Housing Authority of the City of Hartford v. Ali Kenyatta Brothers (2013)

MEMORANDUM OF DECISION RE SUMMARY JUDGMENT AND TRIAL

This is a summary process action brought by the Plaintiff, Housing Authority of the City of Hartford, against the Defendant, Ali Kenyatta Brothers, seeking immediate possession of the subject premises at 141 Woodland Street, Apartment 708, Hartford, CT 06105 (hereafter the “premises”).   The action is based solely on the ground that the defendant never had a right or privilege to occupy the premises.   Prior to trial, the defendant filed a motion for summary judgment based on the single-count complaint.   On February 19, 2013, the parties appeared before this Court for argument on the Motion for Summary Judgment and a trial on the Revised Complaint.   The Court heard testimony and reviewed various exhibits.   The parties subsequently filed post-trial briefs on March 5, 2013.

I. SUMMARY JUDGMENT

A. Summary Judgment—In General

Connecticut Practice Book § 17–49 provides that “[summary] judgment ․ shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.”  “In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party ․ The party moving for summary judgment has the burden of showing the absence of any genuine issue of material fact and that the party is, therefore, entitled to judgment as a matter of law.”  (Citations omitted, internal quotation marks omitted.)  Cogan v. Manhattan Auto Financial, 276 Conn. 1, 6–7, 882 A.2d 597 (2005).

“In seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of fact.   The courts are in entire agreement that the moving party for summary judgment has the burden of showing the absence of any genuine issue as to all the material facts, which, under applicable principles of substantive law, entitle him to a judgment as a matter of law.   The courts hold the movant to a strict standard.   To satisfy his burden the movant must make a showing that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact ․ As the burden of proof is on the movant, the evidence must be viewed in the light most favorable to the opponent ․ When documents submitted in support of a motion for summary judgment fail to establish that there is no genuine issue of material fact, the nonmoving party has no obligation to submit documents establishing the existence of such an issue ․ Once the moving party has met its burden, however, the opposing party must present evidence that demonstrates the existence of some disputed factual issue ․ It is not enough, however, for the opposing party merely to assert the existence of such a disputed issue.   Mere assertions of fact ․ are insufficient to establish the existence of a material fact and, therefore, cannot refute evidence properly presented to the court under Practice Book § [17–45] ․” (Citations omitted;  internal quotation marks omitted.)  Boone v. William W. Backus Hospital, 272 Conn. 551, 558–59, 864 A.2d 1 (2004).

“In ruling on a motion for summary judgment, the court's function is not to decide issues of material fact, but rather to determine whether any such issues exist ․ As the party moving for summary judgment, the [movant] is required to support its motion with supporting documentation, including affidavits ․ [T]he party opposing ․ a motion [for summary judgment] must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact ․ It is not enough ․ for the opposing party merely to assert the existence of ․ a disputed issue.   Mere assertions of fact ․ are insufficient to establish the existence of a material fact and, therefore, cannot refute evidence properly presented to the court [in support of a motion for summary judgment] ․ Only evidence that would be admissible at trial may be used to support or oppose a motion for summary judgment.”   Bowen v. 707 On Main, Superior Court, judicial district of New Haven at Meriden, Docket No. CV02 0282643 (Tanzer, J.;   February 24, 2004) (2004 Ct.Sup. 2224, 2225–6).

B. Summary of the Arguments

1. Defendant (Movant)

On February 13, 2013, the defendant filed his Motion for Summary Judgment, alleging that no genuine issue as to any material fact existed, and that he was entitled to judgment as a matter of law.   The defendant supports his position with two legal arguments.

First, the defendant argues that the ground relied upon by the plaintiff in its Revised Complaint, “Never Had the Right or Privilege to Occupy,” only applies to tenants who do not have a lease or rental agreement, and never had one.   Defendant further avers that a lease was in fact signed by both parties, thereby rendering plaintiff's ground for eviction inapplicable.   Additionally, defendant claims the only disputes that exist are about the legal effect of the facts or circumstances surrounding the lease, not the facts themselves.

