Information For Public Housing Attorneys

On May 30th 1996, the Office of General Counsel sponsored a seminar on PHA Transformation: Legal Challenges. This conference was intended to provide information on the Secretary's One Strike Policy and other public housing initiative to attorneys representing public housing authorities and others interested in these areas of public housing law.

At that conference certain questions were raised concerning legal issues related to the One Strike and You're Out Policy for public housing tenants. Since those questions may be of interest to the broader PHA legal community, we are providing the responses.



Interpreting what constitutes sufficient proximity to the public housing developments for purposes of eviction actions based on drug-related criminal activity.

James E. Brown, Esq.
Akron, Ohio 44307-6330

Dear Mr. Brown:

This is in reply to the question you raised at the Office of the General Counsel's conference "Public Housing Transformation -- The Legal Challenges" on May 30, 1996. For purposes of eviction actions for drug-related criminal activity "on or near" the premises, you had asked for assistance in interpreting what constitutes sufficient proximity to the public housing development.

You correctly noted that no published decisions construe the term "near" in this context. However, in an effort to assist you, my office conducted extensive research into the legislative history of the Anti-Drug Abuse Act of 1988 and other anti-crime initiatives in public housing. This research uncovered some information that may prove helpful.

Representative Wylie, from Ohio, first proposed strengthening public housing authorities' (PHAs) lease provisions during debate on the Omnibus Drug Initiative Act of 1988 (H.R. 5210). (134 Cong. Rec. H7074 (daily ed. Sept. 7, 1988)). In his remarks, Mr. Wylie described the terror that drug dealers inflict upon public housing tenants, and he resolved to give PHAs and tenants more power to fight crime in public housing. The House membership swiftly adopted section 5101 of the bill, which mandated that PHAs utilize leases which provide that any "drug-related criminal activity on or near the premises" engaged in by any tenant, household member, guest, or other person under the tenant's control is grounds for eviction. (134 Cong. Rec. H11108 (daily ed. Oct. 21, 1988)). The Omnibus Drug Initiative Act was signed into law as the Anti-Drug Abuse Act of 1988 on November 18, 1988.

After a few months of experience with the new law, Representative Dreier of California introduced the Public Housing Tenants Protection Act of 1989 (H.R. 1870). Mr. Dreier sought to speed the eviction process for public housing tenants who sell or distribute drugs. The bill would have broadened the definition of cause for termination of tenancy to include drug-related criminal activity "at any place." As Mr. Dreier noted, "the problem is that, presently, drug dealers cannot be evicted from public housing so long as they are not engaged in illegal drug-related activity on or near the premises. For example, if a drug dealer living in a Washington, D.C. public housing project is arrested and convicted of a drug-related offense in Northern Virginia, Washington, D.C. housing authorities cannot evict him for that crime." (135 Cong. Rec. H1184 (daily ed. Apr. 13, 1989)). Although this bill never made it to the Senate floor, it attracted a large number of supporters and demonstrates a growing awareness of the behavior of drug dealers and an increasing interest in putting a stop to it.

In 1994, during debate on the Housing and Community Development Act of 1994, Representative Moran of Virginia remarked that he supported an expansion of the grounds for eviction to any activity (not just criminal activity) that threatens the health, safety, or right to peaceful enjoyment of public housing employees as well as residents. Mr. Moran stated "I wish we could address it [drug dealing in public housing] to a greater extent. I would hope that perhaps we could expand it to include publicly assisted housing, and also drop the language that restricts the application only to property that is on or near the premises, because drug dealers will find what those geographic boundaries are and then simply move across the street and deal drugs." (140 Cong. Rec. H6017, H6098 (daily ed. July 21, 1994)).

These statements and legislative initiatives demonstrate an enhanced understanding of the immense problems posed by drug-dealing in public housing, and a willingness to expand the scope of legislation to address the growing threat. Although it was not until passage of the Housing Opportunity Extension Act of 1996 (Extension Act) that the grounds for termination of tenancy were expanded from "on or near" to "on or off" the premises, one could argue that this change is the culmination of years of Congressional intent to close an often exploited legislative loophole.

For insight into subsequent legislative history, you may wish to examine Representative Moran's extension of remarks accompanying his introduction of an amendment to H.R. 2406, the United States Housing Act of 1996, extending "One Strike and You're Out"p rovisions to assisted housing. (142 Cong. Rec. E704 (daily ed. May 2, 1996)).

We appreciate the limitations on the use of legislative history as a means of statutory interpretation. Of course, courts frequently defer to administrative interpretation of agency-specific statutory directives. The conforming rule for the Section 8 certificate and voucher programs elaborates on the term "on or near [the] premises." Resort to the Section 8 regulations in this instance is appropriate because both the public housing and Section 8 programs are administered by PHAs and are bound by the same statutory directive: drug-related criminal activity "on or near such premises" is grounds for termination of tenancy. (See section 6(l)(5) of the United States Housing Act of 1937 (1937 Act) immediately before amendment by the Extension Act, and section 8(d)(1)(B)(iii) of the 1937 Act).

