BILL ANALYSIS                                                                                                                                                                                                    



                                                                  AB 976
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          Date of Hearing:  April 17, 2007

                           ASSEMBLY COMMITTEE ON JUDICIARY
                                  Dave Jones, Chair
                    AB 976 (Calderon) - As Amended: April 11, 2007
                                           
          SUBJECT  :  RESIDENTIAL HOUSING: COLLECTING AND REPORTING  
          INFORMATION ABOUT TENANTS

           KEY ISSUE  : SHOULD LANDLORDS BE PROTECTED AGAINST COMPELLED  
          INQUIRY OR REPORTING REGARDING THE IMMIGRATION OR CITIZENSHIP  
          STATUS OF TENANTS OR PROSPECTIVE TENANTS AND LIKEWISE BE  
          PROHIBITED FROM VOLUNTARILY MAKING SUCH AN INQUIRY OR REPORT?

                                      SYNOPSIS
          
          This bill is supported by both landlord and tenant groups to  
          prohibit local governments from compelling landlords to inquire  
          and/or report information about the immigration or citizenship  
          status of a tenant or occupant of residential rental property,  
          as well as local ordinances prohibiting landlords from renting  
          to people on that basis.  It would likewise prohibit landlords  
          from voluntarily conducting such an inquiry or from requiring  
          that tenants or occupants make any statements about immigration  
          or citizenship status.  The bill comes in response to efforts in  
          Escondido and other cities around the country to prohibit  
          landlords from renting to undocumented immigrants.  Among other  
          arguments, supporters contend that it is inappropriate to  
          require residential property owners to act as immigration law  
          enforcement officers, both because they lack the skills and  
          capacity and because the U.S. Constitution entrusts  
          responsibility for immigration solely to the federal government.  
           Despite the support by other property owners, the bill is  
          opposed by the California Apartment Association, which argues  
          that it will be ineffective in addressing local ordinances  
          targeting undocumented immigrants and will interfere with  
          appropriate determinations regarding tenant suitability.
           
          SUMMARY  :  Regulates inquiries and reporting by landlords  
          regarding the immigration or citizenship status of tenants or  
          occupants. Specifically,  this bill  : 

          1)Provides that no city, county, or city and county shall, by  
            statute, ordinance, or regulation, or by administrative action  
            implementing any statute, ordinance, or regulation, compel a  








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            landlord or any agent of the landlord to make any inquiry,  
            compile, disclose, report, or provide any information,  
            prohibit offering or continuing to offer, accommodations in  
            the property for rent or lease, or otherwise take any action  
            regarding or based on the immigration or citizenship status of  
            a tenant, prospective tenant, occupant, or prospective  
            occupant of residential rental property.

          2)Provides that no landlord or any agent of the landlord shall:  
            (a) Make any inquiry regarding or based on the immigration or  
            citizenship status of a tenant, prospective tenant, occupant,  
            or prospective occupant of residential rental property; or (b)  
            require that any tenant, prospective tenant, occupant, or  
            prospective occupant of the rental property make any  
            statement, representation, or certification concerning his or  
            her immigration or citizenship status.


           EXISTING LAW  :  
           
          1)Provides for the regulation of immigration exclusively by the  
            federal government.  (E.g., LULAC v. Wilson, 908 F. Supp. 755,  
            786-87 (C.D. Cal. 1995).)

          2)Prohibits discrimination by private businesses on the basis of  
            a person's citizenship under federal civil rights law.  (E.g.,  
            Duane v. Government Employees Ins. Co., 37 F.3d 1036, 1044  
            (4th Cir. 1994) (federal civil rights law prohibits denial of  
            homeowner's insurance to non-citizen based on citizenship  
            status).)
           
           3)Provides under the Unruh Civil Rights Act that all persons  
            within the jurisdiction of this state are free and equal, and  
            no matter what their sex, race, color, religion, ancestry,  
            national origin, disability, medical condition, marital  
            status, or sexual orientation are entitled to the full and  
            equal accommodations, advantages, facilities, privileges, or  
            services in all business establishments of every kind  
            whatsoever and prohibits other arbitrary discrimination.   
            (Civil Code section 51.)

          4)Provides under the Fair Employment and Housing Act that it is  
            unlawful to discriminate or harass any person with respect to  
            housing because of the race, color, religion, sex, sexual  
            orientation, marital status, national origin, ancestry,  








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            familial status, source of income, or disability of that  
            person.  (Government Code section 12955 et seq.)