Second, the defendant contends that under contract law principles, a legally enforceable lease existed between the parties.   Defendant argues that the elements of mutual understanding and mutual assent were present in the contract formation when the lease was signed.   Furthermore, the defendant asserts that the lease is neither void, nor voidable as a result of any unilateral mistake by the plaintiff, in admitting the defendant as a registered sex offender into federally assisted housing, or a mutual mistake by both parties.   Finally, the defendant argues that the contract is not void due to illegality, since the lease did not have an illegal purpose.

2. Plaintiff (Non–Movant)

On February 15, 2013, the plaintiff filed its Response to Defendant's Motion for Summary Judgment, without a supporting memorandum of law.¹  Plaintiff sets forth a variety of arguments within its response:  that genuine issues of material fact exist “because some of the facts are disputed and the defendant has misstated facts”; ²  that the allegations of its Revised Complaint are sufficient to prove the elements of “Never Had a Right or Privilege to Occupy”;  that defendant never had a valid lease under the law;  that defendant was never eligible to obtain residency in a public housing agency or sign a lease, and therefore, the formation of the lease lacked mutual understanding;  that the lease is illegal because it is forbidden by federal law;  that defendant should have known he was ineligible for federally assisted housing;  and, that federal law mandates the eviction of registered sex offenders.

C. Undisputed Material Facts

The Court finds the following facts to be undisputed.

The plaintiff, Housing Authority of the City of Hartford (hereafter “HACH”), is a public housing agency.   The defendant, Ali Kenyatta Brothers, became a convicted sex offender, currently on the lifetime registered sex offender list in New York State, sometime in 1997.

On or around March 30, 2006, the defendant submitted an application for housing with the plaintiff.   The application did not specifically ask if an applicant was a lifetime registered sex offender.³  However, the application did provide for a release of credit, criminal and financial background information, if the applicant authorized such a review.⁴  The defendant answered all questions on the HACH application, and signed all releases authorizing HACH to complete its background checks.⁵

Sometime thereafter, HACH conducted a background check on the defendant, which included a search on the sex offender registry.   After the background check was complete, the defendant was accepted into the federally subsidized housing program administered by HACH. The defendant and HACH signed a lease agreement on September 1, 2006, with the defendant moving in the same day.⁶

A number of years after the defendant occupied the premises under the lease agreement, HACH conducted another background check, and discovered the defendant was a lifetime registered sex offender in New York State.

On or about May 23, 2012, the plaintiff caused a constable to serve the defendant with a Notice to Quit possession of the premises on or before June 8, 2012.   The Notice to Quit states two reasons for the eviction:  that defendant “Never Had a Right or Privilege to Occupy” the premises due to his lifetime sex offender status, and “Lapse of Time.” ⁷ Although the time designated in the notice to quit has passed, the defendant remains in possession of the subject premises.

D. Discussion

1. No Genuine Issue of Material Facts Exists

“A ‘genuine’ issue has been variously described as a ‘triable,’ ‘substantial’ or ‘real’ issue of fact;  ․ and has been defined as one which can be maintained by substantial evidence ․ Hence, the ‘genuine issue’ aspect of summary judgment procedure requires the parties to bring forward before trial evidentiary facts, or substantial evidence outside the pleadings, from which the material facts alleged in the pleadings can warrantably be inferred ․ A ‘material’ fact has been defined adequately and simply as a fact which will make a difference in the result of the case ․ ‘Issue of fact’ encompasses not only evidentiary facts in issue but also questions as to how the trier would characterize such evidentiary facts and what inferences and conclusions it would draw from them ․ summary judgment is to be denied where there exist genuine issues of fact and inferences of mixed law and fact to be drawn from the evidence before the Court.”  (Citations omitted;  internal quotation marks omitted.)  United Oil Company v. Urban Redevelopment Commission, 158 Conn. 364, 378–79, 260 A.2d 596 (1969).

Although the plaintiff in the case at bar alleges that issues of material fact remain in dispute, it fails to cite any specific factual dispute between the parties.   In its response to the motion for summary judgment, the plaintiff makes the unfounded allegations that “the facts are disputed and the defendant has misstated facts.”   However, the Court finds neither disputed facts, nor misstatements of fact by the defendant.

