Peabody Properties, Inc. v. Sherman

• Decision Date: 16 August 1994
• Citation: 418 Mass. 603,638 N.E.2d 906
• Parties: , 6 A.D.D. 464, 5 NDLR P 352 PEABODY PROPERTIES, INC. v. Frank SHERMAN.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 906

638 N.E.2d 906

418 Mass. 603, 6 A.D.D. 464, 5 NDLR P 352

PEABODY PROPERTIES, INC. v. Frank SHERMAN.

Supreme Judicial Court of Massachusetts Essex.

Argued March 8, 1994.

Decided Aug. 16, 1994.

Kevin G. McIntyre, Westwood (Charles S. Mancuso with him), for plaintiff.

Gary Rothberger, Jamaica Plain (James Breslauer, Lowell, with him), for defendant.

Before LIACOS, C.J., and ABRAMS, NOLAN, O'CONNOR and GREANEY, JJ.

NOLAN, Justice.

We reverse the judgment of the Housing Court for reasons set forth below.

The plaintiff (landlord) served a notice of termination of tenancy on the defendant (tenant) dated March 13, 1991, and initiated a summary process action against him on April 5, 1991, based on the tenant's alleged illegal drug activity on the premises. A judgment was entered for the landlord in the District Court and the tenant first appealed to the Superior Court and then filed a notice of transfer to the Housing Court. ¹ The case was transferred to the Housing Court resulting in an order withholding judgment for possession and continuing the case for one year subject to certain stipulations. Some months later a judgment for the tenant was entered from which the landlord appeals. We transferred the case to this court on our own motion.

We learn from the judge's findings that, in 1982, the tenant suffered a spinal cord injury which left him a quadriplegic. Since that time he has resided at the premises involved in this case which is a federally subsidized project for the elderly and handicapped. It is administered by the Massachusetts Housing Finance Agency. The tenant is subsidized through the "Section 8" rental assistance program of the United States Department of Housing and Urban Development.

On September 10, 1990, police executed a search warrant at the tenant's apartment and seized 153.6 grams of marihuana enclosed in eighteen plastic bags together with $306 in cash and assorted drug paraphernalia. The tenant was charged with possession with the intent to distribute a controlled substance. On February 15, 1991, the tenant admitted to sufficient facts to warrant a finding of guilty. He was found guilty and given a suspended sentence of six months in a house of correction. On December 13, 1990, the police again entered the tenant's apartment pursuant to a warrant and seized 6.54 grams of marihuana and a gram scale. On or about February 1, 1992, the tenant offered a marihuana cigarette to a security guard employed by the landlord. No criminal charges were brought concerning the latter two incidents.

Because of the tenant's drug activity, the landlord, on March 13, 1991, served a notice of termination on the tenant and initiated this summary process action. The judge found that, at the time of the hearing, the tenant had a marihuana dependency although he was no longer involved with illegal drugs. The judge further found that the tenant had used marihuana because of his belief that it would relieve his spasticity resulting from his spinal cord injury and that he was participating in a supervised rehabilitation program to treat his dependency.

The judge ruled that both the tenant's drug dependency and paralysis constitute "handicap[s]" under the Fair Housing Amendments Act of 1988 (Fair Housing Act), 42 U.S.C. § 3602 (1988). The judge correctly noted that, if not for the tenant's handicap status, the landlord's right to evict the tenant would be clear pursuant to the provisions of the lease agreement and G.L. c. 139, § 19 (1992 ed.). ² However, finding that the tenant was no longer involved in illegal drugs and was participating in a supervised rehabilitation program, the judge ruled that, under the Fair Housing Act, 42 U.S.C. § 3604(f), the tenant was entitled to "reasonable accommodation" and withheld possession from the landlord. For the following reasons, we reverse.

The Fair Housing Act provides that it is unlawful to discriminate, in the sale or rental of a dwelling and in other activities related thereto, against a person because of a handicap. 42 U.S.C. § 3604(f)(2). Discrimination under that statute includes the "refusal to make reasonable accommodations in rules, policies, practices, or services, when such accommodations may be necessary to afford such person equal opportunity to use and enjoy a dwelling." 42 U.S.C. § 3604(f)(3)(B). The term "handicap" is defined as "(1) a physical or mental impairment which substantially limits one or more of such person's major life activities, (2) a record of having such an impairment, or (3) being regarded as having such an impairment." 42 U.S.C. § 3602(h). However, "handicap" does not include "current, illegal use of or addiction to a controlled substance." Id.

