ITEM 8-B
City Council Meeting 9-26-95 Santa Monica, California
TO: Mayor and City Council
FROM: City Attorney
SUBJECT: Ordinance for Second Reading, Ordinance for
First Reading, Adding Chapter 4.56 To The Santa
Monica Municipal Code Regarding Tenant Harassment
At its meeting on July 25, 1995, the City Council introduced for
first reading an ordinance to add Chapter 4.56 to the Santa
Monica Municipal Code to prohibit a landlord from harassing a
tenant with the intent to cause the tenant to vacate his/her
rental housing unit. The ordinance is now presented to the City
Council for second reading and is attached hereto as Exhibit A.
At the July 25, 1995 meeting, the City Council directed this
office to meet with interested members of the community regarding
possible alternatives to this proposed ordinance.
After that, suggestions were received from three individuals:
Michael Tarbet, Christopher Harding (representing his client the
Apartment Association of Greater Los Angeles), and Sherman Stacey
(representing his client ACTION). A list of their principal
suggestions and legal staff's responsive comments follows
immediately below. Since some of the suggested revisions to the
ordinance appeared to be consistent with Council's initial
direction and otherwise advisable, we have prepared a revised
ordinance incorporating those suggestions. This ordinance is now
presented to the City Council for introduction and first reading
and is attached hereto as Exhibit B.
TARBET SUGGESTIONS
Suggestion One
The intent requirement of the ordinance should be changed from an
intent to cause the tenant to vacate the rental housing unit to
an intent to disturb the tenant's quiet enjoyment.
Comment
This office believes that its direction from the City Council was
to draft an ordinance which prohibited tenant harassment
undertaken for the purpose of obtaining possession of the
tenant's unit. The genesis of the Council's direction was the
adoption of AB 1164. Accordingly, we have not modified the
proposed ordinance as requested since the modification would be
beyond the scope of the City Council's direction. Moreover,
Council has already taken what amounts to the middle ground on
the issue of intent. Council could have required that the owner
have the intent to evict the tenant for the purpose of taking
advantage of AB 1164 or Council could merely have required an
intent to "disturb." Instead, Council chose the middle course of
requiring proof of intent to cause the tenant to vacate.
However, this is a policy issue and Council could choose to
establish a different intent requirement.
Suggestion Two
The ordinance should make it a crime for an owner to abuse
his/her right to enter a unit pursuant to Civil Code Section
1954.
Comment
While this office believes that the City Council could make
violation of Section 1954 a local crime, this would also broaden
the scope of the ordinance beyond the Council's direction.
Consequently, this office has not revised the proposed ordinance
in this manner.
Suggestion Three
The ordinance should provide that acceptance of rent with
knowledge that a condition of the rental agreement has not been
enforced waives the right to later seek to enforce the contract
provision.
Comment
Again, we believe that this suggestion exceeds the scope of the
Council's original direction. We understood the Council's
concern to be conduct rising to a level of harassment.
Generally, in the legal context, the term "harassment" means to
annoy, alarm or abuse. See Black's Law Dictionary (3d ed.).
Conduct consisting of a failure by the landlord to enforce a term
of a rental agreement does not fall within this usual meaning.
Moreover, Mr. Tarbet's concerns may be partially addressed by one
of the recommended revisions to the proposed ordinance which
would make it unlawful for a landlord to pursue an eviction based
on facts which he/she does not reasonably believe to be true or
based on a legal theory which is untenable under the facts known
to the landlord. Arguably, this prohibition would apply if the
landlord clearly had waived the right to enforce a particular
lease provision.
Suggestion Four
Sections 4.56.020 (b) and (h) both address the failure to timely
complete repairs and maintenance and appear to overlap. Further,
Section 4.56.020(b) only makes it unlawful to fail to timely
complete necessary repairs and maintenance -- it should cover the
failure to timely complete all repairs.
Comment
We agree that these two sections overlap. Consequently, we
propose merging these two provisions into one. Based on this
suggestion and Suggestion Ten raised by Harding/Stacey we also
propose clarifying this provision by providing that this section
is violated if a landlord fails to perform repairs or maintenance
required by contract or by State or local housing, health or
safety laws (specifying what is meant by the term "necessary").
We also propose modifying the ordinance to make it unlawful to
fail to exercise due diligence in completing any repair or
maintenance once undertaken.
Suggestion Five
The proposed ordinance makes it unlawful to engage in an activity
prohibited by Santa Monica Municipal Code Chapter 4.28.030, an
ordinance which prohibits housing discrimination. In delineating
the types of housing discrimination prohibited, the proposed
ordinance fails to list discrimination based on marriage.
Comment
We agree that the proposed ordinance should be modified to
reflect this omission.
