Loading...
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 RIV#4832-8711-8520 vl 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, RIV#4832-8711-8520 vl - 2 - 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. RN#4832-8711-8520 vl - 3 - 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 RIV#4832-8711-8520 vl - 4 - 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. 15 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 24 25 26 27 28 RIV#4832-8711-8520 vl - 5 - 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 28 RIV#4832-8711-8520 vl - 6 - 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 /// 28 RIV#4832-8711-8520 v] - 7 - 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. 25 26 27 28 RIV#4832-8711-8520 v] - 8 - 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. __ 4VIN NEW OM •vernor of California ATTEST: ALEX PADILLA Secretary of State