VIA EMAIL AND U.S.

MAIL

Monica S. Irelan
City Manager
7 Richmond Street, PO Box 601
Painesville, Ohio 44077
mirelan@painesville.com

Chief Daniel J. Waterman

Painesville Police Department
28 Mentor Avenue
Painesville, OH 44077
dwaterman@painesville.com

Dear City Manager Irelan and Chief Waterman:

We write to inform you that both Painesville’s Crime Free Rental Housing Program (“the
Program”) and its Criminal Activity Nuisance Ordinance, Painesville Codified Ordinances
508.20 (“the Nuisance Ordinance”), violate statutory and constitutional law.

Through the criminal record screening instructions distributed to all Painesville landlords
as part of the required Program, the Painesville Police Department (“PPD”) functionally bars
numerous individuals with criminal records from living in Painesville although their criminal
records do not indicate any risk to the safety of people or property. Because Ohioans with
criminal histories are disproportionately Black, the Program illegally discriminates under the Fair
Housing Act (“FHA”). You must immediately revise the Program in order to comply with the
law.

Moreover, your Nuisance Ordinance not only violates the FHA, but raises serious
constitutional concerns.

The FHA prohibits Painesville and its landlords from engaging in even facially-neutral
practices that have a disproportionately adverse effect on people of color, women, or people with
disabilities unless the practice is shown to be necessary to serve a substantial, legitimate,
nondiscriminatory interest and that interest could not be served by a different practice with a less
discriminatory effect. 24 C.F.R. § 100.500(a)–(b); Tex. Dep’t of Hous. & Cmty. Affairs v.
Inclusive Cmtys. Project, Inc., 576 U.S. ----, 135 S. Ct. 2507 (2015). The FHA also prohibits
housing policies that are intentionally discriminatory. 42 U.S.C. § 3604.

1
 We remind you that municipal actions can give rise to liability under the FHA when they
affect the availability or terms of private housing. See, e.g., Southend Neighborhood Imp. Ass’n
v. St. Clair Cty., 743 F.2d 1207, 1209–10 (7th Cir. 1984) (“[C]ourts have construed the phrase
‘otherwise make unavailable or deny’ in subsection (a) to encompass mortgage ‘redlining,’
insurance redlining, racial steering, exclusionary zoning decisions, and other actions by
individuals or governmental units which directly affect the availability of housing to
minorities.”) (emphasis added); Davis v. City of New York, 902 F. Supp. 2d 405, 435–37
(S.D.N.Y. 2012) (municipality can be liable under FHA for discriminatory policing); Cmty.
Action League v. City of Palmdale, No. CV 11-4817 ODW VBKX, 2012 WL 10647285, at *4–5
(C.D. Cal. Feb. 1, 2012) (same). What a landlord may wish to do on his or her own is an issue—
and potential fair housing violation—for that landlord, but when Painesville inserts itself into the
process, Painesville can be liable for making housing unavailable or discriminating in the terms,
conditions, or privileges of housing on the basis of race, gender, disability status, or national
origin. See 42 U.S.C. § 3604(a), (b), (f).

I. Criminal History Screening Can Violate the Fair Housing Act

PPD instructs property owners and landlords through its crime-free training that
“criminals” are “NOT a Protected Class,” implying that barring individuals from housing based
upon criminal history cannot violate the FHA. See Exhibit A at 9–11. That statement is false, and
not because of “New ADA Rulings” affecting people with disabilities. Id. at 10.

As noted above, the FHA bars practices that have a disparate impact, that is, “practices
that have a disproportionately adverse effect on minorities and are otherwise unjustified by a
legitimate rationale.” Inclusive Cmtys. Project, 135 S. Ct. 2507, 2513. The United States
Department of Housing and Urban Development (“HUD”) recently issued guidance (“Criminal
Records Guidance”) that summarizes this existing law to make clear that the FHA and its
disparate impact standard do apply to the use of criminal history information by providers or
operators of housing.1 See also Sams v. Ga W. Gate, LLC, No. CV415-282, 2017 WL 436281, at
*5 (S.D. Ga. Jan. 30, 2017) (denying motion to dismiss plaintiffs’ FHA disparate impact claim
based on barring individuals with criminal records from housing).

