Rackow v. Illinois Human Rights Com'n

• Decision Date: 26 February 1987
• Docket Number: No. 2-85-0986,2-85-0986
• Parties: , 105 Ill.Dec. 826 John L. RACKOW, Jr., Lois Rackow, Century 21/Grant Associates, Inc., an Illinois corporation, Alan Nisenbaum and Joseph Karwowski, Plaintiffs-Appellants, v. ILLINOIS HUMAN RIGHTS COMMISSION and Myron Podgurski, Defendants-Appellees.
• Court: United States Appellate Court of Illinois

Page 1344

504 N.E.2d 1344

152 Ill.App.3d 1046, 105 Ill.Dec. 826

John L. RACKOW, Jr., Lois Rackow, Century 21/Grant

Associates, Inc., an Illinois corporation, Alan

Nisenbaum and Joseph Karwowski, Plaintiffs-Appellants, v. ILLINOIS HUMAN RIGHTS COMMISSION and Myron Podgurski,

Defendants-Appellees.

No. 2-85-0986.

Appellate Court of Illinois, Second District.

Feb. 26, 1987.

Paul R. Jenen, Wheeling, Frank G. Roux, Lake Zurich, for plaintiffs-appellants.

Neil F. Hartigan, Roma Jones-Stewart, William D. Frazier, Brubaker & Motto, Patricia A. Motto, Attys. Gen., Chicago, for defendants-appellees.

Justice REINHARD delivered the opinion of the court:

Plaintiffs, John L. Rackow, Jr., Lois Rackow, Century 21/Grant Associates, Inc., an Illinois corporation, Alan Nisenbaum, and Joseph Karwowski, appeal from the November 4, 1985, order of the circuit court of Lake County affirming the decisions of the Illinois Human Rights Commission, a named defendant, which found that plaintiffs violated section 3-104(A) of the Illinois Human Rights Act (Ill.Rev.Stat.1981, ch. 68, par. 3-104(A)) by refusing to lease an apartment to Myron Podgurski, also a named defendant, because he would have one or more of his children who were less than 14 years old residing with him.

On February 22, 1984, plaintiffs filed a complaint for review of the November 22, 1982, and January 30, 1984, administrative decisions of the Human Rights Commission under the Administrative Review Law (Ill.Rev.Stat.1983, ch. 110, par. 3-101 et seq.) pursuant to section 8-111(A)(1) of the Illinois Human Rights Act (Ill.Rev.Stat.1983, ch. 68, par. 8-111(A)(1)). The complaint identified the plaintiffs Nisenbaum and Karwowski as the beneficiaries of a certain land trust, commonly known as Trust Nos. 40375 & 40588, which owned a two-building apartment complex in Lake Zurich known as Water's Edge Apartments, and the plaintiffs John L. Rackow, Jr., and Lois Rackow as employed by this land trust to manage, administer and maintain Water's Edge. The plaintiff Century 21/Grant Associates, Inc., was not identified. The complaint stated that the November 22, 1982, order reflected the Commission's finding that plaintiffs had discriminated against Myron Podgurski based upon the number and ages of his children, awarded Podgurski $300 in compensatory damages and ordered plaintiffs to offer him a lease, and that the January 30, 1984, order awarded Podgurski $4,644.75 as reasonable attorney fees. The complaint alleged that judicial review was sought because the November 22, 1982, decision of the Commission is against the manifest weight of the evidence, adversely affects plaintiffs' right to place meaningful and reasonable restrictions upon the use of their rental property to prevent the premises from being inhabited by an absolutely unlimited number of tenants in an exceptionally small and confined area, and is based upon an unconstitutional statute in that it is unduly broad, vague and unreasonably ambiguous with reference to the number of tenants to be allowed in a particular apartment thereby depriving plaintiffs of the use of their property without due process of law.

The record of the administrative proceedings was filed in the circuit court and reveals the following. On October 16, 1980, Myron Podgurski filed a grievance with the Department of Human Rights claiming that he was refused a lease at Water's Edge Apartments by Lois Rackow and John L. Rackow, Jr., because his children under the age of 14 years would be visiting him. He later filed two additional grievances.

In response to these grievances, the Department of Human Rights filed a three-count complaint with the Human Rights Commission alleging in count I that Podgurski was aggrieved by plaintiffs' policy of not allowing children in one-bedroom apartments or of allowing only one child, under five years old, in a two-bedroom apartment which is prohibited by section 3-104(A) of the Illinois Human Rights Act, alleging in count II that Podgurski was refused a lease at Water's Edge because he reported the above policy to the Department of Human Rights, and alleging in count III that the policy enumerated above had a discriminatory impact against separated and divorced persons and that Podgurski was refused a lease because of his status as a recently separated individual which is prohibited by section 3-102(A) of the Illinois Human Rights Act. The complaint requested an order requiring plaintiffs to lease Podgurski a two-bedroom apartment, to cease the application of the above enumerated policy, and to pay Podgurski's costs and attorney fees incurred as a result of his grievances.

