
    Jennifer SAYLES v. GREATER GADSDEN HOUSING AUTHORITY.
    AV93000152.
    Court of Civil Appeals of Alabama.
    Nov. 4, 1994.
    Rehearing Denied Dec. 16, 1994.
    Certiorari Denied March 24, 1995 Alabama Supreme Court 1940466.
    Sara J. Senesac, Legal Services Corporation of Alabama, Gadsden, for appellant.
    Jack Lee Roberts, Jr. of Turnbach & Warren, P.C., Gadsden, for appellee.
   YATES, Judge.

The Greater Gadsden Housing Authority (“GGHA”), a federally subsidized public housing authority, filed an eviction action in the District Court of Etowah County against Jennifer Sayles. The district court ordered the eviction, and Sayles appealed to the circuit court. Following ore tenus proceedings, the circuit court ordered Sayles evicted. Sayles appeals.

We note that the facts in this case are undisputed; therefore, the ore tenus rule has no application and the duty of this court is to determine whether the trial court properly applied the law to the facts. Ex parte Anonymous, 618 So.2d 722 (Ala.1993).

Sayles became a tenant of GGHA in 1991. At the time of the hearing, she was unmarried and lived in the apartment with her young daughter, and was expecting another child. Sayles’s only income was $137 per month in Aid to Dependent Children. Based on that income, she received from the Department of Housing and Urban Development (“HUD”) a $50 per month utility allow-anee, from which GGHA automatically deducted her $29 per month rent. Consequently, she was left with $21 with which to pay her utility bills.

In September 1991, Sayles’s gas utility service was disconnected because of nonpayment; GGHA counseled her and sent her a notice to vacate. Following an informal hearing, GGHA allowed Sayles to remain a tenant, notifying her that if her gas service was disconnected in the future, she would be sent a notice to vacate and that that notice “will stand with absolutely no exceptions.” On April 15, 1993, Sayles’s gas service was again disconnected because of nonpayment. On April 22, 1993, GGHA notified her that her lease was being terminated. Following an informal hearing on April 26,1993, GGHA sent Sayles a notice to vacate, although her gas service had been restored on April 23.

At that hearing, Sayles testified that she had nowhere to go and that she did not have enough money to pay her gas bill. She went on to state that she wanted to remain a tenant and that her gas service had been restored. Sayles’s March 1993 gas bill was $104. It had snowed that month and temperatures were unseasonably cold. Her water heater, stove, and heater are all gas appliances.

Sayles testified at the hearing before the circuit court that her April 1993 utility allowance cheek was only $7 because, “they [GGHA] took out $14 of it to pay [for] a window.” She further testified that she used her HUD check strictly for utilities, stating, “I put it on my power bill, because that’s what it’s for.”

The lease agreement between Sayles and GGHA provided:

“Tenant shall be responsible for securing utilities ... not provided by Landlord and shall pay directly to the utility provider all deposits and charges necessary to secure and maintain UNINTERRUPTED service. Failure of Tenant to furnish UNINTERRUPTED service because of nonpayment of utilities shall be considered a serious violation of the terms and conditions of this lease.... Tenant agrees to keep sufficient heat in the premises to prevent freezing of piped water_ Tenant will be charged for any damage resulting from failure to maintain sufficient heat in premises or to notify Landlord ... unless for any cause beyond Tenant’s control.”

A public housing tenant may be evicted only for a “serious or repeated violation of material terms of the lease such as the failure to make payments due under the lease ... or for other good cause.” 24 C.F.R. § 966.4(l)(2)(i). The housing director for GGHA testified that no property damage had occurred and that no other residents had been placed in any danger as a result of Sayles’s utility disconnection. We find no cause for the termination of the lease for the short-term disconnection of a utility service that occurred after an approximate two-year period of service. We note that there are no Alabama cases on point.

Here, almost two years had passed since Sayles’s first disconnection of utility service. Further, an income of $137 per month in Aid to Dependent Children, along with a $50 per month utility allowance, from which a $29 rent payment is deducted, does not allow for increased utility bills in the extreme weather months. Sayles testified that during the winter, her gas bill normally averages $50 to $58 per month. The $104 gas bill was the result of the winter storm in March 1993 and Sayles’s inability to completely pay her previous month’s bill. The gas company had required a $77 payment to prevent disconnection; that payment would have required more than one-half of Sayles’s monthly income.

Moreover, the housing director for GGHA testified that she was not familiar with the federal regulation allowing public housing authorities to provide individual relief from hardship in paying excessive utility bills. That regulation provides:

“§ 965.479 Individual relief.
“Requests for relief from Surcharges for excess consumption of ... or from payment of Utility supplier billings in excess of the Allowances for Tenanb-Purchased Utilities, may be granted by the [public housing authority] on such reasonable grounds, such as special needs of elderly, ill or handicapped tenants, or special factors affecting utility usage not within the control of the tenant, as the [public housing authority] shall deem appropriate.... Notice of the availability of such procedures (including identification of the [public housing authority] representative with whom initial contact may be made by tenants), and the [public housing authority’s] criteria for granting such relief, shall be included in each notice to tenants given pursuant to § 965.473(c) and in the information given to new tenants upon admission.”

24 C.F.R. § 965.479 (emphasis added).

Based on the director’s testimony that she was not familiar with that regulation, we can assume that Sayles was not aware of the relief that may have been available to her for her excessive utility bill.

