National Housing Law Project - Fair Chances Ordinances ToolkitAcknowledgements
The National Housing Law Project (NHLP) is a legal advocacy center focused on increasing, preserving, and improving affordable
housing; expanding and enforcing rights of low-income tenants and homeowners; and increasing housing opportunities for underserved
communities. Our organization provides technical assistance and policy support on a range of housing issues to legal services and
other advocates nationwide.
NHLP is committed to supporting policy solutions that expand housing opportunities for people who have come in contact with the
criminal justice system. Working at the intersection of housing and reentry is critical to our mission of advancing racial and social
justice.
NHLP is pleased to publish Fair Chance Ordinances: An Advocate’s Toolkit. Our work in this area has been informed by local, state
and national leaders working on issues related to criminal justice reform, affordable housing, homeless services, and reentry. We offer
particular gratitude to Marie Claire Tran-Leung of the Shriver Center on Poverty Law, Tamisha Walker of the Safe Return Project, Merf
Ehman of Columbia Legal Services, Esther Patt of the Champaign-Urbana Tenant Union, Rachel Rintelman of the Legal Aid Society
of the District of Columbia, Amber Harding of the Washington Legal Clinic for the Homeless, Taylor Healy of Bread for the City, and
Catherine Cone and Brook Hill of the Washington Lawyer’s Committee for Civil Rights and Urban Affairs.
Support for this guide was provided by the San Francisco Foundation and the State Bar of California. The views expressed here do
not necessarily reflect the views of our funders.
Table of Contents
1.0 Introduction 1
What Is a Fair Chance Ordinance? 1
Who Is This Toolkit For? 2
2.0 Why Fair Chance? 3
The Scope of the Problem 3
Lack of Affordable Housing 4
What a Fair Chance Ordinance Can Do 4
What a Fair Chance Ordinance Cannot Do 4
3.0 Getting Started 5
Interaction with Other Laws 5
Framing and Messaging 7
Taking an Inventory of the Local Rental Housing Stock 7
4.0 Key Elements of a Fair Chance Ordinance 9
Which Housing Providers Will the Ordinance Cover? 9
Who Will Be Protected by the Ordinance? 11
What Type of Criminal History Will the Ordinance 11
Prohibit Housing Providers From Considering?
What Procedures Will Landlords Have to Follow? 14
What Type of Notices Will the Ordinance Require? 15
How Will the Ordinance Be Enforced? 19
5.0 Implementation 25
Identifying the Responsible Department and Specific Tasks 25
Timeline 25
Regulations 25
Outreach 26
6.0 Related Policies 27
Other Local Ordinances 27
Administrative Plans 28
7.0 Conclusion 32
8.0 Appendices 33
8.1 NHLP Existing Fair ChanceOrdinances Chart 34
8.2 NHLP Fair Chance Checklist 41
8.3 City of San Francisco Procedures for Considering Arrests 43
and Convictions in Employment and Housing Decisions
8.4 City of Richmond Rules of Procedure For Considering Arrests 69
and Convictions in Affordable Housing Decisions
8.5 Cook County Just Housing Amendment Interpretive Rules 89
1.0 Introduction
1. A chart summarizing the existing fair chance ordinances as of December 2019 is included in the Appendix.
2. Richmond Municipal Code §§ 7.110 et seq.
3. Newark Ordinance 14-0921 (2015) (not codified).
4. Seattle Municipal Code §§ 14.09.005 et seq.
What Is a Fair Chance Ordinance?
A fair chance ordinance is a law adopted by a local jurisdiction
(usually a city or county) that creates rules that limit the use
of criminal records by landlords when they are screening
prospective tenants. The purpose of a fair chance ordinance
is to reduce barriers that people who have had contact with
the criminal justice system frequently face when they are
looking for housing. Fair chance ordinances generally include
rules limiting what types of criminal history landlords can
consider and procedures that landlords have to follow when
screening prospective tenants, as well as rules about how
these requirements will be enforced. In recent years, several
communities around the country have passed fair chance
ordinances aimed at expanding access to housing.1 While these
ordinances share certain features, they also vary in many ways,
reflecting the particular political and practical choices made in
each community.
Fair chance ordinances vary in many ways.
• Scope: Some ordinances cover all types of rental housing while others only cover publicly-subsidized
affordable housing.
• Screening restrictions: The fair chance ordinance in Richmond, California, does not allow affordable
housing providers to consider criminal records unless they relate to a felony conviction that is less than
two years old.2 An older ordinance in Newark, New Jersey, permits landlords to consider any serious
offense conviction for eight years after a person is released from custody.3 Seattle, Washington, bars most
landlords from considering any criminal records except official sex offender registries.4 Many ordinances
require landlords to consider the context of a person’s criminal history before making a final decision.
• Screening procedures: Some ordinances require landlords to determine whether an applicant is otherwise
qualified for a unit before doing any criminal history screening, but others allow landlords to screen for all
criteria at the same time.
• Enforcement: Most existing fair chance ordinances include administrative complaint procedures. Richmond
also allows people to enforce its ordinance by going to court.
1
Who Is This Toolkit For?
This toolkit is for organizers and advocates who are engaged
in fair chance advocacy on a local level who are looking for
guidance on the nuts and bolts of developing a fair chance policy.
It draws heavily on our experience supporting local fair chance
campaigns, particularly in northern California, and on input
from advocates who have worked on fair chance campaigns in
other states. We have been privileged to work with dedicated
organizers and other groups focused on criminal justice
reform and reentry, including many people directly impacted
by the criminal justice system. All of our work is informed by
organizations engaged in the hard work of advocating on behalf
of formerly incarcerated people and their families.
This manual provides a framework for advocates and organizers
to use as they develop fair chance policies. While we focus on
local fair chance ordinances, the materials presented here can
also be used to analyze related policies such as the admissions
criteria for a particular building or a planning document that
sets out policies for a public housing authority’s entire portfolio
(some of these planning processes are discussed in more detail
in Section 6.0 below).
To draft a successful fair chance policy, advocates must be
involved in the broader fair chance campaign and partner with
organizations in the community that are deeply engaged in issues
related to criminal justice reform, especially those that include
individuals and families who are directly impacted by mass
incarceration. This toolkit touches on fair chance organizing as
it relates to crafting a policy, but it does not provide guidance
on the organizing and community engagement aspects of a
fair chance campaign. For that, we urge you to seek out local
partners with grassroots organizing experience.
2
2.0 Why Fair Chance?
5. The Sentencing Project, Fact sheet: Trends in U.S. Corrections (June 2017), available at: http://sentencingproject.org/wp-content/uploads/2016/01/Trends-in-US-
Corrections.pdf
6. U.S. Department of Justice, Bureau of Justice Statistics, Total Sentenced Prisoners Released From State or Federal Jurisdiction Admissions and Releases of Sentences
Prisoners Under the Jurisdiction of State or Federal Correctional Authorities (2015), available at: https://www.bjs.gov/content/pub/pdf/p15.pdf
7. U.S. Department of Justice, Bureau of Statistics, Probation and Parole in the United States (2014), available at: https://www.bjs.gov/content/pub/pdf/ppus14.pdf
8. U.S. Department of Justice, Bureau of Justice Statistics, Prisoner Series 1980 to 2015, available at: https://www.bjs.gov/index.cfm?ty=pbse&sid=40
9. U.S. Department of Justice, Bureau of Justice Statistics, Prisoners in 2017, available at: https://www.bjs.gov/content/pub/pdf/p17.pdf
10. Id.
11. U.S. Census Bureau, Quick Facts, Population Estimates, (2018) available at: https://www.census.gov/quickfacts/fact/table/US/PST045218
12. Bernadette Rabuy and Daniel Kopf, Prisons of Poverty: Uncovering the pre-incarceration incomes of the imprisoned (Prison Policy Initiative, June 2015) available at:
https://www.prisonpolicy.org/reports/income.html.
13. National Law Center on Homelessness & Poverty, Housing Not Handcuffs: Ending the Criminalization of Homelessness in U.S. Cities (2016) 19, available at: https://
nlchp.org//wp-content/uploads/2018/10/Housing-Not-Handcuffs.pdf
14. U.S. Department of Justice, Bureau of Justice Statistics, Prisoner Series 1980 to 2015, available at: https://www.bjs.gov/index.cfm?ty=pbse&sid=40
15. The Sentencing Project, Fact sheet: Trends in U.S. Corrections (June 2017), available at: http://sentencingproject.org/wp-content/uploads/2016/01/Trends-in-US-
Corrections.pdf
16. U.S. Department of Justice, Bureau of Justice Statistics, Prisoners in 2015, available at: https://www.bjs.gov/content/pub/pdf/p15.pdf
The Scope of the Problem
The United States prison population grew by 500 percent over
the last 40 years.5 Over 600,000 people leave prison each year.6
In 2014, 1 in 52 adults in the United States was on probation or
parole.7 One in three adults in the U.S. has a criminal record.
Estimates of the number of people likely to be excluded from
housing due to an arrest or criminal record are staggering.8
Due to a long history of intentionally racist policies, especially the
“war on drugs,” people of color and ethnic minorities represent
over 56 percent of the prison population.9 Law enforcement’s focus
on urban areas, poor communities, and communities of color have
led to significant racial disparities in arrests and incarceration. The
federal Bureau of Justice Statistics reports that as of the end of
2017, out of all state and federal inmates with a sentence of more
than one year, approximately 33 percent were African American,
23 percent were Latino, and 30 percent were white.10 In the same
year, African Americans accounted for 13.4 percent of the total
population, Latinos for 18.3 percent, and non-Hispanic or Latino
Whites for 60.4 percent.11
Low-income people are also overrepresented among those
arrested or incarcerated. One 2015 study found that incarcerated
people ages 27-42 had a median income prior to entering jail
or prison that was 41 percent less than the median income of
non-incarcerated people of a similar age.12 People experiencing
homelessness are 11 times more likely to face incarceration when
compared to the general population.13
Women are the fastest growing segment of the prison population.
Between 1980 and 2014, the number of women imprisoned
increased by an astounding 700 percent.14 This increase coincided
with the rapid increase in the number of inmates imprisoned for
drug offenses, which rose from 40,900 in 1980 to 469,545 in
2015.15 In 2015, an estimated 48 percent of federal inmates and
15.7 percent of state inmates were serving sentences for drug
offenses. That same year, 25 percent of all women in prison were
incarcerated for drug related offenses.16
3
Lack of Affordable Housing
People released from incarceration face a monumental
challenge when trying to find affordable housing. They are
competing for housing with over 37 million Americans who
live at or below the federal poverty level.17 Very low-income
households (those making 50 percent of area median income or
less) already face extremely long odds, with only 62 affordable
rental units available for every 100 households.18 The situation
is even worse for extremely low-income households (those
making 30 percent of area median income or less) for whom
there are only 37.7 affordable rental units available for every 100
households.19 In 2015 alone, 8.3 million tenants had what HUD
termed “worst case needs,” meaning that in addition to having
very low incomes and lacking housing assistance, they also had
severe rent burdens and/or severely inadequate housing.20
Stable, affordable housing is an urgent need for people leaving
prison and is an essential factor in reducing recidivism.21 Being
homeless makes formerly incarcerated people more likely to be
arrested and incarcerated again due to policies that criminalize
homelessness such as making it illegal to sleep in public or
panhandle.22 Homelessness has other negative impacts as
well, such as reducing access to health care, social services,
educational opportunities and jobs.23
What a Fair Chance Ordinance
Can Do
Access to affordable housing is limited by overly strict admissions
policies, many of which specifically target and reduce options
for people with criminal records. About 90 percent of landlords
screen tenants for any criminal history24 and many applicants
to affordable housing are subject to unreasonable screening
standards. For example, public housing authorities (housing
17. U.S. Census Bureau, Income and Poverty in the United States 2015, available at: https://www.census.gov/library/publications/2016/demo/p60-256.html
18. HUD-Worst Case Housing Needs 2017: A Report to Congress, available at: https://www.huduser.gov/portal/sites/default/files/pdf/Worst-Case-Housing-Needs.pdf
19. Id.
20. Id.
21. Urban Institute, Examining Housing as a Pathway to a Successful Reentry, available at: http://www.urban.org/sites/default/files/publication/24206/412957-Examining-
Housing-as-a-Pathway-to-Successful-Reentry-A-Demonstration-Design-Process.PDF; Faith E. Lutze, Jeffrey W. Rosky, Zachary K. Hamilton, Homelessness and
Reentry-A Multisite Outcome Evaluation of Washington State’s Reentry Housing Program for High Risk Offenders (2013) available at: http://journals.sagepub.com/doi/
abs/10.1177/0093854813510164
22. Lucius Couloute, Nowhere to Go: Homelessness Among Formerly Incarcerated People (Prison Policy Initiative, Aug. 2018), available at: https://www.prisonpolicy.org/
reports/housing.html
23. Id.
24. Collatz, Andrea, “Landlord Survey: Optimism In Renting Your Property,” TransUnion Smartmove blog (June 6, 2017).
25. Tran-Leung, Marie Claire, When Discretion Means Denial: The Use of Criminal Records to Deny Low-Income People Access to Federally Subsidized Housing in Illinois
12 (2011) available at: https://www.nhlp.org/wp-content/uploads/Tran-Leung-When-Discretion-Means-Denial.pdf
authorities) are required to implement “reasonable” lookback
periods in their admissions criteria, yet many housing authorities
have admissions policies that either lack any lookback periods
at all or allow for consideration of criminal history from an
unreasonably long time ago.25 In addition, many housing
providers screen for criminal activity that has little to no bearing
on an individual’s likelihood of success as a tenant.
One way to ensure that applicants with criminal records have
meaningful opportunities to secure housing is to pass local
ordinances that limit the information landlords can consider
when making admissions decisions. For example, an ordinance
could prohibit the use of outdated records or non-conviction
records. Because such ordinances seek to eliminate the use
of outdated or irrelevant criminal history information, they are
generally called “fair chance” ordinances.
What a Fair Chance Ordinance
Cannot Do
While fair chance policies expand access to housing, they do
little to create new housing for people with criminal records. Fair
chance policies alone cannot affect the supply of affordable
housing. In order to have a broad impact on people reentering
the community post-incarceration, more resources are needed
to build new housing, particularly permanent supportive housing
that provides the services that people need when they exit jails or
prisons. It is also important to recognize that fair chance policies
intend to solve a problem that appears at the back end of an
individual’s involvement in the criminal justice system. Addressing
root causes will require support for campaigns that seek to end
mass incarceration, police brutality, unfair sentencing laws, and
other racist policies.
4
3.0 Getting Started
26. Affected programs include public housing, the Section 8 voucher program, project-based Section 8, Section 202, Section 811, Section 221(d)(3), Section 236, Section
514 and Section 515. Owners of certain Rural Development (RD) housing and of properties financed with low-income housing tax credits (LIHTC) are not required to bar any
applicant due to criminal history. For more details about which mandated criminal history exclusions exist in the various federal housing programs, see An Affordable Home
on Reentry, Ch. 2, (NHLP 2018) [hereinafter Reentry] available at: https://www.nhlp.org/wp-content/uploads/2018/08/Rentry-Manual-2018-FINALne.pdf
27. There is an additional mandatory three-year waiting period if a member of the household was previously evicted from federally assisted housing for drug-related criminal
activity, but there are some exceptions available, such as in the case of rehabilitation or changed circumstances. For more details about this issue, see Reentry at 2.2.3.
Key issues you will need to address at the outset of developing
a fair chance ordinance include:
• Determining whether existing federal or state laws might
affect the validity or scope of your planned ordinance;
• Deciding how to frame and communicate about the planned
ordinance; and
• Taking an inventory of the rental housing stock in your
community.
These issues are discussed in more detail below. Keep in mind
that as your ordinance evolves, you may need to revisit some or
all of them.
Interaction with Other Laws
When developing an ordinance, you have to be aware of the
legal context in which it will function. There may be laws in place
at the federal or state level that opponents of a fair chance
ordinance may try to use to invalidate or undermine it. There
may also be other existing or potential local laws or policies that
will interact with a fair chance law and that need to be taken into
account to avoid conflicts or uncertainty.
Federal law preemption
Federal law might directly conflict with a particular component
of your planned ordinance. For example, certain federal statutes
and regulations require public housing agencies (housing
authorities) and owners of some federally assisted housing26
to reject applicants in two specified categories: those with
convictions for methamphetamine production on a federally-
assisted property and people who appear on a lifetime sex
offense registry.27 As a result, any fair chance ordinance that
does not permit screening for these categories must include an
exception that allows housing authorities and owners to comply
with these federally mandated exclusions.
Under federal law, housing authorities and owners in many
federally assisted housing programs also have discretion over
whether to accept applicants who have engaged in other
types of criminal activity beyond the two exclusion categories,
within some limits. If a housing authority or owner has a policy
of denying applicants based on other types of criminal history,
the policy must be in writing and available to applicants. It is
important to determine what criminal history policies are in
place in federally assisted programs in your jurisdiction so you
can make an informed decision about how your fair chance
ordinance will affect those policies. At least one housing authority
in a jurisdiction with a broad fair chance ordinance has taken
the position that it does not have to comply based on federal
law. While this position has not been accepted by any court, it
is important to be aware of the possibility that your ordinance
might be challenged if you restrict criminal history screening by
housing authorities and owners who claim to have conflicting
obligations or discretion under federal law.
5
What is federally-assisted housing?
28. Cal. Gov’t Code § 12921 (West 2019).
29. See, e.g., Apartment Association of Greater Los Angeles v. City of Santa Monica, Los Angeles Sup. Ct., Case No. SC124308 (Order Granting Defendants’ and
Interveners’ Motion for Summary Judgment, Feb. 2, 2017). Note that in this California case, the court concluded that a local source of income anti-discrimination ordinance
for voucher families is not preempted by the state fair housing law.
30. California is a “home rule” state with respect to its charter cities. Cal. Const. art. XI, § 7.
31. Vermont, for example, is a “Dillon’s rule” state. See, e.g., City of Montpelier v. Barnett, 2012 VT 32, ¶60, 49 A.3d 120, 142 (2012); E.B. & A.C. Whiting Co. v. City of
Burlington, 175 A. 35, 42 (Vt. 1934).
32. Nicole DuPuis et al., City Rights in an Era of Preemption: A State-by-State Analysis, 10-11 (National League of Cities 2017) available at: https://www.nlc.org/sites/default/
files/2017-03/NLC-SML%20Preemption%20Report%202017-pages.pdf
Federally-assisted housing is affordable housing that
is subsidized by the federal government. There are
different types of federally-assisted housing, and
each program’s rules vary with respect to tenant
screening.
HUD administers a number of federally-assisted
housing programs including:
• Public housing, which is owned and administered
by a local Public Housing Authority (housing
authority).
• Housing Choice Vouchers (also known as Section
8 vouchers) which are tenant-based subsidies
administered by a local housing authority.
• HUD “Multifamily” programs that may house
specific populations such as people with
disabilities or seniors.
• HUD administers a number of other programs that
make housing affordable to low-income families.
For more information see NHLP’s HUD Housing
Programs: Tenants Rights.
The Internal Revenue Service (IRS) administers The
Low Income Housing Tax Credit (LIHTC) program.
LIHTC housing is the largest source of new affordable
housing in the country. Tax credits may be used
to build or renovate affordable housing. Different
rules apply to LIHTC housing than HUD-subsidized
housing.
For more information on how to advocate for
reasonable screening policies at both HUD and
LIHTC affordable housing projects see Section 6.0
below.
State law preemption
Certain state laws cover broad subject areas, such as housing
discrimination, in ways that might not leave room for some
aspects of your planned fair chance ordinance. For example, the
California Fair Employment and Housing Act (FEHA) prohibits
housing discrimination based on characteristics such as race,
color, sex, national origin, disability and sexual orientation.28
In some cases, opponents of local regulation have claimed
(usually unsuccessfully) that FEHA bars local ordinances aimed
at preventing other types of housing discrimination.29
In many states, the state constitution or court decisions have
established “home rule,” meaning that local jurisdictions are free
to pass laws with respect to municipal affairs and state laws only
take precedence over local laws when they relate to “state affairs”
as opposed to “municipal affairs.”30 Some states, however, use a
different approach, often called “Dillon’s rule”, which gives state
law precedence over local laws except in limited circumstances.31
A few states, including Arkansas, Tennessee, Wisconsin and
North Carolina, explicitly preempt local anti-discrimination laws
and prohibit cities from enacting anti-discrimination laws that are
more protective than their state laws.32 In Wisconsin, the state
legislature passed such a prohibition targeting longstanding
fair chance protections in Dane County and the city of Madison,
6
effectively undoing the work that had been done at the local level
years earlier.33
In order to understand how related state laws might affect a
local fair chance ordinance in your jurisdiction, you will need
to identify the relevant laws in your state and analyze how your
state handles potential conflicts between state and local laws.
Interaction with other local laws
It is also important to be aware of other, related local laws that
might affect – or be affected by – how your fair chance ordinance
is implemented. Examples of this type of related law are source-
of-income ordinances that prohibit discrimination against
Section 8 voucher holders, ordinances that regulate tenant
screening reports, and “first-in-time” ordinances that require
a landlord to offer an available rental unit to the first qualified
person who applies.34
Framing and Messaging
As in all political campaigns, framing and messaging are critical
and have a direct impact on the political chances of getting a fair
chance ordinance passed. Your campaign’s communications
strategy will involve decisions and activities that are beyond the
scope of this Toolkit, but it is important to integrate that strategy
into the development of the ordinance itself.