           FISCAL EFFECT  :   As currently in print, this bill is keyed  
          non-fiscal.

           COMMENTS  :  In support of the bill the author states, "It is  
          critically important that landlords and tenants understand and  
          comply with a uniform system of laws.  The state has  
          consistently embraced this theory in our anti-discrimination,  
          investigative consumer reporting, eviction and termination of  
          tenancy laws.  Aberrations from these laws are unacceptable.  On  
          October 18, 2006 Escondido City adopted an ordinance ? which  
          would have barred landlords from renting to undocumented  
          immigrants (the ordinance referred to the immigrants as 'illegal  
          immigrants'), required landlords to become de facto police,  
          mandated that landlords evict undocumented immigrants which did  
          not comport with state evictions laws, imposed substantial  
          monetary penalties and suspension of business licenses and did  
          not allow for redress.  On November 3, a federal lawsuit was  
          filed by a coalition of civil rights groups seeking to  
          invalidate the ordinance.  On November 20, a temporary  
          restraining order was obtained from US District Judge Houston.   
          Most concur that the ordinance was riddled with constitutional  
          problems and ignored the primacy of federal immigration law."   
          In addition, the author argues, ordinances like this unfairly  
          target people of color because landlords invariably focus on  
          certain individuals that look, talk or act in some manner  
          believed or assumed by some landlords to indicate immigration  
          status or citizenship.

          The sponsor, Apartment Association of California Cities, notes  
          that the Escondido ordinance was patterned after a Hazelton, PA  
          ordinance of July 13, 2006, which was suspended by a court order  
          pending a federal lawsuit challenging the ordinance.  Despite  
          the legal problems with these ordinances, the sponsor states,  
          landlords in other California cities were prompted by the  
          Escondido ordinance to begin screening prospective applicants  
          consistent with the intent and direction of the ordinance.  The  
          sponsor further notes that a proposed ballot initiative was  
          filed in the City of San Bernardino; although it ultimately  
          failed before the City Council, this proposed initiative would  
          have prohibited landlords from renting to undocumented  
          immigrants.  Similar efforts have been undertaken in cities in  
          Florida, Texas and New Jersey, the author states.








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          The adoption of these ordinances and the need for associated  
          legal challenges each time such an ordinance is adopted will  
          stop if AB 976 is signed into law, the author argues.   
          Supporters state that regulation of immigration, of "who may  
          stay and who may depart," is a key component of immigration law  
          and any local law that would deny housing to undocumented  
          immigrants interferes with the federal power of immigration.  

          Rental association supporters further argue that the bill is  
          needed because residential landlords are in the business of  
          renting property and are neither qualified nor permitted to  
          enforce immigration or other laws.  Without the requisite  
          authorization and training, forcing landlords to enforce such a  
          law could endanger the public and themselves, landlords contend.  
           They also argue that such ordinances verge on government  
          mandated vigilantism without the mandated due process  
          protections of the State and Federal Constitutions.  In  
          addition, landlord groups argue that their members are trained  
          to and do scrupulously follow federal and state anti  
          discrimination laws, which ordinances such as the one in  
          Escondido would have required them to violate along with other  
          laws.

          Representing tenants, the Western Center on Law and Poverty also  
          supports the bill, contending, "Too often, poor immigrants face  
          bleak housing choices.  They are forced to rent substandard  
          dwellings at high prices from landlords who exploit their  
          circumstances.  They are constrained from reporting housing code  
          violations and are unable to enforce the landlord's  
          responsibilities required by law.  [This] bill would serve to  
          lessen these problems.  AB 976 would also serve to reduce  
          discriminatory practices against groups with significant recent  
          immigration.  Landlords who refuse to rent to certain groups  
          under the fa?ade that they might be undocumented will no longer  
          be able to use that excuse.  This is an important advance for  
          fair housing."

           ARGUMENTS IN OPPOSITION:   Perhaps surprisingly in light of the  
          support for the measure by other landlord associations, the  
          California Apartment Association (CAA) opposes the measure.  CAA  
          argues that the bill would be ineffective because it "would have  
          no impact on persons who are here illegally and would not remedy  
          local ordinances that attempt to regulate the behavior of  
          landlords as it relates to unlawful aliens."  








