Mokatish v. Fairfield Hous. Auth.

MAGID MOKATISH, Plaintiff and Appellant, v. FAIRFIELD HOUSING AUTHORITY, Defendant and Respondent.

A143857

COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION TWO

April 14, 2017

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Solano County Super. Ct. No. FCS044331)

Appellant Magid Mokatish has received Section 8 housing voucher assistance from respondent Fairfield Housing Authority (FHA) since 1998. In 2004, Mokatish was convicted of a violation of Penal Code section 288, subdivision (c)(1) (section 288(c)(1)), committing a lewd or lascivious act upon a child of 14 or 15 years by a person at least 10 years older than the child. It is undisputed that he was incarcerated for more than 180 days, and required to register as a sex offender. After completing his sentence, he returned to the family's home and periodically completed recertification forms for the FHA indicating that he was convicted of a crime and was a registered sex offender. Many years passed. In 2013, Mokatish sent a letter to the FHA asking for a "reasonable accommodation" due to disability hardship, again identifying himself as a registered sex offender. Shortly thereafter, the FHA proposed termination of Mokatish's housing assistance; Mokatish requested a hearing, and after an informal hearing, the hearing officer upheld the termination.

Mokatish petitioned for a writ of administrative mandate. The trial court denied the petition, finding the FHA properly terminated Mokatish's housing assistance on the ground his conviction qualified as "violent criminal activity" for purposes of the Section 8 program. We conclude no substantial evidence supports this finding. We also reject the FHA's proposed alternative ground for terminating Mokatish's housing assistance. Accordingly, we reverse.

SECTION 8 HOUSING ASSISTANCE

The Section 8 program "is funded by the United States Department of Housing and Urban Development (HUD) to provide rental assistance to senior citizens, disabled or handicapped persons and very low income tenants. HUD channels money to [state or local] housing authorities, provides technical assistance and training, and monitors housing authority compliance with program requirements and goals. Rather than being provided with a specific unit at a subsidized housing site, Section 8 participant-tenants receive vouchers to contract for housing with participating landlords." (Apartment Assn. of Los Angeles County, Inc. v. City of Los Angeles (2006) 136 Cal.App.4th 119, 122-123.) In Section 8 parlance, the local entity that administers the program is called the public housing agency or PHA. (24 C.F.R. § 982.1(a)(1).) The FHA is the public housing agency in this case.

HUD regulations set "obligations of a participant family under the program" (family obligations), and a public housing agency "may at any time . . . terminate program assistance for a participant" for violation of a family obligation. (24 C.F.R. §§ 982.551, 982.552(c)(1)(i).) Among other things, the family obligations prohibit members of the household from "engag[ing] in [1] drug-related criminal activity or [2] violent criminal activity or [3] other criminal activity that threatens the health, safety, or right to peaceful enjoyment of other residents and persons residing in the immediate vicinity of the premises." (24 C.F.R. § 982.551(l), italics added.) (Note the family obligations prohibit three specific types of criminal conduct; it is not the case that any criminal activity is a ground for termination.) In addition, the family obligations require the family to "promptly notify the PHA if any family member no longer resides in the unit" and to "promptly notify the PHA of absence from the unit." (24 C.F.R. § 982.551(h)(3) & (i).)

FACTUAL AND PROCEDURAL BACKGROUND

On August 1, 2013, Mokatish wrote to the FHA requesting a "reasonable accommodation," on account of the fact that he and his wife were disabled, and he had been unable to rent a suitable home "in part due to my registration requirements." Mokatish attached a copy of a letter from a property management company, which indicated that his rental application had been denied because of unsatisfactory credit and "Registered Sex Offender."

Mokatish's letter brought the fact that he was a registered sex offender to the FHA's attention. The Fairfield Police Department confirmed Mokatish was arrested in February 2004 and convicted in May 2004 of a violation of section 288(c)(1). The FHA decided to terminate Mokatish's Section 8 housing assistance.

