BILL NUMBER: SB 1252 AMENDED
BILL TEXT
AMENDED IN SENATE MARCH 25, 2010
INTRODUCED BY Senator Corbett
FEBRUARY 19, 2010
An act to amend Section 12955.1 of the Government Code,
relating to fair housing. An act to amend Sections
51.2 and 51.10 of the Civil Code, and to amend Sections 12920, 12921,
12955, 12955.8, and 12987 of the Government Code,
relating to housing discrimination.
LEGISLATIVE COUNSEL'S DIGEST
SB 1252, as amended, Corbett. Fair housing: multifamily
dwellings. Housing: discrimination.
(1) Existing law presumes that a housing development for senior
citizens constructed on or after January 1, 2001, is designed to meet
the physical and social needs of senior citizens for purposes of
meeting existing laws regarding age discrimination in housing if the
housing development includes specified elements, except housing as to
which these provisions are preempted by federal law, as provided.
This bill would provide that selection preferences based on age,
imposed in connection with federally approved housing programs, do
not constitute age discrimination in housing.
(2) Under the California Fair Employment and Housing Act, it is
unlawful to engage in specified discriminatory practices in housing
accommodations on the basis of race, color, religion, sex, sexual
orientation, marital status, national origin, ancestry, familial
status, or disability.
This bill would include source of income within the unlawful bases
for discrimination in housing accommodations under the act.
(3) Existing law requires the Fair Employment and Housing
Commission, if it finds that a respondent has engaged in any unlawful
practice under the California Fair Employment and Housing Act, to
require the respondent to cease and desist from the practice and take
actions to effectuate the purposes of the act, including, but not
limited to, the payment to the complainant of a civil penalty, not to
exceed $10,000, or not to exceed $25,000 if there had been a prior
violation within 5 years preceding the filing of the complaint, or
not to exceed $50,000 if there had been 2 or more violations within 7
years preceding the filing of the complaint.
This bill would increase the payment of a civil penalty to not
exceed $16,000, or not to exceed $37,500 if there had been a prior
violation within 5 years preceding the filing of the complaint, or
not to exceed $65,000 if there had been 2 or more violations within 7
years preceding the filing of the complaint.
The existing California Fair Employment and Housing Act (FEHA)
makes it unlawful to discriminate against any person in any housing
accommodation on the basis of race, color, religion, sex, marital
status, national origin, ancestry, familial status, or disability.
The act permits the Department of Fair Employment and Housing to
engage in affirmative actions to prevent and provide for effective
remedies against housing discrimination, as defined.
This bill would make technical, nonsubstantive changes to the
definition of the term "discrimination."
Vote: majority. Appropriation: no. Fiscal committee: no
yes . State-mandated local program: no.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 51.2 of the Civil
Code is amended to read:
51.2. (a) Section 51 shall be construed to prohibit a business
establishment from discriminating in the sale or rental of housing
based upon age. Where accommodations are designed to meet the
physical and social needs of senior citizens, a business
establishment may establish and preserve that housing for senior
citizens, pursuant to Section 51.3, except housing as to which
Section 51.3 is preempted by the prohibition in the federal Fair
Housing Amendments Act of 1988 (P.L. 100-430)
(Public Law 100-430) and implementing regulations against
discrimination on the basis of familial status. For accommodations
constructed before February 8, 1982, that meet all the criteria for
senior citizen housing specified in Section 51.3, a business
establishment may establish and preserve that housing development for
senior citizens without the housing development being designed to
meet physical and social needs of senior citizens.
(b) This section is intended to clarify the holdings in Marina
Point, Ltd. v. Wolfson (1982) 30 Cal. 3d
Cal.3d 72 and O'Connor v. Village Green Owners Association
(1983) 33 Cal. 3d Cal.3d 790.
(c) This section shall not apply to the County of Riverside.
(d) A housing development for senior citizens constructed on or
after January 1, 2001, shall be presumed to be designed to meet the
physical and social needs of senior citizens if it includes all of
the following elements:
(1) Entryways, walkways, and hallways in the common areas of the
development, and doorways and paths of access to and within the
housing units, shall be as wide as required by current laws
applicable to new multifamily housing construction for provision of
access to persons using a standard-width wheelchair.
(2) Walkways and hallways in the common areas of the development
shall be equipped with standard height railings or grab bars to
assist persons who have difficulty with walking.
(3) Walkways and hallways in the common areas shall have lighting
conditions which are of sufficient brightness to assist persons who
have difficulty seeing.
(4) Access to all common areas and housing units within the
development shall be provided without use of stairs, either by means
of an elevator or sloped walking ramps.
