Bill Text: CA AB1241 | 2021-2022 | Regular Session | Amended

California Assembly Bill 1241 (Prior Session Legislation)

Bill Title: Rental housing unlawful housing practices: applications: criminal records.

Sponsorship: Partisan Bill (Democrat 1)

Status: (Failed) 2022-02-01 - From committee: Filed with the Chief Clerk pursuant to Joint Rule 56. [AB1241 Detail]

Download: California-2021-AB1241-Amended.html

Amended IN Assembly January 03, 2022

Amended IN Assembly March 25, 2021

CALIFORNIA LEGISLATURE— 2021–2022 REGULAR SESSION

Assembly Bill

No. 1241

Introduced by Assembly Member Jones-Sawyer

February 19, 2021

An act to amend Sections 12955.8, 12980, and 12981 of, and to add Section 12955.05 to, the Government Code, relating to rental housing.

LEGISLATIVE COUNSEL'S DIGEST

AB 1241, as amended, Jones-Sawyer. Rental housing unlawful housing practices: applications: criminal records.

Existing law, the California Fair Employment and Housing Act, generally prohibits housing discrimination with respect to the personal characteristics of race, color, religion, sex, gender, gender identity, gender expression, sexual orientation, marital status, national origin, ancestry, familial status, source of income, disability, veteran or military status, or genetic information.

This bill would make it an unlawful housing practice for the owner of a rental housing accommodation to inquire about, or require an applicant for a rental housing accommodation to disclose, a criminal record during the initial application assessment phase, as defined, unless otherwise required by state or federal law. After the successful completion of the initial application assessment phase, the bill would permit an owner to request a criminal background check of the applicant and consider an applicant’s criminal record in deciding whether to rent or lease to the applicant. The bill would require an owner who is considering denying an application on the basis of the applicant’s criminal record to, within 5 days of receiving the information that is the basis of the possible denial, provide the applicant with a written statement listing the reasons for the possible denial before making a final decision. If, within 3 days of receipt of the written statement of the possible denial, the applicant provides the owner notice of evidence demonstrating the inaccuracy of the item or items within the applicant’s criminal record or evidence of rehabilitation or other mitigating factors, as specified, the bill would require the owner to reconsider their decision for a specified time, and would require the owner to provide written notification to the applicant of the owner’s final decision to deny the application.

The bill would prohibit the ~~owner from requiring~~ owner, in a rental application or as otherwise part of the application ~~process disclosure of, or, if such information is received, denying a dwelling~~ process, from seeking, considering, using, or taking an adverse action based in whole or in part on specified information or occurrences, including, among others, arrests that did not result in conviction, convictions that have been voided, and juvenile justice determinations. The bill would also require an owner to provide an applicant notice, as specified, in the application itself and before requesting a criminal background check. The bill would provide that its provisions do not apply under specified circumstances, including if the rental housing accommodation is a single-family home, duplex, triplex, or accessory dwelling unit in which the owner occupies a unit or bedroom as a principal residence.

The act provides that, in connection with specified unlawful practices related to housing discrimination, proof of a violation causing a discriminatory effect is shown if an act or failure to act has the effect, regardless of intent, of unlawfully discriminating on the basis of any of the personal characteristics described above. The act provides that 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 the act 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.

This bill would instead provide that 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 the act if the business establishment can establish that the action or inaction is necessary to achieve one or more substantial, legitimate, nondiscriminatory business interests and effectively carries out the significant business interest it is alleged to serve.

The act establishes the Department of Fair Employment and Housing, under the direction of an executive officer to, among other things, receive, investigate, conciliate, mediate, and prosecute complaints alleging practices made unlawful under the act. The act establishes procedures for the prevention and elimination of discrimination in housing made unlawful under its provisions, including authorizing any person claiming to be aggrieved by an alleged violation of specified provisions to file a verified complaint in writing with the department. The act requires the department to investigate an alleged violation and, in the case of failure to eliminate a violation that has occurred, or is about to occur, through conference, conciliation, mediation, or persuasion, requires the director to file a civil action in the name of the department on behalf of that person.

This bill would extend the application of those enforcement procedures to the above-described unlawful housing ~~practice.~~ practices.

Vote: MAJORITY Appropriation: NO Fiscal Committee: YES Local Program: NO

The people of the State of California do enact as follows:

SECTION 1.

It is the intent of the Legislature to provide the formerly incarcerated an opportunity to receive a thorough and fair vetting when seeking housing. Nothing in this act is intended to compel, or otherwise require, a landlord or property owner to provide housing to any individual.

SEC. 2.

Section 12955.05 is added to the Government Code, to read:

12955.05.

(a) For purposes of this section:

(1) “Criminal record” means criminal offender record information, as defined in Section 13102 of the Penal Code.

(2) “Evidence of rehabilitation or other mitigating factors” includes, but is not limited to, the following:

(A) A person’s satisfactory compliance with all terms and conditions of parole or probation, provided that the person’s inability to pay fines, fees, and restitution due to indigence shall not be considered noncompliance with terms and conditions of parole or probation.

(B) Employer recommendations, particularly related to a person’s postconviction employment.

(C) Educational attainment or vocational or professional training since conviction, including training received while incarcerated.

(D) Completion of or active participation in rehabilitative treatment, including alcohol or drug treatment.

(E) Letters of recommendation from community organizations, counselors, case managers, teachers, community leaders, parole officers, and probation officers who have observed the person since the person’s conviction.

(F) A person’s familial relationship with a person who may be currently residing in the housing accommodation.

(G) The age of the person at the time of the conviction.

(H) Explanation of precedent coercive conditions, including physical, emotional, or sexual abuse, untreated substance abuse, ~~or mental illness~~ mental illness, or disability that contributed to the conviction.

(I) The amount of time that has passed since the date of conviction.
(J) Evidence that the individual has maintained a good tenant history before or after the conviction, or both.

(3) “Initial application assessment phase” means the period before a decision is made to rent or lease a rental housing accommodation, which includes the time during which a person seeking a rental housing accommodation requests, and is provided with, an application and the time during which the assessment of rental history and credit history, the checking of sources of income, and the scheduling of an applicant interview routinely occur.

(b) (1) It is an unlawful housing practice for the owner of a rental housing accommodation to inquire about, or to require an applicant for a rental housing accommodation to disclose, a criminal record during the initial application assessment phase, unless otherwise required by state or federal law.

(2) Following the successful completion of the initial application assessment phase, an owner of a rental housing accommodation may request a criminal background check of the applicant and consider an applicant’s criminal record in deciding whether to rent or lease. If the owner of a rental housing accommodation is considering denying an application to rent or lease after requesting a criminal background check and considering an applicant’s criminal record, and the possible denial is based on the applicant’s criminal record, the owner shall, within five days of receiving the information that is the basis of the possible denial, provide the applicant with a written statement listing the reasons for the possible denial before making a final decision.

(3) If, within three days of receipt of the written statement described in paragraph (2), the applicant provides the owner of the rental housing accommodation notice orally, or in writing if requested by the owner of the rental housing accommodation, of evidence demonstrating the inaccuracy of the item or items within the applicant’s criminal record or evidence of rehabilitation or other mitigating factors, the owner of the housing accommodation shall reconsider their decision in light of the information and delay the denial for no longer than five days after receipt of the information. If, upon review of the applicant’s criminal record and the evidence of rehabilitation and mitigating factors, the applicant still has an unacceptable criminal record, then the owner of the housing accommodation shall notify the applicant of the owner’s final decision to deny the application in writing.

(c) The owner of ~~the~~ a rental housing accommodation shall ~~not~~ not, in an application for rental housing accommodations or as otherwise part of the application ~~process require disclosure of, or, if such information is received, deny a dwelling~~ process, seek, consider, use, or take an adverse action based in whole or in part on any of the following:

(1) A previous arrest that did not result in a conviction.

(2) Participation in, or completion of, a diversion or a deferral of judgment program.

(3) A conviction that has been judicially dismissed, expunged, voided, invalidated, or otherwise rendered inoperative, including, but not limited to, as is provided under Section 1203.4, 1203.4a, or 1203.41 of the Penal Code.

(4) A determination or adjudication in the juvenile justice system or information regarding a matter considered in or processed through the juvenile justice system.

(5) Information pertaining to an offense other than a felony or misdemeanor.

(6) A conviction that is not directly related to one or more substantial, legitimate, nondiscriminatory purposes that support the owner’s practice. In determining whether a criminal conviction is directly related, a practice should include consideration of the nature and severity of the crime and the amount of time that has passed since the criminal conduct occurred.
(7) Information pertaining to a conviction that occurred more than seven years before the date of the application for rental housing accommodations.

(d) (1) An owner of a rental housing accommodation that uses criminal records as part of the screening criteria to evaluate an applicant shall include the following notice in the application for tenancy of a rental housing accommodation:

(2) “This property will conduct a criminal background check as the final part of the screening process. You are not required, and the owner of the property may not require you, to disclose a criminal record until your application has satisfied all of the property’s other screening criteria, unless otherwise required by state or federal law. If your application does not satisfy the property’s criteria with respect to criminal records, you will have three days after the possible denial to provide orally, or in writing if so requested by the owner of the property, evidence demonstrating the inaccuracy of the item or items within your criminal record that form the basis of the possible denial, or evidence of rehabilitation or other mitigating factors.”

(e) (1) An owner of a rental housing accommodation that requests a criminal background check of the applicant shall first provide the following notice to the applicant:

(2) “The owner of this property is requesting a criminal background check. If your application does not satisfy the property’s criteria with respect to criminal records, you will have three days after the possible denial to provide orally, or in writing if so requested by the owner of the property, evidence demonstrating the inaccuracy of the item or items within your criminal record that form the basis of the possible denial, or evidence of rehabilitation or other mitigating factors.”

(f) This section shall not apply under any of the following circumstances:

(1) The rental housing accommodation is a single-family home, duplex, triplex, or accessory dwelling unit in which the owner occupies a unit or bedroom as a principal residence.

(2) A tenant of the rental housing accommodation seeks a cotenant or roommate.

(3) The rental housing accommodation is provided by a nonprofit entity.

(4) The owner does not rent, or advertise for rental, the rental housing accommodation to the general public.

(g) This section shall not abrogate or otherwise limit the rights and protections provided by housing laws that are outside the scope of rental housing.

SEC. 3.

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, gender, gender identity, gender expression, sexual orientation, marital status, national origin, ancestry, familial status, source of income, disability, veteran or military status, or genetic information 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, gender, gender identity, gender expression, sexual orientation, marital status, national origin, ancestry, familial status, source of income, disability, veteran or military status, or genetic information. 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 achieve one or more substantial, legitimate, nondiscriminatory business interests and effectively carries out the significant business interest 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.

(c) An owner of a rental housing accommodation who satisfies the requirements of Section 12955.05 shall not be in violation of that section with respect to the use of criminal records, as defined in Section 12955.05, in screening applicants for tenancy.

SEC. 4.

Section 12980 of the Government Code is amended to read:

12980.

This article governs the procedure for the prevention and elimination of discrimination in housing made unlawful pursuant to Article 2 (commencing with Section 12955) of Chapter 6.

(a) Any person claiming to be aggrieved by an alleged violation of Section 12955, 12955.05, 12955.1, or 12955.7 may file with the department a verified complaint in writing that shall state the name and address of the person alleged to have committed the violation complained of, and that shall set forth the particulars of the alleged violation and contain any other information required by the department.

The filing of a complaint and pursuit of conciliation or remedy under this part shall not prejudice the complainant’s right to pursue effective judicial relief under other applicable laws, but if a civil action has been filed under Section 52 of the Civil Code, the department shall terminate proceedings upon notification of the entry of final judgment unless the judgment is a dismissal entered at the complainant’s request.

(b) The Attorney General or the director may, in a like manner, make, sign, and file complaints citing practices that appear to violate the purpose of this part or any specific provisions of this part relating to housing discrimination.

No complaint may be filed after the expiration of one year from the date upon which the alleged violation occurred or terminated.

(c) The department may thereupon proceed upon the complaint in the same manner and with the same powers as provided in this part in the case of an unlawful practice, except that where the provisions of this article provide greater rights and remedies to an aggrieved person than the provisions of Article 1 (commencing with Section 12960), the provisions of this article shall prevail.

(d) Upon the filing of a complaint, the department shall serve notice upon the complainant of the time limits, rights of the parties, and choice of forums provided for under the law.

(e) The department shall commence proceedings with respect to a complaint within 30 days of filing of the complaint.

(f) An investigation of allegations contained in any complaint filed with the department shall be completed within 100 days after receipt of the complaint, unless it is impracticable to do so. If the investigation is not completed within 100 days, the complainant and respondent shall be notified, in writing, of the department’s reasons for not doing so.

(g) Upon the conclusion of each investigation, the department shall prepare a final investigative report containing all of the following:

(1) The names of any witnesses and the dates of any contacts with those witnesses.

(2) A summary of the dates of any correspondence or other contacts with the aggrieved persons or the respondent.

(3) A summary of witness statements.

(4) Answers to interrogatories.

(5) A summary description of other pertinent records.

A final investigative report may be amended if additional evidence is later discovered.

(h) If a civil action is not brought by the department within 100 days after the filing of a complaint, or if the department earlier determines that no civil action will be brought, the department shall promptly notify the person claiming to be aggrieved. This notice shall, in any event, be issued no more than 30 days after the date of the determination or 30 days after the date of the expiration of the 100-day period, whichever date first occurs. The notice shall indicate that the person claiming to be aggrieved may bring a civil action under this part against the person named in the verified complaint within the time period specified in Section 12989.1. The notice shall also indicate, unless the department has determined that no civil action will be brought, that the person claiming to be aggrieved has the option of continuing to seek redress for the alleged discrimination through the procedures of the department if the person does not desire to file a civil action. The superior courts of the State of California shall have jurisdiction of these actions, and the aggrieved person may file in these courts. The action may be brought in any county in the state in which the violation is alleged to have been committed, or in the county in which the records relevant to the alleged violation are maintained and administered, but if the defendant is not found within that county, the action may be brought within the county of the defendant’s residence or principal office. A copy of any complaint filed pursuant to this part shall be served on the principal offices of the department. The remedy for failure to send a copy of a complaint is an order to do so. In a civil action brought under this section, the court, in its discretion, may award to the prevailing party reasonable attorney’s fees.

(i) All agreements reached in settlement of any housing discrimination complaint filed pursuant to this section shall be made public, unless otherwise agreed by the complainant and respondent, and the department determines that the disclosure is not required to further the purposes of the act.

(j) All agreements reached in settlement of any housing discrimination complaint filed pursuant to this section shall be agreements between the respondent and complainant, and shall be subject to approval by the department.

SEC. 5.Section 12981 of the Government Code is amended to read:
12981.
(a)In the case of failure to eliminate a violation of Section 12955, 12955.05, 12955.1, or 12955.7 that has occurred, or is about to occur, through conference, conciliation, mediation, or persuasion, or in advance thereof if circumstances warrant, the director shall bring a civil action in the name of the department on behalf of the aggrieved person as a real party in interest, notwithstanding Section 12971, in the same manner and with the same powers as provided in Section 12965, except that where the provisions of this article provide greater rights and remedies to an aggrieved person than Section 12965, the provisions of this article shall prevail. Prior to filing a civil action, the department shall require all parties to participate in the department’s mandatory dispute resolution division free of charge to the parties in an effort to resolve the dispute without litigation. A civil action alleging an unfair housing practice shall be issued within 100 days after the filing of a complaint unless it is impracticable to do so. The civil action shall be filed in any county in the state in which the unlawful practice is alleged to have been committed, in the county in which the records relevant to that practice are maintained and administered, or in the county in which the aggrieved person would have resided in the housing accommodation. If the defendant is not found within that county, the action may be filed in the county of the defendant’s residence or principal office. Any aggrieved person may intervene as a matter of right in the proceeding, and the appeal or other judicial review of that proceeding.
(b)If the department determines that an allegation concerns the legality of any zoning or other land use law or ordinance, the department or the Attorney General shall take appropriate action with respect to the complaint according to the procedures established in this part for other complaints of housing discrimination.
(c)Within one year of the effective date of every final order or decision issued pursuant to this part, the department shall conduct a compliance review to determine whether the order or decision has been fully obeyed and implemented.
(d)Whenever the department has reasonable cause to believe that a respondent has breached a conciliation agreement signed by the department, the department shall initiate a civil action to enforce the agreement.

SEC. 5.

Section 12981 of the Government Code, as amended by Section 8 of Chapter 278 of the Statutes of 2021, is amended to read:

12981.

(a) (1) In the case of failure to eliminate a violation of Section 12955, 12955.05, 12955.1, or 12955.7 that has occurred, or is about to occur, through conference, conciliation, mediation, or persuasion, or in advance thereof if circumstances warrant, the director shall bring a civil action in the name of the department on behalf of the aggrieved person as a real party in interest, notwithstanding Section 12971, in the same manner and with the same powers as provided in Section 12965, except that where the provisions of this article provide greater rights and remedies to an aggrieved person than Section 12965, the provisions of this article shall prevail.

(2) Prior to filing a civil action pursuant to paragraph (1), the department shall require all parties to participate in the department’s mandatory dispute resolution division free of charge to the parties in an effort to resolve the dispute without litigation.

(3) A civil action brought pursuant to paragraph (1) shall be filed within 100 days after the filing of a complaint unless it is impracticable to do so. This deadline to file a civil action pursuant to paragraph (1) shall be tolled during a mandatory or voluntary dispute resolution proceeding commencing on the date the department refers the case to its dispute resolution division and ending on the date the department’s dispute resolution division closes its mediation record and returns the case to the division that referred it.

(4) The civil action shall be filed in any county in the state in which the unlawful practice is alleged to have been committed, in the county in which the records relevant to that practice are maintained and administered, or in the county in which the aggrieved person would have resided in the housing accommodation. If the defendant is not found within that county, the action may be filed in the county of the defendant’s residence or principal office. Any aggrieved person may intervene as a matter of right in the proceeding, and the appeal or other judicial review of that proceeding.

(b) If the department determines that an allegation concerns the legality of any zoning or other land use law or ordinance, the department or the Attorney General shall take appropriate action with respect to the complaint according to the procedures established in this part for other complaints of housing discrimination.

(c) Within one year of the effective date of every final order or decision issued pursuant to this part, the department shall conduct a compliance review to determine whether the order or decision has been fully obeyed and implemented.

(d) Whenever the department has reasonable cause to believe that a respondent has breached a conciliation agreement signed by the department, the department shall initiate a civil action to enforce the agreement.