BILL ANALYSIS Ó SENATE JUDICIARY COMMITTEE Senator Hannah-Beth Jackson, Chair 2015-2016 Regular Session SB 1106 (Leyva) Version: February 17, 2016 Hearing Date: April 19, 2016 Fiscal: Yes Urgency: No TH SUBJECT Mobilehome Parks DESCRIPTION Existing law, the Mobilehome Parks Act, provides that any person who willfully violates the act, related building standards, or other related rules and regulations adopted by the Department of Housing and Community Development, is guilty of a misdemeanor, subject to suspension or revocation of permits issued under the act, and liable for a civil penalty for each violation or for each day of a continuing violation. This bill authorizes the Director of Housing and Community Development, or a local enforcement agency that has assumed jurisdiction, to issue citations that assess civil penalties to any owner or operator of a mobilehome park, or a registered owner of a manufactured home, mobilehome, or recreational vehicle, or other responsible party, when he or she has permitted the continuation of a violation for at least 30 days after the expiration of a notice to correct the violation or violations from the enforcement agency. BACKGROUND The Mobilehome Parks Act, Health and Safety Code Section 18200 et seq., authorizes the Department of Housing and Community Development (HCD) to regulate mobilehome parks to assure the protection of the health, safety, and general welfare of all mobilehome park residents. The act "clearly expresses that it is California state policy to ensure that mobilehome parks are SB 1106 (Leyva) Page 2 of ? operated to assure the health, safety, general welfare, and decent living environment of the residents, as well as protect the investment value of mobilehomes." (County of Santa Cruz v. Waterhouse (2005) 127 Cal.App.4th 1483, 1489 [citations and internal quotation marks omitted].) The act's goal of "promoting the health and safety of mobilehome residents [is] implemented through the HCD's establishment of standards for [the] construction, maintenance, occupancy, use, and design of [mobilehome] parks," (Id.) and these standards are codified in Title 25 of the California Code of Regulations. The Mobilehome Parks Act gives local jurisdictions the option to assume enforcement authority within their jurisdiction by executing an agreement with HCD. Currently, HCD exercises enforcement authority over approximately 4,200 mobilehome parks, and local agencies - about 70 in total - enforce the act and its regulations in just over 1,000 parks. HCD reports that during compliance investigations carried out in 2015, the "accumulation of rubbish or combustible material" was the most frequent violation noted for park residents, and "exposed live electrical parts" was among the top three violations noted for park owners or operators. In total, 15,900 violations were found during inspections undertaken in 2015, and as of January of this year, approximately 8,040 violations remained uncorrected. The act provides that willful violations of its provisions constitute a misdemeanor, punishable by either or both a fine of $400 or 30 days imprisonment. The act also provides that enforcement agencies may collect a civil penalty of $500 for willful violations through a proceeding in civil court. (See Health & Saf. Code Sec. 18700.) This bill would additionally authorize an enforcement agency to assess a civil penalty, payable to the enforcement agency, of up to $500 for continuing violations of the act or its implementing regulations, provided they remain uncorrected for a minimum of 30 days. This bill provides that any person assessed a civil penalty may petition the enforcement agency to dismiss or modify the citation giving rise to the penalty, and participate in an informal hearing on the merits of the petition within 30 days of filing. This bill was approved by the Senate Committee on Transportation and Housing on April 12, 2016, by a vote of 11-0. SB 1106 (Leyva) Page 3 of ? CHANGES TO EXISTING LAW Existing law , the Mobilehome Parks Act (MPA), authorizes the Department of Housing and Community Development (HCD) to develop specific requirements relating to the construction, maintenance, occupancy, use, and design of mobilehome parks. (Health & Saf. Code Sec. 18200 et seq.) Existing law provides that the MPA applies to all parts of the state and supersedes any local ordinance, as specified. (Health & Saf. Code Sec. 18300 (a).) Existing law provides that upon 30 days' written notice from the governing body to HCD, any city, county, or city and county may assume the responsibility for the enforcement of the MPA and its implementing regulations, as specified. (Health & Saf. Code Sec. 18300 (b).) Existing law authorizes officers or agents of the applicable enforcement agency to enter and inspect all parks, wherever situated, and inspect all accommodations, equipment, or paraphernalia used in connection therewith, including the right to examine any registers of occupants maintained therein in order to secure the enforcement of the MPA and the regulations adopted pursuant to the MPA. (Health & Saf. Code Sec. 18400 (b).) Existing law states that if, upon inspection, the applicable enforcement agency determines that a mobilehome park is in violation of any provision of the MPA, or any rule or regulation adopted pursuant thereto, the enforcement agency shall promptly issue a notice to correct the violation to the owner or operator of the mobilehome park and to the responsible person, as specified. The owner or operator of