Recent nationwide data show African Americans are arrested at a rate more than double
their proportion of the general population and imprisoned at a rate about three times higher than
their proportion of the general population. Criminal Records Guidance 3–4 (citing statistics);
Sams, 2017 WL 436281, at *5. The disparity is even more severe in Ohio; in 2014, while 12.2%
of Ohio’s population was Black, 44.6% of those incarcerated in its prisons were Black, a Black
incarceration rate nearly four times higher than the Black share of the general Ohio population.2

1
U.S. Dep’t of Housing and Urban Dev., Office of General Counsel Guidance on Application of Fair Housing Act
Standards to the Use of Criminal Records by Providers of Housing and Real-Estate Related Transactions, Apr. 4,
2016, https://portal.hud.gov/hudportal/documents/huddoc?id=HUD_OGCGuidAppFHAStandCR.pdf.
2
The Sentencing Project, The Color of Justice: Racial and Ethnic Disparity in State Prisons (2016), at 16, Table A,
https://www.sentencingproject.org/wp-content/uploads/2016/06/The-Color-of-Justice-Racial-and-Ethnic-Disparity-

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In Ohio, a Black person is 4.1 times more likely than a white person to be arrested for marijuana
possession, even though Ohioans of all races use marijuana in similar proportions.3 As a result,
Black people will be overrepresented among those barred by policies excluding potential tenants
from housing based on criminal history.

Under the FHA, a policy with this kind of disproportionate and adverse impact must be
justified by a substantial, legitimate, nondiscriminatory interest. The justification must be
supported by evidence, and it cannot be hypothetical or speculative. 24 C.F.R. § 100.500(b)(2).
Generally, the claimed justification for criminal history screening is the protection of other
residents and the property. However, a policy of excluding potential tenants based on arrest
records—as opposed to convictions—can never be necessary to achieve such an interest, since
arrest records do not even constitute proof of any past criminal conduct. See Schware v. Bd. of
Bar Exam. of N.M., 353 U.S. 232, 241 (1957) (“The mere fact that a man has been arrested has
very little, if any, probative value in showing that he has engaged in any misconduct.”); Gregory
v. Litton Sys., Inc., 316 F. Supp. 401, 403 (C.D. Cal. 1970) (holding that excluding from
employment persons with arrests without convictions unlawfully discriminated against African
American applicants in violation of Title VII), aff’d, 472 F.2d 631 (9th Cir. 1972); Criminal
Records Guidance 5.

Similarly, blanket, lifetime bans on individuals with prior convictions also cannot be
necessary to protect residents or property. See Green v. Missouri Pacific R.R., 523 F.2d 1290,
1298 (8th Cir. 1975) (blanket ban on employing persons with convictions violates Title VII
because the court could not “conceive of any business necessity that would automatically place
every individual convicted of any offense, except a minor traffic offense, in the permanent ranks
of the unemployed”); Criminal Records Guidance 6. Instead, policies regarding prior convictions
must be tailored so that they take into account “the nature and severity of an individual’s
conviction” and “the amount of time that has passed since the criminal conduct occurred.” Id. at
7. Moreover, limiting the use of criminal history information in housing decisions in this manner
makes good sense. Because “many formerly incarcerated individuals, as well as individuals who
were convicted but not incarcerated, encounter significant barriers to securing housing,” such
policies are necessary to reduce homelessness and facilitate reentry. Id. at 1.

However, in response to our recent public records request, the PPD produced documents
describing a criminal history screening policy as part of your Program, that straightforwardly
fails to comply with that Guidance and with the FHA.

in-State-Prisons.pdf (citing United States Dep’t of Justice, Office of Justice Programs, Bureau of Justice Statistics,
National Prisoner Statistics, 1978-2014 (2014)).
3
American Civil Liberties Union, The War on Marijuana in Black and White 170 (2013), at 170,
https://www.aclu.org/sites/default/files/field_document/1114413-mj-report-rfs-rel1.pdf.

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 II. PPD Instructs All Painesville Landlords and Rental Property Managers to
Violate the Fair Housing Act.

Painesville requires “all residential rental properties to be registered with the City of
Painesville.” Painesville Ord. § 1373.01. The objective of the registration ordinance is “to
educate rental property owners on how to find suitable tenants and improve safety through the
Crime Free Rental Housing Program.” Id. To that end, it requires each and every person seeking
to rent out a home in Painesville to participate in the Program. Painesville Ord. § 1373.04(j).
The registration process, and the Program in particular, instruct landlords to perform criminal
record screening in a manner that violates the FHA.

