Swann v.Burkett

Appeal certified to this court by the Appellate Department of the Alameda County Superior Court.

Question Presented

Is a person renting the units in a “triplex” dwelling operating a “business establishment” within the meaning of the Unruh Civil Rights Act (Civ. Code, § 51) ?

Record

Plaintiffs, husband and wife, brought suit in the Municipal Court of the Berkeley-Albany Judicial District under the Unruh Act to recover damages, alleging that defendants were the owners of a triplex dwelling in Berkeley and that defendants had refused to rent one of its units to plaintiffs for the sole reason that plaintiffs are Negroes. The trial was before the court without a jury. The evidence showed that defendants, who owned and lived in their own home in another location, owned two pieces of property in Berkeley, one consisting of a triplex and a rear garden cottage on Benvenue Street, and the other consisting of two units and a rear garden cottage on Hillegass Avenue. Both properties consist of living units and are considered “income property.” Defendants maintain no

The second case is Lee v. O’Hara (March, 1962) 57 Cal.2d 476 [ 20 Cal.Rptr. 617 , 370 P.2d 321 ], There the defendants were licensed real estate brokers who, the complaint alleged, were “retained in that capacity to rent certain described premises to any member of the public ready, willing, and able to rent such premises upon the terms offered. In February 1961 plaintiff [a Negro] requested defendants to procure possession of the premises for him upon the offered terms, and defendants refused to rent to plaintiff solely because of his race. ’ ’ (P. 477). In reversing the trial court’s action in sustaining a demurrer without leave to amend to the complaint alleging the above matter, the Supreme Court said, "The office which a real estate broker is required by law to maintain at a specified location, and from which his business must be transacted, is a business establishment within the meaning of the Unruh Act. ” (P. 478.)

The third case is Vargas v. Hampson (March, 1962) 57 Cal.2d 479 [ 20 Cal.Rptr. 618 , 370 P.2d 322 ], There it was alleged in the complaint that the defendant, a real estate broker, was engaged in that capacity in connection with the sale of real property in a tract development, and that the defendant refused to sell real property in the tract to the plaintiffs, who were Mexican. The Supreme Court held that the complaint stated a cause of action against the defendant for violation of the Unruh Act. However, the complaint was ambiguous and uncertain in some respects, and the trial court had sustained a special demurrer on those grounds as well as on general grounds, but with leave to amend. Because of the plaintiffs’ refusal to amend to clear up the uncertainties and am

In 1905 (Stats. 1905, ch. 413, § 1, p. 553) the first portion of this statute became section 51 and the second portion became section 52 (ch. 413, §2). In 1919 (Stats. 1919, ch. 210, § 1, p. 309) “public conveyances” was added to section 51. In 1923 (Stats. 1923, eh. 235, §§ 1, 2, p. 485) there was added “places where ice cream or soft drinks of any kind are sold for consumption on the premises” to both sections 51 and 52.

By Statutes 1959, chapter 1866, page 4424, sections 51 and 52 were amended to read as hereinbefore set forth, and sections 53 and 54 were repealed. It will be noted that prior to 1959 the only places as to which discrimination was prohibited were places of amusement or “of public accommodation.” Section 51 covers a much broader field—“all business establishments of every, kind whatsoever. ’ ’ This, of course, would include the places of amusement and of public accommodation theretofore mentioned, as they undoubtedly are business establishments.

Professor Harold W. Horowitz in his excellent discussion of The 1959 California, Equal Rights in “Business Establishments” Statute—A Problem in Statutory Application (1960) 33 Southern California Law Review 260, gives the legislative history of the enactment of the 1959 statute. It was introduced as Assembly Bill 594, apparently to meet the situation caused by a trial court decision in Los Angeles holding that a privately owned grammar and secondary school was not a “place of public accommodation.” The bill repealed sections 53 and 54 and amended section 51 by adding to the prohibited places “public or private groups, organizations, associations, business establishments, schools, and public facilities.” It also provided the right without discrimination “to purchase real property” and “to obtain the services of any professional person, group or association.” The bill also permitted discrimination for “good cause” if not based on color, race, religion, ancestry or national origin. The Assembly Judiciary Committee introduced into the bill an exception to ‘ ‘ institutions organized primarily for the purpose of, and which practice, the furthering of a specific sectarian religious belief or a specific national culture,

It is interesting to note that in none of the amendments made by the Legislature since the original statute in 1893, as well as in that statute, nor in any of the various changes made by the Assembly and Senate in the bill which was passed in 1959, was there any reference to discrimination in the use or rental of real property, and that the inhibition against the sale of real property which appeared at one time in the 1959 bill was not carried into the statute as enacted. At the same time that the Legislature adopted the 1959 amendments to sections 51

There seems to be some contradiction in this section. It first states that “housing accommodation” includes any building, etc., intended to be used as the home residence or sleeping place of one or more human beings. This apparently is all embracing and would include houses and multiple dwellings. However, in defining “publicly assisted housing accommodations” it apparently excepts housing accommodations offered for sale by a person who owns less than five housing accommodations located on contiguous land and multiple dwellings which are rented to be used by less than three independent families.

