HomeMy WebLinkAboutOrd 836 1 ORDINANCE NO. 836
2
AN URGENCY ORDINANCE OF THE CITY COUNCIL OF THE CITY OF
3 CATHEDRAL CITY TEMPORARILY PROHIBITING EVICTIONS OF COMMERCIAL
TENANTS ARISING FROM SUBSTANTIAL DECREASE OF BUSINESS INCOME
4 RELATED TO THE CORONAVIRUS PANDEMIC
5
6 WHEREAS, the City of Cathedral ("City") is authorized by Article XI, Section 7 of the
7 California Constitution to make and enforce all regulations and ordinances using its police
8 powers;
9 WHEREAS, Government Code sections 36934 and 36937 authorize ordinances to take
10 effect immediately if they are for the immediate preservation of the public peace, health or safety,
11 contain a declaration of the facts constituting the urgency, and are passed by a four-fifths vote of
12 the City Council;
13 WHEREAS, the California Emergency Services Act (California Government Code
14 section 8550, et. seq.) defines a local emergency as the existence of conditions of disaster or of
15 extreme peril to the safety of persons and property within the territorial limits of a city, caused by
16 conditions such as an epidemic, which are or are likely to be beyond the control of the services,
17 personnel, equipment, and facilities of a city, and require the combined forces of other political
18 subdivisions to combat;
19 WHEREAS, Chapter 2.20, section 2.20.020 of the City's Municipal Code defines an
20 emergency as the actual or threatened existence of conditions of disaster or of extreme peril to the
21 safety of persons and property within this city caused by such conditions as,but not limited to, air
22 pollution, fire, flood, storm, epidemic, riot, or earthquake, or other conditions, including
23 conditions resulting from war or imminent threat of war, but other than conditions resulting from
24 a labor controversy, which conditions are or are likely to be beyond the control of the services,
25 personnel, equipment, and facilities of this city, requiring the combined forces of other political
26 subdivisions to combat;
27 WHEREAS, the State of California, including the City, is experiencing an unprecedented
28 and critical emergency related to the novel coronavirus and related COVID-19 disease
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1 collectively "COVID-19")pandemic;
2 WHEREAS, states of emergency have recently been proclaimed at the local, state, and
3 federal government levels related to the COVID-19 pandemic;
4 WHEREAS, on March 16, 2020 the City Council declared that the existence and
5 anticipated spread of COVID-19 is a local emergency, as defined by the Ralph M. Brown Act
6 (California Government Code section 54956.5) and the California Emergency Services Act
7 (California Government Code section 8550, et. seq.);
8 WHEREAS, on March 17, 2020, the Governor issued Executive Order N-28-20, which
9 suspended any provisions of state law that would preempt or otherwise restrict a local
10 government's exercise of its police power to impose substantive limitations on residential or
11 commercial evictions, including but not limited to Civil Code Sections 1940 et seq. or 1954.25 et
12 seq., until May 31, 2020, unless extended; and
13 WHEREAS, on March 19, 2020 the Governor issued Executive Order N-33-20
14 mandating that all Californians stay home or at their place of residence except in order to
15 maintain critical infrastructure sectors;
16 WHEREAS, the COVID-19 pandemic and associated public health and shelter in place
17 orders are expected to result in the closure of most local businesses for an indeterminate period of
18 time, and result in extreme restrictions on other local businesses until then and possibly thereafter,
19 possibly resulting in business tenants suffering a decrease in income;
20 WHEREAS, many local businesses and commercial establishments are not currently
21 categorized as critical infrastructure sectors and may therefore be subject to closure and may
22 cease operations, or even where deemed critical infrastructure may suffer a reduction in
23 productivity or reduction in sales and income;
24 WHEREAS, with the closure, or reduction of productivity and sales, of so many
25 businesses and commercial establishments, such businesses are likely to be unable to conduct
26 business which may render them unable to pay rent;
27 WHEREAS, commercial evictions due to a tenant's inability to pay rent have the
28 likelihood of resulting in business owners and individuals engaging in activities (e.g. moving,
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1 board-ups, eviction process etc.,) which do not constitute critical infrastructure sectors thereby
2 increasing the likelihood of the spread of COVID-19, leading to further health and safety risks to
3 the community;
4 WHEREAS, on March 16, 2020, Governor Gavin Newsom issued Executive Order N-28-
5 20, which authorizes local jurisdictions to suspend the evictions of tenants for the non-payment of
6 rent if the non-payment is a result of the COVID-19 pandemic;
7 WHEREAS, without local protection, eviction notices for failure to pay rent are likely to
8 surge as businesses are subject to closure or substantial decrease in sales or income due to the
9 pandemic;
10 WHEREAS, the City Council is concerned that, during the COVID-19 pandemic,
11 eviction notices and threats of eviction will surge; and
12 WHEREAS, the City of has determined that it is appropriate to temporarily prohibit
13 commercial evictions until the authorization to suspend evictions under Executive Order N-28-20,
14 as may be modified or superseded, terminates or the City Council declares an end to the local
15 emergency, whichever occurs first, for any commercial tenant who can demonstrate that they are
16 being evicted for the failure to pay rent and that such failure is a direct impact of the COVID-19
17 pandemic, as provided in Governor Newsom's Executive Order N-28-20. A copy of the