Suggestion Six
The provision which prohibits a landlord from improperly
attempting to recover possession of a rental housing unit or
evict a tenant should specify that this provision is violated if
a landlord asserts in any Notice to Quit or complaint a fact that
the landlord knows to be untrue.
Comment
Based on this suggestion and Suggestion Thirteen raised by
Harding/Stacey, we propose modifying this provision to prohibit a
landlord from taking action to terminate a tenancy, including
service of any notice to quit or instituting an action to
recovery possession, if such action is based upon facts which the
landlord has no reasonable cause to believe to be true or upon a
legal theory which is untenable under the facts known to the
landlord.
Suggestion Seven
The ordinance should prohibit a landlord from circulating a new
rental agreement for tenants to sign without first notifying
tenants of their rights under the Rent Control Law and should
prohibit a landlord from changing rules and regulations without
the consent of the tenant.
Comment
Both of these suggestions constitute substantive modifications
which go beyond the scope of the City Council's direction.
HARDING/STACEY SUGGESTIONS
Suggestion Eight
Current state and local laws provide sufficient tenant protection
against harassment. This law is therefore unnecessary.
Comment
The Council considered this argument prior to directing
preparation of the ordinance. It is true that some conduct
addressed by this ordinance is already unlawful under other
statutory schemes. Charter Section 1806 prohibits evictions that
are not for just cause as established by that Section and
applicable regulations. State law has established an implied
covenant of quiet enjoyment which may protect tenants from
landlord harassment. Civil Code Section 1954 prohibits a
landlord from abusing the right of entry into a tenant's unit.
However, this office does not believe it is improper to make
conduct subject to more than one statutory prohibition.
Moreover, this law is directed at conduct which is undertaken for
a very specific purpose -- to cause a tenant to vacate his/her
unit. No other laws have been enacted for this specific purpose.
Moreover, this ordinance imposes very specific penalties for its
violation which may not be found in other regulatory schemes.
Suggestion Nine
The use of the term "abuse" in Section 4.56.020(c) is vague.
Comment
This section prohibits a landlord from abusing his/her right of
access to a housing unit as provided by Civil Code Section 1954.
This state law also uses this terminology. We are unaware of any
successful void for vagueness challenges brought against Civil
Code Section 1954. However, we do recommend revising the
language of this provision to clarify its meaning.
Suggestion Ten
The prohibition against reduced maintenance should not include
lawfully reduced maintenance.
Comment
The proposed ordinance prohibits both a reduction in maintenance
and the failure to timely complete necessary maintenance (and
repairs) if undertaken with the requisite intent. As discussed
in the Comment to Suggestion Four, we propose modifying the
ordinance to clarify what is meant by the term "necessary" by
replacing it with the phrase "required by contract or by State or
local housing, health, or safety laws."
Suggestion Eleven
The definition of housing services is too broad. It should be
modified to only include those services required to be provided
by law, agreement or minimum habitability standards.
Comment
The definition of housing services was taken in large measure
from the Rent Control Law. It encompasses any benefit,
privilege, or facility that has been provided by the landlord to
the tenant with the use or occupancy of a rental housing unit.
The housing services specified by this definition include
significant and essential services including hot and cold water,
heat, electricity, and refuse removal. Moreover, as with other
conduct prohibited by this ordinance, the interruption or
termination of the housing service must be undertaken with the
intent to cause the tenant to vacate the unit. It would
certainly be possible to draft a more restrictive definition of
housing services, but that is a policy decision which should be
made by Council.
While we do not recommend that the definition of "housing
services" be amended as suggested, we do recommend that the
substantive provision of the ordinance pertaining to housing
services be modified. More specifically, the proposed ordinance
provides that a landlord would violate the ordinance if he/she
reduced housing services if undertaken with the requisite intent.
We recommend that the term "reduce" be replaced with "interrupt
or terminate" since these latter terms more precisely describe
the conduct being prohibited. Further, we agree that just as
with the failure to perform repairs and maintenance, an
interruption or termination of housing service should only
violate this ordinance if the housing service was required by
contract or by state or local housing, health, or safety laws.
Suggestion Twelve
The definition of rental housing unit should be limited to
controlled units since these are the units at which AB 1164 (and
this ordinance) is directed. The definition of tenant and
landlord should also be limited to those who occupy or own
controlled rental units.
Comment
This suggestion comports with the Council's original direction
and intent. Consequently, we propose revising the ordinance to
only encompass rental units that are controlled by the Rent
Control Law. The definitions of tenant and landlord do not have
to be altered to accomplish this purpose.
