Petition for Writ of Certiorari — Don Kozich, Petitioner v. Ann Deibert, et al.

Supreme Court briefOct 29, 2018

Ask Donna

What actually matters in this document.

Text

In The

THE SUPREME COURT OF THE UNITES STATEThIJPflflTr

Don Kozich, Individually,

---

L £.Ui%J

OFFICE OF THE CLERK

Petitioner

Ann Delbert, Individually and as

Chief Executive Officer (CEO) of the Broward County Housing Authority (PHA)

and its Subsidiaries (collectively BCHA), et al.,

Respondent(s)

On Petition for Writ of Certiorari

To The 11th Circuit Court of Appeals

PETITION FOR WRIT OF CERTIORARI

Don Kozich, pro se Petitioner

P0 Box 2032

Fort Lauderdale, FL 33303

954.709.0537

dtkctr@gi-nall .com

OV 1- 2018

CE O F THE CLERK

QOU AT U.S

QUESTIONS PRESENTED

Neither the Rooker-Feldman nor Mootness doctrines nor the Anti-Injunction Act

apply to the facts of this unlawful tenant eviction case from HUD Section 8 and Low

Income Housing Tax Credit (LIHTC) federally subsidized housing based on the Public

Husing Authority's secret emails (.APP.F) to the state court judge with no hearings or trial

in state court.

This is a case of a retired disabled veteran being evicted from his Low Income

Housing Tax Credit (LIHTC) apartment community under two (2) federally subsidized

housing programs, LIHTC under 26 USC § 42 [Extended Low ,Income Housing

Agreement (ELIHA) recorded in the public records and therefore a land use restriction]

and Section 8 HUD-Veterans Administration Supported Housing Choice Voucher

(Section 8 HUD-VASH HCV) under 24 CFR 982.552 and HUD Section 8 Housing

Choice Vouchers: Revised Implementation of the HUD-VA Supportive Housing

Program, 77 FR 17086 [Docket FR-5596-N-01] (March 23, 2012), each of which

independently adopted the HUD Tenancy Addendum, HUD-51641-A, which mandates

the same "No-Cause Eviction Protection," evidence of good cause for eviction and lease

non-renewal and a due process hearing or trial before eviction. The recorded ELIHA, the

HUD Tenancy Addendum, HUD-51641-A, and these federal subsidy programs provide

for the tenant's right of enforcement: 24 CFR 982.308(a) and (f)(2), 24 CFR 982.456(b)(2)

and 24 CFR 982.552.

The tenant's Petition for Writ of Certiorari to the 11th Circuit Court of Appeals here

follows and the questions presented are:

NEITHER THE ROOKER-FELDMAN NOR MOOTNESS DOCTRINES

NOR THE ANTI-INJUNCTION ACT ARE APPLICABLE TO THIS

UNLAWFUL TENANT EVICTION CASE FROM SECTION 8

HUD-VASH HCV AND LOW INCOME HOUSING TAX

CREDIT (LIHTC) FEDERALLY SUBSIDIZED HOUSING

Whether the Rooker-Feldman and Mootness Doctrines and the Anti-Injunction Act

apply, with no discovery in state or federal court, to a tenant in Section 8 HUD-VASH

HCV and Low Income Housing Tax Credit (LIHTC) federally subsidized housing

mandating "No-Cause Eviction Protection" who was forcefully evicted in state court in

retaliation for his advocating for safer and healthier living conditions as a result of the

Public Housing Authority's conclusionaiy non-renewal notice with no evidence of "good

cause," legally insufficient complaint, "fake" lease, and secret emails to the state judge

with no due process mandated hearings or trial resulting in an ex parte non-final Default

Final Judgment for Removal which is currently on appeal in state court?

CONTINUING LIVE CONTROVERSY AND IRREPARABLE

HARM TO SECTION 8 HUD-VASH HCV AND LOW INCOME

HOUSING TAX CREDIT (LIHTC) TENANT

Whether live controversy and irreparable harm to the Section 8 HUD-VASH HCV

and Low Income Housing Tax Credit (LIHTC) tenant continues when in further retaliation

and relying upon the non-final Default Final Judgment for Removal from state court which

is currently on appeal, the Public Housing Authority failed to utilize due process mandated

practices and procedures as required by HUD Section 8 Housing Choice Vouchers:

Revised Implementation of the HUD-VA Supportive Housing Program, 77 FR 17086

[Docket FR-5596-N-01] (March 23, 2012), to then permanently terminate the tenant's

Section 8 HUD-VASH HCV, thereby depriving him of his voucher and affordable

housing?

111

PARTIES TO THE PROCEEDINGS

PETITIONER:

Don Kozich, Individually

RESPONDENTS:

Ann Delbert, Individually, and as CEO of the Broward County Housing Authority

(PHA) and Secretary of its Affiliates and Subsidiaries (collectively BCHA);

Broward County Housing Authority (PHA), Building Better Communities Inc (BBC),

Broward Workforce Communities Inc (BWC), and Reliance-Progresso Associates Ltd

(RPA) (collectively "BCHA");

Michael S. Long, Individually and as former Chairman of the Board of Commissioners

of Broward County Housing Authority (PHA); former President of Broward Workforce

Communities, Inc. (BWC) and former President of Building Better Communities, Inc.

(BBC);

Florida Housing Finance Corp. (FHIFC);

Bernard E Smith, Individually and as Chairman of the Board of Florida Housing

Finance Corp. (FHFC);

Respondents below this line were served with process late by the US Marshall in

District Court and were not required to plead, made no appearance in Kozich's 11th

Circuit Appeal, and may or may not be Respondents here:

Professional Management Inc (PIVil);

US Dept. of Veteran Affairs (VA); and

US Dept. of Housing and Urban Development (HUD).

DEFINITIONS

1. "BCHA." Broward County Housing Authority (PHA) is chartered under

Chapter 421, Fla.Stat., as a public housing authority. Because of their legally recognized

identity of interest and symbiotic relationship Respondents Reliance-Progresso Associates

(RPA), Broward County Housing Authority (PHA), Broward Workforce Communities,

Inc. (BWC), and Building Better Communities, Inc. (BBC) are here collectively referred

to as "BCHA." RPA, BBC and BWC are all interlocking, interconnected and blended

symbiotic subsidiaries of PHA. RPA, BBC, and BWC are ultimately owned and controlled

by PHA under the autocratic and dictatorial control of CEO Ann Delbert (Deibert) and

Board Chairman Michael Long (Long). See Note 1. to Excerpt of PFIA's Bi-annual

September 30, 2012 and 2013 Audited Consolidated Financial Statement that PHA

ultimately owns and controls BBC, BWC and RPA and correspondingly PP. The

subsidiaries of PHA have a legally recognized identity of interest and symbiotic

relationship with sharing the same officers, directors, commissioners, registered agent,

employees, street address, offices, furniture, fixtures, equipment, phone number, fax

number, _____@BCHAfl.org email addresses, attorney(s), webmaster, and website. These

subsidiaries are also public entities: publishing notice of their public meetings, their

agendas, and their meeting minutes; holding public meetings consecutively .on the same

day each month; and maintain an "Official Record," being a CD recording, of each

meeting. The acts and failure to act of all of these public entities are considered State

Actions subject to Federal law.

"ELIHA" refers to the undisclosed "Extended Low Income Housing

Agreement" executed between RPA and the FHFC which is recorded in the public

records of Broward County and is therefore a land use restriction. The ELIHA provides

for the renewal of Kozich's lease as a protected property right and requires evidence of

good cause not to renew Kozich's lease.

"FHFC" refers to the Florida Housing Finance Corporation which is a quasistate agency chartered under Chapter 420, Fla. Stat., pursuant to IRS 26 USC § 42 to

oversee and issue Federal tax credits to LIHTC properties such as PP here and to oversee

and inspect LIHTC communities, for which it receives a monthly fee, for compliance with

LIEITC requirements and to report any deficiencies to IRS, which it has never done.

"HUD-VASH HCV" refers to the HUD Section 8 Housing and Urban

Development-Veteran Affairs Supported Housing Housing Choice Voucher (Section 8

HUD-VASH HCV) program by which a veteran such as Kozich here obtains federally

supported housing which is incidental to his healthcare, and which makes Chapter 83,

Florida Landlord Tenant Law, inapplicable, FIa.Stat. 83.42(1). "VASH" refers to the

Veteran Affairs Supportive Housing (VASH) program of the U.S. Department of Veteran

Affairs (VA), which is funded by Congressional special appropriation, overseen by the

VA, implemented by HUD through its HCV program and administered by BCHA.

HUD Section 8 Housing Choice Vouchers: Revised Implementation of the HUD-VA

Supportive Housing Program, 77 FR 17086 [Docket FR-5596-N-01] (March 23, 2012).

"Lease" refers to the alleged written agreement executed on March 7, 2014

between Kozich and RPA for Unit 408 at PP, 619 North Andrews Avenue., Fort

Lauderdale, FL 33311, and which is supposed to but does not include the Tenancy

Addendum, HUD-51641-A; PHA's March 17, 2014 Housing Assistance Letter and the

Housing Assistance Payment (HAP) Contract, HUD-52641 (not executed by the tenant),

all of which take precedence over the terms of the lease. The "lease" that BCHA filed in

state court is incomplete, incomprehensible and a "fake."

"LIHTC" refers to Low Income Housing Tax Credit subject to IRS Code 26

USC § 42 which provides that tenants' right to lease renewal is a protected property right

and requires evidence of good cause for not renewing a lease. In order to obtain and

maintain its LIiHTC status, RPA entered into an undisclosed Extended Low Income

Housing Agreement (ELIHA) with FHFC which is recorded in Broward County and also

provides for the renewal of Kozich's lease as a protected property right and requires

evidence of good cause not to renew Kozich's lease. In their agreement with the

"investors" in PP, BCHA gets to keep all of the cash income and is responsible for

management and to make up any deficits. As quid pro quo the "investors" get the tax

credits which are allocated by FHFC.

"PM!" refers to Professional Management, Inc. which entered into a

management contract with BCHA for managing PP. However, and contrary to law, BCHA

never published any Requests for Proposals (RFP) for the management of PP or any of its

LIHTC properties. For undisclosed reasons, PMI has the exclusive monopoly to manage

Vii

all of BCHXs properties and receives an approximate 19.6% management fee which

equates to 2 months rent for each apartment that PIMT manages at PP, an extraordinary

management fee.

"PP" refers to Progresso Point which is an 8-story apartment community

comprised of 76 studio and 1-bedroom apartments located at 619 North Andrews Avenue,

Fort Lauderdale, Broward County, FL. LIHTC requires that PP be 100% leased to lowincome tenants, but it is only about 90% leased to low-income tenants. In all respects and

in accordance with its contracts with PIVil, BCHA is secretly in control of PP and has

the right to intervene, overrule and control in any matter relating to PP. It is such a well

kept secret that not even the Fort Lauderdale Housing Authority or the Pompano Beach

Housing Authority knew that PHA owned and controlled PP. The reason for the secrecy

is that by its State Charter under Chapter 421, F1a.Stat., PHA is prohibited from

operating in a municipality that has a housing authority.

