PAUL PARKINSON  and   WALLACE BOWDEN, Complainants

BETTY J. OBERNBERGER  and DAVID J. OBERNBERGER, Respondents

An administrative law judge (ALJ) for the Equal Rights Division of the Department of Industry, Labor and Human Relations issued a decision in the above-captioned matter on August 21, 1992, concluding that the respondents had violated the Wisconsin Open Housing Law by refusing to rent an apartment to the complainants because of their sexual orientation. The respondents filed a timely petition for commission review of the matter.

Based upon a review of the record in its entirety, the Labor and Industry Review Commission hereby makes the following:

1. In October 1991, the complainants, Paul Parkinson and Wallace Bowden, were looking for a new apartment. At the time, they lived together at 2867 South Kinnickinnic Avenue, Apartment 202. The complainants are homosexual males.

2. On October 9 or 10, 1991, the complainants noticed a "For Rent" sign on the front of a duplex located at 2957-2959 South Kinnickinnic advertising a three-bedroom lower unit. The sign included a telephone number to call. The respondents, Betty and David Obernberger, are joint owners of the property located at 2957-2959 South Kinnickinnic Avenue. The apartment was apparently only a block away from the complainants' current residence.

3. Complainant Parkinson called the number listed for the rental unit and spoke with Betty Obernberger. Mrs. Obernberger informed Parkinson that the apartment was for rent but that it was not available to see right away because she wanted to clean it up before people saw it. Mrs. Obernberger told Parkinson that the apartment would be available to view around the beginning of November possibly, or later, depending upon how much was cleaned. Parkinson expressed an interest in the apartment and stated that it would be for him and his roommate. Parkinson also stated that they ran a business out of their home. The complainants' business is selling Watkins products. During the conversation there was discussion about a need for a second telephone line for the complainants' computer. According to Parkinson, Mrs. Obernberger stated that they had phone lines wired in special and would have to talk to Wisconsin Bell, and he told her that a second phone line should be no problem. According to Parkinson, Mrs. Obernberger also stated that she did not think the electrical wiring in the apartment would be able to handle the computer but he informed her that that would not be a problem for the computer. Also, at some point during their conversation Parkinson asked Mrs. Obernberger if she would like a Watkins catalog and he was told to drop one off.

4. The telephone conversation between Parkinson and Mrs. Obernberger ended by Betty Obernberger stating that the complainants would be called when the apartment was available to look at. Parkinson left the complainants' phone number with Betty Obernberger. Complainant Parkinson subsequently dropped off two Watkins catalogs at the Obernberger's residence. The back of the catalogs contained both of the complainants' names, the name of their business, and their telephone number.

5. On October 17, 1991, the complainants, who have a telephone answering machine, received a message on their answering machine about the Obernberger's three-bedroom apartment. The message left on the answering machine was as follows:

"Yeah, Paul, this is Dave. That apartment . . . that three bedroom apartment over on South Kinnickinnic Avenue. We just calling you back to let you know that it has been rented out. In case you're wondering about a call-back. Okay? All right . . . fag."

6. Although not clear from the testimony, the complainants apparently immediately contacted the Metropolitan Milwaukee Fair Housing Council (MMFHC), because complainants' Exhibit No. 5 shows that a MMFHC tester using the name of Mary Mason called the respondents at 12:10 p.m. on October 18 and learned, among other things, that the three-bedroom apartment was still available and that she should call back around October 30 or 31 and ask for "Betty."

7. Based on a complaint filed with it by the complainants, the MMFHC decided to proceed with conducting a test at the 2957-2959 property. The test conducted by MMFHC consisted of having two married couples and a gay couple inquire about the respondents' apartment. This testing conducted by the MMFHC, however, does not indicate that the respondents held a bias against individuals based on their sexual orientation.

8. The respondents rented the apartment to a single female, apparently on November 17, 1991.

Based upon the above FINDINGS OF FACT, the commission makes the following:

1. Respondent A, Betty J. Obernberger, is a provider of housing within the meaning of the Wisconsin Open Housing Law, sec. 101.22, Wis. Stats.

2. Respondent B, David J. Obernberger, is a provider of housing within the meaning of the Wisconsin Open Housing Law, sec. 101.22, Wis. Stats.

3. Respondents A and B violated the Wisconsin Open Housing Law, sec. 101.22, Stats., by refusing to rent an apartment to the complainants, Paul Parkinson and Wallace Bowden, because of their sexual orientation.

Based upon the above CONCLUSIONS OF LAW, the commission therefore issues the following:

1. The respondents shall immediately cease and desist from violating the Wisconsin Open Housing Law by refusing to rent an apartment to the complainants because of their sexual orientation.

2. The respondents shall pay the complainants the amount of $1,829.25 as attorney's fees, plus costs of $8.00, as reasonable attorney's fees and costs in this matter. The total sum of $1,837.25 shall be paid by check made payable jointly to Paul Parkinson, Wallace Bowden and their attorney, Katherine L. Charlton.

