Bell Realty & Insurance Agency v. Chicago Commission on Human Relations , 130 Ill. App. 2d 1072 ( 1971 )

Mr. JUSTICE McNAMARA

delivered the opinion of the court:

This is an appeal from an order of the Circuit Court dismissing plaintiffs suit for judicial review. Plaintiff, Juozas Racevicius, a real estate broker and owner of Rell Realty and Insurance Agency, brought an action in the Circuit Court under the Administrative Review Act to review certain findings of the Chicago Commission on Human Relations. Complaints had been filed with the Commission, charging plaintiff with refusing to show residential listings to Lucille Gipson and Ernest Hamilton on the basis of them race, in violation of the Fair Housing Ordinance, Municipal Code of Chicago, ch. 198.7R. The ordinance provides that it shall be unlawful housing practice for any broker

“To deliberately and knowingly refuse examination of any listing of residential real estate * * 0 to any person because of race, color, religion or national origin or ancestry.”

After a hearing by a Commission examiner, the Commission adopted the examiners findings, and plaintiff was found in violation of the ordinance as to both complaints. His real estate broker’s license was then suspended by the Mayor for 90 days on each complaint, the suspensions to run concurrently. The trial court dismissed plaintiff’s action for a judicial review, and he appeals, first contending; in effect, that the evidence introduced at the hearing does not support the Commission’s findings, and secondly, that one who is testing an ordinance is not an aggrieved party within the meaning of the ordinance.

Patricia Ann Miller testified that she was a white person, and that, in the company of a white man on July 7 or 8, 1966, she visited the office of Bell Realty, located at 6455 South Kedzie Avenue, Chicago. A young lady employee asked them what they wanted, and they stated that they were looking for an apartment in the Gage Park area. Plaintiff’s employee pulled cards out of a filing cabinet and began reading addresses of apartments available in the area. The employee informed them that if they wanted to take a list of apartments with them they would have to pay ten dollars. The witness was not actually looking for an apartment in the area, and never contacted Bell Realty again. She went there because two of her friends had been told that there were no apartments available.

Marilyn Fogel, a white person, testified that on July 8, 1966, she visited Bell Realty. She entered the office alone, and stated that she wished to buy a house. A young lady employee said that she handled rentals only, and that the witness would have to see one of the men in the back. One of the male employees came out, and the witness told him that her husband was outside parking the car and would be in shortly, and that they were interested in a two bedroom home in the Marquette-Gage Park area. He said that he had a house they would like. She picked homes out of a book, and the employee wrote several addresses of homes in which she expressed interest. At that time Sam Smith, a Negro, entered the office. He was a friend of the witness, but the employee assumed that he was her husband. After Smith appeared, all the homes mentioned by the salesman were east of Ashland Avenue, in Negro neighborhoods. She asked about the houses she saw originally, and the salesman made telephone calls, but informed them either the houses had been sold, the telephone line was busy or no one answered. She asked him about one house they would like to see, but the salesman said that he could not show it to them at that time because he could not leave the office until another salesman arrived. She was testing, and did not actually intend to buy a home.

Diana Smith testified that she and another Negro friend went to Bell Realty on July 8, 1966. As they approached the receptionist, a man identified as plaintiff asked if he could help them. They asked for a listing of apartments, but were told that there were none. He inquired if they wanted anything east of Ashland Avenue but they replied no because they worked around Kedzie Avenue. He then stated that landlords did not want to rent to Negroes around Kedzie or California Avenues.

Ernest Hamilton, a Negro, testified that on July 12, 1966, he went to Bell Realty. The receptionist told him to be seated because she was busy. Two white people entered, and the young lady employee gave them rentals, and told them where apartments were available. When the other couple left, the witness told the girl that he was interested in buying a home. She replied that she did not handle sales, and that he would have to see one of the men in the office. Hamilton then asked about rentals, but was told that there were none, and that he would have to be placed on a list. Since he heard her give the white couple rentals, he inquired whether he was being refused rentals because he was a Negro, but she evaded the question. He left the office without leaving his name and address. He was not interested in purchase or rental; he was testing.

Lucille Gipson testified that she was a Negro, and that on July 22, 1966, she visited plaintiff’s office. She had a conversation with plaintiff, and informed him that she was interested in a two-bedroom home in a good neighborhood, in the immediate vicinity. She meant a house in the Gage Park area. Plaintiff stated that he was no longer in the real estate business, and that he was restricted to selling insurance until a certain Supreme Court decision was handed down. He pointed out that the pictures of various homes for sale were turned to the wall, and that the lights on the real estate side of the office were turned off. As she started to walk out of the office, he said that he could give her two addresses, and that she could drive around and look at the two homes. That was the only conversation she had with plaintiff, and they did not discuss price, racial composition, or the number of people that were to live with her. She also testified that, of the two addresses given to her by plaintiff, one was in a predominantly Negro neighborhood and the other was in a changing neighborhood.

Plaintiff testified before the hearing examiner that he talked only to Lucille Gipson, and that he did not see or talk to any of the other witnesses. He had only two active listings of the type of real estate in which she was interested, and he gave both to her.

