A1919 3R

An Act concerning the housing rights of ³certain³ persons with criminal records and supplementing ¹[P.L.1945, c.169 (C.10:5-1 et seq.)] ³[P.L.1975, c.310 (C.46:8-43 et seq.)¹] chapter 8 of Title 46 of the Revised Statutes³.

Be It Enacted by the Senate and General Assembly of the State of New Jersey:

1. This act shall be known and may be cited as the “Fair Chance in Housing Act.”

³2. The Legislature finds and declares that:

a. Recent research indicates that New Jersey suffers from a tragically high 36-month recidivism rate of over 30 percent;

b. Housing instability appears to impact recidivism, considering that over one in 10 prisoners in the United States face homelessness upon release;

c. Research from other states indicates a substantial increase in the likelihood of a parolee’s arrest following each change in address, further supporting the conclusion that when ex-convicts are unable to find stable housing, recidivism becomes more likely and public safety is diminished;

d. Prior to the 1990s when popular guidance documents began advising landlords to conduct criminal background checks on prospective tenants, criminal background information was not widely-available and convenient to landlords for informing rental decisions, but many landlords were nonetheless able to maintain safe and healthy rental properties; and

e. It is, therefore, necessary and in the public interest for the Legislature to enact legislation for the purpose of establishing certain housing rights of persons with criminal records.³

³[2.] 3.³ As used in this act:

"Applicant" means any person considered for, who requests to be considered for, or who requests to be considered for tenancy within a rental dwelling unit.

“Conditional offer” means an offer to rent or lease a rental dwelling unit to an applicant that is contingent on a subsequent inquiry into the applicant’s criminal record, or any other eligibility criteria that the housing provider may lawfully utilize.

“Criminal record” means information ³about an individual³ collected by criminal justice agencies ³[on individuals]³ consisting of identifiable descriptions and notations of arrests, detentions, indictments, ³criminal complaints,³ or other formal criminal charges, and any disposition arising therefrom, including acquittal, sentencing, correctional supervision, release or conviction, including, but not limited to, any sentence arising from a verdict or plea of guilty or nolo contendere, including a sentence of incarceration, a suspended sentence, a sentence of probation, or a sentence of conditional discharge.

³“Director” means the Director of the Division on Civil Rights.

“Division” means the Division on Civil Rights in the Department of Law and Public Safety.³

“Housing provider” means a landlord, an owner, lessor, sublessor, assignee, or their agent, or any other person receiving or entitled to receive rents or benefits for the use or occupancy of any rental dwelling unit.

“Pending criminal accusation” means an existing accusation that an individual has committed a crime, lodged by a law enforcement agency through an indictment, information, complaint, or other formal charge.

“Rental dwelling unit” means a dwelling unit offered for rent by a housing provider for residential purposes, other than a dwelling unit in an owner-occupied premises of not more than ³[three] four³ dwelling units.

³[3.] 4.³ a. (1) A housing provider shall not require an applicant to complete any housing application that includes any inquiries regarding an applicant’s criminal record prior to the provision of a conditional offer ³, except that a housing provider may consider whether an applicant has ever been convicted of drug-related criminal activity for the manufacture or production of methamphetamine on the premises of federally assisted housing, and whether the applicant is subject to a lifetime registration requirement under a State sex offender registration program³.

(2) A housing provider shall not make any oral or written inquiry regarding an applicant’s criminal record prior to making a conditional offer.

¹[(3) An applicant may provide evidence to the housing provider demonstrating inaccuracies within the applicant's criminal record or evidence of rehabilitation or other mitigating factors.]¹ ³(3) An applicant may provide evidence to the housing provider demonstrating inaccuracies within the applicant's criminal record or evidence of rehabilitation or other mitigating factors.³

b. ³[Notwithstanding the provisions of subsection a. of this section, if an applicant discloses any information regarding the applicant’s criminal record, by voluntary oral or written disclosure, prior to the conditional offer, the housing provider may make inquiries regarding the applicant’s criminal record prior to making the conditional offer.

c.]³ Prior to accepting any application fee, a housing provider shall disclose in writing to the applicant:

(1) Whether the eligibility criteria of the housing provider include the review and consideration of criminal history; and

(2) A statement that the applicant ¹[, pursuant to subsection a. of this section,]¹ ³, pursuant to subsection a. of this section,³ may provide evidence demonstrating inaccuracies within the applicant's criminal record or evidence of rehabilitation or other mitigating factors.

