In re Accusation of Department of Fair Employment and Housing, 121812 CAFEHC, H-201011-Q-0169-00-ph
|Docket Nº:||H-201011-Q-0169-00-ph, H-201011-Q-0169-01-ph, H-201011-Q-0169-02-ph, C11-12-025, 12-10|
|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. SURESH KUMAR, aka BOB KUMAR, and SUBHA KUMAR, aka SUE KUMAR, Respondents. FRANK BLAIR, DARLENE BLAIR, and JENNIFER BLAIR, Complainant.|
|Case Date:||December 18, 2012|
|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.
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, respondents, and complainant.
Fair Employment and Housing Commission
Chané e Franklin Minor
Administrative Law Judge Caroline L. Hunt heard this matter on behalf of the Fair Employment and Housing Commissionon May 22 and 23, 2012, in San Mateo, California. Fernando T. Aceves, Staff Counsel, represented the Department of Fair Employment and Housing, assisted by law clerk Hyeseong Lee of U.C. Irvine. William E. Gilg, Attorney at Law, represented respondents Suresh and Subha Kumar. Complainants Frank and Darlene Blair and respondent Suresh Kumar attended throughout the hearing. Nelson Chan, Chief Counsel, Department of Fair Employment and Housing, attended part of the proceedings on the first day of hearing.
On receipt of the hearing transcripts, and the filing of the parties' post-hearing briefs, on October 24, 2012, the matter was deemed submitted.
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 27, 2011, Frank, Darlene and Jennifer Blair (complainants) filed a verified housing discrimination complaint with the Department of Housing and Urban Development (HUD). On February 1, 2011, the Blair's complaint was filed with the Department of Fair Employment and Housing (DFEH). In their complaint, the Blairs alleged that, on January 18, 2011, Bob Kumar, managing agent, and Suresh and Subha Kumar, owners, discriminated against complainants on the basis of disability, by denying them the opportunity to rent an apartment at 2317 Flores Street, San Mateo, California, because they had a service animal.
2. The DFEH is an administrative agency empowered to issue accusations under Government Code section 12930, subdivision (h). On January 31, 2012, Phyllis W. Cheng, in her official capacity as Director of the DFEH, issued an accusation against Suresh Kumar, aka Bob Kumar, and Subha Kumar, aka Sue Kumar (respondents). In its accusation, the DFEH alleged that, in January 2011, respondents violated the Fair Employment and Housing Act, Government Code section 12900, et seq. (FEHA) by refusing to consider complainants' rental application based on their disability and need for a companion animal, in violation of Government Code section 12955, subdivision (a). The DFEH also alleged that respondent Suresh Kumar made discriminatory statements in violation of Government Code section 12955, subdivision (c), and that respondents' refusal to rent based on disability also violated Government Code section 12955, subdivision (d), and (k), and Civil Code section 51 (the Unruh Civil Rights Act).
3. On February 8, 2012, the DFEH filed an amended accusation to correct the DFEH complaint numbers, and otherwise recited the same allegations as the original accusation.
4. Since 1987, respondents Suresh and Subha Kumar, husband and wife, have been the owners of a two-story, five-unit residential apartment building, located at 2317 Flores Street, San Mateo, California (2317 Flores apartments). Respondents qualify as " owners" under Government Code sections 12927, subdivision (e), and 12955. The 2317 Flores apartments also qualify as a " " business establishment, " within the meaning of Civil Code section 51, subdivision (b).
5. In January 2011, complainants Frank Blair, Darlene Blair, and their daughter, 28 year-old Jennifer Blair, 1 were looking for an apartment to rent in the San Mateo area. Jennifer Blair qualified for Section 8 housing, making her parents eligible as part of her household. The Blairs had encountered difficulties at their current apartment, located at 1013 El Camino Real in Burlingame, and had received approval from the Housing Authority of the County of San Mateo to move out and find a new place to live.
