SR-9A (20)
eA:f:atty\mini\strpts\mjm\homeless
city council Meeting 9-7-94
~As~
Santa Monica, California
TO: Mayor and city Council
FROM: city staff
SUBJECT: Initiative Measure On Park Closure, Solicitation, Camping
And Procedures Relating To The provision of Services To
The Homeless
INTRODUCTION
At its meeting of August 9, 1994, the City Council directed staff
to prepare a written evaluation of an initiative measure pursuant
to California Elections Code Section 4009.5.
The initiative
measure would amend Municipal Code provislons on nighttime park
closure and camping on public property and add provisions on
abusive solicitation and the coordination of service to homeless
persons. The measure would also address the City'S allocation of
resources for services to homeless persons and for law enforcement,
and it would require the reporting of information relating to
certain enforcement activities.
The Council specified that the evaluation should: (1) compare and
contrast the initiative measure to existing law; (2) comment on the
legality of the initiative's provisions and upon any exposure to
SEP - 7 !M
liability which it might create for the City; and (3) comment on
9A .~
one section of the initiative relating to the number of homeless
persons covered by the City's plan for services. This report
provides the information requested by the Council.
DIseusSION
Comoarison With Existinq Law
The substantive provisions of the initiative deal with nighttime
park closure, camping on publ1cly-owned property, and the manner
and location of solicitation. Existing provisions of the Municipal
Code address each of these topics. However, as explained below,
the specific provisions of the initiative differ in certain
respects from present law.
As to park closure, the initiative would lengthen the time that
parks are open at night. The initiative provides that eity 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 Municipal 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 exception of Palisades Park, the initiative would
allow parks to stay open for an additional half hour. The
initiative would allow Palisades Park to stay open for an
additional 2 and 1j2 hours.
As to camping, the initiative and present law use different
language and definitions; but they impose similar prohibitions.
2
Both prohibit camping in parks and other public places. Moreover,
both recognize the City Council's power to designate a place or
places for camping.
The initiative makes it unlawful to erect, maintain or occupy
tents, huts, shelters, cots, sleeping bags, hammocks or bedrolls on
government property as "living accommodations." The initiative
does not define the term "living accommodations." The Municipal
eode prohibits using a public space for "living accommodations."
section 4.08.095(a). It defines using a public space for "living
accommodations" as remaining in the public space for "prolonged
intervals" while possessing belongings not associated with normal
usage of the space. In contrast, the initiative does not purport
to define when a person is using equipment as "living
accommodations" and does not mention any time interval. As is
discussed later in this report, both provisions may raise similar
legal issues.
As to solicitation, the initiative would add new restrictions and
duplicate the substance of existing restrictions. Both the
initiative and present law permit a person to passively seek
donations, and both prohibit certain aggressive conduct in
conjunction with solicitation. In slightly different language,
both preclude solicitation which includes blocking the solicitee's
way, threatening the solicitee with physical harm, following the
solicitee, abusing the solicitee with highly offensive language,
3
and touching the solicitee without his or her permission. See SMMC
Section 4.08.740. The most significant difference between the
initiative and the Municipal Code with regard to the manner of
solicitation is that the initiative prohibits coming within 3 feet
of a solicitee until he or she agrees to the solicitation; the
Municipal Code does not.
As to restrictions on the location of solicitation, the initiative
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 vehicle, in the outdoor dining area of a
restaurant, or in a vehicle travelling on a public street. with
regard to these restrictions, the initiative duplicates existing
law. As to the location of solic1tation, the most significant
difference is that the initiat1ve would add prohibitions against
solicitation of persons in certain places where solicitation is now
allowed: at bus stops I in public transportation facilities, in
public parking lots, in lines of more than five persons who are
waiting for admission to a place or vehicle 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 solicitation within 80 feet of an ATM. Thus, the
4
initiative would permit solicitation closer to an ATM than present
law allows.
The initiative also contains provisions on planning and procedures
which differ, or may differ, from present law. The initiative
would require that the City 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 public hearings relating to all city-
funded services in conjunction with the budget process.
The initiative provides in Section 8 that its provisions may only
be changed by a vote of 3/4 of the Council. City Charter Section
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 in 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 initiative would require the City Attorney to report statistics
on prosecutions brought under state laws governing possession of
shopping carts and encampment. Such reports are not required by
present law.
Potential Leqal Issues
Certain provisions of the initiative are subject to legal
challenge. Unfortunately, in virtually all cases, the results are
difficult to predict.
The initiative's provision on encampment is vulnerable to legal
challenge on several grounds. However, the initiative's
encampment provision is probably no more vulnerable than any local
encampment measure which prohibits more than erecting tents and
using stoves in public places and which is coupled with a law
closing public places at night.
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
camping in public 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 right to be free from cruel or
unusual punishment. See e.q., Pottinger 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 granted). In other cases, the courts have rejected similar
constitutional challenges. See, e.g., People v. Scott, 20
Cal.App.4th Supp.5 (1993).
In California, the courts have not yet rendered a definitive
decision on these issues. However, the California Supreme Court
may render such a decision in the next year in Tobe v. Santa Ana.
Until the law is settled, it will be very difficult to assess
whether local encampment provisions, like the eity's present
encampment provision and the encampment provision in the
initiative, violate the right to travel or the prohibition against
cruel and unusual punishment.
Additionally, encampment provisions 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
against the City's present encampment law. As to the initiative,
the claim 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." Does merely unrolling and lying down on
a bedroll constitute using it as a "living accommodation?" Or must
the person in possession of the bedroll intend to live, or actually
live (in the sense of establishing a temporary place of residence),
at the location where the bedroll is placed for a period of time?
