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How To Comply With the California Sex Offender Disclosure Law 3

 

As a landlord, you may want to know how to comply with the California Sex Offender Disclosure Law.

Luckily, several California attorneys provide the answer to this question.

 

How do Landlords Comply with the California Sex Offender Disclosure Law?

 

California requires landlords to make the following written disclosure to their tenants at the start of the rental period:

Notice: Pursuant to Section 290.46 of the Penal Code, information about specified registered sex offenders is made available to the public via the California Megan’s Law Website operated by the California Department of Justice. Depending on an offender’s criminal history, this information will include either the address at which the offender resides or the community of residence and ZIP Code in which he or she resides.” (Source)

 

Understanding California’s Megan’s Law

 

It all began back in the 1990s with the rape and murder of a seven-year-old girl named Megan Kanka. Public outcry across America led to new laws about sex offenders.

In 1996, President Bill Clinton signed  Megan’s Law requiring sex offenders to register with the National Sex Offender Registry managed by the FBI.

Every state followed this law by maintaining their own state registries of their sex offenders.

Landlords across the U.S. began to deal with tenant screening concerning Megan’s Law. Yet, confusion existed amongst landlords in different states about what information they must disclose and how.

 

Federal Laws about Housing Discrimination Based on Criminal History

 

In 2016, “the U.S. Department of Housing and Urban Development (HUD) put landlords and other housing providers on notice that a policy of denying housing to anyone with a prior arrest or any kind of criminal conviction would violate the Fair Housing Act”.

Thus, HUD declared that a policy of refusing to rent housing to anyone with a criminal conviction or a prior arrest violates the federal Fair Housing Act.

So, how do landlords comply with the U.S. Fair Housing Act while discovering a tenant applicant is on the Megan’s Law website?

Also in 2016, HUD published guidelines for landlords about how to comply with Megan’s Law.

The HUD guidelines recommend never to use arrest history as the only criterion for rejecting a housing applicant.

It even recommends going over the facts of the convictions to understand the individual and the circumstances of the crime. In other words, evaluate every individual crime and the circumstances before deciding to rent or not.

 

Landlords Must Prove a Good Reason to Exclude an Applicant based on Criminal History

 

In 2016, HUD Secretary Julian Castro, explained the new guidelines this way:

HUD makes it clear that “[b]ald assertions based on generalizations or stereotypes that any individual with an arrest or conviction record poses a greater risk than any individual without such a record are not sufficient to satisfy this burden.”

So much confusion occurred amongst landlords nationwide that HUD published a new memo providing further guidance about using arrest and conviction records when considering a tenant’s application. (Source)

The new HUD guidelines ask landlords to consider if an applicant poses an immediate threat to other tenants, guests, and employees.

Landlords must consider the nature and age of the conviction and any relevant intervening facts.

For example, a recent rape of a neighbor’s child counts a lot more than a statutory rape conviction 20 years ago followed by a crime-free life.

Before providing the solution to the federal law let’s explore California’s law which follows Megan’s Law.

 

Megan’s Law Applied in California

 

California Penal Code 290.46 applied Megan’s Law for the state. The last amendments about housing restrictions enacted in March of 2018.

 

How California Sex Offenders Register

 

As for sex offenders, the California Megan’s Law requires personal registration with his or her local law enforcement agency.

The registration must occur within 5 working days of:

  • Sentencing (if no jail time required); or
  • Release from custody; or
  • Discharge from a mental institution or a hospital.

Also, the law requires every sex offender to update all their information within 5 working days after each birthday.

Furthermore, circumstances require reporting:

  • When the offender moves;
  • If the offender becomes a transient (no permanent address);
  • A judge declares the offender a “sexually violent predator”; or
  • The offender enrolls or becomes employed by a California institution of higher learning.

Plus, the court who convicted the sex offender also notifies the California Department of Justice (DOJ) to monitor the offender’s reporting compliance.

 

The California Megan’s Law Website

 

After reporting to a local law enforcement agency, the agency forwards the information to the California DOJ. The DOJ maintains a Sex Offender Tracking Program of all sex offenders. (Source)

This registry provides information to the public who use it to protect their families from predators.

