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SR-9A (19) 8-A WILL BE PRESENTED AT COUNCIL MEETING ON WEDNESDAY, SEPTEMBER 7, 1994 'C, 9A CA:f:atty\mini\strpts\m)m\homeless City council Meeting 9-7-94 Santa Monlca, Callfornia SEP 0 7 1994 TO: Mayor and City Council FROM: city Staff SUBJECT: Ini tiatl ve Measure On Park Closure , Solicitation, Camplng And Procedures Relating To The provision of Services To The Homeless INTRODUCTION At lts meeting of August 9, 1994, the City Council directed staff to prepare a written evaluation of an lnltiatlve measure pursuant to Callfornla Elections Code Section 4009.5. The ini tiati ve measure would amend Municipal Code provlsions on nighttime park closure and camping on public property and add provisions on abusive solicltatlon and the coordlnation of serVlce to homeless persons. The measure would also address the city's allocation of resources for serVlces to homeless persons and for law enforcement, and lt would require the reportlng of information relating to certaln enforcement actiVltles. The Councl1 speclfied that the evaluatlon should: (1) compare and contrast the initiatlve measure to eXlsting law; (2) comment on the legality of the lnitiatlve's provlsions and upon any exposure to SEP 0 7 1S:4 liability WhlCh it might create for the City; and (3) comment on 9A 1 .f .. one section of the inltiative relatlng to the number of homeless persons covered by the Cl ty' 5 plan for services. This report provides the information requested by the Councll. DISCUSSION Comparison With Existinq Law The substantive provisions of the inltiative deal with nighttlme park closure, camping on publlcly-owned property, and the manner and location of solicitatlon. Existing provisions of the Municipal Code address each of these topics. However, as explained below, the specific provislons of the inltiatlve differ in certaln respects from present law. As to park closure, the inltiatlve would lengthen the time that parks are open at nlght. The lnltlative provides that city parks shall be closed from 11 p.m. to 6:00 a.m., except for Palisades Park which would be closed from 12 midnight to 5:00 a.m. A recent amendment to the Munlcipal Code establishes park closure hours of 10:30 p.m. to 6:00 a.m. for all parks. See SMMC Section 4.08.091. Thus, with the exceptlon of Palisades Park, the initiative would allow parks to stay open for an addltional half hour. The initiative would allow palisades Park to stay open for an additional 2 and 1/2 hours. As to camping, the ini tlati ve and present law use different language and definitions; but they impose similar prohibitions. 2 ~h Both prohibit camping ~n parks and other publlC places. Moreover, both recognlze the City Councll's power to deslgnate a place or places for camping. The ~nitiative makes it unlawful to erect, ma1ntain or occupy tents, huts, shelters, cots, sleeping bags, hammocks or bedrolls on government property as " 1 i v ing accommodations. If The ini tiati ve does not define the term "living accommodations." The Munlcipal Code prohibits using a public space for "living accommodations. II section 4.08.095(a). It deflnes using a public space for "living accommodations If as rernalnlng in the public space for "prolonged intervals" while possesslng belongings not assoclated with normal usage of the space. In contrast, the inltlative does not purport to define when a person 1S uS1ng equlpment as "living accommodations" and does not mention any time interval. As lS discussed later in this report, both provislons may raise similar legal issues. As to solicitatlon, the inlt~ative would add new restrictions and dupllcate the substance of existlng restrictions. Both the ~nitiative and present law perml t a person to passively seek donations, and both prohiblt certaln aggressive conduct in conjunction wlth Sollcitatlon. In slightly different language, both preclude solicitatlon WhlCh lncludes blocking the solicitee's way, threatening the solicitee with physical harm, following the solicitee, abusing the solicitee with highly offensive language, J and touching the solicI~ee without hIS or her permIssion. See SMMC section 4.08. 