BILL ANALYSIS AB 2712 Page 1 Date of Hearing: August 29, 2006 ASSEMBLY COMMITTEE ON JUDICIARY Dave Jones, Chair AB 2712 (Leno) - As Amended: August 24, 2006 SUBJECT : HOUSING: SEX OFFENDERS KEY ISSUE : SHOULD THE RIGHTS AND DUTIES OF LANDLORDS BE CLARIFIED REGARDING THE TENANCY OF PERSONS WHO ARE REQUIRED TO REGISTER AS SEX OFFENDERS? SYNOPSIS This measure reflects the consensus reached by the author between owners of rental property and tenants regarding residential rental to persons who are required to register as sex offenders under Megan's Law. In response to concerns by landlords that Megan's Law could be construed to leave them at risk of liability for renting to Megan's Law registrants, this bill makes clear that Megan's Law does not impose a duty on landlords to use information available on the Megan's Law Web site to make decisions about housing accommodations. The bill likewise clarifies that no duty is created solely because a landlord rents or continues to rent to a person who is registered or is required to register under Megan's Law, or has been convicted of a sex offense in another state or foreign jurisdiction. Finally, the bill makes clear that it Megan's Law neither enlarges nor diminishes other duties or rights that a landlord may have under other laws. Unlike other rental property owner associations, the California Apartment Association (CAA) contends that the bill is not the proper solution to the problem. CAA argues instead that landlords should be authorized to refuse to rent to Megan's Law registrants, contrary to the non-discrimination provisions of that law. SUMMARY : Clarifies existing law regarding the duty of a residential landlord as to the tenancy of individuals who are required to register as sex offenders. Specifically, this bill : 1)Provides that no duty toward tenants shall arise on the part of a residential landlord solely for renting or leasing residential real property to a person who is registered or who AB 2712 Page 2 is required to register under Section 290 of the Penal Code (Megan's Law) or who is a person who has been convicted as a sex offender in another state or foreign jurisdiction. 2)Makes conforming changes to related Penal Code provisions to clarify that a landlord's specified authorization to use Megan's Law registration information is discretionary, and does not create a duty to use the information. 3)Makes related findings and declarations regarding existing law, including that the Megan's Law registration requirement does not impose a duty on landlords to use information available on the Megan's Law Web site to make decisions about housing accommodations, and that no duty is created solely because a landlord rents or continues to rent to a person who is registered or is required to register or has been convicted of a sex offense in another state or foreign jurisdiction. EXISTING LAW: 1)Requires a person convicted of specified sex offenses to register with law enforcement officials, as specified, within five working days of coming into a city or county where he or she is domiciled. Registration is for a lifetime, must be updated annually, and must be completed on a form provided by the Department of Justice (DOJ). (Penal Code section 290.) 2)Establishes a system for providing the public with information about registered persons via an Internet website maintained by the DOJ (the Megan's law database). Depending upon the severity of the sex offense, information is available as to some sex offenders with their specific home addresses, while others are identified only by zip code and community of residence. The following information is contained in the database: name or names and known aliases; a photograph; a physical description, including gender and race; date of birth; criminal history; address at which the person resides; or the person's zip code and community of residence, as specified; and any other information the DOJ considers relevant and not excluded by law. (Penal Code section 290.) 3)Provides that a lease or rental agreement to a registered sex offender contain a notice regarding the availability of Megan's Law information from a local law enforcement agency or AB 2712 Page 3 on the DOJ Megan's Law website, and generally provides that upon delivery of this notice to the lessee the lessor is not required to provide any additional information other than that regarding proximity of sex offenders. (Civil Code section 2079.10a.) 4)Provides that it is unlawful to use any of the information that is disclosed pursuant to [the Megan's law registration requirement] for purposes related to housing or accommodations, benefits, privileges or services provided by any business establishment, insurance, loans, credit, employment, education, scholarships or fellowships, except to the extent authorized by law. (Penal Code section 290.46(l)(2).) 5)Provides that a person is authorized to use information disclosed pursuant to the Megan's law database only to protect a person at risk. (Penal Code section 290.46(l)(1).) 6)Provides that everyone is responsible, not only for the result of his or her willful acts, but also for an injury occasioned to another by his or her want of ordinary care or skill in the management of his or her property or person, except so far as the latter has, willfully or by want of ordinary care, brought the injury upon himself or herself. (Civil Code section 1714.) FISCAL EFFECT : As currently in print, this bill is keyed non-fiscal. COMMENTS : This bill is co-sponsored by the California Housing Council (CHC) to clarify the duties and obligations of landlords under Megan's Law. Specifically, the bill would make clear that current law does not impose a duty on landlords to use information available on the Megan's Law website to make decisions about housing accommodations, and that no duty is created solely because a landlord rents or continues to rent to a person convicted of a sex offense. As CHC points out, AB 2712 would not absolve landlords of obligations that may exist under other laws or to maintain their premises. The Western Center on Law and Poverty writes, "[This] bill would clarify that a landlord has no special duty with regard to AB 2712 Page 4 renting property to a tenant who is required to register on the Megan's Law database. It also clarifies that the general duty required of landlords to provide safe housing remain in place; thus a landlord can evict and make other housing decisions based on conduct, rather than status. These clarifications will help to ensure that there will not be a further concentration of offenders in lower-rent apartments and single-room occupancy hotels, which would put poor, latch-key children at a greater risk than better-off children. We understand that higher income tenants with easy access to the Megan's Law database already demand that their landlords refuse to rent or evict offenders. Unfortunately, this is a zero-sum game: the offender has to live somewhere. Where are they likely to go? To