HomeMy WebLinkAbout2019-02-19; City Council; ; Informational staff report on sober living homes and applicable regulations.Meeting Date:
To:
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Staff Contact:
Subject:
CA Review 1Wl,Jl---
February 19, 2019
Mayor and City Council
Scott Chadwick, City Manager
Debbie Fountain, Community & Economic Development Director
debbie.fountain@carlsbadca.gov or 760-434-2935
Informational staff report on sober living homes and applicable
regulations.
Recommended Action
Receive an informational staff report on sober living homes and applicable regulations. Staff is
providing no recommendation for action by the City Council at this time.
Executive Summary
On September 11, 2018, the City Council approved the following minute motion (5-0) "to place
the discussion of sober living facility regulations on a future agenda". In response to the City
Council direction, staff has spent the past several months researching the topic of sober living
homes and has prepared this informational report to summarize the applicable land use and
other related policies associated with sober living homes to allow for the council's desired
discussion. This report seeks to inform a response to concerns shared by residents of Carlsbad as
to potential actions the city can or cannot take as related to the sober living homes.
For many people recovering from a substance abuse addiction, sober living is a key part of the
treatment program. In California, sober living homes are most typically treated as residences, not
medical or psychological treatment facilities, and as such are governed with limited licensing and
zoning requirements. Sober living homes are protected under federal and state law because
these residences provide housing for people with disabilities such as substance abuse, and
mental illness. For this reason, no state or federal agency currently regulates sober living homes
from a licensing or permitting standpoint. Local governments cannot impose an isolated or
targeted policy or regulation on sober living homes, and they must be treated similarly to any
other residential home or risk complaints/lawsuits of discrimination against persons with
disabilities.
Discussion
Sober living homes are best described as group homes, usually containing six persons or fewer,
that bring together multiple unrelated individuals who live communally and mutually support
each others' recovery from addiction. Typically, these homes provide housing, but no medical
treatment, for recovering drug and alcohol addicts. Conceptually, sober living homes function
under the shared belief that providing housing for recovering drug and alcohol addicts in a safe,
single family neighborhood in a mutually supportive, accountable environment similar to other
family living situations is essential to the success of any addict's treatment and recovery.
February 19, 2019 Item #3 Page 1 of 21
In California, sober living homes are not required to obtain a license and are not limited to six or
fewer residents. Sober living homes are not considered a business by the State of California
because they provide a substance-free, family-like living environment for adults who are
recovering from drug and alcohol addictions and provide no service. If there is no treatment
provided to residents, no license is required. On the other hand, residential facilities that provide
treatment (medical or otherwise) and detoxification services are licensed by the state. The
limitation of six or fewer residents per single-family home only applies to those facilities requiring
licensing.
Proponents of locating sober living homes in residential neighborhoods contend that
reintegrating treatment patients into mainstream society through a typical family living situation
enhances recovery efforts. The rationale is that locating sober living homes in attractive settings
with attractive amenities significantly enhances a patient's chances of a successful recovery.
Proponents also cite legislative intent that they believe mandates that "each county and city shall
permit and encourage the development of sufficient numbers and types of alcoholism or drug
abuse recovery or treatment facilities" (See Cal. Health & Safety Code Section 11834.20)
Critics of placing sober living homes in residential neighborhoods most often cite personal
experiences of excessive and late-night noise, vulgar language, excessive cigarette smoking,
invasion of privacy and lewd conduct, increased litter, increased vandalism and problematic
traffic and parking issues. Many cities already have regulations that will address all the ancillary
issues/impacts noted above; this indicates that the transitory nature of home occupants and the
fact that they are recovering substance abuse addicts may be the larger concern. But it is more
difficult to regulate impacts associated with recovering substance abuse addicts and is likely the
reason most regulatory restrictions are not withstanding legal challenges.
Efforts to Regulate
In the past few years, there has been enhanced awareness of sober living homes in Carlsbad by
existing residents and concerns expressed that there is an increasing number of group homes for
recovering substance abuse addicts not only in Carlsbad but throughout cities in California as well
as across the United States. These concerns have been shared with legislators and other local
elected officials. Due to these resident concerns, there have been numerous state and local
attempts to approve new regulatory restrictions to govern these sober living homes and reduce
their impacts on residential neighborhoods. Proposed local regulations have included limiting the
total number of sober living homes, limiting the distance between sober living homes, requiring
more parking or placing other restrictions on the operations of these homes.
To date, nearly all of these new regulations have been met with legal challenges on the basis of
discrimination against those who are disabled. For example, the cities of Newport Beach and
Costa Mesa have approved ordinances to place restrictions on the location and/or number of
sober living homes permitted within their cities. These ordinances have faced or are facing major
legal challenges from disability advocacy groups and others in support of the sober living homes.
A proposed regulatory framework for the City of Los Angeles failed to become law. Other
California local governments have recently explored, advanced or enacted regulation of sober
living homes including San Clemente (2016), Laguna Niguel {2016), San Juan Capistrano (2016),
February 19, 2019 Item #3 Page 2 of 21
Laguna Hills (2015), San Jose (2015), Encinitas (2015), San Bernardino County (2014) and
Redlands (2005); however, these local regulatory efforts have not been successful to date.
In the past 15 years state lawmakers have made multiple attempts to regulate sober living
homes; these attempts have been unsuccessful to date. Out of 25 bills affecting sober living
homes introduced since the 1998-99 legislative session, only three reached the Governor's desk
-and all of those were vetoed by the Governor. Many other states within the United States
have similar concerns around sober living homes. Recently, laws creating statewide voluntary
certification or accreditation of sober living homes have been introduced in Pennsylvania (2016)
and passed in Massachusetts (2014). In St. Paul, Minnesota, an ordinance passed in 2008 requires
a 330-foot buffer between sober living homes and places restrictions on occupancy and parking.
These examples show that California's issues are far from unique but also complicated to address
without violating the rights of those with disabilities including substance abuse and mental
illness.