³[d.]³ ¹[After the issuance of a conditional offer to an applicant, a housing provider may only consider a criminal record in the applicant’s history that:

(1) has occurred within the 10 years immediately preceding the issuance of the conditional offer; and

(2) consists of a pending criminal accusation or a criminal conviction that, pursuant to subsection b. of N.J.S.2C:52-2, is not eligible for expungement.

e. (1) A housing provider may withdraw a conditional offer based on an applicant's criminal record only if the housing provider determines, on balance, that the withdrawal achieves a substantial, legitimate, nondiscriminatory interest.

(2) The housing provider's determination of a nondiscriminatory interest shall be reasonable in light of the following factors:

(a) The nature and severity of the criminal offense;

(b) The age of the applicant at the time of the occurrence of the criminal offense;

(d) Any information produced by the applicant, or produced on the applicant's behalf, in regard to the applicant's rehabilitation and good conduct since the occurrence of the criminal offense;

(e) The degree to which the criminal offense, if it reoccurred, would negatively impact the safety of the housing provider's other tenants or property; and

(f) Whether the criminal offense occurred on or was connected to property that was rented or leased by the applicant.

f. (1) If a housing provider withdraws a conditional offer, the housing provider shall provide the applicant with written notification that includes, with specificity, the reason or reasons for the withdrawal of the conditional offer and a notice that advises the applicant of the applicant's right to file a complaint with the ³[Attorney General] division³ pursuant to section 6 of this act.

(2) (a) The applicant may request, within 20 days after the housing provider's notice of the withdrawal, that the housing provider afford the applicant a copy of all information that the housing provider relied upon in considering the applicant, including criminal records.

(b) A housing provider shall provide the information requested under subparagraph (a) of this paragraph, free of charge, within l0 days after receipt of a timely request.

g.]¹ ³[Nothing set forth in this act shall be construed to prohibit a housing provider from requiring an applicant to complete a housing application that includes any inquiries regarding an applicant’s criminal record after]³ ¹[the] ³[a¹ conditional offer is provided or from making any oral or written inquiries regarding an applicant’s criminal record after the conditional offer is provided. The provisions of this section shall not preclude a housing provider from]³ ¹[refusing to provide housing to an applicant] ³[rescinding a conditional offer¹ based upon the applicant’s criminal record, unless the criminal record or relevant portion thereof has been expunged or erased through executive pardon, ¹as¹ provided]³ ¹[that such refusal is consistent with other applicable laws, rules and regulations] ³[in P.L. , c. (C. ) (pending before the Legislature as this bill) or any other relevant federal or State law¹] c. A housing provider shall apply the standards established by this section to each applicant in a nondiscriminatory manner³.

³[¹4. a. A housing provider shall not, either before or after the issuance of a conditional offer, evaluate an applicant based on any of the following types of criminal records:

(1) arrests or charges that have not resulted in a criminal conviction;

(2) expunged convictions;

(3) convictions erased through executive pardon;

(4) vacated and otherwise legally nullified convictions;

(5) juvenile adjudications of delinquency; ²[and]²

(6) records that have been sealed ²; and

(7) records from a different state concerning actions that, if committed in the State, would be decriminalized or legalized, or both, pursuant to P.L. , c. (C. ) (pending before the Legislature as A1897/4269 (ACS) / S2535 of 2020) or P.L. , c. (C. ) (pending before the Legislature as A21 / S21 of 2020)² .

b. After the issuance of a conditional offer to an applicant, a housing provider may only consider a criminal record in the applicant’s history that:

(1) resulted in a conviction for murder, aggravated sexual assault, kidnapping, arson, human trafficking, or any crime that resulted in lifetime registration in a state sex offender registry;

