Maryland Commission on Human Relations v. Malakoff

Digges, J., delivered the opinion of the Court. On December 13, 1971, a black male, Luther Lord, one of the appellants here, filed a complaint, ultimately considered by Maryland’s Commission on Human Relations, 1 the other appellant, which charged that “In November, 1971, I sub-leased the house at 2709 Babbitt Lane. The owner, Mr. Benedetti, after learning that I had moved into the house, informed me that Mr. Neitzey, the previous tenant, had no authority to rent to me, and that I had to move. It is my belief that Mr. Benedetti’s desire to have me move is based on racial considerations because: 1.

He is looking for a tenant; 2. I am already living in the house and 3. He wants me to move without giving me an opportunity to rent the premises directly from him. 2 “Additionally, I am charging Collington Realty Co. and Mr. Larry Malakoff, a Broker, with racial discrimination in the rental of the above house for the following reasons: 1. Mr. Malakoff was aware of my desire to rent the property; 2.

Mr. Malakoff was attempting to rent the property for Mr. Benedetti and 3. Mr. Malakoff, knowing that I was already occupying the house, did not consider me for rental of the property.” ²¹⁶ A tribunal composed of five Commission members, after a full hearing, found that appellees Larry Malakoff and his company, Collington Realty, Inc., engaged in illegal racial discrimination in violation of Maryland Code (1957, 1972 Repl. Vol.) Art. 49B, § 22 (1), (2) and (4) and submitted to the Commission its recommendation for the disposition of Lord’s complaint. Those portions of the section read: “It shall be an unlawful discriminatory housing practice, because of race, color, religion or national origin, for any person having the right to sell, rent, lease, control, construct, or manage any dwelling constructed or to be constructed, or any agent or employee of such person: “(1) To refuse to sell or rent after the making of a bona fide offer, or to refuse to negotiate for the sale or rental of, or otherwise make unavailable or deny, a dwelling. “(2) To discriminate against any person in the terms, condition, or privileges of sale or rental of a dwelling, or in the provision of services or facilities in connection therewith. “(4) To represent to any person, for reasons of discrimination, that any dwelling is not available for inspection, sale or rental when such dwelling is in fact so available. * * *” (emphasis added).

The Commission, on July 20, 1972, adopted the hearing tribunal’s “Decision and Recommendations,” which contained an order stating in pertinent part: “1. Respondent Malakoff and Respondent Collington Realty, Inc., each is ordered to cease and desist from any activity violative of the Maryland Fair Housing Law. * * * ²¹⁷ “5. General Counsel for the Commission is directed to forward a copy of this Decision and Recommended Order to the Real Estate Commission.” 3 The appellees sought redress from this adverse decision by appealing to the Circuit Court for Prince George’s County. There Chief Judge Ralph W. Powers concluded that since “the record is devoid of any evidence that Malakoff had any authority to lease the property” the real estate broker’s failure to consider Lord as a tenant could not constitute illegal racial discrimination, and, accordingly, he reversed the Commission’s order.

This rebuff prompted Lord, together with his ally in the circuit court, the Commission on Human Relations, to appeal to this Court. However, since we agree with the result reached by the circuit court, we will affirm its judgment. As the Commission’s factual determinations play such a critical role in our review of this administrative agency’s decision, we set them out in full: “Respondent is a real estate broker. He has been licensed as such for just over four years; previously, he had been a real estate salesman for several years. “Respondent operates mainly in the Bowie area, especially the Belair section of Bowie, where he has lived for over ten years.

This is a largely white ²¹⁸ residential area which has experienced a substantial growth since 1962, when Levitt & Co. began developing it. Until 1968, when the Federal Fair Housing Law was enacted, Levitt operated under a deliberately racially discriminatory policy. “Respondent’s business has grown steadily over the years. In 1971 he sold 69 houses, managed 8-10, and rented perhaps 22. This produced an income of some $60,000.00.

