Hobson’s Housing Choice for Ex-Offenders

A Hobson’s choice can be “free choice” that enables and foments discrimination. The choice is to take something, or not, with no real alternative; there is no real choice. I recently experienced this dirty form of discrimination while applying for an apartment lease—it was a Hobson’s choice experience. I was disqualified from making an application because of my criminal record. I felt smeared like a slopped hog.

The preapplication for Blue Rock Village (a contextually ironic name) listed “4 Automatic FAILS” for rental approval:

1. Bankruptcy
2. Outstanding balance owed on previous rental
3. Eviction history
4. Criminal record

When I volunteered that I have a criminal record, the person I met with, who heretofore had been bubbly and bright, turned ashen in color and nervous in affect. “Well then, I cannot take your application.”

I explained that I’ve been out of prison for almost twelve years. My friend, who witnessed this exchange, stoically gave a brief and sincere review of my good citizenship, to no avail. The Blue Rock employee simply looked sheepishly back at me. “Well, even if you have a DUI, the rule is the same. I am sorry; that’s the rule.”

Although I left the rental office feeling dejected, I was also motivated to find out if there is such a rule allowing the summary exclusion of people with criminal records from renting an apartment. I was living in the middle of a sudden prison-reform storm that began to consume me. I experienced an uncomfortable mental lockdown reminiscent of being in prison.

Open Letter to Blue Rock Village

Here’s the letter I wrote to the apartment management:

Dear Blue Rock Village Management,

On January 21, 2017, I was denied the opportunity to apply for an apartment in your complex. I was summarily told that I could not fill out an application because I had a criminal record.

Your organization acted in violation of the California Fair Employment and Housing Act (FEHA) and the Unruh Act by refusing to allow me to make an application for renting an apartment at your Blue Rock Village complex. These acts expressly provide that it is unlawful to refuse to rent to an individual based on membership in certain listed protected classifications. In California, people with criminal backgrounds are considered a protected class for purposes of housing.

I draw your attention to Marina Point v. Wolfson, (1982) 30 Cal.3d 721, wherein the California Supreme Court interpreted the Unruh Act to prohibit any arbitrary, exclusionary discrimination, not just discrimination against the categories listed in the law (age, race, color, and so on). Quoting from the Marina Point decision: “identification of particular bases of discrimination— color, race, religion, ancestry and national origin— [in the current version of the act] . . .  is illustrative rather than restrictive” (Emphasis added). The court goes on to artfully explain that the Unruh Act prohibits business establishments, including landlords, from withholding their services opportunities from a broad class of individuals to “cleanse” their operations from the alleged characteristics of the members of an excluded class. [30 Cal.3d 725]

Therefore, disqualification for residency based on criminal background could be considered unlawful arbitrary discrimination unless it relates to the prospective resident’s ability to meet tenancy obligations. The knee-jerk reaction of your rental agent to dismiss my good-faith goal to show my ability to meet your tenancy obligations was discriminatory.

Conclusions:

1. The Unruh Act, considering its broad application to “all business establishments,” has been held to apply with full force to the business of renting housing accommodations. (See, e.g., Swann v. Burkett (1962) 209 Cal. App. 2d 685)
2. There is no justification for Blue Rock to attempt to legitimate its discriminatory policy. Blue Rock asked for no facts or information about me to argue that its policy achieves any legitimate goal of protecting the safety of other tenants, or protecting its property. Blue Rock’s upfront exclusion policy has the same effect as excluding people with blue eyes from applying for residency.
3. Blue Rock gave no substantive reasons to support its criminal history policy at the time I attempted to make an application.
4. Your company’s denial of my constitutional rights to apply for an apartment are in violation of the April 4, 2016, U.S. (HUD) Office of General Counsel Guidance on the use of criminal records in housing and real estate–related transactions.

Based on the above, I suggest that you refer my letter to your legal counsel. You should have your attorney address Blue Rock’s policy of excluding every applicant with any criminal background, without regard to the offense’s relationship to the applicant’s ability to meet tenancy obligations. Your current policy runs afoul of .

The courtesy of a response within 30 days of this letter is requested to avoid my filing a complaint with the California Department of Fair Employment & Housing seeking appropriate damages.

Sincerely,

Mark E. Roseman

Your Input Is Requested

I want to hear from you.

• Have you, or someone you know, had a similar experience as mine?
• Please share any similar experiences you are aware of that raise housing prison-reform issues or other Hobson’s choice situations.
• This is a case where prison reform is written into California law but being ignored by a housing facility. What other instances are you aware of where prison reform laws are being ignored?

Thank you, readers, for sharing your experiences. I will keep you updated on Blue Rock’s response and any further action I may be taking based on their reply.

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