Opinion
TTDCV126005501S.
12-14-2012
TOWN OF SOMERS v. Marie Therese DEMERS et al.
UNPUBLISHED OPINION
SFERRAZZA, S.J.
On September 4, 2012, this court ruled that the town of Somers had proven that the private boarding house, owned by Marie Demers and located at 129 Springfield Road in Somers, was a health nuisance injurious to the public under General Statutes § 19a-206 because of a severe infestation of bedbugs. As a consequence, the court ordered the owner and occupants to take specific steps to help eradicate this infestation and eliminate other health code violations which were evident at the property, Somers v. Demers, Superior Court, Tolland J.D., d.n. CV 12-6005501 (September 4, 2012). The town now moves to find the owner and/or occupants in contempt for violating those orders. On December 6, 2012, the court heard the evidence pertaining to this motion and makes the following findings of fact and rulings of law.
Some of the residents living at the property on September 4, 2012, have vacated the premises leaving the owner and four boarders as its occupants. The Somers sanitarian, Steven Jacobs, conducted a scheduled inspection on October 15, 2012, and a surprise visit on November 28, 2012. Portions of the premises remain infested with the vermin, including the owner's bedroom. Common areas remain filthy; floor and wall tiles remain missing; water pipes leak badly; two sinks are clogged and contain standing water; an outdoor shed remains full of mattresses and other junk; a pile of trash still remains exposed to the elements; and dusty mattresses and other bedding clutter certain interior areas of the building. These conditions were proven by eyewitness testimony and photographic evidence.
The owner has taken some steps to comply with the court's orders. She engaged an exterminator who has made five or six applications of insecticide, which applications have had limited success. Lack of full compliance with each of the exterminator's requested preparation by the owner and the occupants has prohibited complete eradication of the bedbug problem.
Left alone, bedbugs seldom migrate. However, they are often transported to new territory by human activity, such as when bedding, clothing, upholstered furniture, and books are moved from one location to another. Bedbugs live for years and reproduce as quickly as every seven days when circumstances are ideal. As a result, bedbug population increases dramatically and swiftly. In order to halt the spread of this burgeoning blight, it is essential that no contaminated articles are relocated without a full course of treatment.
Despite their efforts, it is very clear that the owner and tenants have failed to satisfy the court's orders. The owner cannot afford further services of an exterminator. Parenthetically, the exterminator she previously hired appears no longer willing to provide this service at her house. The owner has insufficient funds to repair the plumbing and tile problems. She cannot afford to heat the structure, and the town has, on one occasion, supplied emergency heating oil. The lack of heat and hot water extended for six days during one stretch of time.
Some of the toilets are disgustingly filthy, as are some common areas. While some trash has been carted away, a pile of dirty mattresses and other refuse remain in the yard. Spoiled food has been removed from the basement as ordered.
In order to establish that a defendant is in contempt, the plaintiff must prove, by a preponderance of the evidence, the existence of a clear court order and a violation of that order, Statewide Grievance Committee v. Zadora, 62 Conn.App. 828, 832-33 (2001). However, the noncompliance must be wilful, Sheppard v. Sheppard, 80 Conn.App. 202, 219 (2003). The contemnor need not intend to violate the order to be in contempt as long as that party has intentionally engaged in the prohibited conduct, DeMartino v. Monroe Little League, Inc., 192 Conn. 271, 279 (1984).
The owner is an infirm, elderly person who requires a walker to perambulate. She cannot climb stairs. She stays on the floor of her house in which her living area is situated and cannot visit the other levels of the fifteen-room, boarding house. She relies on a couple of tenants to clean her living space and perform some tasks around the house in exchange for lower rent. As noted above, she lacks the physical and financial wherewithal to correct the health code violations and even to maintain the home in its present, substandard condition.
She has no source of income from the home because tenants have refused to pay rent until the bedbug situation is rectified. The owner's attempts to evict nonpaying tenants have failed because of the deteriorated and infested structure.
Because the noncompliance with the court's order is not wilful, the motion for contempt must be denied. Even where no contempt has occurred, when a court order has been violated, the court retains broad discretion to effectuate the order, Clement v. Clement, 34 Conn.App. 641, 647 (1994). The owner proposes that the court oust certain boarders and allow her to rent rooms to a new group of tenants. She contends that this will generate an income stream through which she can ameliorate the health code violations.
The town, on the other hand, requests that the court exercise the authority under § 19a-206 to displace the owner and the other occupants which will provide the occasion for the town to remediate the property under § 19a-206(a). Section 19a-206 does contemplate the possible need to " displace" persons from property in order to remove " all nuisance and sources of filth injurious to the public health." Subsection (f) refers to " displacement" of occupants and compensation under the Uniform Relocation Assistance Act, General Statutes ch. 135. See in particular, General Statutes §§ 8-267(3)(B) and 8-268(a)(3) which list among those entitled to assistance individuals displaced as a result of health code enforcement action.
The court decides that relocation of occupants is the only realistic remedy available to remediate the public health nuisance posed by the property at 129 Springfield Road. There is absolutely no reason to believe that new tenants will be any more willing to share their rooms with bed bugs or live with the threat of that development than are the present and former tenants. In addition, adopting her proposal would allow an owner to sidestep the responsibilities and defenses to eviction for breach of these responsibilities under our landlord-tenant statutes, General Statutes Title 47a. Finally, the owner is physically and financially incapable of rectifying the health threats at this property or even maintaining the status quo. The prospects for progress under the owner's plan are nil.
The court, instead, adopts the town's recommended solution. The town of Somers has the duty and power to enforce " a body of laws designed to protect and preserve the public health, " State v. Racskowski, 86 Conn. 677, 680 (1913). This duty " is a chief end of government, " id. " The prevention of the spread of disease is required either by express statutory provisions, " or by necessity, id. " Statutes whose object is the protection and preservation of the public health should receive a liberal consideration, " id.; Wallingford v. Dept. of Health, 262 Conn. 758, 777-78 (2003).
The health officer of the town, and through the enforcement provisions of § 19a-206(b), this court, are duty-bound to take those steps necessary to preserve public health against the spread of disease and to exercise the utmost diligence in enforcing health regulations, State v. Racskowski, supra, at 681. Therefore, the court orders that all occupants of 129 Springfield Road be displaced from that premises until such time as the town sanitarian determines that the health code violations have been abated. In order to prevent the spread of bedbugs to other locations, all occupants must leave their possessions at that property unless and until the sanitarian approves removal. The court sets no timetable in order to allow the town the opportunity to discharge its responsibilities.
It is unnecessary for the court to quantify compensation for such displacement under the Uniform Relocation Assistance Act in this litigation. Nor does the court opine on whether this regulatory action entitles the owner or occupants to compensation via any other legal avenues, see e.g. Arkansas Game and Fish Commission v. United States, (December 4, 2012).