Ben Margot/AP

A revised city ordinance claims to protect tenants from "nuisance" and crime. But it opens a suspiciously short and strategic path to evicting sex workers with little evidence, notice, or recourse.  

Residents and reporters in Oakland watched closely on Tuesday night as the Oakland City Council took up legislation designed to protect tenants from landlords seeking higher rents. Against the backdrop of rapidly rising housing costs as well as stories of Ellis Act–style evictions creeping in from across the Bay, the Oakland City Council passed the Tenant Protection Ordinance.

Yet before the debate began over tenant protections, the Council granted the city broad new powers to evict residents over certain illegal "nuisance" activities, including prostitution. By unanimous vote, the Oakland City Council passed a bill that gives the city the power to evict sex workers "associated" with a property—and to require their landlords to do the same.

According to Oakland journalist and illustrator Susie Cagle, who tweeted about the extraordinary measure from the Council meeting last night, this bill wasn't on Oakland's radar. It was overshadowed in the press by the Tenant Protection Ordinance, which has commanded headlines in San Francisco and Oakland.

Yet the amended Nuisance Eviction Ordinance is a big deal. Here's how it works, and how it happened.

Ten years ago, Oakland enacted the Nuisance Eviction Ordinance (NEO), a measure that enables officials to pursue evictions against tenants based on drugs or weapons charges. The local legislation was modeled after a state-level pilot program launched in Los Angeles in 1997. (More on that later.) From the start, the nuisance eviction bill was controversial in Oakland.

"It's horrible. It's unconscionable," said Anne Omura, then a managing attorney at Oakland's Eviction Defense Center, in a 2004 interview with the Los Angeles Times. "We feel that it just really tramples on the rights of tenants and doesn't give them a lot of due process."

On Tuesday night, the Oakland City Council expanded the boundaries of nuisance or unlawful detainer evictions in several ways. The definition of nuisance was enlarged to include gambling, prostitution, and solicitation, in addition to possession of illegal weapons and substances. While the original NEO invests the City Administrator with the power to pursue evictions, the new amendment—which was penned by City Attorney Barbara Parker—also grants extra-judicial eviction powers to the office of the City Attorney.

The amended bill further stipulates that a landlord who fears for his or her safety may ask the newly invested City Attorney to carry out the eviction (on the landlord's dime). Finally, the city can go after the landlord for not taking action against a tenant "after being apprised by the City that the tenant has engaged in illegal activity."

"Landlords already have the power by state law and by local ordinance to remedy conduct that the ordinance describes as public nuisance," says Marc Janowitz, supervising attorney at the East Bay Community Law Center. "The addition of the city’s muscle exaggerates an already extreme imbalance in power between landlords and tenants generally."

Here's what the amended nuisance eviction bill does not do: set forth any protections for due process. The amendment does not require that charges or a warrant be brought against a tenant in order for the landlord (or the City Attorney) to initiate eviction proceedings against a resident. There's no clear definition in the amendment for what "engaging" in illegal nuisance activities even means.*

"As far as the tenant is concerned, it’s really just like any other eviction action," says Supervising Deputy City Attorney Richard Illgen. "If there’s evidence to show the tenant is engaging in a nuisance activity, they can be evicted without our involvement at all. They do have the right to have a full jury trial on whether or not they engaged in the action constituting the nuisance. So they have full due process rights in court if they choose to contest the eviction."

The amendment does not expand on what burden of proof the city needs to meet in order to "apprise" a landlord that a tenant has "engaged" in said illegal activity, although the original ordinance sets the standard at a preponderance of evidence. Nor does the amendment stipulate additional rules regarding how this evidence is to be shared with the tenant.*

In fact—when it comes to sex work, at least—a tenant does not need to have committed any crime to be evicted for that crime. "The crime solicited need not actually be committed for solicitation to occur," the amended bill now reads.

"It provides a terribly coercive environment in what is already a very difficult legal system for—let’s face it, we’re talking about poor tenants, poor people, to exist in and to remain housed in," Janowitz says. "I’m afraid that this will only be used as further devices to evict the more vulnerable populations of our city."

* * *

On Sept. 15, California passed a state law reinstating its nuisance-eviction pilot program, the one that first enabled L.A. to evict residents based on arrests for illegal possession of firearms and ammunition. The new bill, AB 2310, reinstated the pilot program in Los Angeles as well as other cities that had been added over time, including Long Beach and Sacramento. The bill signed into law by Gov. Jerry Brown—over the fierce opposition of the National Rifle Association—also expanded the state law to include Oakland.

