the options of canceling or redrafting the ad. In response to this offer, Mr. Heiman indicated that he wished to cancel the ad.
7. Heiman's indication that he wished to cancel the ad came in time for the South Side Spirit to avoid running it in its June 17, 1990 issue. However, due to mistakes by staff, the paper did not pull the ad, and it was published on page 32, column 5, of its June 17, 1990, issue.
8. As published the ad read:
RETIRED OR WORKING COUPLE:
Upper, utilities. Security deposit. No kids, pets. 672-4510.
None of the other headlines for rental ads on that page described renters. Most indicated the location. (Some characterized the apartment unit or had other sales messages like "MONEY SAVER" or "MOVE TODAY.")
9. The advertisement would suggest to an ordinary reader that persons whose, source of income was from employment or retirement benefits would be preferred over persons with other sources of income, as tenants for the housing in question.
10. The advertisement would not suggest to an ordinary reader that married persons would be preferred over unmarried, divorced or separated persons, as tenants for the housing in question.
Based on the FINDINGS OF FACT made above, the Commission makes the following:
1. Possibilities Unlimited, Inc., doing business as the South Side Spirit, is a "person" within the meaning of sec. 101.22(2), Stats.
2. The South Side Spirit violated sec. 101.22 (2) (d), Stats. by publishing an advertisement which stated or indicated discrimination in connection with housing, in its June 17, 1990 issue.
Based on the FINDINGS OF FACT and CONCLUSIONS OF LAW made above, the commission now makes the following:
1. The Respondent South Side Spirit shall cease and desist from publishing advertisements which state or indicate discrimination in connection with housing.
2. The Respondent South Side Spirit shall provide training to its personnel as follows
a. South Side Spirit shall require full participation in this training by Michael Ruppe, Jr., and all staff members involved in receiving from customers, reviewing the copy for, or pasting up classified ads relating to housing.
b. The primary objective of the training shall be to ensure that the participants know and understand fair housing laws well enough that they can avoid further violations of the Act in ads. (The ability to avoid potential violations may consist of recognizing the full range of potential problem scenarios in housing ads and consulting with superiors or others as necessary to enable South Side Spirit to make an informed judgment.) Training topics shall include the Legislature's policies relating to the Act; the explicit provisions of the Act, including its prohibitions, penalties and remedies; and the practical application of the Act, including the types of advertising messages, methods, or phrases that plausibly may violate the Act.
c. The format of the training shall be a formal seminar during which attendees are free of routine work duties and distractions.
d. The training must be approved by the ERD Conciliation and Compliance Unit. Within 30 days after this order becomes final, Respondent South Side Spirit shall submit a written proposal for a training program complying with this order to the Conciliation and Compliance Unit, c/o Ms. Diane Kraus, Equal Rights Division, 819 North 6th Street, Room 255, Milwaukee, WI 53203. The Complainant shall be entitled to review and comment on the proposal. The Conciliation and Compliance Unit shall evaluate the training for approval or modifications.
3. The Respondent South Side Spirit shall pay the Complainant $2, 025.25 as and for attorney's fees and costs in this matter, this consisting of $513.50 as attorney's fees and costs through the point of the ALJ's decision finding liability, and $1,511.75 representing attorney's fees of $1,496 and costs of $15.75 for services and costs incurred subsequent to the ALJ's finding of liability.
4. Within 60 days after this order becomes final, the Respondent South Side Spirit shall submit a compliance report detailing the actions it has taken to comply with this order. The Respondent shall provide this report to Kendra DePrey, Labor and Industry Review Commission, P. O. Box 8126, Madison, Wisconsin 53708.
