Opinion
Nos. CV 94 4031061 S, CV 95 4031060 S
June 6, 2011
STATEMENT OF CASE AND PROCEDURAL HISTORY
Patricia Hanson and Patricia Roper (the relators) filed separate complaints with the plaintiff in each case, the commission on human rights and opportunities (commission), alleging that the defendant in each case, Sullivan Associates, had violated § 46a-64c by refusing rentals to the relators because they expected to pay for their housing using their lawful source of income, namely, housing assistance from the state section 8 program. The commission filed petitions in the Housing session of the Superior Court on behalf of the relators. Commission on Human Rights and Opportunities v. Sullivan Associates, 250 Conn. 763, 766 (1999) ( Sullivan I). The defendant, denying that it had discriminated against the relators, alleged that its refusal to rent was based on its uniform policy of insisting on the terms of its own standard lease and its own standard income requirements. Id. In addition, by way of special defense, the defendant raised constitutional objections to § 46a-64c if it were applied as construed by the commission. Id.
General Statutes § 46a-64c(a)(1) provides in relevant part that "[i]t shall be a discriminatory practice in violation of this section [t]o refuse to sell or rent after the making of a bona fide offer, or to refuse to negotiate for the sale or rental of, or otherwise make unavailable or deny, a dwelling to any person because of race, creed, color, national origin, ancestry, sex, marital status, age lawful source of income or familial status." Lawful source of income is defined in Connecticut General Statutes § 46a-63(3) as "income derived from Social Security, supplemental security income, housing assistance, child support, alimony or public or state administered general assistance." Here, the relators alleged that the defendant discriminated against them by refusing to rent to them because the legal source of income which would have been used to pay for their rent would have been section 8 subsidies.
The filing of the complaints pursuant to § 46a-82 followed a determination of reasonable cause on the complaints and, pursuant to § 46a-83(d)(2), the defendant's election to proceed by civil action. The petitions of the two relators subsequently were consolidated.
The trial court, Cocco, J., concluded that the defendant had not violated the statute and, accordingly, rendered judgments on its behalf [ 22 Conn. L. Rptr. 463]. Id. The commission appealed from the judgments of the trial court to the Appellate Court, and the Supreme Court transferred the appeal to its court pursuant to Practice Book § 65-1 and General Statutes § 51-199(c). The Supreme Court reversed the judgments of the trial court and remanded the cases for a new trial "limited to the issue of whether the relators had insufficient income within the meaning of § 46a-64c(b)(5) and, in the event that the commission prevails on the issue of the defendant's liability, for a hearing to determine the appropriate remedy." Id., 793. The parties agreed to bifurcate the trial into liability and damages stages.
The trial court did not reach the defendant's constitutional arguments that requiring compliance with § 46a-64c would impose "significant burdens" on the defendant and would violate the supremacy clause and the fourteenth amendment of the United States constitution and article first, § 11, of the Connecticut constitution. The defendant did not renew its constitutional arguments on appeal, with the exception of a preemption argument, which it offered as an alternative argument.
Connecticut General Statutes § 46a-64c(b)(5) provides that "the provisions of this section with respect to the prohibition of discrimination on the basis of lawful source of income shall not prohibit the denial of full and equal accommodations solely on the basis of insufficient income." The defendant claimed that the relators had insufficient income and therefore its denial of rental of its property to them was appropriate. The Supreme Court in Sullivan I remanded the case for a trial on the limited issue of whether the relators had insufficient income.
This court heard evidence on the issue of liability over the course of four days of trial in May 2009. The parties submitted post-trial briefs on July 13, 2009 and the court concluded, in a memorandum of decision filed November 9, 2009 [ 48 Conn. L. Rptr. 783], the defendant failed to meet its burden of proving that the relators, at the time they were denied access to the rental property, had insufficient income to fall under the exception in § 46a-64c(b)(5). The court further concluded that the defendant, therefore improperly denied the relators access to its rental property and discriminated against the plaintiffs in violation of General Statutes § 46a-64c. The court took further evidence concerning the relators' claims for damages on July 13, 2010 and heard argument on the commission's claim for a civil penalty on November 3, 2010. The court permitted the parties to submit simultaneous post-trial briefs on the relators' damages claims and the commission's civil penalty on December 3, 2010 and simultaneous reply briefs on January 3, 2011.
DISCUSSION A DAMAGES
Pursuant to statute, an individual plaintiff aggrieved by a violation of General Statutes § 46a-64c is entitled to both compensatory damages including but not limited to expenses incurred in obtaining alternate housing, and other costs actually incurred as a result of such discriminatory practices as well as punitive damages including reasonable attorneys fees not to exceed $50,000. General Statutes §§ 46a-89(b)(2); 46a-86(c). Damages that may be awarded under § 46a-86(c) include damages for emotional distress. Fulk v. Lee, Superior Court, judicial district of Tolland at Rockville, CV 970063572 (February 7, 2002) (Scholl, J.) [ 31 Conn. L. Rptr. 375]; see also Bridgeport Hospital v. Commission on Human Rights and Opportunities, 232 Conn. 91 (1995) (emotional distress damages not available in employment discrimination case pursuant to subsection (b) of General Statutes § 46a-86 but available in housing discrimination cases pursuant to subsection (c) of that statute). Section 46a-89 also allows for appropriate injunctive relief in the form of a temporary or permanent restraining order prohibiting the alleged discriminatory conduct. In addition, pursuant to General Statutes § 46a-89(b)(2)(D), the State of Connecticut can seek a civil penalty which it has done in this case and which this court will later discuss.
The court recused itself from consideration of the relators' claims for attorneys fees. The claim for attorneys fees was bifurcated and assigned to another Judge. See Record, November 3, 2010, pp. 1-10.
Connecticut General Statutes § 46a-86(c) provides in relevant part that "[i]n addition to any other action taken under this section, upon a finding of discriminatory practice prohibited by section . . . 46a-64c, the presiding officer shall determine the damage suffered by the complainant, which damage shall include, but not be limited to, the expense incurred by the complainant for obtaining alternate housing or space, storage of goods and effects, moving costs and other costs actually incurred by the complainant as a result of such discriminatory practice and shall allow reasonable attorneys fees and costs."
