BILL ANALYSIS SB 137 Date of Hearing: August 18, 1993 ASSEMBLY COMMITTEE ON HOUSING AND COMMUNITY DEVELOPMENT Dan Hauser, Chair SB 137 (Wright) - As Amended: June 7, 1993 SENATE VOTE: 38-0 SENATE ACTIONS: COMMITTEE JUD. VOTE 8-0 COMMITTEE VOTE Ayes: Ayes: Nays: Nays: SUMMARY Clarifies that the prohibition against discriminating in housing based on šfamilial status shall not apply to senior housing, as specified. Specifies that, for the purpose of state fair housing law, senior housing šdoes not include housing prohibited by federal law and implementing šregulations, as specified. DIGEST Urgency statute. 2/3 vote required. Existing law: 1) The Unruh Civil Rights Act (Unruh Act), prohibits a business establishment from discriminating in the sale or rental of housing based upon age, i.e., familial status. (In Marina Point, Ltd. v. Wolfson (1982), 30 Cal. 3d 72., the California Supreme Court determined that a ban against children in an apartment constitutes arbitrary discrimination under the the Unruh Act.) 2) The Unruh Act, provides an exemption to the age discrimination š prohibition for senior housing, in pertinent part, as follows: a) Housing must be restricted to persons age 62 or older ("qualifying resident"), or b) Housing must be restricted to persons age 55 or older ("senior citizen"), and also - continued - SB 137 Page 1 SB 137 i) Has 150 units in a Standard Metropolitan Statistical Area (SMSA) or 35 units in another area, and ii) Is developed for, or substantially rehabilitated for, the physical and social needs of seniors (certain developments are exempt from the design requirements until January 1, 2000). c) A "qualified permanent resident" may reside in senior housing if the person meets all of the following requirements: i) Was residing with the qualifying resident or senior citizen prior to the death, hospitalization, or other prolonged absence of, or the dissolution of marriage with, the qualifying resident or senior citizen. ii) Was 45 years of age or older, was a spouse cohabitant, or was a person providing primary physical or economical support to the qualifying resident or senior citizen. iii) Has an ownership interest in, or is in expectation of an ownership interest in, the dwelling unit within the housing development that limits occupancy, residency, or use on the basis of age. d) A non-senior qualified permanent resident is entitled to continue residency in the event of the death, dissolution of the marriage, hospitalization, or prolonged absence of the senior resident. 3) The Fair Employment and Housing Act (FEHA), prohibits certain acts of housing discrimination on various bases, including familial status. The FEHA does do not specifically exempt senior housing meeting the criteria for an exemption under the Unruh Act. 4) The federal Fair Housing Amendments Act of 1988 (FHAA), prohibits š housing discrimination on the basis of familial status (i.e., the presence of one or more children under 18 in the household). The FHAA permits seniors-only housing under specified conditions, in pertinent part, as follows: a) Housing provided under any state or federal program that the Secretary of Housing and Urban Development (HUD) determines is specifically designed and operated to assist elderly persons (as defined in the state or federal program), or b) Housing intended for, solely occupied by, persons 62 years of age or older, or c) Housing intended and operated for occupancy by at least one person 55 years of age or older per unit. In determining whether housing qualifies as housing for older persons under this subsection, the š - continued - SB 137 Page 2 SB 137 Secretary is required to develop regulations which require, among other šthings: i) The existence of significant facilities and services specifically designed to meet the physical or social needs of older persons, or if the provision of such facilities and services is not practicable, that such housing is necessary to provide important housing opportunities for older persons; and ii) That at least 80 percent of the units are occupied by at least one person 55 years of age or older per unit; and iii) The publication of, and adherence to, policies and procedures which demonstrate an intent by the owner or manager to provide housing for persons 55 years of age or older. 5) The FHAA, requires complaints filed with the HUD to be referred to a state or local agency if the agency has jurisdiction and is certified by HUD as having substantive protections, procedures, and remedies "substantially equivalent" to HUD in fair housing enforcement. 