Com. v. Kapsalis

• Decision Date: 10 May 1988
• Docket Number: No. 87-1250,87-1250
• Parties: COMMONWEALTH v. Steven KAPSALIS.
• Court: Appeals Court of Massachusetts

Page 148

529 N.E.2d 148

26 Mass.App.Ct. 448

COMMONWEALTH v. Steven KAPSALIS.

No. 87-1250.

Appeals Court of Massachusetts Middlesex.

May 10, 1988.

Decided Oct. 12, 1988.

Further Appellate Review Denied Nov. 30, 1988.

William P. Homans, Jr., Boston, for defendant.

David R. Marks, Asst. Dist. Atty., for Com.

Before GRANT, CUTTER and KASS, JJ.

CUTTER, Justice.

On request, made on November 4, 1985, by the general counsel of the Cambridge Rent Control Board (the rent control board), a criminal complaint was issued out of a District Court against Kapsalis. This complaint (as later amended) charged that he "did willfully remove a controlled rental unit from the market without a removal permit in violation of ... [St.1976, c. 36] as amended and ordinances or regulations issued thereunder, having previously been found guilty of a like or similar violation."

The Cambridge rent control program is complex. The issues in the present case require consideration of at least one special statute, a Cambridge rent control ordinance as amended, and relevant regulations of the rent control board. Those provisions which seem most significant appear in the appendix to this opinion.

On March 25, 1986, Kapsalis admitted sufficient facts to justify a finding of guilty on the complaint, and a District Court judge imposed a sentence of confinement for one year, six months suspended. An appeal was claimed to the jury session of the District Court on that day. Counsel for Kapsalis then filed on April 9, 1986, a motion to dismiss the amended complaint, which was denied by another District Court judge, who filed findings and rulings and later denied a motion for reconsideration. The case proceeded to trial before the second District judge and a jury of six. Motions for required findings of not guilty were denied. Certain requested instructions sought by Kapsalis were not given. Kapsalis was found guilty and was given a "six months committed" sentence which thus far has been stayed. He has claimed the appeal before us. It was stipulated that this was a second offense.

We affirm the conviction. The evidence is summarized in the following eight paragraphs. On that evidence, viewed most favorably to the Commonwealth, the jury could have found that Kapsalis wilfully removed one or more controlled rental units from residential use by modification of them (e.g., by removal of kitchens, thereby making them unfit for household use) without obtaining an unconditional removal permit (or permits) from the rent control board as required by that board's regulations and without pursuing the statutory method for judicial review of the board's actions.

Kapsalis owned a building (the locus) at 991 Massachusetts Avenue, Cambridge. Sixteen units above the ground floor were registered as of February 1, 1981, with the rent control board as controlled rental units. The ground floor was commercial space not subject to rent control. Each of the upper floors contained four residential units: two studio apartments, each with only one means of egress, and two three-bedroom apartments, each with two means of egress.

On November 18, 1983, Vincent Clark, a senior housing code enforcement inspector for the city, went to the locus and found numerous sanitary code violations for which he issued citations which stated, among other things, that each studio unit required a second means of egress. In a letter dated January 10, 1984, Joseph Cellucci, the city's commissioner of buildings and housing, informed Kapsalis that lack of a second means of egress rendered each studio unit unfit for human habitation. Commissioner Cellucci ordered that those apartments be vacated. By June, 1984, all eight studio units had been vacated. ¹ On December 4, 1984, the building department issued a status report that Kapsalis had made virtually no progress in correcting the existing code violations. Each studio unit still lacked a second means of egress. By that time, however, the building department (to allow the code violations to be cured) had granted Kapsalis permits (hereafter referred to as "renovation permits" to distinguish them from rent control board removal permits) to perform certain electrical, gas, and heating work, and to make structural alterations.

In the meantime, the rent control board had considered an application by Kapsalis for removal permits (see appendix, infra, for provisions of Ordinance No. 966 and the rent control board's regulations under it) to merge each studio unit into its adjacent larger unit. The board on December 10, 1984, granted the removal permits subject to certain conditions (the conditional December, 1984, removal permits), including the following: "(c) the merger of the units be accomplished only by the opening of or removal of the door between the two units, and (d) only one of two kitchens be removed." ² This record does not show that removal permits unconditionally authorizing combinations of units ever have been granted.

