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 Phone:

Barriers to Federal Housing Benefits Criminal record checks required for admission Criminal record checks required for admission PHAs afforded wide discretion in formulating criminal history admission standards PHAs afforded wide discretion in formulating criminal history admission standards PHA admission standards often poorly formulated or unevenly applied PHA admission standards often poorly formulated or unevenly applied PHA admissions policies often interpreted in most restrictive way 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 ) 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 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 Grounds for disqualification commonly that criminal record occurred within “reasonable time” look-back period Grounds for disqualification commonly that criminal record occurred within “reasonable time” look-back period HUD declines to issue clear guidelines for “reasonable time” 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. 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 Look at policy in entirety Distinguish severity of offenses? Single v. multiple?

Criminal Activity Admissions Policies: Must be consistent with civil rights laws Must be consistent with civil rights laws Fair Housing Act, Section 504, ADA 24 CFR 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 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 Prior criminal behavior associated with mental illness Prior criminal behavior associated with mental illness Intervening treatment Intervening treatment No longer poses direct threat No longer poses direct threat RA requires waiver or modification of policy RA requires waiver or modification of policy Burden on housing provider to show making RA would constitute direct threat to others Burden on housing provider to show making RA would constitute direct threat to others

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

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

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

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