HomeMy WebLinkAboutCM Rental Discrimination____________________________________________________________________________________
FOR CITY CLERK ONLY
Council Meeting: 10/01/2018
Disposition: Accepted report and provided direction to staff
Agenda Item No: 7.a
Meeting Date: October 1, 2018
SAN RAFAEL CITY COUNCIL AGENDA REPORT
Department: City Manager’s Office
Prepared by: Andrew Hening,
Director of Homeless
Planning & Outreach
City Manager Approval: ______________
TOPIC: RENTAL DISCRIMINATION
SUBJECT: PROVIDE FEEDBACK ON A DRAFT ORDINANCE ADDRESSING RENTAL HOUSING
SOURCE OF INCOME DISCRIMINATION
RECOMMENDATION: Accept Information Report and Provide Direction to Staff.
BACKGROUND: In November of 2016, the Marin County Board of Supervisors adopted a Source of
Income Fair Housing Ordinance intended to eliminate limitations in the provision of rental housing
merely because a family, Veteran, or other renter receives third party rental assistance, such as a
Housing Choice Voucher (Section 8), a Veterans Affairs Supportive Housing (VASH) Voucher, a
Housing for People with AIDS Voucher, or the Shelter Plus Care Voucher. The County has asked that
individual cities consider the adoption of a similar ordinance to create consistent rental opportunities
throughout Marin, regardless of a renter’s source of income.
ANALYSIS: When someone pays rent for a room, apartment, or house, there are a variety of ways in
which they might source the revenue for that expense. They could use income from a job, a pension,
disability or social security payments, money from a friend or parent, child support payments, or
alimony payments. They may also receive rental assistance from the government or some other third
party resource.
In 1968 Congress passed the Fair Housing Act, which was intended to protect buyers and renters from
seller or landlord discrimination. Its primary prohibition makes it unlawful to refuse to sell to, rent to, or
negotiate with any person because of that person's inclusion in a protected class. In 1974, Congress
passed the Community Development Act, which created the Housing Choice Voucher (Section 8).
Housing vouchers are not free housing. Voucher recipients are required to pay 30% of their income
towards their housing expenses, and the voucher covers the rest.
The goal of the voucher program was two-fold. First, it was an opportunity to move away from the
public housing model, wherein the government built and managed housing units. Chronically
underfunded, these facilities often fell into disrepair and resulted in concentrations of poverty and crime.
Second, the Fair Housing Act was passed in response to extensive and pervasive discrimination in the
SAN RAFAEL CITY COUNCIL AGENDA REPORT / Page: 2
housing market. Redlining, for example, was a government-endorsed policy that allowed financial
lenders to deny home loans and insurance to people because they lived in “financially risk y areas.”
The Federal Housing Administration (FHA) set the industry standards for what type of mortgages the
federal government would insure. Without ever showing proof, the FHA claimed that integrated
neighborhoods would reduce home values, which would in turn increase mortgage. As a result, the
FHA deemed neighborhoods with racially restrictive convenants as safer investments, effectively
blocking people of color from moving to more affluent communities, even if they had the resources to
do so (Source: Color of Law). Housing vouchers were seen as a way to affirmatively further fair
housing because rental assistance would give people the opportunity to move out of public housing
and/or neighborhoods that had been subject to redlining. This vision for using vouchers to reverse the
impacts of past housing discrimination only works if people with vouchers actually have a meaningful
choice in a community’s overall rental market.
50 years after the passage of the Fair Housing Act, housing discrimination persists in our community.
To substantiate the need for source of income protections, the Marin Housing Authority reported to the
Marin County Board of Supervisors that between January 1, 2014 and August 31, 2016 a total of 2,194
Housing Choice rental subsidy vouchers were issued to low-income Marin households. Nearly half
were unable to find landlords in the county willing to accept their vouchers and, as a result, lo st their
vouchers. Rental listings advertising “no Section 8” were found to be common in Marin. As of
September 2018, this practice still persists in San Rafael.
