Opinion
1681CV02433A
01-09-2018
James M. RYAN, Executor of the Estate of Julia W. Ryan, Individually and on Behalf of Others Similarly Situated v. MARYANN MORSE HEALTHCARE CORP. dba Heritage at Framingham
MEMORANDUM OF DECISION ON DEFENDANT’S MOTION TO DISMISS
Christopher K. Barry-Smith, Justice of the Superior Court
In this nominal class action, the plaintiff, James Ryan, executor of the Estate of Julia Ryan ("Ryan"), alleges that the defendant assisted living facility, Maryann Morse Healthcare Corp., d/b/a Heritage at Framingham ("Heritage") violated G.L.c. 186, § 15B, the Security Deposit Statute, and chapter 93A by charging Plaintiff a "community fee" of $2,800, together with first and last month’s rent ($4,000 each) at the outset of Julia Ryan’s residency at Heritage. Heritage acknowledges the "community fee" was not treated as a security deposit under the Security Deposit Statute. Ryan alleges the community fee is an impermissible fee in violation of the Security Deposit Statute, which also constitutes unfair business conduct in violation of chapter 93A pursuant to 940 C.M.R. § 3.17(4)(a). Before the court is Heritage’s motion to dismiss under Rule 12(b)(6).
The community fee, without limitation, was not held in a separate interest-bearing account and Ryan’s mother, as a new resident, was not provided information concerning the account, as required by G.L.c. 186, § 15B.
Heritage contends that because it is an Assisted Living Residence ("ALR") and subject to a statutory and regulatory scheme that governs A.L.R.s, the Security Deposit Statute does not apply and Ryan’s claims fail as a matter of law. In response, Ryan contends that the Security Deposit Statute is a generally applicable law and that the latter-enacted statute governing A.L.R.s, chapter 19D, not only did not exempt A.L.R.s from the Security Deposit Statute (though it exempted A.L.R.s from certain other statutes), it required A.L.R.s to conform to "all applicable federal and state laws and regulations," including the Security Deposit Statute. Heritage’s motion turns on whether the Legislature intended the Security Deposit Statute to apply to A.L.R.s which are subject to chapter 19D.
I. Standard
To survive a motion to dismiss under Rule 12(b)(6), a complaint must allege facts that, if true, would "plausibly suggest[ ] ... an entitlement to relief." Lopez v. Commonwealth, 463 Mass. 696, 701 (2012), quoting Iannocchino v. Ford Motor Co., 451 Mass. 623, 636 (2008) and Bell v. Twombly, 550 U.S. 544, 557 (2007). To decide the motion, the court must presume that the factual allegations in the complaint and any reasonably inferences that may be drawn in plaintiff’s favor from the facts alleged are true. See Golchin v. Liberty Mut. Ins. Co., 460 Mass. 222, 223 (2011). The court, however, also must "look beyond the conclusory allegations in the complaint and focus on whether the factual allegations plausibly suggest an entitlement to relief." Maling v. Finnegan, Henderson, Farabow, Garett & Dunner, LLP, 473 Mass. 336, 339 (2015), quoting Curtis v. Herb Chambers I-95, Inc., 458 Mass. 674, 676 (2011).
II. Facts
The facts essential to the motion to dismiss are drawn from the complaint and are of limited scope. The court has also drawn additional limited facts from Heritage’s moving papers. Specifically, Heritage attached a copy of Heritage’s certification as an Assisted Living Residence, issued by the Executive Office of Elder Affairs ("EOEA"). The EOEA on its website publishes a list of certified A.L.R.s, which includes Heritage. There is no dispute that Heritage holds an A.L.R. certification and the court takes judicial notice of EOEA’s certification issued to Heritage. See Schaer v. Brandeis Univ., 432 Mass, 474, 477 (2000) (evaluation of Rule 12(b)(6) motion may consider "matters of public record, orders, items appearing in the record of the case, and exhibits attached to the complaint"); Jarosz v. Palmer, 49 Mass.App.Ct. 834, 836 (2000) (court may consider "facts of which judicial notice may be taken"). The court also considers, though to a limited degree, the Consumer Guide to A.L.R.s, published by the EOEA and a matter of public record. See id. And, because Ryan acknowledges that his mother signed a contract with Heritage at the outset of her residency, and both parties have referred to that contract in their papers, this decision also refers to the Residency Agreement between the parties. See Maram v. Kobrick Offshore Fund, Ltd., 442 Mass. 43, 45 & n.4 (2004) (Rule 12(b)(6) motion considers facts alleged in complaint and "uncontested documents of record").