Connecticut General Statutes § 46a-89(b)(2) provides in relevant part that: "[t]he petition shall seek: (A) Appropriate injunctive relief, including temporary or permanent orders or decrees restraining and enjoining the respondent from selling or renting to anyone other than the complainant or otherwise making unavailable to the complainant any dwelling or commercial property with respect to which the complaint is made, pending the final determination of such complaint by the court; (B) an award of damages based on the remedies available under subsection (c) of section 46a-86; (C) an award of punitive damages payable to the complainant, not to exceed fifty thousand dollars; (D) a civil penalty payable to the state to vindicate the public interest: (i) in an amount not exceeding ten thousand dollars if the respondent has not been adjudged to have committed any prior discriminatory housing practice; (ii) in an amount not exceeding twenty-five thousand dollars if the respondent has been adjudged to have committed one other discriminatory housing practice during the five-year period prior to the date of the filing of this complaint; and (iii) in an amount not exceeding fifty thousand dollars if the respondent has been adjudged to have committed two or more discriminatory housing practices during the seven-year period prior to the date of the filing of the complaint; except that if the acts constituting the discriminatory housing practice that is the object of the complaint are committed by the same natural person who has been previously adjudged to have committed acts constituting a discriminating housing practice, then the civil penalties set forth in clauses (ii) and (iii) of this subparagraph may be imposed without regard to the period of time within which any subsequent discriminatory housing practice occurred; or (E) two or more of such remedies."
A court may seek guidance from case law interpreting federal fair housing statutes when evaluating claims under Connecticut's fair housing statutes. Commission on Human Rights and Opportunities v. Savin Rock Condominium Association, Inc., 273 Conn. 373, 386 (2005). Federal case law has determined that a trial court may rely on the testimony of lay witnesses to determine emotional distress and that a plaintiff need not prove a specific loss to recover general compensatory as opposed to actual or special damages. See Marable v. Walker, 704 F.2d 1219, 1220-21, (11th Cir. 1983).
Here, the relator Hanson, in her revised prayer for relief dated May 5, 1995, and revised petition dated June 23, 1995, claims out of pocket expenses in the amount of $54 for expenses incurred by her in locating alternative housing, $1,500 for the pain, humiliation and aggravation suffered by her as a result of the defendant's discriminatory conduct, attorneys fees in the amount of $1,562.50, punitive damages not to exceed $50,000, ten percent interest per annum on any amounts ordered paid, and that the defendant be permanently enjoined from refusing to rent dwelling units based upon lawful source of income to individuals like the relator, Hanson who participate in the section 8 program.
The relator Roper, in her revised prayer for relief dated May 23, 1995, and revised petition dated June 23, 1995, claims out of pocket expenses in the amount of $575, $2,500 as damages for pain, humiliation and aggravation suffered by her as a result of the defendant's discriminatory conduct, an attorneys fee in the amount of $1,125.00, punitive damages not to exceed $50,000 pursuant to General Statutes § 46a-89(b)(2)(B) and injunctive relief as claimed by Hanson. The relator Roper, also seeks ten percent interest on all amounts ordered to be paid. Both Hanson and Roper filed revised petitions on June 23, 1995 which include the damages as set forth in their May 1995 revised prayers for relief. Neither petitioners have filed amended petitions or prayers for relief since May and June of 1995.
It is fundamental in our law that "the right of a plaintiff to recover is limited by the allegations of the complaint . . . and any judgment should conform to the pleadings, the issues and prayers for relief." (Emphasis in original; internal quotation marks omitted.) Dauti Construction v. Water Sewer Authority, 125 Conn.App. 652, 659 (2010). "The [trial] court is not permitted to decide issues outside of those raised in the pleadings." Id. Likewise, the plaintiffs' right to recover in this case is limited by the allegations of the complaint and any judgment this court enters must conform to the pleadings, the issues, and the prayers for relief.
(I) Out-of-pocket Expenses
Both relators, Hanson and Roper testified credibly regarding the expenses they incurred as result of looking for alternate housing after having been denied the opportunity to rent from the defendant. At the time Ms. Roper was denied housing by the defendant in June 1994, she was living on William Street in Bridgeport, Connecticut. Ms. Roper found alternate housing approximately forty-five days later on or about July/August 1994 on Gem Avenue in Bridgeport, Connecticut.
At the time Ms. Hanson was denied housing by the defendant in March 1994, she was residing on Jane Street in Bridgeport, Connecticut. After being denied housing by the defendant, in March 1994, Ms. Hanson began searching for alternate housing again in April 1994 and found alternate housing on Goodsell Street on or around July 1994.
Ms. Roper testified credibly that her out-of-pocket expenses during the forty-five-day period she looked for housing was $80.75. She testified that on several occasions she went to look for housing in New Haven. On one occasion she spent $50.00 for gas, $20.00 on another occasion and $10.00 on another occasion. (Record, July 13, 2011, pp. 63-64.) Ms. Roper testified that she looked at apartments in Trumbull, Stamford and Norwalk. She took the bus to Trumbull and the train to Norwalk and Stamford. Ms. Roper further testified that she traveled to Trumbull on one occasion by bus and paid .75 cents and once to Norwalk and Stamford by train but could not recall the train fares. ( Id., pp. 65-66.) Although Ms. Roper testified that she incurred expenses for numerous phone calls she made in search of alternate housing, she did not specify how many calls were made nor the cost of those phone calls.
Ms. Hanson testified that she incurred out-of-pocket expenses for gas in the amount of $10.00 per week ( Id., p. 17) and twice for a babysitter in the amount of $10.00 to $20.00 each time. ( Id.). Ms. Hanson's total expenses according to her testimony, amount to approximately $100.00 to $120.00 for the period from April 1994 until July 1994 that she looked for alternative housing.
