BILL ANALYSIS �
SENATE JUDICIARY COMMITTEE
Senator Noreen Evans, Chair
2011-2012 Regular Session
SB 337 (Kehoe)
As Amended March 24, 2011
Hearing Date: April 5, 2011
Fiscal: No
Urgency: No
BCP:rm
SUBJECT
Tenancy: Noncommercial Signs
DESCRIPTION
This bill would provide that a landlord shall not prohibit a
tenant from posting or displaying noncommercial signs, posters,
flags, or banners on or within any portion of the tenant's
dwelling unit, unless the postings or display would violate a
local, state, or federal law.
This bill would state that the above prohibition is declaratory
of existing law.
BACKGROUND
In City of Ladue v. Gilleo, (1994) 512 U.S. 43, the United
States Supreme Court recognized that a person's ability to post
a sign on his or her own residence is a valuable right protected
by the First Amendment of the U.S. Constitution. In that case
the city of Ladue, Missouri had enacted an ordinance generally
prohibiting residents from posting signs in front of their
houses, with a few specified exceptions. The Court found the
ordinance to be unconstitutional, stating:
Signs that react to a local happening or express a
view on a controversial issue both reflect and animate
change in the life of a community. Often placed on
lawns or in windows, residential signs play an
important part in political campaigns, during which
they are displayed to signal the resident's support
for particular candidates, parties, or causes. ?
(more)
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Residential signs are an unusually cheap and
convenient form of communication. Especially for
persons of modest means or limited mobility, a yard or
window sign may have no practical substitute. (City of
Ladue, 512 U.S. at 55-57.)
The State of California has since recognized the importance of
permitting residents to post signs on residential property. For
example, existing law restricts the ability of mobilehome park
management to prohibit residents from posting political campaign
signs on mobilehomes or the individual sites where the homes are
located. (Civ. Code Sec. 799.10.) Existing law also restricts
the ability of Common Interest Development (CID) housing
associations to prohibit individual homeowners from posting
noncommercial signs on their properties. (Civ. Code Sec.
1353.6.)
This bill would address an additional situation in which
California has not explicitly protected residents' ability to
post residential signs by restricting the ability of a landlord
to prohibit a tenant from posting a noncommercial sign on a
residential rental property, unless the posting would violate a
local, state, or federal law.
CHANGES TO EXISTING LAW
Existing federal law provides: "Congress shall make no law ?
abridging the freedom of speech.?" (U.S. Const., Amend. I.)
Existing federal law states that it is a violation of free
speech rights under the First Amendment to "almost completely
foreclose� ] a venerable means of communication" by generally
prohibiting the use of residential signs, which "have long been
an important and distinct medium of expression." (City of Ladue
v. Gilleo (1994) 512 U.S. 43, 54-59.)
Existing law provides: "Every person may freely speak, write,
and publish his or her sentiments on all subjects, being
responsible for the abuse of this right. A law may not restrain
or abridge liberty of speech or press." (Cal. Const., art. I,
sec. 2, subd. (a).) This clause is "more definitive and
inclusive than the First Amendment?." (Wilson v. Superior Court
(1975) 13 Cal.3d 652, 658.)
Existing law provides that a CID governing document may not
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prohibit homeowners from posting noncommercial signs, posters,
flags, or banners on or in their individual properties, except
as required for the protection of public health or safety or if
the posting would violate a local, state, or federal law. The
law permits associations to prohibit signs or posters larger
than 9 square feet, and flags or banners larger than 15 square
feet. It also permits associations to prohibit signs made out
of lights, roofing, siding, paving materials, flora, or
balloons, or any other similar building, landscaping, or
decorative component, or signs that include the painting of
architectural surfaces. (Civ. Code Sec. 1353.6.)
Existing law provides that a resident in a mobilehome park may
not be prohibited from displaying a political campaign sign in
the window or on the side of a manufactured home or mobilehome,
or within the site on which the home is located or installed.
The size of such signs may be limited to six square feet. A
resident may be prohibited from displaying a political campaign
sign for longer than the period of time between 90 days prior to
an election and 15 days following the election, unless a local
ordinance imposes a more restrictive period of time for the
display of such signs. (Civ. Code Sec. 799.10.)
Existing law provides that it is unlawful for a landlord to
increase rent, decrease services, cause a tenant to quit
involuntarily, bring an action to recover possession, or
threaten to do any of those acts, for the purpose of retaliating
against the tenant because he or she has, among other things,
peaceably exercised any rights under law. (Civ. Code Sec.
1942.5.)
