Figgs v. Boston Housing Authority

NOTICE: All slip opinions and orders are subject to formal

revision and are superseded by the advance sheets and bound

volumes of the Official Reports. If you find a typographical

error or other formal error, please notify the Reporter of

Decisions, Supreme Judicial Court, John Adams Courthouse, 1

Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-

1030; SJCReporter@sjc.state.ma.us

SJC-11532

TRENEA FIGGS vs. BOSTON HOUSING AUTHORITY.

Suffolk. April 8, 2014. - August 18, 2014.

Present: Ireland, C.J., Spina, Cordy, Botsford, Gants, Duffly,

& Lenk, JJ.1

Boston Housing Authority. Housing Authority. Municipal

Corporations, Housing authority. Practice, Civil, Action

in nature of certiorari. Administrative Law, Hearing,

Substantial evidence. Evidence, Hearsay.

Civil action commenced in the Boston Division of the

Housing Court Department on August 24, 2012.

The case was heard by Jeffrey M. Winik, J.

The Supreme Judicial Court on its own initiative

transferred the case from the Appeals Court.

Michael J. Louis & Angela Marcolina for the defendant.

Jeremy T. Robin for the plaintff.

The following submitted briefs for amicus curiae:

Jeffrey C. Turk for Greater Boston Real Estate Board &

another.

James M. McCreight, Alex Munevar, & Quinten Steenhuis for

Massachusetts Coalition for the Homeless & others.

Esme Caramello, Deena Greenberg, & Melanie Zuch for Charles

Hamilton Houston Institute & another.

1

Chief Justice Ireland participated in the deliberation on

this case prior to his retirement.

2

SPINA, J. Trenea Figgs is a participant in the United

States Department of Housing and Urban Development (HUD) Housing

Choice Voucher Program, commonly referred to as "Section 8,"

administered by the Boston Housing Authority (BHA) pursuant to

42 U.S.C. § 1437f (2012) and implementing HUD regulations.2 On

November 22, 2011, the BHA notified Figgs of its intent to

terminate her participation in the Section 8 program due to

allegations of serious or repeated violations of her lease.

Several weeks earlier, Boston police officers had executed a

search warrant for Figgs's apartment in connection with a

criminal investigation of her brother, Damon Nunes, and had

discovered, among other things, two plastic bags of marijuana, a

.380 caliber Ruger pistol, and five rounds of ammunition. Figgs

2

In the United States Department of Housing and Urban

Development (HUD) Housing Choice Voucher Program (Section 8),

HUD "pays rental subsidies so eligible families can afford

decent, safe and sanitary housing." 24 C.F.R. § 982.1(a)(1)

(1999). See Costa v. Fall River Hous. Auth., 453 Mass. 614, 615

n.2 (2009); Carter v. Lynn Hous. Auth., 450 Mass. 626, 626 n.1

(2008); Wojcik v. Lynn Hous. Auth., 66 Mass. App. Ct. 103, 103

n.2 (2006). The Section 8 program is "generally administered by

State or local governmental entities called public housing

agencies (PHAs). HUD provides housing assistance funds to the

PHA. HUD also provides funds for PHA administration of the

programs." 24 C.F.R. § 982.1(a)(1). Section 8 housing

assistance may be "tenant-based" or "project-based." 24 C.F.R.

§ 982.1(b)(1) (1999). With tenant-based assistance, "[f]amilies

select and rent units that meet program housing quality

standards. If the PHA approves a family's unit and tenancy, the

PHA contracts with the owner to make rent subsidy payments on

behalf of the family. A PHA may not approve a tenancy unless

the rent[] is reasonable." 24 C.F.R. § 982.1(a)(2) (1999). See

24 C.F.R. § 982.1(b)(1), (2) (1999).

3

appealed the proposed termination. Following an informal

hearing on February 22, 2012, a hearing officer, by decision

dated August 6, 2012, upheld the termination of Figgs's Section

8 housing subsidy.

On August 24, 2012, Figgs filed a verified complaint in the

Housing Court for injunctive and declaratory relief. She sought

to enjoin the BHA from terminating her Section 8 housing subsidy

on the ground that the informal hearing failed to satisfy her

procedural due process rights under the Fourteenth Amendment to

the United States Constitution, and she sought a declaration

that the bases for her termination were insufficient. In

response, the BHA filed a motion for judgment on the pleadings.

