Mendota Apts. v. District of Columbia Com'n On H. R.

• Decision Date: 04 March 1974
• Docket Number: No. 6924.,6924.
• Citation: 315 A.2d 832
• Parties: MENDOTA APARTMENTS et al., Petitioners, v. DISTRICT OF COLUMBIA COMMISSION ON HUMAN RIGHTS, Respondent.
• Court: D.C. Court of Appeals

315 A.2d 832

MENDOTA APARTMENTS et al., Petitioners, v. DISTRICT OF COLUMBIA COMMISSION ON HUMAN RIGHTS, Respondent.

No. 6924.

District of Columbia Court of Appeals.

Argued October 23, 1973.

Decided March 4, 1974.

Mark P. Friedlander, Jr., Washington, D. C., with whom Mark P. Friedlander, Blaine P. Friedlander, Harry P. Friedlander, Marshall H. Brooks, and Jerome P. Friedlander, II, Washington, D. C., were on the brief, for petitioners.

David P. Sutton, Asst. Corp. Counsel, Washington, D. C., with whom C. Francis Murphy, Corp. Counsel, and Richard W. Barton, Asst. Corp. Counsel, Washington, D. C., were on the brief, for respondent.

Before PICKLING and HARRIS, Associate Judges, and HOOD, Chief Judge, Retired.

HOOD, Chief Judge, Retired:

This case arose out of a complaint filed on September 28, 1970, by Emma J. Bridges with the D.C. Human Relations Commission (now the D.C. Office of Human Rights)¹ charging the Mendota Apartments, Inc., its president, Mr. Charles E. Shelton, and its Board of Directors with having engaged in an unlawful discriminatory practice in violation of District of Columbia Police Regulations, Art. 45, § 3(a) (as amended September 28, 1967) by refusing to lease an apartment to her because she is a Negro. That regulation prohibits any person, for reasons of race, color, religion, or national origin, to:

Interrupt or terminate, or refuse or fail to transfer, an interest in real property, or require different terms for such transfer, or represent falsely that such interest is not available for such transfer.

On March 8, 1971, James W. Baldwin, Executive Director, D.C. Human Relations Commission, filed a motion to amend the complaint on behalf of Miss Bridges to include relief for "out-of-pocket damages" estimated at two hundred dollars ($200.00) as well as "damages for humiliation, mental anguish, and psychic harm amounting to one-thousand dollars ($1,000.00)." The hearing panel granted the motion to amend, and having found that there did exist unlawful discrimination against the complainant, on November 10, 1972, the Commission ordered the petitioners to:

1. Cease and desist from discriminating against applicants because of their race, color, religion, or national origin in the rental of any apartments in all properties which they own, manage, or rent.

2. Add in all advertisements of their apartment — language that will show them open to all regardless of race, color, religion, or national origin.

3. Report by race to the D.C. Human Rights Office every six months all changes in occupancy of apartments.

4. Pay to Emma J. Bridges, complainant, the sum of $950.00 in damages as compensation for the humiliation and mental anguish suffered by her and her out-of-pocket expenses as a direct result of respondents' unlawful discriminatory practices.

Although petitioners do not question the authority of the Commissioners of the District of Columbia to enact Article 45 as a police regulation, they have advanced various procedural claims in their attempt to overturn the Commission's decision, but they have fallen short of establishing any procedural error warranting reversal by this court. With respect to petitioners' contention that the findings of fact made by the Commission were contrary to the evidence, we need only say that in our view the record supports the Commission's finding that Miss Bridges was refused an apartment at the Mendota because she is black. The sole question left for our consideration is whether the Commission exceeded its delegated authority in ordering petitioners to take the action specified in its four-part order of November 10, 1972.

We find no problem with part one of that order which requires petitioners to cease and desist from discriminatory practices. Authority to issue such an order may be found in Article 45, § 9(b) which provides that if the Council² finds

that the person complained against has violated this Article, the Council shall

(i) state its findings and issue an order requiring the person complained against to cease and desist from such unlawful conduct and to take such affirmative action as will effectuate the purposes of this Article. . . .

