National Housing Law Project Housing Law Bulletin

Update on “One Strike and You’re Out”:
HUD Issues Notice Implementing the Extension Act

The Notice explains the changes in the statute, which relate mainly to screening of applicants for public housing and Section 8, evicting public housing tenants and terminating Section 8 subsidies for drug-related criminal activity and alcohol abuse, revising public housing leases and grievance procedures, and using criminal records for screening and eviction purposes. In the process of explaining the changes, HUD's Notice raises some new issues about what the law requires and allows. It also fails to explain as clearly as it might some limitations on PHA options that the law imposes.

Eligibility for Public Housing and Section 8 Assistance

The statute makes four categories of people ineligible for public housing and Section 8 assistance:

1. Tenants who have been evicted within the previous three years from housing assisted under the United States Housing Act;
2. People who are illegally using drugs;
3. People whose illegal use or pattern of illegal use of drugs may interfere with other tenants' health, safety or peaceful enjoyment of the premises; and
4. People whose abuse or pattern of abuse of alcohol may interfere with other tenants' health, safety or peaceful enjoyment of the premises.

In addition, the statute makes exceptions for cases in which:

1. An evicted person successfully completes a rehabilitation program;
2. The circumstances leading to the eviction no longer exist; or
3. The person is no longer illegally using drugs or abusing alcohol and is participating in or has successfully completed a rehabilitation program or has otherwise been rehabilitated successfully.⁴

The HUD Notice explains these grounds for rejecting applicants and the statutory exceptions, clarifying some issues but raising some new questions as well. As a general matter, the Notice explains that the PHAs must amend their Section 8 administrative plans and establish standards, policies and procedures to implement these changes, instead of acting on an ad hoc basis. For public housing, the Notice reinforces the basic standard that PHAs are supposed to be looking at past conduct to predict future conduct and, in particular looking at the applicant's recent behavior to see whether there would be future noncompliance with the lease. The Notice also is helpful in explaining that these statutory changes do not eliminate rejected public housing applicants' rights to informal hearings.

Fact-based determinations. Nonetheless, the Notice could have been more explicit about the PHA's obligation to make screening judgments that are grounded in fact, not mere speculation. That is especially true when the PHA is making the statutorily required determination whether it has reasonable cause to believe that an applicant's pattern of illegal drug use or alcohol abuse may interfere with other tenants' rights. That statutory language could lead to situations where some PHAs reject applicants when there is the slightest suggestion of past alcohol abuse or drug use, without carefully examining all the relevant facts. The general language in the Notice about using recent past conduct as an indicator of future lease violations is not specific enough to prevent arbitrary rejections. PHAs should be informed that they should not be rejecting applicants on the basis of guesses and speculation about future conduct not grounded in relevant facts.

Exceptions for previously evicted tenants. The Notice covers the PHA's responsibility regarding the exception to ineligibility in a fashion that appears inconsistent with the statute. Under the statute, tenants who have been evicted by reason of drug-related criminal activity are made ineligible for three years, unless they successfully complete a rehabilitation program approved by the PHA.⁵ A literal reading of the statute would mean that previously evicted tenants who have successfully completed a PHA-approved rehabilitation program are eligible and that the PHA would not have discretion to reject them on the ground of their previous eviction. The Notice, however, states that a PHA "may" waive the three-year disqualification for applicants who have successfully completed an approved program, not that they must.⁶ There, HUD's desire to preserve as much flexibility for PHAs as possible has led it to ignore a carefully crafted congressional determination that tenants who have completed PHA-approved rehabilitation programs are eligible.

A draft version of the Notice originally included a requirement that a previously evicted tenant demonstrate "to the PHA's satisfaction" that he or she had successfully completed the rehabilitation program.⁷ That added condition was not included in the statute and the Notice would have been in conflict with the statute had HUD added that extra hurdle. Fortunately, the final Notice does not include a requirement that the PHA decide whether the tenant has successfully completed the program as far as this disqualification is concerned.⁸ In a later part of the Notice, however, dealing with the disqualification for illegal drug use and alcohol abuse, HUD did include a requirement that the tenant demonstrate his or her success "to the satisfaction of the PHA."⁹

On this same point, the statute creates another situation in which the PHA must waive the ineligibility standard, e.g., in situations in which the circumstances leading to the eviction no longer exist. Here the statute clearly uses the mandatory terminology "shall," but HUD's Notice merely states that the PHA "may" waive the ineligibility requirement in such situations.¹⁰ Nonetheless, the Notice will be helpful in that it gives incarceration of the offender as an example of a reason why the circumstances leading to the eviction might no longer exist.