Both Hanson's and Roper's claims for damages are limited to the amounts claimed in their revised petitions and prayers for relief. Hanson claimed in her revised petition and prayer for relief, out of pocket expenses in the amount of $54. This court therefore finds that the credible evidence supports a finding that as a result of the defendant's discriminatory conduct Ms. Hanson is entitled to out of pocket expenses in the amount of $54. Roper claimed out of pocket expenses in the amount of $575. However, the credible evidence only supports a finding of out of pocket expenses incurred by Roper to be $80.75. Accordingly, the court finds that Hanson incurred out of pocket expenses in the amount of $54 and Roper in the amount of $80.75.
(II) Emotional Distress Damages
Both Hanson and Roper, in their revised petitions and prayers for relief, seek emotional damages as result of the defendant's discriminatory conduct by denying them housing based on their lawful source of income. In her revised petition and prayer for relief, Hanson requested "$1,500 as damages for the pain, humiliation and aggravation suffered by her as a result of the Defendant's discriminatory conduct." (Plaintiff, Hanson's Revised Petition, June 23, 1995 and Revised Prayer for Relief, May 5, 1995.) Roper requested emotional distress damages in the amount of $2,500. (Plaintiff, Roper's Revised Petition, June 23, 1995 and Revised Prayer for Relief, May 23, 1995.)
It is well settled in Connecticut housing discrimination law that the broad authority to award damages under Connecticut General Statutes § 46a-86(c) includes the authority to award damages for emotional distress. Fulk, supra, see also, Bridgeport Hospital v. Commission on Human Rights and Opportunities, supra. Such awards must be limited to compensatory, rather than punitive amounts. Chestnut Realty, Inc. v. Commission on Human Rights and Opportunities, 201 Conn. 350, 366, 514 A.2d 749 (1986). A complainant need not present expert medical testimony to establish his or her internal, emotional response to the harassment; his or her own testimony, or that of friends or family members, may suffice. Busche v. Burke, 649 F.2d 509, 519 n. 12 (7th Cir. 1981); see also, Marable v. Walker, supra. However, medical testimony may strengthen a case. Id. As the Supreme Court stated in Carey v. Piphus, "[a]lthough essentially subjective, genuine injury in this respect [mental suffering or emotional anguish] may be evidenced by one's conduct and observed by others." Carey v. Piphus, 435 U.S. 247, 264 n. 20, 98 S.Ct. 1042 (1978).
In assessing damages for emotional distress the CHRO referees use a three-factor analysis which was enunciated in the case of Commission on Human Rights and Opportunities ex rel. Harrison v. Greco, CHRO No. 7930433 (1985), and which is sometimes referred to as the " Harrison factors." This analysis of emotional distress damages also has superior court support. Commission on Human Rights and Opportunities ex rel Peoples v. Belinsky, Superior Court, judicial district of Stamford-Norwalk at Norwalk, Docket No. 88061209 (November 8, 1988, Riefberg, J.). Under the Harrison analysis, the most important factor of such damages is the subjective internal emotional reaction of the complainants to the discriminatory experience which they have undergone and whether the reaction was intense, prolonged and understandable. Harrison, supra. Second, is whether the discrimination occurred in front of other people. Id. For this, the court must consider if the discriminatory act was in public and in view or earshot of other persons which would cause a more intense feeling of humiliation and embarrassment. Id. The third and final factor is the degree of the offensiveness of the discrimination and the impact on the complainant. Id. In other words, was the act egregious and was it done with the intention and effect of producing the maximum pain, embarrassment and humiliation. Here, both relators Roper and Hanson credibly testified, and this court finds, that as a result of the defendant's discriminatory conduct they were embarrassed and humiliated.
Hanson testified that when she spoke with the defendant's office manager, Jane Swetckie in March 1994 about renting an apartment that the defendant advertised, Swetckie inquired about Hanson's income and when Hanson advised Swetckie that "[she] was on [section 8] and what [she] use to pay [in] rent it was more or less like I wasn't worthy enough to rent that apartment and that took my self worth down. It made it hard for [Hanson] to look for another place because the rejection that [she] felt . . . [Hanson] was humiliated and aggravated. [She] was upset [and embarrassed]. . ." (Record, July 13, 2010, pp. 21-22, 30.) Hanson testified that she "experienced [feelings of embarrassment and humiliation] for quite a long time and I have a great job now." ( Id. at 32.) Although Hanson experienced embarrassment and humiliation at the time of the defendant's discriminatory conduct, and to some extent as of the date of the trial, it is clear from her testimony that she has moved on with her life.
Roper spoke with Swetckie on two occasions in June 1994 regarding the rental of an apartment from the defendant. The first time Roper spoke with Swetckie about renting an apartment from the defendant, Swetckie inquired about Roper's income and advised Roper that she did not have enough income to cover the rent and that she was therefore not eligible to rent the apartment. Roper informed Swetckie that she "had Section 8 and that would basically cover the [rent]." Id. at 54. Swetckie advised Roper "we certainly don't take Section 8." Id. The first call did not bother Roper, but the second call "was an entirely different situation. [She] was dumbfounded." Id. at 66. According to Roper the difference between the first conversation and the second conversation with Swetckie was the length of the call, the first being three to four minutes and the second seven minutes, and the nature of the conversation. During the conversation of the second call, Swetckie began inquiring "where [Roper] lived, and the type of community [she] lived in and, you know, being a minority community . . . it kind of took [Roper] back . . . Swetckie started talking about the people and their income so that's what made — that's why . . . [Roper said she] was dumbfounded by [Swetckie's] remarks" in the second call. Id. at 66-69. Roper's emotional state after the second call was that she "was kind of dumbfounded . . . like someone telling you that you're not good enough . . . it was kind of degrading in a way." Id. at 73. There was a third phone call with the defendant Sullivan, regarding the rental of his apartment. The conversation was not any different from Roper's conversation with Swetckie. After her conversation with Sullivan, Roper felt "cheated, embarrassed." Id. at 81. The conversation with Sullivan felt like a "slap in the face" to Roper. Id.
