HomeMy WebLinkAboutCorrespondence - #38Alcala, Abigail
From: Paul Beard <Paul.Beard@fisherbroyles.com>
Sent: Tuesday, October 31, 2023 10:40 AM
To: eComment
Subject: Nov. 7, 2023 Council Meeting / Rent Registry
Attachments: 10-31-23 Letter to City Council Re Rent Registry.pdf
Good morning,
Attached is a comment letter concerning the City Council's consideration of the "rent registry" law at its
November 7, 2023, meeting. Please ensure the letter is distributed to all members and is made a part of the
record.
Thank you,
Paul Beard II
Partner / CERTIFIED SPECIALIST IN APPELLATE LAW*
FISHERBROYLES, LLP
453 S. Spring St., Ste 400-1458
Los Angeles, CA 90013
Direct: 818-216-3988
paul.beardgfisherbroyles.com
*CERTIFIED BY THE STATE BAR OF CALIFORNIA
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October 31, 2023
VIA EMAIL
City Council Members
22 Civic Center Plaza
Santa Ana, CA 92701
Email: ��`-oRiR: tl.!.%�>,.�.2p2.:::::.
Paul Beard II
Partner
paul.bear& isherbroyles.com
Direct: 818-216-3988
453 S Spring Street, Suite 400-1458
Los Angeles, CA 90013
www.FisherBroyles.com
Re: Nov. 7, 2023 Council Meeting / Discussion of Rent Re2istry
Dear City Council Members,
We represent a coalition of landlords and tenants in the City ("Coalition") that strongly
opposes the City's burdensome —and illegal —"rent registry" requirements, as codified in the
Santa Ana Municipal Code sections 8-3160, et seq., and as implemented by the City's Rental
Housing Board and Program Administrator (collectively, "Administrator").
Landlords were informed that they would be required to provide sensitive and nonpublic
information to the City as part of their "rent registry" obligations. The demand for this information
is patently unconstitutional and, in some cases, violates the plain terms of the code. To avoid legal
action, the City Council should amend the law (as explained below) and direct the Administrator
to (1) immediately cease and desist from requiring landlords to divulge any and all nonpublic
information, and (2) purge all received information.
I.
Background
On August 15, 2023, the City of Santa Ana launched the rental registry program. Pursuant
to the Municipal Code sections 8-3160, et seq., all landlords in the City must complete and submit
a registration form for each rental unit no later than December 31, 2023. Section 8-3160(g)
specifies the contents of the required registration form: "1) Address of each Rental Unit including
identifying number or letter; 2) Number of bedrooms and bathrooms in the Rental Unit; 3) Name,
current address, and contact information of current Owners, authorized representatives and
property managers; 4) Date of assumption of ownership by current Owners; 5) Current Rent; 6)
Date and amount of last Rent Increase; and 7) Move -in date of current Tenant(s)." Notably, the
law does not require collection and reporting of tenants' personal information.
However, in addition to the items of information listed above, the law requires a landlord
to upload, through the City's "rent registry" portal, "[a]ny notices or documents required to be
Fisher Broyles
October 31, 2023
Page 2 of 4
provided from a Landlord to a Tenant by this Article or any other federal, state, or local law,
including, but not limited to, notice of Rent Increase and notice of eviction." Municipal Code § 8-
3160(g). This demand encompasses leases and rental agreements, which are private contracts
between private parties, and not a matter of public record. The law requires landlords to turn over
these records without the opportunity for pre -compliance review.
In addition, under the City's law, "[t]he Board and/or Program Administrator may adopt
policies and procedures that require additional information to be collected and recorded in
Registration Forms in furtherance of the objectives of this Article." The Administrator wasted no
time in identifying additional information beyond what section 8-3160(g) requires. In notices that
the Administrator sent to all presumed landlords in the City,' the Administrator attached a "Rent
Registry Checklist" stating the information that landlords purportedly must submit to the City via
the portal. See Exhibit A ("Rental Registry Checklist"). Among the information required by the
Administrator is "tenant information such as contact information and preferred language."
Screenshots from the "rent registry" portal confirm that the Administrator is demanding personal
information about tenants and is requiring landlords to inquire about tenants' "preferred language":
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Violation of the "rent registry" requirements is punishable first "through the use of an
administrative citation," then by "prosecution as a misdemeanor or infraction." Municipal Code §
8-3200(a). A misdemeanor is a crime. People v. Park, 56 Cal. 4th 782, 789 (2013) ("The
Legislature has classified most crimes as either a felony or a misdemeanor."). In addition, any
T Even in sending out "rent registry" notices, the Administrator created utter confusion and
consternation among the City's property owners. The City blindly sent out notices to any owner
who pays property taxes, but has not claimed a homeowner's exemption. Those who improperly
received a "rent registry" notice include owners of vacant lots, Mills Act properties, homes held
in trust, short-term rentals (e.g., Airbnb's), corporate -owned housing for visitors, second homes.
