BILL ANALYSIS AB 1170 Page 1 Date of Hearing: April 21, 2009 Counsel: Gabriel Caswell ASSEMBLY COMMITTEE ON PUBLIC SAFETY Jose Solorio, Chair AB 1170 (Calderon) - As Amended: April 15, 2009 SUMMARY : Requires the Department of Justice (DOJ) to make available to the public a consumer information booklet providing federal and state laws relating to sex offender registration as it relates to the lease or rental of real property. Specifically, this bill : 1)States that the information contained in the booklet shall contain the following information: a) General information concerning federal and state laws relating to persons who are required to register pursuant to Penal Code Section 290 as specified sex offenders. b) Information regarding specified statutory disclose duties contained in the Civil Code to a prospective resident. c) A discussion about legal access and use of information contained in DOJ's Internet Web site. d) Identification of the constitutional, statutory, and decisional law applicable to this section. 2)Provides that if the consumer information booklet is delivered to a prospective or current resident by the owner or owner's agent in connection with the lease or rental of residential real property, the owner or owner's agent is not required to provide additional information on the subject. 3)Specifies that this section does not alter the duty of an owner or owner's agent to report and otherwise act on the existence of known illegal activity on or affecting the real property and nothing in this section alters any existing duty of an owner or owner's agent under any other statute or decisional law. AB 1170 Page 2 4)Stated that in the development of the consumer information booklet, the DOJ shall consult with the Department of Consumer Affairs and public and private organizations having a demonstrated interest in this area of the law. 5)Creates the "Megan's Law Disclosure Booklet for Landlords and Tenants Fund" and continuously appropriates voluntary contributions or donations received into the fund to DOJ to pay costs directly associated with the consumer information booklet, and provides that DOJ need not incur any cost associated with the provisions of this bill until sufficient contributions to the fund have been deposited. EXISTING LAW : 1)Establishes a three-tiered system for providing the public with information via an Internet Web site maintained by DOJ regarding persons required to register as sex offenders (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. (Penal Code Section 290.46.) 2)Provides that DOJ shall make available to the public via the Internet Web site the following information regarding specified sex offenders: a) His or her name or names and known aliases; b) A photograph; c) A physical description, including gender and race; d) Date of birth; e) Criminal history; f) The address at which the person resides; or the person's zip code and community of residence, as specified; and, g) Any other information the DOJ considers relevant and is not excluded by law. AB 1170 Page 3 3)States that, except as otherwise provided, it is unlawful to use any of the information that is disclosed pursuant to this section for purposes related to health insurance, insurance, loans, credit, employment, education, scholarships or fellowships, housing or accommodations, and benefits, privileges or services provided by any business establishment. [Penal Code Section 290.46(j)(2).] 4)Provides that a person is authorized to use information disclosed pursuant to the Megan's Law database may be disclosed only to protect a person at risk. [Penal Code Section 290.46(j)(1).] 5)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 DOJ. (Penal Code Section 290.) 6)Establishes a system for providing the public with information about registered persons via an Internet Web site 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.) 7)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 on the DOJ Megan's Law Web site, 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.) 8)Provides that it is unlawful to use any of the information that is disclosed pursuant to [the Megan's Law registration AB 1170 Page 4 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).] 9)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).] 10)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 : Unknown COMMENTS : 1)Author's Statement : According to the author, "[t]here is a pervasive misunderstanding as to Megan's Law. The DOJ maintains the website and disclosure of the existence of the Web site is required in all rental and lease contracts yet, there is no additional information about what that means, what a consumer may do with that information and what a consumer may do if he or she has actual knowledge of the location of a registered sex offender. The maxim of knowledge is power would be particularly helpful to consumers if that information is presented in a consumer friendly manner. Further, there are a number of people offering different opinions as to current law and it would be particularly helpful IF the DOJ were to development a booklet as to the status of the law. Some people claim that there are certain aspects to Megan's Law that are not clear, and if that is the case, we are asking the DOJ to so simply state that fact. We submit that a better understanding will assist all involved in this issue. The bill does not require the DOJ to write a consumer oriented booklet and the DOJ is authorized to delay incurring any costs associated with the implementation of the bill until sufficient voluntary private contributions have been deposited in the state General Fund, therefore there would be no direct AB 1170 Page 5 fiscal affect upon the state. Further, the state is not required to publish the booklet, which is an archaic method of distributing helpful information to consumers. The DOJ would distribute the booklet electronically and could post it on the DOJ Web site such as it does for all of the other DOJ consumer