On appeal from the Superior Court of New Jersey, Law Division, Special Civil Part, Hudson County, Docket No. LT-6372-09.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued February 24, 2010 - Decided
Before Judges Graves and Sabatino.
In this landlord-tenant case, defendant Norma Ford (Ford) appeals from a judgment of possession in favor of plaintiff Jersey City Housing Authority (JCHA), a public housing authority (PHA). Plaintiff agreed not to execute the warrant of removal during the pendency of this appeal. For the reasons that follow, we reverse and remand for further proceedings.
Ford has been a resident of the JCHA for over thirty years and was employed by plaintiff as a security monitor for fifteen years. According to Ford, plaintiff never complained about her performance as an employee or her conduct as a tenant until her son's arrest on May 14, 2008.
On June 22, 1998, Ford signed a copy of plaintiff's One Strike Policy (the 1998 Policy), which regulated the conduct of JCHA tenants. This document stated that "[a]ll drug-related activity, whether on or off the premises, is cause for eviction." The prohibition applied to "the tenant, any member of the tenant's household, [and] guest[s]" and stated that "[d]rug related or criminal activity in violation of this lease provision will be treated as a serious violation of the material terms of this lease."
Nevertheless, the 1998 Policy stated that its provisions would be "implemented and enforced evenhandedly" and that "[s]imilar lease violations in similar circumstances [would] result in similar sanctions." The policy also recited four mitigating "factors to be considered in determining whether to seek the eviction of a household":
[1.] The magnitude or seriousness of the offense. All drug offenses are serious and it is reasonable to have a strict policy which allocates relatively scarce affordable housing resources to those who play by the rules and remain free of drug activity. However, a less serious non-frequent indiscretion by a member of the household cannot be equated with the most serious offense i.e., performing as a drug merchant or committing of violent acts. The JCHA will review closely cases in which the offense is relatively less serious.
[2.] JCHA intervention by staff who will work with families on a voluntary basis. If the family is participating fully and most importantly making sufficient progress in a plan to correct a drug problem, such will be taken into account in determining whether to seek eviction.
[3.] The knowledge or ability to know of the offense by the head of household. For example, consideration of sanctions other than eviction might be made if the offense was committed by a household member, off the site and out of the control of the head of household.
[4.] Frequency of violations. If a family is cited by Management more than once for serious lease violations, repeated violations by the same family unit indicates a lack of ability or motivation to abide by the rules.
In addition, the 1998 Policy included several non-eviction "alternate sanctions" to be considered where "the criminal act is [not] committed by the head of household or spouse while on the premises." Finally, the policy contained a section requiring written notice of a decision to terminate and guaranteeing tenants "the right to an informal hearing before the Manager." JCHA counsel were to "attend [this hearing] and provide to the Tenant a summary of the hearing and any determinations reached."
On July 31, 2006, Ford signed a lease that included another copy of plaintiff's "One Strike Policy." The lease required her to certify that "no member of the Resident Household or guest shall engage in . . . [a]ny drug-related activity on or off the premises." "Drug-related criminal activity" was defined as "the illegal manufacture, sale, distribution, use or possession with intent to manufacture, sell, distribute, or use . . . a controlled substance." Any violation of the policy would constitute "cause for terminating the tenancy and for eviction from the unit." Where a decision to terminate a tenancy was made based on drug-related criminal activity, the lease required plaintiff to provide the tenant with written notice but explicitly denied tenants the right to request a grievance hearing.
Each year, plaintiff requires its tenants to undergo "recertification," a process that allows it to monitor any changes to tenants' household income and membership. One of Ford's recertification documents, a form HUD-50058*fn1 dated September 19, 2007, included her son, Joshua Simmons (Simmons), as a member of her household.
On May 14, 2008, Simmons was arrested and charged with various drug offenses. Several weeks later, Ford received a notice from plaintiff ordering her to cease all activities in violation of her lease. She also attended an informal hearing held by plaintiff on July 18, 2008.
Simmons pled guilty to possession of a controlled substance with intent to distribute within one thousand feet of a school and was sentenced to three years in prison on January 23, 2009. Thereafter, plaintiff sent Ford a notice of termination dated February 6, 2009, demanding that she relinquish the premises on or before April 1, 2009, or face eviction. The notice of termination also included the following:
While you are not entitled to a grievance hearing, your landlord voluntarily extended to you an opportunity to discuss this matter at an Informal Hearing on July 18, 2008. The purpose of this grievance hearing was to give you an opportunity to respond to the allegations made in the Notice to Cease.
On April 23, 2009, plaintiff filed a complaint for eviction.
At the June 25, 2009 trial, the court heard testimony from five witnesses: Michael Burgess and Doug Paretto, two Jersey City police officers; Debra Stevens (Stevens), a JCHA assistant asset manager; Bianca Simmons, Ford's niece; and Ford herself. The police officers both stated the offense did not occur on JCHA property and there was no evidence of any involvement by Ford.
In addition, Stevens testified as follows with respect to the JCHA hearing process:
At an informal hearing the arrest is discussed by the hearing officer along with the manager and the resident, the head of household. And the recommendation comes specifically from the manager. And during the informal hearing officers talk to the resident and tell them what's going on, what happened, and [the] resident would know to look forward whether they're going to have to go to court. And whether they'll be terminated or not. It's like they're letting them know that the housing authority is seeking eviction.
Stevens further stated that plaintiff's "general policy" is to "proceed with termination," although she acknowledged that "exception[s] to the rule" have been made.
On direct examination, Stevens testified that she considered a number of factors when evaluating Ford's case but saw no grounds for an exception:
Q. . . . [W]as Norma Ford given an opportunity to explain to members of the housing authority why she should not be evicted?
Q. Okay. And did you consider whatever ...