A fair housing ordinance enacted by the City of Tucson in September violates state law, and could result in the Arizona Treasurer withholding funds to the city if not repealed in 30 days.
That is the opinion issued Dec. 22 by the Arizona Attorney General’s Office (AGO) following an investigation undertaken in response to a complaint recently filed by State Rep. Ben Toma after Tucson passed Ordinance No. 11959 prohibiting discrimination in housing based on a person’s “lawful source of income.”
Toma, who is now the House Speaker-elect, filed what is known as a 1487 complaint over concerns that Tucson’s new ordinance violates longstanding federal and state fair housing laws.
Under Arizona’s existing fair housing law, a person “may not refuse to sell or rent after a bona fide offer has been made or refuse to negotiate for the sale or rental of or otherwise make unavailable or deny a dwelling to any person because of race, color, religion, sex, familial status or national origin.”
In addition, a person “may not discriminate against any person in the terms, conditions or privileges of sale or rental of a dwelling, or in providing services or facilities in connection with the sale or rental, because of race, color, religion, sex, familial status or national origin.”
One thing Deputy Solicitor General Michael Catlett notes in the AGO’s investigative report is that Arizona law does not include the right to be free from discrimination based on source of income. Whether such a protection is worthwhile – as city officials argued – was not considered by the AGO because the City of Tucson is 28 years too late in enacting such an ordinance, Catlett noted.
According to the 21-page AGO report, Tucson was given an option by the Arizona Legislature in 1992 to update its fair housing policies. One of the conditions was that any changes were completed by Jan. 1, 1995.
City officials, however, took no action by the deadline which makes the new ordinance inconsistent with Arizona law, Catlett determined. And if city officials do not repeal Ordinance 11959 within 30 days, the AGO “will notify the State Treasurer, who shall withhold state shared monies” in accordance with state law.
Toma called the AGO’s investigative report “an important check” on government.
“We are all bound by the laws of this state and the Constitution,” Toma said in response to the report. “If we hold this expectation for our citizens, then we should do the same for the government. It’s really that simple.”
Tucson has fallen victim to no-growth policies including “not in my back yard” advocates which has put the city in the position of not having enough housing for its citizens, according to Toma.
If Tucson wants to address the housing situation, “then it needs to look inward and remove the barriers that have caused its housing shortage,” Toma said.
And the solution, he added, is quite simple.
“Build more housing. That’s the only answer here.”
Tucson has 30 days to repeal Ordinance 11959. If the City does not repeal, then A.R.S. 41-194.01 requires the State Treasurer to withhold state shared monies until notified by the AGO that the city has come into compliance.
One question will be whether the attorney general’s report will be revised or even overturned by Attorney General-elect Kris Mayes, a Democrat, if she withstands the election challenge filed by Abe Hamadeh, the Republican nominee.
Because the city missed the 1995 deadline for enacting changes to its fair housing policy, the AGO did not address whether Ordinance 11959 and its protection based on lawful source of income is substantially equivalent to federal and state fair housing laws.
Terri Jo Neff is a reporter for AZ Free News. Follow her latest on Twitter, or send her news tips here.
Criticism continues to grow against a sweeping new federal mandate supported by the Biden Administration which requires private employers of 100 or more employees to develop and enforce a mandatory COVID-19 vaccination policy.
The mandate, outlined in a 490-page document, is referred to as an Emergency Temporary Standard (ETS). It establishes a Jan. 4, 2022 deadline for compliance, and requires employees of those companies to be vaccinated or be forced to wear a face covering at work while undergoing regular COVID-19 testing at the employee’s expense.
The Industrial Commission of Arizona (ICA) and the Arizona Attorney General’s Office are pushing back on the mandate which is estimated to cover more than 84 million employees, or about two-thirds of America’s private-sector workforce. OSHA estimates that about 23 million Americans will choose to undergo the vaccination to preserve their jobs.
On Thursday, the ICA issued a statement that Arizona businesses are not bound by OSHA’s mandate unless the commissioners vote to formally adopt a similar policy. Arizona is one of 22 states previously granted federal approval to operate a state plan to address issues typically under the purview of OSHA.
Then on Friday morning, Arizona was one of 11 state plaintiffs in a federal lawsuit filed in the U.S. Eighth Circuit Court of Appeals against President Joe Biden and OSHA to stop the COVID-19 ETS. The petition contends the vaccination mandate “is unconstitutional, unlawful, and unwise” and an attempt to infringe on the States’ powers expressly reserved by the Tenth Amendment.
In addition to Arizona, the attorneys general from Alaska, Arkansas, Iowa, Missouri, Montana, Nebraska, New Hampshire, North Dakota, South Dakota, and Wyoming are plaintiffs.
Also on Friday, State Rep. Steve Kaiser criticized the White House’s support of the workplace vaccine mandate, calling it “an onerous and overreaching policy that will hurt businesses and the people who they employ.”
Kaiser, a Republican who represents LD15 covering north Phoenix and Cave Creek, owns Junk King, a Phoenix area franchise providing removal and hauling services.
“As a small business owner, it’s clear to me that Biden’s policy would force employees to choose between being vaccinated against their will, completing weekly COVID-19 testing (at their own expense), or losing their jobs. That’s wrong,” he said. “It’s more critical than ever that Arizona defend businesses and their employees and ensure their ability to continue making decisions for themselves – instead of liberal politicians in Washington.”
According to Kaiser, state officials are doing the right thing by trying to protect Arizonans who would be harmed by implementation of what he calls a “terrible” mandate. He supports ICA’s position that Arizona -and not OSHA- has had the exclusive responsibility for nearly 50 years for developing and enforcing any occupational safety and health standards within the state.
“Under Arizona’s long-approved state-plan procedures, the Industrial Commission has exclusive authority to decide if, when, and to what extent the State of Arizona will adopt the OSHA vaccination ETS,” the ICA statement reads. “Arizona has a 47-year track record of protecting the safety and health of Arizona’s workers and remains fully committed to this mission.”
The ETS requires employers to determine the vaccination status of each employee, obtain acceptable proof of vaccination, maintain records of each employee’s vaccination status, and maintain a roster of each employee’s vaccination status. It also requires employers to provide employees with a variety of information and literature about COVID-19 and to provide an employee “reasonable time and paid sick leave to recover from side effects experienced following each dose.”
In addition, employers are now mandated to report work-related COVID-19 fatalities to OSHA within 8 hours of learning about them, and work-related COVID-19 in-patient hospitalizations within 24 hours of the employer learning about the hospitalization.
For now, OSHA officials are less confident that smaller employers can implement a mandatory vaccination policy “without undue disruption.” But it appears those smaller businesses could be facing a similar mandate in the future.
“OSHA needs additional time to assess the capacity of smaller employers, and is seeking comment to help the agency make that determination,” it says.