booklets. Finally, we have successfully worked with the consumer attorneys association to address their concerns about liability issues. When the bill is amended on or about April 14, the consumer attorneys will be neutral on the bill." 2)Megan's Law Background : California law requires individuals to register as sex offenders upon conviction of certain enumerated crimes. Convictions that require registration as a sex offender include rape, sexual battery, transporting a child for lewd or lascivious acts, sexual assault of a child, incest, sodomy and indecent exposure. Since 1996, under the law commonly known as "Megan's Law," the identity and residence (by ZIP code) of registered, "high-risk" sex offenders are subject to public disclosure by law enforcement upon telephone request or by viewing of the publicly available information distributed to, and made publicly available by, local law enforcement, as specified. In 2004, AB 488 (Parra), Chapter 745, Statutes of 2004, effective September 24, 2004, requires DOJ to implement an Internet web site (the "Megan's Law Web site") listing the convicted sex offenders and, in some cases, their specific home addresses. The Megan's Law Web site became available to the public in July 2005. The effects of making specific home addresses of sex offenders available on the Internet are not yet fully known, although some groups have speculated about potential economic damages and civil liability of apartment house owners and nursing homes that rent to or house sex offenders. In response, AB 2712 (Leno), of the 2005-06 Legislative Session, was introduced to clarify the non-liability of a residential property owner when he or she rents to a sex offender and when he or she notifies other tenants of the existence of the Megan's Law Web site. AB 2712 was vetoed. 3)This Bill Requires DOJ to Issue and Publish Legal Opinions as to Federal and State Law that Is Constantly Changing and Untenable : This bill requires that the DOJ publish a booklet that can be distributed to tenants in California which AB 1170 Page 6 contains identifies "the constitutional, statutory, and decisional law applicable to this section." This will require the DOJ to render a legal opinion affecting the liability of landlord/tenant relationship in a novel, developing, and ever changing area of the law. Questions will arise as to whether landlords or tenants act in good faith upon the information opined by the DOJ. This provision could shift liability for violations of the law between parties and potentially upon the DOJ. Additionally, the requirement that the DOJ provide this booklet will add costs to DOJ's budget. Office resources and attorney time will have to constantly be expanded to track, maintain, research, and publish a vast number of booklets for distribution. Finally, DOJ's Office of Victim Services, which would have been responsible for the publication of this booklet, was eliminated in the most recent budget and DOJ is unclear where the resources for providing this information will come from. 4)Purpose of Public Access to the Megan's Law Information via the Internet : According to the author of AB 1184 (Spitzer), of the 2003-04 Legislative Session, "The purpose of Megan's Law is to provide the public with information that will allow them to protect themselves and their families from convicted sex offenders. It can only be successful when the public knows that information. [O]ur system does not treat dissemination of truthful information in furtherance of a legitimate governmental objective as punishment. The Court rejected the argument that dissemination of this information on the Internet was overbroad and that this constituted punishment." Many other bills dealing with Megan's Law repeated similar statements about the importance of providing the public with information that will allow them to protect themselves and their families. Megan's Law was placed on the Internet as an instrument that would provide parents with knowledge in order to take whatever protective action deemed necessary. Since 2005, Megan's Law has been on the Internet and all of this knowledge has been in a more accessible public realm. If the arguments of 2003 and 2004 were to be believed, the necessary knowledge is now being provided in the most accessible manner possible. AB 1170 Page 7 5)The Governor's High Risk Sex Offender Task Force : This Task Force, after many months of meetings and deliberation, reported the following: "The critical issue of housing for High Risk Sex Offenders was one of the main factors leading to the formation of the task force . . . No viable long-term solutions were identified in the 90 days available prior to the dissolution of the task force . . . . Therefore, the task force recommends that this committee continue to convene to further address this issue. " . . . The lack of a stable residence for an HRSO places the community at risk. Homeless sex offenders cannot be effectively tracked and monitored by parole agents and local law enforcement. Communities and victims are unaware of their location and presence, which adds to the uncertainty that offenders are being supervised." Thus, the Governor's Task Force recommended that the issue of housing continue to be studied as it recognized that the lack of a stable residence places the entire community at risk. The need for a definitive study is underscored not only by the Task Force recommendations but by the cited legal authorities which have held, in as many ways as possible, that presumptions are to be based on common experience that, if a fact exists in one case, it exists in most cases. There exist no widely held beliefs or common experiences regarding the risk posed by sex offenders other than those cited above which indicate that sex offenders pose less risk of re-offending than do other persons convicted of crimes. If a logical presumption were to be based upon common experience (and scientific study), that presumption would be the polar