The Fair Housing Act
In 1988 the federal Fair Housing Act ("the Act") was amended by Congress to add protections for
persons with disabilities and families with children. Since that time, there has been a great deal
of litigation concerning the Act's effect on the ability of local governments to exercise control
over group living arrangements, particularly for persons with disabilities. The Act prohibits
discrimination against individuals on the basis of race, color, religion, sex, national origin, familial
status and disability.
The Act forbids discrimination on the basis of the existence of a handicap. "Handicap" has the
same legal meaning as the term "disability" which is used in other federal civil rights laws. Persons
with disabilities (handicaps) are individuals with mental or physical impairments which
substantially limit one or more major life activities. The term mental or physical impairment may
include conditions such as blindness, hearing impairment, mobility impairment, HIV infection,
mental retardation, alcoholism, drug addiction, chronic fatigue, learning disability, head injury
and mental illness. The term "major life activity" may include seeing, hearing, walking, breathing,
performing manual tasks, caring for one's self, learning, speaking or working. It is important to
note that current users of illegal controlled substances, persons convicted for illegal manufacture
or distribution of a controlled substance, sex offenders and juvenile offenders are not considered
disabled under the Fair Housing Act. The Fair Housing Act also does not give protections to
individuals with or without disabilities who present a direct threat to the persons or property of
others. Determining whether someone poses such a direct threat must be made on an
individualized basis, however, and cannot be based on general assumptions or speculation about
the nature of a disability.
The Act prohibits municipalities and other local government agencies from making zoning or land
use decisions or implementing land use policies that exclude or discriminate against protected
persons, including individuals with disabilities and those residing within a sober living home. Any
land use restrictions applied to sober living homes in a single-family home would need to be
applied equally to any other single-family home. For example, if the city required all occupants
of sober living homes to live in the home for at least one year to prevent the impact of the
February 19, 2019 Item #3 Page 3 of 21
transient nature of the residents, all single-family homes would be required to comply with the
same regulations. Among other impacts, this requirement would prevent short-term vacation
rentals inside or outside the coastal zone and all other rental leases for less than one year. This
regulation would also be difficult to enforce and labor intensive because it would require
government oversight of all rentals of residential property.
Below are some additional statements on prohibited land use policies from a Joint Statement of
the Department of Justice and the Department of Housing and Urban Development (Group
Homes, Local Land Use, and the Fair Housing Act). These policy statements reflect the complexity
of developing regulations specifically for sober living homes which would not be considered
discriminatory in nature.
The Fair Housing Act makes it unlawful to:
• Apply land use policies or actions that treat groups of persons with disabilities less
favorably than groups of non-disabled persons. An example would be an ordinance
prohibiting housing for persons with disabilities or a specific disability, such as mental
illness or drug addiction, from locating in a particular area, while allowing other groups of
unrelated individuals to live together in that area.
• Take action against, or deny a permit for, a home because of the disability of individuals
who live or would live there. An example would be the denial of a building permit for a
home because it was intended to provide housing for persons in recovery for alcohol or
drug addiction.
It is important to note again that the Act does not protect persons who currently use illegal drugs,
persons who have been convicted of the manufacture or sale of illegal drugs or persons with or
without disabilities who present a direct threat to the persons or property of others. Sober living
homes are intended only for those persons in recovery from substance abuse addiction.
California Laws -Sober Living Homes
Sober living homes may locate in residential zones in California based on the 1980 California
Supreme Court decision, City of Santa Barbara v. Adamson, where the court ruled based on
privacy rights, that definitions of "family" for purposes of zoning cannot distinguish between
related and unrelated individuals. This means that local governments cannot limit the number
of unrelated adults that may reside together functioning as a family unit if they do not limit the
number of related persons. Sober living homes that function as a family and do not provide
medical care, treatment, individual or group counseling, case management, medication
management or treatment planning and that do not supervise daily activities are not subject to
any state or local licensure requirements; therefore, no permits or licenses can be required.
State law focuses primarily on licensing requirements of residential facilities that provide
treatment to six or more residents. Non-licensed sober living homes where residents are simply
living as a family are protected by both federal law, such as the Fair Housing Act and the
Americans with Disabilities Act, and state law, such as the Fair Employment and Housing Act,
which prohibit discrimination against people with disabilities. A disability is defined to include
February 19, 2019 Item #3 Page 4 of 21
people with substance and alcohol abuse problems.
The idea behind these laws is to promote the integration of individuals with disabilities into the
community. These same laws also require cities to make reasonable accommodations in policies
and practices when accommodations are necessary to provide equal housing opportunities.
Because state and federal anti-discrimination laws apply to the non-licensed residential facilities,
the assumption is that non-licensed residential facilities are exempt from the six-person
limitation, local regulations relating to business taxation or licensing and most other permitting
requirements. Cities that have tried to impose such regulations on the unlicensed, family living
sober living homes have been engaged in lengthy and costly litigation costing millions of dollars.
California's Health & Safety Code requires all licensed facilities serving six or fewer persons, which
may include sober living homes, be treated like single-family homes for zoning purposes. These
licensed facilities are exempt from local zoning and land use regulations and business taxation
and licensing because they are considered residential uses. This land use protection allows sober
living homes to be permitted in all residential zones in which a single-family home is permitted.
Local governments cannot require zoning or land use permits or restrictions for a residence that
is not required to be licensed, unless such restriction is imposed on all residences in the
jurisdiction.
Alcohol and drug programs {ADPs) that provide 24-hour residential non medical services to adults
who are recovering from alcohol and/or drug abuse must obtain a state license. If a licensed ADP
facility serves six or fewer patients, state law prohibits cities from regulating it any differently
than a single-family home. Local agencies may not regulate the zoning of these licensed homes
by adding special parking requirements, setbacks, design standards, etc. In addition, sober living
homes are not required to obtain a conditional use permit, variance or any other special permit
unless the same permit is required for single-family homes. In addition to protections found in
California's Health & Safety Code, agencies are prevented by California Planning and Zoning Law
{Cal. Gov't Code 65008{d)(2)) from imposing different requirements on single-family or multi-
family homes because of the disability of the intended residents, in this case drug and alcohol
addicts in recovery.
