City & Cnty. of S.F. v. Post
22 Cal. App. 5th 121
Cal. Ct. App. 5th2018Background
- In 1998 San Francisco amended Police Code §3304 to prohibit housing discrimination based on "source of income," explicitly defining that term to include government rent subsidies (e.g., Section 8) and imposing related landlord obligations.
- In 1999 the California Legislature amended FEHA (Gov. Code §12955) to add "source of income" as a protected category but defined it narrowly to mean income paid directly to a tenant, excluding subsidies paid directly to landlords (thus not covering Section 8).
- Between May 2013 and May 2014, Lem‑Ray Properties and agent Chuck Post advertised rental units with statements refusing Section 8 tenants.
- The City and People sued for violations of San Francisco §3304 (and related unfair business practices), obtained a preliminary injunction, and defendants appealed.
- The central legal question: whether FEHA preempts San Francisco’s ordinance to the extent the local law forbids refusing Section 8 tenants (i.e., subsidies paid to landlords).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether FEHA preempts San Francisco Police Code §3304 as applied to Section 8 tenants | FEHA’s preemption clause covers only discrimination FEHA itself addresses; it therefore does not preempt SF’s ban on refusing Section 8 participants | FEHA occupies the field of housing discrimination and thus preempts local laws that regulate "source of income"; FEHA also implicitly permits landlords to opt out of Section 8, so the ordinance conflicts with legislative policy | Court held FEHA does not preempt the SF ordinance insofar as it protects Section 8 tenants: FEHA’s preemptive field is limited to categories FEHA defines (which exclude subsidies paid to landlords), and there is no express or implied conflict |
Key Cases Cited
- Sabi v. Sterling, 183 Cal.App.4th 916 (Cal. Ct. App.) (Section 8 subsidies paid to landlords are not "source of income" under FEHA)
- City of Riverside v. Inland Empire Patients Health & Wellness Center, Inc., 56 Cal.4th 729 (Cal.) (framework for conflict and field preemption analysis)
- Sherwin‑Williams Co. v. City of Los Angeles, 4 Cal.4th 893 (Cal.) (local laws preempted when they duplicate, contradict, or enter a field fully occupied by state law)
- Rojo v. Kliger, 52 Cal.3d 65 (Cal.) (construction of FEHA’s preemption clause and limits on local laws banning housing discrimination)
- Big Creek Lumber Co. v. County of Santa Cruz, 38 Cal.4th 1139 (Cal.) (burden of proof on preemption and presumption favoring local regulation on matters of local interest)
- California Grocers Assn. v. City of Los Angeles, 52 Cal.4th 177 (Cal.) (comparative statutory analysis for express field preemption)
- Rental Housing Assn. of Northern Alameda County v. City of Oakland, 171 Cal.App.4th 741 (Cal. Ct. App.) (FEHA does not preempt local ordinances addressing categories FEHA does not cover)
- Northern Cal. Psychiatric Society v. City of Berkeley, 178 Cal.App.3d 90 (Cal. Ct. App.) (distinguishes statewide vs. local concern in preemption analysis)