MILWAUKEE METROPOLITAN FAIR HOUSING COUNCIL, Complainant

RICHARD JACOBSON, Respondent

An Administrative Law Judge for the Equal Rights Division of the Department of Industry, Labor and Human Relations issued a decision on April 25, 1991 concluding that Respondent had violated the Wisconsin Open Housing Act. Respondent filed a timely petition for commission review. Both parties have filed briefs.

Based on a review of the entire record, the Commission now makes the following:

1. Respondent Richard Jacobson ("Jacobson") is the owner of a residential property located at 37112 Valley Road in Oconomowoc, Wisconsin. Jacobson has rented this property since he purchased it in 1986.

2. Complainant Metropolitan Milwaukee Fair Housing Council ("MMFHC") is a private nonprofit organization, the primary purposes of which are to insure that all citizens have equal access to housing opportunities and to expand locational choices for lower income and minority persons. MMFHC serves a four-county metropolitan area, including Waukesha, Ozaukee, Washington and Milwaukee Counties. MMFHC's program activities include counseling persons seeking housing in an effort to assist them in obtaining housing and educating persons seeking and persons providing housing on their rights and obligations under fair housing laws.

3. Advertisements for rental housing which indicate discrimination in housing based on characteristics protected under fair housing laws tend to discourage persons having those characteristics from applying and to increase their fear and trepidation at encountering discrimination in the rental housing market; they also tend to misinform members of the public as to their rights and obligations under fair housing laws. This in turn increases the work that must be done by MMFHC to counsel persons in connection with their attempts to find housing and to educate persons seeking and persons providing housing about their rights and responsibilities under fair housing laws. It also causes MMFHC to expend resources, in attempting to eradicate such discriminatory advertisements, which could otherwise have been expended on its counseling and public education functions.

4. In January 1990, Jacobson was attempting to rent the property at 37112 Valley Road, and he caused an advertisement concerning the property to be published in the Lake County Reporter, a newspaper with circulation within the area served by MMFHC. The ad stated:

"Fully winterized COTTAGE. Two bedrooms, ideal for couple. Not suitable for pets or children. Available February 1 or 15. Security deposit required. 567-0241."

This ad was published in the Lake County Reporter on January 16, 1990.

5. The property referred to by the advertisement has two bedrooms, each measuring approximately 10 by 12 feet, a bathroom, and another room which is a combination kitchen-living area.

6. Prior to January 1990, the property had been rented to a woman cohabiting with her boyfriend and the woman's daughter. Prior to that, the property had been rented to one male.

7. Following his placing of the advertisement in January 1990, Jacobson rented the property to a man who responded to the advertisement. The man thereafter resided at the property alone.

8. The advertisement for the property at 37112 Valley Road came to the attention of MMFHC on January 19, 1990, when staff of MMFHC were reviewing advertisements for rental housing in local publications in order to prepare a listing of available rental housing which MMFHC routinely prepares and maintains for the use of people it counsels and assists. MMFHC filed a complaint with the Equal Rights Division concerning the advertisement on May 7, 1990.

9. When he placed the advertisement, Jacobson did not intend to give a preference to married couples in the rental of the premises in question, and he did not intend the advertisement to be understood as indicating that he would give such a preference.

10. An ordinary reader would not have understood the advertisement placed by Jacobson as stating or indicating discrimination on the basis of marital status in the rental of the housing in question.

Based on the FINDINGS OF FACT made above, the Commission makes the following:

CONCLUSIONS OF LAW

1. Respondent Richard Jacobson is a person within the meaning of sec. 101.22(2), Stats.

2. Complainant Metropolitan Milwaukee Fair Housing Council is a person within the meaning of Wisconsin Administrative Code Chapter 89.01(11), entitled by Wisconsin Administrative Code Chapter 89.03(3) to file a complaint alleging that unlawful housing discrimination occurred, and the complaint filed by MMFHC was one which the Division was authorized under sec. 101.22(4)(a), Stats., to receive and investigate.

3. The advertisement which Jacobson caused to be published on January 16, 1990 did not state or indicate any discrimination in connection with housing, within the meaning of sec. 101.22(2)(d), Stats., and Jacobson did not violate that section by causing the ad to be published.

4. By, causing the publication of the advertisement for the property at 37112 Valley Road on January 16, 1990, Jacobson did not coerce, intimidate, threaten or interfere with any person in the exercise or enjoyment of any right granted or protected by the Wisconsin Open Housing Act, or with any person who has aided or encouraged another person in the exercise or enjoyment of any such right, within the meaning of sec. 101.22(4m), Stats.

Based on the FINDINGS OF FACT and CONCLUSIONS OF LAW made above, the Commission makes the following:

That the complaint in this matter be dismissed.

