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

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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]

barriers to federal housing benefits
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
criminal activity admission standards key requirements
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
mandatory prohibitions
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
permissive prohibitions
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
reasonable time bans
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?

criminal activity admissions policies
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
waiver of criminal activity policies as reasonable accommodation to mental illness disability
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
citations
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
reasonable accommodation to substance abuse disability
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
breaking down criminal record barriers
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?

changing policies
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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