(2) is for an indictable offense of the first or second degree that was issued, or if the conviction resulted in a prison sentence that sentence concluded, within the 10 years immediately preceding the issuance of the conditional offer;

(3) is for an indictable offense of the third or fourth degree that was issued, or if the conviction resulted in a prison sentence that concluded, within the five years immediately preceding the issuance of the conditional offer; or

(4) is for a disorderly person’s offense that was issued, or if the conviction resulted in a prison sentence that concluded, within one year immediately preceding the issuance of the conditional offer.

c. (1) A housing provider may withdraw a conditional offer based on an applicant's criminal record only if the housing provider determines through reliable evidence that the criminal conduct in question indicates a demonstrable risk to resident safety or property and that, on balance, the withdrawal achieves a substantial, legitimate, and nondiscriminatory interest.

(2) If a housing provider withdraws a conditional offer, the housing provider shall provide the applicant with written notification that includes, with specificity, the reason or reasons for the withdrawal of the conditional offer and an opportunity to appeal the denial by providing evidence to the housing provider demonstrating inaccuracies within the applicant's criminal record or evidence of rehabilitation or other mitigating factors.

(3) The housing provider shall ²[perform] not withdraw a conditional offer unless the housing provider has conducted² an individualized assessment of the application ². An individualized assessment of an application shall be conducted² in light of the following factors:

(a) The nature and severity of the criminal offense;

(b) The age of the applicant at the time of the occurrence of the criminal offense;

(d) Any information produced by the applicant, or produced on the applicant's behalf, in regard to the applicant's rehabilitation and good conduct since the occurrence of the criminal offense;

(e) The degree to which the criminal offense, if it reoccurred, would negatively impact the safety of the housing provider's other tenants or property; and

(f) Whether the criminal offense occurred on or was connected to property that was rented or leased by the applicant.

d. (1) The applicant may request, within 20 days after the housing provider's notice of the withdrawal, that the housing provider afford the applicant a copy of all information that the housing provider relied upon in considering the applicant, including criminal records.

(2) A housing provider shall provide the information requested under subparagraph (a) of this paragraph, free of charge, within l0 days after receipt of a timely request.¹]³

³5. a. A housing provider shall not, either before or after the issuance of a conditional offer, evaluate an applicant based on any of the following types of criminal records:

(1) arrests or charges that have not resulted in a criminal conviction;

(2) expunged convictions;

(3) convictions erased through executive pardon;

(4) vacated and otherwise legally nullified convictions;

(5) juvenile adjudications of delinquency; and

(6) records that have been sealed.

b. After the issuance of a conditional offer to an applicant, a housing provider may only consider a criminal record in the applicant’s history that:

(1) resulted in a conviction for murder, aggravated sexual assault, kidnapping, arson, human trafficking, or any crime that resulted in lifetime registration in a state sex offender registry;

(2) is for an indictable offense of the first degree that was issued, or if the conviction resulted in a prison sentence that sentence concluded, within the six years immediately preceding the issuance of the conditional offer;

(3) is for an indictable offense of the second or third degree that was issued, or if the conviction resulted in a prison sentence that concluded, within the four years immediately preceding the issuance of the conditional offer; or

(4) is for an indictable offense of the fourth degree that was issued, or if the conviction resulted in a prison sentence that concluded, within one year immediately preceding the issuance of the conditional offer.

c. (1) A housing provider may withdraw a conditional offer based on an applicant's criminal record only if the housing provider determines, by preponderance of the evidence, that the withdrawal is necessary to fulfill a substantial, legitimate, and nondiscriminatory interest.

(3) The housing provider shall perform an individualized assessment of the application in light of the following factors:

(a) the nature and severity of the criminal offense;

(b) the age of the applicant at the time of the occurrence of the criminal offense;

(d) any information produced by the applicant, or produced on the applicant's behalf, in regard to the applicant's rehabilitation and good conduct since the occurrence of the criminal offense;

(e) the degree to which the criminal offense, if it reoccurred, would negatively impact the safety of the housing provider's other tenants or property; and

(f) whether the criminal offense occurred on or was connected to property that was rented or leased by the applicant.

d. (1) the applicant may request, within 30 days after the housing provider's notice of the withdrawal, that the housing provider afford the applicant a copy of all information that the housing provider relied upon in considering the applicant, including criminal records.