"RPA" refers to Respondent Reliance-Progresso Associates Ltd which at all

times relevant was the de jure record owner of PP. BCHA misrepresents that "Broward

Workforce Communities (BWC) is the co-general partner of the Landlord (RPA)" when

actually at all times relevant RPA, the record title owner of PP, is a secret and

undisclosed wholly owned subsidiary of BWC which in turn is a secret and undisclosed

wholly owned subsidiary of BBC which in turn is a secret and undisclosed wholly

owned subsidiary of PHA thus making RPA also a secret wholly owned subsidiary and

alter ego of PHA. PHA owns .1% of RPA which is 10 times greater than the .01% that

Viii

the housing authority owned in the Frenchman Hill LIHTC apartment community. See ,

Mendoza v. Frenchman Hill Apartments, 2005 US Dist LEXIS Ct 47373, 2005 WL

6581642 (E.D. Wash., Jan. 20, 2005.

10. For definitions of other terms Kozich adopts and incorporates herein by

reference those definitions contained in the Tenancy Addendum, HUD-51641-A, which by

its terms takes precedence over the terms and conditions of the lease, and those definitions

found in the HUD Handbook 4350.3.

RECORD WITH NO DISCOVERY

The proceedings in state court were conducted under Florida Summary Procedure

statute, Fla.Stat. 51.011, which allowed only five (5) days from service for Kozich to

file his responsive pleadings. The Court is reminded that at this stage of the

proceedings, because of the shortness of time there has been no discovery in either state

or federal court, Barrington Cove Ltd. Part'shp v. Rhode Island Housing and Mtg. Fin.

Corp., 246 F.3d 1 (1st Cir. 2001), and that many of the documents are in the sole

custody, possession and control of BCHA. The documents upon which Kozich relies

were mostly obtained through public and judicial record requests. Although Kozich has

a $135 outstanding credit with BCHA, as of the first of 2016 BCHA cut him off from

access to any of its public records

TABLE OF CONTENTS

PAGE

QUESTIONS PRESENTED ..................................................................................................

PARTIES TO THE PROCEEDINGS BELOW .................................................................iv

DEFINITIONS....................................................................................................................v

RECORD WITH NO DISCOVERY..................................................................................x

TABLEOF CONTENTS ....................................................................................................xi

APPENDIX (Filed separately) .......................................................................................xiii

TABLEOF AUTHORITIES ..............................................................................................x

OPINIONS AND ORDERS BELOW .........................................................................

JURISDICTIONAL STATEMENT ............................................................................... 1

CONSTITUTIONAL PROVISIONS.......................................................................2

STATEMENT OF FACTS AND CASE ................................................ . .................

REASONS FOR GRANTING THE WRIT OF CERTIORARI .................................8

PROLOGUE .......................................................................................................8

THIS CASE IS OF EXCEPTIONAL IMPORTANCE, GREAT

PUBLIC INTEREST AND LIKELY TO RECUR . ...................................... 11

INTER-CIRCUIT AND 1NTRA-CIRCUIT CONFLICT..............................22

INTER-CIRCUIT CONFLICT WITH OTHER DISTRICT

COURTS, OTHER CIRCUIT COURTS AND THE UNITED

STATES SUPREME COURT ............ . ......................................................

1NTRA-CIRCUIT CONFLICT WITHIN THE 11th CIRCUIT ..............26

D. AS KOZICH'S STATE CASE IS ON APPEAL AND THEREFORE

NOT FINAL, THE ROOKER-FELDMAN AND MOOTNESS

DOCTRINES ARE INAPPOSITE HERE . ...................................... . ..............

THE INAPPLICABILITY OF THE MOOTNESS DOCTRINE.............28

THE INAPPLICABILITY OF THE ROOKER-FELDMAN

DOCTRINE IN LIGHT OF THE ONGOING STATUS OF

KOZICH'S STATE APPEAL (APP.E.) AND DENIAL OF DUE

PROCESS WITH NO HEARING OR TRIAL IN STATE COURT .......29

E. BCHA FOLLOWED-UP ITS ILLEGAL RETALIATION IN

EVICTING KOZICH WITH PERMANENT TERMINATION OF

KOZICH'S SECTION 8 HUD-VASH-HCV, AND KOZICH IS

ILLEGALLY BEING DENIED THE USE OF HIS SECTION 8

HUD-VASH HCV AND ACCESS TO AFFORDABLE HOUSING .........30

F. KOZICH'S TENANCY UNDER FEDERALLY SUPPORTED

PROGRAMS AND "NO-CAUSE EVICTION PROTECTION... ............... 32

G. INA LOW INCOME HOUSING TAX CREDIT (LIHTC)

APARTMENT COMMUNITY SUCH AS PP, INTERNAL REVENUE

CODE, 26 USC § 42, MANDATES "NO-CAUSE EVICTION

PROTECTION" AND REQUIRES A HEARING AND EVIDENCE OF

GOOD CAUSE NOT TO RENEW KOZICH'S LEASE..............................35

THE LIHTC LAW......................................................................................35

REQUIRED LIHTC PROGRAM AND RECORDED LAND-USE

REGULATION WHICH RUNS WITH THE LAND..........................37

CONCLUSION ...................................................................................................

CERTIFICATE OF COMPLIANCE ................................................................... .40

CERTIFICATE OF FILING..................................................................................40

VERIFIED PROOF OF SERVICE ......................................................................

xii

APPENDIX (Filed separately)

DOCUMENT

DATE

DOCUMENT

DESCRIPTION

(APP."", AND

PAGE NO'S)

January 11, 2018

Kozich v Delbert, 708 Fed.Appx 644 (11th

Cir. 2018) (Mootness Doctrine), affg on other

grounds, 15-CV-61386 (DC SD Fla. 2016)

(Rooker-Feldman Doctrine)

A, 1-4

October 20, 2015

Kozich v Deibert, 15-CV-61386 (DC SD

Fla. 2016) (Rooker-Feldman Doctrine),

affd on other grounds, 708 Fed. Appx 644

(11th Cir. 2018) (Mootness Doctrine)

B, 5-12

June 1, 2018

11th Circuit Court Order denying Rehearing

C., 13-14

November 18, 2015 District Court Order denying Rehearing

D., 15-16

May 20, 2015

E., 17-24

Kozich's Notice of Appeal. RPA v Kozich,

State Court Eviction Case No.

C0CE1500473511;

April 20, 2015

Judge Skolnik's ex parte non-final

Default Final Judgment for Removal

April 20, 2015

Judge Skolnik's ex parte non-final order

Striking Kozich's Answer but not his

Affirmative Defenses

May 20, 2015

Kozich's Notice of Filing BCHA's secret

ex parte emails to State Judge Skolnik; fn. 1.

F., 25-37

fn.1. BCHA actually sent its secret emails to pskolnik@hotmail.com which is former State Judge Peter

Skolnik's personal email address. (As Judge Skolnik is no longer a judge and his personal email

address is in the public domain it is no longer exempt from disclosure). Kozich obtained former State

Judge Skolnik's private email address independently from the other documents from his Judicial

Records Request, Fla. R.Jud. Admin. 2.420.

xiii

DOCUMENT

DATE

April 7, 205

DOCUMENT

DESCRIPTION

(APP."", AND

PAGE NO'S_)

27-33

BCHA's secret emails to State Judge Skolnik

relating to BCHA's Motion to Strike and

proposed Order Striking Kozich's Answer

and Entering Default Final Judgment for

Removal and for Writ of Possession

November 10, 2015 Kozich v PHA, PHA Administrative Hearing

Order permanently terminating Kozich's

HUD-VASH HCV

G., 38-47

May 24, 2017

H., 48-49

Kozich v. Delbert, State Appeal Case No.

CACE16001144(AP), Order denying BCHA's

Motion to Dismiss Appeal,

xlv

TABLE OF AUTHORITIES

FEDERAL CASES

Barrington Cove Ltd. Part'shp V. Rhode Island Housing and Mtg. Fin. Corp.,

246 F.3d 1(1st Cir. 2001)........................................................................x

Basco v. Machin, 514 F.3d 1177 (11th Cir 2008) .... ............................

7,23,27,28

Casale v Tillman, 558 F.3d 1258 (1 ith Cir. 2009) ............................................30

Caulder v. Durham Housing Auth., 433 F.2d 998 (4th Cir. 1970).

2, 30

Chafinv. Chafin, 568 U.S. 165, 133 S.Ct. 1017, 185 L.Ed. 2d1 (2013) .............28

DeFunis v. Odegaard, 416 US 312, 318-19, 94 S.Ct. 1704,

40L. Ed 2d 164 (1974) .... .............................................................

7,11,17,23,24

Ervin v. Hous. Auth. Of the Birmingham Dist., 281 Fed. Appx. 938

(11th. Cir. 2008)...................................................................................................27

Exxon Mobil Corp. v. Saudi Basic Industries Corp., 544 US 280, 292,

125 S.Ct. 1517, 161 L. Ed. 2 454 (2005) .............................................

1,29,30

Fincher v South Bend Housing Auth., 606 F.3d 331 (7th Cir. Ct.

App. 2010), affirming, 612 F. Supp 2d 1009 (Dist. Ct. N.D. Indiana) ..............30

Franchise Tax Bd. V. Const. Laborers Vacation Trust,.

463 US 1, 27-28 (1983)......................................................................

Geneva Towers Tenants Org. v Federated Mortgage Inv., 504 F.2d 482

(487-88 (9th Cir. 1974) .......................................................................................16

Goldberg v. Kelly, 397 US 254, 90 S.Ct., 1011, 25 L.Ed. 2d 287 (1970) ...........10, 17,

23-25, 27, 29

Gonzaga University v. Doe, 536 US 273, 283, 122 S.CT. 2268,

153 L.Ed.2D 309 (2002)..................................................................................38

Grable & Sons Metal Prods., Inc. v Dare Egg's & Mfg., 545 US 308 (2005)..,,.

Jeffries v. Ga. Residential Fin. Auth., 678 F.2d 919, 925 (11th Cir. 1982).........17, 18,

23, 26, 34

Joy v. Daniels, 479 F.2d. 1236, 1241

(4i1

Cir. 1973) ...............................17, 34

Knight v. Sanford Hous. Auth., No. 97-1225-CIV-ORL-19B

(M.D. Fla. Jan. 30,1998) ) .................................................... . ............

Kozich v Delbert, 708 Fed.Appx 644 (11th Cir. 2018) (Mootness Doctrine), affg

on other grounds, 15-CV-61386 (DC SD Fla. 2016) (Rooker-Feldman Doctrine). 1, 7, 21

Lachcik v Maricopa Cnty. Bd. Of Comm'rs, 2017 U.S,. Dist. LEXIS 22365,

2017 WL 633146 (DC Ariz. 2017) ..................................................................

Linares vJackson, 548 F.Supp. 2d21 (E.D.N.Y. 2008) ..........................11, 17,23,26

Long v. Shorebank Development Corp., 182 F.2d 548

(7th

Cir. 1999) ............2, 30

McArthur v. Firestone, 817 F.2d 1548 (11th Cir. 1987) .......................................27

McNeill v. N.Y.C. Housing Auth., 719 F. Supp. 233 (SDNY 1989) ................2, 30

McQueen v. Druker, 438 F.2d 781, 785 (1st Cir. 1992).................................21

Mendoza v. Frenchman Hill Apartments, 2005 US Dist LEXIS Ct 47373,

2005 WL 6581642 (E.D. Wash., Jan. 20, 2005).... ix, 5, 7, 11, 12, 16, 23, 25, 36, 3 8, 39

Philippeaux v Apt. Inv. & Mgt. Co., 598 F.App'x 640 (11th Cir. 2015) ......7, 22-24

Ressler v. Pierce, 692 F.2d 1212

(9th

Cir. 1982) ...................................17, 29, 34

Ruffin v. Housing Authority, 301 F.Supp. 251, 253 (E.D. La. 1969) ..............17, 34

Salmon v. Aurora Loan Svcs., LLC., 2016 US Dist. LEXIS 21854

(M.D. Fla. Feb. 23, 2016) ................................................................................30

Sims v. Florida Dept. of Highway Safety and Motor Vehicles, 862 F.2d 1449

(llthCir. 1989) ........................................................................7,11, 17,23,27,28

Thorpe v Hous. Auth. of Durham, 386 US 670 (1967), on remand,

393 US 268 (1969) ......................................................................................17, 33, 34

xvi

Ware v. Deutsche Bank (In re Ware), 562 F.App'x 850 (11th Cir. 2014)....... 7, 22, 23

Yarbrough v. Decatur Hous. Auth.,

F.3d

2018 U.S. App. LEXIS 28020,

2018 WL 4765257 (11th Cir. 2018)..................................................................23, 28

FLORIDA CASES

A & P Investment Group, Inc. v. The Circle Property Owners Assoc., Inc.,

741 So.2d 1139 (Fla. 4h DCA 1998)..................................................18,37

Alternative Networking, Inc. v Solid Waste Auth. of Palm Beach Cty.,

758 So.2d 1209, 1211 (Fla. 4th DCA 2000) . ......................................

19,38

Asbury Arms, Inc. v. Rita Lynar, Online Reference: FLWSupp 2305ASBU,

Circuit Court Case No. 05-2013-CA-039015 (Fla. l8th Judicial Circuit,

May28,2015) .................... .................................. .............................................

