In re Accusation of Department of Fair Employment and Housing., 110111 CAFEHC, H 200910-Q-0110-00

Docket Nº:H 200910-Q-0110-00, C 10-11-013, 11-10
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. SABINA STEINBERG, as Owner, Respondent. MARIANA FEHD, Complainant.
Case Date:November 01, 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.

SABINA STEINBERG, as Owner, Respondent.

MARIANA FEHD, Complainant.

Nos. H 200910-Q-0110-00, C 10-11-013, 11-10

Fair Employment and Housing Commission of California

November 1, 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 to $10,000 and the civil penalty to $5,000.

The Commission corrects, nunc pro tunc, the following calendar errors in the Findings of Fact which incorrectly give September rather than October dates: On page four, paragraph 19, line one, the date should read: " On Friday, October 23, 2009" ; on page five, paragraph 21, line one, the date should read: " On Saturday, October 24, 2009" ; on page five, paragraph 22, line one, the date should read: " Fehd first read Steinberg's email at 10 p.m. on Sunday night, October 25, 2009." ; on page six, paragraph 24, line one, the date should read: " " Early the next morning, October 26, 2009," ; and on page six, paragraph 25, line one, the date should read: That day, October 26, 2009," .

Commissioner Leviton filed a concurrence to the decision.

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

Linda Ng

Stuart Leviton

Kristina Raspe

CONCURRENCE

Although I join in the Commission's decision in full, I write separately to emphasize two points. First, Fehd and Steinberg entered into a written lease for a month-to-month tenancy (Finding of Fact ¶ 17). Generally under such circumstances, the tenancy can be terminated on 30-days notice. (Civ. Code § 1946.) In this case, however, because Steinberg was motivated by an unlawful purpose to terminate the lease, an otherwise lawful act of terminating a month-to-month tenancy on 30-days notice becomes a FEHA violation for which Steinberg should be and herein is held accountable.

Second, I am sympathetic to Steinberg's financial condition and her lack of sophistication as a landlord. That said, once Steinberg voluntarily decided to become a landlord, it was incumbent upon her to learn of her legal obligations and to comply fully with the law. In this case, she did not do this, and as such, she should be and herein is held liable for violating the FEHA. Neither Steinberg's financial condition nor her relative lack of sophistication as a landlord is an excuse for not complying fully with the FEHA.

With the foregoing additional comments, I concur in full with the Commission's decision.

Stuart Leviton

PROPOSED DECISION

Administrative Law Judge Caroline L. Hunt heard this matter on behalf of the Fair Employment and Housing Commission on January 18, 2011, and May 23 to 25, 2011, in Oakland, California. David L. Cullen, Staff Counsel, represented the Department of Fair Employment and Housing (DFEH). Respondent Sabina Steinberg, in propia persona, represented herself. Complainant Mariana Fehd and her daughter Amanda Royal attended the hearing throughout.

The Commission received the last of the hearing transcripts on June 16, 2011. The parties' closing briefs were due, respectively, respondent Steinberg's on June 30, 2011, and the DFEH's rebuttal on July 11, 2011, but no briefs were received by the Commission. The case was deemed submitted on June 30, 2011.

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 January 4, 2009, complainant Mariana Fehd filed a written, verified housing complaint with the DFEH against Sabina Steinberg, owner of a house located at 515 Colusa Avenue, Berkeley, California. The complaint alleged that Steinberg discriminated against Fehd based on her disability, Parkinson's disease, by serving her with an eviction notice and by imposing additional rules on Fehd on learning the nature of her disability, in violation of the Fair Employment and Housing Act (FEHA or the Act). (Gov. Code, § 12900, et seq.)

