SR-703-001
?0'"3-00(
b-B
FEB 2 3 1988
\
CA:RMM:rmd642a/hpca
City Council Meeting 2-23-88
Santa Monica, California
STAFF REPORT
TO:
Mayor and City Council
City Attorney
FROM:
SUBJECT:
Ordinance Adding Chapter 9C to Article IV of
the Santa Monica Municipal Code to Prohibit
Discrimination Against Persons with AIDS, a History
of AIDS, or Persons Regarded as Having or
Transmitting AIDS
At its meeting on February 9, 1988, the city Council
introduced for first reading an ordinance adding Chapter 9C to
Article IV of the Santa Monica Municipal Code prohibiting
discrimination against persons with AIDS, a history of AIDS, or
persons
regarded
as having or transmitting AIDS.
The
accompanying ordinance is now presented to the City council for
adoption.
RECOMMENDATION
It is respectfully recommended that the accompanying
ordinance be adopted.
PREPARED BY: Robert M. Myers, City Attorney
Joseph Lawrence, Assistant City Attorney
Jeffrey W. Holtzman, Deputy City Attorney
&-8
FEB 2 J 1988
-.
CA:RMM:jwhaidsl/hpword
City Council Meeting 2-23-88
Santa Monica, California
ORDINANCE NUMBER
(City Council Series)
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY
OF SANTA MONICA ADDING CHAPTER 9C TO ARTICLE IV
OF THE SANTA MONICA MUNICIPAL CODE TO PROHIBIT
DISCRIMINATION AGAINST PERSONS WITH AIDS, A
HISTORY OF AIDS, OR PERSONS REGARDED AS
HAVING OR TRANSMITTING AIDS
THE CITY COUNCIL OF THE CITY OF SANTA MONICA DOES ORDAIN AS
FOLLOWS:
SECTION 1. Chapter 9C is added to Article IV of the Santa
Monica Municipal Code to read as follows:
CHAPTER 9C
DISCRIMINATION ON THE BASIS OF AIDS
SECTION
4950.
STATEMENT
OF
POLICY.
Discrimination
against
individuals
with
Acquired
Immune
Deficiency Syndrome
(AIDS),
with a
history of AIDS, or those regarded as
having or transmitting AIDS, exists in
the
City
of
Santa Monica.
Such
discrimination foments strife, unrest
and discord and deprives the City of the
fullest utilization of its resources and
capacity
for
development
and
advancement. Such discrimination poses
- 1 -
a substantial threat to the health,
safety and welfare of the community.
Existing State and Federal restraints on
arbitrary discrimination are inadequate
to meet the particular problems of this
city.
SECTION 4951. DEFINITIONS. The
following words or phrases as used in
this Chapter shall have the following
meanings:
(a) Business Establishment. Any
enti ty , however organiz ed, which
furnishes goods or services to the
general public. An otherwise qualifying
establishment which has membership
requirements is considered to furnish
services to the general public if its
membership requirements: ( 1) cons is t
only of payment of fees; or (2) consist
of requirements under which a
substantial portion of the residents of
the City of Santa Monica could qualify.
(b) Individual. The same as the
term "person."
(c) Person. Any person as
defined in Municipal Code section 1314.
- 2 -
(d) Acquired Immune Deficiency
Syndrome (AIDS). The illness(es),
disease(s), or symptom(s) which occur
when the human immune system is
destroyed or compromised by the action
of what is believed to be a virus
currently called or known as Human
Immuno-deficiency Virus (HIV), Human
T-Lymphotropic virus Type III (HTLV-III)
or Lymphadenopathy-Associated Virus
(LAV) . Signs and symptoms of AIDS are
manifested in the afflicted person by a
series of virus or fungus-caused
opportunistic illnesses, infections or
cancers of a transient, asymptomatic or
chronic nature. As used in this
Chapter, AIDS includes the diagnosis or
clinical finding of AIDS Related Complex
(ARC), as well as testing positive for
exposure to HIV, HTLV-III, or LAV
whether or not any clinical
manifestations of AIDS are currently
present.
SECTION 4952. EMPLOYMENT.
(a) Unlawful Employment
Practices.
- 3 -
(1) Employers-Discrimina-
tion. It shall be an unlawful
employment practice for an employer to
fail or refuse to hire, or to discharge
any individual, or otherwise to
discriminate against any individual with
respect to compensation, terms,
conditions, or privileges of employment
because, in whole or in part, the
individual has AIDS, a history of AIDS,
or is regarded as having or transmitting
AIDS.
(2) Employers-segregation.
It shall be an unlawful employment
practice for an employer to limit,
segregate, or classify employees or
applicants for employment in any manner
which would deprive or tend to deprive
any individual of employment
opportunities, or adversely affect his
or her employment status because, in
whole or in part, the individual has
AIDS, a history of AIDS, or is regarded
as having or transmitting AIDS.
(3) Employment Agencies.
It shall be an unlawful employment
practice for an employment agency to
fail or refuse to refer for employment
- 4 -
any individual or to otherwise
discriminate against any individual
because, in whole or in part, the
individual has AIDS, a history of AIDS,
or is regarded as having or transmitting
AIDS.
(4) Labor organizations.
It shall be an unlawful employment
practice for a labor organization to
fail or refuse to include in its
membership or to otherwise discriminate
against any individual, to limit,
segregate, or classify its membership,
to classify or fail or refuse to refer
for employment, any individual in any
way which would deprive or tend to
deprive such individual of employment
opportunities, or to otherwise adversely
affect an individual's status as an
employee or as an applicant for
employment because, in whole or in part,
the individual has AIDS, a history of
AIDS, or is regarded as having or
transmitting AIDS.
(5) Job Training. It shall
be an unlawful employment practice for
an employer, an employment agency, or a
labor organization to discriminate
- 5 -
against any individual in admission to,
or employment in, any program
established to provide apprenticeship,
or other training or retraining,
including any on-the-job training
program, because, in whole or in part,
the individual has AIDS, a history of
AIDS, or is regarded as having or
transmitting AIDS.
(6) Advertising. It shall
be an unlawful employment practice for
an employer, employment agency, or a
labor organization to print, publish,
advertise I or disseminate in any way,
any notice or advertisement with respect
to employment I membership in, or any
classification or referral for
employment or training by any such
organization, which indicates that the
employer, employment agency, or labor
organization engages or will engage in a
violation of this Section.
(b) SUbterfuge. It shall be
unlawful to do any of the acts mentioned
in this Section for any reason that
would not have been asserted wholly or
partially, but for the individual having
- 6 -
AIDS, a history of AIDS, or being
regarded as having or transmitting AIDS.
(c) Bona Fide Occupational
Qualification.
(1) Bona Fide occupational
Qualification. Nothing contained in
this Section shall be deemed to prohibit
selection or rejection based upon a bona
fide occupational qualification.
(2) Burden of Proof. In
any action brought under section 4957 of
this Chapter, if a party asserts that an
otherwise unlawful discriminatory
practice is justified as a bona fide
occupational qualification, that party
shall have the burden of proving: (a)
that the discrimination is in fact a
necessary result of a bona fide
occupational qualification; and (b) that
there exists no less discriminatory
means of satisfying the occupational
qualification.
(d) Exceptions.
( 1) Employee Benefi t
Systems. It shall not be an unlawful
discriminatory practice for an employer
to observe the conditions of a bona fide
employee benefit system, provided such
- 7 -
system or plan is not a subterfuge to
evade the purposes of this Chapter. No
such system shall provide an excuse for
failure to hire any individual.
(2) In-Home Employers. No
part of this section shall apply to the
employment of individuals to perform
. services in the place of residence of
the employer.
SECTION 4953. HOUSING AND OTHER
REAL ESTATE TRANSACTIONS.
(a) Unlawful Real Estate
Practices.
(1) Transactions Generally.
It shall be an unlawful real estate
practice for any person 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, to include
in the terms or condi tions of a
transaction in real property any clause,
condition or restriction, or to falsely
represent that an interest in real
property is not available for
transaction because, in whole or in
- 8 -
part, the individual has AIDS, a history
of AIDS, or is regarded as having or
transmitting AIDS.
(2) Cred! t and Insurance.
It shall be an unlawful real estate
practice for any person to refuse to
lend money, guarantee a loan, accept a
deed of trust or mortgage, or otherwise
refuse to make available funds for the
purchase, acquisition, construction,
alteration, rehabilitation, repair or
maintenance of real property, to impose
different conditions on such financing,
to refuse to provide title or other
insurance relating to the ownership or
use of any interest in real property
because, in whole or in part, the
individual has AIDS, a history of AIDS,
or is regarded as having or transmitting
AIDS.
(3) Tenant services. It
shall be an unlawful real estate
practice for any person to refuse or
restrict facilities, services, repairs
or improvements for any tenant or lessee
because, in whole or in part, the person
has AIDS, a history of AIDS, or is
regarded as having or transmitting AIDS.
- 9 -
(4) Advertisinq. It shall
be an unlawful real estate practice for
any person to make, print, publish,
advertise or disseminate in any way, any
notice, statement, or advertisement with
respect to a transaction or proposed
transaction in real property, or with
respect to financing related to any such
transaction, which unlawfully indicates
or attempts to indicate any unlawful
preference, limitation or discrimination
because, in whole or in part, the
individual has AIDS, a history of AIDS
or is regarded as having or transmitting
AIDS.
(b) Subterfuge. It shall be
unlawful to do any of the actions
mentioned in this Section for any reason
that would not have been asserted,
wholly or partially, but for the person
having AIDS, a history of AIDS, or being
regarded as having or transmitting AIDS.
(c) Exceptions.
(1) Owner Occupied Small
Dwellinqs. Nothing in this Chapter
shall be construed to apply to the
rental or leasing of any housing unit in
which the owner or lessor or any member
- 10 -
of his or her family occupies one of the
living units and it is necessary for the
owner or lessor to use either a bathroom
or kitchen facility in common with the
prospective tenant.
(2) Bffect on Other Laws.
Nothing in this Chapter shall be deemed
to permit any rental or occupancy of any
dwelling unit or commercial space
otherwise prohibited by law.
SECTION
ESTABLISHMENTS.
(a) Unlawful Business Practice.
(1) Business Practices
Generally. It shall be an unlawful
business practice for any person to deny
any individual the full and equal
enjoyment of the goods, services,
facili ties, privileges, advantages and
accommodations of any business
establishment because, in whole or in
part, the individual has AIDS, a history
of AIDS, or is regarded as having or
transmitting AIDS.
(2) Credit. It shall be an
unlawful business practice for any
person to deny credit to any individual
4954.
BUSINESS
- 11 -
because, in whole or in part, the
individual has AIDS, a history of AIDS,
or is regarded as having or transmitting
AIDS.
(3) Advertisinq. It shall
be an unlawful business practice for any
person to make, print, publish,
advertise or disseminate in any way any
notice, statement or advertisement with
respect to any business establishment
which indicates that such establishment
engages or will engage in any violation
of this Section.
(b) Subterfuge. It shall be
unlawful to do any of the acts mentioned
in this section for any reason that
would not have been asserted, wholly or
partially, but for an individual having
AIDS, a history of AIDS, or being
regarded as having or transmitting AIDS.
SECTION 4955. CITY FACILITIES AND
SERVICES.
(a) Unlawful Service Practices.
(1) city Facilities. It
shall be an unlawful service practice
for any person to deny any individual
the full and equal enj oyment of, or to
- 12 -
place different terms and conditions on
the availability or the use of any City
facility because, in whole or in part,
the individual has AIDS, a history of
AIDS, or is regarded as having or
transmitting AIDS.
(2) City services. It
shall be an unlawful service practice
for any person to deny any individual
the full and equal enjoyment of, or to
impose different terms or conditions on
the availability of, any City service
because, in whole or in part, the
individual has AIDS, a history of AIDS,
or is regarded as having or transmitting
AIDS.
(3) Supported Facilities
and services. It shall be an unlawful
service practice for any person to deny
any individual the full and equal
enjoyment of, or to impose different
terms and conditions upon the
availability of, any service, program or
facili ty wholly or partially funded or
otherwise supported by the City of Santa
Monica, because, in whole or in part,
the individual has AIDS, a history of
AIDS, or is regarded as having or
- 13 -
transmitting AIDS. This Subsection
shall not apply to any facility, service
or program which does not receive any
assistance from the city of Santa Monica
which is not provided to the public
generally.
(4) Advertising. It shall
be an unlawful service practice for any
person to make, print, publish,
advertise or disseminate in any way any
notice, statement or advertisement with
respect to any service or facility
provided by either the city of Santa
Monica or an organization described in
Subsection (3) which indicates that the
city of Santa Monica or an organization
described in Subsection (3) engages in
or will engage in a violation of this
Section.
(b) Subterfuge. It shall be an
unlawful discriminatory practice to do
any of the acts mentioned in this
Section for any reason which would not
have been asserted, wholly or partially,
but for the individual having AIDS, a
history of AIDS, or being regarded as
having or transmitting AIDS.
- 14 -
SECTION 4956.
INSTITUTIONS.
(a) Unlawful
practices.
EDUCATIONAL
Educational
(1) Admission. It shall be
an unlawful educational practice for any
person to deny admission, or to impose
different terms or conditions on
admission, because, in whole or in part,
the individual has AIDS, a history of
AIDS, or is regarded as having or
transmitting AIDS.
(2) Services. It shall be
an unlawful educational practice for any
person to deny any individual the full
and equal enjoyment of, or to impose
different terms or conditions upon the
availability of, any service or program
offered by an educational institution
because, in whole or in part, the
individual has AIDS, a history of AIDS,
or is regarded as having or transmitting
AIDS.
(3) Facilities. It shall
be an unlawful educational practice for
any person to deny any individual the
full and equal enjoyment of, or to
impose different terms or conditions
- 15 -
upon the availability of, any facility
owned or operated by an educational
institution because, in whole or in
part, the individual has AIDS, a history
of AIDS, or is regarded as having or
transmitting AIDS.
( 4) Adver1;isinq. It shall
be an unlawful educational practice for
any person to make, print, publish,
advertise or disseminate in any way any
notice, statement or advertisement with
respect to an educational institution
which indicates that such institution
engages in, or will engage in a
violation of this Section.
(b) subterfuge. It shall be an
unlawful discriminatory practice to do
any of the acts mentioned in this
Section for any reason which would not
have been asserted, wholly or partially,
but for the individual having AIDS, a
history of AIDS, or being regarded as
having or transmitting AIDS.
(e) Exception. It shall not be
an unlawful discriminatory practice for
a religious or denominational
institution to limit admission, or give
- 16 -
other preference to applicants of the
same religion.
SECTION 4957. LIABILITY. Any
person who violates any of the
provisions of this Chapter or who aids
in the violation of any provisions of
this Chapter shall be liable for, and
the court shall award to the individual
whose rights are violated, actual
damages, costs, attorneys' fees, and not
less than two hundred dollars ($200.00)
but not more than four hundred dollars
($400.00) in addition thereto. The
court may, in such circumstances that it
deems appropriate, award punitive
damages.
SECTION 4958. ENFORCEMENT.
(a) Civil Action. Any aggrieved
person may enforce the provisions of
this Chapter by means of a civil action.
(b) Injunct.ion. Any person who
commi ts , or proposes to commit, an act
in violation of this Chapter may be
enjoined therefrom by any court of
competent jurisdiction. An action for
injunction under this Subsection may be
brought by any aggrieved person, by the
- 17 -
city Attorney, or by any person or
entity which will fairly and adequately
represent the interests of the protected
class.
SECTION 4959. LIMITATION ON
ACTION. Actions under this Chapter must
be filed within one year of the alleged
discriminatory acts.
SECTION 4960. PREEMPTION. This
Chapter shall not apply to any act of
discrimination to the extent that City
regulation of such act is preempted by
state or federal law.
SECTION 2. Any provision of the Santa Monica Municipal
Code or appendices thereto inconsistent with the provisions of
this ordinance, to the extent of such inconsistencies and no
further, are hereby repealed or modified to that extent necessary
to affect the provisions of this ordinance.
SECTION 3. If any section, subsection, sentence, clause,
or phrase of this ordinance is for any reason held to be invalid
or unconstitutional by a decision of any court of competent
jurisdiction, such decision shall not affect the validity of the
remaining portions of the ordinance. The City Council hereby
declares that it would have passed this ordinance and each and
every section, subsection, clause or phrase not declared invalid
or unconstitutional without regard to whether any portion of the
- 18 -
ordinance
would
be
subsequently
declared
invalid
or
unconstitutional.
SECTION 4. The Mayor shall sign and the City Clerk shall
attest to the passage of this ordinance. The City Clerk shall
cause the same to be published once in the official newspaper
within 15 days after its adoption.
This ordinance shall be
effective thirty (30) days from its adoption.
APPROVED AS TO FORM:
ROBERT M. MYERS l
city Attorney
- 19 -