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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