SR-08-14-2013-7ACity uncil Report
City of
Santa Monies
City Council Meeting: August 13, 2013
Agenda Item: 7 A
To: Mayor and City Council
From: Marsha Jones Moutrie, City Attorney
Subject: Introduction and First Reading of an Ordinance Amending Chapters 4.40
And 4.60 Of The Santa Monica Municipal Code To Expand Domestic
Partnership Protections To Conform With State Law
Recommended Action
Staff recommends that City Council introduce for first reading the attached proposed
ordinance which would amend the City's domestic partnership law to comply with
California state law.
Executive Summary
The proposed ordinance would make changes to the City's domestic partnership law as
recommended by the Rent Control Board. It would remove certain procedural hurdles
for domestic partners asserting housing rights; and it would clarify that domestic
partners are entitled to equality with spouses under the law, as required by state law.
Background
On December 6, 2012, the Rent Control Board voted to recommend that Council amend
Santa Monica's domestic partnership laws to conform with state law, which grants
domestic partners the same rights as married spouses.
The staff report of the Board's General Counsel is included as Attachment A. It explains
the origins of the City's domestic partnership ordinance and the state law rule that
mandates equal treatment of domestic partners and spouses.
Discussion
As explained in the attached report, Santa Monica law currently requires two things of
tenants who are domestic partners before they can enjoy equal eviction protections to
married couples: (1) they must file an affidavit with the City Clerk before being served
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with a three -day notice; and (2) they must serve the landlord with the affidavit before the
filing of an unlawful detainer complaint. Under state law, on the other hand, domestic
partners enjoy equal rights to married couples immediately upon registration with the
state. Under California Family Code section 297.5(a):
"Registered domestic partners shall have the same rights, protections, and
benefits, and shall be subject to the same responsibilities, obligations, and duties
under law, whether they derive from statutes, administrative regulations, court
rules, government policies, common law, or any other provisions or sources of
law, as are granted to and imposed upon spouses."
Moreover, under local law married couples appear to have full protection from evictions
once they are married. Municipal Code section 4.28.030(e) prohibits evicting a tenant
"on the grounds that he or she has breached a rental agreement if the alleged breach
arises out of an increase in the number of occupants due to the marriage of the tenant,
provided that the occupancy of the spouse and children of the spouse is otherwise
lawful." Thus, presumably a tenant can avoid either a three -day notice or an unlawful
detainer lawsuit by marrying his or her co- tenant in the interim. Domestic partners
currently do not have the same ability under local law.
Staff agrees with the Rent Board's Counsel that Santa Monica's requirements that
domestic partners file and serve their domestic partnership affidavit before the
respective actions by the landlord appear to create additional burdens above those
placed on married spouses. However, staff believes that it would be incomplete and
ineffective to address this issue simply by incorporating the state law equality standard
for domestic partners in Santa Monica. First, the state domestic partnership law applies
only to same -sex couples (unless they are over age 62), whereas Santa Monica has no
such limitation. Second, many local residents may be unaware of the protections of
state law.
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Therefore, staff proposes that the Council adopt the attached ordinance which would
remove the two procedural hurdles noted above and provide eviction protections upon
filing the affidavit with the City Clerk. It would also declare that domestic partners have
fully equal rights to those of spouses.
Alternatives
Council could consider simply amending local law to grant full equal rights to domestic
partners. However, that might leave open some confusion about tenant rights, given the
substantial period that the existing local law has been in effect requiring the prior filing
and service of the tenant's affidavit.
Financial Impacts & Budget Actions
There is no immediate financial impact or budget action necessary as a result of the
recommended action.
Prepared by: Adam Radinsky, Head, Consumer Protection Unit
Approved:
Attachments:
A: Rent Control Board staff report
B: Proposed Ordinance
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Forwarded to Council:
Rod Gould
City Manager
ATTACHMENT A
MEN
TO: Santa Monica Rent Control Board
FROM: J. Stephen Lewis, General Counsel
FOR MEETING OF: December 6, 2012
RE: Eviction Protections for Domestic Partners; recommendation
to City Council to amend or repeal provisions of the
Municipal Code in conflict with state law
Subject Matter:
The Santa Monica Rent Control Board will consider whether to direct staff to
recommend that the City Council amend or repeal provisions of the Santa Monica
Municipal Code, but particularly Section 4.40.040(d) respecting eviction protections for
domestic partners, to conform with state law.
