In re Accusation of Department of Fair Employment and Housing, 071411 CAFEHC, H-200708-Q-0283-00-h

Docket Nº:H-200708-Q-0283-00-h, C 10-11-017, 11-09
Opinion Judge:Caroline L. Hunt, Administrative Law Judge.
Party Name:In the Matter of the Accusation of the DEPARTMENT OF FAIR EMPLOYMENT AND HOUSING v. RAYMOND HERNANDEZ, aka RAMON HERNANDEZ, as Owner and Manager; and RAYMOND HERNANDEZ, aka RAMON HERNANDEZ, as Trustee of the HERNANDEZ TRUST AGREEMENT, as Owner, Respondents. THOMAS ARNOLD, LEANNA ARNOLD, and LEANNA ARNOLD as Guardian ad Litem for her minor children
Case Date:July 14, 2011
Court:Fair Employment and Housing Commission of California
 
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In the Matter of the Accusation of the DEPARTMENT OF FAIR EMPLOYMENT AND HOUSING

v.

RAYMOND HERNANDEZ, aka RAMON HERNANDEZ, as Owner and Manager; and RAYMOND HERNANDEZ, aka RAMON HERNANDEZ, as Trustee of the HERNANDEZ TRUST AGREEMENT, as Owner, Respondents.

THOMAS ARNOLD, LEANNA ARNOLD, and LEANNA ARNOLD as Guardian ad Litem for her minor children MARIAH ARNOLD, KATLYN CARTER, BRAYDEN ARNOLD, and AUBREY ARNOLD, Complainants.

Nos. H-200708-Q-0283-00-h, C 10-11-017, 11-09

Fair Employment and Housing Commission of California

July 14, 2011

DECISION

Caroline L. Hunt, Administrative Law Judge.

The Fair Employment and Housing Commission hereby adopts the attached Proposed Decision as the Commission's final decision in this matter but reduces the amount of compensatory damages for emotional distress for the three complainants to $7,500 each. All other damages are affirmed.

The Commission, nunc pro tune , also makes the following typographical correction to the proposed decision: the street name of the housing accommodation at issue should read " Jonathan Street" in lieu of " Jonathon Street," throughout.

Any party adversely affected by this decision may seek judicial review of the decision under Government Code sections 11523 and 12987.1, Code of Civil Procedure section 1094.5, and California Code of Regulations, title 2, section 7437.

Fair Employment and Housing Commission

Patricia Perez

Stuart Leviton

Linda Ng

Kristina Raspe

PROPOSED DECISION

Administrative Law Judge Caroline L. Hunt heard this matter on behalf of the Fair Employment and Housing Commission on February 8, 2011, in Santa Cruz, California. Bruce Carter, Staff Counsel, represented the Department of Fair Employment and Housing (DFEH). Neither Raymond Hernandez nor any representative on his behalf, or on behalf of the Hernandez Trust, appeared at hearing. Complainants Thomas Arnold and Leanna Arnold attended the hearing.

The DFEH's post-hearing brief was received on April 15, 2011, the case was deemed submitted on that date.

After consideration of the entire record, the administrative law judge makes the following findings of fact, determination of issues, and order.

FINDINGS OF FACT

1. On May 10, 2008, complainants Thomas Arnold and Leanna Arnold, on their own behalf and on behalf of their minor children, Mariah Arnold, Katlyn Carter, Brayden Arnold, and Aubrey Arnold, filed a written, verified housing discrimination complaint with the United States Department of Housing and Urban Development (HUD), case number 09-08-1059-8, against [first name unknown] Hernandez, owner, 31 Jonathon Street, Watsonville, CA, 95076; and Hernandez Trust, owner, 608 Atri Court, Watsonville, CA, 95076-3612. The complaint was dual-filed with the DFEH on May 23, 2008, and was assigned DFEH case number H 200708-Q-0283-00-h. In their complaint, the Arnolds alleged that in February and March 2008, Hernandez and the Hernandez Trust had discriminatorily refused to rent them an apartment at 31 Jonathon Street, Watsonville, California, 95076, and had falsely denied its availability, because complainants were white.

2. On November 16, 2010, Phyllis W. Cheng, as Director of the DFEH, issued an accusation against Raymond Hernandez, aka Ramon Hernandez, as owner and manager, and the Hernandez Trust, as owner, pursuant to Government Code section 12930, subdivision (h), of the Fair Employment and Housing Act (FEHA or the Act). The DFEH's accusation alleged that respondents, owners of a multiple unit residential building located at 31 Jonathon Street, Royal Oaks, California, discriminated against complainants on the basis of race, national origin and ancestry by refusing to rent them an apartment, and that Raymond Hernandez made a discriminatory statement that he did not rent to " white people" because they had " too many rights." The accusation alleged that respondents' conduct was in violation of Government Code section 12955, subdivisions (a), (c), (d), and (k), and that respondents violated Civil Code section 51, by denying complainants full and equal advantages and privileges in a business establishment.

3. On January 4, 2011, the DFEH served respondent Raymond Hernandez, both individually and on behalf of the Hernandez Trust, with the accusation, the " " accusation package," and the Notice of Hearing in this matter. Service on respondents was effected by personal delivery at 608 Atri Court, Watsonville, California.

4. On February 3, 2011, the DFEH issued an amended accusation in this matter, and served it on respondents at 608 Atri Court, Watsonville, California. In the amended accusation, the DFEH renamed the second respondent " Raymond Hernandez, aka Ramon Hernandez, as Trustee of the Hernandez Trust Agreement, as owner" (Hernandez Trust). Leave to amend was granted on the first day of hearing, as the amendment was found to be technical in nature, rather than substantive (Cal. Code Regs., tit. 2, § 7409, subd. (d)), and no objection was received. The amended accusation otherwise alleged the same allegations as those in the original accusation issued on November 10, 2010.

5. At all times relevant, 31 Jonathon Street, Royal Oaks, California, located near Watsonville, California (31 Jonathon Street), was a three-unit apartment building, qualifying as a " housing accommodation," within the meaning of Government Code sections 12927, subdivision (d), and 12955, subdivisions (a) and (c).

6. At all times relevant, respondent Raymond Hernandez was also known as Ramon R. Hernandez (respondent Hernandez). The Hernandez Trust Agreement, dated March 17, 2004, (respondent Hernandez Trust) was a revocable trust created by respondent Hernandez, and of which he was the trustee. At all times relevant, respondents Hernandez and the Hernandez Trust owned the apartment building at 31 Jonathon Street, Royal Oaks, California, and thus, were " owners" within the meaning of Government Code sections 12927, subdivision (e), and 12955, subdivisions (a) and (c).

7. In February 2008, Thomas Arnold and his wife Leanna Arnold were looking for a place to live for themselves and their five children in the vicinity of Watsonville, California. The family had recently returned to California after living in Ohio for about a year. While they looked for a home of their own, the family was temporarily staying with Thomas Arnold's parents, at 38 Jonathon Street, Royal Oaks, located outside of Watsonville, California.

8. Thomas and Leanna Arnold had been married for about four years, and had a " blended" family, comprised of their children from prior marriages: Seth Carter (age 14); Mariah Arnold (age 13); Katlyn Carter (age 10); and Brayden Arnold (age 9); and a son, Aubrey Arnold, who was two years old. Complainants identify themselves as white or Caucasian.

9. When reestablishing themselves in Watsonville, both Thomas and Leanna Arnold quickly found jobs: Thomas Arnold worked at a store known as Fox Racing Shox located in Watsonville, California, and Leanna Arnold worked at Hospice of Santa Cruz County, located 22 miles away, in Scotts Valley, California. Their four older children attended local schools in the Watsonville area. Being back on Jonathon Street in Royal Oaks was a welcome return to a familiar place for the family, as Thomas Arnold's children had grown up there since infancy, and Leanna Arnold's children had lived there after the Arnolds' marriage.

10. Respondents' apartment building was located across the road from where the Arnolds were staying on Jonathon Street in Royal Oaks. In late February 2008, the Arnolds noticed a " For Rent" sign displayed outside the apartment complex at 31 Jonathon Street. When Thomas Arnold saw David Hernandez, son of respondent Hernandez, drive up to the apartment complex, Arnold approached him and asked him about the apartment for rent. Thomas Arnold recognized David Hernandez, as Arnold's parents were friendly with him.

11. In response to Thomas Arnold's questions about the apartment for rent, David Hernandez confirmed that it was available, and said that it had three bedrooms, and one-and-one-half bathrooms. The monthly rental was $1,500, with fees for water and garbage collection included.

12. Later that afternoon, the Arnolds filled out a lease application supplied by David Hernandez, paying him $60 for two credit checks. David Hernandez said that if the Arnolds' credit checks were satisfactory, they would make " perfect candidates" for the rental apartment. He said that he would talk to his father, respondent Hernandez, to set up a time for the Arnolds to see the apartment.

13. David Hernandez telephoned the Arnolds the next day, making an appointment for them to see the apartment at 10:00 a.m. on the following Saturday, February 29, 2008.

14. On February 29, 2008, at the appointed time, Thomas, Leanna and 13-year-old Mariah Arnold went to 31 Jonathon Street to view the apartment. Respondent Hernandez introduced himself to them as the owner, indicating that it was Apartment A that was available. After the Arnolds, in turn, introduced themselves and walked toward the open door of Apartment A, respondent Hernandez walked quickly past them, closed the apartment door, and told them that the apartment had already been rented. When Thomas Arnold queried why he had invited them to see the apartment if indeed it was no longer available, respondent Hernandez said, " Actually ... I don't rent to white people." Thomas Arnold asked what respondent Hernandez meant by that. He replied, " white people have too many rights. I rent to Hispanic, mostly Hispanic, illegal immigrants who come over where if I ask them to leave and they refuse, I can threaten them with the police department...

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