HomeMy WebLinkAboutE-13 Staff Report - SB 876CONSENT ITEM
E-13
TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL
VIA: TROY L. BUTZLAFF, ICMA-CM, CITY MANAGER
FROM: LOUIE F. LACASELLA, MANAGEMENT ANALYST
DATE: MARCH 7, 2016
SUBJECT: REQUEST TO SIGN OPPOSITION LETTER OPPOSING SB 876 (ENFORCEMENT
OF LOCAL ORDINANCES)
SUMMARY:
As written, Senate Bill 876 (SB 876) essentially expands equal protection laws that now apply to race,
ethnic background, age, sex, disability, national origin, sexual orientation and so on, to cover homeless
persons as a special class to be protected against discrimination. By expanding equal protection laws to
the homeless, SB 876 would preempt local authority to restricting homeless individuals from occupying
public spaces and private property that is held open to the public, including, but not limited to, plazas,
courtyards, parking lots, sidewalks, public transportation facilities, public buildings, shopping centers
and parks. This action authorizes the Mayor, to sign on behalf of the entire City Council, an opposition
letter to SB 876 and directs the City’s lobbyist, Joe A. Gonsalves & Sons, to work with the City and our
State Representatives to find alternate solutions that address homelessness while retaining the City’s
local authority to maintain public health and safety.
RECOMMENDATIONS:
Staff recommends that the City Council take the following actions:
1) Authorize the Mayor, to sign on behalf of the entire City Council, an opposition letter to SB 876
(Enforcement of Local Ordinances); and
2)Direct the City’s lobbyist, Joe A. Gonsalves & Sons, to work with the City and our State
Representatives to find alternate solutions that address homelessness while retaining the City’s
local authority.
DISCUSSION:
Senate Bill 876 (SB 876), introduced by Senator Liu, would preempt local authority to address
important issues affecting public health and safety in public spaces and on private property that is held
open to the public, including but not limited to, plazas, courtyards, parking lots, sidewalks, public
transportation facilities, public buildings, shopping centers and parks. In such areas, homeless
APPROVED
COUNCIL MEETING
3/7/16
Request to Sign Opposition Letter and Oppose SB 876
March 7, 2016
Page 2
individuals would be empowered to occupy such spaces indefinitely, including with tents and other
shelter, while reducing access to all other members of the public.
Of particular concern is the impact this bill will have on local quality of life ordinances. On November
2, 2015, the City Council adopted Ordinance No. 2015-O12, which prohibits smoking, camping, and the
storage of personal property in or upon public property of the City. SB 876 would undermine two
sections of this ordinance as referenced below:
• Sec. 62-503. – Camping on Public Property. It shall be unlawful for any person to camp, occupy
camp facilities or use camp paraphernalia on any public property within the city, except as
otherwise provided herein or mandated by applicable law.
• Sec. 62-504. – Storage of Personal Property on Public Property. It shall be unlawful for any
person to store personal property, including camp facilities and camp paraphernalia on any
public property within the city, except as otherwise provided herein or mandated by applicable
law.
The League of California Cities has opposed SB 876 for the following reasons:
• Despite this bill being well-intended, SB 876 offers no solutions for homelessness. It offers no
new programs, no funding for housing, and no effort to improve services. In fact, on page 3, line
16, the bill specifically states, “Passing this Act will not reduce homelessness.”
• The key to getting people off of the streets is to provide more shelter. We need resources to
complement our local efforts: permanent housing beds and accompanying social services such as
mental health treatment, job training, addiction counseling, etc. Cities and other local agencies
need more funding and flexibility to provide these proven programs. Additionally, these services
should be provided as a coordinated effort. Removing local enforcement authority as proposed in
SB 876 will do nothing to help the problem, and would actually undermine existing efforts.
• Local agencies must continue to be able to protect the public, health, safety and welfare of their
communities.
SB 876 will be heard in the Senate Transportation and Housing Committee in the near future. Other
cities are expected to send in letters of opposition so they can be reflected in advance of the hearing.
FISCAL IMPACT:
There is no fiscal impact associated with the recommended actions.
Prepared by: Reviewed and Approved:
Louie F. Lacasella Troy L. Butzlaff, ICMA-CM
Management Analyst City Manager
Attachments:
1) SB 876 Opposition Letter
2) SB 876
ATTACHMENT 1
SENATE BILL No. 876
Introduced by Senator Liu
January 14, 2016
An act to add Part 2.2 (commencing with Section 53.8) to Division
1 of the Civil Code, and to amend Section 11135 of, and to add Section
11139.2 to, the Government Code, relating to homelessness.
legislative counsel’s digest
SB 876, as introduced, Liu. Homelessness.
