A proposed Provo ordinance would place a slew of new burdens on landlords, including a requirement that criminal background checks be run on an applicant -- unless the applicant is a student attending a university with a "code of conduct." In Provo that would exempt students attending Brigham Young University. The ordinance also directs that landlords evict tenants they think have broken a law on the premises.

The ordinance is based on a South Salt Lake City law that establishes a voluntary program for landlords to help reduce crime in rental-heavy areas. In that city, landlords who comply with similar rules receive discounts on their business license fees.

But in the Provo Municipal Council there's sentiment that the requirements ought to be mandatory.

"I guess the thought is that there are some landlords who aren't doing it who ought to be," said Neil Lindberg, the council attorney who drafted the ordinance.

The council will discuss the ordinance in July. If passed, it will go into effect August 1, making Provo the fifth city in the state with a "good landlord" program -- but the first to make it compulsory. That, coupled with what amounts to an exemption on background checks for the city's 30,000 Brigham Young University students, is raising concerns among state and federal housing authorities about religious discrimination.

Council Vice Chairman George Stewart has not yet made up his mind, but he said he's leaning toward a mandatory program.

"My concern with the voluntary is that you have a neighborhood with 10 different rental units or owners -- nine use the system, one doesn't -- and that doesn't accomplish the aim of the program, which is to reduce crime," he said.

Stewart likened a mandatory good landlord program to mandatory car inspections -- the point is to protect everyone, not just the driver.

Discrimination?

The draft of the ordinance exempts from criminal background checks any students of "an institution of higher education which maintains a code of conduct" -- meaning BYU. Because 98.5 percent of BYU students are members of The Church of Jesus Christ of Latter-day Saints, the ordinance appears to give LDS church members an unfair advantage when seeking housing, said Utah Antidiscrimination and Labor Division Director Heather Morrison.

"I obviously have concerns about it," she said. "The majority of non-students -- there's going to be a larger percentage of them who are not LDS who are going to have to be submitted to a background check. So they're favoring."

Morrison said federal fair housing regulations don't allow for laws that give one religious group an advantage over another, even if that's not the stated purpose of the law.

"There are two ways that you prove discrimination: One is direct evidence," like a clause saying Mormons don't need background checks, she said. "The other way is through disparate impact. It really does single out one group over another."

Dwight Peterson, director of the U.S. Housing and Urban Development's Salt Lake City field office, echoed the sentiment, saying the ordinance appeared to be discriminatory, or very close to it.

"The potential problem is that it applies to everyone except BYU students," he said. "That creates the appearance of possible discrimination, because you're giving a special privilege to one particular religious group."

Carri Jenkins, a BYU spokeswoman, said the school had no involvement in the drafting of the ordinance and has no opinion on it. "Provo City is, of course, autonomous from BYU," she said. "We have not been consulted on it," she said.

The school does not run criminal background checks on its students during the admissions process or at any other time, Jenkins said. Student applications must include an endorsement of character from an ecclesiastical leader.

Legally that's not the same as a background check, said Staff Attorney Marina Lowe of the American Civil Liberties Union of Utah.

"If the landlord was relying on the fact that a person is a current student at BYU, that might not necessarily flag that there was a problem with that student," she said.

Utah Apartment Association Executive Director Paul Smith, who was instrumental in setting up the state's first good landlord program in Ogden in 2004, said exempting one group of people poses a danger to the whole community; nevertheless, it's just good business to run criminal background checks on would-be renters.

"In 2008, a landlord would be crazy not to run a background check, period -- whether they're a BYU student or not," Smith said. "There's a lot of fraud in Utah because people don't check things out correctly. The best indicator of future performance is past performance."

Lindberg, the city council's attorney, said nobody employed by Provo has raised concerns about potential discrimination issues in the draft ordinance.

Contract issues

If the ordinance is passed, it would represent a broad change in landlord-tenant relationships. In addition to running background checks, landlords would be required to have written contracts and to evict tenants within five days of discovering "substantial evidence" of "criminal or nuisance activity" on the premises.

While there's nothing intrinsically illegal about either of those ideas, it becomes a problem when the city is requiring it of all landlords, said ACLU's Lowe. A landlord may prefer to handle evictions without the city dictating who stays and who goes, she said.

"You step into a whole new area when you talk about something that is required of all landlords," she said. "I think there's some vague language there, and frankly, I think you step into the arena of violating a landlord's contractual rights."

Stewart said it would be up to the individual landlord to determine what constitutes "criminal or nuisance activity" or "substantial evidence" -- or whether to evict a tenant.

