9850062, Brown - Ruling re R's Motion

Commission on Human Rights and Opportunities, ex rel. : CHRO Nos. 9850062, 9850063, Bradley Brown, Sr., et al., Complainants 9850064, 9850065, 9850068, 9850069
v.
Creative Management and Realty Co., and Martin D’Amico, Respondents
November 16, 1999 

RULING ON RESPONDENTS’ MOTION TO DISMISS

This matter, which encompasses six (6) consolidated complaints, collectively involves the claims of discrimination asserted by two families against the management company and property manager of the apartment complex in which they reside(d) as tenants.

The Respondents, Creative Management and Realty Co. and Martin D’Amico, have filed a Motion to Dismiss dated September 30, 1999, arguing that the various Connecticut statutory violations alleged in the six complaints are not applicable to the circumstances at bar.

The issues presented are: 

For the reasons hereinafter set forth, it is concluded that:

Accordingly, the Motion to Dismiss is DENIED in part and GRANTED in part.

Facts

As mentioned above, there are six complainants in this matter, all of whom comprise two families.

The Complainants, Bradley Brown, Sr., his wife, Veronica C. Brown, and their minor son, George W. Brown III, each allege race and disability discrimination by the Respondents. Mr. Brown alleges he is white and suffers from a back injury that results in him having a handicapped parking sticker from the Department of Motor Vehicles (Complaint ¶ 1). He requested reasonable accommodation from the Respondents in the form of an assigned parking space closer to his apartment within the complex (¶ 1). Veronica Brown is "of Hispanic and Asia[n] heritage, Filipino," (¶ 1) and claims that she was racially harassed by another tenant in the complex, Ms. DeLaCruz (¶ 2). George Brown III, who is Amer-Asian (¶ 9), alleges he has been racially harassed and threatened physical harm by Ms. DeLaCruz. He suffers from Asperger’s Disorder which makes him "extremely susceptible to stress (¶ 3)." Mr. Brown requested that Ms. DeLaCruz be moved to another apartment further from theirs as a reasonable accommodation to George’s condition (¶ 3).

The second family also alleges race and disability discrimination by the Respondents. Reginald McLellan is white and also suffers from a back injury so that he possesses a handicapped parking sticker from the Department of Motor Vehicles (¶ 1). He requested a closer assigned parking space at the same time as Mr. Brown as a reasonable accommodation (¶ 1). Diane McLellan is white (¶ 2) and is allergic to pesticides (¶ 1), but was allegedly forced by the Respondents to move into another apartment that had been sprayed with pesticides (¶ 12). Mark Allen McLellan is white and hearing impaired (¶ 3). He has been physically threatened by Ms. DeLaCruz, and his father requested that Ms. DeLaCruz be moved as a reasonable accommodation (¶ 3).

The general facts asserted in all six complaints are essentially that Mr. Brown and Mr. McLellan met with Respondent D’Amico to address various concerns (Complaints,

¶ 1). First, they requested permission to regularly park in parking spaces closest to their apartments due to their respective back injuries (¶ 1). Respondent D’Amico allegedly refused this request due to a policy against assigned spaces (¶ 1). Second, Mr. Brown and Mr. McLellan informed Respondent D’Amico of repeated and persistent racial and ethnic harassment by Ms. DeLaCruz (¶ 1). Respondent D’Amico allegedly responded there was nothing he could do as that tenant is a racial minority (¶ 1). Mr. Brown complained of the continued harassment a second time to the management company a year later, and was again informed that nothing could be done (¶ 2). A community meeting was held with the Respondent management company, Mr. Brown, Mr. McLellan and several other tenants complaining of Ms. DeLaCruz’ harassment of many of the residents within the complex, to which the Respondents again reiterate that they would do nothing (¶ 5). The Respondents subsequently served a Notice to Quit on both the Browns and the McLellans (¶ 6). Thereafter the Browns, the McLellans and the Respondents agreed that the Browns and the McLellans would move to a building away from

