Tina Stringer, Relator,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2016).

STATE OF MINNESOTA
IN COURT OF APPEALS
A17-0939

Tina Stringer,
Relator,

vs.

Public Housing Agency of the City of Saint Paul,
Respondent.

Filed April 9, 2018
Affirmed
Kirk, Judge

St. Paul Public Housing Agency

Lisa Hollingsworth, Southern Minnesota Regional Legal Services, Inc., St. Paul,
Minnesota (for relator)

Lyndsey M. Olson, St. Paul City Attorney, Sean D. Whatley, Assistant City Attorney, St.
Paul, Minnesota (for respondent)

Considered and decided by Johnson, Presiding Judge; Kirk, Judge; and Klaphake,
Judge.
U N P U B L I S H E D O P I N I O N
KIRK, Judge
Relator appeals the St. Paul Public Housing Authority’s (PHA) termination of her
Section 8 Housing Choice Voucher Program (Section 8) housing assistance, arguing that

 Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.

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(1) there was insufficient evidence of drug related criminal activity by her son and
household member , (2) her son’s 2009 possession conviction did not occur within a
“reasonable time” to support termination of relator’s housing assistance in 2016, and
(3) the termination hearing officer failed to conduct a sincere inquiry into the mitigating
circumstances. We affirm.
FACTS
Relator Tina Stringer became a Section 8 housing assistance participant in 1999.
Relator’s son was added to her household and became a participant in 2008. On October
26, 2009, relator’s son was arrested and charged with marijuana possession following a
traffic stop. On October 28, r elator’s son pleaded guilty to misdemeanor possession of
more than 1.4 grams of marijuana in a motor vehicle in violation of Minn. Stat. § 152.027,
subd. 3 (2008). After son’s 2009 conviction, relator and her son signed annual
certifications denying any drug related criminal activity by a ny household member and
affirming that the information they provided was true or accurate and complete.
In 2016, the PHA conducted a random criminal background search and discovered
son’s 2009 conviction. On September 26, 2016, the PHA issued a notice of termination
for relator’s Section 8 housing assistance based on violations of the family obligations and
voucher agreement, namely relator’s and her son’s failure to supply true and correct
information for several years in their annual certifications , and son’s 2009 drug related
criminal conviction. Relator requested a hearing, and a hearing was held before a PHA
hearing officer on April 19, 2017.

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Relator appeared with an advocate at the hearing. A representative from the PHA
and the Section 8 p rogram manager also appeared ; relator’s s on did not appear. The
hearing officer heard statements from relator, her advocate, the PHA representative, and
the Section 8 manager and some of the mitigating circumstances were discussed . The
hearing officer also received and reviewed copies of the applicable federal regulations, as
well as the PHA’s Admissions and Occupancy Policies (AOP), relator’s Section 8 voucher,
relator’s family obligations certifications, and relator’s and her son’s annual certifications.
The hearing officer found that relator and her son failed to follow the Section 8
program rules based on the length of time that the son’s drug-related activity was not
reported. The hearing officer concluded that the PHA’s termination of relator’s housing
assistance was authorized by the law and, given the extremely high demand for Section 8
housing assistance, affirmed the PHA’s decision. Thereafter, the PHA denied relator’s
request for reconsideration, and relator petitioned for a writ of certiorari to this court, which
we granted.
This appeal follows.
D E C I S I O N
“We will uphold a housing authority’s quasi-judicial decision to terminate a
participant’s housing benefits unless we conclude th at the authority ’s decision is
‘unconstitutional, outside the agency ’s jurisdiction, procedurally defective, based on an
erroneous legal theory, unsupported by substantial evidence, or arbitrary and capricious.’”
Peterson v. Washington Cty. Hous. & Redev . Auth., 805 N.W.2d 558, 561 (Minn. App.
2011) (quoting Carter v. Olmsted Cty. Hous. & Redev. Auth., 574 N.W.2d 725, 729 (Minn.

