can OUS ban EN Sine ct, (612) 337-9300 elephone ve Saint Poul (612) 337-9310 fax Grav Cu St. Cloud -wwowskernedy-graven.com CHART ERED ‘Aiimacve Acton, Equal Opportunity Employer ~ RopeRT A. ALSOP ‘tey a La Direc ia (62) 337.9204 Ema raop@ketmedy graven com June 11, 2018 VIA EMAIL ONLY Mr. Tan Bratlie (ibratlie@aclu-mn.org) Ms. Rachel Goodman (tgoodman@acluorg) Re: City of Faribault’s Response to Threatened Litigation Dear Mr. Bratlie and Ms. Goodman: 1am writing to you in response to your letter to me dated May 30, 2018. In your letter, you challenge the legality and constitutionality of the City of Faribault’s Rental Licensing Ordinance, Ord. No, 2017-13 (“the Ordinance”) and demand that the City commence the process to repeal the Ordinance by June 13, 2018. If the City refuses to initiate the repeal process for the Ordinance, you have threatened to commence an action in federal court challenging the Ordinance. " Because your conclusions concerning the legality of the Ordinance are unsubstantiated, inaccurate and contrary to law, the City will not be pursuing a repeal of the Ordinance as you have requested. ‘The ACLU appears to challenge the legality of the Ordinance on the following three grounds: 1, The Ordinance was purportedly adopted with discriminatory animus against black and Somali residents who were loitering downtown and the City anticipated an increase in crime if such activity were allowed to continue in the downtown area. 2. The Ordinance allegedly has a disparate adverse impact on black residents in the community because it denies housing opportunities to individuals with criminal records within the City, who disproportionately consist of members of the black community. 3. The enforcement of the City’s occupancy restrictions under the Ordinance allegedly results in a disparate adverse impact on Somali families because they are disproportionately more likely to be evicted from their homes for having a larger family in violation of the City’s occupancy standards. 257702 FALUS.356June 11, 2018 Page 2 The deficiencies in your analysis and conclusions are significant. The express purpose of the Ordinance is “to assure that rental housing in the City of Faribault is decent, safe and sanitary and is operated and maintained so as not to become a nuisance to the neighborhood or to become an influence that fosters blight and deterioration or creates a disincentive for reinvestment in the community.” (Section 7-36) Contrary to your contention, the Ordinance was not adopted to limit loitering in the downtown area by black or Somali residents or to curb a perceived increase in criminal activity resulting from their presence downtown, Instead, it was adopted as a legitimate police power of the City to regulate and control housing standards in rental units as ‘well as improve the safety of tenants by promoting strict enforcement of the crime free/drug free lease addendum required under the Ordinance. Since its enactment in 2014, the City has used the provisions of the Ordinance as a means of improving living conditions in scores of residential rental units throughout the City as well as significantly lowering incidents of crime throughout the City, both of which are directly correlated to the express purpose of the Ordinance. ‘Your conclusions concerning the disparate adverse impact from the City requiring criminal background checks of all tenants under Section 7-42 is similarly misplaced. Again, contrary to your incorrect and unsubstantiated conclusions, neither the plain wording of Section 7-42 nor the training provided to landlords by the City impose an absolute ban on renting to tenants with a criminal record, Instead, similar to the mandated criminal background checks for federally subsidized projects, the criminal background check required by the Ordinance is intended to assist private landlords in making informed decisions about the tenants who rent from them. In addition, landlords are specifically instructed during the mandatory training under the Ordinance how to use criminal background information in their rental decisions consistent with the requirements of the Fair Housing Act. In the absence of a direct prohibition in the Ordinance against renting to persons with a criminal record or a directive from the City requiring such a practice, the ACLU cannot maintain a claim against the City for any alleged disparate impact simply by requiring landlords to conduet a criminal background check for all tenants.' In addition, the City has never taken any adverse action against a landlord for simply renting their property to a tenant with a criminal record. The ACLU’s contention that the Ordinance unlawfully discriminates against the Somali community by enforcing the City’s well established and widely accepted occupancy restrictions is also deficient and unfounded. ‘The occupancy restrictions