Current state law prohibits housing discrimination based on a person’s source of income (California
Government Code Section 12921), but case law has established that California’s source of income
discrimination law does not protect individuals or families with third party rental subsidies because
rental payments do not qualify as a source of income when they are paid directly to the landlord (i.e. the
third party provider pays the landlord directly, rather than the payment going to the tenant and then the
tenant paying the landlord). State law, however, does not preempt municipalities from adopting a
distinct Fair Housing Ordinance that recognizes third-party housing subsidies or vouchers as a source
of income.
The County of Marin, the Town of Fairfax, and the City of Novato have all passed source of income
ordinances to protect renters from potential discrimination. The proposed ordinance, modeled after
these other communities, would prohibit the following activities related to source of income:
A. To interrupt, terminate, or refuse to initiate any transaction in real property because of a tenant’s
source of income.
B. To include in the terms or conditions of a transaction in real property any discriminating clause,
condition or restriction due to the tenant’s source of income.
C. To refuse or restrict facilities, services, repairs or improvements because of the tenant’s source
of income.
D. To make, print, publish, advertise, or disseminate any notice, statement or advertisement with
respect to a transaction in real property that indicates preference, limitation or discrimination
based on source of income.
Importantly, the proposed ordinance would not prevent or hinder property owners and landlords from
screening renters and retaining freedom of choice based on other factors such as total income, credit
scores, rental history, references, etc. However, the source of income ordinance also establishes that
an income requirement can only be applied to the tenant’s portion of the rent if they receive a third party
SAN RAFAEL CITY COUNCIL AGENDA REPORT / Page: 3
subsidy. For programs like Section 8, the federal government establishes market-rate payment
standards for vouchers (see Exhibit 1 for the Marin Housing Authority’s current payment standards).
The voucher holder contributes 30% of their income, and the voucher covers the rest up to the payment
standard.
Exhibit 1 – Marin Housing Authority’s Current Payment Standards
Enforcement of the ordinance would occur thorough civil injunctive action. If a tenant believes the
ordinance has been violated, they may seek redress through the courts. In addition, local civil rights
advocacy agencies such as Legal Aide of Marin and Fair Housing Advocates of Northern California
have committed to monitor and contact housing providers that are inconsistent with the ordinance
based on complaints received.
PUBLIC OUTREACH: A courtesy notice (included as Attachment 2) was sent to the following
organizations: Marin County Community Development Agency, the Marin County Housing Authority,
the League of Women Voters, EDEN Housing, Marin Environmental Housing Collaborative,
Sustainable Marin, Sustainable San Rafael, Fair Housing of Marin, Marin Builders Association, Public
Advocates, Inc., Legal Aid of Marin, Marin Association of Realtors, Community Action Marin, Canal
Alliance, the San Rafael Chamber of Commerce, the Downtown San Rafael Business Improvement
District, Marin Continuum of Housing, the Housing Crisis Action Group, Aging Action Initiative, the
Homeless Policy Steering Committee, Ritter Center, St. Vincent’s, Homeward Bound, Buckelew
Programs, the Marin Center for Independent Living, the Marin Organizing Committee, and the
Federation of San Rafael Neighborhoods.
FISCAL IMPACT: There is no fiscal impact associated with this report.
OPTIONS: Staff is requesting feedback on the proposed source of income ordinance. In addition to the
overall direction of this regulation, staff is seeking feedback on the following two policy questions:
1. 10.98.010 – Purpose. Do we want to explicitly say we are prohibiting all discrimination based
on any source of income in general (e.g. child support, disability payments), or do we want to
SAN RAFAEL CITY COUNCIL AGENDA REPORT / Page: 4
more narrowly say we are prohibiting “discrimination on the basis of tenants’ participation in
third party rental assistance programs”?
2. 10.98.050 – Exceptions. Do we want this ordinance to apply to all rental housing in San Rafael,
or do we want to create an exception for certain types of units, for example, an owner-occupied
single family residence that rents out a room? The current draft ordinance exempts “any
housing unit in which the owner or any member of his/her family occupies one of the living units
and it is necessary for the owner to use either a bathroom or kitchen facility common with the
prospective tenant(s).” It does not, however, exempt units on the property that have their own
entrance and facilities, even if the overall property is owner-occupied (e.g. a junior second unit,
an accessory dwelling unit). The County of Marin originally passed their source of income
ordinance with the owner-occupied exception; however, within six months they amended the
ordinance to remove the exception. They cited the following two reasons. First, “the elimination
of this exception is intended to simplify the process for understanding and determining
Ordinance applicability.” Additionally, “in Marin, accessory dwelling units, junior accessory
dwelling units, and room rentals are the principal form of new housing stock that is likely to be
affordable to low- and moderate-income households.” In other words, insofar as these types of
units are meant to address the broader affordable housing crisis, exempting them from the
ordinance could undermine this long-term goal.
RECOMMENDED ACTION: Provide comments and feedback to staff.
ATTACHMENTS:
1. Draft Source of Income Ordinance.
2. Courtesy Notice
ORDINANCE NO. XXXXX
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF SAN RAFAEL AMENDING THE SAN RAFAEL
MUNICIPAL CODE BY ADDING NEW CHAPTER 10.98 RENTAL HOUSING SOURCE OF INCOME
DISCRIMINATION
THE CITY COUNCIL OF SAN RAFAEL DOES ORDAIN AS FOLLOWS
DIVISION 1. FINDINGS.
WHEREAS, It is unlawful under federal and state statutes to restrict housing choice on the basis
of race, color, disability, religion, sex, familial status, national origin, sexual orientation, marital status,
ancestry, age, and source of income; and
WHEREAS, the City of San Rafael is committed to providing and preserving fair and affordable
housing for all income levels; and
WHEREAS, the City of San Rafael wants to increase the availability of housing to all income
levels and eliminate any limitations in the provision of housing, including discrimination based on a
person’s source of income; and
WHEREAS, the Marin Housing Authority, which administers the Housing Voucher Programs
including the Housing Choice Voucher Program, also known as “Section 8,” and the Veterans Affairs
Supportive Housing Voucher Program reports a shortage of landlords participating in the program; and
WHEREAS, this shortage may reflect discrimination against tenants with Housing vouchers; and
WHEREAS, discrimination against housing voucher holders significantly reduces the stock of
rental housing that is available to them; and
WHEREAS, California Government Code §12921 prohibits housing discrimination based on
source of income as defined by §12955(p)(1), which does not protect Housing Choice voucher holders as
established by case law (SABI v. Sterling, 183 Cal.App.4th 916 (2010)); and
WHEREAS, California and federal law further requires the County to identify impediments to
providing affordable housing and to develop strategies for removing those impediments; and
WHEREAS, the City from time to time receives funding from the County to support its affordable
housing initiatives; and
WHEREAS, in order to fulfill its commitment to fair housing, to increase affordable housing
opportunities, and to fulfill its legal obligations it is necessary to prohibit housing discrimination based
on source of income.
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF SAN RAFAEL DOES HEREBY ORDAIN AS
FOLLOWS:
DIVISION 2. MUNICIPAL CODE AMENDMENT
Chapter 10.98 - RENTAL HOUSING SOURCE OF INCOME DISCRIMINATION
10.98.010 - Purpose.
It is the purpose and intent of the City of San Rafael in enacting this section that source of income-based
discrimination does not occur in rental housing. This section does not intend to restrict or limit operational
aspects of rental housing management, such as establishment of tenant rules, security requirements or
other landlord/tenant conditions not related to sources of income or financial discrimination.
10.98.020 - Definitions.
For purposes of this section, the following definitions shall apply:
a. “Source of income” as used in this chapter means all lawful sources of income and/or all
payments from a rental assistance program, homeless assistance program, security deposit
assistance program or housing subsidy program, provided such funds are not paid directly to the
tenant.
b. “Person” means any individual, firm, corporation, or other organization or group of persons
however organized.
10.98.030 - Prohibited Activity.
It is unlawful for any person to do any of the following related to the rental of real property for residential
use as wholly or partially based on source of income, as defined herein:
A. To interrupt, terminate, or fail or refuse to initiate or conduct any transaction in real property,
including, but not limited to, the rental thereof; to require different terms for such transaction; or
falsely to represent that an interest in real property is not available for transaction;
B. To include in the terms or conditions of a transaction in real property any discriminating clause,
condition or restriction due to source of income;
C. To refuse or restrict facilities, services, repairs or improvements for any tenant or lessee;
D. To make, print, publish, advertise, or disseminate in any way, or cause to be made, printed or
published, advertised or disseminated in any way, any notice, statement or advertisement with
respect to a transaction in real property, or with respect to financing related to any such
transaction, which unlawfully indicates preference, limitation or discrimination based on source of
income.
E. It is unlawful for any person to use a financial or income standard for the rental of housing that
does either of the following:
1. Fails to account for any rental payments or portions of rental payments that will be
made by other individuals or organizations, including by a rental assistance program,
homeless assistance program, security deposit assistance program or housing
subsidy program, on the same basis as rental payments to be made directly by the
tenant or prospective tenant;
2. Fails to account for the aggregate income of persons residing together or proposing
to reside together or an aggregate income of tenants or prospective tenants and their
cosigners or proposed cosigners on the same basis as the aggregate income of
married persons residing together or proposing to reside together, so long as legal
occupancy limits are not exceeded.
10.98.040 - Exceptions.
A. Nothing in this chapter shall be construed to apply to the rental or leasing of any housing unit
in which the owner or any member of his/her family occupies one of the living units and it is
necessary for the owner to use either a bathroom or kitchen facility common with the prospective
tenant(s).
B. Nothing in this section shall be deemed to permit any rental or occupancy of any dwelling unit
or commercial space otherwise prohibited by law.
C. Nothing in this chapter shall be construed to prohibit a requirement for a guarantor or cosigner
based on amount of income or credit worthiness.
10.98.050 - Civil injunctive relief.
Any aggrieved person may enforce the provisions of this section by means of a civil injunctive action.
Any person who commits, or proposes to commit, an act in violation of this section may be enjoined
therefrom by any court of competent jurisdiction. An action for injunction under this section may be
brought by any aggrieved person, by county counsel, the district attorney, the City attorney, or by any
person or entity which will fairly and adequately represent the interests of the protected class.
10.98.060 - Civil liability.
Any person who violates any of the provisions of this section or who aids in the violation of any provisions
of this section is liable for, and the court must award to the individual whose rights are violated, three
times the amount of special and general damages, or, in the case of unlawful discrimination in the rental
of a unit, three times the amount of one month’s rent that the landlord charges for the unit in question.
The court may award in addition thereto not less than two hundred dollars ($200.00) but not more than
four hundred ($400.00), together with attorney’s fees, costs of action, and punitive damages. Civil actions
filed pursuant to this section must be filed within one year of the alleged discriminatory acts.
10.98.070 - Criminal penalty.
Any person who violates any provision of this chapter shall be deemed guilty of a misdemeanor and upon
conviction thereof shall be punished by a fine of not more than one thousand dollars ($1,000.00) or by
imprisonment in the county jail for a period not exceeding six months, or both.
DIVISION 3. CALIFORNIA ENVIRONMENTAL QUALITY ACT.
