United States District Court, D. Vermont
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
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.
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.
M. Diaz, Esq. and Lia N. Ernst, Esq. represent Plaintiff.
Pietro J. Lynn, Esq. and Sean M. Toohey, Esq. represent the
The City's Alleged "Caller Punishment
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.)
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).
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.
The "Minimum Housing Standards Ordinance of the City of
"Minimum Housing Standards Ordinance of the City of
Burlington" (the "Housing Code" or
"HC") was in effect at all times relevant to
Plaintiffs Complaint. 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). 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
(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
(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).
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
HC § 18-20(b)(1)-(4).
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).
The City's Alleged Enforcement Action.
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.)
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.
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
(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.
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).
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.
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.
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.
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).
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.
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.
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.
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.
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.
Plaintiffs Claims as set Forth in his Complaint.
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.
Two: Plaintiff asserts that the City's
enforcement of its "caller punishment policy"
violated his First Amendment right to petition the government
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.
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.
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.
Six: Plaintiff alleges that the City tortiously
interfered with his contractual relationship with S&B in
violation of Vermont law.
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.
Conclusions of Law and Analysis.