opposite of that created by this bill. All of the scientific literature proves that sex offenders pose less risk of recidivism than almost every other ex-felon tracked by the United States DOJ. 6)Affirmative Restraint : In determining that sex offender registration statutes are, in general, constitutional, the United States Supreme Court identified a number of factors to be considered in determining whether the sex offender requirements were punitive in nature, or merely a civil regulatory scheme. [Smith v. Doe, 538 U.S. 84 (2003).] The factors are whether the regulatory scheme: (a) has historically been regarded as punishment; (b) imposes an AB 1170 Page 8 affirmative disability or restraint; (c) promotes the traditional aims of punishment; (d) has a rational connection to a non-punitive purpose; or, (e) is excessive with respect to this purpose. In analyzing Alaska's sex offender registration requirements, the United States Supreme Court found that "our system does not treat dissemination of truthful information in furtherance of a legitimate governmental objective as punishment. In contrast to the colonial shaming punishments, the State does not make the publicity and the resulting stigma an integral part of the objective of the regulatory scheme. . . . The purpose and principle effect of notification are to inform the public for its own safety . . . . " (Id. at page 99.) The Supreme Court noted that the act does not restrain activities sex offenders may pursue but leaves them free to change jobs or residences, stating "the record in this case contains no evidence that the [sex offender registration laws] have led to substantial occupational or housing disadvantages for former sex offenders that would not otherwise have occurred through the use of routine background checks . . . . " (Id. at page 100.) The clear implication from this discussion is that to the extent the sex offender registration and public notification laws impose substantial housing disadvantages on former sex offenders, the effect of such laws might more easily be determined to be punitive rather than regulatory. To the extent use of the Megan's Law database information imposes an affirmative duty or restraint on registrants which is greater than minor or indirect, the effect is more likely to be determined punitive. If the law is determined to be punitive in nature, constitutional validity under the ex post facto provisions is called into question. [Id. at page 99, citing Kennedy v. Mendoza-Martinez, 372 U.S. 144, 168 (1963).] The Smith Court concluded that "whether other constitutional objections can be raised to a mandatory reporting requirement, and how those questions might be resolved, are concerns beyond the scope of this opinion. It suffices to say the registration requirements make a valid regulatory program effective and do not impose punitive restraints in violation of the Ex Post Facto Clause." (Smith, supra, at page 102.) AB 1170 Page 9 Inasmuch as the United States Supreme Court specifically discussed affirmative restraints on housing in its consideration of the constitutionality of the Alaska sex offender notification laws and also left the door open to "whether other constitutional objections can be raised to a mandatory reporting requirement," it appears reasonable that this bill's expression of the right of any person, including rental housing providers, to deny housing, services, benefits or otherwise discriminate against registered sex offenders, would be subject to constitutional challenge. 7)California Registered Sex Offenders : According to a California Coalition on Sexual Offending (CCOSO) report, Using the Internet to Provide Passive Community Notification About Registered Sex Offenders, "Because California has been requiring certain sex offenders to register since the mid 1940's, far longer than any other state, California's cumulative total of registered sex offenders is much larger, both in absolute numbers and proportionately, than the total for any other state." According to the report, approximately one out of every 180 adult males in California could be posted on the Internet as sex offenders. As of May 2003 (citing DOJ statistics), the report states there were 100,501 registered sex offenders in California. Of that number, 1,836 were classified as "high risk" and 82,190 as "serious." It is those two groups who are subject to the current Internet notification system. A third group of registered sex offenders were convicted of crimes not currently subject to public notification. According to CCOSO, of the high risk and serious groups, 55,902 were living in the community, 14,556 had returned to jail or prison, 10,800 had left the state, and 2,768 had been deported. Altogether, 70,458 California residents (almost all of them adult males) are subject to notification under the present system. According to the CCOSO report, approximately one of every 123 adult males in California is a registered sex offender, although some of these have left the state or failed to re-register as required. The CCOSO report notes that in addition to the registered sex offenders, there is a potentially large number of additional individuals who are also impacted by Internet notification and related actions, including parents, children, siblings, other AB 1170 Page 10 relatives, employers, landlords, associates, etc. By permitting the denial of housing to registered sex offenders, this bill affects a much larger group of innocent persons, such as their spouses, domestic partners, and minor children. By evicting a registered sex offender from his rental housing, the apartment owner effectively may be causing an entire family to become homeless. According to the CCOSO report, "Widespread notification is making it increasingly difficult for registrants to find housing. This tends to drive them into poorer neighborhoods, where more dysfunctional families tend to live. Children from these families are more easily victimized than children