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AB-53 Rental housing unlawful housing practices: applications: criminal records.(2019-2020)

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Date Published: 04/22/2019 09:00 PM
AB53:v98#DOCUMENT

Amended  IN  Assembly  April 22, 2019

CALIFORNIA LEGISLATURE— 2019–2020 REGULAR SESSION

Assembly Bill
No. 53

Introduced by Assembly Members Jones-Sawyer and Bonta

December 03, 2018

An act to amend Section 12955 12955.8 of, and to add Section 12955.05 to, the Government Code, relating to rental housing.


LEGISLATIVE COUNSEL'S DIGEST


AB 53, as amended, Jones-Sawyer. Rental housing discrimination: unlawful housing practices: applications: criminal records.
Existing law law, the California Fair Employment and Housing Act, generally prohibits housing discrimination with respect to the personal characteristics of race, color, religion, sex, gender, gender identity, gender expression, sexual orientation, marital status, national origin, ancestry, familial status, source of income, disability, or genetic information.
This bill would make it unlawful for the owner of any rental housing accommodation to deny the rental or lease of a housing accommodation without first satisfying specified requirements relating to the application process. The bill would prohibit an unlawful housing practice for the owner of a rental housing accommodation from inquiring to inquire about, or requiring require an applicant for a rental housing accommodation to disclose, a criminal record during the initial application assessment phase, as defined, unless otherwise required by state or federal law. The bill would permit an owner of a rental housing accommodation, after the successful completion of the initial application assessment phase, to request a criminal background check of the applicant and consider an applicant’s criminal record in deciding whether to rent or lease to the applicant. The bill would require the owner of a rental housing accommodation who is considering denying an application to rent or lease on the basis of the applicant’s criminal record, to, within 5 days of receiving the information that is the basis of the potential possible denial, provide the applicant with a written statement listing the reasons for the possible denial before making a final decision. If, within 14 2 days of receipt of the written statement of the potential possible denial, the applicant provides the owner notice of evidence demonstrating the inaccuracy of the item or items within the applicant’s criminal record or evidence of rehabilitation or other mitigating factors, as specified, the bill would require the owner to reconsider his or her their decision for a specified time, and would require the owner to provide written notification to the applicant of his or her the owner’s final decision to deny the application. The bill would prohibit the owner of the rental housing accommodation from requiring in an application for a rental housing accommodation or as otherwise part of the application process disclosure of, or, if such information is received, denying a dwelling based in whole or in part on specified information or occurrences, including, among others, arrests that did not result in conviction, convictions that have been voided, and juvenile justice determinations. The bill would also require an owner of a rental housing accommodation that uses criminal records as part of the screening criteria to evaluate an applicant to include a notice, as provided, in the application for tenancy of a rental housing accommodation.
The act provides that, in connection with specified unlawful practices related to housing discrimination, proof of a violation causing a discriminatory effect is shown if an act or failure to act has the effect, regardless of intent, of unlawfully discriminating on the basis of a person’s race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, marital status, sex, age, or sexual orientation. The act provides that a business establishment whose action or inaction has an unintended discriminatory effect shall not be considered to have committed an unlawful housing practice in violation of the act if the business establishment can establish that the action or inaction is necessary to the operation of the business and effectively carries out the significant business need it is alleged to serve.
This bill would instead provide that a business establishment whose action or inaction has an unintended discriminatory effect shall not be considered to have committed an unlawful housing practice in violation of the act if the business establishment can establish that the action or inaction is necessary to achieve one or more substantial, legitimate, nondiscriminatory business interests and effectively carries out the significant business interest it is alleged to serve.
Vote: MAJORITY   Appropriation: NO   Fiscal Committee: YES   Local Program: NO  

The people of the State of California do enact as follows:


SECTION 1.Section 12955 of the Government Code is amended to read:
12955.