Autozone Stores, Inc. v Northeast Plaza Venture, LLC., 934 So.2d 670, 673

(Fla. 2d DCA 2006) . .....................................................................

19,38

Enterprise Leasing Co. v Jones, 789 So.2d 964, 965-66 (Fla. 2001) ..............11

Finn v Finn, 68 So.3d 424 (Fla., 4th DCA 2011) .............................................4

Herrell v Seyforth, Shaw, Fairweather & Geraidson, 491 So. 2d 1173

(Fla. 1st DCA 1986) .........................................................................................3

Palm Beach Cty. v Cove Club Investors, Ltd., 734 So.2d 379, 382 n.4

(Fla. 1999) .........................................................................................................19,38

Reliance Progresso Associates Ltd. v Don Kozich, Broward County Case No.

C0CE15004735, on appeal, Circuit Court Case No. CACE16001144(AP) ...........4

Sarasota Citizens for Responsible Government v. City of Sarasota,

48 So. 3d 755, 762 (Fla. 2010) ..................................................................16

Stephl v Moore, 94 Fla. 313, 114 So. 455 (1927).......................................19,38

xvii

OTHER STATE CASES

Nordbye v. BRCP/ GM Ellington, 266 P.3d 92 (Ore. Ct. App., 2011),

overruling, Nordbye v. BRCP/ GM Ellington, Case No. 07-1857-JO, 2008

US Dist. LEXIS 1989 (D. Oregon 2008) ...........................................................19

FEDERAL LAWS AND STATUTES

FirstAmendment............................................................................2, 21

Fifth Amendment ..... .......................... ..................................... 2, 17, 21, 34

Fourteenth Amendment . . . .. ................................................. 2, 3,10, 17, 21, 34

FEDERAL REGULATIONS

24 CFR 982.308(a) and (fX2) .......................................................... i, 5, 34, 39

24 CFR 982.456(b)(2) .....................................................................i, 5, 34, 39

24 CFR 982.552 .....................................................i, 5, 18, 21, 26, 27, 31

24 CFR 982.553 ........................................................................21, 26-28,31

26 USC § 42, LIHTC .................................. i, vi, vii, 45, 8, 9, 11, 18-20, 25, 33, 35, 39

26 USC § 42(h)(6)...........................................................................35

26 USC § 42(h)(6)(B) ................................................... . ....................

26 USC § 42(h)(6)(B)(i) ...................................................................

26 USC § 42(h)(6)(B) and (E) .......................................................33, 35, 36

28 USC

1367(a) ..................................................................................2

Elements of Due Process, HUD Legal Opinion GCH-0078

(September 4, 1992) ............................................................................

5, 20

Extended Low Income Housing Agreement (ELIHA)... i, vi, vii, 5, 9, 18-20, 33, 37-39

xviii

HIJD Housing Assistance Payment Contract (HAP) ................................... vii, 32, 34, 35

HUD Policy Handbook 4350.3............................................................... ix, 10, 20

HUD Section 8 Housing Choice Vouchers: Revised Implementation of the

HUD-VA Supportive Housing Program, 77 FR 17086 [Docket

FR-5596-N-01] (March 23, 2012) .................................... i-ui, vi, 5, 18, 20, 21, 30, 32

HUD Tenancy Addendum, HUD-51641-AHUD

i, vii ix, 4,5, 9, 18, 20, 32, 34, 35

IRS Revenue Ruling 2004-82 ...................................................

11,18,25,33

FLORIDA STATUTES

Chapter 83, Fla.Stat., Residential Landlord Tenant Law.......................vi, 13, 14

Chapter 420, Fla.Stat., Florida Housing Finance Corporation ..........................

.vi

Chapter 421, Fla.Stat., Public Housing Authority......................................

v, viii

F1a.R.Jud.Admin. 2.420 ............................................................................................

xiii

F1a.R.App.P. 9.130(f) ........................................................................3, 27

Fla.Stat. 193.011.................................................................................37

Fla.Stat. 193.017..................................................................................37

Fla.Stat. 34.011.................................................................................14

Fla.Stat. 51.011....................................................................................x

Fla.Stat. 82.04...................................................................................13, 14

Fla.Stat. 83.42(1)...............................................................................vi, 13

xix

FEDERAL DOCTRINE

Mootness Doctrine ....................................

i , ii, iv, vi, 1, 7, ii, 17, 22, 26-28

Rooker-Feldman Doctrine ......................................................iii, 1, 7,28-30

TREATISES

Out in the Cold: The Failure of Tenant Enforcement of the Low-Income Housing

Tax Credit (LIHTC), 82 U.Cin.L.Rev 1079, Desiree C. Hensleyal (2014) ..........12

Veterans Resource Guide for the [Florida] State Court System (2014) .............12

I. OPINIONS AND ORDERS BELOW

In Kozich v Delbert, 15-CV-61386 (D.C. S.D. Fla. 2016), the District Court

dismissed Kozich's complaint for declaratory judgment and a temporary restraining order

based on the Rooker-Feldman Doctrine (APP.B.).

In Kozich v Delbert, 708 Fed.Appx 644 (11th Cir. 2018), the 11th Circuit

affirmed the dismissal of Kozich's complaint on the basis of the Mootness doctrine

(APP.A.).

II. JURISDICTIONAL STATEMENT

For Kozich's Petition for Writ of Certiorari this court's jurisdiction is based on 28

USC § 1254(1).

Jurisdiction will support claims founded under federal common law and as well

as those of a statutory origin. Franchise Tax Bd. V. Const. Laborers Vacation Trust, 463

US 1, 27-28 (1983). Federal statutory and common law provide that the plaintiff's right

to relief [in state court] necessarily depends on resolution of a substantial question of

federal law. Grable & Sons Metal Prods., Inc. v Dare Egg's & Mfg., 545 US 308, 312

(2005). Federal question jurisdiction exists if the defendant's right to relief in state court

depends on resolution of a substantial question of federal law.

This Court has jurisdiction to enjoin and set aside state court judgments that were

obtained by BCHA through fraud on the state, court and surreptitious secret ex-parte

communication (APP.F.) with the state court judge, with no hearing or trial whatsoever,

where Kozich had no opportunity whatsoever to present his defenses and claims. Exxon

Mobil Corp. v. Saudi Basic Industries Corp., 544 US 280, 292, 125 S.Ct. 1517, 161 L.

Ed. 2d 454 (2005); Long v. Shorebank Development Corp., 182 F.2d 548 (7 th Cir.

1999); McNeil! v. N.Y.C. Housing Auth., 719 F. Supp. 233 (SDNY 1989) and Caulder v.

Durham Housing Auth., 433 F.2d 998 (4th Cir. 1970).

Where applicable, this Court has supplemental jurisdiction to review Kozich's

claims under Florida law pursuant to 28 USC § 1367(a).

III. CONSTITUTIONAL PROVISIONS

This petition involves in part the First, Fifth and Fourteenth Amendments to the

United States Constitution.

The First Amendment in relevant part states, "Congress shall make no law

abridging the freedom of speech, or of the press; or the right of the people peaceably to

assemble, and to petition the Government for a redress of grievances." This Amendment

extends to the States pursuant to U.S. Const. Amend. XIV, § 1.

The Fifth Amendment in relevant part states, "No person shall be

...

deprived of

life, liberty, or property, without due process of law;

The Fourteenth Amendment in relevant part states, "Section 1.

...

No state shall

make or enforce any law which shall abridge the privileges or immunities of citizens of

the United States; nor shall any state deprive any person of life, liberty, or property,

without due process of law; nor deny to any person within its jurisdiction the equal

protection of the laws."

IV. STATEMENT OF FACTS AND CASE

Because Defendants PMJ, HUD and VA were late served with process by the US

Marshall and did not file any response to Kozich's complaint in District Court, the order

of Dismissal from District Court may not apply to them. They made no appearance

before the 11th Circuit and may or may not be Respondents here.

Kozich is a 72-year old retired disabled veteran living on fixed low income social

security and VA disability pension. Utilizing his Section 8 HUD-VASH HCV Kozich

resided in a Low Income Housing Tax Credit (LIHTC) apartment community,

Progresso Point (PP), titled in RPA which is ultimately owned and controlled by its

"parent," the PHA, through its various symbiotic subsidiaries, collectively BCHA.

PHA is chartered under Chapter 421, F1a.Stat., as a Public Housing Authority,

and therefore BCHA's actions and failure to act are "state actions." It is well established

that public housing authorities are government agencies whose actions are subject to

due process and equal protection requirements. "The Housing Authority

government agency

...

is a

its actions are state action within the meaning of the Fourteenth

Amendment." "The government as landlord is still the government... [U]nlike private

landlords, it is subject to the requirements of due process of law.

This is a tenant eviction case from federally subsidized housing arising out of a

non-final order (APP.E.pg.19) determining the right to immediate possession of

property, F1a.R.App.P. 9.130(a)(3)(C)(11). Herrell v Seyforth, Shaw, Fairweather &

Geraldson, 491 So. 2d 1173 (Fla. 1st DCA 1986). The order is non-final because there

remains unfinished business in state court. Finn v Finn, 68 So.3d 424 (Fla., 4th DCA

2011). The non-final order remains on appeal (APP.E.) in state court, Broward County

Case No. CACE16001 144(AP), and is fully briefed as of September 10, 2018.

Utilizing RPA as a symbiotic subsidiary, on March 5, 2015, BCHA filed suit

against Kozich in state court styled Reliance Progresso Associates Ltd. v Don Kozich,

Case No. C0CE15004735 (55), seeking to illegally evict Kozich from his Low-Income

Housing Tax Credit (LIHTC) apartment community in which he also resided under a

Section 8 HUD-VASH HCV. BCHA, being a state actor and the artful dodger that it is,

purposely did not disclose to the state court that its eviction action is governed by 26

USC § 42 as well as the Tenancy Addendum, HUD-51641-A, both of which

independently mandate "No-Cause Eviction Protection".