PPD’s instruction to landlords to bar potential tenants on the basis of criminal records
begins early in the rental registration process. The rental registration forms that landlords must
fill out ask “Does the property owner or rental manager conduct criminal background checks on
each and every tenant?” without any limitation. Exhibit B, at 2. The clear implication is that each
registrant should be performing such a screening. The Program emphasizes this point again and
again, instructing landlords to “use the most thorough process possible to screen prospective
residents.” Exhibit A, at 12.

PPD also directs landlords as to the details of who should be barred from rental housing
in Painesville. The Program materials state that landlords should exclude people based upon:

 ALL CRIMES Last 3-5 yr. Convictions, Guilty Pleas, No Contest Pleas, Supervision,
Probation, Parole.
 None EVER for crimes that affect health, safety, and welfare of others.

Exhibit A, at 19. This is not justified by the need to protect the safety and quality of life in rental
housing communities; it bans numerous individuals from housing, putting them at risk of
homelesseness, although their criminal histories do not indicate any threat of future dangerous
conduct.

PPD’s “None EVER” instruction would bar a participating landlord from housing a 75-
year-old applicant with criminal history from when he was a teenager. He would be barred on the
basis of a single misdemeanor or felony that far in the past. Since research indicates that there is
no tie between old convictions and recidivism, there can be no true safety-related justification for
such exclusions. Megan C. Kurlychek et al., Scarlet Letters and Recidivism: Does an Old
Criminal Record Predict Future Offending?, 5 Criminology and Pub. Pol’y 483 (2006)
(reporting that after six or seven years without reoffending, the risk of new offenses by persons
with a prior criminal history begins to approximate the risk of new offenses among persons with
no criminal record).

PPD’s bar on housing anyone with any recent conviction or supervision whatsoever is
substantially overbroad. Because the “None EVER” policy would permanently bar individuals
with criminal history that implicates the “health, safety, and welfare of others,” it is clear that the
recent-convictions policy also applies to crimes that do not implicate the health, safety, and
welfare of others. Cf. Ohio Rev. Code. Ann. § 2915.04, (misdemeanor to play a game of chance

4
in a hotel or restaurant); Ohio Rev. Code. Ann. § 2917.12. (misdemeanor to disrupt a lawful
meeting); see Exhibit A, at 15–16, 21 (making clear misdemeanors are included in PPD’s
recommended criminal history exclusions). This completely fails to take into account “the nature
and severity of an individual’s conviction.” Criminal Records Guidance 7.

Moreover, an individual who has been on probation or parole in the last five years may
have committed her single crime fifteen years ago or more, meaning that the policy is even more
overbroad with respect to people on supervision. And it is not at all clear that there is a legitimate
justification for excluding individuals currently on probation or parole from housing. See Victor
Valley Family Res. Ctr. v. City of Hesperia, No. EDCV1600903ABSPX, 2016 WL 3647340, at
*4 (C.D. Cal. July 1, 2016) (noting animus against probationers, unsupported by evidence of
actual public safety threat they pose, likely to violate equal protection clause). Individuals on
probation or parole are subject to heightened scrutiny by law enforcement. As a result, they may
be less likely to commit crime than similar individuals not under supervision.

This list of problems with the PPD’s current criminal record screening instructions is not
exhaustive. It suffices, however, to make clear that the Program must immediately change in
order to comply with the law.
III. PPD Must Change Its Program In Order to Address the Housing Needs of
Residents with Criminal Records and to Comply with the FHA.

In addition to violating the law, PPD’s current treatment of criminal history is

contributing to the problem of homelessness in Painesville. Barring everyone with the wide
range of criminal records covered by the Criminal History Policy from securing rental housing in
Painesville ensures that some of these individuals will become homeless.

Accordingly, PPD must immediately revise this so that it better serves all of Painesville’s
needs. First, PPD should revise its policies and the Crime Free Program to make clear to
landlords that criminal record screening is not a requirement of renting out housing in
Painesville. This shift is necessary to limit PPD’s liability for criminal record screening that
landlords conduct in violation of the FHA, as well as to allow landlords to make appropriate
decisions for their own properties.

PPD must also inform landlords that they risk fair housing liability for performing
overbroad screening of the kind Painesville has been instructing them to perform. It must remove
language from its materials suggesting that “criminals” are “NOT a Protected Class.” Exhibit A,
at 10–11. Instead, PPD should provide landlords with fair housing guidelines for criminal history
screening, similar to those contained within the Criminal Records Guidance, so that they
understand criminal record-related exclusion is permissible only when it is provably related to
the protection of other residents or the property. Painesville should clearly state to landlords that,
if they choose to perform criminal history screening, it must be tailored to take into account the
nature and severity of an individual’s conviction and the amount of time that has passed since the
criminal conduct.

