"Working to
Build A Better Community"
"The
probability that we may fail in the struggle ought not deter us from the
support of a cause we believe to be just."
~ Abraham Lincoln
EX-OFFENDER HOUSING DISCRIMINATION
THE BIG PICTURE: REALITY IN THE U.S.
THE REALITY IN MASSACHUSETTS
THE LAW IN MASSACHUSETTS
Types of Housing and CORI
Admissions and Appeals
Application
of the Law
COMMUNITY RESOURCES IN
MASSACHUSETTS
PROGRAMS IN OTHER
STATES
Public Housing Admissions and
Appeals
▼
CRIMINAL HISTORY AND THE PUBLIC HOUSING ADMISSIONS PROCESS /
▼STEPS
IN THE HOUSING ADMISSIONS PROCESS /
▼HOUSING
APPEALS PROCESS
/ GLOSSARY
Sections below illustrate 1) state and federal regulations that specify admissions procedures and screening requirements for criminal background checks, and 2) state and federal regulations that specify the appeals process for applicants that are denied housing because of a criminal record.
Criminal History and the public Housing Admissions process
The
Role of Public Housing Authorities (PHAs)
In
simple terms, two sets of regulations exist regarding the application
process for public housing. Which regulations apply depends on whether
the source of funding for the housing assistance comes from the federal
or state government. In both situations, most public housing assistance
is administered by PHAs (which again, are called LHAs on the state level).
In Massachusetts, 237 PHAs across the state manage 90,000 units.
Some communities have their own PHAs, some communities share PHAs, and
other smaller communities do not have a PHA at all.
 |
|
Milton Housing Authority |
After a PHA has verified that a family is eligible for housing based on its income, citizenship or immigration status and other factors, the PHA is authorized and usually mandated to check the criminal background of applicants as a measure meant to ensure that they will be good tenants and suitable for the program. Some criminal offenses can mean automatic denial while others are used by PHAs to determine an applicant’s suitability in light of mitigating factors.
Below is a description of the federal and state laws and regulations that apply to the admissions process for public housing programs.
Federal Law and
Regulations for Federal Public Housing
Federal law
authorizes HUD to promulgate regulations that allow PHAs to reject
applicants and evict tenants for specific reasons including criminal
activities. The PHA is also required to ensure that criminal activity
during the public housing tenancy that threatens the health, safety, or right to peaceful enjoyment of the premises
by other tenants or any drug-related criminal activity shall result in a
termination of tenancy.
The law also gives PHAs the authority to require, as a condition of providing admission to a federally funded public housing program, that the applicant authorize the PHA to obtain his or her criminal records. More specifically, PHAs are authorized to obtain information from the National Crime Information Center, police departments, and other law enforcement agencies upon request regarding the criminal conviction records of adult applicants and tenants for purposes of applicant screening, lease enforcement, and eviction.
HUD regulations specify tenant selection criteria that PHAs must apply if they are using federally funded housing assistance. The selection discretion given to PHAs is intended to address their need to maintain program integrity in the face of a large demand for assisted housing by families. In the screening process PHAs thus aim to ensure that future tenants will adhere to the responsibilities of their leases. In essence, HUD gives PHAs discretion to screen out applicants who are more likely to break tenant occupancy rules and be a danger to other tenants in the program.
Criminal History for which a PHA may Deny Admission; Considerations
that Should Be Applied.
HUD regulations state that the PHA “is responsible for screening family
behavior and suitability for tenancy.” Beyond the mandatory grounds
for denial based on criminal activity below, the PHA
may, but is not required to, deny an applicant for:
- Records of
disturbance of neighbors, destruction of property, or living or
housekeeping habits at prior residences which may adversely affect the
health, safety or welfare of other tenants;
- A history of criminal activity involving crimes of physical violence to persons or property and other criminal acts which would adversely affect the health, safety or welfare of other tenants. The PHA may require the applicant to exclude a household member as a criterion for admission to the program.