Existing law provides that no person shall, on the basis of race,
national origin, ethnic group identification, religion, age, sex, sexual
orientation, color, genetic information, or disability, be unlawfully
denied full and equal access to the benefits of, or be unlawfully subjected
to discrimination under, any program or activity that is conducted,
operated, or administered by the state or by any state agency, is funded
directly by the state, or receives any financial assistance from the state.
This bill would expand those provisions to also include exclusion or
discrimination based upon homeless status. The bill would prohibit
cities, counties, cities and counties, and municipal agencies that receive
state funds from enacting or enforcing a law that bans resting in a public
space, as defined. The bill would afford persons experiencing
homelessness the right to use public spaces without discrimination based
on their housing status and describe basic human and civil rights that
may be exercised without being subject to criminal or civil sanctions,
including the right to use and to move freely in public spaces, the right
to rest in public spaces and to protect oneself from the elements, the
right to eat in any public space in which having food is not prohibited,
and the right to perform religious observances in public spaces, as
specified. Because the bill would require local agencies to perform
additional duties, it would impose a state-mandated local program. ATTACHMENT 2
The bill would authorize a person whose rights have been violated
pursuant to these provisions to enforce those rights in a civil action in
which the court may award the prevailing party injunctive and
declaratory relief, restitution, damages, statutory damages of $1,000
per violation, and fees and costs.
The bill would also require all applicants for the United States
Department of Housing and Urban Development’s Continuum of Care
Homeless Assistance Program to annually provide to the Department
of Housing and Community Development’s Division of Housing Policy
Development a copy of its application for funding from the United
States Department of Housing and Urban Development that includes
the organization’s response to the application question regarding steps
that its community is taking to reduce criminalization of homelessness.
The California Constitution requires the state to reimburse local
agencies and school districts for certain costs mandated by the state.
Statutory provisions establish procedures for making that reimbursement.
This bill would provide that, if the Commission on State Mandates
determines that the bill contains costs mandated by the state,
reimbursement for those costs shall be made pursuant to these statutory
provisions.
Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: yes.
The people of the State of California do enact as follows:
line 1 SECTION 1. The Legislature finds and declares all of the
line 2 following:
line 3 (a) According to the United States Department of Housing and
line 4 Urban Development’s report to Congress, 115,738 people were
line 5 estimated to be homeless in California in 2014, a rate that is
line 6 unprecedented following a deep and prolonged economic recession,
line 7 a severe shortage of safe and affordable housing, a failed veteran
line 8 and civilian mental health system, and a diminished social safety
line 9 net.
line 10 (b) According to the United States Department of Education,
line 11 284,086 schoolchildren were known to have experienced
line 12 homelessness in the 2013–14 school year.
line 13 (c) Homelessness is an independent risk factor for a number of
line 14 illnesses, making people more susceptible to increased health
line 15 problems due to high stress, sleep deprivation, unsanitary
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line 1 surroundings, lack of access to hygiene facilities, and a myriad of
line 2 other situational stressors experienced by people without stable
line 3 housing. Subsequently, people who are chronically homeless are
line 4 more medically frail and three to four times more likely to die
line 5 prematurely than their housed counterparts.
line 6 (d) Throughout California, local governments have enacted
line 7 ordinances that make it illegal to rest or receive nourishment in
line 8 public spaces.
line 9 (e) Ending homelessness in California will require significant
line 10 state and federal resources and there is ample evidence that policies
line 11 that invest in ending homelessness, rather than criminalizing and
line 12 marginalizing people who are experiencing homelessness,
line 13 adequately balance the needs of all parties: community residents,
line 14 government agencies, businesses, and men and women who are
line 15 experiencing homelessness.
line 16 (f) Passing this act will not reduce homelessness, but neither
line 17 will local ordinances that criminalize homelessness. Instead,
line 18 ordinances that criminalize homelessness result in increased
line 19 incarceration rates and financial indebtedness of people who simply
line 20 have no means of support and prolong homelessness by making
line 21 it more difficult for people to secure housing, employment, and
line 22 medical care. Criminalization policies further marginalize men
line 23 and women who are experiencing homelessness, fuel inflammatory
line 24 attitudes, and may even unduly restrict constitutionally protected
line 25 liberties.