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Fisher Broyles
October 31, 2023
Page 3 of 4
"aggrieved person" tenants, the City, the State Attorney General —can bring a civil action for
damages or injunctive relief for violation of the requirements. Id. § 8-3200(b)-(c).
II.
Legal Claims
A. Government Demands for Sensitive and Nonpublic Information Are Unconstitutional
The Fourth Amendment protects "[t]he right of the people to be secure in their persons,
houses, papers, and effects, against unreasonable searches and seizures." It further provides that
"no Warrants shall issue, but upon probable cause." Based on this constitutional text, the Court
has repeatedly held that "searches conducted outside the judicial process, without prior approval
by [a] judge or [a] magistrate [judge], are per se unreasonable ... subject only to a few specifically
established and well -delineated exceptions" not applicable here. City ofLos Angeles v. Patel, 576
U.S. 409, 419 (2015); Arizona v. Gant, 556 U. S. 332, 338 (2009) (quoting Katz v. United States,
389 U.S. 347, 357 (1967)). This rule applies, not just to homes, but to businesses as well. Marshall
v. Barlow's, Inc., 436 U. S. 307, 312 (1978).
"The touchstone of Fourth Amendment analysis is whether a person has a constitutionally
protected reasonable expectation of privacy." California v. Ciraolo, 476 U.S. 207, 211 (1986)
(quoting Katz, 389 U.S. at 360 (Harlan, J., concurring)). To show that a reasonable expectation of
privacy exists, a court must inquire (1) whether a person has a "subjective expectation of privacy
in the object of the challenged search," and (2) whether that expectation is recognized as reasonable
by society. Apt. Ass'n of Greater L.A. v. City ofLos Angeles, 2019 U.S. Dist. LEXIS 191234 (C.D.
Cal. 2019). Significantly, "[c]ourts have frequently recognized that individuals have a substantial
interest in the privacy of their home" such that "home contact information is generally considered
private." Cty. ofL.A. v. L.A. Cty. Emp. Relations Comm'n, 56 Cal. 4th 905, 927 (2013).
Section 8-3160(g) requires landlords to produce all "notice or documents" that any law
requires to be provided by a landlord to a tenant, including leases and rental agreements. But
landlords and tenants have a reasonable expectation of privacy in all such nonpublic documents
exchanged between them. No other law requires such documents to be produced to the
government. Importantly, those documents contain, among other things, highly sensitive
information, including tenants' names and addresses. Cty. ofL.A., 56 Cal. 4th at 927. Section 8-
3160(g) is unconstitutional under the Fourth Amendment because it effectively seizes those
documents on pain of criminal and civil sanctions.
Further, the Administrator requires landlords to directly supply tenant information via the
"rent registry" portal, including tenants' names, addresses, phone numbers, email addresses. It
even requires landlords to ask and report to the government every tenant's "preferred" language.
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Fisher Broyles
October 31, 2023
Page 4 of 4
Such information is not publicly available, and tenants have a reasonable expectation of privacy
in that information. Requiring landlords to seek and report such personal information about their
tenants is unconstitutional under the Fourth Amendment. Cty. ofL.A., 56 Cal. 4th at 927.
B. The Additional Information Required by the Administrator Violates the Municipal
Code, Section 8-316(a)
As noted above, the Municipal Code allows the Administrator to "adopt policies and
procedures that require additional information to be collected and recorded in Registration Forms
in furtherance of the objectives of this Article." Municipal Code § 8-3160(a). The stated
"objective" of the rent registry is to allow the City to monitor rent increases. That can be done
without compelling landlords to collect and report the private details about their tenantsi.e., their
names, addresses, phone numbers, email addresses, and "preferred" language. The Administrator
has promulgated no formal policy or procedure of which the Coalition is aware that justifies the
need for such private information. Therefore, the Administrator's demand for tenant information
violates the plain terms of section 8-1360(a).
III.
Conclusion
The City's "rent registry" requirements, as codified in the code and implemented by the
Administrator, are subject to legal challenge. They violate landlords' and tenants' reasonable
expectation of privacy —in violation of the Fourth Amendment —and even violate the plain terms
of the code itself. The Coalition requests that the City Council amend its code to strike section 8-
1360(g)—so that landlords are not required to produce nonpublic documents to the City —and to
instruct the Administrator to (1) cease and desist from compelling landlords to collect and report
personal and highly sensitive information about their tenants, and (2) purge all such information
received to date.