The number of restrictions on licensed residential rehabilitation programs is fewer than other
licensed group homes. The Community Care Facilities Act, from which alcohol and drug
rehabilitation facilities are exempt, imposes various restrictions that protect the character of
residential neighborhoods. For example, under the act, licensed foster homes cannot be for-
profit businesses. Alcohol and drug rehabilitation facilities may operate as for-profit enterprises
in residential zones without business licenses because licenses are not required of other single-
family uses. Additionally, overconcentration of facilities does not apply to alcohol and drug rehab
facilities in California. The attorney general has stated that California cities "may not deny an
application for licensure or suspend or revoke the license of a treatment facility because the
particular community already has more than a sufficient number of treatment facilities to meet
the local need." {See Sober Living Businesses in Residential Zones, Western City)
Below is a chart from the State of California which provides a quick reference guide to the
licensing and other regulatory requirements for the various types of facilities available for
substance abuse treatment and recovery.
February 19, 2019 Item #3 Page 5 of 21
Soci(([ ,,fr)(lc>l lncilities ;,, S iug[e la111jf._l..' J{,esidP1lJiul ZotfJ'S:
A-_(!.!,, icl-z){,ef <-' ,i> 1 t<'P (; ll i clc,
lAlgalaulhortty Llmlledlo RaqulN ,....,... Protecad Alowldln ~ sllcor,_., .... brllatule ctaN--8lngllfamlW ·-· NSldents? IINnMt fnlffllocel .. hllullng zone? ..._..... anl-dllcrln--·-clfflnnlltWI lndonlan? ._.,..
l'Nldence?
Sober lMng Home Constitutional right to NO NO NO YES YES
privacy: A ·tamuy• as (may be sub-
defined by courts (Where Jec-t to IOCal
applicable); regulation If
Federal law defines recov-cooststeot
with the Falt enno atcohoncstaddlciS Hooslng Aci) as ·dlsabled-and protects
them from discrimination on
that basis; and
ADA requires ·reasonable
accommodatlon."
MoohllllM otDIUI Health&. Safety Code YES YES YES YES YES
Mia RICDNIJ/INIII-§11834.01 Nonmed/cal,
madllrogranCADPJ resldentJaJ
eommunn,car.Act Health & Safety Code YES YES YES YES YES
A1lldllllllll Faollty §1500. NonmedJcal.
resldentJal
Overconcentration Standards or Separation Requirements
Residents' greatest concern with sober living homes appears to be their overconcentration.
Residents contend that they operate more like a business than a single-family home, and their
proximity to each other changes the residential character of local neighborhoods. When applying
both state and federal laws, however, there is little that could be done by the city to regulate
these homes without being in direct conflict with applicable laws intended to prevent
discrimination against persons with disabilities.
The federal Department of Justice and Housing and Urban Development (HUD) have both taken
the position, and most courts that have addressed the issues agree, that density (or
overconcentration) restrictions are most typically inconsistent with the Fair Housing Act.
Overconcentration in California law is defined as a separation of less than 300 feet from another
licensed residential care facility; these separation requirements do not apply to residential care
facilities for the elderly or drug and alcohol treatment facilities, which are protected classes.
Cities are prohibited from imposing separation requirements on these state licensed residential
facilities. Under current law, the city could only adopt distance requirements for sober living
homes if the effect was not discriminatory, i.e., if any requirements applied equally to similarly
February 19, 2019 Item #3 Page 6 of 21
situated housing for the non-disabled or provided preferential treatment for the disabled. This is
the zoning and regulatory approach that was recently enacted by the City of Costa Mesa, which
was the subject of recent litigation.
Conclusion: What Can the City Do to Address Resident Concerns?
This report has provided information on the applicable state and federal laws for sober living
homes, and summarized the challenges associated with efforts to regulate sober living homes
differently from single family residences. The issues and concerns associated with sober living
homes are shared-across the United States and not unique to Carlsbad. Some cities can verify an
increase in the number of sober living homes to support this public concern.
In Carlsbad, we do not have permitting or licensing requirements for sober living facilities that
are operating simply as housing for recovering substance abuse addicts; we are compliant with
state and federal laws regulating these homes. Staff, therefore, does not have data on how many
sober living homes are operating within the city. Staff is unable to confirm whether Carlsbad has
an over-concentration of sober living homes, or even whether Carlsbad has experienced an
increase in the number of sober living homes year over year. This report acknowledges, however,
that there is an enhanced resident awareness throughout the state of the increasing number of
sober living homes and more complaints about their impacts on residential neighborhoods. The
city has received complaints from residents in neighborhoods in the older part of the city about
sober living homes, but the number of complaints in the city as a whole has not been substantial
to date.
Due to the complexity of the issue and the challenge of developing regulations that would not be
in direct conflict with significant state and federal anti-discrimination laws, it is difficult to
recommend a course of action that would not potentially result in costly litigation for the city.
Below are suggested actions that staff could research further and complete a risk analysis to
determine if they are appropriate for Carlsbad:
1. Several county governments have adopted certification procedures for sober living
homes that receive public funding or referrals from local courts and county agencies. In
Orange County, certification requires an inspection of the facility as well as submission to
random inspections at any time while certified; there are strict standards for the
maintenance of properties; homes must adopt a good-neighbor policy to receive and
remedy complaints; and they must place curfews and other restrictions on tenant
behavior. Certification programs of this type would be limited, but would be labor
intensive and costly from an administrative standpoint. Staff could work with county
officials to determine if this action would be appropriate.
2. Continue to work with state legislators to require a recovery house that is owned or
operated by a community care facility, which is defined as a 24-hour non-medical care
facility typically for children or adults with developmental disabilities, and that functions
as an integral component of that community care facility to be licensed and subject to
inspection and enforcement. Senator Bates has authored and co-authored several bills to
February 19, 2019 Item #3 Page 7 of 21
address regulatory requirements for sober living homes, but none have been successful
to date, primarily due to opposition from operators of sober living homes and advocates
for the disabled. Attached as Exhibit 1 is a summary of legislative efforts to date.