Kozich answered in state court that he is a disabled retired veteran and that

BCHA refused to renew Kozich' s lease in retaliation for Kozich' s advocating for better,

safer, healthier and more efficient living conditions at PP, organizing and promoting a

Progress Point Tenants Organization (PPTO) and publishing and distributing a

newsletter "Broward County Housing Authority Exposed" advocating for better, safer,

healthier and more efficient living conditions, i.e. no air-conditioning in the enclosed

apartment -building for six (6) months during the long hot summers of 2014 and 2015 and

currently there exists water intrusion and mold and mildew at PP which BCHA refuses to

fix; to paraphrase BCHA's Chief Operating Officer, Parnell Joyce, infamously stating,

"Being non-profit we have no obligation to fix anything."

Kozich was living in a Low Income Housing Tax Credit (LIHTC) apartment

community, PP, under two federally subsidized programs; Low Income Housing Tax

Credit (LIHTC) under 26 USC § 42 and Section 8 HUD-VASH HCV under 24 CFR

982.552 and HUD Section 8 Housing Choice Vouchers: Revised Implementation of the

HUD-VA Supportive Housing Program, 77 FR 17086 [Docket FR-5596-N-01] (March

23, 2012). Both of these federal programs as well as the undisclosed but recorded ELIHA

independently adopted the HUD Tenancy Addendum, HUD-51641-A, which mandates

due process, Elements of Due Process, HUD Legal Opinion GCH-0078 (September 4,

1992), requiring a hearing or trial and "No Cause Eviction Protection" requiring

evidence of good cause not to renew a lease, and provide for the tenant's right of

enforcement, 24 CFR 982.552, 24 CFR 982.308(a) and (0(2), and 24 CFR 982.456(b)(2).

The property, Progresso Point (PP), which is the subject of BCHA's eviction

Complaint, is a Low Income Housing Tax Credit (LIHTC) apartment community.

Progresso Point (PP), titled in Reliance-Progresso Associates Ltd (RPA). RPA is

secretly but ultimately owned and controlled by PHA which is Chartered under Chapter

421, Fla. Stat., as a Public Housing Authority which makes RPA a state actor. Through its

various symbiotic subsidiaries PHA ultimately owns .1% of RPA which is 10 times

greater than the housing authority's .01% ownership in Frenchman Hill. See, Mendoza v.

Frenchman Hill Apartments, 2005 WL 6581642 (E.D. Wash., Jail. 20, 2005) [rejecting

housing authority's argument that it only held a minute [approximately .01% (1/100th of

1 percent)] interest in the LIHTC apartment community which is less than BCHA's .1%

ownership interest in RPA, the de jure record owner of PP]. And by its contract with the

investors, National Equity Fund (NEF), PHA controls RPA and PMT. Thus BCHA's acts

and failure to act, and consequently RPAs and PMT's acts and failure to act, are grossly

negligent state actions.

Because of BCHA's secret email to the state judge's personal email address

(APP.F,pgs.27-33), the state judge ex parte, without a hearing or trial, struck Kozich's

Answer but not his Affirmative Defenses (APP.E.pg.20). The state judge then ex parte

entered the non-final Default Final Judgment for Removal (APP.E.pg. 19) and BCHA

forcefully evicted Kozich. Kozich appealed in state court, CACE16001 144(AP) (APP.

E.), which is fully briefed as of September 10, 2018.

PHA also controls and issues the Section 8 HUD-VASH HCV but their excuse for

not issuing Kozich's Section 8 HUD-VASH HCV is that Kozich has no lease, its policy

being no lease, no voucher. On the one hand PHA as the "parent" and by contract has the

authority to order its symbiotic subsidiary, RPA, to renew Kozich's lease. On the other

hand PHA is refusing to issue Kozich's Section 8 HUD-VASH HCV because it will not

order RPA to renew Kozich's lease. These are retaliatory circular state actions; analogous

to a dog chasing its tail. To reiterate, NO AUTHORIZATION, NO RENEWAL, NO

LEASE, NO SECTION 8 HUD-VASH HCV, NO HOUSING, and on and on in a

circle. But because PHA refused to order RPA to renew Kozich's lease in retaliation for

his constitutionally protected activities Kozich had been made homeless and sustained

irreparable harm.

Tracking the pleadings from Mendoza, on July 2, 2015 Kozich filed his complaint

in Federal District Court (Southern District of Florida, Case No. 15-CV-61386Dimitrouleas), for Declaratory and Injunctive Relief. The District Court dismissed

Kozich's complaint citing the Rooker-Feldman doctrine. Kozich timely appealed to the

11th Circuit, Case No. 15-15628-EE.

During the pendency of Kozich's federal District Court case, BCHA then utilized

Kozich's illegal eviction in state court to unlawfully permanently terminate his Section 8

HUD-VASH HCV (APP. G.) in order to permanently deprive him of affordable,

housing. Without his Section 8 HUD-VASH HCV Kozich has been deprived of his

constitutionally protected property right to affordable housing. Again BCHA's actions

are in retaliation for Kozich exercising his constitutionally protected rights.

In Kozich v Deibert, 708 Fed.Appx 644 (11th Cir. 2018) (Mootness Doctrine),

affg on other wounds, 15-CV-61386 (DC SD Fla. 2016) (Rooker-Feldman Doctrine), the

11th Circuit ignored DeFunis v. Odegaard, 416 US 312, 318-19, 94 S.Ct. 1704, 40 L. Ed

2d 164 (1974); Basco v. Machin, 514 F.3d 1177 (11th Cir 2008) and Sims v. Florida

Dept. of Highway Safety and Motor Vehicles, 862 F.2d 1449 (11th Cir. 1989) and

expanded "voluntarily vacated" to include "evicted". The 11th Circuit cited to Ware v.

Deutsche Bank (In re Ware), 562 F.App'x 850, 853 (11th Cir. 2014) (The bank had

already obtained a default final judgment in state court and by the time the case 'got to

federal court had already foreclosed on the property making the case moot) and upon

which Philippeaux v Apt. Inv. & Mgt. Co., 598 F.App'x 640, 643 (11th Cir. 2015) (In a

declaratory and injunctive relief action, after filing suit the tenant- reached a settlement

with the landlord and voluntarily "vacated" his apartment making the case moot) later

relied. Both of these cases are distinguished and have no application here. The 11th

Circuit erroneously found that Kozich had voluntarily "vacated" his apartment and

dismissed his appeal as being moot. However and referencing Black's Law Dictionary, the

11th Circuit misused the term voluntarily "vacated" as being synonymous with forcefully

"evicted." In this case there is no settlement agreement in either state or federal court,

and BCHA forcefully evicted Kozich; he did not voluntarily vacate, surrender, leave, or

abandon his federally subsidized housing. Therefore this case is not moot.

The renewal of Kozich's lease is a constitutionally protected property right, his right

to free speech is a constitutionally protected civil right and his right to trial is a

constitutionally protected due process right.

Kozich's Petition for Writ of Certiorari to the 11th Circuit Court of Appeals follows.

V. REASONS FOR GRANTING THE WRIT

A. PROLOGUE

To ease the court's understanding of the facts here, Kozich was a tenant at PP

under two federal programs: his Section 8 HUD-VASH HCV and, following the IRS's

adoption of HUD policies and regulations, LIHTC apartment communities under 26

USC § 42.

Each of these federally subsidized housing programs independently adopted and

mandates the same or similar I-ITJD requirements such as requiring "No-Cause Eviction

Protection" with evidence of good cause not to renew a lease and requiring a hearing or

trial before eviction to meet due process requirements. One federal program does not

rely on the other federal program for "No-Cause Eviction Protection."

In its simplest form and for purposes of this petition, Kozich's tenancy at PP falls

under two different and independent but related types of federal subsidized housing:

TENANT BASED FEDERAL SUBSIDIZED HOUSING. Kozich's

Section 8 1-ITiD-VASH HCV federal subsidy at PP. These subsidies stay with the tenant

and are portable.

PROJECT BASED FEDERAL SUBSIDIZED HOUSING. Kozich's

residency in PP, a LIHTC apartment community under 26 USC 42 and the Extended

Low Income Housing Agreement (ELIHA). These subsidies stay with the project and

are not portable.

HUD regulations, 26 USC § 42, and the HUD Tenancy Addendum, HUID-51.641A, actually make Kozich a tenant until expiration of the ELIHA. So long as there is no

evidence of good cause not to renew Kozich's lease and so long as Kozich pays his 30%

portion of the rent and meets the requirements for the Section 8 HUD-VASH HCV and

the LIHTC federal subsidy programs his lease has to be renewed and is one for the

duration of the ELIHA.

The State court erred as a matter of law in ignoring Kozich's objections, ex parte

striking Kozich's answers but not his affirmative defenses (APP.E.,pg. 20) and granting

BCHA non-final Default Final Judgment for Removal of Tenant (APP.E.,pg. 19) when

Kozich is the beneficiary and recipient of federally supported programs for his housing.

The notice of termination for violations other than non-payment of rent must be specific

with federally subsidized housing. The HUD Handbook, 4350.3 REV-1, Section 8-6,

paragraph A. 3, requires that the violations be described specifically including the date,

location and names of persons involved. For a well-researched and succinct analysis of

the legal sufficiency of a termination notice in federally subsidized housing, See, Asbury

Arms, Inc. v. Lynar, Online Reference: FLWSupp 2305ASBU, Circuit Court Case No.

05-2013-CA-039015 (Fla. 18th Judicial Circuit, May 28, 2015) [Circuit Court Judge Lisa

Davidson's Order Granting Defendant's (tenant's) Motion for Summary Judgment and

Dismissing Plaintiffs (landlord's) Claims for Eviction, [conclusionary notice of eviction

in a federally subsidized HUD supportive housing for the elderly case]. See also,

Goldberg v. Kelly, 397 US 254, 90 S.Ct. 1101, 25 L.Ed 2d 287 (1970), and its progeny

(federal benefits are statutory entitlements rather than privileges, established Fourteenth

Amendment procedural due process requirements for the denial of government benefits,

and mandates a full evidentiary hearing before denying benefits).

Kozich still qualifies for both of these federal programs, and after being forcefully

evicted from PP in retaliation for exercising his constitutional right it is his intent with

the court's assistance to get his Section 8 HUD-VASH HCV reinstated and to gain retenancy at PP and for other causes of action, and damages from BCHA.

B. THIS CASE IS OF EXCEPTIONAL IMPORTANCE, GREAT PUBLIC

INTEREST AND LIKELY TO RECUR.

"Cases raising the issue of the legality. of 'no cause evictions should not be

rendered moot since they are capable of repetition, yet evading review', DeFunis V.

Odegaard, 416 US 312, 318-19, 94 S.Ct. 1704, 40 L. Ed 2d 164 (1974);

...

tenants

facing such evictions are likely to relocate rather than run the risk of summary eviction

in order to preserve the justiciability of their federal lawsuit

....

[T]he voluntary

cessation of allegedly illegal conduct does not deprive the tribunal of power to hear and

determine the case, i.e. does not make the case moot. DeFunis, 416 US at 318;

moreover,

...

it suggests that 'no cause evictions may surface in respect to other

properties." Linares v Jackson, 548 F.Supp. 2d 21 (E.D.N.Y. 2008) (internal citations

omitted). The doctrine of "capable of repetition yet evading review" takes precedence

over mootness issues. Sims v. Florida Dept. of Highway Safety and Motor Vehicles,

862 F.2d 1449 (11th Cir. 1989). The mootness doctrine does not destroy jurisdiction

when the question before the court is of great public interest or is likely to recur.