740. The most sJ.gnlf icant difference between the initiative and the Municipal Code wIth regard to the manner of solicitation ].s that the Initiative prohibits coming within 3 feet of a solicitee until he or she agrees to the solicitation; the Municipal Code does not. , J, As to restrictions on the location of solicitation, the initiatlve would prohibit solicitation in more locations than existing law does. The initiative and MunIcipal Code Section 4.08.750 both prohibit solIciting one who is In a publIC parking structure, on a public transportatIon JehlCle, ln the outdoor dining area of a restaurant, or in a vehlcle travelling on a public street. With regard to these restrIctions, the Initiative duplicates existing law. As to the location of SOlIcitation, the most slgnificant difference is that the InitIative would add prohibitIons against solicitation of persons in certain places where solicitation is now allowed: at bus stops, In publIC transportation faCIlities, in public parking lots, in lines of more than f].ve persons who are waiting for admission to a place or vehlcle or waitIng to purchase tickets. Both the initiative and existing law prohibit solicitation in the vicinity of an automatic teller machine (ATM). The initiatIve prohibits solicitation WIthin 50 feet of an ATM; the Municipal Code prohibits solicItatlon wIthln 80 feet of an ATM. Thus, the 4 initiatlve would permit solicltation closer to an ATM than present law allows. The initiative also contains provlsions on plannlng and procedures which differ, or may differ, from present law. The initiative would require that the Clty Council adopt a plan for the coordination of services to homeless persons, review the plan annually, and conduct a public hearing as part of each annual review. At present, planning of all City-funded services occurs in accordance with Community Develop Block Grant procedures established by the Municipal Code. See SMMC 2.69.060(b). Those procedures include annual publlC hearings relating to all City- funded services in conjunction with the budget process. The lnitiative provides ln Sectlon 8 that its provisions may only be changed by a vote of 3/4 of the Council. City Charter Sectlon 615 requires the affirmative vote of at least four council members to adopt an ordinance. The initiative mandates that the Council shall supply to the Police Department all resources necessary to effectuate the initiative and shall adopt a plan to prevent an increase ln expenditures for services to homeless persons. See Section 7. The City Charter sections 1502 through 1505 empower the council to make budgetary decisions annually. 5 The lnitiative would requ~re the City Attorney to report statistlcs on prosecutions brought under state laws governlng possession of shopping carts and encampment. Such reports are not required by present law. Potential Leqal Issue~ Certain provisions of the initiative are subject to legal challenge. Unfortunately, in virtually all cases, the results are difficult to predict. The lnitiative's provision on encampment 1S vulnerable to legal challenge on several grounds. However, the ini tlati ve' s encampment provlsion lS probably no more vulnerable than any local encampment measure WhlCh prohib~ts more than erecting tents and using stoves in public places and wh1ch is coupled with a law closing pUblic places at nlght. At present, the degree of vulnerability of such measures is very difficult to assess because the case law is in a state of flux. As the Council knows from past discussions, local laws against camplng In publlC places have been challenged in a number of recent law suits. In some instances, courts have concluded that such laws violate the right to travel and the r1ght to be free from cruel or unusual punishment. See e.q., Pottlnqer v. Miami, 810 F. Supp. 1551 (S.D. Fla.1992). The Court of Appeal reached this conclusion as to a Santa Ana ordinance in the case entitled Tobe v. City of 6 Santa Ana. (OCSC Case No. 69-60-00, Fourth Dist. Case No. G-014257, review aranted). In other cases, the courts have rejected similar constitutional challenges. See, e.q., People v. Scott, 20 Cal.App.4th Supp.5 (1993). In California, the courts have not yet rendered a definitive decision on these 1S5ues. However, the Callfornia Supreme Court may render such a declsion 1n the next year in Tobe v. Santa Ana. Until the law is settled, 1 t will be very diff icul t to assess whether local encampment provisions, like the City's present encampment provision and the encampment provision in the init1ative, violate the rlght to travel or the prohibition against cruel and unusual pun1shment. Additlonally, encampment provlslons may be vulnerable as a class of statutes because they tend to be somewhat vague and overbroad. Claims of vagueness and overbreadth have already been asserted aga1nst the City's present encampment law. As to the initiative, the cla1rn could be made that the encampment section is unconstitutionally vague because it does not clearly specify what conduct constitutes using a specified item, such as a bedroll, as a "living accommodation. II Does merely unrolling and lying down on