BILL ANALYSIS Ó
AB 396
Page 1
Date of Hearing: April 29, 2015
ASSEMBLY COMMITTEE ON HOUSING AND COMMUNITY DEVELOPMENT
Ed Chau, Chair
AB 396
Jones-Sawyer - As Amended April 21, 2015
SUBJECT: Housing discrimination: criminal record
SUMMARY: Makes specified changes to when a landlord may inquire
about a prospective tenant's criminal record. Specifically,
this bill:
1)Provides that it is an unlawful housing practice under the
Fair Employment and Housing Act (FEHA) 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)Provides that, 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.
3)Provides that, 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
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the applicant with a written statement listing the reasons for
the possible denial before making a final decision.
4)Provides that if, within 14 days of receipt of the written
statement listing the reasons for the possible denial 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 must delay the denial for a reasonable period
after receipt of the information and reconsider his or her
decision in light of the information.
5)Provides that 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 must notify the applicant of his or her final
decision to deny the application in writing.
6)Defines "criminal record" as 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.
7)Defines "evidence of rehabilitation or other mitigating
factors" as including, but 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;
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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;
and
h) Explanation of precedent coercive conditions,
including physical, emotional, or sexual abuse, untreated
substance abuse, or mental illness that contributed to
the conviction.
8)Defines "initial application assessment phase" as the period
before a decision is made to rent or lease, which shall
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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 of an applicant interview routinely.
9)Provides that, 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:
a) A previous arrest that did not result in a
conviction.
b) Participation in, or completion of, a diversion or a
deferral of judgment program.
c) 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.
d) A determination or adjudication in the juvenile
justice system or information regarding a matter
considered in or processed through the juvenile justice
system.
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e) Information pertaining to an offense other than a
felony or misdemeanor.
EXISTING LAW:
1)Declares it to be against public policy the practice of
discrimination because 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; and that
every person has a civil right to be given the opportunity to
seek, obtain, or hold employment and housing without facing
discrimination based on these protected classes (Government
Code Sections 12920-12921).
2)Declares it unlawful, pursuant to FEHA, for any housing
accommodation owner to inquire about; make known any
preference or limitation as to; discriminate; or harass a
person based on the person's 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 (Government Code Section 12955).
3)Provides that "discrimination" does not include either of the
following:
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a) Refusal to rent or lease a portion of an
owner-occupied single-family house to a person as a
roomer or boarder living within the household, provided
that no more than one roomer or boarder is to live within
the household, and the owner complies with existing
prohibitions relating to discriminatory notices,
statements, and advertisements.
b) Where the sharing of living areas in a single
dwelling unit is involved, the use of words stating or
tending to imply that the housing being advertised is
available only to persons of one sex.
(Government Code Section 12927)
4)Defines "housing accommodation" as any building, structure, or
portion thereof that is occupied as, or intended for occupancy
as, a residence by one or more families and any vacant land
that is offered for sale or lease for the construction thereon
of any building, structure, or portion thereof intended to be
so occupied (Government Code Section 12927).
5)Defines "owner" as including the lessee, sublessee, assignee,
managing agent, real estate broker or salesperson, or any
person having any legal or equitable right of ownership or
possession or the right to rent or lease housing
accommodations, and includes the state and any of its
political subdivisions and any agency thereof (Government Code
Section 12927).
6)Prohibits, under the Unruh Civil Rights Act, business
establishments from discriminating on the basis of sex
(including gender), race, color, religion, ancestry, national
origin, disability, medical condition, genetic information,
marital status, or sexual orientation, and provides civil
remedies for violations of its provisions (Civil Code Section
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51 et seq.).
7)Provides that, when a landlord or his or her agent receives a
request to rent a residential property from an applicant, the
landlord or his or her agent may charge that applicant an
application screening fee to cover the costs of obtaining
information about the applicant. The information requested and
obtained by the landlord or his or her agent may include, but
is not limited to, personal reference checks and consumer
credit reports produced by consumer credit reporting agencies
(Civil Code Section 1950.6).
