RICARDO MORAN v. TOWER MANAGEMENT SERVICES

NOT FOR PUBLICATION WITHOUT THE
                               APPROVAL OF THE APPELLATE DIVISION
        This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the
     internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.




                                                         SUPERIOR COURT OF NEW JERSEY
                                                         APPELLATE DIVISION
                                                         DOCKET NO. A-2616-16T4

RICARDO MORAN,

          Complainant-Appellant,

v.

TOWER MANAGEMENT
SERVICES,

     Respondent-Respondent.
______________________________

                    Submitted November 26, 2018 – Decided December 3, 2018

                    Before Judges Haas and Mitterhoff.

                    On appeal from the New Jersey Division on Civil
                    Rights, Docket No. HB52WR-61415.

                    Ferro & Ferro, attorneys for appellant (Nancy C. Ferro,
                    on the briefs).

                    Gordon, Rees, Scully & Mansukhani, LLP, attorneys
                    for respondent Tower Management Services (Elizabeth
                    F. Lorell and Jeffrey A. Kopco, of counsel and on the
                    brief).

                    Gurbir S. Grewal, Attorney General, attorney for
                    respondent New Jersey Division on Civil Rights (Jason
            W. Rockwell, Assistant Attorney General, of counsel;
            Megan J. Harris, Deputy Attorney General, on the
            statement in lieu of brief).

PER CURIAM

      Appellant Ricardo Moran appeals from the December 31, 2016 final

determination of the Director of the Division on Civil Rights (Director), finding

no probable cause to substantiate appellant's complaint that respondent Tower

Management Services discriminated against him in violation of the Law Against

Discrimination (LAD),  N.J.S.A. 10:5-1 to -49. For the reasons that follow, we

vacate the Director's decision and remand for further proceedings.

      The facts are not in dispute.        Appellant receives Section 8 rental

assistance. 1 In March 2010, appellant visited the Ivy Lane Apartments, which

are managed by respondent, and inquired about renting a one-bedroom

apartment. The monthly rent for this unit was $995, and appellant's Section 8

voucher would fully cover that amount. However, the rental agent told appellant


1
  The United States Department of Housing and Urban Development funds the
Section 8 housing choice voucher program, which "provides financial assistance
to eligible individuals so that they may rent privately owned housing."
Pasquince v. Brighton Arms Apartments,  378 N.J. Super. 588, 591 n.8 (App.
Div. 2005). The State Department of Community Affairs, Division of Housing
and Community Services, administers the program in New Jersey. Ibid. "An
individual deemed eligible for Section 8 housing assistance is issued a housing
choice voucher which verifies eligibility for assistance and that money is being
set aside to assist the individual with paying his or her rent." Ibid.
                                                                         A-2616-16T4
                                       2
that respondent required all lessees to meet a minimum annual income

requirement of $33,000 in order to lease a one-bedroom apartment.             After

combining his annual Section 8 rental assistance and Social Security benefits,

the agent determined that appellant's income from all sources was only $20,940 .

Therefore, she advised appellant that he would not be able to rent the apartment.

Based on this advice, appellant left the premises without filling out a lease

application.

      Appellant thereafter filed a complaint with the Director, alleging that

respondent refused to rent an available apartment to him in violation of the LAD.

In this regard,  N.J.S.A. 10:5-12(g)(1) states that is unlawful for any person to

refuse to rent property to a prospective tenant because of the "source of lawful

income" they intend to use for the rent payments. This section is aimed at

preventing landlords from refusing to rent to tenants who receive rental

subsidies through the Section 8 program or through other government programs

designed to assist low-income persons to obtain housing. Franklin Tower One

v. N.M.  157 N.J. 602, 618 (1999).

      In its answering papers, respondent asserted that the Supreme Court

recognized in Franklin Tower "that a landlord approached by a prospective

tenant eligible for Section 8 assistance has the full right to screen and review the


                                                                            A-2616-16T4
                                         3
tenant's references, background, employment and rental history to verify that the

tenant is otherwise qualified to reside in the landlord's building." Id. at 622

(citing 42 U.S.C. § 1437f(d)(1)(A); 24 C.F.R. § 982.307).        It is also well

established that a landlord may review the tenant's creditworthiness even if the

tenant receives Section 8 assistance. Pasquince,  378 N.J. Super. at 595. Thus,

respondent argued that its minimum income policy was necessary in order to

enable it to determine whether the tenant could actually afford to live in the

apartment even with the help of a subsidy.

      Respondent also provided documentation showing that it rented units to

other Section 8 recipients who met its minimum annual income requirement. In

response, appellant argued that respondent's income policy had a discriminatory

impact on individuals who pay their rent using government subsidies, and that

the requirement had little or no relationship to the ability of Section 8 subsidy

holders to afford the rents for respondent's apartments.

      In his written decision, the Director found that appellant failed to

demonstrate probable cause to credit his allegations of discrimination because

he "never applied for the one-bedroom apartment" and, as a result, "there can be

no finding that the application was wrongfully denied." The Director also stated

"there is nothing in this record indicating that [appellant's] Section 8 status


                                                                         A-2616-16T4
                                        4
improperly influenced [r]espondent's analysis of his eligibility" because

respondent applied the income requirement to all prospective tenants.

      The Director did not address the possible discriminatory impact

respondent's income requirement might have on Section 8 recipients. However,

after appellant submitted his brief in this appeal, the Director filed a motion to

remand the matter to him for reconsideration and additional analysis of that

issue. Another panel of this court denied the motion.

      Having now had the benefit of all of the parties' briefs, we conclude that

a remand is warranted to enable the Director to address, in the first instance,

appellant's argument that respondent's minimum income policy has a

discriminatory impact on individuals and families who use Section 8 subsidies.

As the administrative agency charged with the enforcement of New Jersey's anti-

discrimination laws, see  N.J.S.A. 10A:5-6, the Division on Civil Rights has the

authority and experience necessary to more fully investigate appellant's claim

and determine the presence or absence of a violation of the LAD. Terry v.

Mercer Cnty. Bd. of Chosen Freeholders,  86 N.J. 141, 157 (1981) (noting the

"unique discretion and expertise" of the Director to effectuate the policies

underlying the LAD). Therefore, a remand is clearly appropriate under the

unique circumstances of this case.


                                                                          A-2616-16T4
                                        5
      In remanding this matter for further analysis by the Director, we make

clear that nothing within this opinion forecasts any views on the merits of

appellant's arguments nor on the question of which party may be entitled to

prevail after a fuller record is developed. We say no more than that without

additional analysis by the Director, the issues presented are not fully ripe for

decision.

      Therefore, we vacate the Director's December 31, 2016 finding of no

probable cause, and remand the matter to the Director for further proceedings.

Any party aggrieved by the Director's final decision following the remand may

thereafter file a timely new appeal with this court.

      Vacated and remanded. We do not retain jurisdiction.




                                                                        A-2616-16T4
                                        6