On March 19, 2013, a judge reversed the decision of the hearing

officer, and he ordered the BHA to reinstate Figgs's Section 8

housing subsidy back to November 22, 2011.3 The BHA appealed the

3

The judge treated Figgs's request for declaratory judgment as

one seeking relief in the nature of certiorari pursuant to G. L.

c. 249, § 4. In light of his decision regarding the certiorari

claim, the judge did not address the injunction or due process

claims. In her brief in this appeal, Figgs has not raised any

due process claims. It appears from the record that Figgs

received proper notice of the BHA's intent to terminate her

Section 8 housing subsidy, see 24 C.F.R. § 982.554(a) (1999);

was afforded an informal hearing conducted by an impartial

decision maker, see 24 C.F.R. § 982.555(a)(1)(v) and (e)(4)(i)

(2000); was represented by counsel at the hearing, see 24 C.F.R.

§ 982.555(e)(3) (2000); was given an opportunity to present

evidence and question witnesses, see 24 C.F.R. § 982.555(e)(5)

(2000); and was issued a written decision stating the reasons

for the decision, see 24 C.F.R. § 982.555(e)(6) (2000), and

explaining the hearing officer's assessment of mitigating facts,

see 24 C.F.R. § 982.552(c)(2)(i) (2010). See generally Costa v.

4

judge's decision, the case was entered in the Appeals Court, and

we transferred it to this court on our own motion. We conclude

that, notwithstanding the enactment of G. L. c. 94C, § 32L,

which decriminalized the possession of one ounce or less of

marijuana, the BHA properly terminated Figgs's participation in

the Section 8 program due to evidence of other criminal activity

in her rental premises, which constituted a serious lease

violation. Accordingly, we reverse the judgment of the Housing

Court.4

1. Background. Figgs and her three minor children are the

authorized occupants of a subsidized apartment on Woolson Street

in the Mattapan section of Boston. Nunes would visit her there

and, on occasion, would babysit her children. Pursuant to

paragraph 10(a) of her lease, Figgs 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

Fall River Hous. Auth., 453 Mass. at 621-632. Accordingly, we

are not of the view that Figgs's due process rights were

violated.

4

We acknowledge the amicus briefs submitted in support of

Figgs by the Massachusetts Coalition for the Homeless, the

Boston Tenants Coalition, and City Life/Vida Urbana; and by the

Charles Hamilton Houston Institute for Race and Justice, the

Committee for Public Counsel Services, and the American Civil

Liberties Union of Massachusetts. We also acknowledge the

amicus brief submitted in support of the Boston Housing

Authority (BHA) by the Greater Boston Real Estate Board and the

Institute of Real Estate Managers.

5

Premises." BHA model lease § 10(a). As a participant in the

Section 8 program, Figgs also signed a document entitled "Family

Obligations of the Housing Choice Voucher Program," which

stated, among its provisions, that "[t]he family may not commit

any serious or repeated violation of the lease."5 By signing

this document, she certified that she understood her obligations

under the Section 8 program, and that her failure to comply with

these obligations "may result in the termination of [her]

participation in the program." According to Figgs, prior to the

commencement of the underlying proceedings, she had been a

participant in the Section 8 program for approximately ten years

without incident.

On October 18, 2011, members of the Boston police

department initiated an investigation into Nunes after a

confidential informant (CI) told officers that the CI had

observed a black .380 caliber firearm in Nunes's bedroom at the

apartment where Figgs lived with her children. The CI believed

that Nunes also lived there. The CI told officers that Nunes

had been in possession of this firearm "for some time," and that

Nunes had been known on occasion to hide the firearm on the back

porch of the apartment outside his bedroom window. As part of

5

Under HUD's regulations, "[f]amily" is defined as "[a]

person or group of persons, as determined by the PHA, approved

to reside in a unit with assistance under the [Section 8]

program." 24 C.F.R. § 982.4 (2002). Pursuant to this

definition, Nunes was not a member of Figgs's "family."

6

the investigation, officers independently observed Nunes

entering and leaving the house in which the apartment was

located several times over the course of approximately one week.

Detective Rodney Best then applied for and obtained from a judge

in the Superior Court a search warrant for Figgs's apartment.

On the evening of October 24, members of the Boston police

department assigned to the youth violence strike force detained

Nunes outside Figgs's apartment and executed the search warrant.

The apartment was unoccupied at the time of the search. From

the room that they understood to be Nunes's bedroom, officers

recovered two bags of a leafy green substance believed to be

marijuana,6 $653 in cash, a box of sandwich bags, a Massachusetts

photographic identification card of Nunes, a Rhode Island

medical card for Nunes, a red cellular telephone, and an "iPod,"

a portable media player.7 The police incident report did not

indicate the amount or weight of the marijuana. In a separate

bedroom, officers found a Massachusetts electronic bank transfer

(EBT) card. They also recovered a sneaker from the back porch

of the apartment, inside of which was a .380 caliber Ruger

6

Although the search warrant made no mention of controlled

substances, the marijuana was discovered in plain view.

