National Housing Law Project Housing Law Bulletin

Prompted in part by the Department of Housing and Urban Development’s "one strike policies"¹ and its own views about greater flexibility being accorded to PHAs, a housing authority in Florida last year rewrote its leases to give it much more control over the lives of its tenants. In response, two tenants who had been forced to sign the new leases brought a suit in federal court challenging nine clauses of the lease as being unlawful.²

Last month, the court preliminarily enjoined the PHA from enforcing a new lease clause that forced tenants to agree not to have any unauthorized gatherings on housing authority property.³

Background

In October 1996, the PHA’s board approved a new lease to be used by the PHA and its tenants, effective January 1, 1997. Among its various clauses were nine that the tenants who brought suit alleged to be unlawful. They were:

After various efforts to negotiate a resolution of the case, plaintiffs sought preliminary injunctive relief on four issues: (1) the prohibition against unauthorized gatherings, (2) the waiver of jury trials, (3) the use of the "one strike" lease violation notice, and (4) the provision authorizing the PHA to treat late charges and unpaid repair charges as additional rent. The court granted a preliminary injunction against the unauthorized gathering provision and denied relief on the other issues on standing grounds.

The Court’s Decision

The meat of the court’s decision was its analysis of plaintiffs’ standing to challenge the unauthorized gathering provision and plaintiffs’ likelihood of success on that claim. The PHA contended that the tenants had no standing to challenge the unauthorized gathering clause because they had not shown or alleged that the clause would be or had been enforced against them. For the court, the issue was whether the injury alleged by the tenants was real and immediate, not hypothetical or conjectural. However, it recognized that in First Amendment cases, which this was, there is sufficient injury if the defendants’ threatened action actually chills the plaintiffs’ exercise of their rights and if plaintiffs’ fear of enforcement is objectively reasonable.

Here the court found sufficient injury in the plaintiffs’ affidavits and their complaint’s allegations. Plaintiffs alleged and swore that they were forced to sign the lease in order to save their homes; that they had been informed that everyone, including residents and guests, had to be inside by 11:00 p.m.; that the PHA director had threatened to use local police to enforce the lease and had said that the staff and police were watching who entered and left the premises; that they were fearful of engaging in activities with friends, neighbors and relatives; that they did not know what they were allowed to do and what would be wrong; and that they often wanted to gather outside their units to socialize with their neighbors and friends on the streets and in the grassy areas. In the court’s view, the PHA had curtailed their activities in light of the threatened enforcement of the lease, and that reaction was objectively reasonable.

Regarding the likelihood of success on the challenge to the unauthorized gathering clause, the court concluded that plaintiffs had met their burden. The lease did not define unauthorized gatherings and that ambiguity made it likely that the clause would be void for vagueness. In addition, without a definition or other guidelines, the lease gave the PHA unfettered discretion to enforce the provision in an arbitrary manner, further chilling plaintiffs’ exercise of their associational rights. Thus, in the court’s view, there was sufficient likelihood that the clause was unconstitutional on its face.

The court also rejected arguments that an injunction would frustrate the public interest and that the balance of harm favored the PHA. The premise of these arguments was that the new lease had helped reduce crime at the projects and that enjoining it would set back that progress. The court was not deterred by that argument, recognizing that continued use of an unconstitutional clause could not be in the public interest, and enjoining enforcement of an unconstitutional clause could not be considered a harm to the PHA.

The court, however, denied, for lack of standing, preliminary injunctive relief against the jury trial waiver and the PHA’s use of the "one strike" notice. In the court’s view, because neither plaintiff had ever received a "one strike" notice and neither was currently subject to an eviction action, there was not a sufficient showing of injury resulting from these PHA policies. However, the court did allow the plaintiffs to show additional injury when moving for declaratory relief and a permanent injunction.

At this stage, the PHA has modified its lease in several respects, eliminating some of the provisions that plaintiffs have challenged. The rest of the dispute may be resolved through further negotiations or, if not, through a final judgment.

The plaintiffs are represented by Treena Kaye, at Central Florida Legal Services in Sanford, and Robert Hornstein of Southern Legal Counsel in Gainesville.

1. These policies involve the so-called "One Strike and You’re Out" approach to substance abuse and criminal activity in or near public housing. HUD Notice PIH 96-16 (Apr. 12, 1996).
2. Knight v. Sanford Hous. Auth., No. 97-1225-CIV-ORL-19B (M.D. Fla. complaint filed 1997).
3. Id. (order entered Jan. 30, 1998).