Complainant Frank Blair's Relevant Medical History
6. From October 2005 to September 2009, Frank Blair's primary care physician was David J. Sugarman, M.D. Dr. Sugarman, who practiced internal medicine and nephrology, treated Blair for his ongoing medical conditions, including anxiety and depression, and numerous serious physical ailments. Blair was originally diagnosed with anxiety disorder in 1959, when he was just five years old, as a result of severe childhood trauma.
7. Because of his medical conditions, Social Security Administration deemed Blair " totally disabled."
8. In late December 2006, Blair acquired a dog, a Lhasa Apso named Sidney. Blair's primary care physician, Dr. Sugarman, supported Blair's having a dog. In a letter addressed " To Whom it May Concern" on January 23, 2007, Dr. Sugarman wrote, in pertinent part,
[His] severe pain and medical problems have caused [Blair] mental distress and much depression. I feel it is imperative that [Blair] be permitted to have a pet to maintain his mental health and aid in stress management.
9. In September 2007, Blair began seeing a psychotherapist, Mark Plante, MFT, to deal with his ongoing anxiety and depression. Plante had a Masters degree in Counseling Psychology, and maintained a private practice as a marriage and family therapist. Plante qualified at hearing as an expert in the field of family therapy specializing in mental and emotional disabilities.
10. During Blair's course of treatment from 2007 to 2009, consisting of 77 counseling sessions, Mark Plante noted that Blair had many symptoms consistent with post-traumatic stress disorder, as the result of his early childhood trauma and other violent and traumatic events in his life. Plante diagnosed Blair with general anxiety disorder and general dysthymia, a form of depression.
11. Mark Plante considered that Blair's dog, Sidney, was beneficial to Blair's mental health, as Blair formed a " meaningful relationship" with the dog, which helped Blair to feel less isolated, and added meaning to his life. Blair often spoke about his dog during his sessions with Plante, who observed that Sidney helped Blair in managing his anxiety and depression.
12. On July 31, 2009, San Mateo County issued a license tag for Sidney, indicating that the dog was licensed as a service dog, LO9-S00289.
Respondents' Rental at 2317 Flores Street
13. In January 2011, respondents Suresh and Subha Kumar had a vacant two-bedroom unit available for rent at the 2317 Flores apartments, unit number 5. Respondents listed the apartment on a website called GoSection8.com, where prospective tenants could locate housing under Section 8, 2 the federal housing program which provides housing assistance to low-income tenants.
14. On January 18, 2011, after seeing the listing for the 2317 Flores apartment on GoSection8.com, Jennifer Blair telephoned Suresh Kumar, leaving him a message. Kumar returned the call that evening, when the Blairs were in their car. After speaking briefly to Kumar, Jennifer handed the telephone to her father, Frank Blair, who put the telephone on " speaker" mode. Blair expressed his interest in the apartment for his wife, daughter and himself. Kumar asked if the Blairs had a Section 8 voucher and the cash needed to move in, and Blair said yes, that was not a problem. The monthly rent for the apartment was $1, 650, about three-quarters of which would be subsidized by Section 8, making the Blairs' share about $400 a month.
15. During their January 18, 2011 telephone conversation, Kumar explained to Blair that the apartment had two bedrooms and was located on the second floor, to which Blair responded that his family currently lived in a second floor apartment. Kumar also described the apartment building's facilities, including the laundry room, carport, garage, and the surrounding area. He then urged the Blairs to come by to look at the apartment, suggesting that they meet him there the next day, and gave directions on how to find the place. Kumar asked Blair to be sure to bring the Section 8 voucher so that they could set up an inspection with the Housing Authority, saying that the unit would be ready to move into on the first of February. Blair found Kumar to be polite and cordial during the telephone call, a " nice guy."
16. Towards the end of the telephone call between Frank Blair and Suresh Kumar, Blair disclosed that he had a " service animal, " referring to his dog, Sidney. Kumar asked, " Does that mean you're blind?" and " Are you in a wheelchair?" Blair responded no, and that his dog was not just a dog, but a " " certificated...
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