a bedroll constitute uSlng it as a flliving accommodation?" Or must the person in possession of the bedroll intend to live, or actually live (in the sense of establ1shing a temporary place of residence), at the location where the bedroll 1S placed for a period of time? 7 ~ ~ , Moreover, the potential infl.rmity of any camping provision may be compounded lf lt is coupled wlth a law closing public places at night. In that situation, a court would likely l.nterpret a camping provision (like the one in the initiative or the one in the Municipal Code) as being intended to prohib1t using equipment such as a bedroll in a public place durlng the daytime. Based on that interpretation, a court could conclude such a camping provision is unconstitutionally overbroad because it effectively prohibits harmless conduct such as IY1ng down on a blanket during a single afternoon. A court might also conclude that such a provision discriminates imperm1ssibly between groups of people all of whom engage l.n what is fundamentally the same conduct: restlng in the park during the daytime. A court might reach such conclusions as to either the lnitiatlve's camping provisl.on or the City's present encampment law. On the other hand, no presently published decision in this )urisdlction lnvalidates as unconstltut10nal a prohibitl.on against camping like the one contained in the initiative or the one presently contalned 1n the Munlclpal Code. To the contrary, West HOllywood's encampment ordlnance (whl.ch is similar to both) was challenged on constitutional grounds and upheld in People v. Scott, supra. That decislon was rendered by the Appellate Department of the Los Angeles Municlpal Court. The decl.sion is published and therefore constitutes citable authority even though its legal 8 '. I I?"( ~/ ,. effect lS I1mited because It was rendered the superior court and not by the Court of Appeal. Because the law is unsettled, we are presently unable to predlct with certalnty whether the encampment provision of the initiative would withstand a legal challenge. The initiative's provisions on solicitation are also subject to challenge; and the outcome of such a challenge is also difficult to predlct. However, certaln prlnclples establlshed by First Amendment case law make the issues somewhat clearer. As has been previously explalned, the constitutlonal standard for assessing Ilmitatlons upon expressive conduct depends upon the forum where expressions is being regulated. Cornellus v. NAACP Leqal Defense And EducatIon Fund, Inc., 473 U.S. 788, 800 (1985). In general, the government's right to restrict expression in a clasSIc public forum -- such as the publIC streets -- is very lunited. UnIted states v. Grace, 461 U.S. 171, 177 (1983). Restrictions on the tIme, place and manner of expression in such locations will be upheld only If they are content neutral, serve a signlficant governmental interest, and leave open ample channels of communication. Perry Educatlon Assn. v. Perry Local Education Assn., 460 U.S. 37, 45 (1983). 9 , " . Under that standard, there 15 a 51gniflcant chance that the provisions of the init~ative which establish a three-foot zone of privacy, prohibit solicitation of persons in movie lines and other ques, and proh1bit solicltation wlthin 50 feet of an ATM would be determlned unconsti tutlonal. See. e. q., Ward v. Rock Aqainst Racism, 491 U.S. 781, 791 (1989) [explaining that the government's purpose is the main conslderation in determining whether an ordinance is content neutral]; Madsen v. Women's Health Center Inc., 62 U.S.L.W. 4686 (1994) [striking down a prohibition against physically approaching any person seeklng services of an abortlon clinic unless such person indlcated a desire to communicate]; Blalr v. Shanahan, 775 F. SUPPA 1315, 1324 (N.D.Cal., 1991) [explainlng that a statute prohibitlng approaching another for money was not narrowly drawn]. Additlonally, the prohibitlons against aggressive conduct in conjunction with solicitation could be challenged on the ground that they are unnecessarv because the crlminal law already adequately regulates aggresslve conduct. rd. Again, California law lS uncertain at present, but we believe that these prohibitlons would be upheld. See City of Seattle v. Webster, 802 P.2d 1333 (1990) [rejecting a challenge to the constitutionality of Seattle's ordinance prohlbiting aggresslve panhandling]. section 8 of the initiative provides In part that "no provision of this measure shall be amended by the city council except upon the 10 -, - . , aff~rmat~ve vote of a least three-quarters of the city Council." The val~di ty of this provis~on 15 questionable. Pursuant to