How to Screen Applicants for Drug Abuse and Other Criminal Activity

HUD’s “one-strike” rule sets out specific grounds for denying admission to applicants based on certain drug-related and other criminal activity. It requires you to add certain screening criteria to your resident selection plan and lets you add other optional criteria to screen out applicants with drug-related and criminal backgrounds. And it requires you to determine whether applicants meet these criteria, by performing appropriate criminal background checks.

To comply, you’ll need to ask all adult applicants questions to determine whether they have drug-related or other criminal backgrounds that make them ineligible for assisted housing. You’ll also need to get their consent to perform criminal background checks so you can verify the information they give you. That way, you can reject applicants if they disclose—or your criminal background checks reveal—that their backgrounds bar you from renting to them or don’t meet your screening criteria. And if you rent to an applicant and later learn that he lied about this information, you can evict him.

One-Strike Rule Screening Requirements

HUD’s one-strike rule has both mandatory and optional criteria for screening out applicants based on drug-related and other criminal activity.

Mandatory screening criteria. The rule requires you to screen out applicants with histories of illegal drug use or who are registered sex offenders. Specifically, you must deny admission to an applicant household if:

• Any household member has been evicted from a federally assisted site for drug-related criminal activity within the past three years [HUD Handbook 4350.3, par. 4-7(C)(2)(a)];
• Any household member is currently engaging in illegal drug use [HUD Handbook 4350.3, par. 4-7(C)(2)(b)];
• You determine that there’s “reasonable cause to believe that a household member’s illegal use or a pattern of illegal use of a drug may interfere with the health, safety, or right to peaceful enjoyment of the premises by other residents” [HUD Handbook 4350.3, par. 4-7(C)(2)(b)];
• You determine that there’s “reasonable cause to believe that a household member’s abuse or pattern of abuse of alcohol interferes with the health, safety, or right to peaceful enjoyment of the premises by other residents” [HUD Handbook 4350.3, par. 4-7(C)(2)(d)]; or
• Any household member is subject to a lifetime registration requirement under a state sex offender registration program [HUD Handbook 4350.3, par. 4-7(C)(2)(c)].

Optional screening criteria. The rule also lets you adopt optional screening criteria. Specifically, you may reject a household if, during a reasonable time before the date of the admission decision, a household member “is currently engaging in, or has engaged in”:

• Drug-related criminal activity [HUD Handbook 4350.3, par. 4-7(C)(3)(a)];
• Violent criminal activity [HUD Handbook 4350.3, par. 4-7(C)(3)(b)]; or
• Other criminal activity that would threaten other residents’—or site employees’, contractors’, or agents’—health or safety or their right to peaceful enjoyment of the premises [HUD Handbook 4350.3, par. 4-7(C)(3)(c)].

It’s up to you to decide what crimes warrant rejection. But once you decide, you must add those criteria to your resident selection plan and apply them to every applicant. Managers differ on what types of crimes warrant rejecting applicants. For example, some may reject applicants who’ve committed any type of criminal activity, even a misdemeanor. But others may reject only those with violent felonies in their backgrounds. Whatever you decide, HUD says you must put your criteria in writing so that your staff knows when to reject applicants [HUD Handbook 4350.3, par. 8-14(B)].

Use Form to Get Information and Consent

To get the information you need to comply with these screening requirements, require all adult applicants to answer specific questions about their criminal backgrounds and give their consent to your conducting criminal background checks. Our Model Form: Ask Applicants About Criminal Background can help you get that information and consent.

Like our form, your form should explain to applicants that federal law requires you to get information about the drug and criminal backgrounds and sex offender registration status of all adult household members applying for assisted housing and it should ask questions to implement any optional screening criteria your site may have.

Your form should also obtain information you’ll need to conduct background checks. If an applicant answers no to all your criminal background questions, you should conduct a criminal background check to confirm this. So ask for information you’ll need to conduct a criminal background check. Our form asks for every state the applicant has lived in, driver’s license information, and any aliases. It also asks for consent to run a criminal background check. Federal and state laws require you to get an applicant’s consent to release criminal information to you or any agency or contractor who screens for you.

Reject Applicants Who Don’t Meet Screening Criteria

If an applicant answers yes to the questions that deal with HUD’s mandatory screening criteria, you must reject her. If an applicant answers yes to the questions that deal with other criminal activity, you can, and in most cases should, reject her.

It’s best to reject all applicants who don’t meet the criminal screening criteria spelled out in your resident selection plan, says Ohio attorney James Bownas. Don’t pick and choose. If you have written criteria that call for rejecting all those convicted of violent felonies, then reject everyone with those convictions. Picking and choosing can invite fair housing complaints by other applicants with similar criminal backgrounds.

Conduct Background Check to Verify Applicant’s Information

Conduct criminal background checks to verify independently whether the information in the form is correct. HUD says you should do this in every state where the applicant has lived.

HUD says that you may use the local PHA to do criminal background checks [HUD Handbook 4350.3, par. 8-14(C)]. If you do, you must get the applicant’s consent to perform criminal background checks [HUD Handbook 4350.3, par. 8-14(C)(2)(a)], provide the PHA with your screening criteria [HUD Handbook 4350.3, par. 8-14(C)(2)(b)], and pay any fees the PHA requires (which are site expenses and can’t be charged to the applicant) [HUD Handbook 4350.3, par. 8-14(C)(2)(c)]. The PHA will tell you whether the applicant meets your site’s screening criteria but won’t tell you what the applicant’s background contains [HUD Handbook 4350.3, par. 8-14(C)(4)].

HUD says you may use sources other than the PHA to conduct criminal background checks [HUD Handbook 4350.3, par. 4-27(E)(4)(b)]. Other sources include screening companies; private investigators; state and local law enforcement agency records; National Crime Information Center (NCIC) reports, Internet screening services; state sex offender registration Web sites; and references from former owners or managers.

HUD makes clear that you can’t charge applicants a fee for criminal background checks. If you conduct your own criminal background checks or use sources other than a PHA, HUD says you must follow federal and state privacy laws and laws on criminal background checks [HUD Handbook 4350.3, par. 8-14(C)(15)].

Insider Source

James Bownas, Esq.: Partner, Lane Alton Horst LLC, Two Miranova Pl., Columbus, OH 43215; www.lanealton.com.