3. Require all residential rentals, short-term and long-term, to obtain a business license,
include good-neighbor rules in their leases and be subject to annual inspections to ensure
the homes meet basic housing quality standards. This program would be very costly and
labor intensive, but there are models in other cities (such as the City of Los Angeles) of
rental licensing/registration and inspection that could be used to develop a program in
Carlsbad. It is very important to note that this program would need to apply to ~rentals,
not only sober living homes, to avoid claims of discrimination or fair housing violations.
4. Complete a more extensive review of the new ordinance adopted by the City of Costa
Mesa to regulate group and sober living homes and continue to monitor the legal
challenges. Return to Council at a later date with a similar ordinance for consideration if
it is ultimately upheld in whole or parts by the courts. Attached as Attachment 2 is a
summary of the Costa Mesa information guide for its residents and new ordinance
requirements. To date, the city's requirement for separation between homes of 650 feet
has been upheld as nondiscriminatory and staff could study this further to determine if it
would have applicability in Carlsbad; other legal determinations will be monitored and
discussed at a later date in more detail as legal challenges are resolved through the courts.
5. Residents in the Olde Carlsbad neighborhood have asked for the City Council to appoint
an Ad Hoc Citizen Advisory Committee to work with the city on developing regulations for
Sober Living Homes. If the City Council wishes to do so, it is recommended that the council
provide specific instructions on the work program for this committee and provide legal
counsel for this effort. This is a very legally challenging issue that requires significant
expertise in state and federal laws related to fair housing and anti-discrimination to
develop legally defensible regulations.
This report is provided for informational purposes only to allow for public discussion of concerns
by Carlsbad residents and potential actions to address those concerns as related to sober living
homes. Attached as Exhibits 1-3 are additional resource materials that helped to inform this
report to City Council.
Fiscal Analysis
At this time there is no fiscal impact associated with the presentation ofthis informational report
on sober living homes.
Next Steps
There are no next steps, unless the City Council provides additional direction following their
discussion on this informational report.
February 19, 2019 Item #3 Page 8 of 21
Environmental Evaluation (CEQA)
Pursuant to Public Resources Code section 21065, this action does not constitute a "project"
within the meaning of CEQA in that it has no potential to cause either a direct physical change
in the environment, or a reasonably foreseeable indirect physical change in the environment,
and therefore, does not require environmental review.
Public Notification
This item was noticed in accordance with the Ralph M. Brown Act and was available for public
viewing and review at least 72 hours prior to the scheduled meeting date.
Exhibits
1. Summary of legislative efforts to date
2. Summary of City of Costa Mesa ordinance -sober living homes briefing paper
3. Reference/resource list -sober living homes
February 19, 2019 Item #3 Page 9 of 21
Exhibit 1
Appendix: Recent proposed legislation
The following table includes all bills directly or ind irectly affecting sober living homes that have been
introduced since the 1998-99 legislative session.
Year status Bill, Description
Sponsor
1998 Vetoed by Governor. SB 1540 Required state licensure of adult recovery maintenance
(Karnette) facilities or "sober living homes11 and required the
Department of Social Seivices to develop plans rega rding
comm unify care facilities.
1999 Vetoed by Governor. SB986 Required the Department of Alcohol and Drug Programs
(Karnette) to license and regulate adult recovery maintenance
facilities and directed department to establish fees to
regulate such facilities.
2000 Died in Assembly SB 987 Required the Department of Alcohol and Drug Programs
Health Committee. (Kamette) to administer the Jicensure and regulation of adult
recovery maintenance facilities.
2001 Never heard in SB 239 Required court, probation department, Department of
committee. (Morrow) Corrections, or California Youth Authority to refer persons
to a sober living facility only if certified.
2001 Never heard in SB 1089 Required the Department of Social Services to develop and
committee. (Karnette) submit to the Legislature plans regarding a statewide
database of alcohol and drug abuse treatment and
recovery facilities and a plan fo r regulating unlicensed
residential programs.
2002 Died in Senate AB 2317 Required the Department of Alcohol and Drug Programs to
Appropriations. (Chu) develop and adopt emergency regulations governing the
licensing and operation of adult recovery maintenance
facilities on or before July 1, 2003.
2003 Never heard in SB340 Required the Department of Alcohol and Drug Programs to
committee. (Florez) administer the Ii censure and regulation of adult recovery
maintenance facilities.
2005 Died in Senate AB36 Required the Department of Alcohol and Drug Programs to
Appropriations. (Strickland) license Adult Recovery Maintenance Facilities.
February 19, 2019 Item #3 Page 10 of 21
Year
2006
2007
2007
2007
2009
2009
Status
Never heard in
committee.
Never heard in
committee.
Died in Senate
Health Committee.
Vetoed by Governor.
Died in
Assembly
Appropriations.
Never heard in
committee.
Bi!I,
Sponsor
AB 1225
(Strickland)
AB327
(Horton)
AB724
(Benoit)
SB 992
{Wiggins)
AB 1055
(Chesbro)
SB 214
(Benoit)
Description
Req uired the owner of an alcoholism and drug abuse
recovery or treatment facility that serves more t han six
unrelated persons to notify the local law enforcement
agency of its existence. The bill would have prohibited a
facility from existing in a location with more than five
facilities within a square mile, with more than one facility
located on a single. city block, or within 1,000 feet of
another facility.
Required Department of Social Services, in consultation with
the Department of Alcohol and Drug Programs and other
state departments to establish and maintain a statewide
computerized database of community care licensing
facilities and alcoholism and drug abuse treatment and
recovery facilities.
Defined "sober living home" a.s a residential property which
is operated as a cooperative living arrangement to provide
an alcohol-and drug-free environment for persons
recover,ing from alcoholism or drug abuse, or both, who
seek. a living environment in which to remain clean and
sober, and which meets other specified requirements.
Required the Department of Alcohol and Drug Programs to
license Adult Recovery Maintenance Facilit ies.
