HomeMy WebLinkAbout2020/06/08 - ADMIN - Agenda Packets - City Council - Study SessionAGENDA
JUNE 8, 2020
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6:30 p.m. - STUDY SESSION
Discussion items
1. 6:30 p.m. Crime/drug-free rental housing ordinance - Discussion with workgroup
2. 8:00 p.m. Future study session agenda planning and prioritization
8:05 p.m. Communications/updates (verbal)
8:10 p.m. Adjourn
Written reports
3. Update - PLACE’s Via project – mechanic’s lien
4. Billboard ordinance and policy
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Meeting: Study session
Meeting date: June 8, 2020
Discussion item: 1
Executive summary
Title: Crime/drug-free rental housing ordinance – Discussion with workgroup
Recommended action: **Due to the COVID-19 emergency declaration, this item is considered
essential business and is Categorized as Time-Sensitive**
• Recommendations from the crime/drug free workgroup outlining possible amendments to
the current crime/drug free rental ordinance were presented at the March 9, 2020 study
session. Staff provided additional data requested by the council in a written report at the
March 23, 2020 study session. The purpose of this study session discussion is to provide an
opportunity for the council to discuss the ordinance and the recommendations with the
workgroup. Workgroup members will provide an overview of the recommendations and be
available to discuss and answer questions.
Policy consideration: Given the recommendations from the crime/drug free rental ordinance
workgroup, what direction does the council wish to provide staff.
Summary: The crime/drug-free rental housing ordinance took effect in 2008 in response to
concerns related to rental properties experiencing disorderly or criminal activity. Discussions
were held by council on the impacts of the ordinance in May and December 2018. At the
December 17, 2018 study session, council approved a resolution suspending sending notices of
violations of city code Section 8-331 to owners or property managers of a rental property in
order to allow time for further study of the ordinance.
Council convened a group of key stakeholders to review information/data, gain input and
provide recommendations to the city council on possible changes to the ordinance. Workgroup
members included representatives from rental property owner/managers, renters, community
members and a legal aid attorney. The first workgroup meeting was held April 14, 2019. Over
the following nine months the workgroup held nine meetings at which they conducted an in-
depth review and analysis of the ordinance. The workgroup reviewed statistical data related to
the administration of the ordinance, identified areas of consensus and concern, reviewed
relevant tenant/landlord law and crime-free ordinances from other cities, and reviewed and
considered the comments from the community engagement process.
Following months of evaluation, the workgroup drafted two recommendations which were
presented at the March 9 study session. Council requested additional data which was provided
in a written report at the March 23 study session. The discussion between the council and the
workgroup was postponed due the COVID-19 pandemic and is scheduled for this study session.
Strategic priority consideration: St. Louis Park is committed to providing a broad range of
housing and neighborhood oriented development.
Supporting documents: Discussion, Workgroup member comments including reference articles
Prepared by: Michele Schnitker, housing sup.; Marney Olson, assistant housing sup.
Reviewed by: Karen Barton, community development director; Mike Harcey, police chief
Approved by: Tom Harmening, city manager
Study session meeting of June 8, 2020 (Item No. 1) Page 2
Title: Crime/drug-free rental housing ordinance – Discussion with workgroup
Discussion
Background:
Crime/drug-free rental ordinance workgroup
In early 2019, the city council appointed individuals to serve on a crime/drug-free rental
ordinance workgroup. The applicants chosen provided a balanced representation of rental
owners/property managers, renters and community members. A housing advocate
representing legal aid was also appointed to the workgroup. The workgroup was tasked with
reviewing the current ordinance and providing a recommendation to the council on possible
areas of modifications to the ordinance.
Key components of the current ordinance include:
•Crime-free, drug-free training required
•Use of crime-free addendum required
•Owner/property manager receives notice of violations
•Termination of tenancy required for violation of the crime or drug provisions
•Owner may appeal the notice of violations that require termination
•Owner failing to proceed with termination is subject to an administrative violation fee
•Provisional license based on the number of police contacts or failure to comply with city
code
The workgroup’s first meeting was held April 14, 2019 and over the next nine months the
workgroup held nine meetings and thoroughly evaluated every component of the ordinance.
Topics reviewed by the workgroup included:
•Historical review of the current ordinance
•Statistical data related to administration of the ordinance
•Identifying areas of consensus regarding the current ordinance
•Tenant/landlord law 101
•Review of Crime-Free ordinances from other cities, and
•Community engagement
Early in the process the workgroup identified areas of concern related to the existing ordinance
that influenced their decisions as they worked to create changes to the current ordinance.
These areas include:
•Proportionality: The existing ordinance treats all levels of crime the same from a petty
misdemeanor to a felony
•Due process: The ordinance does not provide necessary due process for tenants.
Tenants do not receive notices of violations from the city/police department and
tenants do not have an appeal process
•Equity/Racial Equity: the ordinance has a disparate impact on lower income renters and
people of color
•Overreach: The language in the ordinance is too broad including “other person affiliated
with the resident” and “near the premises”. The ordinance requires everyone on the
lease be terminated and workgroup members discussed this as an overreach when
removing one lease holder may be sufficient
Study session meeting of June 8, 2020 (Item No. 1) Page 3
Title: Crime/drug-free rental housing ordinance – Discussion with workgroup
• Not necessary: Public safety goals can be addressed without having the ordinance in
place. Minnesota State Statute already addresses criminal behavior in rental housing
and an eviction process is in place
• Homeowners: The ordinance only applies to rental property, holding renters to a
different standard creating a power imbalance between renters and homeowners
• Homelessness: The ordinance incentivizes tenant displacement which may result in
homelessness which does not make the community safer
Although there was no consensus in how to modify the ordinance, all workgroup members
agreed that changes to the existing ordinance were necessary. The majority did agree on
several key principles related to the current ordinance including:
• The city should continue to require owners/property managers attend crime-free
training and enhance the training to include domestic violence and mental health and
continue to include mediation and fair housing
• Any notice sent to a landlord should also be sent to the tenant
• Tenants should be allowed to appeal violation notices
• Existing ordinance has too broad of a reach. Violations should be limited to activity that
occurs on the premises. Most workgroup members stated “other person affiliated with
the resident” was an overreach
• The majority agreed that compulsory lease termination should be removed from the
ordinance; however, one workgroup member disagreed
The areas of concern and consensus above are reflected in the recommendations the
workgroup is proposing. Following significant discussion, the workgroup identified two options
that reflected the views of most of the workgroup members. The majority of workgroup
members supported presenting Option A and Option B to the community to get input. One
workgroup member strongly supported keeping the ordinance as is but addressing due process
issues; however, that workgroup member conceded to support the presentation of Option A
and Option B to the community.
Public comments: A public meeting was held February 4, 2020 to seek public comment on the
crime/drug-free ordinance and the recommendations being proposed by the workgroup. Public
comments were also accepted through the city’s web site from January 28 – February 11.
Following consideration of the public comments, the workgroup finalized the recommendations
to be presented to the council. The comments from the community input meeting and the
online comments are summarized below.
Community input meeting: Six individuals made a comment to the workgroup. All of the
comments received at the community input support Option B, repealing the ordinance. The
reasons given for supporting the repeal option include:
• The ordinance unfairly targets renters and holds renters to a different standard than
homeowners
• Ordinance disproportionately impacts people of color
• Racial equity concerns. The ordinance is viewed as racist, divisive and discriminatory
• Ordinance has due process issues and removes rights of tenants
• Drugs and crime are already illegal
Study session meeting of June 8, 2020 (Item No. 1) Page 4
Title: Crime/drug-free rental housing ordinance – Discussion with workgroup
•Concerns about fair housing and HUD has issued a warning against these types of
ordinances
•Laws already exist for evicting tenants
•Concerns about safety implications with tenants afraid to call the police even when they
need emergency assistance.
Online comments: 46 comments were submitted online which includes comments from three
of the six individuals that commented at the community input meeting. The Police Advisory
Commission (PAC) also submitted a comment. The majority of comments support Option B and
their reasons were similar to the comments heard at the community input meeting and include:
•Fair housing concerns
•Repealing the ordinance will make St. Louis Park a more welcoming rental community
•Landlords should deal with tenants, the police should deal with crime and drug issues
•Existing eviction laws are sufficient
•The ordinance grants too much power to the city and local law enforcement and
interferes with housing contracts between tenants and landlords
•Unfairly targets low income individuals for what are mostly nonviolent actions
•Unconscious bias, disproportionately affects people of color, not equitable
•Due process concerns
•Most lease agreements already have standard language around not using the premises
for illegal activity and how violations will be handled
•Ordinance is overly broad and creates an imbalance of power between the renter and
the owner and police
•Undermines public safety by silencing crime victims
•Places the city in the middle of private disputes between landlords and tenants
•Not proven to be effective in reducing crime
•Concern about the ordinance legislating people into homelessness
•Opposition to police and/or city officials ordering terminations or evictions
There were comments submitted in support of Option A, modifying the ordinance, but to a
much lesser extent. Commenters in favor of Option A noted the following:
•Like the elimination of automatic lease termination
•Possession of small amounts of marijuana shouldn’t be considered a violation
•Support regulations that promote fairness in notices and evictions, but that also support
landlords in the ability to remove tenants that violate crime and drug free policies
•Holds people accountable
•Like the appeal process for tenants
Four rental property owners/managers commented on-line and they consistently noted they do
not support the changes in requiring training every three years. Concerns about increasing the
frequency of the training included the requirement to take time off work to attend the training
and that the training would be redundant. Three of the four commenters stated they would like
to see an online training option if the city does require training every three years.
Only a few commenters expressed support for keeping the ordinance as is and the PAC made
their own recommendations for modifying the existing ordinance that was provided to the city
Study session meeting of June 8, 2020 (Item No. 1) Page 5
Title: Crime/drug-free rental housing ordinance – Discussion with workgroup
council previously. Many of the workgroup members were at the community input meeting and
an audio recording was provided to all workgroup members to review. All written comments
were also provided to workgroup members prior to making a final recommendation to council.
Workgroup recommendations: The majority of workgroup members supported presenting
both Option A and Option B to the council. The options being recommended by the workgroup
are as follows:
Option A, amend existing ordinance
1.Require rental licensing.
2.Require training every three years with updates on new/modified information provided
through the quarterly SPARC (St. Louis Park Area Rental Coalition) newsletters or in
meetings, or when there is a change in management/ownership.
3.Enhance training to include information related to domestic violence, mental illness,
tenant resources and mediation services.
4.Require crime-free addendum for all leases.
5.Modify definitions to clarify who and where incidents apply to.
6.Remove the compulsory lease terminations components of the ordinance.
7.When an incident is documented by the police department, put in place an internal
review process to ensure the incident warrants a notice.
8.Any notice of an incident must be sent to both the landlord and tenant.
9.Consider options for the notice of incidents to come from a representative of the city
other than the police department.
10.Detailed records of all incidents are maintained by the city and reviewed with the
landlords upon renewal of rental license.
11.If it is determined that incidents are not being addressed at the property, require an
action plan be prepared and approved by the city prior to license renewal, and if
necessary, utilize the authority provided in the provisional license ordinance to ensure
that criminal, drug and safety issues are resolved.
Option B, repeal existing ordinances
1.Require rental licensing.
2.Require training every three years with updates on new/modified information provided
through the quarterly SPARC (St. Louis Park Area Rental Coalition) newsletters or in
meetings, or when there is a change in management/ownership.
3.Enhance training to include information related to domestic violence, mental illness,
tenant resources and mediation service.
4.Repeal sections 8-331 and 8-332 requiring crime-free, drug-free lease addendum, notices
of violations and termination of tenancy for violation of the ordinance in their entirety.
5.Revise Provisional License Ordinance 8-333 to:
o Allow the city to downgrade a rental license to provisional status upon
determination of ongoing public safety concerns, without regard to the number of
reported incidents
o Allow landlords and involved tenants to appeal this decision before the provisional
license takes effect.
Study session meeting of June 8, 2020 (Item No. 1) Page 6
Title: Crime/drug-free rental housing ordinance – Discussion with workgroup
The majority of workgroup members support Option B, repealing the ordinance and revising
the provisional license. Two workgroup members support Option A and one workgroup
member supports keeping the current ordinance with the compulsory lease termination but
addressing due process issues. Comments providing additional insight from individual
workgroup members are attached. In general, the community members, housing advocates
and tenants on the workgroup support repealing the ordinance and the property
owners/managers support modifications to the ordinance.
Workgroup member comments:
Joey Dobson
1.The crime-free ordinance is not necessary.
Minnesota law governing landlord-tenant relationships provides a remedy for a landlord when a tenant
is engaged in criminal behavior on the rental premises. We heard from a panel of housing attorneys
about the legal eviction process a landlord can follow. While Minnesota already has one of the fastest
eviction processes in the nation, there are specific legal provisions allowing for even more expedited
procedures in certain dangerous situations. Further, the criminal justice system is the appropriate
system for determining whether an individual poses a safety risk to society and should be removed from
2.The crime-free ordinance is a catalyst for homelessness.
It is inappropriate for the City to incentivize tenant displacement. Even if the mandatory displacement
element of the ordinance is removed, landlords will continue to end tenancies to ensure they remain in
good standing with the City as licensed landlords. Homelessness does not facilitate safer communities.
3.The crime-free ordinance disproportionately harms Black, Indigenous, and People of Color, as
well as survivors of domestic and gender-based violence and people experiencing mental
health crises.
The ordinance compounds the disparate rates at which people of color are forced to interact with the
criminal justice system. And even though we heard that the police do their best to exclude domestic
violence related calls (and I don’t doubt they do their best), domestic violence is often not readily
apparent and abusers can be highly sophisticated in hiding the abuse. The attached articles explain
these impacts, including potential fair housing claims. I would like to request that the three attachments
to this email be included in the packet of information for City Council.
4.The crime-free ordinance does not provide necessary due process.
At a minimum, both landlords and tenants must have a way to dispute the City’s determination that
there is an issue at a property and that the landlord must do something to remedy it. I worry that even
the ideas about due process we have floated are unworkable, and don’t actually solve this
problem. Many people who were the victim of a crime or in other vulnerable situations will be very
unlikely to challenge a determination by the City. And, I don’t see how the City could actually prevent
informal ends to tenancies, or other was a landlord might retaliate against a tenant who speaks up for
their rights.
Three articles are attached at the end of this report.
Attachments: Nuisance and Crime-Free Ordinances: The Next Fair Housing Frontier
You Can’t Go Home Again: Racial Exclusion Through Crime-Free Housing
Ordinances Nuisance Ordinances and Their Impacts on Domestic Violence Survivors
Study session meeting of June 8, 2020 (Item No. 1)
Title: Crime/drug-free rental housing ordinance – Discussion with workgroup Page 7
Karl Gamradt
My choice would have to be Option B/repeal, though I'll echo the same prior concerns:
1.I'd like to see a requirement that all leases include a passage about the right to call for
assistance/domestic violence waivers.
