Sacramento Report — Applicants with a Criminal Record: The Next Protected Class?

Applicants with a Criminal Record: The Next Protected Class?

By ron Kingston

Assembly Bill 1241 was authored by Assemblymember JonesSawyer. Member Jones-Sawyer represents Assembly District 59, which generally covers parts of downtown Los Angeles. Assembly Bill 1241 (“Bill”) was set to be heard in the Housing and Community Development Committee on January 12, 2022, and in the Judiciary Committee the following day. Clearly, by the time this article is published, the dates will have passed and the decision of the author to NOT to proceed with the bill. However, the issue is very much still alive. As such, it will be imperative for rental property owners and managers to keep a close eye on its progression and a strong possibility of another bill in this area of law and/or regulatory activity. The bill’s intent is to amend several sections of the Government Code to provide the formerly incarcerated an opportunity to receive thorough and fair vetting when seeking rental housing.

As a rental housing property owner or manager, the language in this bill is important because the author alleges it offers a fair chance to former wards of the state to find rental housing; it also claims that the bill is not intended to compel, or otherwise require, a rental property owner to provide rental housing to any individual.

Proposed Government Code Section 12955.05 says that a rental housing property owner shall not require any applicant for rental housing to inquire about or disclose a criminal record during the initial application phase; only after successful completion of the initial application assessment may an applicant be requested to complete a criminal background check.

And that proposed code section 12955.05 defines a “criminal record” as criminal offender record information as defined by Penal Code section 13102.

Section 12955.05 defines “initial application phase” the period before a decision is made to rent or lease a rental housing accommodation, which includes the time during which a person seeking a rental housing accommodation requests, and is provided with, an application and the time during which the assessment of rental history and credit history, the checking of sources of income, and the scheduling of an applicant interview routinely occur.

If a rental housing property owner considers the denial of an application based on the criminal background check, then the rental housing property owner must provide the applicant with a written statement listing the reasons for the possible denial before making a final decision, within five (5) days of receiving the criminal background check. The applicant is then required to provide notice, either orally or in writing — if requested by the rental housing property owner, of evidence demonstrating an inaccuracy of items within the criminal background check, or evidence of rehabilitation or other mitigating factors, which may include any of the following: • Satisfactory compliance with all terms and conditions of parole or probation; • Employer recommendations related to a person’s postconviction employment; • Educational attainment or vocational or professional training since conviction, including training received while incarcerated; • Completion of or active participation in rehabilitative treatment, including alcohol or drug treatment; • Letters of recommendation from community organizations, counselors, case managers, teachers, community leaders, parole officers, and probation officers who have observed the person since the person’s conviction; • A person’s familial relationship with a person who may be currently residing in the residential rental housing unit; • The age of the person at the time of the conviction; • Explanation of precedent coercive conditions, including physical, emotional, or sexual abuse,

untreated substance abuse, mental illness, or disability that contributed to the conviction; • The amount of time that has passed since the date of conviction; • Evidence that the individual has maintained a good tenant history before or after the conviction, or both.

The rental housing property owner shall then reconsider possible denial; if the denial is final, then the rental housing property owner shall notify the applicant of the final decision in writing no later than five (5) days after receipt of the applicant’s evidence.

Additionally, a rental housing property owner is prohibited from seeking, considering, or taking an adverse action from or against an applicant, during any stage of the application process or in the application itself based in whole or in part on any of the following: • A previous arrest that did not result in a conviction; • Participation in, or completion of, a diversion or a deferral of judgment program; • A conviction that has been judicially dismissed, expunged, voided, invalidated, or otherwise rendered inoperative, including, but not limited to, as is provided under Section 1203.4, 1203.4a, or 1203.41 of the Penal Code; • A determination or adjudication in the juvenile justice system or information regarding a matter considered in or processed through the juvenile justice system; • Information pertaining to an offense other than a felony or misdemeanor; • A conviction that is not directly related to one or more substantial, legitimate, nondiscriminatory purposes that support the owner’s practice. In determining whether a criminal conviction is directly related, a practice should include

consideration of the nature and severity of the crime and the amount of time that has passed since the criminal conduct occurred; • Information pertaining to a conviction that occurred more than seven years before the date of the application for rental housing accommodations.

