CHAPTER 8.32
AIDS NONDISCRIMINATION ORDINANCE

8.32.010 Title.

This chapter of the city of Petaluma Municipal Code may be cited as the "AIDS Nondiscrimination Ordinance" of the city of Petaluma. (Ord. 1903-A NCS §1 (part), 1992.)

8.32.020 Policy.

It is the policy of the city of Petaluma to eliminate discrimination based on the fact that a person has AIDS or a related condition, or HIV infection. In adopting this ordinance, the city council of the city of Petaluma does not intent to proscribe any activity the proscription of which would constitute an infringement of the Constitution of the United States or the Constitution of the State of California. Recognizing that existing federal and state enactments proscribe such discrimination in some, but not all, circumstances, the city council finds that such enactments do not occupy the field of such arbitrary discrimination, but that local regulation is both necessary and proper. This chapter is not intended, and shall not be construed to apply to any person or activity which is regulated by federal or state law, to the extent that application of this chapter would conflict with such law or would unduly interfere with the achievement of federal or state regulatory objectives. It is the intention of the council of the city of Petaluma that this chapter shall be interpreted to be compatible with federal and state enactments, and in furtherance of the public policies which those enactments express. (Ord. 1903-A NCS §1 (part), 1992.)

8.32.030 Findings.

The council of the city of Petaluma has studied documents and heard testimony, and makes the following findings:

A.    AIDS is a deadly disease which affects a substantial number of Petaluma residents.

B.    AIDS is caused by infection with Human Immune Virus (HIV, "AIDS virus"), which is transmitted through significant exposure to certain body fluids, most notably blood and semen. The Human Immune Virus cannot be transmitted through casual contact or through the handling of food by infected persons.

C.    Nevertheless, unreasonable fear of contracting the disease has caused landlords, employers, and providers of services to discriminate against persons infected with the AIDS virus.

D.    Such discrimination causes additional burdens to be placed on those persons or entities who do not discriminate, particularly on public and private nonprofit groups engaged in health and social services to persons with AIDS.

E.    Such discrimination by landlords, employers and providers of services gives those who engage in discriminatory practices an unfair competitive advantage over those who do not.

F.    Such discrimination is against the public policy of the state of California and the United States, but state and federal enactments do not address all aspects of such discrimination, nor do they preempt local legislation. Local action is therefore necessary to address the local impacts of such discrimination. (Ord. No. 1903-A NCS §1 (part), 1992.)

8.32.040 Prohibited conduct.

A.    Discrimination Prohibited. Discrimination against any person because that person has AIDS, an HIV condition, or any disease which cannot be casually transmitted, is prohibited.

B.    Retaliation Prohibited. It shall be unlawful for any person to discriminate against a person who has:

1.    Opposed any act or practice made unlawful by this ordinance;

2.    Supported this ordinance or its enforcement;

3.    Filed a complaint under this ordinance;

4.    Testified, assisted or proceeded in any way in any investigation, proceeding or litigation under this chapter.

(Ord. 1903-A NCS §1 (part), 1992.)

8.32.050 Definitions.

A.    "AIDS" means Acquired Immune Deficiency Syndrome.

B.    "Business entity" means any person, partnership, corporation or other entity, whether public or private, however organized, which provides goods or services to the public. The existence of membership requirements does not exempt any organization if (1) the only requirement for membership is payment of dues, or (2) membership is restricted only by occupation, gender, age or similar qualification which includes a substantial number of Petaluma residents, with or without dues.

C.    "Discrimination" includes but is not limited to the following actions affecting a person based upon the knowledge or perception that the person has an HIV disease or infection:

1.    By an employer: Limiting, segregating, classifying or taking any adverse action against an otherwise qualified employee or job applicant;

2.    By an employer: Not making reasonable accommodations to the limitations of an otherwise qualified applicant or employee so as to deprive any individual of employment opportunities, or otherwise adversely affect his or her status as an employee.

3.    By an employer: To fail or refuse to refer for employment any individual, or otherwise to discriminate against any individual;

4.    By an educational institution: To deny admission, services or use and enjoyment of facilities, or to impose different terms or conditions upon admission, services, or use and enjoyment of services;

5.    By a health care provider or business entity: To exclude from participation in or to deny the benefits of the services, programs or activities of the provider or entity, or to provide such services, programs or activities on less favorable terms;

6.    By any person: Doing any of the acts described in this definition of discrimination because a person associates with a person who has or is perceived to have an HIV condition;

7.    In housing: To refuse to rent or lease a rental unit, refuse to negotiate for the rental or lease of a rental unit, evict from a rental unit, or otherwise deny to or withhold a rental unit or services connected therewith from any person, or to rent or lease a rental unit or provide related services on less favorable terms.