the mobilehome park shall be responsible for the correction of any violations for which a notice of violation has been given. (Health & Saf. Code Sec. 18420 (a).) Existing law states that if, upon inspection, the applicable enforcement agency determines that a manufactured home, mobilehome, an accessory building or structure, or lot is in violation of specified provisions of the MPA, or any rule or regulation adopted pursuant thereto, the enforcement agency shall promptly issue a notice to correct the violation to the registered owner of the manufactured home or mobilehome, with a SB 1106 (Leyva) Page 4 of ? copy to the occupant thereof, if different from the registered owner. The registered owner of the manufactured home or mobilehome shall be responsible for the correction of any violations for which a notice of violation has been given. (Health & Saf. Code Sec. 18420 (b).) Existing law provides that service of the notice of violation shall be effected either personally or by first-class mail. Each notice of violation shall be in writing and shall describe with particularity the nature of the violation in as clear language as the technicality of the violation will allow the average layperson to understand what is being cited, including a reference to the statutory provisions or regulation alleged to have been violated, as well as any penalty provided by law for failure to make timely correction. For violations other than imminent threats to health and safety, as specified, the notice of violation shall allow 60 days from the postmarked date of the notice or date of personal delivery for the elimination of the condition constituting the alleged violation. (Health & Saf. Code Sec. 18420 (c).) Existing law provides that if the owner or operator of the mobilehome park or the registered owner of the manufactured home or mobilehome disputes a determination by the enforcement agency regarding the alleged violation, the alleged failure to correct the violation in the required timeframe, or the reasonableness of the deadline for correction specified by the notice of violation, the owner or operator of the mobilehome park or the registered owner of the manufactured home or mobilehome may request an informal conference with the enforcement agency. The informal conference, and any subsequent hearings or appeals of the decision of the enforcement agency, shall be conducted in accordance with procedures prescribed by HCD. (Health & Saf. Code Sec. 18421.) Existing law provides that any person who willfully violates the MPA or any rules or regulations adopted by HCD pursuant to the MPA is guilty of a misdemeanor, punishable by a fine not exceeding $400 or by imprisonment not exceeding 30 days, or by both such fine and imprisonment. (Health & Saf. Code Sec. 18700.) Existing law provides that any person who willfully violates the MPA or any rules or regulations adopted by HCD pursuant to the MPA shall be liable for a civil penalty of $500 for each SB 1106 (Leyva) Page 5 of ? violation or for each day of a continuing violation. The enforcement agency shall institute or maintain an action in the appropriate court to collect any civil penalty arising under this section. (Health & Saf. Code Sec. 18700.) This bill states that in addition to other remedies, the Director of HCD (Director), or an employee authorized by a local enforcement agency, may issue a citation that assesses a civil penalty to any owner or operator, or both, of a mobilehome park or registered owner of a manufactured home, mobilehome, or recreational vehicle, or other responsible party who violates the MPA or regulations adopted pursuant to the MPA, if the owner or operator, or both, or registered owner of a manufactured home, mobilehome, or recreational vehicle, or other responsible party has permitted the continuation of a violation for at least 30 days after the expiration of a notice to correct the violation or violations from the enforcement agency. This bill specifies that each citation and related civil penalty assessment shall be issued no later than seven months after issuance of the notice to correct that provides the basis of the citation, and that these penalties shall be in addition to other penalties, as specified. This bill specifies that the amount of a civil penalty assessed shall be $100 for each violation that the enforcement agency determines is a hazard constituting an unreasonable risk to life, health, or safety, but shall be increased to $250 for each subsequent violation of the same prohibition for which a citation for the subsequent violation is issued within one year of the citation for the previous violation. This bill specifies that the amount of a civil penalty assessed shall be $200 for each violation that the enforcement agency determines is an imminent hazard representing an immediate risk to life, health, and safety and requiring immediate correction, but shall be increased to $500 for each subsequent violation of the same prohibition for which a citation for the subsequent violation is issued within one year of the citation for the previous violation. This bill specifies that the civil penalties assessed shall be payable to the enforcement agency, notwithstanding any other provision of law, and that payment of the civil penalty shall be remitted to the enforcement agency within 45 days of the SB 1106 (Leyva) Page 6 of ? issuance of the citation. This bill specifies that any person or entity served a citation pursuant to this section may petition the Director or the