Virginia MuscareHa, a receptionist in plaintiffs office, testified that Ernest Haimlton was in the office only in August, 1966, and said that he was interested in buying a home.

Exhibits were introduced, showing that in July, 1966, plaintiff had placed advertisements in local newspapers seeking tenants for apartments in the Gage Park area.

At the conclusion of all the testimony, the hearing examiner filed a written report with the Commission. In the report, he found that at least one house listing was denied to LuciHe Gipson because of her race. He further found that Hamilton was deliberately and knowingly refused a listing of apartments because of his race. The examiner further found that Hamilton was testing, that he was not actually interested in renting an apartment, but that this was irrelevant. The examiner also found that Hamilton’s testimony was more credible than that of plaintiff’s lady employee. The Commission adopted the findings of the hearing examiner, and recommended to the Mayor of Chicago that he suspend plaintiffs real estate broker’s license for 90 days for failure to furnish a house listing to LuciHe Gipson and for refusing an apartment fisting to Ernest Hamilton. Thereafter, the Mayor entered the order of suspensions, with the direction that the suspensions run concurrently.

The purpose of the Chicago Fair Housing Ordinance, as stated in its Declaration of Policy, is to assure equal opportunity in housing, regardless of race. To fulfiU this purpose, the ordinance makes it unlawful for a broker to discriminate in the sale, rental or financing of housing, or to refuse listings of any real estate, because of race, color, religion or national ancestry. The constitutional validity of this ordinance has been upheld in Chicago Real Estate Board v. City of Chicago (1967), 36 Ill.2d 530, 224 N.E.2d 793, and thus is not an issue on this appeal. However, contentions raised by the parties require us to consider the degree of proof and quality of evidence necessary to support a finding under the ordinance.

Court review under the ordinance is subject to the Administrative Review Act of Illinois. (Ill. Rev. Stat. 1965, ch. 110 par. 265. Municipal Code of Chicago, ch. 198.7B sec. 9.) Section 274 of the Administrative Review Act provides:

“The findings and conclusions of the administrative agency on questions of fact shall be held to be prima facie true and correct.”

In Meaning v. Department of Registration and Education (1958), 14 Ill.2d 553, 153 N.E.2d 52, the court, at p. 558, stated:

“Although the findings of an administrative agency are deemed to be prima facie true and correct, (Parker v. Dept. of Registration and Education, 5 Ill.2d 288; Ill. Rev. Stat. 1955, chap. 110, par. 274,) and although the provisions of the Administrative Review Act have been construed to mean that courts are not authorized to reweigh evidence or to make an independent determination of facts, (Secaur v. State Civil Service Com., 408 Ill. 197,) it is equally true that the findings of an administrative agency and the order predicated thereon must rest upon competent evidence (Novicki v. Dept. of Finance, 373 Ill. 342,) and be supported by substantial evidence. (Wallace v. Annunzio, 411 Ill. 172). Upon judicial review, in other words, this court has the power to review all questions of law and fact presented by the record, our judicial function being comparable to the issue at law as to whether there is competent and substantial evidence to support a judgment of the lower court. (Harrison v. Civil Service Com., 1 Ill.2d 137.)”

Accord, Bruce v. Dept. of Registration and Education (1963), 26 Ill.2d 612, 187 N.E.2d 711; Gasparas v. Leack (1968), 93 Ill.App.2d 99, 235 N.E.2d 359. Under these familiar principles, we must determine if the Commissions findings are supported by substantial evidence.

As to the failure to furnish a residential listing to LuciUe Gipson, we hold that the finding of the Commission that plaintiff denied her a residential listing because of her race was not supported by any competent or substantial evidence.

In Chicago Real Estate Board v. City of Chicago, supra, the court stated that this section

“* * * provides only that real estate listings, which are ordinarily available to the public, be shown on a nondiscriminatory basis. Such listings may be refused on any ground other than race, color, religion or national origin, as designated in the law.” p. 554.

Mrs. Gipson testified that when she entered plaintiff’s office, she found that the pictures of various homes were turned away to the wall and that the lights on the real estate side of the office were turned off. Plaintiff then told her that he was out of the real estate business until a certain Supreme Court decision was handed down (apparently, the aforesaid Chicago Real Estate Board v. City of Chicago case). Thus complainant Gipson’s own testimony indicated that plaintiff had, at least temporarily, suspended his real estate business.

As complainant was leaving the office, she was offered two real estate listings by plaintiff. While both listings were undesirable to her, she did not express any dissatisfaction with the two listings to plaintiff, nor did she make any request for additional listings. Moreover, she visited the office ten days after Hamilton had been there, and at least two weeks after the other witnesses had been there. Consequently, there was no evidence presented that there was an availability of the type and location of housing in which she was interested.

We conclude that the evidence presented did not support a finding that plaintiff refused Lucille Gipson a real estate listing because of her race.

Plaintiff next contends that the evidence was insufficient to support a finding that Hamilton had been refused an apartment listing because of race.