This bill would provide that a landlord shall not prohibit a
tenant from posting or displaying noncommercial signs, posters,
flags, or banners on or within any portion of the tenant's
dwelling unit, unless the posting or display would violate a
local, state, or federal law.
This bill would state that the above prohibition is declaratory
of existing law.
COMMENT
1. Stated need for the bill
According to the author:
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The ability to freely express one-self . . . is denied to
nearly 40% of all Californians. Tenants have no guaranteed
right to expression on the very property they call home,
simply because they are not the legal owner of where they
live.
While tenants have many rights provided to them under the
law, several forms of expression are not protected. These
forms include flying a flag or banner, posting
non-commercial signs or even displaying signs that are
political in nature.
Should people lose their right to freedom of expression
simply because they rent their property? The answer is no.
Any discrimination that prevents freedom of expression,
based on whether or not you own property is a denial of
rights that belong to all people. . . . SB 337 grants
tenants the right to post and display signs, flags or other
noncommercial signs as a form of expression that may be
displayed where they live.
The American Civil Liberties Union (ACLU), sponsor, states that
they have "successfully argued in court that current California
law as expressed in Civil Code Section 1942.5(c) renders
unlawful lease restrictions that bar tenants from posting
political signs on their leased premises. The legislative
history of Section 1945.5(c), made it clear that the Legislature
intended that displaying political signs in windows was covered
by the statutory protection of a tenant's exercise of 'any right
under the law'. SB 337 would provide the specific statutory
protection to post these signs."
2. Freedom of speech and expression
By prohibiting landlords from restricting a tenant's posting or
display of noncommercial signs, posters, flags or banners, this
bill would further protect the ability of tenants to express
themselves. While freedom of speech is protected under both the
United States and California Constitution, that protection,
which varies depending on the type of speech, is generally
limited to situations involving a government actor. (See
Comment 2(b).)
a. Background on freedom of expression
The freedom to express oneself is considered by many to be a
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fundamental part of our society. Although not absolute, the
importance of freedom of speech has been a pivotal part of
various societies for hundreds of years. The Declaration of
the Rights of Man and of the Citizen, adopted during the
French Revolution stated that:
The free communication of ideas and opinions is one of
the most precious of the rights of man. Every citizen
may, accordingly, speak, write, and print with freedom,
but shall be responsible for such abuses of this freedom
as shall be defined by law.
In order to protect citizens from oppression by the
government, the First Amendment of the United States
Constitution states that: "Congress shall make no law
respecting an establishment of religion, or prohibiting the
free exercise thereof; or abridging the freedom of speech, or
of the press . . ." Although the federal "state action"
doctrine provides that First Amendment free speech rights may
only be enforced against government actors, the free speech
clause of the California Constitution, is "more definitive and
inclusive than the First Amendment?." (Wilson v. Superior
Court (1975) 13 Cal.3d 652, 658), and has been held to have
broader application.
For example, the California Supreme Court held in Robins v.
Pruneyard Shopping Center (1979) 23 Cal.3d 899 that
enforcement of the California free speech clause is not
limited to government actors, and that the clause could be
enforced against a privately owned shopping center. The
court later found in Golden Gateway Center v. Golden Gateway
Tenants Association (2001) 26 Cal.4th 1013 that the free
speech clause could not be enforced against an apartment
complex that had prohibited the distribution of pamphlets
under apartment doors, but stated that "actions of a private
property owner constitute state action for purposes of
California's free speech clause only if the property is
freely and openly accessible to the public." (Id. at 1033.)
Although application of that standard would arguably not
protect tenants who seek to post signs in the windows of
their rental unit, the court did note that "many statutes
and ordinances serve to protect tenants against unreasonable
lease provisions and restrictions . . . tenants may always
seek a legislative solution tailored to their specific
concerns." (Id. at 1035.) While this bill represents that
legislative step, it should be noted that only three of the
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seven justices signed on to that opinion and that the
concurring opinion of former Chief Justice Ron George made
it clear that the decision was limited to its facts, and
that California's free speech clause may ultimately be found
enforceable against a private person who attempts to use
power in one area "to censor or undermine what might be
viewed as another individual's 'core' free speech rights."
(Id. at 1042.)