7

The police incident report stated that officers also

recovered a digital scale, but that item did not appear on the

inventory list of property taken from Figgs's apartment pursuant

to the search warrant. The hearing officer did not include the

digital scale in his itemization of what was recovered during

the search of the apartment.

7

pistol that contained five rounds of ammunition. Nunes 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.

On November 22, the BHA notified Figgs of its intent to

terminate her participation in the Section 8 housing program.

Among the stated reasons for the proposed termination were

"[s]erious or repeated violations of the lease," specifically

paragraph 10(a), committed on October 24 when police discovered

marijuana and a loaded firearm in her apartment.8 As authority

for its decision, the BHA relied on 24 C.F.R. § 982.551(e)

(2010) (obligation not to commit serious violation of lease),

and 24 C.F.R. § 982.552(c)(1)(i) (2010) (authority to terminate

assistance for violation of any family obligation). Figgs

appealed the proposed termination and requested an informal

hearing.

8

The BHA also sought to terminate Figgs's Section 8 housing

subsidy on the grounds that she failed to request approval from

the BHA to add a family member (Nunes) as an occupant of the

apartment, and failed to provide complete and accurate

information regarding family composition and income. The

hearing officer found that, because the evidence was

insufficient to prove that Nunes was living in Figgs's

apartment, these two grounds for termination lacked merit. The

Housing Court judge affirmed the hearing officer's

determinations with regard to these two bases for termination,

and the BHA has not challenged this portion of the judge's

decision on appeal.

8

Following a hearing on February 22, 2012, at which Figgs

was represented by counsel and presented evidence on her own

behalf, a hearing officer upheld the BHA's decision.9 He stated

that the police reports contained "substantial indicia of

reliability to warrant a finding that Mr. Nunes was involved in

crimes of drugs and unlawful possession of [a] firearm in

[Figgs's] apartment." Notwithstanding the fact that the firearm

was found on the back porch, he continued, that area was still

part of the apartment. Given Figgs's acknowledgement that Nunes

was permitted to go to her apartment, the hearing officer found

that Nunes was Figgs's invitee and, as such, was under her

control when he engaged in criminal activities in her

apartment.10 Based on these findings, the hearing officer

concluded that Figgs had violated paragraph 10(a) of her lease.

9

In support of its allegations, the BHA submitted police

incident reports dated October 24 and 25, 2011; a so-called

"return" of the officer who executed the search warrant, listing

an inventory of the property taken from the premises; an

affidavit in support of the search warrant application; and a

"Recertification Questionnaire," signed by Figgs on January 25,

2011, setting forth the "Family Composition" of her apartment.

10

Under HUD's regulations, the phrase "[o]ther person under

the tenant's control" means, in relevant part, that "the person,

although not staying as a guest (as defined in this section) in

the unit, is, or was at the time of the activity in question, on

the premises (as premises is defined in this section) because of

an invitation from the tenant or other member of the household

who has express or implied authority to so consent on behalf of

the tenant." 24 C.F.R. § 5.100 (2001). In this appeal, Figgs

has not challenged the hearing officer's characterization of

Nunes as a person "under [her] control." Id.

9

The hearing officer next considered whether the lease

violation was "serious," such that it warranted Figgs's

termination from the Section 8 program. The hearing officer

said that Nunes was involved in an activity that threatened the

safety of others because a firearm containing five rounds of

ammunition was recovered in the apartment. Moreover, he

continued, the quantity of marijuana, the drug paraphernalia,

the large amount of cash, and the firearm permitted an inference

not only that Nunes was in possession of drugs, but also that he

intended to distribute or sell drugs in the apartment and to use

the apartment as a storage place for his firearm. The hearing

officer determined that the BHA had sufficient grounds to

propose termination of Figgs's Section 8 housing subsidy for a

serious lease violation.

Finally, in accordance with 24 C.F.R. § 982.552(c)(2)

(2010), the hearing officer considered whether there were

mitigating circumstances that would warrant an outcome other

than Figgs's termination from the Section 8 program. He stated

that Figgs's claimed lack of knowledge about Nunes's behavior

and her positive history as a Section 8 tenant did not offset

the seriousness of the criminal activities in her apartment.

