BILL ANALYSIS
SENATE JUDICIARY COMMITTEE
Senator Joseph L. Dunn, Chair
2005-2006 Regular Session
AB 2712 A
Assembly Member Leno B
As Amended June 19, 2006
Hearing Date: June 27, 2006 2
Civil Code 7
GWW:cjt 1
2
SUBJECT
Landlord and Tenant Law:
-Clarifications of Landlord's Non-liability for Specified
Acts-
DESCRIPTION
This bill would provide that no duty shall arise on the
part of the lessor solely for renting residential real
property to a person who is required to register as a sex
offender in this state or has been convicted as a sex
offender in another jurisdiction.
The bill would also provide that upon notifying tenants of
the existence of the Megan's Law Website which lists the
criminal history and address or community of residence of
sex offenders in California, the lessor of the real
property is not required, and has no duty in law to provide
a lessee or transferee of residential real property, any
additional information regarding proximity of sex offenders
other than that notice. The bill would make related
legislative findings and declarations, and would further
specify that the delivery of the notice to the lessee or
transferee of the real property does not create a special
relationship between the lessor and the lessee or
transferee.
Finally, the bill would also specify that the current
authorization to use the Megan's Law information to warn a
person at risk is discretionary, and does not create a duty
to use the information.
(more)
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BACKGROUND
California law requires individuals to register as sex
offenders upon conviction of certain enumerated crimes.
Convictions that require registration as a sex offender
include rape, sexual battery, transporting a child for lewd
or lascivious acts, sexual assault of a child, incest,
sodomy and indecent exposure.
Since 1996, under the law commonly known as "Megan's Law,"
the identity and residence (by zip code) of registered,
"high-risk" sex offenders are subject to public disclosure
by law enforcement upon telephone request or by viewing of
the publicly available information distributed to, and made
publicly available by, local law enforcement, as specified.
(Penal Code Sections 290.4 and 290.45. All references
hereinafter are to the Penal Code unless otherwise stated.)
In 2004, AB 488 (Parra), Chapter 745, Statutes of 2004,
effective September 24, 2004, requires the Department of
Justice (DOJ) to implement an Internet web site (also known
as the "Megan's Law Website") listing the convicted sex
offenders and, in some cases, their specific home
addresses. (Comment 5 details the information available to
the public on the Megan's Law website, which is separated
into four levels of information disclosure, depending on
the severity of the sex offense.) The Megan's Law website
became available to the public in July, 2005.
The effects of making specific home addresses of sex
offenders available on the Internet are not yet fully
known, although some groups have speculated about potential
economic damages and civil liability of apartment house
owners and nursing homes that rent to or house sex
offenders. In response, AB 2712 (Leno) has been introduced
to clarify the non-liability of a residential property
owner when they rent to a sex offender and when they notify
other tenants of the existence of the Megan's Law website.
A similar measure, AB 2196 (Spitzer) is pending to clarify
the non-liability of child care centers that disclose to
parents of their charges the existence of the Megan's Law
website. (Although AB 2196 is not slated to be heard by
this committee, Mr. Spitzer has committed to making any
changes to his bill to match any changes made to AB 2712.)
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CHANGES TO EXISTING LAW
Existing law requires persons who have been convicted of
specified sex offenses to register as a sex offender with
the Department of Justice and local law enforcement
agencies in which they reside, and requires the department
to make certain information regarding registered sex
offenders available on the Megan's Law Website. Existing
law prohibits the use of information disclosed on the
Internet website for specified discriminatory purposes,
including housing and accommodations (Section 290.46(l)(2),
and provides that information disclosed may only be used to
protect persons at risk. (Section 290.46(l)(1).)
Existing law provides that a lease or rental agreement and
every contract for sale of real property to a registered
sex offender contain a notice regarding the availability of
Megan's Law information from a local law enforcement agency
or on the DOJ Megan's Law website, and generally provides
that upon delivery of this notice to the lessee or
transferee of real property, the lessor, seller, or broker
is not required to provide any additional information other
than that regarding proximity of sex offenders. (Civil Code
Section 2079.10a.)
