Housing Agency May Terminate Sex Offender's Rent Subsidy

Facts: The New York City Department of Housing Preservation and Development (HPD) terminated a resident's Section 8 subsidy because he's a Level 2 sex offender who's subject to a lifetime registration requirement. Before terminating the subsidy, HPD had provided it to the resident for more than three years.

At the time of the termination, the resident received the requisite notifications and participated in an informal hearing. The hearing officer upheld the decision, finding that HPD's 2010 Administrative Plan reasonably interpreted federal laws and regulations to require a mandatory termination of any sex offender subject to a lifetime registration.

In determining that HPD's decision was reasonable, the hearing officer relied on guidance HPD received from HUD. A Question and Answer sheet issued by HUD to Housing Finance Agencies that administer project-based assistance answers the questions of what housing authorities should do if they know of current residents of Section 8 properties who are listed on the sex offender register, but have done nothing to break the terms of their current lease.

According to HUD, the prohibition is limited to admissions and screening provisions. The statute and its implementing regulations are silent with respect to the termination of existing tenancies of sex offenders subject to a lifetime registration requirement. Current residents of units with Section 8 project-based assistance aren't subject to the prohibition of admission to federally assisted housing if any member of the household is subject to a lifetime registration requirement. In addition to the guidance HPD received from HUD, the hearing officer relied on federal regulation 24 CFR 982.553(a)(2), which prohibits the admission of persons subject to a lifetime sex offender registration requirement to the Section 8 program. The regulation is silent as to lifetime sex offenders who already receive Section 8 subsidies.

The resident asked the court to review and overturn the hearing officer's decision.

Ruling: A New York trial court found the hearing officer's decision to be arbitrary and sent the case back to the officer for reconsideration.

Reasoning: The court found that contrary to the hearing officer's findings, the plain language of the statute doesn't support HUD's position. Instead, it reveals that the legislature intended to treat lifetime sex offender registrants who are applicants for federal housing assistance differently from those who are program participants. Also, HPD's 2010 Administrative Plan doesn't require mandatory termination of assistance for participants who are lifetime sex offender registrants. Instead, the plan explicitly states that HPD may terminate program assistance for a participant if any member of a household is subject to a lifetime registration requirement under a state sex offender registration program.

Although HPD based its decision on an incorrect interpretation of the law, the applicable provision indicated that HPD may terminate the resident's subsidy. So the court sent the case back to the hearing officer to consider all circumstances relevant to this matter, including the seriousness of the offending action and the effects that the eviction would have on family members not involved in the offending activity.

• In the Matter of the Application of Andy Bonseiro v. HPD, February 2012.