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Montagno v. City of Burlington

United States District Court, D. Vermont

June 1, 2017

JOSEPH MONTAGNO, Plaintiff,
v.
CITY OF BURLINGTON, Defendant.

          OPINION AND ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT'S MOTION TO DISMISS (DOC. 9)

          Christina Reiss, Chief Judge United States District Court

         Plaintiff Joseph Montagno brings this action pursuant to 42 U.S.C. § 1983 and Vermont state law against Defendant City of Burlington (the "City"), alleging that the City maintains a "caller punishment policy" through which it acted in concert with his landlord to violate Plaintiffs First, Fifth, and Fourteenth Amendment rights under the United States Constitution, as well as Plaintiffs rights under state law.

         On November 4, 2016, the City moved to dismiss Plaintiffs Complaint pursuant to Fed.R.Civ.P. 12(b)(1) for lack of subject matter jurisdiction and pursuant to Fed.R.Civ.P. 12(b)(6) for failure to state a claim for which relief may be granted. Plaintiff opposes the motion. After oral argument on February 8, 2017, the court took the motion under advisement.

         James M. Diaz, Esq. and Lia N. Ernst, Esq. represent Plaintiff. Pietro J. Lynn, Esq. and Sean M. Toohey, Esq. represent the City.

         I. The Complaint.

         A. The City's Alleged "Caller Punishment Policy."

         On March 15, 2013, Plaintiff signed a written one year lease with Sisters and Brothers Investment Group ("S&B") for an apartment located at 184 Church Street in Burlington, Vermont. Plaintiffs initial lease term expired on February 28, 2014. He subsequently renewed his lease for one year terms in 2014, 2015, and 2016. During his tenancy at 184 Church Street, Plaintiff allegedly contacted the Burlington Police Department ("BPD") on numerous occasions regarding "threatening and hazardous conduct, and other potentially criminal or hazardous occurrences, he experienced in and around 184 Church Street." (Doc. 1 at 8, ¶ 49.)

         Plaintiff alleges that the City has a "policy, practice, and/or custom" of punishing Burlington tenants whom the City "unilaterally and arbitrarily deems to have requested BPD assistance too frequently." Id. at 1; id. at 6, ¶ 34. Plaintiff further asserts that the City enforces this "policy" by: (1) tracking the number of calls for BPD assistance from tenants; (2) arbitrarily classifying as a "public nuisance" any tenant deemed to call BPD too frequently; (3) pressuring landlords to silence, threaten to evict, or evict "public nuisance" tenants; and (4) failing to provide tenants with notice or an opportunity to challenge the City's arbitrary actions. Id. at 6-7, ¶¶ 35-43 (internal quotation marks omitted).

         Plaintiff alleges that on or about January 16, 2016, "[a]s a direct result of the [City's] Caller Punishment Policy, " S&B informed Plaintiff that it was terminating his lease for "no cause" effective March 31, 2016. Id. at 7, ¶ 47 (internal quotation marks omitted); id. at 14, ¶ 102 (internal quotation marks omitted). S&B then proceeded to initiate eviction proceedings against him. Due to the City's "caller punishment policy, " Plaintiff alleges that S&B refused to withdraw its eviction action against him unless he agreed to modify his lease so that it terminated six months prior to its expiration date.

         B. The "Minimum Housing Standards Ordinance of the City of Burlington."

         The "Minimum Housing Standards Ordinance of the City of Burlington" (the "Housing Code" or "HC") was in effect at all times relevant to Plaintiffs Complaint.[1] It provides that an "owner of a rental unit. . . shall not rent, offer for rent[, ] or allow any person to occupy any dwelling or dwelling unit without a certificate of compliance[.]" HC § 18-18(a).[2] If an owner fails to comply with the Housing Code, the owner's certificate of compliance "for one (1) or more rental unit(s) may be suspended for up to one (1) year. . . [if] the fault for noncompliance is determined to rest with the landlord, not the tenant(s)." HC § 18-20(a). Suspensions may also result from the following circumstances:

(1) The occurrence of at least five (5) violations of any applicable city or state ordinance or law within a particular rental unit within an eighteen (18) month period which have not been rectified within the period of time allowed by the enforcement officer;
(2) The occurrence of at least two (2) major violations of any applicable city or state ordinance or law within a particular rental unit within an eighteen (18) month period which have not been rectified within the time allowed by the enforcement officer;
(3) If the rental unit has been adjudicated to be a public nuisance since receipt of the certificate of compliance; or
(4) The occurrence on the property of at least three (3) adjudicated public nuisance type violations, including but not limited to, excessive and unreasonable noise, public urination, or discharge of fireworks, firearms[, ] or airgun, within a twelve (12)-month period if the landlord has not taken prompt and appropriate remedial action as determined by the enforcement officer based on the severity of the violations. Appropriate remedial action may mean a warning letter, a notice of termination[, ] or a filing of an ejectment action as determined appropriate by the enforcement officer. Action will be considered prompt if it is taken within seven (7) days from notification by the city to the landlord or agent. A suspension issued pursuant to this subsection . . . shall apply to the entire rental property notwithstanding anything to the contrary herein.

HC § 18-20(a)(1)-(4).

         An owner's certificate of compliance may be revoked "for the remainder of its term but in no case for a period of less than one (1) year for failure to comply with the requirements of [§ 18-20(b)] and the fault for noncompliance is determined to rest with the landlord, not the tenant(s)" in the following circumstances:

(1) More than one (1) suspension within eighteen (18) months;
(2) The failure to correct a violation for which a suspension occurs later than forty-five (45) days after suspension;
(3) The failure to immediately commence the correction of a life threatening violation, or to immediately put in place the interim protections ordered by the enforcement officer in order to preserve health, safety [, ] and welfare of those endangered by said violation; or
(4) To fail to complete the correction of a life threatening violation within the time frame specified by the enforcement officer.

HC § 18-20(b)(1)-(4).

         The Housing Code affords certain protections for tenants in the event of a suspension or revocation of their landlord's certificate of compliance:

Protection of tenants during suspension/revocation. If, in the judgment of the enforcement officer, it is necessary for the tenants of a rental unit to be relocated during the effectiveness of any suspension/revocation ordered pursuant to this chapter the owner shall be financially responsible for the cost of such relocation and for any additional rental costs necessarily incurred by the displaced tenants in order to secure comparable replacement housing which meets code requirements during the term of such suspension/revocation. The relocation services specified in Section 18-28 shall become applicable in such circumstances. In the event that the owner fails to meet its obligations under this subsection, such services may be provided by the city which shall thereupon be regarded as having a lien on the property to the extent of the monetary value of the services rendered by the city and shall be enforced within the time and in the manner provided for the collection of taxes on land.

HC § 18-20(c).

         C. The City's Alleged Enforcement Action.

         Plaintiff alleges that on August 28, 2015, BPD Officer Philip Tremblay emailed BPD Crime Analyst Connor Brooks and requested the creation of a spreadsheet of BPD contacts with 184 Church Street since May 1, 2015. BPD Lieutenant Matthew Sullivan was copied on this email. In response, on September 1, 2015, Mr. Brooks sent both Officer Tremblay and Lieutenant Sullivan a spreadsheet identifying calls from 184 Church Street tenants to BPD, including the name of each tenant involved in each call, regardless of whether he or she was the caller. Plaintiffs name was included in this list. The spreadsheet described the subject matter of the calls between May 1 and August 31, 2015 as "mental health issues, suspicious events, threats/harassment, ordinance violations, disturbances, general calls for assistance, drug sales, disorderly conduct, intoxication, vandalism, compliance checks, assault, larceny, welfare checks, domestic disturbances, violations of conditions of release, ... or drug overdoses." (Doc. 1 at 9, ¶57.)

