May v. COLORADO CIVIL RIGHTS COM'N
| Decision Date | 14 February 2002 |
| Docket Number | No. 01CA0185.,01CA0185. |
| Citation | 43 P.3d 750 |
| Parties | Earl MAY, Appellant, v. COLORADO CIVIL RIGHTS COMMISSION, Appellee. |
| Court | Colorado Court of Appeals |
Law Offices of Gary S. Cohen, Gary S. Cohen, Christine Van Coney, Denver, Colorado, for Appellant.
Ken Salazar, Attorney General, Andrew M. Katarikawe, Assistant Attorney General, Denver, Colorado, for Appellee.
Opinion by Judge ROTHENBERG.
Respondent, Earl May (landlord), appeals the order of the Colorado Civil Rights Commission (Commission) affirming a decision of the Administrative Law Judge (ALJ) that concluded landlord's refusal to rent an apartment to complainant, Amy L. Earnest (tenant), was an unfair housing practice in violation of § 24-34-502(1)(a), C.R.S.2001. We affirm in part, reverse in part, and remand for further proceedings.
The tenant is a white female married to an African-American man with whom she had a child. In July 1998, the tenant responded to an advertisement for an apartment and was shown the available unit by the landlord's property manager. The property manager told her the landlord did not want children living in the apartment. However, after the tenant and the landlord spoke on the telephone, the landlord agreed to rent the apartment to her. Shortly thereafter, the landlord and the tenant signed a rental agreement, and the tenant gave him a postdated check as a deposit.
The next day, the tenant returned to the apartment and spoke to the property manager. When the tenant told the property manager her husband was African-American, the property manager advised the tenant to tell the landlord about her husband's race. The tenant did so by telephone, and two days later, the landlord left a message on her answering machine retracting his offer to rent the apartment to the tenant. The tenant later spoke to the landlord on the telephone, at which time he claimed his reason for not renting to her was because her check for the deposit was unsupported by sufficient funds. The record discloses no other evidence regarding the validity of her check.
On August 11, 1998, the tenant filed charges of housing discrimination with the Commission, alleging that the landlord had violated the Colorado Fair Housing Act (CFHA), § 24-34-501, et seq., C.R.S.2001, by refusing to rent the apartment to her based on her familial status and her husband's race.
In March 1999, the Colorado Attorney General, who represented the tenant's interest throughout the proceedings, moved for an extension of ninety days to August 6, 1999, to serve the written notice of hearing and formal complaint on the landlord under § 24-34-306(11), C.R.S.2001 (). The reason given for the extension was "to ensure completion of the administrative process." On April 7, 1999, the extension was granted.
On August 3, 1999, a notice of hearing and formal complaint was served on the landlord. A hearing was set for November 29, 1999, which was 118 days after service was made on the landlord and two days before the Commission's jurisdiction would terminate in this case under § 24-34-306(4), C.R.S.2001 (). The landlord did not answer the complaint.
On September 28, 1999, the tenant's counsel filed a motion "for leave to Commence and Continue Hearing," asserting that the tenant was scheduled to give birth during the week of November 29, 1999, and that she was the primary witness. Over the landlord's objection, a commissioner continued the hearing to January 4, 2000.
On November 29, the ALJ heard the opening statement of tenant's counsel. The ALJ also questioned counsel regarding the charges against the landlord and then continued the proceedings until January 4, 2000. At the January 2000 hearing, the tenant and her husband testified about the landlord's statements and conduct and about the damages they sustained when they were forced to remain in their current apartment. The landlord did not appear personally or through counsel at either proceeding.
Following the January hearing, the ALJ issued an initial decision finding the landlord had violated the CFHA. As relevant here, the ALJ awarded damages of $10,000 to the tenant and her family for emotional distress suffered by them and further ordered that the landlord pay a civil penalty of $10,000 to the state.
Thereafter, the landlord retained counsel and filed with the Commission a motion to dismiss and exceptions to the ALJ's initial decision. The Commission affirmed and adopted the ALJ's initial decision. The landlord also filed a C.R.C.P. 60(b)(1) motion contending he was entitled to a new trial because of his impaired mental state. The Commission denied that motion.
