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HARRISON
BENIS &
SPENCE, LLP
ATTORNEYS AT LAW
2033 sixth Avenue Suite 1040
Seattle, WA 98121-2532
FAX (206) 448-1843 (206) 448-0402
Christopher T. Benis
James C. Harrison*
Michael A. spence
Evan L. Loeffler
*Also IIdmittlld in O.1if'ørnill
January 31, 2005
City Council
CITY OF AUBURN
25 West Main
Auburn, WA 98001-4998
Re: Amendments to Ordinance 5651 (Crime Free Housing)
Dear Council Members:
The over 3,500 members of the Rental Housing Association of Puget Sound wish to
register their comments and concerns as the city deliberates amendments to Ordinance
5651. While we applaud efforts to provide safe housing to tenants, and agree that
landlords should consider impacts on the community in making rental decisions, RHA
believes that the concept of mandatory licensing of rental property owners and
managers is fundamentally flawed and constitutionally prohibited. We believe that such
an ordinance will eventually be struck down by a reviewing court.
The above notwithstanding, we wish to present the following policy recommendations
and ask that the proposed amended ordinance be further revised to reflect them (note:
these comments refer to the September 8, 2004 draft, which is the most recent version
in our possession). Our comments are as follows:
Definitions:
The definition of Residential Unit should be amended to clearly exclude short-tlsrm
rentals (less than 60 days). It is quite common for sellers of real estate to leasls-back
their homes for a few days or for buyers to lease a home for early occupancy prior to
closing. These sorts of short term rentals are probably not intended to be restricted by
your ordinance. Other short term rentals should also be excluded. You may also want
to clearly exclude room rentals from the ordinance.
The definition of Ongoing Criminal Activity is overbroad and should exclude anjlthing
other than violent crime. If there are 3 car-prowls in the parking lot, what is the property
owner expected to do?
The definition of Ongoing Nuisance Activity is also overbroad. If three different
neighbors call the city about overgrown vegetation, is the property owner now within the
ambit of the ordinance? What if the problem is promptly corrected? What if a neighbor
City of Auburn - 2
January 14, 2005
is complaining about a loud tenant? The ordinance remains overbroad and pl)tentially
sweeps many property owners within its restrictions.
The ordinance does not even contain a requirement that the property owner has had
knowledge of the problem or an opportunity to cure before the ordinance begins to
regulate his or her conduct. These provisions should be added.
Business License:
The ordinance requires a "rental housing business" to obtain a license but thall term is
never properly defined. If property is managed by a third party, who is required to
obtain the license (the owner, the manager, or both)? Is a professional property
management company required to carry a license of each property or a single one for
operation in the city? What about multiple parties sharing ownership. If four unrelated
persons own a building as tenants-in-common, the ordinance as currently written
requires four individual licenses.
Also, there should be a grace period before the license requirement applies. Many
persons buy existing properties with tenants in place. Is the city intending to mquire
that a license be obtained before a transaction closes? Similarly, the ordinanc:e
provides that the license is not transferable. What happens in case of death or other
involuntary transfer? What about purchases at foreclosure auctions or seller contract
forfeitures? The current language will make a lot of well meaning persons criminals,
who will likely have no knowledge of the ordinance, nor will they have had an
opportunity to voluntarily comply.
Rental HousinQ Business License. Criteria:
The ordinance never makes it clear what sort of participation it mandates. In theory, an
owner must attend any seminar, on any schedule that the police department slses fit to
demand (see § 1).
The city can insist upon any "city directed crime prevention strategy." Except for
conclusory language, there is no meaningful definition of what this may mean in
practice.
Each subsection of this section of the ordinance lies on questionable legal ground. In
any other area of business or professional conduct, what authority does a local official
to direct business practices?
License - Revocation:
Subsection 'b' should be deleted. Landlord-tenant disputes are common. A single
minor incident may serve to disqualify an individual rental property owner from owning
in Auburn. Under this ordinance, a tenant's successful prosecution of a $100 damage
deposit dispute against a landlord would disqualify that person from managing property
in Auburn.
Subsection 'c' should'be deleted so that the revocation only applies if there is f,ailure to
cure the defect and all appeals have been exhausted.
City of Auburn - 3
January 14, 2005
Section B should clarify the exact action required to be undertaken to "completely
vacate" a building. How, exactly, is a landlord to accomplish a tenant's vacatil)n of the
premises if the tenant does not wish to leave? Even if there were legal ground to
accomplish it, a typical eviction in King County takes approximately one month.
Duty to Comply with applicable laws:
Although the proposed amendments at least identify "rental housing" related violations
as grounds for revocation, the provisions remain inordinately restrictive. Essentially, the
proposed ordinance states that if the landlord lets the dumpsters overflow in violation of
local ordinances, such a violation "shall constitute grounds for revocation of the
business license."
Violation - Penalty:
RHA believes that many well meaning, well intentioned property owners and managers
will inadvertently violate the ordinance (failure to register, etc...). While reasonable civil
penalties may be appropriate after individuals receive notice of violations, an
opportunity to remedy, and all appeals are exhausted, criminal charges are excessive
and not calculated to achieve the goals of the ordinance which are sound, safE~ housing
for all of Auburn's citizens.
SUMMARY
The civically responsible rental housing community of the Puget Sound region
recognizes the special problems of certain municipalities in controlling dangerous third-
party criminal conduct. RHAPS members have worked closely with many municipalities
in the region in developing voluntary programs that have a meaningful impact. We
likewise support complaint-based inspection programs. We believe that residents are in
the best position to determine when they want their dwellings entered and inspected by
government officials, many of whom may have conflicting agendas.
Unfortunately, Auburn's ordinance No. 5651 has gone in a different direction. The
proposed amendments, while addressing some of the drafting flaws and ambi~ uities in
the original, remains a substantial disincentive upon reasonable property owners from
managing property in Auburn. The proposed revisions remain ambiguous and
overbroad in many respects.
Very truly yours,
HARRISON, BEN IS & SPENCE, LLP
Christopher T. Benis
cc: The Hon. Peter Lewis, Mayor
RHAPS