CRIMINAL BACKGROUND SCREENING POLICY
12 January 2018, 12:00am – 12:00am
Screening for Criminal Activity Policy
EP HOME, PFC Revised January 2018
Public and other federally-assisted housing is intended to provide a place to live and raise families--not a place to commit crime, use or sell drugs or terrorize neighbors. It is the intention of the Housing Authority of the City of El Paso, Texas (“HACEP”) and its’ subsidiary, EP HOME, PFC, to fully endorse and implement a policy which is designed to:
1. Create and maintain a safe and drug-free community;
2. Keep our residents free from threats to their personal and family safety;
3. Ensure that screening of applicants for and residents in HACEP’s housing programs are administered fairly and in such a way as not to discriminate on the basis of race, color, nationality, religion, age, sex, familial status, disability or other legally-protected groups, and not to violate right to privacy;
Federal Regulations establish that PHAs are responsible for screening family behavior and suitability for tenancy. The resident selection criteria developed and implemented by PHAs to comply with this mandate must be reasonably related to the individual attributes and behavior of an applicant. Relevant information concerning the habits or practices to be considered include a history of criminal activity involving drug-related activity, a pattern of alcohol abuse, crimes of physical violence, or other criminal acts which could adversely affect the health, safety or welfare of other residents.
For some categories of criminal activity, federal law dictates permanent bans and temporary bans for others (discussed below). In most cases, denial is not mandatory. Instead, HUD gives PHAs and project owners’ discretion in deciding whether to admit an applicant with a criminal record. Where PHAs and project owners have discretion, HUD calls for an individualized review of applicants, focusing on the concrete evidence of the seriousness and recentness of criminal activity.
By engaging in a proper individualized review, housing providers give applicants the judgment and care that tenant screening require and federal law necessitates.
Applicant: Includes heads of household as well as any other person seeking admission to assisted and affordable housing.
“Currently engaging in”: With respect to behavior such as illegal use of a drug, other drug-related criminal activity, currently engaging in means that the individual has engaged in the behavior recently enough to justify a reasonable belief that the individual’s behavior is current. HACEP defines “current” as within the last six (6) months.
Drug: a controlled substance as provided for in federal criminal laws 21 U.S.C.A §802
Drug-related criminal activity: the illegal manufacture, sale, distribution or use of a drug, or the possession of a drug with intent to manufacture, sell, distribute or use the drug. (24 CFR 5.110)
Violent Criminal activity: As defined by HUD, includes any criminal activity that has as one of its elements the use, attempted use, or threatened use of physical force substantial enough to cause, or be reasonably likely to cause, serious bodily injury or property damage (24 CFR 5.100)
Key Regulations, Statute, and Policies
This section identifies key regulatory citations pertaining to screening for criminal activity.
24 CFR 5.850- 5.852, 5.858 – 5.861, 5.901. 5.903, and 5.905 Termination of tenancy in Screening and Eviction for Drug Abuse and other Criminal Activity (NOTE:These requirements are not applicable to Rural Housing Service under Section 514 or Section 515 of the Housing Act of 1949)
7 CFR Part 3560 for Section 514 and 516 Farm Labor Housing: 3560.154(j) Criminal Activity (making reference to denial of admission in accordance with provision of 24 CFR 5.854 – 5.857)
24 CFR 960.203 Standards for PHA tenant selection criteria (Conventional Public Housing)
24 CFR 960.204 Denial of admission for criminal activity or drug abuse by household members (Conventional Public Housing)
24 CFR 960.205 Drug use by applicants: Obtaining information from Drug Treatment facility. (Conventional Public Housing)
24 CFR 966.4 (l)(5) PHA termination of tenancy for criminal activity or alcohol abuse (Conventional Public Housing
24 CFR 982.307 Tenant screening (Housing Choice Voucher)
24 CFR 982.310 Owner termination of tenancy (Housing Choice Voucher)
24 CFR 982.553 Denial of admission and termination of assistance for criminals and alcohol abusers (Housing Choice Voucher)
HUD Notice PIH 2015-19 Guidance for Public Housing Agencies (PHAs) and Owners of Federally-Assisted Housing on Excluding the Use of Arrest Records in Housing Decisions
HUD Notice H 2015-10 Guidance for Public Housing Agencies (PHAs) and Owners of Federally-Assisted Housing on Excluding the Use of Arrest Records in Housing Decisions
FAQs for Notice PIH 2015-19 / H 2015-10 FAQs: Excluding the Use of Arrest Records in Housing Decisions
Office of General Counsel Guidance on Application of Fair Housing Act Standards to the Use of Criminal Records by Providers of Housing and Real Estate-Related Transactions
HACEP Admissions and Continued Occupancy Policy (ACOP) Section 7. Applicant Screening and Denial of Admission
HACEP Administrative Plan for the Housing Choice Voucher Program (HCV) Part III 3-III-B. Mandatory Denial of Assistance; 3-III.C, Other Permitted Reasons for Denial of Assistance; 3-III.D Screening; 3-III.E. Criteria for Deciding to Deny Assistance
HUD Occupancy Handbook Chapter 8-14 Drug Abuse and Other Criminal Activity
HACEP, and on behalf of its subsidiaries, will perform criminal background screenings of applicants for assisted housing, and will perform annual criminal background screenings of adult family members at the time of annual certification as follows:
Section 9 Conventional Public Housing Program: all applicants 10 years of age and older, to include live-in aides.