lower-rent housing, where the tenants lack the equipment and time to check whether the new tenant is registered. By clarifying a landlord's duties, [this] bill would inhibit the wholesale shifting of offenders to poor neighborhoods. [This] bill reaches a delicate balance in this very difficult and vexing situation." California law well establishes that landowners must maintain land in their possession and control in a reasonably safe condition. (Civil Code section 1714; Rowland v. Christian (1968) 69 Cal.2d 108.) In the case of a landlord, this general duty of maintenance, which is owed to tenants and patrons, has been held to include the duty to take reasonable steps to secure common areas against foreseeable criminal acts of third parties that are likely to occur in the absence of such precautionary measures. (Frances T. v. Village Green Owners Assn. (1986) 42 Cal.3d 490, 499-501.) Otherwise, there is no tortious liability for the criminal acts of an independent third party. Case law also holds that a person has "no duty to act to protect others from the conduct of third parties." (Delgado v. Trax Bar & Grill (2005) 36 Cal.4th 224, 235 (Delgado).) Thus, if there is no duty, there can be no liability. And there is no duty if there is no foreseeability. (The existence and scope of any duty, in turn, depends on the foreseeability of the harm, which, in that context, is also a legal issue for the court. (Delgado, 36 Cal.4th at 239.) AB 2712 would provide that "no duty shall arise for a lessor solely for renting residential real property" to a person who is required to register as a sex offender in California or who was convicted as a sex offender in another jurisdiction. This provision reflects the public policy determination that the sole AB 2712 Page 5 act of renting to a convicted sex offender does not establish foreseeability that the sex offender will repeat his or her crime and will cause harm to a tenant or other person. Of course, if the lessor in fact acquired other knowledge to establish foreseeability that the person would likely commit a crime, a duty could arise depending on the circumstances. However, that duty would depend on the foreseeability of the criminal act, and not on the mere fact that the offender is a convicted sex offender. Thus, AB 2712 also provides that "this section is not intended to enlarge or diminish any other duty or right that a lessor may have under other laws (and circumstances) with respect to a tenant of residential real property." Another provision of AB 2712 would further provide that the delivery by the landlord of the notice informing tenants of the Megan's Law website and its available information, does not create a special relationship between the landlord and the tenant (which in turn might give rise to foreseeability and a duty). This provision is intended to thwart frivolous claims that the mere giving of the notice creates a special relationship between the lessor and tenant. Although no court would likely find a special relationship based on those facts, the argument could nonetheless be asserted, which would cost landlords money to defend. This provision would preempt those frivolous actions. ARGUMENTS IN OPPOSITION: Unlike other property owner groups, the California Apartment Association (CAA) opposes the bill, stating: This legislation purports to create liability protection for property owners from the acts of sex offenders against other tenants. It does not. And even if it did, AB 2712 is not the answer. While CAA supports online display of the Megan's law database, widespread publication of the sex offender registry has created some unintended consequences in rental housing. In particular, tenants who must be notified about the database in their rental agreements learn that a sex offender lives on the property and subsequently demand the property owner "do something about it." Property owners' hands are tied, however, by the Penal Code which prohibits use of the database for housing or accommodation. CAA has maintained a consistent policy position since the sex AB 2712 Page 6 offender issue emerged as a dilemma for the industry. Tenant safety is paramount. CAA members have not been willing to abdicate tenant safety for owner liability protection. Instead, CAA believes property owners should have the ability to screen tenants to determine their fitness for tenancy within a particular apartment community. According to independent legal analysis, AB 2712 not only fails to provide the liability protection claimed, but it contains glaring internal conflicts. AB 2712 does not absolve landlords of obligations that exist under other laws. Under current law, landlords have a duty to take reasonable steps to secure the property against the foreseeable criminal acts of third parties. In this case, the known danger - as stated by the legislature itself - is the sex offender. Even if the liability protection proclaimed by proponents of AB 2712 were real, it would exacerbate an already precarious situation. True liability protection would destroy the most basic business decision argument that landlords have used for rejecting sex offenders - tenant safety must come first. Moreover, families with children who share a common wall and common areas of rental property with a sex offender and low-income tenants who cannot afford to move out of the property when a sex offender moves in bear a heavy burden. Under AB 2712, a sex offender's purported right to live at a particular rental property is bolstered when property owners cannot use their business judgment to determine fitness for tenancy. While landlords are in business to make a profit, they also have a duty to provide clean and safe housing. Restricting use of sex offender data, however, gives landlords a conflicting directive. Moreover, while any rational business owner today will argue that a shield from lawsuits is a laudable and necessary goal in order to maintain a viable and financially successful operation, liability concerns have taken a back seat to the looming specter of an incident involving a known sex offender who harms another tenant. In addition, the cost of tenant turnover and the extortion by sex offenders who demand that landlords give them money to move are on the rise. AB 2712 Page 7 Despite the need for policy solutions, CAA is concerned that the current volatile situation is ripe for evolution into another "Three Strikes" fire storm. Therefore, CAA urges the Legislature to address the current problems quickly and thoroughly to prevent this from occurring. AB 2712 is not the answer. REGISTERED SUPPORT / OPPOSITION : Support California Housing Council (co-sponsor) Berkeley Property Owners Ass'n. Minority Property Owners Ass'n. North Valley Apartment Owners Ass'n. Santa Barbara Rental Property Owners Ass'n. Western Center on Law and Poverty Western Manufactured Housing Communities Ass'n. Opposition California Apartment Association Analysis Prepared by : Kevin G. Baker / JUD. / (916) 319-2334