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Zahorian v. Russell Fitt Real Estate Agency

Decided: March 19, 1973.


For modification -- Chief Justice Weintraub, and Justices Jacobs, Mountain and Proctor. Dissenting in part -- Justice Hall, and Judges Conford and Lewis. The opinion of the Court was delivered by Jacobs, J. Hall, J. (dissenting in part). Conford, P.J.A.D., Temporarily Assigned (dissenting in part).


[62 NJ Page 401] The Appellate Division, in an unreported per curiam, affirmed the Division on Civil Rights' finding of discrimination but modified the relief which it had directed. The Division on Civil Rights petitioned and the respondents cross-petitioned for certification. We granted both petitions. 60 N.J. 355 (1972).

The complainant Sandra Zahorian filed a verified complaint with the Division on Civil Rights, charging that the respondents had denied her the opportunity of renting a listed apartment solely because of her sex and marital status, in violation of N.J.S.A. 10:5-12(h). The Director of the Division found probable cause and designated Mrs. Sylvia Pressler, a Hearing Examiner selected from an existing panel, to conduct a hearing of the complaint. In due course she took the testimony of the complainant and her supporting witnesses, along with the testimony of the respondent Mrs. Fanning who was the only witness on behalf of herself and the other respondents. The complainant's testimony was fully credited by the Examiner and it may fairly be summarized as follows:

She was 24 years old, unmarried, and employed as a computer programmer analyst in Clifton. She had been living with her parents but wished to obtain an apartment for herself and her female friend who was also unmarried and employed and was 27 years old. They planned to share a two-bedroom apartment, preferably in Montclair, and in September 1970 the complainant began her search for an apartment. She first obtained the name of the respondent Russell Fitt Real Estate Agency from the telephone book's yellow pages and thereafter she spoke with the respondent Marion J. Fanning who was employed by the Agency and was its apartment specialist. During her first telephone conversation she learned that Mrs. Fanning had at least two listed two-bedroom apartments, one over a store at a rental of $135 per month and one in a garden apartment complex at a rental of approximately $200 per month. But Mrs. Fanning told her that the owners would not rent these apartments to single girls. Mrs. Fanning would not show the apartments to her nor would she give her the names or addresses of the owners or the apartment superintendents. In all, the complainant had four telephone conversations with Mrs. Fanning and the substance of each conversation

was the same, namely, since she was a young, unmarried female the apartments were not available to her.

Mrs. Fanning testified that she never spoke with the complainant over the telephone but that she did speak to her personally on a single occasion. She said that she told the complainant about the apartments and that she would be happy to show them to her although the owners were not inclined to rent to two young, unmarried women. She said that the complainant declined her offer to be shown the apartments. The Examiner, pointing to the irreconcilable differences between the testimony of the complainant and Mrs. Fanning, noted that she was impressed "with the testimonial candor and sincerity" of the complainant and that she found Mrs. Fanning's description of her conversation with the complainant to be "inherently incredible." She made the finding that "despite the fact that respondent Agency had listings of two available apartments within complainant's price range, which were suitable for occupancy by two single young women, complainant was denied the opportunity to view and to rent these apartments by respondent Fanning because she is young, female and unmarried and wished to share the apartment with a friend simliarly situated."

Mr. Blanos, a field representative who was employed by the Division on Civil Rights and was twenty-three years old and single, testified that he spoke with Mrs. Fanning over the telephone and told her he was a salesman and was looking for a two-bedroom apartment for himself and another young male friend. She told him that one-, two- and three-bedroom apartments were available and that she would be happy to have him check with her later that day. The Examiner contrasted the treatment of Mr. Blanos with the treatment of the complainant and concluded that while "unrelated male roommates were not regarded either by respondents or their principals as prima facie objectionable tenants, female roommates were." Mrs. Levy, a field representative employed by the Division on Civil Rights, testified

that she served a copy of the verified complaint in the instant matter on the respondent Russell A. Fitt at the Fitt Agency. Mr. Fitt read the complaint and said "What shall I do? When we place single people in an apartment we get into trouble. I think she was just looking for trouble. She really didn't want that apartment." The Examiner referred to this testimony, and to the fact that Mr. Fitt did not testify though he was present during the hearing, in support of her finding that "respondent Fitt had knowledge of, participated and concurred in the acts of Mrs. Fanning and is equally responsible with her for them."