line 26 (g) That is why, on September 18, 2015, the United States
line 27 Department of Housing and Urban Development included in the
line 28 annual Notice of Funding Availability for the Continuum of Care
line 29 funding competition, provisions that would award additional points
line 30 to any application that could include steps the community is taking
line 31 to reduce criminalization of homelessness.
line 32 (h) It is also why, on August 6, 2015, the United States
line 33 Department of Justice submitted a rare statement of interest in a
line 34 United States District Court in opposition to the criminalization
line 35 of people who are homeless, calling it cruel and unusual
line 36 punishment to punish someone for a crime with the potential for
line 37 imprisonment and a violation of constitutional rights.
line 38 (i) While these ordinances apply to all residents, they
line 39 disproportionately impact people without homes, who have no
line 40 private place to rest or seek nourishment, and are often selectively
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line 1 applied by law enforcement to people based upon their appearance
line 2 or an assumption of homelessness.
line 3 (j) In practice, these ordinances deprive persons experiencing
line 4 homelessness and those who may be perceived as homeless of a
line 5 safe and legal place to rest and seek nourishment, which adversely
line 6 impacts their health and well-being.
line 7 (k) Sleep deprivation impairs cognitive processes and puts one
line 8 at risk for obesity, heart disease, heart attack, heart failure, irregular
line 9 heartbeat, high blood pressure, stroke, diabetes, and depression.
line 10 People who are homeless suffer from sleep deprivation and, absent
line 11 a place to rest, they suffer it more frequently.
line 12 (l) Because current practices have denied the right to adequate
line 13 legal representation to people cited or arrested while resting or
line 14 sharing food, homeless persons are often denied relief or damages
line 15 through the courts.
line 16 (m) Both the federal government, through its Interagency
line 17 Council on Homelessness, and the United Nations have recognized
line 18 that discrimination and criminalization violate a homeless person’s
line 19 human rights and have called upon state and local governments to
line 20 cease enactment and enforcement of those laws.
line 21 (n) Homelessness and the increasing criminalization of
line 22 homelessness and discrimination against those experiencing
line 23 homelessness are widespread throughout California and are matters
line 24 of statewide concern.
line 25 (o) Section 1 of Article I of the California Constitution provides
line 26 that “[a]ll people are by nature free and independent and have
line 27 inalienable rights. Among these are enjoying and defending life
line 28 and liberty, acquiring, possessing, and protecting property, and
line 29 pursuing and obtaining safety, happiness, and privacy,” without
line 30 qualification as to whether or not a person is, or appears to be,
line 31 homeless.
line 32 (p) Subdivision (a) of Section 7 of Article I of the California
line 33 Constitution provides that “[a] person may not be deprived of life,
line 34 liberty, or property without due process of law or denied equal
line 35 protection of the laws ... .”
line 36 (q) Concordant with this fundamental belief, a person should
line 37 not be subject to discrimination based on his or her income, housing
line 38 status, or ability or desire to appear housed. Therefore, it is the
line 39 intent of the Legislature in enacting this legislation to protect the
line 40 rights of all Californians, regardless of their housing status, and
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line 1 ameliorate the adverse effects caused by the criminalization of
line 2 homelessness on our communities and our citizens.
line 3 (r) Decriminalization of rest allows municipal governments to
line 4 redirect resources from local enforcement activities to activities
line 5 that address the root causes of homelessness and poverty.
line 6 SEC. 2. Part 2.2 (commencing with Section 53.8) is added to
line 7 Division 1 of the Civil Code, to read:
line 8
line 9 PART 2.2. HOMELESS PERSONS
line 10
line 11 53.8. For purposes of this part, the following definitions shall
line 12 apply:
line 13 (a) “Homeless persons,” “homeless people,” or “persons
line 14 experiencing homelessness” means those individuals or members
line 15 of families who lack a fixed, regular, and adequate nighttime
line 16 residence, including people defined as homeless using the criteria
line 17 established in the Homeless Emergency Assistance and Rapid
line 18 Transition to Housing (HEARTH) Act of 2009.
line 19 (b) “Motor vehicle” means a motor vehicle as defined in Section
line 20 415 of the Vehicle Code.
line 21 (c) “Public space” means any property that is owned by a
line 22 government entity or any property upon which there is an easement
line 23 for public use and that is held open to the public, including, but
line 24 not limited to, plazas, courtyards, parking lots, sidewalks, public
line 25 transportation facilities and services, public buildings, shopping
line 26 centers, and parks.
line 27 (d) “Recreational vehicle” means a recreational vehicle as
line 28 defined in Section 18010 of the Health and Safety Code.
line 29 (e) “Rest” means the state of not moving, holding certain
line 30 postures that include, but are not limited to, sitting, standing,
line 31 leaning, kneeling, squatting, sleeping, or lying.
line 32 53.81. (a) Persons experiencing homelessness shall be
line 33 permitted to use public space in the ways described in this section
line 34 at any time that the public space is open to the public without
line 35 discrimination based upon their housing status, and without being
line 36 subject to criminal, civil, or administrative penalties. Permitted
line 37 use of the public space include, but are not limited to, all of the
line 38 following:
line 39 (1) Free movement without restraint.
