Comm n on Human Rights v. Shahid OATH Index No. 1381/13 (May 13, 2013)

Transcription

1 Comm n on Human Rights v. Shahid OATH Index No. 1381/13 (May 13, 2013) In default proceeding, evidence established that landlord posted an advertisement online for an apartment indicating no program and told an investigator that section 8 housing vouchers would not be accepted. Landlord found to have discriminated in violation of Human Rights Law and penalty of $10,000 recommended. NEW YORK CITY OFFICE OF ADMINISTRATIVE TRIALS AND HEARINGS In the Matter of COMMISSION ON HUMAN RIGHTS Petitioner -against- MUHAMMED ABDUS SHAHID Respondent REPORT AND RECOMMENDATION JOHN B. SPOONER, Administrative Law Judge This is an action commenced by the petitioner, the New York City Commission on Human Rights ( Commission ), pursuant to section 8-109(c) of the Administrative Code of the City of New York ( Human Rights Law ). The complaint, served on October 17, 2011, alleges that respondent, Muhammed Abdus Shahid, posted an advertisement intended to discriminate against prospective tenants based on their lawful source of income and engaged in a pattern and practice of discrimination against recipients of section 8 housing vouchers, in violation of section of the Administrative Code (ALJ Ex. 1). In a verified answer (ALJ Ex. 2) filed on November 4, 2011, respondent denied the allegations and asserted that the landlord had, in fact, accepted four section 8 tenants and been unable to collect rent for any of them. Petitioner scheduled a conference on March 4, 2013, at which respondent failed to appear. A hearing was then scheduled before me on April 29, On that date, counsel for petitioner appeared but respondent again did not appear. After reviewing documentary proof that respondent had been properly served by mail at the address provided in respondent s answer (ALJ Ex. 3), I found respondent in default for failing to appear and the hearing went forward in the form of an inquest. Petitioner called one witness and introduced several documents in support of the allegations in the complaint.

2 - 2 - Based on the record, I find that respondent violated section 8-107(5) of the Administrative Code by posting an advertisement intended to discriminate against prospective tenants based on their lawful source of income and by telling a Commission employee, who identified herself as a prospective renter, that he would not accept section 8 tenants. For the reasons below I recommend that the Commission be awarded a civil penalty in the amount of $10,000. ANALYSIS This case arises from provisions of the City Human Rights Law, enacted in 2008, which prohibit discrimination on the basis of lawful source of income. Section 8-107(5)(a)(1) states that owners may not refuse to lease a housing accommodation because of any lawful source of income of such person. Admin. Code 8-107(5)(a)(1) (Lexis 2012). Section 8-107(5)(a)(3) states that owners may not declare, print or circulate or cause to be declared, printed or circulated any statement, advertisement or publication, or to use any form of application for the purchase, rental or lease of any housing accommodation,... which expresses, directly or indirectly, any limitation, specification or discrimination as to... any lawful source of income.... Admin. Code 8-107(5)(a)(3) (Lexis 2012). Lawful source of income is defined as income derived from... any form of federal, state, or local public assistance or housing assistance including section 8 vouchers. Admin. Code 8-102(25) (Lexis 2012). The restriction against housing discrimination based on lawful source of income in the Human Rights Law shall not apply to housing accommodations that contain a total of five or fewer housing units. Admin. Code 8-107(5)(o) (Lexis 2013). Petitioner s witness, Ms. Monir, testified that she was employed with the Commission in August 2011 as a tester. On August 8, 2011, she found a listing on the Craigslist.org website for a three-bedroom apartment on Tompkins Avenue in Brooklyn (Pet. Ex. 1). The listing gave the location and phone number of the owner. The listing also stated NO PROGRAM (Tr. 11). Ms. Monir called the telephone number in the listing and a male answered. He said that he was Muhammed Abdus Shahid, that he owned the Tompkins Avenue building, that he had an apartment for rent, and that he had placed the listing on the Craigslist website. Ms. Monir asked if Mr. Shahid would be willing to take a section 8 tenant. Mr. Shahid said he was not accepting section 8 (Tr. 12).

