SR 09-23-2014 8ACity Council Meeting: September 23, 2014
Agenda Item: 8 °A
To: Mayor and City Council
From: Marsha Jones Moutrie, City Attorney
Subject: Interim Update On Enforcement Of City's Tenant Harassment Ordinance,
Status Of Law, And Proposed Change In Staffing
Recommended Action
Staff recommends that the City Council review and comment on the administration and
enforcement of the City's Tenant Harassment Ordinance ( "THO ") and proposed future
actions to educate the public, improve investigations and increase compliance with the
law and direct staff to return with proposals related to buyout and relocation offers and
additional staffing.
Executive Summary
This is an interim update on the THO and how the law is administered and enforced by
City staff. It addresses some of the specific issues that were,raised and discussed at
the Council meeting on July 22, 2014, modifications to its investigative protocols in
housing cases, and the potential for adding staff resources to assist with such
investigations.
Background
At its meeting on July 22, 2014, Council heard testimony and discussed various issues
related to the THO and its enforcement. Council directed staff to address specified
areas including possible changes to the law; and to return promptly with an update on
these subjects and potential areas for further action. Following the July 22 meeting,
members of the Consumer Protection /Fair Housing Unit of the City Attorney's Office
conducted further legal research and met separately with representatives of Legal Aid,
Rent Control staff, and Rent Control administration to discuss the various issues raised
by Council. Legal staff also reviewed and assessed the Unit's work on particular cases
described at the July 22 meeting.
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Discussion
Handling of Housing complaints
Staff's review indicates that at least some of the information provided to Council about
particular landlord- tenant disputes and how they were handled by the City Attorney's
Office may have been incomplete or partially inaccurate. And, staff believes that each
complaint was handled appropriately based on the law and the available evidence.
Nevertheless, the feedback was very useful. It has helped staff identify several ways to
improve its work. Specifically, staff has:
• Assessed the adequacy of the Unit's resources; Increased regular meetings
between investigative and attorney staff to review all open housing cases and
coordinate deadlines and handling of cases;
• Established protocols for updating all parties of the status of open cases on a
regular basis; and
• Committed to intervening earlier when appropriate in housing cases, especially
those with more egregious violations, to help avert and preempt potential
evictions and other actions that may result from unlawful behavior by property
owners.
Additionally, staff plans to:
• Evaluate new ways to obtain needed evidence in cases where tenants are
resistant to making official complaints but it is clear that unlawful behavior by the
owner is occurring;
• Utilize software resources to better manage and monitor open cases on a regular
basis; and
• Continue evaluating any potential for strengthening local laws.
Staff's experience indicates that the majority of landlords in Santa Monica want to
comply with the law. Often housing complaints involve bad blood on both sides, and a
lack of communication or understanding of the law — but not true bad faith by the owner.
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In such cases, staff will redouble its efforts to de- polarize the situation, work with the
parties to explain the law, and try to resolve the dispute amicably.
Specific legal issues
Council identified several areas of landlord- tenant relations where questions have been
raised about the adequacy of existing law. Staff's present thinking is as follows:
(1) Entry into units and privacy rights
A common complaint from tenants is that landlords entered their units without legal
justification, or entered legally but then used the opportunity to inspect unrelated areas
of the unit to come up with lease violations. The law is fairly specific about the scenarios
when an owner may enter a unit. They are limited to these:
• during an emergency;
• to make necessary or agreed repairs, decorations, alterations, or improvements;
• to provide necessary or agreed services;
• to exhibit the unit to prospective or actual purchasers, mortgagees, tenants,
workers, or contractors;
• to make a pre- move -out inspection;
• when the tenant has abandoned or surrendered the premises; or
• under a court order.
Thus, an owner may not simply schedule an "inspection" of a unit, without a specific,
valid, stated reason. State law gives two such examples of valid reasons: inspections
for smoke detector maintenance and for waterbed safety. And, even when a landlord
has the right to enter, the right is limited. Owners cannot expand such inspections to
gather unrelated evidence against a tenant in a different part of the apartment. If they
do, they may violate the tenant's privacy rights and also abuse their right of access.