authorized representative of the local enforcement agency, where applicable, to dismiss or modify the citation. The petition shall be a written request briefly stating the grounds for the request, and must be received by HCD or the local enforcement agency within 30 days of the date of issuance of the citation. Upon receipt of a timely and complying petition, the enforcement agency shall suspend enforcement of the citation and set a time and place for an informal hearing, as specified. This bill specifies that the enforcement agency shall notify the petitioner in writing of its decision and the reasons therefor within 30 days following conclusion of the informal hearing. This bill provides that a mobilehome park owner or operator, or the registered owner of a manufactured home, mobilehome, recreational vehicle, or other responsible party, who both receives a citation with civil penalties issued by an enforcement agency other than HCD, and receives a final, formal order from the enforcement agency following an informal hearing on a submitted petition, shall be entitled to petition HCD to review and investigate, as necessary, the enforcement activities of the local enforcement agency. This bill specifies procedures for petitioners to follow when seeking such review from HCD. This bill states that if HCD finds that the notice of violation, citation, written determination, or final, formal order issued by the local enforcement agency reflects non-enforcement of the law, HCD shall initiate corrective action including, but not be limited to, cancellation of the civil citation. This bill specifies that informal hearings held pursuant to the above provisions shall not be subject to the administrative adjudication provisions of Chapter 4.5 (commencing with Section 11400) of Part 1 of Division 3 of Title 2 of the Government Code. COMMENT 1.Stated need for the bill According to the author: SB 1106 (Leyva) Page 7 of ? The Department of Housing and Community Development (HCD) and certain local governments enforce the state's health and safety requirements of the "Mobilehome Parks Act" (MPA) laws and regulations in the 4,500 mobilehome parks with about 400,000 spaces throughout the state. Enforcement includes issuing both park owners and resident homeowners notices of violation for defects in their parks or homes, respectively. Except for imminent hazards, they generally have 30 days to correct the violations. Most violations by park owners include dangerously deficient electrical, gas and plumbing systems. Violations by park residents are mostly accumulations of combustible materials, and electrical cords in lieu of permanent wiring. The same code violations sometimes linger for years in mobilehome parks because there is no monetary penalty for uncorrected violations. Many park owners and residents do not make the repairs, despite repeated "notices" and follow-up inspections, and HCD's authority to obtain compliance is limited by statute. Under current law, noncompliance with an order to repair a serious health and safety defect can only be enforced by expensive civil or criminal court proceedings by local or state public prosecutors, which makes enforcement of serious violations virtually impossible, given other prosecutorial priorities. The only other options are, for resident violations, to mandate park evictions lawsuits, and, for park violations, to suspend the park's permit to operate and its right to collect rent. Both options have serious consequences without necessarily resulting in repairs. SB 1106 would add to HCD's existing citation authority to allow it, and local governments enforcing the MPA, to issue citations after 30 days have elapsed without repair to an unreasonable or imminent health and safety violation by a park owner or homeowner in a mobilehome park. The initial citations for an "unreasonable" violation, such as a mobilehome park-wide brownout, would be $100, with subsequent violations within one year being $250. Similarly, initial citations for an "imminent" hazard, such as running sewage under a mobilehome or trailer unit, would be $200, with subsequent violations within one year being $500. Additionally, simple administrative appeal rights are SB 1106 (Leyva) Page 8 of ? provided, including allowing HCD to keep the costs to the state and petitioners reasonable by utilizing in-house informal appeals rather than the Office of Administrative Hearings judges. The enforcement agency issuing the citation would retain the penalties, thus self-funding the enforcement process. 2.Incentivizing compliance As noted in the Background, above, HCD reports that several thousand mobilehome park owners and residents are, and remain, out of compliance with the Mobilehome Parks Act (MPA) and its implementing regulations. Many of the regulatory violations identified by HCD present significant risks to park residents and guests, including the presence of exposed live electrical equipment and the accumulation of combustible material near residences. The City of Montclair, writing in support, offers a similar view: The City of Montclair has several mobile home and trailer parks, many of which are in need of significant enforcement of health and safety regulations. However, despite repeated "notices" and follow-up inspections, [HCD's] authority to obtain compliance is limited by statute. Under current law, noncompliance with an order to repair a serious health and safety defect can only be enforced by expensive civil or criminal court proceedings by local or state