This bill would instead provide that upon delivery of this
notice, the lessor of the real property is not required,
and has no duty in law to provide a lessee or transferee of
residential real property, any additional information
regarding proximity of sex offenders other than that
notice. The bill would also specify that the delivery of
the notice to the lessee or transferee of the real property
does not create a special relationship between the lessor
and the lessee or transferee.
This bill would further provide that no duty shall arise
for a lessor solely for renting residential real property
to a person who is required to register as a sex offender
in this state or has been convicted as a sex offender in
another jurisdiction. It would declare the Legislature's
intent with respect to the lessor's rights and obligations
when property is rented or leased to registered sex
offenders.
This bill would also specify that the authorization to use
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Page 4
the Megan's Law information is discretionary, and does not
create a duty to use the information.
COMMENT
1. Stated need for bill
This bill is co-sponsored by the California Housing
Council (CHC) to clarify the landlord's duties and
obligations under Megan's Law. Specifically, AB 2712
would provide that: 1) current law does not impose a duty
on landlords to use information available on the Megan's
Laws website to make decisions about housing
accommodations; 2) delivery to the tenants of notice of
the Megan's Law website is the only information the
landlord is required to provide regarding the proximity
of a registered sex offender; and 3) no duty is created
solely because the lessor rents or continues to rent to a
person convicted of a sex offense.
CHC points out that AB 2712 would not absolve landlords
of obligations that may exist under other laws or to
maintain their premises.
The Consumer Attorneys of California have no position on
the bill.
2. Measure reflects current rule of non-liability of
landlord for the crime of another in the absence of
foreseeability and a duty
Case law well establishes that landowners must maintain
land in their possession and control in a reasonably safe
condition. (Civ. Code, 1714; Rowland v. Christian
(1968) 69 Cal.2d 108.) In the case of a landlord, this
general duty of maintenance, which is owed to tenants and
patrons, has been held to include the duty to take
reasonable steps to secure common areas against
foreseeable criminal acts of third parties that are
likely to occur in the absence of such precautionary
measures. (Frances T. v. Village Green Owners Assn.
(1986) 42 Cal.3d 490, 499-501.) Otherwise, there is no
tortuous liability for the criminal acts of an
independent third party.
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Case law also holds that a person has "no duty to act to
protect others from the conduct of third parties."
(Delgado v. Trax Bar & Grill (2005) 36 Cal.4th 224, 235
(Delgado).) That reflects the law's reluctance to impose
liability for nonfeasance. (Id. at p. 235, fn. 12.) "A
person who has not created a peril is ordinarily not
liable in tort merely for failure to take affirmative
action to assist or protect another, no matter how great
the danger in which the other is placed, or how easily he
or she could be rescued, unless there is some
relationship between them that gives rise to a duty to
act." [6 Witkin, Summary of Cal. Law, Torts, 1038 at
pp. 332-333 (10th ed. 2005).]
Thus, if there is no duty, there can be no liability. And
there is no duty if there is no foreseeability. (The
existence and scope of any duty, in turn, depends on the
foreseeability of the harm, which, in that context, is
also a legal issue for the court. [Delgado, 36 Cal.4th
at. 239.]
AB 2712 would provide that "no duty shall arise for a
lessor solely for renting residential real property" to a
person who is required to register as a sex offender in
California or who was convicted as a sex offender in
another jurisdiction. This provision reflects the public
policy determination that the sole act of renting to a
convicted sex offender does not establish foreseeability
that the sex offender will repeat his or her crime and
will cause harm to a tenant or other person. Of course,
if the lessor in fact acquired other knowledge to
establish foreseeability that the person would likely
commit a crime, a duty could arise depending on the
circumstances. However, that duty would depend on the
foreseeability of the criminal act, and not on the mere
fact that the offender is a convicted sex offender.
Thus, AB 2712 also provides that "this section is not
intended to enlarge or diminish any other duty or right
that a lessor may have under other laws (and
circumstances) with respect to a tenant of residential
real property."
