Alcala, 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 ReRent 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 aspart of their " rent registry" obligations. The demandfor this information is patently unconstitutional and, in some cases, violates the plain terms of the code. To avoid legal action, the City Council should amendthe 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 sections8-3160, 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 eachRental 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
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 Increaseand notice of eviction." Municipal Code § 8- 3160( g). This demand encompassesleases and rental agreements, which are private contracts betweenprivate 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 sentto 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" requirementsis punishablefirst " throughthe use of an administrative citation," then by " prosecutionas a misdemeanoror infraction." Municipal Code § 8- 3200(a). A misdemeanoris a crime. People v. Park, 56 Cal. 4th 782, 789 ( 2013) ("The Legislature has classifiedmost crimesas eithera felonyor a misdemeanor."). In addition, any T Evenin sendingout " rent registry" notices, the Administratorcreated utter confusionand consternation among the City's propertyowners. The City blindlysent out noticesto anyownerwho pays propertytaxes, but has not claimeda homeowner's exemption. Those who improperlyreceived a " rentregistry" notice includeowners of vacantlots, Mills Act properties, homes held in trust, short- term rentals (e. g., Airbnb's), corporate -owned housingfor visitors, second homes. P 11PJ1, [A J /\ U!_, 111141 I I ARJt iI II' r I{ I(,,AG,O II It; IvwIU\ II UI VL_LAI',L_ a I f,( Yl. 1. 11M1fl.J? I LIVJ_.L_ A J INVI— R, LA, RUI I I I(. UL,,l f.) I` III I_UNL. UI'4 LL(,)" ,Vl At kLi: P.. I. J ( IVId'(MI 10' 1 1. 1""", 1 1`,ILW ' Y 4.aRU,,,' I P/' I— Y AL I C) PIIIIAIDI:r.IJ` 1IIV" I PI,`LlhC, I_ L() lNJ I II./\ KI ( IIYI ` C. AIIL. Ii j VVf' 0; 31III1(x10\ D,(;';.
Fisher Broyles
October 31, 2023
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 securein 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 hasrepeatedly held that " searchesconducted outside the judicial process, without prior approval by [ a] judge or [ a] magistrate [ judge], are per se unreasonable ... subject only to a few specifically establishedandwell -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, notjust to homes, but to businessesaswell. 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 evenrequires landlords to ask and report to the government every tenant's "preferred" language.
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Fisher Broyles
October 31, 2023
Such information is not publicly available, and tenantshave a reasonableexpectation of privacy in that information. Requiring landlords to seek and report suchpersonal information about their tenantsis 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 proceduresthat 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 haspromulgated 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 requeststhat the City Council amend its codeto 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 ROILor 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 Checkyour 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 aLLrental 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 aLLinformation is correct before submitting your registration form. After submitting, your " property status" wiLLbe updated
Await Further Instructions
The City wiLLreview your registration form and cLaim of exemption( s) (if appLicabLe) to ensure accuracy and determine the status of your rental unit
The City wiLLbe in contact with you after December 31, 2023 if any further information or action is needed to complete your registration