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  








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            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  








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            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  








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          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  








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          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  








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               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.









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               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