         On or about September 4, 2015, Lieutenant Sullivan asked Director of Burlington Code Enforcement William Ward to review the spreadsheet to determine if there was a "code angle" that could be used to "reduce calls" coming from tenants of 184 Church Street. Id. at 9, ¶¶ 55-56 (internal quotation marks omitted). On December 22, 2015, BPD Community Affairs Liaison Lacey-Ann Smith emailed Director Ward an updated spreadsheet, which indicated call type, call date/time, call duration, and the names and addresses of the callers. The spreadsheet also included "internal BPD server internet links to BPD incident reports for each call[, ]" which allowed Director Ward to access the related BPD incident reports. Id. at 9-10, ¶¶ 60-61. Director Ward responded that he "definitely [could] work on it" and advised that he planned to send a letter to S&B regarding the tenants' calls for BPD assistance. Id. at 10, ¶ 63. Ms. Smith, in turn, stated that she would inform BPD Chief Brandon del Pozo of this plan. Thereafter, on several occasions in 2015 and in January of 2016, Ms. Smith contacted S&B and requested that S&B take action to eliminate or to reduce the calls from 184 Church Street tenants for BPD assistance.

         On February 4, 2016, Director Ward sent the following letter to S&B's representative, Joseph Handy:

RE: 184 Church Street
Dear Mr. Handy:
I am writing to notify you that your property at 184 Church Street has been identified as a problem property based on police calls for service and Code Enforcement complaints. Problem properties are generally identified as any property where several incidents requiring city intervention occur within a designated time frame.
The Burlington Police Department has recorded over 140 incidents at 184 Church Street between January 1, 2015 and December 31, 2015. The Code Enforcement Department has 7 documented incidents at this property over the same period. The police calls for service include general disturbances, noise disturbances, disorderly conduct, intoxication incidents, trespassing, vandalism, simple assault, [and] aggravated assault, among others.
It is important to note that if arrests are made or tickets are issued, the property owner of a nuisance property could be subject to additional consequences. Burlington City ordinance provides for suspension of an owner's rental certificate of compliance for one year after the occurrence of a specific number of violations which are not addressed promptly. The full text of the ordinance is on the back side of this letter.
I am setting up a meeting at the Burlington Police Department next week to discuss the details of the complaints with you and learn what remedial action steps you intend to take. The problem property team and I will be meeting between noon and 4 p.m. on Friday February 12, 2016. Let me know which one hour block of time you would like to reserve to discuss your property.

(Doc. 9-1 at 1.) Director Ward informed BPD Community Affairs Officer Bonnie Beck and Ms. Smith via email that he had sent the letter to Mr. Handy, and attached a copy of his letter.

         On February 12, 2016, Mr. Handy met with BPD representatives, including Ms. Smith and Director Ward, as well as other members of the "problem property team[.]" (Doc. 1 at 11, ¶¶ 73-74) (internal quotation marks omitted). Mr. Handy was informed that he was required to take action to stop or reduce the number of calls from 184 Church Street tenants for BPD assistance. In response to this request, S&B sent a letter dated February 18, 2016 to each tenant of 184 Church Street, including Plaintiff, which stated, in relevant part: "[t]hese nuisance calls need to stop. Over the last year there [have] been over 140 calls to the BPD for the building. If people continue to call for nuisance calls we will be forced to start evicting people." Id. at 11, ¶ 77 (internal quotation marks omitted).

         On February 25, 2016, S&B provided Ms. Smith with a copy of S&B's February 18, 2016 letter. Ms. Smith forwarded the letter to Director Ward and Ms. Beck. Neither the BPD nor the City advised S&B of any objections to its February 18, 2016 letter.

         On February 19, 2016, Ms. Smith emailed Mr. Handy, copying Director Ward and Ms. Beck, regarding "frequent callers" from 184 Church Street. The email included the names of eight tenants and the number of times each tenant had called for BPD assistance in 2015 and 2016. Plaintiff was identified as having called for BPD assistance forty-two times in 2015 and four times in 2016.

         Thereafter, S&B initiated an eviction proceeding against Plaintiff in Vermont Superior Court. On March 2, 2016, Director Ward contacted Mr. Handy and inquired about the date and time of the hearing on S&B's request for eviction. When he was informed that it was scheduled for March 22, 2016 at 8:30 a.m., Director Ward responded: "I just updated my calendar and will be available that day if needed." Id. at 15, ¶ 106 (internal quotation marks omitted). Director Ward subsequently attended the eviction hearing and offered to testify against Plaintiff.