Staff also notes that the author provided examples of two
cities that have taken action on a local level. Those cities,
Davis and Woodland, have enacted ordinances to prevent a
landlord from prohibiting a tenant from posting political
signs. Given that local governments are acting to address
this issue, and that state law would preempt a local
ordinance, the Committee should be cognizant that any
amendments that enable landlords to impose greater
restrictions could have the potential of preempting any local
ordinance that simply bans landlords from interfering with the
tenant's right to post a noncommercial signs.
b. Intersection with property rights
Owners of property are said to have a "bundle of rights"
associated with the property; different circumstances can take
away some of those rights (for example, a lien removes some,
but not all of their rights). When a landlord rents his or
her property, some (but not all) of those rights are
transferred to the tenant. This bill would clarify that the
landlord does not retain the right, as owner of the property,
to restrict the use of noncommercial signs, posters, flags, or
banners on or within the dwelling.
While the ability to display noncommercial signs is consistent
with the principles of free speech, the display should also
comply with any applicable lawful restrictions that have been
placed on the property. The logic for that distinction is that
a landlord, in his or her "bundle of rights" cannot transfer a
right to the tenant that the landlord does not have
themselves. For example, covenants, conditions, and
restrictions (CC&Rs), or the governing documents in a CID, may
lawfully restrict the display of certain signs.
Alternatively, local ordinances could also prohibit certain
displays, or place conditions on their use.
Since a tenant arguably does not have a property right that
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cannot be transferred from the owner, the bill should ensure
(to the extent possible), that a landlord is able to require
the tenant to comply with all restrictions that the property
is subject. Failure to allow a landlord to require compliance
could arguably create a situation where a tenant is able to
violate a restriction, subject the landlord to a penalty, and
effectively prevent the landlord from taking action. Although
the bill currently allows a landlord to prohibit a tenant from
violating local (e.g.: ordinance or zoning requirement),
state, or federal law, it does not authorize a landlord to
prohibit a tenant from posting or displaying signs that would
violate another type of lawful restriction on the property.
Staff also notes that while existing law restricts the ability
of CIDs to prohibit the display of noncommercial signs, it
does allow CIDs to restrict the materials used for the sign
and their overall size. (Civ. Code Sec. 1352.6.) Those same
restrictions are not contained within this bill, thus, a
landlord would not be able to require a tenant to comply with
lawful restrictions imposed by the homeowners association
pursuant to existing law. Community Associations Institute
(CAI), in an oppose unless amended position, notes that "SB
337 inadvertently poses a problem for �CIDs] in that its
provisions appear to conflict with Civil Code Sec. 1353.6 on
the same topic (signage) . . . Owners of rented units in
CID's, and their tenants, are required to abide by �that]
statute as well as the CID's local governing documents,
including rules and restrictions." CAI further requests that
the bill be amended so as not to conflict with that section,
which was "the subject of major controversy in the
Legislature."
From a policy standpoint, it appears reasonable to allow a
landlord to require a tenant to comply with all applicable
laws and regulations when renting a property, including CC&Rs,
and governing documents. Those same restrictions would apply
to the landlord if he or she decided to occupy the property as
their primary residence. Accordingly the author should
consider amending the bill to clarify that a landlord can
require a tenant to comply with other lawful restrictions on
the property, specifically the governing documents of a CID
and any applicable CC&Rs. Staff notes that while the current
version of the bill would permit a landlord to prohibit the
posting or display when it would violate a local, state or
federal law, that provision would not encompass those other
lawful restrictions that may have been placed on the property.
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Suggested amendment:
On page 2, strike out ", unless the posting or display would
violate" and line 3, and insert:
, unless:
(1) The posting or display would violate a local, state,
or federal law.
(2) The posting or display would violate a lawful
provision in a common interest development governing
document that satisfies the criteria of Section 1353.6.
(3) The posting or display would violate a lawful
provision in the covenants, conditions, and restrictions
recorded against the property.
3. Opposition's concerns
The California Apartment Association, in opposition, argues that
the bill "proposes a significant and unconstitutional
interference with property owners' rights to set standards at
their property . . . and would deny property owners the ability
to impose rules necessary to prevent visual blight and to
prevent the posting of signs and banners that are offensive to
other residents and the surrounding community."
The California Association of Realtors, Apartment Association of
Greater Los Angeles, San Diego County Apartment Association, and
the Santa Barbara Rental Property Association oppose the bill on
the basis that "rental property owners and managers must have
the unfettered flexibility to judge what may or may not be
suitable conduct by one resident if it has the prospect of
affecting the quiet enjoyment of other residents in rental
housing." Those organizations further contend that: (1) the
bill leaves an apartment owner virtually powerless to preserve
the quiet enjoyment of all residents in apartment units; (2) the
bill threatens to remove an apartment owner's legitimate right
to control the appearance of property; (3) that virtually any
sign or banner can be hung or displayed anywhere; and (4) the
bill creates new problems to solve a non-existent one.