33. New Wisconsin landlord laws wipe out hard-fought victories for Madison renters (Isthmus, November 1, 2013) available at: https://isthmus.com/news/news/new-
wisconsin-landlord-laws-wipe-out-hard-fought-victories-for-madison-renters/
34. See Section VI(a) below for more details about first-in-time ordinances.
Aspects of an ordinance that can bolster your communications
strategy include:
• The name of the ordinance;
• Where the ordinance is placed in the municipal code; and
• Legislative findings that detail the relevant problems
the ordinance is positioned to help address (e.g., racial
discrimination in housing, homelessness, barriers to family
reunification, recidivism arising from lack of housing).
Taking an Inventory of the Local
Rental Housing Stock
Knowing what types of rental housing are available in your
community will make it easier to develop a fair chance ordinance
that addresses local needs. If, for example, your community’s
affordable rental housing options are limited to privately-owned
properties subsidized by federal tax credits or available to
Section 8 voucher holders, the details of your ordinance might
be different than they would be if public housing units were
also in the mix. Knowing whether most multifamily rentals are in
buildings with only a few units or with more than 8 or 10 units will
also help you determine the impact of covering or not covering
properties with fewer units in the ordinance.
7
Rental housing stock inventory
You can gather information about your community’s rental
housing stock using these resources:
• The National Housing Preservation Database, http://
preservationdatabase.org/, is searchable by location
and lists the type(s) of subsidy or other federal
assistance for each property. You need to complete
a free registration in order to be able to access the
database.
• For information about properties subsidized by federal
tax credits: www.novoco.com/low_income_housing/
resources/maps_data.php.
• For information about subsidies for rural properties,
searchable by location: https://rdmfhrentals.sc.egov.
usda.gov/RDMFHRentals/select_state.jsp.
• Local housing authorities should have data about the
number of rentals using tenant-based vouchers and
the number of public housing units.
• City or county websites may include data or lists about
the rental housing available in a community.
• Non-profit affordable housing providers are likely to
have information about the range of rental housing
options available in a community.
8
4.0 Key Elements of a
Fair Chance Ordinance
As you develop and begin to draft a fair chance ordinance,
you will need to make decisions about a number of key issues,
including: the type(s) of housing the ordinance will cover; the
categories of persons the ordinance will protect; the specific
limits the ordinance will place on screening for criminal history;
the mechanics of tenant screening under the ordinance; notice
and disclosure requirements; and enforcement mechanisms.
Which Housing Providers Will the
Ordinance Cover?
When deciding the scope of coverage, the basic considerations
will be about which types of housing providers and which types
of housing to include.
Some cities have chosen to cover only affordable housing
providers in their fair chance ordinances. In California, the City of
Richmond’s ordinance covers all affordable housing, including
units rented to Section 8 voucher holders. San Francisco’s
ordinance is narrower, covering only affordable housing funded
by the City or that is part of the City’s inclusionary affordable
housing program.
When deciding the scope of coverage, the basic considerations
will be about which types of housing providers and which types
of housing to include.
Deciding which type of housing an ordinance will cover
Advocates in Richmond, CA, led by the Safe Return Project, decided to move forward with an ordinance that
covered only affordable rental housing in their city. This decision was the result of strategic political decision-
making and compromise. Some specific factors they considered were:
• Where people were living upon reentry (most people could only afford affordable housing).
• The rental housing landscape (most of the affordable housing in Richmond is federally-assisted housing
or financed by low income housing tax credits (LIHTC)).
• The political feasibility of an ordinance that covered private housing (knowing that the landlord and realtor
lobby would come out in full force to oppose the ordinance if it was expanded to private housing).
For more on the development of Safe Return’s policy and the organizers’ participatory research and organizing
model see Home with a Purpose: A History of the Safe Return Project.35
35. The Haas Institute for a Fair and Inclusive Society at the University of California, Berkeley, Home with a Purpose: A History of the Safe Return Project, available at: http://
haasinstitute.berkeley.edu/sites/default/files/safereturncasestudy_publish.pdf
9
Other jurisdictions have chosen to restrict consideration of
criminal history by all providers of rental housing, including
private landlords. The fair chance ordinances in Seattle, Portland
(OR), Detroit, Minneapolis, Washington, D.C., and Urbana,
Champaign and Cook County (IL) cover all types of housing.36
If a fair chance ordinance is going to differentiate between
affordable housing providers and private landlords, it is important
to define “affordable housing provider” very carefully and with
reference to the specific characteristics of the rental housing
stock in your jurisdiction. For example, in Richmond, the fair
chance ordinance defines affordable housing providers in terms
of receipt of public funding, including grants, tax credits and
other subsidies.37 In San Francisco, which has an inclusionary
affordable housing program and a density bonus program that
imposes affordability restrictions on certain units in new, privately
owned developments, the ordinance also includes those below-
market-rate units as a separate category in the definition since
those units are not necessarily covered by a narrower definition
that only includes publicly funded housing.
With regard to tenant-based Housing Choice Vouchers (more
commonly known as Section 8 vouchers), there are additional
considerations to address because voucher families generally
go through two rounds of tenant screening. First, the housing
authority screens the applicant for voucher eligibility. That
screening must include the two categorical bans discussed
earlier (people who appear on a lifetime sex offense registry and
people convicted of production of methamphetamine on federally-
assisted property) and may also include a broader criminal
background check. Second, the voucher family will usually be
screened by a private landlord.38 It is important to explicitly state
whether a fair chance ordinance applies to housing authorities
when they screen for voucher eligibility, to private landlords who
rent to voucher families (“voucher landlords”) or to both.
If voucher landlords are going to be covered, you will also have
to consider how to define a “voucher landlord” for purposes
of the local law. Voucher landlords could be included in
36. Seattle Municipal Code § 14.09.025(A)(1); Portland City Code § 30.01.86; Chapter 26, Article V, §§ 26-5-1 – 26-5-20 of the 1984 Detroit City Code; Minneapolis
Ordinance No. 2019-038, amending Title 12, Chapter 24 of the Minneapolis Municipal Code of Housing; Code of the District of Columbia §§ 42-3541.01(5), 42-3501.03(14);
Urbana Code of Ordinances §§ 12-37, 12-64; Champaign Municipal Code §§ 17-3(11), 17-4.5, 17-71, 17-75; Cook County Code of Ordinances §§ 42-38(b)(8), (c)(5).
37. Richmond Municipal Code § 7.110.040(b).
38. In some jurisdictions, however, private landlords may rely on the housing authority’s screening process.
39. This will be less of a concern if your jurisdiction also prohibits discrimination against voucher holders.
40. Code of the District of Columbia § 42-3541.03(1).
41. Champaign Municipal Code § 17-75(b); Urbana Code of Ordinances § 12-64(d)(2).
42. Seattle Municipal Code § 14.09.115(C)-(D).
the definition of “affordable housing provider,” but that may
leave out landlords who are not currently accepting vouchers
but may accept them in the future. This issue is especially
complicated in jurisdictions that also prohibit discrimination
against Section 8 voucher holders (sometimes called “source-
of-income discrimination”), because all private landlords in such
jurisdictions are potential Section 8 landlords. Another thing to
keep in mind when deciding who will be covered is that including
voucher landlords in a fair chance ordinance that covers only
affordable housing providers could make some landlords less
willing to rent to voucher holders.39
If you want your ordinance to cover public housing authorities or
other agencies that determine people’s eligibility for Section 8
vouchers and other forms of tenant-based rental assistance, you
will need to include language that covers those entities and their
voucher screening activities. For example, you could include
in the definition of a covered adverse action “treating a person
as ineligible for a tenant-based rental assistance program,
including, but not limited to, the Section 8 tenant-based voucher
program (42 U.S.C. section 1437f).”
Due to political and community concerns, jurisdictions with fair
chance ordinances that cover all housing providers often include
some limited exceptions. For example, a number of fair chance
ordinances do not require landlords who own and occupy the
housing to comply. Washington D.C. exempts housing providers
who own and occupy housing with three or fewer rental units.40
Champaign and Urbana exclude all owner-occupied units in
which the landlord will be sharing a kitchen or bathroom with
an unrelated tenant.41 Seattle’s ordinance includes exceptions
for owner-occupied single-family homes and for accessory
dwelling units (i.e., “in-law units”) if the landlord lives on the
premises.42 In some cases, these exemptions mirror exceptions
provided to private landlords in state or federal fair housing laws.
In Cook County, fair chance proponents opted not to include such
an exception, in part because the Human Rights Ordinance they
were amending did not include one, and they did not want to
narrow the scope of that broader ordinance.
10
Whether to include all housing providers or only some subset in
your ordinance is of course a strategic decision based on local
context. Some factors to consider are:
• Where do formerly incarcerated people and people with
criminal records in your city live? Where do they want to live?
• What types of affordable and market-rate rental housing are
available in your jurisdiction?
• How many people would be protected if only affordable
housing or another subset of rental housing is covered?
• What other laws or regulations are applicable to tenant
screening in your jurisdiction? For example, are some or all
housing providers prohibited from discriminating against
Section 8 voucher holders?
• What are the political costs and benefits of covering more
types of housing?
• Who are your political allies and opponents, and how will the
scope of coverage affect their support for or opposition to a
fair chance ordinance?
• How does the scope of coverage intersect with other policy
priorities that you and your allies have?
• Broader ordinances that cover more types of housing
providers may have a higher chance of being challenged in
court.
Will there be an opportunity to broaden the ordinance in the
near future (for example, is the strategy to pass an ordinance
that applies only to certain types of housing providers and then,
building on that success, later amend it to cover more housing
providers)?
Who Will Be Protected by the
Ordinance?
All fair chance ordinances currently in effect protect people
who are applying to begin a tenancy. As noted above, some
only cover applicants to affordable housing, while others cover
applicants to all (or most) types of housing.
43. Many federally-assisted landlords are required to conduct periodic recertifications of tenants’ income and/or eligibility. See, e.g., 24 C.F.R. § 960.257 (public housing) and
§ 982.516 (vouchers).
44. Richmond Municipal Code § 7.110.040(a) (emphasis added).
45. Code of the District of Columbia § 42-3541.01(1) (emphasis added).
46. Richmond Municipal Code § 7.110.050(b).
47. For more information about federally mandated exclusions in federally assisted programs and properties, see Section 3.0 above.
You may also want to consider whether to explicitly cover current
tenants with regard to previous criminal history from before they
began the tenancy. The concern here is that a housing provider,
such as a federally-assisted landlord, might conduct a criminal
history screening as part of a periodic recertification43 during the
course of a tenancy and then attempt to evict the tenant on the
basis of a previous offense. The Richmond ordinance addresses
this issue by including “to fail or refuse to continue to rent or
lease real property to an individual, or fail or refuse to add a
household member to an existing lease, or to reduce any tenant
subsidy” in the definition of “Adverse Action.”44 Another option
would be to address this issue in the definition of an “Applicant.”
Prospective applicants should also be considered – i.e., people
who inquire about or come to look at a rental unit but have not
yet formally submitted an application. In order to make sure
prospective applicants are also protected, you may want to add
language to the ordinance that defines “applicant” to include
this group. Washington D.C.’s ordinance includes any person
“who intends to request to be considered for tenancy within a
housing accommodation” in its definition of “Applicant.”45
Some communities have also decided that their ordinances
should specifically name for protection people who are seeking
to join an existing tenant household. For example, the Richmond
ordinance explicitly calls out “individuals applying to be added
to a lease”46 to emphasize the fact that family reunification is a
key goal and a critical support for people who are exiting jails
and prisons.
What Type of Criminal History Will
the Ordinance Prohibit Housing
Providers From Considering?
Perhaps the most important element of a fair chance ordinance
is the scope of information that a landlord is prohibited from
considering. When deciding the exact limits you want to place on
criminal history screening, there are a few different approaches
you can take. You may opt to ban all criminal history screening,
except as required by federal law.47 Alternatively, you could allow
screening only for convictions that occurred during a specified
lookback period and/or only for certain types of offenses.
11
Limiting how far back criminal record
screening can go
If you include a lookback period, you will need to specify the
length of the lookback period. Lookback periods in existing
ordinances range from two years (Richmond, California) to eight
years (Newark, New Jersey) to ten years for certain serious
offenses (Minneapolis, Minnesota). It is also very important to be
careful about how the lookback period will be measured. If your
ordinance includes a two-year lookback period, will that two
years be counted from the date of the conduct that resulted in
the conviction, the date the person was sentenced, the date the
person was released from incarceration, or the date the person
completed the sentence, which could include completion of any
parole or probation and/or payment of any fines or restitution?
Using the date of the underlying conduct will result in the earliest
access to housing for people reentering, while using the date of
conviction or sentencing or the date of release or of completion
of all terms of a sentence will delay access.
The start date of a lookback period
matters a lot!
Kendra was convicted of a criminal offense that
took place in August 2007 and was sentenced
in January 2008. Her sentence included a
prison term, fines and restitution. She was
released from incarceration in September
2015 and was then on parole until September
2018. She cannot afford to pay the remaining
fines and restitution imposed as part of her
sentence, and it is unclear if she will ever be
able to complete that part of her sentence.
In a jurisdiction with a five-year lookback period
counted from the date of sentencing, Kendra
will have the right to be considered for rental
housing without reference to her conviction as
soon as she is released since her sentencing
occurred over seven years before her release.
If the five-year lookback is counted from the
date of release, however, she will have to wait
until September 2020 before she can benefit
from the fair chance protections. If the lookback
period is counted from when she completed
parole, she will have to wait until September
2023. And if the five years only starts once she
completes all terms of her sentence, she may
never benefit at all.
All lookback periods are based on the concept that at some
point, applicants with aging criminal records should be eligible
for housing because the risk that they will re-offend declines over
time. HUD’s 2016 fair housing guidance on the use of criminal
records in housing cites one research study that showed that
after a period of time, there is little to no difference in risk of future
offending between those with an old criminal record and those
without any criminal record.48 Although the timeframes may differ,
the research all supports the proposition that an offender’s risk
of re-offending declines over time to the point that it is the same
as the risk that someone in the general population will commit a
crime.49 For this reason, some housing providers have opted to
adopt, shorten and/or customize lookback periods.50
Deciding whether or not to apply a lookback period, and how
long any lookback period will be is not a simple matter. These
decisions have often been made arbitrarily by policy makers
with little or no input from local organizers and advocates, but
it is crucial for organizers and advocates to work through for
themselves whether any lookback period is justified and, if so,
what length of lookback would be fair and reasonable and would
meet local needs.
48. Dep’t Hous. & Urban Dev., Office of General Counsel Guidance on Application
of Fair Housing Act Standards to the Use of Criminal Records by Providers of
Housing and Real Estate-Related Transactions 7 n. 34 (2016) (citing Megan C.
Kurlycheck et al., Scarlet Letters and Recidivism: Does an Old Record Predict
Future Offending?, 5 Criminology & Pub. Pol’y 483 (2006)).
49. Peter Leasure & Tia Stevens Andersen, Recognizing Redemption: Old
Criminal Records and Employment Outcomes, 41 N.Y.U. Rev. of L. & Change: The
Harbinger 276-78 (2017) (providing a literature review of relevant criminological
research).
50. See, e.g., Housing Authority of New Orleans (HANO) Criminal Background
Screening Procedures (adopted March 2016) available at: http://www.hano.
org/home/agency_plans/2016%20CRIMINAL%20BACKGROUND%20
PROCEDURES%20-%20FINAL.pdf. HANO got rid of all blanket bans except
those that are federally mandated, established lookback periods tailored to the
type of offense and required an individualized assessment before any denial. For
information about other innovative policies, see https://www.vera.org/projects/
opening-doors-to-public-housing
12
Limiting the type of criminal history that
landlords can consider
Ordinances that permit screening for certain types of convictions
(with or without a lookback period) usually include a list of specific
offenses or set out broad categories of offenses. For example,
Washington DC’s ordinance permits screening for a lengthy list
of criminal offenses that includes, among other things, arson,
murder, sexual abuse and various drug offenses, with a seven-year
lookback period.51 Champaign’s ordinance permits screening for
convictions involving the use of force or violence or the illegal use,
possession, distribution, sale or manufacture of drugs, with a five-
year lookback period.52 In contrast, Seattle’s ordinance only permits
limited sex offender registry screening.53
Some fair chance ordinances restrict blanket bans for particular
offenses or categories of offenses by prohibiting denials except
when an applicant’s prior felony conviction is “directly related” to
an individual’s tenancy. The fair chance ordinance in Cook County,
Illinois, for example, allows landlords to rely on a past conviction only
51. Code of the District of Columbia § 42-3541.02(d).
52. Champaign Municipal Code § 17-75(e). Note that a majority of city council members voted in June 2019 to shorten the lookback period from five years to two years.
53. Seattle Municipal Code § 14.09.020 (exempting sex offender registry information from the screening prohibition).
54. Cook County Code of Ordinances § 42-38(c)(5)(c).
55. Richmond Municipal Code § 7.110.040(h).
56. Cael Warren, Success in Housing: How Much Does Criminal Background Matter? 19 (Wilder Research 2019). The study also found that negative effects of criminal
history on housing outcomes are significantly reduced in households with two or more adults and/or one or more children. Id. at 15.
if a denial based on the specific conviction “is necessary to protect
against a demonstrable risk to personal safety and/or property of
others affected by the transaction.”54 Richmond’s ordinance defines
a “directly-related conviction” which is a conviction where the
underlying conduct “has a direct and specific negative bearing on
the safety of persons or property, given the nature of the housing,”
and that either makes the person ineligible for public housing under
state or federal law, is for a crime carried out in the applicant’s
home, or is for a sex crime.55 Presumably, a conviction during the
applicable lookback period for arson at a prior residence or for
assault of a neighbor could meet such a test, but a DUI/DWI or
prostitution conviction would not.
Studies that examine the impact of different types of criminal history
on housing outcomes can provide critical information to organizers
and advocates and can also be useful as part of the fair chance
campaign. One study published in 2019 found, among other things,
that 11 out of 15 offense categories studied – including marijuana
possession, serious traffic offenses and prostitution – had no
significant effect on housing outcomes.56
Defining “criminal history”
Landlords screen for a wide range of criminal history. It is therefore necessary to consider not only how
convictions are handled, but also other types of interactions with the criminal justice system, such as:
• Arrests;
• Convictions that have been sealed, vacated, expunged or otherwise invalidated by later judicial or legislative
action;
• Cases from the juvenile justice system;
• Incidents that occurred while a person was a juvenile (even if later tried as an adult); and
• Participation in or completion of a diversion or a deferral of judgment program.
Note that definitions for various dispositions vary by state so it is important to be as specific as possible about
the information you are referencing. You may want to include the specific part of the penal code that applies in
the ordinance.
13
What Procedures Will Landlords
Have to Follow?
In order to make a fair chance ordinance effective, you will
need to consider what rules to put in place regarding the
landlord’s process of screening for criminal history. These rules
should address how and where landlords obtain criminal history
information, when in the screening process they can consider that
information, and what steps they have to take if they intend to deny
an application based on criminal history.
Some fair chance ordinances try to get at the various ways landlords
gather criminal history information by including a definition of
“inquiry” that covers oral and written inquiries, questions on
application forms and in interviews, and background check reports
obtained from third parties.57 Seattle’s ordinance, which permits
landlords to screen for an applicant’s status on a sex offender
registry, limits the inquiry to information obtained directly from a
county, statewide or national sex offender registry and not from
a secondhand report by a third party58 since information in such
reports is frequently inaccurate.59
Another safeguard to consider is requiring landlords who do
screen for criminal history (as permitted by the ordinance) to
first determine whether an applicant is “otherwise qualified” –
i.e., screen first for all criteria other than criminal history – before
asking about or reviewing any criminal history information. That
way, a landlord will not be able to use another reason, such as
credit or income, as a pretext, and it will be clear that any denial
after someone is determined to be “otherwise qualified” is based
on the criminal history information. Some ordinances, like the ones
in Richmond, California, and Washington D.C., that include an
“otherwise qualified” requirement also require landlords to make
conditional offers to applicants before doing any criminal history
screening.60
To the extent that your ordinance will permit some criminal history
screening beyond the narrow federal mandates previously
discussed, you will still want to ensure that landlords do not just
impose blanket bans on people with certain types of convictions
57. See, e.g., Richmond Municipal Code § 7.110.050(k).
58. Seattle Municipal Code § 14.09.010 (definition of “Registry Information”).
59. See, e.g., https://www.consumer.ftc.gov/blog/2018/10/will-background-check-errors-deny-you-home. Errors in tenant screening reports can arise from mismatches (i.e., reporting
information about another person with the same or similar name as the applicant) or misleading information (e.g., failure to provide information about a subsequent reversal of a
conviction).
60. Richmond Municipal Code § 7.110.050(c)(2); Code of the District of Columbia § 42-3541.02(b)(1).
61. Richmond Municipal Code § 7.110.040(i).
62. Note that this factor opens the door to the argument that providing housing to an individual with a criminal record substantially increases the potential that the individual will not
be a repeat offender and therefore may be a benefit to the community.
What are mitigating circumstances?