The hearing officer found that Figgs had failed to exercise

proper control in her apartment, which would have forestalled

such criminal activities in the first place. He also found that

10

because Figgs was not disabled, had graduated from a computer

technology program, and was actively looking for employment, her

termination from the Section 8 program would not cause a severe

hardship to her family. Accordingly, the hearing officer

concluded that termination of Figgs's Section 8 housing subsidy

was proper in light of her serious lease violation.11

In reversing the hearing officer's decision and entering

judgment in favor of Figgs, the Housing Court judge concluded

that the hearing officer committed legal errors that adversely

affected Figgs's material rights. The judge determined that

there was insufficient reliable evidence in the administrative

record to support an inference that Nunes either engaged in

drug-related criminal activity in Figgs's apartment or kept an

illegal firearm and ammunition there. With regard to the

marijuana, he pointed out that the police officers did not

include in their written reports any observations or findings

about its weight or amount. In the judge's view, this was a

critical omission because under G. L. c. 94C, § 32L, "possession

of one ounce or less of marihuana shall only be a civil

offense," not a crime. The judge stated that without evidence

that the marijuana collectively weighed more than one ounce,

11

At the hearing, the BHA stated that it was not willing to

offer a lesser sanction of prohibiting Nunes from visiting Figgs

at her apartment given that both drugs and a firearm were found

in the apartment, posing a danger to other residents and

neighbors.

11

there was no basis for the hearing officer to conclude that

Nunes had engaged in the crime of possession of a class D

substance. Moreover, he continued, there was no evidence that

Nunes intended to distribute marijuana to others. The judge

concluded that the hearing officer made a legal error in

determining that Figgs had committed a serious violation of

paragraph 10(a) of her lease "based upon illegal drug activity."

With regard to the firearm and ammunition, the judge stated

that the hearing officer relied primarily on the hearsay

statements of the CI, as set forth in the search warrant

affidavit, to support his finding that Nunes kept a pistol in

Figgs's apartment. The judge pointed out that, apart from such

statements, there was no testimony from anyone who saw a firearm

in Figgs's apartment, who saw Nunes with a firearm, or who saw

Nunes place a firearm on the porch of the apartment. Further,

the judge continued, there was no evidence that the second-floor

porch was part of the apartment leased to Figgs, or that she had

exclusive access to it. The judge concluded that the hearing

officer's reliance on the CI's hearsay statements constituted

legal error because the statements were not supported by

substantial indicia of reliability and, therefore, were not

sufficient to support the termination of Figgs's Section 8

housing subsidy.

12

2. Standard of review. The function of a civil action in

the nature of certiorari under G. L. c. 249, § 4, is "to relieve

aggrieved parties from the injustice arising from errors of law

committed in proceedings affecting their justiciable rights when

no other means of relief are open."12 Swan v. Justices of the

Superior Court, 222 Mass. 542, 544 (1916). Certiorari also has

been described as "a limited procedure reserved for correction

of substantial errors of law apparent on the record created

before a judicial or quasi-judicial tribunal." School Comm. of

Hudson v. Board of Educ., 448 Mass. 565, 575-576 (2007). "To

obtain certiorari review of an administrative decision, the

following three elements must be present: (1) a judicial or

quasi judicial proceeding, (2) from which there is no other

reasonably adequate remedy, and (3) a substantial injury or

injustice arising from the proceeding under review."13 Indeck v.

12

General Laws c. 249, § 4, provides that "[a] civil action

in the nature of certiorari . . . may be brought in the supreme

judicial or superior court or, if the matter involves any right,

title or interest in land . . . in the land court." Pursuant to

G. L. c. 185C, § 3, the Boston division of the Housing Court

Department has concurrent jurisdiction with the Superior Court

Department regarding housing matters. We conclude that the

Housing Court has jurisdiction under G. L. c. 249, § 4,

concurrent with the Superior Court, to review decisions of a

public housing authority regarding housing matters.

13

The parties have not challenged whether an action in the

nature of certiorari was the proper avenue for review of the

BHA's decision. Although we have acknowledged that there is

some debate whether review of a local housing authority's action

should proceed under G. L. c. 249, § 4, or under G. L. c. 30A,

§ 14, we also have recognized jurisprudence standing for the

13

Clients' Sec. Bd., 450 Mass. 379, 385 & n.12 (2008). See Hoffer

v. Board of Registration in Med., 461 Mass. 451, 456-457 (2012).

It is well established that "the standard of review [under

G. L. c. 249, § 4,] may vary according to the nature of the

action for which review is sought." Garrity v. Conservation

Comm'n of Hingham, 462 Mass. 779, 792 (2012), quoting Forsyth

Sch. for Dental Hygienists v. Board of Registration in

Dentistry, 404 Mass. 211, 217 (1989). See Boston Edison Co. v.

Boston Redev. Auth., 374 Mass. 37, 49 (1977). Ordinarily, where

the action being reviewed is a decision made in an adjudicatory

proceeding where evidence is presented and due process

protections are afforded, a court applies the "substantial

evidence" standard.14 See Black Rose, Inc. v. Boston, 433 Mass.

proposition that a local housing authority is not an "agency"

within the meaning of G. L. c. 30A, § 1. See Rivas v. Chelsea

Hous. Auth., 464 Mass. 329, 333-334 (2013), and cases cited.