The following facts are relevant to Heritage’s motion to dismiss.
Heritage holds a license as an A.L.R. from EOEA. Ryan’s mother and Heritage executed a contract, captioned "Residency Agreement," by which Ryan’s mother became a resident at Heritage, in Framingham, Massachusetts. In connection with that contract, at the inception of her residency Heritage charged Ryan first and last month’s rent, at $4,000 each, as well as a "community fee" of $2,800. The Residency Agreement states that the community fee "is intended to cover upfront staff administrative costs, the Resident’s initial service coordination plan and move-in assistance, and establish a replacement reserve for building improvements." Residency Agreement, IV.A, at p.7. The community fee was not first or last month’s rent, was not for installing a lock and key, and Heritage did not treat the community fee as a "security deposit" under the Security Deposit Statute. Heritage, without limitation, did not place the community fee in a separate interest-bearing account and did not provide Ryan’s mother a receipt and notice of rights.
In his complaint, Ryan seeks to hold Heritage liable for failing to comply with the Security Deposit Statute, and for unfair or deceptive acts or practices in violation of G.L.c. 93A, § 2 due to the alleged violations of the Security Deposit Statute.
III. Analysis
Heritage’s motion to dismiss requires the interpretation and harmonization of two statutes: i) G.L.c. 186, § 15B (the "Security Deposit Statute"), originally enacted in 1969 and updated several times since then, which governs several aspects of the landlord-tenant relationship and contains restrictions on the amounts of money a landlord may collect at the outset of a tenancy and how that money must be treated; and i) G.L.c. 19D, §§ 1-18 ("Chapter 19D"), enacted in 1995, which governs "Assisted Living Residences." Heritage contends that Chapter 19D expressly or impliedly exempts A.L.R.s from the Security Deposit Statute; Ryan disagrees. Both parties argue that principles of statutory construction, discussed further below, support their position. The court analyzes both statutes, the parties’ arguments, and how to harmonize the statutes.
A. The Statutes at Issue
1. The Security Deposit Statute
The Security Deposit Statute governs several aspects of the landlord-tenant relationship in Massachusetts, including the amounts that a landlord may charge at the outset of a tenancy, and how those funds must be treated by the landlord. G.L.c. 186, § 15B. By enacting a statute that restricted the freedom of contract between landlord and tenant, the legislature manifested concern for the welfare of residential tenants who are generally in inferior bargaining positions and find unhelpful the traditional avenues of redress-for instance, the legal expense of chasing a security deposit might exceed the amount of the deposit. Mellor v. Berman, 390 Mass. 275, 282 (1983), citing Goes v. Feldman, 8 Mass.App.Ct. 84, 91 (1979). Section 15B(1)(b) strictly limits the amount that a landlord may demand of a tenant at the outset of a tenancy to: first month’s rent, one additional month’s rent, the cost to buy and install a key and lock, and "a security deposit equal to the first month’s rent provided that the security deposit is deposited [as required by the statute] and the tenant is given the statement of condition [as required by the statute]." G.L.c. 186, § 15B(1)(b). Section 15B(3) then requires that the security deposit be held in a separate interest-bearing account, and that the landlord furnish to the tenant a receipt disclosing its banking location, among other requirements. And Section 15B(2) requires, among other things, that a tenant receive "a separate written statement of the present condition of the premises to be leased or rented." Id., § 15B(2)(c). Other provisions of Section 15B limit the ability of the landlord to enter the premises before the end of the lease (§ 15B(1)); require recordkeeping with respect to damage to the premises and application of security deposits to repair damage (§ 15B(2)(d) & (4)); and provide the remedy of treble damages and attorneys fees when a landlord fails to properly deposit or return security deposits (§ 15B(7)).