(5) The development shall be designed to encourage social contact
by providing at least one common room and at least some common open
space.
(6) Refuse collection shall be provided in a manner that requires
a minimum of physical exertion by residents.
(7) The development shall comply with all other applicable
requirements for access and design imposed by law, including, but not
limited to, the Fair Housing Act (42 U.S.C. Sec. 3601 et seq.), the
Americans with Disabilities Act (42 U.S.C. Sec. 12101 et seq.), and
the regulations promulgated at Title 24 of the California Code of
Regulations that relate to access for persons with disabilities or
handicaps. Nothing in this section shall be construed to limit or
reduce any right or obligation applicable under those laws.
(e) Selection preferences based on age, imposed in connection with
a federally approved housing program, do not constitute age
discrimination in housing.
SEC. 2. Section 51.10 of the Civil Code
is amended to read:
51.10. (a) Section 51 shall be construed to prohibit a business
establishment from discriminating in the sale or rental of housing
based upon age. A business establishment may establish and preserve
housing for senior citizens, pursuant to Section 51.11, except
housing as to which Section 51.11 is preempted by the prohibition in
the federal Fair Housing Amendments Act of 1988 (P.L.
100-430) (Public Law 100-430) and implementing
regulations against discrimination on the basis of familial status.
(b) This section is intended to clarify the holdings in Marina
Point, Ltd. v. Wolfson (1982) 30 Cal.3d 721, and O'Connor v. Village
Green Owners Association (1983) 33 Cal.3d 790.
(c) Selection preferences based on age, imposed in connection with
a federally approved housing program, do not constitute age
discrimination in housing.
(c)
(d) This section shall only apply to the County of
Riverside.
SEC. 3. Section 12920 of the Government
Code is amended to read:
12920. It is hereby declared as the public policy of this state
that it is necessary to protect and safeguard the right and
opportunity of all persons to seek, obtain, and hold employment
without discrimination or abridgment on account of race, religious
creed, color, national origin, ancestry, physical disability, mental
disability, medical condition, marital status, sex, age, or sexual
orientation.
It is recognized that the practice of denying employment
opportunity and discriminating in the terms of employment for these
reasons foments domestic strife and unrest, deprives the state of the
fullest utilization of its capacities for development and
advancement, and substantially and adversely affects the interest of
employees, employers, and the public in general.
Further, the practice of discrimination because of race, color,
religion, sex, sexual orientation, marital status,
national origin, ancestry, familial status, source of income, or
disability , or sexual orientation in
housing accommodations is declared to be against public policy.
It is the purpose of this part to provide effective remedies that
will eliminate these discriminatory practices.
This part shall be deemed an exercise of the police power of the
state for the protection of the welfare, health, and peace of the
people of this state.
SEC. 4. Section 12921 of the Government
Code is amended to read:
12921. (a) The opportunity to seek, obtain and hold employment
without discrimination because of race, religious creed, color,
national origin, ancestry, physical disability, mental disability,
medical condition, marital status, sex, age, or sexual orientation is
hereby recognized as and declared to be a civil right.
(b) The opportunity to seek, obtain, and hold housing without
discrimination because of race, color, religion, sex, sexual
orientation, marital status, national origin, ancestry, familial
status, source of income, disability, or any other basis
prohibited by Section 51 of the Civil Code is hereby recognized as
and declared to be a civil right.
SEC. 5. Section 12955 of the Government
Code is amended to read:
12955. It shall be unlawful:
(a) For the owner of any housing accommodation to discriminate
against or harass any person because of the race, color, religion,
sex, sexual orientation, marital status, national origin, ancestry,
familial status, source of income, or disability of that person.
(b) For the owner of any housing accommodation to make or to cause
to be made any written or oral inquiry concerning the race, color,
religion, sex, sexual orientation, marital status, national origin,
ancestry, familial status, or disability of any person seeking to
purchase, rent or lease any housing accommodation.
(c) For any person to make, print, or publish, or cause to be
made, printed, or published any notice, statement, or advertisement,
with respect to the sale or rental of a housing accommodation that
indicates any preference, limitation, or discrimination based on
race, color, religion, sex, sexual orientation, marital status,
national origin, ancestry, familial status, source of income, or
disability or an intention to make that preference, limitation, or
discrimination.
(d) For any person subject to the provisions of Section 51 of the
Civil Code, as that section applies to housing accommodations, to
discriminate against any person on the basis of sex, sexual
orientation, color, race, religion, ancestry, national origin,
familial status, marital status, disability, source of income, or on
any other basis prohibited by that section. Selection
preferences based on age, imposed in connection with a federally
approved housing program, do not constitute age discrimination in
housing.