Because the BHA's decision satisfies the necessary elements for

certiorari review, and because the Housing Court judge treated

Figgs's complaint as one seeking relief under G. L. c. 249, § 4,

we do the same. See id. at 334 (for purposes of appeal,

decision of local housing authority treated "as it ha[d] been

treated throughout the appeal process").

14

In contrast, "[w]here the action being reviewed is not a

decision made in an adjudicatory proceeding and where the action

entails matters committed to or implicating a board's exercise

of administrative discretion, the court applies the 'arbitrary

and capricious' standard" (emphasis added). Garrity v.

Conservation Comm'n of Hingham, 462 Mass. 779, 792 (2012). See

Forsyth Sch. for Dental Hygienists v. Board of Registration in

Dentistry, 404 Mass. 211, 217-218 & n.2 (1989) (judge correctly

applied "arbitrary and capricious" standard of review where

proceeding before board was not adjudicatory and did not

implicate right to engage in lawful occupation).

14

501, 504-505 (2001); Saxon Coffee Shop, Inc. v. Boston Licensing

Bd., 380 Mass. 919, 924-925 (1980); Durbin v. Selectmen of

Kingston, 62 Mass. App. Ct. 1, 5-6 & n.7 (2004). See also A.J.

Cella, Administrative Law and Practice § 1917, at 501 n.55 (1986

& Supp. 2013). Therefore, we consider whether the Housing Court

judge correctly ruled that the hearing officer committed legal

errors that adversely affected Figgs's material rights. As part

of this inquiry, we examine the record to determine whether the

hearing officer's factual findings were supported by substantial

evidence.15

3. Discussion. Congress has declared that it is a policy

of the United States to "promote the goal of providing decent

and affordable housing for all citizens through the efforts and

encouragement of Federal, State, and local governments, and by

the independent and collective actions of private citizens,

organizations, and the private sector." 42 U.S.C. § 1437(a)(4)

(2012). To facilitate the achievement of this goal, Congress

has further declared that the United States will "assist States

and political subdivisions of States to address the shortage of

15

Pursuant to HUD's regulations, the hearing officer's

factual findings "relating to the individual circumstances of

the family shall be based on a preponderance of the evidence

presented at the hearing." 24 C.F.R. §§ 982.555(e)(6) (2000).

See Carter v. Lynn Hous. Auth., 450 Mass. at 634, 636. A

preponderance of the evidence persuades a trier of fact that

what is sought to be proved is more probably true than not true.

See Goffredo v. Mercedes-Benz Truck Co., 402 Mass. 97, 102-103

(1988); Sargent v. Massachusetts Acc. Co., 307 Mass. 246, 250

(1940).

15

housing affordable to low-income families." 42 U.S.C.

§ 1437(a)(1)(B) (2012). Through the Section 8 program,

"assistance payments may be made with respect to existing

housing" for the purposes of "aiding low-income families in

obtaining a decent place to live and of promoting economically

mixed housing." 42 U.S.C. § 1437f(a). See 42 U.S.C.

§ 1437f(o)(1)(A) (Secretary of HUD may provide financial support

to public housing agencies for tenant-based assistance using

established payment standard).

Congress has authorized the Secretary of HUD to "make such

rules and regulations as may be necessary to carry out his

functions, powers, and duties." 42 U.S.C. § 3535(d) (2012).

Accordingly, the Secretary promulgated 24 C.F.R. §§ 982.1-

982.643 (1995) as "a unified statement of program requirements

for the tenant-based housing assistance programs under Section 8

of the United States Housing Act of 1937 (42 U.S.C. [§] 1437f)."

24 C.F.R. § 982.2(a) (1999). The BHA, which administers the

Section 8 program on behalf of HUD, see note 2, supra, was

required to adopt "a written administrative plan that

establishes local policies for administration of the program in

accordance with HUD [regulations and] requirements." 24 C.F.R.

§ 982.54(a) (2001). See 24 C.F.R. § 982.54(b) (2001). The BHA

Administrative Plan for Section 8 Programs (rev. 2011) (BHA

administrative plan) provides that it may, in its discretion,

16

terminate a housing subsidy where the participant "has violated

any Family obligation under the [Section 8] program by action or

failure to act as listed in section 13.5.2 or as set forth in 24

C.F.R. § 982.551." BHA administrative plan § 13.3.9. See 24

C.F.R. § 982.552(c)(1)(i) (BHA "may at any time . . . terminate

program assistance for a participant . . . [i]f the family

violates any family obligations under the program").

