Opinion
14-P-1685
01-08-2016
NORTHAMPTON HOUSING AUTHORITY v. GUY FLATHERS.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its rule 1:28, as amended by 73 Mass. App. Ct. 1001 (2009), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
This is an appeal by Guy Flathers (tenant) from a judgment after trial in the Housing Court in a summary process action, granting possession of a government-subsidized housing unit to the plaintiff, the Northampton Housing Authority (Authority). On October 29, 2015, this panel remanded the matter to the Housing Court and directed the judge to supplement the record with findings as to the credibility of the tenant's testimony. Upon review of the record and the Housing Court judge's subsequent order, we affirm the judgment awarding possession to the Authority.
The tenant challenged his eviction as follows: in a series of pro se motions in the Housing Court; by motion to a single justice of the Appeals Court; and by appeal pursuant to G. L. c. 211, § 3, to a single justice of the Supreme Judicial Court, who stayed the levy of execution against the tenant and transferred the case to this court on October 9, 2014.
Background. The Authority maintains and leases units in a set of apartment complexes to elderly and disabled tenants in the city of Northampton. Administration of the Authority's rental properties, and that of all local housing authorities in the Commonwealth, is governed by the provisions of G. L. c. 121B and accompanying regulations. See 760 Mass. Code Regs. § 4.01 et seq. (2005). Among the properties managed by the Authority is the Cahill Apartments complex, in which the tenant has resided since entering into a lease with the Authority on November 12, 2013. The tenant was approved for housing by the Authority upon review of his application submitted October 10, 2013. Prior to that application, on July 12, 2013, the tenant completed and submitted an identical application form, which was approved by the Authority, but he declined to accept the unit offered him at that time. As with all applicants, the Authority conducted a Criminal Offender Record Information (CORI) check on the tenant, which returned no criminal history.
The tenant, however, is a level 3 registered sex offender, and duly registered his new address with local authorities shortly after moving into his unit at Cahill Apartments. The Authority learned of the tenant's status as a sex offender, prompting an internal investigation into the accuracy of the CORI check. The Authority discovered that an incorrect birth date among the data held by the Criminal History Systems Board had resulted in the system returning no "match" for the tenant's correct birth date. Once the error was corrected, the Authority was able to obtain the tenant's true CORI, revealing his extensive record of convictions, including several for crimes of violence.
By notice dated November 26, 2013, the Authority requested a private conference with the tenant to determine whether it would proceed with eviction. The notice advised that the conference participants would "discuss complaints about [the tenant's] household which concern possible violations of [his] lease." The notice alleged such violation as follows:
"On your application for Public Housing, received on October 10, 2013, you indicated that you had been convicted of a crime, but circled 'NO' to the question asking, 'have you . . . ever been arrested for or convicted of a drug-related crime, or a crime involving the use of violence.'
"Since you have been housed with the [Authority] we have learned that your answer to this question was neither complete or accurate. In fact, you were convicted of several crimes of violence, including Aggravated Rape, and Rape, and served a lengthy prison sentence."
Among the violations described in § X(C) of the lease as grounds for termination is the following:
"(9) Failure to supply complete and accurate information in Tenant's application for public housing . . . or in the documentation submitted in support of Tenant's application for public housing . . . if complete and accurate
information would have provided: (a) cause for finding Tenant ineligible or unqualified for public housing. . . ."
See G. L. c. 121B, § 32 (applicant is disqualified for housing "for reasons, absent outweighing mitigating circumstances, including the following: . . . [h] The applicant has misrepresented or falsified any information required to be submitted as part of the applicant's application, and the applicant fails to establish that the misrepresentation or falsification was unintentional").
The Authority's policy upon receiving a housing application from a level 3 sex offender is to presumptively deny the application and provide the applicant with an opportunity to appeal. Because the application here did not disclose the tenant's criminal history, this process was not adhered to in this case.
After the private conference, the Authority notified the tenant of its intent to proceed with the eviction. The tenant appealed that decision to the Authority's grievance panel, which, after a further hearing, denied the appeal. The Authority issued the tenant a thirty-day notice to quit on January 7, 2014, and initiated a for-cause summary process action in the Housing Court on April 14, 2014.
The tenant represented himself at trial. He testified that "it was a total accident" and that he "made a mistake" in circling the answer "NO" to the question about convictions of violent crimes on the October 10, 2013, application. Basing his decision on § X(C)(9) of the lease, the Housing Court judge ruled that the tenant's false answer to the violent crimes question on his October 10, 2013, application was grounds for a for-cause eviction, and entered judgment for the Authority.
The record before us indicates that the tenant submitted two applications for housing. In his earlier application dated July 12, 2013, he answered "YES" to the question about prior arrests or convictions for crimes involving the use of violence. Based on this discrepancy and on the tenant's testimony at trial, we remanded the case to permit the judge to make findings of fact as to the tenant's credibility. We considered such findings essential to our review under G. L. c. 121B, § 32(h), which permits a tenant facing eviction for falsification or misrepresentation of information to avoid eviction upon a showing that such falsification or misrepresentation was unintentional.
Discussion. The Housing Court judge's supplemental order, docketed in this court on November 23, 2015, contains the judge's findings of fact plainly rejecting the tenant's contentions as not credible. The judge reasoned that the contentions were not credible on several grounds: (1) the tenant took time to complete all other parts of the application with detailed information, and without skipping over any other section; (2) the July and October applications contain identical information except for the answer to the question regarding convictions for violent crimes; and (3) the tenant signed the application, which contained a certification that the information provided was true, and signifying his awareness that falsehoods or misrepresentations could result in cancellation or denial of the application.
"When reviewing the trial judge's decision, we accept his findings of fact as true unless they are clearly erroneous, and we give due regard to the judge's assessment of the witnesses' credibility." Boston Hous. Authy. v. Bridgewaters, 69 Mass. App. Ct. 757, 762 (2007), quoting from Andover Hous. Authy v. Shkolnik, 443 Mass 300, 306 (2005). "However, 'we scrutinize without deference the legal standard which the judge applied to the facts.'" Ibid., quoting from Kendall v. Selvaggio, 413 Mass. 619, 621 (1992). The defendant has failed to demonstrate that the judge's rejection of the testimony that he "made a mistake" in filling out his second application is clearly erroneous. From that finding it necessarily follows that the tenant failed to establish at trial that the misrepresentation on his application was unintentional. See G. L. c. 121B, § 32(h). Consequently, we affirm the judgment.
So ordered.
By the Court (Cohen, Meade & Agnes, JJ.),
The panelists are listed in order of seniority. --------
/s/
Clerk Entered: January 8, 2016.