8)Provides that a landlord or his or her agent may, but is not
required to, accept and rely upon a consumer credit report
presented by an applicant (Civil Code Section 1950.6).
9)Defines "criminal offender information" as records and data
compiled by criminal justice agencies for purposes of
identifying criminal offenders and of maintaining as to each
such offender a summary of arrests, pretrial proceedings, the
nature and disposition of criminal charges, sentencing,
incarceration, rehabilitation, and release. This information
must be restricted to that which is recorded as the result of
an arrest, detention, or other initiation of criminal
proceedings or of any consequent proceedings related thereto
(Penal Code Section 13102).
10)Defines " state summary criminal history information" as the
master record of information compiled by the Attorney General
(AG) pertaining to the identification and criminal history of
any person, such as name, date of birth, physical description,
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fingerprints, photographs, dates of arrests, arresting
agencies and booking numbers, charges, dispositions, and
similar data about the person. It does not include records
and data compiled by criminal justice agencies other than the
AG, nor does it refer to records of complaints to or
investigations conducted by, or records of intelligence
information or security procedures of, the office of the AG
and the Department of Justice (Penal Code Section 11105).
11)Provides the conditions and procedures for when a conviction
may be judicially dismissed, expunged, voided, or invalidated
(Penal Code Sections 1203.4, 1203.4a, 1203.41).
FISCAL EFFECT: Unknown.
COMMENTS:
FEHA: FEHA prohibits employment and housing discrimination
based on the protected classes 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. FEHA
further provides that it is a civil right to be able to pursue
and maintain housing or employment without facing
discrimination. The Department of Fair Employment and Housing
(DFEH) is the state agency responsible for enforcing FEHA and
other civil rights laws.
AB 396 would not create a separate protected class under FEHA,
nor would it prohibit a rental housing provider from considering
or inquiring about an applicant's criminal record. Rather, it
would limit when and how a landlord may consider a prospective
tenant's criminal record when determining whether to rent to the
applicant.
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The use of criminal records when making hiring decisions: In
the employment context, there are numerous provisions relating
to when an employer may consider an applicant's criminal record.
Employers are generally prohibited from asking applicants for
employment to disclose information concerning an arrest that did
not result in conviction, and convictions that have been sealed,
expunged, statutorily eradicated, or dismissed. Additionally,
there has been recent "ban the box" state legislation relating
to when an employer may consider an applicant's criminal record.
AB 1650 (Jones-Sawyer), Chapter 880, Statutes of 2014, provides
that state contractors must determine an on-site,
construction-related job applicant's minimum qualifications
before obtaining and considering information regarding the
applicant's criminal conviction history. AB 218 (Dickinson),
Chapter 699, Statutes of 2013, requires that state and local
agencies determine a job applicant's minimum qualifications
before obtaining and considering information regarding the
applicant's conviction history on an employment application.
The U.S. Equal Employment Opportunity Commission (EEOC) has
recognized in policy guidance issued in April 2012 that there
are observable racial disparities in the criminal justice
system. Because criminal background checks may have a disparate
impact on people of color, federal employment discrimination law
prohibits no-hire policies against people with criminal records.
An employer's consideration of a conviction history may pass
muster if an individualized assessment is made, taking into
account whether the conviction is job-related and the time
passed since the conviction. An employer therefore risks
violating federal civil rights laws when it cannot articulate an
objective and well-supported reason why the use of a criminal
record to disqualify an applicant is related to the functions of
the job. The EEOC's guidance also makes a clear distinction
between arrest and conviction records, and points out that "the
fact of an arrest does not establish that criminal conduct has
occurred."