Enterprise Leasing Co. v Jones, 789 So.2d 964, 965-66 (Fla. 2001). See also, Mendoza

v. Frenchman Hill Apartments, 2005 WL 6581642 (E.D.. Wash., Jan. 20, 2005)

(Because the landlord had not as yet fully complied with the IRS "No-Cause Eviction

Protection" Ruling 2004-82 and that the landlord's alleged violations of 26 USC § 42

may continue in the interim, the court found that the issue is not moot and that a live

controversy still existed, that the good cause eviction of tenants from LIHTC properties

is governed by the due process clause and that the landlord is required to provide the

tenant with timely and adequate notice detailing the reasons for a proposed termination

or eviction). In Mendoza, the court strictly dealt with the facts and law as they related to

a LIHTC apartment community, not with the facts and law as they relate to Section 8

HUD-VASH HCV or Section 8 HUD-HCV recipients.

This is a case of exceptional importance, great public interest and is likely to

recur because:

Prison population would be reduced by 1.8% if veterans can find and maintain

affordable housing; 1

More than 9% of American children (6.8 million) were not only living in

poverty in 2009 but in extreme poverty, or at less than 50% of the federal poverty level;'

There is a critical shortage of affordable housing in the United States;

It's not enough to have something written into law; if a law isn't enforced, it

might as well not exist. And if ordinary citizens, such as BCHA's tenants, are too scared

'Veterans Resource Guide For The [Florida] State Court System (2014):

Page 9; .".., veterans account for nine [9%] of every 100-hundred

individuals in United States jails and prisons.....

Page 10: ."... one in five [20%] incarcerated veterans were

experiencing long-term homelessness prior to being admitted to jail.....

But for being homeless 1.8% (20% of. 9%) of the prison population would not be in

prison. This equates to the prison population being reduced by 1.8% with veterans

having found affordable housing.

Out In The Cold: The Failure of Tenant Enforcement of the Low-Income Housing Tax

Credit (LIHTC), 82 U.Cin.L.Rev 1079, Desiree C. Hensleyal, 2014, fn. 9. National

Center for Children in Poverty (2011) (A well reasoned, well-researched and succinct

study on the disastrous Eastmoor Estates LIHTC housing community costing taxpayers

$1 Billion to clean-up the cesspool).

of what would happen to them if they exercised their rights, such as their being evicted

or arrested or jailed (all of which BCHA twice did to Kozich including his spending

four (4) days over Thanksgiving 2016 in jail but the state prosecutor dropped both

cases), then they don't really have those rights at all (Paraphrasing Merriam-Webster

Dictionary definition of "de jure"). As evidence of BCHA's dictatorship and

stranglehold on tenants, only a total of 2-3 tenants, at the very most, ever appeared over

the total of five (5) years and approximately fifty (50) public meetings that Kozich has

attended at BCHA. BCHA's retaliation went so far as to have its bankruptcy lawyers

email the members of the Federal Bankruptcy Bar not to take on Kozich's representation

in his effort to stay his eviction;

Chapter 83, Fla.Stat., Florida Residential Landlord Tenant law, favors

landlords who can afford the great cost of a strong lobby in Tallahassee to make onesided law favoring landlords especially in instances of retaliatory eviction as here where

the landlord breached its warranty of habitability and then refused to renew the tenant's

lease in retaliation for, among other tenant rights, the tenant publishing a newsletter,

forming a tenants organization and complaining to government authorities;

Florida landlords, including BCHA, know that Chapter 83, Fla.Stat., is onesided, favors them and take advantage of that favoritism;

Neither Chapter 83, Florida Landlord-Tenant Law (eviction) nor Fla.Stat.

82.04 (unlawful detainer) are applicable to the facts of Kozich's state case or to Section

8 HUD-VASH HCV recipients. Fla.Stat. 83.42(1) makes Chapter 83, Florida

Residential Landlord Tenant law, inapplicable to Kozich because he is a Section 8

HUD-VASH HCV recipient with his housing being incidental to his health care (health

care is the first and primary requirement for entry into the VASH program) and Fla.Stat.

82.04 (unlawful detainer) does not apply to residential property, Fla.Stat. 82.04(2). As

neither Chapter 83, Florida Residential Landlord Tenant law (eviction) nor Fla.Stat.

82.04 (unlawful detainer) are applicable to Kozich's eviction case in State Court, the

State court lacked subject matter jurisdiction over BCHA's eviction complaint. $c,

F1a.Stat. 34.011(1) and (2).

Without a means to enforce landlord tenant laws and resolve legitimate

landlord-tenant issues in the courts, tenants have no recourse against unscrupulous

landlords;

THE SHELL GAME. Through its various secret and undisclosed symbiotic

subsidiaries BCHA is sitting on over $25,000,000 ($25 million) in cash yet there is an

epidemic shortage of affordable housing in Broward County. As expressed by its

immediate past Chairman, Michael Long (Long) (and a Respondent here), BCHA is

"building a brand" so that it is known as the best housing authority in the nation and that

other housing authorities will call upon it for guidance, but at what cost to Broward

County residents. Would it not be a greater legacy to say, "We have $0 in the bank but

everyone in Broward County has a roof over their head"?

THE CONTINUING SHELL GAME. While McCan Communities, Inc.

(McCan) has no tangible assets or liabilities it holds over $7.5 million in cash which it

receives in unexplained "contributions" from unidentified persons (most probably from

BCHA's LIHTC properties and other symbiotic subsidiaries of BCHA. Utilizing the

example of the (illegal) practice of a private developer it met at the recent FARO

Conference, BCHA utilizes McCall as a shell to keep its cash out of the reach of HUD.

However, BCHA is not a private developer. BCHA is a state agency and comparing

BCHA's organizational chart from 2013 to that of 2018 after Kozich raised the issue of

McCan's $7.5 million cash as an issue, now shows McCall as an "orphan" off by itself

with no ties to BCHA. Delbert mistakenly thinks that by erasing aline from BCHA's

organizational chart that she could sever McCan's symbiotic ties to BCHA. BCHA has

no explanation for McCan's $7.5 million cash and for its 2019 Operating Budget,

McCall shows zero income for 2017, 2018 and 2019 in contributions from the other

BCHA symbiotic subsidiaries. From the August 21, 2018 BCHAmeeting, without any

justification BCHA is arbitrarily increasing rents by approximately 5% at five (5) of its

non-LIHTC apartment communities totaling 111 units. Delbert indicated the

approximately $59,220 additional annual income from the rent increases will be

siphoned off, but no line item, to fill McCan's coffers. BCHA created McCall and with

sharing corporate officers, offices, etc. McCan has a legally recognized symbiotic

relationship to BCHA thereby also making it a state agency. BlVD regulations require

that BCHA not hoard cash and "spend 50% of its cash." Kozich believes BCHA utilizes

McCall as a shell to secretly hoard cash.

I 1. "All governmental entities in Florida are subject to the requirements of the

Sunshine Law unless specifically exempted." Sarasota Citizens for Responsible

Government v. City of Sarasota, 48 So. 3d 755, 762 (Fla. 2010). BCHA continues to

misrepresent that RPA is "privately-owned" and "not a state actor" when actually RPA

was created by and is secretly owned and controlled by PHA which makes all of RPA's

actions and failure to act "state actions." See also, Mendoza v. Frenchman Hill

Apartments, 2005 WL 6581642 (E.D. Wash., Jan. 20, 2005) (rejecting housing

authority's argument that it only held a minute [approximately .01% (1/100th of 1

percent)] interest in the LIHTC apartment community which is ten times less than

BCHA's .1% ownership interest in RPA, the de jure record owner of PP). As required

by Federal and Florida law for "state actors," BWC a/k/a RPA d!b/a PP publishes

notices of its public meetings, holds its meetings out to the public and as required by

law allows time for public comment. As further evidence of BWC a/k/a RPA dib/a PP

being a "state actor," as required by Fla.Stat. 286.011 back on July 18, 2018 BWC a/k/a

RPA publicly noticed and held a closed "shade session" with its Commissioners and

lawyers to discuss this case and Kozich's state case.

Private owners of federally assisted housing are subject to constitutional

restrictions because of their close involvement with the federal government. Geneva

Towers Tenants Org. v Federated Mortgage Inv., 504 F.2d 482, 487-88 (9th Cir. 1974).

A 14th Amendment due process evidentiary hearing is mandated, with an

opportunity to examine witnesses, before recipient of government welfare benefits (a

statutory entitlement rather than merely a privilege) is deprived of such benefits. Goldberg

v. Kelly, 397 US 254, 90 S.Ct. 1011, 25 L.Ed. 2d 287 (1970), affirming, 294 F.Supp. 893

(S.D. N.Y. 1968). The doctrine of "capable of repetition yet evading review" takes

precedence over mootness issues. DeFunis v. Odegaard, 416 US 312, 318-19, 94 S.Ct.

1704, 40 L. Ed 2d 164 (1974); Sims v. Florida Dept. of Highway Safety and Motor

Vehicles, 862 F.2d 1449 (11th Cir. 1989) and Linares v Jackson, 548 F.Supp. 2d 21

(E.D.N.Y. 2008).

Tenants who receive federal rent subsidies under Section 8 have

"constitutionally protected property rights in an expectation of continued occupancy and

receipt of rent and utility subsidies." Jeffries v. Georgia Residential Finance Authority,

678 F.2d 919 (11th Cir. 1982). A tenant's right in a federally supported program to

renewal of his lease is a constitutionally protected property right. Ruffin v. Housing

Authority, 301 F.Supp. 251, 253 (E.D. La. 1969) (holding that "the right of a tenant to

public housing is no less 'property' under the Fifth and Fourteenth Amendments than the

right of a student to remain in school."); Ressler v. Pierce, 692 F.2d 1212 (9th Cir. 1982)

(holding applicants for federal rent subsidies have constitutionally protected property

interests); and Joy v. Daniels, 479 F.2d. 1236, 1241 (4th Cir. 1973) (holding that lowincome tenant in private housing with a federal rent subsidy has cognizable property

interest in continuing his tenancy absent good cause to terminate).

Housing authorities cannot terminate tenancies unless they have followed the

procedural rules prescribed by HUD. Thorpe v Hous. Auth. of Durham, 386 US 670

(1967), on remand, 393 US 268 (1969). Section 8 "tenants may claim procedural due

process rights under the due process clause if they have a substantial property interest in

continued occupancy." Jeffries at 925.

16. The HUD Tenancy Addendum (HUD-51641-A); LIHTC under 26 Usc § 42;

the ELIHA; Section 8 HUD-VASH HCV under 24 CFR 982.552; HUD Section 8

Housing choice Vouchers:. Revised Implementation of the BUD-VA Supportive

Housing Program, 77 FR 17086 [Docket FR-5596-N-01] (March 23, 2012) and IRS

Ruling 2004-82 (adopting the HUD Tenancy Addendum) all mandate "No Cause Eviction

Protection," proof and evidence of good cause not to renew a lease and a due process

mandated hearmg and trial.

