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HomeMy WebLinkAbout2020-05-12; City Council; ; Report on Recovery-Based Group Homes from the Ad-Hoc City Council Subcommittee on Sober Living Homes~ CITY COUNCIL ~ Staff Report Meeting Date: To: From: Staff Contact: May 12, 2020 Mayor and City Council Scott Chadwick, City Manager Jeff Murphy, Community Development Director jeff.murphy@carlsbadca.gov, 760-602-2783 CA Review MK Subject: Report on Recovery-Based Group Homes from the Ad-Hoc City Council Subcommittee on Sober Living Homes Recommended Action The Ad-Hoc City Council Subcommittee on Sober Living Homes recommends that the City Council receive the report entitled "Recovery-Based Group Homes" (Exhibit 1) and direct staff to pursue the actions described in the Conclusion section of that report. Executive Summary Following a Jan. 29, 2020, public meeting with the ad-hoc City Council Subcommittee on Sober Living Homes, staff prepared a report (Exhibit 1) that provides an overview of the purpose and types of recovery~based group homes, the legal framework that protects these homes and the permitting restrictions that limit the city's ability to regulate them. The report also includes a · summary of the questions and concerns raised by residents during and following the January 29 meeting, city staff's responses to those concerns and an overview of the actions the city can pursue to help bring attention to the issue. On April 17, 2020, staff met with the ad..:hoc subcommittee to review the report and discuss its findings and conclusions. Given the restrictions in current state and federal law, as well as the current lack of legal clarity in the substantially undecided California case law concerning recovery-based group homes and specifically sober living homes, the city is limited in what it can legally do to address many of the concerns raised by the community. The subcommittee recommended that the item be scheduled for City Council consideration with a recommendation that the City Council receive the report and direct staff to take the actions described in the conclusion of the report. Discussion Background On Feb. 19, 2019, the City Council received an informational staff report on sober living homes to allow for discussion of concerns raised by Carlsbad residents and potential actions to address those concerns. Following the presentation of the report, the City Council approved a minute motion directing the creation of a subcommittee to discuss sober living homes. On July 23, 2019, the City Council adopted a resolution authorizing the formation of a City Council ad-hoc May 12, 2020 Item #3 Page 1 of 227 subcommittee on sober livings homes, with council member Blackburn and then-council member Hamilton as members. The subcommittee was tasked with working with staff to engage community stakeholders, listen to and discuss their concerns and recommendations regarding sober living homes and recommend potential regulatory and legislative strategies for the City Council to pursue. On Dec. 2, 2019, staff meet with the ad-hoc subcommittee to discuss the logistics of a community meeting on sober living homes, including the date, time, location and format. Staff also discussed approaches to outreach and educational information that should be developed and made available at the meeting. On Jan. 29, 2020, city staff held a public meeting to solicit comments and questions on recovery-based group homes and sober living homes. To maximize participation, staff invited residents who previously expressed an interest on the issue to attend the public meeting. The meeting was also advertised on the city's website and the Nextdoor social media platform, and flyers were placed at various high-traffic areas in city facilities. Twenty-one residents attended. They shared their concerns and experiences with recovery- based group homes, specifically sober living homes in their neighborhoods. Other members of the public were given until Feb. 12, 2020, to submit additional comments on the topic of group homes. Findings and recommendations Following that February 2020 deadline, staff prepared a report (Exhibit 1) that provides an overview of the purpose and types of recovery-based group homes, the legal framework that protects these homes, the permitting restrictions that limit the city's ability to regulate sober living homes and summary responses to the concerns raised by residents during and following the January 29 meeting. On April 17, 2020, staff met with the ad-hoc subcommittee to review the report and discuss its findings and conclusions. Following the discussion, the ad-hoc subcommittee found that given the restrictions in current state and federal law, as well as the current lack of legal clarity in the substantially undecided California case law concerning recovery-based group homes and specifically sober living homes, the city is limited in what it can legally do to address many of the concerns raised by the community. However, there are a few things the city could do to help bring attention to the issue : • Add the issue to the Carlsbad Legislative Platform. Working with such agencies as the League of California Cities and with city lobbyists, the city can encourage its state and federal representatives to develop new legislation that addresses the adverse impacts associated with recovery-based group homes in residential neighborhoods. • Track potential changes resulting from lawsuits. City staff can monitor recent and pending court decisions and report back to the City Council on the limitations that courts would likely impose on city regulation of recovery-based group homes. 