The provisions of Section 15B apply to "lessors" and "tenants" and residential "lease" arrangements. See G.L.c. 186, § 15B. Chapter 186, in which Section 15B appears, governs many aspects of the landlord-tenant relationship, from lease termination and eviction (§§ 11-13) to provision of utilities (§ 14) to security deposits (§ 15B). See, e.g., G.L.c. 186. Courts apply Section 15B broadly to a variety of landlord-tenant relationships. See, e.g., Hermida v. Archstone, 826 F.Supp.2d 380, 384 (D.Mass. 2011) (Section 15B is unambiguous and applied strictly). Courts also have forbade landlords from avoiding the Security Deposit Statute by inventing new fees or giving new labels to monies that are required as a condition of tenancy. See Hermida, 826 F.Supp.2d at 384 (D.Mass. 2011) (amenity fees, for use of pool, gym and grill, violated statute); Perry v. Equitable Resid. Mgt., LLC, 2014 WL 4198850, at *4 (D.Mass. 2014) (application fee, amenity fee, community fee, and up-front pet fees all violated statute).
2. Chapter 19D
More than twenty years after the Security Deposit Statute, in 1995 the Legislature enacted Chapter 19D, governing Assisted Living Residences ("ALRs"). The Legislature sought to promote this then-new type of living arrangement, which authorized and regulated facilities that provide seniors room and board, together with services that support daily living activities, a level of services less intensive than that associated with nursing homes. See ATP Asset Mgt., Inc. v. Board of Appeals of Melrose, 50 Mass.App.Ct. 133, 134-35 (describing legislative purpose set forth in act establishing assisted living facilities). Chapter 19D does not employ the terms "lessor," "tenant" and "lease" as Section 15B does. Chapter 19D instead defines "ALR" and "Resident." G.L.c. 19D, § 1. An A.L.R. is:
An entity, however organized, whether conducted for profit or not-for-profit, which meets all of the following criteria:
1. Provides room and board; and
2. Provides, directly by employees of the entity or through arrangements with another organization which the entity may or may not control or own, assistance with activities of daily living for three or more adult residents who are not related by consanguinity or affinity to their care provider; and
3. Collects payments or third-party reimbursements from or on behalf of residents to pay for the provision of assistance with the activities of daily living or arranges for the same.G.L.c. 19D, § 1. A "Resident" is "an adult who resides in an Assisted Living Residence and who receives housing and personal services and ... such individual’s legal representative." Id. "Assistance with activities for daily living," as defined, includes "physical support, aid or assistance with bathing, dressing/grooming, ambulation, eating, toileting or other similar tasks." Id. And, "assistance with instrumental activities of daily living" means to provide "support, aid, assistance, prompting, guidance, or observations of meal preparation, housekeeping, clothes laundering, shopping for food and other items, telephoning, use of transportation, and other similar tasks." Id.
Chapter 19D is explicit that an A.L.R. is obligated to provide residents not only a place to live, but services. The A.L.R.’s provision of daily living services is not optional: Every A.L.R. "shall ... provide services to residents in accordance with service plans" developed by the A.L.R. and resident, which account for the resident’s needs. G.L.c. 19D, § 2(v) & (vi). Section 10 of chapter 19D identifies certain resident services that A.L.R.s must provide or arrange for, including meals, housekeeping, timely response to emergency needs, self-administered medication management when appropriate, and assistance with bathing, dressing, and ambulation. Id., § 10. Section 12 further describes "individualized plans for residents," which the A.L.R. must "develop and maintain" for each resident. Id., § 12. The individualized plan is to describe "in lay terms" the personal services needs of the resident, who will provide the services, and the frequency and duration of such personal services. Id., § 12(a). All service plans must be periodically reviewed and reassessed to account for changes in a resident’s health or functional status, and the A.L.R. must designate a qualified service coordinator to implement and periodically reassess each plan. Id., § 12(b) & (c).