Richmond’s fair chance ordinance includes a non-exclusive
list of “Evidence Of Rehabilitation or Other Mitigating Factors”
that includes: “a person’s satisfactory compliance with
terms and conditions of parole and/or probation following
the Conviction; employer recommendations; educational
attainment or vocational or professional training since the
Conviction; completion or active participation in rehabilitative
treatment; [] letters of recommendation from community
organizations, counselors or case managers, teachers,
community leaders or parole/probation officers who have
observed the Applicant since his or her conviction; and the
age of person at the time of the conviction.”61
Additional mitigating circumstances that could be included
in a fair chance ordinance include:
• documentation showing that the applicant’s criminal
conduct was related to a disability
• documentation showing that the applicant’s criminal
conduct was related to the applicant’s status as a victim
of domestic violence or another crime
• the effect the denial of admission would have on the rest
of the applicant’s family
• the effect the denial of admission would have on the
community62
• evidence of the family’s participation in or willingness
to participate in social service or counseling programs
• For a further discussion of mitigating circumstances,
rehabilitation and requests for reasonable
accommodation, see Chapter 4 of An Affordable Home
on Reentry.
14
without considering the specific facts of the offense and of the
applicant’s current situation. As discussed in HUD’s 2016 guidance
on the use of criminal records in tenant screening, blanket bans
on housing for people with criminal records or for certain types
of offenses will almost always violate federal law because they
have a disparate impact on people of color that cannot be justified
as necessary to achieve a substantial, legitimate objective.63 The
HUD guidance therefore disapproves most categorical bans in
favor of policies that use individualized assessment – rather than
stereotypes and biases – to determine whether an applicant is
likely to perform well as a tenant.64
Most of the existing fair chance ordinances require landlords to
conduct some type of individualized assessment before turning
down an applicant with a criminal record.65 Some of the important
factors to be considered in such an assessment (also known as
“mitigating circumstances”) include:
• The nature and severity of the crime.
• How long ago the underlying conviction occurred.
• The degree of participation by the applicant in the criminal
conduct.
• Whether the criminal conduct occurred on property rented by
the applicant.
• Whether the criminal conduct has a direct and specific
negative bearing on the safety of persons or property at the
housing in question.
• The age of the applicant at the time of the criminal conduct.
• Evidence of positive performance as a tenant before and/or
after the criminal conduct.
• Household composition (i.e., how many adults and children).
• Supplemental information regarding the applicant’s
rehabilitation.
63. Dep’t Hous. & Urban Dev., Office of General Counsel Guidance on Application of Fair Housing Act Standards to the Use of Criminal Records by Providers of Housing
and Real Estate-Related Transactions 2 (2016). For a more detailed discussion of the HUD Guidance and fair housing principles as applied to criminal records screening see
also, Reentry at 2.3.4.
64. Dep’t Hous. & Urban Dev., Office of General Counsel Guidance on Application of Fair Housing Act Standards to the Use of Criminal Records by Providers of Housing
and Real Estate-Related Transactions 7 (2016).
65. E.g., Seattle Municipal Code § 14.09.025(A)(3).
What Type of Notices Will the
Ordinance Require?
Notice requirements serve many purposes, including informing
applicants and tenants of the rights and protections available
under a fair chance ordinance, encouraging applicants to
complain about unfair denials, deterring landlords from using
improper criminal history screening, and creating a record that
can be used in the future if there is a dispute about whether a
landlord complied with the law. Notice requirements should be
designed to meet your specific objectives. Below, we include a
few examples of notices and their purposes, but there may be
other types of notices that make sense for your ordinance.
For all notices, you may decide to be explicit in the ordinance
about what information is required by law. Another approach is
to leave the details to an enforcement or oversight body, and
have that agency draft the notices as part of the implementation
plan. The Washington, D.C., Urbana, Champaign and Newark
ordinances direct city staff to prepare model notices that must
be used by all property owners.
When making the decision whether to include requirements about
the content of the notice in the ordinance itself, there are several
factors to consider. First, will leaving the content unaddressed
in the ordinance result in inconsistent notices from various
housing providers? The result may be confusing for applicants.
Second, will you have a chance to review the content of any
model notices if drafting is delegated to city staff? Advocates
and organizers often have the strongest understanding of the
types of information applicants need to know and understand
before they apply for housing. If you choose to allow the city or
another entity to draft the notice, you should make sure that you
and your partners have a key role in the drafting process.
15
Informational Notices
An informational notice informs prospective applicants of their fair
chance rights. There are two important considerations regarding
informational notices: the content of the notice and how it is posted
or distributed by housing providers. The basic elements of an
informational notice are:
• A brief description of the fair chance law;
• A clear list of the criminal history that can’t be considered;
• If relevant, definitions and examples of “rehabilitation,”
mitigating circumstances” or other factors housing providers
must consider and how and when the applicant can provide
this information; and
• How applicants can appeal a decision or report a violation
of the law.
A fair chance ordinance might also require that informational
notices include a copy of the landlord’s tenant screening criteria.
Landlords are generally not required to make screening criteria
publicly available (except for some HUD housing providers).
Requiring landlords to provide their screening criteria in writing
can be useful both to inform prospective tenants of the criteria
up front and help applicants determine whether a denial was
proper. On the other hand, written screening criteria can also
cause people to screen themselves out of applying, so it is
important to balance those concerns.
How housing providers post and/or distribute informational
notices to prospective tenants is also important. You should
consider where applicants are most likely to see a notice during
the housing search process, such as a realtor or landlord’s
website or rental office, in common areas of the property, or
as an attachment to the application itself. For example, San
Francisco’s ordinance requires that all advertisements for
vacancies include an informational notice that criminal history
will only be considered in compliance with the city’s fair chance
ordinance.66 Seattle’s ordinance requires that an informational
notice be included as part of all rental applications.67
Notice of Adverse Action
A fair chance ordinance can also address what notice applicants
receive in the case of an adverse action. How and when the
66. San Francisco Police Code § 4907(a).
67. Seattle Municipal Code § 14.09.020.
68. Richmond Municipal Code § 7.110.050(f); Seattle Municipal Code § 14.09.025; District of Columbia Code § 3(f)(1); Newark Ordinance 14-0921, Sec. V.
69. Richmond Municipal Code § 7.110.050(f).
applicant is informed of an adverse decision will affect whether
the applicant has the time and the information needed to properly
evaluate and appeal the decision.
In laying out the required elements of an adverse action notice,
consider including all of the information the applicant will need to
evaluate whether the housing provider’s actions violated the fair
chance ordinance or other law. The language in the notice will
vary depending on what screening criteria the ordinance allows
for, but consider requiring the following information:
• The specific criminal history that was the basis of the
decision;
• An explanation of the relationship between the criminal
history considered and the risk of foreseeable harm to other
tenants and/or the property;
• How and what mitigating factors and rehabilitation were
considered;
• How to appeal the housing provider’s denial;
• The procedures and contact information for reporting
a violation of the ordinance, including any deadlines or
statutes of limitation.
The Richmond, Seattle, Washington D.C. and Newark ordinances
all require that adverse action notices contain the information that
formed the basis for a denial.68 For example, Richmond requires
the following information:
• The type of housing sought;
• Why the criminal history that was considered has a specific
negative bearing on the landlord’s ability to fulfill his or her
duty to protect the public and other tenants from foreseeable
harm;
• What bearing, if any, the time that has elapsed since the
applicant’s or household member’s last offense has on the
housing provider’s decision;
• The evidence of rehabilitation and mitigating circumstances
considered, and
• How to report a violation of the ordinance. 69
16
Generally, requiring detailed information about the denial will
make it easier for an applicant to determine whether the fair
chance ordinance was violated. However, you don’t want the
requirements to be so administratively burdensome that they
deter property owners from complying or local government from
enacting and enforcing the law.
You should also consider addressing when and how the landlord
must notify an applicant of an adverse action. The timing
should take into account the deadline for filing an appeal and
whether landlords will be required to keep units open during any
complaint or appeal procedure. The method of notice should
be consistent with the standard notification practices in your
community (e.g., email, regular mail). For more information on
appeals, see Subsection 4.0(f) below.
Copies of criminal background
check reports
You should consider requiring housing providers to provide a
copy of the background report used as the basis for the housing
decision to all applicants. Access to the report is important for
several reasons. First, it allows the applicant to assess whether
an adverse action violated the ordinance. Second, it helps the
applicant determine whether any mitigating circumstances or
evidence of rehabilitation will be useful for an appeal. Third,
it gives the applicant an opportunity to dispute inaccurate
information in the report with both the housing provider and the
supplier of the report. Fourth, it eliminates the (often significant)
delay associated with requesting and obtaining a copy of the
criminal report from a tenant screening company, thus improving
the likelihood of a successful appeal that enables the applicant
to obtain the housing in question.
Your ordinance could also specify when the report must
be provided to the applicant. Ideally, an applicant should
be given access to the report in time to provide mitigating
information or evidence of rehabilitation and dispute inaccurate
information before an adverse decision is made. For example,
San Francisco’s ordinance requires housing providers to give
applicants all reports they relied on before making a final
decision.70
70. San Francisco Police Code § 4906(g).
17
Do consumer protection laws require the landlord to provide
a copy of your screening report?
71. 15 U.S.C.A, § 1681 et seq. (West 2019).
72. For example, Washington’s consumer protection act imposes stricter guidelines than FCRA as to the timeliness of the dispute process and requires credit reporting
agencies to (1) contact the source of disputed information within five days, (2) give the consumer notice that a dispute has been closed within five days, and (3) provide a
consumer with the results of an investigation within five days. Rev. Code. Wash. § 19.182
73. 15 U.S.C.A. § 1681m (a)(3)& (a)(4) (West 2019).
Many landlords obtain and utilize criminal background reports from private consumer reporting agencies when
screening applicants. These private companies and the landlords that use the reports are subject to the federal
Fair Credit Reporting Act (FCRA)71 as well as most state consumer protection laws.72 The FCRA includes a
number of rights and protections that are especially germane to applicants denied rental housing, including the
right to obtain disclosures of whatever information a consumer reporting agency has on file about an applicant
at the time of the request. 73 The disclosure must be made for free if requested within 60 days of an adverse
action, such as denial of admission to housing. The FCRA also requires that the housing provider provide the
name, address and telephone number of the agency that provided the report and notify the consumer that she
may obtain a free copy of the report (from the screening or consumer reporting agency) within 60 days after
the denial.
While these protections are important, applicants requesting disclosure of reports under the FCRA generally do
not receive copies of the same reports that housing providers rely on to deny applications. Additionally, under
the FCRA, an applicant has to submit a disclosure request that includes personal identification information
that is satisfactory to the screening company. As a result, FCRA responses are often unreasonably delayed.
Unreasonable delays occur in a number of common circumstances such as when errors in the report cause
the screening company to question the identity of the consumer, the consumer has an unstable address history
or lacks a verifiable address, or if the consumer has a disability that makes obtaining records particularly
challenging. You should therefore consider including explicit disclosure obligations in your fair chance ordinance
in order to make sure that applicants know their rights and have timely access to the actual information used
to deny them housing.
18
Notice Accessibility
Advocates and organizers should ensure that notices are
accessible to all prospective tenants, including people with
disabilities, people with limited English proficiency (LEP
individuals), and people with limited literacy skills.
The Fair Housing Act requires most housing providers to grant
reasonable accommodations to people with disabilities.74 A
reasonable accommodation is a change in a rule, policy, or
practice that affords an individual with a disability the right to use
and enjoy housing. The right to a reasonable accommodation
extends to the application process.75 Although required under
fair housing laws independent of the fair chance ordinance,
you should consider including language in the ordinance
about housing providers’ obligation to provide reasonable
accommodations to applicants with respect to the notice
requirements.
Federally-assisted housing providers, managers and landlords
are also subject to obligations under Section 504 of the
Rehabilitation Act of 1973 (Section 504).76 Federally-assisted
landlords must ensure effective communication with applicants
with disabilities, which may include the use of auxiliary aids and
devices or interpreters. Consider including explicit language
about compliance with Section 504 if the ordinance will cover
federally-assisted housing providers, particularly with respect to
communicating information in relevant notices.
It is also important to consider how notices will be communicated
to non-English speakers. Both the San Francisco and Richmond
ordinances contain provisions requiring translation of notices
for LEP individuals. Richmond’s ordinance requires the city to
translate the adverse action notice into any language spoken by
more than 5 percent of the city’s population.77
Federally-assisted housing providers are subject to additional
requirements with respect to serving LEP individuals. Federally-
74. 42 U.S.C.A. § 3604(f) (West 2019).
75. 42 U.S.C.A. § 3604(f)(1) (West 2019); See also Joint Statement of the Dept. of Hous. and Urban Dev. And the Dept. of Justice, Reasonable Accommodation Under the
Fair Housing Act at 2 (2002).
76. 29 U.S.C.A. § 794 (West 2019).
77. Richmond Municipal Code § 7.110.060(c).
78. 42 U.S.C.A. § 2000d (West 2019); Executive Order 13166, Improving Access to Services for Persons with Limited English Proficiency, 65 Fed. Reg. 50,121 (Aug. 16,
2000).
79. Final Guidance to Federal Financial Assistance Recipients Regarding Title VI Prohibition Against National Origin Discrimination Affecting Limited English Proficient
Persons, 72 Fed. Reg. 2,732 (Jan. 22, 2007).
80. Id.
81. Richmond Municipal Code § 7.110.070.
assisted owners and landlords must create plans to address
how to serve people who are LEP78 and do an analysis to assess
the LEP needs in the area they are serving.79 They are required
to create a language access plan and to provide language
access in accordance with that plan.80 Adverse action notices
related to a fair chance ordinance should be part of any such
language access plan.
Finally, consider requiring that notices be written in easy-to-
understand and accessible language for people with limited
literacy skills.
How Will the Ordinance Be
Enforced?
There are several issues to consider when deciding how
your fair chance ordinance will be enforced. You will need to
select enforcement mechanisms and remedies. You will need
to determine who will be responsible for enforcement. You
should also consider including additional measures to ensure
compliance, such as publicity, outreach and education for
landlords and prospective tenants, housing testing to assess
compliance, and data collection.
There are two primary mechanisms for enforcing a fair chance
ordinance. The first is an administrative complaint process
managed by the local government. The second is a private
right of action that allows individuals to sue landlords in court
over violations of the ordinance. While most existing fair chance
ordinances include one or the other of these options, they are
not mutually exclusive. In Richmond, for example, organizers
elected to include an administrative complaint process and a
private right of action.81
Here are some factors to consider when deciding how your
ordinance will be enforced:
19
• Does the local government have the resources to provide
staff time and other support to enforce the ordinance
administratively and/or in court?
• Is there another administrative enforcement process already
in place that could be used to enforce the ordinance?
• How many complaints and hearings do you anticipate will
be brought each year?
• Does your jurisdiction already have other laws in place –
such as consumer protection or landlord-tenant laws – that
could be used to sue someone who violates the fair chance
ordinance?
• What resources are available in the community to assist
applicants with bringing cases in court? 82
• Does the local legal aid organization have capacity to
represent tenants in administrative enforcement actions
and/or in court?
Depending on available resources in your community, you
may also want to explore alternative or additional methods of
enforcement involving conciliation or restorative justice models.83
Administrative Complaint Process
All of the existing fair chance ordinances utilize some form of
an administrative complaint process in which municipal staff
review, investigate, and make a determination, often after an
administrative hearing. Key elements to consider when designing
an administrative complaint process include: (1) important
deadlines; (2) how the hearing process will be conducted; (3)
to what extent investigative materials will be subject to public
disclosure; and (4) what remedies will be available through the
administrative process. On one hand, an administrative process
usually allows for faster and less expensive resolution than
litigation in court. It also gives prospective tenants the ability
to enforce the ordinance without necessarily having to find an
attorney to represent them. On the other hand, depending on
other state and local laws, the remedies available administratively
will generally be much more limited than those available from a
court.
82. Note that if you do include a private right of action with an attorney fees provision, it is more likely that attorneys will be willing to take fair chance cases.
83. For more information about these alternative models, see, e.g., https://irjrd.org/home/restorative-practices/.
84. San Francisco Police Code § 4911; Urbana Code of Ordinances § 12-81(d).
85. Seattle Municipal Code § 14.09.050; District of Columbia Code § 5(a).
86. Seattle Municipal Code §§ 14.09.35 – 14.09.105.
Deadlines
If you decide to include an administrative complaint process in
your ordinance, one of the first considerations will be timing. You
will need to set a deadline for submitting complaints and also
decide how long the process will take from complaint to resolution.
There are several competing interests to consider when
determining these time frames. On the one hand, both parties
will usually have an interest in having disputes resolved quickly.
This is a particularly important consideration if the ordinance will
require the landlord to hold the unit open pending resolution of
the complaint, as discussed below. On the other hand, a slower
process may be necessary to allow for an adequate investigation
both before and after a complaint is submitted. For example,
applicants need ample time to gather evidence of rehabilitation.
If there is only a short window of time to submit a complaint,
wrongfully denied applicants may be discouraged from utilizing
the process.
Jurisdictions with existing ordinances have adopted varying
deadlines for complaints. San Francisco’s deadline is 60
days, and Urbana’s is 90 days.84 In contrast, both Seattle and
Washington, D.C. give complainants up to a year to submit a
complaint.85
Many fair chance ordinances that provide for administrative
complaints include review and hearing procedures that can take
a year or more to complete, particularly when they utilize existing
administrative complaint procedures that the local government
already has in place. For example, Seattle’s fair chance
ordinance utilizes the City’s existing employment discrimination
administrative complaint process, which includes several levels
of investigations and review, and then a final determination.86
In deciding whether to use an existing complaint process, you
will need to understand the rules and timeline of the existing
process and decide whether the advantages of not having to
create a new set of procedures outweigh any delay or other
disadvantages that might result from using a system set up
for other purposes. Another element to consider is whether the
existing process is appropriate for complaints related to your
ordinance. For example, will a hearing officer who decides
complaints related to employment discrimination be given
20
authority to decide a case about a fair chance violation? Will
training be available so that people used to reviewing other
types of complaints understand applicants’ rights under the new
ordinance?
Richmond’s dual-option administrative complaint deadline
It is possible to create an administrative process that provides both an option for an expedited resolution and
a longer time frame for submitting complaints. Richmond’s ordinance gives applicants access to an expedited
hearing process if they file a complaint within 14 days of receiving notice that they have been denied. The
landlord must hold the unit open during that 14-day period and then, if a complaint is filed, until the process is
complete. The City must hold an administrative hearing and issue a decision within 30 days of the filing of the
complaint. Hearing officers have the authority to order a housing provider to rent to an applicant and to levy
monetary penalties.87
Complaints can also be filed after the initial 14-day deadline for up to six months after the denial. These
complaints are subject to a non-expedited administrative review process. The landlord is not required to hold
the unit open while the complaint is under review, but hearing officers can still levy monetary penalties if they
determine there has been a violation of the ordinance. Other interested parties, including city staff, also have
access to this process if they witness or receive evidence of violations.
87. A copy of Richmond’s implementing regulations is included in the Appendix.
88. Goldberg v. Kelly, 397 U.S. 254 (1970).
Hearing Process
Given what is at stake for both the tenant and the landlord in
a hearing on a fair chance complaint, it is important that your
ordinance provide for fair and just procedures, often referred
to in the law as “due process.” Generally, due process requires
hearing procedures that include:
• A timely notice detailing the reasons for the action;
• An opportunity to present evidence and arguments and to
confront any adverse witnesses;
• The option to be represented by an advocate, if desired;
• An impartial decision maker;
• A decision resting on the applicable legal rules and the
evidence presented; and
• A statement of reasons for the decision and of the evidence
relied on.88
There are several additional features you should consider
including to ensure an accessible and fair process:
• Procedures to ensure equal access to the process for
people with disabilities and people with limited English
proficiency;
• Translation services;
• Procedures allowing the parties to review each other’s
evidence; and
• A requirement that the hearing be recorded (at no cost to
the applicant) and that the parties have prompt access to
that recording.
Administrative Remedies
Remedies are the relief or penalties imposed by the administrative
complaint process after a violation is found. Some examples of
fair chance ordinance remedies include monetary penalties for
21
violating the ordinance or affirmative relief such as ordering the
housing provider to rent to a wrongfully denied applicant. When
considering the remedies for your ordinance, keep in mind what
your primary goals are so you can align the remedies with those
goals. Some factors to consider are:
Will the ordinance provide a remedy to a wrongfully denied
applicant or only provide for a fine paid to the local government?
• What type of relief would be most useful to an applicant?
Access to the unit in question? Access to the landlord’s next
available comparable unit? Money?
• What types of remedies will promote compliance and deter
other landlords from violating the ordinance?
• Are the remedies you are considering consistent with
applicable state and local laws?
All of the existing fair chance ordinances impose some type
of monetary penalties on housing providers who violate the
ordinance. However, the amount of the penalties varies
significantly from jurisdiction to jurisdiction. For example,
Richmond’s ordinance imposes no penalty for the first violation
of the ordinance.89 In contrast, Seattle’s ordinance penalizes
housing providers $11,000 for the first violation.90
An important consideration in setting a schedule of penalties is
whether it will promote compliance. If the penalty is too low, it
may not provide enough of a deterrent. However, if it is too high,
it may be an unfair penalty to a landlord with fewer resources or
it could be vulnerable to a legal challenge. Washington D.C. has
addressed this issue by imposing penalties based on the size of
the housing provider’s rental inventory.91 The maximum penalty
is $1,000 for housing providers with 10 or fewer units, $2,500 for
11 to 20 units, and $5,000 for 21 or more units.92
Another consideration is whether penalties will increase
progressively if a provider violates the ordinance more than once.
