Pubdate: Tue, 11 Mar 2003
Source: New York Law Journal (NY)
Copyright: 2003 NLP IP Company
Contact:  http://www.nylj.com/
Details: http://www.mapinc.org/media/615
Author: Tom Perrotta

DRUG-RELATED EVICTION PROMPTS HEARING INTO LANDLORD'S DECISION

A disabled woman facing eviction from subsidized housing because of her 
daughter's drug use deserves a hearing to determine if her landlord acted 
arbitrarily, a Manhattan judge has ruled.

Civil Court Judge Michelle D. Schreiber last week questioned whether the 
landlord, Hampton House Inc., had simply felt pressured to seek an eviction 
after being asked to do so by the Manhattan District Attorney's Office.

When residents who receive federal housing subsidies, such as Section 8 
funding, are arrested on drug charges, district attorneys regularly notify 
landlords and ask them to begin eviction proceedings.

If landlords do not comply, district attorneys can begin the proceedings 
themselves and seek civil penalties against landlords under Real Property 
Actions and Proceedings Law Section 715.

Hampton Houses received a notice about one of its Section 8 tenants, Andrea 
Smith, earlier this year after Smith's daughter, Sandra Hill, was arrested. 
On Jan. 25, officers executing a search warrant at Smith's apartment at 410 
St. Nicholas Ave. in Manhattan found five pounds of marijuana, a scale and 
plastic bags.

Smith, 50, has lived at her sixth-floor apartment for 28 years and has 
"profound disabilities," in the words of Judge Schreiber. She is a diabetic 
with a failing kidney who receives regular dialysis treatments. She also 
has a pacemaker, is legally blind in one eye, has no use of her legs, is 
incontinent and needs the care of a home attendant six days a week.

Hill pleaded guilty to possession of marijuana, was sentenced to time 
served and paid a fine. She has testified that her mother never knew about 
her drug possession and claims she never sold drugs from the apartment, 
despite allegations that an undercover officer purchased marijuana from 
her. She has since left the apartment and lives in a shelter with her son, 
though she visits the apartment on occasion.

U.S. Supreme Court Ruling

Whether or not she knew of her daughter's troubles, Smith, like all tenants 
who live in public housing or receive federal subsidies, is subject to 
strict federal regulations affirmed last April by the U.S. Supreme Court in 
HUD v. Rucker, 535 U.S. 125.

Under 42 USC Section 1437f and 24 CFR 882.413(a), agencies and landlords 
administering rent subsidies can terminate tenancies for drug activity, 
whether or not the named tenant knew about the activity. Though the 
statutes affirmed by Rucker do not mandate evictions in all cases, the 
right to evict is broad, applying even in a case where, for example, the 
offender was a one-time guest at the tenant's apartment who was apprehended 
on the grounds of a building rather than inside the apartment.

Judge Schreiber recognized as much in Hampton Houses Inc. v. Smith, 
83367/02, but she relied on a recent decision from the Superior Court of 
New Jersey, Appellate Division, in deciding that the court must determine 
whether "a landlord exercised its discretion properly, if at all."

The judge said: "This inquiry is especially necessary in circumstances like 
this where it appears that the DA's office may have compelled the 
commencement of this proceeding, thereby preventing the landlord from 
exercising its discretion."

Since Hampton Houses had failed to provide evidence regarding its "weighing 
process" sufficient to allow the court to exercise its "power of review," 
the judge said, a hearing was necessary to investigate the decision to 
evict. (See Oakwood Plaza Apartments v. Smith, 352 NJ Super 467).

Since the U.S. Supreme Court's ruling in Rucker, the U.S. Department of 
Housing and Urban Development (HUD) has urged local housing authorities in 
letters to consider mitigating factors before evicting families on 
drug-related charges, warning that rigid action could cause more harm than 
good.

But when faced with strict legal questions about such evictions, HUD has 
made it clear it believes the authority to evict under Rucker is absolute.

In a letter last summer to an attorney for a public housing building in 
Yonkers, for example, Carole W. Wilson, associate general counsel for 
litigation at HUD, wrote that a public housing authority can "evict all 
members of a household any time the relevant lease provision is violated."

The letter went on to say that the New Jersey appellate court's ruling in 
Oakwood is "inconsistent with, and contrary to, the rationale of Rucker."

Paris R. Baldacci, a clinical professor at Cardozo School of Law and an 
expert on housing law, said Judge Schreiber's decision to hold a hearing 
seemed appropriate under the law.

"I think what she is inquiring into is whether the landlord thought he did 
not have any options at all," Baldacci said.

Jaya K. Madhavan of the Community Law Offices of the Legal Aid Society, who 
recently began representing Smith, said the case is an example of what can 
go wrong when tough housing laws are strictly applied.

"I think it is a real tragedy when you try to take advantage of someone 
like this," Madhavan said. "Clearly she poses no threat to the tenant 
community."

Gutman, Mintz, Baker & Sonnenfeldt, which represents Hampton House, did not 
return calls for comment.

A spokeswoman for the Manhattan district attorney said the office had just 
received the ruling and declined to comment. Justice Schreiber has invited 
the office to appear at Smith's hearing next week.
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