3 - 3 - Ms. Monir then performed further research to ascertain the number of apartments in the building. According to online records from the Department of Housing Preservation and Development ( HPD ) (Pet. Ex. 2), the building on Tompkins Avenue contains 8 units. Other HPD records confirmed that the building contained 8 units, or apartments (Pet. Ex. 4), and that the building is owned by Abdus Shahid. Ms. Monir summarized her discovery of the listing, her conversation with the owner, and the information about the building in a memo dated August 8, 2011 (Pet. Ex. 3; Tr ). Petitioner bears the burden of establishing a prima facie case of discrimination, even in a default case such as this. Comm n on Human Rights ex rel. Whittacre v. Northern Dispensary, OATH Index No. 380/87 at 3-4 (Mar. 30, 1988), adopted, Comm n Dec. & Order (Aug. 17, 1988). Petitioner s proof met this burden. Ms. Monir s credible testimony established that a listing appeared on the Craigslist website on August 8, 2011, describing an apartment for rent on Tompkins Avenue in Brooklyn and stating no program. Her testimony further established that respondent told her over the telephone that he is the owner of the Tompkins Avenue building and that he created the rental listing on the Craigslist website. Respondent s ownership of the building was confirmed later by HPD records (Pet. Ex. 2). Based upon this proof, I find that respondent, the owner of an eight-unit residential rental building, caused to be circulated an advertisement intended to discriminate against prospective tenants based on their lawful source of income, in violation of section 8-107(5)(a)(3) of the Administrative Code. The proof also established that respondent refused to accept a section 8 voucher, as alleged in the complaint. 1 Ms. Monir stated that respondent told her over the telephone that he would not accept a tenant in a section 8 housing program. I find that this evidence established that respondent refused to accept a section 8 voucher for an eight-unit rental building, in violation of section 8-107(5)(a)(1) of the Administrative Code. 1 The complaint, at paragraph 6, charges respondent with having engaged in a practice of unlawful discrimination by refusing to accept a Section 8 voucher. This language is followed by a citation to section 8-107(5)(a)(3) for the Administrative Code, the provision on circulating an advertisement, rather than to section 8-107(5)(a)(1), the provision prohibiting an owner from refusing to lease an apartment based upon lawful source of income. Given the accurate statement of the law, I find that the complaint adequately placed respondent upon notice that his refusal to rent to a section 8 tenant was being alleged as part of the basis for the violation of the Human Rights Law. See Dep t of Parks & Recreation, OATH Index No. 1117/90 at 3 (Aug. 16, 1990) (holding that, where disciplinary charges cite to wrong rule, charges are nonetheless sufficient if they provide respondent with notice of the issues and conduct in question so that he can prepare his case and present a defense. ).

4 - 4 - There was insufficient proof, however, that respondent engaged in a practice of discrimination, as alleged in the complaint. The no program language was included in one web listing for one apartment on August 8, While it is fair to infer that the listing remained viewable for a number of days after Ms. Monir saw it, there is no evidence to show that the listing was available prior to or for any significant amount of time after August 8. This proof did not establish a pattern or practice of unlawful discrimination. See Comm n on Human Rights v. Rent The Bronx, Inc, OATH Index No. 1619/11 at 10 (July 27, 2011), adopted, Comm n Dec. & Order (Oct. 27, 2011) (citing Sanders v. NYC Dep't of Housing Preservation & Development, 2010 U.S. Dist. LEXIS at *18-19 (S.D.N.Y. July 28, 2010) (finding individual acts of discrimination insufficient to show pattern or practice under the NYC Human Rights Law); Comm n on Human Rights v. Tantillo, OATH Index Nos. 105/11, 106/11 & 107/11 at 6-7 (Feb. 24, 2011), modified on penalty, Comm n Dec. & Order (May 23, 2011) (landlord s refusal to rent to tester on a single occasion, insufficient to establish pattern or practice of discrimination against Section 8 recipients); see also Cooper v. Federal Reserve Bank, 467 U.S. 867, (1984) ( Proving isolated or sporadic discriminatory acts... is insufficient to establish a prima facie case of a pattern or practice of discrimination ); Victory v. Hewlett- Packard Co., 34 F. Supp. 2d 809, 820 (E.D.N.Y. 1999) ( To establish a pattern or practice of discrimination, a plaintiff must prove more than the mere occurrence of isolated or accidental or sporadic discriminatory acts. Rather, a plaintiff must establish by a preponderance of the evidence that... discrimination was the company s standard operating procedure - the regular rather than the unusual practice. ) (quoting International Brotherhood of Teamsters v. United States, 431 U.S. 324, 336 (1977)). Petitioner s attorney argued that respondent s answer established that he has indulged in a past practice of discrimination. I do not find this persuasive. The answer indicates that respondent has, in fact, accepted section 8 tenants in the past and currently has a section 8 tenant. While the answer states that respondent is unhappy with the section 8 program in that he has been unable to collect some $73,000 of rent owed by his section 8 tenants, this does not constitute an admission that he refused to rent to section 8 tenants after the Human Rights Law was amended in In sum, I find that petitioner s proof established that, on or about August 8, 2011, respondent posted a Craigslist advertisement for a rental apartment stating no program and