2 May 12, 2020 Item #3 Page 2 of 227 • Continue enforcement. The city can continue to respond to complaints and calls from residents near recovery-based group homes and enforce those rules and regulations that apply to all single-family residences, such as unpermitted construction, public nuisances, noise and trash violations. As noted above, the ad-hoc subcommittee recommended the City Council receive the report (Exhibit 1) and direct staff to pursue the actions described in its Conclusion section, which are listed above. Next Steps Following the City Council meeting, and with the direction of the City Council, staff may implement and pursue the actions described in conclusions of the attached report (Exhibit 1) and described in brief above. Environmental Evaluation (CEQA) This is an informational report so, in keeping with Public Resources Code section 21065, this action does not constitute a "project" within the meaning of the California Environmental Quality Act 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 further 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. Recovery-Based Group Homes: A report on the purpose, challenges and opportunities related to residences that provide housing and support for people recovering from addiction 3 May 12, 2020 Item #3 Page 3 of 227 RECOVERY-BASED GROUP HOMES Exhibit 1 A REPORT ON THE PURPOSE, CHALLENGES AND OPPORTUNITIES RELATED TO RESIDENCES THAT PROVIDE HOUSING AND SUPPORT FOR PEOPLE RECOVERING FROM ADDICTION City of Carlsbad Community Development Department I April 2020 May 12, 2020 Item #3 Page 4 of 227 PAGE INTENTIONALLY LEFT BLANK May 12, 2020 Item #3 Page 5 of 227 Contents Executive Summary ......................................................................................................................... 1 Purpose & Types .............................................................................................................................. 3 Purpose ........................................................................................................................................ 3 Types of Facilities ......................................................................................................................... 3 Sober Living Homes (SLHs) ....................................................................................................... 3 Residential Care Facilities (RCFs) ............................................................................................. 3 Professional Care Facility (PCFs) .............................................................................................. 4 Laws Governing Group Homes ........................................................................................................ 5 The Basics .................................................................................................................................... 5 Federal Acts & Laws ..................................................................................................................... 5 Federal Fair Housing Act .......................................................................................................... 5 Federal Americans with Disabilities Act.. ................................................................................. 6 State Acts & Laws ........................................................................................................................ 6 California Fair Employment and Housing Act ................................................................ , ......... 6 California Planning and Zoning Law ......................................................................................... 7 California Caselaw ....................................................................................................................... 7 City of Santa. Barbara v. Adamson ........................................................................................... 7 Broad moor San Clemente Homeowners Assn. v. Nelson ......................................................... 7 City of Los Angeles v. Department of Health ........................................................................... 7 Local & State Permitting Limitations ............................................................................................... 9 City Business License ............................................................................................................... 9 State License ............................................................................................................ .' ............... 9 City Ministerial Permit ........................................................................................................... 10 City Discretionary Permit ....................................................................................................... 10 Attempts to Change the Laws ........................................................................................................ 11 California Lawsuits Affecting RGHs ............................................................................................ 11 City of Newport Beach ........................................................................................................... 11 City of Costa Mesa ................................................................................................................. 12 Ad-Hoc Subcommittee Meeting on SLHs ....................................................................................... 15 Public Concerns & Comments ................................................................................................... 15 May 12, 2020 Item #3 Page 6 of 227 Legal Concerns ....................................................................................................................... 16 Building & Zoning Concerns ................................................................................................... 17 Safety Questions .................................................................................................................... 18 Ad Hoc Committee Questions ............................................................................................... 18 Conclusion ...................................................................................................................................... 19 City's Legislative Program .......................................................................................................... 19 Changes Resulting from Lawsuits .............................................................................................. 19 Continued Enforcement .............................................................................................................. 