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App. 1998)), review denied (Minn. Oct. 26, 2011) .1 We review an agency’s findings to
determine if they support the decision, but we do not “retry the facts or make credibility
determinations.” Senior v. City of Edina , 547 N.W.2d 411, 416 (Minn. App. 1996). An
“agency’s conclusions are not arbitrary and capricious so long as a rational connection [is
articulated] between the facts found and the choice made. ” In re Review of 2005 Annual
Automatic Adjustment of Charges, 768 N.W.2d 112, 120 (Minn. 2009) (quotation omitted).
A public housing authority may terminate a participant’s Section 8 housing
assistance if a family member violates the program’s family obligations, as enumerated in
24 C.F.R. § 982.551 (2016). 24 C.F.R. § 982.552(c)(1)(i) (2016). A “family” includes a
person or persons “approved to reside in a unit with [Section 8] assistance.” 24 C.F.R.
§ 982.4(b) (2016). In relevant part, the family obligations require that a family supply “true
and complete” information to the public housing authority as requested and as necessary
to recertif y eligibility, and prohibit drug related criminal activity by a ny household
member. 24 C.F.R. § 982.551(b), (l).
24 C.F.R. § 5.100 (2016) and the PHA’s AOP further define “drug-related criminal
activity” as “the illegal manufacture, sale, distribution, or use of a drug, o r the possession
of a drug with intent to manufacture, sell, distribute or use the drug.” A public housing

1 The PHA’s proposed standard of review cites to Minn. Stat. § 14.69 (2016), which is part
of the Minnesota Administrative Procedure Act (MAPA), Minn. Stat. §§ 14.001 -14.69
(2016). The PHA does not have statewide j urisdiction, and the record is insufficient to
determine if the city of Saint Paul has otherwise elected to apply MAPA to its agency
decisions. See State by Archabal v. County of Hennepin, 495 N.W.2d 416, 420-21 (Minn.
1993) (analyzing the applicability o f MAPA ). However, MAPA’s “scope of review is
similar to the common law scope of review on certiorari . . . , [and] the same standard
applies regardless of [MAPA’s] applicability.” Staeheli v. City of St. Paul , 732 N.W.2d
298, 304 n.1 (Minn. App. 2007).

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authority must develop standards to terminate Section 8 assistance if a household member
fails to abstain from drug related criminal activity. 24 C.F.R. § 982.553(b)(1)(iii) (2016).
The PHA’s AOP, relator’s Section 8 voucher, and relator’s family obligations and annual
certifications reference the same federal regulations as noted above and include nearly
identical family obligations and grounds for termination.
I. The record and law support the hearing officer’s order affirming the PHA’s
termination of relator’s Section 8 housing assistance based on her son’s failure
to provide true and complete information.

The PHA’s first ground for terminating relator’s Section 8 housing assistance was
the family’s failure to supply true and complete information regarding relator’s son’s arrest
and conviction. The hearing officer acknowledged this ground in affirming the PHA’s
decision. Relator acknowledges her son’s conviction, but challenges the termination of her
housing assistance on this basis . The PHA argues that there is substantial evidence to
support termination on this basis and that relator is responsible for violations committed
by her household members, regardless of her personal knowledge.
At the termination hearing, and i n the subsequent written decision, the hearing
officer found that relator signed a Section 8 voucher in 2011, which was renewed annually,
and signed multiple self and family obligations certifications from 2010 to 2016, in which
she affirmed that neither she nor any household member had ever been arrested, charged,
or convicted of drug related criminal activity . By signing th ose documents, relator
acknowledged the family obligation to abstain from drug related criminal activity and the
obligation to supply true and complete information to the PHA as requested or required .