2.Option B doesn't have any language "providing for a method for the city/police to communicate
with owners/tenants regarding criminal, drug and unsafe nuisance activity." If we're going to
hold landlords accountable for what happens on their property, there should be some
notification of what's happening on their property (just a notice).
3.I still believe the provisional license ordinance already allows us to place someone on provisional
license when their building is an "ongoing public safety concern" under §8-333(e). I don't think
we need to reinvent that wheel.
4.I completely agree with a landlord's need/right to appeal a provisional license decision -BUT
have to ask- would a tenant ever need to appeal the decision to put their landlord on a
provisional license (specifically speaking just to the provisional license issue, NOT an action
against the tenant)? A tenant's right to appeal makes total sense when their own personal lease
is at issue. However, when it's the landlord's license (i.e. not the tenant's lease) at stake, isn't
the sole burden on the landlord? Presumably, any role a tenant might play would simply be to
provide evidence of some sort (whether positive or negative). A landlord's provisional status
wouldn't have any bearing on the tenant's ability to use the property unless the landlord failed
to abide by the terms & lost their license. Even then, would a tenant really file an appeal to save
the landlord's license status when even the landlord didn't bother? My ONLY related concern
with the proposed addition is a landlord pointing at such language in a city ordinance & trying to
compel a tenant to participate in the appeal process (even if they don't agree with the appeal).
Since it states (in the draft), "The owner and each tenant shall then have 10 days to submit a
written appeal of the decision." it could easily be presented to tenants as a requirement they
participate in the appeal process, too. Even if non-participating tenants don't face immediate
retribution, it could certainly be used as a way for landlords to single out those who didn't
submit something. Just doesn't seem like a needed risk.
5.I believe we should create an entity within the city to address miscellaneous complaints about a
property/landlord/tenant (deferred maintenance, noise/nuisance, etc), offer mediation/early
intervention to help mitigate issues, help connect people with services/public assistance when
needed (like referral to STEP), etc.
Beyond that, I'll share my concerns about the workgroup process with the council.
Study session meeting of June 8, 2020 (Item No. 1)
Title: Crime/drug-free rental housing ordinance – Discussion with workgroup Page 8
Marc Berg
Cathy and CFO Work Group Members,
Please accept this as my response to Cathy’s email below from February 21st seeking further comments
on our previous Options A and B, and the recently-released comments or proposal from the St. Louis
Park Police Advisory Commission (the “PAC”).
First, I’d like to respond to Cathy’s invitation that we restate or resubmit our individual recommendations
to council. As I believe I’ve mentioned before, my thought has always been that we present both Options
A and B to council, with the idea that there will be further discussion by council, and the community at
large, about (a) the fundamental issues of public safety, equity, due process, etc. implicated by the CFO,
and (b) which option, between A and B, will better serve the needs of all stakeholders – i.e., renters,
landlords, neighbors, city government (police and housing), and the community at large – in advancing the
city’s public policy goals surrounding those issues, and striking the appropriate balance when those goals
may be in tension with one another. In other words, there’s more work to do, and I’ve never felt
comfortable in restricting our recommendation to only one option at this point.
That said, when we voted at the last meeting, I voted for Option B – repeal Sections 8-331 and 8-332,
along with some revisions to the Provisional Licenses language in Section 8-333. I did so because, in my
personal opinion, this would be preferable to the proposed revisions in Option A, while still giving the
city a mechanism to address those landlords that fail or refuse to take reasonable or appropriate steps
to address issues of on-premises crime and safety. Like some of the others in this group voting for
Option B, I believe that these public safety goals can be accomplished without the tenant-focused
actions provided in the current version of 8-331 and 8-332.
Second, I’ve reviewed the PAC proposal, and see it as more or less an Option “A-1,” in that it appears
that the PAC is recommending that we revise the CFO so as to (a) remove the police from any role in
enforcing or implementing the CFO, outside of responding to requests for service (Point #1), (b) provide
“due process” to tenants (Point #4; quotation marks in the original), and (c) offer some other minor
tweaks to language and procedures (e.g., more education to landlords and tenants, and further
collection of data). While I’m not sure what the PAC has in mind in terms of removing the police from
enforcing the CFO (if not the police, then who?) or “’due process’ to ensure the tenant’s side of the story
is heard” (heard by whom? And with what ability to challenge the validity of a compulsory lease
termination notice?), it appears that the PAC is essentially proposing an option that we previously
discussed as a group, but decided not to vote on, or present to council – i.e., revising the CFO so as to
“fix the due process problems” (as I had described it).
While the PAC is certainly free to weigh in on this discussion – there will, of course, be more public
hearings before the council takes any action on the CFO – I cannot endorse the PAC’s recommendation.
Any version of the CFO that contains a mechanism for compulsory lease termination still exposes the
city to liability. This is because even a revised version of the CFO that attempts to fix the problems
associated with the tenants’ lack of due process can still be challenged in court, on due process and
other grounds (some have referenced housing discrimination statutes). I simply can’t recommend that
the city do something that would expose it to further litigation and/or potential liability. As such, I see
the PAC’s recommendation as far inferior to the two we have presented.
That said, I do find it interesting that, after all these months of reviewing and discussing the CFO, we see
that virtually NO ONE wants the CFO to remain in its present form. Even the PAC wants to see some
changes. I believe that through these discussions many of us have learned a great deal, and have
started to see these issues of public safety, equity, due process, etc. from new angles, and that this is
the most important takeaway from this process as we hand it off to council.
Thanks everyone for your work.
Study session meeting of June 8, 2020 (Item No. 1)
Title: Crime/drug-free rental housing ordinance – Discussion with workgroup Page 9
Kirsten Brekke Albright
Entering into the work group process, I had deep reservations about the efficacy, policy impacts and
divisiveness of the CF/DF ordinance. Following 8 months of discussion, expert testimony, self-directed
research, candid and formal conversations and community engagement, my position remains
unchanged. I fully support Option B.
I believe council should have the benefit of knowing where each work group member stands with
respect to option A or B. The product of our efforts should provide as much detail as possible so as to
best inform their policy discussions.
What will be presented to council and by whom?
Thanks again to everyone involved in this process.
3/8/2020 email to Mayor Spano, Council Members, Housing Staff and Mr. Harmening,
Regrettably, I am unable to attend the council meeting tomorrow evening, during which staff will
present the findings and recommendations of the CF/DF ordinance workgroup. I hope you have had the
opportunity to review/listen to meeting audio to obtain a comprehensive understanding of the
conversations, challenges, research, experiences and positions put forth by the work group.
After months of discussion, assessment and conversation with those most impacted, my deep concerns
about the consequences of the CF/DF ordinance remain unchanged. One memorable conversation was
with a three-generation family living in a rental property near Knollwood. The Grandmother drew my
attention to the empty moving boxes occupying the living room as symbolic fixtures, not knowing what
may precipitate their next move. Stable housing is foundational for the well-being of families and our
community should be shaping policy with the objective of stabilizing rental housing.
Based on the workgroup outcomes, public opinion, national research and housing advocate expertise, I
recommend the repeal the CF/DF ordinance. Without substantive data supporting the efficacy of the
ordinance and significant evidence illuminating the destabilizing and harmful impacts to community, we
must measure our position relative to these facts.
Our state and our community must engage in deep reflection around the real impacts of the racial divide
that remains so fractious and paralyzing to our neighbors of color. The implications of historical and
institutional racism are real, particularly around housing. The fact is, the CF/DF ordinance
disproportionately harms people of color. To preserve this ordinance under the false pretense that it is
making our community safe, is to perpetuate a harmful practice.
I urge council to fully consider the overwhelming support for repeal. The work group majority is in favor
of repeal. Legal experts sited multiple concerns with the ordinance, including deep reservations about
its constitutionality relative to fair housing. Housing policy advocates and experts are unanimously in
support of repeal. And lastly and most importantly, citizens of St. Louis Park are of the opinion that the
ordinance is unnecessary and harmful. This based on findings from an organized deep canvas effort led
by Jewish Community Action.
I welcome your phone calls, a meeting for coffee or email discussion, should you have any specific
questions about our process or my position.
Sincerely,
Kirsten Brekke Albright
Study session meeting of June 8, 2020 (Item No. 1)
Title: Crime/drug-free rental housing ordinance – Discussion with workgroup Page 10
Judith Onsomu
I'm in support of option B. This option gives the tenant and landlord an opportunity to fair hearing
through the appeal processes. It would also minimize marginalizing people of color/race or minority
issues that would arise. The values of diversity, welcoming and more can be reflected.
Study session meeting of June 8, 2020 (Item No. 1)
Title: Crime/drug-free rental housing ordinance – Discussion with workgroup Page 11
Jeannie Seely-Smith
I understand that despite the reaction to the PAC’s recommendations (which appeared to come out of
nowhere and took everyone off guard), there is still a need to give feedback, regardless of the process.
Since I am one of the two voices in support of the CFO, with modifications (specifically around an appeal
process), I welcome the PAC’s recommendations. And, impressed with its simplicity. Thereby, I support
the majority of them.
These past months have shown how dug in our workgroup members were from day one. After all these
months, when we look at each other’s views, none of us have moved an inch.
Comments on Option A
One has to appreciate the time and effort that was given to prepare these recommendations, that said,
unfortunately, I can only support a few. Perhaps, others if made more explicit. I could, however, never
support 7 and 11 as I believe they overstep the workgroup's charge and reach. My understanding has
always been that the workgroup was to review the CFO, hear from city staff, make recommendations,
and receive community input to enhance, retain, or throw out. I was not aware that the Council was
requesting recommendations on how to build an infrastructure to monitor the issuing of housing
violations sited by S.L.P’s police department.
See below for specific comments and questions:
Recommended Option A: Modify the existing Crime Free/Drug Free Ordinance with the following
suggestions:
1)Require rental licensing.
2)Require training every three years with updates on new/modified information provided through
quarterly SPARC (St. Louis Park Area Rental Coalition) meetings or when there is a change in
management/ownership.
I am wondering what are the consequences if not followed? And, what will the
training consist of without the CFO in place, as currently that is the bulk of the
training.
3)Enhance training to include information related to domestic violence, mental illness, tenant
resources, and mediation services.
I am afraid of the unintended consequences. I don’t believe that a landlord is capable
of or should there be an expectation of addressing or assessing DV, mental illness,
and/or drug abuse. I can support providing a list of resources to a tenant, but the
above recommendation states training for landlords on some of our society’s most
troubling and dangerous issues. So, what would that training consist of? Would it be
the intention that the landlord is prepared to intervene? As we all know, these are
complex social issues and need responses from trained professionals –not laypeople,
who could only serve to escalate the situation. If meant only a referral, even then,
does a tenant want her landlord handing him/her information on mental
illness? These issues address by the police department who do have extensive
training in intervening and making appropriate referrals.
Study session meeting of June 8, 2020 (Item No. 1)
Title: Crime/drug-free rental housing ordinance – Discussion with workgroup Page 12
4)Require crime free addendum for all leases.1
I believe recommendations 4 and 5 is where the bulk of our time should have been
spent. Does the CFO helped build a pathway to expectations that would create a safer
community for tenants and assurances that landlords would be responsible for
maintaining their property? Does the CFO help to maintain a peaceful environment for
SLP’s residents?
5)Modify definitions to clarify who and where violations apply to.
Did we determine this was not being done at the time the CFO was active?
6)Remove the compulsory lease terminations components of the ordinance.
With this major component eliminated, I don’t see the incentive for an absent
landlord to respond to numerous police calls or violations. Consequently, violations
would be “no big deal.”
7)When a violation is documented by the police, put in place an internal review process to ensure
the violation warrants a notice.
As I stated above, of all the recommendations, this is the most troubling as it
oversteps our charge. I thought we agreed upon a recommendation that would
include an appeal process – but this is a sweeping new system, examining every
violation written. Every noise complaint, trespassing, an unauthorized person is living
in an apartment, etc. In my opinion, this is overkill. I need to understand the
rationale. What is the problem that this recommendation is addressing? It appears to
be a lack of trust in the police officer's enforcement. If that is not true, then why
would we recommend?
To consider this recommendation wouldn’t the following have to be considered?
•How many violations are issued each week? How many involved juveniles? How
many involved DV? Mental health? Child protection?
•What is the timeframe for the committee to review violations? Days, weeks, months?
•What official documented response is issued – and then what? What if there is
disagreement – would that trigger another appeal process?
•Who would set this review process up?
•How would the members be appointed?
•What does it cost?
•What is the oversight? Is the City Council involved?
•What police time is needed?
•How does this affect the morale of our officers when every violation is questioned
and reviewed?
8)Any notice of violation of the ordinance must be sent to both the landlord and tenant.
1NOTE: the definitional sections in the current version of the ordinance that sets forth the lease addendum language will need to
be narrowed. For example, phrases like “other person affiliated with resident,” “on or near the premises,” “intended to facilitate
criminal activity,” “under the resident’s control,” and “any other criminal activity” as used in Sec. 8-331(a)(1)-(3) are overly broad
and a bit vague. During our discussions everyone expressed some concerns along these lines. Accordingly, this language will need
to be tightened up in a revised version of the ordinance and addendum. The details of this will likely require a “next level”
discussion at the drafting phase.
Study session meeting of June 8, 2020 (Item No. 1)
Title: Crime/drug-free rental housing ordinance – Discussion with workgroup Page 13
9)Consider options for the notice of violations to come from a representative of the city other
than the police department.
As a comparison, I think of a traffic ticket. A driver is issued a citation– but the officer
does not hand the citation to the driver. Instead, the ticket now must go through
another process. It is given to a city representative, who has to take the time to
document and then mail out – creating another layer of administrative retape, again,
for what purpose?
10)Detailed records of all violations are maintained by the City and reviewed with the landlords
upon renewal of rental license.
I believe that violations should be immediately addressed - compared to being filed
away for a year. Shouldn’t violations require an immediate discussion and an agreed
upon corrective action. Dangerous or even constant situations that disrupt the peace
of neighbors could otherwise go unaddressed for weeks, months a year. Low income
renters that are living in buildings where situations are not being addressed have few
options, unless the city steps in.
11)If it is determined that violations are not being addressed at the property, require an action plan
be prepared and approved by the city prior to license renewal and if necessary utilize the
authority provided in the provisional license ordinance to ensure that criminal, drug, safety
issues are resolved.
Again, too long of a time before a response is made.
Study session meeting of June 8, 2020 (Item No. 1)
Title: Crime/drug-free rental housing ordinance – Discussion with workgroup Page 14
Elizabeth Stroder
I support Option B due to SLP’s current CFO creating a separate and unequal power structure, its failure
to focus primarily correcting poor property management and for legislating homelessness for SLP’s
marginalized residents with no regard for long term impacts.