6) The FHAA, provides that any law of a state or political subdivision that purports to require or permit any action that would be a discriminatory housing practice under the FHAA is to that extent invalid. This bill: 1) Specifies that senior housing which is permissibly exempted from the familial status prohibition under FHAA and implementing regulations is also not permissible under the Unruh Act. 2) Provides that the familial discrimination prohibition in the FEHA does not apply to "housing for older persons", as defined, and to the senior housing exemption in the Unruh Act. 3) Defines "housing for older persons" as follows: a) Housing provided under any state or federal program that the Secretary of HUD determines is specifically designed and operated to assist elderly persons, as defined in the state or federal program; or b) Housing that meets the standards for senior housing specified under Unruh Act, except housing as to which those provisions are pre- empted by the prohibition against familial status discrimination in the FHAA; or c) Mobilehomes in mobilehome parks that meet the standards for "housing for older persons," as defined in the FHAA. - continued - SB 137 Page 3 SB 137 4) Provides that a person asserting he/she has not discriminated on the basis of familial status has the burden of showing (burden of proof) that the housing is "housing for older persons" within the above stated meaning. FISCAL EFFECT None. COMMENTS 1) A Very Short History of Fair Housing Legislation: Two measures were š introduced last session, AB 531 (Polanco) and SB 1234 (Calderon), to amend California's fair housing laws to achieve substantially equivalence to the FHAA. Both bills added "familial status" o the FEHA as a basis upon which one cannot discriminate in housing. AB 531 was sponsored and supported by a substantial number of housing advocacy and civil rights groups. SB 1234 was sponsored by the California Association of Realtors and was supported by the California Department of Fair Employment and Housing (DFEH), the California Apartment Association, the League of Cities, and other groups who opposed AB 531. Both bills were passed by the Legislature. SB 1234 was signed by the š Governor. AB 531 was vetoed. 2) DFEH Not Certified: Following the enactment of SB 1234, DFEH requested HUD for certification as a "substantially equivalent" agency. HUD has determined that "significant differences" exist between the state and federal fair housing laws and, to date, has not certified DFEH. As a consequence, California is not certified and is not receiving federal funds for enforcement of fair housing laws. 3) Federal Senior Housing Exemption - It Is a Puzzlement: The senior housing exemption contained in the FHAA, and as implemented by HUD regulations, is arcane, clumsy, and impractical. For example, in response to comments about HUD's proposed regulations implementing the FHAA, HUD agreed that it was not advisable to follow its own example of how to comply with the 55-and-over housing exemption. Further, under the 55-and-over exemption, a surviving non-senior spouse of a deceased senior could be placed in the anomalous position of not being able to live in the unit he/she owns. Finally, HUD regulations merely illustrate the circumstances that would qualify a facility for the 55- and-over exemption. HUD will not certify any facility as having qualified for the exemption. 4) Whither California's Senior Housing Exemption? HUD states that the FEHA prohibition of discrimination based on familial status is narrower than that contained in the FHAA because it is limited by the Unruh Act. HUD argues that the Unruh Act's senior housing exemption may not meet the requirements of the FHAA's 62-and-older and 55-and- older exemptions. - continued - SB 137 Page 4 SB 137 Under the Unruh Act, any number of "qualified permanent residents" who are under age 62 or age 55 lawfully may reside in senior housing; under the FHAA, one person under age 62 would render invalid the 62-and-older exemption, and the 55-and-older exemption would be invalid if 21 percent of the units are occupied by persons under age 55. Based upon the foregoing, numerous senior housing developments in California do not meet the requirements of the FEHA and HUD regulations. Thus, units in these developments may not be restricted to seniors and must, perforce, be made available to non-seniors, including families with children. 5) This Bill - Denouement. This bill clarifies that the familial status discrimination prohibition in the FEHA is not applicable to the senior housing exemption found in the Unruh Act. This bill renders senior housing developments which are invalid under the FHAA also invalid under the FEHA. Thus, an aggrieved person wishing to challenge the validity of a senior development could find an administrative remedy through DFEH, or a state court of appropriate jurisdiction, instead of HUD. 6) Does the author wish to double-join this bill with AB 2244 (Polanco) š which includes similar provisions? SUPPORT None received. OPPOSE None received. - continued - SB 137 Page 5