CHAPTER IX …

                                     CHAPTER IX

                                       UNRUH


C.    The Law:   Sources of the Legal Standards for Unruh Act Cases

      1.   Statute and Regulations

           FEHA (Government Code) Sections 12948 and 12955(d)

           Unruh Civil Rights Act (Civil Code) Sections 51, 51.2, 51.3, 51.4, 52
           (Remedy).

      2.   Precedential Decisions

           DFEH v. Carefree Ranch Mobile Home Park, A California Limited
           Partnership, Lester Frame, General Partner, Henry and Laura Straub,
           Managers, Ernest Morrison as Trustee Under Trust Agreement Dated
           June 23, 1975, Enid Peterson, William A. Rooke and Hannelore Rooke
           Revocable Trust No. 1, William M. Keck, Jr., Muriel Hecsh, Zelma I.
           Mayes, Trustee of the Zelma I. Mayes Trust, A. Douglas Mayes, Limited
           Partners (Munoz, Munoz, Jr.) FEHC Dec. No. 84-31. Age (under 30
           years) - refusal to rent park space. Unruh Act not limited to
           enumerated bases; Unruh Act prohibits all arbitrary discrimination in
           business establishments of any kind. FEHC has jurisdiction over age
           discrimination in housing; blanket exclusions of whole age groups on
           basis of unfounded assumptions violates the Unruh Act. (NOTE: In
           March, 1989, the California Supreme Court held that mobile home parks
           were exempt from the age discrimination provisions of the Unruh Civil
           Rights Act. See below, non-Commission cases, Schmidt v. Superior
           Court (Valley Mobile Home Park Investments).

           DFEH v. Children's Hospital and Health Center (Gilman) FEHC Dec. No.
           87-24. Sex (male) - failure to hire (physician in a child sexual
           abuse program). Unruh Act does not cover employment discrimination
           against independent contractors. Legal standard for evaluating
           independent contractor status.

           DFEH v. Merribrook Apartments, James C. Beard, Owner, dba Beard
           Development Company and Beard and Hoshaw Investment Builders;
           Robert J. Hoshaw, Owner, dba Beard Development Company and Beard and
           Hoshaw Investment Builders; Ellen Reiley, Manager; Kay Smittle,
           Property Manager; Beard and Hoshaw Company, Inc.; and Beard
           Development Company (M. Tolmasov, D. Tolmasov, C. Tolmasov) FEHC Dec.
           No. 88-19. Age (minor child) - rent denial (two-bedroom apartment).
           Respondent maintained occupancy policy of one person per bedroom.
           Legal standard for establishing intentional discrimination under Unruh
           Act: preponderance of evidence shows that protected basis is "a
           factor" in the adverse action. FEHC incorporated doctrine of adverse
           impact as part of FEHA's prohibition of housing discrimination. Legal
           standard for prevailing on adverse impact affirmative defense: 1)
           practice serves a compelling and well-established public purpose, and
           2) there exists no reasonable alternative to serving the same need
           with less discriminatory impact. (BUT NOTE: In Harris v. Capital
           Growth Investors, 52 Cal.3d 1142 (1992), the California Supreme Court
           held that adverse impact analysis may not be used to show a violation



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           of the Unruh Act. The Unruh Act prohibits intentional discrimination
           only. See below, non-Commission cases.)

           DFEH v. Hallmark Realtors, Robert Dinkins and Charles Thomas (Esqueda)
           FEHC Precedential Order 91-A. National origin (Mexico) - statements
           of preference. Pursuant to Government Code Section 12948, DFEH
           housing discrimination complaints may be filed under the one-year
           statute of limitations of the Unruh Civil Rights Act. The FEHC
           rejected the respondent's argument that the sixty-day filing statute
           of limitations of Government Code Section 12955 controlled all DFEH
           housing discrimination complaints. (This FEHC Order considered the
           jurisdiction argument only; case remanded to the Administrative Law
           Judge for hearing on issues of fact.)

      3.   Non-Commission Cases

           In Re Cox (1970) 3 Cal.3d 205, 212. Enumerated bases in Unruh are
           illustrative rather than restrictive. Though a business enterprise
           may establish reasonable deportment regulations, they must be
           rationally related to the services performed and the facilities
           provided (individual forced to leave a shopping center for associating
           with a friend who had long hair and unconventional dress, i.e.,
           "offensive personal conduct").

           Marina Point, Ltd. v. Wolfson (1982) 30 Cal.3d. 721. Landlord's
           blanket exclusion of children from residency is prohibited by Unruh
           Act; exclusion may not be justified by generalized prediction that
           class of children "as a whole" is rowdier than adults. Age
           restrictions are permitted if justified by a compelling societal need
           such as senior citizen housing.

           O'Connor v. Village Green Owners Association (1983) 33 Cal.3d 790.
           Condominium associations are "business establishments" subject to the
           provisions of the Unruh Act; exclusion of children as a class is
           unlawful (condominium association tried to evict residents with a
           child asserting that CCRs limited residency to adults only).