Plaintiff argues that “it is not clear whether the defendant was aware of his ineligibility when he applied for tenancy” and that “[i]f defendant applied ․ with the knowledge that he was ineligible, and did not disclose his status as a lifetime registered sex offender, then it may be construed as deceptive.”   Such “deception,” according to the plaintiff, “negates the agreement.”   Alternatively, the plaintiff contends that if defendant “was not aware that he was ineligible, then there was no mutual understanding [when the lease was signed] ․ [which] nullifies the lease.”

These factual allegations, or speculations for that matter, are not maintained by any substantial evidence in the file.   For example, the plaintiff does not provide any evidence that the defendant had any prior actual notice of the prohibition on lifetime registered sex offenders being admitted into public housing, perhaps through being denied admittance by a previous public housing agency.   The plaintiff actually “concedes that the defendant did not lie” on his application.   As a result, the plaintiff has failed to provide the Court with any substantial evidence creating a genuine issue of material fact.

The Court finds that no genuine issue of material fact exists, therefore the remainder of its analysis will focus on the questions of law.

2. Federal Law—”Applicant” vs.  “Participant”

At issue in this case is whether a current tenant who participates in federally assisted housing must be evicted due to their status as a lifetime registered sex offender.   The plaintiff argues that the defendant must be evicted due to his lifetime registered sex offender status, pursuant to the Code of Federal Regulations,⁸ the Quality Housing Work Responsibility Act of 1998 (QWHRA),⁹ and a HUD-issued Notice.¹⁰  The defendant argues that the federal law and HUD notice do not mandate termination of a tenancy due to sex offender status;  rather, the mandatory prohibition only applies during the application process when a public housing authority is determining eligibility.¹¹

Notwithstanding the federal regulations and HUD notice, the plaintiff does not cite any case law directly on the issue at bar.   The defendant cites numerous cases to support his contract law argument, and one federal case that most closely addresses the issue at bar.   The U.S. District Court for the State of Maine, in Miller v. McCormick, 605 F.Sup.2d 296 (D.Me.2009), analyzed the issue of lifetime sex offender registrants who are applicants for public housing programs, versus those who are participants, and the effect of the federal regulations.

In Miller, the plaintiff pleaded guilty to one count of child molestation in the first degree in 1996.   As a result, he was required to register as a sex offender in Washington State.   He moved to Massachusetts and applied for and was accepted into a section 8 housing voucher program in 2002.   In 2005, he moved to Maine and “ported” his section 8 voucher.   In October 2006, he purchased a home in Maine with voucher assistance and, one day later, was arrested for failing to register in Maine as a sex offender, as he was required to do.   A month and a half later, Penquis Community Action Program (Penquis), a non-profit corporation that administers on behalf of the Maine State Housing Authority (MSHA) the federal section 8 housing voucher program, notified the plaintiff of its decision to terminate his participation in the section 8 homeownership program in accordance with 24 C.F.R. § 982.552.

While Miller addresses termination of participation in the homeownership program, the court more generally analyzes HUD regulations and federal law pertaining to admission and termination of lifetime sex offender registrants in public housing programs.   The court rejected the magistrate judge's finding, which concluded that “24 C.F.R. § 982.553(c) authorizes a termination of benefits to a program participant because he is a lifetime sex offender registrant.”  Miller v. McCormick, supra, 605 F.Sup.2d 297.   Instead, the court agreed with the plaintiff that the regulations distinguish between an “applicant” and a “participant” in the section 8 homeownership program.

The court found that the plaintiff “had been admitted to the program and the MSHA had been assisting him.   Mr. Miller's status as a participant is confirmed by the parties' stipulation that he was ‘accepted as a participant’ in the program in Massachusetts on October 1, 2002 ․ Using the regulatory framework, Mr. Miller was an ‘applicant’ for some period of time until he became a ‘participant’ upon ‘admission’ to the program on October 1, 2002.   Mr. Miller's status as a participant continued when he ported his voucher to Maine in 2005, and the Court concludes that as of his termination in May 2007, Mr. Miller was a ‘participant’ in the Section 8 tenant-based assistance program.”  Id., 305–06.