Section 10 also identifies services that an A.L.R. may provide or arrange for, such as barber/beauty services, amenities, local transportation for medical and recreational purposes, and assistance with instrumental activities of daily living (meal preparation, shopping, housekeeping, laundering). Id., § 10. The latter services contrast to assistance with daily living (bathing, dressing, eating, toileting) which is not optional. See id., §§ 1, 10(a)(2), 12.
Chapter 19D requires A.L.R.s to be certified by the Executive Office of Elder Affairs ("EOEA"), subject to renewal every two years. Id., §§ 3, 4. An A.L.R.’s application of certification must include an operating plan which, among other things, must identify the number of A.L.R. units and residents, base fees to be charged, the number of staff to be employed, and "the services to be offered and arrangements for providing such services, including linkages with hospital and nursing facilities, if any." Id., § 4, fifth para. Beyond initial and renewed certification, the administrative regime for A.L.R.s established by Chapter 19D contains typical regulatory features: EOEA is authorized to promulgate regulations to implement chapter 19D (id., §§ 4-6), to review A.L.R.s every two years (§ 5), to deny, suspend or revoke a certification (§ 6), and use the EOEA ombudsman to mediate A.L.R. resident complaints (§ 7). The EOEA has promulgated regulations at 651 C.M.R. §§ 12.01-12.14, which in large measure track the statute.
Chapter 19D also codifies several aspects of the relationship between A.L.R. and resident, in Section 9, "Resident rights." Section 9(a) identifies eighteen resident rights, including by way of illustration, the right to: a safe and habitable unit, privacy within their unit, private communications, to contract with health care providers of their choice, manage their financial affairs, present grievances, and privacy during medical treatment. Id., § 9(a). The eighteenth enumerated resident right is "to not be evicted from the [ALR] except in accordance with the provisions of landlord tenant law as established by [c. 186 or c. 239]." Id., § 9(a)(18). Further, Section 14 requires that the A.L.R. and resident sign a written residency agreement, which must set forth the A.L.R.’s agreement to provide personal services, lodging and meals; the charges for each; a grievance procedure, and the A.L.R.’s "covenant to comply with applicable federal and state laws and regulations regarding consumer protection and [elder protection]." Id., § 14. And finally, Section 16 establishes "Residence requirements." All A.L.R.s "shall meet the requirements of all applicable federal and state laws and regulations, including but not limited to, the state sanitary code, state building and fire safety codes and regulations, and laws and regulations governing handicapped accessibility." Id., § 16. Section 16 also limits A.L.R.s to single or double-occupancy units, and requires that new A.L.R.s provide a private bath in each unit. See id.
Neither party has identified or provided the compilation of laws referenced in the second sentence of the first paragraph of Section 16, to be made available by EOEA in consultation with DHCD and the Executive Office of Public Safety, and the court’s research on the Massachusetts government website did not reveal such a list.
B. Interpretation and Harmonization of the Two Statutes
Ryan’s claims must be evaluated against this statutory backdrop. Ryan alleges Heritage violated the Security Deposit Statute by charging Ryan’s mother $2,800 community fee which it did not treat in conformance with the Security Deposit Statute. Ryan argues that the Security Deposit Statute applies to A.L.R.s and that harmonization of the two statutes is easy. He relies heavily on two provisions of chapter 19D. First, Section 18(a) exempts A.L.R.s from certain statutes, namely, G.L.c. 111, §§ 25B-25H, 51, and 70E-73B, and G.L.c. 40A, § 9, seventh para., but does not exempt A.L.R.s from the Security Deposit Statute. Second, in two places chapter 19D requires A.L.R.s to comply with otherwise applicable federal and state laws: Section 16 requires compliance with all applicable state and federal law, including without limitation, sanitary and fire safety codes; and Section 14 mandates written residency agreements that must promise compliance with federal and state laws regarding consumer protection. Because the Security Deposit Statute predates chapter 19D and the Legislature did not list it among the statutes from which A.L.R.s are explicitly exempt, Ryan contends, this court cannot hold A.L.R.s exempt. To do so, Ryan argues, would be to add language to chapter 19D that the Legislature did not include. Provencal v. Commonwealth Health Ins. Connector Auth., 456 Mass. 506, 516 (2010) (court may not read into a statute language "which the Legislature did not see fit to put there").