         On March 11, 2016, Director Ward emailed S&B regarding the "one month check-in regarding . . . attempts at remedial action at 184 Church Street." Id. at 12-13, ¶ 88 (internal quotation marks omitted). He noted that calls for BPD assistance from 184 Church Street tenants had not stopped since the February 12, 2016 meeting and advised that he would "make a referral of the property to the City Attorney's office" to suspend S&B's certificate of compliance. Id. at 13, ¶ 90 (internal quotation marks omitted). Director Ward also stated that S&B should "take more direct action" to reduce the number of calls for BPD assistance because the "volume of calls is unreasonable and a nuisance to the neighboring properties." Id. at 13, ¶ 91 (internal quotation marks omitted).

         One week later, on March 18, 2016, Director Ward contacted the City Attorney's Office, Chief del Pozo, and the Mayor's Office, recommending suspension of S&B's certificate of compliance for 184 Church Street based on the number of BPD calls from Plaintiff and other tenants. On March 21, 2016, Ms. Smith sent Ms. Beck and Director Ward a spreadsheet entitled "184 [C]hurch call for service breakdown 2015." Id. at 13, ¶ 93 (internal quotation marks omitted). The spreadsheet included Plaintiff as a source of some of the calls.

         In April 2016, Plaintiff met with Mr. Handy at S&B's office where Mr. Handy informed him that the City claimed that he was calling BPD for assistance too frequently. Plaintiff denied making frivolous calls.

         By letter dated April 7, 2016, the Winooski Housing Authority advised Plaintiff that it would cease making housing assistance payments to his landlord on May 1, 2016 and would terminate his federal Section 8 Housing Choice Voucher if he did not obtain another apartment by October 28, 2016. Because he was afraid of losing his Section 8 Voucher and receiving a negative reference from S&B, on May 20, 2016, Plaintiff agreed to settle the eviction action on S&B's terms, which included an early termination of his lease. Plaintiff alleges that he "suffered serious emotional and mental anguish because he .. . lost his possessory rights to his apartment" and was at risk for homelessness and the loss of his Section 8 Voucher. Id. at 16, ¶ 118.

         On May 4, 2016, a neighbor "assaulted and threatened Plaintiff with a metal pipe" in front of the door to Plaintiffs apartment. Id. at 8, ¶ 50. Plaintiff alleges that this neighbor had repeatedly threatened him over the course of several months. Plaintiff asserts that due to the City's "caller punishment policy, " he feared that calling BPD would result in the City taking action to "punish" him. Id. BPD responded to the May 4 incident, arrested the neighbor, and charged him with simple assault by menace and disorderly conduct. The neighbor was subsequently ordered to have no contact with Plaintiff and to stay at least ten feet away from him.

         Plaintiff further asserts that he modified his conduct and refrained from calling for BPD assistance on numerous other occasions when his safety, or the safety of others, was in jeopardy. On one such occasion, Plaintiff believed there was a break-in at his apartment but refrained from calling BPD. On another occasion, Plaintiff heard neighbors threatening to shoot another person, but he again refrained from calling BPD.

         D. Plaintiffs Claims as set Forth in his Complaint.

         Count One: Plaintiff alleges that the City's "caller punishment policy" violated his First Amendment right to freedom of speech by threatening to impose penalties on him for requesting BPD assistance, reporting potential crimes, and making complaints.

         Count Two: Plaintiff asserts that the City's enforcement of its "caller punishment policy" violated his First Amendment right to petition the government for assistance.

         Count Three: Plaintiff alleges that the City violated his substantive due process rights under the Fifth and Fourteenth Amendments by arbitrarily punishing him based on his exercise of his First Amendment rights.

         Count Four: Plaintiff asserts that, on its face and as applied, the City's Housing Code is overly broad and void for vagueness under the Fourteenth Amendment.

         Count Five: Plaintiff alleges that the City deprived him of procedural due process by failing to provide him with notice and an opportunity to be heard.

         Count Six: Plaintiff alleges that the City tortiously interfered with his contractual relationship with S&B in violation of Vermont law.

         Count Seven: Plaintiff asserts that the City exceeded its authority under Vermont law by maintaining and enforcing the "caller punishment policy" in a manner designed to punish Plaintiff and others for requesting BPD assistance, and by failing to provide due process protections.

         II. Conclusions of Law and Analysis.

         A. ...


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