Expanded the Department of Alcohol and Drug
Programs licensure authority for alcohol and drug
treatment facilities to include 24-hour facilities
that do not require a health facility license.
Provided that a sober living home. is exempt from licensure
under specified conditions. A residence housing those
purported to be recovering from drug and alcohol abuse
would be presumed to be a sober living home if it has been
certified, registered, or approved by a recognized
nonprofit organization that provides a credible quality
assu rance for applicants or members.
February 19, 2019 Item #3 Page 11 of 21
Year Status Bill, Description
Sponsor
2009 Gut and amended SB 689 Authorized a county or city to prohibit a person released
to address a (Hollingsworth) o • parole, after having served a term of impr.isonment i
different subject. state prison for any offense for which regist ration as a sex
offender is required, from residing during the period of
parole, in any single family dwelling with any other person
also on parole after having served a term of imprisonment
in state prison for any offense for which registration as a
sex offender is required, unless legally relat ed by blood,
marriage or adoption.
2010 Died in Senat e AB 2221 Permitted 24-hour residential treatment facHities
Appropriations. (Beall) that provide services to adults recovering from
alcohol and drug abuse that are licensed by the
Department of Alcohol and Drug Programs to
provide medical services and the facility would not
require a health facility license.
2012 Died in Assembly AB40 Required an alcoholism or drug abuse program
Appropriations. (Mansoor) licensee to report specified events or incidents,
including the deat h of a resident, within one
working day of the event or incident.
2012 Never heard in AB 1983 Defined integral alcohol and drug abuse treatment
committee. (Mansoor) facilities for purposes of licensure by the Department of
Alcohol and Drug Programs and excluded integral
facilities from being residential use of property.
2014 Died in Assembly. AB 2335 Exempted a sober living home or sup portive housing
(Mansoor) from licensure as an alcohol and drug treatment
program.
2014 Died in Senate. AB 2491 Required t he Department of He.alth Care Services to
(Nesta nde) 'license and regulate adult recovery maintenance
facilities. Exempted sober living homes from licensure.
2016 Died in Assembly AB 838 {Brough Required any recovery houses operat ed by licensed
Health Committee. and Harper) community care facility to be deemed to be facilities
that provide treatment or services under t he license of
the community care facility.
2016 Inactive bi.II. AB 1283 (Bates Allowed a city, co unty, or both to adopt health and
and Brough) safety standards and enforcement mechanisms for
structured sober living homes.
February 19, 2019 Item #3 Page 12 of 21
Exhibit 2
City of Costa Mesa Group/Sober Living Home
Briefing Paper
Costa Mesa, California is one of the cities attempting to regulate sober living and group homes through
zoning law. Because of the significant number of sober living homes in Costa Mesa, this issue is of
significant concern to the residents of that city. The City of Costa Mesa created a page on its website to
serve as the main source of information regarding the City's regulation of group homes, including sober
living homes, and certain state licensed facilities. The City states that it is attempting to find a balance
between the needs of its residents, who wish to enjoy the peace and quiet of their homes in a
traditional residential neighborhood, and the needs of those living in residential recovery facilities to
enjoy this same quality of life that Costa Mesa has to offer.
The City has invested substantial resources toward this cause and has revised its Municipal Code to
regulate both small and large group homes as well as large licensed facilities in the City's residential
zones. Following is a grouping of information and resources Costa Mesa is making available to residents
around group homes/ sober living homes. Many of the questions and information contained on the
Costa Mesa website are applicable to Carlsbad as well.
1) Persons recovering from addiction to drugs and/or alcohol are considered to be disabled
under state and federal law.
Since the federal Fair Housing Act ("the Act") was amended by Congress in 1988 to add
protections for persons with disabilities and families with children, there has been a great deal
of litigation concerning the Act's effect on the ability of local governments to exercise control
over group living arrangements, particularly for persons with disabilities. The Department of
Justice has taken an active part in much of this litigation, often following referral of a matter by
the Department of Housing and Urban Development ("HUD"). Following is an overview of the
Fair Housing Act's requirements in this area .
The Fair Housing Act prohibits a broad range of practices that discriminate aga inst individuals on
the basis of race, color, religion, sex, national origin, familial status, and disability. The Act does
not pre-empt local zoning laws. However, the Act applies to municipalities and other local
government entities and prohibits them from making zoning or land use decisions or
implementing land use policies that exclude or otherwise discriminate against protected
persons, including individuals with disabilities.
2) The Fair Housing Act makes it unlawful to:
• Utilize land use policies or actions that treat groups of persons with disabilities less
favorably than groups of non-disabled persons. An example would be an ordinance
prohibiting housing for persons with disabilities or a specific type of disability, such as
mental illness, from locating in a particular area, while allowing other groups of
unrelated individuals to live together in that area .
• Take action against, or deny a permit, for a home because of the disability of individuals
who live or would live there. An example would be denying a building permit for a home
because it was intended to provide housing for persons with mental retardation.
February 19, 2019 Item #3 Page 13 of 21
• Refuse to make reasonable accommodations in land use and zoning policies and
procedures where such accommodations may be necessary to afford persons or groups
of persons with disabilities an equal opportunity to use and enjoy housing.
• The Fair Housing Act requires jurisdictions to offer reasonable accommodation to meet
the needs of disabled persons.
3) What constitutes a reasonable accommodation is a case-by-case determination.
Not all requested modifications of rules or policies are reasonable. If a requested
modification imposes an undue financial or administrative burden on a local
government, or if a modification creates a fundamental alteration in a local
government's land use and zoning scheme, it is not a "reasonable" accommodation.
The Fair Housing Act does not protect persons who currently use illegal drugs, persons
who have been convicted of the manufacture or sale of illegal drugs, or persons with or
without disabilities who present a direct threat to the persons or property of others.
HUD and the Department of Justice encourage parties to group home disputes to
explore all reasonable dispute resolution procedures, like mediation, as alternatives to
litigation.
