HUD Charges Hesperia With Using Crime Interdiction Program To Black & Latino Residents

The U.S. Department of Housing and Urban Development has alleged the proactive program the City of Hesperia has had in place for more-than three-and-a-half years aimed at rooting out crime through preventing criminals from renting in the city and evicting any renters who engage in criminal activity violated the Fair Housing Act by discriminating against African-American and Hispanic residents.
The program in question is the city’s Crime Free Rental Housing Program, which was first presented in concept to the city council in the summer of 2015 and passed as part of a public hearing at the city council meeting on October 6, 2015 and was confirmed during a second reading as a consent ordinance without a full public hearing at the November 17, 2015 city council meeting.
Mike Podegracz was then Hesperia’s city manager. Nils Bentsen, who is now the city manager, was at that time the city’s police chief when he was serving as the sheriff’s department captain heading the Hesperia sheriff’s station. The San Bernardino County Sheriff’s Department, then as now, is contracted with the City of Hesperia to provide law enforcement services. Eric Dunn, was at that time the city attorney, and he is yet serving in that capacity.
The ordinance was presented to the city council in a report from Podegracz that was authored by Bentsen.
“The program is designed to address the disproportionate calls for service and crime emanating from rental properties,” Bentsen wrote. He noted that similar programs had previously “been employed throughout the country to varying degrees of effectiveness.” In drafting the ordinance, Bentsen said, the city staff had gathered input from owners, property managers and tenants as well as the California Apartment Association. The components of the ordinance, he emphasized, would apply to those properties where tenants were leasing houses, condominiums, duplexes, triplexes or apartments, and that the residents of those dwelling units, i.e., tenants, would be screened at the time of their moving in and their comportment thereafter monitored by the department, such that if they engaged in any criminal activity their leases or rental agreements would be revoked.
According to sheriff’s department statistics, just under 90 percent of Hesperia’s homicides in 2014 were committed in, at or around rental properties and one-third of the 66,000 calls for service originated at rental properties that year.
Another element of the program consisted of inspections done of the rental units to ascertain if there were any violations of the city’s codes ongoing or outstanding at those premises. For the most part, code violations are considered to be civil rather than criminal violations, though in enforcing the codes, local governments have a certain degree of discretion in ratcheting the cases up from the level of an infraction into criminal ones, primarily misdemeanors.
The city layered into the program an incentive for landlords to participate in the program by excusing them from being subject to the fines or liens imposed relative to their property if a tenant who engaged in the violation vacated the premises and skipped out without paying the fine levied.
“Currently fines incurred by tenants for code violations such as an unlicensed animal are passed to the owner if the tenant does not pay,” Bentsen wrote in his 2015 report and recommendation to the city council relating to the program. “If the owner is complying with the program with no violations, they will be deemed to be in “good standing” and the fines will be held in abeyance.”
The program had teeth to chew up offending tenants and uncooperative landlords who indulged their tenants in code violations. “The tenants and owners will be held accountable for their actions,” Bentsen wrote. “This will be done through the use of administrative fines or in extreme cases by the use of nuisance abatement.”
The program also called for “annual mandatory inspection of the rental property.” Bentsen stated in the report that such inspections “will be far less intrusive, not require the owner’s presence and will concentrate on crime prevention and safety-related issues. A detailed copy of the inspection will be provided to the owner and if the unit does not pass they will have 60 days to make corrections. If there are obvious code violations, the information will be forwarded to [the] Hesperia Code Enforcement [Division]. Other cities require an interior inspection which necessitates the presence of the owner or their representative and can disrupt the tenant.”
The program involved registrations that were made either on line or in person.
According to Bentsen’s recommendation/report, “All tenants will be required to be screened through the Sheriff’s Department Crime Free Program, and through a separate criminal background check. The sheriff’s department will provide crime free screening service six days a week. The owner or property manager will be notified, via email or by telephone, if prospective tenants have been in violation of the “crime free lease addendum” anywhere in the county in the past. The decision to rent to a tenant will be by the owner or property owner, not the sheriff’s department.”
The addendum reads, in part, “In consideration of the execution or renewal of a rental agreement of the dwelling unit located at [address], owner and occupant/resident agree as follows:
1. Occupant/resident, or any member of the occupant/resident’s household, or a guest or other person under the occupant/resident’s control shall not engage in criminal activity that would violate any federal, state or local law, on or near property premises.
