42 U.S.C. § 1437z–1: Civil money penalties…

Summary

Owners, partners, and some property managers can be fined for serious breaches of project-based Section 8 contracts. Fines can be up to $25,000 for each violation. Examples of punishable acts are failing to keep apartments safe, clean, and livable, and knowingly sending false or fake requests for housing payments. The Secretary cannot fine someone if the main cause of the problem was the Secretary, a Secretary’s agent, or a public housing agency failing to follow an existing agreement. These fines are in addition to any other civil or criminal penalties. The Secretary must write rules that give people notice and a chance for a hearing before a fine is imposed. If no hearing is asked for within 15 days of the notice, the fine becomes final. The Secretary may review the decision within 90 days. When setting the amount, the Secretary must consider things like how serious the breach was, past violations, ability to pay, harm to tenants or the public, and any gains from the violation. Fines cannot be paid from project income. Court review follows 12 U.S.C. 1735f–15(e). If someone won’t pay a final fine, the Secretary can ask the U.S. Attorney General to sue for the money; the court may award the government’s legal costs. The Secretary may also settle, reduce, or cancel fines. Penalties go to the appropriate insurance funds if the property’s mortgage is or was insured by the Secretary; otherwise they fund HUD enforcement work. Definitions: an “identity of interest” manager is one that manages the project and is owned or controlled by the owner; “knowing” means actual knowledge, deliberate ignorance, or reckless disregard.

Title 42, §1437z–1

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(a)In general

(1)Effect on other remedies

The penalties set forth in this section shall be in addition to any other available civil remedy or any available criminal penalty, and may be imposed regardless of whether the Secretary imposes other administrative sanctions.

(2)Failure of Secretary

The Secretary may not impose penalties under this section for a violation, if a material cause of the violation is the failure of the Secretary, an agent of the Secretary, or a public housing agency to comply with an existing agreement.

(b)Violations of housing assistance payment contracts for which penalty may be imposed

(1)Liable parties

The Secretary may impose a civil money penalty under this section on—

(A)any owner of a property receiving project-based assistance under section 8 [42 U.S.C. 1437f];

(B)any general partner of a partnership owner of that property; and

(C)any agent employed to manage the property that has an identity of interest with the owner or the general partner of a partnership owner of the property.

(2)Violations

A penalty may be imposed under this section for a knowing and material breach of a housing assistance payments contract, including the following—

(A)failure to provide decent, safe, and sanitary housing pursuant to section 8 [42 U.S.C. 1437f]; or

(B)knowing or willful submission of false, fictitious, or fraudulent statements or requests for housing assistance payments to the Secretary or to any department or agency of the United States.

(3)Amount of penalty

The amount of a penalty imposed for a violation under this subsection, as determined by the Secretary, may not exceed $25,000 per violation.

(c)Agency procedures

(1)Establishment

The Secretary shall issue regulations establishing standards and procedures governing the imposition of civil money penalties under subsection (b). These standards and procedures—

(A)shall provide for the Secretary or other department official to make the determination to impose the penalty;

(B)shall provide for the imposition of a penalty only after the liable party has received notice and the opportunity for a hearing on the record; and

(C)may provide for review by the Secretary of any determination or order, or interlocutory ruling, arising from a hearing and judicial review, as provided under subsection (d).

(2)Final orders

(A)In general

If a hearing is not requested before the expiration of the 15-day period beginning on the date on which the notice of opportunity for hearing is received, the imposition of a penalty under subsection (b) shall constitute a final and unappealable determination.

(B)Effect of review

If the Secretary reviews the determination or order, the Secretary may affirm, modify, or reverse that determination or order.

(C)Failure to review

If the Secretary does not review that determination or order before the expiration of the 90-day period beginning on the date on which the determination or order is issued, the determination or order shall be final.