However, he apparently rented to only one black in 1971, and sold to none. He has had a few other transactions with black customers, and in 1968 rented a property he owned in Takoma Park, Montgomery County, to a black Army officer. Takoma Park is a relatively integrated area. “In mid-July, 1971, Respondent first met Mr. Dante Benedetti, owner of the premises at 2709 Babbitt Lane, Bowie (Belair). Mr. Benedetti, like Respondent, is white. “On August 2, 1971, Mr. Benedetti employed Respondent to find a tenant for the Babbitt Lane property, at a rental of $250 per month (Respondent’s Exhibit 1).

According to his usual practice, Respondent advertised this rental in the Washington Post. He said that 20% of his tenant placement came from these ads, 70% from tenant referrals, and 10% from walk-ins. “On September 4, 1971, Mr. and Mrs. Maurice J. Neitzey, a white couple, walked into Respondent’s office. A salesman showed them the Babbitt Lane property. A combination lease and ‘Tenant’s Personal and Credit Information’ form was filled out and signed by the Neitzeys (Respondent’s Exhibit No. 3).

The lease portion called for rental of the property for 12 months from September 1,1971, at $250 per month. “Respondent verified the fact of Mr. Neitzey’s employment, and noted (without verifying) that his ²¹⁹ salary was $12,Q0Q-$13,000 per year, and his wife’s $9,000. Although the couple gave him post-dated checks for the security deposit and first month’s rental, Respondent presented the lease to Mr. Benedetti, who also signed it. The Neitzeys took possession of the property. “On November 25, 1971, Mr. Benedetti came to Respondent’s office at the Hilltop Shopping Center in a state of some annoyance. Benedetti told Respondent that Neitzey wanted to break the lease.

Later, Neitzey told Respondent that Benedetti wouldn’t let him break the lease, so he intended to sublet the property himself. Neitzey was not deterred when he was shown the clause in the lease prohibiting subletting without prior written consent of the owner. “On November 28, in the early afternoon, Mrs. Neitzey called Respondent and said she had a black couple interested in renting the house. Respondent says he told her he was no longer the agent and had no authority to rent the property. He considered his authority terminated by the execution of the Neitzey lease on September 4. “Later the same day, Mr. Neitzey called Respondent.

Complainant, who was with Neitzey when the call was made, received the impression that Respondent had made an appointment to meet Neitzey and Complainant to discuss leasing the Babbitt Lane property. Respondent says he told Neitzey he had no authority to write a lease, and asked him not to come to his office. “In any event, Neitzey, Complainant, and Complainant’s wife drove to Respondent’s office — a five minute trip from Babbitt Lane. When they arrived, the office was closed. “The next day, Benedetti informed Respondent that the Neitzeys had abandoned the Babbitt Lane property, and left it dirty. He was extremely angry. ²²⁰ That same day, one Captain Deward, a white Army officer called Respondent, in search of a rental home like the Babbitt Lane property.

Respondent had no rental listings on that date, but Captain Deward’s name was placed on a waiting list. “On December 1, Benedetti and Respondent signed a rental listing and management agreement for the Babbitt Lane house. Respondent immediately called Captain Deward and told him the house was available. He did not call Complainant; indeed, he could not, because he had never taken Complainant’s name, and thus never placed it on a waiting list. As it turned out, Captain Deward looked at the house, but did not like it, so did not offer to rent. “On December 2, Respondent advertised the Babbitt Lane property in the Washington Post as available for rent.

The next day, however, he was advised by Mrs. Benedetti that Neitzey had paid the December rent. Respondent thereafter instructed his salesman, Denny, to show the property but not to sign a lease with anyone. Denny in fact showed the property to a white, Mr. Kibling. “Saturday, December 4, 1971, was a fateful day for Complainant Lord, his wife and children. That evening, they moved into the Babbitt Lane property.

Their peaceful and quiet (although technically illegal) possession of the premises was short-lived, however, for on the morning of December 5, Mr. Benedetti appeared and after a period of mutual introduction, ordered Complainant and his family to leave the premises. Benedetti then resorted to Respondent’s office, and both returned to Babbitt Lane. “Precisely what happened after that is a matter of considerable dispute. Complainant says he was told in the presence of his wife he could not lease the property, had no right to be there, and would have to leave. No reason was given, except that ²²¹ Benedetti didn’t want the property leased.