Finally, there are two (2) instances in which a rental housing property owner is required to provide notice in the application for tenancy. The first is when criminal records are used as part of the screening criteria to evaluate an applicant. The second is when criminal record background check will be requested.

Conclusion

A rental housing property owner or

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manager whose practice is to request a criminal background check for the purpose of consideration for tenancy is required to modify the application process. The modification pertains, generally, to a select number of individuals who have criminal records; yet, because of new and stringent notification requirements, rental housing property owners or managers will be required to modify every application to cover for the potential instance in which an applicant with a criminal record may be applying for tenancy. This puts an extra burden on the rental property housing owners and managers as it pertains not only the application, but with the entire process of considering whether to rent to someone with a criminal record.

Recommendation

If a rental housing property owner considers criminal records as part of the screening criteria to evaluate whether an applicant may reside on the premises, then the following language would have been required and would have mandated the following language in applications to rent residential real property:

“This property will conduct a criminal background check as the final part of the screening process.

You are not required, and the owner of the property may not require you, to disclose a criminal record until your application has satisfied all of the property’s other screening criteria, unless otherwise required by state or federal law. If your application does not satisfy the property’s criteria with respect to criminal records, you will have three days after the possible denial to provide orally, or in writing if so requested by the owner of the property, evidence demonstrating the inaccuracy of the item or items within your criminal record that form the basis of the possible denial, or evidence of rehabilitation or other mitigating factors.”

If a rental housing property owner intends to request an applicant to undergo a criminal background check, then the following language would have been required to be provided to the applicant and should be included in all applications during the initial application phase.

“The owner of this property is requesting a criminal background check. If your application does not satisfy the property’s criteria with respect to criminal records, you will have three days after the possible denial to provide orally, or in writing if so, requested by the owner of the property, evidence demonstrating the inaccuracy of the item or items within your criminal record that form the basis of the possible denial, or evidence of rehabilitation or other mitigating factors.”

Additionally, the bill would have required that all rental housing property owners and managers should develop a new policy, new forms, and a calendaring system pertaining to the accurate and appropriate handling of the application process when a criminal record is received. Rental housing property owners and managers should request that any applicant that has a criminal record to provide the evidence of inaccuracy, rehabilitation, or other mitigating factors in writing only. As such, it is recommended that all rental housing property owners and managers create new documents addressing the applicant’s requirements to continue the application process.

We, however, had a much different opinion. It would have required owners to adopt an artificial, lengthy, costly, and burdensome five (5) step application process in order to fill any vacancy. • Phase One: During the “initial

application assessment phase,” tenants may be screened, but criminal history questions and background checks are off limits. • Phase Two: After the initial assessment phase, landlords are allowed to ask about criminal history and perform a criminal background check. • Phase Three: Landlord must then provide a written statement to any applicant he or she wishes to deny tenancy explaining his or her decision.

• Phase Four: A landlord must then give any applicant who was denied tenancy 14 days to respond with evidence demonstrating the inaccuracy of a criminal record, or evidence of rehabilitation or mitigation. • Phase Five: If a landlord receives a response from an applicant, the landlord must delay making a final decision for a “reasonable period,” and reconsider his or her decision in light of the new information.

Only after going through these five phases is a landlord allowed to deny tenancy based on criminal convictions.

In our opinion, the bill would have forced owners to hold units off the market for no less than a month; the five-phase application process is unprecedented and unwarranted; it creates a new, protected class of individuals that have voluntarily made a choice; and lays open a question of new, uninsurable actions.

Is the bill balanced? Probably not!

Ron Kingston is President of California Strategic Advisors and Legislative Advocate for the Apartment Association of Orange County. For questions regarding this article, please call AAOC at (714) 245-9500.