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Pasquince v. Brighton Arms Apartments

June 30, 2005

JOHN PASQUINCE, PLAINTIFF-APPELLANT,
v.
BRIGHTON ARMS APARTMENTS, DEFENDANT-RESPONDENT.



On appeal from Superior Court of New Jersey, Law Division, Monmouth County, Docket No. DC-6984-04.

The opinion of the court was delivered by: Petrella, P.J.A.D.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE COMMITTEE ON OPINIONS

APPROVED FOR PUBLICATION

Argued May 31, 2005

Before Judges Petrella, Lintner and Yannotti.

Plaintiff John Pasquince appeals from a decision in the Special Civil Part, following a bench trial, concluding that he had been properly rejected as a proposed tenant by Brighton Arms Apartments due to his lack of creditworthiness, rather than because he was a recipient of Section 8*fn1 housing assistance. Plaintiff's summary proceeding application under R. 4:67-2 on the basis of a claim of violation of the New Jersey Law Against Discrimination (LAD), N.J.S.A. 10:5-12(g)(4), was rejected.

On appeal, Pasquince argues that the trial judge erred in:

(1) concluding that a landlord may consider a legitimate assessment of creditworthiness as a valid issue to reject a prospective Section 8 tenant's application under the amended LAD Section; (2) finding that he failed to prove that the poor credit history defense was a pretext for discrimination; and (3) rejecting his rental application based solely on poor "creditworthiness" where the government has guaranteed payment of a "substantial portion" of the rent.

Pasquince suffers from a medical condition which confines him to a wheelchair. He receives approximately $556 per month in combined social security disability insurance (SSD) and supplemental security income (SSI). On March 24, 2004, Pasquince submitted an application to rent a one-bedroom apartment on the first floor, which had a concrete ramp for wheelchair access, in the Brighton Arms Apartments' complex. The unit rental was $915 per month. The record indicates that Brighton Arms consists of 428 units, accepts Section 8 tenants, and presently has between thirteen and sixteen residents who receive Section 8 subsidies.

At the time Pasquince completed the rental application he presented Brighton Arms with copies of the Section 8 housing voucher and verification of his income from SSD and SSI. Pasquince's Section 8 housing voucher would cover $774 per month of the rent, leaving him responsible for the remaining $141 per month. He also told Brighton Arms about his poor credit history and discussed the possibility of his sister cosigning the lease. Although she initially agreed to cosign the lease, his sister subsequently withdrew her consent.

Brighton Arms has a written policy to obtain credit checks on all applicants. It also imposes minimum income requirements and performs criminal background checks on applicants who pass the initial credit check. However, Brighton Arms exempts Section 8 applicants from its minimum income requirements because it may not discriminate against such applicants based on the source of their income. It does not exempt Section 8 applicants from other checks and its policy is to deny rental applications based upon poor credit history. The credit report on Pasquince indicated numerous unpaid obligations, including $2,922 owed to a prior landlord who had evicted Pasquince, and unpaid medical, utility and credit card bills.

Pasquince attributed his credit difficulties to the window of time between the onset of his disability and the loss of his employment in 2000-2001, and the date in 2003 he was awarded SSD and SSI benefits. He asserted that since he received approval for SSD and SSI payments he had begun to resolve his poor credit history and get his life back on track.

Brighton Arms denied Pasquince's rental application based upon his poor credit history and informed him of his right to contact the consumer reporting agency to dispute the accuracy of his credit report. At the hearing, Brighton Arms' representative explained to the trial judge that Pasquince's credit report raised concerns as to whether he would have the ability or inclination to pay his portion of the rent, notwithstanding receipt of Section 8 housing assistance funds.

In an attempt to rebut poor credit history as a basis for his application denial, Pasquince argued that two of Brighton Arms' Section 8 tenants had poor credit histories. However, Brighton Arms distinguished those tenants' credit histories. One tenant did not have any bad debt write-offs, and except for a child support collection account, the debts were medical. Brighton Arms indicated that it gives less weight to medical collection items because they are often disputed with Medicare and remain open for long periods of time before they are resolved. With respect to the second tenant, she had been employed at the same job for twenty-four years and her poor credit resulted from a personal bankruptcy filed in 1992 with her husband.

