Felon tenant ban goes to court

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    Deborah Smith and her daughter Darcy Smith talk to a reporter after a hearing Wednesday morning at the Cambria County Courthouse in Ebensburg. Darcy Smith is suing the borough of Gallitzin over an ordinance that fines landlords $1

    Deborah Smith and her daughter Darcy Smith talk to a reporter after a hearing Wednesday morning at the Cambria County Courthouse in Ebensburg. Darcy Smith is suing the borough of Gallitzin over an ordinance that fines landlords $1

    Landlords in the borough of Gallitzin face a $1,000 per day fine for renting to anyone convicted of a drug felony within the past seven years.

    Landlords in the borough of Gallitzin face a $1,000 per day fine for renting to anyone convicted of a drug felony within the past seven years.

    The law had been on the books for a month when the Cambria County town was sued over it Feb. 4.

    On Wednesday, the case debuted in court.

    Michael Crotty, who’s representing Gallitzin, argued that case law related to public safety and maintenance concerns supports the ordinance.

    Resident Darcy Smith’s lawyer Tim Burns argued the ordinance violates due process rights and conflicts with multiple state laws.

    Smith, 38, has a felony drug conviction stemming from a 2012 arrest. She moved to Gallitzin nearly two years ago to be near her family after getting out of jail. Smith got an eviction notice in February.

    Because Burns secured an injunction, Smith and her three kids can stay where they are pending the outcome of her lawsuit.

    “A lot of times, people say, ‘You did this, you did that.’ Yeah, I did. But I went to jail, over two years. I was away from my children all that time. I just want to be left alone,” Smith says.

    Gallitzin Mayor Ray Osmolinski Sr. defended the law, which was his idea.

    “We have a right, too, to live a peaceful life, too. We’ve got to eliminate these problems to have a decent life for our kids,” Osmolinski says.

    Both Cambria County’s per capita drug overdose rate and paroled drug offender caseload rank second of 67 counties in Pennsylvania.

    “Whether it be us, or another borough or city or whatever — someone has to change the laws. Don’t forget, they made amendments to the constitution too,” Osmolinski says.

    Burns says there are other ways to achieve similar aims.

    “You can keep a register of tenants,” Burns says. “I don’t like that, but it is something permissible under the law in Pennsylvania.”

    Osmolinski couldn’t say what else Gallitzin’s tried.

    “They don’t need to attempt and exhaust all mechanisms before trying this one,” Crotty says.

    But Burns says the felon renter ban, in particular, conflicts with the state’s Landlord-Tenant Act, which requires landlords to notify tenants 15 days before evicting them and gives tenants the right to a hearing.

    So complying with both laws could cost a landlord at least $15,000, Burns says.

    Burns also says the state’s interest in rehabilitating paroled ex-offenders supersedes the ordinance, pointing to Fross v. Allegheny County.

    There are differences between the two situations, according to Sarah Rose, a lawyer in the ACLU’s Pittsburgh office.

    The state has to approve where people out on parole or probation will live, no matter what, and it’s often a challenge to find a place.

    The key distinction here is that sex offenders have to register permanently, whereas supervision for drug crimes can vary, Rose says.

    But Rose also views Allegheny’s ultimately-losing argument as stronger than the one Gallitzin’s trying to make, mainly because the borough’s ordinance doesn’t apply to people if they have enough money to buy a house.

    Rose and others have said they don’t think the Gallitzin rule will hold up in court — and that was before the Department of Housing and Urban Development’s warning that landlords risk violating Fair Housing Act if they turn away ex-offenders, particularly if they’re straight-up bans.

    Burns says he’s familiar with the HUD announcement and might bring it up going forward, but stressed that it’s only guidance and therefore won’t force the judge’s hand.

    Judge Tamara Bernstein ordered Burns to file by May 4 and Crotty to do the same by May 15.

    Sunbury, Northumberland County, and Mifflinburg, Union County, enacted similar rules in 2012 and 2015, respectively. But those municipalities, about two hours east of Gallitzin, embedded the bans within their landlord licensing regulations. Gallitzin doesn’t regulate its rental market.

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