SF Apartment : March 2016


Three’s a Crowd

by Debra Carlton

We are in the second half of a two-year legislative session, and the California Legislature had until the third week of February to introduce new bills. In addition, two state departments have proposed controversial regulations. Below are summaries, as well as links to CAA’s more extensive comments.

Department of Fair Employment and Housing
The Fair Employment and Housing Council, which falls under the Department of Fair Employment and Housing, has proposed extensive fair housing regulations that are not friendly to the rental housing industry. CAA believes that many of the provisions exceed the department’s regulatory authority and are inconsistent with existing law.

The draft guidelines propose to establish an Unreasonable Occupancy Standard similar to the Uniform Housing Code’s maximum occupancy. If put into law, these guidelines would double or even triple the number of people a property owner can currently allow in a rental unit. The draft guidelines would also require owners to allow tenants to smoke medical marijuana at the property and would assume a tenant’s request for an assistive/companion animal is reasonable.

Occupancy Standards
The only statewide occupancy standards currently fall under the Uniform Housing Code and are designed for occupancy load and safety; they were written to ensure there is no overcrowding in housing. Rental property owners have historically set occupancy limits for economic reasons. Owners must plan for the number of individuals in their units and budget for utilities, garbage pickup and routine maintenance. Generally, a standard of two per bedroom, plus one—adjusted up or down based on conditions at the specific property—is generally viewed as the nondiscriminatory standard.

By contrast, the occupancy standards in the proposal would more than double the number of occupants that must be allowed and would create an absolute prohibition of more restrictive standards. This would remove the ability of owners to set reasonable occupancy standards based on actual conditions at the property. The proposal also does not count children as “occupants,” resulting in an even higher occupancy that can exceed safety limits. In addition, the proposal is based on square footage, meaning mistakes in measuring can result in significant liability. The legal and practical problems with this approach, including excessive water usage, a lack of parking and impacts on the rental community and surrounding neighborhood are described more fully in CAA’s comments. To read CAA’s comments to the council, go to: caanet.org/dfeh_comments.

Medical Marijuana 
The DFEH proposal exempts medical marijuana from the definition of a “controlled substance.” Owners would be required to allow a tenant with a medical marijuana card to smoke at the property. However, the general consensus within and outside the rental housing industry is that landlords are not required to allow tenants to smoke and grow medical marijuana in rental housing. While the state’s Compassionate Use Act decriminalizes marijuana, it does not create a right to use or grow it anywhere.

Assistive Animals 
The draft regulations provide that requests for assistive animals by tenants “shall be deemed presumptively reasonable and shall be granted” unless the housing provider can demonstrate “undue hardship.” This presumption jumps ahead of the first steps in the reasonable-accommodation process, which includes establishing the disability of the requestor and the need for the animal, if they are not obvious, and the regulations disregard the correct “undue burden” standard.

Proposition 65 Proposed Regulatory Changes
The California Apartment Association has submitted a second round of comments to the Office of Environmental Health Hazard Assessments on its Proposition 65 warning regulations. The proposed regulations are intended to provide more information to consumers and other members of the public. While the current proposal is less onerous for the rental housing industry than the 2014 version, significant issues remain. (By way of background, Proposition 65 was enacted by voters in 1986; it requires businesses with 10 or more employees to provide warnings prior to exposing any person to chemicals that cause cancer and/or reproductive toxicity.)

While Proposition 65 has motivated businesses to eliminate or reduce toxic chemicals in consumer products, it is abused by some lawyers who file lawsuits against property owners, claiming they failed to adequately warn their employees. Such attorneys bring nuisance lawsuits to extract money settlements from businesses, with little or no benefit to the public or the environment. Since 2008, nearly 2,000 complaints have been filed by these “citizen attorney enforcers.”
Although compliance with the proposed regulations is technically voluntary and businesses are free to design their own warning programs, the proposed regulations provide the only guidance to comply with Proposition 65 and would no doubt be viewed as authoritative.

The proposal deviates in several significant ways from CAA’s current recommended warning scheme. In late 2014, CAA submitted the first comments on the proposal. The proposal was later significantly modified in response to CAA’s comments and comments from other business groups. Significant concerns, however, remain.

CAA’s January 2016 comments to the Office of Environmental Health Hazard Assessment can be found at: caanet.org/prop65_comments. 

Debra Carlton is the senior vice president of public affairs for the California Apartment Association.