BILL ANALYSIS
SENATE JUDICIARY COMMITTEE
Senator Joseph L. Dunn, Chair
2005-2006 Regular Session
AB 1574 A
Assembly Member Jones B
As Amended July 6, 2005
Hearing Date: July 12, 2005 1
Government Code 5
GMO:cjt 7
4
SUBJECT
Housing: Discrimination
DESCRIPTION
This bill would authorize the City of Sacramento and the
County of Sacramento to enact local ordinances that are
substantively identical to state laws prohibiting
discrimination in housing as set forth in the Fair
Employment and Housing Act (FEHA).
The bill contains legislative findings and declarations
that this authority is intended only as a pilot program for
extending authority to every other city or county in the
state to enact laws prohibiting discrimination in housing.
The authority granted by this bill would remain in effect
only until December 31, 2009 and could not be renewed or
extended unless and until the Legislature has had the
opportunity to review the success of the pilot program.
BACKGROUND
Administered by the federal Housing and Urban Development
Department (HUD), Fair Housing Assistance Program (FHAP)
funds are provided to state and local jurisdictions to
assist them with fair housing law enforcement. In order to
qualify for this funding, a state or local government must
show that it can enforce fair housing laws "substantially
equivalent" to the federal Fair Housing Act. HUD has
(more)
AB 1574 (Jones)
Page 2
determined that California's FEHA is "substantially
equivalent" to the federal Fair Housing Act.
However, when the Legislature enacted FEHA, it preempted
local jurisdictions from adopting their own ordinances for
fair housing. Under FEHA, the Department of Fair
Employment and Housing is the agency designated to enforce
the fair housing laws in the state, and is, therefore, the
only agency that qualifies to apply for federal FHAP funds.
CHANGES TO EXISTING LAW
Existing law , the Fair Employment and Housing Act, states
the intent of the Legislature to occupy the field of fair
housing laws and authorizes the Department of Fair
Employment and Housing to receive, investigate, or
conciliate complaints or to issue accusations regarding
unlawful employment or housing discrimination practices.
This bill would authorize the County of Sacramento and the
City of Sacramento to enact ordinances that are
substantively identical to provisions in the Fair
Employment and Housing Act that prohibit discrimination in
housing. It would require the local fair housing
enforcement agency to conform the interpretation,
application, and enforcement of the ordinance to the
practices and precedents established by the department.
This bill would permit a person with a complaint of
discrimination in housing to bring the complaint either to
the Department of Fair Employment and Housing or the local
Fair Employment and Housing Commission of Sacramento. This
bill would require the two agencies to cooperate to ensure
that the same complaint is not filed with both agencies.
This bill would grant the authority to enact local fair
housing laws only as a pilot program in the City of
Sacramento and the County of Sacramento until December 31,
2009 and would preclude its extension or renewal unless and
until the Legislature has had the opportunity to review the
success of the pilot program.
This bill contains legislative findings and declarations
regarding the need for the pilot program and the intent
AB 1574 (Jones)
Page 3
that any local act not add to or expand upon the rights,
benefits, obligations, protections or classes of persons
covered by the FEHA.
COMMENT
1. Stated need for the bill
According to the author:
If the bill was enacted, the city and county of
Sacramento, through its Human Right/Fair Housing
Commission, could apply for funding so long as
these respective jurisdictions enacted housing
discrimination laws equal to FEHA. Other states,
such as Florida and Texas, allow their local
governments to enact laws that are deemed
substantially equivalent to the federal Fair
Housing Act. As a result, these locals are
accessing FHAP money?AB 1574 would permit the
[city and county] to enact a local fair housing
law equal to the state law so that the Sacramento
Fair Housing Commission can receive federal
funding for fair housing cases it investigates.
Even though the aim of the bill is only to enable the
local jurisdiction to qualify for the available federal
FHAP funds, AB 1574 does not state this limitation. In
fact, the language of the bill indicates it is a pilot
program "for extending authority to enact laws
prohibiting discrimination in housing to every city,
county, city and county, and any political subdivisions
in the state."
SHOULD THE SPECIFIC PURPOSE FOR AUTHORIZING THE COUNTY
AND THE CITY OF SACRAMENTO TO ADOPT FAIR HOUSING
ORDINANCES BE EXPRESSED IN THE BILL?
By doing so, no city or county may in the future adopt
fair housing laws unless it is for the purpose of seeking
the federal funds. This would, at least, preserve the
Legislature's intent to preempt the field of fair housing
laws.
2. DFEH opposition: bill would balkanize state fair
AB 1574 (Jones)
Page 4
housing laws and decrease state FHAP funds
The Department of Fair Employment and Housing opposes
this bill on several grounds. First, it asserts that
allowing local jurisdictions to intake, investigate and
prosecute housing discrimination complaints could result
in an uneven interpretation of the housing discrimination
laws, and that having only one body (the department) to
investigate cases statewide ensures an unbiased and
uniform application of the laws no matter where one lives
in California.
Second, the DFEH is concerned that while AB 1574 applies
to Sacramento County and Sacramento City only, it "sets a
dangerous precedent that could adversely impact tenants
and landlords throughout the state." The department also
believes that many local jurisdictions will see the bill
as an alternative funding source, seek their own
authority to enforce fair housing laws, and thus reduce
the DFEH federal FHAP funding. The department, it
states, is a nationally recognized national model for
their programs in the enforcement of housing
anti-discrimination laws, and the breakdown of a unified
approach in California could affect the state's ability
to harness enforcement assistance funds from the federal
government.