Dated and mailed August 26, 1992
/s/ Pamela I. Anderson, Chairman
/s/ Richard T. Kreul, Commissioner
/s/ James R. Meier, Commissioner
Merits -- The issue in this case is whether Respondent South Side spirit, a newspaper, violated sec. 101.22(2)(d), Stats. when it published an advertisement for rental housing that contained the phrase "retired or working couple," and, if so, what remedy is appropriate. (1)
The statutory language, "states or indicates any discrimination," is not only ungrammatical but is also ambiguous. However, the Commission has given that language meaning by holding that it should be interpreted in the same way as the parallel provision in the federal Fair Housing Act, which is construed as creating an "ordinary reader" test. An advertisement will violate this prohibition if it would suggest to an ordinary reader that a particular class or category of persons will be preferred or dispreferred for the housing in question. MMFHC v. Weissgerber (LIRC, December 6, 1991), MMFHC v. Jacobson (LIRC, December 6, 1991), aff'd. MMFHC v. LIRC, Waukesha County Circuit Court, June 30, 1992. "The ordinary reader is neither the most suspicious nor the most insensitive of our citizenry. Such a reader does not apply a mechanical test . . .", Ragin v. New York Times Company, 923 F.2d 995, 1002 (2nd Cir. 1991).
In this case, two elements of the advertisement are focused on: the reference to "retired or working," which MMFHC sees as stating or indicating discrimination based on lawful source of income, and the reference to "couple," which the MMFHC sees as stating or indicating discrimination based on marital status.
The Commission does not agree that the use of the word "couple" in this advertisement violates sec. 101.22(2)(d), Stats. The approach of MMFHC, which seems to be that any use of the word "couple" is per se unlawful, is the type of mechanical test which was disclaimed in Ragin. Neither the word "couple" nor the word "single" necessarily "states or indicates discrimination" on the basis of marital status. Weissgerber, Jacobson. The Commission is unpersuaded by the ALJ's reasoning, that the use of the word "couple" in this advertisement indicates an exclusion of or at least preference against "single female-headed households." While the advertisement may be read to indicate such an exclusion or preference (among others), this is not because of marital status, but because of parental status. The advertisement, which expressly states "no kids," would clearly have deterred persons with children from applying, whether they were couples with children, or single, separated, or divorced persons with children.
The provisions of the Open Housing Act which were applicable at the time of the publication of this advertisement simply did not prohibit discrimination in housing based on the fact that a person had children. They merely prohibited discrimination because of the sex or marital status of the person maintaining a household. Section 101.22(1), Stats. In other words, landlords could not discriminate between males with children and females with children, or between married couples with children and unmarried, single, or separate persons with children. They could, however, decide not to allow any children. While 1991 Act 295, effective September 1, 1992, adds "family status" as a protected category under the open Housing Act, making this kind of discrimination unlawful, it was not unlawful when this advertisement was published.
The "single female-headed households" hypothesized by the ALJ would have been deterred from applying to rent this housing, but not because of any indication of marital status discrimination. The Commission is persuaded that if the question of children is removed, the result is different. A single, separated, or divorced female (or male) would not, in the Commission's view, be likely to reasonably see this advertisement as discouraging. Such a person could easily assume that the landlord would be just as willing to rent to one person who could pay the rent, as to two. The meaning of the use of "couple" in this advertisement is, at most, ambiguous. While the MMFHC may view its assumed role of "private attorney general" as compelling it to pursue every case in which an advertisement might conceivably be construed as stating discrimination, the "ordinary reader" test must govern the application of the law, and the ordinary reader does not bring this level of aggressiveness or suspiciousness to the business of reading classified advertisements for housing. Ragin, 923 F.2d at 1002.
However, the Commission agrees with the MMFHC and the ALJ that this advertisement does state or indicate discrimination based on lawful source of income. Here the meaning of the advertisement is completely clear. The description "retired or working," is not ameliorated (as was the description in Jacobson and Weissgerber) by a qualifying phrase such as "ideal for" or "perfect for," which would have indicated that it was a mere suggestion by the landlord as to who might particularly enjoy the property. Instead, it is bluntly stated, emphasized by capitalization and the use of a colon, as if the advertisement itself were intended as an announcement only to retired or working persons. It unequivocally suggests that there is at very least a preference for retired or working persons, if not in fact an outright limitation.
Furthermore, the use of "retired" does not avoid illegality. The mere fact of the indication of an alternative preference for "working" makes the advertisement unlawful. Also, "retired" has a commonly understood meaning which excludes younger or middle-aged persons who (although temporarily not working) are still committed to returning to the labor market, or whose removal from the labor market was involuntary. Persons on unemployment compensation, Aid to Families with Dependent Children, general relief, Social Security or other disability benefits, Medical Assistance, food stamps, and rent assistance, could be expected to reasonably see this advertisement as indicating that they would be excluded from consideration.
