San Diego City Council Bans Section 8 Discrimination

The City of San Diego strikes again! Last year, the San Diego City Council approved a ban on discrimination against recipients of Section 8 Housing Vouchers. The measure passed on a 6:1 vote with two councilmembers absent. For those of you with residential rental properties within the City of San Diego, you cannot say “no” to an applicant based solely on whether they pay rent with a government subsidy. This is a blow to San Diego City rental property owners who formerly had the freedom as to whether to participate in the Section 8 Program or not.

Advocates of the ban claim it was necessary. In pushing the Council to pass this measure, pro-tenant groups suggested that the current policy of “allowing legal discrimination of Section 8 Voucher holders in the private rental market actually exacerbates the homeless problem, because people are unable to use [the voucher].” The measure ignores the fact that it is a risky proposition to accept a tenant who qualifies for Section 8. There is a huge bureaucratic process that can delay the receipt of rent checks. Allowing the tenant to receive Section 8 Housing Assistance is an indirect way of saying that the landlord will take welfare as the source of income. Make no mistake: Discrimination based on income is not allowed. But, requiring the landlords to take Section 8 Housing, creates a layer of forms and complications. This includes the risk that the tenant has no other or limited means of income. Also, from the eviction attorneys’ standpoint, the Section 8 Housing evictions are much more complicated and procedural than your ordinary termination of a month to month tenancy. It is very frustrating for the rental owner to have to wait for a response in getting the Housing Commission’s approval for certain things. For example, rental increases must be approved. You may not terminate the Section 8 tenancy at any time unless you have a material violation or other good cause. All of these good and sound reasons fell on deaf ears with the City Council of San Diego. Therefore, effective in 2019, it will indeed be discriminatory for City of San Diego rental owners to say no to the Section 8 Program. That said, keep in mind that you have the right to screen the Section 8 participant on the other issues that are commonly done with all applicants, such as a review of rental history and credit check. A list of Do’s and Don’t’s: Don’t do any advertising or marketing stating that Section 8 recipients are not accepted. Don’t tell any perspective applicant that it is your policy not to accept Section 8 tenants. Don’t discriminate in any way solely by virtue of the fact that the applicant is a participant in the Section 8 Program. Do upon inquiry by the tenant, agree that you will take Section 8 subject to your usual screening requirements that apply to all prospective residents. Do carefully evaluate the Section 8 tenant’s rental history and credit report. Allowing Section 8 does not necessarily rule out your ability to deny rental based on a FICO score that’s applied across the board. There should be no double standards in favor of Section 8.

Our office has some clients that extol in a positive way the virtues of Section 8 Program in that the Housing Commission’s portion of rent comes in like clockwork. Others say it’s not worth the risk. With this rental market, the landlord does not want to add a layer of bureaucracy to an otherwise positive rental market. We encourage you to go online and read the Ordinance enacted by the City of San Diego for yourself. The text of the Ordinance can be found at Chapter 9, Article 8, of the San Diego Municipal Code. It adds a new Division 8, Sections 98.0801, 98.0802, 98.0803, 98.0804, 98.0805, and 98.0806. In these sections, the drafter of the Ordinance lays out the purpose and intent of the Ordinances, definitions, addresses prohibited activity, states the exceptions for owner-occupied rental units, describes the effect on other laws, and sets forth the enforcement and remedies available to the aggrieved perspective or existing resident who has suffered discrimination based on denial of the Section 8 Program. If you would like a free copy of the new Ordinance, please contact our office.