17. RPA entered into an undisclosed but recorded Extended Low Income

Housing Agreement (ELIHA) with FF1IFC which is recorded in Broward County and

therefore a land use restriction or regulation which runs with the land, similar to that of a

deed restriction. A & P Investment Group, Inc. v. The Circle Property Owners Assoc.,

Inc., 741 So.2d 1139 (Fla. 4h DCA 1998). "A covenant running with the land differs

from a merely personal covenant in that the former concerns the property conveyed and

the occupation and enjoyment thereof, whereas the latter covenant is collateral or is not

immediately concerned with the property granted. If the performance of the covenant must

touch and involve the land or some right or easement annexed and appurtenant thereto,

and tends necessarily to enhance the value of the property or renders it more convenient

and beneficial to the owner, it is a covenant running with the land." Palm Beach Cty. v

Cove Club Investors, Ltd., 734 So.2d 379, 382 n.4 (Fla. 1999) and Alternative

Networking, Inc. v Solid Waste Auth. of Palm Beach Cty., 758 So.2d 1209, 1211 (Fla. 4th

DCA 2000). Under Florida law, where a party seeks an injunction to prevent the violation

of a restrictive covenant, the party need not allege or show irreparable injury. "Appropriate

allegations showing the violation are sufficient and the violation itself amounts to

irreparable injury." Stephl v Moore, 94 Fla. 313, 114 So. 455 (1927). The rule excusing

proof of irreparable harm also avoids the need for the party seeking to enforce a restrictive

covenant to demonstrate the absence of an adequate remedy at law. Autozone Stores, Inc.

v Northeast Plaza Venture, LLC., 934 So.2d 670, 673 (Fla. 2d DCA 2006). LIHTC

tenants have the right to enforce restrictive covenants that, among other things, do not

allow a state credit allocation agency to terminate a property from the program for an

owner's noncompliance. Nordbye v. BRCP/ GM Ellington, 266 P.3d 92 (Ore. Ct. App.,

2011) (a well reasoned study and opinion on the tenant's right of enforcement of the

LIHTC program).

18. BCHA committed fraud on the court when it purposely failed to disclose the

existence of the recorded ELIHA that it executed with FHFC relating to Progresso Point

(PP) in order to obtain 26 USC § 42 LIHTC status and tax credits. The recorded ELIHA

provides for the renewal of Kozich' s lease as a protected property right and requires

evidence of good cause not to renew Kozich's lease. The undisclosed ELIHA by which

the FHFC allocated tax credits to RPA provides: (1) For tenant right of enforcement [Sec.

9. last para.]; (2) Mandates [para. (r)(ii)] that RPA conform to HUD Policy Handbook

4350.3 which incorporates the HUT) Tenancy Addendum, HUD-51641-A; (3) Mandates

"No-Cause Eviction Protection" [para. (c)] which requires evidence of good cause not to

renew a lease; and (4) Mandates that RPA implement and maintain seven (7) Resident

Programs which it has never been done.

The recorded ELIHA requires that BCHA budget, implement and continuously

maintain seven (7) on-site Resident Programs for its LIHTC tenants: Homeownership

Opportunity Program, Literacy Training, Job Training, Health Care, Health and Nutrition

Classes, Resident Activities, and Financial Counseling. As part of BCHA's gross

negligence and although it is paid monthly fees from HUT) and receives all of the income

from the rentals, BCHA has never budgeted or implemented any of the required on-site

Resident Programs in any of its LIHTC communities. And although FHFC receives a

monthly administrative fee and conducts (annual) "inspections", it has never reported any

deficiencies on BCHA's LIHTC communities to the IRS as is required by IRS reguations

and 26 USC § 42.

19. In secretly depriving Kozich of any hearings and trial in state court, BCHA

deprived Kozich of his 14th Amendment constitutionally protected right to due process,

and is in violation of HUD regulations, Elements of Due Process, HUD Legal Opinion

GCH-0078 (September 4, 1992), requiring a court hearing or trial to meet due process

requirements as defined in HUT) Section 8 Housing Choice Vouchers: Revised

Implementation of the HUD-VA Supportive Housing, 77 FR 17086 [Docket FR-5596N-01] (March 23, 2012), and under the U.S. and Florida Constitutions.

20. HUD Section 8 Housing Choice Vouchers: Revised Implementation of the

HUD-VA Supportive Housing Program, 77 FR 17086 [Docket FR-5596-N-01] (March

23, 2012) requires that "Section 8 HUD-VASH vouchers

accordance with

...

are administered in

24 CFR part 982."; and waives 42 USC 1437d(s); 42 USC 13661(a),

(b) and (c); and 24 CFR 982.552 and 982.553 in regard to denial of admission and

prohibits PHAs from screening any potential eligible family members or deny assistance

for any grounds permitted under 24 CFR 982.552 (broad denial for violations of HCV

program requirements). After illegally "evicting" Kozich by secret email, in further

retaliation for Kozich exercising his constitutional rights to free speech advocating for

better, healthier and safer living conditions, for promoting a tenant's organization and for

publishing a monthly newsletter, and contrary to HUD Section 8 Housing Choice

Vouchers: Revised Implementation of the HUD-VA Supportive Housing Program, 77

FR 17086 [Docket FR-5596-N-01] (March 23, 2012), BCJ-IA utilized its illegal

"eviction" to then illegally permanently terminate Kozich's Section 8 HUD-VASH HCV

(APP. G.) so that now he has no voucher with which to even find affordable housing.

All of Kozich's actions are Fair Housing Act and Civil Rights activities protected by 28

USC § 1443 and also his disability and free speech and free association activities are

protected under the First, Fifth and Fourteenth Amendments to the U.S. Constitution.

Knight v. Sanford Hous. Auth., No. 97-1225-CIV-ORL-19B (M.D. Fla. Jan. 30, 1998) and

McQueen v. Druker, 438 F.2d 781, 785 (1st Cir. 1992).

Opinions on appeals from state county court to state circuit court are seldom

published and any published opinions are usually ignored by other circuits and the

district courts.

Any opinion of this court will affect these large numbers of tenants, prison

inmates, landlords and housing authorities alike.

For the reasons given this case is of exceptional importance, of great public

interest and is likely to recur, and the non-final Default Final Judgment for Removal of

Tenant should be reversed nunc pro tunc and Kozich's Section 8 HTJID-VASH HCV

along with his housing at PP reinstated.

C. INTER-CIRCUIT AND INTRA-CIRCUIT CONFLICT

With its Opinion in Kozich v Deibert, 708 Fed.Appx 644 (11th Cir. 2018)

(Mootness Doctrine) citing to Ware v. Deutsche Bank (In re Ware), 562 F.App'x 850,

853 (11th Cir. 2014) (The bank had already obtained a default final judgment in state

court and by the time the case got to federal court had already foreclosed on the

property making the case moot) and upon which Philippeaux v Apt. Inv. & Mgt. Co.,

598 F.App'x 640, 643 (11th Cir. 2015) later relies (In a declaratory and injunctive relief

action, after filing suit the tenant reached a settlement with the landlord and voluntarily

vacated his apartment making the case moot), and created mtra-circuit and inter-circuit

conflict. Both of these cases are distinguished and have no application here because the

11th Circuit erroneously found that Kozich had voluntarily "vacated" his apartment and

dismissed the tenant's appeal as being moot. However and referencing Black's Law

Dictionary, the 11th Circuit misused the term voluntarily "vacated" as being synonymous

with forcefully "evicted."

According to Black's Law Dictionary, 10th Ed., 2014, the correct definition of

"vacate" reasons that the tenant voluntarily left or gave up the occupancy of the house or

room before the lease expired as the tenant had in Philippeaux. And placing the

definition of "surrender" in the context of "vacate", "vacate" takes on a definition

specific to this case being: "A tenant's relinquishment of occupancy or possession before

the lease has expired, allowing the landlord to take possession and treat the lease as

terminated." With that correct definition of "vacate" in mind there is no way that Kozich

vacated his apartment but BCHA forcefully evicted him after the lease had expired.

In this case there is no settlement agreement in either state or federal court, and

Kozich was forcefully evicted by BCHA; he did not voluntarily vacate, leave, or

abandon his LIHTC and HUD -VASH HCV Section 8 federally subsidized housing.

Therefore, in ignoring Jeffries, Sims, McArthur, Basco and Yarbrough and instead

relying on Ware and Philippeaux, the 11th Circuit's opinion created intra-circuit conflict

within its own circuit. And in ignorng DeFunis, Goldberg, Linares, Escalera and

Mendoza and instead relying on Ware and Philippeaux, the 11th Circuit created intercircuit conflict with the other federal circuits and the U.S. Supreme Court.

With Philippeaux the 11th Circuit recognized that the tenant's damages were

independent of his other claims for injunctive and declaratory relief but would not allow

the tenant's claim for damages to go forward because the tenant failed "to allege that he

engaged in statutorily protected activity." Again and being distinguished from

Philippeaux, here Kozich alleged that he engaged in statutorily and constitutionally

protected activity and his claims for damages are independent of his other claims and

are not nominal.

1. INTER-CIRCUIT CONFLICT WITH OTHER DISTRICT COURTS,

OTHER CIRCUIT COURTS AND THE UNITED STATES SUPREME

COURT

Based on the facts and law applicable to this case the 11th Circuit Court's opinion

is in conflict with other District Courts, Other Circuit Courts and the United States

Supreme Court as follows:

a. United States Supreme Court conflict:

"Cases raising the issue of the legality of 'no cause evictions should not be

rendered moot since they are capable of repetition, yet evading review', DeFunis V.

Odegaard, 416 US 312, 318-19, 94 S.Ct. 1704, 40 L. Ed 2d 164 (1974);

...

tenants

facing such evictions are likely to relocate rather than run the risk of summary eviction

in order to preserve the justiciability of their federal lawsuit

....

[T]he' voluntary

cessation of allegedly illegal conduct does not deprive the tribunal of power to hear and

determine the case, i.e. does not make the case moot." DeFunis, 416 US at 318.

Goldberg v. Kelly, 397 US 254, 90 S.Ct. 1011, 25 L.Ed. 2d 287 (1970), affirming,

294 F.Supp. 893 (SD NY 1968), and its progeny (A consolidated case of 20 welfare

beneficiaries wherein, without prior notice or hearing, some but not all of the beneficiaries'

payments were terminated, but none of the underlying factual issues relating to eligibility

were settled). The seminal case mandating a 14th Amendment due process hearing, with

an opportunity to examine witnesses, be held before recipient of welfare benefits (a

statutory entitlement rather than merely a privilege) is deprived of such benefits.

Other Circuit Courts:

Escalera v New York City Housing Auth., 425 F.2d 853 (2nd Cir. 1970) (a

consolidation of 4 tenant eviction cases from federally subsidized housing in the form of

class actions where apparently 2 named tenants were evicted and the other 2 named tenant

cases were voluntarily postponed pending the outcome of the Circuit Court appeal).

Relying heavily on Goldberg, the 2nd Circuit held that the tenants were deprived of their

due process rights secured by the 14th Amendment and reversed the dismissal and grant of

summary judgment.

District Courts from other circuits:

Mendoza v. Frenchman Hill Apartments, 2005 WL 6581642 (E.D. Wash., Jan.

20, 2005) (The district court found that because the landlord had not as yet fully

complied with the IRS "No-Cause Eviction Protection" Ruling 2004-82 and that the

landlord's alleged violations of 26 USC § 42 may continue in the interim, the court

found that the issue is not moot and that a live controversy still existed, that the good

cause eviction of tenants from LIHTC properties is governed by the due process clause

and that the landlord is required to provide the tenant with timely and adequate notice

detailing the reasons for a proposed termination or eviction).