Relying on § 24-34-306, C.R.S.2001, the landlord contends the Commission lacked subject matter jurisdiction to enter its order against him. We disagree.
Section 24-34-306(4) provides in relevant part:
If the commission determines that the circumstances warrant, it shall issue and cause to be served ... a written notice and complaint requiring the respondent to answer the charges at a formal hearing before the commission, a commissioner, or an administrative law judge. Such hearing shall be commenced within one hundred twenty days after the service of such written notice and complaint. (emphasis added)
Section 24-34-306(11) provides in relevant part:
If written notice that a formal hearing will be held is not served within two hundred seventy days after the filing of the charge,... or if the hearing is not commenced within the one-hundred-twenty-day period prescribed by subsection (4) of this section, the jurisdiction of the commission over the complaint shall cease .... If any party requests the extension of any time period prescribed by this subsection (11), such extension may be granted for good cause by the commission, a commissioner, or the administrative law judge, as the case may be, but the total period of all such extensions to either the respondent or the complainant shall not exceed ninety days each.... (emphasis added)
If the above requirements are not satisfied, § 24-34-306(11) explicitly states that the Commission loses jurisdiction over the complaint. The time limitations here are not merely directory. See Wilson v. Hill, 782 P.2d 874, 875 (Colo.App.1989).
According to the landlord, the Commission's jurisdiction ended because the ninety-day extension to serve the notice of the formal hearing and complaint was granted without good cause, contrary to § 24-34-306(11). We disagree.
"Good cause" has been described as "substantial or legal justification, as opposed to an assumed or imaginary pretense." Watso v. Colorado Dep't of Social Services, 841 P.2d 299, 311 (Colo.1992). The good cause standard "requires objective evaluation of different interests in varied factual contexts, and its application is subject to judicial review." Watso v. Colorado Dep't of Social Services, supra, 841 P.2d at 311.
If the factual determinations in an agency's order are supported by substantial evidence in the record, we will uphold them. Weinstein v. Cherry Oaks Retirement Community, 917 P.2d 336 (Colo.App.1996). Also, an administrative body is presumed to act "fairly, with proper motives and upon valid reasons, in carrying out its statutory responsibilities." Agnello v. Adolph Coors Co., 689 P.2d 1162, 1165 (Colo.App.1984).
Here, the reason given for requesting the extension was "to ensure completion of the administrative process." The commissioner stamped the motion "granted" without giving an explicit reason for the finding of good cause.
Nevertheless, the ninety-day extension did not impermissibly extend the jurisdiction of the commission. Rather, it allowed the maximum time permitted by the statute for an extension. Further, the written form granting the extension contains a list of factors that should be considered by the decisionmaker, including the effect on the rights of any party of not granting the extension and any adverse impact the extension would have on the rights of any party. The record does not suggest the commissioner failed to consider these factors in granting the extension.
Thus, while the commissioner should have articulated the specific reasons for finding good cause, which would have allowed us to discern more accurately the rationale for the ruling, we may presume the commissioner acted for a valid reason, see Agnello v. Adolph Coors Co., supra, and there is no indication in the record that the landlord was prejudiced by the extension.
Under these circumstances, we reject the landlord's contention that the Commission lacked subject matter jurisdiction over the tenant's complaint based on an absence of good cause for the extension.
The landlord also maintains that the Commission's jurisdiction ceased under § 24-34-306(11) because the hearing did not "commence" within 120 days of service of the written notice and complaint on him. The landlord contends the proceeding conducted on November 29, 1999, was insufficient to constitute a hearing, and therefore, the Commission lacked jurisdiction to take any later actions. Again, we disagree.
In order for the Commission to retain jurisdiction over the complaint where a formal hearing will be held, it must "commence such hearing" within 120 days from service of the notice and complaint on the respondent. See § 24-34-306(4), (11).
The term "hearing" is not defined under the statute, but in other contexts, it has been construed to include "the privilege to be present when a case is being considered and the right to present and support one's contentions by evidence and argument." Westar Holdings Partnership v. Reece, 991 P.2d 328, 331 (Colo.App.1999)(emphasis omitted).
The hearing on November 29, 1999, was...
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