Suggestion Thirteen
Making it a crime for a landlord to proceed with an eviction
without having a substantial basis in fact is too severe a
standard. Moreover, given the language in the statute which
makes it a crime for anyone to assist a landlord in violating
this ordinance, an attorney filing an unlawful detainer action
could be subject to the law's reach.
Comment
Since initiating an eviction proceeding would necessarily meet
the intent requirement of this ordinance, the requirement that an
owner only proceed with an eviction if the owner has a
substantial basis in fact could have a chilling effect on an
owner's exercise of his/her legal right to proceed with an
eviction. Therefore, we propose modifying the language of this
provision to prohibit an owner from proceeding with an eviction
based upon facts which the owner has no reasonable cause to
believe are true or upon a untenable legal theory. Since the
purpose of this provision was to make bad faith evictions
unlawful, this modified language better reflects the Council's
intent.
We also agree that the ordinance as drafted could be read to
include an attorney who pursues an unlawful detainer action on
behalf of an owner even when undertaken in good faith. This was
not the intent in drafting this provision. Consequently, the
ordinance has been modified to clarify that such conduct is not
captured by the ordinance.
Suggestion Fourteen
The ordinance should broaden the language which protects lawful
activities undertaken by a landlord.
Comment
The proposed ordinance provides that it shall not be construed to
prevent the lawful eviction of a tenant by appropriate legal
means. Given this provision and the clarification to the
provisions of the proposed ordinance addressing interruption or
termination of housing services and failure to perform repairs
and maintenance (see Comments to Suggestions Ten and Eleven), we
do not believe that additional language protecting a landlord's
lawful activities is necessary.
Suggestion Fifteen
The enforcement provisions of the ordinance should be
significantly narrowed by eliminating criminal sanctions and
narrowly circumscribing punitive damages.
Comment
The penalty provision contained in this ordinance are
substantively the same as penalty provisions contained in
numerous other related ordinances. See Santa Monica Municipal
Code Section 4.28 et seq.; 4.36 et seq.; 4.40 et seq. Moreover,
any violation of an ordinance of the City is a misdemeanor unless
special provision is made to the contrary. See Santa Monica
Municipal Code Section 1.08.010. However, we do propose revising
the ordinance to provide that the standard for imposition of
punitive damages should be that established by State law -- Civil
Code Section 3294.
Suggestion Sixteen
The ordinance should include a one year statute of limitation.
Comment
Other City ordinances do contain a one year statute of limitation
for civil actions. For instance, Santa Monica Municipal Code
Section 4.40.100 governing discrimination on the basis of sexual
orientation establishes a one year limitation period. This
ordinance could certainly contain the same language should the
Council be so inclined. Criminal limitation periods are
established by the California Penal Code. Section 802 of that
Code establishes a one-year limitation period for most
misdemeanors.
RECOMMENDATION
It is respectfully recommended that the City Council take one of
the following actions:
1. Adopt on second reading the ordinance adding Chapter 4.56 to
the Santa Monica Municipal Code regarding tenant harassment,
attached hereto as Exhibit A; or
2. Introduce the ordinance attached hereto as Exhibit B for
first reading and hold a public hearing thereon.
Prepared By: Marsha Jones Moutrie, City Attorney
Barry A. Rosenbaum, Deputy City Attorney
ORDINANCE NUMBER ____
(City Council Series)
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF
SANTA MONICA ADDING CHAPTER 4.56 TO THE SANTA
MONICA MUNICIPAL CODE REGARDING TENANT HARASSMENT
THE CITY COUNCIL OF THE CITY OF SANTA MONICA DOES HEREBY
ORDAIN AS FOLLOWS:
SECTION 1. Chapter 4.56 is hereby added to the Santa Monica
Municipal Code to read as follows:
CHAPTER 4.56. TENANT HARASSMENT.
4.56.010. Definitions.
The following words or phrases as used
in this Chapter shall have the following
meanings:
(a) Fraud. Intentional
misrepresentation, deceit, or concealment of
a material fact.
(a)(b) Housing Service. Housing
services include, but are not limited to hot
and cold water, heat, electricity, gas,
refrigeration, elevator service, window
shades and screens, storage, kitchen, bath
and laundry facilities and privileges,
janitor services, refuse removal,
furnishings, telephone, parking, effective
waterproofing and weather protection,
painting, and any other benefit, privilege,
or facility that has been furnished provided
by the landlord to the tenant with the use or
occupancy of any rental housing unit.
Services to a rental housing unit shall
include a proportionate part of services
provided to common facilities of the building
in which the rental housing unit is
contained.
(b)(c) Landlord. An owner, lessor,
sublessor, or any other person entitled to
receive rent for the use and occupancy of any
rental housing unit, or an agent,
representative, or successor of any of the
foregoing.
