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.