D.    "Educational institution" means any corporation, partnership or business entity engaged in training, classes or education of adults or children.

E.    "Employer" means any person regularly employing one or more persons, or any person acting directly or indirectly as the agent of an employer, including an employment agency.

F.    "Health care provider" means any person or facility licensed or certified by the state or any emergency medical services agency to provide health care, including medical transport, prehospital emergency care, dental care and mental health care.

G.    "HIV" means the infectious agent known as Human Immune Virus, Human Immunodeficiency Virus, HTLV-III, LAV or AIDS virus.

H.    "HIV condition" means AIDS, AIDS-Related Complex, or HIV infection.

I.    "Housing" means use or occupancy of any rental unit, including dwelling units, guest moms, hotel or motel rooms, suites or dormitories rented or offered for rent for living or dwelling purposes, the land and building appurtenant thereto, and all services, privileges and facilities supplied; in connection with the use or occupancy thereof. This term shall also include mobile homes whether rent is paid for the mobile home and the land upon which it is located, or rent is paid for the land alone.

J.    "Otherwise qualified" describes a person with an HIV condition, who, with or without reasonable modifications to rules, policies or practices or the provision of auxiliary aids or services, meets the essential eligibility requirements for the receipt of services or participation in programs or activities or for employment or housing.

K.    "Person" includes any individual or legal entity, public or private, located or doing business within the city of Petaluma. (Ord. 1903-A NCS §1 (part), 1992.)

8.32.060 Exceptions.

A.    Owner-Occupied Dwellings. Nothing in this chapter shall be construed to apply to the rental or leasing of any housing unit in which the owner or lessor or any member of his or her family occupies the same dwelling unit as the prospective tenant.

B.    Employee Benefit Systems. Nothing in this chapter is intended to require an employer to violate the conditions of a bona fide employee benefit program. Notwithstanding the foregoing, an employee benefit program which prohibits or is construed to prohibit the hiring of any person who would otherwise be required to be hired under the provisions of this chapter, or which purports to exclude coverage of HIV conditions either by its express terms or by exclusion of conditions such as sexually-transmitted diseases or transfusion-related conditions is to that extent void as against public policy.

C.    In-Home Employers. Nothing in this chapter shall apply to employment of individuals to perform services in the place of residence of the employer.

D.    Bona Fide Occupational Qualifications. Nothing in this chapter shall be deemed to prohibit selection or rejection based upon a bona fide occupational qualification or the lack thereof. However, in any action brought under this chapter, if a party asserts that an otherwise prohibited practice is justified by a bona fide occupational qualification, that party shall have the burden of proving: (a) that the discrimination is in fact a necessary result of a bona fide occupational qualification; and (b) that there exists no less discriminatory means of satisfying the occupational qualification.

E.    Lawful Insurance Practices. Discrimination as defined in this chapter does not include actions taken by insurance companies which are expressly permitted by state or federal law with respect to applicants or covered person or groups.

F.    Religious Organizations. Discrimination as defined in this chapter does not include bona fide restrictions by religious organizations limiting employment or services to persons of the same religion.

(Ord. 1903-A NCS §1 (part), 1992.)

8.32.070 Enforcement.

A.    Any aggrieved person may enforce the provisions of this chapter by means of a civil action for damages, injunction, and such other relief as the court may allow.

B.    Any person who permits, or who proposes to commit any act in violation of this chapter may be enjoined therefrom by a court of competent jurisdiction. An action for injunction under this section may be brought by any aggrieved person, by the city council, or by any person or entity which will fairly and adequately represent the interests of the protected class.

C.    The criminal penalties imposed by Chapter 1 of this code shall not apply to violations of this chapter.

(Ord. 1903-A NCS §1 (part), 1992.)

8.32.080 Limitation of actions.

Any action or complaint under this chapter must be commenced within two years of the date upon which the alleged discriminatory act occurred. This time period shall not begin to run until the aggrieved person discovers or with reasonable diligence should have discovered the discriminatory act. (Ord. 1903-A NCS §1 (part), 1992.)

8.32.090 Waiver not valid.

Any written or oral agreement to waive any of the provisions of this ordinance is against public policy and therefore void. (Ord. 1903-A NCS §1 (part), 1992.)

8.32.100 Application.

A.    The provisions of this chapter shall apply within the city of Petaluma.

B.    To the extent permitted by public bidding laws, the city of Petaluma shall require that all contract suppliers of goods or services comply with the provisions of this chapter. The city council may waive this requirement upon a finding that a specified countervailing public policy requires doing so.

(Ord. 1903-A NCS §1 (part), 1992.)