These actions in turn violate both state law and two different sections of the THO.
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Staff's current thinking is that the general legal standard in these existing laws is a more
powerful tool than an enumeration of specified forms of unlawful entry or privacy
violations. Staff plans to increase awareness of the entry and privacy laws through
public education and to monitor the results of this effort. Staff will report back to Council
on this effort and whether the results suggest that local law should be changed.
(2) Rent payments
Staff has received many questions and some formal complaints about owners claiming
not to have received rent from tenants. Often these cases have arisen when the owner
had recently changed the form of rent payment. Under existing law staff can and does
pursue legal action against owners who falsely claim not to have received rent, both
under THO subsections (f) (influencing or attempting to influence a tenant to vacate a
rental housing unit through fraud, intimidation or coercion) and (k) (refusing to
acknowledge receipt of a tenant's lawful rent payment)., In cases where there is a
genuine misunderstanding, or where tenants have in fact failed to pay their rent, staff
works to educate the parties about their responsibilities under the law. Staff will also
report back to Council on developments relating to this issue.
(3) Buyout and relocation offers
It is legal for owners to offer tenants money in exchange for vacating their units. Such
offers are illegal, however, when they are accompanied by threats or other harassing
behavior designed to intimidate tenants or mislead them about their rights. This type of
misconduct is fully covered by existing law under the THO, and staff has used the law to
redress such violations.
Staff consulted with Rent Control staff on this issue. Rent Control staff recommends that
Council change the law to require all tenant buyout offers to be simultaneously filed with
the City, or the Board, similarly to how eviction notices are filed under current law. Such
information could be useful to City Attorney staff in its investigation of some tenant
harassment cases. Staff will return with proposals for this change.
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(4) The malice standard
There was some discussion at the July 22 Council meeting about the possibility of
revising the state of mind standard needed for violations of the THO. Currently that
standard is "malice," which is defined in the law as "an intent to vex, annoy, harass or
injure another person." This standard is actually fairly broad. It does not require an
intent to do serious harm. Any time an owner intentionally does something to cause
distress in a tenant, that owner has the requisite malicious state of mind under the THO.
This is also known as acting in bad faith. At present, staff does not believe that
changing the required state of mind under the THO would have any effect on staff's (or
the public's) ability to use the THO to redress wrongful behavior by property owners.
Indeed, the malice standard was cited by the Court of Appeal as an important
component of the law in upholding it against a constitutional challenge several years
ago. Nonetheless, staff will continue its assessment of this issue.
Proposed staffing change
Following the direction from Council, staff has assessed the demands of housing
investigations and responding to the public's need for information and assistance; and
staff has reviewed its resources and procedures for handling housing cases. Staff
believes there could be significant benefit from adding at least a part -time employee
who would act as the City Attorney's main liaison with the public on housing cases and
who would assist with the initial investigation of housing questions and complaints. This
would free up time and resources for the pursuit of larger investigations by other staff,
among other benefits.
Staff anticipates bringing this request back to Council as a proposed mid -year budget
adjustment.
Upcoming public education efforts
In the coming months staff plans the following educational efforts to increase awareness
of the rights and duties under the law:
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Beginning anew series of regular columns in the Santa Monica Daily Press to
inform the public about specific legal areas of interest, including the housing
issues raised above;
® Conducting a citywide public forum this fall to address residents' questions and
concerns about housing rights;
® Compiling and disseminating locally an information sheet that encapsulates the
most important housing rights laws; and
® Continuing to utilize the publicity from existing cases and court results to educate
the public and deter wrongdoing.
Financial Impacts & Budget Actions
There is no immediate financial impact or budget action necessary. It is estimated that
the cost to the City of the new half -time position would be less than $60,000. Staff will
provide detailed information about cost as part of the mid -year budget adjustments.
Prepared by: Adam Radinsky, Head, Consumer Protection Unit
Approved: Forwarded to Council:
rRod Gould
City Manager
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