The rationale with this type of system is that higher penalties are
appropriate when it is more likely the provider knowingly violated
the ordinance. For example, Seattle’s ordinance has a penalty
89. City of Richmond Rules of Procedure For Considering Arrests and Convictions in Affordable Housing Decisions § IX(A).
90. Seattle Municipal Code § 14.09.100.
91. District of Columbia Code § 6(a).
92. Id.
93. Seattle Municipal Code § 14.09.100.
94. City of Richmond Rules of Procedure For Considering Arrests and Convictions in Affordable Housing Decisions § V(H).
95. City of Richmond Rules of Procedure For Considering Arrests and Convictions in Affordable Housing Decisions § V(I).
of $11,000 for the first violation, $27,500 for a second violation
within five years of the first violation, and $55,000 for a third
violation within seven years of the first violation.93
A couple of cities have also chosen to authorize relief that
orders a housing provider to rent the unit in question to the
wrongfully denied applicant. It is important to note that in order
to ensure that this remedy is available, the ordinance must also
require that the landlord hold the unit open until the complaint
process has been resolved. Otherwise, the landlord will rent the
unit to someone else, especially in competitive rental markets.
Richmond, for example, requires housing providers to hold the
unit open for 14 days after giving the applicant notice that they
intend to deny the application for the unit.94 If the applicant
submits a complaint to the city during the 14-day period, the
housing provider must keep the unit open until the administrative
process has been resolved.
Another option is to authorize relief that orders a housing
provider to rent the next available comparable unit in their
inventory to the wrongfully denied applicant. This type of remedy
could be subject to legal challenge, however, and is unlikely to
address the immediate housing needs of a wrongfully denied
applicant, particularly in a rental market with low vacancies and
low turnover.
Private Right of Action
Of the existing fair chance ordinances, only one (Richmond)
allows applicants for rental housing to sue landlords over
violations of the ordinance.95 However, enforcement through the
courts can be the most powerful enforcement tool available to
people harmed by violations of a fair chance ordinance, so you
should seriously consider including a private right of action in
addition to any administrative enforcement system. A lawsuit
can allow for relief that is generally not available as part of an
administrative complaint process, such as significant monetary
damages payable to the wronged applicant and injunctive
relief requiring the landlord to take certain actions. On the other
hand, litigation can take a long time, and, unless there are legal
22
resources available in the community to represent prospective
tenants, a private right of action may not be as helpful as
intended. It is important, therefore, to identify legal resources,
such as legal aid or other tenant advocates, and, if feasible given
budgetary constraints, to build in funding for legal representation
of wronged applicants as part of your ordinance. At a minimum,
any private right of action should include a provision allowing a
prospective tenant who wins to collect attorney fees and costs
from the defendant housing provider.
If you decide to allow for your ordinance to be enforced in
court, there are a number of factors to consider. First, will the
ordinance require applicants to go through an administrative
process before filing a lawsuit in court? This type of requirement
is often referred to as an exhaustion of administrative remedies.
Property owners generally argue that requiring the parties to
complete an administrative process will encourage them to
resolve their differences in a less costly and quicker way than
litigation. On the other hand, requiring a prospective tenant to
go through an administrative procedure before suing in court will
generally delay relief and deny people their rights just because
they miss the short deadline to engage in the administrative
process.
You will also have to decide who is authorized to sue in court
under the ordinance. You may want to limit access to the
court process to wrongfully denied applicants. However, you
should also consider allowing other interested parties, such as
community groups or municipal staff to enforce the ordinance
96. Ideally, the attorney fees provision will only allow for an award of fees and costs to a prevailing plaintiff, as in fair housing and consumer protection laws.
in court. Allowing additional parties to enforce the ordinance
can promote more proactive enforcement, for example, the
ordinance could authorize criminal justice agencies to bring
lawsuits against landlords who post advertisements in violation
of the ordinance.
Your ordinance should also authorize specific remedies for
the court to award. Remedies can include monetary penalties,
damages that compensate a party for losses due to violations
of the ordinance and/or injunctive relief. Giving the court the
ability to order injunctive relief allows the court to force a housing
provider to comply with the ordinance, which may be the most
important result of challenging a violation for the prospective
tenant. As noted above, the ordinance should also direct the
court to award attorney fees and costs to the prospective tenant
if a violation is established.96 Without an attorney fees clause,
people who file a legal complaint will be on the hook for any fees
and costs associated with filing the case.
Finally, as with an administrative complaint process, you will need
to determine how long after the relevant events (e.g., wrongful
denial based on criminal history or posting of non-compliant
ads) a lawsuit can be brought. Richmond’s ordinance does
not have a set deadline (also called a “statute of limitations”),
so rules that apply to similar types of legal claims will apply
there. Since general statutes of limitation can be fairly short,
though, it is usually better to include an explicit deadline so the
parties know where they stand and can avoid costly and time-
consuming disputes over what deadline applies.
23
Additional Enforcement Measures
There are other proactive ways to ensure compliance with a
fair chance ordinance. Publicity, outreach and education, and
requirements aimed at assessing the jurisdiction-wide impacts
of an ordinance, such as testing and data collection, are all
important enforcement mechanisms.97
Publicity about the ordinance can help ensure that applicants
are informed of their rights when they apply for rental housing.
Local governments, including public health departments for
example, can play an important role in publicizing fair chance
policies. Cities can post notices of their own, include FAQ’s and
other informational materials online, disseminate information
through service providers in the community, and place ads on
public transportation and in other public areas. They can also
conduct or sponsor outreach and educational workshops for
prospective tenants and for housing providers. These activities
should be ongoing and not just limited to the period immediately
after an ordinance is enacted.
On-the-ground testing is another way to ensure that housing
providers are aware of and complying with your ordinance.
Housing testing involves sending testers out to apply for housing
and seeing what questions a housing provider asks regarding
criminal history and whether an applicant with, for example,
a felony conviction that pre-dates the ordinance’s lookback
period, is denied. Testing often involves sending out a pair of
testers with matched characteristics except for the issue being
tested (such as criminal history) and tracking differences in
how they are treated. You can team up with a local fair housing
testing organization that typically engages in fair housing testing
and other anti-discrimination work.98
97. Center on Budget and Policy Priorities, Prohibiting Discrimination Against Renters Using Housing Vouchers Improves Results (2018) available at: https://www.cbpp.
org/research/housing/prohibiting-discrimination-against-renters-using-housing-vouchers-improves-results . This report about Section 8 anti-discrimination ordinances, which
are similar in many ways to fair chance ordinances, asked stakeholders to identify the best methods of enforcement. Respondents in many cases cited to alternatives to
administrative complaints or lawsuits as the best enforcement mechanisms.
98. For more information on fair housing testing related to racial discrimination and criminal records screening policies in housing see Equal Rights Center, Unlocking
Discrimination (2016) available at: https://equalrightscenter.org/wp-content/uploads/unlocking-discrimination-web.pdf
99. Richmond Municipal Code §§ 7.110.070(e) and (g).
100. San Francisco Police Code §§ 4911(b) and 4912.
It is also important for the local government to collect data about
the number of complaints submitted and/or lawsuits filed, the
outcomes of those complaints and lawsuits, and any testing
results. The data should be compiled and reported to the council
or legislative body at regular intervals. This type of data may be
useful as evidence in administrative or court proceedings, if, for
example, it shows that a landlord has a pattern of violating the
ordinance.
Data Collection
Data collection can act as a key enforcement tool because it
provides meaningful information to decision-makers and people
in power. Data such as trends in screening criteria, denials,
and the number and types of complaints filed by applicants,
may provide insight into the housing barriers faced by people
impacted in your community and could show the need for
enhanced enforcement.
First, consider a requirement that housing providers submit a copy
of their admissions criteria and the number and characteristics
of housing application denials to the local enforcement body. In
addition, the city should track and make public all complaints
made under the fair chance ordinance (without disclosing
confidential or private information). A fair chance law could
direct the city to compile a monthly or annual report on the data
it receives and/or distribute the report to a municipal governing
board such as a City Council or Board of Supervisors. Both
the Richmond99 and San Francisco100 ordinances include data
capture requirements.
24
5.0 Implementation
101. Richmond Municipal Code § 7.110.070(c).
102. See Cook County Just Housing Amendment Interpretive Rules § 730.100. Before accepting an application fee, a housing provider must disclose to the applicant
information about their tenant selection criteria and key information related to the fair chance ordinance.
It is essential to include an implementation plan in your local
fair chance ordinance. Elements could include: designation of a
specific department or agency responsible for administering the
ordinance; a specific timeline for implementation; directions to
the assigned department or agency to promulgate regulations
under the ordinance; and a plan for educating community
members about the ordinance.
Identifying the Responsible
Department and Specific Tasks
When drafting your ordinance -- ideally in collaboration with
municipal staff -- you should identify the appropriate department
that will be tasked with administration of the ordinance. This will
also allow the specified department to think about staffing or
other needs ahead of time. Ideally, the ordinance will provide
the department with the resources and authority necessary for
effective implementation. Otherwise, you may risk delays in
implementation until resources are appropriately allocated.
You may also want to include specific tasks that must be
completed after the ordinance is enacted. For example,
Richmond’s ordinance directs the City Manager to identify
hearing officers and staffing for the administrative process,
develop notices and other documents, conduct outreach to
housing providers, identify a funding source, create a budget,
and set out a schedule of penalties.101
Timeline
Consider including an implementation timeline in your ordinance.
You may want to have a deadline for an initial report to a local
governing body as an accountability mechanism. You could
also consider giving affected individuals and interested parties
an explicit right to enforce implementation of the ordinance
so advocates and organizers will have leverage to resist
bureaucratic inaction.
Regulations
Many fair chance ordinances direct a city department or agency
to create fair chance regulations. The ordinance could include
a provision that gives community groups, legal aid advocates,
and other interested parties the right to participate in the drafting
process. Some topics that you could address in regulations are:
• The mechanics of complaint submission, including whether
there will be an official form, what information must be
included in a complaint, and how complaints can be
received (e.g., in person, by phone, online).
• How complaints will be processed, including timelines
for each step (if not laid out in the ordinance) such as
investigations, scheduling of hearings, and hearing
decisions.
• When application fees are paid.102
• The required contents of the hearing officer’s decisions.
• Policies for accommodating people with disabilities and
people with limited English proficiency.
• How parties will be informed of developments during the
administrative process.
• Referrals to legal assistance.
• Procedures for collection of data and compilation of reports.
• Procedures for testing to ensure compliance.
• Information on penalties and other remedies.
25
Several jurisdictions have enacted fair chance regulations
under their fair ordinances. We have included examples in
the Appendix.
Outreach
Subsection 4.0(e) above discusses notice to prospective
applicants as an important element of a fair chance policy.
You should also consider including a plan for public
outreach and education, for both tenants and landlords.
How will landlords be informed of their responsibilities under
the law? Will landlords be required, for example, to attend
a training on the new ordinance? It may also be useful to
direct the municipality to draft model materials (required
language for rental listings, for example) and make them
available online.
An ordinance is only as strong as
its implementation!
When Richmond, California, passed their fair
chance ordinance in 2016, they had several
champions in local government who helped
move the policy through the City Council. Directly
following the bill’s passing, several of those same
champions changed jobs or retired. This created
implementation challenges because the people in
power no longer prioritized the fair chance policy.
Fair chance partners in Richmond had to stay at
the table and continue to advocate for fair chance
so that families in Richmond could benefit from
the ordinance’s protections. It was not until after
immense pressure from local organizers and a
lawsuit against a housing provider for clearly
violating the ordinance that the City began to fully
implement its fair chance policy.
26
6.0 Related Policies
103. Seattle Municipal Code § 14.08.050.
104. Yim v. City of Seattle (“Yim I”), Case No. 17-2-05595-6 SEA (King County Super. Ct.).
105. Yim v. City of Seattle, Case No. 95813-1 (Wash., Nov. 14, 2019).
106. Keep in mind, however, that because the case was brought in state court under Washington law, the legal analysis may be unique to that state, leaving room for
opponents in other states to challenge such ordinances using similar theories.
107. Yim v. City of Seattle (“Yim II”), Case No. Civil Action No. 2:18-cv-00736-JCC (W.D. Wash.). Unlike Yim I, Yim II is pending in federal (rather than state) court. However,
the federal court requested guidance from the Washington Supreme Court on the state constitutional issues, and the Washington Supreme Court issued a decision in
November 2019 that will likely result in a victory for the City of Seattle regarding its fair chance ordinance. See Certification in Yim v. City of Seattle, Case No. 96817-9
(Wash., Nov. 14, 2019).
Other Local Ordinances
Advocates and organizers across the country have thought
creatively about ways to increase housing opportunities for
people exiting jails and prisons and have come up with a range
of policies to address this challenge. Like most fair chance
ordinances, these policies are new. There is, therefore, little
data available on the outcomes of such initiatives. In the coming
years, we hope to know more about what works in different local
communities. The following policies aim to achieve some of the
same goals as a fair chance ordinance: increasing housing
access for people directly impacted by the criminal justice
system, reducing prejudice or implicit bias against people with
criminal records, and removing barriers to affordable housing.
Seattle’s “first-in-time” ordinance
In 2016, Seattle passed a “first-in-time” ordinance to combat
implicit bias in housing application decisions and level the
playing field for people with criminal records. 103 The ordinance
requires landlords to consider housing applications on a first-
come, first-served basis so that the landlord cannot discriminate
arbitrarily or based on characteristics of the applicant that they
are not legally permitted to consider. Citing research that shows
how implicit bias can undermine a prospective tenant, the City
Council voted to approve the first ordinance of its kind.
The first-in-time ordinance requires landlords to keep accurate
records of the date and time completed applications are
received. The landlord must then offer the unit to the first
qualified applicant. The landlord has no discretion to move
onto the next qualified applicant unless the earlier qualified
applicant turns down the rental. Other important aspects of the
ordinance include: (1) a requirement that residential landlords
provide notice of tenant screening criteria to all applicants, and
(2) civil penalties for failure to comply with the law, including rent
refunds or credits, attorney fees and costs, and other penalties.
In 2017, the Pacific Legal Foundation (PLF), a conservative
non-profit organization, sued the City of Seattle on behalf of
several landlords, alleging that the first-in-time ordinance was
unconstitutional under Washington state law.104 The trial court
agreed with the plaintiff landlords and found that the ordinance
violated the takings, due process, and free speech clauses of
Washington’s state constitution. However, in November 2019,
the Washington Supreme Court reversed that decision and
ruled Seattle’s first-in-time ordinance does not violate the state’s
constitution.105
The case is important for several reasons. First, the Seattle
ordinance is the first of its kind in the nation, so this decision
will likely set a precedent for similar laws.106 Second, the legal
claims in the “First-in-Time” case are similar to those that can be
used to challenge other ordinances, particularly local laws that
try to achieve the same goals. In fact, opponents of Seattle’s
fair chance ordinance (also represented by PLF) presented
similar claims in a separate case challenging that ordinance.107
Third, the decision will influence the willingness of other local
27
jurisdictions to enact ordinances that limit what a landlord can
consider in the tenant screening process.
Portable screening reports and other
policies that limit the use of application
fees
Some jurisdictions have explored policies that eliminate
application fees, which can act as a huge barrier to affordable
housing.108 Application fees can be especially problematic for
people with criminal records who are routinely charged such
fees even if they do not meet a landlord’s threshold eligibility
requirements. In addition, application fees disproportionately
steer low-income people away from housing opportunities.
Policies that require landlords to use portable screening reports
aim to reduce the impact of discriminatory application fees and
also put control of the information contained in a screening report
back in the hands of the applicant. This is especially important
given the prevalence of errors in background reports generated
by private screening companies, including inaccurate criminal
history information or duplicative entries.109
A portable screening report ordinance requires landlords to
accept a verified and secure third-party-generated tenant
screening report provided by tenants applying for rental
housing. Prospective tenants can use a reusable screening
report as many times as needed within a thirty-day period for a
single fee paid to third-party companies that provide the service.
Applicants pay the screening company directly to generate the
report, and landlords access the report using an online portal.
Applicants have the opportunity to view their reports prior to
submitting applications, so they have an opportunity to correct
errors and also prepare evidence of mitigating circumstances
of any criminal history that is accurately captured in the report.
Advocates in Washington state were the first to push forward a
portable screening report bill, the Fair Tenant Screening Act.110
The final bill requires landlords to provide prospective applicants
with detailed information about their screening criteria and
practices, including whether they accept portable screening
reports, and prohibits landlords from charging additional
108. Owners of HUD-assisted properties are prohibited from charging application fees 24 C.F.R. 5.903(d)(4) and 5.905(b)(5).
109. National Consumer Law Center, Broken Records: How Errors by Criminal Background Checking Companies Continue to Harm Consumers Seeking Jobs and
Housing (2019) available at: https://www.nclc.org/images/pdf/criminal-justice/report-broken-records-redux.pdf?eType=EmailBlastContent&eId=8eb6cbd4-fa57-49eb-a26e-
386cb1fe6599
110. Washington SHB 1257 (March 5, 2015); RCW 59.18.257.
111. Available at: https://www.nhlp.org/wp-content/uploads/2018/08/Rentry-Manual-2018-FINALne.pdf
application fees if they have accepted a portable screening
report. The Washington law falls short, however, of requiring that
all landlords accept portable screening reports.
Other policies that advocates can pursue to reduce or eliminate
the disproportionate impact of application fees on people of
color, particularly low-income families and people with a criminal
record include:
• Banning the use of housing application fees.
• Requiring that landlords refund application fees to rejected
applicants.
• Capping application fees at a reasonable amount.
Administrative Plans
Local ordinances can broadly limit how landlords screen
prospective applicants, but there are other types of policies
that impact access to affordable housing. For example, local
administrative plans that apply to particular housing programs
are an important way to expand housing opportunities for
people reentering, especially those who wish to reunify with
family. Because most local plans require public participation in
their development, it is relatively easy for advocates, organizers,
and tenants to have an impact on the screening criteria. This
section will focus on the major types of plans that govern the
housing choice voucher (Section 8), public housing, and Low
Income Housing Tax Credit programs in your community. These
are the Administrative Plan (Admin Plan), the Admissions and
Continued Occupancy Plan (ACOP), and the Qualified Allocation
Plan (QAP), respectively.
Each of these plans serves a unique purpose, so advocacy
strategies will differ. In general, though, the emphasis of your
advocacy in this context should be on reasonable admissions
policies for all housing programs and/or a set-aside of units or
an admission priority for individuals with criminal records and
their families. For additional information on how to use these
plans to advocate for more inclusive tenant screening policies,
see NHLP’s guide, An Affordable Home on Reentry.111
28
Admin Plans and ACOPs
Housing authorities administer both public housing and Section 8
programs and are responsible for developing and implementing
plans that govern the day-to-day operations of those programs.
HUD requires that certain policies be included in a housing
authority’s Section 8 Admin Plan and its public housing ACOP,
including details of the housing authority’s admissions criteria.
Most Admin Plans and ACOPs can be found on the housing
authority’s website.
Section 8 vouchers and public housing are subject to federal
laws that regulate the eligibility of individuals who have been
released from incarceration or have engaged in prior criminal
activity. Pursuant to federal statutes and regulations, housing
authorities must reject applicants in three specific categories for
these programs:
• People with convictions for methamphetamine production on
federally assisted property;112
• Lifetime registered sex offenders under any state registry;113
and
• Those with evictions during the previous three years for drug-
related criminal activity, absent evidence of rehabilitation.114
Housing authorities are only limited by the federal requirements
above. Housing authorities have discretion over whether or not to
reject an applicant based on any other type of criminal history. HUD
encourages housing authorities to exercise this discretion in favor of
“allowing ex-offenders to rejoin their families in the Public Housing
or Housing Choice Voucher programs, when appropriate.”115
Even Congress has placed limits on housing authority discretion
by limiting the grounds on which housing authorities may opt to
reject an applicant to: drug related criminal activity, violent criminal
activity, or other criminal activity that would threaten the health or
safety of other residents or housing authority staff.116 In addition,
housing authorities policies must include “reasonable” lookback
periods that only consider criminal history going back a limited
period of time prior to admission. Nonetheless, housing authorities
112. 42 U.S.C. § 1437n(f)(1); 24 C.F.R. § 960.204(a)(3) (public housing); 24 C.F.R.
§ 982.553(a)(1)(ii)(c) (vouchers).
113. 42 U.S.C. § 13663(a); 24 C.F.R.§ 960.204(a)(4) (public housing); 24 C.F.R. §
982.553(a)(2)(i) (vouchers).
114. 42 U.S.C. § 13661(a); 24 C.F.R. § 960.204(a)(1) (public housing); 24 C.F.R. §
982.553(a)(1)(i) (vouchers).
115. Letter from Shaun Donovan, HUD Secretary, to PHA Executive Directors at 1-2
(June 17, 2011).
116. 42 U.S.C.A § 1437a(b)(9) (West 2019).