Although Hanson testified that as of the date of the trial she was still having feelings of humiliation from being rejected, she also testified that the experience of having "`doors closed' or that [you] can't do something," [has pushed her to] "work really hard." Id. at 47-48. Hanson further testified that "if someone tells [her that she] can't do something . . . [she] work[s] really hard . . . [She] "went and got an education just so [she] could get a good job." Id.
The preponderance of the credible evidence also demonstrates that Roper, like Hanson, although having experienced embarrassment and humiliation as a result of the defendant's discriminatory conduct was able to move forward with her life and "prove to people that they're wrong." Id. at 84. Although Roper felt embarrassed and humiliated, she, like Hanson, was able to move forward. Roper testified that when "someone tells you that you're just not good enough . . . you start fighting with yourself . . . [T]his is one of the reasons she goes to school." Id. at 84. As of the date of the trial, Roper was "still thinking of [getting] her Masters." Id. Roper testified that when people tell her she can't do something, "it makes you feel like you're not [good enough and] you got to prove them wrong." Id.
While both Hanson and Roper were clearly humiliated and embarrassed and suffered emotional distress, as a result of the defendant's rejection in renting to them because of their section 8 income, the discriminatory acts by the defendant were not highly offensive and were not done in the presence of others. Neither Swetckie nor Sullivan used any insulting terms or disparaging terms during the telephone conversations. The preponderance of the credible evidence demonstrates that both relators have clearly moved on with their lives.
Discrimination in housing cases in Connecticut has produced a wide array of emotional distress awards ranging from $1,500 to $75,000. Commission on Human Rights and Opportunities ex rel. Aguiar v. Frenzilli, No. 9850105, p. 5-6, (January 14, 2000). The larger awards stem from a majority of cases where the discrimination was highly offensive and egregious and perpetrated in. the presence of others who heard or saw the acts. Id. at 5. On the other hand, where the discriminatory acts were perpetrated in a single incident, were not highly offensive and were not done in the presence of others, the emotional distress awards in these types of cases have been at the lower end of the spectrum. Id., See also Chestnut Realty, Inc. v. CHRO, 201 Conn. 350, 514 A.2d 749 (1986); Commission on Human Rights and Opportunities ex rel. Peoples v. Belinsky, supra; Fulk v. Lee, supra; Commission on Human Rights and Opportunities, ex rel. Harris v. Tamburro, No. 8020257. The court finds that the relators' damages for emotional distress in this case fall at the lower end of the spectrum.
In Chestnut Realty, the complainant was originally awarded $2,000 by the hearing officer, but the case was ultimately remanded to the commission and the parties entered into a settlement agreement. The respondent had shown the complainant a piece of property for sale and when the complainant's agent tried to give the respondent a deposit, the respondent would not contract to sell the property because the complainant was black. The complainant was upset, shocked and humiliated. The discriminatory act was not done in public. The complainant was distressed and had to build a home that was further from his job. Chestnut Realty v. CHRO, supra, 201 Conn. 353-54, see also, Commission on Human Rights and Opportunities ex rel. Aguiar v. Frenzilli, supra. In Commission on Human Rights and Opportunities ex rel. Peoples v. Belinsky, supra, the complainant was awarded $3,500. The complainant was shocked and fairly upset and experienced pain, humiliation and embarrassment. The discriminatory act was not done in public. The respondent told the complainant that the apartment was for rent and then after seeing the complainant, the respondent told him it was unavailable. The complainant suffered three months of aggravation because he had to live with his sister and sleep on the couch and was unable to perform his work responsibilities.
In Fulk v. Lee, supra, the complainant was awarded $1,500 for emotional distress damages. The complainant was shown a two-bedroom townhouse apartment by the respondent for possible rental. The plaintiff had section 8 benefits that would have paid the full amount of the rent for the apartment. She completed the application for the apartment and a couple of days later the respondent advised the complainant that she could not rent to the complainant because she was on welfare and had a section 8 certificate. The complainant was upset, hurt and felt she had been discriminated against, leaving her feeling depressed and anxious. The discriminatory act was not done in public. The court found that the plaintiff "suffered, and continues to suffer, almost six years later, emotional distress associated with the [d]efendants' conduct." Id. The court ordered the defendants to pay the plaintiff $1,500 for emotional distress damages. In Commission on Human Rights and Opportunities, ex rel. Harris v. Tamburo, supra, the complainant was awarded $2,500. The complainant was shocked. The discriminatory act was not done in public. The respondent's agent took the complainant's deposit and entire rent for an apartment and then the landlord told the agent to tell the complainant that he could not rent the apartment to him because he was black. The complainant had to stay in a hotel.
Here, both complainants, Hanson and Roper were told via phone that the respondent would not rent to them because they received section 8. Both complainants were humiliated and embarrassed. It took Hanson approximately three months to obtain alternate housing and Roper approximately forty-five days. Both were humiliated and embarrassed at the time the defendant refused to rent to them and continue to have feelings of embarrassment and humiliation, however both have been able to move forward with their lives. The court therefore awards emotional distress damages to both Hanson and Roper as claimed in their prayers for relief. To Roper, $2,500 and to Hanson, $1,500.
B CIVIL PENALTY
The Commission seeks a civil penalty against the respondent for its discriminatory conduct pursuant to Connecticut General Statutes §§ 46a-89(b)(1) and 46a-89(b)(2)(D)(I) which provides in relevant part that "whenever a complaint filed pursuant to section 46a-82 alleges a violation of section . . . 46a-64c . . . and a commissioner believes that . . . a civil penalty would be appropriate, the commission may bring a petition in the superior court for the judicial district in which the discriminatory practice which is the subject of the complaint occurred or the judicial district in which the respondent resides." General Statutes § 46a-89(b)(1). Subsection (b)(2) further provides that the "petition shall seek [in addition to compensatory, punitive damages and injunctive relief]; . . . (D) a civil penalty payable to the state against the respondent to vindicate the public interest: (I) in an amount not exceeding ten thousand dollars if the respondent has not been adjudged to have committed any prior discriminatory housing practice . . ."
