This decision has been referenced in an "Appeals Court of Massachusetts Summary Dispositions" table in the North Eastern Reporter. And pursuant to its rule 1:28, As Amended by 73 Mass.App.Ct. 1001 (2009) are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28, issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass.App.Ct. 258, 260 N.4, 881 N.E.2d 792 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The plaintiffs, Safe Haven Sober Houses, LLC, David Perry, and David Fromm (collectively, Safe Haven), filed suit against former city of Boston (city) councilor Charles " Chuck" Turner and the former commissioner of the city's inspectional services department (ISD), William Good, alleging, among other things, violations of the Fair Housing Amendments Act (FHAA) and 42 U.S.C. § 1983 (2012), civil conspiracy, violations of G. L. c. 40A, § 3, and defamation. After an eight-day bench trial, a judge of the Superior Court found for the defendants on all counts. The plaintiffs appealed. We affirm.
" When reviewing the trial judge's decision, we accept his findings of fact as true unless they are clearly erroneous, and we give due regard to the judge's assessment of the witnesses' credibility. See Mass.R.Civ.P. 52(a), as amended, 423 Mass. 1402 (1996)." Andover Hous. Authy. v. Shkolnik, 443 Mass. 300, 306, 820 N.E.2d 815 (2005). " A finding [of fact] is clearly erroneous . . . [if], although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed." Woodward Sch. for Girls, Inc. v. Quincy, 469 Mass. 151, 159, 13 N.E.3d 579 (2014), quoting from Demoulas v. Demoulas Super Mkts., Inc., 424 Mass. 501, 509, 677 N.E.2d 159 (1997). We review conclusions of law de novo. Martin v. Simmons Properties, LLC, 467 Mass. 1, 8, 2 N.E.3d 885 (2014).
The FHAA prohibits discrimination in housing based on handicap. Andover Hous. Authy. v. Shkolnik, supra. See 42 U.S.C. § 3604(f)(1)-(2) (2012). Persons recovering from drug and alcohol addiction are considered to be handicapped persons under the statute. See Peabody Properties, Inc. v. Sherman, 418 Mass. 603, 606, 638 N.E.2d 906 (1994). See also South Middlesex Opportunity Council, Inc. v. Framingham, 752 F.Supp.2d 85, 95 (D. Mass. 2010). Owners of homes housing such residents are also protected under the FHAA. See Edmonds v. Oxford House, Inc., 514 U.S. 725, 728-729, 115 S.Ct. 1776, 131 L.Ed.2d 801 (1995).
The plaintiffs characterize their claim as one of disparate treatment. To succeed on a claim alleging a violation of the FHAA based on disparate treatment, the plaintiffs must demonstrate that some discriminatory purpose was a motivating factor in the decisions made. See Arlington Heights v. Metropolitan Hous. Dev. Corp., 429 U.S. 252, 265-266, 97 S.Ct. 555, 50 L.Ed.2d 450 (1977). Safe Haven maintains that once it has shown that a discriminatory purpose " played a role," it is entitled to judgment in its favor. The statute requires, however, that a plaintiff show injury " because of" a handicap. " Proof that the decision . . . was motivated in part by a . . . discriminatory purpose [does] not necessarily . . . require invalidation of the challenged decision. Such proof . . . shift[s] to the [defendant] the burden of establishing that the same decision would have resulted even had the impermissible purpose not been considered." Id. at 270 n.21. See generally University of Texas S.W. Med. Center v. Nassar, 133 S.Ct. 2517, 2527, 186 L.Ed.2d 503 (2013) (tracing history of " but-for" causation in disparate treatment claims under Federal antidiscrimination laws). Contrast 42 U.S.C. § 2000e-5(g)(2) (2012).
Safe Haven points to telephone calls and electronic mail messages (e-mails) from Turner threatening to shut Safe Haven down, followed shortly thereafter by enforcement activity by Good, and argues that these communications and subsequent enforcement activities (not detailed here) establish conclusively that discrimination was a motivating factor. Safe Haven also points to hostile e-mails and comments from neighborhood residents and groups. It contends that these attitudes infected the entire process, and that Good's responses to these overtures were indicative of a discriminatory purpose. The judge acknowledged the " hard" facts, stating that several aspects of the testimony and the record were " concerning." Assuming without deciding that these observations by the judge were sufficient to show that either Turner or Good was motivated by a discriminatory purpose, it was for the judge to determine whether the same actions would have been taken but for the improper considerations. The judge ultimately found " that both with respect to Mr. Good and Mr. Turner there [were] good faith efforts [on] both of their parts to administer and enforce what can only be considered a very complex set of laws, regulations, [and] practices and cases that were all part of the predicate here." In short, the judge did not find that impermissible considerations were the but-for cause of the actions of either defendant.
The judge's conclusion was based on findings and rulings that were supported in the record. With respect to Turner, the trial judge found that Turner was influenced by the " strong feelings [of] members of the community," as well as his own concerns regarding what he felt was a significant change in use of the properties where the eleven Safe Haven homes were located, without appropriate review and oversight by city agencies. The judge found that Turner " did not exhibit a prejudice or a bias or antipathy of any sort against these kinds of facilities," and that Turner was not opposed to sober houses or the existence of sober housing in the Roxbury section of the city, as evidenced by his support and advocacy on behalf of other sober homes and treatment facilities in the area. Rather, the judge found that Turner had good faith concerns over the facilities as they were operated by Perry and Fromm.
With respect to Good, the judge found that community opposition did have " some impact" on him. However, the judge also found that " Mr. Good did not feel any particular community pressure that was any different than in other projects where there was community opposition." The judge found that Good did not act to " appease the discriminatory viewpoints" of the community opposition. Association of Relatives & Friends of AIDS Patients v. Regulations & Permits Admin., 740 F.Supp. 95, 104 (D. Puerto Rico 1990). See South Middlesex Opportunity Council, Inc. v. Framingham, 752 F.Supp.2d at 98-99. Rather, the judge found that Good acted in response to the documented violations that ISD discovered on the Safe Haven residences when ISD investigated complaints.
In sum, while the record could have been interpreted in any number of ways, the judge's findings that discriminatory purposes were not the cause of the actions taken by the individual defendants were supported by the record and were not clearly erroneous.
42 U.S.C. § 1983.
Safe Haven makes no argument regarding the merits of its claim under 42 U.S.C. § 1983 in its appellate brief. " [F]ailure to address this issue on appeal waives [the] right to appellate review of the judge's ruling on the merits of the [claim]. See Mass.R.A.P. 16(a)(4), as amended, 367 Mass. 921 (1975)." A ...