December 12, 2012
HOUSING AUTHORITY OF THE CITY OF BAYONNE, PLAINTIFF-RESPONDENT,
YOLANDA HERNANDEZ, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Docket No. LT-16493-10.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued November 7, 2011
Before Judges A. A. Rodriguez and Fasciale.
Defendant-tenant appeals from a December 9, 2010 judgment for possession in favor of plaintiff-landlord. Defendant argues that the trial judge erred by finding that criminal activity occurred in her apartment and that she had damaged the premises.
Defendant lived in a public housing authority (PHA) apartment with her three daughters. Before traveling to Puerto Rico on August 11, 2010, defendant gave her adult son a key "to check [on] the apartment." On August 15, 2010, while defendant was still away, firefighters entered her apartment*fn1 and found a dog tied to a radiator near a stove, which had all four knobs open and one lit pilot. The fire captain testified that their gas meter readings were "so high" that an explosion could have occurred. He further testified that the dog appeared "panic[ked]," "hyperactive," and "scared," and had to deal with "low oxygen" levels because of the "alarming" amount of gas in the air.*fn2 He also testified that the gas had been flowing for fifteen to twenty minutes, thereby prompting him to order the building tenants to remain in their apartments for half an hour. Firefighters turned off the stove and electricity, and ventilated the apartment. Defendant testified that she gave keys to only her son, and she did not receive any reports of a break-in for the day at issue.
In September 2010, plaintiff served defendant with a notice to quit and demand for possession.*fn3 In November 2010, plaintiff filed its complaint for possession based on N.J.S.A. 2A:18- 61.1(b) (disorderly tenant), (c) (willful or grossly negligent damages to premises), (d) (violation of rules and regulations), (e)(1) (violation of lease covenants), and (e)(2) (violation of lease covenants in public housing).*fn4 In December 2010, the judge conducted the tenancy trial, rendered a four-page oral opinion, and entered a judgment for possession.*fn5 The judge stated:
[Defendant] is responsible for the actions of all those that she either gives a key to or allows into the apartment. [Regarding N.J.S.A. 2A:18-61.1(c), t]he arguments . . . that [defendant's] gross negligence [did not] cause destruction, damage[,] or injury to the premises, this [c]court disagrees [with] . . . .
The firefighters were there for at least an hour. The tenants were confined to their . . . apartments for a half hour. It might . . . not be a tangible destruction, but it was serious damage for all those involved, and injury for all those involved. [Regarding N.J.S.A. 2A:18-61.1(e)(2),] the illegal activity was the abandonment of an animal, of a dog in an apartment for which [defendant] is held responsible. It was the . . . fire captain's testimony that the dog was . . . panicked. He was hyperactive. He was deprived of fresh air and oxygen. That too, contributes to the illegal activity and the cruelty to the dog.*fn6 [Defendant] is the individual that controls the apartment and has given her key out to . . . [her] son . . . . So[,] it's for those reasons that I am going to grant [plaintiff] judgment of possession . . . .
On January 10, 2011, plaintiff obtained a warrant of removal. On January 14, 2011, defendant filed an order to show cause requesting a stay pending appeal, and, on January 26, 2011, the judge stayed the judgment. This appeal followed. On appeal, defendant argues that the judge erred by (1) finding a violation of N.J.S.A. 2A:18-61.1(e)(2) because neither defendant nor a covered person committed a crime, and even if a covered person had committed a crime, a violation of N.J.S.A. 4:22-17a(3) does not constitute a violation of federal policy; and (2) no actual physical damage occurred. Defendant also maintains that neither she nor her children willfully or grossly negligently damaged the premises.
Factual "'[f]indings by the trial judge are considered binding on appeal when supported by adequate, substantial[,] and credible evidence.'" Walid v. Yolanda for Irene Couture, Inc., 425 N.J. Super. 171, 179 (App. Div. 2012) (quoting Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974)). "'[W]e do not disturb the factual findings and legal conclusions of the trial judge unless we are convinced that they are so manifestly unsupported by or inconsistent with the competent, relevant[,] and reasonably credible evidence as to offend the interests of justice.'" Ibid. (quoting Fagliarone v. Twp. of N. Bergen, 78 N.J. Super. 154, 155 (App. Div.), certif. denied, 40 N.J. 221 (1963)). Moreover "a trial judge's 'interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference.'" Ibid. (quoting Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995)). As such, we review a trial judge's legal conclusions de novo. Ibid.
