Opinion
14-P-239
07-01-2015
SAFE HAVEN SOBER HOUSES, LLC, & others v. CHARLES "CHUCK" TURNER & another.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its rule 1:28, as amended by 73 Mass. App. Ct. 1001 (2009), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The plaintiffs, Safe Haven Sober Houses, LLC, David Perry, and David Fromm (collectively, Safe Haven), filed suit against former city of Boston (city) councilor Charles "Chuck" Turner and the former commissioner of the city's inspectional services department (ISD), William Good, alleging, among other things, violations of the Fair Housing Amendments Act (FHAA) and 42 U.S.C. § 1983 (2012), civil conspiracy, violations of G. L. c. 40A, § 3, and defamation. After an eight-day bench trial, a judge of the Superior Court found for the defendants on all counts. The plaintiffs appealed. We affirm.
Discussion. "When reviewing the trial judge's decision, we accept his findings of fact as true unless they are clearly erroneous, and we give due regard to the judge's assessment of the witnesses' credibility. See Mass.R.Civ.P. 52(a), as amended, 423 Mass. 1402 (1996)." Andover Hous. Authy. v. Shkolnik, 443 Mass. 300, 306 (2005). "A finding [of fact] is clearly erroneous . . . [if], although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed." Woodward Sch. for Girls, Inc. v. Quincy, 469 Mass. 151, 159 (2014), quoting from Demoulas v. Demoulas Super Mkts., Inc., 424 Mass. 501, 509 (1997). We review conclusions of law de novo. Martin v. Simmons Properties, LLC, 467 Mass. 1, 8 (2014).
FHAA. The FHAA prohibits discrimination in housing based on handicap. Andover Hous. Authy. v. Shkolnik, supra. See 42 U.S.C. § 3604(f)(1)-(2) (2012). Persons recovering from drug and alcohol addiction are considered to be handicapped persons under the statute. See Peabody Properties, Inc. v. Sherman, 418 Mass. 603, 606 (1994). See also South Middlesex Opportunity Council, Inc. v. Framingham, 752 F. Supp. 2d 85, 95 (D. Mass. 2010). Owners of homes housing such residents are also protected under the FHAA. See Edmonds v. Oxford House, Inc., 514 U.S. 725, 728-729 (1995).
"'[H]andicap' is defined as '(1) a physical or mental impairment which substantially limits one or more of such person's major life activities, (2) a record of having such an impairment, or (3) being regarded as having such an impairment.'" Peabody Properties, Inc. v. Sherman, 418 Mass. 603, 606 (1994), quoting from 42 U.S.C. § 3602(h).
The statute provides in relevant part: "[I]t shall be unlawful . . . [t]o discriminate in the sale or rental, or to otherwise make unavailable or deny, a dwelling to any buyer or renter because of a handicap . . . [or] [t]o discriminate against any person in the terms, conditions, or privileges of sale or rental of a dwelling, or in the provision of services or facilities in connection with such dwelling, because of a handicap."
The plaintiffs characterize their claim as one of disparate treatment. To succeed on a claim alleging a violation of the FHAA based on disparate treatment, the plaintiffs must demonstrate that some discriminatory purpose was a motivating factor in the decisions made. See Arlington Heights v. Metropolitan Hous. Dev. Corp., 429 U.S. 252, 265-266 (1977). Safe Haven maintains that once it has shown that a discriminatory purpose "played a role," it is entitled to judgment in its favor. The statute requires, however, that a plaintiff show injury "because of" a handicap. "Proof that the decision . . . was motivated in part by a . . . discriminatory purpose [does] not necessarily . . . require[] invalidation of the challenged decision. Such proof . . . shift[s] to the [defendant] the burden of establishing that the same decision would have resulted even had the impermissible purpose not been considered." Id. at 270 n.21. See generally University of Texas S.W. Med. Center v. Nassar, 133 S. Ct. 2517, 2527 (2013) (tracing history of "but-for" causation in disparate treatment claims under Federal antidiscrimination laws). Contrast 42 U.S.C. § 2000e-5(g)(2) (2012).
Safe Haven points to telephone calls and electronic mail messages (e-mails) from Turner threatening to shut Safe Haven down, followed shortly thereafter by enforcement activity by Good, and argues that these communications and subsequent enforcement activities (not detailed here) establish conclusively that discrimination was a motivating factor. Safe Haven also points to hostile e-mails and comments from neighborhood residents and groups. It contends that these attitudes infected the entire process, and that Good's responses to these overtures were indicative of a discriminatory purpose. The judge acknowledged the "hard" facts, stating that several aspects of the testimony and the record were "concerning." Assuming without deciding that these observations by the judge were sufficient to show that either Turner or Good was motivated by a discriminatory purpose, it was for the judge to determine whether the same actions would have been taken but for the improper considerations. The judge ultimately found "that both with respect to Mr. Good and Mr. Turner there [were] good faith efforts [on] both of their parts to administer and enforce what can only be considered a very complex set of laws, regulations, [and] practices and cases that were all part of the predicate here." In short, the judge did not find that impermissible considerations were the but-for cause of the actions of either defendant.
