New Fresno law allows tenants to be penalized for blight

The Fresno City Council voted unanimously Thursday to adopt an ordinance that adds occupants of a property, and others, to the list of who can be penalized for chronic nuisances or blight in rental housing.

The city’s previous ordinance held property owners accountable. It required tenants to follow laws, supervise anyone using or occupying the property, and maintain the property so it doesn’t become a nuisance or blight. But it did not hold lessees or occupants responsible for penalties if they violated the ordinance.

The amendments make property managers, condominium owners’ associations and occupants subject to penalties for nuisance issues. The amendments also expand the types of disruptive activities, disturbances and criminal behavior that would qualify.

Despite changes by Councilman Oliver Baines, the ordinance remained controversial. Tenants-rights advocates sent letters to the council on Monday, saying the ordinance still raises fair-housing concerns.

Abre’ Conner, an attorney with the American Civil Liberties Union, said in a blog post Thursday that the ordinance is overly broad and vague, and leaves room for discrimination and unfair enforcement against occupants.

“There are tons of constitutional pitfalls throughout the entire ordinance,” she said after the vote.

The ordinance lists many unlawful nuisances:

• Sale, use, cultivation or possession of illegal drugs
• Gathering or coming and going of people who engage in criminal activity on the premises, including prostitution, gang activity, making “loud, unnecessary or unusual noise which disturbs the peace and quiet of the neighborhood, or which causes discomfort or annoyance to any reasonable person of normal sensitiveness”
• Showing or discharging a firearm or weapon
• Frequent response by Fresno Police Department for animal disturbances, “violent or nonviolent criminal acts, charged or not,” public intoxication, gambling, juvenile or domestic disturbances (excluding domestic violence calls)
• Presence of graffiti, trash and abandoned, non-working or improperly stored vehicles
• Violations of housing, building and fire regulations
• Illegal sale, use or possession of firearms
• Harboring or hiding a person with an outstanding warrant for arrest
• Illegal subletting or subdividing of residences

Some of those nuisances can be cited only to the property owner, manager or homeowners’ association unless a specific responsible person can be identified.

Nuisances that are not removed or resolved can result in legal action and fines of $1,000 for a first violation, $10,000 for a second violation and $10,000 to $50,000 for a third violation within a year – plus any abatement, administrative and enforcement costs.

Conner said the law could target survivors of domestic violence if a police call is treated as a call for service.

“If, for example, somebody calls the police to complain that people are arguing or fighting nearby but does not know that it is a domestic violence situation, does that qualify as a domestic violence call for service?” she said in a Monday letter to the council.

Conner said that a ban on “loud, unnecessary or unusual noise” is unconstitutional and open to bias. Plus, she said, the ordinance could punish people for false complaints against them, based on the language about frequent response by police for criminal acts that are “charged or not.”

The Western Center on Law and Poverty, the local group Leadership Counsel for Justice and Accountability and Tenants Together made many of the same points in a joint letter Wednesday to the council. They said the law lacks due process and will not withstand legal challenge.

In a recent memo to the council, City Attorney Douglas Sloan said he would never allow the ordinance to be abused to prosecute tenants when nuisances occur that are beyond their control, or when the owner is responsible.

The controversy flared in the wake of a four-month investigation by The Bee into the living conditions endured by many of Fresno’s low-income residents in substandard rentals. The report, “Living in Misery,” documented the city’s struggles to deal with the crisis.

Baines clarified that the ordinance is not intended to replace or supersede a routine interior inspection program. The city’s Code Enforcement Task Force is crafting a program that would institute such inspections of rental units, checking for safety and health concerns, rather than nuisances.

His changes also enable the city’s code enforcement hearing officers, who oversee appeals, to determine who is responsible for nuisance fines, depending on evidence showing where the bulk of the blame lies.

Advocates, including the local nonprofit Faith in Community and the ACLU, also sent letters last week to the council, expressing concern about the law. Fresno Building Healthy Communities, another advocacy organization, sent a letter to the U.S. Department of Justice asking the agency to intervene.

Andy Levine, executive director of Faith in Community, said the way the ordinance was adopted was rushed, confusing and undemocratic. And he said the law feels like a distraction from substantial housing reform.

“We really need to keep focused on comprehensive interior inspections,” he said. “Anything we do before that is premature.”

The vote included Councilman Lee Brand, a candidate for mayor who owns and manages property around the city. Sloan said there was no conflict of interest for Brand because it involved a citywide ordinance.

This story was originally published May 19, 2016 at 6:09 PM with the headline "New Fresno law allows tenants to be penalized for blight."