           Schmidt v. Superior Court (Valley Mobile Home Park Investments) (1989)
           48 Cal.3d 370. Age (23) - failure to rent park space due to residency
           rule limiting tenancy to adults over age 25. California Supreme Court
           held: 1) Mobile home parks may restrict residency to adults, pursuant
           to Civil Code Section 798.76, Mobile Home Residency Act; 2) park could
           maintain rule excluding residents under age 25 (the California Supreme
           Court reaffirmed this part of its ruling in a March 30, 1989 hearing,
           and found that mobile home parks are exempt from the Unruh Civil
           Rights Act. The Supreme Court held that the California Mobile Home
           Residency Act may be interpreted to allow distinctions based on age
           between classes of adults).

           Sunrise Country Club Association, Inc. v. Proud (1987) 190 Cal.App.3d
           377. Court of Appeal held that a large condominium complex may be
           divided into a family section which permitted children and an adult
           section which prohibited children. Court held that there was no
           violation of the Unruh Civil Rights Act because the Sunrise policy
           reasonably accommodated children within the entire condominium
           complex.




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      Harris v. Capital Growth Investors XIV, 52 Cal.3d 1142 (1991). Sex
      (female) and level of income (low income individuals on AFDC) - rent
      denial. The California Supreme Court held: 1) The respondent's
      minimum income requirement (three times the monthly rent) was not
      arbitrary discrimination prohibited by the Unruh Civil Rights Act.
      Economic characteristics are not protected categories under the Unruh
      Act. 2) Adverse impact analysis may not be used to show a violation
      of Unruh, the Act only prohibits intentional discrimination.




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                                      APPENDIX A

                         UNRUH CIVIL RIGHTS ACT: OVERVIEW

STATUTORY AUTHORITY:

      Civil Code Sections 51, 51.2, 51.3, 51.4, 52

      Government Code Section 12948

COVERAGE:

Prohibits arbitrary discrimination by business establishments based on:

      Race
      Color
      Religion
      Sex
      Ancestry
      National Origin
      Blindness
      Physical Disability - specifically exempts business establishments from
      structural accommodation requirements
      Age/Children
      Any arbitrary discrimination based on personal characteristics (excludes
      mental disability)

Prohibits intentional discrimination only.

SENIOR CITIZEN HOUSING:

Exception to the age discrimination provisions which prohibit discrimination
against children

      Qualifying Requirements:

      Facility must restrict occupants to persons age 62 or older;

                                          OR

      Facility is a senior citizen housing development and restricts occupancy
      to persons 55 or older and also:

          Has 150 units in a Standard Metropolitan Statistical Area (SMSA) or 35
          units in other areas; and

          Is "developed for, or substantially rehabilitated, or renovated" to
          meet the physical and social needs of seniors (i.e., senior design
          requirements).

      Characteristics of Senior Design Requirements:

      Handrails, ramps, recreational facilities, wide sidewalks, specialized
      transportation, medical services, large bathrooms, provision for common
      rooms, etc.




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      Exceptions to Senior AGE Requirements:

          A person who is at least 45 years of age or is under the age of 45 and
          is a spouse, cohabitant, or person providing primary economic support
          may reside with a senior as a "qualified permanent resident" if the
          person:

         1.   Resided with a senior prior to the death, hospitalization,
              prolonged absence, or dissolution of marriage;

                                        AND

         2.   Has an ownership interest or expectation of having an ownership
              interest, in the dwelling unit.

          A non-senior "qualified permanent resident" is entitled to continue
          his/her residency in the event of death, dissolution of marriage,
          hospitalization, or the prolonged absence of the senior resident.

          A non-senior "permitted health care resident" may reside with a senior
          if hired to provide live-in, long-term, or terminal health care.

          Any non-senior resident may continue to reside in senior complexes
          provided they were residents prior to January 1, 1985.

          Any non-senior resident may continue to reside in "senior citizen
          housing developments" exempt from the senior design requirements per
          Civil Code Section 51.4, provided they were residents as of
          January 1, 1990.

      Exceptions to Senior DESIGN Requirements:

      Senior housing developments (age 55 and over) are exempt from senior
      design requirements until January 1, 2000 if they:

          Were constructed prior to February 8, 1982;

          Can show that it is not practical to meet senior design requirements
          in the areas in which they are located;

          Can show that the housing development is necessary to provide housing
          opportunities to seniors.

MOBILE HOME PARKS:

Mobilehome Residency Act (Civil Code Section 798.76) permits parks to
establish "adults only" facilities (18 years of age or older)

FILING REQUIREMENTS:

      With DFEH:   File within one year of discriminatory act

      Civil Court Suit By Individual: File lawsuit within three years (no
      prerequisite of filing first with DFEH)




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REMEDIES:

      DFEH/FEHC

          Injunctive and equitable relief

        A legal question exists as to monetary damages

      Court

          Actual damages

          Punitive damages up to three times actuals

          Injunctive and equitable relief

          Attorney's fees




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