SR-12-10-2013-7CCity Council Meeting: December 10, 2013
Agenda Item: %C-
To: Mayor and City Council
From: Marsha Jones Moutrie, City Attorney
Subject: Introduction and First Reading of an Ordinance Prohibiting Agreements
That Limit Tenants From Engaging in Public Process
Recommended Action
Staff recommends that City Council introduce for first reading the attached proposed
ordinance which would prohibit and void agreements that would purport to limit tenants'
rights to petition their government and to participate in the City's public process.
Executive Summary
The proposed ordinance would make two changes to the City's relocation ordinance as
Council directed. First, it would prohibit landlords from making agreements with tenants
that condition the payment of a relocation fee on tenants promising not to participate in
the City's public process or otherwise petitioning their government. The prohibited
conduct includes entering into such agreements, enforcing such agreements, or
withholding relocation fees to induce a tenant into such an agreement. Second, the
ordinance would void all such agreements.
Background
On April 23, 2013, the City Council directed staff to prepare an ordinance to prohibit
relocation and other settlement agreements with tenants, conditioned on the tenants'
agreement to forego their legal rights to petition their government or government official
about or testify at hearings regarding projects that may displace their homes. The City
is aware of at least two instances where Santa Monica landlords have attempted to
make or enforce such relocation agreements. In the first instance, a landlord with a
development project proposed for the property obtained from tenants agreements which
contained a "non- opposition" term. The term prohibited tenants from speaking against
the development project at any City meeting. After intervention by the City Attorney's
Office, the landlord agreed that the prohibition would not be enforced.
A second landlord and company circulated a similar agreement among its tenants, but
the City and the Legal Aid Foundation of Los Angeles ( LAFLA) intervened before any
tenant signed the agreement.
In formulating its recommendations and the attached proposed ordinance, staff
consulted with the Rent Control Board, Rent Control staff and LAFLA and reviewed
comments by Council and members of the public.
Discussion
The proposed ordinance prohibits landlords from making agreements with their tenants
that prohibit or limit tenants from participating in the City's public process. The
prohibition includes entering into such agreements, enforcing such agreements, or
withholding relocation fees to induce a tenant into such an agreement. The ordinance
also voids all such agreements.
The primary purposes of this rule are to protect the City's public process and to protect
Santa Monica residents' right to petition their government.
The law provides two specific examples of process that must not be limited: speaking at
a meeting of the City Council or any City Commission, and submitting written comments
to the City. The law includes a broader category of examples to include any
communication with the City as part of the protected public process.
Enforcement
As a matter of standard practice, the City and Rent Board would conduct outreach and
education about the ordinance to ensure tenants' awareness of their rights. The City
Attorney's Office would enforce the law. Additionally, tenants would be authorized to
bring actions or use the law's voiding section to protect their access to public process.
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Alternatives
Council could consider an alternative to the proposed ordinance that would prohibit
tenants, as well as landlords, from entering into agreement that limits their access to
public process. However, it is staffs experience that in the vast majority of relocation
agreement situations - -where a landlord is deciding whether to end and how to end a
tenancy - -the landlord holds most of the bargaining power and may coerce the tenant
into accepting other terms. Therefore, it would be inequitable to hold a tenant
responsible for an agreement in most such situations.
Financial Impacts & Budget Actions
No financial impacts will result from the adoption of this ordinance. All costs of outreach
regarding the new rules will be borne by the City Attorney's Office or other departments
conducting the outreach within existing budget. All costs of enforcement will be borne
by the City Attorney's Office.
