Existing law 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, or genetic information.

This bill would make it unlawful for the owner of any rental housing accommodation to deny the rental or lease of a housing accommodation without first satisfying specified requirements relating to the application process. The bill would prohibit the owner of a rental housing accommodation from inquiring about, or requiring an applicant for rental housing accommodation to disclose, a criminal record during the initial application assessment phase, as defined, unless otherwise required by state or federal law. The bill would permit an owner of a rental housing accommodation, after the successful completion of the initial application assessment phase, to request a criminal background check of the applicant and consider an applicants criminal record in deciding whether to rent or lease to the applicant. The bill would require the owner of a rental housing accommodation who is considering denying an application to rent or lease on the basis of the applicants criminal record, to, within 5 days of receiving the information that is the basis of the potential denial, provide the applicant with a written statement listing the reasons for the possible denial before making a final decision. If, within 14 days of receipt of the written statement of the potential denial, the applicant provides the owner notice of evidence demonstrating the inaccuracy of the item or items within the applicants criminal record or evidence of rehabilitation or other mitigating factors, as specified, the bill would require the owner to reconsider his or her decision for a specified time, and would require the owner to provide written notification to the applicant of his or her final decision to deny the application. The bill would prohibit the owner of the rental housing accommodation from requiring in an application for rental accommodation or as otherwise part of the application process disclosure of, or, if such information is received, denying a dwelling 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.

Date of Hearing: April 24, 2019

ASSEMBLY COMMITTEE ON HOUSING AND COMMUNITY DEVELOPMENT

David Chiu, Chair

ABPCA Bill Id:AB 53 (

Author:Jones-Sawyer) – As Amended Ver:April 22, 2019

SUBJECT: Rental housing discrimination: applications: criminal records

SUMMARY: Makes specified changes to when a landlord may inquire about a prospective tenant's criminal record. Specifically, this bill:

1. States that it is then intent of the Legislature to provide the formerly incarcerated an opportunity to receive thorough and fair vetting when seeking housing. States that nothing in this Act is intended to compel, or otherwise require, a landlord or property owner to provide housing to any individual.
2. Provides that a landlord of a residential rental property who satisfies the procedure for using criminal records to screen applicants for tenancy provided for in this bill shall not be found liable under the Fair Employment and Housing Act (Act) with respect to the use of criminal records in screening applicants for tenancy.
3. Provides that, following the initial application assessment phase, an owner of a rental housing accommodation may request a criminal background check and consider an applicant’s criminal record in deciding whether to rent or lease.
4. Provides that, if the owner of a rental housing accommodation is considering denying an application to rent or lease after requesting a criminal background check or considering an applicant’s criminal record, they 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.
5. Provides that if, within two days of receipt of the written statement listing the reasons for the possible denial, 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 must delay the denial for a reasonable period after receipt of the information and reconsider their decision in light of the information.
6. Provides that 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 must notify the applicant of their final decision to deny the application in writing.
7. Defines “criminal record” as criminal offender information, as defined in Section 13102 of the Penal Code.
8. Defines “evidence of rehabilitation or other mitigating factors” as including, but not limited to, the following:
   1. 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;
   2. Employer recommendations, particularly a person’s post-conviction employment;
   3. Educational attainment or vocational or professional training since conviction, including training received while incarcerated;
   4. Completion of or active participation in rehabilitative treatment, including alcohol or drug treatment;
   5. Letters of recommendation from community organizations, counselors, case managers, teachers, community leaders, parole officers, and probation officers who have observed the person since their conviction;
   6. A person’s familial relationship with a person who may be currently residing in the housing accommodation;
   7. The age of the person at the time of the conviction; and
   8. Explanation of precedent coercive conditions, including physical, emotional, or sexual abuse, untreated substance abuse, or mental illness that contributed to the conviction.
9. Defines “initial application assessment phase” as the period before a decision is made to rent or lease, which shall include the request for, and the provision of, an application to a person seeking a rental housing accommodation and including 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.
10. Requires an application for tenancy of residential rental property to contain the following notice if criminal records will be part of the screening criteria used to evaluate the applicant:

“This property will conduct a criminal background check as the final part of the screening process. You are not required and the landlord 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 two days after denial to provide orally or in writing, at the request of 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”

1. Provides that, with regard to an application for rental housing accommodations, the owner of the housing accommodation shall not require disclosure of, or, if such information is received, deny a dwelling based in whole or in part on 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.

EXISTING LAW:

1. Declares it to be against public policy the practice of discrimination because of race, color, religion, sex, gender, gender identity, gender expression, sexual orientation, marital status, national origin, ancestry, familial status, source of income, disability, or genetic information; and that every person has a civil right to be given the opportunity to seek, obtain, or hold employment and housing without facing discrimination based on these protected classes (Government Code Sections 12920-12921).
2. Declares it unlawful, pursuant to FEHA, for any housing accommodation owner to inquire about; make known any preference or limitation as to; discriminate; or harass a person based on the person’s race, color, religion, sex, gender, gender identity, gender expression, sexual orientation, marital status, national origin, ancestry, familial status, source of income, disability, or genetic information (Government Code Section 12955).
3. Provides that "discrimination" does not include either of the following:
   1. Refusal to rent or lease a portion of an owner-occupied single-family house to a person as a roomer or boarder living within the household, provided that no more than one roomer or boarder is to live within the household, and the owner complies with existing prohibitions relating to discriminatory notices, statements, and advertisements.
   2. Where the sharing of living areas in a single dwelling unit is involved, the use of words stating or tending to imply that the housing being advertised is available only to persons of one sex.

(Government Code Section 12927)

1. Defines "housing accommodation" as any building, structure, or portion thereof that is occupied as, or intended for occupancy as, a residence by one or more families and any vacant land that is offered for sale or lease for the construction thereon of any building, structure, or portion thereof intended to be so occupied (Government Code Section 12927).
2. Defines "owner" as including the lessee, sublessee, assignee, managing agent, real estate broker or salesperson, or any person having any legal or equitable right of ownership or possession or the right to rent or lease housing accommodations, and includes the state and any of its political subdivisions and any agency thereof (Government Code Section 12927).
3. Prohibits, under the Unruh Civil Rights Act, business establishments from discriminating on the basis of sex (including gender), race, color, religion, ancestry, national origin, disability, medical condition, genetic information, marital status, or sexual orientation, and provides civil remedies for violations of its provisions (Civil Code Section 51 et seq.).
4. Provides that, when a landlord or their agent receives a request to rent a residential property from an applicant, the landlord or their agent may charge that applicant an application screening fee to cover the costs of obtaining information about the applicant. The information requested and obtained by the landlord or their agent may include, but is not limited to, personal reference checks and consumer credit reports produced by consumer credit reporting agencies (Civil Code Section 1950.6).
5. Provides that a landlord or their agent may, but is not required to, accept and rely upon a consumer credit report presented by an applicant (Civil Code Section 1950.6).
6. Defines "criminal offender information" as records and data compiled by criminal justice agencies for purposes of identifying criminal offenders and of maintaining as to each such offender a summary of arrests, pretrial proceedings, the nature and disposition of criminal charges, sentencing, incarceration, rehabilitation, and release. This information must be restricted to that which is recorded as the result of an arrest, detention, or other initiation of criminal proceedings or of any consequent proceedings related thereto (Penal Code Section 13102).
7. Defines "state summary criminal history information" as the master record of information compiled by the Attorney General (AG) pertaining to the identification and criminal history of any person, such as name, date of birth, physical description, fingerprints, photographs, dates of arrests, arresting agencies and booking numbers, charges, dispositions, and similar data about the person. It does not include records and data compiled by criminal justice agencies other than the AG, nor does it refer to records of complaints to or investigations conducted by, or records of intelligence information or security procedures of, the office of the AG and the Department of Justice (Penal Code Section 11105).
8. Provides the conditions and procedures for when a conviction may be judicially dismissed, expunged, voided, or invalidated (Penal Code Sections 1203.4, 1203.4a, 1203.41).
9. Provides that a violation of the Fair Employment and Housing Act (FEHA) includes, but is not limited to, an act or failure to act that demonstrates an intent to discriminate in any manner in violation of the Act.
10. Provides that a person intends to discriminate if race, color, religion, sex, gender, gender identity, gender expression, sexual orientation, marital status, national origin, ancestry, familiar status, source of income, disability, or genetic information is a motivating factor in committing a discriminatory housing practice, even though other factors may have also motivated the practice. Provides that intent to discriminate may be established by direct or circumstantial evidence.
11. Provides that 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 discrimination on the basis of race, color, religion, sex, gender, gender identity, gender expression, sexual orientation, marital status, national origin, ancestry, familiar status, and source of income, disability, or genetic information.
12. 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 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 need it is alleged to serve.
13. Provides that any determination of a violation of the Act shall be considered whether or not there are feasible alternatives that would equally or better accomplish the purpose advanced by the discriminatory effect.

FISCAL EFFECT: Unknown.

COMMENTS:

The use of criminal records when making hiring decisions: In the employment context, there are numerous provisions relating to when an employer may consider an applicant's criminal record. Employers are generally prohibited from asking applicants for employment to disclose information concerning an arrest that did not result in conviction, and convictions that have been sealed, expunged, statutorily eradicated, or dismissed. Additionally, there has been recent "ban the box" state legislation relating to when an employer may consider an applicant's criminal record. AB 1650 (Jones-Sawyer), Chapter 880, Statutes of 2014, provides that state contractors must determine an on-site, construction-related job applicant's minimum qualifications before obtaining and considering information regarding the applicant's criminal conviction history. AB 218 (Dickinson), Chapter 699, Statutes of 2013, requires that state and local agencies determine a job applicant’s minimum qualifications before obtaining and considering information regarding the applicant’s conviction history on an employment application.