The Apartment Association, California Southern Cities, San
Francisco Association of Realtors, and the Apartment Association
of Orange County, in opposition, state similar concerns and
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contend, among other things, that the "primary beneficiary of SB
337 will be the tenants who will taunt others when they display
objectionable signs, banners or posters," and that "�w]hen an
alleged violation of law is at issue concerning the legality of
a sign, government will be the only entity that can determine
violation of laws." Staff notes that by allowing landlords to
prohibit a posting or display when it would be in violation of a
local law, this bill would allow local governments (and CIDs, if
the suggested amendment in Comment 2(b) is accepted) to craft
appropriate restrictions for properties at issue. If problems
arise regarding the posting of signs, local governments would
have authority to take narrow, directed action to address the
problem.
4. SB 540's veto and additional restrictions
This bill is similar to, but less restrictive than, SB 540
(Kehoe, vetoed in 2006). That bill would have barred landlords
from prohibiting tenants from posting or displaying campaign
signs (arguably more restrictive than the noncommercial signs
governed by this bill). As approved by this Committee, the bill
would have allowed landlords to prohibit tenants from posting
those signs in the following circumstances: (1) the campaign
sign is more than nine square feet in size (this requirement was
later reduced to six square feet); (2) the posting or display
would violate a local, state, or federal law; (3) the posting or
display would violate a lawful provision in a common interest
development governing document, as specified; and (4) the
posting is in excess of the period of time between 90 days prior
to the relevant election or vote and 15 days following the vote.
In comparison, the scope of the present bill extends beyond
political signs and only contains the restriction that a
landlord may prohibit postings or displays that would violate a
local, state, or federal law.
The veto message for SB 540 criticized the limitation to
political signs, and contended that it failed to balance the
rights of tenants and property owners. Specifically, the
message stated:
. . . �T]he bill would limit a tenants right to post
campaign signs to those that meet certain size limitations
and for a limited time immediately before an election. If
the proponents of this measure believe that tenants have a
right to express their political beliefs by posting signs on
their rental property, why would they not have the right to
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express those beliefs whenever they choose? Do people lose
their right to freedom of speech simply because they rent
their property?
Similarly, the bill seeks to offer a balance between the
rights of tenants and the rights of property owners, but
offers no clarity on the rights of property owners to
control the appearance of their property and protect the
environment for other tenants.
While SB 540 arguably responds to part of the veto message by
removing the specific time limitations that SB 540 included for
political signs, the lack of additional limitations would shift
the balance more in favor of the tenant's speech. Considering
the large portion of our population who could be denied their
ability to express a viewpoint if all leases contained a
provision banning the posting or display of signs, facilitating
the lawful expression of those individuals may be appropriate.
From a public policy standpoint, only allowing individuals who
own a home to express themselves via signs or displays appears
to be a poor outcome when such large portions of our society
have lost their homes due to foreclosure, cannot afford to buy a
home, or have decided that renting makes the most sense for
their situation.
5. Declaratory of existing law
This bill would state that its provisions are declaratory of
existing law. In support of the statement, the sponsor asserts
that they have successfully argued that existing law relating to
landlord retaliation renders unlawful lease restrictions that
bar tenants from posting political signs on their leased
premises. (See Civ. Code Sec. 1942.5(c).) The sponsor's
argument is based on statements of legislative intent regarding
Civil Code 1942.5(c). Specifically, this Committee's analysis
for AB 771 (Hart, Chapter 652, Statutes of 1979) stated: "this
bill would preclude retaliatory acts by the landlord against the
tenant's joining or participating in a tenants' rights advocate
group, or the tenant's exercise of his own rights (such as free
speech by displaying posters and signs on windows, etc.) in a
lawful and peaceful manner." (Emphasis added.)
Although the sponsor may be correct about the Legislature's
intent when enacting that section, it is within the purview of
the courts to determine whether California law has actually
imposed such a restriction since 1979. To ensure that this
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legislation does not affect the court's interpretation of prior
legislative history, the author should consider amending the
bill to strike the statement that it is declaratory of existing
law.
Suggested amendment:
On page 2, strike out lines 3 through 4, inclusive.
Support : None Known
Opposition : Apartment Association, California Southern Cities;
Apartment Association of Greater Los Angeles; Apartment
Association of Orange County; California Apartment Association;
California Association of Realtors; Community Associations
Institute; San Diego County Apartment Association; San Francisco
Association of Realtors; Santa Barbara Rental Property
Association
HISTORY
Source : American Civil Liberties Union (ACLU)
Related Pending Legislation : None Known
Prior Legislation : SB 540 (Kehoe, 2006), see Comment 3.
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