Opinion
No. 946 C.D. 2011
06-19-2012
The Housing Authority of the City of Pittsburgh, Appellant v. Evelyn McBride
BEFORE: HONORABLE BERNARD L. McGINLEY, Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE ANNE E. COVEY, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE BROBSON
The Housing Authority of the City of Pittsburgh (Authority) appeals from an order of the Court of Common Pleas of Allegheny County (trial court), dated April 26, 2011. The trial court granted Evelyn McBryde's (Applicant) appeal from the Authority's decision to deny her application for federally subsidized housing benefits and remanded the matter for a new hearing. For the reasons that follow, we reverse.
We note that although the caption of this matter refers to Evelyn "McBride," spelled with an "i," the parties consistently refer to Applicant as Evelyn "McBryde," spelled with a "y."
On March 15, 2010, Applicant applied to the Authority for admission into the Section 8 Housing Choice Voucher Program (Section 8 Program). The Authority denied Applicant's application based on the results of her criminal background check, indicating that she did not provide evidence of rehabilitation, and because, at the time of her application, she owed money to the Allegheny County Housing Authority (ACHA). (Reproduced Record (R.R.) at 29a.)
Housing is subsidized by the federal government pursuant to Section 8 of the United States Housing Act (Section 8), as amended, 42 U.S.C. § 1437f. The Section 8 Program is administered by the Department of Housing and Urban Development (HUD). On the local level, the Section 8 Program is administered by public housing agencies (PHAs), which are required by Section 982.54 of the HUD regulations to "adopt a written administrative plan that establishes local policies for administration of the program in accordance with HUD requirements." 24 C.F.R. § 982.54. HUD requirements are "issued by HUD headquarters, as regulations, Federal Register notices or other binding program directives." 24 C.F.R. § 982.52.
On September 14, 2010, Applicant requested an informal grievance hearing, which was held before a hearing officer on October 13, 2010. By decision dated October 21, 2010, the hearing officer denied Applicant's grievance, reasoning:
1. Through [Authority] attorney, John Ciroli, Esquire, Marsha Grayson, Esquire, [Authority] Section 8 and Occupancy Departments, testified that you applied for Section 8 on March 15, 2010. Ms. Grayson submitted a copy of the HR Screening Services Criminal History Record showing you entered a guilty plea from 1995 through 2010 for the offenses of 11 counts of retail theft, endangering the welfare of children and theft by deception or false impression. [(R.R at 38a-39a.)] Also, Ms. Grayson submitted evidence that you owe the Allegheny County Housing (ACHA) $745.00. On that basis, she notified you that your application was withdrawn.
2. You submitted evidence that your current balance owed to ACHA is $695.50. You testified that the YMCA is backing you up and is ready to pay the ACHA balance on your behalf at anytime. You testified that you have been clean from drugs and alcohol since September 27, 2007. You submitted evidence that you have participated in the following programs: The Singing Angels Choir; Alcoholics Anonymous Training; POWER Drug and Alcohol Outpatient Treatment from
June 2009 though [sic] May 2010; FPC Alderson Comprehensive Drug Treatment Program; Addiction Recovery Services transitional [sic] Drug Abuse Treatment from October 2008 through present; YWCA Greater Pittsburgh; and therapy from Dinnie Goldring, LCSW. You testified that you have temporary custody of your two grandchildren.
. . . .
[Authority] Policy, adopted pursuant to 24 C.F.R. § 982.307(a)(3)(iv), provides that an applicant may be denied housing assistance for drug related criminal activity or other criminal activity that is a threat to the health, safety or property of others. [The Authority] will consider the time frame of the offense and may consider evidence of rehabilitation. Also, [Authority] Policy provides that an applicant may be denied housing assistance for outstanding balances owed to a current or previous landlord.
The testimony and evidence presented at the hearing established that you have not maintained a crime free lifestyle for a substantial period of time. Also, you still have an outstanding balance owed to the ACHA.(R.R. at 36a-37a.)
. . . .
Based on the testimony and evidence presented, it is determined that your grievance is denied.
Section 982.307 of the HUD regulations, entitled "Tenant Screening," provides, in pertinent part:
(a) PHA option and owner responsibility:
(1) The PHA has no liability or responsibility to the owner or other persons for the family's behavior or suitability for tenancy. However, the PHA may opt to screen applicants for family behavior or suitability for tenancy. The PHA must conduct any such screening of applicants in accordance with policies stated in the PHA administrative plan.
(2) The owner is responsible for screening and selection of the family to occupy the owner's unit. At or before PHA approval of the tenancy, the PHA must inform the owner that screening and selection for tenancy is the responsibility of the owner.
(3) The owner is responsible for screening of families on the basis of their tenancy histories. An owner may consider a family's background with respect to such factors as:
. . . .
(iv) Drug-related criminal activity or other criminal activity that is a threat to the health, safety or property of others.
Following the grievance hearing, the balance that Applicant owed to ACHA was paid in full. (R.R. at 14a, 22a.)
On December 3, 2010, Applicant appealed the hearing officer's decision to the trial court. Applicant argued that her criminal activity over the last decade is not the type for which the Authority may deny admission into the Section 8 Program under Section 982.553(a)(2)(ii) of the HUD regulations. Applicant also contended that the hearing officer improperly relied on Section 982.307(a)(3)(iv) of the HUD regulations, as opposed to Section 982.553(a)(2)(ii) of the HUD regulations, in denying her application based on past criminal activity, because Section 982.307(a)(3)(iv) is directed to property owners screening potential tenants for renting purposes, not PHAs deciding whether to admit an applicant into the Section 8 Program. Finally, Applicant argued that the hearing officer abused her discretion by denying Applicant's admission into the Section 8 Program without considering Applicant's circumstances and evidence of rehabilitation, as required by Section 982.552(c)(2) of the HUD regulations. (R.R. at 45a-52a.)
Section 982.553(a)(2)(ii) of the HUD regulations, 24 C.F.R. § 982.553(a)(2)(ii), provides, in pertinent part:
(a) Denial of admission.
. . . .
(2) Prohibiting admission of other criminals—
. . . .
(ii) Permissive prohibitions.
(A) The PHA may prohibit admission of a household to the program if the PHA determines that any household member is currently engaged in, or has engaged in during a reasonable time before the admission:
(1) Drug-related criminal activity;
(2) Violent criminal activity;
(3) Other criminal activity which may threaten the health, safety, or right to peaceful enjoyment of the premises by other residents or persons residing in the immediate vicinity; or
(4) Other criminal activity which may threaten the health or safety of the owner, property management staff, or persons performing a contract administration function or responsibility on behalf of the PHA (including a PHA employee or a PHA contractor, subcontractor or agent).
(B) The PHA may establish a period before the admission decision during which an applicant must not have engaged in the activities specified in paragraph (a)(2)(i) of this section ("reasonable time").
Section 982.552(c)(2) of the HUD regulations, 24 C.F.R. § 982.552(c)(2), provides, in pertinent part:
(c) Authority to deny admission or terminate assistance.
. . . .
(2) Consideration of circumstances. In determining whether to deny or terminate assistance because of action or failure to act by members of the family:
(i) The PHA may consider all relevant circumstances such as the seriousness of the case, the extent of participation or culpability of individual family members, mitigating circumstances related to the disability of a family member, and the effects of denial or termination of assistance on other family members who were not involved in the action or failure.
. . . .
(iii) In determining whether to deny admission or terminate assistance for illegal use of drugs or alcohol abuse by a household member who is no longer engaged in such behavior, the PHA consider whether such household member is participating in or has successfully completed a supervised drug or alcohol rehabilitation program, or has otherwise been rehabilitated successfully (42 U.S.C. [§] 13661). For this purpose, the PHA may require the applicant or tenant to submit evidence of the household member's current participation in, or successful completion of, a supervised drug or alcohol rehabilitation program or evidence of otherwise having been rehabilitated successfully.
By order dated April 26, 2011, the trial court granted Applicant's appeal and remanded the matter for a new hearing before a different hearing officer. In doing so, the trial court did not address Applicant's argument that her criminal activity over the last decade could not serve as a basis for denial under Section 982.553(a)(2)(ii) of the HUD regulations, or Applicant's argument that the hearing officer improperly relied on Section 982.307(a)(3)(iv) of the HUD regulations. Instead, the trial court reasoned:
The decision of the Hearing Officer gives little indication of why she felt [Applicant] had been involved in "criminal activity that is a threat to the health, safety or property of others." There is also no indication of what time frame she applied either for the past record of criminal offenses or for evidence of rehabilitation.
This is important because there was substantial evidence presented to her regarding [Applicant]'s rehabilitation, none of which is discussed at all.
The decision appears to have been based on what the Housing Authority's discretion is as a general rule rather than on whether or not it was properly exercised here.(Trial Court's Memorandum in Support of Order at 1-2 (emphasis in original).) Furthermore, the trial court directed the new hearing officer to consider the following circumstances on remand:
1. The nature and seriousness of the crimes charged and the dates of the offenses (not just the dates of the convictions).(Id. at 2.) The trial court did not explain its reasoning for remanding to a different hearing officer. This appeal followed.
2. The amount of time that has passed since the last offense was committed.
3. The reasons why [Applicant] was given custody of her two grandchildren.
4. The reports of the various agencies and counselors involved with [Applicant] and her efforts at rehabilitation.
5. The effect on the grandchildren if [Applicant]'s application for Section 8 benefits is not granted.
6. The current willingness of an agency such as the YMCA to pay the balance owed to the County's Housing Authority; we assume that such a payment would be conditioned on [Applicant] otherwise being found eligible for Section 8 housing.
In its 1925 opinion, the trial court conceded that it erred in remanding the case to a different hearing officer. (Trial Court's 1925 Opinion at 4.)
On appeal, the Authority argues, inter alia, that the trial court erred in failing to uphold the Authority's denial, because Applicant owed money to ACHA at the time she applied for admission into the Section 8 Program. Despite the fact that Applicant no longer owed a balance to ACHA at the time of the trial court's order, we agree.
Our scope of review is limited to determining whether constitutional rights were violated, whether an error of law was committed, or whether necessary findings of fact are supported by substantial evidence. Allegheny Co. Housing Auth. v. Liddell, 722 A.2d 750, 752 (Pa. Cmwlth. 1998).
In addition, the Authority argues that the trial court exceeded its scope of review, that the trial court erred in ordering the hearing officer to consider specific circumstances on remand, and that the trial court erred in ordering that the matter be remanded to a different hearing officer.
The Authority denied Applicant's admission into the Section 8 Program on two grounds: (1) Applicant had not maintained a crime free lifestyle for a substantial period of time, and (2) Applicant had an outstanding balance owed to ACHA. Accordingly, this Court must uphold the hearing officer's decision if either basis for denial was proper.
Pursuant to Section 982.552(c)(1)(v) of the HUD regulations, a PHA may deny program assistance for an applicant "[i]f the family currently owes rent or other amounts to the PHA or to another PHA in connection with Section 8 or public housing assistance under the 1937 Act." In turn, Section 3-III.C of the Authority's Administrative Plan provides, in pertinent part:
[The Authority] will deny admission to an applicant family if [the Authority] determines that the family:
. . . .