2. Occupant/resident, any member of the occupant/resident’s household, or a guest or other person under the occupant/resident’s control shall not engage in any act intended to facilitate criminal activity that would violate any federal, state or local law, including drug-related criminal activity, on or near property premises.
3. Occupant/resident or members of the household will not permit the dwelling unit to be used for, or to facilitate criminal activity that would violate any federal, state or local law, including prostitution and drug-related criminal activity, regardless of whether the individual engaging in such activity is a member of the household or a guest.
4. Occupant/resident or member of the household will not engage in the possession, manufacture, sale or distribution of illegal drugs at any location, that would violate any federal, state or local law, whether on or near property premises.
5. Occupant/resident or member of the occupant/resident’s household, or a guest or other person under the occupant/resident’s control shall not engage in acts of violence that would violate any federal, state or local law, including but not limited to, the unlawful discharge of firearms, on or near property.
6. Any violation of the above provisions shall be a material violation of the lease and good cause for termination of tenancy. A single violation of any of the provisions of this addendum shall be deemed a serious violation and a material noncompliance with the lease. It is understood and agreed that a single violation shall be good cause for termination of the lease.
7. Failure to comply with this provision is considered a material non-curable breach of the lease and will result in a three day notice to quit being served upon occupant/resident requiring that occupant/resident, every member of occupant/resident’s household, or a guest or other person(s) under occupant/resident’s control shall vacate said premises within three days, all in accordance with California law. California law provides for extraordinary remedy to regain possession when illegal activity is being carried out on or near the premises [which] constitutes a public or private nuisance.”
Furthermore, according to Bensen’s recommendation/report, “A separate criminal screening will be required, and will be the responsibility of the property managers or owners through the use of private companies. The results of the criminal screening will be kept by the property managers or owners on file, and will not need to be provided to the sheriff’s department. When an owner or their designee is notified by the chief of police, or his or her designee, that a tenant has engaged in criminal activity that would violate any federal, state or local law, on or near the residential rental property leased to tenant, the owner shall begin the eviction process against the tenant within 10 business days of the date of such notice, and pursuant to the crime free lease addendum. The chief of police may require proof of the eviction process.”
Bentsen said that “the city has experienced an increase in the occurrence of substandard maintenance, unsafe conditions, illegal activity and public nuisances in single-family rental and multi-family rental property, especially those owned by absentee landlords. Residential rental properties are responsible for a disproportionate share of code enforcement and law enforcement calls for service that necessitates a disproportionate expenditure of public funds for such properties.”
At the October 6, 2015 meeting, the program was taken up by then-Mayor Eric Schmidt, then-Councilman Mike Leonard, Councilman Bill Holland and then-Councilman Paul Russ. Then-Councilman Russ Blewett was absent from the meeting.
In narrowing the discussion, Mayor Schmidt suggested that a major portion of the problem renters in Hesperia were recent arrivals from Los Angeles County.
Councilman Russ said, “Felons are not a protected class. There is an immense amount of statistical data that there is a correlation between your ability to pay and your credit score. You get a 800 FICO score, they are going to pay the rent and they’re most likely not going to be a criminal. You get somebody with a 475 FICO score, they’re not going to pay the rent and they’re probably going to have a criminal background.”
Councilman Leonard said of the program, “Get it goin’ and move ‘em out. Move ’em elsewhere. Since the [economic] downturn, our Section 8 housing in this city is just crazy high. The developers come in here and buy these places up and rent them and they don’t give a darn who they rent to. You know as well as I do, that we’ve had a lot of people move up here from over the hill who are not very friendly people and we need to work on getting them out of here. Get it moving.”
Schmidt, Russ, Leonard and Holland voted unanimously to approve the ordinance.
On November 17, 2015, the program came up for a second reading, that is, a confirming vote of the council. Councilmen Holland, Blewett and Russ along with Mayor Schmidt voted to confirm the institution of the program. Councilman Leonard was absent during the meeting.
The Hesperia Crime Free Rental Housing Program went into effect in January 2016.