Ms. DeLaCruz within three (3) weeks, and each family would be provided handicapped parking (¶ 8). When this did not occur, the Browns informed the Respondents that they would be moving out of the complex to a house (¶ 10). Two other Notices to Quit were served on the Browns (¶¶ 11, 14). The McLellans, however, were finally moved to a smaller apartment that had been sprayed with pesticides, in spite of Ms. McLellan’s allergies. The McLellans are still waiting for the promised handicapped parking space (¶ 12). It is alleged by all six Complainants that the above actions constitute violations of several subsections of General Statutes § 46a-64c and of Title VIII of the Civil Rights Act of 1968, 42 U.S.C. §§ 3601 et seq., also known as the federal Fair Housing Act.

Standard

The Respondents have entitled their motion a motion to dismiss, although they do not assert a lack of subject-matter jurisdiction by this tribunal over any of the claims. Instead, they appear to state that the facts alleged by the Complainants do not support the statutory claims and therefore should be dismissed. Although there is no objection on the basis of this misnomer, this motion more closely resembles a motion to strike.

"A motion to strike is the proper means of attacking a pleading that on its face is legally insufficient." Capers v. Lee, 239 Conn. 265, 282, 684 A.2d 696 (1996). "The purpose of a motion to strike is to contest . . . the legal sufficiency of the allegations of any complaint. . . to state a claim upon which relief may be granted." Faulkner v. United Technologies Corp. 240 Conn. 576, 580, 693 A.2d 293 (1997). In reviewing a motion to strike. . . every favorable inference must be given to the pleading of the nonmoving party. Amodio v. Cunningham, 182 Conn. 80, 82, 438 A.2d 6 (1980). "If facts provable in the complaint would support a cause of action, the motion to strike must be denied." Faulkner, at 580. "A motion to strike is properly granted if the complaint alleges mere conclusions of law that are unsupported by the facts alleged." Novametrix Medical Systems, Inc. v. BOC Group, Inc., 224 Conn. 210, 215, 618 A.2d 25 (1992).

On the other hand, "[a] motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction." Johnson v. Dept. of Public Health, 48 Conn.App. 102, 107, 710 A.2d 176 (1998). A motion to dismiss may be treated as a motion to strike where appropriate. McCutcheon & Burr, Inc. v. Berman, 218 Conn. 512, 527, 590 A.2d 438 (1991). Therefore, the Respondents’ Motion to Dismiss is here treated as a Motion to Strike.

Discussion

General Statutes § 46a-64c(a)(2)

The Respondents argue that General Statutes § 46a-64c(a)(2) applies only to the initial rental transaction, and, since none of the Complainants has alleged discrimination at the time the apartments were first rented to them, this claim should be stricken.

The Commission cites case law to the effect that this statute actually applies past the initial transaction.

Section 46a-64c(a)(2) provides:

"As with any issue of statutory interpretation, our initial guide is the language of the statute itself." Federal Deposit Ins. Corp. v. Peabody, N.E., Inc. 239 Conn. 93, 102, 680 A.2d 1321 (1996). "In interpreting the language of a statute, the words must be given their plain and ordinary meaning and their natural and usual sense unless the context indicates that a different meaning was intended." In Re Darlene C., 247 Conn. 1, 10, 717 A.2d 1242 (1998).

It appears clear to me, from merely reading the language of the statute, that the words "in the provision of services or facilities in connection therewith" necessarily indicate that the protection extends beyond the initial rental transaction, and actually reaches through the entire rental term. The case law cited by the Commission also supports my reading.

The superior court in Gomes v. Casagmo Condominium Association, Inc., 1999 WL 566862 (Conn.Super.) No. 331907, July 23, 1999 (Moraghan, J.) concluded that:

Consequently, the court sustained the plaintiffs’ allegations of discrimination by the defendant-condominium association that had occurred during their ownership of their unit, well after the sale transaction.

