Item 8-A

City Council Meeting 5-25-99 Santa Monica, California

TO: Mayor and City Council

FROM: City Attorney

SUBJECT: An Ordinance of The City Council of The City of Santa Monica Amending Santa Monica Municipal Code Sections 4.56.010, 4.56.020 and 4.56.040 Relating to Tenant Harassment and Declaring the Presence of an Emergency

Introduction

At its meeting of April 27, 1999, in response to public comment, the City Council directed staff to evaluate whether the ordinance prohibiting harassment of tenants should be strengthened to ensure adequate protections for tenants, and to propose any amendments which staff deemed advisable. The accompanying ordinance responds to that direction, and staff recommends that it be adopted.

Discussion

Santa Monica adopted its ordinance prohibiting harassment of tenants in 1995. In each year since the ordinance was adopted, the number of formal complaints of harassment filed with the City Attorney=s office has increased.

Recently, members of the public appeared before the City Council and urged that the protections presently afforded by the ordinance are inadequate. In response, Council directed staff to evaluate the present ordinance, consider input from interested parties, and propose any amendments to the ordinance which appeared advisable.

Since receiving that direction, staff has reviewed the ordinance and has received and considered input from various concerned parties, including attorneys representing both landlords and tenants. Based upon those endeavors, and upon staff=s experiences in prosecuting cases under the ordinance, staff proposes the following amendments.

The proposed amendments would add language which would explicitly include the following within the list of acts which constitute harassment:

(1) maliciously failing to provide required housing services;

(2) maliciously seeking to entice or enticing a tenant to vacate through intimidation or coercion; and

(3) maliciously refusing to acknowledge receipt of a lawful rent payment.

The rationale for Addition Number 1 is that the present law prohibits maliciously interrupting or terminating required housing services, but does not cover situations in which the landlord fails to provide them in the first place. Addition Number 2 is suggested because current law prohibits enticing a tenant to vacate through fraud, but not through intimidation or coercion, which may actually be more objectionable than trickery in terms of their impact on the tenant. Addition Number 3 is suggested based upon a number of cases in which landlords refused to accept lawfully tendered rent and then attempted to evict tenants for nonpayment. The proposal is actually a clarification of existing law, which prohibits taking action to terminate a tenancy based upon facts which the landlord has no reasonable cause to believe to be true.

Additionally, the proposed ordinance would further clarify existing law by specifying that the standards of proof for harassment cases are those already established by law. That is, in civil actions harassment must be proven by a preponderance of the evidence, and punitive damages must be proven by clear and convincing evidence.

Finally, the proposed ordinance would clarify the definition of malice to include an intent to harass. This change is consistent with state law.

Certain other changes have been suggested but are not recommended by staff. For the Council=s information, these suggestions include adding the following to the definition of harassment: maliciously refusing to provide a copy of a rental agreement upon request, and maliciously enforcing a term of the tenancy which has been waived by past practice (such as a provision prohibiting pets). Staff believes that adding either of these prohibitions might increase the likelihood of the harassment ordinance being successfully challenged, and that the existing law already can be used to prosecute these types of violations in appropriate cases. Additionally, it was suggested that the ordinance be amended to include a presumption that actions occurring within a certain period after the tenant makes a complaint, constitute harassment. Staff advises against this change because it might be viewed by the courts as an unfair or impermissible attempt to change the burden of proof in a criminal case.

In addition to the suggestions for amending the ordinance, staff recommends that two actions be taken to make the ordinance more effective. First, the public should be educated about the requirements of the law and its protections and penalties. This would include dissemination of summaries of the law and examples of violations, and public forums to explain the law to landlords and tenants alike.

Second, staff suggests that efforts be undertaken to train private attorneys to bring harassment cases so that civil enforcement of the ordinance will be expanded. This suggestion is based in part on the assumption that criminal prosecution is most appropriate in those cases which are most egregious.

Budget and Financial Impact

Expanding the scope of the harassment ordinance does not, in itself, have any budgetary or financial impact upon the City.

Recommendation

It is respectfully recommended that the accompanying emergency ordinance be adopted.

PREPARED BY:
Marsha Jones Moutrie, City Attorney|
Adam Radinsky, Consumer Protection Attorney
Claudia Thompson, Legal Admin. Staff Assistant