Perry testified at trial that Turner called him and "he indicated that he [Turner] did not believe that -- he didn't like the idea of me running sober houses where I was. He told me that he intended to shut me down. He told me that he knew the people that would do it and he told me to expect a call from Inspectional Services and then he hung up."
Turner sent an e-mail to various community groups containing the following statements upon which Save Haven relies:
"One unit has been identified as a sober house and a complaint has been filed in housing court regarding the fact that the owners of the development, 'the Fromm Brothers' are violating the law through operating a sober house without the required occupancy permit.
. . .
" I am trying to get Darryl Smith of ISD to come to our meeting on the 9th to give an update on ISD's actions, what they anticipate doing in the future, and when they think the issue of the illegal sober house can be resolved through their efforts?
. . .
" I understand how slow and frustrating this process is. However, I believe that there are enough levers for us to be able to remove the sober house operation from the Juniper Street development."
The judge's conclusion was based on findings and rulings that were supported in the record. With respect to Turner, the trial judge found that Turner was influenced by the "strong feelings [of] members of the community," as well as his own concerns regarding what he felt was a significant change in use of the properties where the eleven Safe Haven homes were located, without appropriate review and oversight by city agencies. The judge found that Turner "did not exhibit a prejudice or a bias or antipathy of any sort against these kinds of facilities," and that Turner was not opposed to sober houses or the existence of sober housing in the Roxbury section of the city, as evidenced by his support and advocacy on behalf of other sober homes and treatment facilities in the area. Rather, the judge found that Turner had good faith concerns over the facilities as they were operated by Perry and Fromm.
The eleven sober homes were located in a larger development built by Fromm and presented to the community as single-family townhouse condominium residences. At the time of trial, the evidence showed that there had been overdoses (including deaths) in some of the sober home units, sober home residents were being housed in basements and garages without city permits, there were multiple sober home residents in each bedroom, and several registered sex offenders were living in the sober homes. The situation raised complex questions regarding proper classification of the sober homes, whether as group homes, lodging houses, or family units, the applicability of various health and safety codes, and zoning laws, and the interplay with the FHAA. These matters were separately addressed in proceedings in the Superior Court and the Housing Court against the city, proceedings which were consolidated pursuant to G. L. c. 211B, § 9. We express no opinion with respect to those proceedings.
With respect to Good, the judge found that community opposition did have "some impact" on him. However, the judge also found that "Mr. Good did not feel any particular community pressure that was any different than in other projects where there was community opposition." The judge found that Good did not act to "appease the discriminatory viewpoints" of the community opposition. Association of Relatives & Friends of AIDS Patients v. Regulations & Permits Admin., 740 F. Supp. 95, 104 (D. Puerto Rico 1990). See South Middlesex Opportunity Council, Inc. v. Framingham, 752 F. Supp. 2d at 98-99. Rather, the judge found that Good acted in response to the documented violations that ISD discovered on the Safe Haven residences when ISD investigated complaints.
Safe Haven also contends that it was error for the trial judge to conclude that the defendants would have been entitled to qualified immunity with respect to their FHAA claims. Since we find that there was no violation of the FHAA, we need not reach this argument.
In sum, while the record could have been interpreted in any number of ways, the judge's findings that discriminatory purposes were not the cause of the actions taken by the individual defendants were supported by the record and were not clearly erroneous.
42 U.S.C. § 1983. Safe Haven makes no argument regarding the merits of its claim under 42 U.S.C. § 1983 in its appellate brief. "[F]ailure to address this issue on appeal waives [the] right to appellate review of the judge's ruling on the merits of the [claim]. See Mass.R.A.P. 16(a)(4), as amended, 367 Mass. 921 (1975)." Abate v. Fremont Inv. & Loan, 470 Mass. 821, 833 (2015).
Civil conspiracy. Safe Haven contends that the judge erred in finding that it failed to prove by a preponderance of the evidence that the defendants acted in concert to effectuate the removal of Safe Haven from the neighborhood. "To prove their claims for civil conspiracy, the plaintiffs must show an underlying tortious act in which two or more persons acted in concert and in furtherance of a common design or agreement." Bartle v. Berry, 80 Mass. App. Ct. 372, 383-384 (2011).