(e) For any person, bank, mortgage company or other financial
institution that provides financial assistance for the purchase,
organization, or construction of any housing accommodation to
discriminate against any person or group of persons because of the
race, color, religion, sex, sexual orientation, marital status,
national origin, ancestry, familial status, source of income, or
disability in the terms, conditions, or privileges relating to the
obtaining or use of that financial assistance.
(f) For any owner of housing accommodations to harass, evict, or
otherwise discriminate against any person in the sale or rental of
housing accommodations when the owner's dominant purpose is
retaliation against a person who has opposed practices unlawful under
this section, informed law enforcement agencies of practices
believed unlawful under this section, has testified or assisted in
any proceeding under this part, or has aided or encouraged a person
to exercise or enjoy the rights secured by this part. Nothing herein
is intended to cause or permit the delay of an unlawful detainer
action.
(g) For any person to aid, abet, incite, compel, or coerce the
doing of any of the acts or practices declared unlawful in this
section, or to attempt to do so.
(h) For any person, for profit, to induce any person to sell or
rent any dwelling by representations regarding the entry or
prospective entry into the neighborhood of a person or persons of a
particular race, color, religion, sex, sexual orientation, marital
status, ancestry, disability, source of income, familial status, or
national origin.
(i) For any person or other organization or entity whose business
involves real estate-related transactions to discriminate against any
person in making available a transaction, or in the terms and
conditions of a transaction, because of race, color, religion, sex,
sexual orientation, marital status, national origin, ancestry, source
of income, familial status, or disability.
(j) To deny a person access to, or membership or participation in,
a multiple listing service, real estate brokerage organization, or
other service because of race, color, religion, sex, sexual
orientation, marital status, ancestry, disability, familial status,
source of income, or national origin.
(k) To otherwise make unavailable or deny a dwelling based on
discrimination because of race, color, religion, sex, sexual
orientation, familial status, source of income, disability, or
national origin.
( l ) To discriminate through public or private land
use practices, decisions, and authorizations because of race, color,
religion, sex, sexual orientation, familial status, marital status,
disability, national origin, source of income, or ancestry.
Discrimination includes, but is not limited to, restrictive
covenants, zoning laws, denials of use permits, and other actions
authorized under the Planning and Zoning Law (Title 7 (commencing
with Section 65000)), that make housing opportunities unavailable.
Discrimination under this subdivision also includes the existence
of a restrictive covenant, regardless of whether accompanied by a
statement that the restrictive covenant is repealed or void. This
paragraph shall become operative on January 1, 2001.
(m) As used in this section, "race, color, religion, sex, sexual
orientation, marital status, national origin, ancestry, familial
status, source of income, or disability" includes a perception that
the person has any of those characteristics or that the person is
associated with a person who has, or is perceived to have, any of
those characteristics.
(n) To use a financial or income standard in the rental of housing
that fails to account for the aggregate income of persons residing
together or proposing to reside together on the same basis as the
aggregate income of married persons residing together or proposing to
reside together.
(o) In instances where there is a government rent subsidy, to use
a financial or income standard in assessing eligibility for the
rental of housing that is not based on the portion of the rent to be
paid by the tenant.
(p) (1) For the purposes of this section, "source of income" means
lawful, verifiable income paid directly to a tenant or paid to a
representative of a tenant. For the purposes of this section, a
landlord is not considered a representative of a tenant.
(2) For the purposes of this section, it shall not constitute
discrimination based on source of income to make a written or oral
inquiry concerning the level or source of income.
SEC. 6. Section 12955.8 of the
Government Code is amended to read:
12955.8. For purposes of this article, in connection with
unlawful practices:
(a) Proof of an intentional violation of this article includes,
but is not limited to, an act or failure to act that is otherwise
covered by this part, that demonstrates an intent to discriminate in
any manner in violation of this part. A person intends to
discriminate if race, color, religion, sex, sexual orientation,
marital status, national origin, ancestry, familial status,
marital status, source of income, or
disability , national origin, or ancestry is a
motivating factor in committing a discriminatory housing practice
even though other factors may have also motivated the practice. An
intent to discriminate may be established by direct or circumstantial
evidence.
(b) Proof of a violation causing a discriminatory effect is shown
if an act or failure to act that is otherwise covered by this part,
and that has the effect, regardless of intent, of unlawfully
discriminating on the basis of race, color, religion, sex, sexual
orientation, marital status, national origin, ancestry,
familial status, marital status, source of
income, or disability , national origin, or ancestry
. A business establishment whose action or inaction has an
unintended discriminatory effect shall not be considered to have
committed an unlawful housing practice in violation of this part if
the business establishment can establish that the action or inaction
is necessary to the operation of the business and effectively carries
out the significant business need it is alleged to serve. In cases
that do not involve a business establishment, the person whose action
or inaction has an unintended discriminatory effect shall not be
considered to have committed an unlawful housing practice in
violation of this part if the person can establish that the action or
inaction is necessary to achieve an important purpose sufficiently
compelling to override the discriminatory effect and effectively
carries out the purpose it is alleged to serve.