It is clear that the tenant's paralysis constitutes a "handicap" under § 3602(h). See Pulcinella v. Ridley Township, 822 F.Supp. 204, 207-208 (E.D.Pa.1993). Further the tenant's drug dependency together with his participation in a drug rehabilitation program also constitutes a "handicap." See Edmonds v. Washington State Bldg. Code Council, 18 F.3d 802, 804 (9th Cir.1994); United States v. Southern Management Corp., 955 F.2d 914, 919 (4th Cir.1992). Thus, the landlord could not discriminate against the tenant for two reasons.

The tenant's handicap of drug dependency does not extend to his "current, illegal use of or addiction to a controlled substance," 42 U.S.C. § 3602(h), but does protect an addict who is participating in a supervised rehabilitation program and who is no longer using illegal drugs. United States v. Southern Management Corp., supra at 922. The judge concluded that the exclusion in § 3602(h) did not apply because the tenant, at the time of the hearing, was undergoing drug treatment and had ceased using illegal drugs. The landlord asserts that the judge erred in concluding that the tenant's illegal use was not "current" under § 3602(h). We agree. This case does not raise the issue of personal use of a controlled substance. This matter concerns a tenant who possessed a controlled substance with intent to distribute and offered to distribute a controlled substance to a security guard. The defendant's conduct as to these matters was "current."

The landlord brought the action for summary process approximately one month after the tenant admitted to sufficient facts to a complaint charging him with possession of 153.6 grams of marihuana with intent to distribute. An admission to sufficient facts is equivalent to a plea of guilty. ³ See Commonwealth v. Duquette, 386 Mass. 834, 841, 438 N.E.2d 334 (1982). "The defendant's guilty plea and any other admissions made during the plea-taking colloquy with the judge are admissible as evidence in the civil litigation." Aetna Casualty & Sur. Co. v. Niziolek, 395 Mass. 737, 750, 481 N.E.2d 1356 (1985). Thus, there was evidence that the tenant was engaging in the "current, illegal use" of drugs and therefore, not protected by the Fair Housing Act. See 42 U.S.C. § 3602(h)(3). "This view comports with the legislative purpose of ensuring that rehabilitated or rehabilitating individuals are not discriminated against on the basis of past substance abuse." Teahan v. Metro-North Commuter R.R., 951 F.2d 511, 518 (2d Cir.1991), cert. denied, 506 U.S. 815, 113 S.Ct. 54, 121 L.Ed.2d 24 (1992).

The landlord commenced eviction proceedings not as retroactive punishment for past substance abuse, but on the basis of a one month old conviction for possession with intent to distribute. The current use provision was "not intended to be limited to persons who use drugs on the day of, or within a matter of days or weeks before, the action in question." Id., quoting H.R. Conf.Rep. No. 596, 101st Cong., 2d Sess. 87 (1990), reprinted in 1990 U.S.C.C.A.N. 267, 596. In this case, the tenant's conviction "occurred recently enough to justify a reasonable belief that [his] drug [activity was] current." Id. Further, there is no question that the tenant's subsequent illegal activity, ⁴ just prior to the second trial, showed "current" illegal drug activity. Pursuant to the terms of the lease, the landlord had the authority to terminate the lease because of the tenant's drug activities. See Boston Hous. Auth. v. Guirola, 410 Mass. 820, 830, 575 N.E.2d 1100 (1991). See also G.L. c. 139, §§ 19, 20.

By requiring landlords to provide "reasonable accommodation," Congress intended to prohibit discrimination against individuals on the basis of a handicap. A "reasonable accommodation" is one which would not impose an undue hardship or burden on the entity making the accommodation. See Majors v. Housing Auth. of DeKalb, 652 F.2d 454, 457 (5th Cir.1981). See also United States v. Marshall, 787 F.Supp. 872, 878 (W.D.Wis.1991). "Reasonable accommodation" does not require a landlord to permit the sale of illegal drugs on his property. See 42 U.S.C. § 3607(b)(4). ⁵ Cf. Taub v. Frank, 957 F.2d 8, 11 (1st Cir.1992) (Rehabilitation Act may protect an employee who possesses heroin, but does not protect an employee who possesses heroin for distribution; "reasonable accommodation" does not mandate that an employer offer drug rehabilitation before commencing criminal investigation for distribution of illegal drugs).

It is not reasonable, as the dissent suggests, to require landlords to inspect for illegal drugs. The function of ferreting out illegal drug activity is for law enforcement personnel, not landlords. It also is not reasonable to expect the landlord to vet the tenant's personal care attendants. ⁶ Nor is it reasonable to expect the landlord to investigate every visitor. Simply put, the conditions placed on the landlord were not reasonable because they did not relate to housing matters. Rather, the conditions made the landlord responsible for non-housing matters. Reasonable accommodation by a landlord requires that a landlord reasonably accommodate a tenant's housing needs.

Judgment reversed.

O'CONNOR, Justice (concurring).

Title 42 U.S.C. § 3604(f)(2) (1988)...