Bulluck v. Pelham Wood Apartments

• Decision Date: 07 September 1978
• Docket Number: No. 142,142
• Citation: 390 A.2d 1119,283 Md. 505
• Parties: Anthony BULLUCK et al. v. PELHAM WOOD APARTMENTS.
• Court: Maryland Court of Appeals

Page 505

283 Md. 505

390 A.2d 1119

Anthony BULLUCK et al. v. PELHAM WOOD APARTMENTS.

No. 142.

Court of Appeals of Maryland.

Sept. 7, 1978.

W. Stanwood Whiting, Asst. Gen. Counsel for Commission on Human Relations, Baltimore (George A. Shehan, Gen. Counsel, Baltimore, on the brief), for appellants.

Stuart L. Sagal, Baltimore (Bass & Denick, P. A., Baltimore, on the brief), for appellee.

Argued before MURPHY, C. J., and SMITH, DIGGES, LEVINE, ELDRIDGE, ORTH and COLE, JJ.

ELDRIDGE, Judge.

This is an action for judicial review of the decision of the Maryland State Commission on Human Relations in an alleged housing discrimination case.

On or about August 1, 1973, Anthony Bulluck, a black man, visited the Pelham Wood Apartments in order to find housing for his mother and himself. Pelham Wood Apartments is a 464-unit facility, located in Baltimore County, Maryland. In his complaint to the Commission on Human Relations, Bulluck alleged that Pelham Wood Apartments had treated him in a discriminatory fashion.

Bulluck's complaint stated that he went into the rental office at the Pelham Wood Apartments on August 1, 1973. Two salespersons were in the office. One was speaking with two white women, and the other salesperson, after a conversation with her co-worker, came over to Bulluck. Bulluck stated that the second salesperson told him that they had nothing in one, two or three bedroom apartments. Bulluck left the office feeling angry because he believed that the first salesperson was in the process of signing a rental agreement with the two white women. Bulluck became more angry when he noticed two vacant buildings in the apartment complex. Although he was not aware of it at the time, these buildings had been damaged when a tornado struck the area on June 16, 1973, and had been empty since that time. Bulluck filed a formal complaint with the Commission on August 13, 1973, stating that "(i)t was very obvious they wanted to get rid of me in a hurry, and had no intention of renting to a Black."

The Commission on Human Relations commenced an investigation and served a copy of the complaint on the resident agent of Mark-Hall, Inc., the corporation that owns and operates Pelham Wood Apartments, on September 11, 1973. By October 31, 1973, the Commission had completed its investigation. It determined that there was probable cause to believe that Pelham Wood Apartments had violated Maryland Code (1957, 1972 Repl.Vol.), Art. 49B, § 22, which prohibits various discriminatory housing practices. The Commission took action to encourage conciliation of the matter but concluded, on January 24, 1974, that conciliation had failed. The Commission then certified the case for public hearing pursuant to Art. 49B, § 14(a). A three-person tribunal of the Commission heard the case on October 4, 1975.

Before the hearing tribunal, Bulluck offered his own testimony, that of a Commission investigator, and that of two teams of testers who were sent out by the Commission in September 1973 to compare any differences in treatment given to potential black and white tenants by rental agents of Pelham Wood. Pelham Wood, on the other hand, called its president, a marketing expert, and four current black tenants to testify as to its rental practices and policies.

The Commission's hearing tribunal issued its decision and order in early 1976. The Commission made, Inter alia, the following findings of fact:

"3. At that time Complainant presented himself at the rental office of Pelham Wood Apartments, he was informed that there were no two-bedroom apartments available in the immediate future; he was further informed that neither one-bedroom nor three-bedroom apartments were available. Complainant was not asked any information with regard to his income; he was told that there was no waiting list; and he was not given any promotional literature concerning the apartments.

"4. At the time Complainant visited the rental office of Pelham Wood Apartments, there was a one-bedroom and den apartment available. During that period in August, 1973, there averaged about three vacancies per month in one-bedroom and den apartments.

"5. On or about September 14, 1973, one Eleanor Edwards, a Black woman, appeared at the rental office of Pelham Wood Apartments at approximately 1:00 p. m., inquiring into the availability of two-bedroom apartments. She was told that none were available.