5 - 5 - informed a Commission tester that he would not rent the apartment to a section 8 tenant, in violation of sections 8-107(5)(a)(3) and 8-107(5)(a)(1) of the Human Rights Law. FINDINGS AND CONCLUSIONS 1. Petitioner demonstrated by credible evidence that, on or about August 8, 2011, respondent placed an advertisement for a rental apartment which stated no program, in violation of Administrative Code section 8-107(5)(a)(3). 2. Petitioner demonstrated by credible evidence that, on or about August 8, 2011, in a telephone conversation with a Commission employee, respondent refused to lease an apartment to a section 8 tenant in violation of Administrative Code section 8-107(5)(a)(1). 3. Petitioner failed to establish by a preponderance of the credible evidence that respondent engaged in a pattern and practice of discrimination. RECOMMENDATION Under section 8-126(a) of the Administrative Code, the Commission may impose a civil penalty of up to $125,000 to vindicate the public interest. Petitioner requested a civil penalty of $12,500. I note that petitioner s requested penalty lies approximately half-way between the other two recent section 8 discrimination cases, which resulted in penalties of $5,000 and $20,000. In Commission on Human Rights v. Rent The Bronx, OATH Index No. 1619/11 (July 27, 2011), adopted, Comm n Dec. & Order (Oct. 2011), a real estate broker was found to have placed a rental listing on a website indicating no programs. When a Commission tester called the number in the ad, a broker employee told the tester that her employer, the broker, accepted section 8 clients but that the landlord of the apartment listed did not. The broker presented evidence that it had provided subsidized housing to 50 tenants over two-year period and, at the time of the hearing, was in financial distress. Although the Commission requested a $60,000 penalty, Judge Zorgniotti recommended a penalty of $5,000 based upon consideration of all of the factors, particularly the small size of the broker s business and income flow and its history of finding subsidized housing for clients. This recommendation was approved by the Commission.

6 - 6 - In Comm n on Human Rights v. Tantillo, OATH Index Nos. 105/11, 106/11 & 107/11 (Feb. 24, 2011), modified on penalty, Comm n Dec. & Order (May 23, 2011), after the landlord failed to appear, Judge Lewis of this tribunal found that the landlord had in fact refused to accept a Section 8 voucher from an existing tenant. Based upon a weighing of all the factors, she rejected the Commission request for a $30,000 penalty and recommended instead a civil penalty of $7,500. The Commission increased the penalty to $20,000 based upon the landlord s failure to appear at the hearing and the harm to the section 8 tenant, who vacated when her voucher was rejected. The relevant factors in determining an appropriate penalty also indicate that a relatively low penalty is called for here. These factors include the egregiousness of the discrimination and the period of time over which it continued, whether there are any previous findings of discrimination against the respondent, and the potential impact of respondent s discrimination on the public East 97 th St. Corp. v. NYC Comm n on Human Rights, 220 A.D.2d 79, 88 (1st Dep t 1996); Comm n on Human Rights v. Tantillo, OATH 105/11 at 8-9; Comm n on Human Rights ex rel. Russell v. Chae Choe, OATH Index No. 2617/09 at (Sept. 25, 2009), adopted, Comm n Dec. & Order (Dec. 10, 2009). Further, because it is in the public interest to have individuals respond and participate in a process designed to cure discriminatory practices, the failure of a respondent to cooperate with the Commission may be considered an aggravating factor. Chae Choe, OATH 2617/09 at 9; Comm n on Human Rights ex rel. Alvarez v. Gerardo s Transportation, OATH Index No. 2045/09 at 9-10 (May 22, 2009), adopted, Comm n Dec. & Order (Aug. 12, 2009); Comm n on Human Rights ex rel. Martin v. Hudson Overlook, LLC, OATH Index No. 137/06 at (Aug. 30, 2006), adopted, Comm n Dec. & Order (Dec. 5, 2006). Except for respondent s failure to appear at either the conference or the hearing, the evidence shows no aggravating circumstances. First, petitioner did not allege or produce any evidence that there are prior findings of discrimination against respondent. Respondent s actions, while serious, were also not egregious, as compared with prior cases where discriminatory acts were characterized as egregious. These cases generally involved greater harm or more malicious intent. See East 97th Street Corporation, 220 A.D.2d at 88 (egregiousness found where landlord burglarized the gay tenant s apartment, turned off electricity, commenced eviction procedures, called him various epithets in public, told him he

