Resident Was Entitled to VAWA Protections

Facts: A Section 8 voucher resident lived in an apartment with her five children. In February 2014, she was notified that her benefits under the program were being terminated due to alleged violations of the program rules. After an administrative hearing, the determination to terminate her benefits was confirmed based upon the finding that she was obligated, but failed, to request permission to add an occupant to her subsidized apartment.

The local Section 8 housing agency had learned the occupant had lived with the resident from June 2012 until December 2013, at which time he was arrested. The occupant remained incarcerated from the date of that arrest throughout the termination proceedings. At the informal hearing, the program assistant testified that his boss had received an anonymous phone call from a person reporting that someone was living at the apartment with the resident. Although the program assistant didn’t know when that anonymous phone call was received, the investigator testified that the occupant was already incarcerated on charges stemming from his December 2013 arrest when she received the matter to investigate. The investigator further testified that because the occupant was incarcerated, she didn’t conduct any “investigation or personal surveillance” of the apartment. Her investigation consisted solely of gathering documents by submitting Freedom of Information Law (FOIL) requests to various governmental agencies. Through this investigation, she obtained copies of, among other things, the occupant’s pay stubs, his driver’s permit application, and records of his parole home visits by New York State Department of Corrections and Community Supervision parole officers, all of which listed the apartment as his address.

The parole records also indicated that the occupant’s parole officer had some form of contact with him at the apartment during some visits made between June 2012 and December 2013. In addition to these documents, the housing agency submitted a Domestic Incident Report from December 2013, completed by a police officer, which reported an incident, described more fully by the resident in her testimony at the hearing, in which the occupant pursued her to a police station parking lot, where he punched her twice in the face before being arrested. The Domestic Incident Report indicated that the parties didn’t live together, but it also listed the apartment as the address for both the resident and the occupant.

Based on this documentary evidence establishing that the occupant had used the apartment as his address, the agency asserted that the resident’s housing assistance benefits were properly terminated because she failed to request agency approval to add him as an additional occupant to the unit and disclose his income during the recertification process, despite signing documents in November 2013 obligating her to do so.

The resident testified at the hearing that the occupant didn’t live with her at the apartment and that the evidence submitted by the agency indicating otherwise existed as a result of domestic violence and stalking. In her testimony, the she described an escalating pattern of stalking and abusive behavior and domestic violence by the occupant that culminated in the December 2013 incident leading to his arrest. She testified that she permitted occupant, who was then a friend, to use the apartment address for purposes of registering for parole; however, this was meant to be temporary and at no point did he actually live in the apartment.

In July 2012, the resident and the occupant entered into an intimate relationship, she became pregnant, and he began to act controlling and domineering, eventually starting to threaten, intimidate, and harass her. According to her, at one point he started asking her for keys to her apartment. She told him “no,” but, against her wishes, he took a spare set of keys, which she had kept for her children. He would disappear for periods of time and then suddenly reappear. He began entering her home at will, “whenever he felt like it,” and told her that he would never give her back her keys.

The resident testified that beyond the day the occupant asked to use her address, he didn’t ask her permission for anything. She wasn’t aware that he had used her address with his employer. His pay stubs didn’t come to her apartment. Nor was she aware that he had used the address when he applied for a driver’s permit. She became aware of this fact when the permit was delivered to her apartment. She gave the permit to him and didn’t question him about it because she was scared of him. She maintained that from the time period of June 2012 through December 2013, although he used the keys he took to enter her apartment 48 to 100 times, he stayed overnight in her apartment at most 20 times.

In addition to testimony, the resident submitted into evidence police department Domestic Incident Reports, criminal complaints, a Criminal Court order of protection, a family offense petition, and a Family Court order of protection. These documents pertained to the December 2013, incident, as well as subsequent violations of the orders of protection. Asked why the Domestic Incident Report listed the occupant’s address as being at the apartment, she testified that the police used the address listed on his driver’s permit.

The hearing officer confirmed the agency’s termination. The officer found that the resident had failed to request permission to add a family member as required by the HUD Rules and Regulations. And the hearing officer stated that the resident bore the burden of proving “first, that she was a victim of domestic violence and second, that her actions were as a result of or related to that violence.” Consequently, the hearing officer found no basis to apply the housing protections of the federal Violence Against Women Act (VAWA) in this case. The resident appealed the housing officer’s determination.

Ruling: A New York appeals court ruled that she was entitled to the housing protections of VAWA, which prohibited her termination from the program on this ground.

Reasoning: VAWA provides that incidents of actual or threatened domestic violence or stalking shall not be construed as good cause for terminating assistance under a covered housing program. The court found that the resident’s testimony established that throughout her relationship with the occupant, which spanned from July 2012 through December 2013, he threatened, intimidated, harassed, and physically assaulted her. This unrefuted testimony established incidents of domestic violence and a course of conduct by the occupant directed at the resident that would cause a reasonable person to fear for her safety or suffer substantial emotional distress. Moreover, his presence at her home and continued access to the unit was an integral part of the intimidation.

In addition, there was no evidence presented at the hearing from which the hearing officer could conclude that the resident voluntarily gave the occupant permission to reside at the apartment from June 2012 through December 2013, or that his ultimate residency there “for some period of time” was unrelated to the domestic violence he perpetrated upon her. VAWA seeks to provide greater protections to victims of violence and intimidation perpetrated by an intimate partner. Here, in light of the uncontested evidence that the occupant’s presence in and access to the apartment was the result of conduct that constitutes domestic violence and stalking as defined by VAWA, the court found it would be unreasonable and inconsistent with the purpose of the statute to require the resident to seek permission to add the stalker as an occupant of the unit.

• Johnson v. Palumbo, September 2017