29
across the country have exercised their discretion to adopt overly
restrictive screening policies that create unnecessary barriers to
people with a criminal history.117
HUD issued guidance in 2015 and 2016 explaining that overly
restrictive criminal records screening policies can have fair
housing implications,118 and why arrest records alone should never
be the sole basis of an adverse housing decision.119 For example,
in its fair housing guidance, HUD states that blanket bans on
certain criminal history (for example, “no felonies”) is probably
illegal under fair housing law.120 You should review the housing
authority’s local plans with the following questions in mind:
• Does the policy include any blanket bans, such as “no
felonies”?
• Does the policy include restrictions on criminal history that
do not affect the health and safety of other residents or
housing authority staff?
• Does the policy include a reasonable lookback period?
• Is there an opportunity for applicants to present mitigating
circumstances of the criminal activity?
• Does the plan allow the use of arrests as the sole basis for
a decision?
Advocates in a number of jurisdictions have had success
influencing public housing and voucher program admission
policies as they relate to people reentering. For example,
advocates in New Orleans worked with formerly incarcerated
individuals, representatives of law enforcement, the Housing
Authority of New Orleans (HANO) and others for several years to
improve HANO’s admissions policy. The result is an innovative
approach to tenant screening that rules out certain criminal
activity as a factor in admissions decisions, clearly defines
lookback periods, and includes a hearing process that allows
an applicant to submit mitigating circumstances surrounding the
conviction and rehabilitation. Engaging in the housing authority
117. Marie Claire Tran-Leung, When Discretion Means Denial; The Use of Criminal Records to Deny Low-Income People Access to Federally Subsidized Housing in Illinois
(2011).
118. Dept. Hous. and Urb. Dev., Office of General Counsel Guidance on Application of Fair Housing Standards to the Use of Criminal Records by Providers of Housing and
Real Estate-Related Transactions (2016).
119. Guidance for Public Housing Agencies (PHAs) and Owners of Federally Assisted Housing on Excluding the Use of Arrest Records in Housing Decisions, PIH 2015-19
(Nov. 2, 2015).
120. Dept. Hous. and Urb. Dev., Office of General Counsel Guidance on Application of Fair Housing Standards to the Use of Criminal Records by Providers of Housing and
Real Estate-Related Transactions 6 (2016).
121. 26 U.S.C.A. § 42(m)(1)(A)(I) (West 2019).
122. Id.
123. Copies of the 2017 QAPs are available at https://www.novoco.com/resource-centers/affordable-housing-tax-credits/application-allocation/qaps-and-applications/2017-
qaps-and-applications. QAPs for other years are available at the same site.
plan process with regard to admissions screening criteria can
be a critical part of your fair chance campaign. In addition, you
may need to advocate for changes to these plans to make your
fair chance policy effective.
Qualified Allocation Plan
The Low Income Housing Tax Credit (LIHTC) program is the
largest source of new affordable housing in the United States.
There are about two million tax credit units today, and the
number continues to grow by an estimated 100,000 annually.
The program is administered by the Internal Revenue Service
(IRS), a bureau of the Department of the Treasury.
The IRS distributes tax credits to each state for construction
or rehabilitation of housing. Each state then allocates the tax
credits to sponsors of LIHTC housing in accordance with a state-
adopted Qualified Allocation Plan (QAP). The QAP sets forth the
state’s LIHTC allocation plan and project selection criteria.121
The IRS requires that state LIHTC agencies update their QAP
plans annually and that they do so after a hearing that has been
reasonably noticed to the public.122 A copy of each state’s QAP
is available online.123
The tax credit program itself does not have any requirements
with respect to screening for criminal history, nor does it
require LIHTC properties to have screening policies in writing
or accessible to prospective tenants. Aside from fair housing
and civil rights laws then, tenant screening is fully within the
discretion of private LIHTC landlords. Unfortunately, this means
that many tax credit properties adopt overly restrictive screening
criteria.
You can take advantage of the QAP planning and public hearing
process to advocate for inclusive screening policies for all LIHTC-
financed developments in your state. Policies could address
a prohibition on the use of arrests as the basis for a denial or
a requirement that LIHTC owners and managers conduct an
30
individualized assessment of applicants with criminal records.
For example, the Georgia Housing Finance Agency, in its QAP,
requires all LIHTC properties to have a clearly defined screening
policy that “establishes criteria for renting to prospective tenants
that is not a violation of the Fair Housing Act” and that contains
“reasonable and non-discriminatory policies around applicant
income, employment requirements, and background checks.”124
Georgia’s policy further requires that all screening policies (at a
minimum) incorporate the following:
• Arrest records are not a valid reason to deny an applicant
housing;
• Applicants with a criminal conviction may be denied housing
only if the reason for their conviction clearly demonstrates
that the safety of residents and/or property is at risk; and
• Blanket terms in screening criteria, that say “Any criminal
convictions will be denied” are considered discriminatory
and in violation of the Fair Housing Act.125
124. Georgia Department of Community Affairs, Qualified Allocation Plan, Section 21(L) (2018).
125. Id.
QAP advocacy can have a broad impact on people seeking to
live in LIHTC housing in your state as well as on the effectiveness
of a local fair chance ordinance that is intended to apply to
LIHTC properties. You can inquire with your state allocation
agency about when the QAP process begins so you know when
to submit public comment on admissions and criminal history.
31
7.0 Conclusion
Developing a fair chance ordinance that effectively expands housing access for people with criminal records and serves the needs of
your local community will require input from a wide range of community members and organizations and careful attention to the details.
We hope that this toolkit will help you achieve your goals in this important work.
NHLP staff are available to provide technical assistance to organizers and advocates drafting fair chance ordinances. Please email
nhlp@nhlp.org for assistance.
32
8.0 Appendices
33
8.1 NHLP Existing Fair Chance
Ordinances Chart
34
Jurisdiction, title and citation Summary of ordinance
San Francisco, CA
Fair Chance Ordinance
Ordinance No. 17-14 (2014)
S.F. Police Code, Article 49
Note: San Francisco adopted procedural rules
(included in the Toolkit Appendix).
Applies to all housing funded in whole or in part by the
City and below-market-rate units.
Prohibits criminal history screening except for felony
convictions in the past 7 years and pending unresolved
arrests, except if required by federal law.
No criminal history screening until applicant is
determined to be otherwise qualified for the unit. Denials
based on criminal history require written notices and an
individualized assessment.
Includes an administrative complaint procedure
administered by the City’s Human Rights Commission.
Private right of action only after a person alleging a
violation has exhausted administrative remedies.
Newark, NJ
Ordinance 14-0921 (2015)
Not codified at the direction of the City.
Applies to all housing.
Limits criminal history screening to: serious offense
convictions for 8 years following release from post-
conviction custody or from the date of sentencing (if
no incarceration); specified minor offense convictions
or municipal ordinance violations for 5 years following
release from post-conviction custody or from the date
of sentencing (if no incarceration); pending criminal
charges; convictions for certain specified offenses
9e.g, murder, arson, sex offenses), regardless of when
they occurred.
Denials based on criminal history require an
individualized assessment and a notice of adverse
action.
No enforcement mechanism provided.
35
Jurisdiction, title and citation Summary of ordinance
Champaign, IL
City of Champaign Code of Ordinances Ch. 17 Article I,
§§ 17.3 (11) - 17.4.5 and Article V §§ 17.71, 17.75.
Note: In June 2019, the Champaign City Council started
re-examining the scope of the permissible criminal
history screening.
Amended existing anti-discrimination statute to prohibit
discrimination based on criminal history except specific
crimes enumerated in the ordinance, such as: forcible
felony, felony drug conviction or conviction for the sale,
manufacture or distribution of illegal drugs, unless
applicant has not re-offended for 5 years following
release from incarceration. Further exception for
preferences by religious organizations.
Includes an administrative complaint procedure
administered by the Human Rights Commission. Parties
may seek review of a decision by the Commission in
court.
Urbana, IL
Urbana Code of Ordinances, Ch. 12, Article III, §§ 12-
37, 12-64.
Applies to all housing except owner-occupied where
owner anticipates sharing living space with prospective
tenant.
Amended existing anti-discrimination statute to prohibit
discrimination based on criminal history. Exception for
preferences for elderly or disabled tenants.
Includes an administrative complaint procedure
administered by the Human Rights Commission. Parties
may seek review of a decision by the Commission in
court.
36
Jurisdiction, title and citation Summary of ordinance
Richmond, CA
Fair Chance Access to Affordable Housing, Ord. No.
20-16 N.S. (2016)
Richmond Municipal Code Article VII, Ch. 7.110
Note: Richmond adopted detailed implementing rules
in 2019 (included in the Toolkit Appendix).
Applies to affordable housing providers (including
private landlords renting to Section 8 voucher-holders)
Prohibits housing providers from screening for any
criminal history except “directly-related” convictions
no more than two years old; or as required in certain
federally assisted programs.
No criminal history screening until applicant is
determined to be otherwise qualified for the unit and is
offered a conditional lease. Denials based on criminal
history require an individualized assessment and a
written notice.
Includes an administrative appeal process. If an
applicant files an administrative appeal within 14 days
of a denial, the owner must hold the unit open until the
appeal process is completed.
Includes a private right of action.
37
Jurisdiction, title and citation Summary of ordinance
Seattle, WA
Fair Chance Housing
Ordinance 125393 (2017)
Seattle Municipal Code Ch. 14.09
Applies to all housing types except single-family owner-
occupied and in-law units where owner lives on the
same premises.
Prohibits as an unfair practice consideration of arrest
records, criminal history, or conviction records when
deciding whether to rent to a prospective tenant, except
if required by federal law.
Permits landlords to check official sex offender registries
subject to certain restrictions. Requires a written notice
and an individualized assessment before any denial
based on sex offender status.
Includes an administrative complaint procedure
administered by the Seattle Office for Civil Rights.
Note: This ordinance was challenged in a case pending
in federal court, Yim v. City of Seattle, Case No. 2:18-cv-
00736-JCC (W.D. Wash.). In November 2019, the
Washington Supreme Court issued a ruling in a related
matter, Certification in Yim v. City of Seattle, Case No.
96817-9 (Wash., Nov. 14, 2019), that indicates that
the City of Seattle will likely win the case and the fair
chance ordinance will stand.
Washington D.C.
Fair Criminal Record Screening for Housing Act of 2016
D.C. ACT 21-677 (2017)
D.C. Law 21-259
District of Columbia Code Ch. 35B, §§ 42-3541.01-.10
Applies to all housing types except owner-occupied
properties with 1-3 units.
Prohibits criminal history screening except for felony
convictions or pending charges for specified offenses
in the past 7 years except if required by federal law.
No criminal history screening until applicant is
determined to be otherwise qualified for the unit and
receives a conditional offer. Denials based on criminal
history require an individualized assessment.
Includes an administrative complaint procedure
administered by the Office of Human Rights.
38
Jurisdiction, title and citation Summary of ordinance
Cook County, IL
Just Housing Amendment
Cook County Code of Ordinances, Ch. 42, Article II, §
42-38 (2019).
Note: Cook County has adopted interpretive rules for
this ordinance (included in the Toolkit Appendix).
Applies to all housing (subject to possible limitation in
implementing regulations).
Amended existing anti-discrimination statute to prohibit
discrimination based on criminal history. Exceptions
for persons subject to current sex offender registration
requirement or a current child sex offender residency
restriction; and convictions that present a “demonstrable
risk” to personal safety and/or property.
No criminal history screening until applicant is
determined to be otherwise qualified for the unit and
receives a conditional offer. Denials based on criminal
history require an individualized assessment and a
written notice.
Provides for an administrative complaint procedure.
Detroit, MI
Fair Chance Access to Rental Housing
Chapter 26, Article V, §§ 26-5-1 – 26-5-20 of the 1984
Detroit City Code (2019)
Applies to rental properties with 5 or more units.
Housing providers may only take adverse action against
an applicant based on a “directly-related conviction”
that has a “direct and specific negative bearing on the
safety of persons or real property”. Includes a non-
exclusive (and very broad) list of offenses that qualify
as “directly-related” convictions, such as any violent or
drug-related felony, any felony committed in the past
10 years or any imprisonment for a felony in the past
5 years.
No criminal history screening until applicant is
determined to be otherwise qualified for the unit and
receives a conditional lease. Denials based on criminal
history require an individualized assessment and a
written notice.
Provides for an administrative complaint procedure
administered by the Detroit Department of Civil Rights,
Inclusion and Opportunity.
39
Jurisdiction, title and citation Summary of ordinance
Portland, OR
Fair Access in Renting Ordinance No. 189580 (2019)
Portland City Code § 30.01.86
Note: Includes a “first-in-time” requirement in addition
to optional restriction on criminal history screening.
Applies to all housing except certain specified
affordable housing, units shared with owner, duplexes
where owner occupies one unit and accessory dwelling
units where owner lives on the same parcel.
Requires housing providers to either use specified “Low-
Barrier Screening Criteria” (or less prohibitive criteria)
that restrict screening for certain specified types of
criminal history (including felonies with sentencing in
past 7 years or misdemeanors with sentencing in the
past 3 years) or use their own more prohibitive screening
criteria but conduct an individualized assessment and
provide a written denial notice.
Includes a private right of action.
Minneapolis, MN
Applicant Screening Criteria for Prospective Tenants
Ordinance (2019)
Minneapolis Code, Title 12, Ch. 244, § 244.2030
Applies to all housing, though exceptions will likely
be developed through regulations. Effective date is
6/1/2020, but for owners of properties with ≤ 15 units, it
is delayed 6 months to 12/1/2020.
Requires housing providers to either use specified
“Inclusive Screening Criteria” (or less prohibitive criteria)
that restrict screening for certain specified types of
criminal history (including felonies with sentencing in
past 7 or 10 years (depending on the type of offense)
or misdemeanors with sentencing in the past 3 years)
or use their own more prohibitive screening criteria but
conduct an individualized assessment and provide a
written denial notice.
Includes a private right of action.
40
8.2 NHLP Fair Chance Checklist
41
Fair Chance Ordinance Checklist
Where is the ordinance housed (e.g., municipal code, police code, health & safety code)?
What types of housing (e.g., affordable housing, private housing, both) does the ordinance
apply to? Are there exceptions?
What records and information relating to criminal history are landlords allowed to
consider?
What screening procedures do landlords have to follow?
What is the administrative complaint/appeal process?
What is the statute of limitations (deadline) for filing an administrative complaint/appeal?
Is there a private right of action? If so, what is the statute of limitations (deadline) for
filing a case in court?
What are the penalties for noncompliance?
When and how will the ordinance be implemented?
What are the requirements about informational notices to applicants?
What are the reporting requirements (data or otherwise)?
How does the ordinance deal with possible federal or state preemption issues?
42
8.3 City of San Francisco
Procedures for Considering Arrests
and Convictions in Employment and
Housing Decisions
43
Page | 0
Rules of Procedure
San Francisco Police Code
Article 49
Procedures for Considering Arrests and Convictions
in Employment and Housing Decisions
CITY AND COUNTY OF SAN FRANCISCO
HUMAN RIGHTS COMMISSION
Page | 1
Table of Contents
Page
I. Introduction……………………………………………………………………………… 3
II. Scope of Authority……………………………………………………………………. 4
III. Definitions………………………………………………………………………………… 5
IV. Procedures for the Advertisements, Applications, and Interviews 8
A. Advertisements and Solicitations…………………………………… 8
1.No Blanket Exclusions…………………………………………. 8
2.Applicants with Prior Arrest and Conviction Records
will be Considered………………………………………………… 8
B. Notice and Posting Requirements……………………………………. 8
1. Website……………………………………………………………….. 8
2. Frequently Visited Locations……..…………………………. 8
3. Language Access…………………………………………………… 9
C.Interviews and Applications: No Inquiry Prior to Determination
of Qualification……………………..…………………………………………. 9
D.Obtain but not Review……………………………………………………… 9
E.Notice Requirement…………………………………………………………. 9
1.Notice to Applicant Prior to Conducting Criminal
Background Check……………………………………………………… 9
2.Language Access………………..……………………………………… 9
V.Procedures for Decision Making ………………………………………………… 10
A.Prohibited Inquiries and Considerations………………………………… 10
B.Consideration Limited to Directly Related Convictions and
Unresolved Arrests……………………………………………………………….. 10
C.Written Notice and Copy of Report Prior to Adverse Action….. 11
D.Opportunity to Respond ……………………………………………………….. 12
E.Conduct an Individualized Assessment…………………………………… 13
F.Delay Adverse Action to Reconsider………………………………………. 13
G.Written Notification of Adverse Action………………………………….. 13
VI.Retaliation …………………………………………………………………………………. 14
A.Protected Exercise of Right Under this Article………………………… 14
B.90 Day Presumption………………………………………………………………. 14
VII.Filing a Complaint with the HRC…………………………………………………... 15
A.Who may Report……………………………………………………………………. 15
B.HRC Initiated Investigations………………………………………………...... 15
C.Elements of a complaint…………………………………………………………. 15
D.Timeliness of a complaint……………………………………………………….. 16
E.Amending Complaint..…………………………………………………………….. 16
F.Withdrawing Complaint………………………………………………………….. 17
G.Confidentiality………………………………………………………………………… 17
VIII.HRC Notice of Alleged Violation and Response……………………………… 18
IX.Housing Provider Response………………………………………………………….. 19
A.Who may file…………………………………………………………………………… 19
Page | 2
B.Content…………………………………………………………………………………… 19
C.Timeliness………………………………………………………………………………. 19
D.Amendment of Response………………………………………………………… 19
E.Failure to Respond to a Complaint………………………………………….. 19
X.Enforcement………………………………………………………………………………… 20
A.Warning and Notice to Correct Technical Assistance……………… 20
1. First Violation and Violations prior to 8/13/2015………. 20
B.Administrative Penalty………………………………………………………….. 20
2. Second Violation………………………………………………………… 20
3. Subsequent Violations……………………………………………….. 20
4. Multiple Applicants Impacted by Same Violation……….. 20
5.Allocation of Penalties………………………………………………… 20
C.Mediation………………………………………………………………………………. 20
D.Investigations…………………………………………………………………………. 21
1.Length of Time of Investigation…………………………………… 21
2.Investigation Plan……………………………………………………….. 21
3.Witness Interviews……………………………………………………… 21
4.Document Review………………………………………………………. 21
5.Subpoena Power………………………………………………………. 21
6.Consultation with MOHCD……………………………………….… 22
7.Conclusion of Investigation…………………………………………. 22
E.Determination……………………………………………………………………….. 22
1.Director’s Action…………………………………………………………. 22
2.Notification…………………………………………………………………. 22
XI.Appeal…………………………………………………………………………………………. 23
XII.Severability…………………………………………………………………………………. 24
Page | 3
I.Introduction
After public hearings and considerations of testimony and documentary evidence, the
Board of Supervisors found that the health, safety, and well-being of San Francisco’s
communities depend on increasing access to employment and housing opportunities for
people with arrest or conviction records. In response, the Board of Supervisors
unanimously voted to pass the “Fair Chance Ordinance” in February of 2014.
The Fair Chance Ordinance provides people with prior arrest and conviction records the
opportunity to be considered for employment and housing on an individual basis,
thereby affording them with a fair chance to acquire employment and housing, to
effectively reintegrate into the community, and to provide for their families and
themselves.
The Commission is also aware of the disproportionate arrest and incarceration of
African Americans, Latinos, and Native Americans and the lifelong post-conviction
stigma that follows individuals and compromises their human rights and ability to
reintegrate into society. By reducing barriers, the Fair Chance Ordinance promotes
public safety and reintegration. In addition, the Ordinance redresses some of the human
rights concerns implicated by the over-incarceration of these communities.
The Fair Chance Ordinance was codified as San Francisco Police Code Article 49:
Procedures for Considering Arrests and Convictions and Related Information in
Employment and Housing Decisions (“Article” or “Article 49”).
Page | 4
II.Preemption and Scope of Authority
Article 49 instructs the Human Rights Commission (HRC), in consultation with the
Mayor’s Office of Housing and Community Development (MOHCD), to establish rules
and regulations that implement the housing provisions of the Article.
Article 49 authorizes the HRC, in consultation with the MOHCD, to take appropriate
steps to enforce the Article and coordinate enforcement, including the investigation of
any possible violations of the Article.
In developing these rules, the HRC is guided by its understanding of the importance of
fulfilling the goals of this Article and has given weight to considerations of equity and
practicality. The rules seek to provide clear direction to affordable housing providers
and housing applicants and residents regarding the requirements of this Article.
Nothing in these rules shall be interpreted or applied so as to create any requirements,
power or duty in conflict with federal or state law or with a requirement of any
government agency, including any agency of City government, implementing federal or
state law. The HRC is not authorized to enforce any provision of Article 49 upon
determination that its application in a particular context would conflict with federal or
state law or with a requirement of a government agency implementing federal or state
law.
Page | 5
III.DEFINITIONS
The definitions are derived directly from Article 49 of the San Francisco Police Code.
Adverse Housing Action in the context of housing shall mean to evict from, fail or refuse
to rent or lease real property to an individual, or fail or refuse to continue to rent or
lease real property to an individual, or fail or refuse to add a household member to an
existing lease, or to reduce any tenant subsidy. The “Adverse Action” must relate to real
property in the City.
