SIXTH DIVISION Order filed: June 30, 2015

No. 1-14-2458

______________________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

FIRST DISTRICT ______________________________________________________________________________

MARIBELY RODRIGUEZ, ) Appeal from the ) Circuit Court of Petitioner-Appellant, ) Cook County. ) v. ) No. 14 CH 4309 ) CHICAGO HOUSING AUTHORITY, ) a Municipal Corporation, ) Honorable ) David B. Atkins, Respondent-Appellee. ) Judge, Presiding. ______________________________________________________________________________

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 which 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 No. 1-14-2458

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."

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¶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 .

¶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.

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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

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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.

¶ 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.

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¶ 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,

(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 of City of Chicago,

(1989). The standards of review in either instance are essentially the same. Hanrahan v.

Williams,

(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,

.

¶ 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,

(1998). On review of such a finding,

we apply the clearly erroneous standard.

An administrative agency’s finding is clearly

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erroneous where, after reviewing the entire record, we are left with a definite and firm conviction

that a mistake has been made. Outcom,

.

¶ 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 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

(b) (2012)) contain

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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.

(2012).

"Household" is defined as "the family and PHA-approved live-in-aid."

(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, § 3-1.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

,

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 18th 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

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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, § 5-1.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 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

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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, § 3-1.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,

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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.

¶ 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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