PHA Can Terminate Subsidy for Serious Lease Violations

Facts: The brother of a Section 8 resident often visited the resident’s unit and babysat her children. In October 2011, the police investigated the brother after a confidential informant told officers that the brother kept a black .380 caliber firearm in the resident’s unit.

By signing her lease, the resident agreed “to refrain from engaging in, and to cause Household member(s), guest(s), or any person under any Household member’s control to refrain from engaging in, any criminal or illegal activity in the rental Premises.” As a participant in the Section 8 program, the resident also signed a document entitled “Family Obligations of the Housing Choice Voucher Program,” which stated that “[t]he family may not commit any serious or repeated violation of the lease.”

As part of the investigation, the officers observed the brother entering and leaving the building in which the unit was located several times over the course of a week. A detective obtained a search warrant, and the police found two bags of marijuana, $653 in cash, a box of sandwich bags, and a .380 caliber pistol that contained five rounds of ammunition. The brother was arrested and charged with possession of a class D substance with intent to distribute, commission of this offense within a school zone, unlawful possession of a firearm and of ammunition, and improper storage of a firearm.

Shortly after, the local PHA notified the resident of its intent to terminate her participation in the Section 8 housing program. And following an informal hearing, a hearing officer upheld the termination of her Section 8 housing subsidy.

The resident then filed a complaint in housing court asking the court to prevent her subsidy’s termination on the basis that the informal hearing didn’t satisfy her constitutional due process rights, and she sought a declaration that the grounds for her termination were insufficient. The housing court judge reversed the decision of the hearing officer and ordered the PHA to reinstate her subsidy. The PHA appealed.

Ruling: The Supreme Judicial Court of Massachusetts reversed the housing court’s decision and ruled in favor of the PHA.

Reasoning: The court found that there wasn’t an abuse of discretion in the hearing officer’s decision. The hearing officer evaluated the nature of the criminal activity by the brother in the unit, as well as mitigating circumstances. The court concluded that, notwithstanding state law, which decriminalized the possession of one ounce or less of marijuana, the PHA properly terminated the resident’s participation in the Section 8 program due to evidence of other criminal activity in her unit, which constituted a serious lease violation.

The resident’s brother was permitted to go to her unit, which meant he was the resident’s invitee and, as such, was under her control when he engaged in criminal activities there. The brother was involved in an activity that threatened the safety of others because a firearm containing five rounds of ammunition was recovered in the unit.

In addition, the hearing officer had considered whether there were mitigating circumstances that could warrant a different outcome. The hearing officer had found that because the resident wasn’t disabled, had graduated from a computer technology program, and was actively looking for employment, her termination from the Section 8 program wouldn’t cause a severe hardship to her family.

• Figgs v. Boston Housing Authority, August 2014