Oakland Council Gives Cover To Wrongful Evictions

Oakland Council Gives Cover To Wrongful Evictions

By Lynda Carson Febuary 19, 2004

In a bizarre twist to Oakland's war on the renters, the City of Oakland moved to ensure that landlords have little to fear from conducting wrongful evictions if they cooperate with a new proposed nuisance eviction program being set up by the City of Oakland.

On Febuary 17 2004, the Oakland City Council voted to introduce a Nuisance Eviction Ordinance (NEO), which requires landlords to evict anyone that the City deems to be a nuisance within the City of Oakland. Final passage of the ordinance, is scheduled for another vote on March 2.

The ordinance applies to all that are renting commercial properties, condominiums, and rental housing units.

The council vote of 5 for the nuisance ordinance, with 1 against and 2 abstensions, seemed confusing because it normally takes 6 votes out of 8 for a new ordinance to pass, but with some legel shenanigans taking place behind the scenes, it was decided that 5 votes would be enough to bring this nightmare to life.

At the least, the City of Oakland has proposed an ordinance that would require landlords to evict renters that are accused of being a nuisance by the City of Oakland, and at most the City wants the right to go around the landlords and directly evict any individual or all renters being targeted as a nuisance.

If passed (NEO) the City intends to create a Nuisance Eviction Unit to go after renters that are deemed to be a nuisance by the City of Oakland. The City wants at least $300,000 to $358,000 to start the program, and expects results of at least 200 evictions or more per year in this city of 400,000 people. Los Angeles, a city of more than 3.5 million people, has it's own NEO, and on average only around 200 NEO evictions take place there annually.

Tempers flared during the Febuary 17 council meeting when many questions were raised about Section J, of the proposed ordinance, which Councilman Larry Reid refused to remove from the ordinance before the vote took place. Section J reads as follows;

J. EVICTIONS UNDER THIS SECTION DEEMED IN GOOD FAITH.
Any eviction notice served to or unlawful detainer brought against a Tenant pursuant to this Section O.M.C. 8.23.100 is deemed brought in good faith by the Owner and not wrongful for purposes of any of the remedies available to a Tenant pursuant to the Just Cause for Eviction Ordinance (O.M.C. 8.22.300, et seq.) irrespective of wether the Tenant, Owner, or City is the prevailing party.

Under Section J, even wrongful evictions are deemed to be in "GOOD FAITH" because Section J says so, and council members as well as community members blasted the proposed ordinance for it's short comings or propensity for abuse.

When Oakland Tenant Union member Dave Kavelchek stood before the city council and mentioned the concerns people had about the way Section J was worded, this got the attention of Councilwoman Jane Brunner.

"We are concerned that renters may not find a willing attorney to defend them if their evicted through the nuisance ordinance and that they will not have any recourse to recover attorney's fees in the event of a wrongful eviction because of the way Section J is written. We also fear that cases like what occured in the HUD 1 Strike Policy may occur, when grandmothers are blamed and evicted for what their grandchildren may be doing elsewhere," said Kavelchek.

Councilwoman Brunner then asked Deputy City Attorney Richard Illgen, if Section J is setting it up so that if someone prevailed, that they could not recover attorney's fees because we said the eviction was done in GOOD FAITH?

"It would make it probably very, very, difficult. It's a policy issue, not a legal issue, and it (section j) could be removed from the ordinance if you want," said Illgen. But, as a matter of course, it's removal never occured before the vote took place.

Councilwoman Brooks denounced the whole ordinance by saying, "I think that it is pretty significant when we, you know, if we lived in a perfect world and everything went perfectly, I could appreciate all the comments that have been made, but we don't, and things do happen and to have somebody go through an eviction proceeding and have no recourse at the end of it if it was done wrongfully, I don't understand! In the event that we make a mistake and someone's wrongfully evicted, we should offer them a means to recoup their loss, and I think it's pretty sad that we're not willing to do that.

Councilwoman Brooks was not alone in having bad feelings about what was occurring at the Febuary 17 council meeting.

"It does me shame that my city seems to be adopting the George Bush, John Ashcroft method of pre-emptive punishment. Without anyone being charged for a crime, now in Oakland we're gonna be evicting tenants based on presumptions," said James Vann of the Oakland Tenants Union.

Eddie Ytuarte, also a member of the Oakland Tenants Union proclaimed, "What we have very clearly in Oakland is nuisance landlords. Lots and lots and lots of nuisance landlords, and after years of going to council meetings I don't recall Larry Reid, Henry Chang or Ignacio De La Fuente ever doing anything for tenants," said Ytuarte.