(3)Factors in determining amount of penalty

In determining the amount of a penalty under subsection (b), the Secretary shall take into consideration—

(A)the gravity of the offense;

(B)any history of prior offenses by the violator (including offenses occurring before the enactment of this section);

(C)the ability of the violator to pay the penalty;

(D)any injury to tenants;

(E)any injury to the public;

(F)any benefits received by the violator as a result of the violation;

(G)deterrence of future violations; and

(H)such other factors as the Secretary may establish by regulation.

(4)Payment of penalty

No payment of a civil money penalty levied under this section shall be payable out of project income.

(d)Judicial review of agency determination

Judicial review of determinations made under this section shall be carried out in accordance with section 1735f–15(e) of title 12.

(e)Remedies for noncompliance

(1)Judicial intervention

(A)In general

If a person or entity fails to comply with the determination or order of the Secretary imposing a civil money penalty under subsection (b), after the determination or order is no longer subject to review as provided by subsections (c) and (d), the Secretary may request the Attorney General of the United States to bring an action in an appropriate United States district court to obtain a monetary judgment against that person or entity and such other relief as may be available.

(B)Fees and expenses

Any monetary judgment awarded in an action brought under this paragraph may, in the discretion of the court, include the attorney’s fees and other expenses incurred by the United States in connection with the action.

(2)Nonreviewability of determination or order

In an action under this subsection, the validity and appropriateness of the determination or order of the Secretary imposing the penalty shall not be subject to review.

(f)Settlement by Secretary

The Secretary may compromise, modify, or remit any civil money penalty which may be, or has been, imposed under this section.

(g)Deposit of penalties

(1)In general

Notwithstanding any other provision of law, if the mortgage covering the property receiving assistance under section 8 [42 U.S.C. 1437f] is insured or was formerly insured by the Secretary, the Secretary shall apply all civil money penalties collected under this section to the appropriate insurance fund or funds established under this chapter, as determined by the Secretary.

(2)Exception

Notwithstanding any other provision of law, if the mortgage covering the property receiving assistance under section 8 [42 U.S.C. 1437f] is neither insured nor formerly insured by the Secretary, the Secretary shall make all civil money penalties collected under this section available for use by the appropriate office within the Department for administrative costs related to enforcement of the requirements of the various programs administered by the Secretary.

(h)Definitions

In this section

(1)

(2)the term “knowing” means having actual knowledge of or acting with deliberate ignorance of or reckless disregard for the prohibitions under this section.

Notes & Related Subsidiaries

Statutory Notes and Related Subsidiaries

Effective Date

Pub. L. 105–65, title V, § 562(b), Oct. 27, 1997, 111 Stat. 1419, provided that: “The

Amendments

made by subsection (a) [enacting this section and amending section 1437z of this title] shall apply only with respect to— “(1) violations that occur on or after the

Effective Date

of final

Regulations

implementing the

Amendments

made by this section; and “(2) in the case of a continuing violation (as determined by the Secretary of Housing and Urban Development), any portion of a violation that occurs on or after such date.”

Regulations

Pub. L. 105–65, title V, § 562(c), Oct. 27, 1997, 111 Stat. 1419, provided that: “(1)

Regulations

.—“(A) In general.—The Secretary shall implement the

Amendments

made by this section [enacting this section and amending section 1437z of this title] by regulation issued after notice and opportunity for public comment. “(B) Comments sought.—The notice under subparagraph (A) shall seek comments as to the definitions of the terms ‘ownership interest in’ and ‘effective control’, as such terms are used in the definition of the term ‘agent employed to manage such property that has an identity of interest’. “(2) Timing.—A proposed rule implementing the

Amendments

made by this section shall be published not later than 1 year after the date of enactment of this Act [Oct. 27, 1997].”

§1437z–1 Civil Money Penalties Against Section 1437f Owners

Summary

Title 42, §1437z–1

Notes & Related Subsidiaries

Statutory Notes and Related Subsidiaries

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Regulations

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