City of Farmers Branch Ordinance No. 2903

AN ORDINANCE REPEALING ORDINANCE 2892; ADOPTING REVISED APARTMENT COMPLEX RENTAL LICENSING STANDARDS, MANDATING A CITIZENSHIP CERTIFICATION REQUIREMENT PURSUANT TO 24 CFR 5 ET SEQ.; REPEALING ORDINANCE 2900; CALLING AN ELECTION FOR MAY 12, 2007, TO CONSIDER THIS ORDINANCE (FOR OR AGAINST); PROVIDING FOR ENFORCEMENT; PROVIDING A PENALTY CLAUSE; PROVIDING A SEVERABILITY CLAUSE; AND PROVIDING AN EFFECTIVE DATE.

WHEREAS, the City Council adopted Ordinance 2892 on November 13, 2006; and

WHERAS, the City Council was presented a Petition seeking the repeal of Ordinance 2892; and

WHEREAS, on January, 8, 2007, the City Council adopted Ordinance 2900 which submitted Ordinance 2892 for a public vote; and

WHEREAS, the City Council approved a Motion in open session at a public meeting on January 17, 2007, directing the City Attorney to draft an ordinance repealing Ordinances 2892 and 2900 and adopting revised apartment complex licensing standards regarding citizenship and/or immigration certification requirements; and

WHEREAS, the City Council wishes to repeal Ordinances 2892 and 2900 and adopt new and revised provisions relating to apartment complex licensing; and

WHEREAS, in response to the widespread concern of future terrorist attacks following the events of September 11, 2001, landlords and property managers throughout the country have been developing new security procedures to protect their buildings and residents; and

WHEREAS, the Fair Housing Act prohibits discrimination because of race, color, religion, sex, national origin, disability, and familial status in most housing related transactions and further makes it unlawful to indicate any preference or limitation on these bases when advertising the sale or rental of a dwelling; and

WHEREAS, the U.S. Department of Housing and Urban Development regulations stipulate that rental tenants must submit evidence of citizenship or immigration status consistent with 24 CFR 5, et seq.; and

WHEREAS, the Fair Housing Act does not prohibit distinctions based solely on a person’s immigration or citizenship status; and

WHEREAS, 24 CFR 5, et seq., the general HUD provisions, provide for a uniform and non-discriminatory certification process for citizenship and immigration status; and

WHEREAS, the HUD certification process has been in place for many years, and is currently in use; and

WHEREAS, the City was previously dismissed from the Walker litigation upon agreeing to participate in HUD’s Section 8 housing program; and

WHEREAS, the HUD certification process for citizenship and immigration status applies to HUD’s Section 8 program; and

WHEREAS, the City Council finds and determines that the benefits and protections provided through the HUD citizenship and immigration status certification processes would also benefit the City; and

WHEREAS, the City of Farmers Branch is authorized to adopt ordinances pursuant to its police power to protect the health, safety, and welfare of its citizens; and

WHEREAS, the City of Farmers Branch has determined that it is a necessity to adopt citizenship and immigration certification requirements for apartment complexes to safeguard the public, consistent with the provisions of 24 CFR 5, et seq.; and

WHEREAS, the City intends to adopt these provisions on a pilot basis for apartment complex rentals under Chapter 26, Article IV of the Code of Ordinances; and

WHEREAS, Section 26-118 of the Code of Ordinances provides for an appeal process that provides adequate due process for license holders; and

WHEREAS, the City will evaluate the success of these provisions within 180 days of the date this Ordinance goes into effect to consider their revision and/or expansion, including but not limited to the coverage of single family rental units and non-rental residential units; and

WHEREAS, the provisions adopted herein shall be applied uniformly and in a nondiscriminatory manner, and the application of these provisions must not differ based on a person’s race, religion, or national origin; and

WHEREAS, the City of Farmers Branch is authorized by law to adopt the provisions contained herein, and has complied with all the prerequisites necessary for the passage of this Ordinance; and

WHEREAS, all statutory and constitutional requirements for the passage of this Ordinance have been adhered to, including but not limited to the Texas Open Meetings Act; and

WHEREAS, this Ordinance was made available for public inspection on January 19, 2007, by posting on the City’s website; and

WHEREAS, the meeting at which this Ordinance was adopted was properly posted in accordance with the Open Meetings Act, and this Ordinance was considered and approved in an open meeting of the City Council, following a full and open public hearing regarding its terms and provisions; and

WHEREAS, the City Council finds and determines that submitting this Ordinance to a proper public vote would be most consistent with the democratic process as is allowed for by Section 11.06 of the City Charter; and

WHEREAS, the City Council finds and determines that the effective date of this Ordinance should be extended to May 22, 2007, to allow for the completion of the democratic process; and

WHEREAS, the purposes of this Ordinance are to promote the public health, safety, and general welfare of the public.

NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF FARMERS BRANCH, TEXAS:

That the following ordinance shall be approved and passed into law and duly codified in the City’s Code of Ordinances:

Section 1

That all matters stated hereinabove are found to be true and correct and are incorporated into the body of this Ordinance by reference as if copied in their entirety.

Section 2

That Ordinances 2892 and 2900 are hereby repealed in their entirety.

Section 3

Chapter 26, Businesses, Article IV, Apartment Complex Rental, is hereby amended as follows:

A. Section 26-116(d)(3)is hereby amended by the addition of the following:
"(c) Proof of compliance with the provisions of 26-116(f)."
B. Section 26-116, License Standards, is hereby amended by the addition of the following:
"(f). Citizenship or Immigration Status Verification

(1) Definitions
The following definitions, consistent with 24 CFR 5.504, are hereby adopted as part of this subsection:
Citizen means a citizen or national of the United States. Evidence of citizenship or eligible immigration status means the documents which must be submitted to evidence citizenship or eligible immigration status for residency in the United States.
Family means a head of household, any spouse, any parents of the head of household, any parents of the spouse, and any children of the head of household or spouse.
Head of household means the adult member of the family who is the head of the household for purpose of determining income eligibility and rent.
ICE means the Immigration and Customs Enforcement Department.
Mixed family means a family whose members include those with citizenship or eligible immigration status, and those without citizenship or eligible immigration status.
National means a person who owes permanent allegiance to the United States, for example, as a result of birth in a United States territory or possession.
Noncitizen means a person who is neither a citizen nor national of the United States.
(2) The owner and/or property manager shall require as a prerequisite to entering into any lease or rental arrangement, including any lease or rental renewals or extensions, the submission of evidence of citizenship or eligible immigration status for each tenant family consistent with subsection (3).

(3) Evidence of citizenship or eligible immigration status. The property owner and/or manager shall require of each family member, except for noncitizens who are minor children of the family or 62 years of age or older, the submission of the following evidence:

i. For U.S. citizens or U.S. nationals, the evidence consists of a signed declaration of U.S. citizenship or U.S. nationality. The verification of the declaration shall be confirmed by requiring presentation of a United States passport or other appropriate documentation in a form designated by ICE as acceptable evidence of citizenship status.
ii. For all other noncitizens, the evidence consists of:

a. A signed declaration of eligible immigration status;
b. A form designated by ICE as acceptable evidence of immigration status; and
c. A signed verification consent form.
iii. A mixed family may enter into a lease or rental arrangement if all of the following conditions are met:

a. The family is already a tenant;
b. The family's head of household or spouse has eligible immigration status as described in this section; and
c. The family does not include any person other than the head of household, any spouse of the head of household, any parents of the head of household, any parents of the spouse, or any minor children of the head of household or spouse
iv. Declaration. For each family member who contends that he or she is a U.S. citizen or a noncitizen with eligible immigration status, the property owner and/or manager shall require the submission of a written declaration, signed under penalty of perjury, by which the family member declares whether he or she is a U.S. citizen or a noncitizen with eligible immigration status.

a. For each adult, the declaration must be signed by the adult.
b. For each minor child, the declaration must be signed by an adult residing in the unit who is responsible for the minor child.
v. Verification consent form. Each noncitizen who declares eligible immigration status, except noncitizens who are 62 years of age or older, must sign a verification consent form as follows:

a. For each adult, the form must be signed by the adult.
b. For each minor child, the form must be signed by an adult residing in the assisted dwelling unit who is responsible for the minor child.
vi. Notice of release of evidence by owner and/or property manager. The verification consent form shall provide that evidence of eligible immigration status may be released by the owner or property manager without responsibility for the further use or transmission of the evidence by the owner or property manager receiving it, to:

a. The City as required by the City Code; and
b. ICE for purposes of verification of the immigration status of the individual.
vii. Notice of release of evidence by the City. The verification consent form also shall notify the individual of the possible release of evidence of eligible immigration status by the City. Evidence of eligible immigration status shall only be released to ICE for purposes of establishing eligibility under this section. The City is not responsible for the further use or transmission of the evidence or other information by ICE.

viii. Hearing before a Building Official. If denied occupancy because of immigration status, the family shall be entitled to a hearing before a City Building Official, or their designee, upon the submission of a written request for hearing to the Building Official within ten days of being denied occupancy.

ix. Examination of evidence. The family shall be provided the opportunity to examine and copy at the family's expense, at a reasonable time in advance of the hearing, any documents in the possession of the owner or property manager pertaining to the family's eligibility status, or in the possession of ICE (as permitted by ICE requirements), including any records and regulations that may be relevant to the hearing.