Adapted from the Joint Statement of the Department of Justice and the Department of
Housing and Urban Development (August 18, 1999)
4) Definitions
Alcoholism or Drug Abuse Recovery or Treatment facility-An adult alcoholism or drug
abuse recovery or treatment facility that is licensed pursuant to Section 11834.01 of the
California Health & Safety Code. Alcoholism or Drug Abuse Recovery or Treatment
Facilities are a subset of Residential Care Facilities.
Conditional use permit (CUP} -A discretionary approval usually granted by the planning
commission which allows a use or activity not allowed as a matter of right, based on
specified findings.
Group home -A facility that is being used as a supportive living environment for
persons who are considered handicapped under state or federal law.
Handicapped -As more specifically defined under the fair housing laws, a person who
has a physical or mental impairment that limits one (1) or more major life activities, a
person who is regarded as having that type of impairment, or a person who has a record
of that type of impairment, not including current, illegal use of a controlled substance.
Integral facilities -Any combination of two (2) or more group homes which may or may
not be located on the same or contiguous parcels of land, that are under the control and
management of the same owner, operator, management company or licensee or any
affiliate of any of them, and are integrated components of one (1) operation shall be
referred to as integral facilities and shall be considered one (1) facility for purposes of
applying federal, state and local laws to its operation. Examples of such integral facilities
include, but are not limited to, the provision of housing in one (1) facility and recovery
February 19, 2019 Item #3 Page 14 of 21
programming, treatment, meals, or any other service or services to program
participants in another facility or facilities or by assigning staff or a consultant or
consultants to provide services to the same program participants in more than one (1)
licensed or unlicensed facility.
Integral uses -Any two (2) or more residential care programs commonly administered
by the same owner, operator, management company or licensee, or any affiliate of any
of them, in a manner in which participants in two (2) or more care programs participate
simultaneously in any care or recovery activity or activities so commonly administered.
Any such integral use shall be considered one (1) use for purposes of applying federal,
state and local laws to its operation.
Operator-A company, business or individual who provides residential services, i.e., the
placement of individuals in a residence, setting of house rules, and governing behavior
of the residents as residents. Operator does not include a property owner or property
manager that exclusively handles real estate contracting, property management and
leasing of the property and that does not otherwise meet the definition of operator.
Permitted use -Any use allowed in a land use zoning district without requiring a
discretionary approval, and subject to the provisions applicable to that district.
Residential Care Facility -A residential facility licensed by the state where care,
services, or treatment is provided to persons living in a supportive community
residential setting.
Single Housekeeping Unit -The occupants of a dwelling unit have established ties and
familiarity with each other, jointly use common areas, interact with each other, share
meals, household activities, and expenses and responsibilities; membership in the single
housekeeping unit is fairly stable as opposed to transient, members have some control
over who becomes a member of the household, and the residential activities of the
household are conducted on a nonprofit basis. There is a rebuttable presumption that
integral facil ities do not constitute single housekeeping units. Additional indicia that a
household is not operating as a single housekeeping unit include but are not limited to:
the occupants do not share a lease agreement or ownership of the property; members
of the household have separate, private entrances from other members; members of
the household have locks on their bedroom doors; members of the household have
separate food storage facilities, such as separate refrigerators.
Sober Living Home -a Group Home for persons who are recovering from a drug and/or
alcohol addiction and who are considered handicapped under state or federal law.
Sober living homes shall not include the following: (1) Residential Care Facilities; (2) any
Sober Living Home that operates as a single housekeeping unit.
5) The difference between a Residential Care Facility and a Sober Living Home
A Residential Care Facility is one that is licensed by the California Department of Social
Services (DSS) or the Department of Health Care Services (DHCS). Residential Care
facilities that provide drug and or alcohol abuse treatment are licensed by DHCS and are
known as alcoholism or drug abuse recovery or treatment facilities. Homes are required
to be licensed by the DHCS when at least one of the following services is provided:
February 19, 2019 Item #3 Page 15 of 21
detoxification, group counseling sessions, individual counseling sessions, educational
sessions, or alcoholism or drug abuse recovery or treatment planning.
A Sober Living Home is a home used by people recovering from substance abuse, which
serves as an interim environment between rehab and their future lives. These homes
are not allowed to provide the same services as a DHCS licensed alcoholism or drug
abuse recovery or treatment facility. Sober Living Homes are primarily meant to provide
housing for people who have just come out of rehab and need a place to live that is
structured and supportive for those in recovery.
6) How the City regulates sober living homes.
The City's regulations for group homes, including sober living homes, and state licensed
alcoholism or drug abuse recovery or treatment facilities, are found in Chapters XV and
XVI ofTitle 13 (Zoning) and Article 23 of Title 9 (Licenses and Business Regulations) Click
Here of the Costa Mesa Municipal Code. The general requirements are as follows:
Group homes, including sober living homes, with 6 or fewer residents, plus one house
manager are allowed to locate in all residential zones with a special use permit (SUP),
which requires:
• A public hearing in front of the Development Services Director prior to
issuance
• Notice to all residents and property owners within 500'
• Written Rules and regulations
• Relapse policy
• Manager present 24-hours a day o Garage and driveway must remain
available for parking
■ Residents must park on site or within 400 feet
■ Compliance with all applicable provisions of the California Vehicle Code, such
as those related to parking, stopping and licensure
■ No care and supervision is allowed
• Full compliance with building and zoning codes
■ If a resident is evicted, operators must notify the resident's emergency
contact and provide transportation to their permanent address
• If the resident has no home to return to or otherwise refuses transportation
home, the operator must provide transportation to another facility if a bed is
available
• Sober living homes also require:
• 650' separation from another sober living home or state licensed alcoholism
or drug abuse recovery or treatment facilities
February 19, 2019 Item #3 Page 16 of 21
■ Occupants must be enrolled in Alcoholics Anonymous or Narcotics
Anonymous
■ No use of alcohol or non-prescription drugs -violators must be evicted
■ Limits on the number of occupants subject to sex offender registration
■ A good neighbor policy that direct occupants to be considerate of neighbors,
including refraining from engaging in excessively loud, profane or obnoxious
behavior that would unduly interfere with a neighbor's use and enjoyment of
their dwelling unit
■ No detoxification, counseling sessions or treatment or recovery planning
allowed
State licensed alcoholism or drug abuse recovery or treatment facilities with 6 or fewer
residents are regulated by the DHCS and are not subject to the City's group home
regulations pursuant to state law, but are subject to all other code requirements
applicable to single-family dwellings.