(1) Any determination of a violation pursuant to this subdivision
shall consider whether or not there are feasible alternatives that
would equally well or better accomplish the purpose advanced with a
less discriminatory effect.
(2) For purposes of this subdivision, the term "business
establishment" shall have the same meaning as in Section 51 of the
Civil Code.
SEC. 7. Section 12987 of the Government
Code is amended to read:
12987. (a) If the commission, after hearing, finds that a
respondent has engaged in any unlawful practice as defined in this
part, the commission shall state its findings of fact and shall issue
and cause to be served on the respondent an order requiring the
respondent to cease and desist from the practice and to take those
actions, as, in the judgment of the commission, will effectuate the
purpose of this part, including, but not limited to, any of the
following:
(1) The sale or rental of the housing accommodation if it is still
available, or the sale or rental of a like housing accommodation, if
one is available, or the provision of financial assistance, terms,
conditions, or privileges previously denied in violation of
subdivision (f) of Section 12955 in the purchase, organization, or
construction of the housing accommodation, if available.
(2) Affirmative or prospective relief, including injunctive or
other equitable relief.
(3) The payment to the complainant of a civil penalty against any
named respondent, not to exceed ten sixteen
thousand dollars ($10,000) ($16,000)
, unless, in a separate accusation, the respondent has been
adjudged to have, with intent, committed a prior violation of Section
12955. If the respondent has, in a separate accusation, been
adjudged to have committed a prior violation of Section 12955 within
the five years preceding the filing of the complaint, the amount of
the civil penalty may exceed ten sixteen
thousand dollars ($10,000) ($16,000)
, but may not exceed twenty-five
thirty-seven thousand five hundred dollars
($25,000) ($37,500) . If the respondent, in
separate accusations, has been adjudged to have, with intent,
violated Section 12955 two or more times within the seven-year period
preceding the filing of the complaint, the civil penalty may exceed
twenty-five thirty-seven thousand
five hundred dollars ($25,000)
($37,500) , but may not exceed fifty
sixty-five thousand dollars ($50,000)
($65,000) . All civil penalties awarded under this provision
shall be collected by the department. The commission may award the
prevailing party, other than the state, reasonable attorney's fees
and costs against any party other than the state, including expert
witness fees.
(4) The payment of actual damages to the complainant.
(b) In determining whether to assess a civil penalty pursuant to
this section, the commission shall find that the respondent has been
guilty of oppression, fraud, or malice, expressed or implied, as
required by Section 3294 of the Civil Code. In determining the amount
of a civil penalty, the commission shall consider Section 12955.6
and relevant evidence of, including, but not limited to, the
following:
(1) Willful, intentional, or purposeful conduct.
(2) Refusal to prevent or eliminate discrimination.
(3) Conscious disregard for fair housing rights.
(4) Commission of unlawful conduct.
(5) Intimidation or harassment.
(6) Conduct without just cause or excuse.
(7) Multiple violations of the Fair Employment and Housing Act.
(c) If the commission finds that the respondent has engaged in an
unlawful practice under this part, and the respondent is licensed or
granted a privilege by an agency of the state or the federal
government to do business, provide a service, or conduct activities,
and the unlawful practice is determined to have occurred in
connection with the exercise of that license or privilege, the
commission shall provide the licensing or privilege granting agency
with a copy of its decision or order.
(d) If the commission finds that the respondent has engaged in an
unlawful practice under this part and is liable for actual damages or
a civil penalty, any amount due to the respondent by a state agency
may be offset to satisfy the commission's final order or decision.
(e) No remedy shall be available to the aggrieved person unless
the aggrieved person waives any and all rights or claims under
Section 52 of the Civil Code prior to receiving a remedy, and signs a
written waiver to that effect.
(f) The commission may require a report of the manner of
compliance.
(g) If the commission finds that a respondent has not engaged in
any practice which constitutes a violation of this part, the
commission shall state its findings of fact and shall issue and cause
to be served on the complainant an order dismissing the accusation
as to that respondent.
(h) Any order issued by the commission shall have printed on its
face references to the provisions of the Administrative Procedure Act
which prescribe the rights of appeal of any party to the proceeding
to whose position the order is adverse.