This Ordinance is exempt from the California Environmental Quality Act (“CEQA”) pursuant to the State
CEQA Guidelines, since it can be seen with certainty that there is no possibility that this Ordinance or its
implementation would have a significant effect on the environment (14 Cal. Code Regs. Section
15061(b)(3)).
DIVISION 4. PUBLICATION; EFFECTIVE DATE
This Ordinance shall be published once in full before its final passage in a newspaper of general
circulation published and circulated in the City of San Rafael, County of Marin, State of California and
shall be in full force and effect 30 days after its final passage.
________________________________
GARY O. PHILLIPS, Mayor
ATTEST:
___________________________
LINDSAY LARA, City Clerk
The foregoing Ordinance No. _____ was read and introduced at a regular meeting of the City Council of
the City of San Rafael on the ______ day of _______, 2018, and was ordered passed to print by the
following vote, to wit:
AYES: Councilmembers:
NOES: Councilmembers:
ABSENT: Councilmembers:
and will come up for adoption as an Ordinance of the City of San Rafael at a regular meeting of the City
Council to be held on the ______ day of _________________, 2018.
________________________________
LINDSAY LARA, City Clerk
NOTICE OF PUBLIC MEETING – CITY COUNCIL
You are invited to attend the City Council meeting on the following proposed project:
PROJECT: RENTER PROTECTION- DRAFT ORDINANCE FOR SOURCE OF INCOME DISCRIMINATION - Presentation on and discussion
of a draft “source of income discrimination” ordinance, which would prohibit a landlord from explicitly refusing to accept governme ntal funding
sources from a potential tenant (e.g., Section 8 voucher). This topic is scheduled as a follow-up discussion to the City Council’s general housing
discussion on August 20, 2018; File No.: P18-010.
State law (California Environmental Quality Act) requires that this project be reviewed to determine if a study of potential environmental effects is required. It has
been determined that this project, which is an informational report, will have no physical impact on the environment . Therefore, the discussion is classified as a
planning study, which qualifies for a Statutory Exemption from the provisions of the California Environmental Quality Act Guidelines under 14 CRR Section 15262.
MEETING DATE/TIME/LOCATION: Monday, October 1, 2018, 7:00 p.m. City Council Chambers, 1400 Fifth Ave at D St, San Rafael, CA
FOR MORE INFORMATION: Contact Andrew Hening, Director of Homeless Planning & Outreach at (415) 485-3055 or
Andrew.hening@cityofsanrafael.org. Mr. Hening’s office is located at City Hall, 3rd floor, which is open from 8:30 a.m. to 4:30 p.m. on Monday
through Thursday, and from 8:30 a.m. to 1:30 p.m. on Friday. You can also view the staff report after 5:00 p.m. on the Friday before the meeting
at http://www.cityofsanrafael.org/meetings.
WHAT WILL HAPPEN: You can comment on the source of income discrimination topic and draft ordinance. The City Council will consider all
public testimony. The City Council will be requested to provide direction on moving forward with an ordinance, which will require a scheduled
public hearing.
IF YOU WANT TO COMMENT: You can send written correspondence by email to the address above, or by mail/hand delivery to the City of San
Rafael, 1400 5th Avenue, San Rafael, CA 94901.
At the above time and place, all written correspondence received will be noted and all interested parties will be heard. If you challenge in court the matter described above, you may be
limited to raising only those issues you or someone else raised at the public hearing described in this notice, or in written correspondence delivered at, or prior to, the above referenced
public hearing (Government Code Section 65009 (b) (2)).
Judicial review of an administrative decision of the City Council must be filed with the Court not later than the 90th day following the date of the Council’s decision. (Code of Civil
Procedure Section 1094.6)
Sign Language and interpretation and assistive listening devices may be requested by calling (415) 485-3085 (voice) or (415) 485-3198 (TDD) at least 72 hours in advance. Copies of
documents are available in accessible formats upon request.
Public transportation to City Hall is available through Golden Gate Transit, Line 22 or 23. Para-transit is available by calling Whistlestop Wheels at (415) 454-0964.