He was never asked about his employment or income, although Respondent said he (Complainant) didn’t make enough money to rent the house. “Respondent’s version is that Benedetti said Complainant and his family had to leave, because Neitzey had no right to lease to them. Respondent also claims he ascertained at this time that Complainant earned only $8,000 per year, and that this was insufficient to ‘qualify’ him as a tenant at Babbitt Lane. Several days later, there was a discussion between Respondent and Complainant at which it was ascertained that the joint income of Complainant and his wife was about $13,000.00. “Respondent’s version of the testimony is supported by Respondent and hi§ part-time salesman, Denny. Complainant’s version is supported by himself, and by Respondent’s testimony at a hearing, in January, 1972, before the Circuit Court for Prince George’s County.

Benedetti is equivocal on this point. “We believe Complainant, and find that on December 5, there was no detailed questioning about his income, and certainly no discussion of joint incomes until at least December 7, or perhaps later. We see no reason why Respondent would have falsified this point when testifying under oath before the Circuit Court. Certainly, his recollection then (about a month after the occurrence) should have been clearer than it was in June, 1972, about 6 months later. “In any event, Respondent and Benedetti, after reiterating that Complainant had to leave, left the house. The preponderance of the testimony shows that Benedetti then told Respondent not to sign a lease with Complainant; but he also told Respondent that if Complainant would move out, apply, and qualify through normal channels, Benedetti might consider Complainant as a tenant. ²²² “From this point on, the facts are in even more substantial dispute.

Complainant says Respondent avoided meeting with him. Respondent denies this. They disagree about what facts relative to income were disclosed and at what times, although we find it clear that it was not until December 7 that the joint income of Complainant and his wife were disclosed, and we also find that it was on this date that Complainant first disclosed his own income to Respondent. “Despite the factual disputes, some points are clear. We find that after December 5,1971: “1.

Complainant discussed with Respondent the former’s interest in renting or buying the Babbitt Lane property. Respondent’s response was an effort to dissuade Complainant from doing so. Nor did Respondent make any attempt to locate Complainant elsewhere in the Bowie area. “2. Respondent never communicated to Complainant Benedetti’s statement to the effect that Benedetti might be willing to lease to Complainant if Complainant moved out and applied through normal procedures. “3.

Respondent never gave Complainant a Lease/Personal Information form, or in any other way assisted Complainant to apply through the normal procedures. “4. Respondent made no effort to determine Complainant’s total family income alone, plus statements by Benedetti about Complainant’s ‘crude’ and shoddy furniture. “5. Respondent put a white on his waiting list (Captain Deward) and showed the property to whites (Captain Deward and Kibling) while aware that blacks were interested in the property, but did not extend similar services to Complainant.” The Commission then concluded that “the following are ²²³ among the facts” which show that Malakoff, in violation of the fair housing statute, “refused to rent, or refused to negotiate for rental, discriminated in terms or conditions of rental, or represented to Complainant for reasons of discrimination that the property was not available for rent: “1. Respondent rejected Complainant on economic grounds before he made any real effort to ascertain Complainant’s economic status.

This suggests that race, rather than financing, was the real reason for the rejection. Even if we accept Respondent’s testimony that he questioned Complainant about his salary on December 5 (and we do not accept it) it is plain that Respondent did no more than elicit information as to Complainant’s own income. In the case of a white couple (the Neitzeys) the income of both husband and wife was ascertained (Respondent’s Exhibit 2). “2. Despite the problem of Neitzey’s breach of the lease, Respondent showed the property to two whites (Deward and Kibling).

Kibling was shown the property after Respondent was aware that Complainant was occupying the property and was definitely anxious to rent it. “3. Despite Benedetti’s willingness to consider Complainant as a tenant if Complainant applied through normal channels, Respondent never communicated this information to Complainant, never gave him an application form to fill out, and thus never permitted him to apply