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Intersection of Fair Housing Laws/ADA and Criminal Activity Bars in Federally Assisted Housing (June 2010)

Intersection of Fair Housing Laws/ADA and Criminal Activity Bars in Federally Assisted Housing (June 2010). By: Louis Prieto Managing Attorney Monroe County Legal Assistance Center Legal Assistance of Western New York, Inc. 1 W. Main Street, Suite 400 Rochester, New York 14614

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Intersection of Fair Housing Laws/ADA and Criminal Activity Bars in Federally Assisted Housing (June 2010)

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  1. Intersection of Fair Housing Laws/ADA and Criminal Activity Bars in Federally Assisted Housing(June 2010) By: Louis Prieto Managing Attorney Monroe County Legal Assistance Center Legal Assistance of Western New York, Inc. 1 W. Main Street, Suite 400 Rochester, New York 14614 Phone: 585-325-2520 Email: lprieto@lawny.org

  2. Barriers to Federal Housing Benefits • Criminal record checks required for admission • PHAs afforded wide discretion in formulating criminal history admission standards • PHA admission standards often poorly formulated or unevenly applied • PHA admissions policies often interpreted in most restrictive way

  3. Criminal Activity Admission Standards Key Requirements • Must establish standards in Public Housing Admissions and Continuing Occupancy Plan (ACOP) and in Section 8 Administrative Plan (see 24 CFR 960 Subpart B and 982.54) • Two types of standards for prohibition a) Mandatory b) Permissive • Notice and administrative review rights • Standards subject to overarching civil rights laws (24 CFR 5.105 and Part 8) FHA/Section 504/ADA

  4. Mandatory Prohibitions • 3-year ban for prior drug-related eviction from federally assisted housing (may be shortened with evidence successful rehab) • Ban on current illegal users or pattern that demonstrates ongoing use and threat to others • Lifetime ban for conviction for Methamphetamine manufacture in federally assisted housing • Lifetime ban on sex offenders subject to lifetime registration

  5. Permissive Prohibitions • Drug related criminal activity • Violent criminal activity • Criminal activity poses threat to residents or PHA staff • Establish “reasonable time” periods during which applicant household must not have engaged in criminal activity • Permissive prohibitions and “reasonable time” look-back periods must be stated in PHA ACOP and Section 8 Ad Plan

  6. Reasonable Time Bans • Grounds for disqualification commonly that criminal record occurred within “reasonable time” look-back period • HUD declines to issue clear guidelines for “reasonable time” period • However, HUD “considers” 5 years reasonable for serious crimes (Fed. Reg. vol 66, no. 101) and mandates 3 years for drug related evictions. • Look at policy in entirety Distinguish severity of offenses? Single v. multiple?

  7. Criminal Activity Admissions Policies: • Must be consistent with civil rights laws Fair Housing Act, Section 504, ADA 24 CFR 5.105 identifies requirement 24 CFR 8.3 defines disability HUD/DOJ Joint Statement gives guidance usdoj.gov/crt/housing/jointstatement_ra.htm • Must extend reasonable accommodation to all persons with disabilities as defined in civil rights laws

  8. Waiver of Criminal Activity Policies as Reasonable Accommodation to Mental Illness Disability • Prior criminal behavior associated with mental illness • Intervening treatment • No longer poses direct threat • RA requires waiver or modification of policy • Burden on housing provider to show making RA would constitute direct threat to others

  9. Citations • Roe v. Sugar Mills, 820 F. Supp. 636 • Roe v. HA of Boulder, 909 F. Supp. 814 • School Board of Nassau County, Florida v. Arline, 480 U.S. 273 • HUD DOJ Joint Statement usdoj.gov/crt/housing/jointstatement_ra,htm • Boston Housing Authority v. Bridgetwaters, 452 Mass. 833, 898 N.E.2d 848

  10. Reasonable Accommodation to Substance Abuse Disability • Recovered (or recovering) substance abusers in protected class • Persons with Drug Trafficking convictions or current users ineligible • Criminal behavior linked to prior illegal use; typically possession, prostitution, petite larceny • Evidence of recovery and cessation of criminal activity • Request for waiver of criminal history admission policy as reasonable accommodation • Request can be made at anytime during admission process or after denial of admission

  11. Breaking Down CriminalRecord Barriers • Administrative Plan: Standards definable, reasonable? • Practices: Adhere to written policy? Adequate notices? • Conformity with Civil Rights Laws: Provisions for accommodating mental illness and recovery from substance abuse? Waivers being granted as reasonable accommodation to behavioral disabilities?

  12. Changing Policies • Partner with drug treatment, disability rights and re-entry communities • Use public comment opportunity to advocate Ad Plan changes • Approach litigation cautiously Strong and compelling record Affirmative lawsuit Federal v. State Court

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