Group homes, sober living homes, and DHCS licensed alcoholism or drug abuse recovery
or treatment facilities with 7 or more residents may locate only in the multiple-family
residential zones. The general requirements are:
■ A conditional use permit (CUP) must be obtained
■ Public hearing in front of the Planning Commission
■ Separation requirements
■ Must be 650' away from another group homes, sober living home, or State
licensed alcoholism or drug abuse recovery or treatment facility
■ Sober living homes also require an operator's permit which includes most of
the same requirements as a SUP
7) Residential Care Facilities and Group Homes are permitted in single-family residential
neighborhoods (Rl zones).
The state of California has determined that licensed facilities serving six or fewer residents are
residential uses under state law, and cannot be subject to zoning regulations that do not apply
generally to all residences in an area. Therefore, Residential Care Facilities serving six or fewer
persons are permitted in the Rl zone. Group homes are subject to the City's zoning regulations
and require a SUP (CMMC 13-311).
8) Residential Care Facilities and Group Homes are permitted in multifamily residential zones
(R2-MD, R2-HD, R3, PDR-LD, PDR-HD, PDR-NCM, PDC, and PDI}.
February 19, 2019 Item #3 Page 17 of 21
Residential Care Facilities serving six or fewer persons are permitted in multifamily zones
pursuant to state law. Group homes serving six or fewer residents require a SUP (CMMC 13-
311). Residential Care Facilities and Group Homes serving seven or more persons require a CUP.
9) Reasonable Accommodation.
Pursuant to Federal regulations, the city is required to grant disabled individuals reasonable
accommodation from zoning restrictions when necessary to allow equal use or enjoyment of a
dwelling. An accommodation is reasonable if it does not cause undue hardship, fiscal, or
administrative burdens on the municipality, or does not undermine the basic purpose a zoning
ordinance seeks to achieve. A three-part test is applied to determining whether a reasonable
accommodation is necessary:
(1) the accommodation must be reasonable and
(2) necessary, and must,
(3) allow a substance abuser equal opportunity to use and enjoy a particular dwelling.
The city must make exceptions in its zoning rules to afford people with disabilities the same
access to housing as those who are without disabilities. However, fundamental or substantial
modifications from municipal or zoning codes are not required.
10) When a state license is required.
The DHCS licenses facilities providing 24-hour residential nonmedical services to eligible adults
who are recovering from alcohol or other drug misuse or abuse. Facilities are required to be
licensed by the DHCS when they offer at least one of the following services:
0 Detoxification
0 lndividual or group sessions
0 Education
0 Recovery or treatment planning
0 lndividualized services (e.g., vocational and employment, new skills training, social and
recreational activities, peer support)
Sober Living Homes that provide group living arrangements for people who have graduated
from drug and/or alcohol addiction programs, but do not provide care or supervision to those
individuals, are not required to be licensed.
11) Overconcentration standards/separation requirements between Residential Care
Facilities.
State law does not impose any separation requirements between DHCS licensed facilities serving
those in recovery from drug and/or alcohol addiction. However, the City has adopted a
separation requirement of 650 feet between group homes and licensed facilities serving those in
recovery. This standard only applies to those facilities subject the City's permitting requirements
(those facilities required to obtain a SUP or CUP).
February 19, 2019 Item #3 Page 18 of 21
12) Limitations on the number of Group Homes that can locate in a certain area.
The Department of Justice and HUD take the position, and most courts that have addressed the
issue agree, that density restrictions are generally inconsistent with the Fair Housing Act. We
also believe, however, that if a neighborhood came to be composed largely of group homes,
that could create an institutional setting. Such a setting would be inconsistent with the objective
of integrating persons with disabilities into the community. This objective does not, however,
justify separations which have the effect of foreclosing group homes from locating in entire
neighborhoods.
The City has established a separation standard of 650 feet between group homes and
Residential Care Facilities serving those in recovery. This separation standard only applies to
those facilities subject to the City's permitting requirements. The intent is to allow about one
such facility per block. The City adopted this standard to prevent neighborhoods from becoming
institutionalized with multiple group homes. The intent of state law in allowing these facilities in
residential neighborhoods is to allow those in recovery to live in a residential setting.
13} Group homes are not considered a business operation.
State law provides that cities must treat licensed facilities serving six or fewer residents as a
single-family residential use. Federal and state fair housing laws protect people with disabilities
from housing discrimination. Recovering alcoholics and drug addicts are disabled for purposes of
anti-discrimination laws. When people in recovery live together in a sober living home, the city
cannot discriminate on the basis of the disability, which means an ordinance cannot treat sober
living homes differently than other similar uses in residential zones.
14) The City allows neighbors to provide input when the City is making a decision about
granting a permit to a Group Home or licensed care facility to locate in a residential
neighborhood.
The City modified its regulations to require a public hearing prior to approving a SUP. SUPs allow
sober living homes serving six or fewer residents to operate in a residential zone. The City's
regulations stipulate that an SUP can only be denied if it fails to comply with the zoning code.
The purpose of the hearing is to allow neighbors to provide evidence as to the facility's
compliance with the zoning code. Decisions regarding SUPs may be appealed to the Planning
Commission.
Facilities serving more than seven residents require approval of a CUP. The Planning
Commission must hold a public hearing prior to taking action on a CUP. The Commission may
impose conditions of approval to ensure the use is compatible with the neighborhood. The
decisions of the Planning Commission may be appealed to the City Council.