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The use of criminal records when considering an applicant's
suitability as a tenant: Housing providers generally may
inquire about and consider a wide array of information
pertaining to an applicant's criminal record, subject to fair
housing laws. There are no statewide "ban the box" laws in
relation to when a housing provider may consider a potential
tenant's criminal record. In the tenant screening process,
landlords may use a variety of methods to inquire about an
applicant's criminal record. For example, landlords may choose
to provide rental applications that include an inquiry about an
applicant's criminal record, obtain tenant screening reports, or
verbally inquire about an applicant's criminal record. AB 396
would prohibit an upfront inquiry into an applicant's criminal
record, and altogether prohibit inquiries into specified types
of criminal records, including arrests that did not result in a
conviction, juvenile records, and convictions that were
dismissed. It would also provide applicants with a chance, if a
landlord is considering denying tenancy based on the applicant's
criminal record, to present evidence that the entries on their
record are inaccurate, and evidence of rehabilitation or other
mitigating factors.
Federally subsidized housing providers are only required to
consider an applicant's criminal history in narrow
circumstances, such as when the applicant is a sex-offender with
a lifetime registration requirement. HUD has provided informal
guidance encouraging HUD-assisted owners to develop policies to
allow formerly incarcerated individuals to rejoin their
families. In 2011 and 2012, former HUD Secretary Shaun Donovan
sent two letters to HUD-assisted housing providers recognizing
the pressing housing needs of individuals who have been
incarcerated and urging the adoption of flexible admissions
policies that enable these individuals to secure housing and
rejoin their families.
Other state and local legislation: The author points to other
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state and local legislation that has attempted to balance the
concerns of rental property owners and prospective tenants. In
Oregon, it is illegal to refuse to rent to a tenant because of a
previous arrest or certain kinds of criminal convictions. The
legislation, passed in the 2013 session and effective Jan. 1,
2014, is based on the work of the General Residential Landlord
and Tenant Coalition, comprised of landlord and tenant
advocates. There are also numerous local ordinances nationwide
limiting the use of criminal records in determining an
applicant's eligibility as a tenant. Local governments that
have enacted these ordinances include San Francisco, Dane
County, WI, Madison County, WI, and Champaign, IL.
Proposition 47: Proposition 47: The Safe Neighborhood and
Schools Act is a referendum passed by voters at the November 4,
2014 election. It reduces penalties for certain offenders
convicted of nonserious and nonviolent property and drug crimes.
The measure also allows certain offenders who have been
previously convicted of such crimes to apply for reduced
sentences, and requires any state savings that result from the
measure be spent to support truancy (unexcused absences)
prevention, mental health and substance abuse treatment, and
victim services. AB 1056 (Atkins), which is also being heard in
this Committee, would, among other things, direct a portion of
these savings to providing post-incarceration housing
opportunities such as rental assistance and housing navigation
and placement. Rental property owners will be an important
component of the implementation of AB 1056, should it become
law.
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Need for the bill: In response to prison overcrowding
directives as well as recent public safety reforms such as AB
109 (Budget Committee), Chapter 15, Statutes of 2011 and
Proposition 47, unprecedented numbers of formerly incarcerated
individuals are returning to our communities. The author points
out that, in light of realignment, redemptive policies should be
implemented to ensure people with criminal records are not
blocked from being productive citizens.
The author points to AB 396's four goals:
"Safer communities: AB 396's primary goal is to reduce
recidivism. When people have stable housing, the chance of
them re-offending significantly decreases. In fact, finding
housing within the first month after release is critical to
people leaving incarceration. People released without stable
housing often end up in homeless shelters, where the
likelihood of them absconding within the first month is seven
times greater than a person with some form of housing.
"Keeping families together: By prohibiting people with arrest
or criminal records from housing, families are often left with
two choices: (1) they struggle to look for adequate housing
that will accept all members of their family, or (2) they are
ripped apart. Like all of us, people with criminal records
have mothers, fathers, daughters and sons. As the HUD
recognized in a letter to encourage HUD-assisted owners to
develop policies to allow formerly incarcerated individuals to
join their families, "people who have paid their debt to
society deserve the opportunity to become caring parents,
supportive parents, and caregivers to their elderly parents."