Eligibility of innocent family members. The Notice is also deficient in that it does not spell out clearly for the PHAs that ineligibility for current or past illegal drug use or alcohol abuse applies only to the individual, not to other members of the family. The statute states only that a "person" who is illegally using drugs or whose pattern of illegal drug use or alcohol abuse gives cause for a determination that he or she will interfere with other tenants may be prohibited from occupying public housing or receiving Section 8 assistance. It does not speak of the family of such a person.¹¹ The Notice repeatedly uses the statutory term "person," and this should help if a PHA were to reject an entire family for the drug use or alcohol abuse of a household member the family is willing to exclude. Nonetheless, many controversies could have been avoided if the Notice had clearly stated that the PHA must not reject household members who have no history of drug use or alcohol abuse. Similarly, with regard to tenants evicted for drug-related activity, the Notice should have made it clear that innocent family members evicted because of other family members' activity are also not disqualified.

Evictions from Public Housing and Termination of Section 8 Subsidies

As with admissions, the Extension Act authorized PHAs to evict three categories of people from public housing or to terminate their Section 8 subsidies. These categories are:

1. People who are illegally using drugs;
2. People whose illegal use of drugs is determined by the PHA to interfere with other tenants' health, safety or peaceful enjoyment of the premises; and
3. People whose abuse of alcohol is determined by the PHA to interfere with other tenants' health, safety or peaceful enjoyment of the premises.¹²

It is important to note that these three categories are phrased in the statute slightly differently from the categories of people that the PHA may reject as applicants. For evictions and terminations, a past pattern of illegal drug use or alcohol abuse is not enough. There must be current illegal use or abuse. In addition, the question is not whether the tenant's actions create reasonable cause to believe that the tenant may interfere with others. For evictions and terminations, the statute does not refer to "reasonable cause" or any "belief" of the PHA or whether there "may" be interference with others. The statute requires the PHA to determine that the illegal use or abuse actually interferes, not merely may interfere.

On this question, the Notice, generally speaking, merely repeats the statutory language. It does not point out the differences between the admissions standards and the evictions standards, much less explain the significance of the differences.

Evictions for illegal drug use. The statute creates an ambiguity in the way it deals with people who illegally use drugs. One subsection authorizes a PHA to evict any person who illegally uses drugs.¹³ A second subsection authorizes the PHA to evict any person whose illegal use of drugs interferes with other tenants' rights.¹⁴ The second subsection would seem to imply that illegal drug use would not be grounds for eviction if there was no interference with other tenants' rights. That implication, however, would seem inconsistent with the first subsection's authorization for evictions if there has been illegal drug use, without any other conditions. The Notice, sub silentio, resolves that ambiguity by stating that illegal use of drugs is a grounds for termination, without stating that the PHA must determine that the illegal use interfered with other tenants' rights. Under the Notice, it is only with alcohol abuse that the PHA must determine that other tenants' rights have been interfered with.¹⁵

Evictions of innocent family members. Another issue on which the Notice is deficient is the question of whether innocent family members may be evicted for the illegal drug use or alcohol abuse of one family member. The statutory provisions on eviction, like those on admissions, clearly focus only on the person who illegally uses drugs or abuses alcohol and authorize the eviction of that person.¹⁶ They do not by any express language authorize the eviction of entire families, including innocent family members, for the illegal drug use or alcohol abuse of other family members. As in the admission section, this Notice uses the statutory language referring to the person who acts illegally, but it makes no mention of the remainder of the family.¹⁷ One can certainly read the Notice as meaning that the innocent family members cannot be evicted for the illegal drug use or alcohol abuse of a family member who may be evicted. But controversies would have been avoided if the Notice had been more explicit on that point.

Leases. To implement these new rules on evictions, the Notice directs PHAs to make changes in public housing tenants' leases, after first giving them notice and an opportunity to comment, as required by 24 C.F.R. § 966.3 (1995).¹⁸ One of the lease changes is dictated by the statute,¹⁹ which amended 42 U.S.C. § 1437d(l)(5) to make drug-related criminal activity grounds for eviction even if it is not near the premises, as had been previously required. The second lease change, however, is more complicated. The Notice states that the PHAs must amend their leases to make alcohol abuse by any resident grounds for eviction.²⁰ This change is intended to implement the part of the statute that authorizes PHAs to evict tenants whose alcohol abuse interferes with other tenants.²¹ The PHAs, however, need to be careful in drafting the new lease language to ensure that it authorizes only eviction of the person who abuses alcohol, not the rest of the family. Otherwise the lease would be going beyond the authority conferred by the statute. The Notice, however, does not give PHAs the guidance they need to follow those careful congressional distinctions.

