TAMMY R. COLLINS and LARRY W. COLLINS, Complainants, and IOWA CIVIL RIGHTS COMMISSION,

vs.

HOWARD C. FLOOK, Respondent.

IV: The Respondent Has Not Proven By a Preponderance of the Evidence That, In the Absence of Racial Discrimination, He Would Have Refused to Rent to The Collinses Because He Believed They Were Not Married:

A. Respondent Admits, On Brief, That The Collinses Are, In Fact, Married:

13. While asserting, on brief, that the Collinses were rejected because Respondent Flook believed they were not married, Respondent repeatedly refers to them, on brief, as a married couple. (Respondents Brief at 2, 3, 4, 5). At one point, the brief expressly states "Complainants do have an interracial marriage. . .". (Respondent's Brief at 5). For reasons stated in the Conclusions of Law, this admission is binding on the Respondent and on the Commission in its adjudicative capacity. See Conclusions of Law Nos. 7-8.

B. The Contention That Respondent Flook Denied Housing to the Collinses Based on the Belief that Mr. and Mrs. Collins Were Not Married Is Not Supported By the Greater Weight of the Evidence:

14. On September 22, 1991, when Complainant Tammy Collins first talked to Respondent Flook about renting the apartment, she informed him that she had a husband and children. (Tr. at 7). She never told Flook that they were not married. (Tr. at 101).

15. For reasons set forth more fully in the findings of fact on credibility, it is clear that the Collinses' recollection of events is far more accurate than that of Respondent Flook. See Findings of Fact Nos. 22-23, 25-26. Therefore, Flook's assertion that Mrs. Collins told him that she and Mr. Collins were unmarried is not credible. (Tr. at 86, 95). It follows that his assertion that one reason for not renting to the Collinses is because they were not married is also untenable. (Tr. at 91, 92, 99). Flook admitted he never told Mrs. Collins she would not rent to them because they were not married. (Tr. at 92-93). Respondent Flook's statement to Mrs. Collins that he would not rent to her "because you have nigger kids and a nigger husband" reflects both his realization that Mrs. Collins was married and his true reason for his rejection of the Collinses. (Tr. at 14).

16. Roger Popken gave contradictory testimony on this issue. He stated at one point that, at the time he showed the apartment to Mrs. Collins, he thought she was unmarried. His testimony does not reveal why he believed this. (Tr. at 79). At another point, he admits that he did not know, at the time of the refusal to rent to the Collinses, if the Collinses were married or not. (Tr. at 77). His testimony on this issue is, therefore, not credible.

17. The greater weight of the credible evidence supports neither (1) the contention that the belief that the Collinses were unmarried was actually relied on as part of the reason for their rejection at the time of the rejection by Respondent Flook, nor (2) the proposition that such reason, standing alone, would have resulted in denial of the rental property to the Collinses.

C. The Contention That Respondent Flook Denied Housing to the Collinses Based on the Belief that the Collins' Family Was Too Large Is Not Supported By the Greater Weight of the Evidence:

18. Respondent Flook asserts that he refused rental to the Collinses because their family was too large for the apartment. (Tr. at 90). However, he did not know whether he had ever informed Mrs. Collins of this reason. (Tr. at 93). There is no evidence in the record that he did so. There is nothing in the "nigger kids and a nigger husband" reason he did give to indicate this was actually a concern. (Tr. at 14).

19. The apartment contained two bedrooms, a living room, a dining room, a kitchen, a bathroom, a hallway and two bedrooms. (CP. EX. # 2 (attachment 8 at p. 4); Tr. at 8). According to the investigative report, it would have been permissible for two persons to sleep in each bedroom, with the fifth in the living room. (CP. EX. # 2 (attachment 8 at p. 4)). At the time of hearing, Roger Popken had moved to that apartment. His eight year old son was sleeping in the living room of that apartment. (Tr. at 81, 83-84). There was room for five people in that apartment.