24 CFR § 247.10 is facially unconstitutional because it impermissibly deprived

and continued to deprive tenants of HUD-owned properties their rights under the Due

Process Clause. Linares v Jackson, 548 F.Supp. 2d 21 (E.D.NY. 2008). Section 8

tenants alleged due process violations due to HUD's use of "no cause eviction"

proceedings under 24 FR 247.10 (apparently similar to No-Fault Eviction under 24 CFR

982.553 and not to be confused with "No-Cause Eviction Protection", 24 CFR 982.552,

as here). HUD's mootness argument failed because, although two of the tenants were no

longer subject to 24 CFR § 247.10 since they had moved to non-HUD housing, the

legality of no cause evictions under 24 CFR § 247.10 were capable of repetition, yet

evading review, and HUD's voluntary cessation of no-cause eviction with respect to the

HUD properties at issue did not limit the potential evictions to surface with respect to

other HUD properties

2. INTRA-CIRCUIT CONFLICT WITHIN THE 11th CIRCUIT

Based on the facts and law applicable to this case the 11th Circuit Court's opinion

is in conflict with other opinions within its own Circuit as follows:

Tenants who receive federal rent subsidies under Section 8 have "constitutionally

protected property rights in an expectation of continued occupancy and receipt of rent

and utility subsidies." Jeffries v. Georgia Residential Finance Authority, 678 F.2d 919

(llthCir. 1982).

The doctrine of "capable of repetition yet evading review" takes precedence over

mootness issues. Sims v. Florida Dept. of Highway Safety and Motor Vehicles, 862

F.2d 1449 (llthCir. 1989).

McArthur v. Firestone, 817 F.2d 1548 (11th Cir. 1987) (reversing District Court's

dismissal upon finding of case not being moot because proceedings were pending before

the Florida Election Commission). Likewise Kozich's case is not moot because the Default

Final Judgment for Removal is a non-final appealable order determining the right to

immediate possession of property, Fla.R.App.P. 9. 130(a)(3)(C)(ii), and because Kozich's

appeal (APP.E.) of the non-final order (APP.E.pg. 19) is ongoing with the appeal being

fully briefed as of September 10, 2018.

Basco v. Machin, 514 F.3d 1177 (11th Cir 2008) (a criminal No-Fault Eviction case

reversing summary judgment terminating tenants' housing subsidy for criminal activity

pursuant to 24 CFR 982.553 and 982.555) [fri 7., Goldberg v. Kelly (requiring a 14th

Amendment Due Process hearing)

...

"applies with equal force to public housing assistance

provided pursuant to Section 8, where eligible participants rely on subsidies to meet their

basic need for housing). Likewise Kozich's HUD-VASH HCV is Section 8 Housing with

his civil No-Cause Eviction Protection governed by 24 CFR 982.552.

Ervin v. Hous. Auth. Of the Birmingham Dist., 281 Fed. Appx. 938 (11th. Cir.

2008) (relying on Basco, a No-Fault Eviction case reversing summary judgment

terminating tenant's housing subsidy for criminal activity pursuant to 24 CFR 982.553 and

982.555) (the housing authority had terminated the tenant's Section 8 federal subsidy).

Yarbrough v. Decatur Hous. Auth.,

F.3d

2018 U.S. App. LEXIS 28020,

2018 WL 4765257 (11th Cir., October 3, 2018) (again, relying on Basco for precedent, a

No-Fault Eviction case reversing summary judgment terminating tenant's housing subsidy

for criminal activity pursuant to 24 CFR 982.553 and 982.555) (the housing authority

postponed the termination of benefits until a court date or decision was rendered).

D. AS KOZICH'S STATE CASE IS ON APPEAL AND THEREFORE NOT

FINAL, THE ROOKER-FELDMAN AND MOOTNESS DOCTRINES ARE

INAPPOSITE HERE.

1. THE INAPPLICABILITY OF THE MOOTNESS DOCTRINE.

A case is not moot when the issues presented are 'live' or the parties have a legally

cognizable interest in the outcome. Powell v McCormack, 395 U.S. 486, 23 L.Ed. 2d

491, 89 S.Ct. 1944 (1969).

A case becomes moot only when it is impossible for a court to grant any effectual

relief whatever to the prevailing party. Chafin v. Chafin, 568 U.S.. 165, 133 S.Ct. 1017,

185 L.Ed. 2d 1 (2013). As long as the parties have a concrete interest, however small, in

the outcome of the litigation, the case is not moot. Even the availability of a partial

remedy is sufficient to prevent a case from being moot. i.at 172.

Mootness demands that the tenant's personal interest in the lawsuit (standing)

continue to the lawsuit's end. Sims v. Florida Dept. of Highway Safety and Motor

Vehicles, 862 F.2d 1449 (11th Cir. 1989). In Sims, the doctrine of "capable of repetition

yet evading review" took precedence over mootness issues because the state could

deliver the documents for a gray market vehicle at any time, even after trial, resulting in

the lawsuit's dismissal. Here and because of BCHA's conclusionary non-renewal notice,

incomprehensible and "fake" lease, and secret email to the State Judge with no due

process mandated evidentiary hearing or trial, resulting in Kozich being evicted on the

basis of a non-final Default Final Judgment of Removal which is currently on appeal in

state court and his Section 8 HUD-VASH HCV being permanently terminated, the case

is not moot because Kozich has a personal interest in the lawsuit to regain his Section 8

HUD-VASH HCV, re-tenancy in his apartment, and damages.

Lachcik v Maricopa Cnty. Bd. Of Comm'rs, 2017 U.S. Dist. LEXIS 22365, 2017

WL 633146 (DC Ariz. 2017) [a tenant evicted case from a Section 8 HCV program

under 24 CFR 982 (the same as Kozich here) where, citing to Goldberg and Ressler, the

court granted summary judgment to the housing authority because the tenant failed to

identify any violations that rose to the level of a denial of due process]. Distinguishing

Kozich's case here because he identified numerous violations, i.e. conclusionary notice,

secret emails, no trial, etc., that rose to the level of a denial of due process.

2. THE INAPPLICABILITY OF THE ROOKER-FELDMAN DOCTRINE

IN LIGHT OF THE ONGOING STATUS OF KOZICH'S STATE

APPEAL (APP.E.) AND DENIAL OF DUE PROCESS WITH NO

HEARING OR TRIAL IN STATE COURT

Kozich's appeal (APP.E.) in state court remains open with the appeal being fully

briefed as of September 10, 2018. Therefore the state court proceedings were ongoing at

the time that Kozich filed this case and are still ongoing making Rooker-Feldman

inapposite. Exxon Mobil Corp. v. Saudi Basic Industries Corp., 544 US 280, 292, 125

S.Ct. 1517, 161 L. Ed. 2 454 (2005) andFincher v South Bend Housing Auth., 606 F.3d

331 (7th Cir. Ct. App. 2010), affirming, 612 F. Supp 2d 1009 (Dist. Ct. N.D. Indiana).

Distinguishing this case from the cases cited by BCHA in Circuit Court

"supporting" the Rooker-Feldman Doctrine, all of the cases that BCHA referenced were

concluded with a final judgment against the tenant and no appeal was taken or the tenant

had a "reasonable opportunity to raise his federal claim in state proceedings."

Distinguishing, Salmon v. Aurora Loan Svcs., LLC., 2016 US Dist. LEXIS 21854

M.D. Fla. Feb. 23, 2016) (no appeal taken) and Casale v Tillman, 558 F3d 1258,4260

(1 ith Cir. 2009) (hearing or trial held in state court).

In the state case there were no hearings or trial and Kozich was denied due

process thereby making Rooker-Feldman inapposite. Exxon Mobil Corp.; Long v.

Shorebank Development Corp., 182 F.2d 548 (7th Cir. 1999); McNeill v. N.Y.C.

Housing. Auth., 719 F. Supp. 233 (SDNY 1989) and Caulder v. Durham Housing Auth.,

433 F.2d 998 (4th Cir. 1970).

E. BCHA FOLLOWED-UP ITS ILLEGAL RETALIATION IN EVICTING

KOZICH WITH PERMANENT TERMINATION OF KOZICH'S SECTION 8

HUD-VASH-HCV, AND KOZICH IS ILLEGALLY BEING DENIED THE

USE OF HIS SECTION 8 HUD-VASH HCV AND ACCESS TO

AFFORDABLE HOUSING

HUD Section 8 Housing Choice Vouchers: Revised Implementation of the HUDVA Supportive Housing Program, 77 FR 17086 [Docket FR-5596-N-01] (March 23,

2012) in relevant part with emphasis added states,

SUMMARY: This notice establishes the policies and procedures for the

administration of tenant-based Section 8 Housing Choice Voucher (HCV)

rental assistance under the HUD-Veterans Affairs Supportive Housing

(HUD-VASH) program administered by public housing agencies (PHAs)

that partner with local Department of Veterans Affairs (VA) medical

facilities.

[Page 17087]

Background

The HUD-VASH program combines HCV rental assistance for

homeless veterans with case management and clinical services provided by

the VA through its community medical centers.

Special Rules for the HUD-VASH Voucher Program

HUD-VASH vouchers under this part are administered in accordance

with the HCV tenant-based rental assistance regulations set forth at 24 CFR

part 982.

Unless expressly herein, all regulatory requirements and HUD

directives regarding the HCV tenant-based program are applicable to

HUD-VASH vouchers, including the use of all HUD required contracts

and other forms. The PHA's local discretionary policies adopted in the

PHA's written administrative plan apply to HUD-VASH vouchers, unless

such local policy conflicts with the requirements of the HUD-VASH

vouchers outlined herein.

[Page 17088]

a. Family Eligibility and Selection

VA HUD-VASH case managers will screen all families in

accordance with VA screening criteria. By agreeing to administer the

HUD-VASH program, the PHA is relinquishing its authority to determine

the eligibility of families in accordance with regular HCV program rules

and PHA policies. Specifically, under the HUD-VASH program, PHAs

will not have the authority to screen any potentially eligible family

members or deny assistance for any grounds permitted under 24 CFR

982.552 (broad denial for violations of HCV program requirements) and

982.553 (specific denial for criminals and alcohol abusers), Accordingly,

the Department is exercising its authority to waive 42 USC 1437d(s); 42

USC 13661(a), (b) and (c); and 24 CFR 982.552 and 982.553 in regard to

denial of admission, with the exception of § 982.553(a)(2)(1), which

requires denial of admission to certain registered sex offenders.

...

Civil rights requirements cannot be waived. The HUD-VASH

program is administered in accordance with applicable Fair Housing

Requirements. These include applicable authorities under 24 CFR 5.105(a)

and 24 CFR 982.53 including, but not limited to, the Fair Housing Act,

Section 504 of the Rehabilitation Act of 1973, Title VI of the Civil Rights

Act of 1964, the Americans with Disability Act, and the Age

Discrimination Act. These requirements prohibit discrimination of the basis

of race, color, religion, familial status, national origin, age, or disability.

In furtherance of its retaliation for Kozich exercising his constitutional rights,

complaints to government agencies, organizing a tenants organization, publishing a

Newsletter, etc., PHA further retaliated with permanently terminating Kozich's Section

8 HUD-VASH HCV (APP.G.) thereby permanently denying Kozich access to

affordable housing.

Kozich cannot seek other subsidized affordable housing because in violation of

HUD Section 8 Housing Choice Vouchers: Revised Implementation of the HIJD-VA

Supportive Housing Program, 77 FR 17086 [Docket FR-5596-N-01] (March 23, 2012)

PHA permanently terminated Kozich's Section 8 HUD-VASH HCV (APP. G.) after it

had illegally "evicted" Kozich from PP (APP.E., pg 19). Therefore, Kozich has no

voucher with which to even find affordable housing.

F. KOZICH'S TENANCY UNDER FEDERALLY SUPPORTED PROGRAMS

AND "NO-CAUSE EVICTION PROTECTION."

Each of Kozich's federally supported programs independently mandates the same

"No-Cause Eviction Protection" requirements.