18 Executive Order is attached to this Ordinance.
19 NOW, THEREFORE BE IT ORDAINED BY THE CITY COUNCIL OF THE
20 CITY OF CATHEDARL CITY AS FOLLOWS:
21 SECTION 1. DECLARATION OF URGENCY; ORDINANCE ADOPTED.
22 The City Council of the City of Cathedral City hereby incorporates the recitals of fact
23 above by reference and finds and declares that they constitute an urgent situation requiring the
24 City Council to act for the immediate protection of the public peace, health and safety. Without
25 it, commercial tenants within the City of Cathedral City would suffer potentially irreversible
26 displacement resulting from evictions arising from the COVID-19 pandemic. The Council,
27 therefore, adopts this Urgency Ordinance attached hereto as Attachment"A"to become effective
28 immediately, pursuant to California Government Code Section 36937.
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1 SECTION 2. EFFECTIVE DATE; VOTE REQUIREMENTS.
2 This Ordinance shall take effect and be in force immediately upon an affirmative vote of
3 four-fifths of the City Council and remain in effect until the authorization to suspend evictions
4 under State Executive Order N-28-20, as may be modified or superseded, terminates or the City
5 Council declares an end to the local emergency.
6 SECTION 3. SEVERABILITY.
7 If any section, subsection, sentence, clause, or phrase of this Ordinance is for any reason
8 held to be invalid or unconstitutional by a decision of any court of competent jurisdiction, such
9 decision will not affect the validity of the remaining portions of this ordinance. The City Council
10 hereby declares that it would have passed this ordinance and each and every section, subsection,
11 sentence, clause, or phrase not declared invalid or unconstitutional without regard to whether any
12 portion of the ordinance would be subsequently declared invalid or unconstitutional.
13 SECTION 4. CODIFICATION.
14 This urgency ordinance shall not be codified in the City Municipal Code.
15 SECTION 5. CEQA.
16 The City Council hereby finds that the action to adopt this Ordinance will not result in any
17 change in the environment and thus is not a project subject to the requirements of CEQA. Further,
18 even if the action to adopt this Ordinance was deemed to be a project subject to CEQA, the City
19 Council finds the proposed Ordinance is exempt from CEQA under the common sense exemption
20 set forth in Section 15061(b)(3), which provides that CEQA only applies to projects which have
21 the potential for causing a significant effect on the environment, and thus where it can be seen
22 with certainty that there is no possibility that the activity in question may have a significant effect
23 on the environment, the activity is not subject to CEQA.
24 SECTION 6. AUTHORITY PURSUANT TO THE CALIFORNIA EMERGENCY
25 SERVICES ACT AND CITY MUNICIPAL CODE.
26 Pursuant to California Government Code sections 545956.5 and 8610, the City, while in a
27 state of emergency proclaimed by the Director of Emergency Services and ratified by the City
28 Council, may establish rules and regulations for dealing with the local emergency. Pursuant to
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1 City's Municipal Code Section 2.20.060, the Director of Emergency Services has the authority to
2 make and issue rules and regulations on matters reasonably related to the protection of life and
3 property as affected by such emergency; provided, however, such rules and regulations must be
4 confirmed at the earliest practicable time by the city council. The City Council also thus finds and
5 determines that it has the authority to enact this ordinance pursuant to the California Emergency
