Opinion
DBDCV176022412S
10-01-2019
Carmen LOPEZ v. WILLIAM RAVEIS REAL ESTATE, INC. et al.
UNPUBLISHED OPINION
OPINION
Kowalski, J.
Before the court is the plaintiff’s motion to reargue and reconsider, dated April 18, 2019 (#177.00), as well as the defendants’ objections (#178.00 and #180.00) and the plaintiff’s reply memoranda (#179.00 and #182.00). The motion was timely filed, and at the June 4, 2019 oral argument all parties consented to this court considering the substantive issue raised in the motion, as such consideration may obviate the need for future motion practice. Given that consent, the motion (#177.00) is granted, and the court issues the following addendum to its memorandum of decision, dated April 9, 2019 (#175.00) (Memorandum of Decision), which will more specifically address the plaintiff’s claims based on General Statutes § 46a-64c(a)(3).
A. Additional Findings of Fact
The evidence presented at trial established that the defendant, Sarah Henry, first learned that the plaintiff, Carmen Lopez, would be utilizing Section 8 assistance on March 15, 2017. Henry and the plaintiff’s real estate agent, Sarah Becker, exchanged numerous emails and text messages that day. Of those, the following messages from Henry to Becker specifically refer to the Section 8 rental assistance program:
These messages are taken from the defendants’ Exhibit X. Two messages from Becker to Henry are also included, for the sake of context.
8:29 a.m., email from Henry to Becker:
Hi Sarah, I wasn’t aware that this was a Section 8 tenant. I have to speak with my client today. My client is looking for a security deposit for this rental? I will give you a call later today. Thanks, sarah [sic]
9:46 a.m., email from Becker to Henry:
Hello, To whom should the check be made out to? I can be there for housing inspection if you like, but will need access to the basement. It’s oddly one of the best parts of my working with housing- free inspections. I had a state paid tenant in one of my buildings for 8+ years (not Sec 8 but similar), the direct deposit payments and yearly inspections were great really- that agency monitored the condition of the apartment, and they kept a paper trail and photos. No disagreements over who did what to a place, plus I knew I’d get paid = easier to sleep at night. Plus to get a voucher the state has already checked out the tenant financially and their background, so that is a huge benefit to a landlord as well. Win-win. He hasn’t had anyone with voucher assistance before? You can let him know that most of the rent will come from the tenant, and a part from the state via direct deposit, and other than that it’s pretty normal. Let me know how I can help.:-) Will need to get paperwork in ASAP so can have place inspected fast to meet April 1 start date. Usually a place may fail the first time on a stuck/broken window or no GIF outlets, basic safety issues that should be in place for any tenant, and then passes on second trip. If windows function OK there’s GFI outlets by sinks, should be in good shape, place looks nice.
10:41 a.m., text message from Henry to Becker:
Good morning I was not aware of the Section 8 when I spoke with you I’m not sure my client would want to wait. I know it takes a couple of weeks for the process and he wants to run [sic] it by April 1st I will speak with him today and let you know thanks
12:31 p.m., text message from Henry to Becker:
I will speak with tony [sic] later today to make a decision about the rental.
1:36 p.m., text message from Henry to Becker:
You did not inform me of section 8 when I spoke with you about the offer. I have to present that to my client. Im [sic] not sure if wants to want [sic] through the process. It is up to my client. We do not have a signed offer yet.
1:50 p.m., text message from Henry to Becker:
My client has another offer he’s also looking at we do not have an offer without a signed lease. You were not upfront with me with Section 8 and I didn’t presented [sic] it to my client that way as well. It’s up to my client what he would like to do with the offers as well as the waiting. I will get back to you tonight thank you
1:52 p.m., text message from Becker to Henry:
It is not necessary to identify client as having a voucher to all places she applies to, I respect her privacy, only that income is sufficient
2:23 p.m., text message from Henry to Becker:
Yes, it is necessary by law. It needs to be on the offer if paying from a 3rd party. My client will let me know tonight either way thanks
7:09 p.m., text message from Henry to Becker:
Hi, My client has decided to go with the other offer, Sorry.
B. Additional Discussion on Plaintiff’s General Statutes § 46a-64c(a)(3) Claims
The plaintiff contends that Henry’s statements are discriminatory, both facially and in context, because "Henry made repeated statements expressing a dispreference for the Section 8 program" after learning of the plaintiff’s intention to use Section 8 assistance. The defendants counter that Henry’s statements are not discriminatory, particularly when considered in context.