How This Agenda Item Was Initiated:
The Board's General Counsel asked that this item be placed on the Board's
agenda.
Background
In 1985, the City Council enacted an ordinance (now designated 4.40.040) making
it illegal to discriminate in real estate and housing transactions on the basis of sexual
orientation. Ten years later, the Council learned that this protection was being
undermined by landlords who evicted gay and lesbian tenants when their sexual
orientation became apparent because they began to cohabit with a partner. Landlords
wishing to discriminate on the basis of sexual orientation could circumvent anti-
discrimination protections by evicting on the orientation - neutral ground that an
additional, unapproved person now occupied the premises.
In order to remedy this problem, the Council enacted Municipal Code Section
4.60.020, creating an official municipal recognition of domestic partnerships, and
amended SMMC § 4.40.040 to add a new subsection (d). This new subsection made it
illegal in Santa Monica to evict tenants based on the addition of any new occupant who
was a registered domestic partner of the named tenant. Though the impetus for the new
law was protection for same -sex couples, the law provided protection for similarly -
situated couples regardless of sexual orientation.
When enacted, the City's domestic partnership law provided valuable protection
for same -sex couples who lacked any means of obtaining state -level recognition of their
relationships. But the legal protections that the law provided for domestic partners less
than those accorded to married couples while at the same time imposing barriers to entry
into domestic partnership that couples wishing to wed were not required to clear. Like
earlier ordinances enacted by West Hollywood, San Francisco, and Santa Cruz, SMCC §
4.60.020 defined domestic partnership as a committed relationship of two persons who
share life responsibilities, live together, intend to remain together indefinitely, and
register their partnership with the City. An opposite -sex couple could, by contrast, go to
Las Vegas and get married on a whim. Their marriage would be accorded the full
protection of the laws of both the State of California and the City of Santa Monica,
regardless of whether they lived together (before or after their marriage) and regardless of
their level of internal commitment or intention to remain together indefinitely.
The lack of state -level legal recognition of same -sex relationships that made local
domestic partnership laws necessary ended in 1999, when the California Legislature
passed AB 26. That bill added Sections 297 — 299.6 to the California Family Code,
defining domestic partnership, providing for registration of such partnerships with the
Secretary of State, and describing the means by which they could be dissolved. Like the
municipal domestic partnership laws that had preceded it, Family Code § 297 required
that in order to qualify as domestic partners a couple must share a common residence.
Unlike municipal laws, the state law allowed domestic partnership registration for
opposite -sex couples only if at least one member of the couple is over the age of 62.1
1 Other, earlier bills introduced in both the State Assembly and Senate had sought to provide
state -level domestic partner registration and protection for couples regardless of sexual
orientation. Most died in committee, but one was passed by both houses of the Legislature. That
bill, SB 74, was vetoed by then - Governor Gray Davis because it would have provided an
alternative to marriage for opposite -sex couples for whom marriage was a legal option. He was
concerned that state creation of "marriage lite" would weaken traditional marriage by making it
less attractive. Thus, AB 26 was intended specifically as a measure to provide some measure of
legal protection for gay and lesbian couples. Those protections were also extended to opposite-
PA
AB 26 was the first state law of its kind in the nation, and was rightly heralded as
a significant advancement in government recognition of same -sex relationships. But,
because it provided far less protection for domestic partners than marriage (to say nothing
of societal respect), there were soon efforts to amend the Family Code to expand the
rights afforded domestically - partnered couples still further.
Those legislative efforts culminated in the passage of AB 205. That bill amended
Family Code § 297.5, effective January 1, 2005, to create full statutory equivalency
between domestic partners registered with the Secretary of State and married persons.2
The amended statute states, in pertinent part, as follows:
(a) Registered domestic partners shall have the same rights, protections,
and benefits, and shall be subject to the same responsibilities, obligations,
and duties under law, whether they derive from statutes, administrative
regulations, court rules, government policies, common law, or any other
provisions or sources of law, as are granted to and imposed upon spouses.
Thus, as of 2005, any couple registered with the Secretary of State as a domestic
partnership is entitled to the same rights, protections, benefits, and obligations as married
persons. To the extent that any state or local law purports to confer rights or
responsibilities on married persons different from those conferred on state - registered
domestic partners, it is now void.
