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BEFORE
YOU REJECT THAT CRIMINAL OFFENDER……
By
Eric Glazer, Esq.
Published November 28, 2016
As much as I would like to move on from the
politics of the election, it’s difficult to do when faced with a
recent decision of the U.S. Department of Housing and Urban
Development. It’s yet another example of political correctness
gone crazy and the government interfering with your rights to
decide who and who does not represent a danger to your
community.
Many of you have clauses in your governing
documents which allow the association to screen prospective
tenants and owners. One of the reasons that are typically
utilized by Boards in making these decisions is whether or not
the person wanting to move in has a criminal record. I would
think most people would agree that a person’s home is typically
their largest investment and also represents a substantial
choice in their life as to which community is best for their
family. I would also think that in order to ensure these
valuable choices, most people would agree that you should have
the right to choose to live in a community that prevents
criminals from living there. The problem is that H.U.D. does not
think like the average family.
HUD has now interpreted the Fair Housing Act
to make it much more difficult for a community association to
prevent persons with criminal records from living in a community
association. Their General Counsel, Helen Kanovsky, has
published a statement giving community associations new
guidelines to follow in this regard. Her statement starts off
with a general background about how approximately 100 million
Americans have some sort of criminal record, how there are
millions of us in prison, how the U.S. only accounts for 5% of
the world’s population yet 25% of all prisoners are in American
prisons and how 95% of these prisoners will one day be released
and need a place to live, including inside your community. HUD
sympathizes with the “significant barriers to securing housing”
these criminals face.
The paper then goes on to say that African
Americans and Hispanics are arrested, convicted and incarcerated
at rates disproportionate to their share of the general
population. Consequently, they say that rules which prohibit
criminals from moving into communities will have a
disproportionate impact on them.
HUD’s position is that “A housing provider
(like a community association) violates the Fair Housing Act
when the provider’s policy or practice has an unjustified
discriminatory effect, even when the provider had no
intention to discriminate. Thus, where a policy or practice
that restricts access to housing on the basis of criminal
history has a disparate impact on individuals of a particular
race, national origin, or other protected class, such policy or
practice is unlawful under the Act if it is not necessary to
serve a substantial, legitimate, nondiscriminatory interest of
the housing provider, or if such interest could be served by
another practice that has a less discriminatory effect.
HUD then sets up standard to see if your
community association is acting properly:
Does the policy have a disparate impact
on a group of persons because of their race or national
origin? The statement goes on to say that in order to prove
this, state and local statistics may need to be looked at in
the market area. Indeed, HUD then says that national
statistics alone provide HUD grounds for investigating
procedures used by community associations to disqualify
criminals because African Americans are arrested at a rate
that is more than double their proportion of the general
population, and African Americans comprise 36% of the total
prison population but 12% of the actual population.
Hispanics are also incarcerated disproportionate to their
share of the population. HUD points out that in contrast,
non Hispanic Whites comprised 62% of the total U.S.
population but only 34% of the prison population in 2014.
HUD places the burden on the association
to evaluate whether the association’s policy is necessary to
achieve a substantial, legitimate, nondiscriminatory
interest. This must be backed up with proof that the policy
achieves the result intended. While HUD acknowledges that
protection of other residents is a fundamental
responsibility of a housing provider, the housing provider
must be able to prove through reliable evidence that its
policy actually assists in protecting residents and their
safety. “Bald assertions based on generalizations or
sterotypes that any individual with an arrest or conviction
poses a greater risk than any individual without such a
record are not sufficient to satisfy this burden.”
Do you believe what you just read,
because I can’t. According to HUD, it is not enough for the
association to have a policy in effect that says we are
excluding people from our community because they have
several prior convictions because we believe those persons
pose a greater risk than individuals without a record.
According to HUD, there is no proof whatsoever that persons
with prior felony convictions are more likely to commit
crimes in your community than the nuns, priests and rabbis
who also want to move into your community.
HUD opines that a policy of rejecting
proposed owners or tenants, simply based upon arrests, and
not conviction is automatically void on its face. On that I
must agree. An arrest means nothing. Anyone can get arrested
and charged with a crime. The issue is whether or not there
was a conviction. If there wasn’t, that arrest should never
be used against the applicant.
HUD opines that a community association
should not impose a blanket policy of rejecting anyone who
has a conviction, if the association’s policy does not take
into account when the conviction occurred, what the
underlying conduct was or what the convicted person has done
since then. A community association “with a more tailored
policy or practice that excludes individuals with only
certain types of convictions must still prove that its
policy is necessary to serve a “substantial, legitimate,
nondiscriminatory interest and to do this the association
must show that its policy accurately distinguishes between
criminal conduct that indicates a demonstrable risk to
resident safety and/or property and criminal conduct that
does not.”
