Concurring:
I agree with the conclusion of the majority that Ms. Turner cannot be evicted but write separately because I respectfully disagree with the analysis utilized in reaching that conclusion. In my opinion there is no doubt that the federal law in this case occupies the field. Thus, it preempts any state law to the contrary. The “one-strike” policy of 42 U.S.C. § 1437d(Z)(6) does not include any provisions mandating that a tenant be allowed to cure violations of it, which is precisely what the majority concludes that KRS 383.660(1) does.
In the seminal case on the issue, Department of Housing and Urban Development v. Rucker, 535 U.S. 125, 136, 122 S.Ct. 1230, 1236, 152 L.Ed.2d 258 (2002), the Court held that
“Congress has directly spoken to the precise question at issue.” Section 1437d(Z)(6) requires lease terms that give local public housing authorities the discretion to terminate the lease of a tenant when a member of the household or a guest engages in drug-related activity, regardless of whether the tenant knew, or should have known, of the drug-related activity.
(internal citation omitted). Thus, a state statute allowing a remedy is contrary to the clear language of the federal statute.
Certainly, the Congressional intent is not to be overly harsh on tenants such as Ms. Turner, but to look out for the best interests of all residents in housing developments receiving federal funding. All tenants should be able to feel secure in their homes and live in decent and safe housing, without the fear of drug-related crimes often associated with public housing. Indeed, in the Congressional findings regarding public housing drug elimination, Congress found that:
(1) the Federal Government has a duty to provide public and other federally assisted low-income housing that is decent, safe, and free from illegal drugs;
(2) public and other federally assisted low-income housing in many areas suffers from rampant drug-related or violent crime;
(3) drug dealers are increasingly imposing a reign of terror on public and other federally assisted low-income housing tenants;
*129(4) the increase in drug-related and violent crime not only leads to murders, muggings, and other forms of violence against tenants, but also to a deterioration of the physical environment that requires substantial government expenditures;
(5) local law enforcement authorities often lack the resources to deal with the drug problem in public and other federally assisted low-income housing, particularly in light of the recent reductions in Federal aid to cities;
(6) the Federal Government should provide support for effective safety and security measures to combat drug-related and violent crime, primarily in and around public housing projects with severe crime problems;
(7) closer cooperation should be encouraged between public and assisted housing managers, local law enforcement agencies, and residents in developing and implementing anti-crime programs; and
(8) anti-crime strategies should be improved through the expansion of community-oriented policing initiatives.
42 U.S.C. § 11901.
Consequently, the “one-strike” policy was implemented as a result of these findings. Accordingly, Congress sought to occupy the field in the area of drug-related crimes in public housing in an effort to eradicate it. Had Congress intended to mandate remedies to this policy, it would have so said. Thus, a state statute allowing remedies beyond any that may be granted by Congress is contrary to clear congressional language and intent. Thus, I conclude that KRS 383.660(1) is preempted by 42 U.S.C. § 1437d(Z )(6).
Notwithstanding this conclusion, I agree that Ms. Turner should not be evicted in the case at hand. In Rucker, 535 U.S. at 133-34, 122 S.Ct. at 1235, the Court also held that 42 U.S.C. § 1437d(Z )(6)
does not require the eviction of any tenant who violated the lease provision. Instead it entrusts that decision to the local public housing authorities, who are in the best position to take account of, among other things, the degree to which the housing project suffers from “rampant drug-related or violent crime,” [;] “the seriousness of the offending action,”!;] and “the extent to which the leaseholder has ... taken all reasonable steps to prevent or mitigate the offending action!.]”
(Internal citations omitted).
While much discretion rests with the local Housing Authority, Rucker does require some thresholds to be met or facts to be taken into consideration for the eviction of a tenant under 42 U.S.C. § 1437d(Z )(6). In other words, discretion must be exercised, rather than a blind application of the law because 42 U.S.C. § 1437d(Z)(6) does not require evictions.
A review of the record reveals no evidence showing that the Jacob Price Development “suffers from ‘rampant drug-related or violent crime.’ ” While the Housing Authority may believe this to be so or even have a historical view or police reports supporting this, this is not an issue which is proper for judicial notice. Moreover, nothing was shown that the Housing Authority weighed anything in its decision to evict Ms. Turner. The Housing Authority should have put forth some evidence supporting this. However, the Housing Authority pointed to nothing other than the language of 42 U.S.C. § 1437d(Z)(6) to support its eviction proceedings.
I conclude, upon a reading of Rucker, that a reliance on 42 U.S.C. § 1437d(Z )(6) alone is insufficient where the local housing authority has not made a showing of evidence that it weighed the policy consid*130erations behind evictions in drug-related cases in public housing. This may include, inter alia, a showing of police records evidencing a rampant drug problem, complaints by neighbors of drug problems in the development, etc. Indeed, this view is in accord with the considerations in the Rucker opinion and the resultant directive from the United States Department of Housing and Urban Development, dated April 16, 2002. In that directive, then Secretary Mel Martinez wrote that
[b]y addressing activities that threaten the health, safety, or right to peaceful enjoyment of the premises by other tenants, the household responsibility clause provides public housing authorities a strong tool to use in dealing with the problem of illegal drugs. But as a tool, it should be applied responsibility. Applying it rigidly could generate more harm than good.
The Housing Authority having relied solely on 42 U.S.C. § 1437d(Z )(6), without exercising its discretion by taking into account and presenting proof of having considered the factors outlined in Rucker, has failed to show that the policy considerations behind 42 U.S.C. § 1437d(Z )(6) have been met for eviction in the case at hand. Accordingly, I would affirm, but on grounds other than the majority or the circuit court reached.