Although there has been another adjudication finding that the same respondent engaged in similar discriminatory conduct involving similar facts as in this case, this court cannot apply the enhanced statutory penalty authorized by the statute because the statute requires that any adjudication precede the instant action. Said adjudication took place after the action that is before this court.
At the outset, the respondent has challenged the court's subject matter jurisdiction to award a civil penalty in this case. The substance of the challenge is justiciability. The respondent's claim is not that the court lacks statutory competence to adjudicate cases of this type, but rather that the commission lacks standing to seek civil penalties because it is not a party to this case in its own right. The respondent relies on the language in General Statutes § 46a-89(c) which was in effect at the time the original and revised complaints were filed in 1994 and 1995, but was repealed in 2005. The language in sections 46a-89(b)(1) and (2) as they existed in 1994 and 1995 are identical to the language in those sections as they exist today, except that prior to 2005, subsection (c) required the commission to "incorporate in and make a part of its petition in equity its complaint against the respondent and its prayers for relief." The respondent argues that this language required the commission to file a petition in its own right in order to seek a civil penalty, and that because it has not done so in this case, does not have standing to seek a civil penalty.
"Because courts are established to resolve actual controversies, before a claimed controversy is entitled to a resolution on the merits, it must be justiciable . . . Justiciability requires (1) that there be an actual controversy between or among the parties to the dispute . . . (2) that the interests of the parties be adverse . . . (3) that the matter in controversy be capable of being adjudicated by judicial power . . . and (4) that the determination of the controversy will result in practical relief to the complainant . . . [J]usticiability comprises several related doctrines, namely standing, ripeness, mootness and the political question doctrine, that implicate a court's subject matter jurisdiction and its competency to adjudicate a particular matter . . ." (Internal quotation marks omitted.) Office of Governor v. Comm., 271 Conn. 540, 568-69, 858 A.2d 709 (2004). Here, the respondent's claim is that the commission lacks standing to seek civil penalties because it is not a party to this case in its own right.
"The issue of standing implicates subject matter jurisdiction . . . [I]t is the burden of the party who seeks the exercise of jurisdiction in his favor . . . clearly to allege facts demonstrating that he is a proper party to invoke judicial resolution of the dispute . . . It is well established that, in determining whether a court has subject matter jurisdiction, every presumption favoring jurisdiction should be indulged . . .
"Standing is the legal right to set judicial machinery in motion. One cannot rightfully invoke the jurisdiction of the court unless he [or she] has, in an individual or representative capacity, some real interest in the cause of action, or a legal or equitable right, title or interest in the subject matter of the controversy . . . When standing is put in issue, the question is whether the person whose standing is challenged is a proper party to request an adjudication of the issue . . . Standing requires no more than a colorable claim of injury; a [party] ordinarily establishes . . . standing by allegations of injury [that he or she has suffered or is likely to suffer]. Similarly, standing exists to attempt to vindicate arguably protected interest . . .
"Standing is established by showing that the party claiming it is authorized by statute to bring suit or is classically aggrieved . . . Standing is not a technical rule intended to keep aggrieved parties out of court; nor is it a test of substantive rights. Rather it is a practical concept designed to ensure that courts and parties are not vexed by suits brought to vindicate nonjusticiable interests and that judicial decisions which may affect the rights of others are forged in hot controversy, with each view fairly and vigorously represented." (Internal quotation marks omitted.) Shenkman-Tyler v. Central Mut. Ins. Co., 126 Conn.App. 733, 740-41 (2011).
Notwithstanding section 46a-89(c), which existed at the time of the respondent's discriminatory conduct, it is clear from the plain language of the relevant statutory provisions, that the commission has standing to seek civil penalties against the respondent. The language in the statutory provisions which governed the administrative and judicial process for housing discrimination complaints in 1994 and 1995, namely, sections 46a-82, 46a-83(d)(2), 46a-84, 46a-86 and 46a-89 are identical to the provisions as of 2005, and thereafter, with the exception of 46a-89(c) which existed in 1994, until it was removed in 2005.
General Statutes § 46a-82 sets forth the process for filing a discrimination complaint and provides in relevant part that "[a]ny person claiming to be aggrieved by an alleged discriminatory practice, except for an alleged violation of section 4a-60g or CT Page 13661 46a-68 or the provisions of sections 46a-68c to 46a-68f, inclusive, may by himself or herself or by such person's attorney, make, sign and file with the commission a complaint in writing under oath, which shall state the name and address of the person alleged to have committed the discriminatory practice, and which shall set forth the particulars thereof and contain such other information as may be required by the commission. After the filing of a complaint pursuant to this subsection, the commission shall serve upon the person claiming to be aggrieved a notice that: (1) Acknowledges receipt of the complaint; and (2) advises of the time frames and choice of forums available under this chapter . . ."
General Statutes § 46a-83(d)(2) provides in relevant part that "[i]f the investigator makes a determination that there is reasonable cause that a violation of section 46a-64c has occurred, the complainant and the respondent shall have twenty days from receipt of notice of the reasonable cause finding to elect a civil action in lieu of an administrative hearing pursuant to 46a-84 . . ." General Statutes § 46a-83(d)(2) as revised to January 1, 2011. This statutory provision in 1994 and 1995 was § 46a-83(b) and contained identical language.
General Statutes § 46a-84 governs the administrative procedures for discrimination complaints.