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"Homelessness is costly for all: People with criminal records
need access to one of the most fundamental building blocks of
a stable life-a place to live. Yet, over 80% of housing
providers conduct criminal background checks, barring people
from adequate housing based on their criminal history. People
with criminal histories, with families who could otherwise
receive them, are left homeless upon release. According to the
National Housing Law Project, at least 10% of parolees are
homeless nationwide. In cities such as Los Angeles and San
Francisco, 30% to 50% of people on parole are homeless. In
other words, discriminatory housing policies result in our
community's homeless shelters and foster care systems being
unfairly burdened.
"Unfair discrimination which harms families based upon reasons
that have no bearing on the success of a tenancy: Recent
studies have examined the concept of foreseeability as it
pertains to potential landlord liability for renting to an
applicant with a criminal record whose actions harm another
tenant, and the relationship between a criminal record and the
ability to meet the obligations of tenancy. The findings
indicate there is no empirical evidence establishing a
relationship between a criminal record and an unsuccessful
tenancy."
Arguments in support: Supporters point out that a safe, stable
place to live is crucial to individuals transitioning back into
the community post-incarceration. Housing discrimination poses
an enormous barrier for these individuals. One of the bill's
co-sponsors, RYSE Youth Center, states that "California has one
of the highest rates of recidivism (61%) and ranks third
nationwide in having the largest population of homeless.
Furthermore, recent studies demonstrate an increasing
relationship between incarceration and homelessness." They also
point out that due to the historical and current
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disproportionate incarceration rate of people of color, this
group is adversely affected by housing discrimination.
Another supporter, the California Partnership, states "AB 396
addresses a critical need to ensure formerly incarcerated
individuals are able to find stable housing, reunify with their
families, and be set up for success upon reentry into their
communities. A stable place to live is fundamental to becoming
and remaining a productive citizen. Therefore, automatic housing
exclusions create an enormous barrier for those trying to
reintegrate into society. Although California and other states
nationwide have begun to pass "ban the box" laws as an attempt
to address widespread employment exclusions based on a criminal
record, similar action is needed to address housing exclusions."
The American Friends Service Committee specifies that "one in
four adults in California has an arrest or conviction history
that could show up on background checks for housing", and in Los
Angeles and San Francisco, it is estimated that 30-50% of the
homeless population is on parole "primarily due to the barriers
confronted by formerly incarcerated people when they try to find
housing." Without safeguards in the private rental market,
"there is little alternative than to have the state provide
housing to formerly incarcerated people, to enable them to get
back on their feet. While this would undoubtedly enhance public
safety, it may not be feasible within the budget constraints."
Arguments in opposition: Opponents of the bill, including the
California Apartment Association, the California Association of
Realtors, the California Chamber of Commerce, and the Civil
Justice Association of California, contend that criminal
background checks are an important tool to assist rental
property owners in determining whether applicants pose a risk to
tenants and to the property based on relevant prior conduct. In
their view, AB 396 will impose "significant costs on rental
property owners, will put existing tenants at risk, and will be
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unfair financially and otherwise to individuals with a criminal
history."
Opponents point out that rental property owners are authorized
to assess a screening fee, and that applicants are typically
notified of screening criteria upfront, so they may disqualify
themselves and avoid paying a screening fee if, for instance,
their income or credit rating does not meet the qualifications.
In opponents' view, the bill would prohibit an owner from
disclosing up front that they will later inquire about certain
criminal convictions, and will take away certain applicants'
ability to self-disqualify prior to paying a screening fee at
the time of application.
Additionally, opponents take issue with the process provided for
in AB 396. The Apartment Association of Greater Los Angeles and
the Santa Barbara Rental Property Association state that the
bill "requires owners to adopt a cumbersome, time-consuming,
multiple-step process of evaluating prospective renters and
which prevents them from completing their necessary pre-rental
due diligence." Opponents contend that it will be financially
burdensome on property owners to wait 14 days after giving an
applicant a tentative denial, as well as unfair to other
applicants who are waiting for decisions on their applications.
