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Kansas Human Rights Commission v. Dale12/4/1998
of a statute may be raised for the first time on appeal, if the issue is not adequately briefed to challenge the presumption of constitutionality, it is deemed abandoned. McKissick v. Frye, 255 Kan. 566, 578, 876 P.2d 1371 (1994). We deem Dale's constitutionality issue to be abandoned.
Finally, Dale contends the evidence was insufficient to support the civil penalty. The 1992 amendment to K.S.A. 44-1019 removed the $2,000 cap on damages and provided that the ALJ may impose an additional civil penalty, not to exceed $10,000 for a first violation, "to vindicate the public interest." L. 1992, ch. 142, § 3. The amendment was effective July 1, 1992, prior to the events at issue in this case. The ALJ found Dale's violation to be egregious because it was knowing and intentional. The maximum penalty for a first offense was then imposed because Dale did not present evidence of his financial circumstances.
The Kansas statute providing for civil damages for discrimination in housing parallels the federal provision, 42 U.S.C. § 3612(g)(3) (1994), within the Fair Housing Act. The Tenth Circuit Court of Appeals reduced the civil damage award from $10,000 to $500 in a case where the owner of an "adults only" mobile home park silently changed his policy when informed of its illegality. Morgan v. Secretary of Housing and Urban Dev., 985 F.2d 1451 (10th Cir. 1993). The ALJ considered the action egregious because the owner agreed to withdraw the policy in response to a complaint but did not publicize the change, thus perpetuating the other residents' belief that they could not sell their homes to families with children. 985 F.2d at 1460. The appellate court held that the ALJ abused his discretion because most of the factors he relied upon were not supported by substantial evidence. 985 F.2d at 1461.
Here, the evidence established that Dale had rented to Townsend on prior occasions, and, in fact, she was a current tenant at the time of the complaint. Although the ALJ found that discrimination occurred sufficient to support the damage award and to support an order to cease the discriminatory conduct, there is no substantial evidence to support the finding that Dale's conduct required the imposition of a civil penalty "to vindicate the public interest." See K.S.A. 44-1019(i). Accordingly, we hold it was an abuse of discretion to impose the $10,000 civil penalty.
Affirmed as to the finding of discrimination and the award of actual damages, but reversed as to the imposition of a civil penalty.
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