In re Accusation of Department of Fair Employment and Housing, 082410 CAFEHC, H200708-P-0097-00-ph
|Docket Nº:||H200708-P-0097-00-ph, H200708-p-0097-01-p, C 08-09-007, 10-03|
|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. CRESTWOOD CHALET, LLC, a California Limited Liability Corporation, Owner; CRESTWOOD CHALET APARTMENTS, Owner; and, PARVIZ TAHERPOUR, M.D., Owner and Managing Agent, and as Trustee of the TAHERPOUR FAMILY TRUST, Owner and Managing Agent, Respondents. RUSSELL BROWER,|
|Case Date:||August 24, 2010|
|Court:||Fair Employment and Housing Commission of California|
The Fair Employment and Housing Commission hereby adopts the attached Proposed Decision as the Commission's final decision in this matter.
The Commission, nunc pro tunc , makes the following typographical correction to the proposed decision: at page 2, finding of fact 2, line 2, the text is amended to read " August 8, 2008," in lieu of " August 11, 2008."
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.
Any petition for judicial review and related papers shall be served on the Department of Fair Employment and Housing, the Commission, respondents, and complainant.
Fair Employment and Housing Commission
Administrative Law Judge Caroline L. Hunt heard this matter on behalf of the Fair Employment and Housing Commission on March 24 to 26, 2009, in Ventura, California. Nelson H. Chan, Senior Staff Counsel, represented the Department of Fair Employment and Housing. Jody Steinberg, Esq., of Hanger, Levine, & Steinberg, a Law Corporation, represented respondents Crestwood Chalet, L.L.C., Crestwood Chalet Apartments, and Parviz Taherpour, M.D., individually and as trustee of the Taherpour Family Trust. Complainant Russell Brower and respondents' representative, Liselotte Taherpour, attended throughout the hearing.
After conclusion of the evidentiary hearing, the parties' respective post-hearing briefs and opposition briefs were timely filed. On May 28, 2009, the matter was deemed submitted. Issuance of this proposed decision was delayed due to the medical disability of the administrative law judge.
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 August 10, 2007, Russell Brower (Brower or complainant) filed written, verified complaints with the Department of Fair Employment and Housing (DFEH) against Crestwood Chalet Apartments and Parviz Taherpour, M.D., Owner. In the complaints, Brower alleged that, within the preceding year, Crestwood Chalet Apartments and Parviz Taherpour failed to accommodate complainant's disability by allowing him to move to an upstairs apartment and further, retaliated against him by serving him with a notice to move out on June 1, 2007, in violation of the Fair Employment and Housing Act (the Act or FEHA).
2. The DFEH is an administrative agency empowered to issue accusations under Government Code section 12930, subdivision (h). On August 11, 2008, Phyllis W. Cheng, in her official capacity as Director of the DFEH, issued an accusation against Crestwood Chalet, L.L.C., a California Limited Liability Corporation; Crestwood Chalet Apartments (Crestwood Chalet); and Parviz Taherpour, M.D., both individually and as trustee of the Taherpour Family Trust (collectively " respondents" ). In its accusation, the DFEH alleged that, commencing in July 2006, respondents discriminated against and harassed Brower based on his mental and physical disabilities (severe post-traumatic stress disorder and sleep disorders) by refusing to permit him to move to an upstairs apartment, and thereby failed to accommodate his disabilities. The DFEH further alleged that, on June 1, 2007, respondents retaliated against Brower for objecting to respondents' unlawful housing practices by giving him a Ninety (90) Day Notice of Termination of his tenancy. The DFEH alleged that respondents' conduct violated Government Code section 12955, subdivisions (a), (d) and (f), of the FEHA and Civil Code section 51, the Unruh Civil Rights Act (Unruh Act).
3. Crestwood Chalet is a two-story, 30-unit apartment complex, located at 2222 Los Feliz Drive, Thousand Oaks, California. Taherpour Family Trust owns the Crestwood Chalet apartment complex. Respondent Parviz Taherpour and his wife Liselotte are trustees of Taherpour Family Trust. Respondent Taherpour Family Trust is the " owner" of Crestwood Chalet, within the meaning of Government Code sections 12927, subdivision (e), and 12955, subdivisions (a), (d) and (f). Crestwood Chalet also qualifies as a " business establishment," within the meaning of Civil Code section 51, subdivision (b).
4. In the summer of 2003, when complainant Brower applied to rent an apartment at Crestwood Chalet, he was a single father with a teenage son. He was interested in renting at Crestwood Chalet because it was a peaceful well-maintained apartment complex, and was a housing provider qualified under Housing and Urban Development's Section 8 rental assistance voucher program. On July 10, 2003, Brower submitted a rental application, and the property manager Corinne showed him three available apartments: apartment numbers 106, 107, and 203. Crestwood Chalet's apartments numbered 101 through 115 were located at ground level, while the apartments numbered 201 through 215 were upstairs.
5. Brower selected the ground floor apartment number 107, choosing it in part because it was going to be renovated prior to his move-in. Respondents replaced the carpets, and repaired and cleaned the heating, ventilation, and air conditioning system.
6. In August 2003, Brower signed a written lease agreement and moved into apartment number 107 with his son. Brower was responsible for paying a portion of the $1,325 monthly rental amount, with Section 8 paying the balance through the local Area Housing Authority of Ventura County.
7. Years before becoming a tenant at Crestwood Chalet, Brower had been profoundly affected by two incidents. In 1979, while Brower was at work, two armed robbers confronted him. One held a shotgun to Brower's head, while the other placed a knife to his back, threatening to kill Brower and his coworkers. The robbers forced all of the employees to crawl into a backroom, where they hid, terrified, until the robbers left. The second incident occurred in 1985. Brower was again at work, in a restaurant, when gunmen entered, pointed a gun at Brower's temple, and another to the back of his head. The gunmen ordered everyone into a cabinet, and took their jewelry, watches and also money from the cash register. When the cabinet door was slammed shut, Brower thought it was a gunshot. He was in a state of shock, not knowing if he was alive or dead.
8. In both of the robberies in 1979 and 1985, Brower had seen the faces of the perpetrators. He realized that, as an eye witness, he was in potential danger. He was in constant fear that the gunmen would find out where he lived and shoot him while he slept.
9. Brower had experienced sleep problems for many years, even prior to the robberies. He had a form of obstructive sleep apnea, causing his throat to close after he fell asleep and abruptly waking him up. Experiencing the robberies, with the ongoing terror that he would be killed in his sleep, exacerbated Brower's sleep problems.
10. Paul C. Reisser, M.D. was Brower's primary care physician. Dr. Reisser saw Brower as a patient initially at Conejo Medical Group, then later at Conejo Free Clinic. In 2004 and 2005, Dr. Reisser referred Brower to specialists for his ongoing sleep problems. Brower saw pulmonologist sleep specialist Dr. Raman Mehdian and psychiatrist Phillip D. Malinas, M.D. Brower was diagnosed with sleep apnea and post-traumatic stress disorder. Brower was initially prescribed a BiPAP machine to address his sleep apnea, later replaced with an auto-titrating continuous positive air pressure (APAP) machine, which sent air to a face mask, worn during sleep, and which automatically adjusted the air pressure to keep Brower's air passages open during sleep. Brower was also advised to use earplugs but he decided not to wear them because he thought they " stopped working."
11. In July 2006, Craig Cohen M.D., prescribed " medical marijuana" for Brower as a " medically appropriate treatment," although the underlying reasons were not made part of the record. Dr. Cohen advised Brower to use edibles, tea, topical applications, or a vaporizer, instead of smoking the cannabis. The doctor also put in writing a legal caution that the possession and use of cannabis, even for medical purposes, was illegal under federal law, notwithstanding California's Proposition 215 (which authorized the use of medical marijuana in California).
12. From August 2003 until May 2006, Brower lived in apartment number 107 without significant issues or complaint. In 2005, Edgar DeJesus replaced Corinne as Crestwood Chalet's resident property manager. Brower occasionally complained to respondents about noise from other tenants disturbing his sleep, such as a neighbor starting his truck and revving the engine just outside Brower's bedroom window, a neighbor child bumping the common wall when he moved in his sleep, and a dog in a neighboring apartment barking and whining when its owners were out. Respondents dealt with each of these issues to Brower's satisfaction, maintaining a predominantly " tranquil" environment for all of the tenants, including...
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