Part two of the Commission's Order relating to advertising, and part three which requires petitioners to report by race semiannually changes in occupancy, are not authorized by express language of Article 45. However, we consider that this type of affirmative action may be required of a delinquent party since it may be reasonably necessary to effectuate the purposes of Article 45, which is of course the elimination of discrimination in housing. The Commission could reasonably conclude that similar discriminatory conduct might continue in the future absent a mechanism by which it could insure compliance with its cease and desist order.

Part four of the order, awarding complainant damages of $950.00, presents a more serious question. The legislative authority of the Commissioners, except where specifically granted by Congress, was limited to the enactment of "reasonable and usual police regulations." See District of Columbia v. John R. Thompson Co., 346 U.S. 100, 73 S.Ct. 1007, 97 L.Ed. 1480 (1953); Firemen's Ins. Co. v. Washington, 483 F.2d 1323 (D.C.Cir., 1973); Maryland & D.C. Rifle and Pistol Ass'n, Inc. v. Washington, 142 U.S.App.D.C. 375, 442 F. 2d 123 (1971); Filippo v. Real Estate Comm'n of the District of Columbia, D.C. App., 223 A.2d 268 (1966). The instant regulation was enacted pursuant to the authority as found in D.C.Code 1961, § 1-226,³ which provided that:

[T]he Commissioners of the District of Columbia are hereby authorized and empowered to make and enforce all such reasonable and usual police regulations . . . as they may deem necessary for the protection of lives, limbs, health, comfort, and quiet of all persons and the protection of all property within the District of Columbia.

Whether a reasonable and usual police regulation may authorize an administrative body to award unliquidated damages is at the least doubtful. However, we need not decide that question because the instant regulation did not expressly grant such authority, and we are convinced no such authority was impliedly granted.

As a basis for the power to award damages, the Commission relies exclusively on the language of Article 45, § 9(h) which allows the Commission to order one who has violated the Article "to take such affirmative action as will effectuate the purposes of this Article . . . ." This same section provides further that if the person complained against has not corrected the unlawful activity within fifteen days, the matter is to be turned over to the Corporation Counsel which may institute civil proceedings in the name of the District of Columbia, including requests for injunctive relief. The Corporation Counsel is also authorized to institute criminal proceedings to impose the penalties prescribed in Section 14 (maximum fine of $300.00 or imprisonment for not more than ten days).⁴ It is clear that the Commission cannot order the fine or imprisonment. Article 45, § 14 requires that the action be brought in the District of Columbia Court of General Sessions (now D.C. Superior Court).

In addition, Article 45, § 10(a) provides that "[n]othing herein shall prevent any person from exercising any right or seeking any remedy to which he might otherwise be entitled . . . ." Thus an injured party is not precluded by filing a complaint with the Office of Human Rights from seeking a civil remedy, including an action for damages, in the courts. By way of contrast, the New Jersey Legislature in its Law Against Discrimination provided that the administrative proceedings conducted by the Division on Civil Rights would be exclusive while pending and that the final administrative determination should preclude "any other action, civil or criminal, based on the same grievance of the individual concerned." The Supreme Court of New Jersey inferred from this language that since a complainant would appear to be barred from recompense elsewhere, the Legislature contemplated that the administrative agency would have authority to award as "incidental relief" damages for pain and suffering as well as economic loss. Zahorian v. Russell Fitt Real Estate Agency, 62 N.J. 399, 301 A.2d 754 (1973); see also Jackson v. Concord Co., 54 N.J. 113, 253 A.2d 793 (1969). The language of Article 45 of the Police Regulations, however, indicates no intention that the Human Relations Commission should award civil damages.⁵

Various state legislatures have specifically vested such power in state administrative agencies by statute. The New York statute allows awards for "compensatory damages" which was construed to include awards for incidental...