Ordinance 3275CITY OF ALAMEDA ORDINANCE NO. 3275
New Series
AN URGENCY UNCODIFIED ORDINANCE (A) IMPOSING WITHIN
THE CITY OF ALAMEDA A TEMPORARY MORATORIUM ON (1)
RESIDENTIAL AND COMMERCIAL EVICTIONS DUE TO OR
DURING THE COVID-19 PANDEMIC, (2) LANDLORDS' SHUTTING
OF UTILITIES IN RESIDENTIAL AND COMMERCIAL RENTAL UNITS
EXCEPT FOR EMERGENCY SITUATIONS AND ESSENTIAL
ACTIVITIES, AND (3) RENT INCREASES FOR FULLY REGULATED
RESIDENTIAL RENTAL UNITS UNTIL JANUARY 1, 2021, AND (B)
REPEALING ORDINANCE NO. 3273.
WHEREAS, Section 3-12 of the City Charter authorizes the City Council, with a
4/5 vote, to adopt, as an urgency measure, an ordinance for the immediate
preservation of the public health or safety without following the procedures otherwise
required prior to adoption of an ordinance; and
WHEREAS, Government Code Section 36937 allows a city, including a charter
city, to adopt an urgency ordinance to take effect immediately upon its adoption for the
preservation of the public peace, health or safety upon a finding of facts constituting the
urgency thereof; and
WHEREAS, conditions of extreme peril to the health, safety and welfare of persons
have arisen in the world, the nation, the State, the County of Alameda and the City of
Alameda due to the following:
A novel coronavirus (named COVID-19 by the World Health Organization) was first
detected in December 2019. The Center for Disease Control and Prevention (CDC) has
stated that COVID-19 is a serious public health threat, based on current information. Cases
of COVID-19 have been diagnosed throughout the world, the United States, the State of
California, the County of Alameda and the City of Alameda.
The exact modes of transmission of COVID-19, the factors facilitating human to
human transmission, the extent of asymptomatic viral shedding, the groups most at risk of
serious illness, the attack rate, and the case fatality rate all remain active areas of
investigation. The CDC believes, at this time, the symptoms appear two to fourteen days
after exposure. Currently, there are no vaccine or specific anti-viral treatment for COVID-
19.
Actions are being taken to protect public health and limit the spread of COVID-19
but whether those actions will be successful is unknown at this time.
Due to the COVID-19 pandemic, the President of the United States has declared a
national emergency, the Governor of the State of California has declared a State of
Emergency for the State and issued numerous Executive Orders to protect the public,
County Health Officers throughout the State, including the County of Alameda, have also
issued orders and directives in an effort to protect the public, and, on March 17, 2020, in
response to the COVID-19 pandemic, the City Council of the City of Alameda declared a
local emergency as set forth in Ordinance No. 3267; and
WHEREAS, as a result of these various declarations, orders and directives, and the
threat to public health and safety due to the contagious nature of COVID-19, residents
Statewide have been ordered to shelter in place, public and private gatherings of persons
have been prohibited, schools, kindergartens, and day care centers have been closed, non-
essential service businesses have been shuttered, and essential service businesses may
have their hours or means of operation curtailed, all of which have had significant financial
impacts to residents and businesses in the community; and
WHEREAS, many employers have laid off or will need to lay off employees, working
Alameda residents with children may be compelled not to work in order to provide care for
their children, and many Alameda residents who are working and become ill due to COVID-
19, or who must self-quarantine due to COVID-19 because they have been exposed to
COVID-19, do not have paid sick leave; and
WHEREAS, most commercial tenants have been ordered to shutter their
businesses and even commercial tenants of businesses providing "essential services" may
suffer economic losses, thereby depriving all commercial tenants of an income stream to
pay rent and utilities; and
WHEREAS, those residents financially impacted due to the COVID-19 pandemic
may not be able to pay rent or their mortgage, or be faced with the Hobson's Choice of
paying rent/mortgage and not having sufficient funds for food, medical care or other
necessities for themselves and their families; and
WHEREAS, tenants, whether financially impacted due to the COVID-19 pandemic
or otherwise, could be evicted based on an owner move in or an unconditionally approved
Capital Improvement Plan (subsections E and G, section 6-58.80, Alameda Municipal
Code) ("no fault evictions"); and
WHEREAS, residents unable to pay rent or the mortgage under these
circumstances, or tenants subject to no fault evictions, would be faced with the prospect of
being evicted from their homes; and
WHEREAS, commercial tenants financially impacted due to the COVID-19
pandemic may not be able to pay their rent and also face the possibility of eviction; and
WHEREAS, the Governor of the State of California has issued Executive Order N-
28-20 that, in part, suspends any provision of state law that would preempt or otherwise
restrict a local government's exercise of its police powers to impose substantive limitations