Once the Crime Free Rental Housing Program was in place, the American Civil Liberties Union sued the city, alleging the ordinance was unconstitutional in that it “unlawfully restricted housing and support services for those with criminal records.” In response to the suit, the city in large measure backed down and removed, at its July 18, 2017 council meeting, the provisions of the ordinance pertaining to mandatory screenings of rental applicants, the mandatory signing of the crime free lease addendum by landlords and tenants alike and the mandatory evictions of tenants violating criminal laws or not adhering to the crime free lease addendum.
On October 16, 2019, the Department of Housing and Urban Development filed a complaint relating to the Hesperia City Council’s enactment of the Crime Free Housing Program through the passage of an ordinance on November 17, 2015. The complaint named both the City of Hesperia and the San Bernardino County Sheriff’s Department.
In lodging the action, the Department of Housing and Urban Development entered an internal finding that between January and December 2016, no fewer than 137 households involving at least 258 people were evicted as a consequence of the ordinance, and 75 rental applicants were rejected through the program’s tenant screening process.
“The Sheriff’s department intentionally enforced the ordinance in a manner that targeted minorities and residents of predominantly minority areas,” the Department of Housing and Urban Development alleges in the complaint.
The complaint attributed statements to the mayor pro tem in which he likened the people targeted in the program to vermin, saying the idea behind the action was to subject the rental unit owners to “hell [in order to] to rid his rental . . . of that blight” no differently than “you would call an exterminator out to kill roaches.”
It is not clear, however, which pubic hearing the complaint was referencing. The Sentinel reviewed the October 6, 2015 and November 17, 2015 council meeting videos, and could not find any statement approximating that by Holland, who was the mayor pro tem at that time.
The reference may have been to words spoken by members of the city council at the July 18, 2017 council meeting, when the Crime Free Rental Housing Program ordinance was rescinded. Blewett, who was the mayor pro tem in 2017 and is now deceased, was prone to the use of profanity and vulgarisms in his utterances, both public and private, while Holland is more measured and controlled in most of his speech.
The city, for a reason that is not publicly clear, has removed the video of the July 18, 2017 city council meeting from its website.
Another statement attributed to an unidentified city councilman by the Department of Housing and Urban Development expressing the intent of driving a certain undesirable element from town, in particular those renting residential properties, was one councilman saying he wanted to “get them the hell out of our town,” and that “I want their butt kicked out of this community as fast as I can possibly humanly get it done.”
A further statement attributed to an unidentified council member that the Sentinel was unable to confirm indicated  that the purpose of the ordinance was “to correct a demographical problem,”  and that “we better improve our demographic.”
The most recently available demographic data show Hesperia has a population that by ethnicity is 44 percent Hispanic and six percent African-American. Estimates based on U.S. Census data are that from 2005 until 2017 there was a rise in the minority population matched by a commensurate decline in the white population.
According to the Department of Housing and Urban Development, when advocates for non-discrimination in housing made a written objecting to the program, Bentsen threatened them with enforcement and investigative action by the sheriff’s department.
According to Department of Housing and Urban Development Secretary Ben Carson, “We are not going to allow minorities to be denied a place to call home simply because of how they appear. HUD will hold local communities accountable if they allow or create loopholes that evade our country’s fair housing laws.”
The complaint by the Department of Housing and Urban Development seeks damages and “the maximum civil penalty.” The charge will be heard by a U.S. administrative law judge.
Hesperia spokeswoman Rachel Molina told the Sentinel that Bentsen would not be available to respond to questions about the Department of Housing and Urban Development action this week. “The earliest he might be available is next Monday,” Molina said.
Molina was unable to give the precise protocol for the adjudication of the charges being leveled at the city and the sheriff’s department, and whether the city was amenable to having the matter heard by an administrative law magistrate.
Noting that the city routinely does not make comment on legal issues, Molina said, “We are saying we will defend against these allegations against the city. They are false and no complaint was ever made to HUD [the federal Department of Housing and Urban Development] by any Hesperia resident. HUD claims the city’s crime free rental program is discriminatory. The city’s crime free rental program is based on assisting landlords in maintaining crime free properties.”
Asked if the Department of Housing and Urban Development had misinterpreted the city’s intent, Molina said that was the case.  She said the investigation against the city was was launched by “a political appointee with the department. I’m not referring to Mr. Carson.”
As to whether the city has formulated a written response to the charges, Molina said, “Nothing has been drafted.”
 -Mark Gutgueck

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