Affordable Housing shall mean any residential building in the City that has received
funding from the City, connected in whole or in part to restricting rents, the funding
being provided either directly or indirectly through funding to another entity that owns,
master leases, or develops the building. Affordable Housing also includes “affordable
units” in the City as the term is defined in Article 4 of the Planning Code. Projects that
are financed using City-issued tax exempt bonds, but that receive no other funding from
the City or are not otherwise restricted by the City shall not constitute Affordable
Housing.
Arrest shall mean a record from any jurisdiction that does not result in a conviction and
includes information indicating that a person has been questioned apprehended taken
into custody or detained, or held for investigation, by a law enforcement, police, or
prosecutorial agency and/or charged with, indicated, or tried and acquitted for any
felony, misdemeanor or other criminal offense. “Arrest” is a term that is separate and
distinct from, and that does not include, “Unresolved Arrest.”
Background Check Report shall mean any criminal history report, including but not
limited to those produced by the California Department of Justice, the Federal Bureau of
Investigation, other law enforcement or police agencies, or courts, or by any consumer
reporting agency or business, employment screening agency or business, or tenant
screening agency or business.
Conviction shall mean a record from any jurisdiction that includes information indicating
that a person has been convicted of a felony or misdemeanor; provided that the
conviction is one for which the person has been placed on probation, fined, imprisoned,
or paroled. The definition of a conviction shall not include items listed in Section V.A. of
these Rules.
Conviction History shall mean information regarding one or more Convictions or
Unresolved Arrests, transmitted orally or in writing or by another means, and obtained
from any source, including but not limited to the individual to whom the information
pertains and a Background Check Report.
Page | 6
Directly-Related Conviction in the housing context shall mean that the conduct for
which a person was convicted or that is the subject of an Unresolved Arrest has a direct
and specific negative bearing on the safety of persons or property, given the nature of
the housing. In determining whether the conviction or Unresolved Arrest is directly
related to the housing, the Housing Provider shall consider whether the housing offers
the opportunity for the same or a similar offense to occur and whether circumstances
leading to the conduct for which the person was convicted will recur in the housing, and
whether supportive services that might reduce the likelihood of a recurrence of such
conduct are available on-site.
Evidence of Rehabilitation or Other Mitigating Factors may include but is not limited
to:
A person’s satisfactory compliance with all terms and conditions of parole and/or
probation (however, inability to pay fines, fees, and restitution due to indigence
shall not be considered noncompliance with terms and conditions of parole
and/or probation);
Employer recommendations, especially concerning a person’s post-conviction
employment, educational attainment, vocation, or vocational or professional
training since the conviction, including training received while incarcerated;
Completion of or active participation in rehabilitative treatment (e.g., alcohol or
drug treatment);
Letters of recommendation from community organizations, counselors or case
managers, teachers, community leaders, or parole/probation officers who have
observed the person since his or her conviction;
Age of the person at the time of the conviction.
Examples of other mitigating factors that are offered voluntarily by the person
may include but are not limited to explanation of the precedent coercive
conditions, intimate physical or emotional abuse, or untreated substance abuse
or mental illness that contributed to the conviction.
Fair Chance Ordinance or Fair Chance Act –The name commonly used to refer to Article
49 of the San Francisco Police Code: Procedures for Considering Arrests and Convictions
and Related Information in Employment and Housing Decisions.
Housing provider shall mean any entity that owns, master leases, or develops
Affordable Housing in San Francisco. “Housing Provider” also includes owners and
developers of below-market-rate housing in the City or “affordable units.”
Inquire shall mean any direct or indirect conduct intended to gather information from
or about an applicant, candidate, potential applicant or candidate, using any mode of
communication, including but not limited to application forms, interviews, and
background check reports.
Page | 7
Person shall mean any individual, person, firm, corporation, business or other
organization or group of persons however organized.
Unresolved Arrest shall mean an arrest that is undergoing an active pending criminal
investigation or trial that has not yet been resolved. An arrest has been resolved if the
arrestee was released and no accusatory pleading was filed charging him or her with an
offense, or if the charges have been dismissed or discharged by the district attorney or
the court.
Page | 8
IV.Procedures for the Advertisements, Applications, and Interviews
Nothing in the Ordinance affects additional appeals procedures or rights afforded to
tenants and housing applicants elsewhere. In addition, nothing in the Ordinance
mandates a conviction inquiry or background check. Affordable housing providers who
do not inquire about an applicant’s prior unresolved arrests or conviction record or who
do not perform background checks on applicants are in compliance with this Article.
Affordable housing providers who choose to inquire about an applicant’s unresolved
arrests or conviction history or who perform background checks must comply with the
following procedures.
A.Advertisements and Solicitations
1. No Blanket Exclusions
Housing providers may not produce or disseminate any advertisement
related to affordable housing that expresses, directly or indirectly, that
any person with an arrest or conviction record will not be considered for
the rental or lease of real property or may not apply for the rental or
lease of real property, except as required by local, state, or federal law.
2.Applicants with Prior Arrest and Conviction Records will be Considered
Housing providers are required to state in all solicitations or
advertisements for the rental or lease of affordable housing placed by the
housing provider, or on behalf of the housing provider, that the housing
provider will consider for tenancy qualified applicants with arrest or
conviction record in a manner consistent with the requirements of this
Article.
B.HRC Notice and Posting Requirements
The HRC is responsible for publishing and making available to affordable housing
providers a notice suitable for posting that informs applicants of their rights
under this Article. The HRC shall make this notice available to housing providers
in English, Spanish, Chinese, and Tagalog and all other languages spoken by more
than 5% of the San Francisco population.
1. Website
Housing providers must prominently post on their website the HRC notice
in all of the languages referenced above.
2. Frequently Visited Locations
Housing providers must prominently post the HRC notice in all the
languages referenced above at any location under their control that is
frequently visited by applicants or potential applicants for the rental or
lease of affordable housing in San Francisco.
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3. Languages Access
In addition to making the notice available in English, Spanish, Chinese,
and Tagalog, the HRC shall update the notice on December 1 of any year
in which there is a change in the languages spoken by more than 5% of
the San Francisco population.
C.Interviews and Applications: No Inquiry Prior to Determination of Qualification
Housing providers may not at any time ask an applicant in person, on an
application or by any other means to disclose any details about his or her or a
household member’s conviction history, until the housing provider has first
determined that:
1)The applicant is legally eligible to rent the housing unit, and
2)The applicant is qualified to rent the housing unit under the housing
provider’s criteria for assessing rental history and credit history, if such
assessments are used by the housing provider.
D.Obtain but not Review
For the sake of efficiency, a housing provider may obtain a conviction history
report at the same time as the housing provider obtains the rental history report
and credit history report for an applicant. However, a housing provider may not
in any way look at or review the conviction history report until after determining
that based on the rental history and credit history the applicant is qualified to
rent the housing unit. Housing providers must employ practices and safeguards
to ensure that conviction history information is not inadvertently viewed prior to
a determination of qualification for a housing unit. It is a violation of this
Ordinance if the records are viewed prior to a determination of qualification.
E. Notice Requirement
2.Notice to Applicant Prior to Conducting Criminal Background Inquiry
In addition to posting the notice prominently on the website and in
frequently visited locations, housing providers must individually provide
each housing applicant a copy of the HRC issued notice referenced above
in IV.B prior to any conviction history inquiry.
3.Language Access
If a housing applicant speaks Spanish, Chinese, Tagalog or any other
language spoken by more than 5% of the San Francisco population, the
housing provider must provide the applicant with the HRC notice in his or
her respective language.
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V.Procedures for Decision Making
A.Prohibited Inquiries and Considerations
Housing providers may not at any time or by any means inquire about, require
disclosure of, or if such information is received, base an adverse action in whole
or in part on any of the following:
1.An arrest not leading to a conviction, unless it is an “unresolved arrest” as
defined in Section III above;
2.Participation in or completion of a diversion or a deferral of judgment
program;
3.A conviction that has been judicially dismissed, expunged, voided,
invalidated, or otherwise rendered inoperative;
4.A conviction or any other determination or adjudication in the juvenile
justice system or information regarding a matter considered in or processed
through the juvenile justice system;
5.A conviction that is more than 7 years old, the date of conviction being the
date of sentencing;
6.Information pertaining to an offense other than a felony or misdemeanor,
such as an infraction.
Inquiring about or basing any adverse decision on any of the above 6 categories
is a violation of Article 49. To ensure that none of this prohibited information is
considered, affordable housing providers should explicitly exclude the above-
information from any inquiry into conviction history. For example, if a criminal
history questionnaire is required of an applicant, it should state that the above-
information should not be disclosed. In addition, commercial background check
companies should be informed that the above-information should not be
included in any report.
Any affordable housing provider who decides to conduct a commercial
background check should be aware that these reports can be inaccurate or
incomplete. Upon receiving notice that information contained in the report falls
into one of the prohibited 6 categories, the affordable housing provider should
not consider or rely upon that criminal history information to take an adverse
action.
B.Consideration Limited to Directly-Related Convictions and Unresolved Arrests
Affordable housing providers may only consider directly-related convictions
within the past 7 years or directly-related unresolved arrests for a housing
decision. A directly-related conviction or unresolved arrest means the following:
The conduct for which a person was convicted or that is the subject of an
unresolved arrest has a direct and specific negative bearing on the safety of
persons or property, given the nature of the housing.
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In determining whether the conviction or unresolved arrest is directly related to
the housing, the housing provider shall consider:
Whether the housing offers the opportunity for the same or a similar
offense to occur;
Whether circumstances leading to the conduct for which the person was
convicted will recur in the housing;
Whether supportive services that might reduce the likelihood of a
recurrence of such conduct are available on-site.
In addition to considering whether a conviction or an unresolved arrest is
directly-related as defined above, the housing provider shall also consider the
time that has elapsed since the conviction or unresolved arrest.
If a housing provider determines that a conviction or an unresolved arrest is not
directly-related or that reasonable times has elapsed, no further action is
required. If however, the housing provider intends to take adverse action based
on a directly-related conviction within the past 7 years or a directly-related
unresolved arrest, the housing provider must comply with the rules below.
C.Written Notice and Copy of Report Prior to Prospective Adverse Action
If a housing provider intends to take an adverse action based on directly-related
conviction with the past 7 years or a directly-related unresolved arrest, the
housing provider must take the following steps:
1.Notify the applicant in writing of the prospective adverse action;
2.Give the applicant a copy of any conviction history or unresolved
arrest;
3.Specifically indicate the item or items forming the basis for the
prospective adverse action;
4.Provide the applicant with a copy of language-appropriate HRC notice
described in Section IV.B which explains the applicant’s right under
this Article, including his or her right to respond, the manner in which
he or she may respond, and the evidence he or she may submit; and
5.Provide the applicant with the opportunity to respond and delay any
adverse action in order to reconsider in light of evidence submitted
by the applicant.
Examples of housing related adverse actions include, but are not limited to,
eviction, failing or refusing to rent or lease property to an individual, failing or
refusing to add a household member to an existing lease, or reducing any tenant
subsidy.
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D.Opportunity to Respond
Within 14 days of the date of the written notice described above in Section V.C.,
the applicant, or any person on behalf of the applicant, may give the housing
provider notice orally or in writing of evidence of any of the following:
1.Inaccuracies of the item or items of conviction history; examples of
inaccuracies include but are not limited to:
a.Mismatching of the subject of the report with another person;
b.Revealing restricted information:
c.Omitting information of how an arrest was resolved;
d.Repeating the same information giving the appearance of multiple
offenses;
e.Mischaracterizing the seriousness of the offense;
2.Evidence of rehabilitation; examples of evidence of rehabilitation include but
are not limited to:
a.A person’s satisfactory compliance with all terms and conditions of
parole and/or probation (however, inability to pay fines, fees, and
restitution due to indigence shall not be considered noncompliance
with terms and conditions of parole and/or probation);
b.Employer recommendations, especially concerning a person’s post-
conviction employment, educational attainment or vocation or
vocational or professional training since the conviction, including
training received while incarcerated;
c.Completion of or active participation in rehabilitative treatment (e.g.,
alcohol or drug treatment);
d.Letters of recommendation from community organizations,
counselors or case managers, teachers, community leaders, or
parole/probation officers who have observed the person since his or
her conviction;
e.Age of the person at the time of the conviction.
3.Evidence of other mitigating circumstances; examples of mitigating factors
that are offered voluntarily by the person may include but are not limited to:
a.Explanation of the precedent coercive conditions;
b.Intimate physical or emotional abuse;
c.Untreated substance abuse or mental illness that contributed to the
conviction.
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E.Conduct an Individualized Assessment
A housing provider may not deny an applicant based on his or her prior
conviction history without first conducting an individualized assessment. In
conducting an individualized assessment, the housing provider must consider
only directly-related convictions and directly-related unresolved arrests and the
time that has elapsed since the conviction or unresolved arrest. In addition to
considering the time that has elapsed, the housing provider shall also review and
consider any evidence of inaccuracy or evidence of rehabilitation or other
mitigating factors provided by the applicant on the applicant’s behalf.
The HRC shall not find a violation based on a housing provider’s decision that an
individual applicant’s conviction history or unresolved arrest is directly-related,
but may otherwise find a violation of this Article. For example, a violation may be
found if the housing provider failed to take the steps to conduct an
individualized assessment, including determining whether a conviction or
unresolved arrest is directly-related, considering the time elapsed, or reviewing
and considering evidence presented by the applicant.
F.Delay Adverse Action to Reconsider
A housing provider must delay any adverse action for a reasonable period after
receipt of information and, during that time, shall reconsider the prospective
adverse action in light of the information.
G.Written Notification of Adverse Action
Upon taking any adverse action based on an unresolved arrest or conviction
history of an applicant, the housing provider shall notify the applicant within a
reasonable time and in writing of the final adverse action.
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VI.Retaliation
Housing providers or any other person may not interfere with, restrain, or deny the
exercise of or the attempt to exercise any right protected under this Article. This
includes interrupting, terminating or failing or refusing to initiate or conduct a
transaction involving the rental or lease of residential real property, including falsely
representing that a residential unit is not available for rental or lease. This also includes
taking adverse action against a person or family member in retaliation for exercising
rights protected under the Article. These protections apply to any person who
mistakenly, but in good faith, alleges violation of this Article. Examples of what may
constitute adverse action are defined above in these Rules.
A.Protected Exercise of Right under this Article
The following activities include, but are not limited to, the protected exercise of
right under this Article:
1.The right to file a complaint;
2.The right to inform any person about a housing provider’s alleged
violation of the Article;
3.The right to cooperate with the HRC or other persons in the investigation
or prosecution of any alleged violations of the Article;
4.The right to oppose any policy, practice or act that is unlawful under this
Article;
5.The right to inform any person of his or her rights under this Article
B.90-Day Presumption
Taking adverse action against a person within 90 days of the exercise of one or
more of the rights described above shall create a rebuttable presumption that
such adverse action was taken in retaliation for the exercise of these rights.
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VII.Filing a Complaint with the HRC
A.Who May Report
An applicant or any other person may report to the HRC any suspected violation
of this Article.
B.HRC-Initiated Investigations
The HRC may, in its sole discretion, investigate possible violations of this Article
on its own initiative.
C.Elements of a Complaint
A complaint may be made in writing, or if made orally, shall be put in writing by
HRC staff. The complaint shall contain the following:
1.The complete name and contact information of the person making the
complaint, unless the person making the complaint wishes to remain
anonymous;
2.A plain and concise statement of facts, which provide the basis of the
complaint, including the specific date(s), action(s), practice(s) or incident(s)
alleged to violate this Article;
a.The signature of the person making the complaint verifying under
penalty of perjury that the response is true and complete to the best
of the signatory’s knowledge and belief. In cases in which the
complainant wishes to remain anonymous or in HRC initiated
complaints, the complaint shall be verified by an HRC staff;
3.Possible violations of the Article include, but are not limited to, the following
examples:
a.An advertisement for affordable housing that does not state that the
provider will consider qualified applicants with criminal histories;
b.An advertisement for affordable housing that expresses directly or
indirectly that a person with an arrest or conviction record will not be
considered;
c.An application for affordable housing that contains an inquiry about
prior arrest or conviction record;
d.A housing provider who inquires about an applicant’s conviction
background prior to determining eligibility for housing;
e.A housing provider who reviews an applicant’s conviction report prior
to determining eligibility for housing;
f.A housing provider who inquires about an applicant’s conviction
background prior to providing applicant the HRC notice informing
them of their rights under this Article;
g.A housing provider who does not post the HRC notice on its website;
h.A housing provider who does not post HRC notice in locations
frequented by tenants or housing applicants;
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i.A housing provider who does not provide the HRC notice in the
languages mandated by the ordinance;
j.A housing provider who inquires about or considers one of the six off-
limits categories, enumerated in section V.A. of these Rules and
Section 4906 of Article 49;
k.A housing provider who does not give an applicant a copy of the
conviction history report or an unresolved arrest prior to taking a
prospective adverse action;
l.A housing provider who does not specify which conviction or
unresolved arrest is the basis for the adverse action;
m.A housing provider who does not give an applicant notice of their
right to provide evidence of inaccuracies and evidence of
rehabilitation or mitigating circumstances;
n.A housing provider who does not offer the applicant 14 days to
provide evidence of inaccuracies and evidence of rehabilitation or
mitigating circumstances;
o.A housing provider who fails to conduct an individualized assessment.
The HRC may not find a violation based on a housing provider’s
decision that an applicant’s conviction within the past 7 years or
unresolved arrest is directly-related, but may find a violation of this
Article if the housing provider failed to take the steps to conduct the
individualized assessment, which requires determining whether a
conviction or unresolved arrest is directly-related, considering the
time elapsed, and reviewing and considering evidence presented by
the applicant;
p.A housing provider who does not delay the adverse action until they
have reconsidered the decision in light of evidence provided by the
applicant;
q.A housing provider who does not provide notice of a final adverse
action to the applicant;
r.A housing provider who retaliates against someone for exercising his
or her rights under this ordinance;
s.A housing provider who fails to maintain and retain records as
required by this Article.
D.Timeliness of a Complaint
A suspected violation of this Article may be reported within 60 days of the date
that the suspected violation occurred, or that the complainant became aware
that the action violating this ordinance occurred, whichever date occurred more
recently.
E.Amending a Complaint
The complaint may be amended any time prior to resolution. HRC shall serve all
amended complaints on the housing provider with instructions concerning which
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allegations of the amended complaint, if any, the housing provider shall answer,
and when the verified response is due. If the amendment occurs before the
housing provider has answered, the housing provider shall be served with and
shall respond to the amended complaint. The housing provider’s time for filing a
response shall start upon service of the amended complaint.
F.Withdrawing a Complaint
A complainant may withdraw a complaint any time prior to resolution. HRC shall
notify the housing provider in writing within 5 days after the complaint has been
withdrawn. A complaint may be withdrawn without prejudice, but nothing in
these Rules shall require the HRC to accept a new complaint alleging
substantially identical conduct if the complainant has engaged in repeated or
unwarranted withdrawal and resubmission of complaints. After a withdrawal,
the HRC may, in its sole discretion, initiate an investigation of a possible violation
of this article as authorized above in section VII.B.
G. Confidentiality
The HRC shall encourage reporting of violations by keeping confidential, to the
maximum extent permitted by applicable laws, the name and other identifying
information of the resident, applicant or other person reporting the violation,
unless such a person authorizes the HRC to disclose his or her name and
identifying information as necessary to enforce this Article or for other
appropriate purposes.
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VIII. HRC Notice of Alleged Violation
The HRC shall serve the housing provider with notice that a complaint of an alleged
violation has been filed against them and that they are required to respond.
In addition to including the elements of a complaint listed above in VII.C., the notice
shall:
Clearly state the date by which the response is due;
Inform the housing provider of their right to respond to the alleged
violation and describe the information the housing provider is
required to include in the response;
State that failure to respond to the complaint may result in a default decision;
Offer the housing provider technical assistance;
Inform the housing provider that retaliation against the complainant or
suspected complainant is prohibited by this Article;
Describe HRC’s enforcement powers and administrative penalties;
Inform the housing provider of his or her right to appeal the HRC Director’s
determination.
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IX. Housing Provider Response
A.Who May File
The housing provider or an authorized representative shall file a verified
response to the complaint or amended complaint in writing.
B.Content
A response shall contain the following:
1.The full name and title, where applicable of the housing provider;
2.The name, address, and telephone number of the housing provider’s
representative, if any;
3.A specific admission or denial of each allegation contained in the complaint.
If the housing provider does not have knowledge or information sufficient to
form a belief as to the truth of a particular allegation, the housing provider
shall so state and such statement shall operate as a denial of the allegations;
4.A statement of any matter constituting an explanation or affirmative
defense; and
5.The signature of the housing provider or authorized representative, verifying
under penalty of perjury that the response is true and complete to the best
of the signatory’s knowledge and belief;
C.Timeliness
The response shall be filed within 10 business days of service of the complaint.
D.Amendment of Response
The housing provider, at the discretion of the Commission staff, may amend its
response.
E.Failure to Respond to a Complaint
Any party who fails to file a response to a complaint or amended complaint may
be held to be in default.
F.Response Shared with Complainant
The HRC shall serve a copy of the response or amended response to the
complainant after redacting any confidential information.
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X. Enforcement
G.Warning, Notice to Correct, and Technical Assistance
1.First Violation and Violations Prior to August 13, 2015
For a first violation, or for any violation prior to August 13, 2015, the HRC
Director must issue a warning and notice to correct and offer the housing
provider technical assistance on how to comply with the requirements of
this Article.