The Miller court went on to discuss the relevant federal statutes governing admission to and termination of public housing:  “In 1998, Congress enacted provisions barring from admission into federally assisted housing illegal drug users, alcohol abusers, and sex offenders subject to lifetime registration obligations under state law ․ Specifically, 42 U.S.C. § 13663, entitled ‘Ineligibility of dangerous sex offenders for admission to public housing,’ provides:  (a) In general.   Notwithstanding any other provision of law, an owner of federally assisted housing shall prohibit admission to such housing for any household that includes any individual who is subject to a lifetime registration requirement under a State sex offender registration program.   42 U.S.C. § 13663(a).   A companion provision, entitled ‘Ineligibility of illegal drug users and alcohol abusers,’ was enacted at the same time.  [See 42 U.S.C. § 13661(b).]  These provisions target three populations that Congress wished to bar from federally assisted housing:  lifetime registrants, illegal drug users, and alcohol abusers.   Both provisions mandate that owners of federally assisted housing (in the case of lifetime registrants) and owners and PHAs (in the case of illegal drug users and alcohol abusers) ‘prohibit admission’ to households with at least one member of the targeted population.”  Miller v. McCormick, supra, 605 F.Sup.2d 307.

“Critically, however, when it came to termination from participation in the program as opposed to admission into the program, Congress did not treat lifetime registrants the same way it treated illegal drug users and alcohol abusers.   With respect to only illegal drug users and alcohol abusers, Congress did not merely prohibit admission;  it expressly required termination of their participation.   In a section, entitled ‘Termination of tenancy and assistance for illegal drug users and alcohol abusers in federally assisted housing,’ Congress mandated that owners and PHAs undertake to make changes to their standards and leases to allow for eviction or termination of assistance for these two target populations.”  Id. Also see 42 U.S.C. § 13662(a).

“For whatever reason, however, there is no counterpart to § 13662(a) for lifetime sex offender registrants that requires their termination from participation once they have been admitted into the program.   Thus, the 1998 Act established a regime whereby owners were required to ‘prohibit admission’ to lifetime registrants;  owners and PHAs were mandated to ‘prohibit admission’ to illegal drug users and alcohol abusers;  and, owners and PHAs were required to establish standards to allow them to terminate the tenancies or assistance only for illegal drug users and alcohol abusers.”  Id., at 308.

Section 13663(a) “says nothing about terminating assistance for lifetime registrants.   This omission becomes especially significant when the immediately preceding section of the law, 42 U.S.C. § 13662, is considered.  Section 13662 explicitly addresses the termination of a public housing ‘tenancy or assistance’ for illegal drug users and alcohol abusers, but not lifetime registrants.   Thus, although the language of § 13663(a) provides unequivocal authority for denying a lifetime registrant admission into a Section 8 housing program, neither it nor any other provision of the statute authorizes what it does not mention—the termination of assistance for a lifetime registrant.”   Id., at 312 (emphasis added).

In sum, the Miller court found that “Congress has acted to prevent the admission of illegal drug users, alcohol abusers, and lifetime sex offender registrants into federally assisted housing programs.   Pursuant to that statutory authority, the United States Department of Housing and Urban Development (HUD) promulgated regulations that ban all three groups—drug users, alcohol abusers, and lifetime sex offender registrants—from admission into the programs.   However, the regulations do not treat equally members of these groups who avoid the ban and become program participants.   The regulations expressly provide for the termination of benefits to program participants because they are illegal drug users or alcohol abusers;  the regulations do not expressly provide for termination of benefits to program participants because they are lifetime sex offender registrants.”  Id., at 296–97.

At least two other courts have relied on the Miller court's analysis and application of 42 U.S.C. §§ 13662 and 13663 to find that a public housing authority could not evict a tenant based on his status as a lifetime registrant.

