The opinion of the court was delivered by: Hurley, Senior District Judge:
Plaintiff Samantha Rivera commenced this action on February 24, 2012 by filing a Complaint and proposed Order to Show Cause seeking a "preliminary injunction reinstating plaintiff to the Section 8 [Housing Assistance Payments] [P]rogram retroactive to the termination of the subsidy." (Order to Show Cause at 1.) The parties appeared before the Court for a hearing on May 18, 2012, after which the Court reserved decision on plaintiff's motion.*fn1 For the reasons set forth below, plaintiff's motion is granted.
Plaintiff is a forty-year-old widow and mother of three daughters. The family moved to 3 Lowndes Ave, Apt 2B, Huntington Station, NY in 2010. Since 2011, plaintiff has participated in the Section 8 Housing Assistance Payments Program of the United States Housing Act of 1937, as amended by the Housing and Community Development Act of 1974, codified at 42 U.S.C. § 1437f (the "Section 8 Program"). Defendant Town of Huntington Housing Authority (the "Housing Authority") is a municipal entity that monitors and administers approximately 475 vouchers for families participating in the Section 8 Program in the Town of Huntington. (Def.'s Opp'n at 2.) Defendant Siela A. Bynoe is the Executive Director of the Housing Authority
The Termination of Plaintiff's Benefits
On April 26, 2011, plaintiff's daughter Cristal Rivera ("Cristal"), then 22 years old, was riding as a passenger in an automobile driven by another young woman. The vehicle was stopped by police officers driving an unmarked car. Cristal does not know why the vehicle was pulled over. (Aff. of Cristal Rivera, dated Feb. 23, 2012 ("Cristal Aff.") ¶ 2.) Cristal did not have identification, and was ordered out of the vehicle. (Id. ¶ 3.) She complied, leaving her pocketbook on the car seat. (Id.) The police officers "searched [her] pocketbook and removed an envelope with a white substance in it." (Id.) Cristal "told them that it was not [hers], that [she] did not know what it was." (Id. ¶ 4.) She "was told," presumably by one or more of the police officers at the scene, "that [the substance] was cocaine." (Id.) In response, she "told the officers that [she did] not use drugs." (Id.)
At that time, Cristal was arrested and charged with Criminal Possession of a Controlled Substance in the Seventh Degree, (see Am. Compl., Ex. A at 2), which is a Class A Misdemeanor. See N.Y. Penal Law § 220.03. She did not tell her mother (plaintiff) about the arrest. (Cristal Aff. ¶ 6.)
On December 28, 2011, the Housing Authority notified plaintiff that her Section 8 Program benefits would be terminated as of January 31, 2012 (the "Termination Notice"). (Am. Compl., Ex. A.) The stated reason for the termination was: "Cristal Rivera arrested 4/26/2011 Am 7th degree - criminal possession of a controlled substance." (Id. at 1.) The Termination Notice stated that, as a result of Cristal's arrest, plaintiff was in violation of 24 C.F.R. § 982.551(a), (b)(1); 24 C.F.R. §§ 982.552(a)(1), (c)(1)(i); and 24 C.F.R. § 982.553(2)(c). The Termination Notice further advised plaintiff of her right to request an informal hearing within ten days to contest the termination.
Two documents were attached to the Termination Notice. The first was a document entitled "Criminal Disposition Information," which reflected Cristal's arrest on April 26, 2011. (Am. Compl., Ex. A at 2.)*fn2 The second document was a copy of the regulations that were cited in the Termination Notice. Of particular relevance here is 24 C.F.R. § 982.553(c), which permits a housing authority to terminate an individual's Section 8 benefits "for criminal activity by a household member . . . if the [housing authority] determines, based on a preponderance of the evidence, that the household member has engaged in the activity, regardless of whether the household member has been arrested or convicted for such activity." 24 C.F.R. § 982.553(c). The Hearing
At plaintiff's request, a hearing was held on January 20, 2012 before Adam Morelli, a Hearing Officer designated by defendants. (Aff. of Samantha Rivera, dated Feb. 23, 2012 ("Samantha Aff.") ¶ 4.) Plaintiff and Cristal attended the hearing, along with attorney Ira Kaplan, Esq.,*fn3 and Gerald Goldberg, a family friend. (Id. ¶ 5.) The Housing Authority was represented by Angela Roma, a Section 8 Coordinator. (Aff. of Angela Roma, dated April 19, 2012 ("Roma Aff.") ¶¶ 1, 2.)
Cristal testified as to the circumstances of the arrest, as described above. (Cristal Aff. ¶ 12.) The Hearing Officer asked Cristal whether she "would pass a drug test if one was given on that day." (Id.) Cristal answered in the affirmative. (Id.) Kaplan testified that he intended to seek dismissal of the criminal charge against Cristal at the next court appearance. (Id. ¶ 13.) Goldberg testified that he knew plaintiff's family and knew that Cristal did not use drugs. (Id.) Plaintiff testified that she was unaware of Cristal's arrest until she received the Termination Notice in December 2011. (Samantha Aff. ¶ 7.) For the defendant, Roma presented as evidence the Termination Notice and Criminal Disposition Information record. (Roma Aff. ¶ 7.)
On January 21, 2012, the Hearing Officer issued a written decision denying plaintiff's request that he overturn the Housing Authority's decision to terminate plaintiff's benefits. (Roma Aff., Ex. B.) In the three-paragraph decision, the Hearing Officer began by reiterating that plaintiff's benefits were terminated because Cristal "was arrested on April 26, 2011 for 7th degree possession of a controlled substance." (Id.) Then, the Hearing Officer cited to two inapplicable regulations that deal with standards for admission into the Section 8 Program. (See id. (citing 29 C.F.R. § 982.553(a)(1)(ii) and (a)(2)(ii).) The Hearing Officer concluded that: "Based on testimony given during the hearing, a quantity of cocaine was found in your daughter's purse by police on April 26, 2011. As a result, I cannot overturn the Housing Authority's decision to terminate your benefits at this time." (Id.)
On April 3, 2012, Cristal "pled guilty to disorderly conduct" and paid a fine. (Am. Compl. ¶ 22.) Plaintiff asserts that "no allocution regarding possession of any controlled substance was given" and that under the New York Penal Law, "disorderly conduct is a violation and not a crime." (Id.) That assertion is not controverted by defendants.
In the Amended Complaint, plaintiff challenges two "official policies" purportedly adopted by the Housing Authority: (1) the policy "to refuse to allow a Section 8 participant, or counsel for a participant, to tape [record] the [administrative] hearing, insisting that they will refuse to proceed with a hearing, if a tape recorder is activated," (Am. Compl. at pp. 2-3; see also id. ¶ 8), and (2) the policy "to send a termination notice to a Section 8 participant as soon as defendants learn that a family member has been arrested, regardless of [whether defendants have] sufficient evidence that the family member has engaged in criminal activity," (id. ¶ 8), which has the effect of ...