October 18, 2005
SUBJECT: Legislative Action Position on AB 438
REPORT IN BRIEF
Councilmembers Howe and Miller have asked that City Council discuss Assembly Bill 438 to determine if the City should take an advocacy position. The bill was introduced by Assembly member Nicole Parra on behalf of the California Apartment Association. It would permit an apartment owner to evict or refuse to provide housing for a sex offender listed on the State Department of Justice web site. In April the bill was referred to the Committee on Public Safety, and has been postponed by that Committee for consideration in the next Legislative Session, which begins on January 4, 2006. The League of California Cities has taken no action on the bill, but has directed its Public Safety Policy Committee to analyze it. Staff recommends that the City defer taking an advocacy position on AB 438 until the League has completed its analysis.
BACKGROUND
Existing law (Megan’s Law) requires the State Department of Justice to make available via an Internet Web site information concerning specified registered sex offenders. Depending upon the severity of the sex offense, information is available as to some sex offenders with their specific home addresses, while others are identified only by zip code and community of residence. As of May 2003, the Department of Justice reported 100,501 registered sex offenders in the State (one out of every 180 adult males in California), of which 1,836 were classified as “high risk” and 82,190 as “serious”; these are the two groups who are subject to the current Internet notification system. California has significantly more registered sex offenders than any other state because it has been requiring registration since the mid 1940’s, and, unlike other states, does not “washout” names of individuals who have not been convicted of sex offenses over a period of ten years.
Existing law states that it is unlawful to use information disclosed on the Internet site to deny an individual housing, education, employment, insurance, a loan, or other specified benefits. It provides that a person is authorized to use the information only to protect a person at risk.
On February 15, 2005, Assembly member Nicole Parra introduced AB 438 on behalf of the California Apartment Association. Among other things, the bill would permit an apartment owner to evict or refuse to provide housing for a sex offender listed on the State Department of Justice web site. In April the bill was referred to the Committee on Public Safety, and has been postponed by that Committee for consideration in the next Legislative Session, which begins on January 4, 2006.
EXISTING POLICY
The City of Sunnyvale has no existing policy which is specific enough to provide guidance to the City Council in taking an advocacy position on AB 438.
DISCUSSION
AB 438 provides that, based upon the information made available to the public via the Department of Justice Web site, a lessor of residential property may refuse to provide housing to, or evict, a sex offender whose residence address is made available on the Web site. This bill would also provide that a lessor may inform other residents of that residential property that a person whose residence address is made available on the Internet Web site also resides in that property. Existing law requires the Department to update the Web site on an ongoing basis. This bill would require local law enforcement to update the Web site and to seek to verify whether a registered sex offender no longer resides at the address listed on the Web site within a reasonable time after receiving a written notice from the owner of the property indicating that the registered sex offender no longer resides at the address. Because this bill would require local officials to perform new duties, this bill would create a State-mandated local program. The California Constitution requires the State to reimburse local agencies and school districts for certain costs mandated by the State. This bill would provide that, if the Commission on State Mandates determines that the bill contains costs mandated by the State, reimbursement for those costs will be made to local governments.
Arguments in Favor of AB 438: Proponents of AB 438, including its author, argue that this bill seeks to clarify the law in order to make clear that housing providers can use the Megan's Law database to act decisively in the interests and safety of other tenants. Rental housing providers should be able to protect their residents by refusing to house high-risk sex offenders, by evicting high-risk sex offenders, or by notifying other tenants. The California Apartment Association argues that California law has given rental property owners and managers a conflicting directive. If a residential rental property owner or manager learns from the database that someone is a sex offender, he or she cannot deny the sex offender housing or warn other residents based on this knowledge, without the risk of being sued by the sex offender. At the same time, the law also exposes rental property owners to lawsuits if they fail to protect residents against a known risk - in this case, a sexual offender who may pose a danger to other residents of the property.
Arguments in Opposition to AB 438: The American Civil Liberties Union argues that discrimination in the rental of housing based on the fact that the individual is an ex-offender is a denial of basic civil rights. Housing may be denied on the basis of an individual’s behavior, but not because of his or her status as an ex-offender. This bill will result in large numbers of sex offenders and their families becoming homeless, creating the increased likelihood that the State will not know the whereabouts of these individuals - the primary intent and purpose of the registration laws. Other opponents argue that the bill lumps together every person convicted of a sexual offense as if they are either a rapist or a child molester, and denies the potential for change. Making life more difficult for convicted sexual offenders may lead to greater (rather than lesser) rates of recidivism.
Opponents also argue that to the extent that future legislation results in greater numbers of sex offender registrants becoming homeless, the issue will almost certainly be litigated. If sex offender registrants are denied basic necessities, such as shelter, there are likely to be accompanying consequences such as loss of employment, loss of income denying the offender's family of other necessities such as food and clothing, and additional negative impacts on their innocent children, including numerous changes of schools and community humiliation.
Potential Impact on City Operation: AB 438 shifts the burden for updating the Web site to local law enforcement. Sunnyvale’s Department of Public Safety would be required to verify whether a registered sex offender no longer resides at the address listed on the Web site if so notified by the owner of the property. How this is to be accomplished is not outlined in the bill.
Position of the League of California Cities and of Other Local Jurisdictions: The League of California Cities currently has a “watch” position on AB 438. Because of interest from its member cities, the League has directed its Public Safety Policy Committee to analyze the legislation and recommend a League position on the bill.
The Legislative Action Committee of the Southern California Cities Association discussed AB 438 at its meeting of September 22, 2005. It decided to defer action until the League of California Cities had completed its analysis of the bill.
FISCAL IMPACT
The fiscal impact of AB 438, if passed, is uncertain. The Public Safety Department has not determined how it might update the Web site, and how much such an effort might cost. While the bill provides that costs will be reimbursed by the State if the Commission on State Mandates determines that the bill contains costs mandated by the State, the City cannot at this time assume that its full costs will be reimbursed by the State.
PUBLIC CONTACT
Public contact was made through posting of the Council agenda on the City's official notice bulletin board, posting of the agenda and report on the City's web page, and the availability of the report in the Library and the City Clerk's Office.
ALTERNATIVES
1. Defer action until the League of California Cities completes its analysis of the bill.
2. Adopt a legislative action position in support of AB 438.
3. Adopt a legislative action position in opposition to AB 438.
RECOMMENDATION
Staff recommends Alternative 1, to defer action until the League of California Cities completes its analysis of the bill. This is a difficult and complex matter which raises issues of civil rights, public safety and property values. Analysis by the League of California Cities is liable to address these issues and provide the City with the analysis necessary to make an informed decision on the merits of the proposed legislation. This will also provide additional time for the Department of Public Safety to determine the impact of the bill on its operations.
Prepared by:
Robert Paternoster
Director, Community Development
Don Johnson
Director, Public Safety
Approved by:
Amy Chan
City Manager
Attachment
A. AB 438 (as Amended on April 13, 2005) (pdf)