Dated and mailed December 6, 1991

/s/ Pamela I. Anderson, Chairman

/s/ Richard T. Kreul, Commissioner

/s/ James R. Meier, Commissioner

The issue here is whether the phrase "ideal for couple" used in the advertisement for rental housing in this case "states or indicates discrimination" within the meaning of the sec. 101.22(2)(d), Stats. (1)   The Commission believes that it does not, for two reasons.

First, the phrasing "ideal for" followed by some description of a characteristic does not suggest an intention to give a preference to persons with the characteristic described or to disfavor persons who do not have that characteristic. It is simply an example of a promotional phrase which is usually intended to increase the potential interest of certain "consumers" in the item advertised without reducing the potential interest of others. For example, the automobile dealer who advertises a mini-van as "ideal for large family" will probably be happy to sell his mini-van to anyone, and those without large families who read his advertisement will probably understand this. Similarly, the property owner who advertises a rural rental property as "ideal for nature lover" will probably be happy to rent to a person who has no interest in nature, and such persons will not see the wording of the advertisement as suggesting that they will somehow be disfavored.

Second, in the context of this advertisement, the term "couple" is not such an obvious marker for marital status that a violation of the statute may be premised on that basis. While one commonly understood meaning of that word is a man and woman married to one another, it is also commonly used to refer to a man and woman paired in some fashion, whether married or not, or even to two persons of the same sex paired together in some fashion. In the context in which it appears (i.e., an advertisement which suggests a small house by its use of the euphemistic "cottage"), it can be seen as an informational indication that the property is best suited for not more than two people, who are content to live together in close quarters.

The commission considers that an appropriate legal standard by which to judge the issue presented here is that used under the federal Fair Housing Act, Title VIII of the Civil Rights Act of 1968. Title VIII contains a provision prohibiting the publication of any advertisement in connection with housing that indicates any preference, limitation, or discrimination based on a protected characteristic, 42 U.S.C. § 3604(c), that is closely analogous to sec. 101.22(2)(d), Stats. The question presented under that section has been held to be whether the advertisement would suggest to an ordinary reader that a particular class or category of persona will be preferred or dis-preferred for the housing in question. Ragin v. New York Times, 923 F.2d 995 (2nd Cir., 1991). This test is appropriate because it avoids unnecessary debate over semantics and instead focuses upon the purpose of the prohibition: to prevent a restriction on opportunities to seek housing by preventing the publication of ads that will lessen that opportunity by discouraging housing seekers. Would this ad be reasonably expected to discourage persons other than married couples from applying to rent the property in question? The Commission thinks not. Even if they decided to interpret "couple" as referring to "married couple," ordinary readers would reasonably recognize that the ad reflects only the owner's views as to who might particularly enjoy the premises, not his preferences as to who to rent to. The fact that Jacobson had previously rented the premises to one person living alone and that he did so again after the ad was published is evidence that he had no intention to limit the availability of the premises to couples. While the question of his intent does not resolve the question of the permissibility of the ad, since that question turns ultimately on what the ad actually says and on how ordinary readers would understand it, it can nevertheless be considered relevant on the question of how the ad was likely to be viewed. See, Ragin. That a person with no intent to restrict the premises to married couples could use this language indicates that ordinary readers might not understand it as indicating such an intent. It is not reasonable to view an ad such as this as one that will burden to any significant extent the freedom of housing seekers. Therefore, sec. 101.22 (2) (d) , Stats., was not violated by the publication of the advertisement.

NOTE: The Commission's Conclusions of Law reflect its view, arrived at for the reasons announced this day in MMFHC v. Goetsch, ERD Case #9051656, that MMFHC may appropriately commence and prosecute matters under the Open Housing Act.

The Commission reverses the Administrative Law Judge as a matter of law and therefore has had no cause to consult with the Administrative Law Judge concerning credibility of witnesses.

110

Appealed to Circuit Court.  Affirmed October June 30, 1992.  Appealed to the Court of Appeals.  Affirmed December 9, 1992 sub nom.  Metro. Milw. Fair Housing Council v. LIRC (Jacobson), 173 Wis. 2d 199, 496 N.W.2d 159 (Ct. App. 1992)

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(1)( Back ) It was also alleged that, by the conduct in question, the Respondent violated sec. 101.22(4m), Stats., relating to coercion, intimidation, threatening or interference with rights granted or protected by the Open Housing Act. The Commission has previously made it clear, in Dude v. Thompson (November 16, 1990), that the prohibition against coercion, intimidation, threatening or interfering is in the nature of an anti-retaliation provision. It is not to be invoked as some sort of automatic add-on in any case in which any other allegation of a violation is alleged, in the absence of a genuine issue as to retaliation. Because there was no conceivable issue of retaliation in this case, there was no violation of this section.

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