Under the construction of section 51 urged by plaintiffs, an anomalous situation between the Unruh Act and the Hawkins Act appears to result. The Hawkins Act as it relates to renting “publicly assisted” multiple dwellings does not prohibit discrimination in the renting of units less than three; whereas the Unruh Act contains no such exception. Again, if a person builds with “public assistance” four houses on contiguous land he is not prohibited under the Hawkins Act from discriminat

In Burks, supra, pages 469-470, the Supreme Court held: “There is no merit to defendants’ contention that the adoption of the Hawkins Act at the same session of the Legislature in which the Unruh Act was passed shows an intent that the Hawkins Act is to be the sole measure relating to discrimination with respect to real property transactions. Although the operation of the two statutes overlaps in some particulars, their provisions differ in essential respects. [Footnote omitted.] The Unruh Act relates only to discriminatory practices in ‘business establishments. ’ The Hawkins Act is confined to discrimination by an ‘owner’ of a ‘publicly assisted housing accommodation’ with knowledge of such assistance. Some transactions, even though not involving ‘business establishments’ within the meaning of the Unruh Act, would nevertheless come within the terms of the Hawkins Act. Other transactions which are within the Unruh Act because they involve business establishments may not involve a ‘publicly assisted housing accommodation’ as defined in the Hawkins Act. . . .

“. . . Both statutes are designed to discourage discrimination, and it would be unreasonable to hold that the provisions of the Hawkins Act, relating to only part of the housing field, reflect an intent to exclude from the Unruh Act all discriminatory practices with respect to housing, including those that clearly come within the terms of the Unruh Act but are not covered by the provisions of the Hawkins Act. Even as to a case appearing to come within both enactments, we cannot properly hold that the sections of the Hawkins Act were intended to exclude all operation of the Unruh Act without regard to the circumstances. ’ ’

The effect of this decision is that the Hawkins Act which relates to only a part of the housing field was not intended to exclude the application of the Unruh Act to a broader concept of the housing field. This, then, brings us to the question of how much of that broader field the Unruh Act contemplates. If it was intended to cover all types of housing, it would have been a very simple matter for the Legislature to so state, as in the Hawkins Act it did as to the housing there covered. Instead, however, the Legislature used the indefinite expression “business establishments,”

However, this court is bound by the determination of the Supreme Court in Burks, supra, to the effect that the Legislature intended in sections 51 and 52 to cover “housing” and its interpretation of the words ‘ ‘ business establishments ’ ’ seems clearly to apply to the situation in the case at bench. There the Supreme Court defined both the words “business” and “establishments.” It said (pp. 468-469) : “The Legislature used the words ‘all’ and ‘of every kind whatsoever’ in referring to business establishments covered by the Unruh Act .(Civ. Code, § 51), and the inclusion of these words, without any exception and without specification of particular kinds of enterprises, leaves no doubt that the term ‘ business establishments’ was used in the broadest sense reasonably possible. The word ‘business’ embraces everything about which one can be employed, and it is often synonymous with ‘ calling, occupation, or trade, engaged in for the purpose of making a livelihood or gain.’ (See Mansfield v. Hyde, 112 Cal.App.2d 133 ; 137 [ 245 P.2d 577 ] ; 5 Words and Phrases (perm. ed. 1940) p. 970 et seq.) The word ‘establishment,’ as broadly defined, includes not only a fixed location, such as the ‘place where one is permanently fixed for residence or business, ’ but also a permanent ‘ commercial force or organization’ or ‘a permanent settled position (as in life or business.) ’ (See Webster’s New Internat. Diet. (2d ed. 1957) p. 874; id. (3d ed. 1961) p. 778.”

Under the above definitions the owner was engaged in “a permanent settled position” in renting his triplex units for “gain.” (It must be considered, too, that he was addition

The facts in the Burks, Lee and Vargas cases, supra, can easily be distinguished from those in our case. In Burks the defendant Poppy Construction Company was engaged in the business of developing, building and selling a tract of housing accommodations, and the defendant Cornblum was its employee. In Lee the defendants were real estate brokers engaged in the business of renting certain premises; and in Vargas the defendant was a real estate broker engaged in the business of selling real property in a tract development. Obviously, the defendants in all three cases were operating “business establishments,” and once the Supreme Court determined, as it did, that the Unruh Act covered housing, the involvement of the defendants in those cases clearly appeared. In our case, the rental by an owner of his own small rental units does not so clearly appear to constitute the operation of a “business establishment.” However, as we have pointed out, the definition of this term given in Burks brings the owner within the term.

Defendants’ attack on the constitutionality of the Unruh Act seems more directed to the Hawkins Act than to it, for they say equal protection of the laws is denied because the owner of a triplex may not practice discrimination in renting while the owner of a duplex or a house may. No such distinction appears in the Unruh Act although it does in the Hawkins Act, and in spite of that situation the Hawkins Act was held to be constitutional. (See Burks, pp. 474-476.) The Unruh Act was held to be constitutional in Burks, page 471. As to the Unruh Act being “void for vagueness” the Supreme Court in the before mentioned cases had no difficulty in determining the meaning of the act.

The judgment of the municipal court is reversed.

Sullivan, J., and Molinari, J., concurred.

Respondents’ petition for a hearing by the Supreme Court was denied January 16, 1963.