Judge blocks Escondido's rental law
By: DAVID FRIED - North County Times (San Diego, CA)
November 17, 2006
http://www.nctimes.com/articles/2006/11/17/news/top_stories/1_00_4611_16_06.txt
SAN DIEGO -- A federal judge on Thursday issued a temporary restraining order blocking Escondido from implementing a housing ordinance that penalizes landlords who rent to illegal immigrants, one day before the measure was to go into effect.
Saying that the law "raises serious questions" about a number of federal and state issues, U.S. District Court Judge John A. Houston suspended the city's ability to enact the rental ban until a hearing to determine the merits of a pending lawsuit challenging the law can be held, sometime in the next 90 to 120 days.
Houston said he did not believe that attorneys for Escondido had shown that temporarily blocking enforcement of the law -- which would have become effective today -- would hurt the city in any way. Meanwhile, he said, landlords and tenants could face eviction, loss of income or other harmful effects from the ordinance before its constitutionality can be determined.
In issuing his ruling, Houston also said he had "serious questions" about the validity of a recent memorandum by Escondido's city manager that attorneys for the city said was meant to interpret the enforcement of the ordinance.
Last Friday, one week after the American Civil Liberties Union and a coalition of private and civil rights attorneys filed a lawsuit challenging the housing measure, City Manager Clay Phillips issued a memo to city employees stating that the ordinance would not apply to anyone already renting property in Escondido.
During the hearing, attorneys for the coalition argued that Phillips' memo was an attempt to change the law in order to avoid existing legal challenges.
Houston said it appeared that Phillips had "stepped into the role of the City Council" in writing the memo, and that the city manager does not have the authority to "interpret (city ordinances) to the point of legislation."
Under the changes outlined in the memo, the city would only regulate rental and lease agreements entered into after the ordinance takes effect. Existing month-to-month rental agreements would not be affected, either.
The memo also states that landlords are encouraged to verify tenants' documents in advance of issuing any lease agreements in order to guarantee they will not face complaints of harboring illegal immigrants.
Throughout the three-hour hearing, Judge Houston appeared particularly concerned over the possibility of tenants being identified as illegal immigrants and being evicted without due process or a public hearing.
He also expressed concern that landlords could lose money from forced vacancies or be sued by prospective tenants who allege they were falsely shut out of housing based on their immigration status.
"They're out of pocket either way as a result of this ordinance," Houston said during questioning.
The ordinance would penalize landlords who rent to illegal immigrants by suspending their business license for the units in question, and carry fines of up to $1,000 per day for each tenant who continues living at the property after 10 business days.
The city would enforce the ordinance based on written complaints, and ask landlords to provide identification documents for tenants in question.
In order to determine a tenant's immigration status, the city plans to use the federal Systematic Alien Verification for Entitlements program, an electronic database used by government programs and businesses to verify an individual's eligibility to work or receive public assistance.
Houston said he believed that private rental agreements would not qualify for the program, since individuals would not be receiving a public benefit in return.
The ACLU's lawsuit was filed on behalf of two Escondido landlords, as well as two anonymous women who live in the country illegally, have children who are U.S. citizens and say that their families would be displaced if the measure is enforced.
Attorney Alan Mansfield, who represented the plaintiffs at the hearing, said that the ordinance is unconstitutional because federal supremacy laws pre-empt the city's efforts to regulate immigration at the local level.
Christopher Garrett, a private attorney representing the city, said the law was meant to regulate landlord and tenant agreements, not override fair housing and immigration laws.
"There's nothing in this ordinance that tries to reach out and change state law," Garrett said, adding that the plaintiffs' lawsuit was based "on a gross overreading of the ordinance."
David Blair-Loy, legal director of the ACLU of San Diego and Imperial Counties, said he was pleased with the judge's decision to issue the restraining order. Doing so, he said, "protects the people of Escondido that would be harmed by this ordinance."
The city's legal defense team did not comment after the ruling.
However, upon hearing about the restraining order, Councilman Ed Gallo, who was among the three-member majority that passed the ordinance in October, lamented the judge's decision.
"To say that I'm disappointed would be an understatement," Gallo said. "It's an issue of illegal immigrant people who have no right to be here in the first place."
Gallo said the council will have to meet with its legal team before deciding what the city should do next, but insisted that the goal of preventing illegal immigrants from renting property in the city remained the same.
-- Contact staff writer David Fried at (760) 740-5416 or dfried@nctimes.com.
Previous articles:
http://nctimes.com/articles/2006/10/07/news/inland/22_18_5310_6_06.txt
http://www.nctimes.com/articles/2006/11/04/news/top_stories/20_26_2111_3_06.txt
http://www.nctimes.com/articles/2006/11/14/news/inland/11_01_0511_13_06.txt
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