Remedy -- The Commission believes that the requirement that the Spirit provide its staff with training in the effects of the Open Housing Act on the legality of advertisements for housing, is a reasonable exercise of the authority in sec. 101.22 (4) (d) to order such action by the Respondent as will effectuate the purposes of the Act,. Despite an earlier agreement with the MMFHC, overseen by the Equal Rights Division, to avoid discriminatory advertising, the Spirit's publisher (although recognizing that a "no kids" limitation was unlawful under applicable federal law), failed to appreciate the problem posed by the "retired or working" language. Given this, it is appropriate to conclude that some training would be of benefit in sharpening the awareness of the Spirit's publisher and his staff as to what is and is not permissible in advertisements for rental housing.
The Commission would note that the order is also limited in its scope. Contrary to the suggestion made resentfully by Respondent, it does not require the Spirit to obtain the training in question through the MMFHC. It in effect allows the Spirit to select the person or persons who will perform the training, and to select the place, time and length of the training, subject only to the reasonable requirement that the persons attending the training be freed of their regular routine duties during the time when they are being trained. The MMFHC is entitled only to review and "comment" on the description of the proposed training which the Spirit is to submit to the Equal Rights Division, and it thus has no right to dictate provider or content. It is for the Equal Rights Division, ultimately, to determine if the proposed plan is acceptable.
Attorney's Fees -- The $513.50 in attorney's fees and costs allowed for prosecution of this case through the point of the ALJ 's finding of liability is clearly reasonable. Respondent does not challenge the reasonableness of a rate of $110 per hour. Respondent's argument concerning the alleged lack of necessity for much of the litigation is rejected, in view of its own failure to offer any stipulation which would have obviated the need for hearing, and in view of its counsel's expenditure of a significant amount of time at hearing and in briefing in the litigation of the very issues which it now claims did not have to be litigated.
Because Complainant has not challenged the 50% reduction of its hours at the trial level based on lack of success, the Commission will not consider that issue. It will note, however, that there was nothing "partial" about the success of Complainant at the Commission level as compared to the extent of its success before the ALJ. The Complainant persuaded the ALJ that the South Side Spirit violated the Open Housing Act by publishing the advertisement in question, and it prevailed on this point before the Commission. The fact that the Commission has not relied on all of the ALJ's rationale does not affect this outcome.
However, the Commission finds that some of the time expenditures claimed in the request for fees on this appeal were unnecessary.
The 1.25 hours for drafting and revising the petition for attorney's fees and costs and cover letter that went to the ALJ prior to the issuance of his final decision, appears excessive. No more was involved here than the routine creation of a bill (which was presumably generated automatically based on pre-existing contemporaneous time records) and preparation of a very perfunctory petition and cover letter. Only .25 hours will be allowed for this work.
The 5 hours claimed for review of tapes of the ERD hearing in preparation for briefing to the Commission are entirely unnecessary. Prior to the time that these services were provided, Complainant's counsel had been advised in writing by the commission that the hearing had been transcribed and that a copy of the transcript of the hearing would be provided for a charge of less than $40. Counsel for Complainant can also be presumed to have known, when so notified, that inspection of the transcript (as a public record) could be obtained for no charge. The Commission will not speculate on how much time reasonably might have been spent on reviewing the transcript in preparation for briefing, when Complainant's counsel has not even suggested an amount of time she would have spent in doing so. The entire 5 hours is therefore disallowed.
The amount of time claimed for briefing to the Commission is reasonable, considering the nature of the issues presented and the number and type of arguments presented by Respondent to which the Complainant was compelled to respond.
The attorney fee award related to this appeal is therefore reduced from that sought by Complainant to $1511.75.