Kozich's Section 8 HUD-VASH HCV "No-Cause Eviction Protection" is found in

four (4) places: (1) the Housing Assistance Payment (HAP) contract, HUD-52641,

supposedly executed between PHA and RPA; (2) the Tenancy Addendum, HUD-5164132

A, which by its terms takes precedence over BCHA's lease and which BCFIA was

supposed to have executed and mcluded word for word attached to Kozich's lease but was

not filed in state court; (3) HUD Housing Choice Voucher Program Guidebook 7420. lOG;

and (4) BCHA's October 1, 2013 Administrative Plan for the Housing Choice Voucher

Program.

Kozich's LIHTC "No-Cause Eviction Protection" is found in three places: 1) 26

USC § 42(h)(6)(B) and (E); 2) IRS Ruling 2004-82; and 3) the undisclosed ELIHA

executed between FHFC and BCHA which is recorded in the public records of Broward

County and therefore a land use restriction or regulation which runs with the land. IRS

Revenue Ruling 2004-82, Answering 12 Questions About Low-Income Housing Credit

under I.R.C. Section 42, in relevant part states,

Section 42(h)6)(B)(1) requires that an extended low-income housing

commitment include a prohibition during the extended use period against (1) the

eviction or the termination of tenancy (other than for good cause) of an existing

tenant of any low-income unit (no-cause eviction protection) ..."

The Court will note that with the IRS ruling relating to 26 USC § 42 that the IRS

adopted the same "No-Cause Eviction Protection" policies and procedures as that

implemented and utilized by HUD and that by its terms "No-Cause Eviction Protection"

takes precedence over the terms of the lease.

Housing authorities cannot terminate tenancies unless they have followed the

procedural rules prescribed by HUD. Thorpe v Hous. Auth. of Durham, 386 US 670

(1967), on remand, 393 US 268 (1969). Section 8 "tenants may claim procedural due

process rights under the due process clause if they have a substantial property interest in

continued occupancy." Jeffries v. Ga. Residential Fin, Auth., 678 F.2d 919, 925 (11th

Cir. 1982). It has already been established that tenants, such as Kozich here and also

being a Section 8 HUD-VASH HCV recipient in a LIHTC apartment community, have

a substantial property interest in continued occupancy and therefore both Thorpe and

Jeffries are applicable and Kozich has a federal right of action.

Under these federally supported programs a tenant's right to renewal of his lease is

a constitutionally protected property right. Ruffin v. Housing Authority, 301 F. Supp. 251,

253 (E.D. La. 1969) (holding that "the right of a tenant to public housing is no less

'property' under the Fifth and Fourteenth Amendments than the right of a student to

remain in school."); Ressler v. Pierce, 692 F.2d 1212 (9th Cir. 1982) (holding applicants

for federal rent subsidies have constitutionally protected property interests); and Joy v.

Daniels, 479 F.2d. 1236, 1241 (4th Cir. 1973) (holding that low-income tenant in private

housing with a federal rent subsidy has cognizable property interest in continuing his

tenancy absent good cause to terminate).

24 CFR 982.308(a) and (f)(2); and 982.456(b)(2) also provide for tenant right of

enforcement including that of the lease, the Tenancy Addendum (HUD-51641 -A), and the

Housing Assistance Payment (HAP) contract (HUD-52641). The Tenancy Addendum is

supposed to be but is not executed between Kozich and BCHA, and is supposed to be but

is not attached to BCHA's "fake" lease upon which BCHA illegally gained possession of

Kozich's apartment.

But remember that being the "artful dodger" that it is, BCHA purposely evaded

pleading or disclosing to the state court that Kozich's residency is in a LIHTC apartment

which pursuant to 26 USC § 42 requires "No-cause Eviction Protection" [A-5]. BCHA

also purposely evaded pleading or disclosing to the state court that Kozich is the recipient

of Section 8 HUD-VASH HV which pursuant to the Tenancy Addendum, HIJD-51641A [para. 8] also has "No-cause Eviction Protection." And continuing with its fraud on the

state court, BCHA purposely failed to attach a true and correct copy of the lease to its

Complaint which consisted of an incomplete and unexecuted Housing Assistance Payment

(HAP) contract, HUD-52641, and no Tenancy Addendum, HUD-51641 -A.

G. IN A LOW INCOME HOUSING TAX CREDIT (LIHTC) APARTMENT

COMMUNITY SUCH AS PP, INTERNAL REVENUE CODE, 26 USC § 42,

MANDATES "NO-CAUSE EVICTION PROTECTION" AND REQUIRES A

HEARING AND EVIDENCE OF GOOD CAUSE NOT TO RENEW KOZICH'S

LEASE.

1. THE LIHTC LAW.

26 USC § 42(h)(6) in relevant part states,

(B) Extended low-income housing commitment

For purposes of this paragraph, the term "extended low-income housing

commitment" means any agreement between the taxpayer and the housing credit

agency—

(i) which requires that the applicable fraction (as defined in subsection

(c)(l)) for the building for each taxable year in the extended use period will

not be less than the applicable fraction specified in such agreement and

which prohibits the actions described in subclauses (I) and (II) of

subparagraph (E)(ii), [below]

(E) Exceptions if foreclosure or if no buyer willing to maintain low-income

status

(ii) Eviction, etc. of existing low-income tenants not permitted The

termination of an extended use period under clause (i) shall not be

construed to permit before the close of the 3-year period following such

termination—

the eviction or the termination of tenancy (other than for good

cause) of an existing tenant of any low-income unit, or

any increase in the gross rent with respect to such unit not

otherwise permitted under this section. (emphasis added)

The substance of LIHTC is that upon meeting certain 26 Usc 42 requirements

FHFC administers the sale of tax credits from BCHA to third parties [the National Equity

Fund (NEF) in this instance], BCHA gets all the income and the third parties utilize the tax

credits to offset other income. Similar to the facts of Mendoza, although BCHA retains a

small [approximately .1% (1/10th of 1 percent)] ownership in PP, receives all of the

income and is responsible to make up any deficit; it ultimately controls and is responsible

for management of PP. However, BCHA is illegally diverting income from PP to fund

other projects and is not maintaining reserves for repairs or keeping up with maintenance,

i.e. there was no air-conditioning in the enclosed 8-story PP for six (6) months during the

long hot summers of 2014 and 2015, and PP has water intrusion and mold and mildew;

BcHA's excuse being that, and although they are illegally diverting income from PP to

fund Mccan and other projects, to paraphrase BcHA's chief Operating Officer, Parnell

Joyce, infamously stating, "Being non-profit we have no obligation to fix anything."

2. REQUIRED LIHTC PROGRAM AND RECORDED LAND-USE

REGULATIONS WHICH RUN WITH THE LAND.

F1a.Stat. 193.017. Low-income housing tax credit, in relevant part states,

Property used for affordable housing which has received a low-income

housing tax credit from the Florida Housing Finance Corporation (FHFC),

as authorized by s. 420.5099, shall be assessed under s. 193.011 and,

consistent with s. 420.5099(5) and (6), pursuant to this section.

(4) If an extended low-income housing agreement [ELIHA] is filed in

the official public records of the county in which the property is

located, the agreement, and any recorded amendment or supplement

thereto, shall be considered a land-use regulation and a limitation on

the highest and best use of the property during the term of the

agreement, amendment, or supplement. (emphasis added).

Fla.Stat. 420.5099. Allocation of the low-income housing tax credit, in

relevant part states,

(1) The Florida Housing Finance Corporation is designated the housing

credit agency for the state within the meaning of s. 42(h)(7)(A) of the

Internal Revenue Code of 1986 and shall have the responsibility and

authority to establish procedures necessary for proper allocation and

distribution of low-income housing tax credits and shall exercise all powers

necessary to administer the allocation of such credits.

(6) For the further purpose of implementing this program in Florida and

in assessing the property for ad valorem taxation under s. 193.011, any

extended low income housing agreement [ELIHA] and all amendments

and supplements thereto which are recorded and filed in the official

public records of the county where the property is located shall be

deemed a land use regulation during the term of any such agreement,

amendment, or supplement. (emphasis added)

The undisclosed ELIHA is a land use restriction or regulation which runs with the

land, similar to that of a deed restriction. A & P Investment Group, Inc. v. The Circle

Property Owners Assoc., Inc., 741 So.2d 1139 (Fla. 4h DCA 1998). A covenant running

with the land differs from a merely personal covenant in that the former concerns the

property conveyed and the occupation and enjoyment thereof, whereas the latter covenant

is collateral or is not immediately concerned with the property granted. If the performance

of the covenant must touch and involve the land or some right or easement annexed and

appurtenant thereto, and tends necessarily to enhance the value of the property or renders it

more convenient and beneficial to the owner, it is a covenant running with the land. Palm

Beach Cty. v Cove Club Investors, Ltd., 734 So.2d 379, 382 n.4 (Fla. 1999) and

Alternative Networking, Inc. v Solid Waste Auth. of Palm Beach Cty., 758 So.2d 1209,

1211 (Fla. 4th DCA 2000).

Under Florida law, where a party seeks an injunction to prevent the violation of a

restrictive covenant, the party need not allege or show irreparable injury. "Appropriate

allegations showing the violation are sufficient and the violation itself amounts to

irreparable injury." Stephl v Moore, 94 Fla. 313, 114 So. 455 (1927). The rule excusing

proof of irreparable harm also avoids the need for the party seeking to enforce a restrictive

covenant to demonstrate the absence of an adequate remedy at law. Autozone Stores, Inc.

v Northeast Plaza Venture, LLC., 934 So.2d 670, 673 (Fla. 2d DCA 2006).

It is "rights, not the broader or vaguer 'benefits' or 'interests,' that may be

enforced under the authority" of section 1983. Mendoza v. Frenchman Hill Apartments,

2005 WL 6581642 (E.D. Wash., Jan. 20, 2005), quoting, Gonzaga University v. Doe,

536 US 273, 283, 122 S.CT. 2268, 153 L.Ed.2D 309 (2002). In Mendoza, the court

makes no mention of having seen or reviewed any ELIHA which distinguishes

Mendoza from this case in that the ELIHA for PP along with Kozich being a Section 8

HUD-VASH HCV recipient and HUD Federal Regulations 24 CFR 982.308(a) and

(f)(2), and 982.456(b)(2) provide for federal tenant right of enforcement.

The BCHA also purposely failed to disclose that in administering 26 USC § 42

LIHTC apartment communities that the IRS adopted HUD's policies, rules and procedures

relating to federally supported Tenant Based Housing.

VI. CONCLUSION

Therefore and for the reasons stated Kozich respectfully requests this Court grant

certiorari to review the opinion of the 11th Circuit Court of Appeals and the decision of

the District Court for the Southern District of Florida, or other relief the court deems

just and equitable.

VII. CERTIFICATE OF COMPLIANCE

I HEREBY CERTIFY that this document complies with S.Ct. Rules 21, 29, 30 and

33.2 and consists of no more than 40 pages. excluding the parts exempted.

Don

zich, Petitioner

VIII. CERTIFICATE OF FILING

I HEREBY CERTIFY that the foregoing was filed with the Court by First Class

Mail via USPS on October 29, 2018.

Don Kozich, Petitioner

P0 Box 2032

Fort Lauderdale, FL 33303

954.709.0537

dtkctr@gmail.com

IX. VERIFIED PROOF OF SERVICE

I HEREBY CERTIFY under penalty of perjury that a true and correct copy of the

foregoing was served on all counsel or parties of record in accordance with the Service

List attached.

Don 1sozicn, Petitioner

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.