First Proposed Termination of Assistance

By letter dated August 19, 2013, the FHA gave Mokatish notice of its "proposed termination of housing choice voucher assistance" (first notice). The letter provided two grounds for termination. First, Mokatish's "arrest and conviction was while receiving rental assistance, which is a serious violent criminal program violation." Second, the FHA asserted, "According to HUD regulations[,] Housing Authorities must propose termination of program participants who are subject to a lifetime registration requirement under the State sex offender registration program."

Mokatish requested a hearing on the proposed termination. An attorney from Legal Services of Northern California sent a letter to the FHA on Mokatish's behalf on September 19, 2013, pointing out that HUD regulations only prohibit admission to the Section 8 program of a registered sex offender, but there is no similar requirement that housing assistance of an existing Section 8 participant be terminated because the participant becomes a registered sex offender.¹ Mokatish's counsel also argued the FHAhad forfeited or waived the use of Mokatish's 2004 conviction as the ground for termination because the FHA had recertified his assistance eight times with knowledge of his status as a registered sex offender.

Revised Proposed Termination of Assistance

By letter dated October 14, 2013, the FHA gave Mokatish notice of a "revised proposed termination of housing choice voucher assistance" (revised notice). Again, the FHA identified two grounds for the termination. The first—"a serious violent criminal program violation"—was unchanged from the first notice. The second ground was new: "You were convicted and sentenced for lewd acts with a child under 14, which included jail time, probation and a lifetime registered sex offender requirement. You did not report to the [FHA] that you were not living in the assisted unit while you were incarcerated."²

The revised notice included the following exhibits: (1) HUD Family Obligations, 24 Code of Federal Regulations section 982.551, (2) Notice PIH 2012-28 on "State Registered Lifetime Sex Offenders in Federally Assisted Housing," (3) data submissions to HUD from the FHA for 2004 and 2005 showing no changes to the family composition while Mokatish was incarcerated, and (4) chapter 3 of the FHA Administrative Plan.

Informal Hearing and Hearing Officer Decision

An informal hearing on the proposed termination was held on October 17, 2013, three days after the FHA revised its termination notice. Mokatish was not assisted by counsel at the hearing, and the hearing was not recorded or transcribed. In her writtendecision, the hearing officer stated at the outset that "[o]nly the facts presented in the Summary of Evidence were considered in rendering this decision." So the only record of the witness testimony presented at the hearing is the hearing officer's "Summary of Evidence" in her written decision.

According to the hearing officer's written decision, an FHA housing specialist, Emma Harris, explained that, under the FHA's program policy, "an individual who is or is expected to be absent from an assisted unit for more than 180 consecutive days is considered permanently absent and no longer a family member." According to Harris, the family must request approval from the FHA for the return to the assisted unit of an individual who has been absent, and the "individual is subject to the eligibility and screening requirements." Harris apparently also stated that notice of the absence of a family member must be given to the FHA in writing.³

Regarding Mokatish's 2004 conviction, the hearing officer wrote that Fairfield Police Officer Ross Hawkins "read into the record the allegations which caused an investigation to be opened" and "the investigation findings," identifying two separate incidents, one involving a boy and another incident involving a girl. However, the administrative record does not include police records or an abstract of judgment for Mokatish's criminal conviction. As to the facts underlying Mokatish's conviction, the hearing officer wrote, "The details disclosed by Officer Hawkins will not be repeated in this decision report."

According to the hearing officer's written decision, the FHA's attorney presented information that Mokatish was absent from the household for more than 180 days. He argued that, if the absence had been reported, Mokatish would have had to reapply, which would have caused a background screening (and presumably would have resulted in denial based on his status as a registered sex offender). Mokatish was assisted at the hearing by his brother-in-law, Steve Russo. Russo presented evidence that the FHA was given notice of Mokatish's conviction and absence from the home around the time of his conviction. Russo stated he was present with Mokatish's wife when she spoke on the telephone with someone at the FHA. Mokatish's wife told the FHA representative that her husband was in jail, and she "was told not to worry about it." Russo also reported that, after Mokatish indicated he was a registered sex offender on FHA paperwork, he...