BILL ANALYSIS                                                                                                                                                                                                    Ó



                                                                     AB 396


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          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