The director testified that GGHA did, in fact, make provisions for excessive utility bills in extreme hot weather. We find this inconsistency noteworthy. The director stated:

“I was going to tell you the procedure we just incorporated. On their power bill that they owe us now, in July and August the weather was so extremely hot that the Board passed an agreement for the resident to sign where they can pay — those utility bills come due and payable in September and October to us, so they’ve passed for us to allow them to sign an agreement if their excess was extremely high, over twenty-five dollars and ... their income is very low. Then we allow them to pay that in four months under our four-month agreement because of the excess weather. Because that would have been a hardship on most of them.”

Given § 965.479, Sayles’s low income, and the other facts of the case, we hold that Sayles’s eviction was error. Accordingly, the judgment of the trial court is reversed.

REVERSED AND REMANDED.

ROBERTSON, P.J., concurs.

THIGPEN, J., dissents.

THIGPEN, Judge,

dissenting.

My review of this record discloses no reversible error in the trial court’s application of the law to the facts in this case. Because I would affirm the trial court’s order evicting Sayles for repeated violations of the terms of the lease agreement, I must respectfully dissent.

It is undisputed that this is not the first time that Sayles has violated the terms of the lease provision regarding utility service. In pertinent part, that provision expressly states: “Failure of Tenant to furnish UNINTERRUPTED service because of non-payment of utilities shall be considered a serious violation of the terms and conditions of this lease.”

In September 1991, when Sayles’s gas service was disconnected for nonpayment, GGHA counselled her and held an informal hearing. GGHA allowed Sayles to remain a tenant, but notified her that if her gas service was disconnected again in the future, it would send her a notice to vacate with no exceptions.

In April 1993, Sayles’s gas service was again disconnected because of nonpayment and GGHA again sent her a notice that it was terminating her lease. Following an informal hearing, GGHA sent Sayles a notice to vacate, noting what it referred to as “a repeated violation.” After a hearing, the district court ordered the eviction, and after a hearing on Sayles’s appeal, the circuit court ordered Sayles evicted.

The facts in this case are not disputed. Sayles’s water heater, apartment heater, and cooking stove were powered by gas, and GGHA maintains that the absence of these essentials creates an unsafe and unclean environment defeating the express purposes of public housing. See 42 U.S.C.A. § 1437. After Sayles was notified that the lease was being terminated because she had again violated the terms of the lease concerning utility services, but before the date of the informal hearing, Sayles paid the outstanding bill and penalty to have her gas service restored. This information was considered before the decision was made to order her eviction.

My research reveals no cases from Alabama or any other jurisdiction that specifically address the issue whether the repeated, short-term disconnection of a utility service is considered to be a material violation of the terms of the lease, or is good cause to support an eviction action. Moreover, I find no authority prohibiting a public housing authority from instituting eviction proceedings due to interrupted utility service because of nonpayment. Certainly the safety and well-being of other tenants in public housing are enhanced by each tenant’s proper maintenance of his or her facility, including uninterrupted utility service. Furthermore, although the ore tenus rule does not apply in this case, it is noteworthy to me that both the circuit court and the district court received testimony at hearings in this case, and each court ordered eviction. I have carefully and thoroughly reviewed the transcript of the testimony presented to the circuit court, and I find that the circuit court properly applied the law to the facts presented.

GGHA is the government agency that administers public housing in the Gadsden area, and pursuant to policy, GGHA is vested with “the maximum amount of responsibility in the administration of their housing programs.” 42 U.S.C. § 1437. As such, GGHA is empowered to make and enforce public housing lease agreements in its program. This court should not undermine the responsibility of GGHA in administering the public housing program. The majority seems to focus on the fact that no property damage or injury to another resident resulted from Sayles’s repeated violations. There is no requirement that damage or injury must first occur to find that Sayles seriously and repeatedly violated material terms of the lease. For this court to add that requirement not only removes management supervision from GGHA, but also frustrates GGHA’s purpose to prevent damage or injury in its administration.

While I am not unsympathetic with Sayles’s predicament, I have many concerns with the rationale of the majority opinion. The majority reasoning seems to be that because Sayles’s monthly income, which was totally from government assistance, was insufficient to cover her expenses, the terms in the lease regarding nonpayment are not binding on Sayles, or, if she violates those provisions, she should be forgiven.

It is noteworthy to me that despite her apparent shortage of funds, Sayles was able to pay approximately $100 within days after her gas service was disconnected in order to resume the utility service before the hearing. That amount represented an accumulated balance for past due bills and a reconnection fee of $40. After being noticed that she was again in violation of the lease agreement, Sayles was able to again quickly remedy the situation. Sayles’s own testimony was that her gas bill was lower in summer months, and that during the winter months, it averaged $50 to $58. When questioned regarding the accumulated carry-over balance of $104, she responded that as long as she paid something towards it, the gas was not cut off, but that in April 1993, she did not pay anything and service was disconnected. Furthermore, it appears from Sayles’s explanation that the shortage of her utility allowance that month was due to GGHA’s withholding $14 to pay for a broken window. The record contains no evidence regarding that incident, nor an explanation regarding Sayles’s liability for such. It is also noteworthy to me that Sayles testified that during the snow storm in March, she used an electric heater, and that she does not pay the electric bill. Regardless of the housing director’s unfamiliarity with a federal regulation regarding hardship for excessive utility bills, there is an on-record discussion regarding that regulation, which the trial court considered with the facts of this case. The undisputed facts in this case indicate nothing to entitle Sayles to the relief offered by that regulation.

I am aware that my position in this matter would render a harsh result; however, it is my opinion that the rationale employed by the majority fails to consider the authority given to those administering public housing. Furthermore, it is my opinion that the majority gives insufficient recognition to GGHA’s administrative expertise in the area of public housing, which is a specific, specialized area. See Shell Offshore, Inc. v. Baldwin County Commission, 570 So.2d 698 (Ala.Civ.App. 1990).  