on residential or commercial evictions when the basis for the eviction is non-payment of
rent or foreclosure arising out of a substantial decrease in household or business income
arising out or caused by the CO VI D-19 panoemic; and
WHEREAS, that Order also requests financial institutions holding home and
commercial mortgages, to implement an immediate moratorium on foreclosures and on
foreclosure-related evictions when a foreclosure or a foreclosure-related eviction arises out
of a substantial decrease in household or business income, or substantial out of pocket
medical expenses, arising out of or caused by the COVID-19 pandemic, or by any local,
state, or federal government response to COVID-19; and
WHEREAS, the U.S. Department of Housing and Urban Development, in
consultation with the Trump Administration and the Coronavirus Task Force, has
authorized the Federal Housing Administration to implement an immediate foreclosure and
eviction moratorium for single family homeowners with FHA-insured mortgages, thereby
halting all new foreclosure actions and suspending all current foreclosure actions for these
properties; and
WHEREAS, due to the COVID-19 pandemic in the City of Alameda, the public
health, safety and welfare are not adequately protected from the possibility of evictions
for the failure of a residential or commercial tenant to pay rent, for evictions following a
foreclosure of a mortgage or for no fault evictions, and it is in the interest of the City, all
residential and commercial tenants, all residential and commercial mortgagors, and of
the community as a whole, that the City adopt an ordinance to protect residential and
commercial tenants, and residential and commercial mortgagors, who face eviction
due to a substantial loss of income or other adverse economic circumstances, arising
out of the CO VI D-19 pandemic, and to protect residential tenants from no-fault
evictions during the COVID-19 pandemic; and
WHEREAS, if a landlord were to shut off a residential or commercial tenant's utility
for reasons unrelated to an emergency or unrelated to "Essential Activities" as that term
is defined in the Alameda County Public Health Order No. 20-04, dated March 31, 2020,
such shut off would also cause a residential tenant to be displaced from the tenant's rental
unit at a time when residents are being required to remain in their residences and finding
alternative housing would expose tenants unnecessarily to COVID-19 and, in the case of
a commercial tenant, would cause the commercial tenant to shutter the business that
would negatively impact the tenant and the tenant's employees; and
WHEREAS, in light of the numerous serious concerns set forth herein, including
but not limited to the current and immediate threat to the health, safety, and welfare of
the City's residential and commercial tenants and mortgagors, and the adverse
impacts that would result from evictions due to a residential or a commercial
tenant's loss of substantial income or other adverse financial circumstances
arising out of or during the COVID-19 pandemic, or from a residential or commercial
tenant being displaced or forced to shut down a business due to utilities being shut
off for non-emergency or non-Essential Activity purposes, the City Council determines
it is in the interest of immediately preserving the public health, safety and general welfare
to adopt this urgency ordinance; and
WHEREAS, the City Council finds and determines that, if a temporary
moratorium on evictions from residential rental units due to a resident's loss of
substantial income arising out of the consequences of the CO VI D-19 pandemic were
not imposed now, the public health, safety and welfare will be immediately threatened
because tenants would have no affirmative defense in response to a landlord's taking
action to evict tenants who were unable to pay rent due to a substantial loss of income
or other adverse financial circumstances arising out of the COVID-19 pandemic, who
were being evicted following a foreclosure of a mortgage, or who were subject to a no
fault eviction; and
WHEREAS, the City Council finds and determines that, if a temporary
moratorium on commercial evictions due to loss of substantial income arising out of the
consequences of the COVID-19 pandemic were not imposed now, the public health,
safety and welfare will be immediately threatened because commercial tenants would
have no affirmative defense in response to a landlord taking action to evict commercial
tenants who were unable to pay rent due to a substantial loss of income or other
adverse financial circumstances arising out of the COVID-19 pandemic, or who were
being evicted following a foreclosure of a mortgage, and promoting stability amongst
commercial tenancies is critical to protecting public health; and
WHEREAS, the City Council finds and determines that, if a temporary
moratorium on landlords' shutting off a residential or commercial tenant's utilities for
non-emergency or non-Essential Activity purposes is not imposed now, the public
health, safety and welfare will be immediately threatened because residential tenants
will be forced to leave their rental units to find alternative housing, thereby causing
