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:

1. 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.

2. 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.

3. 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.

4. 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.

5. 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.

6. 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.