Prepared by: Gary Rhoades, Deputy City Attorney, Consumer Protection Unit
Approved: Forwarded to Council:
Attachment:
A: Proposed Ordinance
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Rod Gould
City Manager
City Council Meeting: December 10, 2013 Santa Monica, California
ORDINANCE NUMBER (CCS)
(City Council Series)
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF
SANTA MONICA ADDING SANTA MONICA MUNICIPAL CODE SECTION 4.36.085
AND AMENDING SECTION 4.36.090 PROHIBITING AGREEMENTS THAT LIMIT
TENANTS FROM ENGAGING IN PUBLIC PROCESS
and
WHEREAS, participatory democracy is a hallmark of the City Of Santa Monica;
WHEREAS, the City accordingly has a firm and long- standing commitment to
protecting the rights of all community members to participate in their government; and
WHEREAS, the City has an equally strong commitment to protecting the rights of
tenants; and
WHEREAS, the combination of Santa Monica's prime location, state - mandated
vacancy decontrol, rising rents, low interest rates, and increasing real estate values
have created huge incentives for landlords to displace long -time tenants and redevelop
properties; and
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WHEREAS, in recent years, landlords have attempted to condition relocation
payments and other contractual benefits to tenants' agreement to give up their right to
petition their government for relief or to comment publicly on proposed projects; and
WHEREAS, such conditions are contrary to public policy because they abrogate
tenants' First Amendment rights and undermine the democratic process in Santa
Monica; and
WHEREAS, in order to effectuate the City's core values of participatory
democracy and tenant protection and thereby promote the public welfare, the City
Council hereby finds that the Municipal Code should be amended to prohibit landlords
from requiring such conditions.
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF SANTA MONICA
DOES HEREBY ORDAIN AS FOLLOWS:
SECTION 1. Santa Monica Municipal Code Section 4.36.085 is hereby added to
read as follows:
4.36.085 Prohibition against agreements limiting public
participation.
No landlord shall with respect to property used as rental
housing any rental housing agreement or other tenancy or estate at will,
however created, do any of the following:
a) Enter into an agreement with a tenant which prohibits
or limits the tenant from participating in the City's public process, including
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speaking at a meetinq of the City Council or any City Commission,
submitting written comments to the City, or otherwise communicating with
City elected officials, appointed officials, employees on any subject.
b) Attempt to enforce an agreement such as described
in subsection (a).
c) Withhold deposit of relocation fees into escrow or
withhold payment of such fees or other payments otherwise owed to the
tenant in an attempt to induce a tenant to enter into an agreement such as
described in subsection (a).
SECTION 2. Santa Monica Municipal Code Section 4.36.090 is hereby amended
as follows:
4.36.090 Remedies.
(a) In any action by a landlord to recover possession of a
rental housing unit for one of the reasons set forth in Section 4.36.020, the
landlord shall allege and prove compliance with this Chapter.
(b) Any landlord who fails to provide relocation assistance
as required by Sections 4.36.040, 4.36.050, 4.36.070 and 4.36.100 or who
violates Section 4.36.085 of this Chapter shall be liable in a civil action to
the tenant to whom such assistance is due for damages in the amount of
the relocation fee the landlord has failed to pay, a civil penalty in the
amount of five hundred dollars and reasonable attorneys' fees and costs
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as determined by the court. The court may also award punitive damages
in a proper case as defined by Civil Code Section 3294. Any person,
including the City, may enforce the provisions of this Chapter by means of
a civil action.
(c) Any person violating any of the provisions of or failing to
comply with the requirements of this Chapter shall be guilty of a
misdemeanor and upon conviction shall be punished by a fine of not
greater than one thousand dollars or by imprisonment in the County Jail
for not more than six months, or by both such fine and imprisonment.
(d) No landlord shall attempt to secure from a tenant any
waiver of any provision of this Chapter. Any agreement, whether written or
oral, whereby any provision of this Chapter is waived, shall be deemed
against public policy and shall be void.
(e) Any contractual term which violates Section 4.36.085
of this Chapter, whether written or oral, shall be deemed against public
Policy and shall be void.
(efl Nonexclusive Remedies and Penalties. The remedies
provided in this Chapter are not exclusive, and nothing in this Chapter
shall preclude any person from seeking any other remedies, penalties or
procedures provided by law.
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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
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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