Grievance procedure. The Extension Act also amended the provisions on grievance procedures, authorizing PHAs to skip them when evictions involve drug-related criminal activity, even if such activity is not near the premises as had been previously required, and when they involve threats to other tenants' health and safety, even if the threats are not criminal.²² The language of the Notice indicates that PHAs are not required to bypass the grievance process, but only if they wish to do so. It also specifies that if PHAs do elect that option, they must give the tenants an opportunity to comment on the changes to the grievance process. Otherwise, as the Notice states, the grievance process is unaffected. And, equally important, neither the Extension Act nor the Notice changes public housing tenants' rights to judicial procedures before being evicted.²³

Access to Criminal Records

Another change made by the Extension Act was to grant PHAs access to some criminal records of applicants and tenants.²⁴ The Notice informs PHAs of that change and indicates that additional information will be provided after HUD has made further arrangements with the FBI. The Notice indicates, as the statute provides, that the records made available may include only conviction records, and that they are limited to records of adults and of juveniles tried as adults. Other juvenile records may be used only if state, local or tribal laws authorize their release.

On the preemption issue, the Notice indicates that the statute preempts contrary state, local or tribal laws, other than those on a juvenile's records, and prevails over any contrary federal requirement. It also states that the statute does not preempt any laws that give PHAs greater access to applicants' and tenants' records. That latter point is not clear from the statute.

No doubt over the coming years there will be much litigation over the meaning and validity of the Extension Act and this Notice, as will also be generally true of HUD's "One Strike" policy.

1. HUD, "One Strike and You're Out" Policy in Public Housing (Mar. 1996). The text was also released by HUD as an attachment to HUD Notice PIH 96-16 (Apr. 12, 1996). See HUD Pushes Aggressive Eviction Campaigns as the Answer to Crime in Public Housing: One More Time, 26 HOUS. L. BULL. 45 (Apr. 1996).
2. Pub. L. No. 104-120, 110 Stat. 834 (Mar. 28, 1996).
3. HUD Notice PIH 96-27 (HA), Occupancy Provisions of the Housing Opportunity Program Extension Act of 1996 (issued May 13, 1996; expires May 31, 1997).
4. Pub. L. No. 104-120, §§ 9(c) and (d), 110 Stat. 834, 837-38 (Mar. 28, 1996), amending 42 U.S.C. §§ 1437d and 1437n (hereinafter cited as 42 U.S.C. §§ 1437d(r) and 1437n(e), respectively).
5. 42 U.S.C. § 1437d(r).
6. HUD Notice PIH 96-27, ¶¶ 4(A) and 5(A).
7. HUD Notice PIH 96-___ (Apr. 19, 1996, draft).
8. HUD Notice PIH 96-27, ¶¶ 4(A) and 5(A).
9. Id. ¶¶ 4(B) and 5(B).
10. Compare 42 U.S.C. § 1437d(r) with HUD Notice, ¶¶ 4(A) and 5(A).
11. 42 U.S.C. § 1437n(e)(1)(A).
12. Id. § 1437n(e)(1)(B).
13. Id. § 1437n(e)(1)(B)(i).
14. Id. § 1437n(e)(1)(B)(ii).
15. HUD Notice PIH 96-27, ¶¶ 4(C) and 5(C).
16. 42 U.S.C. § 1437n(e)(1)(B).
17. HUD Notice PIH 96-27, ¶¶ 4(C) and 5(C).
18. HUD Notice PIH 96-27, ¶ 5(D).
19. Pub. L. No. 104-120, § 9(a)(2), amending 42 U.S.C. § 1437d(l)(5).
20. HUD Notice PIH 96-27, ¶ 5(D).
21. 42 U.S.C. § 1437n(e)(1)(B)(2).
22. Pub. L. No. 104-120, § 9(a)(1), amending 42 U.S.C. § 1437d(k).
23. HUD Notice PIH 96-27, ¶ (5).
24. Pub. L. No. 104-120, § 9(b), adding 42 U.S.C. § 1437d(q).