As a Black woman and a renter, I was hesitant to submit an application to join the workgroup. While
SLP’s city leadership has made it known that racial inclusivity, equity and equality are of utmost concern,
90% of SLP’s Black residents and 69% of its Latino residents are renters and homeownership remains out
of reach for many people of color in our community. We live in a country were the physical, emotional
and financial effects of racism are felt by marginalized groups daily. While SLP is progressive, it is not a
safe haven from racism. When one is from a marginalized group, you learn to pick your battles with the
overt and covert injustices and micro aggressions you encounter and speaking personally, I myself
feared possible reprisals, as I knew the City was in favor of keeping the CFO with the addendum in place.
I am fortunate in that I have a landlord that genuinely cares about each tenant and has always let us
know that this is our home and because of that, I felt empowered to let my voice be heard. After being a
renter in SLP for the past 12 years, I have encountered many renters who feel that their voices are not
wanted and have little value in Saint Louis Park, due to them not being homeowners.
As we were advised in our first meeting, the primary motivation of the CFO addendum was to ensure
that new and current landlords were addressing their responsibility of creating and maintaining safe
housing for all of their tenants, including with maintenance issues. Over the course of the last nine
months, the members of the workgroup have worked diligently at the task charged to us while
researching on our own, hearing from experts and city staff. Some of the information we were provided
was skewed in favor of keeping the ordinance and addendum in place. We requested to speak directly
with those who lost their housing due to the CFO; we were advised we could not, not only due to
privacy concerns but because those records were not kept regarding the former residents whereabouts
for future follow-up. We did learn however, from the data provided by the city that 79% of police
service calls were to homeowners and yet, the city has no ordinance to remove homeowners from SLP
for the same issues that the addendum addresses with renters. When I inquired as to why the city did
not mandate rules for property owners as well, as otherwise, the ordinance is labeling renters as more
likely to be a threat to the community, I was told as property owners, their rights prevent them from
being removed from the community. When you create one set of housing rules to apply to only one
group, without conviction, that you claim have broken them, you create a power structure that values a
segment of the community over another. This imbalance does not serve our city’s mission towards
achieving equity and equality for all residents.
We learned during our early sessions that the impetus for the CFO originally was the situation at
Meadowbrook. After active engagement to build trust between residents, mangers and the police to
resolve safety issues and poor management, the situation at Meadowbrook improved, without a CFO in
place. Workgroup members inquired why the situation at one property where the situation was
resolved without a CFO convinced city officials that the CFO was needed, especially after a meeting
where opposing eviction housing lawyers both confirmed that MN statute 504B.171 (Covenant of
landlord and tenant not to allow unlawful activities) already addresses safe housing rules, without the
risk of infringing on Fair Housing law. We did not receive clear answers on why the city decided State
law was lacking, nor why there were no renter stakeholders involved in the process of creating the
ordinance; stakeholders from every segment of the community should be required for any community
policing model.
One hundred fifty tenants and their families out of two hundred and twenty five people have been
made homeless by the CFO without any charges being filed. Removing someone from their home
without charge and conviction is a very aggressive, harmful action to take, without ever proving the
Study session meeting of June 8, 2020 (Item No. 1)
Title: Crime/drug-free rental housing ordinance – Discussion with workgroup Page 15
person is a detriment to the community, especially for a city that seeks to rectify power imbalance.
When I asked during a session if the person being evicted without their day in court is such a danger to
the community, why would our city focus on having them thrown out, instead of prioritizing all public
safety by going through the criminal court system to have them answer for their crime? Every person
accused of a crime deserves a day in court, amongst a jury of their peers. As so many renters in SLP are
from marginalized groups, risking subjecting them to homelessness, without charge and conviction,
further disenfranchises them.
Our city should not take likely contributing to legislating anyone to a cycle of homelessness and
poverty. Potential landlords often reach out to discuss the reason a person’s previous tenancy ended,
and while it is unlawful, some former landlords reveal more than they should so that homelessness
continues for that person and their family, or they may be forced to live in an unsafe environment.
Although we know our criminal justice system fails to empower everyone equally, especially those that
are poor or are from marginalized groups, that is the system that exists to address crime, including with
standard for burden of proof needed to secure a conviction.
Study session meeting of June 8, 2020 (Item No. 1)
Title: Crime/drug-free rental housing ordinance – Discussion with workgroup Page 16
by Renee Williams and Marie Flannery
Fair housing laws may conflict with local
laws and policies that penalize tenants for
calling law enforcement or having a history
of arrest or conviction.
Nuisance and
Crime-Free
Ordinances:
The Next Fair
Housing Frontier
28 Rural Voices
Study session meeting of June 8, 2020 (Item No. 1)
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The Problem1
A number of jurisdictions have these “nuisance”
and “crime-free” ordinances. They govern a range
of conduct. For example, a nuisance ordinance may
be enforced against a property due to inadequate
upkeep, or noise.2 An ordinance may also be enforced
against individuals who call the police too many
times – such as survivors of domestic violence, who
are overwhelmingly women. When landlords are cited
for having “nuisance” properties, they may evict the
tenants.3 This can raise fair housing concerns because
such policies may have a discriminatory effect on
women.
Similarly, crime-free ordinances may require
landlords to adopt “crime-free lease addenda” that
“require or permit housing providers to evict tenants
where a tenant or resident has allegedly engaged in
Calling for help in an emergency seems like a
reasonable thing to do. However, in jurisdictions
across the country, obtaining law enforcement
or emergency assistance may also jeopardize
one’s housing security – even resulting in
eviction. This may occur even when someone is
the victim of a crime, such as domestic violence,
and is simply calling the police for assistance.
This is but one illustration of the consequences
of many so-called “nuisance” or “crime-free”
ordinances and policies. Jurisdictions may also
have crime-free ordinances requiring lease
addenda for renters – addenda that include very
broad definitions of criminal activity. Such laws
and policies have fair housing implications, and
represent a new frontier in the struggle for fair
and equal access to housing for all.
Photo: Phil Whitehouse Properties, Flickr Creative Commons,
https://flic.kr/p/6D7xoD
29
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Title: Crime/drug-free rental housing ordinance - Discussion with workgroup Page 18
a single incident of criminal
activity, regardless of whether
the activity occurred on or off
the property.”4 Such addenda
may not include exceptions for
victims of domestic violence
or other crimes.5 Furthermore,
crime-free lease addenda may
require eviction in instances of
arrest, rather than conviction,
a policy which can raise fair
housing concerns given the
racial disparities in arrests
across the United States.
Research
Studies and reports have
underscored the detrimental
impacts of nuisance and
crime-free ordinances. For
example, researchers Matthew
Desmond (author of the
bestselling book Evicted) and
Nicol Valdez conducted a study
examining nuisance citations
in Milwaukee, WI, and found
survivors of domestic violence
were forced to choose between
their homes and their safety.6
The study further observed
that women from African-
American neighborhoods
disproportionately faced this
impossible choice. A recent
report examining nuisance
and crime-free ordinances in
northeast Ohio also outlined
how such ordinances can
impact renters (including
Section 8 voucher holders),
communities of color, domestic
violence survivors, and persons
with disabilities.7
Legal Challenges
Several lawsuits have
challenged nuisance
ordinances, with the American
Civil Liberties Union (ACLU)
leading the charge. In one
example, the ACLU sued
Norristown, PA for enforcement
of the local nuisance ordinance
against a survivor of domestic
violence, Lakisha Briggs.8 Ms.
Briggs, a Section 8 voucher
holder, was threatened with
eviction because at the time,
local law authorized the
revocation or suspension of a
landlord’s rental license where
the police were summoned
three times (“three strikes”) in
four months due to “disorderly
behavior.” After a series of calls
to law enforcement due to the
actions of Ms. Briggs’ abuser,
police began considering these
calls “strikes.” In turn, Ms.
Briggs was afraid to call the
police.
Eventually, in one incident,
Ms. Briggs sustained life-
threatening injuries, and had
to be hospitalized. Because a
neighbor called the police, her
landlord informed her that he
was being forced to evict her.
Photo: Ruin Raider Properties, Flickr Creative Commons,
https://flic.kr/p/9Qxh84
30 Rural Voices
Study session meeting of June 8, 2020 (Item No. 1)
Title: Crime/drug-free rental housing ordinance - Discussion with workgroup Page 19
Norristown made changes to
its nuisance law that failed
to address the law’s harmful
effects, and the lawsuit was
filed. Additionally, the U.S.
Department of Housing and
Urban Development (HUD)
issued its own complaint,
alleging sex discrimination in
violation of the Fair Housing
Act because of the ordinance’s
impact on female survivors of
domestic violence. The lawsuit
and the HUD complaint were
settled. As part of the lawsuit
settlement, the problematic
ordinance was repealed.9 In
2016, the city of Surprise, AZ
repealed its nuisance ordinance
after the ACLU brought a
similar lawsuit on behalf of a
domestic violence survivor.10
Recent HUD Guidance
In 2016, HUD issued two
important guidance documents.
The first outlines how adverse
housing decisions based
on criminal history should
be analyzed using the Fair
Housing Act.11 For example,
the guidance explains fair
housing issues can be raised
by policies such as banning all
tenants with criminal records
regardless of circumstances
(e.g., length of time that has
passed, type of crime) or
basing housing denials on
arrests alone.12 The guidance
acknowledges the racial and
ethnic disparities in arrests,
convictions, and incarceration
in the United States.13
The second document
addresses the issue of nuisance
and crime-free ordinances,
and how to analyze them using
the Fair Housing Act.14 The
guidance focuses on how these
ordinances may give rise to
claims of sex discrimination in
violation of the Fair Housing
Act because the overwhelming
number of domestic violence
survivors are women. HUD
states that nuisance and crime-
free ordinances are “becoming
an additional factor that
operates to discourage victims
from reporting domestic
violence and obtaining the
emergency police and medical
assistance they need.”15 HUD
also notes that “[o]ne
step a local government
may take toward meeting its
duty to affirmatively further
fair housing is to eliminate
disparities by repealing
a nuisance or crime-free
ordinance that requires or
encourages evictions for use of
emergency services, including
911 calls, by domestic violence
or other crime victims.”16
Studies and reports
have underscored
the detrimental
impacts of nuisance
and crime-free
ordinances.
Photo courtesy of High Plains Fair Housing Center
31
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Case Study: Crime-Free Issues in California’s Inland Empire
In the Inland Empire region of southern
California, the Inland Fair Housing and Mediation
Board (IFHMB)17 is working to educate housing
providers, social service organizations, and
homeless service providers about HUD’s guidance
on this issue. IFHMB especially sees a tenant’s
criminal background come into play when trying
to house homeless people, many of whom have
criminal histories because they have received
citations for violating “no camping” ordinances
by sleeping in city parks. IFHMB has found that
while some housing providers are willing to rent
to homeless individuals who are, for example, in
a rapid rehousing program where a portion (or
all) of the rent is subsidized, they charge extra
fees, or “special deposits” in connection with the
rental transaction. Thus, IFHMB’s fair housing
training on this topic highlights the fact that
if discrimination based on a person’s criminal
background is illegal, charging extra fees or
special deposits is also illegal.
An IFHMB review of leases and addenda used
at local “crime-free” properties found that
most do not adequately address domestic
violence or other instances where a tenant,
through no fault of their own, is the victim of
a crime. Many landlords, owners, and property
managers are unaware of the need for such
exceptions to crime-free provisions. In addition,
nearly all the lease provisions IFHMB reviewed
used arrest, rather than conviction, as the
determinative factor regarding a lease violation
that would result in immediate eviction, and a
“preponderance of the evidence” standard upon
which to base their conclusion that such an
offense has occurred.
IFHMB’s enforcement activities around this issue
involve intake and investigation of complaints of
housing discrimination relating to local crime-
free ordinances and lease terms. In one such
case, the prospective tenant was denied housing
based on a nine-year-old traffic violation that
resulted in a “failure to appear” citation. The
tenant, who is African-American, was told that
local crime-free ordinances and the terms of the
crime-free lease addendum required the housing
provider to deny her rental application. The
apartment complex was in a predominantly white
neighborhood, and the tenant believed the denial
of housing based on her “criminal” background
was a pretext for discrimination based on her
race. When the efforts of IFHMB’s fair housing
staff to educate the housing provider and
mediate the dispute proved unsuccessful, IFHMB
assisted the tenant with filing an administrative
complaint with HUD.
Looking Forward
Education of the public, housing advocates,
housing providers, and state and local
government officials will be key to increasing
awareness around this issue. For example,
training and education for law enforcement
and housing providers can help improve
understanding of the dynamics of domestic
violence. These various stakeholders would also
benefit from understanding how enforcement of
overly broad nuisance and crime-free ordinances
can have dire consequences for groups such as
domestic violence survivors, or may otherwise
violate fair housing law.
Furthermore, there have been changes regarding
laws at the state level. States such as Iowa,18
Illinois,19 Minnesota,20 and Pennsylvania21 have
laws in place that offer protections for domestic
violence survivors and other individuals seeking
emergency assistance. California is currently
considering a bill that would substantially
strengthen its existing protections22 under state
law. Residents and advocates across the country
should take note of these recent developments
and evaluate how nuisance and crime-free
ordinances are raising fair housing issues in their
communities.
Renee Williams is a Staff Attorney at the National Housing
Law Project and Marie Flannery is President and Chief
Executive Officer at Inland Fair Housing and Mediation Board.
32 Rural Voices
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Endnotes
1. The American Civil Liberties Union (ACLU)
has a website with a wealth of resources on
this issue, available at https://www.aclu.org/
other/i-am-not-nuisance-local-ordinances-
punish-victims-crime. See also Emily Werth,
Sargent Shriver National Center on Poverty
Law, The Cost of Being “Crime Free”: Legal and
Practical Consequences of Crime Free Rental
Housing and Nuisance Property Ordinances (Aug.
2013), http://www.povertylaw.org/files/docs/
cost-of-being-crime-free.pdf.
2. U.S. Department of Housing and Urban
Development (HUD), Office of General Counsel
Guidance on Application of Fair Housing Act
Standards to the Enforcement of Local Nuisance
and Crime-Free Housing Ordinances Against
Victims of Domestic Violence, Other Crime
Victims, and Others Who Require Police or
Emergency Services, pp. 2-3 (Sept. 13, 2016),
https://www.hud.gov/sites/documents/
FINALNUISANCEORDGDNCE.PDF (HUD
Nuisance Guidance).
3. HUD Nuisance Guidance, p. 6.
4. HUD Nuisance Guidance, p. 5.
5. HUD Nuisance Guidance, p. 6.
6. Unpolicing the Urban Poor: Consequences of
Third-Party Policing for Inner-City Women,
American Sociological Review Vol. 78, p. 137
(2013), https://scholar.harvard.edu/files/
mdesmond/files/desmond.valdez.unpolicing.
asr__0.pdf.
7. See generally Joseph Mead and Elizabeth
Bonham, Who Is a Nuisance? Criminal Activity
Nuisance Ordinances in Ohio (Nov. 2017),
https://papers.ssrn.com/sol3/papers.
cfm?abstract_id=3067028.
8. Complaint, Briggs v. Borough of Norristown,
https://www.aclu.org/legal-document/
briggs-v-borough-norristown-et-al-
complaint.