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          This conclusion is based on CAA's interpretation of a 1999  
          opinion by Legislative Counsel, which CAA asserts stands for the  
          proposition that whenever the terms "immigration or citizenship  
          status" are used in a state statute they necessarily mean only a  
          person's lawful presence in the country.  However, research by  
          Committee counsel reveals that the Legislative Counsel's opinion  
          in that matter concerned only the term "immigration status," not  
          the term "citizenship," and moreover was understandably  
          concerned only with how that term was used in the proposal then  
          under consideration - not an invariable mandate that the term  
          could have no other meaning in any other context.

          In that opinion, Legislative Counsel addressed the question  
          whether a landlord could permissibly decline to rent to a person  
          who was known to be unlawfully present in the country if the  
          Unruh Civil Rights Act were amended to prohibit discrimination  
          on the basis of immigration status.  Legislative Counsel  
          suggested that a landlord might indeed be permitted to refuse to  
          rent to such a person without running afoul of a ban on  
          immigration-status discrimination if renting to that person  
          would subject the landlord to criminal penalties under federal  
          law for "harboring" an alien known to be in the country  
          illegally.  

          The more salient point to be taken from this discussion may be  
          that, to the extent that a landlord could potentially be exposed  
          to criminal penalties for harboring a person known to be an  
          undocumented immigrant, AB 976 would appear to be beneficial in  
          prophylactically guarding against the commission of a crime by  
          making clear that local governments may not force landlords to  
          make inquiries they are not otherwise required to make and which  
          could potentially lead to the acquisition of such knowledge.  Of  
          course, as the Legislative Counsel opinion indicates, a  
          prohibition in state law against making an inquiry into  
          immigration status must yield to any contrary command under  
          federal criminal law where the landlord is aware of facts and  
          circumstances clearly indicating that a person is an alien who  
          has entered or remained in the United States in violation of  
          law.  Accordingly, the first provision of the bill, directed at  
          local ordinances, would protect landlords against unnecessary  
          entanglement in potential criminal issues, although the second  
          provision prohibiting landlord inquiries would be read in  
          harmony with any federal obligation to inquire or refuse to rent  
          when a landlord is put on sufficient notice of facts indicating  








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          that a tenant or prospective tenant is undocumented.  (See  
          United States v. Lopez, 521 F.2d 437, 440-441 (2d Cir. 1975);  
          United States v. Perez, 443 F.3d 772, 781 (11th Cir. 2006).)

          CAA also argues against the prohibition in the bill restricting  
          landlords from voluntarily inquiring or reporting information  
          about immigration or citizenship status, contending that it is  
          appropriate and necessary for landlords to request immigration  
          information in some situations - such as when a tenant lacks a  
          Social Security number or holds a visa.  According to CAA, this  
          information is appropriate to evaluate a person's fitness for  
          tenancy.  CAA does not explain why the possession of a Social  
          Security number or immigration visa is relevant to a tenant's  
          ability to pay rent or conduct themselves appropriately as  
          tenants - or even to their lawful status in the country.  It  
          must be noted moreover that federal civil rights law prohibits  
          discrimination by private businesses on the basis of a person's  
          citizenship.  (See Duane v. Government Employees Ins. Co., 37  
          F.3d 1036, 1044 (4th Cir. 1994) (federal civil rights law  
          prohibits denial of homeowner's insurance to non-citizen based  
          on citizenship status despite belief by insurance company that  
          non-citizens may be riskier customers).)  The Unruh Act likewise  
          prohibits discrimination on the basis of ancestry, national  
          origin, race and other arbitrary factors. 

          Finally, CAA argues that the prohibition against collecting  
          information regarding occupants of residential housing would  
          apply to employees for whom landlords are required to collect  
          and report immigration and citizenship information.  It is not  
          clear why CAA equates occupants with employees, but it may be  
          conceded that the bill ought not prohibit employers from  
          complying with federal employment laws, particularly the  
          Immigration Reform and Control Act (IRCA), that require certain  
          inquiries regarding an applicant's work authorization.
           
          REGISTERED SUPPORT / OPPOSITION  :   

           Support 
           
          Apartment Association of California Cities (sponsor)
          Apartment Association of Orange County
          Apartment Association of Greater Los Angeles 
          Asian Americans for Civil Rights and Equality
          California Rural Legal Assistance Foundation
          California School Employees Association








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          Jericho
          Mexican American Legal Defense and Educational Fund
          Santa Barbara Rental Property Association
          Western Center on Law and Poverty

           Opposition 
           
          California Apartment Association
           
          Analysis Prepared by  :  Kevin G. Baker / JUD. / (916) 319-2334