For modification and remandment -- Chief Justice Weintraub and Justices Jacobs, Francis, Hall and Schettino. Opposed -- None. The opinion of the court was delivered by Hall, J.
This rental housing discrimination case is here on our grant of cross petitions for certification by the Division on Civil Rights ("Division"), and the corporate property owner along with its named individual representatives ("respondents"). 52 N.J. 173 (1968).
The Director of the Division, adopting the recommendations of the hearing examiner, found that respondents had denied the complainant Jackson, a Negro, the equal opportunity to lease an apartment, admittedly constituting real property within the coverage of the Law Against Discrimination (N.J.S.A. 10:5-1 to 28, formerly N.J.S.A. 18:25-1 to 28), in violation of section 10:5-12, subd. g (formerly N.J.S.A. 18:25-12, subd. g) of that statute.*fn1
The Director entered remedial orders, which included a provision that complainant was entitled to recover compensatory damages from respondents equal to the increased rental and travel expenses resulting from his having to live elsewhere. The order directed the exact amount of these damages to be determined after complainant commenced the tenancy respondent's were required by the order to furnish him.
The Appellate Division, on respondents' appeal, affirmed the orders of the Director except as to the holding of the right to damages for economic loss.*fn2 In that connection the court concluded that the statute does not authorize the Director to award damages in a housing discrimination case. 101 N.J. Super. 126 (1968). The Division here attacks that holding, which is the novel and important question before us. Respondents challenge, as they did in the Appellate Division, the sufficiency of the proofs of unlawful discrimination and the validity of various other provisions of the remedial orders.
At the outset we may say that the proofs before the Division clearly established an unlawful discrimination in violation of the statute, and respondents' contention of insufficiency of the evidence is without merit. The conclusion of the Appellate Division that "the finding of discrimination is fully supported by the record" is solidly grounded in the established standard of judicial review of factual determinations of administrative bodies: "'whether the findings made could reasonably have been reached on sufficient credible evidence present in the record,' considering 'the proofs as a whole,' with due regard to the opportunity of the one
who heard the witnesses to judge of their credibility * * * and * * * with due regard also to the agency's expertise where such expertise is a pertinent factor," Close v. Kordulak Bros., 44 N.J. 589, 599 (1965). Indeed, any other conclusion at the agency or appellate levels would have been a gross miscarriage, and this even though the evidence was largely circumstantial (cf. Clover Hill Swimming Club v. Goldsboro, 47 N.J. 25 (1966); Fraser v. Robin Dee Day Camp, 44 N.J. 480 (1965)), in that there was no direct proof of announced landlord policy or outright rejection of complainant as a tenant by reason of his race (Jones v. Haridor Realty Corp., 37 N.J. 384, 389 (1962); cf. Evans v. Ross, 57 N.J. Super. 223 (App. Div. 1959), certification denied 31 N.J. 292 (1959)).
Complainant was a teacher in the community high school at Runnemede, Camden County. His wife was studying to be a teacher. They had no children. In the summer of 1967, respondent Samost, through an assortment of corporations, was constructing a garden apartment complex in that community called Hartford Arms and soliciting tenants. He was the president, principal stockholder and controlling spirit of these corporations, as well as occupying a similar position in other corporate entities engaged in like enterprises in the general area. Respondent Adams was his secretary, a corporate officer, minority stockholder, and active in the business operations. Respondent O'Donnel became the rental agent at Hartford Arms on August 4, 1967.
On July 7th of that year, complainant applied to the then rental agent at Hartford Arms (who testified in his behalf) for a one-bedroom apartment on the quoted terms of a two-year lease commencing September 1 at a rental of $115 per month. There is no question but that his salary and credit standing were such as to make him a financially able tenant. He made a deposit, and was to return with his wife in a week to select the particular apartment and the color of the carpeting they desired. Commencing on that return visit and on numerous further visits during the next month, in
addition to telephone inquiries, complainant was met with a succession of incredible excuses and evasive replies about the status of his application, a tactic obviously designed to discourage him from pursuing the rental. As we have said on other occasions, a profit-making business could not possibly survive if all potential customers were treated as this complainant was. Clover Hill Swimming Club v. Goldsboro, supra, 47 N.J., at 37; Fraser v. Robin Dee Day Camp, supra, 44 N.J., at 484.
Finally, on August 14, Jackson filed a complaint with the Division which led to a full hearing in October. The proofs presented on both sides, including accounts of conduct by respondents Samost and Adams (who did not testify in denial thereof) in connection with treatment of the application, called for the conclusion of the hearing examiner "that complainant was denied the equal opportunity to rent an apartment in the Hartford Arms and that this denial was effected by a deliberate policy of delay, hindrance, excuses, evasions and antagonism virtually amounting to outright rejection by respondent Samost, his employees, and the corporations under his control, because complainant was a Negro." Certainly the policy and requirements of the Law Against Discrimination cannot be thwarted by any kind of indirection and attempted subtlety. Dilatory or evasive conduct toward a member of a class which the statute is designed to assist and protect is a badge of unlawful discrimination. Although the burden of persuasion by a preponderance of the evidence rests with the complainant throughout, when such a course of conduct appears a strong case is made out, and a respondent has a heavy task to justify his actions. The effort of these respondents was indeed feeble and utterly unconvincing.
Meanwhile, on September 1st, complainant had to seek other living quarters in order to be accessible to his school, which was about to open. He took up residence in a motel in Camden at a monthly rent of $216.30, $101.30 over the quoted apartment rent of $115. In addition he had to drive
20 miles per day round trip to work, whereas he could have walked to the school if he ...