9. ACLU, Press Release, “Norristown Will Pay
$495,000 to Settle Case on Behalf of Woman
Threatened with Eviction for Calling Police”
(Sept. 8, 2014), https://www.aclu.org/news/
pennsylvania-city-agrees-repeal-law-
jeopardizes-safety-domestic-violence-
survivors.
10. ACLU, Press Release, “Surprise, Ariz., Can No
Longer Threaten Crime Victims with Eviction
for Calling Police,” (Mar. 21, 2016), https://
www.aclu.org/news/arizona-city-repeals-
nuisance-law-challenged-aclu-behalf-
domestic-violence-survivor.
11. HUD, 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 (Apr. 4, 2016), https://
www.hud.gov/sites/documents/HUD_
OGCGUIDAPPFHASTANDCR.PDF (HUD
Criminal Records Guidance).
12. HUD Criminal Records Guidance, pp. 5-7.
13. HUD Criminal Records Guidance, p. 2.
14. See generally HUD Nuisance Guidance, p. 2.
15. HUD Nuisance Guidance, p. 5.
16. HUD Nuisance Guidance, pp. 12-13.
17. Inland Fair Housing and Mediation Board
is a California-based, nonprofit fair
housing organization that has, since 1980,
served San Bernardino County and parts of
Riverside and Imperial Counties. For more
information, see http://www.ifhmb.com/
home/about/.
18. Iowa Code Ann. § 562A.27B; Iowa Code Ann.
§ 562B.25B; Iowa Code Ann. § 331.304(11);
Iowa Code Ann. § 364.3(11).
19. 65 Ill. Comp. Stat. Ann. 5/1-2-1.5; 55 Ill.
Comp. Stat. Ann. 5/5-1005.10.
20. Minn. Stat. Ann. § 504B.205.
21. 53 Pa. Cons. Stat. Ann. § 304.
22. Cal. Gov. Code § 53165. The current bill (AB
2413) is being co-sponsored by the National
Housing Law Project.
33
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Issue Brief November 2019
American Constitution Society | 1899 L Street, NW, 2nd Floor | Washington, DC 20036
www.acslaw.org
You Can’t Go Home Again:
Racial Exclusion Through Crime-Free Housing Ordinances
Deborah N. Archer*
At a time when America has become more racially diverse, extreme residential segregation on
the basis of race nonetheless persists. The cumulative effects of this segregation on people of
color are profound. Research has consistently demonstrated that Black and Latinx people living
in racially segregated communities, with the concentrated poverty that often accompanies such
segregation, have limited life opportunities.1 Residential segregation impacts access to quality
education, employment opportunities, government services, and social capital. Residents of
racially segregated communities also experience increased contact with the criminal legal
system, one of the critical drivers of unequal opportunity in America. Although the nature of
racism in housing continues to change, government housing policies continue to sustain racial
segregation, often working to re-segregate communities that had managed to achieve some
level of integration.
One troubling aspect of modern housing policy is the entanglement with societal assumptions
about the criminality of people of color and the criminal legal system’s steady march toward
mass criminalization. Mass criminalization has been defined as “the criminalization of relatively
nonserious behavior or activities and the multiple ways in which criminal justice actors, norms,
and strategies shape welfare state processes and policies.”2 Many policymakers are acting on
*This Issue Brief is adapted from two of my recently-published articles The New Housing Segregation: The
Jim Crow Effects of Crime-Free Housing Ordinances, 118 MICHIGAN LAW REVIEW 173 (2019) and Exile From
Main Street, 55 HARVARD CIVIL RIGHTS-CIVIL LIBERTIES LAW REVIEW (forthcoming 2019).
1 See e.g., MARGUERITE L. SPENCER & REBECCA RENO, KIRWAN INST. FOR THE STUDY OF RACE AND ETHNICITY,
THE BENEFITS OF RACIAL AND ECONOMIC INTEGRATION IN OUR EDUCATION SYSTEM: WHY THIS MATTERS FOR
OUR DEMOCRACY (2009) (discussing the ways in which socioeconomic and racial segregation decreases life
opportunities); See RICHARD ROTHSTEIN, THE COLOR OF LAW: A FORGOTTEN HISTORY OF HOW OUR
GOVERNMENT SEGREGATED AMERICA 186–187 (2017) (discussing the fact that young Black people are more
likely to live in poor neighborhoods than young White people); SHERYLL CASHIN, THE FAILURES OF
INTEGRATION: HOW RACE AND CLASS ARE UNDERMINING THE AMERICAN DREAM 3 (2004).
2 Devon W. Carbado, Blue-On-Black Violence: A Provisional Model of Some of the Causes, 104 GEO. L.J. 1479,
1487 (2016).
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The American Constitution Society
You Can’t Go Home Again | 2
their assumptions that poor people and people of color are criminals and dangerous. Despite a
growing consensus about the problem of mass incarceration and high-profile efforts to reverse
America’s race-driven over-reliance on imprisonment, mass criminalization has seeped into
virtually every aspect of society.
In a growing number of communities around the country, the increased contact with the
criminal legal system combines with mass criminalization to further lock people of color out of
housing in predominantly White communities, further producing and sustaining racial
segregation. Crime-free housing ordinances and programs (“crime-free housing ordinances”)
are some of the most salient examples of this phenomenon. Crime-free housing ordinances are
local laws that either encourage or require private landlords to evict or exclude tenants who
have had varying levels of contact with the criminal legal system.3 They are part of the
expanding web of “zero tolerance” policies adopted by private landlords and public housing
authorities that ban renting to individuals with a criminal history. Though formally race
neutral, these laws facilitate racial segregation in a number of significant ways and their impact
on racial segregation is a matter of great public concern.
I.Racial Exclusion Through Crime-Free Housing Ordinances
Exclusionary local laws and policies are among the primary mechanisms that predominantly
White communities utilize to ward off racial integration. The long history of racially
exclusionary localism reaches back to “sundown towns,” which excluded Black people through
ordinances and policies, exclusionary covenants, threats, and harassment by local law
enforcement officers.4 Hundreds of cities across America have been sundown towns at some
point in their history.5 Not only were Black people barred from living in these towns, but Black
3 See Deborah N. Archer, The New Housing Segregation: The Jim Crow Effects of Crime-Free Housing
Ordinances, 118 MICH. L. REV. 173, 177 (2019); EMILY WERTH, SARGENT SHRIVER NAT’L CTR. ON POVERTY
LAW, THE COST OF BEING “CRIME FREE”: LEGAL AND PRACTICAL CONSEQUENCES OF CRIME FREE RENTAL
HOUSING AND NUISANCE PROPERTY ORDINANCES 3–4 (2013) (discussing the types of requirements imposed
on landlords in different types of crime-free housing ordinances). Crime-free housing ordinances are
often adopted alongside nuisance ordinances that require the eviction of tenants alleged to create
nuisance on the property, often measured by calls for police assistance to the property. WERTH, at 4–5
(“Often municipalities will incorporate both the crime-free rental housing and nuisance property
elements into one ordinance or adopt both types of ordinances simultaneously.”)
4 ROTHSTEIN, supra note 1, at 42 (2017); JAMES W. LOEWEN, SUNDOWN TOWNS: A HIDDEN DIMENSION OF
AMERICAN RACISM 4 (2005) (“Many towns drove out their black populations, then posted sundown
signs. . . . Other towns passed ordinances barring African Americans after dark or prohibiting them from
owning or renting property; still others establishes such policies by informal means, harassing and even
killing those who violated the rule.”).
5 LOEWEN, supra note 4, at 4–7 (revealing that sundown towns have existed everywhere in the country).
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The American Constitution Society
You Can’t Go Home Again | 3
people who entered the town or were found there after sunset were subject to harassment,
threats, and acts of violence.6
Facially-discriminatory local laws that bar Black people are, of course, now illegal.7 However,
homogeneous municipalities continue to act on their worst racial biases by adopting
exclusionary housing policies that masquerade as race-neutral principles of rational planning
and home rule.8 Many local communities exercise their local power to relegate poor people of
color to marginalized, resource-starved neighborhoods, away from the economic prosperity of
their own communities.9 Crime-free ordinances are a step in the evolution of exclusionary
localism.
A.Rise of Crime-Free Ordinances
Crime-free ordinances have roots in the law enforcement community. Historically, they are
police-sponsored programs that seek to create closer collaboration between police departments
and landlords.10 The first ordinances were created by the International Crime Free Association
(“ICFA”), an organization founded in 1992 by a member of the Mesa Police Department in
Mesa, Arizona.11 The stated goal of the ICFA is to use “law enforcement based crime
prevention” to keep illegal activity, and the tenants believed to bring it, off of rental property.12
The efforts of the ICFA have led to the adoption of crime-free ordinances across the United
States. According to one estimate, approximately 2,000 municipalities across forty-four states
have adopted a crime-free housing ordinance.13
Under the authority of crime-free housing ordinances, landlords are instructed or encouraged
to refuse to rent to prospective tenants with a criminal history, including a history of arrests
6 ROTHSTEIN, supra note 1, at 42 (stating that “police and organized mobs” enforced policies “forbidding
African Americans from residing or even from being within town borders after dark”); LOEWEN, supra
note 4, at 218.
7 Fair Housing Act of 1968, 42 U.S.C. § 3601.
8 See David D. Troutt, Katrina’s Window: Localism, Resegregation, and Equitable Regionalism, 55 BUFFALO L.
REV. 1109, 1166 n. 228 (2008); Sheryll D. Cashin, Localism, Self-Interest, and the Tyranny of the Favored
Quarter: Addressing the Barriers to New Regionalism, 88 GEO. L.J. 1985, 1993 (2000) (citing one study that
found the desire for racial exclusion more strongly influenced local law than did the desire for better
services and lower taxes); PAUL KANTOR, THE DEPENDENT CITY REVISITED: THE POLITICAL ECONOMY OF
URBAN DEVELOPMENT AND SOCIAL POLICY 164 (1995).
9 Cashin, supra note 8, at 1987 (“Marginalized populations, particularly the minority poor who are
regulated to poverty-ridden, central neighborhoods, are largely excluded from participating in the
favored quarter’s economic prosperity.”).
10 Id.
11 Crime Free Programs, INT’L CRIME FREE ASS’N (“The Crime Free Multi-Housing Program started in 1992
in Mesa AZ, when Tim Zehring of the Mesa Police Department was tasked to design a safety progr am
that would work in rental housing.”) (last visited November 9, 2019).
12 Id.
13 Crime Free Multi-Housing, INT’L CRIME FREE ASS’N (last visited Nov. 9, 2019).
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without conviction, regardless of whether that record suggests a present risk to the rental
property or the safety of other tenants.14 In some municipalities, landlords are also encouraged
to deny rental applications from individuals who were previously evicted because of suspicions
that they engaged in criminal activity.15 The core components of crime-free housing ordinances
are lease addendums that allow or require landlords to evict tenants who they believe have
engaged in or facilitated criminal behavior.16 Under the ICFA model addendum, a tenant risks
eviction if he or she has engaged in or facilitated any criminal activity. The model lease
addendum does not define what constitutes criminal activity for purposes of the agreement.17 It
provides that:
a single violation of any of the provisions of this added addendum shall be
deemed a serious violation, and a material and irreparable non-compliance. It is
understood that a single violation shall be good cause for immediate termination
of the lease . . . .18
Many municipalities around the country have adopted a version of this model lease
addendum.19 Significantly, a resident usually does not have to be convicted in order to be
evicted. A common crime-free lease addendum provision states “[u]nless otherwise provided
by law, proof of violation shall not require a criminal conviction, but shall be by a
preponderance of the evidence.”20 This creates the possibility that a mere arrest—or even a stop
that results in neither arrest nor conviction—might be sufficient to evict someone from their
home.21 When a tenant violates the crime-free lease addendum, many of these ordinances either
14 See Archer, supra note 3, at 191–193 (discussing certain crime-free ordinances that require or encourage
landlords to conduct extensive background checks that sometimes go beyond criminal convictions);
Kathryn V. Ramsey, One-Strike 2.0: How Local Governments are Distorting a Flawed Federal Eviction Law, 65
UCLA L. REV. 1146, 1182–84 (2018) (explaining that police can decide when to evict tenants but that no
standards “govern the discretion of the police to require eviction”).
15 See Archer, supra note 3 at 197–198 (outlining Orlando’s database for crime-free certified landlords);
Crime Free Multi-Housing, CITY OF ORLANDO (referring to the crime-free multi-housing program as “an
important community policing tool” and noting that the police department provides a database accessible
to eligible landlords that shows all persons arrested on Crime Free Certified Properties); Bianca Prieto,
Crime-Free Apartment Program Starting in Orlando, ORLANDO SENTINEL (Jan. 30, 2011) (“‘This program is
[aimed at] squeezing out all the people who just don't want to do right, so good people can have a nice,
quiet place to live,’ said Officer Derwin Bradley, who was tasked with starting program in Orlando.
‘Some families move from property to property just wreaking havoc.’").
16 Crime Free Multi-Housing, supra note 13.
17 Crime Free Lease Addendum, INT’L CRIME FREE ASS’N (last visited November 9, 2019).
18 Id.
19 Archer, supra note 3.
20 Crime Free Lease Addendum, supra note 17; see also, e.g., Landlords Sue City Over ‘Crime-Free’ Ordinance,
AM. APARTMENT OWNERS ASS’N (explaining that the city’s crime-free lease addendum says that landlords
do not need a criminal conviction in order to find “proof of violation”) (last visited Mar. 23, 2018).
21 Archer, supra note 3, at 193–195 (discussing addendums from different municipalities which suggest
that tenants may be evicted for mere arrests or stops, sometimes even when these interactions with law
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give the landlord the authority to evict for these activities, including those committed by guests
or other members of the household, or mandate the tenant’s eviction.22
B.Adoption in Response to Increasing Racial Diversity in the Community
Crime-free housing ordinances are often adopted in response to burgeoning racial diversity, not
burgeoning crime. Indeed, there is evidence that racial segregation may be more than an
unfortunate by-product of the adoption of some crime-free ordinances. Faribault, Minnesota is
an instructive example. Faribault passed a crime-free ordinance in 2014 with a goal of getting
rid of “problem tenants” living in downtown Faribault.23 There is reason to believe that the
language of “problem tenants” operated as a “dog whistle.” Nearly all of the racial and ethnic
minority households in downtown Faribault live in rental housing.
The Black population of Faribault, composed almost entirely of Somali immigrants and
refugees, nearly tripled between 2000 and 2010. The 2010 census showed an increase of 214% in
Faribault’s Black population since 2000 and a 263% increase in the Black population living in the
downtown area of Faribault during the same period.24 The overall number of Black households
increased 542% in that decade.25 Although residents of Faribault began complaining about
increases in crime during this period, the overall crime rates in Faribault did not, in fact,
increase dramatically.26
In 2013, resident complaints of increased drug activity and theft in downtown Faribault had
become a hot button issue, but police reported that records did not support any claims of an
increase.27 The police chief reported that he believed the issues were largely a result of cultural
enforcement take place outside of the landlord’s property). In some municipalities, the police department
periodically provides owners and property managers of crime -free properties with a listing of individuals
who have been arrested. See e.g., Prieto, supra note 15; Crime Free Multi-Housing, supra note 13 (explaining
the information available in the database managed by the police department).