We focus on defendant's contention that the judge erred by issuing the judgment based on N.J.S.A. 2A:18-61.1(e)(2). "[F]ederally-subsidized public housing agencies, such as plaintiff, are charged with the responsibility of providing safe housing for their tenants." Housing & Redevelopment Auth. of Franklin v. Miller, 397 N.J. Super. 1, 4 (App. Div. 2007) (citing 42 U.S.C.A. § 1437(a)(1)(A) (holding eviction proper where court convicted tenant of disorderly persons offenses).
Every public housing lease must provide that any criminal activity that threatens the health, safety, or right to peaceful enjoyment of the premises by other tenants . . . engaged in by a public housing tenant, any member of the tenant's household, or any guest or other person under the tenant's control, shall be cause for termination of tenancy . . . . [42 U.S.C.A. § 1437d(l)(6) (emphasis added).]
See also Miller, supra, 397 N.J. Super. at 4. HUD implements this provision through its regulations. Miller, supra, 397 N.J. Super. at 5. The pertinent regulation herein, 24 C.F.R. 966.4(l)(5)(iii)(A), provides that a PHA may evict the tenant by judicial action for criminal activity in accordance with this section if the PHA determines that the covered person has engaged in the criminal activity, regardless of whether the covered person has been arrested or convicted for such activity and without satisfying the standard of proof used for a criminal conviction.
Pursuant to N.J.S.A. 2A:18-61.1(e)(2), a PHA may evict a tenant when [i]n public housing under the control of a [PHA] . . ., the person has substantially violated or breached any of the covenants or agreements contained in the lease for the premises pertaining to illegal uses of controlled dangerous substances, or other illegal activities, . . . provided that such covenant or agreement conforms to federal guidelines regarding such lease provisions and was contained in the lease at the beginning of the lease term.
Congress enacted 42 U.S.C.A. § 1437 "for the broad purpose of making public housing safer." Miller, supra, 397 N.J.
Super. at 5. The Court in Miller, stated:
Although disorderly persons offenses, as defined in the New Jersey Criminal Code, might fairly be described as petty offenses, we have no doubt that when Congress used the even broader phrase "criminal activity," it intended to include conduct that we, and other states, define as disorderly or petty disorderly offenses.
[Id. at 7 (emphasis added).]
Congress placed only one limitation on the concept of "criminal activity": "that it had to involve conduct that threatened the health or safety of other tenants, or their right to peaceful enjoyment of the public housing premises." Ibid.
Pursuant to N.J.S.A. 4:22-17(a)(3), a person commits animal cruelty by [i]nflict[ing] unnecessary cruelty upon a living animal or creature, by any direct or indirect means, including but not limited to . unnecessarily fail[ing] to provide a living animal or creature of which the person has charge either as an owner or otherwise with proper food, drink, shelter[,] or protection from the weather; or leave it unattended in a vehicle under inhumane conditions adverse to the health or welfare of the living animal or creature.
Such conduct constitutes a disorderly persons offense and subjects the violator to fines and the possibility of up to six months imprisonment. N.J.S.A. 4:22-17(a).
Here, the lease states that tenants and covered persons "shall not engage in any criminal activity, on or off the Authority's premises, that threatens the health, safety[,] or right to peaceful enjoyment of the premises by other residents or Authority employees." (Emphasis added). The lease defines "covered person" as "an umbrella term including, in addition to the tenant, guest[s], members of the tenant's household[,] and other persons under the tenant's control." Further, the lease treats a violation of this rule as "a serious breach of the material terms of the Lease. A criminal conviction or arrest is not necessary for this Lease to be terminated and for eviction proceedings to be instituted. Criminal activity is cause for eviction without arrest or conviction."
The judge found that defendant's son was a "covered person" pursuant to the lease; was the only person with a key to enter defendant's apartment; and committed animal cruelty by depriving a dog of adequate oxygen, which put the dog in a panicked, scared, and hyperactive state. In turn, this criminal activity, see Miller, supra, 397 N.J. Super. at 7, "threatened the health or safety of other tenants, or their right to peaceful enjoyment of the public housing premises," ibid.
Because we hold that the judge committed no error by evicting defendant pursuant to N.J.S.A. 2A:18-61.1(e)(2), we need not reach defendant's remaining contentions.