The judge found that Good provided written updates to elected officials, including Turner, regarding ISD's actions at Safe Haven properties and attended community meetings to explain ISD's position regarding Safe Haven to residents of the community. However, the judge credited testimony that Good routinely communicated with elected officials and members of the community concerning ISD matters as part of his ordinary practice as the commissioner of ISD. This evidence, while establishing communication between the defendants, did not compel a finding that they acted in concert as a matter of law. See Gutierrez v. Massachusetts Bay Transp. Authy., 437 Mass. 396, 415-416 (2002). The judge did not ignore Safe Haven's evidence of agreement. Rather, he found it insufficiently persuasive, finding there was "some, but not a preponderance of evidence" of an agreement between the defendants to "put pressure on Safe Haven or use ISD to shut Safe Haven down." It was for the judge to assess the credibility and weigh the evidence. Buster v. George W. Moore, Inc. 438 Mass. 635, 642 (2003). His findings were not clearly erroneous.
Violation of G. L. c. 40A, § 3 . The plaintiffs contend that the judge erred in concluding that Good was not personally liable under G. L. c. 40A, § 3. The trial judge found that there was no bad faith or malice on the part of Good or Turner, a factual finding which, as discussed above, was supported in the record. The defendants were therefore shielded from "liability under the doctrine of common-law immunity" for their discretionary acts, including communication with elected officials and community members regarding Safe Haven. Nelson v. Salem State College, 446 Mass. 525, 538 (2006).
Defamation. Plaintiff David Perry contends that Turner defamed him by referring to him as a liar in a 2007 Boston Herald newspaper article. The article, entitled "Why Is This Man Being Called a Liar?" reported that a clinical psychologist and trial consultant, a former tenant, local officials, and city inspectors were concerned about widespread drug use among Safe Haven's residents, lack of enforcement of curfews and overnight restrictions, and possible zoning violations. The article also reported that a District Court judge refused to refer patients to Safe Haven based on unfavorable reports regarding the quality of service. One former resident was quoted as saying he was high while living in a Safe Haven residence. Perry stated that he provides "safe, structured sober housing" and does "everything [he] can do within [his] power to make sure that anyone living under one of the Safe Haven roofs comes home to a safe, clean, sober environment." However, the article then reported that when Turner approached Perry about the Safe Haven residences, Perry denied running a sober house. Perry denied making the statement to Turner. Turner is quoted as stating, "[H]e's lying and just making everyone angrier. . . . We have to wonder about his respect for the people who use this service."
"[A]n expression of 'pure opinion' is not actionable." Hipsaver, Inc. v. Kiel, 464 Mass. 517, 526 n.11 (2013) (citation omitted). "[A] statement of opinion is nonactionable if it is drawn from a disclosed fact that is either true or nondefamatory, regardless of whether the opinion was justified, so long as the statement does not imply the existence of other, undisclosed facts that are both false and defamatory. See National Assn. of Govt. Employees, Inc. v. Central Bdcst. Corp., 379 Mass. 220, 227-228 (1979); Fleming v. Benzaquin, 390 Mass. 175, 187-188 (1983)." Tech Plus, Inc. v. Ansel, 59 Mass. App. Ct. 12, 25 (2003). See King v. Globe Newspaper Co., 400 Mass. 705, 708 (1987).
Looking at the statement in the context of the article as a whole, Turner's statement to the Boston Herald was an expression of his subjective interpretation of events, and thus an opinion. See Howell v. Enterprise Publishing Co., 455 Mass. 641, 671-672 (2010). The Boston Herald article set out perspectives from multiple sources, quoted extensively from Perry in his own defense, and cited the views expressed by persons other than Perry or Turner. Turner's "assertion of deceit reasonably could be understood only as [his] personal conclusion about the information presented," not as a statement of objective fact based on undisclosed evidence. Riley v. Harr, 292 F.3d 282, 292 (1st Cir. 2002), quoting from Phantom Touring, Inc. v. Affiliated Publications, 953 F.2d 724, 730 (1st Cir. 1992).
Safe Haven argues that Turner's accusation was in fact based on an exchange between Turner and Perry, and that Turner misunderstood the difference between a sober house and a treatment facility. The judge so found, but also found that Perry's short and nonexplanatory answers to Turner's questions contributed to the confusion, and that Turner honestly believed he had been misled. The statement (denied by Perry) that Perry denied running a sober house was disclosed and is not defamatory. See National Assn. of Govt. Employees, Inc. v. Central Bdcst. Corp., supra at 226. The fact that Turner's opinion may be erroneous is not the issue. See Cole v. Westinghouse Bdcst. Co., 386 Mass. 303, 311, cert. denied, 459 U.S. 1037 (1982). The distinction between treatment programs and sober houses appears nowhere in the newspaper article, and nothing in the article suggested that Turner was relying on a set of facts unknown to the reader. In light of the facts asserted in the article, readers "could make up their own minds and generate their own opinions or ideas which might or might not accord with [Turner's]." National Assn. of Govt. Employees, Inc. v. Central Bdcst. Corp., supra.
Judgment affirmed.
By the Court (Fecteau, Agnes & Sullivan, JJ.),
The panelists are listed in order of seniority. --------
Clerk Entered: July 1, 2015.