In the preamble to the conforming rule, discussing the meaning of "on or near" the premises, HUD noted that various commentators suggested that the rule should cover crime in adjoining public streets, alleys, or other public right of ways. The Department opined that such activity would be considered "near" the premises for purposes of the rule. While the statute limits the scope of PHAs' authority to "near" the premises, the preamble notes that behavior that amounts to a serious or repeated lease violation or is otherwise "other good cause" for eviction is actionable regardless of where the criminal activity takes place. (See 60 Fed. Reg. 34660, 34673 (July 3, 1995)).

We hope that you find this information useful for the case that you are currently trying. Thank you for your interest in the One Strike policy.

Sincerely,


Robert S. Kenison
Associate General Counsel
Office of Assisted Housing
and Community Development


New York cases that are distinguishable from facts related to One Strike efforts.

Richard G. Della Ratta, Esq.
Schenectady, New York 12305

Dear Mr. Della Ratta:

This is in reply to your inquiry that you raised with me at the Office of the General Counsel's conference "Public Housing Transformation -- The Legal Challenges" on May 30, 1996. You advanced concerns about three cases that may hinder the "One Strike and You're Out" (One Strike) policy in New York public housing. After carefully reviewing the cases in question and undertaking additional research, I conclude that these cases are distinguishable and do not impede One Strike efforts.

In general, the cases you provided discuss the degree of danger or course of conduct a landlord must establish before a tenant may be evicted for creating a nuisance. In Pamac Realty v. Bush, 420 N.Y.S.2d 614, 615-16 (N.Y. Civ. Ct. 1979), the court held that a single incident of disruptive behavior does not constitute a nuisance absent evidence of an ongoing threat to others. The condition of alcoholism, likewise, was held not to constitute sufficient evidence of a course of conduct amounting to a nuisance. Id. at 615. The court in 177 East 90th Street Co. v. Niemela, 453 N.Y.S.2d 567, 568 (N.Y. Civ. Ct. 1982), ruled that a tenant who had started two fires in two separate incidents established a sufficient course of conduct which justified the landlord's action to evict. Finally, in Kaufman v. Hammer, 268 N.Y.S.2d 80, 82 (N.Y. Civ. Ct. 1966), the court determined that a landlord was justified in seeking to evict a tenant who failed to control his minor child or put a stop to the minor's persistent and continuous misconduct.

The One Strike policy in public housing, in contrast, focuses upon activities that threaten the health, safety or right to peaceful enjoyment of the premises by other tenants. Section 6(l) of the United States Housing Act of 1937 (1937 Act), as amended by the Housing Opportunity Program Extension Act of 1996 (Extension Act), requires PHAs to utilize leases that provide that "any criminal activity that threatens the health, safety, or right to peaceful enjoyment of the premises by other tenants, or any drug-related criminal activity on or off of the premises, engaged in by a public housing tenant, any member of the tenant's household, or any guest or other person under the tenant's control, shall be cause for termination of tenancy." Additionally, section 16 of the 1937 Act, as amended by the Extension Act, further provides that other grounds for termination of tenancy include (1) illegal use of a controlled substance, or (2) illegal use of a controlled substance or abuse of alcohol that the PHA determines interferes with the health, safety, or right to peaceful enjoyment of the premises by other residents.

The key to a successful One Strike policy is to clearly and affirmatively articulate in the lease the PHA's zero tolerance for such illegal and abusive activity. The Department of Housing and Urban Development (HUD) recommends that all adult members of the tenant's household be briefed about the lease requirements, the PHA's expectations of tenant and guest conduct, and the consequences of a lease violation. A thorough educational program helps ensure that the household has adequate notice of the lease provisions.

In turn, if a lease violation should occur, the PHA need only invoke the contractual lease terms as grounds for an eviction action. Strengthening lease language and requiring tenants to abide by the terms avoids the pitfalls of nuisance actions and eliminates the need to establish a course of conduct in order to justify eviction on that basis. By utilizing an adequate One Strike lease clause, the PHA need only prove that a single violation occurred to meet its burden in court.

Because the number of public housing units far exceeds the demand for those units, HUD considers a tough but straight-forward One Strike approach necessary to ensure that only law abiding tenants have access to this limited resource. Nevertheless, HUD acknowledges that humanitarian considerations play a part in any One Strike policy. For instance, the Extension Act, which amended section 16 of the 1937 Act, grants PHAs the latitude to consider whether a tenant is participating in or has completed a supervised drug or alcohol rehabilitation program, or is otherwise rehabilitated. PHAs may consider rehabilitation efforts when deciding whether to pursue an eviction action. However, PHAs should strive to implement and carry out their One Strike policies in a fair and uniform manner. Thus, similar lease infractions should be merit similar sanctions.