In the event that a
criminal history is detected, the PHA must consider the time, nature, and
extent of the applicant’s conduct (including the seriousness of the
offense). The PHA is required to judge factors that might indicate a
reasonable probability of favorable future conduct. For example, the PHA
must consider the applicant’s participation or willingness to participate in
social service or other appropriate counseling service programs, as well as
the availability of such programs.
Criminal Activity or Substance Abuse Activity for which a PHA Must Deny
Admission.
Federal regulations
are even stricter regarding the admission of tenants with a history of drug
abuse or drug-related crimes. PHAs must deny admission to public housing if:
§ The applicant was ever evicted for drug-related criminal activity from a federally funded housing assistance program some time within the last three years (a PHA is free to establish a mandatory bar for a longer period, so long as it is a reasonable period). There are exceptions to the mandatory bar, however, if the PHA determines that the individual successfully completed a supervised drug rehabilitation program or if the circumstances for the eviction no longer exist, i.e. the offending person was a member of a household whose members have since died or been imprisoned.
§ The applicant is currently using illegal drugs.
§ The applicant was convicted of methamphetamine (speed) production within a federally funded public housing unit. This applicant would be permanently banned from re-entry into the main federal housing assistance program.
§ The applicant is a sex offender subject to a life-time registration requirement. This applicant is permanently banned from federally funded housing assistance programs.
§ The applicant shows a pattern of alcohol abuse. The fact that an applicant is an alcoholic is not by itself a sufficient basis for denial; there must be a showing that the applicant's behavior is likely to have an adverse impact on the health, safety, or peaceful enjoyment of the premises by other residents.
 |
|
Multi-family housing, Boston |
State
Law and Regulations for State-Assisted Public Housing
Massachusetts state law sets out a set of criteria for PHAs to use in
screening applicants for admission to state funded public housing. These
are similar but not identical to those which HUD has for federal public
housing. The law requires that the Department of Housing and Community
Development (DHCD) adopt regulations addressing a variety of disqualifying
factors. These statutory factors appear in the exact same form in
DHCD regulations. The Code of Massachusetts Regulations states:
- The applicant or a household
member has disturbed a neighbor or neighbors in a prior residence by
behavior which, if repeated by a tenant in public housing, would substantially
interfere with the rights of other tenants to peaceful enjoyment of
their units or the rights of LHA employees to a safe and secure workplace;
- The applicant or a household member has caused
damage or destruction to property at a prior residence, and such damage
or destruction of property, if repeated by a tenant in public housing,
would have a material adverse effect on the housing development or any
unit in such development;
- The applicant or a household member has displayed
living habits or poor housekeeping at a prior residence, and such living
habits or poor housekeeping, if repeated by a tenant in public housing,
would substantially interfere with the rights of other tenants to peaceful
enjoyment of their units or the rights of LHA employees to a safe and
secure workplace;
- The applicant or household member in the past
has engaged in criminal activity in violation of [Massachusetts General
Law c. 151B, ' 4], which if repeated by a tenant in public housing,
would interfere with or threaten the rights of other tenants or LHA
employees to be secure in their persons or in their property or with
the rights of other tenants to the peaceful enjoyment of their units
and the common areas of the housing development [This antidiscrimination
law protects the exercise of tenancy rights from coercion, intimidation,
threats and interference];
- The applicant or household member has misrepresented
or falsified any information required to be submitted as part of the
applicant’s application, or a prior application within three years,
and the applicant fails to establish that the misrepresentation or falsification
was unintentional;
- The applicant or household member has directed
abusive or threatening behavior, which was unreasonable and unwarranted,
towards an LHA employee during the application process or any prior
application process within three years;
- The applicant or a household member is a current
illegal user of one or more controlled substances as defined in M.G.L.
c. 94C, '1.