them and their households to be unnecessarily exposed to COVID-19 and, in the case
of commercial tenants, such tenants would be forced to shutter their business causing
significant financial harm to the tenants and their employees; and
WHEREAS, in response to community concern that rents in Alameda were
rising at a rate greater than household income, the City Council has adopted a number
of rent control ordinances, the most recent of which was adopted on September 17,
2019 (Ordinance No. 3250); and
WHEREAS, Ordinance No. 3250 in part provides that (a) for rental units subject
to local rent control, e.g., multi-family units for which a certificate of occupancy was
issued prior to February 1, 1995, landlords shall not increase rents by more than the
Annual General Adjustment (AGA), (b) the AGA means 70% of the percentage change
in the Consumer Price Index for the 12-month period ending April of each year, (c) the
AGA between September 1, 2019 and August 31, 2020 is 2.8%, and (d) the Rent
Program Administrator is to announce in May 2020 the AGA for September 1, 2020
through August 31, 2021; and
WHEREAS, given that many Alameda tenants have suffered or will suffer
significant financial impacts resulting from the COVID-19 pandemic, whether directly
or indirectly, which impacts are likely to last for months beyond the rescission of the
Declaration of the State and/or Local Emergency, and that any rent increases during
the remainder of 2020 therefore threaten the public health, safety and welfare of
Alameda tenants, including seniors, those on fixed incomes, those with very low, low
or moderate incomes, and those with special needs, to the extent that such persons
may be forced to choose between paying rent, even after the Declaration of the State
and/or Local Emergency has been rescinded, and providing food, clothing, medical
care or child care for themselves and their families; and
WHEREAS, rent increases during the remainder of 2020 threaten to displace
households at a time when households are being directed to shelter in place, thereby
making it extremely difficult for households to find alternative housing and, even when
the shelter in place directives are lifted, rent increases during the remainder of 2020
would still threaten to displace households because many households may not have
employment for some time and even those households who do return to work will need
time to recover financially; and
WHEREAS, for reasons set forth above, this ordinance is declared by the City
Council to be necessary for preserving the public welfare, health, or safety and to avoid
a current, immediate and direct threat to the health, safety, or welfare of the
community, and the recitals above taken together constitute the City Council's
statements of the reasons constituting such necessity and urgency; and
WHEREAS, adoption of this ordinance is exempt from review under the California
Environmental Quality Act: Section 15378 (not a project); and Section 15061 (b) (3) (no
significant environmental impact); and
WHEREAS, by the staff reports, testimony, and documentary evidence presented at
the March 17, 2020, April 7, 2020, and April 21, 2020 City Council meetings, the City
Council has been provided with additional information upon which the findings and
actions set forth in this ordinance are based.
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF
ALAMEDA does ordain as follows:
SECTION 1. The City Council finds and determines the foregoing recitals to be
true and correct and hereby incorporates them into this ordinance.
SECTION 2. From the effective date of this urgency ordinance the following
is adopted:
(A) SUBSTANTIVE EVICTION DEFENSE TO RESIDENTIAL AND COMMERCIAL
UNLAWFUL DETAINERS INSTITUTED (1) FOR NON-PAYMENT OF RENT
RESULTING FROM THE COVID-19 PANDEMIC, (2)TO EVICT FOLLOWING
A FORECLOSURE OF A MORTGAGE RESULTING FROM THE COVID 19
PANDEMIC, OR (3) FOR CERTAIN "NO FAULT" EVICTIONS (B)
PROHIBITING LANDLORDS FROM SHUTTING OFF A RESIDENTIAL OR
COMMERCIAL TENANT'S UTILITIES EXCEPT FOR EMERGENCY
SITUATIONS AND PERFORMING ESSENTIAL ACTIVITIES, AND (C)
PROHIBITING LANDLORDS OF FULLY REGULATED RESIDENTAL
RENTAL UNITS FROM INCREASING RENTS UNTIL JANUARY 1, 2021.
1. For purposes of this Ordinance, the following terms shall have the following
meanings:
A. Substantial Loss of Income for a residential tenant shall a mean (1) a
reduction of 20% or more of a tenant's monthly gross income, when that
monthly gross income is compared to the tenant's average gross monthly
income during calendar year 2019; (2) extraordinary out-of-pocket medical
expenses; or (3) extraordinary child care needs arising from school or
childcare closures, relating to or resulting from the COVID-19 pandemic,
including but not limited to, the need to remain off work due to COVID-19
symptoms of the tenant or a member of the tenant's household or due to
the need of the tenant to self-quarantine because of the exposure to
COVID-19 and the lack of paid sick leave, a reduction in the number of
hours for which the tenant is paid, job loss due closure of the enterprise,
business, restaurant, office, store etc. that employed the tenant, or the need
to be off work to care for children whose School is closed.