It shall be unlawful:

(a)For the owner of any housing accommodation to discriminate against or harass any person because of the race, color, religion, sex, gender, gender identity, gender expression, sexual orientation, marital status, national origin, ancestry, familial status, source of income, disability, or genetic information of that person.

(b)For the owner of any housing accommodation to make or to cause to be made any written or oral inquiry concerning the race, color, religion, sex, gender, gender identity, gender expression, sexual orientation, marital status, national origin, ancestry, familial status, disability, or genetic information of any person seeking to purchase, rent, or lease any housing accommodation.

(c)For any person to make, print, or publish, or cause to be made, printed, or published any notice, statement, or advertisement, with respect to the sale or rental of a housing accommodation that indicates any preference, limitation, or discrimination based on race, color, religion, sex, gender, gender identity, gender expression, sexual orientation, marital status, national origin, ancestry, familial status, source of income, disability, or genetic information or an intention to make that preference, limitation, or discrimination.

(d)For any person subject to the provisions of Section 51 of the Civil Code, as that section applies to housing accommodations, to discriminate against any person on the basis of sex, gender, gender identity, gender expression, sexual orientation, color, race, religion, ancestry, national origin, familial status, marital status, disability, genetic information, source of income, or on any other basis prohibited by that section. Selection preferences based on age, imposed in connection with a federally approved housing program, do not constitute age discrimination in housing.

(e)For any person, bank, mortgage company, or other financial institution that provides financial assistance for the purchase, organization, or construction of any housing accommodation to discriminate against any person or group of persons because of the race, color, religion, sex, gender, gender identity, gender expression, sexual orientation, marital status, national origin, ancestry, familial status, source of income, disability, or genetic information in the terms, conditions, or privileges relating to the obtaining or use of that financial assistance.

(f)For any owner of housing accommodations to harass, evict, or otherwise discriminate against any person in the sale or rental of housing accommodations when the owner’s dominant purpose is retaliation against a person who has opposed practices unlawful under this section, informed law enforcement agencies of practices believed unlawful under this section, has testified or assisted in any proceeding under this part, or has aided or encouraged a person to exercise or enjoy the rights secured by this part. Nothing herein is intended to cause or permit the delay of an unlawful detainer action.

(g)For any person to aid, abet, incite, compel, or coerce the doing of any of the acts or practices declared unlawful in this section, or to attempt to do so.

(h)For any person, for profit, to induce any person to sell or rent any dwelling by representations regarding the entry or prospective entry into the neighborhood of a person or persons of a particular race, color, religion, sex, gender, gender identity, gender expression, sexual orientation, marital status, ancestry, disability, genetic information, source of income, familial status, or national origin.

(i)For any person or other organization or entity whose business involves real estate-related transactions to discriminate against any person in making available a transaction, or in the terms and conditions of a transaction, because of race, color, religion, sex, gender, gender identity, gender expression, sexual orientation, marital status, national origin, ancestry, source of income, familial status, disability, or genetic information.

(j)To deny a person access to, or membership or participation in, a multiple listing service, real estate brokerage organization, or other service because of race, color, religion, sex, gender, gender identity, gender expression, sexual orientation, marital status, ancestry, disability, genetic information, familial status, source of income, or national origin.

(k)To otherwise make unavailable or deny a dwelling based on discrimination because of race, color, religion, sex, gender, gender identity, gender expression, sexual orientation, familial status, source of income, disability, genetic information, or national origin.

(l)To discriminate through public or private land use practices, decisions, and authorizations because of race, color, religion, sex, gender, gender identity, gender expression, sexual orientation, familial status, marital status, disability, genetic information, national origin, source of income, or ancestry. Discrimination includes, but is not limited to, restrictive covenants, zoning laws, denials of use permits, and other actions authorized under the Planning and Zoning Law (Title 7 (commencing with Section 65000)), that make housing opportunities unavailable.

Discrimination under this subdivision also includes the existence of a restrictive covenant, regardless of whether accompanied by a statement that the restrictive covenant is repealed or void.