22 Marie Claire Tran-Leung, Beyond Fear and Myth: Using the Disparate Impact Theory Under the Fair Housing
Act to Challenge Housing Barriers Against People with Criminal Records, 45 CLEARINGHOUSE REV. 4, 5 (2011);
SCHAUMBURG, ILL., CODE § 99.10.05(F)(1) (mandating a crime-lease provision in every residential lease and
providing that violations of the provision provide grounds for eviction).
23 Memorandum from Andy Bohlen, Police Chief, Faribault to Brian J. Anderson, City Adm’r, Faribault
(Oct. 10, 2013) (on file with author); Complaint at 1, para. 46, Jones v. City of Faribault, No. 18–CV–01643–
JRT (D. Minn. June 13, 2018).
24 CMTY. PARTNERS RESEARCH, INC., RICE COUNTY HOUSING STUDY: AN ANALYSIS OF THE HOUSING NEEDS OF
THE CITIES IN RICE COUNTY at F–21, DF–6 (2012).
25 Id. at F–22.
26 Jones Complaint, supra note 23, at para. 7–9 (stating that crime rates generally decreased between 2000
and 2014).
27 Rebecca Rodenborg, Faribault Police, Business Owners Take a Look at Downtown Crime, FARIBAULT DAILY
NEWS (Mar. 2, 2013).
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differences in the way Somali residents of Faribault “used public space” and noted that the
police department would seek to decrease pedestrian traffic in the target areas.28
The decision to exempt certain properties from the Faribault crime -free ordinance also
evidences an intent to focus on the growing Black population while lessening the impact on the
White residents of Faribault. In Faribault, the ordinance exempts single-family dwellings
occupied by a relative of the owner.29 This provision is more likely to exempt White residents,
who are more likely to own their own home than to live in rental property. This exemption
allows White property owners to rent to their presumably White relatives without concern for
those relatives’ history with the criminal legal system. Similar exemptions are included in
crime-free ordinances around the country.30
Finally, signs of discriminatory intent are also evident in some of the statements local officials
made when discussing and adopting crime-free ordinances. Local officials have proudly
proclaimed their intent to “move the bad guys out of town,” or to keep out “undesirables,” or
the “criminal element.”31 These statements are often coded expressions of racial animus. Indeed,
in housing discrimination cases, courts have found similar statements to be “camouflaged racial
expressions.”32
II.Racial Exclusion and the Discriminatory Reality of Crime-Free Ordinances
While seeking to maintain the safety of rental properties is a laudable goal, the widespread
adoption of crime-free housing ordinances raises a host of public policy and civil rights
concerns. Those concerns include the ways in which crime-free housing ordinances advance
racial segregation, import harmful policing practices into the private housing market, expand
the effect already destructive effects of the broad and over-inclusive definition of criminal
activity, and promote destructive narratives around people with criminal legal system contacts.
28 Memorandum from Andy Bohlen, supra note 23; see also Jones Complaint, supra note 23, at para. 7–13
(describing the racial animus that fueled the Faribault housing ordinance and other similar proposals
intended to silence and control the Somali population).
29 § 7–38(1)(a)(1)–(2).
30 See e.g., CAROL STREAM, FLA. § 10–12–4(B)(1) (exempting landlords of the residential rental license
requirement for single family dwellings occupied “by a member of the owner’s immediate family”); ST.
LOUIS PARK, MINN., § 8–328 (exempting owners of having to attend a training program if their “only
rental housing is either unoccupied or a dwelling unit homestead by a relative”).
31 Katie Dahlstrom, DeKalb’s Crime Free Housing Program Gets Mixed Reviews, DAILY CHRON. (Feb. 26, 2014).
32 See e.g., Smith v. Town of Clarkton, 682 F.2d 1055, 1066 (4th Cir. 1982) (finding reference to “an influx of
‘undesirables’” and concerns about “personal safety due to the influx of ‘new’ people” to be coded racial
expressions).
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A.Advancing Racial Segregation
By using contact with the criminal legal system as a tool for exclusion, documented racial biases
in policing and the criminal legal system are imported into the private housing market.33
Through crime-free ordinances, the criminal legal system becomes wrapped around the entire
housing process, forcing individuals with criminal legal system contacts—disproportionately
Black people—to find housing elsewhere. Furthermore, the racial impact of crime-free housing
ordinances will reach far beyond the individual resident. Government housing policy is never
neutral in its impact on racial segregation; the policy will either exacerbate segregation or help
to reverse it.34 Rejection of a housing application or eviction based on almost any type of
criminal legal system exposure will further systemic racial exclusion because of the racial
disparities in who has a criminal record.35 The impact is heightened because of the breadth of
crime-free ordinances. The exclusions are not only based on convictions but, by design and
implementation, on any contact with the criminal legal system—from claims that a person is
suspicious, to stops, to arrests, to convictions. The exclusions do not only apply when an
individual is seeking to move into the community but will force the evictions of individuals
already living there and deter others from applying for housing in that community in the first
place.
A housing system based on whether a person has involvement with the criminal legal system
effectively functions as a racialized system. This is because there are racial disparities at every
stage of the criminal legal process. Most of the people in prison are Black.36 Overall, Black men
are seven times more likely to go to prison than White men.37 Black women are eight times more
likely to go to prison than are White women.38 The disparities are most stark in state prisons. In
33 Ramsey, supra note 14, at 1183–84 (“CHOs also raise troubling questions about racial justice, especially
when eviction decisions by the police department can be based only on an arrest. It is well -documented
that the police are more likely to arrest people of color than white peopl e.”); see also HUMAN RIGHTS
WATCH, NO SECOND CHANCE: PEOPLE WITH CRIMINAL RECORDS DENIED ACCESS TO PUBLIC HOUSING 84–85
(2004) (noting racial disparities in the enforcement of criminal offenses in the United States); Ann
Cammett, Confronting Race and Collateral Consequences in Public Housing, 39 SEATTLE U. L. REV. 1123, 1141–
42 (2016) (noting that recreational drug use exists among “all racial and economic groups, and is not more
prevalent among African Americans” but that people living in public housing, especially Black tenants,
“are especially vulnerable to surveillance and state intervention in the form of police presence, selective
prosecutions, and disparate outcomes in criminal courts”).
34 ROTHSTEIN, supra note 1, at 190.
35 Valerie Schneider, The Prison to Homelessness Pipeline: Criminal Record Checks, Race, and Disparate Impact ,
93 IND. L.J. 421, 423–24 (2018) (providing statistics which demonstrate that Black and Latinx people are
incarcerated at disproportionate rates when compared to White people).
36 Dorothy E. Roberts, The Social and Moral Cost of Mass Incarceration in African American Communities, 56
STAN. L. REV. 1271, 1272 (2004).
37 TODD R. CLEAR, IMPRISONING COMMUNITIES: HOW MASS INCARCERATION MAKES DISADVANTAGED
NEIGHBORHOODS WORSE 63 (Oxford 2007).
38 Id.
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Iowa, Minnesota, New Jersey, Vermont, and Wisconsin, incarceration rates are more than ten
times higher for Black residents than for White residents.39 In eleven states, at least one in
twenty adult Black males is in state prison.40 And, “on any given day, nearly one third of Black
men in their twenties are under the supervision of the criminal justice system.”41 As Dorothy
Roberts puts it, “African Americans experience a uniquely astronomical rate of
imprisonment.”42
By relying on criteria destined to exclude people of color at disproportionate rates, crime-free
ordinances will perpetuate and increase segregation in the communities that adopt them. And,
just as bastions of affluence in certain communities concentrate disadvantage elsewhere,43
concentrating Whiteness in a community will make other communities more segregated.
Accordingly, the ordinances will predictably reinforce and perpetuate segregation in
surrounding communities by exiling people of color, forcing them to seek housing in already
segregated communities and recreating conditions in those communities that are among the
drivers of systemic segregation.
It is axiomatic that housing policy in one community will have a ripple effect in surrounding
communities.44 Evictions and exclusions based on criminal legal system contacts will force those
excluded—most likely to be people of color and their families—to seek housing in those
surrounding communities. Given the realities of housing patterns in the United States and
deeply entrenched systems of segregation, people of color excluded by crime-free ordinances
will likely be squeezed into predominantly minority communities, reinforcing racial
segregation. People of color who are excluded by crime-free ordinances in one community may
also avoid seeking housing in other predominantly White neighborhoods for fear of intolerance,
prejudice, and violence,45 a fear likely reinforced by their experience seeking housing in or
eviction from communities with crime-free ordinances. By concentrating Whiteness in some
communities, we concentrate people of color in others.
39 ASHLEY NELLIS, THE SENTENCING PROJECT, THE COLOR OF JUSTICE: RACIAL AND ETHNIC DISPARITY IN
STATE PRISONS 3 (2016).
40 Id.
41 Roberts, supra note 36, at 1272.
42 Id. at 1272–1273.
43 See generally DOUGLAS S. MASSEY, CATEGORICALLY UNEQUAL: THE AMERICAN STRATIFICATION SYSTEM 6,
18 (2007) (discussing the impact of “opportunity hoarding”).
44 See VICKI L. BEEN ET AL., SUPPLY SKEPTICISM: HOUSING SUPPLY AND AFFORDABILITY 4 (Oct. 26, 2017)
(unpublished manuscript) (arguing that changes in housing demand and supply push people either out
of a jurisdiction or force them to turn to less expensive housing in the same city and that the “f ailure of
supply to respond to increase demand at the higher end will ripple through other submarkets as demand
spills into these markets and increases their prices and rents”).
45 Maria Krysan et al., Does Race Matter in Neighborhood Preferences? Results from a Video Experiment, 115
AM. J. SOC. 527, 533–534 (2009) (“An important factor shaping African-Americans’ racial residential
preferences is concern about possible discrimination in predominantly white neighborhoods . . . .”).
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B.Importing Harmful Policing Practices into the Private Housing Market
Black people are disproportionately surveilled and stopped by the police.46 Crime-free housing
ordinances provide this disparate policing with a broader province of impact and influence. The
ICFA has advertised that crime-free ordinances are law enforcement-driven and based on
principles of policing.47 In utilizing principles of policing in both design and implementation,
crime-free ordinances import racially discriminatory policing practices into the private housing
market.
This country has a general problem of racialized policing—racialized encounters, stops, frisks,
arrests, and violence.48 Under the reign of contemporary policing, people of color, particularly
Black men, are stigmatized, brutalized, and burdened with fines and arrest records at an
alarming rate. Under contemporary policing models, officers too frequently rely on racial
stereotypes of people of color that make them presumptively people of interest to the police.49
By linking an individual’s encounters with police officers to the possibility of being denied
access to private housing, crime-free ordinances add a new dimension to the sad history of race
impacting access to housing. Crime-free ordinances allow the racial bias, both explicit and
implicit, that has woven itself into the fabric of American policing to more easily weave itself
throughout the private housing market.
46 See Carbado, supra note 2, at 1479 (listing the variables that contribute to the systemic targeting of Black
communities by police); see also Jeffrey Fagan et al., Stops and Stares: Street Stops, Surveillance, and Race in
the New Policing, 43 FORDHAM URB. L.J. 539, 560 (2016) (collecting studies); Tatiana Pina, New Study Shows
Racial Disparities in Rhode Island Traffic Stops, PROVIDENCE J. (Jan. 16, 2014) (presenting evidence showing
that police in Rhode Island stopped drivers of color at a disproportionate rate); Matthew Block et al., Stop,
Question and Frisk in New York Neighborhoods, N.Y. TIMES (July 11, 2010) (presenting statistics that show the
disproportionate rates at which Blacks and Latinos were stopped under the NYPD’s stop and frisk
policy).
47 See Crime Free Programs, supra note 11 (“The Crime Free Programs are innovative, law enforcement
based crime prevention solutions designed to help keep illegal activity off rental property”).
48 I. Bennett Capers, Race, Policing and Technology, 95 N.C. L. REV. 1241, 1255–56 (2017) (providing evidence
of racial profiling in New York City, Los Angeles, Philadelphia, Minnesota, Maryland Boston, North
Carolina, New Jersey, and other American cities); Bennett L. Gershman, Use of Race in “Stop-and-Frisk”:
Stereotypical Beliefs Linger, But How Far Can the Police Go?, 72 N.Y. ST. B.J. 42, 42 (2000) (explaining that a
study done by the New York State attorney general’s office found that Blacks were over six times more
likely to be stopped than Whites and Hispanics more than four times as likely); John J. Donohue III &
Steven D. Levitt, The Impact of Race on Policing and Arrests, 44 J.L. & ECON. 367 (2001) (finding that the
number of nonwhites arrested remains unchanged by changes in the number of white and nonwhite
police officers).
49 Devon W. Carbado & Patrick Rock, What Exposes African Americans to Police Violence, 51 HARV. C.R.–
C.L. L. REV. 159, 163 (2016) (explaining the variables that “converge to render African Americans
vulnerable to repeated police interactions”); Kevin R. Johnson, Race Profiling in Immigration Enforcement,
28 HUM. RTS. 23 (2001) (discussing how the Supreme Court “opened the door to Border Patrol reliance on
race” in conducting immigration stops).
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Policing-based housing policies can lead to exclusions or evictions because of police contacts
resulting from the weaponization of police by community members suspicious or resentful of
people of color, solely because of their race. The phrase “Living While Black” has been used to
encompass the innumerable ways people of color, and Black people in particular, are viewed
with suspicion and required to justify their presence in spaces where they are seen as not being
in the norm. When in White spaces, Black people are often required to provide justification and
proof—to police or other citizens—that they belong.50 When those suspicious of Black people in
White spaces call the police to enforce those exclusions, these criminal legal system contacts can
pose numerous risks to the health and safety of those being policed and can result in “criminal
records” justifying housing exclusion.
The combination of expanding policing-based housing policies and the spike in police officers
responding to complaints about Black people living their lives in White spaces increase the
likelihood that Black people will experience exile and that White residential spaces will be
preserved. Together, they risk working in the same way as racially restrictive covenants—
community-based contractual agreements that prohibit the sale, rental, or occupancy of a
residence to certain groups of people.
C.Expanding the Destructive Reach of Mass Criminalization
A significant part of the danger of crime-free housing ordinances is the broad and over-
inclusive definition of criminal activity common in those ordinances. This allows the system to
ensnare people who have not engaged in activities that meet traditional notions of “crime” and
who have not had any meaningful contact with the criminal legal system. This problem is
exacerbated because it occurs against a backdrop of mass criminalization in the United States.
The entanglement of policing-based housing policies and mass criminalization is pushing
already marginalized people further to the edges of society. The problem gets worse the more
we criminalize relatively innocuous behavior, thus swelling the numbers of people subject to
the web of policing-based housing restrictions.