In Commission on Human Rights and Opportunities v. Housing Auth., 117 Conn.App. 30, 978 A.2d 136 (2009), the Appellate Court acknowledged the propriety of a claim for a civil penalty by the commission which was pled under the same circumstances as in the present case. In that case, the defendant requested the commission to institute a civil action. The commission complied by filing a petition instituting said civil action on behalf of the complainant pursuant to the relevant statutes as discussed, supra, and explicitly sought a civil penalty in addition to other available forms of relief. Id., 35, 36. The court's thorough discussion of the state statutory schemes which govern the administrative and judicial process for housing discrimination complaints such as those in the present case is instructive. The court noted that "[t]he judicial route, by contrast [to the administrative route], is governed by §§ 46a-83(d)(2) and 46a-89(b). Pursuant to § 46a-83(d)(2) [which in 1994 and 1995 was § 46a-83(b)], upon a finding of reasonable cause, either the complainant or respondent may `elect a civil action in lieu of an administrative hearing.' . . . Upon such a request, the commission shall commence an action pursuant to [§ 46a-89(b) . . . Section 46a-89(b), which is invoked by the request for a civil action pursuant to § 46a-83(d)(2), provides for a civil action that could yield appropriate injunctive relief, damages, including attorneys fees under § 46a-86(c), punitive damages payable to the complainant and civil penalties payable to the state." (Citations omitted; emphasis added; internal quotation marks omitted.) Commission on Human Rights and Opportunities v. Housing Auth., supra, 117 Conn.App. 38. It was the judicial route that the defendant invoked in this case.
Despite the argument of the respondents in this case, the language of § 46a-89(b) in 1994 and 1995 is identical to the language in that statute as it presently exists except for the removal of subsection (c). Section 46a-89(a)(1) allows for injunctive relief by way of a petition in equity filed in superior court where a complaint has been filed alleging employment discrimination pursuant to § 46a-60 or sexual orientation discrimination pursuant to § 46a-81c, and where the commission believes that equitable relief is required to prevent irreparable harm to the complainant. Nowhere in the language of the statute is there a requirement that the commission file a separate complaint on its own behalf in order to seek a civil penalty. The statutory provision that was in existence at the time these petitions were filed, namely, 46a-89(c), simply required the commission to "incorporate in and make a part of its petition in equity its complaint against the respondent and its prayers for relief." General Statutes § 46a-89(c) as revised to January 1, 1993 and January 1, 1995. A plain reading of this provision simply requires the commission to include in its petition in equity filed pursuant to 46a-89(a)(1), its complaint against the respondent and its prayers for relief. The language of subsection (c) does not require the commission to file a separate complaint on its own behalf to seek civil penalties.
Section 46a-89(b)(1) and (2) authorizes the commission to file a complaint in superior court, where there has been housing discrimination in violation of section § 46a-64c and, such election has been made pursuant to § 46a-83, and to seek equitable relief, compensatory and punitive damages as well as a civil penalty. The language in this provision, clearly grants the commission the authority to seek a civil penalty and is clear and unambiguous. The fact that the language of subsection (c) existed at the time these petitions were filed does not remove the commission's statutory authority to seek a civil penalty pursuant to § 46a-89(b)(1) and (2). "When construing a statute, [o]ur fundamental objective is to ascertain and give effect to the apparent intent of the legislature . . . In other words, we seek to determine, in a reasoned manner, the meaning of the statutory language as applied to the facts of [the] case, including the question of whether the language actually does apply . . . In seeking to determine that meaning [General Statutes] § 1-2z directs us first to consider the text of the statute itself and its relationship to other statutes. If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered . . ." Picco v. Town of Voluntown, 295 Conn. 141, 147, 989 A.2d 593 (2010); Discover Bank v. Mayer, 127 Conn.App. 813, 816 (2011).
In this case, the respondent, pursuant to § 46a-83, elected to have the matter proceed judicially and the commission, as required by statute filed petitions and prayers for relief in the Bridgeport Superior Court Housing Session, on behalf of the complainants, initially on October 19, 1994 on behalf of Hanson, December 8, 1994, on behalf of Roper, as well as a revised petition on behalf of Roper on December 14, 1994, and revised petitions and prayers for relief dated May 5, 1995, May 23, 1995 and June 23, 1995, on behalf of both Hanson and Roper. In its petitions and prayers for relief, the commission expressly seeks a civil penalty. Therefore, having properly instituted the civil action under the statutory scheme set forth in General Statutes §§ 46a-82, 46a-83 and 46a-89(b)(1) and (2), and having properly pled a claim for a civil penalty, the court concludes that the commission has standing, and therefore this court has jurisdiction to award a civil penalty in the appropriate amount in accordance with § 46a-89(b)(2)(D).
The commission seeks a civil penalty in the amount of $20,000 which represents the maximum amount allowed pursuant to § 46a-89(b)(2)(D). Contrary to the defendant's claim, there are trial decisions in which civil penalties were imposed as a result of discrimination in violation of § 46a-64c. See Commission on Human Rights and Opportunities ex rel. Westphal v. Brookstone, Superior Court, judicial district of Hartford at Hartford, Docket No. CV 01-0805370 (February 15, 2006, Satter, J.), aff'd, Commission on Human Rights and Opportunities v. Brookstone, 107 Conn.App. 3, 945 A.2d 548 (2008); CHRO ex rel. Colon v. Sullivan, Superior Court, judicial district of Fairfield, Housing Session at Bridgeport, Docket No. CVBR 1006541 (October 7, 2005, Melville, J.); (aff'd in part; rev'd in part on issue of attorneys fees.) Commission on Human Rights and Opportunities v. Sullivan, 285 Conn. 208, 929 A.2d 541. Both cases involve housing discrimination violations under § 46a-64c. Colon involves the same defendant as in the present case with almost identical facts. In Westphal, the court awarded a $1,000 civil penalty without analysis, and in Colon, the court awarded a $6,000 civil penalty giving explanation for the award.