Additionally, the language within subsection (a)(2) is almost identical to that in the federal fair housing law, 42 U.S.C. § 3604(b). Our Supreme Court has ruled that we may be guided by the federal case law interpreting the federal fair housing laws in reviewing claims pursuant to § 46a-64c. Chestnut Realty, Inc. v. CHRO, 201 Conn. 350, 358, 514 A.2d 749 (1986). In a federal case interpreting § 3604(f), Schroeder v. De Bertolo, 879 F.Supp. 173 (D. Puerto Rico, 1995), the court ruled that the condominium owner "had the continuing right to quiet enjoyment and use of her condominium unit and common areas in the building. Her right to obtain a dwelling free from discriminatory conduct of others encompassed the right to maintain that dwelling."

Therefore, based on the above federal and state case law on the subject, it is here concluded that § 46a-64c(a)(2) does, in fact, apply beyond the initial rental transaction and the Respondents’ Motion to Dismiss (Strike) the Complainants’ allegations based on that statute is denied.

General Statutes § 46a-64c(a)(3)

The Respondents also summarily interpret General Statutes § 46a-64c(a)(3) to solely prohibit discriminatory advertising. Because this case has nothing to do with advertising, they argue, this claim should be dismissed (stricken).

The Commission points to the express language of the statute as well as federal case law that demonstrates this subsection has been held to apply to verbal statements as well as to advertisements.

Section 46a-64c(a)(3) states:

As with subsection (a)(2) discussed supra, a simple reading of the language of the statute reveals that it does not solely apply to advertising. The section does not allow a person "to make. . . any . . . statement." Statements are not defined solely as printed words. Again, if the Respondents had attempted any research of their argument, it would have also been obvious to them that the courts do not agree.

The wording within this subsection of the state statute is virtually identical to its federal counterpart, 42 U.S.C. § 3604(c). Therefore, the federal case law may properly be relied on for guidance. Chestnut Realty, Inc. v. CHRO, 201 Conn. 350, 358, 514 A.2d 749 (1986). All of the cases cited in the Commission’s brief hold that verbal statements of discriminatory preference constitute violations of this section of the Fair Housing Laws. See Soules v. United States Department of Housing and Urban Development, 967 F.2d 817, 824 (2d Cir.1992)(applies an ordinary listener standard, which is interpreted as whether an ordinary listener, in light of all of the circumstances, would have found an impermissible preference); Stewart v. Furton, 774 F.2d 706, 708-09 (6^th Cir.1985) (statement made that black tenants not allowed in trailer park because the white tenants might move out found to be a violation); U.S. v. L&H Land Corporation, Inc., 407 F.Supp 576, 578-80 (S.D.Fla.1976)(statement made that blacks not even allowed as guests of white tenants found to be a violation); U.S. v. Gilman, 341 F.Supp 891, 896-97 (S.D.N.Y.1972) (statement made that tenant referring other potential tenants should make sure they were white in order to maintain desired clientele found to be in violation).

Based on the above, the Complainants have alleged in all of their complaints preferential verbal statements made by the Respondents and thus the Respondents’ Motion to Dismiss (Strike) claims made pursuant to § 46a-64c(a)(3) is denied.

III. General Statutes § 46a-64c(a)(6)(B) and (C)

The Respondents’ third argument is that General Statutes § 46a-64c(a)(6)(B) and (C) do not apply to all of the Complainants, although all of the Complainants allege violations of those sections. The Respondents argue that not all of the Complainants have alleged that they are disabled, and that the delay in providing a handicapped parking space to Mr. Brown and Mr. McLellan does not affect the other complainant members of Mr. Brown’s and Mr. McLellan’s families.

The Commission counters that all of the Complainants have standing to allege violations of the statutes either as disabled individuals, themselves, or as individuals associated with disabled individuals.

