How do the courts determine whether a statement with respect to the rental of a dwelling is discriminatory for the purposes of Conn. Gen. Stat. § 46a-64c(a)(3)?

§ 46a-64c. Discriminatory housing practices prohibited. Disposition of complaints. Penalty

(a) It shall be a discriminatory practice in violation of this section:

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(3) To make, print or publish, or cause to be made, printed or published any notice, statement, or advertisement, with respect to the sale or rental of a dwelling that indicates any preference, limitation, or discrimination based on race, creed, color, national origin, ancestry, sex, gender identity or expression, marital status, age, lawful source of income, familial status, learning disability, physical or mental disability or status as a veteran, or an intention to make any such preference, limitation or discrimination.

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Whether the trial court applied the proper standard for analyzing the statements under § 46a-64c (a) (3)

[343 Conn. 42]

presents an issue of statutory construction that raises a question of law, over which we exercise plenary review. See, e.g., Boisvert v. Gavis, 332 Conn. 115, 141, 210 A.3d 1 (2019). "It is well settled that we follow the plain meaning rule pursuant to General Statutes § 1-2z in construing statutes to ascertain and give effect to the apparent intent of the legislature." (Internal quotation marks omitted.) Ledyard v. WMS Gaming, Inc., 338 Conn. 687, 696, 258 A.3d 1268 (2021).

As required by § 1-2z, we begin with the text of the statute, which provides in relevant part that it is "a discriminatory practice" to "make, print or publish, or cause to be made, printed or published any notice, statement, or advertisement, with respect to the sale or rental of a dwelling that indicates any preference, limitation, or discrimination based on ... lawful source of income ... or an intention to make any such preference, limitation or discrimination." General Statutes § 46a-64c (a) (3); see footnote 1 of this opinion (complete text of § 46a-64c (a) (1) and (3) ).

Section 46a-64c (a) (3) is silent as to the proper standard by which to analyze statements alleged to violate the statute, leaving the statute susceptible to multiple, plausible interpretations as to the proper standard. See Thomas v. Dept. of Developmental Services, 297 Conn. 391, 400, 999 A.2d 682 (2010) (silence as to scope of provision rendered statute ambiguous with respect to its scope because there was more than one plausible interpretation). When silence renders a statutory provision ambiguous "with respect to [the issue at hand], our analysis is not limited by ... § 1-2z .... In addition to the words of the statute itself, we look to ... the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and [common-law] principles governing the same general subject matter." (Citation omitted; internal quotation marks omitted.) Curry v. Allan S. Goodman, Inc., 286 Conn. 390, 407, 944 A.2d 925 (2008).

Turning to the legislative history, we note that then state Senator Richard Blumenthal described the bill that was enacted in 1990 as the Connecticut Discriminatory Housing Practices Act as having "all the standards and assurances that exist under federal law" and "incorporat[ing] the federal [Fair Housing Act,

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42 U.S.C. 3601 et seq. (federal act)] into our state statute ...." 33 S. Proc., Pt. 2, 1990 Sess., p. 3494. With no on point discussion in the legislative history of the provision enacted as § 46a-64c (a) (3), we are left to consider how the state fair housing act relates to common-law principles and federal fair housing laws. In interpreting our state fair housing laws, "we are guided by the cases interpreting federal fair housing laws ... despite differences between the state and federal statutes." (Citation omitted.) Miko v. Commission on Human Rights & Opportunities, 220 Conn. 192, 202, 596 A.2d 396 (1991); see, e.g., Curry v. Allan S. Goodman, Inc., supra, 286 Conn. at 407, 944 A.2d 925 ("this court previously has determined that Connecticut antidiscrimination statutes should be interpreted in accordance with federal antidiscrimination laws"). We find particularly instructive the constructions of the federal act by the United States Court of Appeals for the Second Circuit in the absence of a United States Supreme Court decision on point. See Feehan v. Marcone, 331 Conn. 436, 478, 204 A.3d 666 ("[i]n considering claims of federal law, it is well settled that, when the United States Supreme Court has not spoken, we find decisions of the Second Circuit particularly persuasive"), cert. denied, ––– U.S. ––––, 140 S. Ct. 144, 205 L. Ed. 2d 35 (2019). Accordingly, we will look to cases interpreting 42 U.S.C. § 3604 (c),⁷ which is the

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federal counterpart to § 46a-64c (a) (3), even though the state statute is unique insofar as it includes lawful source of income as a protected class.