SECTION 1. Section 12955.1 of the Government
Code is amended to read:
12955.1. (a) For purposes of Section 12955, "discrimination"
includes, but is not limited to, a failure to design and construct a
covered multifamily dwelling in a manner that allows access to, and
use by, disabled persons by providing, at a minimum, the following
features:
(1) All covered multifamily dwellings shall have at least one
building entrance on an accessible route, unless it is impracticable
to do so because of the terrain or unusual characteristics of the
site. The burden of establishing impracticability because of terrain
or unusual site characteristics is on the person or persons who
designed or constructed the housing facility.
(2) All covered multifamily dwellings with a building entrance on
an accessible route shall be designed and constructed in a manner
that complies with all of the following requirements:
(A) The public and common areas are readily accessible to, and
usable by, persons with disabilities.
(B) All the doors designed to allow passage into and within all
premises are sufficiently wide to allow passage by persons in
wheelchairs.
(C) All premises within covered multifamily dwelling units contain
the following features of adaptable design:
(i) An accessible route into and through the covered dwelling
unit.
(ii) Light switches, electrical outlets, thermostats, and other
environmental controls in accessible locations.
(iii) Reinforcements in bathroom walls to allow later installation
of grab bars around the toilet, tub, shower stall, and shower seat,
where those facilities are provided.
(iv) Useable kitchens and bathrooms so that an individual in a
wheelchair can maneuver about the space.
(b) (1) For purposes of Section 12955, "discrimination" includes,
but is not limited to, a failure to design and construct 10 percent
of the multistory dwelling units in buildings without an elevator
that consist of at least four condominium dwelling units or at least
three rental apartment dwelling units in a manner that incorporates
an accessible route to the primary entry level entrance and that
meets the requirements of paragraph (2) of subdivision (a) with
respect to the ground floor, at least one bathroom on the primary
entry level and the public and common areas. Any fraction thereof
shall be rounded up to the next whole number. For purposes of this
subdivision, "elevator" does not include an elevator that serves only
the first ground floor or any nonresidential area. In multistory
dwelling units in these buildings without elevators, the "primary
entry level entrance" means the principal entrance through which most
people enter the dwelling unit, as designated by the California
Building Standards Code or, if not designated by California Building
Standards Code, by the building official. To determine the total
number of multistory dwelling units subject to this subdivision, all
multistory dwelling units in the buildings subject to this
subdivision on a site shall be considered collectively. This
subdivision shall not be construed to require an elevator within an
individual multistory dwelling unit or within a building subject to
this subdivision. This subdivision shall apply only to multistory
dwelling units in a building subject to this subdivision for which an
application for a construction permit is submitted on or after July
1, 2005.
(2) Notwithstanding subdivision (c), the Division of the State
Architect and the Department of Housing and Community Development may
adopt regulations to clarify, interpret, or implement this
subdivision, if either of them deem it necessary and appropriate.
(c) Notwithstanding Section 12935, regulations adopting building
standards necessary to implement, interpret, or make specific the
provisions of this section shall be developed by the Division of the
State Architect for public housing and by the Department of Housing
and Community Development for all other residential occupancies, and
shall be adopted pursuant to Chapter 4 (commencing with Section
18935) of Part 2.5 of the Health and Safety Code. Prior to the
effective date of regulations adopted pursuant to this subdivision,
existing federal accessibility standards that provide, to persons
with disabilities, greater protections than existing state
accessibility regulations shall apply. After regulations pursuant to
this subdivision become effective, particular state regulations shall
apply if they provide, to persons with disabilities, the same
protections as, or greater protections than, the federal standards.
If particular federal regulations provide greater protections than
state regulations, then those federal standards shall apply. If the
United States Department of Housing and Urban Development determines
that any portion of the state regulations are not equivalent to the
federal standards, the federal standards shall, as to those portions,
apply to the design and construction of covered multifamily
dwellings until the state regulations are brought into compliance
with the federal standards. The appropriate state agency shall
provide notice pursuant to the Administrative Procedure Act (Chapter
5 (commencing with Section 11500) of Part 5 of Division 3 of Title 2)
of that determination.
(d) In investigating discrimination complaints, the department
shall apply the building standards contained in the California
Building Standards Code to determine whether a covered multifamily
dwelling is designed and constructed for access to and use by
disabled persons in accordance with this section.
(e) The building standard requirements for persons with
disabilities imposed by this section shall meet or exceed the
requirements under the federal Fair Housing Amendments Act of 1988
(P.L. 100-430) and its
implementing regulations (24 C.F.R. 100.1 et seq.) and the existing
state law building standards contained in the California Building
Standards Code.