According to the Los Angeles Register, Los Angeles City Attorney Mike Feuer sent out 85 eviction notices between 2010 and 2013 under powers set forward by the pilot program (now renewed by state law). "More than 30 percent of the tenants left after the letters were received," the Register report reads. "Of the cases that remained, property owners filed cases against a quarter of the individuals."

While this unlawful detainer pilot program has been greeted by supporters as a tough measure for cracking down on illegal firearms, the NRA has objected strenuously on due-process grounds. In a June letter to the California State Senate Judiciary Committee, NRA director of state and local affairs Charles H. Cunningham complained about the standard for evictions:

Accordingly, anytime [sic] a California resident is arrested for one of the above offenses, he or she could be evicted from his or her home—a conviction requiring proof beyond a reasonable doubt or guilty/no contest plea is not necessary. Simply an arrest based on probable cause is enough evidence to initiate an unlawful detainer proceeding. [emphasis original]

On Sept. 16, the day after the state passed the bill expanding its pilot program to include Oakland, City Attorney Parker issued her office's recommendation to the Oakland City Council that Oakland's local NEO be amended accordingly.

"The City Attorney takes very seriously protection of tenants from evictions. Our concern with a lot of the action we take is for the protection of people in the rental units and the surrounding community," says Supervising Deputy City Attorney Illgen. "We’ve heard from a number of tenants who are happy we’re doing this, because they’re scared to death of other tenants on their property."

The amended NEO passed into law by Oakland on Tuesday night goes further than the powers set forward even at the state level—by targeting sex workers "associated" with properties. The relation is left vague: For example, the City Attorney's recommendation claims that a sex worker could be evicted for contact made with clients off-premises. Were a sex worker to meet a client and take home her earnings to her home, she could theoretically be evicted by her landlord merely for keeping her earnings on the premises.

Moreover, the City Attorney could take action against a sex worker or that person's landlord based on evidence that the City Attorney's office isn't obligated to share with either the landlord or the tenant. Illgen says that the amended ordinance will largely target commercial motel operations based on police reports. "There’s parts of Oakland that engage in a lot of prostitution," he says. "We also are very sensitive to the issue that the women who engage in these activities are very much the victims here."

Regarding the state law AB 2310, the NRA objects that arrests based on probable cause fall short of a fair standard for unlawful detainer (eviction) proceedings. The Oakland law now sets the same ambiguous standard for "engaging" in illegal nuisance activities—but for a broader range of suspected crimes.

* * *

Oakland City Attorney Barbara Parker (Office of the City Attorney)

Oakland keeps its public records searches and results online; back in April, someone requested records, documents, and communications regarding AB 2310. Records request #3756 turns up a handful of documents, among them emails that portray concerns that Oakland might abuse broader eviction powers, if granted them.

Originally, the language of AB 2310 would authorize Los Angeles and two other cities, Long Beach and Sacramento, to continue with the L.A. pilot program on unlawful detainer. Oakland was not in the running for state-authorized eviction powers (although it had its own nuisance ordinance on the books). So the Oakland City Council and City Attorney's Office asked Townsend Public Affairs, a registered lobbyist organization employed by Oakland, to get Oakland on the bill.

In an April email (greeting: "Hello Team Oakland"), a Townsend lobbyist observed that California State Assembly Member Sebastian Ridley-Thomas had some issues about adding Oakland. The state representative from Los Angeles and author of the pilot-program reauthorization bill in question (again, AB 2310) was worried about what Oakland would do with it. "The chief of staff stated Assembly Judiciary committee staff repeatedly reached out to the City (?) but to no avail," the lobbyist writes. "The Chief of staff [sic] also mentioned potential concerns that this law could be used to help clear out buildings that then become gentrified."

So City Attorney Parker responded with an April letter to Assembly Member Ridley-Thomas to mollify his office. In that letter, she explains that if Oakland were added to the state-level pilot program, the city could expand its powers to pursue unlawful detainer on behalf of landlords. "Including Oakland in AB 2310 will allow the City Attorney's Office to bring an eviction action if the landlord does not," she writes.  

Eight days later, the lobbyist from Townsend delivers: Assembly Member Ridley-Thomas would include Oakland in the bill—with one catch. "Here is the only caveat; we will need to use this tool as they will be keeping annual data and if we don’t use it, and they see that, we won’t have much empathy… just passing this on."