Our analysis begins with the Second Circuit's decision in Ragin v. New York Times Co., 923 F.2d 995 (2d Cir.), cert. denied, 502 U.S. 821, 112 S. Ct. 81, 116 L. Ed. 2d 54 (1991), in which that court analyzed the statutory language of 42 U.S.C. § 3604 (c) in upholding the denial of a motion to dismiss an action claiming that a newspaper had violated the federal act by publishing real estate advertisements that featured virtually no black models, thus indicating a preference for white purchasers. See id. at 998–1000. "Beginning [its] analysis with the statutory language, [the Second Circuit noted that] the first critical word is the verb ‘indicates.’ Giving that word its common meaning, [the court] read the statute to be violated if an ad for housing suggests to an ordinary reader that a particular race is preferred or dispreferred for the housing in question." Id. at 999.

"[The court] read the word ‘preference’ to describe any ad that would discourage an ordinary reader of a particular race from answering it." Id. at 999–1000. "Moreover, the statute prohibits all ads that indicate a racial preference to an ordinary reader whatever the advertiser's intent . To be sure, the intent of the creator of an ad may be relevant to a factual determination of the message conveyed ... but the touchstone is nevertheless the message . If, for example, an advertiser seeking to reach a group of largely white consumers were to create advertisements that discouraged potential black consumers from responding, the statute would bar the ads, [regardless of] whether the creator of the ad had a subjective racial intent."⁸ (Citation omitted; emphasis

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added.) Id. at 1000. The court also noted that the "ordinary reader is neither the most suspicious nor the most insensitive of our citizenry." Id. at 1002. Considering the advertisement at issue in the context of twenty years of advertisements, the Second Circuit determined that it presented a viable claim of a violation of 42 U.S.C. § 3604 (c) by stating racial preferences in the context of the sale of real estate, emphasizing "a long-standing pattern of publishing real estate ads in which models of potential consumers are always white while black models largely portray service employees, except for the exclusive use of black models for housing in predominantly black neighborhoods." Id. at 1001.

Subsequently, the Second Circuit more clearly delineated when and why the ordinary listener considers evidence beyond the statement itself in Soules v. United States Dept. of Housing & Urban Development, supra, 967 F.2d 817. In Soules, the court considered whether a real estate agent violated the federal act by asking a prospective tenant how old her child was because "an elderly person lived in the first floor unit, and ... she did not want an upstairs resident who would make too much noise." Id. at 820. The court stated that, "[i]n cases [in which statements] are clearly discriminatory, a court may look at [the statement] and determine whether it indicates an impermissible preference to an ordinary reader, and inquiry into the author's professed intent is largely unnecessary." Id. at 824. The court also stated that, because written content does not communicate the inflection of the speaker, "courts must turn to other evidence in determining whether a violation of the [federal act] occurred." Id. at 825. "[Fact finders] may examine intent ... because it helps determine the manner in which a statement was made and the way an ordinary listener would have interpreted it." Id. Deeming the real estate agent's statement not facially discriminatory, the

[343 Conn. 46]

court stated that the context and intent of the speaker could either expose an impermissible preference or simply explain why the statement was made, and upheld the administrative law judge's conclusion that the statements at issue were made to determine whether the prospective tenants were noisy.⁹ Id. at 825–26; see also Jancik v. Dept. of Housing & Urban Development, 44 F.3d 553, 554–55 (7th Cir. 1995) (considering context, including two statements that indicated express preference against children and teenagers, to determine that " ‘mature person preferred’ " advertisement expressed impermissible preference).

Significantly, the Second Circuit also suggested in Soules that context is particularly helpful when there may be a legitimate reason for inquiring into one's status as a protected class, observing that, "whereas [t]here is simply no legitimate reason for considering an applicant's race ... there are situations in which it is

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legitimate to inquire about the number of individuals interested in occupying an apartment and their ages." (Internal quotation marks omitted.) Soules v. United States Dept. of Housing & Urban Development, supra, 967 F.2d at 824. "In [Soules], for example, [the real estate agent] asked [the perspective tenant] whether her child was noisy and later stated that an elderly tenant ‘would probably not be able to take a noisy child running around.’ Depending on the context and intent of the speaker, the latter question either could intimate an impermissible preference or simply might explain—to a desired tenant—why the first question had been asked. It also might send a message that a tenant with a noisy child will

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probably be confronted with regular complaints from the elderly tenant making the apartment less attractive to the prospective tenant." Id. at 825.