Respondent's Arguments -- The Commission has carefully considered all of the arguments raised by the Respondent, and its failure to discuss them all should not be taken as an indication that they were ignored. It simply found none of them persuasive, and it considers it unnecessary to discuss here its reasons for rejecting these arguments, with the exception of the following areas in which they are so inconsistent with the purpose and meaning of the law that comment seems advisable. (2)
Respondent argues that "income" means only income received from employment, and that the prohibition against discrimination on the basis of source of income therefore has no applicability to situations involving persons receiving welfare benefits. This argument ignores the well-established history of that provision of the Open Housing Act, which was adopted in large part precisely for the purpose of preventing discrimination against welfare and other public aid recipients. It also ignores the definition of the term "lawful source of income" in Wis. Adm. Code Ch. 89.01(8).
Respondent argues that the violation here was de minimis because no one was actually deterred from applying to rent the property in question. This is analogous to arguing that a drunk driver's violation of the law is de minimis if he is apprehended before he does any damage. The prohibition on the publication of advertisements which express discriminatory distinctions is intended to prevent a harm that such publication can foreseeably cause, and it is not necessary that the harm have actually occurred before there can be a violation of the prohibition. There is no requirement that the person publishing the advertisement be found to have intended to deter persons from seeking housing. Jacobson, MMFHC v. Goetsch (LIRC, December 6, 1991). The question of liability turns simply on the substance of the advertisement and the effect it could reasonably be expected to have. Goetsch. Publication of an advertisement expressing discrimination is malum prohibitum, not malum in se.
Respondent argues that there must be a hearing held on attorney's fees. The Commission disagrees. "A request for attorney's fees should not result in a second major litigation." Hensley v. Eckerhart, 461 U.S. 424, 31 FEP 1169, 1173 (1983). The practice which the U.S. Supreme Court has implicitly approved by its acceptance of it over many years, involves submission of attorney fees issues in written form. Since the ultimate issues are principally legal, involving as they do the application of the legal standard of "reasonableness" to the claim as to hours and rate, fact litigation before the tribunal is not necessary. The submission of an affidavit supporting the request for fees provides an adequate basis for the tribunal to act. (3) The Supreme Court has implicitly recognized the acceptability of attorney's fees issues being submitted to the tribunal on the basis of documentation and attorneys' affidavits. Blum v. Stenson, 465 U.S. 886, 34 FEP 417, 421, n. 11 (1984).
NOTE: To the extent that the Commission has revised and reversed the findings and conclusions of the Administrative Law Judge, it has done so on the basis of a different view of the legal issues presented, and for that reason has not consulted with the Administrative Law Judge concerning issues of witness credibility.
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(1)( Back ) The ALJ also ruled that Leonard Heiman committed no violation, that the Spirit did not violate sec. 101.22(4)(m), Stats., that the Spirit's violation of sec. 101.22(2)(d), Stats. was not wilful and therefore no forfeiture would be assessed, and that MMFHC's attorney's fees through the point of the ALJ's decision on liability should be reduced for only partial success and maintenance of the action against another party (S. R. Wojnowski) without a good faith basis. MMFHC filed no petition for review, and it did not argue these points in its brief. Therefore the Commission will not review these rulings and it treats them as resolved against MMFHC on a final basis by the ALJ's decision. See, Dude v. Thompson (LIRC, November 16, 1990) . It is for this reason that Heiman's name has been removed from the caption (although a copy of this decision will be sent to him for his information).
(2)( Back ) Additionally, counsel for Respondent has, in various written arguments filed in this matter, referred to Complainant and its counsel with words and characterizations such as "bone-headed," and "shameful," and he has asserted that their complaint is a "travesty," a "sham," a "scam," and was brought for the purpose of "lining its attorneys' pockets." These types of ad hominem attacks cross the boundary between fair argument and offensive personality, and thus they also clearly merit no response by the Commission.
(3)( Back ) While no affidavit was filed here in support of the request for fees in connection with work up to the point of the ALJ's decision -- and while submission of such an affidavit would undoubtedly have been the better practice -- the fact of Complainant's counsel's participation in the hearing and in other aspects of the proceeding to that stage is directly demonstrated by materials in the file in addition to the petition, which materials are directly available to the trier of fact. In these circumstances, and considering the fact that a reduced allowance equivalent to not much more than five hours is all that is at issue, the Commission can conclude with certainty that such an allowance is a reasonable one given the nature of the proceedings involved.