More specifically, as pertinent here, § 13.5.2(d) of the

BHA administrative plan states that "[t]he Family may not commit

any serious or repeated violation of the Lease." Similarly, 24

C.F.R. § 982.551(e) provides that "[t]he family may not commit

any serious or repeated violation of the lease." Paragraph

10(a) of the lease signed by Figgs on January 25, 2011, states

that she agrees "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" (emphasis added).

In this appeal, the BHA first contends that the judge

improperly relied on G. L. c. 94C, § 32L, rather than on Federal

law, to decide that Nunes had not engaged in any criminal

activity vis-à-vis the marijuana. As such, the BHA continues,

the judge wrongly concluded that the hearing officer erred in

finding that Figgs had committed a serious lease violation,

predicated on Nunes's drug activity, that warranted her

17

termination from the Section 8 program. Figgs counters by

arguing that G. L. c. 94C, § 32L, serves a vital function in

assessing the severity of a lease violation. We begin our

analysis by considering whether Nunes was engaged in any

"criminal or illegal activity" in Figgs's apartment, focusing

first on the marijuana and subsequently on the firearm. To the

extent that we conclude that Nunes did engage in such activity,

we then consider whether the hearing officer erred in

determining that it constituted a serious lease violation

warranting the termination of Figgs's housing subsidy.

On November 4, 2008, Massachusetts voters approved St.

2008, c. 387, pursuant to the provisions of art. 48, The

Initiative, Part V, § 1, as amended by art. 81, § 2, of the

Amendments to the Massachusetts Constitution. See Commonwealth

v. Keefner, 461 Mass. 507, 509 (2012); Commonwealth v. Cruz, 459

Mass. 459, 464 (2011). This initiative, entitled "An Act

establishing a sensible State marihuana policy," was codified at

G. L. c. 94C, §§ 32L-32N. See St. 2008, c. 387. It changed the

status of possession of one ounce or less of marijuana from a

criminal offense to a civil infraction.16 See G. L. c. 94C,

16

General Laws c. 94C, § 32L, states, in relevant part:

"Notwithstanding any general or special law to the contrary,

possession of one ounce or less of marihuana shall only be a

civil offense, subjecting an offender who is eighteen years of

age or older to a civil penalty of one hundred dollars and

forfeiture of the marihuana, but not to any other form of

criminal or civil punishment or disqualification."

18

§ 32L. Notwithstanding the passage of this initiative,

"[p]ossession of one ounce or less of marijuana with intent to

distribute continues to be a crime, and the Commonwealth may

prosecute it as such, but only where an intent to distribute is

supported by probable cause." Commonwealth v. Humberto H., 466

Mass. 562, 570 (2013). See G. L. c. 94C, § 32C (a);

Commonwealth v. Keefner, supra at 514.

The hearing officer found that Figgs violated paragraph

10(a) of her lease, in part, because Boston police officers,

when executing the search warrant for her apartment, found two

plastic bags of marijuana and "drug paraphernalia" in a bedroom

used by Nunes. The hearing officer determined that Nunes was a

person under Figgs's control when he engaged in drug activity in

her apartment. See note 10, supra. Significantly, no evidence

was presented to the hearing officer regarding the weight of the

marijuana. Nonetheless, Nunes was charged with possession of a

class D substance with intent to distribute, which is a crime,

irrespective of the actual weight of the marijuana. The hearing

officer stated that two bags of marijuana, a box of sandwich

bags (which was found not in the kitchen but in the bedroom),

$653 in cash, and a firearm permitted an inference not only that

Nunes possessed the drugs, but also that he intended to

distribute or sell them from Figgs's apartment. We conclude

that the hearing officer properly could find, by a preponderance

19

of the evidence, that Figgs violated paragraph 10(a) of her

lease because Nunes was engaged in criminal drug activity in her

apartment. BHA model lease § 10(a).

We recognize that a significant rationale for the Housing

Court judge's reversal of the hearing officer's decision was the

fact that there was no evidence regarding the weight of the

marijuana. When this fact was considered in the context of

G. L. c. 94C, § 32L, decriminalizing the possession of one ounce

or less of marijuana, the judge determined that there was no

basis for the hearing officer to conclude that Nunes had engaged

in the "crime" of possession of a class D substance. Given the

judge's additional determination that there was no evidence that

Nunes intended to distribute marijuana to others, the judge

concluded that the hearing officer erred in finding a lease

violation predicated on drug activity. In light of our

conclusion in the present appeal that there was substantial

evidence of possession of marijuana with intent to distribute,

we do not decide whether possession of one ounce or less of

marijuana alone would be sufficient to constitute an "illegal

activity in the rental Premises" in violation of paragraph 10(a)

of Figgs's lease. BHA model lease § 10(a).