Opponents also contend that owners and managers are not
qualified to determine whether an applicant has an unacceptable
criminal record, could face significant liability if they make
the wrong decision, and would likely be forced to consult with
their attorneys every time an applicant with a criminal record
applies for housing.
Related legislation:
AB 1056 (Atkins): Would direct the Board of State and Community
Corrections to develop a Second Chance Program to provide mental
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health services and housing to formerly incarcerated
individuals. This bill is pending hearing in the Assembly
Committee on Housing and Community Development.
AB 1650 (Jones-Sawyer), Chapter 880, Statutes of 2014: With
certain exceptions, provides that state contractors must
determine an on-site construction-related job applicant's
minimum qualifications before obtaining and considering
information regarding the applicant's criminal conviction
history.
AB 218 (Dickinson), Chapter 699, Statutes of 2013: With certain
exceptions, provides that a state or local agency shall not ask
an applicant for employment to disclose, orally or in writing,
information concerning the conviction history of the applicant,
including any inquiry about conviction history on any employment
application, until the agency has determined the applicant meets
the minimum employment qualifications, as stated in any notice
issued for the position.
Committee Amendments: The Committee may wish to accept the
amendment below, which clarifies that the owner of rental
housing, once he or she has reviewed the applicant's criminal
record, is only required to provide a written list of reasons
for the possible denial if it is based on the applicant's
criminal record.
On page 7, line 3, insert the following language:
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and the possible denial is based on the applicant's criminal
record,
REGISTERED SUPPORT / OPPOSITION:
Support
Ella Baker Center for Human Rights (sponsor)
Healthy Communities, Inc. (sponsor)
Legal Aid Society - Employment Law Center (sponsor)
RYSE Youth Center (sponsor)
Women's Policy Institute of the Women's Foundation of California
(sponsor)
Alameda County Faith Initiative Office Faith Advisory Council
American Friends Service Committee
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Bayview/Hunters Point Community Legal
Building Opportunities for Self-Sufficiency (BOSS)
California Catholic Conference of Bishops
California Council of Community Mental Health Agencies
California Immigrant Policy Center
California Partnership
Californians United for a Responsible Budget (CURB)
Community Legal Services in East Palo Alto
Corporation for Supportive Housing (CSH)
Daughters of Destiny Youth Mentoring
Drug Policy Alliance
Fair Chance Project
Grandma's House of Hope
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Justice Now
Lawyers' Committee for Civil Rights of the San Francisco Bay
Area
Legal Services for Prisoners with Children (LSPC)
Los Angeles Community Action Network (LA CAN)
Los Angeles Regional Reentry Partnership (LARRP)
Mental Health America
Mothers United Against Gang Violence
National Association of Social Workers- California Chapter
(NASW-CA)
National Housing Law Project (NHLP)
Oakland Unite
Princess Transitional Living for Women
Project AVARY
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Root & Rebound
St. Anthony Foundation
The Black Caucus of the California Community Colleges
Urie Properties Incorporated
Volunteers of America - Project Choice
Women's Economic Agenda Project
Western Regional Advocacy Program (WRAP)
Youth ALIVE
Opposition
Apartment Association of California Southern Cities
Apartment Association of Greater Los Angeles
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Apartment Association of Orange County
California Apartment Association
California Association of Realtors
California Chamber of Commerce
Civil Justice Association of California
East Bay Rental Housing Association
Nor Cal Rental Property Association
North Valley Property Owners Association
San Diego County Apartment Association (SDCAA)
Santa Barbara Rental Property Association
Western Manufactured Housing Communities (WMA)
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Analysis Prepared by:Rebecca Rabovsky / H. & C.D. / (916)
319-2085