Finally, in Rodriguez v. Village Green Realty, Inc., supra, 788 F.3d at 36–39, the Second Circuit considered whether there was sufficient evidence to raise a genuine issue of material fact as to whether a real estate agent had violated 42 U.S.C. § 3604 (c) by making certain comments with respect to the tenants’ disabled child. Concluding that 42 U.S.C. § 3604 (c) could be violated even if the person who was the subject of the statements did not actually qualify as disabled under the federal act; id. at 41 ; the court explained that it would contradict the language of 42 U.S.C. § 3604 (c) to hold that the inquiry depended on the speaker's subjective state of mind. See id. at 53. Rather, the inquiry under 42 U.S.C. § 3604 (c) depends on whether the challenged statement conveyed a prohibited preference to the ordinary listener, with the " ‘touchstone’ " of the inquiry being the message itself.¹⁰ Id. Section 3604 (c) prohibits all ads that indicate an impermissible preference to an ordinary reader, regardless of intent. See id. However, when the message does not convey an impermissible preference on its face, courts may turn to evidence beyond the message to determine whether the ordinary reader would, in fact, interpret the message to violate the statute. See id.

Guided by this Second Circuit case law, we conclude that, when a notice, statement, or advertisement that allegedly violates § 46a-64c (a) (3) is plainly discriminatory on its face, courts need not examine the surrounding

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context or the speaker's intent to determine whether the statement indicates any impermissible preference, limitation, or discrimination to the ordinary listener. When, however, such a notice, statement, or advertisement is not facially discriminatory, courts may consider the context and intent of the speaker to aid in determining the way an ordinary listener would have interpreted it.¹¹ In the

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present case, the trial court did not expressly conclude whether the statements were facially discriminatory, stating only that "Henry made no statement that conveys the message that she was disinclined to proceed with a prospective ... tenancy [by the plaintiff] because of section 8 program participation." We understand that statement to mean that the court concluded that the statements were not facially discriminatory—a conclusion with which we agree. Thus, it was not improper for the trial court to consider the context of the statements in determining whether they stated a preference with respect to lawful source of income, in violation of § 46a-64c (a) (3).¹²

We begin with the facts that the trial court included in its addendum discussing the plaintiff's § 46a-64c (a) (3) claim. As support for its conclusion that Henry's statements did not violate § 46a-64c (a) (3), the trial court cited the fact that Henry forwarded a sample lease to the plaintiff after finding out about her section 8 status. We fail to see the significance of this fact in light of the overwhelming evidence in the trial court's findings that support the plaintiff's § 46a-64c (a) (3) claim.¹³ Immediately prior to learning about the plaintiff's section 8 status, Henry had communicated that the deal was "all set for April 1st." After Henry learned

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of the plaintiff's section 8 status, she abruptly shifted gears to inform Becker that (1) they did "not have an offer without a signed lease," (2) Henry was "not sure [Vacarro] would want to wait," as she knew it took "a couple of weeks for the process," and (3) according to Henry, Vaccaro had to decide "whether he would want to wait for the section 8 program process to run its course given his expressed desire to have the [rental apartment] rented by April 1, 2017," as the trial court stated. In the hours following her receipt of the plaintiff's section 8 forms, Henry stated four separate times that she was not previously aware of the plaintiff's intention to use a section 8 voucher to pay the rent.

Thus, given that the plaintiff indicated that she would have been able to meet Vaccaro's desired occupancy date of April 1, 2017, particularly with Becker's demonstrated desire to expedite the transaction, any preference to avoid the administrative process of the section 8 program in this transaction could not have been a determinative consideration in Vaccaro's rental decision under § 46a-64c (a) (1), which, ipso facto, renders it impermissible under § 46a-64c (a) (3) for Henry to express that Vaccaro planned to consider the length of the section 8 process in his rental decision.¹⁷ Henry stated that she was "not sure if [Vaccaro] wants to [wait] through the process" and that it was up to him. By expressing that Vaccaro may not want to participate

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in the section 8 approval process, and that the transaction may not proceed after Becker had surprised her with the plaintiff's section 8 status, Henry indicated that the administrative process would be a significant consideration in Vaccaro's rental decision, which is a clear indication of an intention to make a preference based on lawful source of income.

The trial court ultimately concluded that Henry's statements "would not have been understood as discriminatory by