Scholars and advocates have drawn much needed attention to the individual and community-
based harms of mass incarceration.51 However, mass incarceration represents just one part of a
50 See Elijah Anderson, The White Space, 1 SOC. RACE & ETHNICITY 10, 11–15 (2015) (describing “white
space[s]” as “settings in which black people are typically absent, not expected, or marginalized when
present”).
51 See, e.g., MICHELLE ALEXANDER, THE NEW JIM CROW: MASS INCARCERATION IN THE AGE OF
COLORBLINDNESS 4 (2010) (“[I] came to see that mass incarceration in the United States had, in fact,
emerged as a stunningly comprehensive and well -disguised system of racialized social control that
functions in a manner strikingly similar to Jim Crow.”); NAZGOL GHANDNOOSH, THE SENTENCING
PROJECT, BLACK LIVES MATTER: ELIMINATING RACIAL INEQUITY IN THE CRIMINAL JUSTICE SYSTEM 18 (2015)
(“[M]ass incarceration’s hold on vast public resou rces and the obstacles erected for people with criminal
records further erode the economic and social buffers that prevent crime.”); Dorothy E. Roberts, The Social
and Moral Cost of Mass Incarceration in African American Communities, 56 STAN. L. REV. 1271 (2004)
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much larger social justice crisis: mass criminalization.52 The criminal legal system continues to
expand its reach beyond criminalization by redefining crime and criminals. Today, America
arrests over ten million individuals a year.53 Four million people in America are currently “on
probation, parole, or otherwise under the control of the criminal legal system without being
incarcerated.”54 Mass criminalization has attached criminal sanctions to spitting in public places,
violating subway rules, sleeping in public places, jaywalking, riding a bike on the sidewalk, and
removing trash from a bin.55 The result is that the criminal legal system intersects with our lives
frequently and harshly.
Mass criminalization reflects a social and political process through which society determines
who will be subjected to punishment by the government—creating new categories of criminals
and attaching moral judgments.56 Accordingly, mass criminalization is achieved not only
through the proliferation of laws and harsh punishments, but also through the proliferation of
tough on crime rhetoric and criminalizing narratives.57 We have created narratives about who
perpetuates crime and how crime begins and then takes hold of communities.58 These narratives
(assessing the effects of mass incarceration on Black communities and concluding that incarceration does
not benefit them); Ta-Nehisi Coates, The Black Family in the Age of Mass Incarceration, ATLANTIC (Oct. 2015)
(discussing the effects mass incarceration has had on Black families).
52 See Devon W. Carbado, Predatory Policing, 85 UMKC L. REV. 545, 551 (2017) (“Mass criminalization
enables the police to arrest African-Americans not only through the criminalization of non-serious
conduct, but also through the diffusion of criminal justice officials, norms, and strategies into the
structure and organization of the welfare state.”); Jenny Roberts, Expunging America's Rap Sheet in the
Information Age, 2015 WIS. L. REV. 321, 325 (2015) (“Although mass incarceration is perhaps the most
serious and pressing problem with the criminal justice system in the United States, mo st criminal cases
are misdemeanors and often do not result in jail or prison time. The problem is thus better characterized
as one of mass criminalization.”).
53 ANDREA J. RITCHIE & BETH RITCHIE, BARNARD CTR. FOR RESEARCH ON WOMEN, THE CRISIS OF
CRIMINALIZATION: A CALL FOR A COMPREHENSIVE PHILANTHROPIC RESPONSE 1 (2017).
54 Id.
55 Carbado, supra note 2, at 1487–1488 (listing the types of non-serious behaviors that localities have
criminalized); Erik Luna, The Overcriminalization Phenomenon, 54 AM. U. L. REV. 703, 707 (2005) (listing
“non-criminal behavior” that people have been arrested for, like loitering and vi olating subway rules).
56 RITCHIE & RITCHIE, supra note 53, at 9 (“Criminalization is the social and political process by which
society determines which actions or behaviors – and by who – will be punished by the state”).
57 Id. (“[H]ighly racialized and gendered narratives– whether they are about ‘thugs,’ ‘crack mothers,’
‘welfare queens,’ or ‘bad hombres’ – are used to fuel a generalized state of anxiety and fear, and to brand
people labeled ‘criminal’ as threatening, dangerous, and inhuman.”); see also Bernard Harcourt, The
Collapse of the Harm Principle, 90 J. CRIM. L. & CRIMINOLOGY 109, 113 (1999) (asserting that “claims of harm
have become so pervasive that the harm principle has become meaningless”).
58 See JONATHAN SIMON, GOVERNING THROUGH CRIME: HOW THE WAR ON CRIME TRANSFORMED AMERICAN
DEMOCRACY AND CREATED A CULTURE OF FEAR 3–7 (2007) (discussing how fear of violent crime has spread
through American society and the outsized impact it has had on the poor and on certain racial groups).
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have “crept into popular and political language,”59 and in the process, the values of freedom
and equality take a back seat to the desire to repress this perceived crime.60 This regime fuels a
culture of fear—of crime and those believed to perpetuate it—leading to control and exclusion.61
Mass criminalization is permeated with racial bias.62 Indeed, the narrative linking race and
crime has endured for centuries, continuing to act as a measure of Black people’s “fitness for
modern life.”63 Through racialized narratives, negative labeling, and media coverage,
Americans’ fear of crime has morphed with America’s fear of Black people.64 For many, crime
statistics define Black humanity,65 with narratives asserting that poor Black people embrace and
encourage a culture of crime.66 In conversations ranging from criminal justice reform, to
education, to housing, these racialized narratives fuel a general state of anxiety and fear and
brand Black people, and people of color more broadly, as dangerous and inhuman.67
The mark of criminality exists for people of color even in the absence of actual criminality.68
Mass criminalization feeds the myth of criminality and validates unwarranted fear. In turn,
crime-free housing ordinances weaponize that fear. Indeed, mass criminalization is particularly
harmful in the housing context because private landlords and municipalities define criminality
so broadly, even stretching it to include cases where there has not been an arrest. Given the
close connections between law enforcement, the criminal legal system, and race and poverty, for
many poor people of color exclusion is almost fate.
59 Anthony C. Thompson, Navigating the Hidden Obstacles to Ex-Offender Reentry, 4 B. C. L. REV. 255, 258
(2004).
60 See SIMON, supra note 58, at 3.
61 Id. at 6.
62 Carbado, supra note 4, at 1489 (noting how “poverty and race intersect to create a pathway to
criminalization”); see generally KHALIL GIBRAN MUHAMMAD, THE CONDEMNATION OF BLACKNESS: RACE,
CRIME, AND THE MAKING OF MODERN URBAN AMERICA (2010) (chronicling the history of Black criminality
in the United States).
63 MUHAMMAD, supra note 62, at 1–2.
64 Id.; see also Thompson, supra note 59 (discussing negative narratives around involvement in the criminal
legal system, particularly when it comes to narratives of people of color involved in crime).
65 MUHAMMAD, supra note 62, at 1.
66 Thompson, supra note 59.
67 For example, criminalizing and dehumanizing narratives about immigrants of color have been a
hallmark of President Trump’s campaign and presidency, including his infamous statement about
Mexican migrants: “They’re bringing drugs. They’re bringing crime. They’re rapists.” Katie Rogers,
Trump Highlights Immigrant Crime to Defend His Border Policy. Statistics Don’t Back Him Up, N.Y. TIMES
(June 22, 2018); see also Gregory Korte & Alan Gomez, Trump Ramps Up Rhetoric on Undocumented
Immigrants: ‘These aren't people. These are animals.', USA TODAY (May 16, 2018) (“’We have people coming
into the country or trying to come in . . . . You wouldn't believe how bad these people are.’ . . . ‘These
aren't people. These are animals.’") (quoting Donald Trump)).
68 See generally Devah Pager, The Mark of a Criminal Record, 108 AM. J. SOC. 937 (2003) (discussing a study
that confirmed the impact of racial and criminal stigma in the employment market).
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D.Promoting Destructive Messages About People with Criminal Legal System
Contacts
The narratives about formerly incarcerated people that are often embedded in the structure of
crime-free ordinances and promoted through training and descriptive materials can deepen the
social stigma experienced by formerly incarcerated people returning home and contribute to the
cycle of recidivism. In the past several years, correctional facilities have released “record
numbers” of incarcerated people who then sought to successfully reenter their communities.69
However, several structural barriers hinder their efforts: bars to government benefits, voting
disenfranchisement, exclusion from public housing, restrictions on employment, and
disqualification for educational grants.70 This list of collateral consequences71 is compounded by
social stigma and stereotyping that feed private discrimination and limit the ability of formerly
incarcerated people to make connections with their community and build supportive networks.
The messages crime-free ordinances convey about formerly incarcerated people perpetuate this
social stigma and stereotyping.
Moreover, the stigma surrounding formerly incarcerated people is often intertwined with racial
stereotypes. Unfortunately, “for many Americans, crime has a Black” or Brown face.72 Thus,
formerly incarcerated Black people generally fight against “double stigma” related to their
status and historical narratives of Black people as dangerous and violent.73 Indeed, the narrative
of Black dangerousness and excessive criminality remains a relentless part of our culture,
impacting debates about race from criminal justice reform to parenting, education, and
housing.74
69 Michael Pinard, A Reentry-Centered Vision of Criminal Justice, 20 FED. SENT’G REP. 103, 103 (2007).
70 Thompson, supra note 59, at 258; see also Jamil A. Favors, Note, Deconstructing Reentry: Identifying Issues,
Best Practices, and Solutions, 21 U. PA. J.L. & SOC. CHANGE 53, 61–64 (2018) (discussing some of the
difficulties faced by individuals reentering their communities); CLEAR, supra note 37, at 58–60 (discussing
some of the employment restrictions that have been placed on individuals who were formerly
incarcerated); see generally Deborah N. Archer & Kele S. Williams, Making America “The Land of Second
Chances”: Restoring the Social Safety Net for Ex-Offenders, 30 N.Y.U. REV. L. & SOC. CHANGE 527 (2006)
(discussing barriers to reentry).
71 Collateral consequences, the indirect consequences that flow from a criminal conviction, include a
“range of social and civil restrictions” and can have an astonishing impact on recidivism rates. See
Michael Pinard & Anthony C. Thompson, Offender Reentry and the Collateral Consequences of Criminal
Convictions: An Introduction, 30 N.Y.U. REV. L. & SOC. CHANGE 585, 590 (2006).
72 Jody D. Armour, Race Ipsa Loquitor: Of Reasonable Racists, Intelligent Bayesians, and Involuntary
Negrophobes, 46 STAN. L. REV. 781, 787 (1994).
73 Adrienne Lyles-Chockley, Transitions to Justice: Prisoner Reentry as an Opportunity to Confront and
Counteract Racism, 6 HASTINGS RACE & POVERTY L.J. 259, 269 (2009); CLEAR, supra note 37, at 8–9 (“The
social concept of the ‘dangerous young black man,’ so deeply ingrained in our nation’s consciousness,
continues to fuel punitive politics.”).
74 See Brief on Behalf of National Black Law Students as Amicus Curiae Supporting Petitioner in Buck v.
Davis, 137 S.Ct. 759 (2017), 2017 WL 685534, at 5-16 (explaining the history of the view that Black people
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The stigma born of this narrative is particularly harmful because of its impact on housing
options for formerly incarcerated people. Housing is critically important for successful reentry
and can present a significant challenge for individuals returning from incarceration.75 Many
rental property owners state they would not knowingly rent their property to someone with a
criminal conviction and often deny rental applications based on the fact that an individual has a
criminal record.76 This is also a problem imbedded in the structure of these programs and
ordinances. Most crime-free programs require or encourage landlords to conduct criminal
background checks for all rental applicants. The screenings established by these ordinances and
those advocated by the trainings have the effect of sending the message “that all tenants with
criminal histories are likely to bring criminal activity” with them.77
III.Examining the Real-World Effects of Crime-Free Housing Ordinances
A.Faribault, Minnesota
The Faribault, Minnesota crime-free ordinance went into effect in 2015, with goals far beyond
crime reduction. The ordinance seeks to assure “that rental housing in the City of Faribault is
decent, safe, and sanitary and is so operated and maintained not to become a nuisance to the
neighborhood or to become an influence that fosters blight and deterioration or creates a
disincentive to reinvestment in the community.”78 The Faribault ordinance is among the
harshest in the country.79 First, the ordinance creates a requirement that all owners of rental
housing obtain a license from the city to operate a rental dwelling and lays out a series of
requirements for obtaining and retaining that license, including compliance with the crime-free
are uniquely violent and dangerous); see generally Pager, supra note 68 (presenting research which
suggests that prospective employers treat Black applicants as if they have a criminal record, regardless of
whether they disclose one or not).
75 See Pinard & Thompson, supra note 71, at 595; Archer & Williams, supra note 70, at 543 (noting that
parole officers often cite housing for parolees “as their biggest challenge.”); Lyles-Chockley, supra note 73,
at 282 (“The denial of crucial social benefits – including food stamps and federally subsidized housing –
is a final, and sometimes devastating, blow to ex-offenders attempting to successfully integrate into their
communities.”); Thompson, supra note 59, at 278–79 (discussing how housing has been a barrier to
reentry); TRAVIS ET AL., URBAN INST., FROM PRISON TO HOME: THE DIMENSIONS AND CONSEQUENCES OF
PRISONER REENTRY 35 (2001) (discussing the barriers people released from prison face in finding housing).
76 Thompson, supra note 59, at 278 (“Private property owners often inquire into the individual’s
background and tend to deny housing to anyone with a criminal record.”); TRAVIS ET AL., supra note 101,
at 35 (“Landlords typically require potential tenants to list employment and housing references and to
disclose financial and criminal history information. For these reasons, of fenders are often excluded from
the private housing market.”).
77 Tran-Leung, supra note 22, at 5; See also WERTH, supra note 3, at 15 (“[L]andlords that are encouraged or
required to screen prospective tenants are likely to err on the side of rejecting any one with a record.”).
78 FARIBAULT, MINN., CODE § 7–36.
79 Litigation has been filed to challenge the Faribault ordinance under the Fair Housing Act, the Equal
Protection Clause of the Fourteenth Amendment, and the Minnesota Constitution. See Jones v. City of
Faribault, No. 18–cv–01643 (D. Minn. June 13, 2018).