Despite some differences between the Connecticut state statutes and their federal fair housing counterparts, Connecticut courts are guided by cases interpreting the federal fair housing laws; 42 U.S.C. § 3601 through 3631; when addressing claims under General Statutes § 46a-64c. See Miko v. Commission on Human Rights and Opportunities, 220 Conn. 192, 202, 596 A.2d 396 (1991). Section 3604(c) of title 42 of the United States Code is the equivalent to General Statutes § 46a-64c(a)(3). The parties agree that when evaluating a statement claim under § 46a-64c(a)(3), the "ordinary listener" standard applies. See Soules v. United States Dept. of Housing & Urban Development, 967 F.2d 817, 824 (2d Cir. 1992). The ordinary listener is "neither the most suspicious nor the most insensitive of our citizenry." See id. Further, "an ordinary listener" hears statements in context. Cf. Fordham v. Islip Union Free School District, 662 F.Supp.2d 261, 274 (E.D.N.Y. 2009) (noting that in the defamation context, the court must view the statements in context as the literal meaning of the words does not always coincide with their meaning in a grander setting); Henneberry v. Sumitomo Corp. of America, United States District Court, Docket No. 04 Civ. 2128 (PKL) (S.D.N.Y. Apr. 27, 2005) (remarking that in the defamation context, the court should examine the material in question from the perspective of an ordinary listener and consider the statements in the immediate context of the communication as a whole and the broader context in which the statements were published).
General Statutes § 46a-64c provides in relevant part: "(a) It shall be a discriminatory practice in violation of this section: ... (3) To make, print or publish, or cause to be made, printed or published any notice, statement, or advertisement, with respect to the sale or rental of a dwelling that indicates any preference, limitation, or discrimination based on race, creed, color, national origin, ancestry, sex, gender identity or expression, marital status, age, lawful source of income, familial status, learning disability, physical or mental disability or status as a veteran, or an intention to make any such preference, limitation or discrimination."
Title 42 of the United States Code, § 3604, provides in relevant part: "As made applicable by section 3603 of this title and except as exempted by sections 3603(b) and 3607 of this title, it shall be unlawful ... (c) To make, print, or publish, or cause to be made, printed or published any notice, statement or advertisement, with respect to the sale or rental of a dwelling that indicates any preference, limitation or discrimination based on race, color, religion, sex, handicap, familial status, or national origin, or an intention to make any such preference, limitation, or discrimination." Although lawful source of income is not included as a basis of discrimination in 42 U.S.C. § 3604(c), Connecticut is one of approximately fifteen states in which source of income or receiving public assistance may form the basis for a discrimination claim. See, e.g., Del. Code Ann. tit. 6, § 4603(b) (Delaware); Mass. Gen. Laws Ann. ch. 151B, § 7B (Massachusetts); N.Y. Exec. Law § 296 (New York).
Also, the United States Court of Appeals for the Second Circuit has held that a factfinder may look into a speaker’s intent in making the allegedly discriminatory statement "not because a lack of design constitutes an affirmative defense to [a 42 U.S.C. § 3604(c)] violation, but because it helps determine the manner in which a statement was made and the way an ordinary listener would have interpreted it." Soules v. United States Dept. of Housing & Urban Development, supra, 967 F.2d 825. At the end of the day, however, the touchstone of the inquiry is the message conveyed, and how it could have been interpreted by the ordinary listener. See Rodriguez v. Village Green Realty, Inc., 788 F.3d 31, 53 (2d Cir. 2015).
Therefore, this court must determine whether Henry’s statements convey a preference against Lopez to an ordinary listener, hearing the statements in context. In its Memorandum of Decision, this court has previously found that Lopez was in a protected class at all times relevant hereto (#175.00). The plaintiff cites to Viens v. America Empire Surplus Lines Ins. Co., 113 F.Supp.3d 555, 559 (D.Conn. 2015), as presenting the most similar facts to the present action in support of her claim that Henry’s statements are facially discriminatory. See Pl.’s Post-Trial Br., p. 10. In Viens, the plaintiffs owned multi-unit rental properties, and their tenants included several individuals who were utilizing Section 8 assistance. Viens v. America Empire Surplus Lines Ins. Co., supra, 113 F.Supp.3d 558. The properties were insured by the defendant. Id., 558-59. With respect to one of the properties, the defendant issued notice of nonrenewal, "stating that the policy would be canceled effective April 2014 for the stated reason that ‘RISK NO LONGER MEETS CARRIER UNDERWRITING GUIDELINES’ with a handwritten note stating ‘Subsidized Housing- Section 8." (Emphasis in original.) Id., 558. The plaintiffs "were later informed that the nonrenewal was the result of the number of tenants receiving Section 8 assistance at their properties." Id.
