Amended in Assembly April 21, 2015

California Legislature—2015–16 Regular Session

Assembly Bill No. 396

Introduced by Assembly Member Jones-Sawyer

February 19, 2015

An act to amend Section 12955 of, and to add Section 12955.05 to, the Government Code, relating to begin delete housing discrimination. end delete begin insert rental housing. end insert

LEGISLATIVE COUNSEL’S DIGEST

AB 396, as amended, Jones-Sawyer. begin delete Housing end delete begin insert Rental housing end insert discrimination: begin insert applications: end insert criminal begin delete record. end delete begin insert records. end insert

Existing law 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. begin delete Existing law includes within this prohibition, in addition to the sale or rental of housing accommodation, related activities such as housing finance and real estate transaction services. end delete

This bill would begin delete include a criminal record as a basis upon which housing discrimination is prohibited. The bill would specify that the prohibition is qualified by a requirement to the contrary in federal law. The bill would provide that criminal record includes a record regarding arrests and detentions that did not result in a conviction, as specified. The bill make technical, correctional changes. end delete begin insert 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 the owner of a rental housing accommodation from inquiring about, or requiring an applicant for 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 initial application assessment phase, to request a criminal background check and consider an applicant’s criminal record in deciding whether to rent or lease. The bill would require the owner of a rental housing accommodation who is considering denying an application to rent or lease after requesting a criminal background check or considering an applicant’s criminal record, to promptly provide the applicant with a written statement listing the reasons for the possible denial before making a final decision. If, within 14 days of receipt of the written statement, 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 defined, the bill would require the owner to delay the denial for a reasonable period after receipt of the information and reconsider his or her decision. The bill would require, in these circumstances, that the owner provide written notification to the applicant of his or her final decision to deny the application. The bill would prohibit, in connection with a rental application, the owner of the rental housing accommodation from requiring disclosure of, or, if such information is received, denying a dwelling based in whole or in part on specified information or occurrence, including arrests that did not result in conviction, convictions that have been voided, and juvenile justice determinations, among others. end insert

Vote: majority. Appropriation: no. Fiscal committee: yes. State-mandated local program: no.

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

begin insert

begin insert SECTION 1. end insert   

end insert

begin insert Section 12955 of the end insert begin insert Government Code end insert begin insert is
amended to read: end insert

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.

begin insert

(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.

end insert begin delete

(p)

end delete

begin insert (q) end insert  (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.

begin insert

begin insert SEC. 2. end insert   

end insert

begin insert Section 12955.05 is added to the end insert begin insert Government Code end insert begin insert ,
to read: end insert

begin insert

begin insert 12955.05. end insert   

(a) For purposes of this section:

(1) “Criminal record” means criminal offender 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”
means, 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 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 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, which shall include the
request for, and the provision of, an application to a person seeking
a rental housing accommodation and including the time during
which the assessment of rental history and credit history, the
checking of sources of income, and the scheduling an applicant
interview routinely.

(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 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 initial application assessment phase, an owner
of a rental housing accommodation may request a criminal
background check 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 or considering
an applicant’s criminal record, he or she shall promptly provide
the applicant with a written statement listing the reasons for the
possible denial before making a final decision.

(3) If, within 14 days of receipt of the written statement
described in paragraph (2), the applicant provides the owner of
the rental housing accommodation notice orally or in writing 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 delay the denial for a reasonable period after receipt of the
information and reconsider his or her decision in light of the
information. If, upon individualized assessment 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 final decision to deny the application in
writing.

(c) With regard to an application for rental housing
accommodations, the owner of the housing accommodation shall
not 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.

end insert

begin delete

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, genetic information, or criminal record of that
person unless otherwise required by federal law.

(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, genetic information, or criminal
record of any person seeking to purchase, rent, or lease any housing
accommodation unless otherwise required by federal law.

(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, genetic
information, or criminal record or an intention to make that
preference, limitation, or discrimination unless otherwise required
by federal law.

(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, criminal record,
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 unless otherwise required by federal law.

(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, genetic
information, or criminal record in the terms, conditions, or
privileges relating to the obtaining or use of that financial assistance
unless otherwise required by federal law.

(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,
national origin, or criminal record unless otherwise required by
federal law.

(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, genetic information, or criminal record unless
otherwise required by federal law.

(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, national origin, or criminal record unless otherwise
required by federal law.

(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, national
origin, or criminal record unless otherwise required by federal law.

(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, ancestry, or criminal record
unless otherwise required by federal law. 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, genetic information, or criminal record,” 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.

It shall not constitute discrimination based on source of income
to make a written or oral inquiry concerning the level or source of
income.

It is not unlawful under this section for an employer to ask an
employee or applicant for housing about an arrest for which the
employee or applicant is out on bail or on his or her own
recognizance pending trial.

SEC. 2.  

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

12955.05.  

For the purposes of Section 12955:

(a) “Criminal record” includes a record regarding a criminal
conviction, an arrest that did not result in a conviction, and a
detention that did not result in conviction, including one regarding
a referral to, and participation in, any pretrial or posttrial diversion
program or regarding a conviction that has been judicially
dismissed or ordered sealed pursuant to law, including, but not
limited to, Section 1203.4, 1203.4a, 1203.45, or 1210.1 of the
Penal Code.

(b) “Source of income” means lawful, verifiable income paid
directly to a tenant or paid to a representative of a tenant. A
landlord is not considered a representative of a tenant.

end delete