3. Respondents shall within 30 days of the expiration of time within which an appeal may be taken herein, submit a compliance report detailing the specific action taken to comply with the commission's Order. The compliance report shall be directed to the attention of Kendra DePrey, Labor and Industry Review Commission, 201 East Washington Avenue, Madison, Wisconsin 53708.

Dated and mailed October 15, 1993

/s/ Pamela I. Anderson, Chairman

/s/ Richard T. Kreul, Commissioner

James R. Meier, Commissioner

In concluding that the respondents had violated the Wisconsin Open Housing Law by refusing to rent to the complainants because of their sexual orientation, the ALJ apparently relied on the message on the complainants' answering machine as well as the testing conducted by the MMFHC that begin on November 2, 1991. With respect to the testing beginning on November 2, the ALJ apparently infers that the respondents held a bias based on sexual orientation because Mrs. Obernberger told a homosexual test couple on November 20, 1991, that the apartment had been rented "a few days ago," while she told a married couple (third tester) on November 16, 1991, that the apartment was still available.

The evidence shows the following with respect to MMFHC's testing that began on November 2, 1991. Mary Higgins, posing as Mary Mason and married to William, viewed the apartment on November 2, 1991. Mason' s involvement apparently ended with Mason telling Betty Obernberger that she would get back to Betty about the apartment after speaking with her husband. A second tester, posing as Jan Peters, then contacted Mrs. Obernberger on November 6 and arranged to view the apartment on November 9. Ms. Peters was posing as an applicant inquiring about an apartment for her brother (Mike Peters) and his partner who were both gay. According to the test narrative report of the tester posing as Mike Peters, he spoke with Mrs. Obernberger at 11:55 a.m. on November 12 and was offered the opportunity to view the apartment at noon on Saturday, November 16. However, Mike Peters responded that he did not know if he would be able to come see the apartment and asked if he could get back to Mrs. Obernberger about seeing it. Mrs. Obernberger agreed. Jan Peters apparently completed an application and dropped it off at the respondents for Mike Peters on Saturday morning, November 16. A third tester, posing as Paula Peterson and married to Rick, contacted Mrs. Obernberger at 3:55 p.m. on November 12 and arranged to view the apartment at 1 p.m. on Saturday, November 16. Tester Peterson apparently returned with a completed application for the rental unit on November 16 after having viewed it that day. According to Peterson' s test report, when she reached Mrs. Obernberger by phone at 6 p.m. on November 17, she learned that Mrs. Obernberger had tried to catch her when she dropped off the application on November 16 to tell her she could have the rental unit. During their conversation on November 17, Mrs. Obernberger offered the apartment to tester Peterson but Peterson stated that she would have to talk with her husband. Later that evening, tester Peterson called Mrs. Obernberger to say that they would not take the apartment. Finally, according to the report of tester Mike Peters, he spoke with Mrs. Obernberger by phone on November 20 and learned that Mrs. Obernberger and Mr. Obernberger had decided on the previous night to rent to a lady who had applied "a few days ago."

The commission believes that the testing conducted by the MMFHC beginning on November 2, 1991, falls short of establishing a bias based on sexual orientation on the part of the Obernbergers. The commission finds no inherent inconsistency or indication of bias in the fact that the apartment was available on November 16 (or even November 17) but by November 20 had already been rented "a few days ago." Further, the commission notes that Mrs. Obernberger had simply received an application from Mike Peters by way of his sister and that Mike Peters had never viewed the apartment.

Nevertheless, the commission concludes that a violation of the law occurred based on the recorded message left on the complainants' answering machine. At the hearing and on appeal, the respondents (basically Mrs. Obernberger) have made the following assertions: (1) That she did not know that the complainants were homosexual; (2) that the reason the complainants were not rented to was because of their business; the respondents didn't think that the wiring in the house would be sufficient to run the complainants' business equipment; and (3) that it was not proven that the voice on the tape which says the word "fag" was that of her husband. A number of factors lead the commission to conclude that the respondents' arguments fail. Mrs. Obernberger maintains that she did not know the complainants were homosexual because in her telephone conversation with Parkinson he had simply stated that he was interested in renting an apartment for himself and his roommate, and that she never looked at the Watkins catalog to see the complainants' names on them. However, David Obernberger never testified that he had not looked at the Watkins catalogs or that he was not aware that the complainants were homosexuals. Further, it was David Obernberger who had called the complainants and left the message on the complainants' answering machine. Secondly, prior to the playing of the message on the complainants' answering machine at the hearing, Mrs. Obernberger had maintained that she was within four to five feet of her husband when he made the call to the complainants, that she heard the entire conversation and that her husband did not state that the apartment was not available, but that the respondents could not rent to them because of their business. However, the message left on the complainants' answering machine contained no statement that the apartment could not be rented to the complainants because of their business. Both Mrs. and Mr. Obernberger conceded at the hearing that it was David Obernberger' s voice stating that the apartment had been rented out on the message left for the complainants. On appeal Mrs. Obernberger apparently attempts to suggest that her husband had made two calls to apartment seekers, one to a married couple and one to the complainants (see page 4 of petition for review and pages 2-3 of Mrs. Obernberger' s letter to the ALJ following his proposed decision) and had possibly mixed up the calls. Her argument appears to be that the married couple had wanted the apartment immediately and that David Obernberger was supposed to have told them that the apartment had been rented (as an emergency to someone else), and the complainants told that they would not be rented the apartment because of the electrical wiring that would be needed to run their business equipment. But if this was the case, to whom was the comment "fag" supposed to have been directed, the married couple? The commission also notes that in the petition for review Mrs. Obernberger suggests that the complainants had wanted the apartment before it could become available. However, the evidence does not support this contention. Complainant Parkinson's testimony at the hearing was that Mrs. Obernberger stated the apartment would not be ready to view until the beginning of November, or later, and that their conversation ended with Parkinson being told that he would be called when the apartment was available to view. Parkinson' s testimony indicates that he was willing to wait some time for the apartment.

