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
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liability WhlCh it might create for the City; and (3) comment on
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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.
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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,
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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.
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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
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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.
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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
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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?
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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
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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).
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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
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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
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(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.
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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
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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.
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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
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