Oakland Bans Criminal Screenings
O
n January 21, the Oakland City
Council voted unanimously to adopt
the Fair Chance Access to Housing
Ordinance, which bans housing providers
from inquiring about, requiring disclosure
of or making housing decisions based on an
applicant’s criminal history. Oakland is the
fi rst city in California to approve such an
overly restrictive mandate, which includes
prohibitions against:
Treating aggrieved parties diff erently
by requiring a higher security deposit to
manage risk;
•
Failing to permit close family members
as occupants in the rental unit;
• Applying screening standards to
changes in tenants or sublets in existing
lease agreements; and
• Retaliation.
The law requires rental housing providers to
disclose the new law’s requirements to applicants
in their application materials, websites and
at any locations under their control that are
frequently visited by applicants. The ordinance
also may invite privacy concerns as it requires
housing providers to maintain a record of
any criminal history data obtained for any
applicant for a period of at least three years.
The Fair Chance Access to Housing
Ordinance covers both public and private
housing with exceptions for housing providers
to comply with Federal or State law. For
example, federal law requires federally assisted
housing providers to automatically exclude
applicants that are dangerous sex off enders (42
U.S.C. Sec. 13663(a)) and individuals convicted
of manufacturing methamphetamine on the
premises of federally assisted housing (24
C.F.R. Sec. 982.553).
Even considering the exceptions, the
ordinance maintains stringent requirements
even for denials based on the applicant’s
appearance on the lifetime sex off ender
registry. The provider must fi rst disclose
the screening criteria in writing during the
application process and may only consider
the registry information after the owner
otherwise qualifi es the applicant and provides
the applicant with a conditional lease,
contingent on the applicant’s ability to pass
the requirement.
It is critical to educate policymakers and
advocates alike that restrictions on screening
interfere with housing providers’ ability to
protect apartment residents, employees and
their communities and properly manage
risk. Additionally, these laws and applicable
regulations leave housing providers vulnerable
to potential legal liability under tort laws and
disparate impact theory. Housing providers
must remain vigilant about proposals to limit
the use of criminal background checks in
the housing context, as reentry advocates
are ramping up their eff orts at all levels of
government.
The National Apartment Association
(NAA) continues to work with its affi liates to
oppose eff orts to prohibit housing providers
from evaluating a prospective resident's
criminal history as part of the overall screening
process. To better assist the affi liate network
in their advocacy eff orts, NAA has created
an issue backgrounder, talking points and a
50-state statutory chart with a local supplement
on criminal screening policy and other issues
related to resident screening should legislation
be considered other parts of the country.
SERVICES
Insurance Restoration
Capital Improvements
Construction Defect Repairs
Roofing
720-618-5264
[email protected]
SPYDERCON.COM
www.aamdhq.org
MARCH 2020
TRENDS | 47