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housing provisions of the ordinance.80 The ordinance also provides a number of reasons that a
license can be revoked or not renewed. Among the reasons are “[f]ailure to actively pursue the
eviction of a tenant or otherwise terminate the lease with a tenant who has violated the
provisions of this Article or Crime Free Drug Lease Addendum or has otherwise created a
public nuisance.”81
The ordinance also requires all licensees to conduct criminal background checks, going back at
least three years, on all prospective tenants or occupants who are eighteen years or older.82 The
landlord must retain the results of the criminal background check for at least one year after the
check, even if the prospective tenant is rejected, and for a year after the tenancy ends.83 The
ordinance does not, however, provide any guidance on what criteria should be used in
assessing and reviewing the criminal background check. The Faribault Police Department does,
however, provide such guidance, and encourages landlords to look beyond criminal convictions
and consider arrests and even police contact. A Faribault police officer who runs the crime -free
program on behalf of the Faribault Police Department said:
In our crime-free classes that property owners and managers are required to
attend, I explain that, sometimes during the criminal history checks, you can find
out more information by coming to the PD and asking for public data that would
show police contacts . . . . There may not be a conviction, but there is a wealth of
information.84
Faribault’s ordinance also provides the text of a crime-free lease provision that is mandatory for
every new or renewed lease.85 The text of the mandatory lease provision prohibits a “[r]esident,
any members of the resident’s household, or a guest or other person under the resident’s
control” from engaging in “illegal activity, including drug-related activity” on or near the
premises, as well as acts “intended to facilitate illegal activity,” on or near the premises.86
Finally, it prohibits members of the household from engaging in the manufacture, sale, or
distribution of illegal drugs anywhere.87 A single violation of the crime-free lease addendum
“shall be deemed a serious violation and material non-compliance with the lease.”88
Importantly, the ordinance does not define what constitutes illegal activity—making any
violation of the law grounds for eviction after a single violation.
80 FARIBAULT, MINN., CODE § 7–38(1).
81 § 7–42(3)(g).
82 § 7–44(4).
83 § 7–44(4)(d).
84 Gunnar Olson, Mixed Emotions: Landlords, Officials Measure Success Differently for Crime-Free Multi-
Housing Program, FARIBAULT DAILY NEWS (Mar. 29, 2017).
85 FARIBAULT, MINN., CODE § 7–44(3).
86 § 7–44(3)(a)–(b).
87 § 7–44(3)(d).
88 § 7–44(3)(e).
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The ordinance also prohibits disorderly conduct on all licensed premises, and makes it the
responsibility of the landlord to prevent disorderly conduct by tenants and their guests,
including through eviction.89 The ordinance specifically provides that to find that disorderly
conduct occurred, “[i]t shall not be necessary that criminal charges be brought in order to
support such finding nor shall the dismissal or acquittal of such a criminal charge operate as a
bar to any action under this Section.”90
Finally, the ordinance gives the Faribault police the power to order eviction of a tenant pursuant
to the lease addendum without an arrest or conviction. If the police department determines that
a premises or dwelling unit was used in violation of the crime-free provisions, or that a tenant
or occupant is in violation of the provision, the licensee must terminate the tenancy of all
tenants occupying the unit and may not enter into a new lease with any of them for a period of
one year.91
Consider the case of Thelma Jones. Ms. Jones is a Black woman who lives in Faribault,
Minnesota.92 After living in Faribault for almost a decade and in her then-current home for five
years, Ms. Jones was informed by her landlord that she and her children had two weeks to
move out.93 At the time of her eviction notice, Ms. Jones’ landlord had been charged with
misdemeanors under Faribault’s crime-free housing ordinance for failing to meet requirements
of the ordinance.94 The landlord informed Ms. Jones that the police advised the landlord to
remove Ms. Jones from the house, stating that the police had “responded to complaints at this
home 82 times” and characterized Ms. Jones’ home as a location of “ongoing criminal
activity.”95
In fact, Ms. Jones and her children did not have any criminal convictions to support this
conclusion.96 However, there is evidence that police had come to Ms. Jones’ home repeatedly
because of harassing calls to the police by her White neighbors.97 On one occasion, police
89 § 7–43(1).
90 § 7–43(5).
91 § 7–44(5).
92 Complaint at 1, para. 3, Jones v. City of Faribault, No. 18–CV–01643–JRT (D. Minn. June 13, 2018).
93 Id. at 45, para. 197.
94 Id. at 45, para. 199. The Faribault Police Department charged Jones’ landlord with two criminal
misdemeanors: “Rental Dwelling Registration/Fail to Register” and “C[rime ]F[ree ]M[ulti -]H[ousing]-
Fail to Attend Training.” Id. Crime-free ordinances are frequently adopted as part of a larger rental
housing licensing program for all landlords in the municipality and require compliance with the crime -
free ordinance provisions in order for landlords to obtain or maintain their residential operat or’s license.
See, e.g., LAS VEGAS, NEV. CODE § 6.09.020(A) (2014); SCHAUMBURG, ILL. CODE § 99.10.05(A) (2015);
FARIBAULT, MINN. CODE § 7–42 (2017). In some municipalities, violating these provisions is a
misdemeanor.
95 Id. at 46, para. 203.
96 Id.
97 Id. at 45, para. 205.
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responded to calls because Ms. Jones was hosting a family barbecue. On another occasion,
police were called when Ms. Jones hosted a child’s birthday party.98 Police even responded to
calls when her children were outside playing on a trampoline.99 Ms. Jones and her family were
not evicted because they were engaged in criminal activity. The Jones family was evicted
because they were not welcomed by their White neighbors.
B.Orlando, Florida
Orlando, Florida provides an example of a seemingly voluntary crime-free housing program
with similarly exclusionary results. In 2009, Orlando adopted a voluntary Crime Free Multi-
Housing Program. An Orlando police officer described the program as designed to “squeez[e]
out all of the people who just don’t want to do right, so good people can have a nice, quiet place
to live.”100 The program has three components. First, property owners and managers who want
to participate in the program can attend an eight-hour seminar presented by the police
department.101 During this training, property managers and owners learn about crime
prevention theory, lease agreements and eviction issues, and on-going security management.102
The second component of the program is called Crime Prevention Through Environment
Design.103 Here, the Orlando Police Department assesses the property to confirm it meets the
security requirements of the program.104 The final component, and the centerpiece of the
program, allows a property to advertise that it has “Full Certification” if the property
management agrees to include a crime-free lease addendum, modeled on the ICFA model lease
addendum, in all of its leases to help with the removal of “problem tenants.”105 The Orlando
lease addendum provides that once a property owner or manager is notified that a tenant has
been arrested, he or she can fill out an eviction form and give the accused resident seven days to
move out.106 A resident does not have to be convicted in order to be evicted. In one example, an
Orlando resident was caught smoking marijuana and was evicted from his apartment within
the week for violating the crime-free lease addendum.107
By becoming fully-certified, Orlando properties have access to the Orlando GOAL Database,
which provides data about “police actions” involving their tenants and others in their
community.108 Specifically, the database lists “all persons arrested on Crime Free Certified
98 Id.
99 Id.
100 Prieto, supra note 15.
101 Crime Free Multi-Housing, supra note 15.
102 Id.
103 Id.
104 Id.
105 Id.
106 9 Investigates: Crime Free Multi-Housing Program Proves Successful, WFTV (Mar. 21, 2014).
107 Id.
108 Id.
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Properties, as well as other properties in the database.”109 “All adult misdemeanor and felony
arrests” and juvenile felony arrests “are entered into the database.”110 Certified properties also
have access to a “Tenant Criminal Violation/Eviction List” which identifies all renters who have
been evicted pursuant to the Crime Free Multi-Housing Program. The purpose of this list,
according to the City of Orlando, is to “track[] the criminal violators so they cannot migrate
from community to community.”111 The top of the list states:
The person(s) named on this list have been involved in Police -documented
criminal activity and/or evicted because of Police-documented criminal activity.
Involvement in any criminal activity while a resident of a Crime Free Multi-
Housing Community is a violation of the Crime Free Multi-Housing Standard
and is subsequently grounds for eviction.112
The list is automatically sent to property managers every week.113
Between 2009 and 2014, approximately 1,400 renters were evicted under the program.114 One of
those people was Leroy Ebanks. When he was twenty-one years old, police suspected that Mr.
Ebanks participated in breaking into a car.115 Police questioned him and he denied any
involvement.116 In connection with his questioning, the police checked Mr. Ebanks’ criminal
history which showed that he had two prior arrests but no convictions.117 The officers turned
that information over to the rental complex where Mr. Ebanks lived and the building
management immediately started eviction proceedings against him.118
IV.Challenging the Desire to Exclude
Although many policy makers point to crime as a primary motivation behind the proliferation
of policing-based housing policies and the desire to exclude, the problem is not actual crime but
the myth of criminality. Crime-free housing ordinances indulge many of the dark prejudices at
the heart of American history, including a desire to exclude anyone perceived to be a threat. The
prevalence of housing exclusions based on any level of contact with the criminal legal system is
consistent with America’s broader embrace of exile in response to perceived threats. Crime-free
housing ordinances fit squarely within America’s history of responding to threats—real or
109 Crime Free Multi-Housing, supra note 15.
110 Id.
111 Id.
112 9 Investigates, supra note 106.
113 Crime Free Multi-Housing, ORANGE COUNTY SHERIFF’S OFFICE (“Property managers will be sent an
automatic weekly report which will provide notification of arrests for criminal incidents occurring on
your property as well as the arrests of tenants.”).
114 9 Investigates, supra note 106.
115 Prieto, supra note 15.
116 Id.
117 Id.
118 Id.
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imagined—through temporary or permanent removal from the community. In so many ways,
the history of Black people in America is the history of control and exclusion.119 Central to that
history are the legal and social limitations on how and where Black and other marginalized
people can live; exclusions which have outlived both chattel slavery and legally-countenanced
Jim Crow. Policing-based housing policies are only the newest tool that American communities
have developed to define the boundaries of who is allowed to live and thrive within their
borders, and thus who can shape and be shaped by living in these communities. By combining
the brutal efficiency of mass criminalization, the racism of the criminal legal system, and the
policies governing private rental housing, crime-free housing ordinances risk profound damage
to the physical, economic, and psychological well-being of its victims.
Exclusion is antithetical to social and economic equality. No community has the right to banish
marginalized people because of perceived threats to its identity or way of life. We have a
collective responsibility to create space in our communities for everyone. In order to fulfill this
responsibility, communities must grapple with the underlying motivations that feed the desire
to exclude. They will need to confront their fears and prejudices in order to replace exclusion
with inclusion.
V.Conclusion
Communities across the United States are beginning to acknowledge the racially disparate
impact and far-reaching harms caused by exclusions based on criminal legal system contacts.
As a result, there has been progressive movement towards inclusion in areas including
employment and political participation. But, for the most part, we have not paid sufficient
attention to the ways in which contact with the criminal legal system impacts people’s access to
housing. These ordinances trade on criminal legal system contacts and effectively expel people
of color. This expulsion is facilitating racial segregation. That, without more, is worrisome. But
segregation carries with it additional harms, including inferior education, increased crime, and
under- and unemployment. Understood in this way, crime-free ordinances are an engine for
racial and economic inequality. Failure to challenge the proliferation of crime-free housing
ordinances will exacerbate people of color’s exposure to poverty, crime, over-policing, and
incarceration. Ensuring the safety of all communities is critically important and should be a
priority. Everyone has a right to feel safe in his or her home or community. However, crime-free
housing ordinances will not make communities safer. They will continue to divide, further
entrenching racial bias and segregation.
119 See generally Deborah N. Archer, Exile From Main Street, 55 HARV. C.R.–C.L. L. REV. (forthcoming 2019).
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www.acslaw.org
About the Author
Deborah N. Archer is an Associate Professor of Clinical Law; Co-Faculty Director of the Center
on Race, Inequality, and the Law; and Director of the Civil Rights Clinic at New York
University School of Law. She is a nationally recognized expert in civil rights and racial justice .
Archer previously worked as an attorney with the American Civil Liberties Union and the
NAACP Legal Defense and Educational Fund, Inc., where she litigated in the areas of voting
rights, employment discrimination, and school desegregation. She was also a member of the
faculty at New York Law School and an associate at the firm Simpson, Thacher & Bartlett.
Archer is a graduate of Yale Law School. She currently serves as a member of the Board of
Directors and General Counsel to the Board of the ACLU and as the chair of the American
Association of Law School's Section on Civil Rights. She previously served on the New York
City Civilian Complaint Review Board, the nation’s oldest and largest police oversight agency,
and the 2018 New York City Charter Revision Commission.
About the American Constitution Society
The American Constitution Society (ACS) believes that law should be a force to improve the
lives of all people. ACS works for positive change by shaping debate on vitally important legal
and constitutional issues through development and promotion of high-impact ideas to opinion
leaders and the media; by building networks of lawyers, law students, judges and policymakers
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Study session meeting of June 8, 2020 (Item No. 1)
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Please note that this fact sheet is provided for informational purposes only, and should not be considered legal advice. | This project was supported
by Grant No. 2017-TA-AX-K052, awarded by the Office on Violence Against Women, U.S. Department of Justice. The opinions, findings, conclusions,
and recommendations expressed in this publication/program/exhibition are those of the author(s) and do not necessarily reflect the views of the
Department of Justice, Office on Violence Against Women.
Nuisance Ordinances and Their Impacts on Domestic Violence Survivors
An Introduction for Local Governments
Nuisance ordinances are local laws that often impose penalties (e.g., fines) on property owners for activity on their
property that is considered to be “nuisance” activity. While such laws are known for enforcing local rules such as lawn-
upkeep, these ordinances may also capture other conduct -- such as making a certain number of calls for police or
emergency assistance to a property within a particular time frame. In response to warnings or nuisance citations from a
city or town, property owners often evict renters to avoid penalties.
How Can Nuisance Ordinances Negatively Affect Domestic Violence Survivors and Other
Populations?
Depending on how specific ordinances are written and enforced, these laws may:
●Count incidents of domestic violence or calls to 911 for assistance as nuisance activity, subject to penalties.
●Miscategorize incidents of domestic violence (e.g., counting incidents as “noise complaints” or “criminal
activity”) that may count toward a nuisance designation.
●Discourage domestic violence survivors from calling for police or emergency assistance out of fear of eviction or
other penalties, forcing a choice between one’s housing and personal safety.
●Negatively affect persons with mental health disabilities and communities of color.
Can Enforcement of Nuisance Ordinance Violate Other Laws?
Yes -- again, depending on the specific ordinance or policy at issue, enforcement of nuisance ordinances against
domestic violence survivors and other populations may violate laws such as:
●The Fair Housing Act and similar state laws that prohibit sex, race, and disability discrimination;
●The Violence Against Women Act, which protects survivors of domestic violence, dating violence, sexual assault,
and stalking in federal housing programs;
●The U.S. Constitution, including one's First Amendment right to seek help from the government; and
●Any state laws prohibiting nuisance ordinances that adversely impact survivors or other populations.
Questions about whether a policy violates the law should be referred to an attorney familiar with the specific facts.
What if a Local Nuisance Law Has an Exception So That Domestic Violence Incidents are Not
Counted as “Nuisances”?
An exception for domestic violence incidents does not guarantee that survivors are protected from the negative impacts
of nuisance laws. As HUD pointed out in 2016 guidance, even in places where laws specifically exclude domestic violence
survivors or other crime victims, these victims may still be considered to have engaged in nuisance conduct because
“police and other emergency service providers may not log the call as domestic violence, instead categorizing it
incorrectly as property damage, disturbing the peace or another type of nuisance conduct.”