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an ordinary listener ...." However, a violation of § 46a-64c (a) (3) does not require discriminatory animus. Nor does it require a rejection of or disfavoring a lawful source of income. Section 46a-64c (a) (3) bars statements that a reasonable listener would understand to convey an intention to make any such "preference, limitation, or discrimination ...." In light of the broad language of § 46a-64c (a) (3) and the abundance of facts supporting an inference that the ordinary listener would have understood Henry's statements to fall within the reach of the statute, we are left with a definite and firm conviction that the trial court's conclusion was not simply an alternative yet permissible view of the evidence. See, e.g., American Diamond Exchange, Inc. v. Alpert, 101 Conn. App. 83, 96, 920 A.2d 357 ("whe[n] there are two permissible views of the evidence, the [fact finder's] choice between them cannot be clearly erroneous" (internal quotation marks omitted)), cert. denied, 284 Conn. 901, 931 A.2d 261 (2007). It was clear error for the trial court to find that Henry's statements did not indicate even so much as an intention to make an impermissible consideration of section 8 in the rental decision. Accordingly, we conclude that the plaintiff is entitled to judgment as a matter of law as to liability on her § 46a-64c (a) (3) claim against Henry,¹⁸ with remand to the trial court

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necessary for consideration of the plaintiff's claims for damages, attorney's fees, and declaratory and injunctive relief. See, e.g., Channing Real Estate, LLC v. Gates, 326 Conn. 123, 132–33, 161 A.3d 1227 (2017).

We begin with the relevant legal principles for determining whether a statement is discriminatory under § 46a-64c (a) (3). In assessing whether a landlord's statement conveys a discriminatory preference,

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an ordinary listener standard is used. See Soules v. U.S. Dept. of Housing & Urban Development, 967 F.2d 817, 824 (2d Cir. 1992); see also Lopes v. William Raveis Real Estate, Inc., 343 Conn. 31, 47-48, 272 A.3d 150 (2022).

The defendant contends that the court "simply did not have the entire context of the conversation when the discriminatory statement was made to determine the intent behind the statement in order to properly assess how that statement in its actual context would affect an ordinary listener. . . . [T]here was not sufficient evidence established by the plaintiff . . . that reflects the full context of the conversation between the defendant and Cortes as to when the arguably discriminatory statement was made."^[5] She contends that her statements that the rental property was "not section 8 ready" did not convey an intent to discriminate against prospective tenants on the basis of a lawful source of income, but rather that the statement was nondiscriminatory and indicated that the rental property needed repairs in order to pass a section 8 inspection.

The court determined that the defendant's statements that the rental property "was not section 8 ready," in conjunction with testimony from the defendant's own expert, Christine Paisley, regarding the discriminatory nature of such statements "objectively conveys a preference for nonsection 8 renters." We construe the court's determinations in this regard to mean that the defendant's statements were facially discriminatory, which is supported by the record.

In the present result of the facially discriminatory nature of the defendant's statements that the rental property "was not section 8 ready," according to Lopez, the trial court "need not examine the surrounding context or the speaker's intent to determine whether the statement indicates any impermissible preference." Id., 47-48. If the defendant believed that the evidence presented at trial failed to convey the entire context of her statements, then she could have presented additional evidence at trial in furtherance of her argument that her statements were not discriminatory, facially or otherwise. She did not do so. Although the court was not required to, it nonetheless examined the context of the defendant's statements and discredited her view of the evidence-that her statements meant that the furnace needed repairs- in light of the evidence presented at trial, including that the defendant gave applications to, held open houses for, and agreed to rent the property to individuals who did not receive section 8 vouchers during the same time frame.

The court's ultimate factual finding, that the defendant's statements that the rental property was "not section 8 ready" conveyed to an ordinary listener an intent to discriminate against prospective tenants with section 8 vouchers in violation of § 46a-64c (a) (3), was not clearly erroneous. See Lopez v. William Raveis Real Estate, Inc., supra, 343 Conn. 49 (ordinary listener inquiry is one of fact). As noted by the trial court, the defendant's expert witness, Paisley, testified that it would be discriminatory for a landlord to show a property only to individuals without section 8 vouchers and to inform those with section 8 vouchers that the property was "not section 8 ready" while making the necessary repairs. Additionally, Kemple testified that it is discriminatory for a landlord to decline to rent to section 8 recipients by using "code," such as saying that a rental unit is not section 8 ready. In light of the supporting evidence in the record, we reject the defendant's argument.

As to Plaintiffs' claim for publication of a statement indicating an unlawful preference or discrimination, Conn. Gen.Stat. § 46a–64c(a)(2), the Second Circuit has held that the analogous provision of the FHA can be violated even if the statement does not actually result in the denial of housing, see United States v. Space Hunters, Inc., 429 F.3d 416, 424 (2d Cir.2005), and it "need not be targeted at a single, identifiable individual at all," Rodriguez v. Vill. Green Realty, Inc., 788 F.3d 31, 52–53 (2d Cir.2015). "What matters is whether the challenged statements convey a prohibited preference or discrimination to the ordinary listener." Id. at 53. Plaintiffs have adequately alleged that Defendant made and printed statements that conveyed a prohibited preference against Section 8 tenants.