In Bonseiro v. N.Y.C. Dept. of Housing Preservation & Development, 950 N.Y.S.2d 490, 2012 N.Y. Slip Op. 50259 (February 15, 2012), the petitioner sought review of the New York City Department of Housing Preservation and Development's (HPD) termination of his section 8 rent subsidy—which he had received for more than three years—because he was a level two sex offender, subject to a lifetime registration requirement.   The Bonseiro court found that “[a] perusal of [42 U.S.C. § 13663(a) and 24 C.F.R. § 982.553] bear out that they apply only to applicants seeking admission to a federally assisted housing program ․ [T]he legislature intended to treat lifetime sex offender registrants who are applicants for federal housing assistance differently from those who are program participants.”  Id. (emphasis added).   As a result, the court found that “[t]he prohibition of assistance is only applicable to applicants and admission.”  Id.

Additionally, in Perkins–Bey v. Housing Authority of St. Louis County, United States District Court, Docket No. 11 CV 310 (E.D. Missouri March 14, 2011), the defendant Housing Authority of St. Louis County (HASLC) approved the plaintiff's application for section 8 housing assistance in 2004, after meeting with the plaintiff twice and conducting a full background check.   However, the HASLC failed to discover that he was convicted of two counts of rape in 1975.   In 2009, after Congress enacted the Sex Offender Registration and Notification Act (SORNA), the plaintiff registered as a sex offender.   In 2010, HASLC sent the plaintiff a notice of termination of his rental assistance.   A hearing officer affirmed the termination and the plaintiff filed a complaint with the court.   In reviewing the hearing officer's determination and applicable statutes, the court noted that “42 U.S.C. § 13663 mandates only that owners of federally assisted housing prohibit admission to such housing ‘for any household that includes any individual who is subject to a lifetime registration requirement under a State sex offender registration program.’   42 U.S.C. § 13663(a).   The provision governing termination of such tenancy and assistance does not address individuals subject to lifetime registration requirements, however;  instead, it provides only for discretionary termination of those households with a member illegally using a controlled substance, or a member whose illegal use of a controlled substance or abuse of alcohol is determined to interfere with the health, safety, or right to peaceful enjoyment of the premises by other residents.”

The court went on to find that “[t]he implementing regulations are consistent with the statutes.   In other words, while 24 C.F.R. § 982.553 provides for mandatory prohibition of admission when any member of the household is subject to a lifetime registration requirement under a State sex offender registration program, it does not address terminating assistance to such households already receiving assistance.”   The court granted the plaintiff's motion for a preliminary injunction, finding that he had a “great likelihood” of succeeding “in demonstrating [the defendants] violated his rights by discontinuing his Section 8 housing subsidy on the basis that he is required to register as a sex offender.”

While there is no section in any of the regulations relied upon by HACH that defines “participants” and “applicants,” as there is under § 982.553(c), the analysis provided in Miller, Bonseiro, and Perkins–Bey is instructive.   In the present case, the federal regulations relied upon by HACH expressly state that a public housing agency must “prohibit admission ” of a lifetime registered sex offender.   HACH failed to do so.   According to the HUD notice relied on by HACH, a public housing agency “must pursue [an] eviction” action against registered sex offenders.   However, the notice does not specify that a tenant's sex offender status creates an independent legal ground on which to terminate the tenancy.   Put more simply, federal law does not provide for the automatic eviction of a sex offender, once they become a participant in federal housing, solely based on their status as a sex offender.

Based on the foregoing federal regulations and relevant case law, HACH cannot evict the defendant solely because of his status as a lifetime registered sex offender.   As a result, the defendant is entitled to judgment as a matter of law.

II. TRIAL

The Court does not reach the merits of plaintiff's case in chief, as the motion for summary judgment is granted in favor of the defendant.

ORDER

The court grants summary judgment in favor the defendant, finding no genuine issues of material fact, and that the defendant is entitled to judgment as a matter of law.

By The Court,

Hon. Glenn A. Woods

FOOTNOTES

FN1. The Court considered some of the legal arguments made in Plaintiff's Post–Trial Brief, due to the lack of a memorandum of law in support of plaintiff's Response to Defendant's Motion for Summary Judgment..  FN1. The Court considered some of the legal arguments made in Plaintiff's Post–Trial Brief, due to the lack of a memorandum of law in support of plaintiff's Response to Defendant's Motion for Summary Judgment.

FN2. Plaintiff fails to cite any specific material facts that are in dispute.   Plaintiff's Response to Defendant's Motion for Summary Judgment, at page 1..  FN2. Plaintiff fails to cite any specific material facts that are in dispute.   Plaintiff's Response to Defendant's Motion for Summary Judgment, at page 1.