(2) a housing provider shall provide the information requested under paragraph (1) of this subsection, free of charge, within l0 days after receipt of a timely request.³

³6. a. The director shall prepare:

(1) a model disclosure statement as indicated in subsection b. of section 4 of this act which provides notice that a housing provider intends to review and consider a person’s criminal record in determining eligibility for housing or in taking any other adverse housing action against that person. The statement shall also provide an explanation of the criminal records that may be considered and the manner in which they may be considered, in accordance with the provisions of section 5 of this act. The statement shall also notify the person of the right to dispute, within 10 days of receiving such statement, the relevance and accuracy of the criminal record and to offer evidence of any mitigating facts or circumstances, including but not limited to the person’s rehabilitation and good conduct since the criminal offense in question; and

(2) a model notice that provides notice that a housing provider has withdrawn a conditional offer or taken an adverse housing action based on a person’s criminal record, provides space for the housing provider to identify with specificity the reason or reasons for withdrawing the conditional offer or taking the adverse housing action. The notification form shall also notify the person of the right to request from the housing provider a copy of all information upon which the housing provider relied in reaching its decision, including criminal records, and of the right to file a complaint with the division, as well as the applicable statute of limitations, and shall include such other additional information as the director deems appropriate.

b. The model documents prepared pursuant to this section shall be made available on the division’s Internet website, at no cost, and shall be in English, Spanish, and in any other language the director deems appropriate.³

¹[4. Unless otherwise permitted or required by law, a] ³[5.] 7.³ a. A¹ housing provider shall not knowingly or purposefully publish, or cause to be published, any housing advertisement that explicitly provides that the housing provider will not consider any applicant who has been arrested or convicted of one or more crimes or offenses ¹, except for drug-related criminal activity for the manufacture or production of methamphetamine on the premises of federally assisted housing, and whether the applicant is subject to a lifetime registration requirement under a State sex offender registration program.

b. ³A housing provider shall not print, publish, circulate, issue, display, post, or mail, or cause to be printed, published, circulated, issued, displayed, posted or mailed any statement, advertisement, publication or sign, or use any form of application for the rental, lease, or sublease of any real property or part or portion thereof or make any record or inquiry in connection with the prospective rental, lease, or sublease of any real property or part or portion thereof which expresses, directly or indirectly, any unlawful limitation, specification or discrimination as to criminal record, except as permitted by this act and for drug-related criminal activity for the manufacture or production of methamphetamine on the premises of federally assisted housing, and whether the applicant is subject to a lifetime registration requirement under a State sex offender registration program.

c.³ Unless otherwise required by law, a housing provider shall not:

(1) distribute or disseminate an applicant’s criminal record to any person who is not expected to use the criminal record for the purpose of evaluating the applicant in a manner consistent with ³[P.L. , c. (C. ) (pending before the Legislature as this bill)] this act³; or

(2) use an applicant’s criminal record for a purpose that is not consistent with ³[P.L. , c. (C. ) (pending before the Legislature as this bill)¹] this act³.

¹[5. This act shall not apply:

a. If a federal law or regulation requires the housing provider to consider an applicant’s criminal records for residential leasing purposes; or

b. If a federal law or regulation otherwise allows for the denial of an applicant due to certain criminal convictions.]¹

³[¹6. a. To encourage residential landlords to provide housing opportunities to formerly incarcerated individuals, landlords subject to the provisions of this act shall be immune from liability in any civil action arising as a result of the landlord’s decision to rent to individuals with a criminal record or who were otherwise convicted of a criminal offense, or as a result of a landlord’s decision to not engage in criminal background screening.