public prosecutors, which makes enforcement of serious violations virtually impossible, given other prosecutorial priorities and limited court resources. Some of these parks -- developed prior to 1960 -- are in need of serious enforcement that will compel owners and residents to maintain their dwellings, which in turn promote healthier and safer environments in the city. This bill would incentivize compliance with the MPA and its implementing regulations by authorizing HCD and local enforcement jurisdictions to assess civil penalties ranging from $100 to $500 for violations that remain uncorrected more than 30 days after the designated deadline given by an enforcement agency to correct a violation. Importantly, the bill provides certain basic due process rights to parties who receive such assessments. Under existing law, underlying notices of violation must be in writing and describe with particularity the nature of the violation in as clear language as the technicality of the violation will allow the SB 1106 (Leyva) Page 9 of ? average layperson to understand what is being cited, including a reference to the statutory provisions or regulation alleged to have been violated, as well as any penalty provided by law for failure to make timely correction. For violations other than imminent threats to health and safety, a notice of violation must allow 60 days from the postmarked date or date of delivery for the elimination of the condition constituting the alleged violation. Individuals are provided with an opportunity to contest alleged violations following HCD's informal conference procedures, and can also challenge enforcement actions of local jurisdictions through direct petitions to HCD. This bill would offer similar informal conference procedures for individuals to use when contesting civil penalty assessments, and would impose a timeline limiting when such penalties may be assessed to within seven months of the underlying notice of violation. This bill would also provide a 30-day period in which parties may cure alleged violations before a civil assessment could issue, and would require enforcement of the assessment to be suspended while being contested by an alleged violator. Just as with existing law, individuals would be able to challenge assessments levied by local jurisdictions through a direct petition to HCD. 3.Impact to low-income communities Staff notes that while this bill may ultimately help incentivize compliance with the Mobilehome Parks Act (MPA), the civil assessments authorized by the bill would likely be levied against lower income Californians who may not have the financial means to easily absorb them. It is unclear what percentage of health and safety violations identified by HCD during its compliance inspections result from deferred maintenance or repairs not undertaken because of a lack of resources. Should these assessments be levied against mobilehome residents who already lack the resources needed to maintain their properties to the appropriate standard, the additional costs imposed by this bill may actually increase noncompliance by diverting funds away from needed repairs. Given the impact these assessments could have on lower income communities, the Committee may wish to consider how to best ensure that these assessments do not further impoverish financially vulnerable communities. 4.Opposition concerns SB 1106 (Leyva) Page 10 of ? The Western Manufactured Housing Communities Association (WMA), writing in opposition, expresses concern that the management of a mobilehome park may ultimately be held responsible for correcting a resident's health and safety violations, or that it may be held financially responsible for civil penalties accumulated by a resident. WMA also expresses concern over the possibility that penalties may be assessed by an enforcement agency while a park owner or operator's "permit to operate" (PTO) the park is suspended. They write, "[w]hen the PTO is suspended the management cannot collect rent, which is a pretty big hammer for the enforcement agency" and could "place the community in double-jeopardy." Support : City of Montclair; Educational Community for Homeowners Opposition : Western Manufactured Housing Communities Association HISTORY Source : Author Related Pending Legislation : None Known Prior Legislation : SB 244 (Vidak, Ch. 176, Stats. 2015) removed a sunset provision implemented by AB 2272 (Wagner, Ch. 99, Stats. 2012), and thereby indefinitely authorized the management of a mobilehome park to file a petition for an order to enjoin violations of a reasonable rule or regulation of the mobilehome park within the limited jurisdiction of the superior court. AB 2272 (Wagner, Ch. 99, Stats. 2012) authorized, until January 1, 2016, the management of mobilehome parks to file petitions for orders to enjoin violations of reasonable rules or regulations of mobilehome parks within the limited jurisdiction of the superior court. SB 459 (Lockyer, Ch. 270, Stats. 1991) authorized the management of mobilehome parks to obtain injunctions for three years against continuing or recurring violations of the reasonable rules and regulations of the park. This bill entitled the SB 1106 (Leyva) Page 11 of ? management to an injunction upon showing such a violation by clear and convincing evidence, and authorized the court to grant a temporary order restraining the violation for up to 15 days pending a hearing on the injunction. Prior Vote : Senate Transportation and Housing Committee (Ayes 11, Noes 0) **************