The trial judge rejected Pasquince's arguments and found no evidence that Brighton Arms discriminated against him on the basis of his Section 8 status. The judge filed a comprehensive letter opinion on June 21, 2004.

I.

The factual findings of a trial judge are disturbed only where they are unsupported by competent evidence in the record.

Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974). We review legal conclusions de novo. Manalapin Realty, LP v. Township Comm. of Manalapan, 140 N.J. 366, 378 (1995). We affirm Judge Sullivan's decision, and add the following discussion with respect to Pasquince's argument that the 2002 amendment of the LAD statute, including the deletion of a reference in a repealed statute to creditworthiness, should give rise to a different result.

Prior to September 15, 2002, N.J.S.A. 2A:42-100 provided, in pertinent part:

No person, firm or corporation or any agent, officer or employee thereof shall refuse to rent or lease any house or apartment to another person because of the source of any lawful income received by the person or the source of any lawful rent payment to be paid for the house or apartment. . . . Nothing contained in this section shall limit the ability of a person, firm or corporation or any agent, officer or employee thereof to refuse to rent or lease any house or apartment because of the creditworthiness of the person or persons seeking to rent a house or apartment.

[N.J.S.A. 2A:42-100 (repealed).]

This statute was repealed by L. 2002, c. 82, § 7 (effective September 5, 2002). However, the same enactment amended the LAD to prohibit discrimination based upon an individual's source of lawful income used for rental or mortgage payments. L. 2002, c. 82, § 3 (effective September 5, 2002). Among this legislation's amendments to the LAD was the addition of N.J.S.A. 10:5-12(g)(4), which currently provides:

It shall be an unlawful employment practice, or, as the case may be, an unlawful discrimination:

g. For any person, including but not limited to, any owner, lessee, sublessee, assignee or managing agent of, or other person having the right of ownership or possession of or the right to sell, rent, lease, assign, or sublease any real property or part or portion thereof, or any agent or employee of any of these:

(4) To refuse to sell, rent, lease, assign, or sublease or otherwise to delay or to withhold from any person or group of persons any real property or part or portion thereof because of the source of any lawful income received by the person or the source of any lawful rent payment to be paid for the real property; . . .

The Legislature obviously repealed N.J.S.A. 2A:42-100 and evinced an intent to move its provisions to the LAD. The effects of moving the non-discrimination provision to the LAD were to significantly increase the civil penalties available for discrimination of this type, and to give enforcement authority to the housing authorities, the Division on Civil Rights, and the Attorney General. Press Release, Office of Governor (Sept. 5, 2002); Sponsors' Statement to S.631 (enacted as L.2002, c.82); Statement of Senate Judiciary Committee to S.631 (enacted as L. 2002, c. 82); Sponsors' Statement to A.710 (enacted as L. 2002, c. 82); Statement of Assembly Housing and Local Government Committee to A.710 (enacted as L. 2002, c. 82).

Obviously, the language in N.J.S.A. 10:5-12(g)(4) is not an exact replica of the repealed statute, N.J.S.A. 2A:42-100, because it does not state that, notwithstanding the non-discrimination provision, landlords may still consider creditworthiness as a criteria for accepting or rejecting rental applicants. Nevertheless, as discussed hereinafter, it is well established that creditworthiness is a legitimate, non-discriminatory criteria which landlords are permitted to consider when evaluating prospective tenants, including recipients of Section 8 housing assistance.

There is no evidence that, by repealing N.J.S.A. 2A:42-100, the Legislature intended to change the status quo, and, absent a clear manifestation to the contrary, the judiciary will not impute to the Legislature an intent to change established law. State v. Dalglish, 86 N.J. 503, 512 (1981); In re Formal Complaint of Borough of Glen Rock Against Village of Ridgewood, 25 N.J. 241, 249 (1957), overruled on other grounds, City of N. Wildwood v. Bd. Of Comm'rs of City of Wildwood, 71 N.J. 354 (1976); Caldwell v. Township of Rochelle Park, 135 N.J. Super. 66, 74 (Law Div. 1975) ("Generally, there is a presumption against legislative intent to effect a change of substance by a revision of laws, and that presumption is not necessarily overcome by mere change of phraseology, or addition or omission of words."). Cf., Singleton v. Consol. Freightways Corp., 64 ...


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