LEGISLATION REPORT: Provided By HBAI  1.29.2021

There is a major flurry of hundreds of bills as we are a few weeks away from the first funnel. Just about any topic that you can think of is on the list to add or change laws. You’re hearing about the big issues being run in a laser focused fashion, but there is other business happening. Here is an update on bills we have already discussed and a few new ones. It’s once again in numerical order by each stage of the process, not in order of priority. Here they are:

SSB1006 – An Act relating to the perfection of mechanics’ liens and mechanics’ liens remedies. This bill specifies that a perfected mechanic’s lien shall be limited to the county or counties in which the building, land, or improvement to be charged with the lien is situated. The bill also provides that, in addition to an action to enforce a mechanic’s lien, attorney fees may be awarded to a prevailing plaintiff in an action brought upon any bond given in lieu of a mechanic’s lien. This bill is an affirmative legislative item from the Iowa State Bar Association’s (ISBA) Construction Law Section. Attorney Jodie McDougal, Vice-Chair of the ISBA Construction Law Section Council, was the initial driving force behind, and drafted, this bill. In December, Jodie presented the bill to the ISBA Board of Governors for approval on the ISBA’s legislative agenda. This bill would make two important changes to Iowa lien law (Iowa Code Chapter 572) to the benefit of all contractors, subcontractors, and other lien claimants. First, the bill would amend Iowa Code § 572.8 to allow a mechanic’s lien involving a realty covering multiple counties to be posted once on the centralized, digital MNLR system and indexed on all applicable counties, thereby eliminating the current practice of attorneys posting duplicative liens–one for each county. Second, the bill would amend Iowa Code § 572.32 to provide statutory certainty on the recovery of attorney fees by prevailing claimants in mechanic’s lien actions where the lien is discharged by a bond, as there is a disagreement among district courts in this regard. This amendment expressly allows for recovery of attorney fees by prevailing contractors in all mechanic’s lien actions, including where liens are discharged by bond. If passed, this change in the law would be a big win for contractors. We are in Favor

SSB1046 – An Act relating to the operation of state government, including the review of state boards, the regulation of professions and occupations, and investigations conducted by state boards, and including effective date and applicability provisions. This bill relates to the operation of state government, including the review and sunset of state boards and agencies and the regulation of professions. The bill is organized into divisions. Undecided

SSB1055 – An Act concerning private sector employee drug testing. The bill provides that various notifications required under current law to be provided by certified mail, return receipt requested, shall instead be provided in person or by electronic notification. The bill provides that attorney fees awarded to an aggrieved employee or prospective employee as part of affirmative relief in a civil action for a violation of Code section 730.5 must be reasonable. In such an action, the bill provides that an aggrieved employee or prospective employee has the burden of proving by clear and convincing evidence that a violation of Code section 730.5 directly caused any damages for which affirmative relief is sought. Undecided

SSB1079 – An Act relating to the authority of counties and cities to regulate rental housing, and including effective date provisions. This bill relates to the authority of counties and cities to regulate rental housing. The bill prohibits a county or city from adopting or enforcing an ordinance or regulation that prohibits a person who has the right to lease, sublease, or rent out a dwelling unit from refusing to lease or rent out the dwelling unit to a person because of the person’s use of a federal housing choice voucher issued by the United States department of housing and urban development. Such an ordinance or regulation adopted prior to the effective date of the bill is void and unenforceable on and after the effective date of the bill. For purposes of the bill, “dwelling unit” means a structure or the part of a structure that is used as a home, residence, or sleeping place. Undecided

SF10 – An Act relating to real estate transfer tax moneys transferred to the housing trust fund. Under current law, 30 percent of the real estate transfer tax receipts paid by county recorders to the treasurer of state are transferred to the housing trust fund in any one fiscal year, subject to a $3 million cap; moneys in excess of the cap are deposited in the general fund of the state. This bill eliminates the cap. For

SF84 – An Act relating to the employment of unauthorized aliens and providing penalties. “Employer” is defined as the same as provided in Code chapter 96 relating to unemployment insurance. “Unauthorized alien” is defined as an alien who does not have the legal right or authorization under federal law to work in the United States as described in 8 U.S.C. §1324a(h)(3). Undecided

HSB22 – An Act creating the criminal offense of defrauding a drug or alcohol test and providing penalties. The bill prohibits a person from manufacturing, marketing, selling, distributing, using, or possessing synthetic urine or a urine additive for the purpose of defrauding a drug or alcohol test; prohibits a person from knowingly using the person’s own urine expelled or withdrawn prior to the collection of a urine sample from the person for a drug or alcohol test for the purpose of defrauding a drug or alcohol test; and prohibits a person from knowingly using the urine of another person to defraud a drug or alcohol test. Undecided

HSB165 – An Act relating to private flood insurance, making penalties applicable, and including applicability and future repeal provisions. This bill establishes the “Iowa Private Flood Insurance Act” to foster innovation in private flood insurance, allow insurers to test private flood insurance products in the market, and to provide consumers with more flood insurance options. Undecided