(m)As used in this section, “race, color, religion, sex, gender, gender identity, gender expression, sexual orientation, marital status, national origin, ancestry, familial status, source of income, disability, or genetic information,” includes a perception that the person has any of those characteristics or that the person is associated with a person who has, or is perceived to have, any of those characteristics.

(n)To use a financial or income standard in the rental of housing that fails to account for the aggregate income of persons residing together or proposing to reside together on the same basis as the aggregate income of married persons residing together or proposing to reside together.

(o)In instances where there is a government rent subsidy, to use a financial or income standard in assessing eligibility for the rental of housing that is not based on the portion of the rent to be paid by the tenant.

(p)For the owner of any rental housing accommodations to deny the rental or lease of a housing accommodation without first satisfying the requirements of Section 12955.05, unless otherwise required by state or federal law.

(q)(1)For the purposes of this section, “source of income” means lawful, verifiable income paid directly to a tenant or paid to a representative of a tenant. For the purposes of this section, a landlord is not considered a representative of a tenant.

(2)For the purposes of this section, it shall not constitute discrimination based on source of income to make a written or oral inquiry concerning the level or source of income.

SECTION 1.

 It is the intent of the Legislature to provide the formerly incarcerated an opportunity to receive a thorough and fair vetting when seeking housing. Nothing in this act is intended to compel, or otherwise require, a landlord or property owner to provide housing to any individual.

SEC. 2.

 Section 12955.05 is added to the Government Code, to read:

12955.05.
 (a) For purposes of this section:
(1) “Criminal record” means criminal offender record information, as defined in Section 13102 of the Penal Code or state summary criminal history information as defined in Section 11105 of the Penal Code.
(2) “Evidence of rehabilitation or other mitigating factors” includes, but is not limited to, the following:
(A) A person’s satisfactory compliance with all terms and conditions of parole or probation, provided that the person’s inability to pay fines, fees, and restitution due to indigence shall not be considered noncompliance with terms and conditions of parole or probation.
(B) Employer recommendations, particularly related to a person’s postconviction employment.
(C) Educational attainment or vocational or professional training since conviction, including training received while incarcerated.
(D) Completion of or active participation in rehabilitative treatment, including alcohol or drug treatment.
(E) Letters of recommendation from community organizations, counselors, case managers, teachers, community leaders, parole officers, and probation officers who have observed the person since his or her the person’s conviction.
(F) A person’s familial relationship with a person who may be currently residing in the housing accommodation.
(G) The age of the person at the time of the conviction.
(H) Explanation of precedent coercive conditions, including physical, emotional, or sexual abuse, untreated substance abuse, or mental illness that contributed to the conviction.
(3) “Initial application assessment phase” means the period before a decision is made to rent or lease a rental housing accommodation, which includes the time during which a person seeking a rental housing accommodation requests, and is provided with, an application and the time during which the assessment of rental history and credit history, the checking of sources of income, and the scheduling of an applicant interview routinely occur.
(b) (1) It is an unlawful housing practice for the owner of a rental housing accommodation to inquire about, or to require an applicant for a rental housing accommodation to disclose, a criminal record during the initial application assessment phase, unless otherwise required by state or federal law.
(2) Following the successful completion of the initial application assessment phase, an owner of a rental housing accommodation may request a criminal background check of the applicant and consider an applicant’s criminal record in deciding whether to rent or lease. If the owner of a rental housing accommodation is considering denying an application to rent or lease after requesting a criminal background check and considering an applicant’s criminal record, and the possible denial is based on the applicant’s criminal record, he or she the owner shall, within five days of receiving the information that is the basis of the possible denial, provide the applicant with a written statement listing the reasons for the possible denial before making a final decision.
(3) If, within 14 two days of receipt of the written statement described in paragraph (2), the applicant provides the owner of the rental housing accommodation notice orally orally, or in writing if requested by the owner of the rental housing accommodation, of evidence demonstrating the inaccuracy of the item or items within the applicant’s criminal record or evidence of rehabilitation or other mitigating factors, the owner of the housing accommodation shall reconsider his or her their decision in light of the information and delay the denial for no longer than five days after receipt of the information. If, upon individualized assessment review of the applicant’s criminal record and the evidence of rehabilitation and mitigating factors, the applicant still has an unacceptable criminal record, then the owner of the housing accommodation shall notify the applicant of his or her the owner’s final decision to deny the application in writing.
(c) The owner of the housing accommodation shall not in an application for rental housing accommodations or as otherwise part of the application process require disclosure of, or, if such information is received, deny a dwelling based in whole or in part on the following:
(1) A previous arrest that did not result in a conviction.
(2) Participation in, or completion of, a diversion or a deferral of judgment program.
(3) A conviction that has been judicially dismissed, expunged, voided, invalidated, or otherwise rendered inoperative, including, but not limited to, as is provided under Section 1203.4, 1203.4a, or 1203.41 of the Penal Code.
(4) A determination or adjudication in the juvenile justice system or information regarding a matter considered in or processed through the juvenile justice system.
(5) Information pertaining to an offense other than a felony or misdemeanor.
(d) (1) An owner of a rental housing accommodation that uses criminal records as part of the screening criteria to evaluate an applicant shall include the following notice in the application for tenancy of a rental housing accommodation:
(2) “This property will conduct a criminal background check as the final part of the screening process. You are not required, and the owner of the property may not require you, to disclose a criminal record until your application has satisfied all of the property’s other screening criteria, unless otherwise required by state or federal law. If your application does not satisfy the property’s criteria with respect to criminal records, you will have two days after the possible denial to provide orally, or in writing if so requested by the owner of the property, evidence demonstrating the inaccuracy of the item or items within your criminal record that form the basis of the possible denial, or evidence of rehabilitation or other mitigating factors.”