The family currently owes rent or other amounts to any PHA in connection with HCV, Certificate, Moderate Rehabilitation or public housing programs as follows:
[The Authority] will not deny Program assistance on the basis of a debt obligation which originated
(R.R. at 55a-56a (emphasis in original).) Under the Administrative Plan, therefore, the Authority "will" deny an applicant's admission into the Section 8 Program based on a debt owed to any PHA if that debt originated within four (4) years of the date of the application.more than four years prior to the date of application, unless: 1) a legal proceeding that has resulted in a final judgment in favor of the creditor was initiated to collect on the debt obligation at issue within four years of the date the debt obligation accrued, and 2) the creditor obtained a presently valid writ of execution for the debt which remains unsatisfied or the creditor is within the applicable statute of limitations for obtaining a writ of execution or the creditor obtained a judgment lien on real property within the five year period after the judgment which remains unsatisfied and 3) collection of the debt is not barred by laches. In addition, persons against whom legal proceedings to collect on a debt obligation are pending, if otherwise eligible, will be placed on a contingent list pending the outcome of the legal proceeding
Section 3-III.C of the Administrative Plan's use of the word "will" is discussed infra.
Here, it is undisputed that Applicant owed a debt to ACHA at the time she applied for benefits and at the time of the October 13, 2010 grievance hearing. The fact that the YMCA later paid Applicant's debt to ACHA is irrelevant for purposes of determining whether the Authority properly denied her admission based on the debt. As the Authority stated in its answer to Applicant's appeal to the trial court, "[t]he balance owed to ACHA has been paid off but it was not paid off until November, and the grievance hearing was held in October." (Id. at 22a.) While the Authority could not specify before the hearing officer when Applicant's debt to ACHA originated, (id. at 33a), and, as a result, failed to establish that the debt originated within four years of Applicant's application, as required by Section 3-III.C of the Administrative Plan, Applicant did not challenge the hearing officer's denial on that basis before the trial court. Instead, Applicant's only argument before the trial court having any relevance to the hearing officer's denial based on Applicant's debt to ACHA was that the hearing officer abused her discretion by denying Applicant's application without considering all relevant circumstances under Section 982.552(c)(2) of the HUD regulations.
A court's review of an agency action committed to the agency's discretion by law is well-established:
[C]ourts will not review the actions of governmental bodies or administrative tribunals involving acts of discretion, in the absence of bad faith, fraud, capricious action or abuse of power; they will not inquire into the wisdom of such actions or into the details of the manner adopted to carry them into execution. It is true that the mere possession of discretionary power by an administrative body does not make it wholly immune from judicial review, but the scope of that review is limited to the determination of whether there has been a manifest and flagrant abuse of discretion or a purely arbitrary execution of the agency's duties or functions. That the court might have a different opinion or judgment in regard to the action of the agency is not a sufficient ground for interference; judicial discretion may not be substituted for administrative discretion.
Interpreting Section 982.552(c)(2)(i) of the HUD regulations in Housing Authority of York v. Dickerson, 715 A.2d 525, 526-27 (Pa. Cmwlth. 1998), this Court held that PHAs are not required to consider all factors and circumstances in each case, but rather, have discretion to determine which factors and circumstances to consider. Because Section 982.552(c)(2)(i) of the HUD regulations is discretionary, not mandatory, we must look to the Administrative Plan to determine what factors and circumstances, if any, the hearing officer was required to consider before denying Applicant's application based on Applicant's debt to ACHA.
Section 3-III.C of the Administrative Plan provides that "[the Authority] will deny admission to an applicant family if [the Authority] determines that . . . [t]he family currently owes rent or other amounts to any PHA." The same section, however, also provides: "In making its decision to deny admission, [the Authority] will consider the factors discussed in Section 3-III.E [of the Administrative Plan]. Upon consideration of such factors, [the Authority] may, on a case-by-case basis, decide not to deny admission." (R.R. at 56a (second emphasis added).) While Section 3-III.C of the Administrative Plan's use of the word "will" is somewhat contradictory, we interpret this section to require consideration of the factors listed in Section 3-III.E of the Administrative Plan, even where a denial is based upon an amount owed to a PHA. Section 3-III.E of the Administrative Plan, in turn, provides, in pertinent part:
Consideration of Circumstances [24 CFR § 982.552(c)(2)]
HUD authorizes PHA's to consider all relevant circumstances when deciding whether to deny admission based on a family's past history except in the situations for which denial of admission is mandated (see Section 3-III.B).
[The Authority] will consider the following factors when making its decision:
The seriousness of the case, especially with respect to how it would affect other residents;
The effects that denial of admission may have on other members of the family who were not involved in the action or failure;
The extent of participation or culpability of individual family members, including whether the culpable family member is a minor or a person with disabilities;
The length of time since the violation occurred, the family's recent history and the likelihood of favorable conduct in the future; and
In the case of drug or alcohol abuse, whether the culpable household member is participating in or has successfully completed a supervised drug or alcohol rehabilitation program or has otherwise been rehabilitated successfully.
[The Authority] will require the applicant to submit evidence of the household member's current participation in or successful completion of a supervised drug or alcohol rehabilitation program or has otherwise been rehabilitated successfully.(Id. at 59a-60a (brackets in original) (emphasis added).)
A review of the hearing officer's decision reveals that, before denying Applicant's admission into the Section 8 Program, the hearing officer considered all factors listed in Section 3-III.E of the Administrative Plan relative to Applicant's debt to ACHA. With respect to Section 3-III.E of the Administrative Plan's first factor, when a denial is based upon an amount owed to a PHA, the "seriousness of the case" depends on the amount of the debt and the likelihood that the debt will be satisfied. Here, the hearing officer noted that Applicant owes ACHA either $695.50 (based on Applicant's evidence) or $745.00 (based on the Authority's evidence), and acknowledged that the YMCA was willing to pay Applicant's outstanding balance to ACHA at any time. Concerning Section 3-III.E of the Administrative Plan's second factor, the hearing officer recognized that Applicant had temporary custody of her two grandchildren, thereby evidencing consideration of "[t]he effects that a denial would have on other members of the family." As to Section 3-III.E of the Administrative Plan's third factor, it is clear from the hearing officer's decision that Applicant is the family member responsible for the debt to ACHA. Regarding Section 3-III.E of the Administrative Plan's fourth factor, the hearing officer noted that Applicant's debt to ACHA was still outstanding at the time of the October 13, 2010 grievance hearing, and that the YMCA was willing to pay Applicant's debt to ACHA, thereby evidencing consideration of the "the length of time since the violation occurred . . . and the likelihood of favorable conduct in the future." Finally, with regard to Section 3-III.E of the Administrative Plan's fifth factor, although the hearing officer's denial was not based on drug or alcohol abuse, to the limited extent that Applicant's drug history may have been relevant to her debt to ACHA, the hearing officer acknowledged Applicant's participation in various treatment programs, and noted that Applicant has been clean since September 27, 2007. The trial court, therefore, erred in failing to uphold the hearing officer's denial based on Applicant's debt to ACHA.
Section 3-III.E of the Administrative Plan's first factor has more significance where a denial is based on drug-related criminal activity, violent criminal activity, or other criminal activity that may threaten the health, safety, or peaceful enjoyment of the premises by other residents. See Section 982.553(a)(2)(ii) of the HUD regulations; (R.R. at 54a-55a). In that situation, the Authority must consider the potential threat posed by an applicant to other residents based on the severity of the applicant's criminal conduct to protect the health, safety, and peaceful enjoyment of the premises. Conversely, the amount that Applicant owes to ACHA does not have a direct effect on the Authority's residents, especially with regard to health, safety, and peaceful enjoyment. --------
Accordingly, we reverse the trial court's order.
/s/_________
P. KEVIN BROBSON, Judge
ORDER
AND NOW, this 19th day of June, 2012, the order of the Court of Common Pleas of Allegheny County, dated April 26, 2011, is hereby REVERSED.
/s/_________
P. KEVIN BROBSON, Judge
Allegheny Cnty. Hous. Auth. v. Liddell, 722 A.2d 750, 753 (Pa. Cmwlth. 1998) (quoting Blumenschein v. Hous. Auth. of Pittsburgh, 379 Pa. 566, 573, 109 A.2d 331, 335 (1954)) (emphasis in original).