San Marcos Municipal Code Ch. 8.92 Aids Discrimination

It is hereby declared as the public policy of the City of San Marcos, that it is necessary to protect and safeguard the rights and opportunities of persons with AIDS, ARC or ARS in respect to discrimination in housing, business establishments, testing and City facilities and services.

(a)

AIDS means Acquired Immune Deficiency Syndrome, a disease complex which occurs when an important part of the human immune system is destroyed by the action of a human immune deficiency virus known as HIV and previously referred to as HTLV-III or LAV and as it may be further defined by the United States Public Health Services Center for Disease Control. AIDS is manifested by infections, cancers or neurological diseases.

(b)

ARC means AIDS-related complex. ARC occurs when the human immune system is weakened by the AIDS virus, and such conditions as enlarged lymph nodes, fever, weight loss, malaise, and chronic diarrhea result. ARC may or may not develop into AIDS.

(c)

ARS means AIDS-related status. Such status includes being infected with the virus that causes AIDS.

(d)

Business establishment includes any entity, however organized, which furnishes goods or services, including educational services, or accommodations to the general public; including any entity which has a membership requirement if its membership requirement

consists only of the payment of a membership fee and a substantial number of the residents within the City of San Marcos could qualify.

(e)

Employee includes any person employed by an employer.

(f)

Employer means any person regularly employing one or more persons, or any person acting as an agent of an employer, directly or indirectly.

(g)

Employment Agency means any person regularly undertaking compensation to procure employees for an employer, or to procure for employees, opportunities to work for an employer and includes an agent of such a person.

(h)

Housing Accommodation includes any improved or unimproved real property, or portion thereof, which is used or occupied, or is intended, arranged or designed to be used or occupied, as the home, residence, or sleeping place of one or more persons.

(i)

Housing Services shall mean services otherwise provided by the owner of any housing accommodation to persons renting or leasing such housing accommodation, including, but not limited to, utilities such as light, heat, water and telephone; ordinary repairs or replacement, and maintenance, including painting; elevator services, laundry facilities and privileges, the use of common recreational facilities, janitorial services, resident manager, refuse removal, furnishings, food service, parking and any other benefits, privileges or facilities provided.

(j)

Labor Organization means any organization which exists and is constituted for the purpose, in whole or in part, of collective bargaining or of dealing with employers concerning grievances, terms or conditions of employment, or of other mutual aid or protection.

(k)

Owner includes the lessee, sublessee, assignee, managing agent, real estate broker or salesman, or any person having any legal or equitable right of ownership or possession or the right to rent or lease housing accommodations.

(l)

Person includes one or more individuals, partnerships, associations, corporations, labor organizations, legal representatives, trustees, trustees in bankruptcy, and receivers or other fiduciaries.

(a)

It shall be unlawful for any owner of any housing accommodation or housing service to discriminate against any person because such person has AIDS, ARC or ARS.

(b)

Nothing in this Section shall:

(1)

Apply to any housing accommodation in which the owner or any member of his or her family occupies the same housing accommodation in common with the prospective tenant. This exception shall not apply where the owner occupies a separate apartment, condominium or other housing unit in a multiple-unit complex.

(2)

Permit or require the rental or occupancy of any housing accommodation otherwise prohibited by law.

(3)

Otherwise interfere with any just cause for an owner to evict a person from any housing accommodation or permit the delay of any unlawful detainer action.

(4)

Require the renting of any housing accommodation reserved for the housing of students to non-student persons with AIDS, ARC or ARS.

It shall be unlawful for any person to deny any person the full and equal enjoyment of the goods, services, facilities, privileges, advantages and accommodations of any business establishment on the grounds that such person has AIDS, ARC or ARS.

(a)

It shall be unlawful for any person to require another person to take any test or undergo any medical procedure designed to determine that a person has AIDS or ARC or carries the AIDS virus.

(b)

Nothing in this Section shall:

(1)

Prohibit any testing or medical procedure authorized by the laws of the United States, the State of California, the County of San Diego, or the City of San Marcos, or any testing or medical procedure required by the County Department of Health Services to protect the public health;

(2)

Apply to an employer who can show that the absence of AIDS, ARC, or the AIDS virus is a bona fide occupational qualification.

(a)

It shall be unlawful to deny any person the full and equal enjoyment of, or to impose less advantageous terms, or restrict the availability of, the use of any City facility or participation in any City funded or supported service or program on the grounds that such person has AIDS, ARC or ARS.

(b)

Nothing in this Section shall:

(1)

Apply to any facility, service or program which does not receive any assistance from the County and which is not open to or provided to the public generally; or

(2)

Restrict services or programs specifically designated for persons with AIDS, ARC or ARS.

(a)

It shall be unlawful:

(1)

For an employer to:

a)

Fail or refuse to hire or to discharge any person with respect to his compensation, terms, conditions, or privileges of employment, on the basis such person has AIDS, ARC or ARS; or

b)

Limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any person of employment opportunities or otherwise adversely affect his status as an employee, on the basis such person has AIDS, ARC or ARS.

(2)

For an Employment Agency to:

a)

Fail or refuse or refer for employment, or otherwise to discriminate against, any person, or to classify or refer for employment, any person on the basis such person has AIDS, ARC or ARS.

(3)

For a Labor Organization to:

a)

Exclude or to expel from its membership or otherwise to discriminate against, any person on the basis such person has AIDS, ARC or ARS;

b)

Limit, segregate, or classify its membership or applicants for membership or to classify or fail or refuse to refer for employment any person, in any way which would deprive or tend to deprive any person of employment opportunities, or would limit such employment opportunities or otherwise adversely affect his status as an employee or as an applicant for employment, on the basis such person has AIDS, ARC or ARS; or

c)

Cause, or attempt to cause, an employer to discriminate against any person in violation of this section.

(4)

For any employer, labor organization, or joint labor management committee controlling apprenticeship or other training or retraining, including on-the-job training programs, to discriminate against any person on the basis of AIDS, ARC or ARS in admission to, or employment in, any program established to provide apprenticeship or other training.

(b)

Notwithstanding any other provision of this chapter, it shall not be unlawful:

(1)

For an employer to hire and employ employees, for an employment agency to classify, or to refer for employment any person, for a labor organization to classify its membership or to classify or refer for employment any person, or for an employer, labor organization, or joint labor-management committee controlling apprenticeship or other training or retraining programs to admit or employ any person in any such program, on the basis such person has AIDS, ARC or ARS in those certain instances where lack of AIDS, ARC or ARS is a bona fide occupational qualification reasonably necessary to the normal operation of that particular business or enterprise.

(2)

For an employer to apply different standards of compensation, or different terms, conditions or privileges of employment pursuant to a bona fide seniority or merit system, or a system which measures earnings by quantity or quality of production or to employees who work

in different locations, provided that such differences are not the result of an intention to discriminate against a person on the basis such person has AIDS, ARC or ARS.

(3)

For an employer to give and to act upon the results of any professionally developed ability test provided that such test, its administration or action upon the results of such test is not designed, intended or used to discriminate against a person on the basis such person has AIDS, ARC or ARS.

It shall be unlawful to make, print, publish, advertise or disseminate in any way, or cause to be made, printed, published, advertised or disseminated in any way, any notice, statement, sign, advertisement, application or contract which indicates an intent to engage in any practice made unlawful by this chapter.

(a)

Nothing in this chapter shall be construed to prohibit any act specifically authorized by the laws of the United States, the State of California or the City of San Marcos or any act required by the County Department of Health Services to protect the public health.

(b)

Nothing in this chapter shall prohibit any act which is necessary to protect the health or safety of the general public. If a party to any action brought under this chapter asserts that an otherwise discriminatory practice is justified as necessary to protect the health or safety of the general public, that party shall have the burden of proving:

(1)

That the discrimination is in fact a necessary result of a necessary course of conduct pursued to protect the health or safety of the general public; and

(2)

That there exists no less discriminatory means of satisfying the necessary protection of the health or safety of the general public.

Any person who violates any of the provisions of this chapter, or who aids in the violation of any provisions of this chapter, is liable for each and every such offense for civil damages up to a maximum of three times the amount of actual damages, for punitive damages as may be determined by a jury or a court sitting without a jury, and for costs, including reasonable attorney's fees, as may be determined by the court.

(a)

Any aggrieved person may enforce the provision of this chapter by means of a civil action.

(b)

Any person who commits, or proposes to commit, an act in violation of this chapter may be enjoined therefrom by a court of competent jurisdiction.

(c)

An action for injunction under subsection (b), may be brought by an aggrieved person or entity which will fairly and adequately represent the interests of the aggrieved person.

(d)

Nothing in this chapter shall preclude any aggrieved person from seeking any other remedy provided by law.

(e)

An action arising under this chapter shall not be rendered moot because of the death or physical or mental incapacity of the person who was the subject of the claimed discrimination.

(f)

Notwithstanding any provision of law, no criminal penalties shall attach for any violation of the provisions of this chapter.

This chapter has been enacted at the request of the County of San Diego in order to ensure similar protection within the City of San Marcos as are currently provided by an ordinance adopted by the Board of Supervisors of the County of San Diego. The basis for adoption of this ordinance is contained in Section 32.1201 of the San Diego County Code of Regulatory Ordinances as adopted by County Ordinance 7435 (New Series).

If any part or provision of this chapter, or the application thereof, to any person or circumstance is held invalid, the remainder of the Chapter, including the application of such part or provision to other persons or circumstances, shall not be affected thereby and shall continue in full force and effect. To this end, provisions of this chapter are severable.

(Ord. No. 88-785, 5-24-88)