"Thanks to you and to all who assisted in gaining this result," the response from City Attorney Parker reads. "I understand the caveat."      

* * *

In the June complaint that he issued on behalf of the NRA over the state-level law, Cunningham questioned how California officials could possibly expand its unlawful detainer pilot program, given its mechanism for reporting successes and failures. Or rather, the lack thereof. Cunningham:

[The law] does not require the California Research Bureau to report when an individual's case is dismissed, never filed, found not guilty at trial or received a finding a factual innocence. AB 2310 is not designed to report potential abuses of the system, only how "effective" the process is. Accordingly, when making the decision to expand AB 2310, California lawmakers will not have valuable information concerning the abuses of the system and how many people lost their home despite never being convicted of the underlying offense.

Indeed, the California Research Bureau made the same complaint, according to an analysis from the California State Senate Judiciary Committee, also issued in June. In its most recent findings (as of June 2014), the CRB found that "few unlawful detainer actions were actually filed in court by city attorneys under previous unlawful detainer pilot programs." The CRB reported that mandatory demographic data about evicted tenants were either unavailable or not verifiable. The Senate Judiciary Committee report continues:

This lack of demographic information is troubling because it precludes the Legislature from assessing the broader impacts of unlawful detainer pilot programs. Information received by the Committee indicates that, for at least some jurisdictions, city attorney or city prosecutor initiated eviction actions tend to cluster in specific districts and neighborhoods. Given the demographic makeup of California cities, this trend raises the possibility that these pilot programs may be having a disparate impact on certain racial or ethnic communities, or on certain socio-economic classes.

So it was with some suspicion that the unlawful detainer pilot program could be abused—and with the specific suspicion that unlawful detainer might be abused in Oakland—that the state passed a law that enabled Oakland to expand its eviction powers. The powers invested by the state come with an asterisk: Oakland would need to use them or lose them. One day after the state bill passed, the City Attorney wrote an amendment formalizing new eviction powers for her office and expanding them to target sex workers "engaged" in crimes.

"There’s some major social and cultural arguments to be made about whether the conduct should be illegal," Janowitz says. "But given that it’s already illegal, it smacks to a degree of political posturing for the city to be involved in the private relationship between landlords and tenants."

In one respect, the amendment does unambiguous good: Possession of marijuana was struck as a category of controlled substance that could lead to eviction. "Oakland has a strong policy of not going after marijuana users as an enforcement priority," Illgen says. During our interview, he also noted that Oakland has some of the strongest tenant protection policies in the country—including, now, the Tenant Protection Ordinance passed on Tuesday night.

"Let’s face it, we’re talking about lower-income tenants who are most vulnerable, who have least access to legal services," Janowitz says. Oakland's tenant protections might have been strengthened by one council vote on Tuesday night, but not for necessarily for all classes of tenants.

"By the city getting involved, it can only exacerbate an already very difficult situation for this population," Janowitz says. "I would be very surprised if the ordinance had any noticeable effect on diminishing the conduct at which it’s directed."

*Correction: In a letter dated Oct. 29, the office of the City Attorney of Oakland disputed aspects of this story. Some of those concerns are warranted.

The amendment to the Nuisance Eviction Ordinance does not outline an additional burden of proof required for the City Attorney to pursue the eviction of sex workers. But the burden of proof is in fact set forth by the Nuisance Eviction Ordinance itself, contrary to our original description.

The original ordinance also does in fact stipulate the circumstances whereby evidence against a tenant is to be shared with the tenant and landlord. And the original ordinance sets forth a “preponderance of evidence” as the standard for “engaging” in nuisance activities.

Other points contested by Oakland still stand. While this bill does not grant the City Attorney formal “extra judicial eviction powers,” in context, these “powers” refer to the likely consequences of the expanded scope of evictions under the amendment.

The story’s author consulted with Tim Iglesias, professor of law at the University of San Francisco School of Law and an expert on housing laws, while evaluating the claims in the City Attorney’s complaint (which can be read in its entirety below). “The City Attorney makes many assertions in her letter that I think are either false, questionable or at least subject to alternative reasonable interpretations,” he writes in an email.

This post has been updated to reflect these concerns.

Response to CityLab Article Re Oakland's Nuisance Eviction Ordinance

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