Mitigating Factors. For each of the above factors, the PHA is required to permit the applicant to show mitigating factors (such as rehabilitation) that would demonstrate that the applicant would not engage in similar behavior in the future. In considering these mitigating factors, the Massachusetts Code of Regulations states that the PHA must consider:
- The applicant or a household
member has disturbed a neighbor or neighbors in a prior residence by
behavior which, if repeated by a tenant in public housing, would substantially
interfere with the rights of other tenants to peaceful enjoyment of
their units or the rights of LHA employees to a safe and secure workplace;
- The applicant or a household member has caused
damage or destruction to property at a prior residence, and such damage
or destruction of property, if repeated by a tenant in public housing,
would have a material adverse effect on the housing development or any
unit in such development;
- The applicant or a household member has displayed
living habits or poor housekeeping at a prior residence, and such living
habits or poor housekeeping, if repeated by a tenant in public housing,
would substantially interfere with the rights of other tenants to peaceful
enjoyment of their units or the rights of LHA employees to a safe and
secure workplace;
- The applicant or household member in the past
has engaged in criminal activity in violation of [Massachusetts General
Law c. 151B, ' 4], which if repeated by a tenant in public housing,
would interfere with or threaten the rights of other tenants or LHA
employees to be secure in their persons or in their property or with
the rights of other tenants to the peaceful enjoyment of their units
and the common areas of the housing development [This antidiscrimination
law protects the exercise of tenancy rights from coercion, intimidation,
threats and interference];
- The applicant or household member has misrepresented
or falsified any information required to be submitted as part of the
applicant’s application, or a prior application within three years,
and the applicant fails to establish that the misrepresentation or falsification
was unintentional;
- The applicant or household member has directed
abusive or threatening behavior, which was unreasonable and unwarranted,
towards an LHA employee during the application process or any prior
application process within three years;
- The applicant or a household member is a current illegal user of one or more controlled substances as defined in M.G.L. c. 94C, '1.
It should be noted that these state criteria are
different than those in federal housing, and do not have three-year or
permanent bars on admission for applicants with certain sorts of histories.
Instead, for state public housing, it is always a judgment call, with
the PHA having to weigh both the negative information and any mitigating
circumstances in determining whether to admit an applicant.
Mechanics
of the PHA's CORI
After an applicant reaches the top of its waiting list, the PHA is required
to do a CORI criminal background check on the applicant to establish his
or her suitability as a tenant. After the applicant authorizes the
PHA to do a criminal background check, the PHA contacts the CHSB, which
manages the CORI database, to receive a CORI report regarding the applicant’s
criminal record. The CHSB has its CORI request system online, making
turn around time for a request as short as 48 hours.
Sometimes a PHA will not immediately deny an applicant for CORI, but will give the applicant an opportunity to explain why, notwithstanding the CORI, he or she should be admitted. This is particularly true where the CORI is old or is an open record or default warrant that has been unresolved. It may also be that the applicant raised issues about a disability (for example, the applicant is a former drug addict who is in recovery) and there may be a nexus to the disability and the CORI, such that it would not be reasonable to deny the applicant who is in rehabilitation.
The admissions requirements above apply to both publicly owned affordable housing and to the state’s analogues of the federal Section 8 tenant-based voucher program, the AHVP and the MRVP. Both of these state voucher programs, however, will no longer be funded by the state after July 1, 2004. Upon termination, the state has instructed PHAs to enter participants in these programs into the Section 8 tenant-based voucher waiting lists.
Application of the Federal
Admissions Regulations
If a PHA operates publicly owned public housing, it applies the preceding
admissions rules when filling those units. Under federal Section
8 project- and tenant-based housing programs, private landlords typically
own the affordable housing units and different procedures apply.|
Tenant-Based Vouchers. The
tenant-based voucher program gives a tenant a coupon he or she can use
to subsidize the rent of a unit on the private market anywhere within
Massachusetts. In the tenant-based program, federal law specifies
that the owner is chiefly responsible for the screening and selection
of families who will occupy those units. The PHA may elect to assist
the private owner in screening applicants for the program in accordance
with HUD requirements. By law, a PHA may also elect not to enter
into a subsidy payment contract with a private owner if it is convinced
that the owner has a history of allowing tenants to engage in behavior
that threatens the peaceful enjoyment of the property by other tenants,
including drug-related or criminal activity.
These legal requirements appear in HUD’s regulations, stipulating that the PHA is not liable for tenant screening, but that it may elect to screen applicants in accordance with its Administrative Plan. In practice, the PHAs interviewed did in fact do a screening process for tenant suitability and had suitability requirements in their Section 8 Administrative Plans. More information on these requirements can be found in the steps in the housing application process section below.