The City provides notices of these public hearings to all owners and occupants of property
within 500 feet of the proposed group home. Notice is also published in the Daily Pilot at least
ten days prior to the hearing, and notices are posted on the subject property. The City also
maintains an email interest list and provides informal notice when hearings involving group
homes are scheduled. To sign up for this list, Click here and enter in subject line: Interest list
February 19, 2019 Item #3 Page 19 of 21
15) Factors the City may consider when evaluating an application for a group home or licensed
care facility
In the same way a local government would break the law if it rejected low-income housing in a
community because of neighbors' fears that such housing would be occupied by racial
minorities, a local government can violate the Fair Housing Act if it blocks a group home or
denies a requested reasonable accommodation in response to neighbors' stereotypical fears or
prejudices about persons with disabilities. This is so even if the individual government decision-
makers are not themselves personally prejudiced against persons with disabilities. If the
evidence shows that the decision-makers were responding to the wishes of their constituents,
and that the constituents were motivated in substantial part by discriminatory concerns, that
could be enough to prove a violation. Of course, the City Council and Planning Commission are
not bound by everything that is said by every person who speaks out at a public hearing. It is the
record as a whole that will be determinative. If the record shows that there were valid reasons
for denying an application that were not related to the disability of the prospective residents,
the courts will give little weight to isolated discriminatory statements. If, however, the
purportedly legitimate reasons advanced to support the action are not objectively valid, the
courts are likely to treat them as pretextual, and to find that there has been discrimination. The
decision makers must base decisions on specific evidence regarding the application under
consideration. If the facility is creating specific problems that interfere with the ability of
surrounding residents to enjoy their property, those issues may properly influence the decision.
However, City officials cannot base decisions to approve or deny these applications based on
stereotypical fears or general concerns about possible impacts.
16) Types of conditions the City may impose when approving a group home or residential care
facility.
When approving a CUP, the City may impose conditions necessary to ensure compliance with its
regulations, and to address operational considerations that may be creating issues in the area.
However, conditions may not discriminate against the residents of the home by denying them
privileges enjoyed by other residents in the neighborhood. Since the City does not limit the
number of cars that may be kept at any residence, for instance, the City may not impose
conditions limiting the number of vehicles that can be kept at a group home.
17) Protections for individuals who may be evicted from a group home
The City requires operators to notify the resident's emergency contact at least 48 before
evicting a resident. The operator is also obligated to provide transportation back to the
resident's permanent address. Further, operators are required to contact OC Links, the County
of Orange referral service, and the City's Network for Homeless Solutions, to determine if
services are available for the resident. If the resident refuses transportation back to their
permanent address, and there is a bed available in another facility, the operator is required to
provide transportation to that facility.
February 19, 2019 Item #3 Page 20 of 21
Exhibit 3
Sober Living Homes Briefing Paper
Reference/Research Materials
1. MacCannell, Jason and Hogue, Kellie Jean, "Sober living homes in California : Option for State and
Local Regulation," California Research Bureau, September, 2016.
2. Chrisi Hogan, "Sober Living Businesses in Residential Zones," Western City, August 1, 2014,
www. western city .com/ article/ so be r-I ivi ng-b usi nesses-reside ntia I-zo nes.
3. Rick McNeil, Colin Higgins, Leslie Barron, "Rumble in the Riviera," OC Lawyer, April 1, 2016.
4. Joint Statement, Department of Housing and Urban Development and the United States Department
of Justice, August 6, 2015, www.justice.gov/crt/joint-statement-department-justice-and-department-
housing-and-urban -development.
5. Joint Statement of the Department of Justice and the Department of Housing and Urban
Development -Group Homes, Local Land Use and the Fair Housing Act, August 18, 1999 and updated
November 14, 2016, www.idaholegalaid.org/files/HUD-DOJ Statement ReGrpHm-
localLandUseandTheFairHousingAct.pdf.
6. City of Los Alamitos Frequently Asked Question (FAQ) Guide -Residential Care Facilities Non-Licensed
Residential Homes, December 14, 2015, https://cityoflosalamitos.org/?wpfb dl=2060.
7. "Three Legal Protections California Local Governments and Providers of Sober and Other Independent
Living for Pe rsons with Disabilities Need to Know," Future Associates Inc., Solutions for Treatment
Expansion Project (STEP), July 2009, https://soberhousing.net/wp-
content/uploads/2016/01/Legal Protections FINAL.pdf.
8. Joint Statement of the Depa rtment of Housing & Urban Development and the Department of Justice,
State and Local Land Use Laws & Practices and t he application of the Fair Housing Act, November 10,
2016.
9. Joint Statement of the Depa rtment of Housing & Urban Development and the Department of Justice,
Reasonable Accommodations under the Fair Housing Act, May 14, 2004.
February 19, 2019 Item #3 Page 21 of 21
Debbie Fountain
Community and Economic Development Director
Feb. 19, 2019
Sober Living Homes & Regulations
Report
City Council Request
September 11, 2018 City Council Motion:
“to place the discussion of sober living facility
regulations on a future agenda”.
Sober living homes
•Group homes: typically 6 or fewer residents
-Addiction recovery
-Residences, not treatment facilities
•Limited licensing and zoning requirements
•Residents are considered disabled (addiction)
•Protected under federal and state law
Sober Living Neighbor Concerns
•Neighborhood impact
–Noise, smoking, language
•Traffic & parking
•Property values
•Overconcentration
Efforts to regulate
•The Fair Housing Act
–Prohibits discrimination against the disabled
•Agencies attempt to regulate
–Limit the #, distance & operational restrictions
•Met with legal challenges
–Bills: 25:3:0
•Costa Mesa
Costa Mesa regulations
•650-foot buffer
•Special permit
–6 resident cap
–live-in manager, no alcohol or nonprescription drugs
–No “loud, profane or obnoxious” behavior
•Background checks for house managers
•Federal jury sides with Costa Mesa
•Case cost: $2 million
•Appeal planned
Options
•Certification of sober living homes
•Partner with legislators
•Require a business license
–Good neighbor rules & annual inspections
•Costa Mesa Ordinance
–Wait, see, follow?
•Ad Hoc Citizen Advisory Committee
Summary
•Sober living homes enjoy legal protection
•Resident concerns shared nationwide
•No license, no count
•Legal options
–Costly
–Likely to fail
•City Council direction
Thank You