7
Moreover, the potential infirmity of any camping provision may be
compounded if it is coupled with a law closing public places at
night. In that situation, a court would likely interpret a camping
provision (like the one in the ini tiati ve or the one in the
Municipal Code) as being intended to prohibit using equipment such
as a bedroll in a public place during 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 lying down on a blanket during a single
afternoon. A court might also conclude that such a provision
discriminates impermissibly between groups of people all of whom
engage in what is fundamentally the same conduct: resting in the
park during the daytime. A court might reach such conclusions as
to either the initiative's camping provision or the City's present
encampment law.
On the other hand, no presently published decision in this
jurisdiction invalidates as unconstitutional a prohibition against
camping like the one contained in the initiative or the one
presently contained in the Municipal Code. To the contrary, West
Hollywood's encampment ordinance (which is similar to both) was
challenged on constitutional grounds and upheld in People v. Scott,
supra. That decision was rendered by the Appellate Department of
the Los Angeles Municipal Court. The decision is published and
therefore constitutes citable authority even though its legal
8
b~
effect is limited because it was rendered Ythe superior court and
not by the Court of Appeal.
Because the law is unsettled, we are presently unable to predict
with certainty 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
predict.
However, certain principles established by First
Amendment case law make the issues somewhat clearer.
As has been previously explained, the constitutional standard for
assessing limitations upon expressive conduct depends upon the
forum where expressions is being regulated.
Cornelius 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
limited.
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
significant governmental interest, and leave open ample channels of
communication.
Perry Education Assn. v. Perry Local Education
Assn., 460 U.S. 37, 45 (1983).
9
Under that standard, there is a significant chance that the
provisions of the initiative which establish a three-foot zone of
privacy, prohibit solicitation of persons in movie lines and other
ques, and prohibit solicitation within 50 feet of an ATM would be
determined unconstitutional. See, e.g., Ward v. Rock Aqainst
Racism, 491 U.S. 781, 791 (1989) [explaining that the government's
purpose is the main consideration in determining whether an
ordinance is content neutral]; Madsen v. Women's Health eenter
Inc., 62 U.S.L.W. 4686 (1994) [striking down a prohibition against
physically approaching any person seeking services of an abortion
clinic unless such person indicated a desire to communicate]; Blair
v. Shanahan, 775 F. Supp. 1315, 1324 (N.D.cal., 1991) [explaining
that a statute prohibiting approaching another for money was not
narrowly drawn].
Additionally, the prohibitions against aggressive conduct in
conjunction with solicitation could be challenged on the ground
that they are unnecessary because the criminal law already
adequately regulates aggressive conduct. Id. Again, ealifornia
law is uncertain at present, but we believe that these prohibitions
would be upheld. See City of Seattle v. Webster, 802 P.2d 1333
(1990) [rejecting a challenge to the constitutionality of Seattle's
ordinance prohibiting aggressive 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
affirmative vote of a least three-quarters of the City Council."
The validity of this provision is questionable. Pursuant to
California Elections Code section 4013, an initiative measure
(including a measure proposed as an initiative but adopted by the
legislative body) may only be amended by a vote of the people,
unless the measure provides otherwise. On its face, the ini tiati ve
purports to provide otherwise. However, the City Charter
establishes that any ordinance requires It [t]he affirmative votes of
at least four members of the City Council "(Emphasis
supplied.) It is unclear whether the words "at least" leave open
the possibility of requiring more than four votes by ordinance. If
not, section 8 would be determined invalid because no ordinance may
override a conflicting provision of the city Charter. If section
8 were invalidated, that decision would presumably not affect the
remainder of the initiative because it includes 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
initiative also requires the adoption of an annual plan which would
prevent an increase or achieve a reduction in City expenditures for
homeless services. Insofar as these two provisions purport to
limit the power of a future City council to exercise its budgetary
discretion, they may be unenforceable.
11
As to the question of potential liability arising as a consequence
of the adoption of the initiative, if the measure is adopted and
successfully challenged, the City would probably be held liable for
the prevailing party's attorney's fees. Moreover, anyone who is
aggrieved by the substantive provisions of the initiative could
challenge the measure's constitutionality in a lawsuit for money
damages based upon an alleged violation of his or her civil rights.
Number of Homeless Persons Served
The initiative 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 moving in that direction.
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 supportive services. The Council
made several funding decisions which in effect redirected grants
from daytime free standing meals and emergency service programs to
treatment and case management services targeted at moving homeless
people indoors. In FY 1994-95, approximately 300 people will
receive case management at any g~ven time. Once the new shelter
opens in September at 505 Olympic, there will be approximately the
same number of shelter beds in the City. During the winter months
approximately 150 add~tional beds are provided 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), Turning Point (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 services.
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 City also received other public and
private funds to operate these programs. This means that, although
the city is already emphasizing housing linked with services and
employment, agencies may continue to operate emergency services
with non-City funding. Furthermore, there are many charitable and
religious groups (some formal, some informal) which continue to
distribute food, clothing, blankets and other help to homeless
people in public and private places.
FINANCIAL/BUDGETARY IMPACT
The provisions of initiative would have no significant immediate
budgetary impact. There may be some minor expenses associated with
the implementation of the initiative such as park signage. The
long-range impact would depend upon how the initiative language is
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
introduce the initiative for first reading, set a date for a
special election, 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