COMMONWEALTH OF MASSACHUSETTS
DEPARTMENT OF MENTAL HEALTH
IN RE:
DECISION
This decision is issued pursuant to M.G.L.c. 38 Section 308 and 30A, and the
regulations promulgated thereunder. A hearing was held in the above-entitled matter
on October 24, 1996, at the Cambridge-Somerville Area Office of the Department of
Mental Health. William Buckley, Program Director of Vinfen, represented the
residential service provider. Neither the occupant, nor anyone on his behalf,
appeared at the hearing. The evidence consists of documents marked C-1 through C33 submitted by Vinfen, and approximately 11/2 hours of recorded oral testimony.
ISSUE
Whether Vinfen's proposed eviction 1111111 from its Pinckney St. residence
is proper under M.G.L. c. 38 Section 308?
FINDINGS OF FACT
After careful consideration of all the evidence presented at the hearing, making
appropriate determinations of relevance, weight, and credibility, and, given the
occupant's absence from the proceedings, viewing the evidence in the light most
favorable to the occupant, I make the following findings of fact:
1.
Vinfen is a corporation which provides residential care and services to clients of
the Department of Mental Health. The Department of Mental Health funds and
licenses these programs. Vinfen operates a residence on Pinckney St. in which
has participated since September, 1995. (Testimony of Buckley)
2. There is no written agreement bewteenglill and Vinfen concerning the
conditions of occupancy attaching toll's participation in the Pinckney St.
residence. (Buckley)
3. The Pinckney St. residence is a "high intensity program" designed to serve
people with severe mental illness and substance abuse problems. The residence
houses ten clients and has two staff people on duty at all times. To promote
normalization there are few house rules. One rule is that smoking is permitted only in
a public room. No smoking is permitted in occupant bedrooms. This rule is a
condition of licensure by the Department of Mental Health. (Buckley)
Mr. Buckley, Program Director of Vinfen, testified that was advised of
the no-smoking rule on numerous occasions.
continued to smoke tobacco,
marijuana, and crack cocaine in his bedroom despite warnings that it violated house
rules, endangered the other occupants, and despite his expressed assent to conform to
the rules. (Buckley) Documents also show that
was advised of the nosmoking rule, and agreed to abide by it, at least by February 23, 1996. (C-5, 27)
Thereafter, residence progress notes indicate thatilinviolated the no- smoking
rule on at least six occasions. (C-7, 28, 9 29, 11, 12, 14, 15, 30, 24) The residence
staff monitoredialliat fifteen minute intervals, but this level of supervision failed
to prventall from smoking in his bedroom. (C-9, 13,14,17) Mr. Buckley stated
thatffiacontin
*
continued
smoking in his bedroom represented a real and significant
threat to the safety and security of the other occupants of the Pinckney St.
residence. In particular, Mr. Buckley pointed outilliwas frequently impaired by
substance abuse when he was smoking, and therefore presented an increased risk of
carelessness or falling asleep. I credit the testimony of Mr. Buckley.
MI
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. •
4. agi
was advised of a house rule limiting the number of overnight visitors to
two per week by February 23, 1996. He agreed to abide by the overnight guest rule.
(C-5, 27) Thereafter he violated the overnight guest rule on at least three occasions
On at least one occasion, several of the guests staying with were minor
females. (C-7,10,31) Mr. Buckley testified that the identity, number, and intoxicated
condition of the visitors toillits room represented a threat to the safety and
security of the other occupants of the Pinckney St. residence. I credit Mr. Buckley's
testimony.
5. Mr. Buckley testified that.. did not regularly participate in a day 3
treatment program liggi was not interested in addressing his substance abuse
issues...I was advised on numerous occasions that illegal substances were not
permitted in the Pinckney St. residence. By at least February 23, 1996,111111
agreed to abide by the rule bantling illegal substances from the Pinckney St.
was found to have
residence. (C-27, 5) On at least three occasions thereafter. illegal substances in his bedroom. (C-7, 9, 29, 14, 15,30) Mr. Buckley testified that
s continued use of illegal substances presented a grave threat to the safety
and security of the other occupants of the Pinckney St. residence. I credit the
testimony of Mr. Buckley.
Mil
6. On September 19,1996, Mr. Buckley met with/nand his counselor, Mr.
Murphy to discussalli's continuing violation of house rules designed to protect the
security of the occupants of the Pinckney St. residence...I was advised that
Vinfen would begin eviction proceedings if there were further violation of house rules
or grossly inappropriate conduct. (C-22, Buckley)
7. On October 2, 1996,41.1 exposed himself to female staff and also admitted
drug use. The staff felt threatened and requested additional male staff to be on duty
to handle's inappropriate conduct. (C-23, 33; Buckley) On October 7, 1996,
gm violated the no-smoking rule. (C-24)
8. Mr. Buckley made the decision to evict 'wafter the October 2nd incident
involving staff. It was his belief that's continued substance abuse, repeated
violations of house rules, and escalating inappropriate behavior, presented grave
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threats to the safety and security of occupants and staff at the Pinckney St.
residence. He noted that intense supervision by staff had not eliminated or prevented
111111's dangerous behaviors. Mr. Buckley testified that additional staff would
the next
increase the security of the house, but that one-to-one "shadowing" of
step up in staffing, would be unreasonable for a client in a community placement
According to Mr. Buckley, clients in community residences are expected to conform to
reasonable community standards for behavior and if they cannot, then community
placement is inappropriate. I credit the testimony of Mr. Buckley.
9. Mr. Buckley met with/III on October 10,1996, to advise him that Vinfen
was beginning proceedings to evict him On the evening of October 10,199611111
was given a formal Notice of Eviction (C-1) and a letter from Mr. Buckley outlining
the reasons for the eviction. (C-2) Mr. Buckley also notified the Department of
Mental Health of the proposed eviction by telefax on October 10,1996. The
Department of Mental Health scheduled the hearing for October 24,1996. Mr.
Buckley received notice of the hearing on October 22,1996. According to Mr. Buckley,
likely received notice of the hearing on October 22, 1996, as well. It is Mr.
Buckley's understanding thatillilmet with an advocate or attorney on October
23, 1996, regarding the notice. (Buckley)
CONCLUSIONS OF LAW
This is the first decision to be issued under the Community Residence Tenancy
Law, M.G.L. c. 38 Section 308. The law is designed to protect occupants of certain
community residences funded by the Department of Mental Health from arbitrary
evictions. It establishes a procedural due process system inwhich the provider of
residential services must justify any proposed eviction. Grounds for eviction are
limited. The provider must demonstrate either :
1) that the occupant substantially violated an essential provision of a written
agreement containing the conditions of occupancy; or
2) that the occupant, in spite of reasonable accomodation, is likely to impair the
emotional and physical well-being of other occupants of the residence, of program
staff, or of neighbors.
The provider must issue a written notice of the proposed eviction to the occupant
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The notice must advise the occupant of the grounds for the proposed eviction, and of
the facts and sources of the facts in suppport of the grounds cited. The notice must
also advise the occupant of the right to an administrative hearing to challenge the
proposed eviction. The hearing must be held within ten days of the notice of eviction.
In the instant matter there is no dispute that the provider of residential
services, Vinfen, and the occupant,11111 are subject to the terms of the
Community Residence Tenancy Law. The issue at hearing is whether Vinfen has
proved by a preponderance of the evidence facts supporting one of the permitted
grounds for the eviction ofillalfrom the Pinckney St. residence. Alter careful
consideration of all the evidence in the record, I find that Vinfen has carried its burden
proper under M.G.L.c. 38
of proof. Therefore, the proposed eviction of Section 308. My reasoning follows:
While there is no written occupancy agreement between.. and Vinfen,
Vinfen established at the hearing that understood and agreed to abide by
certain house rules designed to protect the safety and security of all the occupants at
Ilte Pinckney St. residence. I find that the house rules concerning smoking, overnight
guests, and possession of illegal substances, are reasonable and tailored to the
asserted purpose. Vinfen produced documents showing that over the course of at
least six month,IIIII continually violated the house rules. Vinfen increased staff
supervision °MELD fifteen minute checks. This high intensity monitoring failed to
prevent ongoing violations of house rules by1111111 Mr. Buckley testified that more
intensive staff supervision is inappropriate for a community residence. I credit his
testimony and, there being no contrary evidence in the record, I find that Vinfen made
reasonable accomodations to
. which were designed to assist him to conform his
behavior to standards expected of occupants of community residences. Despite the
accomodations put into place by Vinfen,1111111 continued to demonstrate behavior
which endangered other occupants and threatened staff. This historical evidence
supports Mr. Buckley's conclusion that the continued occupancy of
at
Pinckney St. is likely to impair the emotional or physical well-being of other
occupants and staff. Therefore I am persuaded that substantial evidence in the
record supports the propriety of the proposed eviction. (See Para. 3,4,5,7,8)
I further find, there being no contrary evidence in the record, that Vinfen
complied withthe procedural requirements of the Community Residence Tenancy
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Law by issuing proper notice of the proposed eviction toillIllalong with a letter of
explanation setting out the relevant supporting facts. (C-1,2) Vinfen notified the
Department of Mental Health of the proposed eviction in a timely fashion, and the
Department of Mental Health arranged the hearing within the time limits prescribed
by the law.
ORDER
The proposed eviction ofiim from the Pinkney St. residence is confirmed.
APPEAL
Any party aggrieved by this decision may appeal to Superior Court pursuant to
M.G.L. c.30A Section 14.
Ckkihr-...2.1414.1.(P
Date
Lindsay Byrne
Hearing Officer
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