(c)(d) Rental Housing Agreement. An
agreement, oral or written or implied,
between a landlord and tenant for use or
occupancy of a rental housing unit and for
housing services.
(d)(e) Rental Housing Unit. A housing
unit in the City of Santa Monica that
constitutes a controlled rental unit pursuant
to City Charter Section 1800 et seq.
including a room in a single family home,
hotel or motel, roominghouse or apartment,
single family home, mobile home or mobile
home space, trailer or trailer space, offered
for rent. "Rental housing unit" does not
include any unit occupied pursuant to an
innkeeper-guest relationship.
(e)(f) Tenant. A tenant, subtenant,
lessee, sublessee or any other person
entitled under the terms of a rental housing
agreement to the use or occupancy of any
rental housing unit.
4.56.020. Prohibition. No landlord
shall, with respect to property used as a
rental housing unit under any rental housing
agreement or other tenancy or estate at will,
however created, do any of the following with
the intent to cause a tenant to vacate the
rental housing unit:
(a) Reduce Interrupt or terminate
housing services required by contract or by
State or local housing, health or safety
laws.
(b) Reduce maintenance or fail to
perform and timely complete necessary repairs
or maintenance, Fail to perform repairs and
maintenance required by contract or by State
or local housing, health or safety laws or
fail to exercise due diligence in completing
repairs and maintenance once undertaken.
(c) Abuse the landlord's right of
access into a rental housing unit within the
meaning of as that right is specified in
California Civil Code Section 1954.
(d) Abuse the tenant with words which
are offensive and inherently likely to
provoke an immediate violent reaction.
(e) Seek to entice or entice a tenant
to vacate a rental housing unit through
fraudulent misrepresentation.
(f) Threaten the tenant, by word or
gesture, with physical harm.
(g) Misrepresent to a tenant that the
tenant is required to vacate a rental housing
unit.
(h) Fail to exercise due diligence in
performing and completing repairs to a rental
housing unit after obtaining possession of
the unit for the purpose of performing the
repairs.
(i)(h) Engage in an activity prohibited
by Chapter 4.28.030(a), (d), (e), and (f)
[which prohibits housing discrimination based
on age, parenthood, marriage, pregnancy, or
occupancy of a minor child] or Chapter
4.40.040 [which prohibits undertaking certain
real estate practices
based on sexual
orientation].
(j)(i) Threaten or endeavor to recover
possession or evict a tenant from a rental
housing unit a controlled rental unit, as
defined by Article XVIII of the City Charter,
without having a substantial basis in fact
for the eviction as provided by Section 1806
of the City Charter or Section 7060 et seq.
of the California Government Code. Take
action to terminate any tenancy including
service of any notice to quit or other
eviction notice or bring any action to
recover possession of a rental housing unit
based upon facts which the landlord has no
reasonable cause to believe to be true or
upon a legal theory which is untenable under
the facts known to the landlord.
This subsection shall not apply to any
attorney who in good faith initiates legal
proceedings against a tenant on behalf of a
landlord to recover possession of a rental
housing unit.
4.56.030. Lawful Evictions. Nothing in
this Section shall be construed as to prevent
the lawful eviction of a tenant by
appropriate legal means nor shall anything in
this Section apply to occupancies defined by
subdivision (b) of Civil Code Section 1940.
4.56.040. Enforcement and penalties.
(a) Criminal Penalty. Any person who
is convicted of violating this Chapter shall
be guilty of a misdemeanor and upon
conviction shall be punished by a fine of not
greater than five hundred dollars or by
imprisonment in the County Jail for not more
than six months, or by both such fine and
imprisonment.
(b) Civil Action. Any person,
including the City of Santa Monica, may
enforce the provisions of this Chapter by
means of a civil action. A violation of this
Chapter may be asserted as an affirmative
defense in an unlawful detainer action.
(c) Injunction. Any person who commits
an act, proposes to commit an act, or engages
in any pattern and practice which violates
Section 4.56.020 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 City Attorney, or by any person or entity
who will fairly and adequately represent the
interest of the protected class.
(d) Penalties. Any person who violates
or aids or incites another person to violate,
the provisions of this Chapter is liable for
each and every such offense for the actual
damages suffered by any aggrieved party and
such attorney's fees and costs as may be
determined by the court in addition thereto.
The court may also award punitive damages in
a proper case as defined by Civil Code
Section 3294.
(e). Nonexclusive Remedies and
Penalties. Nothing in this Chapter shall
preclude any person from seeking any other
remedies, penalties, or procedures provided
by 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,
is hereby repealed or modified to that extent necessary to effect
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 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 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 become
effective 30 days from its adoption.
APPROVED AS TO FORM:
_________________________
MARSHA JONES MOUTRIE
City Attorney