The Supreme Judicial Court weighed in yesterday on the question of termination of Section 8 benefits where the HCV recipient’s brother (a frequent visitor to the leased premises) was charged with possession of marijuana with intent to distribute. Notwithstanding the recent decriminalization of possession of less than one ounce of marijuana, the SJC upheld the decision of the hearing officer to terminate the Section 8 benefits. Figgs v. Boston Housing Authority, Lawyers Weekly No. 10-141-14.
Trenea Figgs was the Section 8 recipient whose benefits were administered by the Boston Housing Authority. Her brother Damon Nunes visited Ms. Figgs from time to time in her apartment. He was arrested after police officers searched the apartment and found marijuana, plastic bags and a loaded handgun. The housing authority moved to terminate Ms. Figgs’s lease based on her brother’s criminal activity in the apartment and that decision was upheld at an informal hearing. However, the Housing Court reversed that decision because the arresting officers had not determined the amount of marijuana in the apartment. The Housing Court’s rationale was that termination of Ms. Figgs’s Section 8 benefits was not appropriate because there was no evidence of the amount of marijuana in the apartment. Since the possession of less than one ounce is no longer a criminal offense in Massachusetts, G.L. c. 94C, sec. 32L, the Housing Court held that Ms. Figg’s benefits should be reinstated. But the SJC disagreed, upholding the decision of the hearing officer.
The Supreme Judicial Court held that even though possession of less than one ounce of pot is a civil infraction only, possession with intent to distribute still constitutes a crime. “We conclude that the hearing officer properly could find, by a preponderance of the evidence, that Figgs violated paragraph 10(a) of her lease because Nunes was engaged in criminal drug activity in her apartment.”. The court found there was “substantial evidence” that Nunes was in possession of marijuana with intent to distribute (this was based on a finding that there were plastic bags in the bedroom where the marijuana was found). Furthermore, the Supreme Judicial Court also agreed with hearing officer that he could have properly concluded “that Nunes kept a loaded firearm in the rental premises.” The hearing officer was permitted to rely on hearsay statements of an informant regarding the possession of the handgun because the statements “bore sufficient indicia of reliability.” 24 CFR sec. 982.555(e).
However, the court’s footnote 21 deserves particular attention. The court wrote: “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, sec. 32L, would have any applicability.”
Therefore, a housing authority should be careful about termination of benefits if a tenant or family member is found to have possession of less than one ounce of marijuana. The decriminalization of that amount of pot, without more (as was the case in Figgs) may not be enough to support a cut-off of Section 8 benefits.