I hope that you find this information helpful, and thank you for your interest in the One Strike policy.

Sincerely,


Robert S. Kenison
Associate General Counsel
Assisted Housing and
Community Development


Preemption of Rhode Island law for matters involving drug-related
or violent criminal activity.

Mr. Charles S. Sokoloff, Esq.
Woonsocket, RI 02895

Dear Mr. Sokoloff:

Thank you for your June 3, 1996, letter requesting advice regarding Federal preemption of Rhode Island State law concerning nonjudicial grievance hearings in matters involving drug-related or violent criminal activity. Please excuse any delay in our response.

Section 6(k) of the United States Housing Act of 1937 (the 1937 Act) provides that each public housing agency (PHA) receiving assistance under the Act establish and implement an administrative grievance procedure. The 1937 Act further provides that:

For any agency grievance an eviction or termination of tenancy that involves any activity that threatens the health, safety, or right to peaceful enjoyment of the premises of other tenants or employees of the public housing agency or any drug-related criminal activity on or off such premises, the agency may (A) establish an expedited grievance procedure . . . or (B) exclude from its grievance procedure any such grievance, in any jurisdiction which requires that prior to eviction a tenant be given a hearing in court which the Secretary determines provides the basic elements of due process.

Section 6(k) is implemented by regulation at 24 CFR Part 966.

In January 1992, the Department issued a Due Process Determination for the State of Rhode Island, permitting Rhode Island PHAs to exclude from their grievance procedures all evictions brought under Chapter 18 or Title 34 of the Rhode Island General Laws based on drug-related criminal activity. You are concerned that the use of this more expeditious method is undermined by section 45-25-18.7 of the Rhode Island General Laws which mandates a hearing by the Board of Tenant Affairs under certain circumstances. Specifically, section 45-25-18.7 provides tha t:

  1. The tenant or applicant affected shall have a right to a hearing and review by the board where a determination is made by the project management or by the housing authority:
    (A) That an applicant shall be denied admission to public housing; (B) That a tenant's right of use and occupation shall thereafter be terminated; or (C) That any obligation of a tenant shall be increased or otherwise altered;

  2. The tenant or applicant shall be given written notice of any determination affecting his or her status, and the written reasons therefor, and notice of his or her right to a hearing . . .

  3. the tenant or applicant shall be entitled to a fair hearing.

You request that the Federal Government either by legislation, or by regulation, make it clear that 42 U.S.C. 1437d and 24 C.F.R. 966 supersede and preempt State law in each State in which there has been a due process determination.

Generally, Federal law may preempt the enforcement of a State or local law if: (1) the Federal statute expressly preempts State or local law: (2) the Federal statute does not contain a express preemption provision, but it is clear that the Congress intended to preempt by occupying an entire field of regulation, and has thereby left no room for the State to supplement Federal law; or (3) compliance with both Federal law and State law is impossible or State law stands as an obstacle to the accomplishment and execution of the full purposes and objectives of the Congress. Under the third test, Federal preemption must reflect a reasonable accommodation of conflicting policies that were committed to the agency's care by statute. (See Capital Cities Cable, Inc. v. Crisp, 467 U.S. 691, 699 (1984).)

The first test does not apply because section 6 of the 1937 Act does not expressly preempt State or local law. The second test also does not apply. While section 6(k) explicitly requires housing authorities to establish and implement grievance procedures, there is no clear indication of Congressional intent to preempt by occupying the entire field of regulation of landlord/tenant and eviction law. Section 6(k) concerns only a housing authority's role in eviction or termination of tenancy proceedings and leaves room for the possibility of State and local law to supplement Federal law. There is nothing under section 6(k) which precludes the implementation of a State or local law requiring an administrative procedure, such as that required by section 45-25-18.7, separate and apart from that required by Federal law.

Finally, there is the claim for Federal preemption based on the third test. Any claim based on the third test would require the Department to determine that compliance with section 6(k), and implementing regulations at 24 CFR Part 966, and with State and local law is impossible, or that State or local law stands as an obstacle to the accomplishment and execution of the full purposes and objectives of section 6(k)(A) and (B) and 24 CFR Part 966. One purpose of section 6(k) is the guarantee to public housing tenants of an impartial hearing prior to a PHA's undertaking to evict or terminate their tenancy. The requirement under State or local law for an administrative hearing, separate and apart from that required by Federal law, does not necessarily conflict with or present an obstacle to the accomplishment and execution of section 6(k). Rather than conflicting with Federal law, the State or local law may prove to be duplicative of Federal law.