Project-based Vouchers. Federal law establishes that HUD can uphold preference criteria and use them to select tenants for units in its project-based Section 8 program. These criteria are to be consistent with PHA Administrative Plans. Like the tenant-based program, HUD regulations state that owners are responsible for the screening and selection of tenants. The owner must adopt written tenant selection procedures that are consistent with the purpose of improving housing opportunities for all low-income families, and reasonably related to program eligibility and an applicant’s ability to perform lease obligations.
Private landlords who receive project-based funding assistance may request a PHA in the relevant jurisdiction to do a criminal record check for an applicant to its housing program. The PHA may not make criminal record information directly available to the owner, but shall perform determinations regarding screening, lease enforcement, and eviction on behalf of the owner based on the criminal record and other information provided by the owner.
Private landowners with subsidized units can also receive special certification to directly access CORI reports through the CHSB. Massachusetts law allows agencies to obtain access if they convince the CHSB that the public interest in disseminating such information clearly outweighs the interest in security and privacy. The CHSB makes its decision to certify individuals to access CORI reports based on a two-thirds majority vote. Barry LaCroix, Executive Director of the CHSB, verified that the board gives special certification to private landlords that have Section 8 subsidized units, thus making it unnecessary for them to channel CORI checks through the PHA.
Private landlords who do not receive public subsidies to maintain affordable units are currently not allowed to access the CORI reports. Although such landlords are theoretically allowed to receive special certification to access CORI records, LaCroix states that the CHSB has never found the public interest for CORI access for these type of private landlords to outweigh the private interests of the ex-offender. The Board has discussed the possibility of approving certification for a landlord that lives in the same building as the prospective tenant, but such a case has not yet been presented to the board.
Privately Held Subsidized Housing. The Massachusetts Housing Finance Agency (MHFA), also called MassHousing, is Massachusetts’ quasi-public bank that makes low-interest loans to private developers in exchange for a promise to keep a set amount of units in a new development affordable for a certain number of years.
State law requires that the MHFA approve a Tenant Selection Plan submitted by a private developer before a low interest loan can be made. The MHFA is authorized to publish regulations to govern the terms of tenant selection plans. Private landlords can directly rent low-income units to tenants, but must adhere to the same screening requirements specified by federal and state regulations. The particular set of regulations that applies is determined by the source of the funding.
MHFA's Tenant Selection Regulations specify that in federally funded developments, owners must comply with federal law and HUD admissions regulations. In other state funded developments, owners must follow MHFA’s regulation criteria, which mirror those contained in state regulations governing tenant selection for state funded public housing.
In order to execute the screening process required by MHFA Tenant Selection Regulations, private landlords who receive federal or state subsidies for units, may access CORI records. MHFA’s regulations state that the private landlord may obtain a CORI report to screen an applicant in compliance with state regulations. Those regulations specify the criteria for access to and use of CORI reports by PHAs, which are not allowed to distribute CORI reports to unauthorized persons including private landlords. Again, private landlords who receive state funding for affordable units can request a local PHA to do a CORI check on their behalf.
As mentioned above, private landowners with subsidized units can also receive special certification to directly access CORI reports through the CHSB. Barry LaCroix, Executive Director of the CHSB, verified that the Board gives special certification to private landlords who control state or federally subsidized units. This makes it unnecessary for these private landlords to do CORI checks through PHAs.
 |
|
Otis Street, Cambridge |
Steps In the
HOUSING ADMISSIONS Process
Below is a timeline of the
admissions process for public housing allocated through PHAs. Although
the steps below are generally followed by all Massachusetts PHAs, they are
specifically derived from the Milton Housing Authority’s October, 2001
Section 8 Administrative Plan. The document is adapted from a
template provided by HUD to PHAs.
The application process for state funded housing is virtually identical to that which is outlined below with two exceptions. First, applicants to state funded housing submit just one application for assistance without the pre-application. Secondly, the outlined factors for denial of an application would reflect the standards laid out in Massachusetts law and regulations. To review these standards click here.