19 Attachments #1 HUD/DOJ -Laws, Practices and Application of Fair Housing Act #2 League of CA Cities Challenges of Implementing ADA & FHA #3 Informational Staff Report on Sober Living Homes dated Feb. 19, 2019 #4 City Council Minutes dated Feb. 19, 2019 (Minute Motion) #5 Staff Report and City Council Resolution #2019-134 dated Jul. 23, 2019 #6 City of Carlsbad Group Living Arrangements Handout #7 Subcommittee Meeting Minutes dated Jan . 29, 2020 & Public Comments Received May 12, 2020 Item #3 Page 7 of 227 Executive Summary The City of Carlsbad occasionally receives concerns about group living arrangements, particularly when the living arrangements are recovery focused and located in single-family residential neighborhoods. There are various types of group homes, each serving a slightly different purpose and need. Some examples include sober living homes, residential care facilities, community care facilities and outpatient treatment centers. Collectively, they are often referred to as "recovery-based group homes" (RGHs). Sober living homes (SLHs), which are the most common RGHs and often the subject of concern from neighborhood residents, are recovery focused living environments for individuals attempting to abstain (typically) from alcohol and drugs. Often found in single-family homes in existing and established neighborhoods, SLHs do not provide medical treatment services and therefore are exempt from state licensing requirements that would otherwise apply to drug treatment facilities. For this same reason, regulation of SLHs by local governments is limited. On Feb. 19, 2019, the City Council received an informational staff report on SLHs to allow for discussion of concerns raised by Carlsbad residents and potential actions to address those concerns. Following the presentation of this report, the City Council approved a Minute Motion directing the creation of a subcommittee to discuss SLHs. On Jul. 23, 2019, the City Council adopted a resolution authorizing the formation of a City Council ad-hoc subcommittee on sober livings homes (Blackburn, Hamilton). The subcommittee was tasked with working with staff to engage community stakeholders, to listen to and discuss their concerns and recommendations regarding SLHs and to recommend potential regulatory and legislative strategies for the City Council to pursue. On Jan. 29, 2020, City staff held a public meeting to solicit comments on group homes. To maximize participation, residents who previously expressed an interest on the issue were invited to attend the community meeting. Roughly 21 residents attended, where they shared their concerns and experiences with group homes, specifically SLHs located within their neighborhoods. The community was given until Feb. 12, 2020, to submit final comments on the topic of group homes. Following the February deadline, staff prepared this report which provides an overview of the purpose and types of group homes, the legal framework that protects the homes, the permitting restrictions that liniit the city's ability to regulate SLHs and summary responses to the concerns raised by residents during and following the January 29th meeting. On April 17, 2020, staff met with the ad-hoc subcommittee to review the report and discuss its findings and conclusions. The ad-hoc subcommittee found that given the restrictions in current state and federal law, as well as the current lack of legal clarity demonstrated by the substantially undecided California case law concerning group homes and specifically SLHs, the city is limited in what it can legally do to address many of the concerns raised by the community. However, there are a few things the city should pursue to help bring attention to the issue: ✓ Carlsbad Legislative Platform. Working with agencies like the League of California Cities and city lobbyists, the city can encourage its state and federal representatives to develop new legislation that addresses the adverse impacts associated with group homes in residential neighborhoods. 1 May 12, 2020 Item #3 Page 8 of 227 ✓ Changes resulting from lawsuits. The city can monitor recent and pending court decisions and report back to the City Council the limitations that courts would likely impose on city regulation of group homes. ✓ Continued enforcement. The city can continue to respond to complaints and calls from residents near group homes and enforce those rules and regulations that apply to all single- family residences (i.e., unpermitted construction, public nuisances, noise, trash}. The ad-hoc subcommittee recommended that the item be scheduled for City Council consideration with a recommendation that the City Council receive the report and direct staff to pursue the actions described in the section entitled "Conclusion," which are also listed above. 2 May 12, 2020 Item #3 Page 9 of 227 Purpose & Types Purpose Recovery-based group homes (RGHs) is a broad term describing a sober, safe, and healthy living environment that promotes recovery from people suffering from addictions such as alcohol, drug, eating, gambling and other disorders. RGHs range from independent, resident-run homes to staff- managed facilities where counseling and medical services are provided. Recovery housing of this type has been associated with numerous positive outcomes including: • Decreased substance use • Reduced probability of relapse/reoccurrence • Lower rates of incarceration • Increased employment • Higher income • Improved family functioning Types of Facilities · There are varying types of RGHs (i.e., sober living homes, residential care facilities, professional care facilities, outpatient treatment center) of which some are allowed in residential homes and residential neighborhoods. There are two types of RGHs that have been the focus of community concerns and discussed in prior City Council meetings and the ad-hoc City Council subcommittee meeting: sober living homes and residential care facilities. Sober Living Homes (SLHs) Sober living homes (SLHs) are a type of RGH that provide housing to occupants recovering from dependence, either during and/or after outpatient addiction treatment. Length of stay is self- determined and can last for several months to years. Most SLHs contain six orfewerpersons, but that number can increase, depending upon the maximum