[Cite as Cincinnati Metro. Hous. Auth. v. Brown, 2013-Ohio-4143.]




                          IN THE COURT OF APPEALS
                 FIRST APPELLATE DISTRICT OF OHIO
                           HAMILTON COUNTY, OHIO



CINCINNATI METROPOLITAN                             :               APPEAL NO. C-120580
HOUSING AUTHORITY,                                                  TRIAL NO. 12CV-02818
                                                    :
        Plaintiff-Appellee,
                                                    :
  vs.                                                                    O P I N I O N.
                                                    :
LEAH D. BROWN,

     Defendant-Appellant.                           :




Civil Appeal From: Hamilton County Municipal Court

Judgment Appealed From Is: Affirmed

Date of Judgment Entry on Appeal: September 25, 2013



Angela Stearns, for Plaintiff-Appellee,

Legal Aid Society of Greater Cincinnati and Virginia Tallent, for Defendant-
Appellant.




Please note: this case has been removed from the accelerated calendar.
                   OHIO FIRST DISTRICT COURT OF APPEALS




CUNNINGHAM, Judge.

       {¶1}   Defendant-appellant Leah D. Brown contests the trial court’s entry of

summary judgment in favor of her landlord, plaintiff-appellee the Cincinnati

Metropolitan Housing Authority (“CMHA”), on its action for forcible entry and

detainer. Brown also challenges the trial court’s denial of her motion for partial

summary judgment on her counterclaim seeking money damages for CMHA’s

alleged violations of federal fair housing laws. CMHA initiated this eviction action

when Brown threatened and yelled racially derogatory names at another public-

housing tenant. Because Brown engaged in criminal activity which posed a direct

threat to other tenants, CMHA was entitled to terminate her lease and we affirm.

       {¶2}   Brown had been a CMHA public-housing tenant since 2007.              She

suffers from bipolar and panic disorders, and from multiple physical disabilities

affecting her mobility. Her lease included a federally mandated “zero tolerance”

provision that permitted CMHA to terminate her tenancy if Brown engaged in

criminal activity that threatened the health, safety, or right to peaceful enjoyment of

another tenant. See, e.g., Cincinnati Metro. Hous. Auth. v. Browning, 1st Dist.

Hamilton No. C-010055, 2002-Ohio-190, ¶ 3.

       {¶3}   In December 2011, Brown threatened and yelled racially derogatory

names at her fellow public-housing tenant Maimou Ndiaye. Brown was charged with

menacing and ethnic intimidation.        She ultimately pled guilty to charges of

disorderly conduct. CMHA investigated the incident, determined that Brown posed

a direct threat to other residents, and served Brown with notice that it was




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terminating her lease. When Brown failed to vacate, CMHA filed this action seeking

her eviction. See Browning at ¶ 27.

       {¶4}   In response, Brown urged CMHA to make reasonable accommodations

for her disabilities, under the federal Fair Housing Amendments Act (“the FHAA”).

See 42 U.S.C. 3604. She requested that CMHA dismiss its eviction action and that

the housing authority participate in a behavioral-intervention plan, including a

provision that CMHA would contact Brown’s “case manager and/or therapist if

concerns related to her tenancy arose in the future.” The housing authority denied

the request. Brown then filed an amended answer to the eviction action and raised a

counterclaim, in both of which she asserted that CMHA had discriminated against

her based upon her disabilities.

       {¶5}   CMHA moved for summary judgment on its forcible-entry-and-

detainer action relying, in part, upon the attached affidavit of the assistant property

manager at Brown’s housing unit. Brown filed a memorandum in opposition and

also filed a motion for partial summary judgment on her housing-discrimination

counterclaim. She reserved the issue of damages and fees for trial. On August 14,

2012, the trial court issued its entry granting CMHA’s motion for summary judgment

and issuing a writ of restitution of the premises. The court also denied Brown’s

motion for partial summary judgment. The trial court stayed its judgment pending

Brown’s appeal.