Training and Technical Assistance Available for Local Governments
To request training or technical assistance, please contact Renee Williams, rwilliams@nhlp.org.
1663 Mission St. Suite 460 San Francisco, CA 94103 | 415.546.7000
1025 Vermont Ave., N.W. Suite 606 Washington, D.C. 20005
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Meeting: Study session
Meeting date: June 8, 2020
Discussion item: 2
Executive summary
Title: Future study session agenda planning and prioritization
Recommended action: **Due to the COVID-19 emergency declaration, this item is considered
essential business and is Categorized as Time-Sensitive**
•The city council and city manager to set the agenda for the special study session scheduled for
June 15, 2020 and the regularly scheduled study session on June 22, 2020.
Policy consideration: Not applicable.
Summary: This report summarizes the proposed agenda for the special study session scheduled
for June 15, 2020 and the regularly scheduled study session on June 22, 2020.
Also attached to this report is:
- Study session discussion topics and timeline
Financial or budget considerations: Not applicable.
Strategic priority consideration: Not applicable.
Supporting documents: Tentative agenda – June 15 and 22, 2020
Study session discussion topics and timeline
Prepared by: Debbie Fischer, administrative services office assistant
Reviewed by: Maria Solano, senior management analyst
Approved by: Tom Harmening, city manager
Study session meeting of June 8, 2020 (Item No. 2) Page 2
Title: Future study session agenda planning and prioritization
June 15, 2020.
5:45 p.m. Special study session - To be held via videoconference
Tentative discussion items
1.2019 comprehensive annual financial report - auditors – Administrative services (30 minutes)
The city auditor (Redpath and Company) will present the annual audit results and opinion
issued on the 2019 Comprehensive Annual Financial Report.
**Due to the COVID-19 emergency declaration, this item is considered essential business and is
Categorized as Time-Sensitive**
June 22, 2020.
6:30 p.m. Study session - To be held via videoconference
Tentative discussion items
1.2021 budget and assumptions – Administrative services (90 minutes)
Continued discussion on 2021 budget and update on COVID impact on 2020 revenues and
expenditures.
**Due to the COVID-19 emergency declaration, this item is considered essential business and is
Categorized as Time-Sensitive**
2.Future study session agenda planning – Administrative services (5 minutes)
Communications/meeting check-in – Administrative services (5 minutes)
Time for communications between staff and council will be set aside on every study session
agenda for the purposes of information sharing.
Written reports
3.PPL’s application for TIF assistance related to Union Congregational Church project
4.COVID-19 pandemic update
5.May 2020 monthly financial report
Study session meeting of June 8, 2020 (Item No. 2) Page 3
Title: Future study session agenda planning and prioritization
Study session discussion topics and timeline
Priority Discussion topic Comments Timeline
1
Prioritizing transit options thru
investments, and engineering
and operations decisions
SS discussion 10/21/19. Next steps: staff reach out to
Metro Transit, bench company, and Met Council rep.
Update – staff met with Metro Transit Dec., 2019
In process
2 Climate crisis SS discussion re: climate action in time of COVID.
Discussed May 26, 2020 In process
3 Discuss public process
expectations and outcomes
Staff is working on the approach for undertaking this
discussion. TBD
4
Revisit housing setback, FRA, &
more to maintain and create
more affordable housing
TBD
5 Home-based businesses TBD
6 Public forums at council mtgs 9/23/19 SS. Staff is doing research of other cities. TBD
7 STEP discussion: facilities
Discussed on 1/14/19; city, STEP & school toured Central
Community Ctr and continuing discussions; 5/11/20
council asked staff to consider lending options to assist
STEP in buying a new building
TBD
8 Community and neighborhood
sidewalk designations TBD
9
Remove mint & menthol
exemption from existing
flavored tobacco policy
TBD
10
Easy access to nature, across
city, starting w/ low-income
neighborhoods
TBD
11 Conversion therapy ban TBD
12 Changes to sign ordinance TBD
13 WHNC Access Fund *On hold pending direction from school district.*On hold
Revitalization of Walker Lake
area
Part of preserving Walker building reports: 8/28/17,
9/25/17, 1/22/18, design study 2/12/18, update 4/23/18,
In process
Crime free ordinance/
affordable housing strategies
Discussed 5/14/18. 1st reading housing trust fund
10/1/18; Other affordable housing strategies/Crime Free
Ordinance – Nov/Dec, 12/10 & 12/17/18 & 1/14/19
council discussion; Certain provisions of crime free ord.
suspended; Work group formed; CFO work group
discussed on 3/25/19; Work group had 1st mtg in May,
two meetings in June, one in July and August. Meetings
on Sept 26, Oct 9, Oct 30, Nov 13, Dec 4.
June 8, 2020
Meeting: Study session
Meeting date: June 8, 2020
Written report: 3
Executive summary
Title: Update - PLACE’s Via project – mechanic’s lien
Recommended action: **Due to the COVID-19 emergency declaration, this item is considered
essential business and is Categorized as Time-Sensitive**
• No action required at this time.
Policy consideration: None at this time. Please inform staff of any questions you might have.
Summary: The EDA and PLACE E-Generation One, LLC entered into a Purchase and Redevelopment
Contract on May 1, 2017, for the redevelopment of the property to the north and south of the
proposed Wooddale LRT station (“Redevelopment Property”). Pursuant to subsequent amendments,
the parties revised the terms of the Contract to extend the construction dates of the required
North Components, and most recently amended and partially terminated the Contract to release
the parties from any obligations related to the property along the south side of the proposed LRT
station (“South Property”). This partial termination released the EDA from any obligation to sell
the South Property to PLACE and released PLACE from any obligation to build any part of the
redevelopment on the South Property. The EDA continues to own the South Property.
In 2019, while negotiations related to the South Property were still ongoing, PLACE engaged
LHB as an independent contractor to perform certain architectural and engineering work on the
South Property. LHB has not been fully paid for its work, and on March 10, 2020, LHB filed a
mechanic’s lien against the South Property in the amount of $257,439.13. EDA legal counsel has
determined that the mechanic’s lien was legally and validly filed against the South Property and
constitutes a lien against the South Property, despite the fact that PLACE does not own the
South Property. The Contract expressly provides that PLACE will not allow any liens to attach to
any portion of the Redevelopment Property during the term of the Contract, and therefore,
LHB’s filing of the mechanic’s lien constitutes an event of default under the Contract.
On March 23, 2020, EDA staff sent a Notice of Default to PLACE. To date, the majority of the
amount owed LHB remains outstanding, so the default remains uncured. PLACE has assured
EDA staff that it has made some progress payments to LHB and that it intends to pay the
balance by early July. Staff spoke with an LHB representative who confirmed that PLACE has
made some nominal payments and that it has made representations to pay LHB the balance
this summer. LHB has indicated to EDA staff that at this point, it is not inclined to exercise its
rights under the mechanic’s lien to commence foreclosure proceedings but reserves the right to
do so. By state law, LHB must commence foreclosure proceedings by November 15, 2020 if
PLACE does not pay the balance it owes. EDA staff has informed PLACE that due to PLACE’s
expectation of payment in full by early July, the EDA will not pursue any remedies against
PLACE at this time but reserves its rights to pursue its contractual remedies if the event of
default is not cured by July 31, 2020. Staff will continue to keep the EDA informed on this issue.
Financial or budget considerations: None at this point.
Strategic priority consideration: Not applicable.
Prepared by: Greg Hunt, economic development coordinator
Reviewed by: Karen Barton, community development director
Approved by: Tom Harmening, city manager and EDA executive director
Meeting: Study session
Meeting date: June 8, 2020
Written report: 4
Executive summary
Title: Billboard ordinance and policy
Recommended action: **Due to the COVID-19 emergency declaration, this item is considered
essential business and is Categorized as Time-Sensitive**
• None at this time. The purpose of this study session item is to provide an update on
research conducted regarding billboards.
Policy consideration: Does the city council wish to amend its policy in order to allow billboards
to be relocated or replaced when requested.
Summary: At a study session on May 29, 2018, the city council discussed a redevelopment
proposal for 6009 Wayzata Blvd. As part of the redevelopment, the developer, Davis Group,
wanted an existing billboard to be removed because it was in the way of their proposed
building. Clear Channel owns the billboard and has a permanent easement on the property.
They were willing to consider selling the billboard and easement, but the cost was more than
Davis group was willing to pay. Alternatively, Clear Channel was open to relocating the billboard
elsewhere on the property or to another property, or preferably entering into an agreement
that replaces one or more billboards with a digital billboard elsewhere. The zoning code
prohibits billboards. Existing billboards are legal, nonconforming uses. The code currently does
not allow the alternatives proposed by Clear Channel.
On May 29, 2018 city council directed staff to research and provide potential options for city
council consideration that may allow the billboards to be relocated. Staff studied a few options
that are included in the discussion section of the report.
In May 2020, Davis Group reengaged with the city and shared a revised development proposal.
The revised proposal has a smaller building and mostly surface parking. While the previous
proposal required the billboard to be removed to make way for the building, the current
proposal shows that the billboard, if it remained in place, would be located in the parking lot,
approximately 90 feet away from the proposed building. It appears to staff that the billboard
could remain in place, but Davis Group still finds the billboard is incompatible with the new
building. They intend to apply for a zoning code text amendment to allow billboards to be
relocated under certain circumstances.
Staff requests comments from the council responding to the following questions:
1. Is the council still interested in pursuing options to relocate billboards in the city?
2. Does council favor any of the options staff explored and describes in this report?
3. Would the council consider allowing electronic billboards as outlined in this report?
Financial or budget considerations: Not at this time.
Strategic priority consideration: Not applicable.
Supporting documents: Discussion; revised site plan; 5/29/18 staff report and meeting minutes
Prepared by: Gary Morrison, assistant zoning administrator
Reviewed by: Sean Walther, planning and zoning sup.; Karen Barton, community development dir.
Approved by: Tom Harmening, city manager
Study session meeting of June 8, 2020 (Item No. 4) Page 2
Title: Billboard ordinance and policy
Discussion
Background: At the May 29, 2018 council study session, the council reviewed a proposal for a
five story, 117,000-square-foot office building with a three-level parking ramp.
The council expressed general support for the development and a willingness to explore
options to remove the billboard so the project can proceed.
As requested by the council, staff researched options for relocating or replacing billboards
when required as part of a redevelopment.
Present considerations: The development proposal presented to the council on May 29, 2018
has been reduced in scope to a 77,000 square foot, three-story medical office building with 298
surface parking spaces. As a result of the reduced scale of the development, the billboard does
not now conflict with the office building to be constructed. The billboard, if it remained in
place, would be in the parking lot approximately 90 feet from the office building. Davis Group
still views the billboard to be incompatible with their proposed investment.
Davis Group intends to apply for a zoning code text amendment proposing language to allow
billboards to be relocated and replaced with electronic billboards in a manner similar to what
the City of Richfield allows. They will also submit development applications required for the
proposal.
While the May 29, 2018 council discussion indicated a willingness to explore options for
removing the billboard for the original proposal, staff would like to know if the council still
wishes to pursue possible code amendments to facilitate relocation of billboards in the city.
Existing billboards. The city began requiring permits for billboards in 1958 and began regulating
where they can be located and how large they could be in 1959. In 1983, the city placed a
moratorium on billboards, studied the issue, and later that year revised the regulations to
further limit where they could be placed. In 1989 the city prohibited billboards in all zoning
districts. All billboards in the city are currently legal, non-conforming uses. They cannot be
increased in size or impact (including conversion to electronic). They also cannot be relocated.
They can, however, be maintained so that they remain in good and safe condition.
There are currently 40 billboard signs in the city in 23 locations. Some of the locations have
more than one sign face. All of them are owned by Clear Channel. While the billboards are
scattered throughout the city, they are concentrated along Excelsior Blvd, Highway 7 west of
Louisiana Avenue South, I-394 and there are a few on Cedar Lake Road near Highway 100.
Options for billboards. Staff reviewed options for allowing billboards to be relocated or
replaced with digital sign faces for the council to consider. The following is a summary of the
options:
Option 1: No change. Developments must either work around existing billboards or remove
them as part of the redevelopment of the property.
When approving redevelopment projects, especially development that requires a conditional
use permit or planned unit development, any nonconformity or other items of noncompliance
Study session meeting of June 8, 2020 (Item No. 4) Page 3
Title: Billboard ordinance and policy
existing on the site must be brought into greater or complete compliance with city code to the
extent reasonable and possible. Further, any nonconformity which is reduced in size, intensity
or otherwise becomes more conforming may not again expand or become less conforming. The
city had to defend this ordinance in a case involving a Clear Channel billboard that went to the
State Court of Appeals as recently as 2004 (ASK v. CITY OF ST. LOUIS PARK).
Option 2: Change the zoning code to allow existing billboards to be moved/reconstructed in
certain locations. Billboards are currently not permitted anywhere in the city; therefore, the
council would have to amend the code to allow them in some locations. In some respects, this
would revert back to a version of the code that was in place from 1983-1989. This could result
in additional billboards being constructed in the city.
Option 3: Allow for an incentive in the nonconforming use ordinance. In this scenario, the
number of billboards would not be allowed to increase, and billboards could not be built in new
locations. The incentive would allow existing static billboards to be converted to electronic
billboards, provided other nonconforming billboards in the city are removed. The appropriate
formula for doing so would need to be determined. This allows flexibility for the owner of
multiple billboards to remove some number of static billboards in order to convert another
static billboard to an electronic billboard. While this option results in the installation of an
electronic billboard, it should result in the overall reduction in the number of billboards in the
city and would not push billboards into new areas of the city. The ordinance could be crafted to
target removal of billboards from specific areas of the city and permit the conversion of static
billboards to electronic billboards in parts of the city where they may be more acceptable, such
as along major highways and away from residential areas. The number of static billboards to be
removed to gain one electronic billboard varies from city to city, and ranges from 2:1 to 6:1
(static:electronic).
Option 4: Allow conversion to electronic signs by interim use permits. Some cities allow
billboards by interim use permits. This process is like a conditional use permit, but the permit
expires on a specific date or upon the occurrence of a certain event. Existing billboards could be
converted to electronic with an interim use permit, however, it would include a condition that
the sign must be removed by an agreed upon date or specific event. The city does not presently
use interim use permits at all, but cities have the authority to do so in Minnesota.
Next steps: Individual councilmembers may share questions or comments with staff regarding
the billboard options and respond to staff regarding the questions we have posed. This item is
not essential business, so we have not tried to schedule a study session discussion with city
council.
If Davis Group and/or Clear Channel apply for a zoning code text amendment, then it will
require city action and staff will engage with the applicant and process the request with the
planning commission and city council.
May 29, 2018 Submittal
Study session meeting of June 8, 2020 (Item No. 4)
Title: Billboard ordinance and policy Page 4
June 8, 2020 Submittal
Study session meeting of June 8, 2020 (Item No. 4)
Title: Billboard ordinance and policy Page 5