Another provision of AB 2712 would further provide that
the delivery by the landlord of the notice informing
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tenants of the Megan's Law website and its available
information, does not create a special relationship
between the landlord and the tenant (which in turn might
give rise to foreseeability and a duty). This provision
is intended to thwart frivolous claims that the mere
giving of the notice creates a special relationship
between the lessor and tenant. Although no court would
likely find a special relationship based on those facts,
the argument could nonetheless be asserted, which would
cost landlords money to defend. This provision would
preempt those frivolous actions.
3. Argument in support
Western Center on Law and Poverty, in support, writes:
Your bill would clarify that a landlord has no
special duty with regard to renting property to a
tenant who is required to register on the Megan's
Law database. It also clarifies that the general
duty required of landlords to provide safe
housing remain in place; thus a landlord can
evict and make other housing decisions based on
conduct, rather than status.
These clarifications will help to ensure that
there will not be a further concentration of
offenders in lower-rent apartments and
single-room occupancy hotels, which would put
poor, latch-key children at a greater risk than
better-off children.
We understand that higher income tenants ? with
easy access to the Megan's Law database already
demand that their landlords refuse to rent or
evict offenders. Unfortunately, this is a
zero-sum game: the offender has to live
somewhere. Where are they likely to go? To
lower-rent housing, where the tenants lack the
equipment and time to check whether the new
tenant is registered. By clarifying a landlord's
duties, your bill would inhibit the wholesale
shifting of offenders to poor neighborhoods.
Your bill reaches a delicate balance in this very
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difficult and vexing situation.
4. Clarification requested regarding mobilehome park owners
As proposed, AB 2712 would apply to lessors of
residential real property.
The Western Manufactured Housing Communities Association
questions whether the bill would also cover mobilehome
parks and manufactured housing communities throughout the
state.
Generally, the rules applicable to leased lands and
dwellings set forth in Civil Code Section 1940 et seq.
may also be applicable to mobilehome park residents as
tenants, even though there is a separate Mobilehome Park
Residency Law (which does not provide that its provisions
preempt the general laws applicable to leased lands and
dwellings).
AB 2712, however, would enact its provisions in Sections
2079.10a and 2079.10b of the Civil Code, separate from
the general law provisions. Further, the bill would apply
its provisions to lessors of residential real property,
whereas in the mobilehome and manufactured home context,
the park space is leased and not the residential unit
itself.
Thus, if inclusion of mobilehome park owners and their
park spaces are desired, express inclusionary language
would be advisable.
5. No definition provided for lessee
The bill similarly fails to provide a definition for
"lessee." As noted by supporter Western Center, some
tenants under current law are extended term occupants of
single-room hotels.
SHOULD THE BILL PROVIDE A DEFINITION FOR "LESSEE" WHICH
WOULD COVER TENANTS OF SINGLE-ROOM OCCUPANCY HOTELS WHO
ACQUIRE TENANCY (AND NOT GUEST) STATUS?
6. Information available on Megan's Law website
Generally, the Megan's Law website sets forth three
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categories of Internet disclosure, all based on
conviction offense and sex offense history. These three
categories of information subject to Internet disclosure,
in descending order of the severity of the sex offense,
are as follows:
Name (and known aliases), photo, age and date of
birth, physical description and sex offense
information, together with home address;
Name (and known aliases), photo, age and date of
birth, physical description, sex offense information,
and community of residence and ZIP code where the
person resides, together with home address if the
person has additional prior or subsequent sex offense
convictions; and
Name (and known aliases), photo, age and date of
birth, physical description and sex offense
information, together with community of residence and
ZIP code where the person resides.
(The law also specifies persons eligible for possible
exclusion from the Internet listing (but still subject to
all other registration requirements) for certain,
specific offenses or offense histories, if the person can
prove to DOJ the facts that make him or her eligible
under the provisions of the law.)
