This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2006).






Avonne L. Winston,


Minneapolis Public Housing Authority,


Filed August 7, 2007


Peterson, Judge


 Minneapolis Public Housing Authority


Avonne L. Winston, 3511 Logan Avenue North, Minneapolis, MN  55412 (pro se relator)


Kenneth V. Parsons, Minneapolis Public Housing Authority, 1001 Washington Avenue North, Minneapolis, MN  55401 (for Minneapolis Public Housing Authority)


            Considered and decided by Shumaker, Presiding Judge; Peterson, Judge; and Ross, Judge.

U N P U B L I S H E D   O P I N I O N




            In this appeal from a termination of her rental assistance, relator argues that the public housing authority improperly overturned the decision of the hearing officer and that her alleged involvement in criminal activity was an insufficient basis for terminating her assistance.  We reverse.


            Relator Avonne Winston appeals the Minneapolis Public Housing Authority’s (MPHA) decision to terminate her rental assistance.  In March 2006, the MPHA learned that Winston, a recipient of rental assistance, had been charged with check forgery for her participation in a check-forgery ring.  MPHA representatives met with Winston on April 11, 2006, regarding the pending criminal charges.  Winston stated that she had “nothing to [do] with this but was involved with this because she is related to [a lot] of the defendants,” that she was “wanted as a witness in this incident” and that “she is still waiting on the outcome” of the charge.  MPHA representatives also asked Winston about a 1998 incident that resulted in criminal charges.  Winston explained that while she was charged with possession of a firearm and terroristic threats in 1998, she was convicted only of removing a serial number from a firearm.

            On April 24, 2006, the MPHA issued written notice to Winston that her rental assistance was terminated effective June 30, 2006.  According to the notice, “[t]he reason for th[e] termination is [t]he family may not commit fraud, bribery, or any other corrupt or criminal act in connection with a Federal Housing Program.  The family, guest or persons under the tenant[’]s control must not engage in drug-related or violent criminal activity near [the] premises.”  According to the record, a hearing was held on May 24, 2006.  The hearing officer determined that the “MPHA did not sustain its burden of proof that Avonne Winston was guilty of a Forgery charge, which is denied by Avonne Winston and awaits trial or adjudication.” 

            The hearing officer determined that “[t]he evidence presented by MPHA would require the Hearing Officer to speculate as to the validity of the pending charge.”  The hearing officer also determined that the reduction of the 1998 weapons charge to a “misdemeanor charge of Removing Serial Number Of Pistol on [July 2, 1998] by a plea agreement with the prosecutor to close out the charge without further penalty[,] indicates that there was not sufficient evidence to prosecute her on a felony gun charge.”  The hearing officer determined that the MPHA “did not present sufficient justiciable evidence, at this time, to sustain its burden of proof for denial of section 8 rental assistance benefits to Avonne Winston.” 

            On June 9, 2006, the MPHA issued its decision overturning the hearing officer’s decision.  The MPHA determined that the hearing officer had improperly required the allegations of criminal activity to be proved beyond a reasonable doubt, rather than by a preponderance of the evidence as required by federal regulations.  The MPHA determined that if the hearing officer had used the correct standard, the evidence presented at the hearing would have been sufficient to terminate Winston’s benefits.  On July 31, 2006, the MPHA issued its written notice that it intended to terminate Winston’s rental assistance effective August 31, 2006.  This certiorari appeal followed.


            Winston argues that the MPHA unlawfully terminated her rental assistance contrary to the decision of the hearing officer based on her alleged criminal activity.

            When a public housing authority (PHA) terminates an individual’s section-8 rental assistance after a hearing, it acts in a quasi-judicial capacity.  Carter v. Olmsted County Hous. & Redevelopment Auth., 574 N.W.2d 725, 729 (Minn. App. 1998).  “An agency’s quasi-judicial determinations will be upheld unless they are unconstitutional, outside the agency’s jurisdiction, procedurally defective, based on an erroneous legal theory, unsupported by substantial evidence, or arbitrary and capricious.”  Id.