Another purpose of section 6(k), more specifically, section 6(k)(A) and (B), is to expedite those PHA proceedings where the underlying action is based on the tenant's involvement in any activity that threatens the health, safety, or right to peaceful enjoyment of the premises of other tenants or employees of the public housing agency or any drug-related criminal activity on or off such premises. Such proceedings are expedited by removing the Federal requirement for a grievance hearing or by allowing housing authorities to develop expedited grievance procedures. Arguably a State or local law requiring an administrative hearing, after the need for compliance with Federal grievance procedures has been eliminated by the issuance of a due process determination frustrates the purpose of section 6(k)(A) and (B) by adding more procedures, and consequently time, to the eviction of a tenant.

However, we believe that the purpose of a due process determination is not to relieve the housing authority of complying with State or local laws which may add time to its eviction process. Rather, the purpose of a due process determination is to relieve HAs of the burden of complying with the Federal requirements regarding grievance procedures. It should be noted that the issuance of a due process determination does not require that a housing authority eliminate its grievance hearing in those proceedings specified in section 6(k)(A) and (B); rather HAs may either implement expedited proceedings, eliminate the grievance procedures in such circumstances or, in fact, do nothing (i.e., continue to provide for a full grievance procedure). It should also be noted that where a State requirement, such as section 45-25-18.7, exists, a housing authority may want to amend its grievance procedures such that they comply with both Federal and State law. Finally, it should be recognized that Part 966 does not limit a housing authority's ability to develop procedures which adhere to existing State procedures while meeting Federal requirements. It may be, that upon further review, your housing authority may find that compliance with section 45-25-18.7 is also in compliance with Federal requirements under section 6(k) and Part 966.

I hope the information provided is helpful. Thank you for your interest in the Department's programs.

Sincerely,


Robert S. Kenison
Associate General Counsel
Office of Assisted Housing
and Community Development


Minority Business Enterprise, solicitations for legal services,
and random drug testing of maintenance employees.

Mr. Martin Verp
Wayne, NJ 07470

Dear Mr. Verp:

This is in reply to your questions raised at the Office of the General Counsel's Conference "Public Housing Transformation -The Legal Challenges" on May 30, 1996. Please excuse any delay in our response. Specifically, you raised three issues.

First, you asked that we provide you with a copy of the Executive Order defining "minority contractors." To the best of our knowledge there is no Executive Order which defines the term "minority contractors." However, we believe your reference is to Executive Order 11625 entitled "Prescribing Additional Arrangements for Developing and Coordinating a National Program for Minority Business Enterprise." A copy of Executive Order 11625, which defines the term "minority business enterprise" is enclosed.

You asked that we "explain why solicitations for legal services are for only one year" and how you can ascertain the procedure for obtaining approvals for contracts for two or more years. We assume that your question is prompted by section 315 of the Annual Contributions Contract (HUD-53011). Section 315 provided that:

"The Local Authority shall not enter into, execute, or approve any agreement or contract for personal, management, legal or other services with any person or firm where the initial period or term of the contract is in excess of two (2) years or where the contract contains a renewal provision for any service of time, without prior written consent of the Government."

There has never been a requirement that solicitations for legal services be only for one year. However, in accordance with section 315, a housing authority could not enter into or execute a contract, of two years or more, for legal services without the prior written consent of the Department. The inclusion of section 315 was deemed, prior to the advent of Part 85,1 to be necessary to ensure that contracts were obtained by Housing Authorities on a competitive basis. Two years was determined to be a reasonable term for a contract. Section 315 was removed when the ACC was revised this past year. While the removal of section 315 means that there is no longer a prescribed period of time for the life of a contract, contracts are subject to Part 85 and thus the Housing Authority continues to be obligated to ensure that services, including legal services, are obtained on a competitive basis.

Finally, you ask what is the Department's viewpoint regarding random drug testing of maintenance employees servicing senior and family sites. You further ask that we provide you with copies of cases and other pertinent information. There are no Federal laws or prohibitions against drug testing housing authority employees. It is generally a matter of State and local law. For examples of how various authorities across the country have implemented drug testing policies we suggest that you obtain a copy of an April 1991 Departmental publication: "Together We Can Meet the Challenge" from HUD's Drug Information and Strategy Clearinghouse. The Clearinghouse may be contacted at 1-800-578-3472. The Clearinghouse may also have other publications or documents which will be helpful to you.

I hope the information provided is helpful.

Sincerely,


Robert S. Kenison
Associate General Counsel
Assisted Housing and
Community Development

1 Part 85 is the Department's implementation of a government-wide rule which establishes uniform administrative rules for Federal grants and cooperative agreements and subawards to State, local and Indian tribal governments. For purposes of Part 85, a local government includes a public or Indian housing authority.

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