The complainant testified that Mrs. Fanning's discriminatory treatment of her humiliated her and caused her actual physical and emotional disturbance. She stated that during the period covered by her telephone conversations with Mrs. Fanning she was so upset and suffered such stomach distress that she was obliged to consult her physician on several occasions. Her mother Mrs. Helen Zahorian testified that when the complainant came home after conversations with Mrs. Fanning she was very upset, would not eat and complained about headaches. The complainant told her mother that she understood she could not have the apartment because she was single and that she "felt that this was such an awful thing to happen to her and to think because she wasn't married she couldn't have an apartment." Mrs. Zahorian accompanied her daughter on her visits to her physician who told her that "it was all nerves and he wasn't going to put her through any procedure of series of tests until he could determine that this wasn't just nerves." Ultimately when the complainant abandoned her efforts to obtain a Montclair apartment for herself and her friend and settled on a one-bedroom apartment for herself which she obtained in Paterson, her physical and emotional distress apparently terminated; her mother testified that since she obtained her apartment "she has been fine."

During the hearing before the Examiner the respondents contended that the discrimination was not directed against the complainant because she was female and unmarried but was against the combination of the complainant and her friend and they urge that while the law admittedly prohibits a landlord from refusing to rent an apartment to an applicant because she is female and unmarried, it does not prohibit a landlord from refusing to rent an apartment to two young women who are unmarried. The Examiner found that there was discrimination against the complainant grounded on her sex and marital status and that "the apartment would have been withheld from complainant even if she had been willing to rent it for her exclusive use." In addition, the Examiner expressed the view, with which we agree, that the statutory provision, as last amended in 1970 (N.J.S.A. 10:5-12(h)(1)), prohibiting a real estate broker or its employee from refusing a rental to any "person or group of persons" because of "marital status or sex" clearly negates the respondents' contention. As the Examiner put it: "There can be no question but that the 1970 Amendment of the Law Against Discrimination intended, inter alia, to insure the rights of two persons of the same sex who constituted themselves into a housekeeping unit and furthermore, that such an arrangement is entirely unexceptional. It is common practice for young unmarried working girls to make that kind of living arrangement." See Gabe Collins Realty, Inc. v. City of Margate City, 112 N.J. Super. 341, 349 (App. Div. 1970); cf. Kirsch Holding Co. v. Borough of Manasquan, 59 N.J. 241 (1971).

After finding that an act of discrimination in violation of N.J.S.A. 10:5-12(h)(1) had been committed by respondent Mrs. Fanning, that respondent Russell A. Fitt by his concurrence in Mrs. Fanning's action was equally responsible, and that pursuant to the doctrine of respondeat superior the corporate respondent Russell Fitt Real Estate Agency was also responsible (cf. Jones v. Haridor Realty Corp., 37 N.J. 384, 395-396 (1962); Jackson v. Concord

Company, 54 N.J. 113, 125 (1969)), the Examiner proceeded with findings as to damages. She compared the $135 per month two-bedroom Montclair apartment which had been denied to the complainant with the $150 per month one-bedroom Paterson apartment which she ultimately obtained and concluded that, apart from the extra bedroom, they were comparable in size, facilities and accommodations. She determined that the fair market value of the Montclair apartment was $150 per month and that the complainant was entitled to damages for "loss of her bargain" which amounted to $180 for the requested one-year lease of the Montclair apartment. Though the complainant suggested that her damages in this connection should have been fixed in a greater sum, that point has not been pursued and is not now before us.