Discussion
Although Santa Monica's domestic - partnership ordinance was progressive when
enacted, it has since been overtaken by state law. Now, rather than providing legal rights
to couples for whom no legal protection is otherwise available, the ordinance imposes
impediments on domestically - partnered couples in a way that may be seen as
discriminatory,
sex couples over 62 because, for those couples, traditional marriage might lessen eligibility for
certain federal benefits.
2 By leaving intact an institution that was parallel to marriage, AB 205 cured most of the legal
inequality between domestic partnership and marriage, but there was no question that, by
preserving marriage as an institution available only to heterosexual Californians and not their
gay and lesbian fellow citizens, it failed to create full constitutional equality or accord the full
weight of societal respect for same -sex relationships. In Re Marriage Cases (2008 43 Cal.0
757 (Superseded by constitutional amendment, Strauss v. Horton (2009) 46 Cal.4` 364).
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For example, a tenant whose lease limits occupancy in a unit to himself or herself
may not be evicted for adding an additional person if that additional person is a spouse or
spouse's child. The protection against eviction arises the moment the couple becomes
married, by virtue of the marriage alone. Under SMMC §§ 4.60.020 and 4.40.040, by
contrast, domestic partners —even those registered with the state —are purportedly
protected from eviction on the basis of the addition of the partner or partner's children
only if the couple has registered their partnership with the City Clerk, and only if they did
so before the landlord filed a three -day notice. By imposing these additional
requirements as a predicate to legal protection against evictions, local law discriminates
against domestically - partnered couples in violation of state law.
Because local law is preempted to the extent that it is at odds with state law,
domestically partnered tenants who are registered with the Secretary of State may assert
their state -law rights in an unlawful- detainer proceeding (or in any other context)
notwithstanding anything to the contrary in local law. But because landlords, tenants,
and judges may be unaware of this conflict between state and local law, it is possible that
those rights may not be asserted.
Recommendation
In order to avoid confusion about the rights of domestically - partnered couples and
carry out the intent of local law to provide protection against invidious discrimination,
staff recommends that the Board direct staff to recommend that City Council amend all
ordinances respecting domestic partnerships, but especially SMMC § 4.40.040(d), to
conform with state law.
In order to preserve protections provided to committed but unmarried opposite -sex
couples under age 62, staff recommends that the Board direct staff to recommend that
Council amend the Municipal Code only to the extent necessary to avoid conflict with
state law. A proposed motion that would accomplish this goal is attached to this staff
report as Proposed Motion 1.
Alternatives
Alternatively, the Board could recommend that Council simply repeal its domestic
partnership ordinance in its entirety on the ground that state marriage laws provide full
legal protections to all opposite -sex couples, and state domestic partnership laws provide
full legal protections to same -sex couples and opposite -sex couples over age 62. Staff
does not recommend this course of action for two reasons:
• It would diminish existing protections for opposite -sex unmarried couples under
local law;
There are likely same -sex couples who have opted to register with the City but not
with the Secretary of State, and repeal would lessen protection against sexual -
orientation discrimination as to them unless they registered with the state.
If the Board nonetheless opts to direct staff to recommend full repeal, a proposed motion
that would accomplish that goal is attached to this staff report as Proposed Motion 2.
LW =1 'J 1 1 1
Moved: that the Santa Monica Rent Control Board direct staff to forward the staff report
for this agenda item to the City Council with a cover letter recommending that the
Council amend the Municipal Code, and especially Section 4.40.040(d), to the extent
necessary to avoid conflict with California Family Code Section 297.5(a).
" N 41 1' 1 , 1 1 4
Moved: that the Santa Monica Rent Control Board direct staff to forward the staff report
for this agenda item to the City Council with a cover letter recommending that the
Council repeal local law respecting the establishment of domestic partnerships in order to
eliminate all confusion or conflict between eviction protections afforded married and
domestically - partnered tenants.
