Are ALL sex offenders prohibited from living in federally assisted housing?

3-7-2009 National:

It never ceases to amaze me how many folks get this WRONG, including people who manage housing apartments. HUD Law and Rules DO NOT prohibit ALL sex offenders from applying for federally assisted housing.

Note: Below you will see that HUD law and rules, developed years ago, prohibit RSOs with a "Lifetime Registration Requirement (LRR)" from APPLYING for housing, and HUD says that LRR is synonymous with "dangerous."

That position was BEFORE the effects of the Adam Walsh Act (AWA), under which MANY folks are being forced into Tier III which has a LRR and now be considered dangerous, some of which have court rulings saying they are not. Accordingly, AWA will now prohibit folks who would have been accepted before AWA. Further, an open question is, if someone is living in public housing who, after AWA, would be prohibited from living there, can they be forced out? The law and rules are clear, only those APPLYING for can be prohibited, there is nothing saying EVICT if already living there. Hopefully lawyers will have a field day with this.


HUD LAWS:

Title 42, Chapter 135—RESIDENCY AND SERVICE REQUIREMENTS IN FEDERALLY ASSISTED HOUSING

SUBCHAPTER I—STANDARDS AND OBLIGATIONS OF RESIDENCY IN FEDERALLY ASSISTED HOUSING

SUBCHAPTER II—AUTHORITY TO PROVIDE PREFERENCES FOR ELDERLY RESIDENTS AND UNITS FOR DISABLED RESIDENTS IN CERTAIN SECTION 8 ASSISTED HOUSING

SUBCHAPTER III—SERVICE COORDINATORS FOR ELDERLY AND DISABLED RESIDENTS OF FEDERALLY ASSISTED HOUSING

SUBCHAPTER IV—GENERAL PROVISIONS

SUBCHAPTER V—SAFETY AND SECURITY IN PUBLIC AND ASSISTED HOUSING

SUBCHAPTER V:
§ 13663. Ineligibility of dangerous sex offenders for admission to public housing:
(a) In general
Notwithstanding any other provision of law, an owner of federally assisted housing shall prohibit admission to such housing for any household that includes any individual who is subject to a lifetime registration requirement under a State sex offender registration program. (Click on SUBCHAPTER V for more information)

HUD RULES:
The rule prohibits ONLY THOSE sex offenders who are "subject to a lifetime registration requirement under a State sex offender registration program." See the HUD Rule 5.856 which follows:

HUD Rule CFR 24 § 5.856
When must I prohibit admission of sex offenders?

You (Public Housing Management) must establish standards that prohibit admission to federally assisted housing if any member of the household is subject to a lifetime registration requirement under a State sex offender registration program. In the screening of applicants, you must perform necessary criminal history background checks in the State where the housing is located and in other States where the household members are known to have resided. (See § 5.905.)

Is this the current status of this rule? Yes, last checked on 2-23-2009.

If you wish to check it for yourself then CLICK

1) Then click on "Browse and/or search the CFR"

2) Scroll down to Title 24 "Housing and Urban Development," in the first column is the date of the most recent changes to these rules (April 1, 2008 as of this writing) click on that date

3) Scroll down till you see the title "Browse Parts" just beneath that you will see 0-99 click on that,

4) Now you will see a page of links, click on the one that says "General HUD program requirements; waivers"

5) You will see all the rules that pertain to "Housing" and there are two that pertain to sex offenders: 5.856 and 5.905. (5.856 is above and 5.905 is below, assuming they have not changed since 4-1-2008).

If a resident is NEWLY convicted, can they be booted out?

No, read the rule carefully, "In screening of applicants, ..." that means only when people apply for a lease OR when a lease comes up for renewal.

IMPORTANT NOTE:
Various states have excluded CERTAIN sex offenders from the requirement to register. i.e., California and Oregon have something known as a "Certificate of Rehabilitation (COR)" which permits that sex offender to stop registering, so PHA must be careful when performing screenings and cannot TOTALLY rely on a background criminal check. Notice in the case of a COR applicant, s/he is no longer required to register, hence, is not subject to lifetime registration under that state's law. However, if a COR person no longer lives in the state that issued the COR, they may have lifetime registration requirements where they are now living. Many states have various exceptions (and exemptions) to their state's registration laws and when considering applicants your process must have a way to filter these folks out.

HUD Hearing Precedent:
HUD has held many hearings on many issues in many states. Someone may come up with a case where that Hearings Officer ruled contrary to HUD Rule 5.856, if so, then make sure that Hearings Officer DID CONSIDER the "Lifetime Requirement" when rendering their decision. If they didn't they may be unaware of it and that decision would be distinguishable.