       {¶6}   The trial court’s entry granted the housing authority a present right to

possession of the property.        Thus the trial court’s judgment was immediately

appealable by Brown even though other claims remained for adjudication.            See

Cuyahoga Metro. Hous. Auth. v. Jackson, 67 Ohio St.2d 129, 132, 423 N.E.2d 177

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(1981)    (holding    Civ.R.   54[B]    inapplicable   in   forcible-entry-and-detainer

proceedings).

         {¶7}   In her first assignment of error, Brown argues that the trial court erred

in entering summary judgment in favor of CMHA on its eviction action. We review

cases decided on summary judgment de novo, without deference to the trial court’s

determinations. See Comer v. Risko, 106 Ohio St.3d 185, 2005-Ohio-4559, 833

N.E.2d 712, ¶ 8.

         {¶8}   Civ.R. 56(A) makes summary judgment available to a party seeking to

recover upon a claim or counterclaim. Where, as here, a party seeks affirmative

relief on its own claim or counterclaim as a matter of law, it bears the burden of

affirmatively demonstrating that there are no genuine issues of material fact with

respect to every essential element of its claim. See Civ.R. 56(A); see also Capital Fin.

Credit, LLC v. Mays, 191 Ohio App.3d 56, 2010-Ohio-4423, 944 N.E.2d 1184, ¶ 4 (1st

Dist.). Its motion for summary judgment must be denied if the party fails to satisfy

this initial burden. Only when the movant has met its initial burden does the

nonmoving party’s reciprocal burden to establish the existence of triable, genuine

issues of material fact, by the means listed in Civ.R. 56(C) and 56(E), arise. See

Capital Fin. Credit, LLC at ¶ 5; see also Dresher v. Burt, 75 Ohio St.3d 280, 293, 662

N.E.2d 264 (1996).

         {¶9}   The substantive law governing CMHA’s eviction action and Brown’s

discrimination counterclaim identifies the factual issues that are material and thus

could preclude summary judgment. See Gross v. Western-Southern Life Ins. Co., 85

Ohio App.3d 662, 666-667, 621 N.E.2d 412 (1st Dist.1993). The FHAA makes it

unlawful to discriminate against a tenant on the basis of that person’s mental or

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physical disability. See 42 U.S.C. 3604(f). But federally subsidized public-housing

authorities, such as CMHA, are also charged with providing “decent and safe

dwellings” for all of their tenants. 42 U.S.C. 1437(a)(1)(A). To achieve that end,

Congress modified federal fair housing laws in 1988. The FHAA now provides that:

               Each public housing agency shall utilize leases which * * *

        provide that any criminal activity that threatens the health, safety, or

        right to peaceful enjoyment of the premises by other tenants or any

        drug-related criminal activity on or off such premises, engaged in by a

        public housing tenant, any member of the tenant's household, or any

        guest or other person under the tenant's control, shall be cause for

        termination of tenancy.

42 U.S.C. 1437d(l)(6). Brown’s lease includes this provision.

       {¶10} In affirming the constitutionality of the act’s eviction provision, the

United States Supreme Court held that 42 U.S.C. 1437d(l)(6) “unambiguously

requires lease terms that vest local public housing authorities with the discretion to

evict tenants for the drug-related activity of household members * * * .” Dept. of

Hous. and Urban Dev. v. Rucker, 535 U.S. 125, 130, 122 S.Ct. 1230, 152 L.Ed.2d 258

(2002). The decision to evict is entrusted to the public housing authorities, who are

in the best position to take account of, inter alia, the seriousness of the offending

action, the duration of the problem, the administrative burden on the housing

authority, and the extent to which the tenant has taken reasonable steps to prevent

or mitigate the offending action. See id. at 134; see also Groner v. Golden Gate

Gardens Apts., 250 F.3d 1039, 1046 (6th Cir.2001). The holding applies equally

when non-drug-related criminal activity threatens the safety of other tenants. See

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Portage Metro. Hous. Auth. v. Brumley, 11th Dist. Portage No. 2008-P-0019, 2008-

Ohio-5534, ¶ 85. Thus a public housing authority has the discretion to terminate a

lease if a tenant engages in criminal activity that threatens another tenant’s health,

safety, or right to peaceful enjoyment of the housing premises. See id.

