The jurisdiction of California State Employment Practice Commission in preventing violations of the Unruh Civil Rights Act extends to persons who sell, rent, or lease triplexes, duplexes, non-owner occupied single family residences, or any other housing accommodations as defined in the Rumford Fair Housing Act.
Honorable Pier A. Gherini, Chairman of the State Fair Employment Practice Commission, requested an opinion on the following questions regarding the Rumford Fair Housing Act and, specifically, with regard to Health and Safety Code section 35720:
The conclusions are:
The Rumford Fair Housing Act ( Health & Safety Code § 35700, et seq.; hereafter referred to as the Fair Housing Act) is an exercise of the police power for the protection of the welfare, health, and peace of the people of the state (§ 35700), and empowers the State Fair Employment Practice Commission (hereafter sometimes referred to as the FEPC), created by Labor Code section 1414, to prevent violations after a complaint is filed with the FEPC. § 35730.
The Rumford Fair Housing Act ( Health & Saf. Code, §§ 35700- 35744) prohibits discrimination only in the sale or rental of public assisted housing accommodations and in any private dwelling containing more than four units. ( Health & Saf. Code, §§ 35710, 35720.)
The Rumford Act provided that “The practice of discrimination because of race, color, religion, natural origin, or ancestry is declared to be against public policy” and prohibited such discrimination in the sale or rental of any private dwelling containing more than four units. The State Fair Employment Practice Commission was empowered to prevent violations. Originally California Legislature intended only employment discrimination to be handled administratively; discrimination in housing was to be handled by civil suit under the Hawkins and Unruh Civil Rights Acts. ( Stearns v. Fair Employment Practice Com. (1971) 6 Cal.3d 205, 214 (hereafter Stearns); see Burks v. Poppy Construction Co., supra, 57 Cal.2d 463.) However, because civil damages in housing violations often amounted to less than $ 1,000 ( Stearns, supra), defendants by means of various procedural maneuvers could force the cost of litigation above the plaintiff’s expected recovery. To remedy this, the Legislature in 1963 replaced the Hawkins Act with the Rumford Fair Housing Act (former Health & Saf. Code, § 35700 et seq., enacted by Stats. 1963, ch. 1853, §§ 2-4, pp. 3823-3830), which extended the housing discrimination prohibitions to housing generally and for the first time afforded an administrative remedy for housing discrimination. ( Stearns, supra, 6 Cal.3d at p. 214; see Dyna-Med, supra, 43 Cal.3d at p. 1394.
In 1977 the Rumford Act was amended to specify that the damages payable to the injured party were “actual and punitive” damages and for the first time to describe the FEPC’s authority to award damages in housing cases as cumulative, rather than alternative. (Stats. 1977, ch. 1187, § 10, p. 3893; Stats. 1977, ch. 1188, § 13.1, pp. 3905-3906 [describing the FEPC’s authority as “including, but not limited to,” the actions specified].) (See Dyna-Med, supra, 43 Cal.3d at p. 1394 & fn. 17.) [****24] At the same time, the Legislature extended to victims of housing discrimination the right to bring a civil suit under the act on receipt from the department of a right-to-sue letter. (Stats. 1977, ch. 1188, § 5.1, p. 3902; see § 12980, subd. (d).)
When the Legislature adopted the Unruh, Hawkins and Rumford Acts, it was making a choice to impose sanctions upon certain owners of certain types of residential property if they refused to sell or lease it upon grounds of race, color, creed or national origin of the prospective purchasers. Certainly it cannot logically be contended that the Legislature would be barred from repealing those portions of the aforesaid statutes directing sanctions at private property owners in dealing with their own property and substitute therefor another program. If the Legislature has such discretion, then under the Constitution of this state, it cannot fairly be said that the people do not.
