PHA Lawfully Denied Pre-Application Based on Applicant’s Criminal Record

Facts: An applicant claimed the local PHA unlawfully denied his application for housing and failed to conduct a hearing on his appeal of its administrative decision. He asked the court for an order directing that the PHA provide him with housing.

On Jan. 10, 2014, the applicant submitted a pre-application for housing. On Jan. 16, 2014, a leasing specialist advised him that they would process his pre-application within the next 12 months, and informed him that he would have an opportunity to appeal should his pre-application be denied. Approximately one year later, on Jan. 7, 2015, the PHA advised the applicant that it was updating its waiting list and informed him that if he wanted to remain on the waiting list, he must so advise the PHA by Jan. 30, 2015. At that time, the PHA still hadn’t processed the applicant’s pre-application. And the applicant responded in time to preserve his place on the waiting list.

On July 29, 2015, a leasing specialist informed the applicant that upon review of his pre-application, the PHA determined that the information it had regarding his criminal history, if accurate, would result in the denial of his application. The PHA provided the applicant with a copy of the record upon which it relied. In the letter by which the PHA notified the applicant, the PHA also informed him that pursuant to HUD guidelines, he had 10 calendar days to dispute the accuracy and relevance of the information it used to deny him admission.

On Aug. 5, 2015, the applicant responded, and asked, among other things, that the PHA not deny his admission based on his criminal record. However, he didn’t dispute the accuracy or the relevance of the information. On Aug. 10, 2015, the PHA wrote to the applicant and informed him that they had thoroughly reviewed his pre-application, and denied the application due to his criminal history. Through the letter, the PHA informed him that he could request a hearing on the decision within 14 days.

The PHA next received a letter from the applicant two months later, on Oct. 15, 2015. The next day, the PHA informed him that because he failed to request a hearing within 14 days of his denial of the pre-application, he had been removed from the waiting list. The PHA asked the court for a judgment without a trial in its favor.

Ruling: A Maine district court granted the PHA’s request.

Reasoning: The court ruled that the PHA properly denied the applicant’s pre-application because the applicant didn’t meet the criteria for public housing assistance because he had committed a Class C burglary in Maine in 2013. Federal regulations require authorities to “consider all relevant information,” including 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.”

Here, the court ruled that the applicant’s commission of a burglary is a permitted and rational basis for selection among applicants for public housing assistance. And the court ruled that the procedure employed by the PHA is also consistent with federal regulatory requirements. HUD requires that before a PHA can deny admission based on an applicant’s criminal history, the authority must provide prior notice and an opportunity to dispute the significance of the criminal record.

In accordance with the PHA’s admissions policy, the court ruled the evidence establishes that the PHA notified the applicant of his right to challenge the accuracy and significance of his criminal history, but the applicant didn’t provide any evidence that would suggest the criminal history information upon which the PHA relied was in any way inaccurate. He also failed to assert his right to a hearing in a timely manner. In short, the applicant could not prevail on a procedural due process claim.

• Inman v. Bangor PHA, July 2016