2. On October 28, 2010, Phyllis W. Cheng, as Director of the DFEH, issued an accusation against respondent Sabina Steinberg, pursuant to Government Code section 12930, subdivision (h), of the FEHA. The DFEH's accusation alleged that respondent Steinberg, owner of a four bedroom house located at 515 Colusa Avenue, Berkeley, California, discriminated against complainant on the basis of her disability, Parkinson's disease, by terminating her lease with 30 days' notice and by unilaterally imposing new terms and conditions with which complainant was to comply throughout the 30 day notice period. The DFEH alleged that respondent Steinberg thereby violated Government Code section 12955, subdivisions (a), (c), (d), and (k), and Civil Code sections 51 (the Unruh Civil Rights Act) and 54.1. 1

3. In 2001, complainant Fehd was diagnosed with Parkinson's disease, a degenerative condition affecting the central nervous system, with a range of symptoms, including slowness of movement, stiffness, tremors, difficulty with speaking and swallowing, and problems with walking and balance. Since 2002, she had been under the care of Norman Freeman, M.D., a Board Certified Neurologist, who observed that Fehd's impairments were " gradually progressive." By 2009, Fehd had " moderate" Parkinson's, experiencing slowness of movement, tremors, and tiring easily, but able to live and to function independently.

4. At all times relevant, respondent Steinberg was the owner of real property located at 515 Colusa Avenue, Berkeley, California (515 Colusa Avenue). Improvements on the real property consisted of a two-story, four bedroom house (the main house), and a detached cottage located behind the main house, with its own separate kitchen and bathroom.

5. At all times relevant, respondent Steinberg and her then-12 year-old daughter lived in the main house, occupying two bedrooms. There was a full bathroom downstairs, and Steinberg's bedroom had an adjacent half bathroom. The main house had two other bedrooms: one was located upstairs and had its own bathroom. The fourth bedroom was located downstairs, next to Steinberg's, with shared access to the downstairs bathroom.

6. In early 2009, respondent Steinberg was experiencing financial problems. On February 4, 2009, she filed for bankruptcy with the United States Bankruptcy Court of the Northern District of California, under Chapter 13 of the United States Bankruptcy Code, case number 09-40834.

7. Throughout 2009, respondent Steinberg rented the cottage at 515 Colusa Avenue to a couple, Louis and Jennifer Boles.

8. Motivated by her financial difficulties, in about March 2009, Steinberg decided to rent out rooms in her main house, in addition to renting the cottage to the Boles.

9. In May 2009, Regis Blanc, an exchange student from Switzerland who was attending the University of California at Berkeley, moved into the upstairs bedroom at 515 Colusa Avenue. Blanc shared use of the kitchen and downstairs common areas, and paid Steinberg $200 a month.

10. In the summer of 2009, respondent Steinberg was looking for a tenant for the remaining downstairs bedroom in the main house at 515 Colusa Avenue. On August 28, 2009, she placed an advertisement on Craigslist, which read, in pertinent part:

Spacious and cozy room is offered in one of the most beautiful and convenient neighborhoods of North Berkeley ... The house is well maintained with one owner, newly remodeled kitchen and bathroom ... There is one more tenant on the premises ....

Respondent's Craigslist listing also indicated that a tenant could bring a pet, such as a dog or cat, and that the monthly rent was $799, with all utilities included.

11. In the fall of 2009, complainant Mariana Fehd was interested in finding a short-term rental in the San Francisco Bay Area, in Northern California. Fehd was a retired teacher who had taught English as a Second Language for over 25 years, most recently in Portland, Oregon. Fehd had qualified for a disability retirement from teaching as a result of her Parkinson's and received Social Security disability benefits. She was interested in relocating permanently to California, in part because her two adult daughters and their families lived in Berkeley and Oakland, California. Fehd decided to find a room to rent near her daughters and new grandchild through the 2009 winter holidays, while she evaluated a permanent move in the future.

12. On August 29, 2009, Fehd contacted respondent Steinberg by email in response to Steinberg's Craigslist advertisement. Fehd expressed interest in renting the room in Steinberg's house, describing herself as " quiet, neat and clean," with a " quiet happy cocker spaniel." Fehd stated that she was looking for a rental for a three month period, from October through December 2009, and " " possibly longer." She offered references from her Oregon neighbors and colleagues, and mentioned that her daughters lived nearby in the Bay Area, and that one of them could come by to check out the room and give Steinberg a deposit.

13. After Steinberg responded to Fehd that the room was available, Fehd, who was still in Oregon, asked her daughter Amanda Royal to view the property and check out the neighborhood. On the evening of September 1, 2009, Royal met with Steinberg at 515 Colusa...

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