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Those documents also informed relator that failure to provide true and complete
information to the PHA was a ground for termination.
The hearing officer found that relator and her son completed false certifications for
several years. In the hearing officer’s hearing summary, he noted that relator’s and her
son’s false certifications constituted “separate, serious violation s of [relator]’s Section 8
voucher agreement, the family obligations certificate, and federal regulations.” At the
termination hearing, relator explained that she was not aware of her son’s conviction when
she signed the certifications, that she would have reported it and removed him from the
household if she had been aware , and that when she found out she did remove him. The
hearing officer accepted relator’s explanation as true. The hearing officer also found that
relator’s son “eventually left the household,” but said in his statement of the proceedings
that relator did not immediately notify the PHA.
There is sufficient evidence in the record to support the hearing officer’s finding
that relator was unaware of her son’s conviction when she signed the certifications, and we
defer to his credibility determination. See City of Edina , 547 N.W.2d at 416. However,
this does not affect the hearing officer ’s finding that relator’s son also signed false
certifications for several years. That finding is also supported by the record.
The record shows that from 2009 to 2015 relator’s son signed Section 8 self-
certifications in which he affirmed that his responses were true or accurate and complete.
The 2010 and 2011 certifications that relator’s son signed asked if he had “ever been
charged, arrested for, or convicted of any crimi nal activity related to the use . . . of a
controlled substance (illegal drugs).” Relator’s son responded “no.” In 2012, possession

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was added to this question, and from 2012 to 2015, relator’s son was asked if he had “ever
been arrested for, charged with , or convicted of any criminal activity related to illegal
drugs: the possession [or] use . . . of a controlled substance,” to which relator’s son again
responded “no.”
The question’s plain language asked about any criminal activity related to the
possession of illegal drugs ever. It does not explicitly refer to “drug-related criminal
activity” as defined under the federal code and the AOP , or specifically ask about
possession with an “intent to use .” The undisputed record shows that relator’s son was
convicted of possession of marijuana in a motor vehi cle in 2009, and that he denied any
such conviction when he signed his annual self -certifications. T he hearing officer’s
decision to affirm the PHA’s termination for relator’s son’s undisputed failure to provide
true and complete information is supported by the record and the law. See 24 C.F.R.
§§ 982.551(b), .552(c)(1)(i).
However, relator maintains that her son’s failure to disclose his 2009 simple-
possession conviction does not provide the PHA with an indefinite basis to terminat e her
Section 8 housing assistance. Relator argues that there is a temporal limit on the family
obligation to provide true and complete information. Relator relies on the 2016 self -
certification form included in the record that requires participants to disclose a n illegal-
drug possession conviction in the last five years, as well as a provision in the AOP limiting
termination for illegal controlled-substance use to within a reasonable time.
The record does not show that the hearing officer was asked to reach this issue
below. Generally, “litigants are bound [on appeal] by the theory or theories, however

8
erroneous or improvident, upon which the action was actually tried below.” Annis v. Annis, 250 Minn. 256, 263, 84 N.W.2d 256, 261 (1957). Fu rther, a lthough relator generally
argued that her son’s conviction was stale, in her princip al appellate brief, she did not
substantively a rgue that there are temporal limits on the obligation to give true and
complete information until her appellate reply brief. Issues not raised or argued in an
appellant’s principal brief on appeal generally cannot be raised in the reply brief.
Moorhead Econ. Dev. Auth. v. Anda, 789 N.W.2d 860, 887 (Minn. 2010).
Even if we elected to consider relator’s staleness argument, we would conclude that
it is without merit. The federal code does not provide a temporal limit on the underlying
activity that can justify a participant’s termination of Section 8 housing assistance , as it
does for a participant’s admission to the program . See 24 C.F.R. § 982.553(a)(1)(i),
(a)(2)(ii) (2016) (providing that an applicant’s admission to the Section 8 housing program
may be prohibited if the applicant has been evicted for, or engaged in, drug related criminal
activity within a cert ain time period before applying for housing assistance ). Further,
relator’s son’s false certifications about his 2009 conviction predate the 2016 questionnaire
that added the five-year temporal limit on termination for past illegal drug use. Relator’s
son’s conviction is only beyond the five -year lookback now because he concealed it for
years, in violation of his obligation to provide true and complete information.
II. We decline to reach the merits of r elator’s drug related criminal activity
arguments.
The PHA’s alternative basis for terminating relator’s housing assistance was her
son’s conviction for drug related criminal activity. In affirming the PHA’s decision on this
separate ground, the hearing officer made general references to portions of 24 C .F.R.

