Refresher Course: Complying with “One Strike” Rule

Although HUD's “One Strike” rule was announced in 1996 by the Clinton administration and took effect in its final form nearly a decade ago, it has been a controversial and confusing regulation.

The rule is intended to help sites screen applicants for drug abuse and other criminal activity. It also supports the effort to evict households because of drug abuse or other crimes. The rule spells out admission and screening requirements with the goal of identifying and ultimately keeping out “troublemaking households.”

There had always been regulations on HUD's books about denying housing assistance to applicants who were involved in certain criminal activities and enabling owners to evict existing residents who were found guilty of certain criminal activities. But public housing authorities (PHAs) and other housing providers weren't clear on exactly when they could deny or evict without violating the applicant's or resident's rights. The purpose of the One Strike rule is to add clarity for site owners, residents, and applicants.

Scope of One Strike

Most HUD-assisted housing programs are covered by One Strike, including:

• Section 8 sites (project-based and tenant-based);

• Section 202 sites (for the elderly);

• Section 811 (for persons with disabilities);

• Section 221(d)(3) BMIR (below market interest rate) sites;

• Section 236 sites; and

• Public housing sites.

How One Strike Works

When considering applicants with a criminal background, One Strike sets out grounds for which the site owner may deny admission. One Strike says:

• You must bar applicants with past drug-related evictions. You can't admit applicants if any member of the household has been evicted from any federally assisted site for drug-related criminal activity within the past three years.

• You must have admissions criteria that address the criminal activity-related ban. The admissions criteria in your tenant selection plan must spell out the rule that your site bars admission based on household members' illegal drug use, alcohol abuse, or sex offender status under certain circumstances.

• You may include additional criminal activities that would lead to an admission denial. The One Strike rule also lets you deny admission to applicants for certain other criminal activities. These include drug-related and violent criminal activity that would threaten the health and safety of residents, owners, employees, contractors, or agents, or that would threaten residents' right to peacefully live at and enjoy your site.

  The rule does not define specific criminal activities in this category, so owners and managers must use their own judgment. For example, does a conviction for auto theft or embezzlement present a threat? You must make the call as to what additional criminal activities you wish to add to your screening criteria. Any additional criminal activity that you choose to use as grounds for denying admission must be clearly specified in your tenant selection plan.

• You may, under certain circumstances, reconsider applicants with drug and criminal histories and grant an exception. For example, applicants may be reconsidered if they demonstrate that they no longer present a risk to your site. You may add language to your tenant selection plan that says you will reconsider applicants, depending on why they were rejected in the first place. Circumstances that may be grounds for reconsidering an applicant include successful completion of a supervised drug rehabilitation program and situations that involved a family member or live-in aide who no longer is a member of the household.

Conducting Background Checks

When you are screening applicants for your site, you must routinely conduct criminal background checks in the state where your site is located. You also must run criminal background checks in any other state where the applicant household members are known to have lived. Owners and managers may request that the local PHA do applicant background checks on their behalf. Owners and managers also may ask the PHA to do criminal background checks on current household members to use when they want to evict a household for drug-related or other criminal activity.

Before the PHA does the background check for an applicant household, the written consent of each adult member of that household must be secured. The PHA may charge the owner or manager a reasonable fee for the background check; that fee may not be passed along to the applicant household.

In most cases, the PHA conducting the background check will not disclose the specific contents of a household member's criminal record. The PHA staff will report only that there is a criminal conviction that provides a basis for denial of admission or eviction.

The details of a criminal background check can be made available should there be the need to substantiate an eviction request in a court of law. Anyone using the details of a criminal background check for this purpose must certify in writing that the details will be used for this purpose and this purpose only. The One Strike rule contains confidentiality requirements barring disclosure of the contents of criminal records. Substantial fines may be levied for violations.

When it comes to checking for sex offender registration status, there are similar procedures for having the local PHA secure this information. The PHA is barred from disclosing the results and will say only whether the sex offender registration status may be used as a basis for denial of admission or eviction.

Owners of HUD-assisted sites are free to secure criminal record checks and sex offender status information from sources other than their local PHA. For example, some states now make sex offender status information available by posting names of registered sex offenders on public Web sites.

Lease Language

The One Strike rule also requires that leases for HUD-assisted housing include clauses covering eviction for certain types of criminal activity. These include:

• Drug-related criminal activity on or near the site by any “tenant, household member, or guest, or any drug-related activity at the site by any other person under the tenant's control”;

• Current illegal drug use or alcohol abuse, or a pattern of illegal drug use or alcohol abuse that interferes with other residents' “health, safety or right to peaceful enjoyment” of the site;

• Other criminal activity that “threatens the health, safety or right to peaceful enjoyment of the site” by other residents or by people who live in the immediate vicinity of the sites; and

• Fugitive felon status or parole violations.

HUD's model leases include these provisions. Copies of the model leases can be found in Appendix 4-A to 4-D of HUD Handbook 4350.3.

Specifics of HUD's One Strike rule were outlined in Notice H2002-22, Screening and Eviction for Drug Abuse and Other Criminal Activity—Final Rule.

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