The PHA must perform a criminal background check of all adult household members before admission into the HCVP program. Certain criminal acts have the effect of banning a person from receiving federal housing assistance. Registered lifetime sex offenders and persons convicted of methamphetamine manufacturing or production in federally assisted housing are permanently banned.1 If a PHA proposes to deny admission for criminal activity as shown by a criminal record, the PHA must provide a copy of the criminal record to the subject of the record and to the applicant. The PHA must give the family an opportunity to dispute the accuracy and relevance of that record in the informal review process.2 Arrests and police reports are not sufficient to meet the PHA’s burden of proving criminal activity.3
A PHA cannot grant admission to a person for 3 years following an eviction from a federally assisted housing unit for drug-related criminal activity.4 Further, the PHA must bar admission to any person whom the PHA can establish is currently engaging in illegal drug use or in alcohol abuse that may threaten the health, safety or right to peaceful enjoyment by other residents. A household member is “currently engaged in” criminal activity if the person has engaged in the behavior recently enough to justify a reasonable belief that the behavior is current.5
The 3-year ban can be lifted if the person who engaged in the criminal activity completes a PHA-approved drug treatment program or if “the circumstances leading to eviction no longer exist (for example, the criminal household member has died or is imprisoned).”6 The exceptions can be invaluable in overcoming a denial of admission. Some municipalities are turning to rehabilitative programs as part of sentences for drug use, allowing applicants to take advantage of this exception. In many cases, you will find removing the offending person from an application is an acceptable solution to allow the rest of the family a chance to secure housing.
The Housing Authority of New Orleans (HANO) has a progressive criminal background screening policy that will only automatically deny Section 8 applicants who have been convicted of production of methamphetamines in federally assisted housing or who are on the lifetime sex offender list. Other applicants may be sent through a “further review” process depending on the nature of their criminal conviction and time that has elapsed since the conviction. In the further review process, applicants can provide evidence of the facts and circumstances surrounding the conviction, evidence of good tenant and employment history, and evidence of rehabilitation and community support. No applications will be denied based on arrest alone. Southeast Louisiana Legal Services has authored a toolkit that may be useful for applicants navigating the further review process.7
- 1See 24 C.F.R. § 982.553(a)(1)(ii)(c), (a)(2)(i).
- 224 C.F.R. § 982.554.
- 3See U.S. Dep’t of Hous. & Urb. Dev., Office of General Counsel Guidance on Application of Fair Housing Act Standards to Use of Criminal Records by Providers of Housing and Real Estate-Related Transactions (Apr. 4, 2016); U.S. Pipe & Foundry Co. v. Webb, 595 F.2d 264, 270 (5th Cir. 1979) (hearsay may constitute substantial evidence in an administrative proceeding only if certain reliability factors are present); Sanders v. Sellers-Earnest, 768 F. Supp. 2d 1180, 1185–88 (M.D. Fla. 2010) (Section 8 termination based solely on police report was improper); Edgecomb v. Hous. Auth. of the Town of Vernon, 824 F. Supp. 312 (D. Conn. 1993) (Section 8 termination based solely on police report and newspaper articles was improper).
- 424 C.F.R. § 982.553(a).
- 524 C.F.R. § 982.553(a)(2)(ii)(C)(2).
- 6Id.
- 7Se. La. Legal Servs., Navigating the Criminal Background Screening Policy of the Housing Authority of New Orleans.