in more affluent, better organized neighborhoods. The Third National Incidence Study of Child Abuse and Neglect showed that children living below the poverty line are 18 times as likely to be sexually abused as children living at or above the median income. [National Incidence Study on Child Abuse and Neglect (1996), Department of Health and Human Services, Administration for Children and Families, National Center on Child Abuse and Neglect. ] 8)Legislative Counsel Opinion on Megan's Law and Rental Property Discrimination : According to Legislative Counsel Opinion No. 0501030, "An owner of residential property is prohibited from using information obtained through the [Megan's Law Web site] as the basis for refusing to rent to a registered sex offender, unless it is to protect a person at risk." The Legislative Counsel opinion further states that "the 'at-risk' argument becomes more difficult for a property owner to make if the offender's crimes were perpetrated against children and the property in question houses only adult tenants. If there are no persons arguably 'at-risk' of harm by the sex offender on the property, the property owner would be unable to use the information obtained from the Web site for any 'purpose relating to . . . housing or accommodations' and could not refuse to rent to the offender applicant. "Offenders identified on the Web site may have committed offenses ranging from the violent rape of an adult to a misdemeanor annoying a child, may have one offense or multiple offenses, and may have been recently convicted or convicted decades ago. Determining whether there are persons on the property 'at risk' of victimization by the offender will AB 1170 Page 11 depend upon the offender's previous victim or victims, the type of offense he or she has committed, and the nature of the tenants in the building where the offender is seeking to reside." The Legislative Counsel Opinion also discussed the eviction of tenants due to discovery of the tenant's sex offender registrant status through the Internet Web site. The opinion states "in our opinion, use of the information to evict a sex offender would be subject to the same 'at-risk' standard as used in determining whether or not to rent to a sex offender in the first place. Based upon the offender's crime, previous victim or victims, and the nature of the tenants presumably at risk, the property owner must be able to make a reasonable claim that he or she evicted the tenant to protect someone who would be placed at risk by the sex offender's continued presence in the dwelling." The Legislative Counsel Opinion also discussed whether an apartment owner or landlord may inform other tenants that a tenant is a sex offender. Again, the opinion cites the necessity of making at "at-risk" determination, stating "any use of the information including giving information to other tenants is prohibited unless it is to protect a person at risk. Disclosure for the sake of disclosure, or mere gossip, would clearly be prohibited. As discussed [above], the determination of who is 'at risk' depends on the facts of the case and the same standard would be used in the property owner's argument that tenants have been notified of a sex offender's status to protect the tenants from harm because they are 'at risk' due to the presence of the sex offender. "Penal Code Section 290.46 imposes various penalties for misuse of the information obtained through the Web site. Use of the information [for purposes relating to housing] could expose a property owner to liability for actual damages, up to three times the amount of actual damages, attorney fees, exemplary damages, or a civil penalty of up to $25,000. [Penal Code Section 290.46(j)(4)(A.)] "In summary, it is our opinion that if an owner of residential property discovers through the Web site that a tenant is a registered sex offender, the property owner may not, on the basis of that information, evict the tenant or disclose the information to other tenants, unless it is to protect persons AB 1170 Page 12 at risk." 9)Information Not Obtained from the Megan's Law Web Site : The Legislative Counsel opinion concluded that if information that the applicant or tenant is a registered sex offender is not derived from the Megan's Law Web site, an owner of residential property is not otherwise restricted from refusing to rent to the person for that reason. However, the opinion points out that "courts have historically held that the Unruh Civil Rights Act (Civil Code Sections 51 and 52) prohibits discrimination based on classifications that are not enumerated in the statute, such as unconventional dress, families with children, homosexuality, and minors. [Hessians Motorcycle Club v. Flanagans (2001) 86 Cal. App. 4th 833, 836.] Subsequent opinions by courts of appeal have elaborated and a three-step inquiry has developed for use when considering whether a 'new' classification should be eligible for protection under the Unruh Act. The three-part test includes analysis of: (a) the statute's language, (b) the legitimate business interests of the defendant, and (c) the consequences of allowing the new discrimination claim." In applying this three-step analysis in the Hessians Motorcycle Club case, supra, the court held that a business could have a policy of excluding from its establishment bike riders who wear gang insignia or colors. Although the Legislative Counsel opinion did not raise the issue of the significant distinction between bike riders and elderly or disabled sex offender registrants needing skilled nursing care, it is likely that an appellate court, in considering the issue of the elderly or disabled sex offender registrants as a protected class, might reach an entirely different conclusion. Certainly the legitimate business interests of the apartment owners in protecting their residents would merit a different analysis of the issue of admission to the facility of a sex offender whose offense was against a related child (intra-familial) than the analysis of an offender who targeted strangers. Similarly, the owner of a housing complex for the elderly would be required to conduct a different risk analysis as to a sex offender registrant who committed one offense, in an intra-familial setting, against a child. Moreover, the consequences of allowing the new discrimination AB 1170 Page 13 claim would be far different when considering bike riders wearing gang colors than the consideration of thousands of sex offenders and their families being forced to become homeless and deprived of one of life's basic needs, the need for shelter. In the case involving the bikers and their gang colors, the court found that allowing a discrimination claim of this type would lead to frivolous lawsuits challenging other neutral business policies. It would be harder to make a persuasive argument that a lawsuit by a sex offender that the sex offender and his or her spouse and minor children were made homeless by the provisions of this bill is frivolous. This is particularly true if their homelessness was caused by an eviction unaccompanied by an honest assessment of the risk posed by the sex offender in question. 10)Argument in Support : According to the Apartment Association of Greater Los Angeles and the Santa Barbara Rental Property Association , "[o]n behalf of the above mentioned clients and other apartment owner organizations in the past, I have been deeply involved with attempts over the years to make some sense out of the duties and obligations of owners of rental property to their residents on issues relation to Megan's Law. To say the experience has been frustrating is an understatement. My clients were the sponsors of AB 2712(Leno) in 2006 that would have provided a limited relief from liability if all an owner did was to rent to someone on the database, that measure was vetoed by the Governor. "Owners often find themselves in a quandary in dealing with these matters. Other tenants might discover a fellow tenant is on the Megan's Law database and approach property managers to request or demand some action. Also, a property manager might also discover in some way that a tenant or prospective tenant is on the data base. Unfortunately the state of the law puts the owner in a no win situation in either case. If the owner attempts to evict or to not rent to the person on the database he or she faces the possibility of a large financial penalty under existing law. On the other hand there is a common law duty for an owner of rental property to take reasonable steps to protect the safety and quiet enjoyment of residents. It has been extremely difficult to try and provide appropriate advice to owner when these issues arise. AB 1170 Page 14 "More information about the state of the law, and other issues related to this area can do nothing but help both owners and tenants to navigate this confusing and emotional subject. It is voluntary, will not have any cost to the state and will provide much needed clarity in a decidedly unclear area. Please vote AYE." 11)Argument in Opposition : According to the California Apartment Association , "It is the Association's position that creation and distribution of such a booklet is an inefficient use of tax payer dollars as well as government and private organizations' time. "The bill requires the Department of Justice to create a booklet to educate consumers about federal and state sex offender laws as they relate to the lease or rental of real property. There are no federal sex offender laws, however, that specifically relate to the lease or rental of real property. In California, there are two provisions that relate to Megan's Law and rental housing - a disclosure provision at Civil Code Section 2079.10a and a prohibition on certain uses of the sex offender database Penal Code Section 290.4(d). "With respect to the first provision, California law is very clear that rental property owners must provide specific language in their leases pertaining to the availability of the Megan's Law data base. This language has been in effect for 9 years, and is already included in the leases available through the California Association of Realtors. The law states that no other disclosure is required. We don't believe the DOJ booklet is necessary to explain this. "The second provision, Penal Code Section 290.4(d) provides that information from the Megan's Law Web side may not be used for purposes related to housing except 'to protect a person at risk.' 'Person at risk' is not defined, although the Attorney General's Web site suggests that any person may be at risk, because sex offenders' future victims may be of a different type or category than their past victims." 12)Prior Legislation : a) AB 438 (Parra), 2005-06 Legislative Session, would have allowed a lessor of residential real property to refuse to provide housing to, or to evict, registered sex offenders AB 1170 Page 15 whose address must be made public pursuant to the Megan's Law Internet Web site. AB 438 failed passage in this Committee. b) AB 2712 (Leno), 2005-06 Legislative Session, would have clarified existing law regarding the duty of a residential landlord regarding the tenancy of individuals who are required to register as sex offenders. AB 2712 was vetoed. c) AB 1197 (Aghazarian), 2007-08 Legislative Session, would have stated that denial or termination of tenancy in rental housing of a person who has been conviction of the commission or attempted commission of specified offenses listed in Penal Code Section 290.46(b)(2) is presumed to protect a person at risk. AB 1197 failed passage in this Committee. REGISTERED SUPPORT / OPPOSITION : Support Apartment Association of Orange County Apartment Association of California Southern Cities Apartment Association of Greater Los Angeles California Coalition Against Sexual Assault Santa Barbara Rental Property Association Opposition California Apartment Association Analysis Prepared by : Gabriel Caswell / PUB. S. / (916) 319-3744