Transcript Using Fair Housing Laws and ADA to Overcome Criminal

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
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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
1) 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)
2) Two types of standards for prohibition
a) Mandatory
b) Permissive
3) Notice and administrative review rights
4) Standards subject to overarching civil rights
laws (24 CFR 5.105 and Part 8) FHA/Section
504/ADA
Mandatory Prohibitions
1) 3-year ban for prior drug-related eviction from
federally assisted housing (may be shortened
with evidence successful rehab)
2) Ban on current illegal users or pattern that
demonstrates ongoing use and threat to
others
3) Lifetime ban for conviction for
Methamphetamine manufacture in federally
assisted housing
4) Lifetime ban on sex offenders subject to
lifetime registration
Permissive Prohibitions
1) Drug related criminal activity
2) Violent criminal activity
3) Criminal activity poses threat to residents
or PHA staff
4) Establish “reasonable time” periods
during which applicant household must
not have engaged in criminal activity
5) Permissive prohibitions and “reasonable
time” look-back periods must be stated
in PHA ACOP and Section 8 Ad Plan
Reasonable Time Bans
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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:
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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
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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
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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
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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
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Administrative Plan:
Standards definable, reasonable?
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Practices:
Adhere to written policy?
Adequate notices?
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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
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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