Megan's Law Dilemma

If what you have read about Megan's Law and the website that allows the public to search for registered sex offenders in any neighborhood, has left you thinking that California's lawmakers have left landlord's between a rock and a hard place in wanting and trying to comply with the conflicting laws, you are correct. The language of the statute and the intent of the statute are frighteningly contradictory, and combined with the laws against discrimination and negligence, they offer no safe haven or "correct" course of action for apartment owners.

Your leases and rental agreements all must disclose the existence of the Megan's Law website where tenants can determine the proximity of registered child molesters in the neighborhood. You might want to include a line that the law also prohibits landlords from discriminating against persons whose names are listed on the Megan's Law website, in order to take some of the pressure off you, if any of your tenants ever appear on the website.

Do NOT tell your managers or employees to check applicants for apartments against the Megan's Law website and refuse to rent to registered sex offenders. The website law specifically makes it a crime and affords the government civil penalties, to use the Megan's Law website to screen applicants for rental housing. Someday, a trusted employee who is sympathetic regarding the issue of not renting to child molesters, may become a disgruntled employee. When you tell an employee they need to keep something secret, you are telling them that they have information that they can use against you. There are disability rights advocates who are trying to get child molesting characterized as a "disability," so that child molesters can be protected against discrimination. They would love to talk to your disgruntled employee about your "private policy."

So far, child molesters are NOT a protected class, and you are entitled to discriminate against them in renting housing, if you are doing so to protect the safety and peaceful enjoyment of your building by other tenants, including those who are children. You still cannot use the Megan's Law website to determine that someone is a child molester. It must have come up in a criminal background check or credit check that you do on all tenant applicants, the applicant's own responses to your application form, or some other source, but not from the Megan's Law website.

The purpose of the Megan's Law website is supposed to be to enable parents to protect their children. If they know there is a child molester around, it is hoped that parents will not leave children unattended, will supervise them more closely, will check out strangers more closely, and will know whether that nice woman or man down the hall or street who offers to babysit can be trusted or not. It is not intended to be a further and continuing punishment whereby landlords, employers and others check the list in order to discriminate against child molesters after they have served their punishment in prison. Since the Megan's Law list has the capacity of being misused in that way, we should anticipate that courts, juries and lawmakers at some point may elect to punish severely any misuses of the information from the database.

What are you going to do when an angry or scared tenant comes to you and complains that there is a child molester in your building? Do not expect parents to be rational or reasonable. You cannot evict the child molester just because he is a registered sex offender and on the Megan's Law website. He has to do something else wrong. You can tell them that the law give him the right to live there, the law does not give you the right to evict the child molester until after he does something wrong, but the law also give the parent the right to know the child molester is there, and now that they know the child molester is there, they can protect their children by never ever leaving any child unattended and unwatched when outside their own apartment. Maybe parents can take turns watching a lawn or play area after school and on weekends when children are there. The parents also can leave and move to another apartment building, but at least here they know the problem and will be vigilant, and anywhere else, there may be a child molester who is not living where the Megan's Law website thinks he is or, coming from another state, might not be required to register, yet.

Parents also can be encouraged to report, in writing, suspicious and inappropriate behavior. Some judicial decisions have suggested, but have not yet held as a matter of law, that wandering the halls of an apartment building, hanging out in inappropriate places, and threatening or creepy behavior can be grounds for evicting a tenant, and even can create an obligation to evict the tenant, if the behavior makes it "highly foreseeable" that the tenant will engage in harmful, injurious behavior towards another tenant. At some point before an actual attack, a child molester may do or say something sufficiently suggestive or threatening to allow you to evict the child molester. Tenants and parents need to know that any such action requires their active commitment and participation, including identifying themselves and taking time off from work to testify in court on multiple occasions.

Train your managers and employees in advance, so that when these issues arise, and they will, they will do the right thing, so that your tenants remain safe and secure in the homes you provide them, and you remain safe from lawsuits.

Should you have questions regarding the issues discussed above or anything else regarding the operation, refinancing, improvement or sale of your apartment project, please call me or email me.