According to proponents, however, FHAP funds are not
allocated on a per capita basis. Rather, funds are
appropriated each year by Congress, and jurisdictions are
funded based on their caseload. Also, they state, AB
1574 "does not grant any new authority to the Sacramento
Fair Housing Commission that it does not already have.
Sacramento already investigates and has authority to
prosecute fair housing cases."
When asked to explain this statement, proponent
Sacramento Human Right/Fair Housing Commission stated
that the Commission receives Community Development Block
Grants (CDBG) now that it uses to intake and investigate
cases brought by complainants and that it is not
reimbursed by the state for work it has done on cases
that are turned over to the DFEH. The state could
receive FHAP funds for the same cases, however. This
bill would provide the Commission with a new source of
funds so that it may undertake more cases. Whether this
AB 1574 (Jones)
Page 5
would result in a decrease in FHAP funds to the state is
yet to be seen. As well, whether the local housing
agency will be able to qualify and receive FHAP funds to
supplement its resources is also speculative.
When asked whether or not the city and/or county has
attempted to secure a contract with the DFEH for
reimbursement from FHAP funds for work done on housing
complaints, the Commission indicated the state was not
interested in such contracts. Perhaps this is the better
approach and the state should be required to reimburse
out of the FHAP funds those jurisdictions that have
strong enforcement records.
SHOULD THE STATE BE REQUIRED INSTEAD TO SHARE THE FHAP
FUNDS WITH LOCAL JURISDICTIONS THAT ENFORCE THE STATE
LAWS?
In this way, there would be no need for the authority
requested by the City and the County of Sacramento to
enact their own fair housing ordinances.
3. AB 1574 would sunset in four years, but should it also
preclude other jurisdictions from seeking the same
authority during that time?
AB 1574 would sunset on December 31, 2009. The bill also
specifies that its terms shall not be extended or renewed
unless and until the Legislature has had the opportunity
to review the success of the pilot program. However,
this condition on renewal or extension of the authority
is couched only as intent language. The phrase "[i]t is
the intent of the Legislature that" should therefore be
deleted from Section 4 of the bill to effectuate the
sunset.
SHOULD THE BILL BE SO AMENDED?
Although the bill would sunset in four years, there is no
guarantee that the authority granted to Sacramento City
and Sacramento County by AB 1574 would not be sought by
any other local jurisdiction in the interim. If so, the
result could be the de facto repeal of the legislative
intent that FEHA preempt local laws. Unless the
authority granted in AB 1574 is limited to the purpose of
seeking additional federal funds for enforcement of
AB 1574 (Jones)
Page 6
housing anti-discrimination laws and unless there is an
explicit prohibition against granting any other local
government or agency the same authority until the success
of the pilot program is evaluated, the balkanization of
the state's fair housing laws is indeed likely to happen.
SHOULD THESE FURTHER LIMITATIONS BE PLACED ON THE GRANT
OF AUTHORITY PROVIDED BY THIS BILL TO SACRAMENTO?
SHOULD THIS BILL ALSO PRECLUDE OTHER JURISDICTIONS FROM
SEEKING THE SAME AUTHORITY TO ENACT FAIR HOUSING LAWSTO
PREVENT BALKINIZATION?
On the other hand, the grant of authority only to the
City of Sacramento and the County of Sacramento may be
too restrictive, when there are other jurisdictions with
even larger populations that may want the authority and
the ability to apply for federal funds during the next
four years. San Francisco, for example, has a very
active housing enforcement authority, and may not want to
wait four years before seeking an exemption from the
preemption of local fair housing laws by FEHA.
4. Bill would not add to or expand rights, benefits,
obligations, protections or classes of persons covered by
the FEHA
The doctrine of preemption generally means that where the
state has expressed its intent to occupy the field, no
local government or subdivision in the state may enact
laws regulating the same field. In addition to
recognizing that it is the state's power that is being
extended to Sacramento County and Sacramento City by this
bill, AB 1574 also expressly states the Legislature's
intent that no law enacted pursuant to this authority
would expand or add to the protections, benefits, rights,
obligations or classes of persons covered by FEHA.
This restriction however is couched only as intent
language (see Section 4 of the bill). To ensure that in
fact no more nor less than the FEHA standards are enacted
into any local fair housing law, the phrase "[i]t is the
intent of the Legislature that" should be deleted from
Section 3 of the bill.
AB 1574 (Jones)
Page 7
SHOULD THE BILL BE SO AMENDED?
Support: City of Sacramento; County of Sacramento; The
Natoma Company
Opposition: California Apartment Association; Apartment
Association of Orange County; California
Association of Realtors; Apartment Association
of Greater Los Angeles; Department of Fair
Employment and Housing
HISTORY
Source: Human Rights/Fair Housing Commission of the City
and County of Sacramento
Related Pending Legislation: None Known
Prior Legislation: None Known
Prior Vote:Asm. Jud. (Ayes 6, Noes 3)
Asm. H. & C.D. (Ayes 5, Noes 1)
Asm. Flr. (Ayes 42, Noes 32)
**************