6 Services Act, the City Municipal Code and the declaration of local emergency issued by the
7 Cathedral City Council on March 16, 2020.
8 This urgency ordinance was passed and adopted by the City Council of the City of
9 Cathedral City on the 24th day of March, 2020, by the following vote:
10 AYES: Councilmembers Lamb, Gutierrez and Carnevale;
Mayor Pro Tem Gregory and Mayor Aguilar
11 NOES: None
12 ABSENT: None
13 ABSTAIN: None
14 PASSED, APPROVED AND ADOPTED this 25th day of March, 2020.
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16 `w � i
Join Aguilar,_ 1-or _
17
18 ATTEST:
19 racey Marty z, City Clerk
20
21 APPROVE,; S 1F 1 '�P
22
23 Eric Vail, City Attorney
Burke, Williams & Sorensen, LLP
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1 EXHIBIT "A"
2
3 SECTION 1: PURPOSE.
4 This Ordinance temporarily prohibits evictions of commercial tenants who can demonstrate that
5 they have received a notice of eviction for failure to pay rent, and that such failure is related to a
6 substantial decrease in business income caused by COVID-19 pandemic or any local, state, or
7 federal government response to the pandemic.
8 SECTION 2: DEFINITIONS.
9 The following words and phrases, whenever used in this section, shall be construed as follows:
10 1. "Commercial Unit"means a structure or the part of a structure in which at least 25
11 percent of its floor space is used for commercial or industrial activities, including
12 without limitation, retail, the providing of services, the manufacturing, packaging or
13 distribution of goods, or the processing, packaging, or distribution of food.
14 2. "Landlord"means an owner, lessor, or sublessor who receives or is entitled to receive
15 rent for the use and occupancy of any Commercial Unit or portion thereof.
16 3. "Owner"means any person, acting as principal or through an agent, offering a
17 Commercial Unit for rent, and includes a predecessor in interest to the owner.
18 4. "Pandemic"means the 2020 coronavirus and/or COVID-19 pandemic.
19 5. "Tenant"means any person entitled by written or oral agreement, or by sufferance, to
20 the use or occupancy of a Commercial Unit.
21 SECTION 3: PROHIBITION ON EVICTIONS.
22 A. A Landlord of any Commercial Unit or Commercial Units shall not terminate or attempt
23 to terminate a lawful tenancy for failure to pay rent if the Tenant demonstrates that the
24 failure to pay rent is directly related to a substantial decrease in business income caused
25 by the Pandemic or any local, state, or federal government response to the Pandemic.
26 B. This section shall also apply to a Landlord's action that constitutes constructive eviction
27 under California law. Terminations that are required to comply with an order issued by a
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1 government agency or court requiring that the real property be vacated are excepted from
2 this prohibition.
3 C. To take advantage of the protections afforded under this section, a Tenant must do all of
4 the following:
5 1. Notify the landlord in writing before the day rent is due, or within five (5) days
6 after, the Tenant has a covered reason for delayed payment. For purposes of this
7 Section, "writing" shall include emails, text messages, or other forms of electronic
8 communication with Landlord or Landlord's representative.
9 2. Pay the portion of rent that the tenant is able to pay.
10 3. Demonstrate through documentation or other objectively verifiable means that the
11 Tenant has experienced a substantial loss of business income associated with,
12 including without limitation, business closure, reduction in operating hours,
13 reduction in productivity, reduction in sales, inability to obtain necessary supplies
14 or materials, or similar occurrences, caused by the Pandemic or the federal, state or
15 local agencies response to the Pandemic.
16 D. Tenants who were afforded eviction protection under this section shall have up to sixty
17 (60) days after the termination of this ordinance to pay their landlord all unpaid rent.
18 E. Nothing in this section waives a tenant's obligations to pay back rent owed once this
19 ordinance is no longer effective; provided, however, that a Landlord may not file an
20 unlawful detainer action based on the failure to pay rent while this ordinance is in effect
21 unless the Tenant fails to pay rent when due under Section D of this ordinance.