The U.S. Equal Employment Opportunity Commission (EEOC) has recognized in policy guidance issued in April 2012 that there are observable racial disparities in the criminal justice system. Because criminal background checks may have a disparate impact on people of color, federal employment discrimination law prohibits no-hire policies against people with criminal records. An employer’s consideration of a conviction history may pass muster if an individualized assessment is made, taking into account whether the conviction is job-related and the time passed since the conviction. An employer therefore risks violating federal civil rights laws when it cannot articulate an objective and well-supported reason why the use of a criminal record to disqualify an applicant is related to the functions of the job. The EEOC’s guidance also makes a clear distinction between arrest and conviction records, and points out that "the fact of an arrest does not establish that criminal conduct has occurred."

The use of criminal records when considering an applicant's suitability as a tenant: Housing providers generally may inquire about and consider a wide array of information pertaining to an applicant's criminal record, subject to fair housing laws. There are no statewide "ban the box" laws in relation to when a housing provider may consider a potential tenant's criminal record. In the tenant screening process, landlords may use a variety of methods to inquire about an applicant's criminal record. For example, landlords may choose to provide rental applications that include an inquiry about an applicant's criminal record, obtain tenant screening reports, or verbally inquire about an applicant's criminal record. AB 53 would prohibit an upfront inquiry into an applicant's criminal record, and altogether prohibit inquiries into specified types of criminal records, including arrests that did not result in a conviction, juvenile records, and convictions that were dismissed. It would also provide applicants with a chance, if a landlord is considering denying tenancy based on the applicant's criminal record, to present evidence that the entries on their record are inaccurate, and evidence of rehabilitation or other mitigating factors.

Federally subsidized housing providers are only required to consider an applicant's criminal history in narrow circumstances, such as when the applicant is a sex-offender with a lifetime registration requirement. The federal Department of Housing and Urban Development (HUD) has provided informal guidance encouraging HUD-assisted owners to develop policies to allow formerly incarcerated individuals to rejoin their families. In 2011 and 2012, former HUD Secretary Shaun Donovan sent two letters to HUD-assisted housing providers recognizing the pressing housing needs of individuals who have been incarcerated and urging the adoption of flexible admissions policies that enable these individuals to secure housing and rejoin their families.

Other state and local legislation: The author points to other state and local legislation that has attempted to balance the concerns of rental property owners and prospective tenants. In Oregon, it is illegal to refuse to rent to a tenant because of a previous arrest or certain kinds of criminal convictions. The legislation, passed in the 2013 session and effective Jan. 1, 2014, is based on the work of the General Residential Landlord and Tenant Coalition, comprised of landlord and tenant advocates. There are also numerous local ordinances nationwide limiting the use of criminal records in determining an applicant's eligibility as a tenant. Local governments that have enacted these ordinances include San Francisco, Dane County, WI, Madison County, WI, and Champaign, IL.

Proposition 47: Proposition 47: The Safe Neighborhood and Schools Act is a referendum passed by voters at the November 4, 2014 election. It reduces penalties for certain offenders convicted of nonserious and nonviolent property and drug crimes. The measure also allows certain offenders who have been previously convicted of such crimes to apply for reduced sentences, and requires any state savings that result from the measure be spent to support truancy (unexcused absences) prevention, mental health and substance abuse treatment, and victim services.

Need for the bill: According to the author, “The housing shortage in California makes it difficult for all Californians to secure housing, but individuals with criminal records are experiencing higher levels of homelessness and housing insecurity. According to a Prison Policy Institute report, people with criminal records are 7 times more likely to experience homelessness when compared to the general public. The same report found that the formerly incarcerated experience high rates of “marginal housing,” defined as living in a hotel, rooming house, or motel. Furthermore, African Americans and Latinos are disproportionately impacted by our criminal justice system. For example, the Public Policy Institute of California noted that African Americans account for 16.3% of arrests, while only making up 5.7% of the state’s overall population.

This link between the demographics of the currently or formerly incarcerated and race was recognized as a potential source of discrimination by the United States Department of Housing and Urban Development (HUD). In 2016, the Office of General Counsel for HUD provided guidance to rental housing accommodation owners that made clear the adverse impact that occurs to protected classes when individuals are denied housing based on their criminal background.