City Council Meeting: August 13, 2013
ORDINANCE NUMBER
(City Council Series)
ATTACHMENT B
Santa Monica, California
(CCS)
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF
SANTA MONICA AMENDING CHAPTERS 4.40 AND 4.60 OF THE SANTA MONICA
MUNICIPAL CODE TO EXPAND DOMESTIC PARTNERSHIP PROTECTIONS TO
CONFORM WITH STATE LAW
WHEREAS, Santa Monica local law provides certain protections for, and
imposes certain requirements on, residential tenants who are domestic partners; and
WHEREAS, California state law requires that domestic partners have fully equal
rights to those of spouses; and
WHEREAS, Santa Monica law contains restrictions on domestic partners' rights
not present in the state law and vice versa; and
WHEREAS, the City Council wishes to amend local law to conform to the
equality standard of state law and to afford maximum protection to tenants who are
domestic partners.
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF SANTA MONICA
DOES HEREBY ORDAIN AS FOLLOWS:
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SECTION 1. Section 4.40.040 of the Santa Monica Municipal Code is hereby
amended to read as follows:
Section 4.40.040 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 rental transactions, on the basis, in whole or in part, of an
individual's sexual orientation or domestic partnership (as defined
in Municipal Code Section 4.60.020(d)). Unlawful practices based
on an individual's sexual orientation or domestic partnership would
include, but not be limited to: (1) requiring different terms for the
real property transaction, (2) including in the terms or conditions of
a transaction in real property any special or unique clause,
condition or restriction, or (3) falsely representing that an interest in
real property is not available for transaction.
(2) Credit 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
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title or other insurance relating to the ownership or use of any
interest in real property on the basis, in whole or in part, of any
individual's sexual orientation.
(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 on the basis, in whole or in
part, of any individual's sexual orientation.
(4) Eviction Proceedings. It shall be an unlawful real estate
practice to threaten to commence or commence eviction
proceedings against any tenant on the grounds that he or she has
breached a rental agreement if the alleged breach arises from an
increase in the number of occupants due to the domestic
partnership (as defined in Municipal Code Section 4.60.020(d)) of
the tenant, provided that the occupancy by the tenant's domestic
partner and children of the domestic partner is otherwise lawful. A
violation of this subsection may be asserted as an affirmative
defense in an unlawful detainer action.
(5) Advertising. It shall be an unlawful real estate practice for any
person to make, print, publish, advertise or disseminate in anyway,
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 indicates or
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attempts to indicate any unlawful preference, limitation or
discrimination on the basis, in whole or in part, of any individual's
sexual orientation
(b) Subterfuge. If the sexual orientation of an individual was a
motivating factor in the decision to undertake or perform one of the
actions specified in subsection (a) of this Section, it shall not be a
defense that: (1) other legitimate and lawful factors also motivated
the decision unless these factors would have independently
provided justification for the decision or (2) other factors were
asserted as the basis for the decision if these factors were simply a
pretext for the decision.
(c) Exceptions.
(1) Owner Occupied and Small Dwellings. 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 of his or her family
occupies one of the living units and either: (a) it is necessary for the
owner or lessor to use either a bathroom or kitchen facility in
common with the prospective tenant; or (b) the structure contains
less than three (3) dwelling units.
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(2) Effect 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 or to establish a
landlord- tenant relationship between a landlord and a domestic
partner that does not otherwise exist by law or contract.
SECTION 2. Section 4.60.010 of the Santa Monica Municipal Code is hereby
amended to read as follows:
Section 4.60.010 Statement of Policy: Equality With Spouses.
(a} Statement of Policy. Although domestic partners live in an
intimate and committed family relationship, they are often denied
public and private sector benefits because no mechanism has been
established for registering their relationship. Consequently,
domestic partners are often subject to marital status discrimination
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in employment, housing, public accommodations, and hospital and
jail visitation privileges. The purpose of this Chapter is to create a
mechanism for recognizing the intimate, committed relationships of
domestic partners and thereby provide a means of eliminating the
discrimination that domestic partners face; and to recognize
domestic partners' equality with spouses
(b} Equalit with spauses. 1omestic partners shall have the the
SECTION 3. 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, is hereby repealed or modified to that extent necessary
to effect the provisions of this Ordinance.
SECTION 4. 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 this Ordinance. The City Council hereby declares that it would
have passed this Ordinance and each and every section, subsection, sentence, clause,
or phrase not declared invalid or unconstitutional without regard to whether any portion
of the ordinance would be subsequently declared invalid or unconstitutional.
SECTION 5. 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
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official newspaper within 15 days after its adoption. This Ordinance shall become
effective 30 days from its adoption.
APPROVED AS TO FORM:
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