Ryan’s argument has technical appeal; the Legislature could have included the Security Deposit Statute in Section 18 but did not. However, by focusing on the exemption clause (§ 18) and the "otherwise applicable law" clause (§ 16), Ryan’s interpretation avoids the broader context, namely, that in chapter 19D the Legislature established a new statutory facility-the Assisted Living Residence. Whether the Legislature intended the existing Security Deposit Statute to apply to A.L.R.s requires analysis of not only Sections 18 and 16 but the statute as a whole. See Commonwealth v. Woody Hole, Martha’s Vineyard & Nantucket S.S. Auth., 352 Mass. 617, 618 (1967) ("None of the words of a statute is to be regarded as superfluous, but each is to be given its ordinary meaning without overemphasizing its effect upon the other terms appearing in the statute, so that the enactment considered as a whole shall constitute a consistent and harmonious statutory provision capable of effectuating the presumed intention of the Legislature"). Considering both statutes and all of chapter 19D, the court determines that the Legislature did not intend A.L.R.s established and regulated under chapter 19D to be subject to the Security Deposit Statute, as discussed below.
First, chapter 19D does not use the terms "lease," "lessor" or "tenant" employed in c. 186, § 15B. Chapter 19D instead defines "Assisted Living Residence" and "Resident" and uses those terms throughout the statute. But the distinction between these living arrangements goes well beyond the labels applied by the Legislature. The landlord-tenant relationship applies to the lease of residential property, and the Security Deposit Statute applies broadly to such relationships. In contrast, the A.L.R.-resident relationship does not concern lodging alone; it concerns a combination of lodging and services. Chapter 19D throughout makes clear that A.L.R.s must provide lodging, meals and personal services-namely, assistance with activities of daily living such as bathing, dressing/grooming, ambulation, eating and toileting. See G.L.c. 19D, §§ 1, 2, 4, 10, 12, discussed supra. This makes the A.L.R.-resident relationship substantively different from the landlord-tenant relationship; it is statutorily unique. The Legislature did not use the familiar lessor-tenant terminology; it used the new terms of "ALR" and "resident." This reflects not an oversight but the distinction between A.L.R.s and other living arrangements, whether landlord-tenant relationships or nursing homes. See City of Worcester v. College Hill Properties, LLC, 465 Mass. 134, 139 (2013) (legislature presumed to know prior statutes and case law).
The distinction between the A.L.R.-resident relationship and a housing-only relationship is reflected elsewhere in chapter 19D. Section 3 exempts from A.L.R. certification requirements "elderly housing." Section 1 defines "elderly housing" as "any residential premises available for lease by elderly or disabled individuals which is financed or subsidized by state or federal housing programs established primarily to furnish housing rather than housing and personal services ..." G.L.c. 19D, §§ 1, 3 (emphasis supplied). These provisions show that the Legislature purposely distinguished A.L.R.s from housing-only arrangements and leases for such housing.
The prominence of personal services in the A.L.R.-resident relationship, as well as the statutory mandate to provide those services, distinguishes Heritage from lessors who unsuccessfully have sought to avoid the Security Deposit Statute by creating new labels for upfront fees. See, e.g., Hermida, 826 F.Supp.2d at 384 (D.Mass. 2011) ("amenity fees" for condo common areas). The fees in those cases were closely related to the leased property. Id.; Perry, 2014 WL 4198850, at *4. The lessor was not charging for providing personal services, let alone services mandated by statute. See id.