The information on the Megan’s Law website includes:

  • The offender’s name;
  • A photo;
  • Identifying information (like eye color, height/weight, scars or tattoos, and known aliases);
  • The specific offenses under California Penal Code 290 sex offender registration law; and
  • Home address for serious risk offenders, or ZIP Code for less serious offenders. (Source)

 

Must California Landlords Rent to Registered Sex Offenders?

 

This is the crust of how to comply with the California Sex Offender Disclosure Law.

The big question for most landlords:

Do California landlords maintain the right to refuse to rent to sex offenders?

A California case involving a convicted sex offender known as the “Pillowcase Rapist” who raped 40 women. After his parole, he found housing difficult. He tried to rent an apartment in his old California neighborhood.

The property management company reviewed his application and rejected him due to his criminal background check. Since sex offenders do not get protection as a fair housing law “protected class” the landlord maintained the legal right to refuse rent. (Source)

But, what about HUD’s enforcement of the Fair Housing Law against discrimination of housing applicants convicted of crimes?

 

The Dilemma of Megan’s Law About How to Comply with the California Sex Offender Disclosure Law

 

The purpose of the Megan’s Law website enables parents to protect their children from sexual predators. Identifying sex offenders living in specific neighborhoods allows parents to shield and supervise their children more closely.

While a neighbor appears friendly the Megan’s Law website warns parents from allowing a sex offender to babysit or escort their children.

But, the Megan’s Law list does not allow discrimination against the sex offender after he or she served their prison time.

 

Misuse of the Megan’s Law Website brings Punishment Against Landlords

 

California law states landlords cannot use information obtained in Megan’s Law website to discriminate against a registered sex offender by denying tenancy or evicting the tenant. (Source)

So, if a landlord finds an applicant’s name on Megan’s List website and rejects the applicant, the sex offender may complain to California and federal fair housing agencies about the discrimination. Also, the sex offender may file a lawsuit against the landlord.

 

How can Landlords Protect their Tenants from Sex Offenders Living amongst Them?

 

One California law firm describes landlords “between a rock and a hard place” regarding the California Megan’s Law.

While the law allows public access to sex offenders’ information the same law makes it illegal and allows government civil penalties against landlords who use the Megan’s Law website to reject sex offender applicants.

They advise landlords to tell their employees and managers not to use the Megan’s Law website to see if an applicant appears and then use that information to reject the application.

The exception to Megan’s Law allows landlords to use separate criminal background searches and credit checks to find the sex offender status.

Thus, housing discrimination against sex offenders originating from the Megan’s Law website leads to government fines. But, it’s legal to discover an applicant’s sex offender convictions by conducting criminal background and credit checks.

 

Landlords Must Conduct Proper Tenant Screening

 

Avoiding the Megan’s Law penalties requires California landlords to conduct thorough criminal background searches and credit checks before renting.

 

If an Applicant Lies on the Tenancy Application

 

Many sex offenders try to hide their status. Some even lie on their housing applications.

Catching a registered sex offender lying on the application for tenancy creates legal grounds for denying the housing application. It amounts to a breach of contract of the lease agreement.

 

Conclusion

 

This post explains how to comply with the California Sex Offender Disclosure Law.

California only requires landlords to give written notice about the registered sex offender database website to tenants when the rental period begins.

Thus, the tenants must access the Megan’s Law website individually to search for sex offender neighbors.

The federal Fair Housing Laws make it illegal for landlords as a policy to refuse leasing to all applicants with an arrest or criminal conviction record.

California’s Megan’s Law makes it illegal to use their Megan’s Law website or data to deny a registered sex offender housing.

California landlords seem confused by the state and federal laws about sex offenders’ disclosure and their right to refuse to rent to them.

An exception to the California and federal laws allows landlords to conduct criminal background searches and credit checks without using the Megan’s Law website.

If those independent searches reveal a sex offender conviction the landlord may refuse to rent on an individual basis rather than as a general policy.

As long as every sex conviction discovered during routine credit and/or criminal background searches leads to an independent evaluation of the applicant’s suitability.

If a landlord reasonably thinks renting to a sex offender poses an immediate threat to other tenants, guests, and employees. The application can be denied.

Also, if a sex offender lies on his or her rental application that alone allows rejection of the application.

 

Confused about the California and Federal Sex Offender Discrimination Laws?

 

Hire a professional property management company that knows the California and federal laws about renting to sex offenders.

Contact Us for all your professional property management needs in the greater San Diego area.

Steven Rich, MBA – Guest Blogger

 

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