referenced in Section 7-40(h)(2) incorporate and are cor nt with the occupancy standards of the International Property Maintenance Code. Moreover, both the Fair Housing Act and the United States Supreme Court have permitted and have upheld reasonable restrictions on the maximum number of occupants in * Even ifa rental applicant were denied a unit based on his or her criminal record, itis unlikely that such a practice ‘would necessarily have a disproportionately greater impact on blucks versus any other races. ‘The percentage of blacks incarcerated for crimes or arrested in Rice County is virtually the same as the overall percentage of blacks in the County, As a result, any practice that rejects all rental applicants with criminal records would not necessarily disproportionately impact members of the black cammunity in Rice County. 5257702 FA10S356June 11, 2018 Page 3 a rental unit imposed by a governing authority based on health and safety reasons. According to 42 U.S.C. § 3607(b)(1) of the Fair Housing Act: "Nothing in this subchapter limits the applicability of any reasonable local, State, or Federal restrictions regarding the maximum number of occupants permitted to occupy a dwelling." In addition, in City of Edmonds v. Oxford H, Ine., 514 U.S. 725, 735 (1995), the United States Supreme Court held that "rules that cap the total number of occupants in order to prevent overcrowding of a dwelling plainly and unmistakably fall within § 3607(b)(1)'s absolute exemption from the FHA's governance.” Id. Therefore, the occupancy restrictions of Section 7-42 do not violate the nondiscrimination provisions of the Fair Housing Act. The ACLU’s Constitutional claim of a disproportionate disparate impact on Somali families resulting from the enforcement of the City’s occupancy standards is also unfounded. The occupancy standards are intended to be enforced in all rental units within the City regardless of the nationality or race of the tenant violating the Ordinance. Your letter provides no statistical information or data substantiating your assertion that the Somali community is disproportionately impacted by the occupancy standards. Ironically, in the four years since the Ordinance’s adoption in 2014, the City has not issued a single citation nor taken any adverse action against any landlord for a violation of the City’s occupancy standards under Section 7-427 Without any evidence that Somali families are disproportionately impacted by the City’s ‘occupancy standards, the City has no intention of repealing the Ordinance on this basis. Finally, your strong arm tactic of demanding immediate repeal of the entire Ordinance is both surprising and disappointing. ‘The City has cooperated with all requests for data related to your investigation of the Ordinance. Last year, the ACLU was fully aware of the City’s consideration and adoption of amendments to the Ordinance but you offered no comment, criticism or recommendations for changes to the Ordinance at that time. I have personally reached out to both of you in order to get an indication of your concems about the Ordinance but you have offered none until your letter of May 30". “In addition, Police Chief Andy Bohlen has had ongoing and productive communications with leaders of the Somali community about any concems they may have with regard to issues impacting Somali residents. None of the Somali leaders involved in discussions with Chief Bohlen have identified the issues raised in your letter to me. Finally, I was assured by Mr. Brailie that the ACLU does not automatically initiate suits against parties but rather generally attempts to work out solutions related to perceived problems with legislation. Consequently, your request for immediate repeal of the entire Ordinance or be subject to a federal lawsuit seems both extreme and unreasonable. The Ordinance is achieving its stated purpose of improving the condition and safety of rental units within the City. Your unsubstantiated concems about the implementation of the Ordinance by the City clearly do not * On occasion, the City’s inspector has pointed out situations to landlords where a mattress has been found in large closet within @ rental unit. ‘The informal notification of the situation to the landlord was not based on a violation of | the City's occupancy standards but rather for safety reasons since a person sleeping in the closet would not have any means of egress in case of a fire. Again, no adverse action was taken against either the landlord or the tenant by the City with regard to these situations, s2s70v2 FA105.356June 11, 2018 Page 4 necessitate a repeal of the entire Ordinance. Please feel free to contact me if you have any questions, Very truly yours, KENNEDY & GRAVEN, CHARTERED “Posh ha Robert A. Alsop ce: Mayor and City Council Tim Murray, City Administrator Scott Riggs, City Attorney 52577042 FAIOS-386