The court finds Judge Melville's reasoning in Colon instructive in determining whether a civil penalty should be awarded in this case and the amount to be awarded, since the civil penalty awarded was against the same defendant as in this case and involved nearly identical facts. The court noted: "With regard to the imposition of a civil penalty as provided for by . . . 46a-89(b)(2)(c), . . . the court interprets this section of the statute as the vindicatory part of the law and takes its guidance from the definition of that term. BLACK'S LAW DICTIONARY, 6th Ed and 7th Ed, defines this part of a statute as a sanction or penalty imposed against one who commits a public wrong. Under Connecticut law, vindictive, punitive and exemplary damages have been historically used synonymously . . . In the present case, the legislature . . . has provided for damages not to a private individual, but to the State to vindicate its interests in seeing that the law is obeyed and other, would be violators are deterred from offending the law in the same manner . . . Because the Commission's claim is one of vindication of the state's interest in the maintenance of its statutory scheme, the court is capable of determining what monetary amount will fairly accomplish this objective from a review of the available evidence. Consequently, the trial attorney need not offer damage specific evidence on this issue. Furthermore, the facts and circumstances of the case, if adequate, will provide the necessary guidelines from which to measure whether the court has exceeded its discretion in the imposition of a specific penalty. To interpret the vindictive portion of this statute any other way would be to emasculate the statute's objective by leaving the State without any practical means to enforce its mandate. It is black letter law that statutes are to be construed in a manner that will not thwart their intended purpose or lead to absurd results . . ." CHRO ex rel. Colon v. Sullivan Associates, supra, (Citations omitted).
Applying these considerations to the facts already found in this case, the court is of the opinion that the facts of record are adequate for it to make a reasonable estimate of what amount of money would fairly vindicate the state's interest in this case. The evidence clearly establishes that the defendant has never rented to section 8 tenants and had developed a policy that insulated itself from an obligation imposed by statute to rent to qualified section 8 recipients. The initial telephone screening process and the 4 to 1 income ratio standard devised by the defendant excluded section 8 recipients from being considered for rental of the defendant's properties. Just as in the present case, the defendant in Colon, as noted by Judge Melville, displayed "a deliberate effort . . . to thwart the governmental objectives of the section 8 housing rental assistance program." Colon, supra. It was clear from the defendant's testimony during the liability phase of this trial, that he clearly was opposed to renting to section 8 recipients. The defendant testified that he looked for "non-judgment proof tenants" to rent his apartments "so that people have something you can collect from if you need to." (Record, May 26, 2009, p. 54.) The defendant further testified that he "always viewed the lower income spectrum, which would include Section 8, as judgment proof or near judgment proof." Id. at 70.
Furthermore, as of the spring of 1994, the defendant owned a total of six dwelling units in Bridgeport and over the ten years that the defendant had owned the properties as of that time, they were rented to 40 households who passed the defendant's telephone screen and whose income met the defendant's standards which excluded section 8 recipients. (Defendant's Ex. A, par. 34.) The defendant has never been a party to a section 8 lease and it is unaware of any section 8 certificate holder or voucher holder who successfully passed the defendant's telephone screen and was even permitted to submit a written application. Id. As of December 1996, the defendant received hundreds of inquiries for its rental properties in response to its advertisements and about 90% of the inquiries were not financially qualified according to the defendant's income standards. Id. As a matter of policy, the defendant would keep rental units vacant for as long as six months rather than rent them to financially unqualified tenants. Id. at par. 38. As discussed supra, financially unqualified tenants to the defendant are non-judgment proof or "always viewed [at] the lower income spectrum, which would include Section 8, as judgment proof or near judgment proof." (Record, May 26, 2009, pp. 54, 70.) It is clear from a preponderance of the credible evidence that the defendant just as it did in Colon, engaged in a deliberate pattern of discriminatory conduct by refusing to rent to the plaintiffs because of their section 8 income. The defendant's screening and income policies were designed to preclude section 8 recipients from renting its property.
Other than the Colon decision, this court was unable to find any other state case that provided a methodology for assessing the amount of a civil penalty that should be imposed. There is guidance, however, under the federal fair housing laws. Connecticut courts are guided by interpreting federal fair housing laws when assessing claims under state fair housing laws. Miko v. Commission on Human Rights Opportunities, 220 Conn. 192, 202, 596 A.2d 396 (1991). Thus, in addition to the Colon decision, this court may look to federal fair housing law for guidance in the assessment of civil penalties imposed in this case. Regarding the assessment of civil penalties in housing discrimination cases, the federal housing regulations provide that administrative judges "shall consider the following six (6) factors: (i) Whether that respondent has previously been adjudged to have committed unlawful housing discrimination; (ii) The respondent's financial resources; (iii) The nature and circumstances of the violation; (iv) The degree of that respondent's culpability; (v) The goal of deterrence; and (vi) Other matters as justice may require." 24 C.F.R. § 180.671(c)(1); see also, U.S. v. Peterson, No. 09-10333 (D. Michigan, March 3, 2011) (consent order granting, inter alia, permanent injunction, and issuing a civil penalty in the amount of $55,000. In issuing the civil penalty, the District Court applied the factors set forth in the federal regulations); see also, Smith Lee Assoc. v. City of Taylor Michigan, 13 F.3d 920, 932, remanded, 872 F.Sup. 423, aff'd and rev'd in part, 102 F.3d 781. (The Court of Appeals reversed and remanded the District Court's ruling for a maximum civil penalty of $50,000 because there were no reasons for levying the fine. On remand, the District Court issued a $20,000 fine against the City of Taylor. The Court of Appeals vacated the civil penalty since it found the District Court erred when it found defendant intentionally discriminated against the handicapped and the state of law regarding reasonable accommodations was unsettled at the time.)
Upon applying the factors set forth in the federal regulations to this case, the court finds that the commission's request for a civil penalty is warranted. The defendant has had a long history of discriminating against individuals who participate in the section 8 program. The defendant has maintained his telephone screening and income ratio policies since 1982, which policies this court found "discriminated against the plaintiffs on the basis of their reliance on section 8 benefits in violation of General Statutes § 46a-64c" Commission on Human Rights and Opportunities v. Sullivan Associates, Superior Court, judicial district of New Haven at New Haven, Docket No. 94-4031061, (November 6, 2009, Wilson, J.) [ 48 Conn. L. Rptr. 783], see also, Sullivan I. Although the defendant has no prior adjudication of his discriminatory conduct, his discriminatory policies have been in existence since 1982. Furthermore, from his own testimony, the defendant clearly did not want to rent to section 8 recipients and through his elaborate screening and income policies deliberately did not do so in violation of the statute. With respect to the defendant's financial resources, the court received no evidence of the defendant's financial circumstance or inability to pay nor did the defendant claim a lack of financial resources. In fact, the defendant is a licensed attorney and a certified public accountant licensed in the State of Connecticut who owns several properties in the Bridgeport area. In December 1996 he owned four residential rental properties, three single-family houses and a three-family house.