Next, we consider whether Nunes unlawfully possessed a

firearm and ammunition in Figgs's apartment. The BHA contends

that, contrary to the judge's conclusion, the hearing officer

20

did not err in relying on the hearsay statements of a CI because

they contained sufficient indicia of reliability. Further, the

BHA continues, when such statements were evaluated in

conjunction with other evidence presented at the informal

hearing, the hearing officer properly could conclude that Nunes

kept a loaded firearm in the rental premises. We agree.

As the BHA acknowledges, the hearing officer relied, in

substantial part, on the hearsay statements of a CI that were

contained in the search warrant affidavit of Detective Best.

Pursuant to 24 C.F.R. § 982.555(e)(5) (2000), evidence "may be

considered [by a hearing officer] without regard to

admissibility under the rules of evidence applicable to judicial

proceedings." See BHA administrative plan § 13.7.5(f). In

Costa v. Fall River Hous. Auth., 453 Mass. 614, 624-625 (2009),

we read this regulation's "specific reference to the

inapplicability of formal rules of evidence as support for the

conclusion that there is no categorical prohibition of hearsay"

at a hearing on the termination of a tenant's Section 8 housing

subsidy. After analyzing the due process implications of

relying on such evidence, we held that "hearsay evidence may

form the basis of a [public housing authority's] decision to

terminate Section 8 assistance so long as that evidence contains

substantial indicia of reliability." Id. at 627. See Gammons

v. Massachusetts Dep't of Hous. & Community Dev., 502 F. Supp.

21

2d 161, 165-166 (D. Mass. 2007) (hearsay evidence is admissible

in administrative proceedings, such as Section 8 hearing, where

relevant). See also Doe, Sex Offender Registry Bd. No. 10800 v.

Sex Offender Registry Bd., 459 Mass. 603, 638 (2011) ("In the

context of administrative proceedings, hearsay evidence bearing

indicia of reliability constitutes admissible and substantial

evidence").

In the present case, the CI told officers that he had

observed a black .380 caliber firearm in Nunes's bedroom at

Figgs's apartment.17 The CI further told officers that Nunes had

been in possession of this weapon for some time, and that Nunes

had been known on occasion to hide the firearm on the back porch

of the apartment outside his bedroom window.18 As part of their

investigation, officers independently observed Nunes entering

and leaving the house in which Figgs's apartment was located

several times over the course of approximately one week. Based

17

In his affidavit in support of the search warrant, Boston

police Detective Rodney Best stated that, as part of the police

investigation into Nunes, he had conducted a firearms license

inquiry with respect to both Nunes and Figgs, and that no

records were found.

18

Paragraph 2 of Figgs's lease defines the rental premises

as "the Unit and common areas appurtenant to the Unit" located

at the specified address on Woolson Street. See Black's Law

Dictionary 123 (10th ed. 2014) (defining "appurtenant" as

"[a]nnexed to a more important thing"). During the informal

hearing, Figgs's counsel introduced a map of Figgs's apartment,

which she had drawn, showing that the porch was appurtenant to

her unit, right outside the window of the bedroom purportedly

used by Nunes, as the CI had described.

22

on all the information set forth in Detective Best's affidavit,19

a Superior Court judge issued a search warrant, finding that

there was probable cause to believe that an illegal firearm

would be found in Figgs's apartment, either on the person or in

the possession of Nunes. Once officers executed the search

warrant, they found the loaded firearm on the back porch of the

apartment, just as the CI had told them. The hearsay statements

of the CI bore sufficient indicia of reliability to warrant

their consideration by the hearing officer.

Apart from these hearsay statements, the hearing officer

also relied on police incident reports stating that, once

officers searched Figgs's apartment and recovered the loaded

pistol, Nunes was arrested and charged with, among other things,

unlawful possession of a firearm and of ammunition. See Costa

v. Fall River Hous. Auth., 453 Mass. at 627 (police report

offering detailed factual account based on personal observations

of detective was sufficiently reliable to serve as basis for

termination decision). In totality, the hearing officer

properly could find, by a preponderance of the evidence, that

Nunes unlawfully possessed a firearm and ammunition in Figgs's

apartment. Unlawful possession of a firearm and of ammunition

are criminal offenses. See G. L. c. 269, § 10 (h).

19

We note that the affidavit in support of the search

warrant stated that the CI, in the past, had provided

information that had led to the arrest of wanted persons, as

well as to the recovery of drugs.

23

On the basis of the police officers' discovery of both

evidence of possession of marijuana with intent to distribute

and a loaded firearm in Figgs's apartment, the hearing officer

properly concluded that Figgs violated paragraph 10(a) of her

lease because Nunes, a person under her control, had engaged in

criminal activity in the rental premises. The judge below erred

in reaching a contrary conclusion.