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line 1 (2) Sleeping or resting, and protecting onself from the elements
line 2 while sleeping or resting in a nonobstructive manner.
line 3 (3) Eating, sharing, accepting, or giving food in a space in which
line 4 having food is not otherwise generally prohibited.
line 5 (4) Praying, meditating, worshiping, or practicing religion.
line 6 (b) Nothing in this section shall prevent law enforcement from
line 7 enforcing laws to protect the right of people to use the sidewalk,
line 8 pursuant to the Americans with Disabilities Act of 1990 (42 U.S.C.
line 9 Sec. 12101 et seq.).
line 10 (c) Nothing in this section shall prevent law enforcement from
line 11 enforcing the Penal Code, except subdivision (e) of Section 647
line 12 of the Penal Code, so far as it prohibits rest.
line 13 53.82. (a) Any person whose rights have been violated pursuant
line 14 to this part may enforce those rights in a civil action.
line 15 (b) The court may award appropriate injunctive and declaratory
line 16 relief, restitution for loss of property or personal effects and
line 17 belongings, actual damages, compensatory damages, exemplary
line 18 damages, statutory damages of one thousand dollars ($1,000) per
line 19 violation, and reasonable attorney’s fees and costs to a prevailing
line 20 party.
line 21 SEC. 3. Section 11135 of the Government Code is amended
line 22 to read:
line 23 11135. (a) No person in the State of California shall, on the
line 24 basis of race, national origin, ethnic group identification, religion,
line 25 age, sex, sexual orientation, color, genetic information, or
line 26 disability, or homeless status, be unlawfully denied full and equal
line 27 access to the benefits of, or be unlawfully subjected to
line 28 discrimination under, any program or activity that is conducted,
line 29 operated, or administered by the state or by any state agency, is
line 30 funded directly by the state, or receives any financial assistance
line 31 from the state. Notwithstanding Section 11000, this section applies
line 32 to the California State University.
line 33 (b) With respect to discrimination on the basis of disability,
line 34 programs and activities subject to subdivision (a) shall meet the
line 35 protections and prohibitions contained in Section 202 of the federal
line 36 Americans with Disabilities Act of 1990 (42 U.S.C. Sec. 12132),
line 37 and the federal rules and regulations adopted in implementation
line 38 thereof, except that if the laws of this state prescribe stronger
line 39 protections and prohibitions, the programs and activities subject
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line 1 to subdivision (a) shall be subject to the stronger protections and
line 2 prohibitions.
line 3 (c) (1) As used in this section, “disability” means any mental
line 4 or physical disability, as defined in Section 12926.
line 5 (2) The Legislature finds and declares that the amendments
line 6 made to this act are declarative of existing law. The Legislature
line 7 further finds and declares that in enacting Senate Bill 105 of the
line 8 2001–02 Regular Session (Chapter 1102 of the Statutes of 2002),
line 9 it was the intention of the Legislature to apply subdivision (d) to
line 10 the California State University in the same manner that
line 11 subdivisions (a), (b), and (c) already applied to the California State
line 12 University, notwithstanding Section 11000. In clarifying that the
line 13 California State University is subject to paragraph (2) of
line 14 subdivision (d), it is not the intention of the Legislature to increase
line 15 the cost of developing or procuring electronic and information
line 16 technology. The California State University shall, however, in
line 17 determining the cost of developing or procuring electronic or
line 18 information technology, consider whether technology that meets
line 19 the standards applicable pursuant to paragraph (2) of subdivision
line 20 (d) will reduce the long-term cost incurred by the California State
line 21 University in providing access or accommodations to future users
line 22 of this technology who are persons with disabilities, as required
line 23 by existing law, including this section, Title II of the federal
line 24 Americans with Disabilities Act of 1990 (42 U.S.C. Sec. 12101
line 25 and following), and Section 504 of the Rehabilitation Act of 1973
line 26 (29 U.S.C. Sec. 794).
line 27 (d) (1) The Legislature finds and declares that the ability to
line 28 utilize electronic or information technology is often an essential
line 29 function for successful employment in the current work world.