California Elections Code Section 4013, an ~nitiative measure (including a measure proposed as an initiatlve but adopted by the legislative body) may only be amended by a vote of the people, unless the measure provides otherw~se. On its face, the initiative purports to provide otherw1se. However, the City Charter establishes that any ordlnance requlres II [t]he affirmative votes of ..,. at least four members of the Clty Council II (Emphasis supplied.) It is unclear whether the words "at least" leave open the possibility of requ~ring more than four votes by ordinance. If not, Section 8 would be determined lnvalid because no ordinance may override a conflicting provision of the City Charter. If Section 8 were ~nvalidated, that decision would presumably not affect the remainder of the initiative because it lncludes a severance provision in Section 11 which would permit a court to strike down only the invalid section. Finally, the initiative requires the City Council to provide to the Police Department resources adequate to enforce the provisions of the initiative and other measures relating to safety. The initlative also requires the adoption of an annual plan wh~ch would prevent an increase or achieve a reduction in City expenditures for homeless services. Insofar as these two provislons purport to limit the power of a future City Council to exercise its budgetary discretion, they may be unenforceable. 11 As to the quest10n of potent1al liab1lity aris1ng as a consequence of the adoption of the initiat1ve, 1f the measure 1S adopted and successfully challenged, the City would probably be held liable for the prevailing party's attorney's fees. Moreover, anyone who 1S aggrieved by the substant1ve provisions of the 1nitiative could challenge the measure's constitutionality in a lawsuit for money damages based upon an alleged v1olation of his or her civil rights. Number of Homeless Persons Served The in1tiative would require the City to plan to achieve a balance between the number of homeless persons who receive non-housing services and the number who can be housed within the city. The City is presently movlng ln that directlon. The FY 1994-1995 Community Development Plan, adopted by the City Council in June of this year, emphasized a linkage between housing (temporary and permanent) and supportlve services. The Council made several funding decislons WhlCh in effect redirected grants from daytime free standlng meals and emergency service programs to treatment and case management serVlces targeted at moving homeless people indoors. In FY 1994-95, approxlmately 300 people wlll receive case management at any given tlme. Once the new shelter opens in September at 505 Olymplc, there w1lI be approximately the same number of shelter beds in the City. Dur1ng the winter months approximately 150 addltional beds are provlded through the County's Emergency Cold Weather Program. In 1995, there will be an 12 ~ . - .. additional 156 new places for homeless people through step Up On Second (36 SRO units), Turnlng POlnt (20 new beds), and the new federally funded Shelter Plus Care Program (100 units or vouchers) . These housing resources for homeless people will be linked to case management and to other supportive serVlces. Thus, the City is already doing the planning which would be required by the initiative. However, it is important to note that agencies funded in part by the Clty also recelved other public and prlvate funds to operate these programs. This means that, although the City is already emphasizing housing linked wlth services and employment, agencles may continue to operate emergency services with non-City funding. Furthermore, there are many charitable and religlous groups (some formal, some informal) WhlCh continue to distribute food, clothing I blankets and other help to homeless people ln publlC and private places. FINANCIAL/BUDGETARY IMPACT The provisions of initiative would have no slgniflcant immediate budgetary impact. There may be some minor expenses associated with the implementation of the lnitiative such as park signage. The long-range lmpact would depend upon how the lnitiative language lS interpreted and implemented. The long-range impact could be substantial if, for example, the City undertook the maintenance of files on all recipients of service to the homeless. 13 RECOMMENDATION It is respectfully recommended that the City council either l.ntroduce the lnitiative for fIrst readl.ng, set a date for a special elect~on, or resolve to place the measure on the ballot for the next regular election. Prepared by: Marsha Jones Moutrie, city Attorney Julie Rusk, Human Services Manager 14