With respect to another of the properties insured by the defendant, a representative of the defendant asked the plaintiff "whether any ‘Section 8 tenants’ resided there," and when the plaintiff responded in the affirmative, "an underwriter from [the defendant] told [the plaintiff] that [the defendant] had understood there to be no Section 8 tenants at the property and because two of the three units were occupied by such tenants, she would have to pay an additional yearly premium of $575 or face cancelation of both her property and liability policies." Viens v. America Empire Surplus Lines Ins. Co., supra, 113 F.Supp.3d 559. In denying the defendant’s motion to dismiss the plaintiff’s claim based on § 46a-64c(a)(3), the court found that the plaintiffs "adequately alleged that Defendant made and printed statements that conveyed a prohibited preference against Section 8 tenants." Id., 564.
The statements made by Henry in the present action, when considered in context, are quite different from and convey a very different message than the statements in Viens. In Viens, the defendant’s statements conveyed the clear message that either an insurance policy was not being renewed or that premiums would increase because tenants were utilizing Section 8 assistance. See Viens v. America Empire Surplus Lines Ins. Co., supra, 113 F.Supp.3d 559. In the present action, upon learning that Lopez intended to use Section 8 assistance, Henry made no statement which conveys the message that she was disinclined to proceed with a prospective Lopez tenancy because of Section 8 program participation. Henry’s sole concern was whether an April 1 occupancy date would still be possible. Although Henry did express displeasure with Becker for failing to let her know that Lopez would be a Section 8 tenant, Henry continued to engage with Becker, and even forwarded a sample lease for a potential Lopez tenancy to Anthony Vaccaro.
However, from Becker’s messages and conduct on March 15, it appears that Becker immediately jumped to the conclusion that Lopez’ Section 8 participation was a problem. After Henry sent her first email of the day to Becker at 8:29 a.m., Becker responded with a lengthy email to Henry at 9:46 a.m., which addressed many issues related to the Section 8 program, including the inspection process. In that email, Becker mistakenly assumed that Vaccaro may have never rented to a Section 8 tenant before. In reality, Vaccaro had rented several apartments to Section 8 tenants and was favorably predisposed to renting to Section 8 tenants.
Then, in an exchange of messages between Becker and Lopez beginning at 10:59 a.m., Becker asked Lopez if she could call her housing contact because "the landlord is a flight risk" and is "trying to back off which is illegal and I will report them." Becker continued, "I have another tenant that had this problem, we sued with the help of state of CT and won in court, recently. Tenant got a lot of money. A lot. So no worries yet ..." By 1:35 p.m., Becker messaged Lopez that "I called the president of the real estate board. If they do continue with the other offer (that suddenly exists) you have legal case against landlord & his agent. Minimum fine is around $5k to them." By 9:05 p.m., Becker told Lopez that she had a "perfect paper trail on this discrimination case and am reporting to state fair housing department" and had identified counsel who was willing to help her pursue a discrimination claim.
In its Memorandum of Decision, this court found facts related to Becker’s handling of the proposed transaction on behalf of Lopez between March 8 and March 15, which may be categorized as uneven at best, particularly when compared to Peralta, who, on behalf of Thompson and Dyer, swiftly made a complete offer which guaranteed an April 1 occupancy (#175.00). These facts provide essential context for Henry’s statements.
Henry’s statements do not convey a rejection or disfavor of a Section 8 tenancy. Rather, they convey a legitimate concern that Lopez would not be able to occupy the premises by April 1, especially when considered against the backdrop of Becker’s handling of the proposed transaction up to that point in time. The mere inclusion of the words "Section 8" in Henry’s statements does not render those statements discriminatory. The statements made by Henry, considered in the context of the communications between Henry and Becker and of the other evidence presented at trial, would not have been understood as discriminatory by an ordinary listener and therefore do not violate § 46a-64c(a)(3).
C. Conclusion
Based on the foregoing, the plaintiff has failed to establish the facts necessary to prove a violation of General Statutes § 46a-64c(a)(3) in that she has failed to prove that Henry made a statement with respect to the rental of the premises that indicates any preference, limitation, or discrimination based on the plaintiff’s lawful source of income. Consequently, the court need not address the claims against the defendants William Raveis Real Estate, Anthony Vaccaro and Eve Vaccaro predicated on Henry’s statements, and judgment enters for the defendants on the claims based on General Statutes § 46a-64c(a)(3).