In an effort to show that the respondents were in fact concerned about wiring in the house, Mrs. Obernberger submitted a letter from the Lemberg Electric Company regarding her request for a price quote to install additional circuits for "computers." This letter not only fails to indicate when the request for a price quote was made, it is dated March 12, 1992, almost three full months after the complainants had filed their housing discrimination complaints with the Equal Rights Division.

Thirdly, there is no question but that the derogatory term "fag" appears at the end of Mr. Obernberger's message. The complainants testified that neither of them had altered the tape nor knew of anyone who had. Further, the commission is particularly struck by the fact that when David Obernberger was asked for his response to the message left on the complainants' answering machine at the hearing, he did not state as a matter of fact that no way had he made the comment "fag." Instead, his response was that he "did not recall saying that at all." (emphasis added) It would seem that this would have been something David Obernberger would have known without question.

Attorney's Fees

The ALJ granted the complainants the entire fee amount requested in their fee petition. That is, an hourly rate of $135 times 14.75 hours, plus costs of $3.00, for a total of $1,994.25. The commission finds the $135 per hour rate to be appropriate. This hourly rate is Ms. Charlton's usual and customary rate for clients signing an hourly retainer agreement. However, the commission finds it inappropriate to award attorney' s fees based on the entire amount of hours claimed for services expended. The commission has made a reduction in the award for a portion of the time spent preparing MMFHC witnesses Janice Popowich and Carla Wertheim for the hearing since the commission finds that the testing conducted by the MMFHC beginning on November 2, 1991 fails to establish bias on the part of the respondents. In short, the commission does not find this time to have been reasonably expended. Complainants' initial fee petition to the AU indicates that time claimed for services performed on May 29, 1992 and June 1, 1992 pertain to preparing these witnesses for the hearing, as well as time expended for general hearing preparation. A total of 4.5 hours is listed for these activities. Since the services expended for general hearing preparation time and the preparation of the MMFHC witnesses have been grouped together without specifically detailing the amount of time expended on each of these activities, the commission finds it appropriate to reduce the 4.5 hours requested by 2.25 hours. Additionally, there has been a reduction of .2 hours because Ms. Charlton claims this amount of time twice for a letter describing the "appeal process" to the complainants. This was done once before and once after the ALJ's decision. It would seem that the entire appeal process could have been, and likely would have been, described in the first instance. Finally, the commission's attorney fee award reflects the addition of $140 (1.0 hours times $135 per hour, plus costs of $5) for complainants' reasonable attorney's fees and costs based on the respondents' appeal from the ALJ 's decision. The complainants had sought $648 in fees (4.8 hours times $135 per hour), plus costs of $5, for an additional sum of $653 as attorney's fees and costs incurred based on the respondents' appeal of the ALJ 's decision. The commission found this amount to be excessive. It was found to be excessive because 4.2 of the additional hours requested pertained directly or indirectly to the complainants' brief that was filed on appeal, a brief that is little more than a recitation of the facts as found by the ALJ, and which had given little attention to the arguments presented on appeal by the respondents.

Forfeiture

The ALJ ordered the respondents to pay a forfeiture of $250 to the State of Wisconsin.  Section 101.22(6) of the housing law provides that any person who wilfully violates this section or any lawful order issued under this section shall, for the first violation, forfeit not less than $100 nor more than $1000. In Metropolitan Milwaukee Fair Housing Council v. Goetsch (LIRC, 12/6/91), the commission concluded that imposing a forfeiture would be appropriate under the Wisconsin Open Housing Law where there was "proof of knowing or reckless disregard as to whether action violates the law." As repugnant as use of the derogatory term "fag" in the message to the complainants may be, the commission cannot conclude from this record that the respondents either knew or showed reckless disregard for the matter of whether their conduct was prohibited by statute. There was absolutely no questioning of the respondents regarding their awareness of the law at the hearing. Accordingly, the commission has not ordered the respondents to pay any forfeiture to the State of Wisconsin.

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