       {¶11} Brown argues that she was entitled to reasonable accommodations for

her disabilities before CMHA reached a decision to evict her. She notes that the

refusal “to make reasonable accommodations in rules, policies, practices, or services”

when the accommodations may be necessary to afford the disabled individual an

equal opportunity to use and enjoy housing, is a type of unlawful discrimination

under the FHAA. 42 U.S.C. 3604(f)(3)(B). The agencies tasked with executing and

monitoring the FHAA advise that a housing authority ought to grant accommodation

requests where the tenant’s attorney provides satisfactory assurances “that the

[tenant] will receive appropriate counseling and periodic medication monitoring.”

Joint Statement of the Department of Housing and Urban Development and the

Department of Justice, Reasonable Accommodations Under the Fair Housing Act 5-6

(May 17, 2004).

       {¶12} But the FHAA does not mandate the automatic accommodation of

tenants who would harm other residents. In amending the federal housing laws in

1988, Congress recognized the importance of providing safe housing for low-income

tenants, and made “clear that housing need not be made available to persons whose

impairments make them dangerous to others.” Schwemm & Allen, For the Rest of

Their Lives: Seniors and the Fair Housing Act, 90 Iowa L.Rev. 121, 161-162 (2004).

While an agency’s interpretation is due substantial deference, there is no language in

the FHAA or in the relevant implementing regulations that would impose a duty on

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                   OHIO FIRST DISTRICT COURT OF APPEALS



landlords and tenants to engage in an interactive process to accommodate Brown’s

disability. See Groner, 250 F.3d at 1047.

       {¶13} The FHAA does, however, expressly provide that “nothing” in the

subsection that makes discrimination unlawful—including the failure to make

reasonable accommodations—requires a landlord to provide housing for “an

individual whose tenancy would constitute a direct threat to the health or safety of

other individuals or whose tenancy would result in substantial physical damage to

the property of others.” 42 U.S.C. 3604(f)(9).

       {¶14} In light of Congress’ unequivocal instruction, “a person who

constitutes a direct threat to others is not eligible for the benefits provided by the

FHAA.” Howard v. City of Beavercreek, 108 F.Supp.2d 866, 875 (S.D.Ohio 2000),

quoting Roe v. Hous. Auth. of Boulder, 909 F.Supp. 814, 822 (D.Colo.1995). As the

United States Court of Appeals for the Tenth Circuit has held, the direct-threat

provision of 42 U.S.C. 3604(f)(9) permits reasonable restrictions on the terms or

conditions of housing when justified by public safety concerns, “given that housing

can be denied altogether for those same reasons.” Emphasis added. Bangerter v.

Orem City Corp., 46 F.3d 1491, 1503 (10th Cir.1995); see also Laflamme v. New

Horizons, Inc., 605 F.Supp.2d 378, 386 (D.Conn.2009) (the anti-discrimination

protections of the FHAA do not extend to individuals whose tenancy would

constitute a direct threat to the health or safety of other tenants); Stout v. Kokomo

Manor Apts., 677 N.E.2d 1060, 1065 (Ind.App.1997).

       {¶15} We note that any housing restriction or denial predicated on public

safety must be narrowly tailored to specific concerns about an individual tenant and

cannot be based on prejudice or blanket stereotypes about persons with disabilities.

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                   OHIO FIRST DISTRICT COURT OF APPEALS



See Bangerter at 1503, citing H.R.Rep. No. 100-711, 100th Cong., 2d Sess., at 24

(1988), reprinted in 1988 U.S.C.C.A.N. 2173, 2185.