"6. On the same day that Ms. Edwards appeared at the rental office of the Respondent at 1:00 p. m., Mary C. Conner, a White woman, visited that same rental office at approximately 2:00 p. m. in the afternoon, inquiring as to the availability of a two-bedroom apartment. Ms. Conner was advised that a two-bedroom apartment would be available on November 15, 1973, and further, that two others would be available on December 1, 1973, and December 15, 1973. In contrast to the experience related by Ms. Edwards, Ms. Conner was encouraged to make application for an apartment and was given a business card."

The hearing tribunal went on to conclude that Pelham Wood Apartments had engaged in an unlawful discriminatory housing practice in violation of Art. 49B, § 22, of the Code:

"Upon the foregoing findings of fact, the Hearing Tribunal concludes that the Respondent has engaged in an unlawful discriminatory housing practice. There was testimony as to the availability of a one-bedroom and den apartment at the same time the complaining witness was advised that there were neither one, two or three-bedroom apartments available; . . . it was October 1973 that one of Respondent's agents had told Ms. Gonsouland that such an apartment was available at the time the complainant had inquired regarding the same. . . .

"Any doubt that the treatment the Complainant received from the Respondent's agents was nothing more than an unfortunate mistake is dispelled by the testimony of (the testers) Ms. Edwards and Ms. Conner, the former, Black and the latter, White, who followed each other nearly immediately into that same rental office, which testimony established beyond any doubt the Respondent's agents were committing unlawful discriminatory housing practices in violation of Article 49B, Section 22 of the Annotated Code of Maryland. . . ."

The tribunal issued an order pursuant to § 14(e) of Art. 49B, calling upon Pelham Wood to "cease and desist from all discriminatory practices under the subtitle 'Discrimination in Housing' of Art. 49B" and to initiate an affirmative action program. Pelham Wood was ordered to provide the Commission with a list of all of the apartments which it owned and managed, to post lists of these apartments in a location that would be conspicuous to potential tenants at all its apartment complexes and at the Commission office, to include the phrase "Equal Housing Opportunity" clearly written on its signs, to formulate a tenant selection policy subject to Commission review, to notify all of its rental agents connected with approval of applications of its tenant selection policy, to initiate a program of tenant recruitment, and to maintain a waiting list.

Pelham Wood appealed to the Circuit Court for Baltimore County, asking the court to review the Commission's findings and order. Pelham Wood contended, Inter alia, that the Commission's findings were unsupported by substantial evidence, were against the weight of the evidence, and were arbitrary and capricious. The circuit court agreed with Pelham Wood and overturned the Commission's order on the ground that the Commission's decision was not supported by substantial evidence.

Bulluck and the Commission took an appeal to the Court of Special Appeals, and we granted a writ of certiorari before any decision by the Court of Special Appeals.

The appellants' argument is that there was substantial evidence in the administrative record to support the Commission's findings. They point to evidence that there was a one bedroom and den apartment available at Pelham Wood in August 1973, and they contrast this with the statements by Pelham Wood's agent that no one, two or three bedroom apartments were available at the complex. The appellants also maintain that the evidence before the agency shows that Bulluck was treated discourteously, was told that there was no waiting list when he asked to sign one, was offered no brochures or other information, was not requested to give any salary or credit information, and was not referred to other nearby apartment facilities under the same management. According to appellants, these facts, combined with the results of the Commission's investigation, amply support the Commission's finding of racially discriminatory housing practices in violation of Art. 49B, § 22.

Pelham Wood, on the other hand, attempts to show the insubstantiality of Bulluck's case by arguing that Bulluck only inquired about two bedroom apartments and none were available, that the Commission's investigation and testers gave inaccurate testimony, that Pelham Wood Apartments' rental practices were nondiscriminatory, and that its advertising effectively reached the black population in the apartment complex's primary marketing area. In addition to its principal argument that the Commission's decision was unsupported by substantial evidence, Pelham Wood claims that the Commission committed other errors warranting a reversal of its order.

I.

Our review of the Human Relations Commission's decision, like the circuit court's, is based on the test set forth in the Maryland Administrative Procedure Act, Code (1957, 1978 Repl.Vol.), Art. 41, § 255(g):

"(g) Affirmance, remand, reversal or modification of decision. The court may affirm the decision of the agency or remand the case for further proceedings; or it may reverse or modify the decision if the substantial rights of the petitioners may have been prejudiced because the administrative findings, inferences, conclusions, or decisions are:

"(5) Unsupported by competent, material, and substantial...