The Supreme Court essentially found that the defendant discriminated against the plaintiffs on the basis of legal source of income in violation of § 46a-64c, and concluded "[i]n short, on the stipulated factual record of the reasons for turning down the relators, the defendant has failed to demonstrate that the relators in the present case have `insufficient income' to qualify them as tenants for the defendant's rental property. Although we could direct the entry of a judgment on liability on this basis, we are persuaded that the defendant should be afforded a fair opportunity to make such a showing if it can . . . We emphasize that our order for a new trial is limited to the issue of whether the defendant can establish that the relators properly were denied access to his rental property because they had `insufficient income' within the exception contained in § 46a-64c(b)(5)." (Emphasis added; citations omitted.) Commission on Human Rights and Opportunities v. Sullivan, supra, 250 Conn. 791-92.
Although the defendant asked this court to consider the six factors set forth in the federal regulations in determining whether to issue a civil penalty, it did not raise the lack of financial resources factor in its brief. The court is "not required to review issues that have been improperly presented to [the] court through an inadequate brief . . . Analysis rather than mere abstract assertion, is required in order to avoid abandoning an issue by failure to brief the issue properly . . . Where a claim is asserted in the [brief] but thereafter receives [none or] only cursory attention in the brief without substantive discussion or citation of authorities, it is deemed to be abandoned." (Citation omitted; internal quotation marks omitted.) Smith v. Andrews, 289 Conn. 61, 80, 959 A.2d 97 (2008).
The defendant further argues that the law regarding whether a landlord's participation in the section 8 program was voluntary was unsettled at the time of the violation. The defendant claims that until 1999, when Sullivan I was decided, no court had decided that the section 8 program was anything but voluntary. This court disagrees that the law was unsettled in Connecticut. As noted by the Supreme Court in Sullivan I, "[t]he Connecticut legislature had the authority to enact a mandatory section 8 housing program in this state. In 1989, the legislature amended Connecticut's public accommodations law; General Statutes § 46a-63 and 46a-64; to prohibit discrimination in housing on the basis of a tenant's lawful source of income, including housing assistance. Public Acts 1989, No. 89-288. In 1990, the prohibition on housing discrimination on the basis of lawful source of income was moved to what became § 46a-64c. Public Acts 1990, No. 90-246. Unlike federal provisions governing section 8, the provisions of § 46a-64c, which require landlords to accept otherwise qualified tenants whose lawful source of income may include section 8 housing assistance, are mandatory. Pursuant to this statute, it is a part of the public policy of this state that landlords may not discriminate against housing applicants because such applicants, otherwise qualified as potential tenants look to section 8 assistance for payment of the stipulated rent." Commission on Human Rights and Opportunities v. Sullivan, supra, 250 Conn. 774. Clearly as of 1989, under Connecticut law, a landlord's participation in the section 8 program was mandatory. The Supreme Court's decision in Sullivan I, involved the interpretation and scope of § 46a-64c, and the meaning of "insufficient income" contained in the statutory exception in § 46b-64c(b)(5), both of which had been in existence since 1989. Accordingly, the law regarding a landlord's participation in the section 8 program was settled.
Finally, civil penalties are imposed for the purpose of punishment and deterrence. Commissioner of Environmental Protection v. Sergy Co., LLC, Superior Court, judicial district of Waterbury, Complex Litigation Docket at Waterbury, Docket No., X06 CV 084018262 (March 10, 2010, Stevens, J.) [ 49 Conn. L. Rptr. 474]; See Davis v. Forman School, 54 Conn.App. 841, 851, 738 A.2d 697 (1999) ("Black's Law Dictionary defines `penalty' as `a sum of money for which the law exacts payment by way of punishment for not doing some act which is required to be done'"). It is clear from the preponderance of the credible evidence that the defendant engaged in a deliberate pattern of conduct to foreclose rental of his properties to section 8 recipients. His pattern, practices and policies for screening potential tenants, and his income requirement was clearly intended to exclude tenants whose lawful source of income came from section 8 subsidies. These discriminatory practices have been in place since 1982. This court must therefore impose a penalty that will deter the defendant from continuing to exhibit such discriminatory behavior in the future and, would be violators from engaging in the same discriminatory conduct. As Judge Melville articulated in Colon, "the legislature has provided for [a civil penalty] to the State to vindicate its interests in seeing that the law is obeyed and other would be violators are deterred from offending the law in the same manner." Colon, supra. Accordingly, taking all of the above factors into consideration, this court awards a civil penalty in the amount of $7,500 for each of these consolidated cases, totaling an amount of $15,000. As the court has previously found the issues of liability in favor of the plaintiff in its November 9, 2009 decision [ 48 Conn. L. Rptr. 783], it finds the issues of damages in favor of the plaintiffs and CHRO and award damages as follows:
To the Relators:
PATRICIA HANSON
1,500.00
Economic Damages in the amount of: $ 54.00 Non-Economic Damages in the amount of: $ Total Compensatory Damages: $1,554.00 Total all Damages to Hanson: $1,554.00 PATRICIA ROPER 2,580.75 Economic Damages in the amount of: $ 80.75 Non-Economic Damages in the amount of: $2,500.00 Total Compensatory Damages: $ Total all Damages to Roper: $2,580.75 To CHROCivil Penalty:7,500.00
As to Patricia Hanson: $7,500.00 As to Patricia Roper: $ Total Civil Penalty: $15,000.00Injunctive Relief is denied.
The relators' claims for prejudgment interest is denied. See Sosin v. Sosin, 300 Conn. 205 (2011). No award of post-judgment interest is allowed at this time. Id. Costs of this action are taxed to the defendants.