In what has been viewed by many observers as a landmark decision an Appellate Division panel in the Superior Court of the State of New Jersey ruled in favor of the convicted sex offenders on July 15, 2008 in two consolidated cases challenging municipal restrictions which ban the residency of convicted sex offenders within a designated distance of schools, parks, playgrounds and daycare centers. G.H. v. Tp. of Galloway, 401 N.J. Super. 392 (App. Div. 2008). The decision was based upon the doctrine of preemption which prohibits municipalities from exercising their legislative power over matters where the State has implemented comprehensive control. In so ruling the Court relied upon a provision of the legislation known as Megan’s Law which prohibits “. . .use of any information disclosed pursuant to this Act” to deny housing accommodations. The Appellate Division struck down two municipal ordinances as being violative of this statutory scheme.
The Court noted that one of the problems with these ordinances was their scope. Using five hundred foot zones (or one thousand foot zones as many of these ordinances do) and applying them to most municipalities will render unavailable many, or in some cases, any practical housing opportunities for these sex offenders. For example, in Cherry Hill (one of the defendant municipalities in that case) there were only two areas which were not within these school zones. One was an undeveloped field, and the other was a very expensive residential subdivision (not a practical housing opportunity for parolees).
However, this decision did not decide the question of whether or not private housing providers are allowed to continue to perform criminal background checks (not limited in their scope to information received pursuant to sex offender disclosures under the Megan’s Law) from continuing to do so. It expressly recognized that in a prior decision before the Appellate Division Mulligan v. Panther Valley Property Owners Association, 337 N.J. Super 293 (App. Div. 2001) involving a challenge to a prohibition of Tier 3 sex offenders (those most likely to violate the law again) in a common interest development, the matter was not decided because of an inadequate record.
Accordingly, this Galloway decision does not mean that housing providers cannot continue to perform criminal background checks on all applicants. It would be the most prudent practice not to use a screening standard limited in its scope to information received by a landlord from a sex offender disclosure which would typically come from a County Prosecutor’s office pursuant to Megan’s Law, or made available through some other published source (such as the internet). A broader search of all criminal convictions would be the better practice.
In fact, there are numerous authorities which continue to endorse the practice of using a criminal background check as part of a uniformly applied screening criteria even when dealing with members of protected classes. 42 U.S.C.A. 3604 (F)(9)(Fair Housing Act); 24 C.F.R. 982.307(a)(3) (H.U.D.’s regulations enforcing the Fair Housing Act); DCA’s Landlord’s Guide to Section 8 Housing. In Maglies v. Estate of Bertha Guy, 193 N.J. 108 (2007) the Supreme Court, in dicta, referenced the right of a landlord to refuse to allow the continued occupancy of a resident otherwise disqualified because of a “past conviction.”
Almost every legal authority dealing with private housing providers recognizes a landlord’s right to screen using criminal background checks. It would be the height of absurdity to restrict the housing providers right to turn away those most likely to commit another sex crime while every other person with a criminal background could be the subject of an adverse discretionary determination at the time of application made to a private housing provider. This author predicts that will not happen in New Jersey. For now, there is no law that eliminates this discretion on the part of housing providers and therefore a uniformly applied written screening policy which contains specific reasonable criminal history disqualifying criteria is sustainable.
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