       {¶16} Here, CMHA’s termination of Brown’s tenancy was not based upon the

housing authority’s speculation or its subjective fear of Brown. It was based upon

objective evidence of Brown’s behavior and overt acts which directly threatened

harm to other residents. The materials attached to CMHA’s motion for summary

judgment, including the affidavit of the investigating property manager, established

that in 2009 CMHA had received complaints about Brown’s behavior from other

residents, that in 2011 she had been arrested for screaming racial epithets in a

threatening manner at Ndiaye, that Ndiaye and another tenant had vacated their

units in response to Brown’s threats, that the manager had met with Brown to

discuss the incident, that Brown had pled guilty to a criminal offense resulting from

that incident, that Brown’s actions violated the zero tolerance provision of her lease,

and that CMHA had determined her to be a direct threat to other tenants. Thus

CMHA discharged its affirmative burden of demonstrating the absence of genuine

issues of material fact with respect to every essential element of its forcible-entry-

and-detainer claim.

       {¶17} Moreover, Brown was unable to discharge her reciprocal duty of

demonstrating the existence of genuine issues of material fact which would have

precluded summary judgment for CMHA, and which would have entitled her to

summary judgment on her affirmative defense and counterclaim. See Dresher, 75

Ohio St.3d at 293, 662 N.E.2d 264; see also Todd Dev. Co. v. Morgan, 116 Ohio St.3d

461, 2008-Ohio-87, 880 N.E.2d 88, ¶ 24 (a party moving for summary judgment




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                    OHIO FIRST DISTRICT COURT OF APPEALS



does not bear the initial burden of disproving the nonmoving party’s affirmative

defenses); Groner, 250 F.3d at 1045.

       {¶18} Brown’s memorandum and motion were supported by her own

affidavit, the deposition testimony of CMHA property managers, and two one-

paragraph letters from her treating psychiatrist and a doctor of osteopathy. Her

healthcare providers described Brown’s mental illness and her physical limitations

and indicated that she had been receiving treatment for the conditions. But neither

doctor made any statement that Brown’s threatening activity was a result of her

disabilities. Neither made any statement that an accommodation would alleviate the

threat to the health and safety of other tenants. Despite having received long-term

treatment for her disabilities, Brown was unable to prevent the 2011 incident and has

not demonstrated how a behavioral-modification plan would negate the threat that

she has posed to other residents.

       {¶19} Because CMHA has a legitimate interest in ensuring the safety and

quiet enjoyment of all its tenants, and because CMHA has demonstrated that no

genuine issue of material fact remains as to whether Brown engaged in criminal

activity and that her actions were a direct threat to other tenants, CMHA is entitled

to summary judgment on its forcible-entry-and-detainer action.               The first

assignment of error is overruled.

       {¶20} In her second assignment of error, Brown asserts that the trial court

erred in rejecting her reasonable-accommodation defense and in “dismissing [her]

Counterclaim.”    Appellant’s Brief at 1.       In light of our resolution of the first

assignment of error, that portion of the second assignment of error asserting that the

trial court erroneously rejected her affirmative defense is overruled.

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       {¶21} The remainder of her argument must also fail. Brown’s challenge is

based upon the false premise that the trial court’s August 2012 entry dismissed her

counterclaim. It did not. The trial court simply denied Brown’s partial summary-

judgment motion seeking affirmative relief, as a matter of law, on her counterclaim.

See Civ.R. 56(A). Brown’s counterclaim for money damages remains in the trial

court for ultimate resolution. Since the record certified for our review does not

demonstrate the erroneous dismissal of the counterclaim, we overrule the remainder

of the second assignment of error.

       {¶22} Therefore, the trial court’s judgment is affirmed.

                                                                     Judgment affirmed.


HILDEBRANDT, P.J., and FISCHER, J., concur.


Please note:
       The court has recorded its own entry on the date of the release of this opinion.




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