Summarizing:
Now this is the current state of HUD Rules regarding sex offenders, but HUD Rules go way beyond that, there are other rules, such as dangerousness to other residents, that may enter a decision and be applicable, following consideration of the sex offender status.

Have a good day, and if anyone finds anything different from the above, please forward it so we may adjust this accordingly.
eAdvocate


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HUD Rule CFR 24 § 5.905 What special authority is there to obtain access to sex offender registration information?

(a) PHA obligation to obtain sex offender registration information.

(1) A PHA that administers a Section 8 or public housing program under an Annual Contributions Contract with HUD must carry out background checks necessary to determine whether a member of a household applying for admission to any federally assisted housing program is subject to a lifetime sex offender registration requirement under a State sex offender registration program. This check must be carried out with respect to the State in which the housing is located and with respect to States where members of the applicant household are known to have resided.

(2) If the PHA requests such information from any State or local agency responsible for the collection or maintenance of such information, the State or local agency must promptly provide the PHA such information in its possession or control.

(3) The State or local agency may charge a reasonable fee for providing the information.

(b) Owner’s request for sex offender registration information—
(1) General. An owner of federally assisted housing that is located in the jurisdiction of a PHA that administers a Section 8 or public housing program under an Annual Contributions Contract with HUD may request that the PHA obtain information necessary to determine whether a household member is subject to a lifetime registration requirement under a State sex offender registration requirement.

(2) Procedure. If the request is made in accordance with the provisions of paragraph (b) of this section:

(i) The PHA must request the information from a State or local agency;

(ii) The State or local agency must promptly provide the PHA such information in its possession or control;

(iii) The PHA must determine whether such information may be a basis for applicant screening, lease enforcement or eviction, based on the criteria used by the owner as specified in the owner’s request, and inform the owner of the determination.

(iv) The PHA must notify the owner of its determination whether sex offender registration information received by the PHA under this section concerning a household member may be a basis for applicant screening, lease enforcement or eviction in accordance with HUD requirements and the criteria used by the owner.

(3) Contents of request. As the owner, your request must specify whether you are asking the PHA to obtain the sex offender registration information concerning the household member for applicant screening, for lease enforcement, or for eviction and include the following information:

(i) Addresses or other information about where members of the household are known to have lived.

(ii) If you intend to use the PHA determination regarding any such sex offender registration information for applicant screening, your request must include your standards in accordance with § 5.855(c) for prohibiting admission of persons subject to a lifetime sex offender registration requirement.

(iii) If you intend to use the PHA determination regarding any such sex offender registration information for eviction, your request must include your standards for evicting persons subject to a lifetime registration requirement in accordance with § 5.858.

(iv) If you intend to use the PHA determination regarding any such sex offender registration information for lease enforcement other than eviction, your request must include your standards for lease enforcement because of criminal activity by members of a household.

(4) PHA disclosure of records. The PHA must not disclose to the owner any sex offender registration information obtained by the PHA under this section.

(5) Fees. If an owner asks a PHA to obtain sex offender registration information concerning a household member in accordance with this section, the PHA may charge the owner reasonable fees for making the request on behalf of the owner and for taking other actions for the owner. The PHA may require the owner to reimburse costs incurred by the PHA, including reimbursement of any fees charged to the PHA by a State or local agency for releasing the information, the PHA’s own related staff and administrative costs. The owner may not pass along to the applicant or tenant the costs of a sex offender registration records check.

(c) Records management. (1) The PHA must establish and implement a system of records management that ensures that any sex offender registration information record received by the PHA from a State or local agency under this section is:

(i) Maintained confidentially;

(ii) Not misused or improperly disseminated; and

(iii) Destroyed, once the purpose for which the record was requested has been accomplished, including expiration of the period for filing a challenge to the PHA action without institution of a challenge or final disposition of any such litigation.

(2) The records management requirements do not apply to information that is public information, or is obtained by a PHA other than under this section.

(d) Opportunity to dispute. If a PHA obtains sex offender registration information
from a State or local agency under paragraph (a) of this section showing that a household member is subject to a lifetime sex offender registration requirement, the PHA must notify the household of the proposed action to be based on the information and must provide the subject of the record, and the applicant or tenant, with a copy of such information, and an opportunity to dispute the accuracy and relevance of the information. This opportunity must be provided before a denial of admission, eviction or lease enforcement action on the basis of such information.