Here, Heritage was obligated by statute to provide an individualized service plan for Ms. Ryan at the outset of her residency, and that was one of the services funded by the community fee. Under Ryan’s interpretation, Heritage may not charge for generating the service plan it is obligated to provide. But chapter 19D does not so restrict charges for that required plan, or provide that those costs must be incorporated into monthly rent. The EOEA, which administers chapter 19D, is aware of fees, like the community fee here, charged at the outset of an A.L.R. tenancy, as it advises consumers of these fees and the ability to shop and compare.
The EOEA publishes a Consumer Guide to Assisted Living in Massachusetts, which contains a discussion of "initial fees." See Exh. C to Heritage’s Motion, at 5 ("These initial fees may be called ‘entrance fees’ or ‘community fees.’ They can range from a hundred to thousands of dollars and are usually not refundable").
The court’s interpretation of the two relevant statutes in this decision relies on the statutes themselves and not the EOEA regulations or Consumer Guide. In any event, the regulations do not directly answer the question of the interplay between chapter 19D and the Security Deposit Statute; they say no more than chapter 19D itself on that question. The EOEA, of course, must exercise its regulatory authority in a manner consistent with the governing statute. See South St. Nominee Trust v. Board of Assessors of Carlisle, 70 Mass.App.Ct. 853, 859 (2007) (declining to defer to agency interpretation that is inconsistent with statute).
The prominent role of services in the A.L.R.-resident relationship make it different from the lessor-tenant relationship to which the Security Deposit Statute applies. Although the two statutes can be reconciled based on language in chapter 19D, as discussed immediately below, even if they could not, the more general Security Deposit Statute would yield to chapter 19D-which is a more specific statute governing a particular type of living arrangement. See Alliance to Protect Nantucket Sound v. Dept. Pub. Utilities, 461 Mass. 166, 184 (2011) ("If a general statute and a specific statute cannot be reconciled, the general statute must yield to the specific statute. This is particularly true if the specific statute was enacted after the general statute").
Second, Sections 16 and 18 of chapter 19D are not the only provisions relevant to harmonizing the two statutes. It is true that A.L.R.s are not explicitly exempted from landlord-tenant law in Section 18(a) and that Section 16 requires A.L.R.s to comply with otherwise applicable law. Read in the context of the entire statute, those provisions serve particular purposes. The statutes identified in Section 18(a) all concern state regulatory regimes governing hospitals, nursing homes, rehabilitation hospitals, and skilled nursing facilities. Section 18(a) makes clear that A.L.R.s are different from those facilities and need not comply with the same regulatory regimes (ALRs must instead comply with chapter 19D). Section 16, "Residence requirements," by its plain language is concerned with the physical plant of the A.L.R.. That section requires single- or double-occupancy units only, a private bathroom in newly constructed A.L.R.s, and a kitchenette or access to cooking facilities. Id., § 16. In that context, the section requires compliance with all applicable federal or state laws and regulations including sanitary and fire codes and regulations governing handicapped accessibility. Section 16 does not necessarily incorporate all other laws, but instead concerns laws relevant to the A.L.R.’s physical facility. The EOEA so interprets Section 16, as that section’s requirements appear in the "physical requirements" section of the EOEA regulations on "General Requirements for [ALRs]." See 651 C.M.R. 12.04(1).
Section 18 also exempts A.L.R.s from special permit requirements, by reference to G.L.c. 40A, § 9.
More to the point, elsewhere in chapter 19D the Legislature explicitly considered the applicability of landlord-tenant law found in chapter 186. G.L.c. 19D, § 9(a)(18) provides that no resident may be evicted from an A.L.R. "except in accordance with the provision of landlord tenant law as established by chapter [186] or [239]." The A.L.R. statute thus expressly incorporated the protections of landlord tenant law and chapter 186 with respect to evictions. If, as Ryan contends, all the protections of c. 186 apply to the A.L.R.-resident relationship, then the text in Section 9(a)(18) would be superfluous. Commonwealth v. Maher, 408 Mass. 34, 37 (1990) (courts avoid a construction that would "make statutory language meaningless"); Commonwealth v. Woods Hole, Martha’s Vineyard & Nantucket S.S. Auth., 352 Mass. 617, 618 (1967) ("none of the words of a statute is to be regarded as superfluous"). The better interpretation is that the Legislature made clear that landlord-tenant law applied to A.L.R.s only insofar as chapter 19D incorporated chapter 186’s protections against eviction. The Legislature elected not to incorporate the rest of chapter 186, and the statements regarding "otherwise applicable laws" in Sections 16 and 14 do not overcome this legislative expression on the applicability of landlord-tenant law.
Chapter 239 established the summary process for eviction of residential tenants.
Ryan has urged the court to reach the same conclusion that the Superior Court (Salinger, J.) did in Gowen v. Benchmark Senior Living, LLC, No. 1684cv03972 (BLS-1), denying an A.L.R.’s motion to dismiss a class action alleging violation of the Security Deposit Statute. This court’s decision focuses on chapter 19D’s partial incorporation of c. 186’s protections in Section 9(a)(18), and its impact on interpreting the whole of chapter 19D, in a manner that the Gowen decision did not.
For additional evidence of the limited incorporation of c. 186 and the Security Deposit Statute, the first clause of that statute strictly limits when a landlord may enter a tenant’s premises before the end of the tenancy. G.L.c. 186, § 15B(1)(a). In contrast, chapter 19D allows the A.L.R. to adopt rules allowing entrance into a resident’s unit for reason of promoting health, safety or welfare of residents. G.L.c. 19D, § 9(3).
Section 14 requires that A.L.R.s in their residency agreements promise to comply with applicable federal and state consumer protection laws. The Security Deposit Statute is a state consumer protection law. See 940 C.M.R. 3.16, .17. However, in light of the court’s interpretation of chapter 19D, particularly the statute’s explicit incorporation of the eviction provisions of c. 186, the Security Deposit Statute is not an applicable state consumer protection law.
This conclusion is bolstered by the fact that chapter 19D provides a comprehensive set of protections to residents in A.L.R.s. Chapter 19D does not displace landlord-tenant law and leave residents to fend for themselves. It provides a comprehensive list of resident rights which, generally speaking, demand fairness in the A.L.R.-resident relationship. These rights include privacy rights, use of personal property in the living area and eviction protections-concerns otherwise within the scope of landlord-tenant law. G.L.c. 19D, § 9. Residents also are statutorily entitled to a written residency agreement and an individualized plan for services. Id., §§ 14, 12. And importantly, the Legislature gave the EOEA authority to regulate and to oversee implementation of the statute.
Construing the statute as a whole, the Legislature did not intend to apply the Security Deposit Statute to A.L.R.s when it enacted chapter 19D.
Third, although the court’s decision turns on construction of the two statutes and not EOEA regulations under chapter 19D, the EOEA, the agency charged with implementing chapter 19D, does not share Ryan’s view that A.L.R.s are prohibited from charging up-front fees because of the Security Deposit Statute. EOEA regulations do not expressly address application of the Security Deposit Statute. Like chapter 19D, the only explicit reference to chapter 186 in the regulations concerns the resident’s right not to be evicted except in accordance with landlord-tenant law in chapters 186 and 239, including an eviction notice and court proceedings when required. 651 C.M.R. 12.08(1)(r), 12.08(2)(f). But in EOEA’s Consumer Guide to Assisted Living Facilities, the agency demonstrates that it does not apply the Security Deposit Statute in the manner urged by Ryan. Among the questions EOEA suggests that consumers ask of a prospective A.L.R. is: "Does the A.L.R. require an initial entrance fee, application fee or deposit up front? You should ask for an explanation of any up-frant fees in writing. Depending on the circumstances, it may be possible to negotiate these fees." Consumer Guide, at 3 (emphasis in original); see also p. 13. To the extent the EOEA has considered the issue raised by Heritage’s motion, the agency does not apply the Security Deposit Statute to A.L.R.s.