General Statutes § 46a-64c(a)(6)(B) applies subsection (a)(2), discussed supra, to mentally and physically disabled persons. There is no case law to assist in my interpretation, however a plain reading of this statute shows it protects three categories of persons from discriminatory treatment: (1) disabled individuals who actually own or rent the dwelling unit; § 46a-64c(a)(6)(B)(i); (2) nondisabled individuals who reside with a disabled person; § 46a-64c(a)(6)(B)(ii); and (3) nondisabled individuals who associate with disabled guests, friends, family members or other individuals who may visit but do not reside in the dwelling unit; § 46a-64c(a)(6)(B)(iii).

Furthermore, subsection (C) of General statutes § 46a-64c(a)(6) sets forth specific acts which shall be considered as violations of subsection (a)(6). Such acts are: refusing reasonable modifications at the tenant’s expense; § 46a-64c(a)(6)(C)(i); (2) refusing to relax particular rules, policies or services in order to allow a disabled tenant an equal ability to use and enjoy his dwelling; § 46a-64c(a)(6)(C)(ii); and (3) failing to construct certain multi-family dwellings constructed after a certain date in accordance with the building codes adapted to make buildings handicapped accessible. § 46a-64c(a)(6)(C)(iii).

If we review each of the six Complainants’ allegations, each alleges facts consistent with subsections (B) and (C) of General Statutes § 46a-64c(a)(6). Mr. Brown claims to be disabled, himself, in that he suffers from a back injury (Complaint, ¶ 1). He apparently requested an assigned space closer to his apartment as a reasonable accommodation, however the Respondents allegedly denied this request due to its policy against assigned spaces (¶ 1). Mr. Brown has therefore alleged facts sufficient to sustain claims pursuant to § 46a-64c(a)(6)(B)(i) and (C)(ii). Ms. Brown alleges that she lives with her husband who is disabled due to a back injury (¶¶ 1, 2). She also alleges that she has been denied enjoyment of the premises due to another tenant’s harassment of her, yet the management company refuses to assist or involve itself in the problem (¶¶ 2, 2, and 5). Ms. Brown has alleged facts sufficient to sustain claims pursuant to § 46a-64c(a)(6) (B)(ii) and (C)(ii). George Brown III claims that his father is disabled due to a back injury (¶ 1), and that he is disabled from Asperger’s Disorder (¶ 3). His father requested, as a form of reasonable accommodation, moving the tenant that had been harassing the whole family, and the Respondents replied that they did not have a policy of moving problem tenants (¶ 3). George Brown III has alleged facts sufficient to sustain claims pursuant to § 46a-64c(a)(6)(B)(i) and (ii) and (C)(ii).

As for the McLellans, Mr. McLellan also claims that he is disabled due to a back injury, and that he has requested a parking space closer to his apartment but the Respondents denied said request due to their policy against assigned spaces (¶ 1). He, like Mr. Brown, has asserted facts sufficient to sustain his claims under § 46a-64c(a)(6)(B)(i) and (C)(ii). Ms. McLellan alleges she lives with her husband, who has a back injury, and that she has been denied enjoyment of the premises due to the harassment of herself and her family by another tenant (¶ 1, 2, and 2). Therefore, she has alleged facts sufficient to sustain her claims pursuant to § 46a-64c(a)(6)(B)(ii) and (C)(ii). Mark Allen McLellan claims he is hearing-impaired and that he has been denied enjoyment of the premises due to the harassment of himself and his family by Ms. DeLaCruz and their lack of a policy regarding the moving of problem tenants (¶ 2, 3, 4). Mark Allen McLellan has alleged claims sufficient to sustain his claims pursuant to § 46a-64c(a)(6)(B)(i) and (C)(ii).

Based on the above, the Respondents’ Motion to Dismiss (Strike) the Complainants’ claims pursuant to § 46a-64c(a)(6)(B) and (C) is denied as to all six Complainants.