To allow individuals with environmental illness or multiple chemical sensitivity to attend the meeting/hearing, individuals are requested to refrain from wearing scented products.
NOTICE OF PUBLIC MEETING – CITY COUNCIL
You are invited to attend the City Council meeting on the following proposed project:
PROJECT: RENTER PROTECTION- DRAFT ORDINANCE FOR SOURCE OF INCOME DISCRIMINATION - Presentation on and discussion
of a draft “source of income discrimination” ordinance, which would prohibit a landlord from explicitly refusing to accept governmental funding
sources from a potential tenant (e.g., Section 8 voucher). This topic is scheduled as a follow-up discussion to the City Council’s general housing
discussion on August 20, 2018; File No.: P18-010.
State law (California Environmental Quality Act) requires that this project be reviewed to determine if a study of potential environmental effects is required. It has
been determined that this project, which is an informational report, will have no physical impact on the environment. Therefore, the discussion is classified as a
planning study, which qualifies for a Statutory Exemption from the provisions of the California Environmental Quality Act Guidelines under 14 CRR Section 15262.
MEETING DATE/TIME/LOCATION: Monday, October 1, 2018, 7:00 p.m. City Council Chambers, 1400 Fifth Ave at D St, San Rafael, CA
FOR MORE INFORMATION: Contact Andrew Hening, Director of Homeless Planning & Outreach at (415) 485-3055 or
Andrew.hening@cityofsanrafael.org. Mr. Hening’s office is located at City Hall, 3rd floor, which is open from 8:30 a.m. to 4:30 p.m. on Monday
through Thursday, and from 8:30 a.m. to 1:30 p.m. on Friday. You can also view the staff report after 5:00 p.m. on the Friday before the meeting
at http://www.cityofsanrafael.org/meetings.
WHAT WILL HAPPEN: You can comment on the source of income discrimination topic and draft ordinance. The City Council will consider all
public testimony. The City Council will be requested to provide direction on moving forward with an ordinance, which will require a schedule d
public hearing.
IF YOU WANT TO COMMENT: You can send written correspondence by email to the address above, or by mail/hand delivery to the Community
Development Department, Planning Division, City of San Rafael, 1400 5 th Avenue, San Rafael, CA 94901.
At the above time and place, all written correspondence received will be noted and all interested parties will be heard. If you challenge in court the matter described above, you may be
limited to raising only those issues you or someone else raised at the public hearing described in this notice, or in written correspondence delivered at, or prior to, the above referenced
public hearing (Government Code Section 65009 (b) (2)).
Judicial review of an administrative decision of the City Council must be filed with the Court not later than the 90th day following the date of the Council’s decision. (Code of Civil
Procedure Section 1094.6)
Sign Language and interpretation and assistive listening devices may be requested by calling (415) 485-3085 (voice) or (415) 485-3198 (TDD) at least 72 hours in advance. Copies of
documents are available in accessible formats upon request.
Public transportation to City Hall is available through Golden Gate Transit, Line 22 or 23. Para-transit is available by calling Whistlestop Wheels at (415) 454-0964.
To allow individuals with environmental illness or multiple chemical sensitivity to attend the meeting/hearing, individuals are requested to refrain from wearing scented products.
Community Development Department
1400 5th Avenue
San Rafael, CA 94901
«PROP_ID»
«NAME»
«ADDRESS»
«CITY», «STATE» «ZIP4» «Next Record»
PUBLIC NOTICE REGARDING A PROPOSED PROJECT IN YOUR NEIGHBORHOOD
Community Development Department
1400 5th Avenue
San Rafael, CA 94901
«PROP_ID»
«NAME»
«ADDRESS»
«CITY», «STATE» «ZIP4»
PUBLIC NOTICE REGARDING A PROPOSED PROJECT IN YOUR NEIGHBORHOOD