The then executive director of the rent control board, Mr. Roger Mervis, by letter dated January 22, 1985 (the January 22, 1985, letter), to Kapsalis's then attorney, contended that Kapsalis's renovation permit applications (and the permits issued themselves) described work that exceeded that required by applicable State codes. Mr. Mervis asserted also that much of the proposed work would prevent reasonable residential occupancy, violating the removal permit ordinance (see appendix, infra ) because Kapsalis lacked removal permits. Furthermore, Mr. Mervis warned that he would recommend that the board deny any application by Kapsalis for a "new construction" exemption (see St.1976, c. 36, appendix, infra at point [Q] ) that was based in part on the violation of the ordinance. He urged Kapsalis's then attorney and Kapsalis "to meet with our staff to resolve the issue of the scope of work at 991 Massachusetts Avenue in an amicable manner and to expedite the code-compliance process for this building."

In July, 1985, the general counsel of the rent control board visited the building and observed commercial activity being conducted in one unit. There was evidence that some of the then combined studio and larger apartments had no kitchen facilities.

During the following month, Kapsalis's then attorney, Mr. Peter Stanton, applied to the rent control board for an exemption from rent control, based on his assessment that the very substantial renovation work described by Kapsalis and the latter's architect "could possibly" qualify the rental units as "new construction." Mr. Stanton testified that, based on his observations, the work on the building was "substantially along" by August 2, 1985, the date of the application for a "new construction" exemption.

While this application for exemption was pending, the rent control board applied for this criminal complaint. That board voted on December 10, 1986, to deny the exemption. ³

Discussion

We have been referred to no appellate decision reviewing a criminal (as distinguished from a civil) proceeding under the Cambridge rent control program. The burden resting upon the Commonwealth in this criminal case was appropriately brought to the attention of the trial judge by defense requests for required findings of not guilty, by requests for jury instructions, and at bench conferences at trial, where the scope and extent of the Commonwealth's obligations of proof were discussed in the light of cases like, Mullaney v. Wilbur, 421 U.S. 684, 702-703 and n. 31, 95 S.Ct. 1881, 1891-92 and n. 31, 44 L.Ed.2d 508 (1975), and Connolly v. Commonwealth, 377 Mass. 527, 529-531, 387 N.E.2d 519 (1979). See Commonwealth v. Pauley, 368 Mass. 286, 292-299, 331 N.E.2d 901 (1975).

There have been arguments in this case about the effect of various provisions set out in the appendix to this opinion. For example, there has existed uncertainty concerning the extent of the power of the rent control board to require by regulation that a landlord, ordered by the city building authorities to remove violations of State sanitary and building codes, first obtain a removal permit from the rent control board. The testimony of Commissioner Cellucci and that of Mr. Roger Mervis differed significantly concerning the extent, if any, to which the rent control board had been given authority directly to limit (by the denial of a removal permit or otherwise) the extent of work done under a renovation permit.

In any event, during the period of time relevant in this case, Kapsalis and his counsel were confronted with conflicting official interpretations of pertinent regulatory provisions. He was being required by the city building officials to make costly renovations which would cure violations of State sanitary and building codes. At the same time he was being told in effect by the rent control board that he could not do more than the minimum renovation that would suffice to permit him to use his rent controlled premises for residential use. This would be at rental rates less than what he could receive if he made (when required in any event to incur significant expense) much more substantial improvements to the locus.

iFlynn v. Cambridge, 383 Mass. 152, 156-161, 418 N.E.2d 335 (1981), established the general constitutional validity of the very similar successor of the Cambridge ordinance discussed in that case. We must determine, however, whether the rent control regulatory provisions have been properly interpreted and applied in the circumstances underlying the criminal conviction of Kapsalis. We thus discuss particular contentions made for Kapsalis.

1. It is argued for Kapsalis that St.1976, c. 36, § 12(c ), requires that a specific allegation in the criminal complaint be made that the violation was done "willfully." Here the original complaint made specific reference to a "VIOLATION CITY ORD. CH. 36, ACTS 1976, § 12c." Section 12(c ) itself states that the offense must be committed "willfully." See appendix, i...