"In general, [courts] give deference to an agency’s interpretation of those statutes which it is charged with enforcing." Providence and Worcester R.R. Co. v. Energy Facilities Siting Bd., 453 Mass. 135, 141 (2009).
Finally, courts in other jurisdictions facing a similar question-whether generally applicable landlord-tenant law applied to a more recently authorized living arrangement-have declined to apply the landlord-tenant law. No Massachusetts appellate case has considered the question. In the different context of a zoning appeal, the Appeals Court acknowledged the differences between an A.L.R. and a typical landlord-tenant relationship:
The relationship between a tenant and a landlord in a multi-family dwelling is substantially different from the relationship between a resident and the care provider in an assisted living facility ... [T]here is a measure of "care" which residents in an assisted living facility can expect, beyond and different from the reasonable expectations of tenants in a multi-family dwelling. The reasonable expectation of some measure of care is inherent in the very definition of an [ALR] provided by chapter 19D, which requires that assistance with activities of daily living will be provided by a "care provider."APT Asset Mgt., Inc. v. Board of Appeals of Melrose, 50 Mass.App. 133, 137 (2000). The Appeals Court’s evaluation of A.L.R.s Melrose is consistent with the discussion in this decision concerning the prominence of services in. the A.L.R. relationship. See id. at 142 ("these services cannot be separated from the residential purpose of an assisted living residence: If the services are not provided, the facility is not an assisted living residence"). Heritage has identified one case outside Massachusetts that declined to apply a security deposit statute to a new statutorily-authorized living arrangement. In Jackim v. CC-Lake, Inc., 363 Ill.App.3d 759, 765-69 (2005), the court declined to apply Illinois’ security deposit statute to a life care provider, which held a permit under the Illinois Life Care Facilities Act, because the services provided by the facility distinguished it from a lessor/lessee relationship. Id. at 765-69; but see M & I First Natl. Bank v. Episcopal Homes Mgt., Inc., 195 Wisc.2d 485, 500-01, 508-10 (applying Wisconsin security deposit statute to entry fee assessed by elderly housing facility). Other identified cases distinguish between lodging-only arrangements and lodging-and-services arrangements. They are instructive, like the Melrose case, but do not concern an effort, like Ryan’s, to apply a security deposit statute to a new statutory living arrangement. See Starns v. American Baptist Estates of Red Bank, 352 N.J.Super. 327, 334-37 (2002) (distinguishing between continuing care retirement community and residential rentals); Sunrise Group Homes, Inc. v. Ferguson, 55 Wash.App. 285, 287-89 (1989) (declining to apply the eviction provisions of landlord-tenant statute to congregate living facility for disabled resident, because facility provided services not only lodging). At least the Illinois decision in Jackim supports the conclusion that generally applicable landlord-tenant law can be displaced by a new, more specific regulatory regime governing a particular type of residential arrangement.
Although the elderly housing facility at issue in M & I was designed to promote independent living, it did not provide personal services to residents, nor was it authorized by statute or regulated by an administrative agency, all of which distinguish the facility from Heritage. M & I First Natl. Bank, 195 Wisc.2d at 508-10.
For all these reasons, the proper interpretation of chapter 19D, and harmonization of that statute with the Security Deposit Statute, is that the Security Deposit Statute does not apply to A.L.R.s established and regulated under chapter 19D. The Security Deposit Statute thus does not prohibit Heritage’s collection of the up-front "community fee" at issue in Ryan’s complaint. Ryan’s claim for violation of the Security Deposit Act is dismissed for failure to state a claim under Mass.R.Civ.P. 12(b)(6). Because Ryan’s chapter 93A claim relies entirely on the alleged violation of the Security Deposit Statute, it is also dismissed.
CONCLUSION
For the reasons set forth above, Heritage’s motion to dismiss is allowed. Ryan’s complaint is dismissed with prejudice.