Very truly yours,
Paul J. Beard 11
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EXHIBIT A
Rental Registry Checklist
An Active Email. Account
Your Property's Assessor Parcel Number (APN)*
Your Property's Identification Number (PIV
Your Property's Rent ROIL or Lease Agreements
Proof of exemption (if applicable)
* Your property's APN and PIN can be found on the registration Letter maiLed to you or by
contacting the Rent StabiLization Program at (714) 667-2209 or rso@santa-ana.org.
Ei Create an Account on the Rental Registry PortaL
* Visit the Rental, Registry website at rentaLregistr santa-ana.org
* Click "Login" to register your email address and create a password
* Check your email for confirmation and to verify your username and password
❑ Add your Rental Property
® CLaim your rental property in the Rental Registry
o Enter your Assessor Parcel Number and Property Identification Number
* Update your contact information
o Enter the name, phone number, emaiL and mailing address of the Property Owner and
Property Manager (if you do not have one, check the "Same as Owner" box)
❑ Add Site Address (if appLicabLe)
gi If the property has more than one site address, follow the instructions to add additional
street address(es) (e.g., a duplex where each unit has a different street address). If aLL of the
rental units on the property have the same site address, skip to the next step
E] Add Rental. Units
* Enter your rental unit information such as unit number, type of occupant in the unit,
amenities included in rent, the rent amount, and aLL other required fields
* Enter tenant information such as contact information and preferred Language
* Continue to add aLL rental units on the property
❑ AppLy for an Exemption(s)
If one or more of the rental. units on your property, or your property as a whole may be
exempt, apply for an exemption by foLLowing the prompts on the screen
Submit your Rental. Registration
Ensure aLL information is correct before submitting your registration form. After submitting,
your "property status" wiLL be updated
Await Further Instructions
* The City wiLL review your registration form and cLaim of exemption(s) (if appLicabLe) to ensure
accuracy and determine the status of your rental unit
* The City wiLL be in contact with you after December 31, 2023 if any further information or
action is needed to complete your registration
Alcala, Abigail
From:Chip Ahlswede <Chip@aaoc.com>
Sent:Tuesday, November 7, 2023 2:24 PM
To:eComment
Subject:Comments from the Apartment Association of Orange County
_________________________________________
525 Cabrillo Park Drive, Suite 125, Santa Ana, CA 92701
Phone: (714) 245-9500 Fax: (714) 245-9505
www.AAOC.com
November 7, 2023
Mayor Amezcua and City Council
20 Civic Center Dr.
Santa Ana, CA 92701
Re: Santa Ana Rent Registry
Dear Mayor Amezcua and members of the Santa Ana City Council:
Thank you for calling for a report from the city staff and consultants regarding the creation of the city’s rent registry.
While we appreciate that the report was given, we take serious issue with several of the assertions made in the report
and would like to correct them for the record.
First, it should be noted that anything requested or contained within the registry itself is not visible to the public. While
the city has provided tutorials, understanding how the system operates isn’t provided. The city only provides a snapshot
– not an operation, which is where these problems become evident.
Second, the Petris Act governing rent registries states the only tenant information the city has the authority to require is
the tenant’s name. That is where the city’s request should begin and end.
Third, the Fair Housing Act prohibits the collection of information indicating a tenant’s nation of origin. The
registry requires submission of the tenant’s preferred language under penalty of perjury.
Fourth, the Consumer Protection Act and the California Consumer Privacy Act require that notification and consent be
given when providing information that may be used by or shared with a third party. Property owners are required to
protect tenants’ privacy. As such there is no point at which a property owner would provide the information requested
by the city and should not be compelled to do so.
Fifth, both federal and state laws dictate that property owners must provide tenants with copies of the documents
related to their tenancy. Accordingly, the city’s request for documents that must be provided to tenants includes all
documents related to those agreements.
Functionally, the registry requires that all this information be entered to proceed, and the system does not allow
incomplete submissions.
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So, while the report suggested that none of these issues are of concern, the state and federal laws governing what was
requested demonstrate the opposite.
Sincerely,
Chip Ahlswede
Vice President of External Affairs
Apartment Association of Orange County . Protecting the rental housing industry since 1961!
e. chip@aaoc.com | t. (714) 245-9500 x. 1416
w. www.aaoc.com | Address 525 Cabrillo Park Drive, Suite 125, Santa Ana, CA 92701
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