Sacramento Report
by Debra Carlton
In February 2005, Senator Kehoe (D-San Diego) introduced SB 540, a bill aimed at stopping a rental-property owner from interfering with a tenant who displays noncommercial signs, posters, flags or banners anywhere on the leased premises. The bill states that its provisions are simply declarations of an existing law. The California Apartment Association (CAA) has taken a stand in opposition to the bill and has argued that the legislation proposes a significant and likely unconstitutional interference with an owner’s right to possession of his/her property.
More specifically, SB 540 would require a property owner to allow tenants to post any type of noncommercial signs or banners on any area of the rental property, including common areas shared by the entire residential rental community. In effect, the bill would deny owners the ability to impose rules necessary for safety, to address liability issues, to prevent damage to the premises, and to prevent visual blight that may negatively affect the other residents and the surrounding community.
As introduced, the bill states that its provisions are “declaratory of existing law.” However, there is no law that currently requires an owner of residential rental property to allow a tenant(s) to post any type of noncommercial sign on any area of the leased property. This intrusion into an owner’s property rights is not supported by the First Amendment’s right to free speech nor any other federal or state law. Moreover, the provisions proposed by SB 540 go substantially beyond the scope of existing California statutes cited by the author in support of the bill.
CAA has argued that the California Supreme Court has refused to extend the constitutional right of freedom of speech to situations that involve private conduct, except where the restriction occurs in an area similar to a traditional “public forum.” The California courts have consistently held that residential rental buildings have not taken on a “public forum” character. In the Golden Gateway Center v. Golden Gateway Tenant’s Assn., a case in which the CAA participated as an amicus in 2001, the California Supreme Court held that the tenants’ association did not have the right to distribute its unsolicited newsletter on or under the apartment doors of all tenants in the complex.
SB 540 would allow tenants to post on every door, hallway and common area the very same fliers the distribution of which the California Supreme Court has indicated can be prohibited by the property owner. This extension of a tenant’s free speech rights would constitute a significant intrusion into the owner’s property rights and a significant departure from “existing law.”
This bill also goes far beyond other similar statutes that have been introduced in recent history. Condominium owners, for example, have the right under the existing law to display a flag of the United States “on or in the owner’s separate interest or within the owner’s exclusive use common area.” In other words: inside the individual condominium (the separate interest) or on a balcony, doorstep or porch (the exclusive use common area). At the same time, a law that governs mobile homes provides that tenants of mobile home parks have a right to post “political campaign signs” in the window, on the side of the home, or within the site on which the home is located or installed. The signs may be posted 90 days before the election and must be removed within 15 days following an election. In the case of a mobile home, the tenant generally owns the home but rents the site on which it is installed. While the law does allow the tenant to post a sign on the exterior of the structure or on the lawn in front of his or her mobile home, the right to post is limited to political campaign signs, and is further limited in terms of time and removal of posting.
This bill will likely have a first hearing in the Senate Judiciary Committee. We will keep you posted as the author attempts to move it through the process.
The opinions expressed in this article are those of the author and do not necessarily reflect the viewpoint of SFAA or the San Francisco Apartment Magazine. Debra Carlton is senior vice president of legislative affairs for the California Apartment Association and is CAA’s chief lobbyist. Copyright © 2005 by the San Francisco Apartment Magazine. All rights reserved.