H.Administrative Penalty
1. Second Violation
For a second violation, the HRC Director may impose an administrative
penalty of no more than $50.00 that the housing provider must pay for
each applicant whose rights were violated or continue to be violated.
2.Subsequent Violations
For subsequent violations, the HRC Director may increase the penalty to
no more than $100.00.
3.Multiple Applicants Impacted by Same Violation
If multiple applicants are impacted by the same procedural violation at
the same time (e.g. all applicants for a certain housing unit are asked for
their conviction history on the initial application) the violation shall be
treated as a single violation rather than multiple violations.
4.Allocation of Penalties
The penalties are payable to the City for each applicant whose rights
were, or continue to be, violated. Such funds shall be allocated to the
HRC and used to offset the costs of implementing and enforcing this
Article.
I.Mediation
Mediation refers to a process whereby the HRC staff acts as a neutral third-party to
encourage and facilitate the resolution of a dispute between two or more parties. It
is a voluntary, informal, and non-adversarial process with the objective of helping
the disputed parties reach a mutual agreement. In mediation, decision-making
authority rests with the parties. The role of the HRC as mediator includes, but is not
limited to, assisting the parties in identifying issues, fostering joint problem-solving,
and exploring resolution alternatives.
Mediation may be initiated at any time after allegations of a violation are presented
to the HRC. Either party may make a request to the HRC for mediation. Upon receipt
of a request for mediation, or on its own initiative where the HRC determines that
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mediation might be productive, the HRC shall ascertain if all parties agree to attempt
resolution through mediation. If all parties to the dispute or all parties concerned
with a specific issue in the dispute agree to mediation, the HRC shall appoint a staff
member to act as a neutral mediator and attempt to resolve the dispute through
mediation.
J.Investigations
The HRC, in consultation with the Mayor’s Office of Housing and Community
Development, is authorized to take appropriate steps to enforce this Article and
coordinate enforcement, including the investigation of any possible violations of this
Article.
1. Length of Time of Investigation
Staff shall endeavor to complete the investigation within 30 days of the
date of receipt of the housing provider’s response. If the scope of the
investigation and the availability of witnesses require a longer
investigation, the HRC shall notify the parties. Any party may request to
mediate upon the agreement of all parties.
2.Investigation Plan
Staff shall create a written investigation plan specifying the names of any
witnesses to be interviewed, documents to request, and/or sites to be
visited.
3.Witness Interviews
Staff shall create a mutually convenient schedule for interviewing
witnesses. Interviews are informal in nature. HRC staff may also obtain
information from witnesses by written interrogatories or other means of
contact.
4.Document Review
HRC staff may require any person or company to produce relevant
documents.
5.Subpoena Power
The HRC may subpoena any person or company to provide testimony or
documents relevant to the case who fails or refuses to voluntarily
cooperate with the investigation.
6.Consultation with MOHCD
HRC staff shall consult with the MOHCD at the outset of the investigation,
prior to the conclusion of the investigation, and at any other stage during
the investigation the HRC regards as necessary.
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7.Conclusion of Investigation
HRC staff shall submit the conclusion of the investigation to the Director
for action.
K.Determination
1. Director’s Action
After reviewing the complete investigation file, the Director of the HRC shall do
one of the following:
a. Issue a determination that a violation has occurred. The determination
shall consist of written findings, and where authorized by law, order any
appropriate relief; or
b. Return the file to the staff member with instructions for further
investigation and analysis; or
c. Decide that a determination of a violation is not in order and direct the
staff member to administratively close the complaint.
2. Notification
The HRC shall serve copies of the Director’s determination to all parties within 10
days of the Director’s action.
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XI. Appeal
Parties will have the right to appeal as provided in Article 49 of the Police Code. An
appeal process will be set forth in a future version of the Rules.
If there is no appeal of the Director’s determination of a violation, then that
determination shall constitute a failure to exhaust administrative remedies, which shall
serve as a complete defense to any petition or claim brought by the housing provider
against the City regarding the Director’s determination of a violation.
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XII. Severability
These rules shall be construed so as not to conflict with applicable local, state, or federal
laws, rules or regulations. In the event that a court or an agency of competent
jurisdiction holds that a local, state or federal law, rule or regulation invalidates any
clause, sentence, paragraph or section of these rules or the application thereof to any
person or circumstances, it is the intent of the Commission that the court or agency
sever such clause, sentence, paragraph or section so that the remainder of these rules
shall remain in effect.
8.4 City of Richmond Rules of
Procedure For Considering Arrests
and Convictions in Affordable
Housing Decisions
69
1
City of Richmond Rules of Procedure
For Considering Arrests and Convictions in
Affordable Housing Decisions
I. Introduction
After a public hearing, the City Council of the City of Richmond (hereinafter referred to as
the “City Council”) found that the health, safety, and well-being of Richmond citizens
depend on increasing access housing opportunities for people with arrest or conviction
records. In response, the City Council Member voted 6-1 to pass the “Fair Chance Access
to Affordable Housing Ordinance “in December of 2016.
The Fair Chance Access to Affordable Housing Ordinance (hereinafter referred to as the
“Fair Chance Ordinance”) provides people with prior arrest and conviction records the
opportunity to be considered for housing on an individual basis, thereby affording them
with a fair chance to acquire housing, to effectively reintegrate into the community, and
to provide for their families and themselves.
In considering the Fair Chance Ordinance, the City Council was made aware of the
disproportionate arrest and incarceration of African Americans, Latinos, and Native
Americans and the lifelong post-conviction stigma that follows individuals and
compromises their ability to reintegrate into society. By reducing barriers, the Fair
Chance Ordinance promotes public safety and reintegration.
The Fair Chance Ordinance was codified as Richmond Municipal Code Chapter
7.110.
2
II. Preemption and Scope of Authority
Richmond Municipal Code Section 7.110.070 (c) requires the City Manager of the City
of Richmond (hereinafter referred to as the “City Manager”) to establish rules and
regulations that implement the provisions of Chapter 7.110.
In developing these rules, the City Manager is guided by an understanding of the
importance of fulfilling the goals of the Fair Chance Ordinance and has given weight to
considerations of equity and practicality. These rules seek to provide clear direction to
affordable housing providers and housing applicants and residents regarding the
requirements of the Fair Chance Ordinance.
Nothing in these rules shall be interpreted or applied so as to create any requirements,
power or duty in conflict with federal or state law or with a requirement of any
government agency, including any agency of City government, implementing federal or
state law. The City of Richmond (herein referred to as the “City”) is not authorized to
enforce any provision of Fair Chance Ordinance upon determination that its application
in a particular context would conflict with federal or state law or with a requirement of
a government agency implementing federal or state law.
III. DEFINITIONS
The following definitions are derived directly from the definitions set forth in the Fair
Chance Ordinance (Section 7.110.040 of the Richmond Municipal Code).
Adverse Action in the context of housing shall mean to evict from, fail or refuse to rent
or lease real property to an individual, or fail or refuse to continue to rent or lease real
property to an individual, or fail or refuse to add a household member to an existing
lease, or to reduce any tenant subsidy. The “Adverse Action” must relate to real
property in the City of Richmond.
Affordable Housing shall mean any residential building in the City, State, or Federal
funding, tax credits, or other subsidies connected in whole or in part to developing,
rehabilitating, restricting rents, subsidizing ownership, or otherwise providing housing
for extremely low income, very low income, and moderate income households.
Appeal shall mean an applicant’s challenge to a housing provider’s adverse action filed
with the city of Richmond, within fourteen days of receipt of the notice of adverse
action.
Applicant shall refer to the person or persons applying for affordable housing located in
the City of Richmond.
Arrest shall mean a record from any jurisdiction that does not result in a conviction and
3
includes information indicating that a person has been questioned, apprehended, taken
into custody or detained, or held for investigation, by a law enforcement, police, or
prosecutorial agency and/or charged with, indicted, or tried and acquitted for any
felony, misdemeanor or other criminal offense.
Background Check Report shall mean any criminal history report, including but not
limited to those produced by the California Department of Justice, the Federal Bureau of
Investigation, other law enforcement or police agencies, or courts, or by any reporting
agency or tenant screening agency.
City Manager shall mean the City Manager of the City of Richmond or said City
Manager’s designee.
Complaint shall mean a complaint filed with the City of Richmond alleging a violation of
the ordinance. This includes challenges to adverse actions where the applicant has not
filed an appeal within 14 days of the adverse action.
Conviction shall mean a record from any jurisdiction that includes information indicating
that a person has been convicted of a felony or misdemeanor; provided that the
conviction is one for which the person has been placed on probation, fined, imprisoned,
or paroled.
Conviction History shall mean information regarding one or more Convictions,
transmitted orally or in writing or by another means, and obtained from any source,
including but not limited to the individual to whom the information pertains and a
Background Check Report.
Directly-Related Conviction in the housing context shall mean that the conduct for
which a person was convicted that has a direct and specific negative bearing on the
safety of persons or property, given the nature of the housing, and includes one or more
of the following: (1) any conviction where state or federal law prohibits the applicant
from being eligible for the public housing; (2) any conviction for a crime carried out in
the applicant’s home or on the premises where the applicant lived; or (3) any conviction
that leads to the applicant becoming a lifetime registered sex offender.
Evidence of Rehabilitation or Other Mitigating Factors may include but is not limited
to: (1) a person’s satisfactory compliance with all terms and conditions of parole
and/or probation (however, inability to pay fines, fees, and restitution due to
indigence shall not be considered noncompliance with terms and conditions of parole
and/or probation); (2) employer recommendations, especially concerning a person’s
post-conviction employment, educational attainment, vocation, or vocational or
professional training since the conviction, including training received while
incarcerated; (3) completion of or active participation in rehabilitative treatment (e.g.,
alcohol or drug treatment); (4) letters of recommendation from community
organizations, counselors or case managers, teachers, community leaders, or
4
parole/probation officers who have observed the person since his or her conviction;
(5) age of the person at the time of the conviction. Successful completion of parole,
mandatory supervision, or post release community supervision shall create a
presumption of rehabilitation.
Housing provider shall mean any entity that owns, master leases, or develops
Affordable Housing in the City. “Housing Provider” also includes any agent, such
as a property management company, that makes tenancy decisions on behalf of
the above described entities.
Inquire shall mean any direct or indirect conduct intended to gather information from
or about an applicant, candidate, potential applicant or candidate, or employee using
any mode of communication, including but not limited to application forms,
interviews, and background check report.
Person shall mean any individual, person, firm, corporation, business or other
organization or group of persons however organized.
IV. Procedures for the Advertisements, Applications, and Interviews
Nothing in the Fair Chance Ordinance affects additional appeals procedures or rights
afforded to tenants and housing applicants elsewhere. In addition, nothing in the Fair
Chance Ordinance mandates a conviction inquiry or background check. Affordable
housing providers who do not inquire about an applicant’s conviction record or who do
not perform background checks on applicants are in compliance with this Article.
Affordable housing providers who choose to inquire about an applicant’s conviction
history or who perform background checks must comply with the following procedures.
A. Advertisements and Solicitations
1. No Blanket Exclusions
Housing providers may not produce or disseminate any advertisement
related to affordable housing that expresses, directly or indirectly, that
any person with an arrest or conviction record will not be considered for
the rental or lease of real property or may not apply for the rental or
lease of real property, except as required by local, state, or federal law.
2. Applicants with Prior Arrest and Conviction Records will be Considered
Housing providers are required to state in all solicitations or
advertisements for the rental or lease of affordable housing placed by the
housing provider, or on behalf of the housing provider, that the housing
provider will consider for tenancy qualified applicants with arrest or
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conviction records in a manner consistent with the requirements of this
Fair Chance Ordinance.
B. City Manager Notice and Posting Requirements
The City Manager is responsible for publishing and making available to affordable
housing providers a notice suitable for posting that informs applicants of their
rights under the Fair Chance Ordinance. The City Manager shall make this notice
(“the notice”)available to housing providers in English, Spanish, and all other
languages spoken by more than five percent (5%) of the City of Richmond
population.
1. Website
Housing providers must prominently post on their website the notice in all
of the languages referenced above.
2. Frequently Visited Locations
Housing providers must prominently post the notice in all of the
languages referenced above at any location under their control that is
frequently visited by applicants or potential applicants for the rental or
lease of affordable housing in the City of Richmond. This includes, but
is not limited to a housing provider’s lobby and rental office, the
Richmond Housing Authority and the Housing Authority of the County
of Contra Costa.
3. Language Access
In addition to making the notice available in English and Spanish, the City
Manager shall update the notice on December 1 of any year in which there is
a change in the languages spoken by more than five percent (5%) of the City
of Richmond population.
C. Notice Requirement
1. Notice to Applicant Prior to Conducting Criminal Background Inquiry
In addition to posting the notice referenced in section IV. B.) prominently on
their websites and in frequently visited locations, housing providers must
individually provide each housing applicant a copy of the City Manager issued
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notice prior to any inquiry regarding an applicant or household member’s
criminal history and a copy of the housing provider’s admissions policy.
2. Language Access
If a housing applicant speaks Spanish or any other language spoken by more
than five percent (5%) of the population of the City of Richmond, the housing
provider must provide the applicant with the City Manager notice in his or her
respective language.
V. Procedures for Decision Making
A. No Inquiry Prior to Determination of Qualification
The housing provider shall not require applicants, and individuals applying to be added
to an existing lease, to disclose, and shall not inquire into, conviction history until the
housing provider has first:
1. Determined that the applicant is qualified to rent the housing unit under all
of the housing provider's criteria for assessing applicants except for criteria
related to potential past criminal convictions; and
2. Provided to the applicant a conditional lease agreement that commits the
unit to the applicant as long as the applicant passes the conviction history
review.
B. Obtain but not Review
For the sake of efficiency, a housing provider may obtain a conviction history report at
the same time the housing provider obtains the rental history report and credit history
report for an applicant. However, a housing provider may not in any way look at or
review the conviction history report until after determining that based on the rental
history and credit history the applicant is qualified to rent the housing unit. Housing
providers must employ practices and safeguards to ensure that conviction history
information is not inadvertently viewed prior to a determination of qualification for a
housing unit. It is a violation of the Fair Chance Ordinance if the records are viewed prior
to a determination of qualification.
C. Consent to Obtain Criminal History
If and when the housing provider requests written consent from the applicant to obtain a
background check record of conviction history, the housing provider must also request
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consent to share the conviction history record with the applicant and with the City of
Richmond (for the purposes of an appeal only), and must offer the applicant an
opportunity to provide evidence of rehabilitation, inaccuracies, or other mitigating factors
related to convictions within the previous two years.
D. Prohibited Inquiries and Considerations
1. Housing providers may not at any time or by any means inquire about, require
disclosure of, or if such information is received, base an adverse action in whole or in
part on any of the following:
(a) an arrest not leading to a conviction,
(b) participation in or completion of a diversion or a deferral of judgment program;
(c) a conviction that has been judicially dismissed, expunged, voided,
invalidated, or otherwise rendered inoperative, by way of example but
not limitation, under California Penal Code Section 1203.1 or California
Penal Code Section 1203.4.
(d) a conviction or any other determination or adjudication in the juvenile
justice system or information regarding a matter considered in or
processed through the juvenile justice system;
(e) a conviction that is more than 2 years old, the date of conviction being
the date of sentencing; or
(f) information pertaining to an offense other than a felony or
misdemeanor, such as an infraction.
Inquiring about or basing any adverse decision on any of the above 6 categories
is a violation of the Fair Chance Ordinance. To ensure that none of this
prohibited information is considered, affordable housing providers should
explicitly exclude the above- information from any inquiry into conviction
history. For example, if a criminal history questionnaire is required of an
applicant, it should state that the above information should not be disclosed. In
addition, commercial background check companies should be informed that the
above information should not be included in any report.
Any affordable housing provider who decides to conduct a commercial
background check should be aware that these reports can be inaccurate or
incomplete. Upon receiving notice that information contained in the report falls
into one of the prohibited 6 categories, the affordable housing provider should
not consider or rely upon that criminal history information to take an adverse
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action.
E. Consideration Limited to Directly-Related Convictions
1. Affordable housing providers may only consider directly-related convictions within the
past 2 years for a housing decision.
2. In determining whether a criminal conviction is directly related, a housing provider
should consider the nature and severity of the crime and the amount of time that has
passed since the criminal conduct occurred as provided in criminal history information,
and additional relevant information as provided in criminal history information.
3. If a housing provider determines that a conviction is not directly-related or that
reasonable time has elapsed, no further action is required. If however, the housing
provider intends to take adverse action based on a directly-related conviction within
the past 2 years, the housing provider must comply with the rules set forth below.
F. Conduct an Individualized Assessment
1. In reviewing conviction history and making a decision related to affordable housing
based on conviction history, a housing provider shall conduct an individualized
assessment, considering only convictions that warrant denial based on state and
federal law, and considering the time that has elapsed since the conviction, whether
it is a directly-related conviction, and any evidence of inaccuracy or evidence of
rehabilitation or other mitigating factors.
2. Inaccuracies of the item or items of conviction history. Examples of inaccuracies
include but are not limited to:
(a) Mismatching of the subject of the report with another person;
(b) Revealing restricted information;
(c) Omitting information of how an arrest was resolved;
(d) Repeating the same information giving the appearance of multiple offenses; or
(e) Mischaracterizing the seriousness of the offense;
3. Evidence of other mitigating circumstances. Examples of mitigating factors that are
offered voluntarily by the person may include but are not limited to:
(a) Explanation of the precedent coercive conditions;
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(b) Intimate physical or emotional abuse; or
(c) Untreated substance abuse or a mental health disability that contributed to the
conviction.
G. Written Notice and Copy of Report Prior to Prospective Adverse Action
1. If a housing provider intends to take an adverse action based on a directly-related
conviction with the past 2 years, the housing provider must take the following steps:
2. Notify the applicant of the prospective adverse action, providing in written form the
following:
(a) The type of housing sought;
(b) A copy of the background check;
(c) For each item of criminal history relied upon, why the housing provider believes
it has a direct and specific negative bearing on the landlord's ability to fulfill his or
her duty to protect the public and other tenants from foreseeable harm;
(d) What bearing, if any, the time that has elapsed since the applicant's or household
member's last offense has on the housing provider's decision;
(e) What evidence the housing provider has received from the applicant or
household member that shows rehabilitation or mitigation;
(f) The name and telephone number of the city staff member who the applicant may
contact if he or she believes the housing provider has violated this Chapter.
H. Opportunity to Respond
Within fourteen (14) calendar days of receiving the notice and background check
report, the applicant can file an appeal with the city of Richmond to challenge the
adverse action. During this 14 day period, the housing provider shall hold the unit
open. If the applicant does not file an appeal within 14 days, the housing provider can
carry out the adverse action.
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I. Delay Adverse Action
The housing provider shall delay any adverse action and shall hold the unit open
during the time of the appeals process.
VI. Appeal Process
A. Filing of Appeal
1. An applicant can file an appeal of an adverse action no more than fourteen days after
receipt of the notice of such action. The appeal must be filed with the City of
Richmond.
2. An appeal may be made in writing, or if made orally, shall be put in writing by a City
Manager staff person. Appellants are encouraged to utilize the City of Richmond Fair
Chance Appeal/Complaint form. City staff shall take the appropriate steps necessary
to ensure full access to the appeal process for persons with disabilities and people with
limited English proficiency. City staff will also provide the appellant with the contract
information for Bay Area Legal Aid and the website address: lawhelpca.org. The
appeal shall contain the following information:
(a) The complete name and contact information of the person filing the appeal.
(b) A plain and concise statement of facts, which provide the basis of the appeal,
including:
(i) The specific date(s), action(s), practice(s) or incident(s) alleged to violate
the Fair Chance Ordinance;
(ii) The signature of the person making the appeal verifying under penalty of
perjury that the response is true and complete to the best of the
signatory’s knowledge and belief.
B. Notice of Appeal
City staff shall notify the housing provider that an appeal has been filed and that they
must hold the unit until the appeal process has been completed. This notification should
be done as soon as possible but no more than three days after receipt of the complaint.
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C. Setting Appeal Hearing
The appeal hearing shall occur no later than seven days from receipt of the appeal. Notice
of the appeal hearing shall be sent to the parties by first class mail as soon as possible, but
no later than three days prior to the hearing.
D. Hearing Officer
The appeal shall be heard by a hearing officer appointed by the City Manager to hear
administrative appeals. The hearing officer may be a City employee, but in that event, the
hearing officer shall not have had any responsibility for the investigation, prosecution or
enforcement of the Fair Chance Ordinance and shall not have had any personal
involvement in the appeal to be heard within the past twelve months.
E. Delay for Good Cause
The hearing officer may delay the hearing no longer than (7) seven days for good cause
including: giving either party time in which to retain counsel, as an accommodation for a
person with disabilities, or an unavoidable conflict which seriously affects the health,
safety or welfare of the party.
F. Hearing
Both parties shall have the right to have an advocate of their choosing to represent them
at the hearing and may present any relevant witnesses and evidence. Evidence will be
considered without regard to the admissibility under the Rules of Evidence applicable to a
judicial proceeding. Both parties shall be allowed to examine the other party’s evidence
and to rebut and cross-examine witnesses. Both parties shall also have the opportunity to
request a translator and to request any reasonable accommodation needed to participate
in the hearing process. The hearing shall be audio recorded. The audio recording shall be
made available to the complainant and housing provider at no cost.