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 IV. Painesville’s Criminal Activity Nuisance Ordinance Violates the FHA.

Painesville’s Nuisance Ordinance presents serious concerns under both the FHA and the
Constitution.

The Nuisance Ordinance pushes landlords toward evicting their tenants on the basis of a
long and overbroad list of offenses ranging from misuse of the 9-1-1 system to noise to
unruliness. § 508.20(a)(1), (6), (8). The Ordinance makes the commission of these offenses on or
near rental property into “nuisances” for which landlords can be additionally penalized through
civil fines. Property owners are instructed to “abate” a nuisance occurrence or else pay a large
fine. The Ordinance specifically provides that landlords who promptly commence actions to
remove tenants will not be found to operate a nuisance property. § 508.20(d)(2), (3). The law
thus explicitly calls for the eviction of tenants who live at nuisance properties, even when they
are not responsible for the “nuisance” itself or legitimately sought police or emergency
assistance.

Numerous courts have recognized that nuisance ordinances that penalize people based on
criminal activity occurring at a property violate constitutional guarantees. First, these laws can
violate the right to petition under the First Amendment, because they authorize punishment based
on reporting of crimes or other emergencies to the government. See Bd. of Trustees of Vill. of
Groton v. Pirro, 152 A.D.3d 149 (N.Y. App. Div. 2017) (striking down a nuisance law as
unconstitutional on its face because it could chill the reporting of criminal and other activities);
Montagno v. City of Burlington, No. 2:16-CV-232, 2017 WL 2399456 (D. Vt. June 1, 2017)
(allowing plaintiff’s First Amendment claim to move forward when city threatened to impose
nuisance penalties based on making calls to police); Watson v. City of Maplewood, Missouri, No.
4:17CV1268 JCH, 2017 WL 4758960 (E.D. Mo. Oct. 20, 2017) (same). Painesville’s law
provides for penalty based on calls to police regarding a wide range of criminal activities, with
no protection for those reporting the emergencies or who are the victims of crimes.
Second, courts have concluded these laws violate due process and Eighth Amendment
protections, when they fail to give adequate notice and opportunity to be heard to affected
parties, and when they punish parties without regard to the lack of participation in the nuisance
activities and the punishment is disproportionate to the problematic conduct. Alcorn ex rel.
Proas Partners, LLC v. Muhammad, No. 2016/09424, 2017 WL 5244727 (N.Y. Sup. Ct.,
Monroe Cty. Oct. 23, 2017); St. Louis Ass’n of Realtors v. St. Louis Cty., No. 15SL-CC04443
(Cir. Ct. of St. Louis Cty., June 2, 2017); Victor Valley Family Res. Ctr. v. City of Hesperia, No.
EDCV1600903ABSPX, 2016 WL 3647340 (C.D. Cal. July 1, 2016); Peters v. City of Wilkes-
Barre, No. 3:15CV152, 2016 WL 320748 (M.D. Pa. Jan. 27, 2016). Under Painesville’s
Ordinance, tenants receive no notice and no opportunity to be heard by the city throughout the
criminal nuisance activity proceedings, even though penalties against them—including potential
eviction—are explicitly contemplated. Moreover, the penalties authorized by the ordinances are
disproportionate to the “nuisances,” in that even victims of crime or very minor offenses can
result in large monetary assessments.
By creating a penalty and risk of eviction for “misusing” the 9-1-1 system—which can
easily penalize calling the police for help—the Nuisance Ordinance discourages people who may
be victims of violence including domestic violence or who otherwise need help, for example in

6
the event of a medical emergency, from calling the police. The Nuisance Ordinance thus has a
particular discriminatory effect on women, who are disproportionately likely to be victims of
domestic violence, as well as on people with disabilities who have a disproportionate need for
emergency services. HUD has issued guidance (“Nuisance Guidance”) making clear that, as a
result, nuisance ordinances like Painesville’s can violate the FHA.4 The Nuisance Guidance
explains that cities face a “difficult burden” in justifying the use of nuisance laws and that
repealing nuisance ordinances is “[o]ne step a local government may take toward meeting its
duty to affirmatively further fair housing.” Id.