SEC. 3.

 Section 12955.8 of the Government Code is amended to read:

12955.8.
 For purposes of this article, in connection with unlawful practices:
(a) Proof of an intentional violation of this article includes, but is not limited to, an act or failure to act that is otherwise covered by this part, that demonstrates an intent to discriminate in any manner in violation of this part. A person intends to discriminate if race, color, religion, sex, gender, gender identity, gender expression, sexual orientation, marital status, national origin, ancestry, familial status, source of income, disability, or genetic information is a motivating factor in committing a discriminatory housing practice even though other factors may have also motivated the practice. An intent to discriminate may be established by direct or circumstantial evidence.
(b) Proof of a violation causing a discriminatory effect is shown if an act or failure to act that is otherwise covered by this part, and that has the effect, regardless of intent, of unlawfully discriminating on the basis of race, color, religion, sex, gender, gender identity, gender expression, sexual orientation, marital status, national origin, ancestry, familial status, source of income, disability, or genetic information. A business establishment whose action or inaction has an unintended discriminatory effect shall not be considered to have committed an unlawful housing practice in violation of this part if the business establishment can establish that the action or inaction is necessary to the operation of the business achieve one or more substantial, legitimate, nondiscriminatory business interests and effectively carries out the significant business need interest it is alleged to serve. In cases that do not involve a business establishment, the person whose action or inaction has an unintended discriminatory effect shall not be considered to have committed an unlawful housing practice in violation of this part if the person can establish that the action or inaction is necessary to achieve an important purpose sufficiently compelling to override the discriminatory effect and effectively carries out the purpose it is alleged to serve.
(1) Any determination of a violation pursuant to this subdivision shall consider whether or not there are feasible alternatives that would equally well or better accomplish the purpose advanced with a less discriminatory effect.
(2) For purposes of this subdivision, the term “business establishment” shall have the same meaning as in Section 51 of the Civil Code.
(c) An owner of a rental housing accommodation who satisfies the requirements of Section 12955.05 shall not be in violation of that section with respect to the use of criminal records, as defined in Section 12955.05, in screening applicants for tenancy.