We now turn our attention to the question whether the

hearing officer abused his discretion in determining that such

activity by Nunes constituted a serious lease violation

warranting Figgs's termination from the Section 8 program.

Absent an eviction, which did not occur in this case, Federal

law does not mandate a tenant's termination from the Section 8

program for a serious lease violation.20 Rather, a public

20

Title 42 U.S.C. § 1437f(o)(7) (2012) governs leases and

tenancy under the Section 8 program. It states that the housing

assistance payment contract between a public housing agency and

the owner of a dwelling unit shall provide that "during the term

of the lease, any criminal activity that threatens the health,

safety, or right to peaceful enjoyment of the premises by other

tenants, any criminal activity that threatens the health,

safety, or right to peaceful enjoyment of their residences by

persons residing in the immediate vicinity of the premises, or

any violent or drug-related criminal activity on or near such

premises, engaged in by a tenant of any unit, any member of the

tenant's household, or any guest or other person under the

tenant's control, shall be cause for termination of tenancy."

42 U.S.C. § 1437f(o)(7)(D). This statutory provision pertains

to termination of a tenancy by a landlord, not to termination

from the Section 8 program. However, if a family is evicted

from Section 8 housing for a serious lease violation, then the

PHA must terminate the family's housing subsidy. See 24 C.F.R.

§ 982.552(b)(2) (2010).

24

housing authority may terminate a Section 8 housing subsidy if

the family violates any of the family obligations set forth

under 24 C.F.R. § 982.551, which include the obligation to "not

commit any serious or repeated violation of the lease." See 24

C.F.R. § 982.552(c)(1)(i). See also BHA administrative plan

§ 13.3.9. The termination decision rests within the discretion

of the BHA. See Costa v. Fall River Hous. Auth., 453 Mass. at

630-631; Wojcik v. Lynn Hous. Auth., 66 Mass. App. Ct. 103, 111-

112 (2006). See also Carter v. Lynn Hous. Auth., 450 Mass. at

638 n.20, quoting Baldwin v. Housing Auth. of Camden, 278 F.

Supp. 2d 365, 371 (D.N.J. 2003) (housing authorities not

required under law, nor encouraged by HUD, to terminate

assistance in every circumstance where basis for termination

exists). When deciding whether to terminate a family's

participation in the Section 8 program because of action or

failure to act by a family member, "[t]he PHA may consider all

relevant circumstances such as the seriousness of the case, the

extent of participation or culpability of individual family

members, mitigating circumstances related to the disability of a

family member, and the effects of denial or termination of

assistance on other family members who were not involved in the

action or failure." 24 C.F.R. § 982.552(c)(2)(i) (2010).

Another circumstance that may be relevant in a termination

decision, depending on the nature of the particular case, is the

25

fact that Massachusetts has decriminalized the possession of one

ounce or less of marijuana.21 See G. L. c. 94C, § 32L.

Review under an abuse of discretion standard requires that

we "look for decisions based on 'whimsy, caprice, or arbitrary

or idiosyncratic notions.'" Cruz v. Commonwealth, 461 Mass.

664, 670 (2012), quoting Bucchiere v. New England Tel. & Tel.

Co., 396 Mass. 639, 642 (1986). We do not disturb a decision

"simply because [we] might have reached a different result; the

standard of review is not substituted judgment.'" Cruz v.

Commonwealth, supra, quoting Bucchiere v. New England Tel. &

Tel. Co., supra at 641. As we already have described, the

hearing officer evaluated the nature of the criminal activity by

Nunes in Figgs's apartment, as well as mitigating circumstances

that could point away from the termination of Figgs's Section 8

housing subsidy. Contrast Carter v. Lynn Hous. Auth., 450 Mass.

at 636-637. We conclude that there was substantial evidence to

support the hearing officer's findings as to possession of

marijuana with intent to distribute and unlawful possession of a

firearm and ammunition. Accordingly, the hearing officer did

not abuse his discretion in determining that Figgs had committed

21

Given the factual circumstances presented in this case,

we do not decide whether evidence of only the simple possession

of one ounce or less of marijuana would constitute a serious

lease violation permitting a tenant's termination from the

Section 8 program. Although we question whether such a

termination could withstand an abuse of discretion analysis, we

address neither this matter, nor whether in such circumstances

G. L. c. 94C, § 32L, would have any applicability.

26

a serious lease violation warranting her termination from the

Section 8 program.

4. Conclusion. For the reasons stated in this opinion,

the judgment of the Housing Court is reversed.

So ordered.