General Statutes § 46a-64c(a)(7)

The Respondents also state that their conduct, as alleged by the Complainants, is not a "residential-real-estate-related transaction" as defined in General Statutes § 46a-64b, and therefore, this claim should be dismissed (stricken). The Commission argues that the Complainants must be presented the opportunity to present additional facts which support this claim at the public hearing, and that the Notices to Quit, interference with the purchase of a house, interference with tenant relocations, "all of which affected financial assistance for purchasing and/or maintaining a dwelling" sufficiently support the statutory claims. I cannot agree.

General Statutes § 46a-64c(a)(7) provides:

"Residential real-estate-related transaction" is defined in General Statutes § 46a-64b(9) as:

In a review of the plain language of the above statutes, it is clear that this subsection does not apply to the circumstances alleged by the six Complainants. Attempting to paraphrase these subsections more simply: subsection (a)(7) specifically prohibits discrimination by persons or entities in (1) making available (i) loans or (ii) the purchasing of loans that are each to be used specifically toward anything having to do with residential property or other property that is secured by residential property; and (2) selling, brokering or appraising residential real property.

None of the Complainants has alleged that either of the Respondents discriminated against them in: (1) either the making of a loan or the purchasing of a loan; (2) the selling of property, either as buyer, seller or real estate agent; or (3) the appraisal of property. While the Brown Complainants do allege that they had purchased another residential property, the Respondents are not alleged to be the sellers, buyers or agents in that transaction. In fact, it was the Complainants who informed the Respondents of the purchase in the first place (¶ 10, 13). Therefore, this subsection does not apply to the facts at bar and the Respondents’ Motion to Dismiss (Strike) is granted as to claims asserted in all six complaints pursuant to General Statutes § 46a-64c(a)(7).

Claims of Racial Discrimination By White Claimants

The Respondents assert in their final argument that all claims by the white complainants of racial discrimination must be dismissed (stricken) because they are not members of a protected class. The Commission supplies a two-sentence response that the complainants are, in fact, protected by the state and federal fair housing laws based on their race and color.

The case, Jordan v. Khan, 969 F.Supp. 29 (N.D.Ill.1997), cited by the Commission, is directly on point. There, respondents made the same claim that the white plaintiffs were not a protected class under the Fair Housing Act. The court holds that the statute specifically provides in § 3602(b) that it is unlawful to "discriminate against any person in the terms, conditions, or privileges of sale or rental of a dwelling, or in the provision of services or facilities in connection therewith, because of race, color . . ." Id. at 30. Because, the court reasons, the statute does not exclude white individuals from its definition of "person," "under the plain language of the Act, plaintiffs state a claim." Id.

Similarly, the language within our housing statutes, as set forth in earlier sections within this ruling, does not exclude white individuals from protection. Therefore, it is here concluded that white individuals are, in fact, protected under the state and federal fair housing laws, just as the Supreme Court has declared that they are a protected class under Title VII. See McDonald v. Santa Fe Trail Transp. Co., 427 U.S. 273, 278-79, 96 S.Ct 2574 (1976). See also Cameron v. Saint Francis Hospital and Medical Center, 1999 WL 512081 (D.Conn.), No. 3:98CV2380(GLG), July 9, 1999 (Goettel, J.). Based on the above, the Respondents’ Motion to Dismiss (Strike) these claims is denied.

Conclusion

For the foregoing reasons, the Respondents’ Motion to Dismiss (Strike) is denied in part and granted in part. The Motion to Dismiss (Strike) is granted solely as to General Statutes § 46a-64c(a)(7). The Motion to Dismiss (Strike) is denied as to all other claims.

It is so ordered this 16^th day of November, 1999 at Hartford, Connecticut.

______________________________

Hon. Lisa B. Giliberto
Presiding Human Rights Referee

Cc:  Patrick J. Wall, Esq.
Emily V. Melendez, Assistant Attorney General
Elias A. Alexiades, Esq.