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Avakina v. Chandler Apartments, LLC

United States District Court, D. Oregon

January 30, 2015

BRAD AVAKINA, COMMISSIONER OF OREGON BUREAU OF LABOR AND INDUSTRIES, ex rel FAIR HOUSING COUNCIL OF OREGON, Plaintiff, and, FAIR HOUSING COUNCIL OF OREGON, Plaintiff-Intervenor,
v.
CHANDLER APARTMENTS, LLC fka L&T CHANDLER, LLC, an Oregon Limited Liability Company, et al., Defendants.

OPINION AND ORDER

MICHAEL J. McSHANE, District Judge.

Plaintiff Brad Avakian, Commissioner of Oregon Bureau of Labor and Industries (BOLI), and plaintiff-intervenor Fair Housing Council of Oregon (FHCO), collectively referred to as "plaintiff, " move for partial summary judgment against defendant Chandler Apartments, LLC, fka L&T Chandler, LLC, and Oregon Limited Liability Company (Chandler Apartments).[1] Plaintiff brings three claims under the Fair Housing Act (FHA) and its Oregon counterpart. Plaintiff alleges Chandler Apartments discriminated against prospective tenants based on their disabilities and failed to provide reasonable accommodations. As discussed below, defendants provided only a token defense with no basis in law.[2] As it is clear that Chandler Apartments violated the FHA, plaintiff's motion for summary judgment, ECF No. 75, is GRANTED.

BACKGROUND[3]

In 2010, defendant James Tarantino purchased the Chandler Hotel with Melvin Lesher, a business partner. Built in 1908, the Chandler Hotel is on the National Register of Historic Places. Tarantino Decl., ¶ 2. Tarantino and Lesher formed L&T Chandler LLC to refurbish the hotel and operate it as Chandler Apartments. Tarantino then purchased Lesher's interest through a corporation of which Tarantino is the president.

In May 2011, Tarantino allowed an acquaintance by the name of Steve Lyons to live at the Chandler Apartments in exchange for work. Lyons had asked Tarantino to allow him to live at the Chandler Apartments "for free for a brief time as a friend, in exchange for which Lyons would keep an eye on things and answer the business phone during times when [Tarantino] was away in California." Tarantino Decl., ¶ 3. The two agreed Lyons was neither an employee nor a manager of the Chandler Apartments. Tarantino authorized Lyons "to show apartments to prospective tenants and provide them with tenancy applications if they asked for them, but was not allowed to make any decisions either accepting or rejecting applications." Id. Lyons would simply forward completed applications to Tarantino, who retained sole authority to accept or deny the applications. Lyons was not authorized to amend or vary the applications, which authorized no pets other than service animals. Id. Tarantino also authorized Lyons to speak to prospective tenants and provide information about renting at the Chandler Apartments. Nov. 7, 2014 Aldworth Decl., Ex. 4. Lyons was listed as "On-site manager" on at least some documents provided to tenants of Chandler Apartments. Aldworth Decl., Ex. 5, 2.

In September 2011, two FHCO "testers" called Chandler Apartments posing as prospective renters.[4] Tester Alpha called the Chandler on September 23, 2011 and spoke with "Steve" about renting an apartment. Alpha Decl., Ex. A, 1. After Steve provided information about the available apartments, Tester Alpha stated "Just so you know, I have a therapy animal." Id. Steve stated, "Ok, I'd have to check with the actual owner, I'm just the interim manager." Id. Steve said Tester Alpha could come look at the apartment or call back.

Tester Alpha spoke with Steve again on September 28. Tester Alpha asked if the owner was available and whether Steve spoke with the owner about the service animal. Steve said, "I already talked to the owner, and he does not want dogs in the building." Alpha Decl., Ex. A, 6.

Tester Beta called on September 30 and also spoke with "Steve" who described himself as a friend of the owner's, filling in until the owner found new management. Beta Decl., Ex. A, 1. After discussing the rentals, Tester Beta said, "I should probably let you know that I have an assistance dog." Id. Steve said, "I don't think they will let people have animals." Tester Beta stated she had a note from her doctor and Steve said, "I could say something, not [sic] I'm too sure. Somebody else brought that up. I don't think they allow that." Beta Decl., Ex. A, 1.

In his declaration, Lyons states:

3. In the course of my job answering the phone at the Chandler, I received a call from an individual who stated that he had a service animal and asked if he could rent a unit at the Chandler. I told the caller that I needed to check with the owner.
4. I informed Tarantino that I had received a call from a person who wanted to know whether he could rent a unit with a service animal. Tarantino informed me that no animals-whether service animals or not-were allowed at the Chandler. A few days later, the person called back, and I told him that the owner does not want any animals in the building, including service animals.
5. Thereafter, I received additional calls from individuals specifically inquiring whether they could rent at the Chandler if they had a service animal. I informed each caller that the owner did not allow any animals, including service animals.
6. All of the work that I performed at the Chandler was at the direction and control of Tarantino.

Lyons Decl. ¶¶ 3-6. Tarantino states Lyons never asked him about allowing service animals:

I have maintained the L&T Chandler LLC policies prohibiting smoking and pets. The no-pets policy does not apply to service animals and never has. I have never told anyone, including Steve Lyons, that disabled tenants of The Chandler may not keep service animals.... In all of the time I have been involved in the ownership of The Chandler, I have never received or heard of an application from a disabled potential tenant to move in with a service animal. If a tenant or prospective tenant could document an actual disability, they would be free to bring a genuine service animal into their apartment and keep it there.

Tarantino Decl., ¶ 6.

Tarantino notes he previously allowed a service animal to stay with a tenant. Tarantino states the smell of cat urine and feces ultimately led to the loss of a business tenant, costing him $20, 000 in rent. Tarantino Decl., ¶ 5.[5]

Tarantino believes this action is part of a "fraudulent prank" dreamed up by Lyons and Sax, a former manager of the Chandler Apartments. Tarantino Decl., ¶ 3. Around Christmas of 2011, several months after Lyons's interactions with the testers, he and Tarantino had a falling out and Tarantino ordered Lyons to move out. Id. Lyons moved out two months later. As discussed below, even assuming that this is a "fraudulent prank, " Chandler Apartments cannot avoid liability as it is clear Lyons had, at the very least, apparent authority to make the ...


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