22 F. Nothing in this section shall relieve a Tenant of the obligation to pay rent, nor restrict a
23 Landlord's ability to recover rent due once this ordinance is no longer effective.
24 G. This Ordinance shall not apply to evictions from, or orders to vacate, any premises as
25 ordered by a state, federal or local governmental agency for reasons of public health or
26 safety, severe public nuisances, or necessitated by the Pandemic or state of emergency.
27 ///
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1 SECTION 4: ENFORCEMENT.
2 A. In the event of a violation of this Ordinance, a Tenant who has been improperly served
3 with notice of an eviction or an unlawful detainer action may institute a civil proceeding
4 for an injunction, and the prevailing party shall be entitled to an award of reasonable
5 attorneys' fees and costs if so ordered by the court.
6 B. This Ordinance may be asserted as an affirmative defense in an unlawful detainer action.
7 C. A Landlord's failure to comply with this Ordinance does not constitute a criminal offense
8 but may subject an owner to civil fines and penalties as set forth in the City Municipal
9 Code.
10 D. The remedies provided in this Section are in addition to any other existing remedies that
11 may be available to a Tenant under local, state, or federal law or equity and in no way
12 limit such existing remedies, if any.
13 SECTION 5: WAIVER.
14 A Landlord may request that this Ordinance's requirements be waived or modified based on a
15 showing that applying the requirements would have an unconstitutional application to the
16 Landlord's property. A Landlord shall bear the burden of presenting evidence to support any
17 such request for waiver or modification and shall set forth in detail the factual and legal basis for
18 the claim, including all supporting documentation, for consideration by the City Council.
19 SECTION 6: EFFECTIVE DATES.
20 This Ordinance applies to eviction notices and unlawful detainer actions based on notices served
21 or filed on or after the effective date of this Ordinance. The prohibitions on evictions shall
22 continue to apply until the authorization to suspend evictions under State Executive Order N-28-
23 20, as may be modified or superseded, is terminated or the City Council declares an end to the
24 local emergency, whichever occurs first.
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EXECUTIVE DEPARTMENT
STATE OF CALIFORNIA
EXECUTIVE ORDER N-28-20
WHEREAS on March 4, 2020, I proclaimed a State of Emergency to
exist in California as a result of the threat of COVID-19; and
WHEREAS despite sustained efforts, the virus remains a threat, and
further efforts to control the spread of the virus to reduce and minimize the
risk of infection and otherwise mitigate the effects of COVID-19 are
needed; and
WHEREAS the economic impacts of COVID-19 have been
significant, and could threaten to undermine Californians' housing security
and the stability of California businesses; and
WHEREAS many Californians are experiencing substantial losses of
income as a result of business closures, the loss of hours or wages, or
layoffs related to COVID-19, hindering their ability to keep up with their
rents, mortgages, and utility bills; and
WHEREAS Californians who are most vulnerable to COVID-19, those
65 years and older, and those with underlying health issues,are advised to
self-quarantine, self-isolate, or otherwise remain in their homes to reduce
the transmission of COVID-1 9; and
WHEREAS because homelessness can exacerbate vulnerability to
COVID-19, California must take measures to preserve and increase
housing security for Californians to protect public health; and
WHEREAS local jurisdictions, based on their particular needs, may
therefore determine that additional measures to promote housing security
and stability are necessary to protect public health or to mitigate the
economic impacts of COVID-19; and
WHEREAS local jurisdictions may also determine, based on their
particular needs, that promoting stability amongst commercial tenancies
is also conducive to public health, such as by allowing commercial
establishments to decide whether and how to remain open based on
public health concerns rather than economic pressures, or to mitigate the
economic impacts of COVID-19;and
WHEREAS in addition to these public health benefits,state and local
policies to promote social distancing,self-quarantine, and self-isolation
require that people be able to access basic utilities—including water, gas,
electricity, and telecommunications—at their homes, so that Californians
can work from home,receive public health information, and otherwise
adhere to policies of social distancing, self-quarantine, and self-isolation, if
needed; and
WHEREAS many utility providers, public and private, covering
electricity, gas, water, and sewer, have voluntarily announced
moratoriums on service disconnections and late fees for non-payment in
response to COVID-19; and
WHEREAS many telecommunication companies, including internet
and cell phone providers, have voluntarily announced moratoriums on
service disconnections and late fees for non-payment in response to
COVID-19;
NOW,THEREFORE, I, GAVIN NEWSOM, Governor of the State of
California, in accordance with the authority vested in me by the State
Constitution and statutes of the State of California, and in particular,
Government Code sections 8567 and 8571,do hereby issue the following
order to become effective immediately:
IT IS HEREBY ORDERED THAT:
1) The time limitation set forth in Penal Code section 396, subdivision
(f), concerning protections against residential eviction, is hereby
waived. Those protections shall be in effect through May 31, 2020.