20. Finally, Flook claims that he saw how many people were in Mrs. Collins' family by seeing how many there were in her car on her very first visit. He claimed that, at that time, he decided her family was too large. (Tr. at 95). This testimony is not credible in light of his initially offering her the opportunity to rent the apartment, and of his silence at the time she informed him she was going to get a VA voucher for the rental payment. See Finding of Fact No. 5.

21. The greater weight of the credible evidence supports neither (1) the contention that the belief that the Collins family was too large for the apartment was actually relied on as part of the reason for their rejection at the time of the rejection by Respondent Flook, nor (2) the proposition that such reason, standing alone, or in combination with the "unmarried couple" reason would have resulted in denial of the rental property to the Collinses.

21A. The greater weight of the credible evidence shows that race, including the status of Complainants as an interracial couple, the status of Larry Collins as a Black man, and the status of their children as interracial persons, was the sole and true reason for the denial, by Respondent Howard Flook, of the apartment sought by Complainants. The evidence also shows that Respondent Flook directly indicated that Black or mixed race persons were not acceptable as tenants. See Findings of Fact Nos. 8-21.

V. Credibility:

22. Respondent Howard Flook was not a credible witness with respect to statements which were not admissions against interest or supported by other indicia of reliability. Flook's memory, at hearing, of important events was obviously flawed. He stated that he was not sure whether he or Roger Popken talked to Mrs. Collins when she returned with the voucher. He was not sure about what was said or whether he was even there. (Tr. at 88). During his testimony, he was found to be reviewing notes he had made, apparently prior to the hearing. (Tr. at 93). He also had difficulty recalling the specifics of his conversation with Larry Lockman, the Commission investigator. (Tr. at 96-98). He repeatedly stated that he could not remember back to the time of that conversation, which was on October 1, 1991. (CP. EX. # 1; Tr. at 98-99). It was also clear from his manner and demeanor that he had a difficult time remembering, although at one point he did testify that he could remember events of a year prior to the hearing, the time of the denial of rental to the Collinses.

23. In addition, while Respondent has admitted the truth and accuracy of the transcripts of the tape recorded investigation interview, Respondent Flook repeatedly asserted that he could not (independent of reference to the tape and transcript) "remember the full context" of various portions of the interview. (CP. EX. # 1). Finally, Flook's testimony, in some respects previously noted above, is not plausible as it is not consistent with the greater weight of the evidence. See Findings of Fact Nos. 15, 20.

24. Roger Popken's testimony was credible in some respects. Yet, it was clear from his nervousness and demeanor that he found it difficult to testify against his employer and landlord, Respondent Flook. Given his contradictory testimony on his knowledge of the marital status of the Collinses, that testimony was not credited. See Finding of Fact No. 16.

25. Based on their demeanor, their clearer recollection of events, the internal consistency of their testimony and its consistency with the greater weight of the evidence, the testimony of Tammy and Larry Collins is credible in all respects but one. Their testimony that there was measurable snow while they were living in their car in Iowa in the two to three week period after their rejection on September 1991 is not credible. (Tr. at 28-29, 49, 62-64). Their testimony that, although it was warm on September 23rd, there were periods of cold, particularly at night, during their time living in the car, is, however, credible. (Tr. at 28, 62, 63).

26. Of course, the point at which weather is "cold" is to some degree a subjective judgment which may depend on one's experience and whether one is sleeping outdoors, in a car, or in a heated building. It appears that the statements about the snow are simply a result of confusion of that time with other experiences involving snow. It is not the impression of the Administrative Law Judge that these statements are willfully false. Nor does the presence or absence of snow materially affect the outcome of this case.

27. Official notice is taken of the following high and low temperature and precipitation amounts for the period of September 23-October 14, 1991 which are capable of certain verification through weather reports published in the Des Moines Register for that period. These reports are impartial compilations of statistics. Fairness to the parties does not require that they be given the opportunity to contest these facts: