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August 25, 2012 · A.J. Johnson

Possession of Drug Related Paraphernalia May Not be Reason for Application Denial

Management companies wishing to make possession of drug related paraphernalia a violation of criminal screening policies should carefully examine the definition of "drug-related criminal activity" contained in their screening procedures.   The Housing Authority of Indiana County (HAIC), PA, denied a voucher to an applicant for a possession of drug paraphernalia conviction one month prior to applying for a voucher. The applicant appealed, but the hearing officer upheld the voucher denial. However, the decision of the hearing officer was overturned by both the trial and appeals court.   HAIC argued that the possession of drug paraphernalia is inextricably linked to drug use, but, using the HUD definition of "drug related criminal activity" as contained in 24 CFR 5.982.553(a)(2)(ii)(A)(1), the courts ruled otherwise. HUD’s definition of "drug related criminal activity" is Possession of drug paraphernalia is not part of the HUD definition. As stated by the court, while possession of drug paraphernalia may be a crime, "the elements of the crime of possessing drug paraphernalia do not require actual possession of a drug." "A conviction for ‘drug related criminal activity’ requires the possession of a controlled substance; possession of drug paraphernalia does not."   Owners and agents wishing to make possession of drug paraphernalia part of a property’s criminal screening policy for which tenancy can be denied should include such a statement in their criminal screening policy.
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