In outright anger, Councilman Larry Reid ripped into Ytuarte on a personal level by replying, "You don't represent all the tenants in the City of Oakland, so don't make the kind of accusations you did, Eddie," said Reid.

To face eviction under the NEO, the City must first allege that the renters being targeted are caught up into some sort of nuisance or illegal activity, that may or may not be an actual real threat to the community at large.

Only time will tell wether the City plans to target the wealthy Hills People snorting up their ounces of snow flake cocaine, or the poorer flatlanders that may tend to smoke their rocks in a crack pipe.

If passed (NEO) as envisioned by it's backers, the City of Oakland may actually obtain the power to be able to directly serve eviction notices to individual renters anywhere in the City of Oakland, and even have the power to pick one renter out from a group of renters that may all be renting a residential or commercial property jointly.

In a December 10, 2003 document (NEO SUMMARY) signed by Councilmember Larry Reid, the councilmember recommends that the City Council urges the State Legislature to include Oakland in the California Health and Safety Code Section 11571.1. If that occurs, this would allow the City to get around the landlords by allowing Oakland's City Attorney to step into the shoes of the landlords and directly evict any of the tenants being targeted as a nuisance.

As envisioned by the backers of the NEO, the evictees will first be targeted as being a nuisance by the City of Oakland, and a designee of the City Managers Office would be authorized to create files on the persons being targeted for eviction from a variety of sources. Sources including, but not limited to the Oakland Police Department (OPD), police informants, anonymous witnesses, relatives, neighbors, landlords, or public agencies may be called upon to cooperate in the scheme against the renters to fully implement a nuisance eviction program.

As being proposed by the NEO, the OPD will notify the person designated by the City Manager when the renters of Oakland are arrested for alleged illegal activities, and at their own discretion City Officials will determine wether or not to target the renters as being a nuisance. The City will have the authority to notify the property owners or agents of the property owners if or when a renter has been arrested for the alleged illegal activities. It is expected that most of the information to be used to evict the renters will come from the OPD, and the information will become available to the landlords.

When the City believes that it has dug up enough dirt or collected enough damaging information in their files against the targeted renter, the City will notify the property owners or their agents and insist that they are required to evict the tenants for being a nuisance. The City will also notify the tenants being targeted as a nuisance with a notice stating that the City requires the landlord to evict them. At that point, the landlords are required to evict.

As proposed by the NEO, once the City demands that someone must be evicted, the property owners or their agents shall have up to 20 days to serve eviction notices to those being targeted by the City as a nuisance. The City may cite the landlords for maintaining a nuisance if eviction notices have not been served to those being targeted as being a nuisance and the landlords may face fines of up to a $1,000 a day.

In some cases the landlords may be allowed to have the City evict those being targeted as a nuisance, and then pay the legal fees being run up by the City.

The renters being targeted by the nuisance eviction program, need not be arrested, cited, or convicted of the conduct to justify removing the renters from any of the properties. Tenants may be arrested anywhere or not at all to face a nuisance eviction. Heresay may be used against the targeted renters, and the City is not required to reveal the names of any police informants or witnesses that may want to remain anonymous.

During 1997, the California Supreme Court has ruled that through the use of public nuisnace laws and injunctions, cities may even go as far as to prohibit suspected gang members from engaging in legal activities such as associating with one another on public street corners.

The ruling prompted a proliferation of efforts around the state to use public nuisance laws to ban all sorts of conduct, even outside the so-called gang activities, that have even led to attacks upon the homeless population up and down the coast of California.

The NEO allows for eviction for off-premises illegal drug activities if the City believes that the renters residence may be used in furtherance of the alleged illegal activities, but the NEO fails to place a geograghic limitation on where the alleged activities may have taken place.

The NEO, if passed is to be enforced as a companion to Oaklands draconian Public Nuisance Ordinance (PNO), which was adopted on November 4, 2003. The PNO targets people as a nuisance for such things as intentional obstruction of pedestrians or vehicular traffic, or acts of violence against the community, including, but not limited to making loud unusual noise that may disturb the peace and quiet of a neighborhood.

It may be possible that renters may be targeted as a nuisance for being part of a peaceful demonstration or protest that fills up a sidewalk or over flows upon the streets of Oakland.
Renters are liable for what their friends or relatives may do in or near the properties they rent.

If passed, the NEO and the PNO combined may allow the City of Oakland to require that landlords evict their tenants for a number of reasons that may be absolutely unconstitutional, or may even result in the City obtaining the power to target and directly evict any or all renters being accused of being a nuisance.

The expected impact of the NEO and PNO upon the City of Oakland if fully implemented, may result in a full scale witch hunt type of assault upon the low-income areas of the City to target the renters as being a nuisance by those that may profit in the gentrification of Oakland.