The Examiner found that, in addition to the aforementioned $180, the complainant should receive a compensatory sum for the humiliation and pain and suffering caused to her. She cited Gray v. Serruto Builders, Inc., 110 N.J. Super. 297 (Ch. Div. 1970), as an instance where, though there were no aggravating circumstances, the sum of $500 was awarded to a plaintiff as compensatory damages for humiliation suffered by him as a result of racial discrimination and she recommended to the Director of the Division on Civil Rights that an award to the complainant Sandra Zahorian in the sum of $750 would be appropriate "in view of the nature of her response to the insult as well as the nature of the insult itself." The Director, in his Findings, Determination and Order, approved the Examiner's findings on discrimination and directed that the complainant be paid the sum of $180 for "economic loss" and the sum of $750 for "actual pain and suffering" caused to the complainant by the respondents' discriminatory action. In addition, the Director ordered, inter alia, that respondents cease and desist from discriminatory actions, submit to the Division a list of vacancies every thirty days for two years, advise the Division of the names, addresses, ages, sex and marital status

of prospective applicants for rentals every thirty days for two years, and post a copy of the order and written instructions for compliance for a period of two years.

On the respondents' appeal to the Appellate Division that court found that the record supports the Division's finding of discriminatory action by respondents against complainant because of her sex and marital status. It also found that the complainant was properly awarded the sum of $180 for economic loss. However, it determined that the Division had no jurisdiction to make any award to the complainant for pain and suffering and accordingly it vacated the Division's $750 award to her. In addition, the Appellate Division set aside the Director's order that the respondents advise the Division as to the identities of prospective applicants and also set aside the Director's order for posting and the submission of lists of vacancies. In granting certification our concern was not with further review of the factual findings on discrimination; in any event, we have examined the record, are satisfied that the factual findings were adequately supported by the testimony, and shall therefore not disturb them. See Clover Hill Swimming Club v. Goldsboro, 47 N.J. 25, 36 (1966); Robinson v. Branch Brook Manor Apartments, et al., 101 N.J. Super. 117, 122 (App. Div.), certif. denied, 52 N.J. 487 (1968). Our concern related primarily to the scope of the Division's power to award compensatory damages and additionally to the Appellate Division's action in nullifying portions of the other relief which the Division had granted in the exercise of its jurisdiction as it understood it. See N.J.S.A. 10:5-6; N.J.S.A. 10:5-17; Jackson v. Concord Company, supra, 54 N.J. 113; Polk v. Cherry Hill Apartments, Inc., 62 N.J. 55 (1972); Robinson v. Branch Brook Manor Apartments, et al., supra, 101 N.J. Super. 117.

Preliminarily, we wish to comment on the attack which the respondents made during oral argument on the nature of the hearing before the Division. They seemingly urged that the concentration of functions (N.J.S.A. 10:5-1

et seq.; In re Larsen, 17 N.J. Super. 564 (App. Div. 1952); In re Blum, 109 N.J. Super. 125 (App. Div. 1970)) and the admission of hearsay testimony (N.J.S.A. 10:5-16; Mazza v. Cavicchia, 15 N.J. 498, 509 (1954)) rendered the proceedings fundamentally unfair. But study of the record has convinced us that the hearing was conducted fairly and well within controlling legal principles. See David v. Vesta Co., 45 N.J. 301, 323-328 (1965). Acting under express statutory direction the Attorney General appointed, with the approval of the Commission on Civil Rights, a panel of Hearing Examiners composed of persons licensed to practice law for at least five years. N.J.S.A. 10:5-8(l). While such panel may not match the ideal of the truly "independent corps of hearers" referred to in the dissent to Mazza v. Cavicchia, supra, 15 N.J. at 536, it appears to insure a measure of independent fact-finding beyond that generally available in other New Jersey administrative agencies. See In re Larsen, supra, 17 N.J. Super. 564; cf. Davis, Administrative Law Treatise ยง 13.02, p. 175 (1958), 1970 Supp. Vol. p. 457; Aronsohn, "The Need for a Corps of Independent Hearing Examiners in State Administrative Agencies," 96 N.J.L.J. 80 (Jan. 18, 1973). We find no basis for the respondents' criticism of the Examiner and her rulings during the hearing. Her receipt of the complainant's testimony with respect to her telephone conversations with Mrs. Fanning was clearly proper even under strict evidential principles (cf. Robinson v. Branch Brook Manor ...

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