HSB166 – An Act prohibiting counties and cities from regulating the sale of natural gas and propane. This bill prohibits a county or city from adopting, enforcing, or otherwise administering an ordinance, motion, resolution, or amendment, or using other means, to restrict, impede, regulate, or prohibit (1) the provision of natural gas service by a public utility, a competitive natural gas provider, a retail propane marketer, or a retail propane dispenser to a person, business, municipality, or other wholesale or retail customer within or outside the county or city, and (2) the purchase of natural gas or propane from a competitive natural gas provider, a retail propane marketer, or a retail propane dispenser, or the receipt of natural gas or propane service from a public utility, by any person, business, municipality, or other wholesale or retail customer within or outside the county or city. For

HF97 and HF286 – An Act requiring the electrical examining board within the division of state fire marshal of the department of public safety to adopt the 2020 edition of the national electrical code and including effective date provisions. The bill requires the electrical examining board within the division of state fire marshal of the department of public safety to adopt the 2020 edition of the national fire protection association’s national electrical code, with no amendments, … Against

HF298 – An Act relating to the authority of a county to adopt set-back requirements. This bill relates to the authority of a county to adopt set-back requirements. Under current law, a county board of supervisors may by ordinance regulate certain physical characteristics of property located in the county but outside the corporate limits of a city. Such an ordinance does not apply to land, farm houses, farm barns, farm outbuildings, or other buildings or structures that are primarily adapted, by reason of nature and area, for use for agricultural purposes while so used. The bill authorizes a county board of supervisors to adopt an ordinance that establishes a building or structure set-back requirement of up to 75 feet from a public right-of-way regardless of the use of any affected property. Undecided

Waterloo Ban the Box Regulation – Pay Attention

The City of Waterloo has enacted Iowa’s first “Ban the Box” regulation and has also enacted rules as to how criminal records may be used even after the hiring process. The “box” is a question on applications for employment about prior criminal convictions.
Davis Brown employment law attorney, Jo Ellen Whitney, has published an article about this change and what it means for employers in Waterloo. If you have employees in Waterloo, you should consult with an attorney to ensure that your hiring practices are compliant with this new regulation.
The regulation is also important for employers around the state to consider because of the potential for other cities to adopt similar regulations. Also, as Jo Ellen points out, in 2018, the Iowa legislature passed a statute prohibiting cities and counties from enacting regulations impacting conditions of employment, so there is potential that the Waterloo regulation will be challenged in court. Consult an attorney if you have questions about this regulation or any other employment law matters.

