Restraining order sought against new Farmers Branch rental ban

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by By STEPHANIE SANDOVAL / The Dallas Morning News

wfaa.com

Posted on August 15, 2009 at 4:44 PM

Updated Friday, Oct 16 at 4:28 PM

Anyone who wants to rent a house or apartment in Farmers Branch will have to obtain a city license starting Monday unless opponents persuade one of two courts today to issue a temporary restraining order.

Attorneys for both sides will go before U.S. District Judge Jane Boyle at 2 p.m. for one hearing. The proceeding is part of a lawsuit that seeks to overturn the ordinance, the city's latest strategy for barring housing rentals to illegal immigrants.

The plaintiffs say the law discriminates against Hispanics and is unconstitutional. The city counters that it is aimed at lawbreakers, not any ethnic group.

It's not known what Judge Boyle will do. A different federal judge, Sam Lindsay, in May struck down a previous ordinance banning apartment rentals to most illegal immigrants and harshly criticized the new measure as "yet another attempt to circumvent ... prior rulings and further an agenda that runs afoul of the United States Constitution."

Cases are randomly assigned to judges in the federal court, and Judge Boyle drew the latest lawsuit.

Hedging their bets, the plaintiffs' attorneys, led by Bill Brewer, also petitioned in state District Court on Thursday for a restraining order.

That request is the latest motion in a previously filed lawsuit by a Farmers Branch resident alleging that the city violated the Texas Open Meetings Act in its discussion of the new measure, Ordinance 2952.

Filed with the request was a copy of an e-mail from Tim O'Hare - then a City Council member, now mayor - that included a draft ordinance similar to Ordinance 2952 but with substantially different wording.

City Manager Gary Greer has said the council didn't see the Farmers Branch ordinance until a few days before approving it in January. The plaintiffs say the O'Hare e-mail, sent to someone called "SWS" six months before the vote, shows the council improperly deliberated and discussed the ordinance in secret.

Mr. O'Hare denied the charge.

"There are model ordinances addressing this issue floating around all over the country," he said Thursday.

"We didn't do anything illegal. We've never done anything illegal, and any assertion that we have is just garbage."

If no restraining order is issued, renters starting Monday will have to get an occupancy license by paying $5 and declaring their U.S. citizenship or legal residency. The city plans to check the immigration status of non-citizens in a federal database called Systematic Alien Verification for Entitlements, or SAVE.

But the checks may have to wait. Chief building inspector Jim Olk said Thursday that the city hasn't reached an agreement with U.S. Customs and Immigration Services to access the database.

The city started the process in January, when Ordinance 2952 was adopted, but was turned down then because the ordinance was not in effect.

Judge Lindsay's rejection of the earlier ordinance, 2903, two weeks ago triggered a 15-day countdown to implement the new one. With implementation at hand, the city submitted paperwork again Monday for access to the database.

Maria Elena Garcia-Upson, regional media manager for the Department of Homeland Security, U.S. Citizenship and Immigration Services, said the agency hadn't yet received it. She could not say how long it might take to reach an agreement.

SAVE is designed for agencies that grant benefits or issue licenses to determine a non-citizen's immigration status.

"An agency qualifies for SAVE," Ms. Garcia-Upson said, "if the agency is a federal, state or local government agency or licensing bureau and provides a public benefit, license or credential or is otherwise authorized by law to engage in an activity for which verification of citizenship or immigration status is appropriate."

The city will require renters to obtain licenses even before it gains access to the database, Mr. Olk said. That can be done at City Hall, or by visiting www.farmersbranch.info.

"They can fill out the form and print their license right where they sit" and be billed for the $5, Mr. Olk said.

He said some apartment complexes plan to handle the application for prospective tenants.

"They're going to make that part of the overall process of doing their background and credit checks and fill that information out for them, and we'll bill the apartments for it," Mr. Olk said.

The city has 3,022 apartment units in 17 complexes and an estimated 1,620 single-family rental houses, Mr. Olk said.

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