Persons 18 years of age and older seeking admission to housing and to persons (including live-in aides) joining a family member who is currently living in EP HOME, PFC managed properties and housing programs. The Admissions and Continued Occupancy Policy (ACOP) provides the complete eligibility criteria.
Project Based Rental Assistance Program: Persons 18 years of age and older seeking admission to housing and to persons (including live-in aides) joining a family member who is currently living in EP HOME, PFC managed properties and housing programs. The Tenant Selection Plan provides the complete eligibility criteria.
Low-Income Housing Tax Credit Program: Persons 18 years of age and older seeking admission to housing and persons (including live-in aides) joining a family member who is currently living in EP HOME, PFC managed properties and housing programs. The Tenant Selection Plan will provide further eligibility criteria.
USDA Farm Labor, Affordable Housing, Section 202 and Market Rate Programs: Persons 18 years of age and older seeking admission to housing and to persons (including live-in aides) joining a family member who is currently living in EP HOME, PFC managed properties. The Tenant Selection Plans, and/or governing documents of the respective programs, will provide further eligibility criteria.
Housing Choice Voucher Program: Persons 18 years of age and older seeking admission to housing and to persons (including live-in aides) joining a family member who is currently living in EP HOME, PFC managed properties and housing programs. The HCV Administrative Plan will provide further eligibility criteria.
Applicants will be required to sign an authorization for release of criminal history information at the eligibility interview and residents will be required to sign the authorization at each annual recertification.
Applicants will be required to disclose history of all arrests which resulted in convictions and/or are currently pending resolution/disposition in court within the past five (5) years from the date of the eligibility interview.
Law enforcement data bases, including county jail and court records, Texas Department of Public Safety, National sex offender registry will be used to obtain criminal history information.
Overview of Screening Process
There will be no presumption that an applicant with a criminal conviction should be denied housing assistance. A record of arrest(s) (without convictions) may not be the basis for denying admissions, terminating assistance or evicting residents. Decisions to admit or deny applicants with criminal convictions will be based on an individualized review which includes accurate information, notice and opportunity to be heard before denial of admission or eviction. Individual circumstances and the potential impact on safety of other residents will be taken into account in the decision to admit or deny. HACEP will maintain procedures for implementing this policy, which will include provisions for analyzing whether a housing applicant should be admitted or subject to further review
In making the decision to deny admission or evict for criminal activity, HACEP and EP HOME, PFC will consider mitigating circumstances including (but not limited to);
1) The seriousness of the criminal activity;
2) The recentness (amount of time that has passed) of the criminal conduct;
3) The age of the household member at the time of the offense;
4) The relationship between the criminal activity and the safety of residents, HACEP and EP HOME PFC staff, or property;
5) Evidence of rehabilitation, such as employment, participation in a job training program, education, participation in a drug or alcohol treatment program, or recommendations from a parole or probation officer, employer, teacher, social worker, or community leader; and
6) The effect a denial of admission will have on the household and the community.
If the criminal background check reveals negative information about a household member(s), and HACEP or EP HOME, PFC proposes to deny admission or evict due to the negative information, a copy of the criminal record will be provided to the applicant and the subject of the record and provide the applicant an opportunity to dispute the accuracy and relevance of the record. If the applicant does not contact HACEP or EP HOME, PFC within 10 calendar days, a written notice of ineligibility will be sent to the applicant.
HACEP and/or EP HOME, PFC will not consider unproven allegations or arrests that did not result in convictions as evidence of criminal activity.
Admission will be denied to a household as follows:
If a member is subject to a lifetime registration requirement under a state sex offender program.
If a member has been convicted of manufacturing or producing methamphetamine on the premises of federally-assisted housing.
If a member has been evicted from federally assisted housing for drug-related criminal activity within the past 3 years.
If a member has been convicted in drug-related or violent criminal activity within the past five years from the date of the eligibility interview.
Although the fact that an individual was arrested is not grounds to deny a housing opportunity, a record of an arrest may trigger an inquiry by HACEP and/or EP HOME, PFC, into whether a person actually engaged in disqualifying criminal activity. In determining whether a person who was arrested for disqualifying criminal activity, EP HOME, PFC will consider, among other things; police reports that detail the circumstances of the arrest; statements made by witnesses or by the applicant or tenant that are not part of the police report; whether formal criminal charges were filed, and any other evidence relevant to whether the applicant or tenant engaged in the disqualifying criminal activity.
An applicant/resident may be required to exclude a household member in order to be admitted to the housing program (or continue to reside in the assisted unit),
Under certain circumstances and as allowed by federal regulations, HACEP may terminate the tenancy and evict tenants for criminal activity by a resident if HACEP determines that the resident engaged in criminal activity, regardless of whether the resident has been arrested or convicted for such activity and without satisfying a criminal conviction standard of proof of the activity.
Other relevant policy requirements are located in the agency’s Admissions and Continued Occupancy Policy, the HCV Administrative Plan, the Tenant Selection and Criteria Plans for each respective community and/or Housing Program.