But that view is not supported by a plain language reading of the proposed ordinance, which says "a person who engages in the business of renting or leasing a rental dwelling or a mobile home rental dwelling shall ... use a lease form that allows eviction for criminal or nuisance activity by a tenant or the tenant's guest" and shall "serve an eviction notice upon a tenant within five days of receiving substantial evidence that a tenant or the tenant's guest has been involved in criminal or nuisance activity."

Stewart said the police wouldn't be involved. "That would be a civil matter," he said. "The city and the police wouldn't get involved."

Attorney Lindberg said the eviction clause essentially gives landlords a means of evicting unlawful tenants, but does not force them to. "The intent is that the landlord would have the option of evicting someone," he said.

Provo already instituted one form of a good landlord system called the Crime-Free Multihousing Program about three years ago. It is a voluntary program that asks landlords in larger complexes to run background checks, secure apartments with padlocks and proper lighting, cut back hedges and trees to reduce hiding spots and assemble tenants once a year for a police safety presentation. But with no incentive for landlords to join, participation has been sporadic.

Sgt. Matt Siufanua of the Provo Police Department, who introduced the program here after it saw a successful run in Mesa, Ariz., said he has raised the issue before.

"If it was up to me, I would have them run a very similar program to the one Ogden has," he said.

Siufanua said background checks are the single best way to reduce crime in rental dwellings, but wouldn't say whether he thought the city should require them.

Smith, of the apartment association, said his experience with good landlord programs indicates Provo would be better off with a voluntary program -- both to avoid legal pitfalls and to engender loyalty among landlords.

"I think Provo city council has their heart in the right place," he said. "I think there's better ways to do it than this."

Smith said in cities where good landlord programs are already in place, it has proved more effective to ask for landlords' cooperation and to give them incentives than to force a law on them.

"I fear mandatory programs won't work as well as voluntary incentive programs," he said. "It's human nature to resist. Somebody tells you you've got to do something, you say, 'Oh, yeah?' "

Councilwoman Midge Johnson said she is leaning toward a voluntary system because it appears to be more fair to Provo's landlords.

"To mandate things like that, I think, sometimes is burdensome," she said. "Does anybody like to be told what they have to do? I think we live in America, don't we? I think it's better to have government not mandate so much stuff."

Smith said as much as 90 percent of landlords in the U.S. already run background checks on prospective tenants, but that number is somewhat lower in Utah. Peterson of the local HUD office said the practice is allowed and encouraged, but no cities he knows of have found a good reason to require it.

"We don't think, at this point, the fact that it's mandatory is a problem in and of itself -- it's just perplexing," he said. "It's not typical for a city council to require background checks."

Ex-convicts?

ACLU's Lowe said mandating background checks could also make it nearly impossible for people with any sort of criminal history to find housing within the Provo city limits. While the Provo ordinance does not prevent renting to someone with such a history (it only requires that landlords run the check and be aware of it) the requirement still stacks the deck against those people, she said. These are people who supposedly have already paid their debt to society, she added.

"I know that the motivations of these are often to reduce crime, but I wonder sometimes where these people are supposed to go," she said. "You can argue ultimately if that does more harm or good to society in the long run."

Smith said keeping criminals out is exactly the point.

"Absolutely it's designed to discriminate against criminals," he said. "Criminals are not a protected class. There's no law that says I can't discriminate against criminals. The whole purpose of these programs is to reduce crime, and we reduce crime by not renting to criminals in the first place."

One inconclusive statistic appears to favor Smith's reasoning: In Ogden's first year under the new rule, the city reported a 26 percent drop in the number of police and fire calls to rental dwellings. More years would need to be measured to establish a trend, but three other Utah cities that have adopted similar laws -- South Salt Lake City, West Valley City and Washington Terrace -- have all reported drops in crime.

Ogden's program includes a requirement that participating landlords may not rent space to anyone with a felony conviction within the past four years -- a step beyond Provo's proposed ordinance. That may seem harsh, but the 40 percent of landlords in town who don't participate in the program can still provide plenty of space for ex-convicts, said Management Services Director Mark Johnson, who oversees the program. Johnson said nobody has ever challenged the legality of the program in court, although ex-convicts regularly call to complain about finding places to live.

"I'm sure it seems discriminatory to some of them, but it's certainly not meant that way. We're trying to clean up an entire downtown," he said. "What we have found is that 80 percent of those who have committed a felony and have come out of prison re-offend within the first year. It takes them a while to show that they've kind of changed their lifestyle."

Provo administrators don't yet have an opinion on the proposed ordinance, said Chief Administrative Officer Wayne Parker. The council has requested feedback and should get some in time for the work session, he said.

"We have provided copies of that to our key staff members," he said.

• Ace Stryker can be reached at 344-2556 or This e-mail address is being protected from spam bots, you need JavaScript enabled to view it