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

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: [email protected]


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Barriers to Federal Bars in Federally Assisted Housing 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


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Criminal Activity Admission Standards Key Requirements Bars in Federally Assisted Housing

  • 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


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Mandatory Prohibitions Bars in Federally Assisted Housing

  • 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


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Permissive Prohibitions Bars in Federally Assisted Housing

  • 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


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Reasonable Time Bans Bars in Federally Assisted Housing

  • 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?


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Criminal Activity Bars in Federally Assisted Housing 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


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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


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Citations Accommodation

  • 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


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Reasonable Accommodation to Substance Abuse Disability Accommodation

  • 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


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Breaking Down Criminal AccommodationRecord 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?


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Changing Policies Accommodation

  • 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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