724 N.E.2d 1242 | Ohio Ct. App. | 1999
This appeal comes to us from a judgment issued by the Wood County Court of Common Pleas, which found that a landlord had not violated Ohio's statutory law prohibiting the use of discriminatory housing rental advertisements. Because we conclude that the trial court properly dismissed the action but improperly awarded attorney fees, we affirm in part and reverse in part.
Appellees, William and Joyce Harlett, placed an advertisement in thePerrysburg Messenger Journal for the rental of a small second story apartment. The ad included the following language: "mature adults only." Appellants, Amy and Anthony Thompson, inquired about the apartment on the same day, but at separate times. Amy Thompson was allegedly told that because of the business located on the first story of the building, their three-year old son could not be home during business hours. Ultimately, appellees rented the apartment to a single mother with a teenaged child.
Several months later, the Thompsons filed a complaint with appellant, the Ohio Civil Rights Commission. They alleged that the Harletts had refused to rent to them because they had a minor child and that the advertisement was discriminatory against families with children, in violation of R.C.
The Harletts elected to defend the suit in the Wood County Court of Common Pleas. Appellants later amended the complaint to allege only a violation of R.C.
Following a hearing on the merits, the trial court found the Thompsons' testimony not credible and the language of the advertisement not per se
discriminatory since it was ambiguous. The court further determined that there was no discriminatory intent behind the ad and dismissed appellants' claim. The court then concluded that the suit was frivolous and awarded attorney fees to appellees pursuant to R.C.
Appellants now appeal that judgment, setting forth the following three assignments of error:
*344"FIRST ASSIGNMENT OF ERROR: The Trial Court erred by imposing limitations, not required by the Statute, upon the application of R.C. §
4112.02 (H)(7), the statutory prohibition against discriminatory advertising of housing accommodations.
"SECOND ASSIGNMENT OF ERROR: The Trial Court erred in refusing to apply federal case law interpreting Title VIII of the Federal Fair Housing Act,
42 U.S.C. § 3604 (c), which is substantially equivalent to the Ohio Civil Rights Statute governing housing discrimination, R.C. §4112.02 (H)(7)."THIRD ASSIGNMENT OF ERROR: The Trial Court erred in finding that the Appellant was lia ble for attorney fees under R.C. §
2323.51 ."
The main issue here is whether the mere use of the words "mature adults only" in a housing rental advertisement constitutes a per se violation of R.C.
"(7) Print, publish, or circulate any state ment or advertisement, or make or cause to be made any statement or advertisement, relating to the sale, transfer, assignment, rental, lease, sublease, or acquisition of any housing accommodations, or relating to the loan of money, whether or not secured by mortgage or otherwise, for the acquisition, construction, rehabilitation, repair, or maintenance of housing accommodations, that indicates any preference, limitation, specification, or discrimination based upon race, color, religion, sex, familial status, ancestry, handicap, or national origin, or an intention to make any such preference, limitation, specification, or discrimination[.]"
When interpreting R.C. Chapter 4112, Ohio courts have looked to analogous federal statutes and case law for guidance. See Wooten v.Columbus, Div. of Water (1993),
Federal courts generally permit parties to establish a violation of section
In a commercial advertisement, a plaintiff may establish a cognizable claim under § 3604(c) if "(a) an ad communicates in an obvious andundeniable way a discriminatory preference; or (b) the ad is rendered discriminatory through proof of extrinsic circumstances demonstrating discriminatory intent." (Emphasis added.) Blomgren v. Ogle (E.D.Wash. 1993),
In Cincinnati Enquirer,
"`the regulation describes examples of advertising practices . . . which might be indicative of a violation of (or compliance with) Title VIII.' "* * *" `[W]hile the practices, etc., cited in the regulation are indices of a standard of conduct to evaluate the existence of discrimination in advertising, they are not intended, per se, to establish immutable rules, but to serve as examples of practices, usage, content, etc., which should be complied with (or avoided), *346 whichever the case may be.' Id. (emphasis in the original). Mandatory language was intentionally avoided." Cincinnati Enquirer,
943 F.2d at 647 .
Thus, the Cincinnati Enquirer court rejected a per se standard which would make the use of certain words or pictures automatically discriminatory. Id. Rather, that court stated that the use of such words or pictures "could be a factor in determining whether an advertisement conveys a discriminatory message." Id. The court, evaluating the advertisement utilizing the "ordinary reader test" found that, without more, the use of a single ad with only white models did not violate section 3604(c). Id.
In a case cited by appellant, Jancik v. HUD (C.A. 7, 1995),
Our research revealed only one case that characterizes a violation as being "per se", i.e., Blomgren v. Ogle (E.D.Wash. 1993),
In this case, while one interpretation of "mature adults only" might be that only older adults without children were preferred, an ordinary reader, as the trial court deter mined, could just as easily conclude that appellee was attempting to exclude irresponsible renters. In support of the latter interpretation, we note that "only" is an adverb and would modify the verb "rent" if the ad were in sentence form; that is, "[we rent to] mature adults only" or, expressed in a non-misplaced format, "we only rent to mature adults." Nothing in the ad specifically excludes children, and, in fact, the "renting" to children would, at the least, be contractually voidable. Moreover, the fact that in response to the ad, both Thompsons separately contacted appellees indicates that they (if not the "ordinary reader") did not automatically assume that no children would be permitted. Therefore, since the advertisement was not clearly discriminatory on its face, it was proper to consider evidence presented as to the author's intent.
Appellees testified that because the previous "immature" tenants had damaged the apartment, they sought to attract a different type of renter. In *347 addition, there was no evidence that appellees had ever refused to rent to people with children. In fact, the tenant who eventually rented the apartment did have a teenage minor child.
The purpose of R.C.
Accordingly, appellants' first and second assignments of error are not well-taken.
R.C.
"reasonable attorney's fees, and other reasonable expenses incurred in connection with the civil action or appeal to a party to the civil action or appeal who was adversely affected by frivolous conduct."
R.C.
"(ii) * * * is not warranted under existing law, cannot be supported by a good faith argument for an extension, modification, or reversal of existing law, or cannot be supported by a good faith argument for the establishment of new law."
In this case, the trial court found appellants' case against appellees to be "meritless." We construe that to mean that the court found it to be unwarranted under existing law or unsupported by a good faith argument for an extension, modification or reversal of existing law. See R.C.
In this case, we must balance the goal of deterring frivolous suits against the danger of chilling legitimate complaints instituted by an authorized government agency.2 Having fully reviewed the record, we conclude that appellants *348 pursued the alleged violation based upon their good faith interpretation of federal case law. Since this issue has not been specifically addressed or ruled upon by Ohio courts, we cannot say that appellants' pursuit of this case was absolutely unwarranted under existing law.
Accordingly, appellants' third assignment of error is well-taken.
The judgment of the Wood County Court of Common Pleas is affirmed in part and reversed only as to the award of attorney fees. Court costs of this appeal are assessed equally among the parties.
Melvin L. Resnick, J. James R. Sherck, J., Charles D. Abood, J., CONCUR.
Judge Charles D. Abood, retired, sitting by assignment of the Chief Justice of the Supreme Court of Ohio.
"[t]o make, print, or publish, or cause to be made printed, or published any notice, statement, or advertisement, with respect to the sale or rental of a dwelling that indicates any preference, limitation, or discrimination based on race, color, religion, sex, handicap, familial status, or national origin, or an intention to make any such preference, limitation, or discrimination."