Civil Code section 51, known as the Unruh Civil Rights Act, provides that “all persons within the jurisdiction of this State are free and equal, and no matter what their race, color, religion, ancestry, or national origin are entitled to the full and equal accommodations, advantages, facilities, privileges, or services in all business establishments of every kind whatsoever.” Prior to its amendment in 1959, Civil Code section 51 read:
“All citizens within [*5] the jurisdiction of this state are entitled to the full and equal accommodations, advantages, facilities and privileges of inns, restaurants, hotels, eating houses, places where ice cream or soft drinks of any kind are sold for consumption on the premises, barber shops, bath houses, theaters, skating rinks, public conveyances and all other places of public accommodation or amusement, subject only to the conditions and limitations established by law, and applicable alike to all citizens.”
Prior to the adoption of the Unruh Act, the California Legislature had chosen not to regulate the conduct of property owners in selecting their buyers or tenants whether or not the choice was based on race, color or creed. By the enactment of the Unruh Act in 1959, the Legislature chose to regulate racial and religious discrimination by persons in “business establishments of every kind whatsoever,” including persons engaged in the business of selling or renting residential property, brokers and others. ( Burks v. Poppy Constr. Co., 57 Cal.2d 463, 468.
California Constitution Section 1 of article I, when read with section 26, now means exactly what it meant prior to the adoption of legislation (the Unruh and Rumford Acts, supra ) conferring a right to acquire property in certain instances without discrimination on grounds of race or religion.
Civil Code Section 51 – There is no guide in the statute itself as to what the phrase “all business establishments of every kind whatsoever” means. Generally, nontechnical words will be given their ordinary or usual meaning. Fresno City H.S. Dist. v. De Caristo, 33 Cal. App. 2d 666, 674 (1939). There are four California appellate [*7] decisions that give sound guidance to the scope of coverage intended by Civil Code section 51 in housing discrimination cases.
Burks v. Poppy Construction Co., 57 Cal. 2d 463 (1962), was the first case to interpret Civil Code section 51 after its amendment in 1959. In that case plaintiffs, who were Negroes, brought an action under Civil Code sections 51 and 52 seeking damages and injunctive relief and alleging discrimination with respect to the sale of a house in a housing tract. The court held that since Poppy Construction Company was engaged in the business of developing, building and selling a tract of housing accommodations, it was clear that its operation was a “business establishment” within the meaning of the term used in the Unruh Civil Rights Act. The court noted also from a policy point of view that discrimination in housing leads to a lack of adequate housing for minority groups, and inadequate housing conditions contribute to disease, crime, and immorality. Thus, the court stated, under the police [*8] power reasonable restrictions may be placed upon the conduct of any business and the use of any property, and the restrictions imposed by Civil Code sections 51 and 52 in furtherance of the policy against discrimination are reasonable. Burks, p. 471.
The Supreme Court at pages 468-469, in discussing Civil Code section 51, stated.:
“The Legislature used the words all’ and of every kind whatsoever’ in referring to business establishments covered by the Unruh Act ( Civ. Code § 51), and the inclusion of these words, without any exception and without specification of particular kinds of enterprises, leaves no [**549] doubt that the term ‘business establishments’ was used in the broadest sense reasonably possible. The word business’ embraces everything about which one can be employed, and it is often synonomous with calling, occupation, or trade, engaged in for the purpose of making a livelihood or gain.’ . . . The word establishment, ‘ as broadly defined, includes not only a fixed location, such as the place where one is permanently fixed for residence or business,’ [*9] but also a permanent commercial force or organization’ or a permanent settled position (as in life or business).'” (Emphasis added.)
The court noted that the original version of the bill which established the Unruh Civil Rights Act referred specifically to the right to purchase real property but its deletion in the ultimate act was explained by the court on the ground that the legislature deemed specific references mere surplusage, unnecessary in view of the broad language of the act as finally passed. Burks, p. 469.
Lee v. O’Hara, 57 Cal. 2d 476 (1962), held that the act applied to real estate brokers.
It follows that since the act applies to the business of selling houses that it would also apply to the business of renting housing accommodations. Abstract Investment Co. v. Hutchinson, 204 Cal. App. 2d 242, 253 (1962). Abstract involved a proceeding in unlawful detainer. The trial court had refused to admit any evidence on the allegations of the affirmative defenses which defendant wanted to raise regarding the assertion that his eviction was sought solely on the grounds of his race and the real reason for his eviction was the fact that he was a Negro.
