In This Issue

• Tenant Evictions
  • Nonpayment of Rent
  • Family Members and Drug Possession
  • Drug Activity by a Guest
• Constitutional Issues
  • Low Bidders on Construction Projects
  • Search of Employee Lockers
• Lead-Based Paint: Class Action Suit

Tenant Evictions

Nonpayment of Rent

Lawrence F.
Feheley

The Ohio Court of Appeals for Mahoning County has permitted the eviction of a disabled tenant from a federally subsidized unit because of nonpayment of rent.

In Alpha Phi Alpha Home v. Marshall, 1999 WL 148365 (Mah. Co. 1999), the tenant lived in a subsidized unit for elderly and disabled tenants. The tenant claimed that she could not pay her rent because of extraordinary travel expenses necessitated for medical treatment. After incurring the expenses, she sought reimbursement from the state.

However, the state delayed in sending the payment to her, which resulted in her inability to pay her rent. The court reluctantly permitted the Section 8 landlord's eviction for nonpayment of rent, stating that it sympathized with the tenant's plight and the "harsh consequences" of the decision.

[Source: BNA Housing & Development Reporter, April 5, 1999 Issue; pg. 780]

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Family Members and Drug Possession

The question of whether a PHA can evict a tenant because of a family member's drug involvement has met mixed results in the courts. In Housing Authority of Jersey City v. Thomas, 1999 WL 61703 (N.J. Super. A.D. 1999), an appellate court in New Jersey has weighed in on the side of refusing to allow an eviction.

In this case the tenant had resided in the public housing unit for nearly thirty years. Her adult son was listed as a household member on the lease. The son was arrested in the housing unit when he was in possession of 181 vials of cocaine. The PHA sought to evict the tenant.

The basis for the eviction was a state statute that allowed the eviction of a tenant who permits someone who commits a drug offense within the leased unit. The landlord also argued that federal law preempts state law, and that under the federal law a tenant is strictly liable for any drug related activity within the unit.

The appellate court denied the eviction, citing the facts that the tenant herself did not engage in any drug activity, and that she did not know that her son or the drugs were in the unit at the time of the police raid. As to the federal law, the court stated that "federal law does not require the eviction of an innocent tenant whose residence is invaded by a transgressor who surreptitiously conducts illegal drug activities on the premises."

[Source: BNA Housing & Development Reporter, March 8, 1999 Issue; pg. 715]

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Drug Activity by a Guest

The opposite result was reached on somewhat different facts by an Ohio appellate court in the case of Stark Metropolitan Housing Authority v. Wheaton, 1999 WL 34696 (Tusc. Co. 1999). In this case the PHA evicted the tenant for breach of the criminal activity provision in the lease, which provides that "no guest or visitor shall engage in criminal activity on or near the housing development of which the leased premises is a part." The testimony revealed that the tenant's son was a visitor to her apartment unit, that he regularly flagged down cars passing in front of the unit, and that he used the telephone in his mother's unit for drug sales. The son had been arrested several times in the past for selling drugs. The court found that this was sufficient evidence of drug activity and therefore allowed the eviction, based upon the terms of the lease.

[Source: BNA Housing & Development Reporter, March 8, 1999 Issue; pg. 716]

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Constitutional Issues

Low Bidders on Construction Projects

The U.S. Court of Appeals for the Sixth Circuit (whose jurisdiction includes Ohio) recently considered an interesting case involving a low bidder for a housing authority construction contract. Leo J. Brielmaier Co. v. Newport Housing Authority, 173 F.3d 855 (6th Cir. 1999). The PHA sought bids to build a new community center. The plaintiff in the case submitted the lowest bid. Thereafter, the PHA contacted prior owners for whom the bidder had performed work. The reference responses were not overly positive, and some comments questioned the quality of the contractor's work and delays in meeting time deadlines. The PHA then decided not to award the contract to the contractor, prompting the contractor to claim that its constitutional rights were violated by the PHA.

The contractor argued that it had a "property interest" in the award of the contract because it was the low bidder. The court disagreed. The court ruled that a property interest in a publicly bid contract arises only where (a) the contract was awarded and then unjustly taken away, or (b) the contracting officer abused his discretion in awarding the contract. In this case, neither provision applied: the contractor was never awarded the contract, and the PHA had ample grounds to reject the low bid based on the contractor's past performance.

[Source: BNA Housing & Development Reporter, June 14, 1999 Issue; pg. 89]

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Search of Employee Lockers

Constitutional issues also arose in an Ohio case involving a public employer's search of employee lockers. In Stein v. City of Toledo, 1999 U.S. Dist. Lexis 4523 (N.D. Ohio 1999), the Court found that the city's search of an employee's locker was unconstitutional.

In this case, the city conducted a generalized and unrestricted search of employee lockers. There was no reason to believe that the plaintiff employee's locker contained any illegal substances, or that the plaintiff had engaged in any wrongdoing. In addition, the city had no written policies concerning searches of employee lockers, and the city had never conducted any searches during the five years that the plaintiff worked for the city.

On these facts, the court concluded that the employee had a reasonable expectation that his locker would not be searched without some lawful cause.

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Lead-Based Paint: Class Action Suit

A class action lawsuit has been certified against a housing authority in Louisiana. In Billieson v. City of New Orleans, 729 So.2d 146 (1999), the Fourth Circuit Court of Appeals has allowed a class action to proceed against the city and the Housing Authority of New Orleans.

The suit alleges that the city and the housing authority failed to abate lead poisoning hazards. The class consists of children aged 6 or younger, who live in public housing. The claims seek damages for severe health problems alleged to result from lead poisoning from paint in the housing units.

The court allowed the case to proceed as a class action even though more than 250 plaintiffs had already filed individual suits, involving more than 900 children, against the defendants. The court said that the potential class includes about 5,000 children.

[Source: BNA Housing & Development Reporter, April 5, 1999 Issue; pg. 779]

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