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Federal law does not allow a housing authority to terminate Section 8 assistance for just any violent criminal activity, a 3-2 Commonwealth Court panel has ruled, affirming the Allegheny County, Pa., Common Pleas Court. While a housing authority does have the power to deny assistance to individuals who have committed criminal acts before applying for housing, the majority said there are only limited circumstances when existing benefits can be taken away. Those circumstances relate to the location of the crime. In the case recently decided, Powell v. Housing Authority of the City of Pittsburgh, PICS Case No. 00-1748 (Pa. Commw. Aug. 30, 2000; McGinley, J; Leadbetter, J., dissenting), the plaintiffs’ sons committed a carjacking about 10 city blocks from their housing unit. The court said that was not close enough to find that the boys threatened the “health, safety, or right to peaceful enjoyment” of those living in the unit’s immediate vicinity. GRIEVANCE According to the opinion written by Commonwealth Court Judge Bernard McGinley, Beverly Powell and her three sons had lived in Section 8 housing in Pittsburgh since 1997. On Aug. 25, 1998, Powell’s two oldest sons carjacked a vehicle in a nearby supermarket parking lot, spraying an elderly woman with pepper spray and removing her from the car before driving off. The two boys were adjudicated delinquent. The Housing Authority of the City of Pittsburgh terminated Powell’s Section 8 assistance on the basis of the carjacking, citing federal authority that violent criminal activity provides cause for ceasing benefits. Powell filed a grievance stating that she “raised her children to the best of her ability and had no idea her two children would commit a carjacking,” McGinley said. Powell said she also needed the assistance for the welfare of her youngest son. A hearing officer terminated Powell’s assistance, relying partially on the fact that Powell had signed a “notice of family obligations,” which said members of the family must not engage in drug-related or violent criminal activity. Powell appealed to the common pleas court, which remanded for completion of a full and complete record, including detailed information about the location of the alleged criminal activity. The court said legislation governing contracts between public housing agencies and Section 8 owners, U.S.C. Section 1437f(d)(1)(b), and legislation covering public housing leases, 42 U.S.C. Section 1437d(1)(6), allow Section 8 assistance to be terminated only for “non-drug criminal activity that threatens the health, safety, or right to peaceful enjoyment of the premises by the other tenants or of the residences of persons residing in the immediate vicinity of the premises.” On remand, the hearing officer found that Powell did indeed sign the family obligations form and understood that criminal activity by family members would not be tolerated. The officer said the carjacking was a criminal activity, and it took place in the immediate vicinity of the Powell residence. The grievance was again denied. On appeal, the common pleas court granted the grievance, finding Powell’s sons did not threaten the health, safety and right to peaceful enjoyment of persons living in the immediate vicinity of their residence. The court focused on the immediacy of the carjacking location to the Powells’ residence, finding that the supermarket located approximately 10 city blocks away was not within the immediate vicinity of the premises. CONGRESS’S INTENT Before the Commonwealth Court, HACP argued that the trial court failed to follow Congress’s intent to protect Section 8 residents and their neighbors from violent criminal actions. But McGinley said HACP misinterpreted the legislation. He said the legislation addresses the contract between the housing authority and the owner of the housing unit, not the tenants of that unit. “Clearly, Congress has provided a means for an owner of a housing unit who rents to a recipient of Section 8 housing assistance to terminate tenancy on the basis of violent criminal activity,” he said. “Further, the statutes cited by HACP indicate that a housing authority may deny assistance to an applicant for Section 8 assistance when the applicant had engaged in violent criminal activity prior to the time of application. “However, we agree with the common pleas court that Congress did not specifically, by statute, authorize a housing authority to terminate Section 8 assistance if one of the tenants engages in violent criminal activity.” ‘IMMEDIATE VICINITY’ HACP’s next argument centered on the term “immediate vicinity” as used in the federal statutes. It said the term denoted criminal activity that poses a threat to those living in the immediate vicinity of the criminal’s Section 8 housing, rather that near the scene of the crime itself. McGinley said what mattered most was where the crime occurred. Not all criminal activity gives an owner the right to terminate housing assistance, he said. “We agree with the common pleas court that in order to terminate assistance a housing authority must establish that the recipient engaged in violent criminal activity within the immediate vicinity of the housing unit,” he said. Even so, HACP argued, the common pleas erred by disregarding the hearing officer’s finding that the carjacking did occur within the immediate vicinity of the premises. The Commonwealth Court said that was not a question of fact, but a question of law, and was therefore properly reviewed by the trial court. Judge Bonnie Brigance Leadbetter dissented without opinion.

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