Specifically, the top level of disclosure (including home
address) would apply to the sex offenders convicted of
any of the following [Section 290.46(b)(2)]:
a) Kidnapping for the purpose of committing lewd or
lascivious acts of a child under the age of 14 years
[Section 207(b)];
b) Kidnapping to commit rape, spousal rape, oral
copulation, sodomy or sexual penetration [Section
209(b)];
c) Forcible rape accomplished by means of force,
violence, duress, menace, or fear of immediate and
unlawful bodily injury on the person of another
[Section 261(a)(2)];
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d) Forcible rape accomplished by threatening to
retaliate in the future against the victim or any
other person and there is a reasonable possibility
that the perpetrator will execute the threat [Section
261(a)(6)];
e) Forcible foreign object rape or violence, either
personally or by aiding and abetting another person
[Section 264.1];
f) Aggravated sexual assault of a child under 14 years
of age and 10 or more years younger than the offender
[Section 269];
g) Sodomy with a person under the age of 14 and more
than 10 years younger than the offender [Section
286(c)], or forcible sodomy accomplished by means of
force or fear of immediate and unlawful bodily injury
on the victim or another person, or by threatening to
retaliate in the future against the victim or any
other person and there is a reasonable possibility
that the perpetrator will execute the threat [Section
286(d)];
h) Felony lewd or lascivious acts upon or with the
body of a child under the age of 14 years, with the
intent of arousing, appealing to, or gratifying the
lust, passions, or sexual desires of that person or
the child [Section 288(a)]; or by use of force,
violence, duress, menace or fear of immediate and
unlawful bodily injury on the victim or another person
[Section 288(b)];
i) Felony lewd or lascivious acts upon or with the
body of a child with the intent of arousing, appealing
to, or gratifying the lust, passions, or sexual
desires of that person or the child provided that the
victim is a child of 14 or 15 years, and the
perpetrator is at least 10 years older than the child
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Page 10
[Section 288(c)];
j) Oral copulation with a person under 14 years of age
and more than 10 years younger than the perpetrator
[Penal Code Section 288a(c)];
k) Forcible oral copulation accomplished by means of
force or fear of immediate and unlawful bodily injury
on the victim or another person; or where the act is
accomplished by threatening to retaliate in the future
against the victim or any other person, and there is a
reasonable possibility that the perpetrator will
execute the threat; or where the victim is incapable,
because of a mental disorder or developmental or
physical disability of giving legal consent, and this
is known or reasonably should have been known to the
accused [Section 288a(d)];
l) Continuous sexual abuse of a child [Penal Code
Section 288.5];
m) Forcible foreign object rape accomplished by means
of force or duress, fear of immediate and unlawful
bodily injury on the victim or another person, or by
threatening to retaliate in the future against the
victim or any other person, and there is a reasonable
possibility that the perpetrator will execute the
threat [Section 289(a)]; and,
n) Participation in an act of sexual penetration with
another person who is under 14 years of age and who is
more than 10 years younger than the perpetrator.
[Penal Code Section 289(j).]
Existing law also provides for the Internet website
listing of any person who has ever been adjudicated a
sexually violent predator, [Section 290.46(b)(3)],
defined as a person convicted of a sexually violent
offense against two or more victims and has a diagnosed
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Page 11
mental disorder that makes the person a danger to the
health and safety of others in that it is likely that he
or she will engage in sexually violent criminal behavior.
[Welfare and Institutions Code Section 6600(a)(1).]
The next level provides for the Internet disclosure of
the name and known aliases, photograph, physical
description, community of residence, and zip code in
which the person resides, but not the address at which
the person resides, for specified sex offenses until a
determination is made whether the person has a prior or
subsequent conviction of specified sex offenses. For
such persons with additional convictions, the home
address of the person shall be made available. [Section
290.46(c)(1).]