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§§ 982.551-.553 (2016) in affirming the PHA’s conclusion that relator’s son’s conviction
was a violation of the family obligation to abstain from drug related criminal activity.
Relator argues that the PHA did not establish her son’s “intent to use” the marijuana
that he possessed, as required to meet the definition of “drug -related criminal activity”
under 24 C.F.R. § 5.100 and the AOP. Relator also argues that the only evidence of her
son’s intent to use is found within the arresting officer’s po lice report, which is hearsay .
Because we have concluded that the record and the law support the hearing officer’s
findings and his decision to affirm the PHA’s termination of relator’s Section 8 housing
assistance based on her son’s failure to provide true and complete information , we need
not determine whether her son’s conviction met the definition of “drug-related criminal
activity” under the code and the AOP so as to provide an alternate ground to affirm the
PHA’s termination.
III. The record shows that the hearing officer’s conclusions regarding mitigating
circumstances were not arbitrary and capricious.
Finally, relator argues that the hearing officer failed to sincerely consider the
mitigating circumstances in this case before affirming the PHA’s termination decision.
In determining whether to deny or terminate assistance because
of action or failure to act by members of the family . . . [t]he
PHA may consider all relevant circumstances such as the
seriousness of the case, the extent of participation or
culpability of individual family members, mitigating
circumstances related to the disability of a family member, and
the effects of denial or termination of assistance on other
family members who were not involved in the action or failure.

24 C.F.R. § 982.552(c)(2)(i) (2016).

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The plain language of code section 982.552(c)(2)(i) makes the hearing officer’s
consideration of mitigating circumstances permissive. We have previously held that “a
hearing officer is not required to consider mitigating factors . . . when deciding whether a
relator’s violation of a reporting rule is a terminable offense.” Peterson, 805 N.W.2d at
564. Here, relator argues that because the hearing officer elected to consider mitigating
circumstances he had an obligation to do so thoughtfully and sincerely. Relator contends
that the hearing officer failed to analyze the seriousness of her case, her alleged disability,
or the culpability of, or effects of termination on, her other family members. Relator also
argues that she receives SSI and MFIP and that she was trying to obtain custody of her
granddaughter.
The hearing officer indicated in his statement of the proceedings that Section 8
hearings are taken “very seriously” and that he considered the testimony and arguments of
relator and her advocate, the PHA, and the Section 8 manager in reaching his decision. The
hearing officer also noted that he gave relator multiple opportunities to raise further points
at the hearing, but that relator did not do so.
The record shows that the hearing officer weighed several mitigating circumstances
that he deemed relevant to his decision, as discussed in his written decision, and expanded
upon in his statement of the proceedings. Although the hearing officer did not ma ke
findings on each mitigating factor listed in code section 982.552(c)(2)(i), he was not
required to do so. The hearing officer emphasized the high demand for Section 8 housing
assistance and the eight-year waiting list for other families before concludi ng that the

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mitigating circumstances presented by relator did not counter-balance the family’s failure
to follow the Section 8 program rules.
Our role on appeal is not to replace the PHA hearing officer’s findings with our own
independent review of the mitigating circumstances. “If there is room for two opinions on
a matter, the . . . decision is not arbitrary and capricious, even though the court may believe
that an erroneous decision was reached.” In re Review of 2005 Annual Automatic
Adjustment, 768 N.W.2d at 120 . Our review of the record shows that the hearing officer
elected to and did sufficiently consider mitigating circumstances before reaching his
decision. Although the circumstances of relator’s case are unfortunate, the federal code,
the PHA’s policies and procedures, and the record support the hearing officer’s findings,
as well as his decision to affirm the PHA’s termination of relator’s Section 8 housing
assistance. The hearing officer’s decision was not arbitrary or capricious.
Affirmed.