Unfortunately, the HUD guidance does not offer the same protections to renters as a change in statute would. Although the HUD guidance does provide some clarification on rental discrimination, it does so within the current regulatory scheme of existing protected classes and is difficult to measure on a case by case basis. The California Department of Fair Employment and Housing (DFEH) is also drafting regulations (https://www.dfeh.ca.gov/wp-content/uploads/sites/32/2018/12/FurtherModTextFairHousingRegulation.pdf) that would mirror the intent of the HUD guidance, but this would also be limited by the current list of protected classes. Given the difficulty in tracking incidences of housing discrimination, it is necessary to create a clear rule that would prohibit discrimination during the application period. More specifically, AB 53 would help by banning owners from asking about an individual’s criminal background on a rental application, while preserving their right to conduct a background check. As our office has worked on this issue we have heard of incidences where individuals are asked about their criminal background on applications, or being refused housing solely because of their criminal background without receiving a fair chance to prove that they are as qualified as other potential tenants.

The Prison Policy Institute notes that due to a series of circumstances the formerly incarcerated can enter a cycle of homelessness; since individuals are unable to find housing upon their release they are forced to be homeless, which can result in more arrests for a number of minor infractions, which then leads to an additional crime/infraction on their criminal background.

This is especially important given that California has one of the highest recidivism rates in the country (65%). Homelessness can often contribute to recidivism, as previously mentioned, and has an adverse impact on successful re-entry for those recently released. Difficulty finding housing based on previous criminal history can also negatively impact families. The National Re-Entry Resource Center found that parents with minors or children make up 54% percent of those incarcerated. In some situations denying housing to an individual with a criminal record results in: either denying a whole family housing, or a family that was recently united having to split up once more.

Fundamentally, this is an issue about equity and providing individuals a fair chance at re-integrating with society so that they too can have a chance to succeed. For individuals to lead successful lives after their time in jail or prison, they need an opportunity to find stable and secure housing. This bill does not prohibit an owner of a rental housing accommodation from conducting a background check, nor does it force them to provide housing to rental applicants with a criminal record. AB 53 simply requires owners to view all individuals as equal, before conducting a background check.”

Oppose unless amended: The previous sponsors of the bill are now opposed based on recent amendments that reduced the amount of time for a prospective tenant to provide evidence of rehabilitation, errors and mitigation from 14 days to 2 days. Legal Services for Prisoners with Children writes, “Initially, the bill set out of to create a standardized process to provide people with criminal histories, who are denied housing because of those histories, with a process that prevented property owners from inquiring about criminal history during the initial application period. Another critical part of the bill would have provided a workable timeframe of 14 days when a housing applicant who is deemed otherwise qualified for the housing may respond to an inquiry into their criminal history to present evidence of errors, rehabilitation and mitigation. However, amendments placed into the bill by the author, moving the timeframe in which to provide evidence of rehabilitation, errors and mitigation down to 2 days renders the bill completely ineffective and endangers local legislation in cities like Richmond and San Francisco that provides more robust standards for “banning the box” in housing than the bill. As experts on the implications of ill-crafted policies that do more harm than good to people with conviction histories, we must stand in strong opposition to this catastrophic amendment.”

Related legislation:

AB 396 (Jones-Sawyer) was substantially similar to this bill, except that it would have given a tenant 14 days to respond to explain the inaccuracy of an item or items within the applicant’s criminal record or evidence of rehabilitation or other mitigating factors. The bill was held on the Suspense File in the Assembly Committee on Appropriations.

AB 1650 (Jones-Sawyer), Chapter 880, Statutes of 2014: With certain exceptions, provides that state contractors must determine an on-site construction-related job applicant's minimum qualifications before obtaining and considering information regarding the applicant's criminal conviction history.

AB 218 (Dickinson), Chapter 699, Statutes of 2013: With certain exceptions, provides that a state or local agency shall not ask an applicant for employment to disclose, orally or in writing, information concerning the conviction history of the applicant, including any inquiry about conviction history on any employment application, until the agency has determined the applicant meets the minimum employment qualifications, as stated in any notice issued for the position.

REGISTERED SUPPORT / OPPOSITION:

Support

Aids Healthcare Foundation

Bent the Arc: Jewish Action Southern

City of Berkeley Rent Stabilization Board

Californians for Safety and Justice

California Partnership to End Domestic Violence

California YIMBY

Centro Legal De La Raza

Ella Baker Center for Human Rights

Los Angeles Homeless Services Authority

National Association of Social Workers, California Chapter

Rubicon Programs

State Building and Construction Trades Council

Opposition

BizFed, Los Angeles County

California Rental Housing Association

Californians United for a Responsible Budget

Southern California Rental Housing Association

Southwest California Legislative Council

Valley Industry and Commerce Association

Individuals - 1

Oppose Unless Amended

Apartment Association of Orange County

Apartment Association, California Southern Cities

East Bay Rental Housing Association

Legal Services for Prisoners with Children

Showing Up for Racial Justice

Time for Change Foundation

Analysis Prepared by: Lisa Engel / H. & C.D. / (916) 319-2085