x. Presentation of evidence and arguments in support of eligible status. The family shall be provided the opportunity to present evidence and arguments in support of eligible immigration status. Evidence may be considered without regard to admissibility under the rules of evidence applicable to judicial proceedings.

xi. Controverting evidence of the owner and/or property manager. The family shall be provided the opportunity to controvert evidence relied upon by the owner and/or property manager and to confront and cross-examine all witnesses on whose testimony or information the owner and/or property manager relies.

xii. Representation. The family shall be entitled to be represented by an attorney, or other designee, at the family's expense, and to have such person make statements on the family's behalf.

xiii. Interpretive services. The family shall be entitled to arrange for an interpreter to attend the hearing, at the expense of the family.

xiv. Hearing to be recorded. The family shall be entitled to have the hearing recorded by audiotape (a transcript of the hearing may, but is not required to, be provided at the family’s expense).

xv. Hearing decision. The Building Official, or their designee, shall provide the family with a written final decision, based solely on the facts presented at the hearing, within 14 days of the date of the informal hearing. The decision shall state the basis for the decision.

xvi. Judicial relief. A decision against a family member, issued in accordance with paragraphs this section, does not preclude the family from exercising the right, that may otherwise be available, to seek redress directly through judicial procedures.
(4) General.

i. The owner and/or property manager shall request and review original documents of eligible citizenship or immigration status. The owner and/or property manager shall retain photocopies of the documents for its own records and return the original documents to the family. Copies shall be retained by the owner and/or property manager for a period of not less than two (2) years after the end of the family's lease or rental.

ii. The owner and/or property manager shall require that each family member submit evidence of citizenship or immigration status only once during continuous occupancy. The owner and/or property manager is prohibited from allowing the occupancy of any unit by any family which has not submitted the required evidence of citizenship or eligible immigration status under this Section.

iii. These provisions shall be applied uniformly and in a nondiscriminatory manner. The owner and/or property manager’s application of these provisions must not differ based on the person’s race, color, religion, sex, national origin, disability, or familial status.

iv. These provisions shall not impair any existing lease or rental agreement, including a) any contractually provided or obligated extensions thereof and b) any holdover period provided pursuant to an existing lease or rental agreement, and shall apply only to a lease or rental agreement entered into after the effective date of this ordinance. v. A rebuttable presumption is hereby created that the tenant is either a citizen or a documented alien upon the tenant presenting either a signed Declaration of U.S. Citizenship or U.S. Nationality and a United States passport or other appropriate documentation in a form designated by ICE as acceptable evidence of citizenship status, or by a non-citizen presenting a signed Declaration of Eligible Immigration Status and a form designated by ICE as acceptable evidence of immigration status.”

Section 4

If any section, paragraph, subdivision, clause or phrase of this Ordinance shall be adjudged invalid or held unconstitutional, the same shall not affect the validity of this Ordinance as a whole or any part of any provision thereof other than the part so decided to be invalid or unconstitutional. The intention of this Ordinance and the exercise of the police power of the City is not an attempt or effort to promulgate new and additional Immigration Laws or to conflict in any manner with the Federal Government’s promulgation and enforcement of Immigration Laws.

Section 5

That an election is hereby ordered for May 12, 2007, to consider:

“Ordinance 2903, amending the Apartment Complex Rental Ordinance to mandate citizenship certification requirements.

For the Ordinance
Against the Ordinance.”

Said election is being called and held pursuant to Article 11 of the City Charter, Section 11.06. None but legally qualified voters of said City shall be entitled to vote in said election.

The election shall be conducted with and simultaneous to the City’s general election of the same date, as provided for in Ordinance 2901. All polling places and voting schedules, including early voting, shall be held consistent with the general election.

Section 6

Penalty: That any person violating any of the provisions of this ordinance shall be deemed guilty of a misdemeanor and upon conviction thereof shall be fined in a sum not to exceed $500 and a separate offense shall be deemed committed upon each day during or on which a violation occurs or continues.

Section 7

The City shall distribute a copy of this Ordinance to the owner and/or property manager of all existing apartment complexes in the City. This ordinance shall become effective on the 22nd day of May, 2007.


Deemed Passed on May 21, 2007

Ordinance No. 2903, amending the Apartment Complex Rental ordinance to mandate citizenship certification requirements results were as follows:

Mayor Phelps stated that Ordinance No. 2903 was considered favorably, and is hereby declared that Ordinance No. 2903 is deemed passed in accordance with Section 11.11 of the Charter.

The canvassing of the election returns of May 12, 2007 occurred at the City of Farmers Branch city council meeting minutes for Monday, May 21, 2007.