line 30 (2) In order to improve accessibility of existing technology, and
line 31 therefore increase the successful employment of individuals with
line 32 disabilities, particularly blind and visually impaired and deaf and
line 33 hard-of-hearing persons, state governmental entities, in developing,
line 34 procuring, maintaining, or using electronic or information
line 35 technology, either indirectly or through the use of state funds by
line 36 other entities, shall comply with the accessibility requirements of
line 37 Section 508 of the federal Rehabilitation Act of 1973, as amended
line 38 (29 U.S.C. Sec. 794d), and regulations implementing that act as
line 39 set forth in Part 1194 of Title 36 of the Federal Code of
line 40 Regulations.
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line 1 (3) Any entity that contracts with a state or local entity subject
line 2 to this section for the provision of electronic or information
line 3 technology or for the provision of related services shall agree to
line 4 respond to, and resolve any complaint regarding accessibility of
line 5 its products or services that is brought to the attention of the entity.
line 6 (e) As used in this section, “sex” and “sexual orientation” have
line 7 the same meanings as those terms are defined in subdivisions (q)
line 8 and (r) and (s) of Section 12926.
line 9 (f) As used in this section, “race, national origin, ethnic group
line 10 identification, religion, age, sex, sexual orientation, color, or
line 11 disability” includes a perception that a person has any of those
line 12 characteristics or that the person is associated with a person who
line 13 has, or is perceived to have, any of those characteristics.
line 14 (g) As used in this section, “genetic information” has the same
line 15 definition as in paragraph (2) of subdivision (e) of Section 51 of
line 16 the Civil Code.
line 17 (h) As used in this section, “homeless status,” or “people
line 18 experiencing homelessness” means those individuals or members
line 19 of families who lack a fixed, regular, and adequate nighttime
line 20 residence.
line 21 (i) As used in this section, “public space” means any property
line 22 that is owned by any government entity or any property upon which
line 23 there is an easement for public use and that is held open to the
line 24 public, including, but not limited to, plazas, courtyards, parking
line 25 lots, sidewalks, public transportation facilities and services, public
line 26 buildings, shopping centers, and parks.
line 27 (j) As used in this section, “rest” means the state of not moving,
line 28 holding certain postures that include, but are not limited to, sitting,
line 29 standing, leaning, kneeling, squatting, sleeping, or lying. Rest also
line 30 includes the act of protecting oneself from the elements, in a
line 31 nonobstructive manner.
line 32 (k) The Legislature finds and declares that people with a
line 33 homeless status lack a private space to rest, and, therefore, they
line 34 must rest in a public space.
line 35 (l) It is the intent of the Legislature to protect the rights of all
line 36 people, including those experiencing homelessness, in order to
line 37 diminish the adverse effects of municipalities engaged in violating
line 38 the fundamental right to rest.
line 39 (m) In order to ensure full and equal access to the benefits and
line 40 protections afforded by this section against discrimination in the
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line 1 administration of any program or activity conducted, operated,
line 2 or administered by the state or any state agency funded directly
line 3 by the state, or that receives any financial assistance from the
line 4 state, no city, county, city and county, or municipal agency that
line 5 receives state funds shall enact or enforce a law that bans resting
line 6 in a public space, as defined in Part 2.2 (commencing with Section
line 7 53.8) of Division 1 of the Civil Code.
line 8 SEC. 4. Section 11139.2 is added to the Government Code, to
line 9 read:
line 10 11139.2. To improve monitoring of discrimination based upon
line 11 housing status and violations of Section 11135, and to ensure that
line 12 people who are experiencing homelessness are not unlawfully
line 13 denied full and equal access to the benefits of state-funded
line 14 programs or assistance, or unlawfully subjected to discrimination,
line 15 all applicants for the United States Department of Housing and
line 16 Urban Development’s Continuum of Care Homeless Assistance
line 17 Program shall annually provide to the Department of Housing and
line 18 Community Development’s Division of Housing Policy
line 19 Development a copy of its application for funding from the United
line 20 States Department of Housing and Urban Development that
line 21 includes the organization’s response to the application question
line 22 regarding steps that its community is taking to reduce
line 23 criminalization of homelessness.
line 24 SEC. 5. If the Commission on State Mandates determines that
line 25 this act contains costs mandated by the state, reimbursement to
line 26 local agencies and school districts for those costs shall be made
line 27 pursuant to Part 7 (commencing with Section 17500) of Division
line 28 4 of Title 2 of the Government Code.
O
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