G. Contents of Hearing Officer’s Decision
The hearing officer shall issue a written decision containing findings of fact and a
determination of the issues presented. The hearing officer may affirm, modify or reverse
the notice of adverse action. If it is shown by a preponderance of all the evidence that the
housing provider has violated the Fair Chance Ordinance, the hearing office shall also
specify the appropriate penalties and relief that shall be imposed.
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H. Timing and Service of Hearing Officer’s Decision
The hearing officer shall issue a decision, no later than three days from the date of the
hearing. Upon issuance of the hearing officer’s decision, the City shall serve a copy on the
parties by first class mail to the address provided by the appellant in the written notice of
appeal.
I. Finality of Hearing Officer’s Decision
The decision of the hearing officer on an appeal shall constitute the final administrative
decision of the City and shall not be appealable to the City Council or any committee or
commission of the City.
J. Failure to Obey Order
If, after any order of a hearing officer made pursuant to this Rule has become final, the
person to whom such order was directed shall fail, neglect or refuse to obey such order,
the City is authorized and directed to take whatever legal action is deemed necessary to
remedy the failure to obey the order.
K. Failure to File Appeal
An applicant is not required to exhaust administrative remedies in order to bring a civil
action against the housing provider for failure to comply with the Fair Chance ordinance.
VII. Filing a Complaint with the City of Richmond
A. Who May Report
An applicant or any other person may report to the City Manager any suspected violation
of this Fair Chance Ordinance.
B. City Manager-Initiated Investigations and Complaints
The City Manager may, in the City Manager’s sole discretion, investigate possible
violations of the Fair Chance Ordinance on the City Manager’s own initiative and shall
13
adjudicate them pursuant to the complaint process. City manager initiated complaints
shall not be subject to the time limitation laid out in section (V)(C).
C. Timing of Complaint
A suspected violation of the Fair Chance Ordinance may be reported within one hundred
and twenty days (120 days of the date that the suspected violation occurred, or that the
complainant became aware that the action violating this ordinance occurred.)
D. Elements of a Complaint
A complaint may be made in writing, or if made orally, shall be put in writing by
a City Manager staff person. Applicants are encouraged to utilize the City of Richmond
Fair Chance Complaint form. City staff shall take the appropriate steps necessary to
ensure full access to the complaint process for persons with disabilities and people with
limited English proficiency. City staff will also provide the appellant with the contract
information for Bay Area Legal Aid and the website address: lawhelpca.org. The
complaint shall contain the following:
1. The complete name and contact information of the person making the
complaint, unless the person making the complaint wishes to remain
anonymous;
2. A plain and concise statement of facts, which provide the basis of the
complaint, including
3. The specific date(s), action(s), practice(s) or incident(s) alleged to violate the
Fair Chance Ordinance;
4. The signature of the person making the complaint verifying under penalty of
perjury that the response is true and complete to the best of the signatory’s
knowledge and belief.
In cases in which the complainant wishes to remain anonymous or in City
Manager initiated complaints, a verification of the complaint by a City
Manager staff person;
5. Possible violations of the Fair Chance Ordinance include, but are not limited to
the following examples:
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(a) An advertisement for affordable housing that does not state that the provider will
consider qualified applicants with criminal histories;
(b) An advertisement for affordable housing that expresses directly or indirectly that a
person with an arrest or conviction record will not be considered;
(c) An application for affordable housing that contains an inquiry about a prior arrest or
conviction record;
(d) A housing provider who inquires about an applicant’s conviction background prior to
determining eligibility for housing;
(e) A housing provider who reviews an applicant’s conviction report prior
to determining eligibility for housing;
(f) A housing provider who inquires about an applicant’s conviction background prior to
providing applicant the City Manager notice informing them of their rights under the
Fair Chance Ordinance;
(g) A housing provider who does not post the City Manager notice on its website;
(h) A housing provider who does not post the City Manager notice in locations frequented
by tenants or housing applicants;
(i) A housing provider who does not provide the City Manager notice in the languages
mandated by these rules;
(j) A housing provider who inquires about or considers one of the six off- limits
categories, enumerated in Section V.A. of these Rules;
(k) A housing provider who does not give an applicant a copy of the conviction history
report prior to taking a prospective adverse action;
(l) A housing provider who does not specify which conviction is the basis for the adverse
action;
(m) A housing provider who does not give an applicant notice of their right to provide
evidence of inaccuracies and evidence of rehabilitation or mitigating circumstances;
(n) A housing provider who does not offer the applicant 14 days to provide evidence of
inaccuracies and evidence of rehabilitation or mitigating circumstances
(o) A housing provider who fails to conduct an individualized assessment.
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(p) The City may not find a violation based on a housing provider’s decision that an
applicant’s conviction within the past 2 years is directly-related, but may find a
violation of the Fair Chance Ordinance if the housing provider failed to take the steps
to conduct the individualized assessment, which requires determining whether a
conviction is directly-related, considering the time elapsed, and reviewing and
considering evidence presented by the applicant;
(q) A housing provider who does not delay the adverse action until they have
reconsidered the decision in light of evidence provided by the applicant;
(r) A housing provider who does not provide notice of a final adverse action to the
applicant;
(s) A housing provider who retaliates against someone for exercising his or her rights
under this ordinance;
(t) A housing provider who fails to maintain and retain records as required by the Fair
Chance Ordinance.
E. Setting of Complaint Hearing
The appeal hearing shall occur no later than thirty days from the date of the complaint.
Notice of the complaint hearing shall be sent to the parties by first class mail as soon as
possible, but no later than seven days prior to the hearing.
F. Hearing Officer
The complaint hearing shall be heard by a hearing officer appointed by the City Manager
to hear administrative appeals. The hearing officer may be a City employee, but in that
event, the hearing officer shall not have had any responsibility for the investigation,
prosecution or enforcement of the Fair Chance Ordinance and shall not have had any
personal involvement in the complaint to be heard within the past twelve months.
G. Delay for Good Cause
The hearing officer may delay the hearing no longer than (7) seven days for good cause
including: giving either party time in which to retain counsel, as an accommodation for a
person with disabilities, or an unavoidable conflict which seriously affects the health,
safety or welfare of the party.
H. Hearing
Both parties shall have the right to have an advocate of their choosing to represent them
16
at the hearing and may present any relevant witnesses and evidence. Evidence will be
considered without regard to the admissibility under the Rules of Evidence applicable to a
judicial proceeding. Both parties shall be allowed to examine the other party’s evidence
and to rebut and cross-examine witnesses. Both parties shall also have the opportunity to
request a translator and to request any reasonable accommodation needed to participate
in the hearing process. The hearing shall be audio recorded. The audio recording shall be
made available to the complainant and housing provider at no cost.
I. Contents of Hearing Officer’s Decision
The hearing officer shall issue a written decision containing findings of fact and a
determination of the issues presented. If it is shown by a preponderance of all the
evidence that the housing provider has violated the Fair Chance Ordinance, the hearing
office shall also specify the appropriate penalties and relief that shall be imposed.
J. Timing and Service of Hearing Officer’s Decision
The hearing officer shall issue a decision, no later than fifteen days from the date of the
hearing. Upon issuance of the hearing officer’s decision, the City shall serve a copy on the
parties by first class mail within five days.
K. Finality of Hearing Officer’s Decision
The decision of the hearing officer on complaint shall constitute the final administrative
decision of the City and shall not be appealable to the City Council or any committee or
commission of the City.
L. Failure to Obey Order
If, after any order of a hearing officer made pursuant to this Rule has become final, the
person to whom such order was directed shall fail, neglect or refuse to obey such order,
the City is authorized and directed to take whatever legal action is deemed necessary to
remedy the failure to obey the order.
M. Failure to File a Complaint
An applicant is not required to exhaust administrative remedies in order to bring a civil
action against the housing provider for failure to comply with the Fair Chance Ordinance.
N. Confidentiality
The City Manager shall encourage reporting of violations by keeping confidential, to the
maximum extent permitted by applicable laws, the name and other identifying
information of the applicant or other person reporting the violation, unless such a person
authorizes the City Manager to disclose his or her name and identifying information as
17
necessary to enforce the Fair Chance Ordinance or for other appropriate purposes.
VIII. Retaliation
A. Rehabilitation Prohibited
Neither housing providers nor any other person may interfere with, restrain, or deny the
exercise of, or the attempt to exercise, any right protected under the Fair Chance
Ordinance. This includes interrupting, terminating or failing or refusing to initiate or
conduct a transaction involving the rental or lease of residential real property, including
falsely representing that a residential unit is not available for rental or lease. This also
includes taking adverse action against a person or family member in retaliation for
exercising rights protected under the Fair Chance Ordinance. These protections apply to
any person who mistakenly, but in good faith, alleges violation of the Fair Chance
Ordinance. Examples of what may constitute adverse action are defined above.
B. Protected Exercise of Right under this Article
The following activities include, but are not limited to, the protected exercise of rights
under the Fair Chance Ordinance: (1) the right to file a complaint; (2) the right to inform
any person about a housing provider’s alleged violation of the Article; (3) the right to
cooperate with the City Manager or other persons in the investigation or prosecution of
any alleged violations of the Fair Chance Ordinance; (4) the right to oppose any policy,
practice or act that is unlawful under the Fair Chance Ordinance; and (5) the right to
inform any person of his or her rights under the Fair Chance Ordinance.
C. 90-Day Presumption
Taking adverse action against a person within 90 days of the exercise of one or more of
the rights described above shall create a rebuttable presumption that such adverse
action was taken in retaliation for the exercise of the rights set forth above.
IX. Enforcement
Warning, Notice to Correct, and Technical Assistance
A. First Violation
For a first violation, the City Manager must issue a warning and notice to
correct and offer the housing provider technical assistance on how to
comply with the requirements of these Rules.
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B. Second Violation
For a second violation, the City Manager may impose an administrative
penalty of no more than $250.00 that the housing provider must pay for
each applicant whose rights were violated or continue to be violated.
C. Third Violation
For a third violation, the City Manager may impose an administrative
penalty of no more than $500.00 that the housing provider must pay for
each applicant whose rights were violated or continue to be violated.
Subsequent Violations
For subsequent violations, the City Manager may increase the penalty up
to $1000.00.
D. Multiple Applicants Impacted by Same Violation
If multiple applicants are impacted by the same procedural violation at
the same time (e.g. all applicants for a certain housing unit are asked for
their conviction history on the initial application) the violation shall be
treated as a single violation rather than multiple violations.
E. Allocation of Penalties
The penalties are payable to the City for each applicant whose rights
were, or continue to be, violated.
X. Civil Action
A. Any person, including the City of Richmond, may enforce the provisions of this ordinance by
means of a civil action.
B. Injunction. Any person or entity that commits an act, proposes to commit an act, or engages
in any pattern and practice which violates this ordinance may be enjoined by any court of
competent jurisdiction. An action for injunction under this subsection may be brought by any
aggrieved person, by the City Attorney, or by any person or entity who will fairly and
adequately represents the interest of the protected class.
C. Damages. Any person or entity who violates or aids or incites another person to violate the
provisions of this ordinance is liable for the general and special damages suffered by any
aggrieved party or for statutory damages pursuant to section (include cite), whichever is
greater, and shall be liable for such attorneys’ fees and costs as may be determined by the
court in addition thereto.
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D. Nonexclusive Remedies and Penalties. The remedies provided in this Chapter are not
exclusive, and nothing in this Chapter shall preclude any person from seeking any other
remedies, penalties or procedures provided by law.
E. A complaint to City of Richmond for a violation of this ordinance is not a prerequisite to the
filing of a civil action or to seeking injunctive relief pursuant to this section. The pendency of a
complaint will not bar any civil action, but a final judgment in any civil action involving the
same parties and claims shall bar any further proceedings by the City of Richmond.
F. If either party retains a private attorney to pursue litigation pursuant to this provision, the
party shall provide notice to the City and the Appeal Hearing Officer within ten (10) calendar
days of filing court action against the housing provider, and inform the City and the Appeal
Hearing Officer of the outcome of the court action within ten (10) calendar days of any final
judgment.
XI. Severability
These rules shall be construed so as not to conflict with applicable local, state, or federal laws,
rules or regulations. In the event that a court or an agency of competent jurisdiction holds that a
local, state or federal law, rule or regulation invalidates any clause, sentence, paragraph or
section of these rules or the application thereof to any person or circumstances, it is the intent
of the Commission that the court or agency sever such clause, sentence, paragraph or section so
that the remainder of these rules shall remain in effect.
8.5 Cook County Just Housing
Amendment Interpretive Rules
89
PART 700 JUST HOUSING AMENDMENT INTERPRETIVE RULES
Section 700.100 Prohibition of Discrimination
Article II of the Cook County Human Rights Ordinance (“Ordinance”) prohibits unlawful discrimination, as
defined in §42-31, against a person because of any of the following: race, color, sex, age, religion, disability, na-
tional origin, ancestry, sexual orientation, marital status, parental status, military discharge, source of income,
gender identity or housing status.
Additionally, any written or unwritten housing policy or practice that discriminates against applicants based on
their criminal history, as defined in § 42-38(a) of the Ordinance, is a violation of the Ordinance. Any written
or unwritten housing policy or practice which discriminates against applicants based on their convictions, as
defined in § 42-38(a) of the Ordinance, prior to the completion of an individualized assessment violates the
Ordinance.
Nothing in this section shall be interpreted as prohibiting a housing provider from denying housing to an appli-
cant based on their criminal conviction history when required by federal or state law.
SUBPART 710 AUTHORITY AND APPLICABILITY
Section 710.100 Authority
These rules are adopted in accordance with the authority vested in the Cook County Commission on Human
Rights (“Commission”), pursuant to § 42-34(e)(5) and §42-38(c)(5)(c) of the Ordinance, to adopt rules and regu-
lations necessary to implement the Commission’s powers.
Section 710.110 Applicability
These rules shall go into effect on the effective date of the Just Housing Amendment (No. 19-2394) to the
Ordinance and shall only apply to claims that arise out of actions that occur on or after the effective date of the
amendments.
SUBPART 720 DEFINITIONS
Section 720.100 Business Day
“Business Day” means any day except any Saturday, Sunday, or any day which is a federal or State of Illinois
legal holiday.
Section 720.110 Criminal Background Check
“Criminal background check,” as referenced in § 42-38(e)(2)(a), includes any report containing information
about an individual’s criminal background, including but not limited to those produced by federal, state, and
local law enforcement agencies, federal and state courts or consumer reporting agencies.
Section 720.120 Demonstrable Risk
“Demonstrable risk,” as referenced in § 42-38(c)(5)(c), refers to the likelihood of harm to other residents’
personal safety and/or likelihood of serious damage to property. When the applicant is a person with a disabil-
ity, “demonstrable risk” must be based on (a) objective evidence and (b) a conclusion that any purported risk
cannot be reduced or eliminated by a reasonable accommodation.
Section 720.130 Individualized Assessment
“Individualized Assessment,” as referenced in § 42-38(a) means a process by which a person considers all
factors relevant to an individual’s conviction history from the previous three (3) years. An individualized assess-
ment is not required for convictions that are more than three (3) years old. Factors that may be considered in
performing the Individualized Assessment include, but are not limited to:
90
(1) The nature and severity of the criminal offense and how recently it occurred;
(2) The nature of the sentencing;
(3) The number of the applicant’s criminal convictions;
(4) The length of time that has passed since the applicant’s most recent conviction;
(5) The age of the individual at the time the criminal offense occurred;
(6) Evidence of rehabilitation;
(7) The individual history as a tenant before and/or after the conviction;
(8) Whether the criminal conviction(s) was related to or a product of the applicant’s disability; and
(9) If the applicant is a person with a disability, whether any reasonable accommodation could be provided
to ameliorate any purported demonstrable risk.
Section 720.140 Relevance
“Relevance,” as referenced in § 42-38(e)(2), refers to the degree to which an individual’s conviction history
makes it likely that the applicant poses a demonstrable risk to the personal safety and/or property of others.
Section 720.150 Tenant Selection Criteria
“Tenant selection criteria,” as referenced in § 42-38(e)(2)(a), means the criteria, standards and/or policies used
to evaluate whether an applicant qualifies for admission to occupancy or continued residency. The criteria,
standards and/or policies concerning the applicant’s conviction history from the previous three (3) years shall
apply only after a housing applicant has been pre-qualified. The criteria must explain how applicants’ criminal
conviction history from the previous three (3) years will be evaluated to determine whether their conviction
history poses a demonstrable risk to personal safety or property.
SUBPART 730 TWO STEP TENANT SCREENING PROCESS
Section 730.100 Notice of Tenant Selection Criteria and Screening Process
Before accepting an application fee, a housing provider must disclose to the applicant the following informa-
tion:
(A) The tenant selection criteria, which describes how an applicant will be evaluated to determine whether
to rent or lease to the applicant;
(B) The applicant’s right to provide evidence demonstrating inaccuracies within the applicant’s conviction
history, or evidence of rehabilitation and other mitigating factors as described in §740.100(B) below;
and
(C) A copy of Part 700 of the Commission’s procedural rules or a link to the Commission’s website, with the
address and phone number of the Commission.
Section 730.110 Step One: Pre-Qualification
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No person shall inquire about, consider or require disclosure of criminal conviction history before the prequal-
ification process is complete, and the housing provider has determined the applicant has satisfied all other
application criteria for housing or continued occupancy.
Section 730.120 Notice of Pre-Qualification
Once a housing provider determines an applicant has satisfied the pre-qualification standards for housing, the
housing provider shall notify the applicant that the first step of the screening procedure has been satisfied and
that a criminal background check will be performed or solicited.
Section 730.130 Step Two: Criminal Background Check
After a housing provider sends the notice of pre-qualification required by Section 730.120, a housing provider
may conduct a criminal background check on the prequalified applicant. However, the housing provider may
not consider any information related to the criminal convictions that are more than three (3) years old or any
covered criminal history as defined in Section 42-38(a) of the Ordinance.
SUBPART 740 CONVICTION DISPUTE PROCEDURES
Section 740.100 Notice
Within five days of obtaining a background check on an applicant, the housing provider must deliver a copy of
the background check to the applicant. The housing provider must complete delivery in one of the following
ways: (1) in person, (2) by certified mail, or (3) by electronic communication (e.g., text, email).
Section 740.110 Opportunity to Dispute the Accuracy and Relevance of Convictions
Once a housing provider complies with the requirements of Section 740.100, the applicant shall have an addi-
tional five (5) business days to produce evidence that disputes the accuracy or relevance of information related
to any criminal convictions from the last three (3) years.
Section 740.120 Dispute Procedures and Other Applicants
Nothing in these rules shall prevent a housing provider from approving another pre-qualified individual’s hous-
ing application during the pendency of the criminal conviction dispute process.
SUBPART 750 REVIEW PROCESS
750.100 General
After giving an applicant the opportunity to dispute the accuracy and/or relevance of a conviction, a housing
provider shall conduct an individualized assessment, in accordance with Sections 720.120 through 720.140. of
these rules, to determine whether the individual poses a demonstrable risk. If the applicant poses a demon-
strable risk, the housing provider may deny the individual housing.
Section 750.110 Exceptions
A housing provider must perform an individualized assessment prior to denying an individual housing based on
criminal conviction history, except in the following circumstances:
(A) A current sex offender registration requirement pursuant to the Sex Offender Registration Act (or simi-
lar law in another jurisdiction); and/or
(B) A current child sex offender residency restriction.
Section 750.120 Prohibited Factors
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Any person conducting an individualized assessment, as defined in Section 720.130 of these rules, is prohibited
from basing any adverse housing decision, in whole or in part, upon a conviction that occurred more than (3)
years from the date of the housing application.
SUBPART 760 NOTICE OF FINAL DECISION
Section 760.100 Decision Deadline
A housing provider must either approve or deny an individual’s housing application within three (3) business
days of receipt of information from the applicant disputing or rebutting the information contained in the crimi-
nal background check.
Section 760.110 Written Notice of Denial
(A) Any denial of admission or continued occupancy based on a conviction must be in writing and must
provide the applicant an explanation of why denial based on criminal conviction is necessary to protect
against a demonstrable risk of harm to personal safety and/or property.
(B) The written denial must also contain a statement informing the housing applicant of their right to file a
complaint with the Commission.
Section 760.120 Confidentiality
The housing provider must limit the use and distribution of information obtained in performing the applicant’s
criminal background check. The housing provider must keep any information gathered confidential and in keep-
ing with the requirements of the Ordinance.
SUBPART 770 EVALUATION
Section 770.100 Evaluation and Report
The Commission on Human Rights shall conduct an evaluation of the rules implementing the Just Housing
Amendment to the Cook County Human Rights Ordinance to determine whether the rules should be amended
to better effectuate the Amendment’s purpose. The evaluation shall include an analysis of whether applicants
who receive a positive individualized assessment from housing providers are ultimately admitted into the unit
that they applied for. This analysis will inform the Commission on Human Rights on whether it needs to modify
the rules to re-instate a requirement that housing providers hold the unit open during the individualized assess-
ment process. In addition, the evaluation should include data about complaints brought under the Just Housing
Amendment. The evaluation shall be completed and made publicly available by March 31, 2021.
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FAIR CHANCE ORDINANCES:
AN ADVOCATE’S TOOLKIT
2019
www.nhlp.org