            The Code of Federal Regulations governs the obligations of families receiving section-8 rental assistance, and establishes the grounds for terminating assistance.  “The members of the family must not commit fraud, bribery or any other corrupt or criminal act in connection with the programs.”  24 C.F.R. § 982.551(k) (2007).  “The members of the household may not engage in drug-related criminal activity or violent criminal activity or other criminal activity that threatens the health, safety or right to peaceful enjoyment of other residents and persons residing in the immediate vicinity of the premises (see § 982.553).”  24 C.F.R. § 982.551(l) (2007).  “The PHA must establish standards that allow the PHA to terminate assistance under the program for a family if the PHA determines that any household member has violated the family’s obligation under § 982.551 not to engage in violent criminal activity.”  24 C.F.R. § 982.553(b)(2) (2007).  “The PHA may terminate assistance for criminal activity by a household member as authorized in [section 982.553] if the PHA determines, based on a preponderance of the evidence, that the household member has engaged in the activity, regardless of whether the household member has been arrested or convicted for such activity.”  24 C.F.R. § 982.553(c) (2007).

            The PHA may terminate program assistance for a participant if the family violates any of the family obligations under section 982.551 or section 982.553.  24 C.F.R. § 982.552(c)(1)(i), (iv), (xi) (2007).  A participant must be given an opportunity for a hearing when the PHA makes a “determination to terminate assistance for a participant family because of the family’s action or failure to act (see § 982.552).”  24 C.F.R. § 982.555(a)(1)(v).

The PHA is not bound by a hearing decision: 


            (1) Concerning a matter for which the PHA is not required to provide an opportunity for an informal hearing under this section, or that otherwise exceeds the authority of the person conducting the hearing under the PHA hearing procedures.


            (2) Contrary to HUD regulations or requirements, or otherwise contrary to federal, State, or local law.


24 C.F.R. § 982.555(f)(1), (2) (2007).

            The MPHA determined that it was not bound by the hearing officer’s decision because the decision was contrary to the federal regulation establishing a preponderance-of-the-evidence standard for such hearings.  Based on its determination that it had established by a preponderance of the evidence that Winston was involved in criminal activity, the MPHA overturned the hearing officer’s decision and terminated Winston’s rental assistance.  In determining that Winston was involved in criminal activity, the MPHA relied on the fact that a search warrant was executed at Winston’s home, Winston’s computer was confiscated, and Winston was arrested and charged with check forgery.  The MPHA also relied on the misdemeanor conviction from 1998 as “evidence of a commission of a serious crime.”  The MPHA contends that the 1998 weapons charge supports its decision to terminate Winston’s benefits because “the logical conclusion is that [Winston] pointed the loaded gun at the victim.” 

            The MPHA’s assertion that it was required to prove by a preponderance of the evidence only that Winston was involved in criminal activity, is based on an incorrect interpretation of the federal regulations for terminating rental assistance.  To establish grounds for terminating benefits based on the alleged violations of section 982.551, the MPHA needed to show that the criminal activity was either in connection with the housing program or was violent.  There is no indication in the record that the check forgery was a crime that was committed in connection with the housing program, and the MPHA did not make such a finding.  There is also no indication in the record that the check forgery was a violent offense.  Rather, it involved the use of a computer.  Thus, the check-forgery charge cannot support MPHA’s decision.

            Regarding the 1998 misdemeanor conviction, the record does not clearly indicate when Winston began receiving rental assistance, and it is not clear whether the 1998 incident is relevant.  But even if we assume that the 1998 incident is relevant, the incident did not involve the housing authority, and the record is insufficient to show that the 1998 incident involved violent criminal activity.  The police report indicates only that one of the two occupants of the vehicle in which Winston was a passenger “pointed a gun.”  Winston denies that she pointed the gun, and the incident led only to a misdemeanor conviction for removing the serial number from a pistol.  While a conviction is not necessary, the record is insufficient to establish by a preponderance of the evidence that Winston engaged in violent criminal activity.

            In its appellate brief, the MPHA relies heavily on two affidavits that were prepared for this appeal and were not part of the record before the MPHA, were not prepared in accordance with the rules regarding supplementing the record on appeal, and are not part of the record on appeal.  See Minn. R. Civ. App. P. 110.01 (“The papers filed in the trial court, the exhibits, and the transcript of the proceedings, if any, shall constitute the record on appeal in all cases.”); Minn. R. Civ. App. P. 110.03 (providing that if no transcript is available, appellant may prepare a statement of proceedings).  Consequently, we did not consider the affidavits in making our decision, and we have disregarded the claims in MPHA’s brief that are based solely on those affidavits. 

            Because the MPHA’s decision is based on an erroneous theory of law, and is not supported by the evidence, the hearing officer’s decision was improperly overturned.