Monday, July 16, 2012

Housing - Sec. 8 - conviction for possession of drug paraphernalia not disqualifying

Romagna v. Housing Authority of Indiana Co. - Cmwlth. Court -July 13, 2012 - unreported memorandum decision

http://www.pacourts.us/OpPosting/Cwealth/out/1648CD11_7-13-12.pdf

Conviction for possession of "drug paraphernalia" did not disqualify applicant from sec. 8 housing assistance, since such activity is not the basis for disqualification under any statutes or regulations.

HUD regulations give a housing authority power to deny entry to an applicant who has engaged in "[d]rug-related criminal activity." 24 C.F.R. §982.553(a)(2)(ii)(A)(1). This regulation defines "drug-related criminal activity" as the illegal manufacture, sale, distribution, or use of a drug, or the possession of a drug with intent to manufacture, sell, distribute or use the drug. 24 C.F.R. §5.100. It defines "drug" as any "controlled substance as defined in section 102 of the Controlled Substances Act (21 U.S.C. §802)." 24 C.F.R. §5.100.

This regulation parrots Section 8(f)(5) of the Housing and Community Development Act of 1974, 42 U.S.C. §1437f(f)(5), which also defines "drug-related criminal activity" as "the illegal manufacture, sale, distribution, use, or possession with intent to manufacture, sell, distribute, or use, of a controlled substance (as defined in Section 802 of title 21)." Title 21 states that a controlled substance is a "drug or other substance, or immediate precursor, included in schedule I, II, III, IV, or V of part B of this subchapter."

Title 21 incorporates the meaning of "drug" set forth in the Food, Drug, and Cosmetic Act, 21 U.S.C. §321(g)(1), which states as follows: The term "drug" means (A) articles recognized in the official United States Pharmacopoeia, official Homoeopathic Pharmacopoeia of the United States, or official National Formulary, or any supplement to any of them; and (B) articles intended for use in the diagnosis, cure, mitigation, treatment, or prevention of disease in man or other animals; and (C) articles (other than food) intended to affect the structure or any function of the body of man or other animals; and (D) articles intended for use as a component of any article specified in clause (A), (B), or (C)…. 21 U.S.C. §321(g)(1).

Neither the definition of "drug" nor "controlled substance" includes drug paraphernalia. The Housing Authority does not offer any authority for its view that these terms do include drug paraphernalia. It merely argues that the trial court’s analysis ignores the reality that possession of drug paraphernalia is a crime because it goes hand-in-hand with drug usage.

Under the Housing Authority’s own regulation, a drug-related criminal activity requires the actual use or possession of a drug, and it does not include possession of paraphernalia. Applicant’s drug paraphernalia conviction was not relevant to her eligibility for housing.

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The opinion, though not reported, may be cited "for its persuasive value, but not as binding precedent." 210 Pa. Code § 67.55. Citing Judicial Opinions.

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