Research in numerous jurisdictions has established the local nuisance laws have
discriminatory impact.5 Laws like Painesville’s cause housing insecurity that disproportionately
impacts women, see Dickinson v. Zanesville Metro. Hous. Auth., 975 F.Supp.2d 863, 872 (S.D.
Ohio 2013), people with disabilities, see Anderson v. City of Blue Ash, 798 F.3d 338, 358 (6th
Cir. 2015), and people of color, see Mhany Mgmt., Inc. v. County of Nassau, 819 F.3d 581;
United States v. City of Parma, Ohio, 494 F. Supp. 1049 (N.D. Ohio, 1980), in violation of the
FHA. Moreover, people living with histories of addiction are people with disabilities protected
by the FHA, and Painesville must ensure that its enforcement of the Nuisance Ordinance does
not discriminate against these individuals. See 24 C.F.R. § 100.201; S. Middlesex Opportunity
Council, Inc. v. Town of Framingham, 752 F. Supp. 2d 85 (D. Mass. 2010); Fowler v. Borough
of Westville, 97 F. Supp. 2d 602, 613 (D.N.J. 2000). When members of these groups are singled
out for enforcement of nuisance ordinances, that discriminatory treatment also violates the Equal
Protection Clause of the U.S. Constitution.

We are aware that as recently as January, 2018, the City of Painesville enforced the
Nuisance Ordinance against, for one example, a local housing services non-profit after a person
in recovery there overdosed and tragically died. Drug and alcohol addiction and preventable
diseases, are closely linked with homelessness, e.g., National Coalition for the Homeless,
Substance Abuse and Homelessness (2009),6 and penalizing medical emergencies based on drug
overdose harms service providers and acts as a barrier to others seeking help.

* * * *

4
U.S. Dep’t of Housing and Urban Dev., Office of General Counsel Guidance on Application of Fair Housing Act
Standards to the Enforcement of Local Nuisance and Crime-Free Housing Ordinances Against Victims of Domestic
Violence, Other Crime Victims, and Others Who Require Police or Emergency Services, Sept. 13, 2016,
https://www.hud.gov/sites/documents/FINALNUISANCEORDGDNCE.PDF.
5
Joseph Mead et al., Who Is A Nuisance? Criminal Activity Nuisances in Ohio (Nov. 2017),
https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3067028; ACLU & Social Science Research Council, Silenced:
How Nuisance Ordinances Punish Crime Victims in New York (2015), https://www.aclu.org/report/silenced-how-
nuisance-ordinances-punish-crime-victims-new-york; Matthew Desmond & Nicol Valdez, Unpolicing the Urban
Poor: Consequences of Third-Party Policing for Inner-City Women, 78 Am. Sociological Rev. 117 (2013);
https://scholar.harvard.edu/mdesmond/publications/unpolicing-urban-poor-consequences-third-party-policing-inner-
city-women.
6
National Coalition for the Homeless, Substance Abuse and Homelessness (July 2009),
http://www.nationalhomeless.org/factsheets/addiction.pdf.

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 These policies combine to mean that Painesville and its police force exercise significant,
destructive, and illegal control over rental housing in Painesville. PPD’s criminal history
screening instructions ensure that people with criminal records, who are disproportionately
people of color, are being barred from rental housing in Painesville and thus, being functionally
barred from living in Painesville altogether. And the Nuisance Ordinance, along with PPD’s
enforcement of it, serves to penalize women, people with disabilities, and people in crisis in
Painesville.
These policies are not tailored toward achieving safety in the community. Rather, they
are unnecessary and illegal barriers to housing for people with criminal records, people with
mental health disabilities, victims of violence, and other vulnerable individuals who pose no risk
to the community. Worse still, these policies contribute to homelessness and housing instability,
and disproportionally impact people of color.
We look forward to hearing how you plan to address these urgent concerns. We are
available to meet and discuss them at your convenience. Please contact Elizabeth Bonham with
any questions at ebonham@acluohio.org.
Sincerely,

Elizabeth Bonham
Staff Attorney
ACLU of Ohio

Rachel Goodman
Staff Attorney
ACLU Racial Justice Program

Sandra S. Park
Senior Staff Attorney
ACLU Women’s Rights Project

Patricia Kidd
Executive Director
Fair Housing Resource Center

Carrie Pleasants
Executive Director

Kris Keniray
Associate Director
Housing Research & Advocacy
Center