b. Notwithstanding the provisions of subsection a. of this section, immunity from liability shall not be conferred upon a landlord who, knowingly or unknowingly, rents an apartment to a person with a conviction for murder, aggravated sexual assault, kidnapping, arson, human trafficking, or any crime that resulted in lifetime registration in a state sex offender registry.¹]³

¹[6. a. A person claiming to be aggrieved pursuant to this act may file a complaint or action with the Division on Civil Rights or in the Superior Court of New Jersey alleging a violation of the "Law Against Discrimination," P.L.1945, c.169 (C.10:5-1 et seq.).

b.] ³[7.¹ Any housing provider who violates this act shall be liable for a civil penalty in an amount not to exceed ¹[$1,000] $100¹ for the first violation, ¹[$5,000] $500¹ for the second violation, and ¹[$10,000] $1,000¹ for each subsequent violation collectible by the Attorney General in a summary proceeding pursuant to the “Penalty Enforcement Law of 1999,” P.L.1999, c.274 (C.2A:58-10 et seq.).]³

³8. To encourage residential landlords to provide housing opportunities to formerly incarcerated individuals, landlords subject to the provisions of this act shall be immune from liability in any civil action arising as a result of the landlord’s decision to rent to individuals with a criminal record or who were otherwise convicted of a criminal offense, or as a result of a landlord’s decision to not engage in a criminal background screening.³

³9. A housing provider shall not require an applicant to submit to a drug or alcohol test, or request the applicant’s consent to obtain information from a drug abuse treatment facility.³

³10. A person shall not interfere with, restrain, or deny the exercise of, or the attempt to exercise, any right protected under this act. It shall be a rebuttable presumption of unlawful retaliation if a housing provider or any other person takes an adverse action against a person within 90 days of the person’s exercise of the rights protected by this act. This rebuttable presumption shall be sufficient to establish unlawful retaliation, unless the housing provider or other person is able to demonstrate that the action would have been taken in the absence of such protected activity.³

³11. The division shall maintain data on the number of complaints filed pursuant to this act, demographic information on the complainants, the identity of the housing providers, the number of investigations conducted, and the disposition of every complaint and investigation. The division shall annually publish and post on the division’s Internet website, information on substantiated complaints that have resulted in the issuance of a monetary penalty pursuant to section 12 of this act.³

³12. a. An action that alleges a violation of this act shall not be initiated by an applicant in court. If an applicant believes that a housing provider has violated a provision of this act with respect to the applicant, that applicant may file a complaint with the division. If the division determines that the complaint is substantiated, the director shall issue a monetary penalty against the housing provider. A housing provider may appeal a penalty issued pursuant to this section in a court of competent jurisdiction. A complainant may appeal, in a court of competent jurisdiction, a finding by the director following an investigation that the complaint is not substantiated, but the complainant may not appeal a decision by the director not to investigate a complaint.

b. A housing provider who violates a provision of this act shall be liable for the following applicable penalties:

(1) an amount not to exceed $1,000 if the housing provider has not committed any prior violation within the five-year period ending on the date of the filing of the charge;

(2) an amount not to exceed $5,000 if the housing provider has committed one other violation within the five-year period ending on the date of the filing of the charge; and

(3) an amount not to exceed $10,000 if the housing provider has committed two or more other violations within the seven-year period ending on the date of the filing of the charge.

c. Nothing herein contained shall bar, exclude or otherwise affect any right or action which may exist independently of any right or action created herein, including but not limited to any right or action under P.L.1945, c.169 (N.J.S.A. 10:5-1 et seq.).³

¹[7.] ³[8.¹] 13.³ In accordance with the "Administrative Procedure Act," P.L.1968, c.410 (C.52:14B-1 et seq.), the ¹[Attorney General] ³[Commissioner of Community Affairs¹ may] director shall³ adopt the rules and regulations necessary to effectuate the purposes of this act ³on or before the first day of the fifth month next following enactment³.

¹[8.] ³[9.¹] 14.³ This act shall take effect on the first day of the seventh month next following the date of enactment, but the ¹[Attorney General] ³[Commissioner of Community Affairs¹] divison³ may take any anticipatory administrative action in advance as shall be necessary for the implementation of this act.