Although the court was primarily concerned with the Fourteenth Amendment of the United States Constitution and article I, section 13, of the Constitution of the State of California, it did discuss the Unruh Civil Rights Act and held that defendant was engaged in a “business.” It declined, however, to rule whether or not he operated a “business establishment, ” indicating that the record was not clear on that point. The court stated: “Clearly, not all persons who rent their [*11] property to others can be held to operate business establishments. Plainly, many do not.” Abstract, p. 255.
In Swann v. Burkett, 209 Cal. App. 2d 685 (1962), plaintiffs brought an action under the Unruh Civil Rights Act to recover damages, alleging defendants were the owners of a triplex dwelling and had refused to rent one of their units to plaintiffs because the plaintiffs were Negroes. The defendants owned and lived in their own home in another location and owned two other pieces of property, one consisting of a triplex and a rear garden cottage, and the other consisting of two units and a rear garden cottage on another street. Both properties consisted of living units and were considered “income property.” 4Link to the text of the note Defendants maintained no office and employed no persons to assist them in the rental or maintenance of the properties. Defendant’s motion for nonsuit was granted. On appeal the question presented to the appellate court was whether a person renting the units in a “triplex” dwelling operated a “business establishment” within the meaning of Civil Code section 51. “Triplex” was defined by the [*12] court as a structure consisting of three separate units or flats complete in themselves and rented separately, with the owner quite often occupying one of the units.
The appellate court held that the broad interpretation in Burks of “business establishments” covered this situation involving a triplex. The appellate court noted that the owner was engaged in “a permanent settled position” in renting his triplex units for “gain.” The appellate court also said that it must be considered, too, that the owner was additionally engaged in the business of renting other property consisting of two garden cottages and a duplex.
The appellate court further noted that the Supreme Court in Burks had held that the adoption of the then existing Fair Housing Act (Hawkins Act) at the same time that the Unruh Civil Rights [*13] Act was enacted in 1959 did not show an intent that the then existing Fair Housing Act was to be the “sole measure relating to discrimination with respect to real property transactions.” Then, as now, the two statutes overlap in some particulars and sometimes actions may involve business establishments within the meaning of the Unruh Civil Rights Act but may not involve a violation of the Fair Housing Act, and vice versa. The court, in quoting from Burks stated further that both statutes were designed to discourage discrimination and it would be unreasonable to hold that the provisions of the then existing Fair Housing Act relating to only part of the housing field reflected an intent to exclude from the Unruh Civil Rights Act all discriminatory practices with respect to housing. Thus, the present Fair Housing Act likewise is not intended to preclude a broader application of the Unruh Civil Rights Act in the housing field. Swann, p. 693. The same analytical comparison is noted in Burks at page 470 and in Abstract at page 253.
Further, Swann impliedly recognizes that duplexes and single family houses are also covered by Civil Code section 51 [*14] . Defendant attacked the constitutionality of Civil Code section 51 by arguing that because an owner of a triplex may not discriminate and an owner of a duplex or single family house may, there was a [**551] denial of equal protection of the laws. The court rejected the argument by pointing out that no such distinction appears in Civil Code section 51 even though at that time the provisions of the then Fair Housing Act (Hawkins Act) did not apply to the owner of a dwelling containing less than three units. The court further noted that the Hawkins Act had been held constitutional by Burks. Swann, p. 695. Petition for hearing was denied by the California Supreme Court in Swann on January 16, 1963.
We are unable to determine what situations the court in Abstract would have included in its category of renters of property who would not be held to operate business establishments; however, based upon the reasoning in Burks, Lee, and Swann, we conclude that one who owns property and rents that property for value 5Link to the text of the note runs a business establishment within the meaning of Civil Code sections 51 [*15] and 52.
We also conclude that the scope of coverage of Civil Code section 51 would include an owner of a triplex, an owner of a duplex, or even an owner of a non-owner occupied single family dwelling who sells, rents, or leases it for income or gain. This is so because “business establishments [*16] of every kind whatsoever,” interpreted in the broadest sense reasonably possible, includes the sale, rental, or lease of property for value.