In addition, the disclosure would apply to the following
offenses, if the person has one or more prior or
subsequent convictions of crimes requiring registration
as a sex offender:
a) Assault with intent to commit rape, sodomy, oral
copulation, rape in concert with another, lascivious
acts upon a child, or penetration of genitals or anus
with a foreign object [Section 220];
b) Rape where a person is incapable because of a
mental disorder or developmental or physical
disability, of giving legal consent, with no prior or
subsequent conviction of a sex offense requiring
registration [Section 261(a)(1)];
c) Rape where a person is prevented from resisting by
any intoxicating or anesthetic substance, or any
controlled substance, and this condition was known or
should have been known by the accused, with no prior
or subsequent conviction of a sex offense requiring
registration [Section 261(a)(3)];
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Page 12
d) Rape where the person is at the time unconscious of
the nature of the act, and this is known to the
accused, with no prior or subsequent conviction of a
sex offense requiring registration [Penal Code Section
261(a)(4)];
e) Participation in the act of sodomy by a person over
the age of 21 years with another person who is under
16 years of age, with no prior or subsequent
conviction of a sex offense requiring registration
[Section 286(b)(2)];
f) Committing an act of sodomy when the victim was
unconscious of the nature of the act, and this fact
was known to the accused, with no prior or subsequent
conviction of a sex offense requiring registration
[Section 286(c)(3)(f)];
g) Committing an act of sodomy when the victim is at
the time incapable, because of a mental disorder or
developmental or physical disability, of giving legal
consent, and such fact is known or reasonably should
have been known to the accused, with no prior or
subsequent conviction of a sex offense requiring
registration [Section 286(c)(3)(g)];
h) Committing an act of sodomy where the victim is
prevented from resisting by an intoxicating or
anesthetic substance, or any controlled substance, and
this condition was known or reasonably should have
been known to the accused, with no prior or subsequent
conviction of a sex offense requiring registration
[Section 286(c)(3)(i)];
i) Lewd or lascivious acts upon or with the body of a
child under the age of 14 years, with the intent of
arousing, appealing to, or gratifying the lust,
passions, or sexual desires of that person or the
child, provided that the act is a misdemeanor, the
victim is a child of 14 or 15 years, and the
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Page 13
perpetrator is at least 10 years older than the child
[Section 288(c)];
j) Participation in an act of oral copulation by a
person over the age of 21 with another person who is
under the age of 16 years [Section 288a(b)(2)];
k) Committing an act of oral copulation when the
victim is unconscious of the nature of the act and
this is known to the person committing the act, with
no prior or subsequent conviction of a sex offense
requiring registration [Section 288a(f)];
l) Committing an act of oral copulation where the
victim is incapable, because of a mental disorder or
developmental or physical disability, of giving
consent, and this is known or reasonably should have
been known to the accused, with no prior or subsequent
conviction of a sex offense requiring registration
[Section 288a(g)];
m) Committing an act of oral copulation where the
victim is prevented from resisting by any intoxicating
or anesthetic substance, or any controlled substance,
and this condition was known, or reasonably should
have been known to the accused, with no prior or
subsequent conviction of a sex offense requiring
registration [Section 288a(i)];
n) Committing an act of sexual penetration where the
victim is incapable, because of a mental disorder or
developmental or physical disability of giving legal
consent, and this is known or reasonably should have
been known to the accused, with no prior or subsequent
conviction of a sex offense requiring registration
[Section 289(b)];
o) Committing an act of sexual penetration when the
victim is unconscious of the nature of the act and
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this is known to the person committing the act, with
no prior or subsequent conviction of a sex offense
requiring registration [Section 289(d)];
p) Committing an act of sexual penetration where the
victim is prevented from resisting by any intoxicating
or anesthetic substance, or any controlled substance,
and this condition was known or reasonably should have
been known to the accused, with no prior or subsequent
conviction of a sex offense requiring registration
[Section 289(e)]; and
q) Participation in an act of sexual penetration by a
person over the age of 21 years with another person
who is under the age of 16 years, with no prior or
subsequent conviction of a sex offense requiring
registration [Section 289(i)].
