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HomeMy WebLinkAbout2019-02-19; City Council; ; Informational staff report on sober living homes and applicable regulations.Meeting Date: To: From: 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