HUD now expects the volunteer members of
the community association to also play the role of parole
officer, probation officer and psychiatrist. You should get
to know what your offender has done since robbing the store
at gunpoint. Perhaps they now see the light, attend church
and realize their conduct was wrong.
I
suggest you not stand next to anyone before continuing
because you may want to punch someone after reading this.
HUD wants the association to evaluate whether there is a
less discriminatory alternative than the procedure it
currently uses. The association should look at “relevant
mitigating information beyond that contained in an
individual’s criminal record.” This information may include
the facts or circumstances of the crime, the age of the
individual at the time of the crime, evidence that the
person has been a good tenant before and after the
conviction, and evidence of rehabilitation efforts.
I’m sorry, but to me,
these are factors that should be considered by the judge who
sentences the criminal offender, not by a community
association’s volunteer board of directors who simply want
to keep their community safe. Also, why does HUD only care
about the offender being a good tenant before and after the
incarceration? If I’m evaluating an offender, I would want
to know what type of a tenant he was, when he or she was a
tenant of the state. Were they a model prisoner, or were
they an inmate that caused trouble and needed further
discipline or solitary confinement? Maybe that’s a much more
relevant question than whether they played the music too
loud twenty years ago.
Here’s one bright
spot. The Act does not prohibit an association from
automatically disqualifying someone from moving into the
community if they have been convicted of the illegal
manufacture or distribution of a controlled substance as
defined in section 102 of the Controlled Substances Act.
The “Guidance” suggested
by HUD concludes by saying “Because of widespread racial and
ethnic disparities in the U.S. criminal justice system, criminal
history-based restrictions on access to housing are likely
disproportionately to burden African Americans and Hispanics.
While the Act does not prohibit housing providers from
appropriately considering criminal history when making housing
decisions, arbitrary and overbroad criminal history related bans
are likely to lack a legally sufficient justification. Thus a
discriminatory effect resulting from a policy or practice that
denies housing to anyone with a prior arrest or any kind of
criminal conviction cannot be justified, and therefore such a
practice would violate the Fair Housing Act.
Is it me, or is HUD’s
position actually a condemnation of the entire criminal justice
system in America? Isn’t HUD saying that the system is in effect
racist and discriminatory, we cannot trust our police, our
judges, our prosecutors, our defense counsel and even the jury
system itself? It’s rigged against African Americans and
Hispanics, they don’t get a fair shake, and therefore we, as
unelected officials answerable to no one, must dictate to
everyone why they are now forced to accept criminals into their
community? I write this column less than 24 hours after 4 cops
were shot in one day in this country. I’m not surprised this now
happens all the time, when leadership repeatedly shows
disrespect for the police and the system in general, and here
HUD is no exception.
It’s also amazing to me how HUD takes it upon
itself to think that all African Americans and Hispanics need or
want their help. In my twenty-five years of practicing law, I
have had the honor and privilege to represent countless
communities in Florida where the community was predominantly
African American or Hispanic. You know what all of these
communities and boards had in common? All of them want to live
in a community that is safe for them and their kids. All of them
wanted the ability to keep criminals out of their community,
even if the criminals were the same skin color, race, religion
or ethnicity as the members of the board themselves. This
decision by HUD hurts all of these communities and hurts the
ones that need the ability to keep criminals out of their
community the most. But that’s what typically happens when
government gets involved and thinks they have the answer to all
of your problems. Most of the time, they don’t.
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About
HOA & Condo Blog
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Eric Glazer graduated from
the University of Miami School of Law in 1992 after
receiving a B.A. from NYU. He has practiced community
association law for more than 2
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decades and is the owner of Glazer
and Associates, P.A. a seven attorney law firm with offices in
Fort Lauderdale and Orlando and satellite offices in Naples,
Fort Myers and Tampa.
Since 2009, Eric has been the host
of Condo Craze and HOAs, a weekly one hour radio show that airs
at noon each Sunday on 850 WFTL.
See:
www.condocrazeandhoas.com.
He is the first attorney in the
State of Florida that designed a course that certifies
condominium residents as eligible to serve on a condominium
Board of Directors and has now certified more than 10,000
Floridians all across the state. He is certified as a Circuit
Court Mediator by The Florida Supreme Court and has mediated
dozens of disputes between associations and unit owners. Eric
also devotes significant time to advancing legislation in the
best interest of Florida community association members.
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