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In a letter to the ACLU, attorneys for the city blasts the civil rights group’s arguments as “unsubstantiated,” “inaccurate,” “contrary to law,” “deficient,” and “unfounded.”
In a letter to the ACLU, attorneys for the city blasts the civil rights group’s arguments as “unsubstantiated,” “inaccurate,” “contrary to law,” “deficient,” and “unfounded.”
In a letter to the ACLU, attorneys for the city blasts the civil rights group’s arguments as “unsubstantiated,” “inaccurate,” “contrary to law,” “deficient,” and “unfounded.”
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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.356June 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 FA10S356June 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 FA105.356June 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