Basic Application Procedure for Public Housing
1) The application process is two-phased. In the first phase, the applicant submits a pre-application and an emergency housing need application, if applicable. All pre-applicants are placed on a wait list. The applicant is given a control number for each application and an estimate of the time to expect to have to wait before being moved off of the wait list.
2) The second phase includes a determination of eligibility based on a full application. For example, when a family appears to be within two months of being offered assistance, the family will be invited to an interview and the verification process will begin. The applicant at this point must provide his or her family status, income eligibility, citizenship or eligible immigrant status, social security number documentation, and sign consent forms for the PHA to do a criminal background check. Criminal background checks are done either through CORI, if the applicant has lived in Massachusetts for the last three years, or if the applicant lived in another state, through law enforcement agencies in those states or through the FBI’s National Crime Information Center.
3) Based on its research, the PHA can deny assistance to applicants for a variety of reasons including the following applicant characteristics:
§ A history of criminal activity by any household member involving crimes of physical violence against persons or property, and any other criminal activity including drug-related criminal activity that would adversely affect the health, safety, or well being of other tenants or housing authority staff, or cause damage to the property;
§ A family member who was evicted from public housing within the last three years;
§ A history including fraud, bribery, or any other corruption in connection with any federal housing assistance program including the intentional misrepresentation of information related to a housing application or benefits derived therefrom;
§ A family member who was evicted from assisted housing within five years of the projected date of admission because of drug-related criminal activity involving the illegal manufacture, sale, distribution, or possession with the intent to manufacture, sell, distribute a controlled substance as defined in Section 102 of the Controlled Substances Act, 21 U.S.C. 802;
§ A family member who is illegally using a controlled substance or abuses alcohol in a way that may interfere with the health, safety, or right to peaceful enjoyment of the premises by other residents. The PHA may waive this requirement if:
i.
The applicant demonstrates to
the PHA’s satisfaction that the person is no
longer engaging in drug-related criminal activity
or abuse of alcohol;
ii.
The person has successfully
completed a supervised drug or alcohol
rehabilitation program;
iii.
The person has otherwise been
rehabilitated successfully; or
iv. The
person is participating in a supervised drug or alcohol rehabilitation
program.
§ The applicant has engaged in or threatened abusive or violent behavior towards any PHA staff or residents;
§ The applicant has a family member who has been convicted of manufacturing or producing methamphetamine (speed) (denied for life);
§ The applicant has a family member with a lifetime registration under a state sex offender registration program (denied for life).
4) If the PHA finds from its criminal background check evidence of any of the above factors, it will deny the applicant admission to the program. However, in the letter of denial, the applicant will be notified that he or she can request an informal review within 10 days to demonstrate mitigating factors that might convince the PHA that he or she and his or her family members have reformed themselves enough to be good tenants.
5) This informal review is conducted by designated persons other than those who made the PHA’s decision to deny the application. The applicant is given an opportunity to present written or oral objections to the PHA’s decision. The PHA will notify the applicant of its decision regarding the informal review within 14 days. It will send the applicant a brief statement of the reasoning for its final decision.
§ In making its decision, the PHA must consider all of the circumstances in each case, including the seriousness of the case, the extent of participation or culpability or individual family members, and the effects of denial or termination of assistance on family members who were not involved in the action.
§ The PHA may permit the family to have housing with the exclusion of the one family member who has a criminal record.
6) Procedural aspects of the informal hearings are outlined in the PHA’s Administrative Plan. If the applicant feels that the final determination of the PHA is unfair, the applicant must pursue his or her case by way of the state and Federal court system.
HOUSING
APPEALS PROCESS
Although the PHA or private
landlord may deny ex-offenders’ initial applications for placement, various
appeals processes exist for applicants who wish try to overturn denials.
In order to increase the chances of a favorable appeals decision, an applicant needs to be knowledgeable about the reasons that he or she was denied housing, his or her rights to receive proper notice regarding the PHA and/or private landlord’s decisions, and the proper appeals procedure for the specific type of housing that the applicant is seeking.