7 - 7 - hoped he died, left threatening messages, and informed others in building of the tenant s HIV status); Commission on Human Rights ex rel. Russell v. Chae Choe, OATH 2617/09 at 8 (egregiousness found where owner refused for over a year to grant request of 77-year-old tenant with pulmonary and cardiovascular disease permission to replace her bathtub with a walk-in shower); cf. Silver Dragon Restaurant v. NYC Commission on Human Rights, N.Y.L.J., Mar. 31, 2004 (Sup. Ct. Kings Co.) (no egregiousness found where restaurant worker required black Commission investigator posing as customer to prepay for order). Based upon these past cases, respondent s actions are not egregious and do not warrant a higher penalty. Finally, the public impact of respondent s actions was small. The evidence showed that respondent owned an eight-unit rental building in Brooklyn. This was substantially smaller than the four buildings and 17 units owned by the landlord in Tantillo. Since he himself resides in the building, there would appear to be only seven rental units in respondent s building, only one more than the six units required to qualify as a housing accommodation under the Human Rights Law. There was no evidence offered to show that he owned any other rental properties. Past cases indicate that penalties for small businesses, like respondent s, should be relatively low. See Comm n on Human Rights ex rel. Campbell v. Personal Employment Services, OATH Index No. 1579/07 at 7 (Aug. 20, 2007), adopted, Comm n Dec. & Order (Dec. 14, 2007) ($5,000 penalty for small employment agency which had refused to consider an applicant for employment because of her age). Penalties of $15,000 and more have been reserved for those cases involving discrimination by larger businesses. See, e.g., Comm n on Human Rights ex rel. Alvarez v. Gerardo s Transportation, OATH 2045/09 at 5 ($15,000 penalty imposed for refusal of car service with offices in multiple states to transport individual with a disability); Comm n on Human Rights ex rel. Cherry v. Stars Model Management, OATH Index No. 1464/05 at 18 (Mar. 7, 2006), adopted, Comm n Dec. & Order (Apr. 13, 2006) ($15,000 penalty for employment discrimination aggravated by the fact that the respondent handled bookings for hundreds of modeling opportunities on behalf of many companies); Comm n on Human Rights ex rel. Thomas v. Space Hunters, OATH Index No. 997/04 at 15 (May 31, 2005), adopted, Comm n Dec. & Order (July 26, 2005) ($15,000 penalty for apartment broker with hundreds of listings who refused to accept a transsexual as a client). Notably, in East 97 th Street Corp., 220 A.D.2d at 88, the First Department reduced the original civil penalty award of $75,000 to

8 - 8 - $25,000, based on a finding that the landlords owned 50 units, not in the upper range of units owned by large landlords in the city. The primary reason provided by the Commission for an enhanced penalty was the failure of the landlord to appear at the hearing. See Tantillo, ($20,000 penalty for landlord who refused to accept section 8 housing program for an existing tenant and failed to appear at the hearing). However, unlike the landlord in Tantillo, respondent here did not harm an existing tenant and at least filed an answer, stating that he has leased to section 8 tenants in the past and currently has one section 8 tenant in his building. Thus, while respondent s unexplained failure to appear warrants an increase in the penalty, the penalty should still be lower than the $20,000 levied in Tantillo, as recognized by the Commission in its request. Considering the case as a whole, including penalties in previous section 8 cases, the nature of the discrimination, and the small size of respondent s rental business, I recommend that a civil penalty of $10,000 be imposed. May 13, 2013 SUBMITTED TO: PATRICIA L. GATLING, ESQ. Commissioner APPEARANCES: SCOTT CLISE, ESQ. CARLOS VELEZ, ESQ. Attorneys for Petitioner No Appearance by Respondent John B. Spooner Administrative Law Judge