Hamilton testified that on July 12, when he first entered plaintiff’s real estate office, he was told to be seated. As he waited, he observed that two white people entered and were given listings of available apartments. The same employee who furnished the apartment listings to the white couple then informed Hamilton that there were no apartments available. She informed him that he would have to be placed on a list. When Hamilton asked her if she was refusing to show him a listing because he was a Negro, he testified that she evaded the question.

In light of the Commission’s determination that Hamilton’s testimony was more credible than that of plaintiff’s employee, we conclude that the evidence presented supports a finding that Hamilton was refused a listing of apartments because of his race. After Hamilton overheard plaintiff’s employee give listings to a white couple, that same employee told Hamilton that there were no listings available. Although Patricia Miller was informed that a written listing of apartments would cost her ten dollars, she had been informed orally as to the addresses and availability of numerous apartments. Hamilton was not even told that he could obtain a written listing for ten dollars. The employee’s first statement to him about apartments was that there were none available. Her unwillingness to deal with him because of his race is apparent.

Plaintiff, however, contends that Hamilton was not aggrieved within the meaning of the ordinance in question because he testified that he was testing for compliance to the ordinance, and not really interested in renting an apartment or in purchasing real estate. Section 6 of the Ordinance in question provides:

“Any person aggrieved in any manner by any violation of any provision of the above ordinance may file a written complaint * *

A reading of the Ordinance indicates that, like other administrative agencies, the Chicago Commission on Human Relations acts only in the interests of the public, and has no power, under this ordinance, to provide any private remedies against the real estate agency charged with wrongdoing. (Cf. American Airlines v. North American (1956), 351 U.S. 79.) Thus the person initiating a complaint does not become a party to the proceeding or exercise any control over it. Amalgamated Utility Workers (C.I.O.) v. Consolidated Edison Co. of New York (1940), 309 U.S. 261.

Whether Hamilton suffered any pecuniary damages as a result of being refused apartment listings is irrelevant. The ordinance in question is designed to prohibit real estate brokers from denying listings to a person because of his race or color, and not to provide private remedies to a person who was denied a listing. We conclude that, where a person who was denied a listing of apartments admits that he was testing for compliance to the ordinance, such an admission does not preclude a finding that he was denied a listing because of his race, and that therefore the real estate broker was in violation of the ordinance. The fact that a person was testing is an evidentiary fact. The evidence in the instant case supports the conclusion that the broker was not aware that Hamilton was testing, and the further conclusion that Hamilton was denied a listing solely because of his race.

In his reply brief, for the first time, plaintiff contends that the complaint signed by Hamilton was at variance with the findings of the Commission. Plaintiff raised no such objection during or after the finding by the hearing examiner and the Commission. In his complaint for judicial review, plaintiff again failed to allege any variance; he did not raise this issue during the trial, in his post-trial motion, or in his original brief. The issue of the variance between the Hamilton complaint and the Commission findings is raised for the first time during the entire proceedings in plaintiff’s reply brief.

Supreme Court Rule 341(e) (7), Ill. Rev. Stat. 1967, ch. 110A par. 341(e) (7), provides as follows:

“Points not argued are waived and shall not be raised in the reply brief, in oral argument, or on petition for rehearing.”

In commenting upon the rule, in Gouker v. Winnebago County Board of Supervisors (1967), 37 Ill.2d 473, 228 N.E.2d 881, the court, at p. 476, stated:

“The obvious purpose of the rule is to have counsel present in his opening brief those points raised in his complaint upon which he wishes to be heard and those which he does not include are waived.”

Moreover, an issue not presented to and considered by the trial court cannot be raised for the first time on appeal. Woman’s Athletic Club of Chicago v. Hulman (1964), 31 Ill.2d 449, 202 N.E.2d 528.

We recognize the principle that a waiver should only be considered when consistent with a just result. Hux v. Raben (1967), 38 Ill.2d 223, 230 N.E.2d 831. However we conclude that in the instant case, plaintiff has not suffered any prejudice by the claimed variance, and that the point was waived. The complaint signed by Hamilton was as foUows:

"I went to the office of BeH Realty and Insurance Agency and inquired about the purchase of a four bedroom house in the Gage Park area. The employee with whom I spoke said she only handled rentals. I then inquired, since she didn’t handle sales what rental units were available. She replied that she would have to put my name on the waiting list.

I believe I was denied the opportunity of purchasing a home because of my race.”

The hearing examiner made a specific finding which was adopted by the Commission that Hamilton was knowingly refused a listing of apartments because of his race. The complaint on its face clearly reveals that plaintiff was effectively informed of the entire occurrence. Hamilton was claiming discrimination as to both purchase and rental. Plaintiff had a fuH opportunity to, and in fact, did, present evidence completely contradictory to Hamilton’s testimony. Since plaintiff has raised the issue for the first time in his reply brief, did not present the issue either to the Commission or to the trial court, and has failed to show how he was prejudiced, we conclude that he has waived the point.

The judgment of the Circuit Court upholding the 90 day suspension of plaintiff’s real estate broker Hcense as to the complaint signed by Ernest Hamilton is affirmed. The judgment of the Circuit Court upholding the 90 day suspension as to the complaint signed by LucHle Gipson is reversed.

Affirmed in part; reversed in part.

STAMOS, J., concurs.