B. Substantial Loss of Income for a commercial tenant shall a mean (1) a
reduction of 20% or more of a commercial tenant's monthly gross income,
when that monthly gross income is compared to the tenant's average gross
monthly income during calendar year 2019; or (2) extraordinary business
expenses necessarily incurred, including but not limited to, the need to pay
employees to remain off work due to CO VI D-19 impacts on the employees
or a member of the employees' household or reductions in business
operations in compliance with governmental order to close, provide social
distancing or shelter in place.
C. School shall mean any public, private, or parochial institution that provides
educational instruction and/or after school programs for students in any or
all of the grades from kindergarten through twelfth grade, any State licensed
child care center, and/or any State licensed family day care center. ·
D. Fully regulated residential rental units shall mean residential rental units for
which the rents are not pre-empted from local rent control and for which the
just cause eviction provisions of Ordinance No. 3250 apply, and that are not
exempt from the provisions of Ordinance No. 3250 as set forth in Section 6-
58.20, Alameda Municipal Code.
E. No fault eviction shall mean an action that a landlord takes to terminate a
tenancy based on either an owner move in (Section 6-58.80 E, Alameda
Municipal Code) or on an unconditionally approved Capital Improvement
Plan (Section 6-58.80 G, Alameda Municipal Code).
2. It shall be a defense in any eviction action instituted under State law against
any residential or commercial tenant if:
A. The eviction action is instituted {1) for non-payment of rent or, as to a
Section 8 Program tenant, for non-payment of the tenant's share of the
contract rent, (2) following a non-judicial or judicial foreclosure of a
mortgage, or (3) for a no fault eviction, for the time period between on March
1, 2020 and 30 days after the conclusion of the COVID-19 pandemic as
evidenced by the City rescinding its declaration of local emergency;
B. As to (1) and (2) in subsection A, the tenant demonstrates by substantial
evidence that (1) the tenant, the tenant's household or the tenant's business
has suffered a Substantial Loss of Income, (2) the tenant is or was ill with
CO VI D-19 or caring for a household or family member who is or was ill with
CO VI D-19 or (3) in the case of a commercial tenant, a substantial number
of its workforce is or was ill with CO VI D-19 or is or was caring for a
household or family member who is or was ill from COVID-19 and
C. The notice to quit or pay rent, the no fault eviction notice or, a notice to quit
following a foreclosure, was served on or after March 1, 2020.
3. Notwithstanding the time period in subsection A of this Section 2, the
substantive defense set forth in subsection A of this Section 2 shall be available to
residential and commercial tenants, and to residential and commercial mortgagors,
between March 1, 2020 and 21 0 days after the conclusion of the COVID-19
pandemic as evidenced by the City rescinding its declaration of local emergency,
as further explained by implementing regulations. This substantive defense shall
not be available for the non-payment of rent, to a no fault eviction, or to an eviction
proceeding following a foreclosure that occurred before March 1, 2020, nor the
non-payment of rent, a no fault eviction, or an eviction proceeding following a
foreclosure that accrues 30 days after the City rescinds its declaration of local
emergency.
4. Nothing in this Ordinance shall relieve any tenant of liability for unpaid rent,
whether such rent accrued before March 1, 2020, during the City's declaration of
a local emergency as set forth in Ordinance No. 3267 or thirty days after the City's
rescission of the declaration of the local emergency. A landlord shall not, however,
charge or collect a late fee for rent that is delayed for the reasons stated in this
Ordinance as further explained by implementing regulations. If a tenant has not
made the full amount of the rent payments between March 1, 2020 and 30 days
after the rescission of the Declaration of Local Emergency ("the Deferred
Payment"}, any rent the landlord receives following the 30th day after the rescission
of the Declaration of Local Emergency that the tenant does not designate as a
Deferred Payment shall not be allocated to the Deferred Payment.
5. Any tenant unable to pay rent shall take all reasonable steps to timely inform
the landlord of such and, to the extent feasible, make reasonable reduced rent
payments commensurate with the tenant's reduced income and financial ability to
do so.
6. During the Declaration of Local Emergency, no landlord shall shut off,
discontinue, or interrupt any tenant's utilities except for emergency repairs and
then, only for the duration of the repairs, or as part of an "Essential Activity" as that
term is defined in the Alameda County Public Health Order No. 20-04, dated March
31 , 2020 and then, only for the shortest time necessary to conduct the Essential
Activity.