2) Any provision of state law that would preempt or otherwise restrict a
local government's exercise of its police power to impose
substantive limitations on residential or commercial evictions as
described in subparagraphs (i) and (ii) below—including, but not
limited to, any such provision of Civil Code sections 1940 et seq. or
1954.25 et seq.—is hereby suspended to the extent that it would
preempt or otherwise restrict such exercise. This paragraph 2 shall
only apply to the imposition of limitations on evictions when:
(i) The basis for the eviction is nonpayment of rent, or a
foreclosure, arising out of a substantial decrease in
household or business income (including, but not
limited to,a substantial decrease in household
income caused by layoffs or a reduction in the
number of compensable hours of work, or a
substantial decrease in business income caused by
a reduction in opening hours or consumer demand),
or substantial out-of-pocket medical expenses; and
(ii) The decrease in household or business income or
the out-of-pocket medical expenses described in
subparagraph (i) was caused by the COVID-19
pandemic, or by any local, state, or federal
government response to COVID-19, and is
documented.
The statutory cause of action for judicial foreclosure, Code of Civil
Procedure section 725a et seq.; the statutory cause of action for
unlawful detainer, Code of Civil Procedure section 1 161 et seq., and
any other statutory cause of action that could be used to evict or
otherwise eject a residential or commercial tenant or occupant of
residential real property after foreclosure is suspended only as
applied to any tenancy, or residential real property and any
occupation thereof, to which a local government has imposed a
limitation on eviction pursuant to this paragraph 2, and only to the
extent of the limitation imposed by the local government.
Nothing in this Order shall relieve a tenant of the obligation to pay
rent, nor restrict a landlord's ability to recover rent due.
The protections in this paragraph 2 shall be in effect through May
31, 2020, unless extended.
3) All public housing authorities are requested to extend deadlines for
housing assistance recipients or applicants to deliver records or
documents related to their eligibility for programs, to the extent that
those deadlines are within the discretion of the housing authority.
4) The Department of Business Oversight, in consultation with the
Business, Consumer Services, and Housing Agency, shall engage
with financial institutions to identify tools to be used to afford
Californians relief from the threat of residential foreclosure and
displacement, and to otherwise promote housing security and
stability during this state of emergency, in furtherance of the
objectives of this Order.
5) Financial institutions holding home or commercial mortgages,
including banks, credit unions, government-sponsored enterprises,
and institutional investors, are requested to implement an
immediate moratorium on foreclosures and related evictions when
the foreclosure or foreclosure-related eviction arises out of a
substantial decrease in household or business income, or substantial
out-of-pocket medical expenses,which were caused by the
COVID-19 pandemic,or by any local, state, or federal government
response to COVID-19.
6) The California Public Utilities Commission is requested to monitor
measures undertaken by public and private utility providers to
implement customer service protections for critical utilities,including
but not limited to electric, gas,water, internet, landline telephone,
and cell phone service, in response to COVID-19, and on a weekly
basis publicly report these measures.
Nothing in this Order shall be construed to invalidate any limitation
on eviction enacted by a local jurisdiction between March 4, 2020 and
this date.
Nothing in this Order shall in any way restrict state or local authority
to order any quarantine, isolation, or other public health measure that
may compel an individual to remain physically present in a particular
residential real property.
This Order is not intended to, and does not, create any rights or
benefits,substantive or procedural, enforceable at law or in equity,
against the State of California, its agencies,departments, entities, officers,
employees, or any other person.
I FURTHER DIRECT that as soon as hereafter possible, this
proclamation be filed in the Office of the Secretary of State and that
widespread publicity and notice be given of this Order.
IN WITNESS WHEREOF I have
hereunto set my hand and caused
the Great Seal of the State of
California to be affixed this 16th day
of March 2020.
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4VIN NEW OM
•vernor of California
ATTEST:
ALEX PADILLA
Secretary of State