The third level of disclosure provides the Internet
posting of the offender's name and known aliases, a
photograph, a physical description, including gender and
race, date of birth, criminal history, the community of
residence and zip code in which the person resides, but
not the specific address, for persons convicted of the
following offenses:
a) Assault with intent to commit rape, sodomy, oral
copulation, rape in concert with another, lascivious
acts upon a child, or penetration of genitals or anus
with a foreign object [Section 220];
b) Felony sexual battery [Section 243.4];
c) Rape where a person is incapable because of a
mental disorder or developmental or physical
disability, of giving legal consent, with no prior or
subsequent conviction of a sex offense requiring
registration [Section 261(a)(1)];
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d) Rape where a person is prevented from resisting by
any intoxicating or anesthetic substance, or any
controlled substance, and this condition was known or
should have been known by the accused, with no prior
or subsequent conviction of a sex offense requiring
registration [Section 261(a)(3)];
e) Rape where the person is at the time unconscious of
the nature of the act, and this is known to the
accused, with no prior or subsequent conviction of a
sex offense requiring registration [Section
261(a)(4)];
f) Felony inveiglement of an unmarried female under 18
for purposes of prostitution [Section 266];
g) Felony unlawful intercourse, sexual penetration,
oral copulation or sodomy where the victim's consent
is procured by fraudulent representation made with the
intent to create fear [Section 266c];
h) Procurement of a child under the age of 16 for lewd
or lascivious acts. [Section 266j];
i) Abduction of a person under the age of 18 years for
the purpose of prostitution [Section 267];
j) Participation in the act of sodomy by a person over
the age of 21 years with another person who is under
16 years of age, with no prior or subsequent
conviction of a sex offense requiring registration
[Section 286(b)(2)];
k) Committing an act of sodomy when the victim is at
the time incapable, because of a mental disorder or
developmental or physical disability, of giving legal
consent, and such fact is known or reasonably should
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Page 16
have been known to the accused, with no prior or
subsequent conviction of a sex offense requiring
registration [Section 286(c)(3)(g)];
l) Committing an act of sodomy where the victim is
prevented from resisting by an intoxicating or
anesthetic substance, or any controlled substance, and
this condition was known or reasonably should have
been known to the accused, with no prior or subsequent
conviction of a sex offense requiring registration
[Section 286(c)(3)(i)];
m) Lewd or lascivious acts upon or with the body of a
child under the age of 14 years, with the intent of
arousing, appealing to, or gratifying the lust,
passions, or sexual desires of that person or the
child, provided that the act is a misdemeanor, the
victim is a child of 14 or 15 years, and the
perpetrator is at least 10 years older than the child
[Section 288(c)];
n) Participation in an act of oral copulation by a
person over the age of 21 with another person who is
under the age of 16 years [Section 288a(b)(2)];
o) Committing an act of oral copulation when the
victim is unconscious of the nature of the act and
this is known to the person committing the act, with
no prior or subsequent conviction of a sex offense
requiring registration [Section 288a(f)];
p) Committing an act of oral copulation where the
victim is incapable, because of a mental disorder or
developmental or physical disability, of giving
consent, and this is known or reasonably should have
been known to the accused, with no prior or subsequent
conviction of a sex offense requiring registration
[Section 288a(g)];
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q) Committing an act of oral copulation where the
victim is prevented from resisting by any intoxicating
or anesthetic substance, or any controlled substance,
and this condition was known or reasonably should have
been known to the accused, with no prior or subsequent
conviction of a sex offense requiring registration
[Section 288a(i)];
r) Committing an act of sexual penetration where the
victim is incapable, because of a mental disorder or
developmental or physical disability of giving legal
consent, and this is known or reasonably should have
been known to the accused, with no prior or subsequent
conviction of a sex offense requiring registration
[Section 289(b)];
s) Committing an act of sexual penetration when the
victim is unconscious of the nature of the act and
this is known to the person committing the act, with
no prior or subsequent conviction of a sex offense
requiring registration [Section 289(d)];
t) Committing an act of sexual penetration where the
victim is prevented from resisting by any intoxicating
or anesthetic substance, or any controlled substance,
and this condition was known or reasonably should have
been known to the accused, with no prior or subsequent
conviction of a sex offense requiring registration
[Section 289(e)];
u) Participation in an act of sexual penetration by a
person over the age of 21 years with another person
who is under the age of 16 years, with no prior or
subsequent conviction of a sex offense requiring
registration [Section 289(i)]; and
v) Annoying or molesting a child under the age of 18
years (Section 647.6).
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Support: Berkeley Property Owners Ass'n.; Minority
Property Owners Ass'n.; North Valley Apartment
Owners Ass'n.; Santa Barbara Rental Property
Owners Ass'n.; Western Center on Law and Poverty;
Western Manufactured Housing Communities Ass'n.
Opposition:None Known
HISTORY
Source: California Housing Council (co-sponsor); author
Related Pending Legislation: None Known
Prior Legislation:None Known
Prior Vote:Gut and amend in Senate
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