Because PHAs and private landlords do not provide legal services to applicants and most applicants cannot afford to obtain private legal counsel, it is imperative that all applicants become familiar with all available ways to gain administrative re-evaluation of a rejected application. Also, applicants need to be aware that there are varied appeals processes for each respective type of low-income housing including the following links:
§ Section 8 Tenant-Based Section 8
§ Section 8 Project-Based Section
§ Massachusetts Housing and Finance Agency (MHFA) Housing.
 |
|
Town Houses, Weymouth |
To Prepare for any Appeals Process, an Applicant Should:
Know why
the PHA/Private Owner denied an application…
1.
First, in order to appeal a PHA’s/Private landlord’s rejection of an application,
an applicant must ascertain the reason(s) why his or her application was
rejected. Administrative error by the applicant is one of the most common
reasons why an application for housing may be denied in the initial stages
of the application process. As a result, the PHA/Private landlord
may have withdrawn the application from the waiting list. Perhaps
the applicant failed to respond to an update notice, show up for an interview,
submit necessary supplementary documents, or missed an important filing
deadline. An individual whose application was denied because of
any of the former reasons should appeal the decision and, if the waiting
list is still open, he or she should simultaneously re-apply.
2. Second, the PHA/Private landlord may have denied the applicant because he or she did not meet the requirements for the specific priority status that she or he requested. In these cases the PHA/Private landlord may never have placed the applicant on a waiting list; or the applicant may have been placed on the waiting list as a standard applicant, or on a list pertaining to a different applicant category. Once the applicant determines the reason that his or her application was denied, he or she may either provide documentation to verify his or her qualification for priority status, or he or she may reapply for a different waiting list based on a different priority status.
3. Finally, the PHA/Private landlord may have denied an application because they consider the applicant unsuitable for the specified program. This is the most difficult classification to challenge, given the imbalance of power and perceived credibility between the PHA/Private landlord and the applicant. Again, once the applicant discovers the reason(s) that he or she has been deemed ineligible, he or she may initiate the appropriate appeals process for the type of housing that the individual is seeking.
Know that applicants
have the right to receive proper notice…
All applicants should be aware that PHA’s/Private landlords are required
to send a notice to each applicant detailing the reasons why he or she
has either been approved or denied housing within a reasonable amount
of time after the decision has been made. Accordingly, all denial notices
should include a contact person and a specific time period during which
the applicant may appeal an adverse decision.
Know
how to initiate the appeal…
After receiving notice of a housing denial, the applicant needs to submit
a letter to the contact person, (keeping a copy in his or her own records)
requesting a review of the decision within the time period specified in
the notice. The applicant also needs to decide whether he or she
should re-apply to the same waiting list, or submit a request to be included
on a different priority list while his or her appeal is being reviewed.
Know what to
bring to the hearing…
After the applicant receives a hearing date, he or she needs to assemble
the following materials to support his or her appeal:
-
The original notice sent to the applicant from the PHA/Private landlord detailing the reason(s) that the applicant was denied housing placement;
-
Any regulations that are pertinent to the PHA’s/Private landlord’s decision (federal and/or state);
-
The PHA’s/Private landlord’s policy book -- specifically, the policies that are pertinent to the decision;
-
Any documents that may refute the PHA’s/Private landlord’s reasons for denial;
-
Any witnesses who may testify on the applicant’s behalf.
Know what to
do if the hearing officer denies the application…
After an informal hearing, the applicant
should receive another notice that expresses the reason for the hearing
officer’s decision.
If the outcome of the hearing is unfavorable to the applicant, he or she
may file another appeal to a Massachusetts housing or superior court of
law, wherein the applicant should seek legal counsel.
For suggestions about how to
access legal counsel,
click here.
Know the appeals
process for the particular type of housing sought…
There are varying appeals procedures for federal and state public housing,
Tenant-Based Section 8, HUD Multi-Family, and MHFA Housing applicants.
An applicant therefore needs to identify the program from which he or
she is seeking housing and then determine the necessary steps for petitioning
an adverse decision as specified by that authority.
Federal
Public Housing
An
applicant who was denied housing in a Federal program, should take the
following steps: