                            Illinois Official Reports

                                    Appellate Court



             Rodriguez v. Chicago Housing Authority, 2015 IL App (1st) 142458



Appellate Court        MARIBELY RODRIGUEZ, Petitioner-Appellant, v. CHICAGO
Caption                HOUSING AUTHORITY, a Municipal Corporation, Respondent-
                       Appellee.



District & No.         First District, Sixth Division
                       Docket No. 1-14-2458



Filed                  June 30, 2015



Decision Under         Appeal from the Circuit Court of Cook County, No. 14-CH-4309; the
Review                 Hon. David B. Atkins, Judge, presiding.



Judgment               Circuit court reversed; CHA decision confirmed in part, reversed in
                       part and vacated in part; cause remanded to the CHA with directions.


Counsel on             Marc S. Lipinski, of Donnelly, Lipinski & Harris, LLC, of Chicago,
Appeal                 for appellant.

                       Scott W. Ammarell, Clay S. Rehrig, and Karina Sanchez, law student,
                       all of Chicago Housing Authority, of Chicago, for appellee.



Panel                  PRESIDING JUSTICE HOFFMAN delivered the judgment of the
                       court, with opinion.
                       Justices Hall and Rochford concurred in the judgment and opinion.
                                             OPINION

¶1       The petitioner, Maribely Rodriguez, appeals from an order of the circuit court denying her
     petition for certiorari and thereby confirming a decision of the respondent, Chicago Housing
     Authority (CHA), terminating her participation in the CHA’s Housing Choice Voucher
     Program (Voucher Program). For the reasons that follow, we: reverse the judgment of the
     circuit court; confirm the decision of the CHA in part, reverse the decision of the CHA in part
     and vacate the decision of the CHA in part; and remand this matter back to the CHA for further
     proceedings.
¶2       The Voucher Program provides rental subsidies to eligible families. On July 24, 2012, the
     petitioner submitted an application to the CHA for continued eligibility in the Voucher
     Program. In that application, the petitioner reported her address as 3944 West Wrightwood
     Avenue, Apartment 2, Chicago, Illinois (hereinafter the “subsidized unit”). She listed herself
     as the head of the household and listed Carlos Rivera, her son, and Maribely Rivera, her
     daughter, as members of her household. On that same day, the CHA issued the petitioner a
     voucher for participation in the Voucher Program which contained the following provisions
     that are relevant to this appeal:
                  “4. Obligations of the Family
                      A. When the family’s unit is approved and the HAP contract is executed, the
                  family must follow the rules listed below in order to continue participating in the
                  housing choice voucher program.
                      B. The family must:
                                                 ***
                          10. Promptly notify the PHA [(public housing authority)] in writing if any
                      family member no longer lives in the unit. ***
                                                 ***
                          14. Notify CHA of the arrest of a household member within 10 days of the
                      occurrence for violent or criminal activity against persons or property, or
                      involving alcohol, gangs, drugs and/or weapons.”
¶3       On August 12, 2013, Carlos Rivera was arrested. On the following day, he was charged
     with murder.
¶4       On August 14, 2013, the petitioner executed an Out of Household Declaration, notifying
     the CHA for the first time that Carlos Rivera was no longer residing in the subsidized unit and
     that he had moved out in January 2013. The declaration was received by the CHA on August
     15, 2013. On August 28, 2013, the CHA issued an amendment to the petitioner’s Housing
     Assistance Payment (HAP) Contract, removing Carlos Rivera as a household member residing
     in the subsidized unit.
¶5       On August 29, 2013, the CHA issued an Intent To Terminate–Participant notice addressed
     to the petitioner informing her of the CHA’s intent to terminate her participation in the
     Voucher Program by reason of her having “failed to notify CHA that household member
     Carlos Rivera, Jr. was arrested for violent criminal activity and failed to promptly notify CHA
     that Carlos Rivera, Jr. no longer resides in the assisted unit.” On September 6, 2013, the
     petitioner executed a request for an informal hearing .


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¶6          On December 19, 2013, the CHA issued an amended notice of its intent to terminate the
       petitioner as a participant in the Voucher Program (Amended Notice of Intent to Terminate)
       for the following reasons:
                    “Did not notify CHA of the arrest of a household member within 10 days of the
                occurrence for violent or criminal activity against persons or property, or involving
                alcohol, gangs, drugs and/or weapons.
                    On 8/14/13, household member Carlos Rivera was charged with murder. You
                failed to notify CHA of his arrest within 10 days.
                    Additionally, on 8/15/13 you submitted an Out of Household Declaration stating
                that Carlos Rivera has not lived in the subsidized unit since January of 2013. You failed
                to promptly notify the CHA that Carlos Rivera no longer resides in the subsidized
                unit.”
¶7          On January 13, 2014, an informal hearing was held before a CHA hearing officer on the
       Amended Notice of Intent to Terminate. In addition to documentary evidence establishing the
       facts set forth in the preceding paragraphs, the petitioner and one other witness testified. The
       petitioner testified that Carlos Rivera moved out of the subsidized unit at the end of January
       2013 and moved into his father’s home. He would visit on a weekly or biweekly basis, but had
       not been in the subsidized unit since May 30, 2013. According to the petitioner, she did not
       believe that her son’s move in January 2013 was permanent as he was a minor and suffered
       from epilepsy. However, when her son turned 18 on April 20, 2013, she “knew he wasn’t going
       to come back home.” The petitioner also testified that she did not know that Carlos Rivera had
       been arrested when she executed her Out of Household Declaration on August 14, 2013. She
       stated that she did not learn of his arrest until August 16, 2013.
¶8          In addition to the petitioner, David Waller, the manager of the building in which the
       subsidized unit is located, testified. He stated that his duties include handling leasing for the
       building. According to Waller, he never experienced any problems with the petitioner as a
       tenant, and none of the other tenants in the building ever complained about her. He described
       the petitioner as a good tenant and stated that he wanted her to remain in her unit.
¶9          On February 19, 2014, the hearing officer issued an Informal Hearing Decision Letter
       (Decision), terminating the petitioner’s participation in the Voucher Program. The hearing
       officer found that the CHA had established by a preponderance of the evidence that the
       petitioner violated her obligations as alleged in the Amended Notice of Intent to Terminate by:
       (1) failing to notify the CHA of Carlos Rivera’s arrest within 10 days; and (2) by failing to
       promptly notify the CHA that Carlos Rivera was no longer a resident in the subsidized unit.
¶ 10        In support of the finding that the petitioner violated her obligations under her voucher by
       failing to notify the CHA of Carlos Rivera’s arrest, the hearing officer held that Carlos Rivera
       remained a member of the petitioner’s household until he was removed from the petitioner’s
       voucher on August 15, 2013, and the fact that he moved out of the unit prior to that date is
       “irrelevant.” Based upon the petitioner’s testimony that Carlos Rivera moved out of the
       subsidized unit in January 2013 and that she knew as of April 20, 2013, that he would not be
       returning, the hearing officer concluded that the petitioner also violated the terms of her
       voucher by failing to notify the CHA by May 20, 2013, that Carlos Rivera no longer lived in
       the unit.



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¶ 11       On March 12, 2014, the petitioner filed a timely petition for certiorari in the circuit court,
       seeking, in addition to other relief, an order reversing the CHA’s decision to terminate her
       participation in the Voucher Program. On July 22, 2014, the circuit court entered an order
       denying the petition for certiorari which had the practical effect of confirming the CHA’s
       decision to terminate the petitioner’s entitlement to housing assistance under the Voucher
       Program. This appeal followed.
¶ 12       The CHA is a municipal corporation operating under the provisions of the Housing
       Authorities Act (310 ILCS 10/1 et seq. (West 2012)). The Housing Authorities Act does not
       adopt the Administrative Review Law (735 ILCS 5/3-101 et seq. (West 2012)) and provides no
       other method of judicial review of a final decision of the CHA. As a consequence, the proper
       vehicle to seek a judicial review of the CHA’s final administrative decision in this case was by
       means of a common law writ of certiorari. See Outcom, Inc. v. Illinois Department of
       Transportation, 233 Ill. 2d 324, 333 (2009).
¶ 13       The circuit court possesses no greater authority to review the actions of an administrative
       agency by means of a writ of certiorari than it possesses when its review is governed by the
       Administrative Review Law. Dubin v. Personnel Board, 128 Ill. 2d 490, 498 (1989). The
       standards of review in either instance are essentially the same. Hanrahan v. Williams, 174 Ill.
       2d 268, 272 (1996). We, therefore, treat this appeal as any other appeal from a decision of the
       circuit court in an administrative review action, and review the decision of the administrative
       agency, not the decision of the circuit court. Outcom, 233 Ill. 2d at 337.
¶ 14       In urging reversal of the CHA’s decision to terminate her entitlement to housing assistance
       under the Voucher Program, the petitioner argues, inter alia, that the finding that she violated
       her obligations as a participant in the Voucher Program by failing to notify the CHA that a
       member of her household had been arrested for murder is clearly erroneous. We agree.
¶ 15       When, as in this case, an administrative agency’s finding involves an examination of the
       legal effect of a given set of facts, it presents a mixed question of fact and law. City of
       Belvidere v. Illinois State Labor Relations Board, 181 Ill. 2d 191, 205 (1998). On review of
       such a finding, we apply the clearly erroneous standard. Id. An administrative agency’s finding
       is clearly erroneous where, after reviewing the entire record, we are left with a definite and
       firm conviction that a mistake has been made. Outcom, 233 Ill. 2d at 337.
¶ 16       As noted earlier, in the Decision the hearing officer found that the petitioner violated her
       obligations as a participant in the Voucher Program by both failing to promptly notify the CHA
       that Carlos Rivera ceased to reside in the subsidized unit and by failing to notify the CHA that
       he had been arrested for murder. We find that the two determinations are logically inconsistent.
¶ 17       Carlos Rivera was arrested on August 12, 2013, and charged with murder on the following
       day. It follows, therefore, that to trigger the petitioner’s obligation to notify the CHA of the
       arrest, Carlos Rivera would had to have been a member of the petitioner’s household on the
       date of his arrest. However, the hearing officer also found that the petitioner violated her
       obligations as a participant in the Voucher Program by failing to notify the CHA by May 20,
       2013, at the latest, that Carlos Rivera no longer lived in the subsidized unit. Therein lies the
       seeming inconsistency. If Carlos Rivera ceased to be a resident in the subsidized unit on or
       before April 20, 2013, as the hearing officer evidently found, how then could he have been a
       member of the petitioner’s household on August 12, 2013, the date of his arrest. The hearing
       officer resolved the dilemma by holding that Carlos Rivera remained a member of the
       petitioner’s household until he was removed from the petitioner’s voucher, without regard to

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       the date that he actually moved out. The hearing officer cited no authority for such a holding,
       the CHA has cited no authority supporting such a holding, and we have found none.
¶ 18       Neither the CHA’s plan for the administration of the Voucher Program nor the regulations
       of the United States Department of Housing and Urban Development (HUD) with which the
       CHA’s administrative plan must comply (see 24 C.F.R. § 982.54(b) (2012)) contain any
       provision supporting the hearing officer’s holding that an individual remains a member of the
       household in a subsidized unit until that individual is removed from the participant’s voucher.
       As the petitioner points out, for purposes of participation in the Voucher Program, the terms
       “family” and “household” are defined based on residence in the same subsidized unit. Section
       5.403 of the Section 8 Tenant-Based Assistance: Housing Choice Voucher Program provides
       that a “family” is a single person or group of persons residing together. 24 C.F.R. § 5.403
       (2012). “Household” is defined as “the family and PHA-approved live-in aide.” 24 C.F.R.
       § 5.100 (2012). The CHA’s own administrative plan for the Voucher Program states that an
       individual who is permanently absent from a subsidized unit is “no longer a family member.”
       Chicago Housing Authority Housing Choice Voucher Program Administrative Plan § 3-I.L.
       (eff. Dec. 1, 2012). The instruction booklet for completion of HUD form HUD-50058 which
       the CHA must complete for households participating in the Voucher Program (see 24 C.F.R.
       §§ 908.101, 908.104 (2012)) provides that “[t]he household includes everyone who lives in the
       unit.” Further, the common understanding of the term “household” is a group of individuals
       who dwell under the same roof and compose a family. Webster’s Third New International
       Dictionary 1096 (1981). These references lead us to conclude that an individual ceases to be a
       member of the household of a Voucher Program participant when that individual ceases to
       reside in the subsidized unit without expectation of return.
¶ 19       According to the petitioner’s testimony, Carlos Rivera moved out of the subsidized unit in
       late January 2013 and went to live with his father, and that after his eighteenth birthday on
       April 20, 2013, she “knew he wasn’t going to come back home.” There is no evidence in the
       record that Carlos Rivera ever resided in the subsidized unit after April 20, 2013. In point of
       fact, there is no evidence in the record that he resided in the unit after late January 2013 when,
       according to the petitioner, he moved out. The evidence of record admits of but a single
       conclusion; namely, that Carlos Rivera was not a member of the petitioner’s household on the
       date he was arrested. As a consequence, the petitioner was under no obligation to notify the
       CHA of his arrest, and the hearing officer’s finding to the contrary is clearly erroneous.
¶ 20       We turn next to the finding that the petitioner violated her obligations as a participant in the
       Voucher Program by failing to promptly notify the CHA that Carlos Rivera no longer lived in
       the subsidized unit. The CHA’s administrative plan governing the Voucher Program provides
       that, when a participant’s family obligations require that the CHA be notified of a change,
       notification to the CHA within 30 calendar days is considered prompt notice. Chicago Housing
       Authority Housing Choice Voucher Program Administrative Plan § 5-I.C. (eff. Dec. 1, 2012).
       As noted earlier, the petitioner testified that Carlos Rivera ceased to reside in her subsidized
       unit in late January 2013 and that she knew as of April 20, 2013 that her son would not be
       returning to the unit. Consequently, as the hearing officer found, the petitioner was required to
       notify the CHA by May 20, 2013, at the latest, that Carlos Rivera no longer lived in the unit.
       The petitioner argues that, by amending her HAP Contract on August 28, 2013, and removing
       Carlos Rivera as a household member residing in the subsidized unit, the CHA somehow



                                                    -5-
       waived the right to assert a violation of the petitioner’s obligation to promptly notify it that he
       was no longer residing in the unit. We find no merit in the argument.
¶ 21       Nothing in the record supports the proposition that, when the CHA received the
       petitioner’s Out of Household Declaration on August 15, 2013, notifying it that Carlos Rivera
       had moved out of the subsidized unit in January 2013, it was possessed of any information as to
       the date when his absence became permanent. The CHA’s administrative plan governing the
       Voucher Program provides that “[g]enerally an individual who is or is expected to be absent
       from the assisted unit for more than 180 consecutive days is considered to be permanently
       absent and no longer a family member.” Chicago Housing Authority Housing Choice Voucher
       Program Administrative Plan § 3-I.L. (eff. Dec. 1, 2012). If Carlos Rivera ceased to reside in
       the subsidized unit in late January, as the petitioner testified, her notification to the CHA on
       August 15, 2013, may well have been within the 30 day period after he was considered to be
       permanently absent and no longer a family member. It was not until the petitioner testified at
       the informal hearing that it was revealed that Carlos Rivera went to live at his father’s home
       and that the petitioner knew as of April 20, 2013, that he would not be returning to the unit.
       Under these circumstances, we find no waiver of the petitioner’s obligation to notify the CHA
       within 30 days of the date that she knew that Carlos Rivera had permanently moved out of the
       subsidized unit.
¶ 22       Based upon the petitioner’s own testimony as to the date upon which she knew that Carlos
       Rivera would not be returning to reside in the subsidized unit and the fact that she never
       notified the CHA that he had moved until 3½ months thereafter, we conclude that the hearing
       officer’s determination that the petitioner violated her obligations as a participant in the
       Voucher Program by failing to promptly notify the CHA that a member of her household had
       ceased to reside in the unit is neither clearly erroneous nor against the manifest weight of the
       evidence.
¶ 23       The CHA’s termination of the petitioner as a participant in the Voucher Program was based
       upon the hearing officer’s determination that CHA sustained its burden of proving both of the
       violations asserted against her. However, we have concluded that the hearing officer’s
       determination as to one of those violations is clearly erroneous. We believe it appropriate,
       therefore, to vacate that portion of the Decision terminating the petitioner’s participation in the
       Voucher Program and to remand this matter back to the CHA for a hearing only as to the
       appropriate sanction for the petitioner having failed to promptly notify the CHA that Carlos
       Rivera ceased to reside in the subsidized unit, taking into consideration all of the factors
       enumerated in section 12-II.D. of the CHA’s administrative plan for the Voucher Program. See
       Chicago Housing Authority Housing Choice Voucher Program Administrative Plan § 12-II.D.
       (eff. Dec. 1, 2012).
¶ 24       For the foregoing reasons, we: reverse the judgment of the circuit court; confirm that part
       of the Decision finding that the petitioner violated her obligations as a participant in the
       Voucher Program by failing to promptly notify the CHA that Carlos Rivera no longer lived in
       the subsidized unit; reverse that part of the Decision finding that the petitioner violated her
       obligations as a participant in the Voucher Program by failing to notify the CHA that Carlos
       Rivera had been arrested; vacate the termination of the petitioner as a participant in the
       Voucher Program; and, remand this matter back to the CHA for further proceedings consistent
       with this opinion.


                                                    -6-
¶ 25       Circuit court reversed; CHA decision confirmed in part, reversed in part and vacated in
       part; cause remanded to the CHA with directions.




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