Landlord Legislation Update – HBAI News Weekly May 30, 2019

Here is a great synopsis by David Brown Law Firm Attorney Jodie McDougal:
Senate File 447: This pro-landlord law prohibits cities from adopting or enforcing any regulation, restriction, or other ordinance related to residential property rental permit caps on single-family homes or duplexes. This was a great victory for Iowa residential landlords, particularly in cities that had already enacted, or were looking to enact, rental cap ordinances.
Also, of note are the recent actions of the Iowa City Council. After learning of the passage of this new state law prohibiting rental caps, the Council, on May 21, 2019, passed a rental permit moratorium ordinance altogether halting any further rental permits in certain sections of the city until March of 2020. In the weeks leading up to the passage of this ordinance, various state associations asserted their positions to the City Council that such a rental permit moratorium ordinance was an unconstitutional circumvention of the new state law permitting caps altogether.
Davis Brown landlord-tenant attorney, Jodie McDougal, on behalf of the Greater Iowa City Apartment Association, submitted a letter to the City Council, noting that the moratorium is unenforceable as it conflicts with Iowa Code and, as noted by the local press is a de facto short-term enforcement of the city’s former rental permit cap, which has now been made unlawful by the new state rental cap prohibition law. Unfortunately, those efforts were not successful. Currently, various landlord associations and individual landlord-property owners in Iowa City are considering a potential legal legal challenge to this ordinance.
Senate File 341: This law involves assistance animals and service animals in the housing context (and public accommodation context), through certain amendments to Iowa Code Chapter 216, the Iowa Civil Rights Act.
Much of this new state law simply confirms existing federal law and federal guidance from HUD regarding landlord and tenant obligations pertaining to assistance animals and service animals, including the following provisions now codified under Iowa law:
  • Landlords must waive lease restrictions and payments normally required for pets for assistance and service animals. (This provision would still be subject to the lawful bases under federal law under which landlords can deny a request for reasonable accommodations and modifications).
  • Tenants are liable for damage done to any dwelling by an assistance animal or service animal.
  • The definitions of “service animals” and “assistance animals” under Iowa law now mirror federal law.
Of particular benefit to Iowa landlords is the law’s greater consistency and parameters regarding the medical professionals who provide tenants with the professional opinion that they have a need for an assistance animal or service animal.
First, the law sets forth the following provisions applicable to the medial professionals–including doctors, physician assistants, nurses, psychologists, social workers, and therapists/counselors–who assist tenants with providing opinions regarding assistance or service animals as a reasonable accommodation due to such tenant’s disability. The law provides as follows:
  • First, such medical professional must make a written finding regarding two points:
  • One, whether the patient has a disability, and
  • Two, if so, a separate written finding regarding whether the need for an assistance animal or service animal is related to the disability.
This provision is entirely consistent with federal law. As a reminder, under both federal and state law, housing providers are not permitted to ask for any greater detail regarding a tenant’s disability beyond the information outlined above.
  • Second, such medical professional shall not make such a finding unless such professional has:
  • Met with the patient in person or by telemedicine;
  • Is sufficiently familiar with the patient and the disability; and
  • Is legally and professionally qualified to make the finding.
The above provision, which sets forth additional parameters to current federal law, will help prevent perceived tenant abuses in the area, including tenants who submit a so-called “certification” for their assistance or service animal obtained from paying a small fee to a non-medical website and without actually meeting with a medical professional either in person or by telemedicine.
In addition, the new law provides that the Iowa Civil Rights Commission will, in the future, adopt additional clarifying rules regarding implementation of this law, as well as adopt a standardized form for medical professionals to use to document their findings. Currently, there is no standardized form under federal law.
The law expressly provides that landlords may deny a tenant/applicant’s request for an exception to a pet policy if the tenant/applicant, who does not have a readily apparent disability, or a disability known to the landlord, fails to provide the aforementioned documentation indicating that the person has a disability and the person has a disability-related need for an assistance animal or service animal.
Finally, the new law criminalizes certain misconduct regarding assistance/service animals, providing, among other things, that “a person who intentionally misrepresents an animal as a service animal or a service-animal-in-training is, upon conviction, guilty of a simple misdemeanor, assuming certain elements (as set forth in the law) are established.” In addition, if a landlord does not comply with the law, then the landlord is, upon conviction, guilty of a simple misdemeanor.
PRO-LANDLORD NON-CONFIRMING USE LAW PASSES (For Manufactured Housing Communities)
House File 701: This new law mandates the continuance of lawful preexisting nonconforming uses as it relates to the replacement of manufactured, modular, and mobile homes under various circumstances.
Manufactured housing communities and manufactured/mobile homeowners around the state have encountered numerous problems with cities and counties preventing the replacement of manufactured, modular, and mobile homes that were lawful preexisting nonconforming uses and otherwise preventing communities from installing replacement homes in vacant homesites, claiming that replacement amounts to an unlawful expansion or change of the preexisting use. This law should resolve these problems by codifying the standard as to when replacement of such homes must be allowed as a continuance of a lawful preexisting nonconforming use, thereby absolutely compelling cities and counties to follow this statutory standard. Further details on this new law can be found on my prior post.
Senate File 93, an act relating to abandoned structures and abatement of public nuisances, was passed. This law makes pro-landowner changes regarding the procedures as to when a governmental entity may declare a structure abandoned and/or a public nuisance, hearings on abatement actions, and the rights an owner has in response to governmental action against their property.
After many iterations, a final compromise on Property Tax Reform was reached in the final week of session.  SF634, the finalized property tax bill, does the following:
  • leaves all levies from Code of Iowa Chapter 384 in place including General Fund ($8.10) Emergency, and Trust and Agency;
  • establishes “maximum property tax dollars” which is equal to 102% of last year’s revenue for certain levies, including Trust and Agency and Employee Benefits levies;
  • allows a city to exceed the 2% threshold with a two-thirds majority vote of the council after notice, public hearing, and 20 day wait as laid out in the bill; and
  • provides that the ability for a city to exceed the 2% threshold is still subject to existing levy caps such as the $8.10 Levy, Emergency Levy, and other caps in Chapter 384.
Thank you to Davis Brown Attorneys, Tim Coonan and Sydney Gangestad, for providing this information on the property tax reform bill.
House File 638 did not pass. This bill originally started as a pro-landlord bill, containing various pro-landlord provisions, including:
  • an increase in maximum late fees;
  • a better-defined procedure for handling abandoned mobile homes where the homeowner is deceased, and heirs cannot be found;
  • an expansion of the use of actions for abandoned mobile homes under Chapter 555B where a lien exists; and
  • a tweak of the eviction statute (under Chapter 648) to resolve the problem of magistrates claiming they have no jurisdiction in certain situations where continuances of the FED hearing is needed.
However, in the final days of the legislative session, major pro-tenant amendments were made to this bill focused on the manufactured housing community industry, including the following:
  • a 180-day mandatory notice period prior to rent increases in manufactured housing communities; and
  • a complete removal of the 60-day no cause non-renewal provision for manufactured housing communities.
Ultimately, this bill was not passed by both houses, with landlords losing out on the potential benefits of this bill but also avoiding the disadvantageous final amendments to the bill.
Notably, the above two issues affecting manufactured housing communities will likely come up again during the 2020 legislative session likely beginning with HF 638 on the House debate calendar.