Certain uncontested facts submitted in a prehearing memo to the administrative law judge prior to hearing testimony stated, in part, that: on October 9, 1980, Podgurski completed a written application for a two-bedroom apartment in the Water's Edge Apartments; the application was presented to Lois Rackow who, along with John L. Rackow, Jr., was responsible for showing the apartments in the complex, collecting rents and paying the bills and debts of the complex; Grant Associates, Inc., is an Illinois corporation licensed to sell real estate with John L. Rackow, Jr., as its president and majority stockholder; Alan Nisenbaum and Joseph Karwowski are the beneficial owners of Water's Edge Apartments under a land trust; Water's Edge Apartments is a housing accommodation as defined by section 3-101(C) of the Illinois Human Rights Act; John L. Rackow, Jr., is a real estate broker or salesman as defined by section 3-101(D) of the Illinois Human Rights Act; as of October 9, 1980, Water's Edge Apartments had a policy under which no children at all were permitted in the one-bedroom units and only one child under the age of five years was permitted in the two-bedroom units; the above stated policy is still in effect; as of October 8, 1980, Podgurski was separated from his wife, and his children did not live with him although he had visitation rights; when Podgurski completed his rental application, he placed a "0" after the section entitled "number of children"; Podgurski verbally informed Lois Rackow that he had children who would not be living with him permanently, but that he had visitation rights as to those children; Podgurski informed Lois Rackow that he might pick up two or three of the youngest children for a weekend each month, and that occasionally, in the summer, a couple of the youngest children might stay with him for part of the summer; plaintiffs denied a rental unit to Myron because plaintiffs viewed the visitation rights as constituting residence of children over five years of age in violation of the rental policy; on October 16, 1980, Jose Trevino, an investigator for the Department of Human Rights, telephoned Grant Associates, Inc., and spoke with Lois Rackow; and during this conversation, Trevino inquired about the status of Podgurski's rental application, and Lois Rackow denied she had refused to rent the apartment to Podgurski but stated that she would now refuse to rent it to him.

Plaintiffs' answers to interrogatories revealed, in pertinent part, that Lois and John L. Rackow, Jr., were the two individuals who are responsible for showing the apartments in the complex, paying the complex's bills and debts, and collecting the rents; that Grant Associates, Inc., an Illinois corporation licensed to sell real estate with John L. Rackow, Jr., as its president and majority shareholder, had no managerial or management responsibilities in Water's Edge Apartments whatsoever; that although Podgurski indicated on his written application that there were no children to be residing in the unit, it was learned by management that he would have two or three children staying with him for two-to-three month periods of time, he was recently divorced and had eight or nine children, the custody of whom was awarded to his former wife, he received rights of liberal and reasonable visitation which he planned to exercise vigorously; that under these circumstances, management would view this as children over five years of age and less than 18 years of age residing in the complex; and that as of October 9, 1980, the unwritten policy of the management, still in full force and effect, was that no children at all were permitted in the one-bedroom units and only one child under the age of five years was permitted in the two-bedroom units.

On January 20, 1982, testimony was presented to James Gerl, an administrative law judge of the Human Rights Commission, which revealed the following. Myron Podgurski testified that in September 1980, he lived in Lake Zurich, but decided to move to larger living quarters because he had a small one-bedroom apartment with only 500 to 700 square feet of living space. He was earning approximately $43,000 per year as a manager of real estate and marketing services for Union Oil Company of California. Podgurski initially called a Century 21 office and inquired about the availability of a unit at Water's Edge Apartments. He spoke to a woman who instructed him to contact one of their agents to be shown a unit. He then contacted Harold Giese, a Century 21 agent and Podgurski's landlord in the unit he was then renting. Giese showed him a unit at Water's Edge, and he liked it very much and wanted to rent one. Podgurski filled out an application on October 9, 1980, for the apartment and took it to the Century 21 office where he met Lois Rackow. Upon examining the lease application, he noted that three items bothered him which he brought to her attention, but only after he had filled out the application in its entirety.

Two of these items were the questions concerning his marital status, as he was recently separated from his wife although he checked the block indicating that he was divorced, and the number of children which he had, as he marked that he had no children although he had eight children, none of whom lived with him. He...