FN3. HACH Application, Defendant's Exhibit C..  FN3. HACH Application, Defendant's Exhibit C.

FN4. Id..  FN4. Id.

FN5. Id., at pages 4, 8..  FN5. Id., at pages 4, 8.

FN6. HACH Dwelling Lease, Defendant's Exhibit A..  FN6. HACH Dwelling Lease, Defendant's Exhibit A.

FN7. On September 14, 2012, the Court granted defendant's Motion to Strike, in part, as to count 2 of the Complaint based on “Lapse of Time.”.  FN7. On September 14, 2012, the Court granted defendant's Motion to Strike, in part, as to count 2 of the Complaint based on “Lapse of Time.”

FN8. 24 C.F.R. § 5.856, states “You must establish standards that prohibit admission to federally assisted housing if any member of the household is subject to a lifetime registration requirement under a state sex offender registration program.”  24 C.F.R. § 966.4(1)(2)(ii)(B), states “(1) Termination of tenancy and eviction ․ (2) Grounds for termination of tenancy.   The PHA may terminate the tenancy only for ․ (ii) Other good cause.   Other good cause includes, but is not limited to, the following ․ (B) Discovery after admission of facts that made the tenant ineligible.”   Emphasis added..  FN8. 24 C.F.R. § 5.856, states “You must establish standards that prohibit admission to federally assisted housing if any member of the household is subject to a lifetime registration requirement under a state sex offender registration program.”  24 C.F.R. § 966.4(1)(2)(ii)(B), states “(1) Termination of tenancy and eviction ․ (2) Grounds for termination of tenancy.   The PHA may terminate the tenancy only for ․ (ii) Other good cause.   Other good cause includes, but is not limited to, the following ․ (B) Discovery after admission of facts that made the tenant ineligible.”   Emphasis added.

FN9. 42 U.S.C. § 13663, entitled “Ineligibility of dangerous sex offenders for admission to public housing,” states in relevant part, “(a) In general ․ an owner of federally assisted housing shall prohibit admission to such housing for any household that includes any individual who is subject to a lifetime registration requirement under a State sex offender registration program.”   Emphasis added..  FN9. 42 U.S.C. § 13663, entitled “Ineligibility of dangerous sex offenders for admission to public housing,” states in relevant part, “(a) In general ․ an owner of federally assisted housing shall prohibit admission to such housing for any household that includes any individual who is subject to a lifetime registration requirement under a State sex offender registration program.”   Emphasis added.

FN10. Notice PIH 2012–28/H 2012–11, “State Registered Lifetime Sex Offenders in Federally Assisted Housing,” states, “owners and agents (O/As) and Public Housing Agencies (PHAs) are prohibited from admitting into federally assisted housing individuals subject to a lifetime registration requirement under a state sex offender registration program ․ O/As and PHAs must pursue eviction or termination for participants subject to a lifetime registration requirement who were erroneously admitted into a federal housing program after June 25, 2001.”   Emphasis added..  FN10. Notice PIH 2012–28/H 2012–11, “State Registered Lifetime Sex Offenders in Federally Assisted Housing,” states, “owners and agents (O/As) and Public Housing Agencies (PHAs) are prohibited from admitting into federally assisted housing individuals subject to a lifetime registration requirement under a state sex offender registration program ․ O/As and PHAs must pursue eviction or termination for participants subject to a lifetime registration requirement who were erroneously admitted into a federal housing program after June 25, 2001.”   Emphasis added.

FN11. HACH Administrative and Continued Occupancy Plan, Appendix V Sex Offender Policy, states “The law therefore, does not provide for eviction of current tenants based on their status as lifetime registered sexual offenders.”   Defendant's Motion for Summary Judgment, Exhibit 1..  FN11. HACH Administrative and Continued Occupancy Plan, Appendix V Sex Offender Policy, states “The law therefore, does not provide for eviction of current tenants based on their status as lifetime registered sexual offenders.”   Defendant's Motion for Summary Judgment, Exhibit 1.

Woods, Glenn A., J.