ALJDEC

00F-228920569-MCH · Maricopa County Housing Department · 2000-03-07

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: March 7, 2000 APPEARANCES: Donna Moreno appeared telephonically. Janet Miller, Representative of the Maricopa County Housing Department (“Department”), was present. ADMINISTRATIVE LAW JUDGE: Sondra J. Vanella _____________________________________________________________________

The hearing in this matter was held for the purpose of determining whether the Department is justified in terminating Respondent’s lease. Evidence and testimony were presented and, based upon the entire record, the following Findings of Fact, Conclusions of Law, and Recommended Decision are made.

FINDINGS OF FACT Respondent resides at 416 S. 4th Street, #20, Buckeye, Arizona, and receives Section 8 Tenant-Based Assistance from the Department, and continues to receive such benefits pending the outcome of the instant matter. On September 10, 1999, an Advisory Notice (“the Notice”) was issued to Respondent by the Department, indicating that Alice Vester, Respondent’s friend, would not be permitted on the Department’s property and had been placed on the “Trespass List”. The Notice explained the definition of criminal trespass pursuant to A.R.S. (13-1502. It is important to note that the Notice warned Respondent that the presence of Alice Vester on any Department property “will jeopardize the continued residency of the families that [Alice Vester is] visiting on 416 S. 4th Street, #20, Buckeye, Arizona.” Ms. Miller, the Department’s representative, testified that Ms. Vester is a former resident and is not welcome on any Department property because of her past actions, including the use of drugs. Ms. Miller further testified that there is a crime free addendum to Respondent’s lease. Respondent did not dispute having received the notice. After receiving the Notice, Respondent did not contact the Department regarding the Notice or any questions she may have had about it. In October 1999, despite having received the Advisory Notice, Respondent became the “go between” for Alice Vester and CPS for visitations between Ms. Vester and Ms. Vester’s child. On November 25, 1999, Alice Vester visited Respondent at Respondent’s apartment. Respondent testified that Alice Vester was not at the apartment on November 25, 1999, but that Ms. Vester’s child was. Respondent further testified however, that when Ms. Vester does visit her, she stays outside of the apartment. The property belongs to the Department, and therefore Ms. Vester’s presence on the property, whether inside or outside Respondent’s apartment, is a violation of the Advisory Notice. On December 3, 1999, the Department issued Respondent a “Thirty Day Notice to Vacate Unit” due to Respondent’s violation of the Advisory Notice. Respondent knew the consequences of her association with Ms. Vester. Respondent reviewed the Advisory Notice issued by the Department, and should have made an inquiry of the Department or legal counsel if she had any questions. CONCLUSIONS OF LAW The Maricopa County Housing Department has jurisdiction to terminate leases under the federally funded low-income housing programs in Maricopa County.[1] Respondent is entitled to a hearing with the Office of Administrative Hearings prior to termination of her assistance under the program.[2] The Department bears the burden of demonstrating by a preponderance of the evidence that its decision to terminate Respondent’s lease is appropriate.[3] A “preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.”[4] It is evidence which is of greater weight or more convincing than the evidence which is offered in opposition to it; that is, evidence which as a whole shows that the fact sought to be proved is more probable than not.”[5] A tenant’s obligations under a lease with the Department include abiding by “necessary and reasonable regulations promulgated by the [Department] for the benefit and well-being of the housing project and the tenants…”[6] Grounds for termination of a lease are enumerated in 24 C.F.R. (966.4(k), and include failure to fulfill the tenant obligations, or for other good cause. Respondent violated the Advisory Notice, which had been issued by the Department in order to protect the housing project and its tenants. Respondent failed to abide by this tenant obligation, despite proper notice. Respondent knowingly and intentionally violated the Advisory Notice by becoming a “go between” for visitations between Ms. Vester and CPS. Therefore, the Department has good cause to terminate Respondent’s lease. The Department has established by a preponderance of the evidence that Respondent violated the terms of her lease by not complying with the Advisory Notice. The undersigned Administrative Law Judge concludes that the Department is entitled to terminate the lease. RECOMMENDED DECISION In view of the foregoing, it is recommended to the Department, that this appeal be denied and that it enforce the Thirty Day Notice to Vacate Unit dated December 3, 1999. Done this day, March 15, 2000.

______________________________________ Sondra J. Vanella Administrative Law Judge

Original transmitted by mail this ____ day of March, 2000, to:

Joanne D'Amico Maricopa County Housing Department 2024 North 7th Street, Suite 101 Phoenix, Arizona 85006-2155

By ___________________________

----------------------- [1] 42 U.S.C.A. (1437; 24 C.F.R. (5.100; and 24 C.F.R. (982.51. [2] 24 C.F.R. ((982.555(a)(v) and 982.555(e)(4). [3] 24 C.F.R. (982.555(e)(6). [4] Morris K. Udall, Arizona Law of Evidence, (5 (1960). [5] Black’s Law Dictionary, 1182 (6th ed. 1990). [6] 24 C.F.R. (966.4(f)(4).

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Office of Administrative Hearings 1400 West Washington, Suite 101 Phoenix, Arizona 85007 (602) 542-9826