7. For fully regulated residential rental units, between April 22, 2020 and
December 31, 2020, no landlord shall increase the rent in effect on April21, 2020.
Any notice of a rent increase served prior to April22, 2020, which increase was to
take effect on or after April 22, 2020, shall be void and have no force or effect.
This provision shall not be construed to preclude any landlord affected by this
Section 7 from banking rent increases for future implementation on or after January
1, 2021, following the procedures set forth in Section 6-58.70 of the Alameda
Municipal Code and as further explained by implementing regulations.
SECTION 3: Waiver.
1. A landlord may request that the requirements of this Ordinance be waived or
modified by the City Manager or designee, based on a showing that applying the
requirements would constitute an unconstitutional taking of property or otherwise
have an unconstitutional or unlawful application to the landlord's property.
2. The landlord shall bear the burden of presenting evidence to support the request
for a waiver or modification of the requirements of this Ordinance and shall set
forth in detail the factual and legal basis for the claim, including all supporting
documentation.
SECTION 4: Remedies and Penalties for Violations
In the event of a violation of this Ordinance:
1 . An aggrieved tenant may institute a civil proceeding for injunctive and/or
declaratory relief, money damages of not less than three times actual damages
(including damages for· mental or emotional distress as specified below) and what
other relief that a Court deems appropriate. If there is an award of damages based
on mental or emotional distress, the award shall be trebled if the trier of fact finds
the landlord acted in knowing violation of, in reckless disregard of, this Ordinance.
2. The City may issue an administrative citation, the fine for which shall be $250 for
the first offense, $500 for the second offense within a one year period, and $1000
for a third offense within one year.
3. A person shall be guilty of an infraction punishable by a fine not to exceed $250 or
a misdemeanor punishable by a fine not to exceed $1 000 per violation, or by
imprisonment in the County jail for a period not exceeding six months, or by both
a fine and imprisonment.
4. Any aggrieved person, including the City and the People of the State of California
may enforce, and seek to enjoin, a violation of this Ordinance by means of a civil
action. The burden of proof in such cases shall be the preponderance of evidence.
As part of any civil action brought by the City or the People of the State of California
to enforce this Ordinance a court shall assess against any person who commits,
continues to commit, allows or maintains any violation of this Ordinance a civil
penalty in an amount up to the greater of $2500 per violation per day or $1 0,000
per violation, 50% payable to the City and 50% to the person or persons whose
rights were violated. In addition, any violator shall be liable for an additional civil
penalty of up to $5000 for each offense committed against a person who is a Senior
Adult, has a Disability, or is in a household with one or more minor children.
SECTION 5: The Community Development Director may adopt administrative
regulations to effectuate and implement this Ordinance.
SECTION 6: The City Council requests financial institutions, including banks, credit
unions, government sponsored enterprises and institutional investors, holding home or
commercial mortgages that are not single family home Federal Housing Administration
insured mortgages to implement an immediate moratorium on foreclosures when the
foreclosure arises out of a Substantial Loss of Income as defined in this Ordinance.
SECTION 7: This ordinance is enacted pursuant to the City of Alameda's general
police powers, Section 3-12 of the Charter of the City of Alameda, Article XI of the
California Constitution, and Government Code Section 36937.
SECTION 8. If any section, subsection, sentence, clause or phrase of this
ordinance is for any reason held by a court of competent jurisdiction to be invalid,
such decision shall not affect the validity of the remaining portions of this ordinance.
The City Council declares that it would have adopted this ordinance and each section,
subsection, sentence, clause and phrase thereof, irrespective of the fact that any one or
more section, subsection, sentence, clause, or phrase be declared invalid.
SECTION 9. All evictions based on a Substantial Loss of Income and/or on a
no fault eviction on or after the date of final passage and adoption of this Ordinance
shall be subject to this Ordinance. As an emergency ordinance, this Ordinance becomes
effective immediately upon its adoption at a first reading by a four-fifths vote of the City
Council.
SECTION 10.
~C7* the City Council
Attest:
******
I, the undersigned, hereby certify that the foregoing Ordinance was duly and
regularly adopted and passed by the Council of the City of Alameda in a regular
meeting assembled on the 21st day of April, 2020, by the following vote to wit:
AYES: Councilmembers Daysog, Knox White, Oddie, Vella and
Mayor Ezzy Ashcraft-5.
NOES: None.
ABSENT: None.
ABSTENTIONS: None.
IN WITNESS, WHEREOF, I have hereunto set my hand and affixed the official
seal of said City this 22"d day of April, 2020.
APPROVED AS TO FORM:
Lara Weisiger, Ci y
Clerk City of Alam a