occupancy of the home. Occupants of a SLH operate as a "family-unit," often sharing resources and experiential advice about how to access health care and social services, find employment, budget and manage finances, handle legal problems and build life skills. However, because no professional treatment services (medical or non-medical) are provided on site, SLHs are classified as residential housing, just as any other residence in a residential neighborhood. The only distinction is that SLH occupants identify as recovering addicts. Residential Care Facilities (RCFs) Residential care facilities (RCFs) are like a SLH with the exception that they offer non-medical treatment/counseling programs in a 24-hour residential setting. Examples of non-medical services . include the following: • Individual Counseling Sessions • Group Counseling Sessions • Educational sessions • Alcoholism or Drug Abuse Recovery Counseling 3 May 12, 2020 Item #3 Page 10 of 227 RCFs typically have a life skill development emphasis and residents receive clinical services outside the home. Most often there is a facility manager in this type of recovery focused group home as well a certified staff or case managers, with service hours provided in the house. Professional Care Facility (PCFs) Professional care facilities (PCFs} are a type of facility that provides medical and non-medical treatment in a 24-hour residential setting. Examples of medical services include intensive, 24-hour- a-day services delivered in settings other than a hospital including primary medical care and medication- assisted treatment (MAT}. PCFs are often mistaken as RCFs. 4 May 12, 2020 Item #3 Page 11 of 227 Laws Governing Group Homes The allowance and regulation of RGHs can be traced back to various federal and state statutes as well as case law. Below is a high-level summary of the limitations and restrictions placed on local governments from regulating RGHs, with additional detail on each referenced statute and case provided later in this section. The Basics While the laws that govern RGHs are complex, some of the key limitations placed on local cities to regulate RGHs, particularly SLHs, can be summarized as follows: • Individuals in recovery from drug and alcohol addiction are defined as "disabled."1 • Local governments are prohibited from imposing regulations that discriminate based on a disability, including restrictions on housing.2 • Local governments are required to treat groups of related and unrelated people identically when they function as one household or "family unit".3 • Local governments cannot limit the number of unrelated adults that act as a family unit from residing together in a household.4 • The number of people who live together as a family unit in a single-family home (occupancy} is based on the square footage (size} of the home.5 • Sober living homes and the people who occupy them must be treated like any other single- family home/household.6 Federal Acts & Laws Federal Fair Housing Act The Fair Housing Act (FHA} is a federal law enacted in 1968 that prevents discriminatory housing practices against individuals with disabilities. Substance use disorders are considered a "disability" for purposes of the FHA, and individuals suffering from these disorders constitute a "protected class." Disability protections under the FHA do not protect individuals engaged in active drug use, regardless of the individual's diagnosis. While the FHA does not pre-empt local authority such as local zoning laws, it does prevent state and local governments from enacting or enforcing land use or zoning laws that discriminate against persons because of a legally protected characteristic. The FHA requires public entities to grant "reasonable accommodations" so that individuals with disabilities can access equal housing opportunities. Zoning or 1 Fair Housing Act 24 C.F.R. 100.201. 2 Fair Employment and Housing Act and Fair Housing Act; §12900-12996 et seq. 3 Coalition Advocating Legal Housing Options v. City of Santa Monica, 88 Cal. App. 4th 451, 459-60 (2001). 4 Fair Housing Act, 42 U.S.C. 3601 et seq. 5 Uniform Housing Code Section 503 (b). 6 City of Santa Barbara v. Adamson, 27 Cal. 3d 123, 134 {1980). 5 May 12, 2020 Item #3 Page 12 of 227 land use decisions or policies that exclude or otherwise discriminate against individuals with disabilities and other protected classes are prohibited. Federal Americans with Disabilities Act Congress enacted the Americans with Disabilities Act (ADA) in 1990, providing that people with disabilities could not "be excluded from participation in or be denied the benefits of the services, programs, or activities of [any State or local government] or be subjected to discrimination by any state or local government" (42 U.S.C. § 12132). This means that the ADA prohibits discrimination against individuals with disabilities in all areas of public life, including public accommodations. The court system has interpreted the ADA and ruled that residents of RGHs must be allowed to live as a family unit without undue intervention from federal, state or local governments. The U.S. Department of Justice and the U.S. Department of Housing and Urban Development in August 2015 updated their joint statement on "Group Homes, Local Land Use, and the Fair Housing Act." ("DOJ/HUD Joint Statement.") A copy of the DOJ/HUD Joint Statement is attached to this paper as Attachment 1. The DOJ/HUD Joint Statement includes questions frequently posed by local officials, and the related answers. The League of California Cities advises that the answers provided be approached with extreme caution. Local officials walk a fine line in attempting to implement a policy that seemingly meets with federal law. Even where a city does not violate federal law, a city could still violate California law by treating an RGH differently than other single-family uses. State Acts & Laws California's constitution contains an express right to privacy, adopted by the voters in 1972. The California Supreme Court has found that this right includes "the right to be left alone in our own homes" and has explained that "the right to choose with whom to live is fundamental." Consequently, the California courts have struck down local ordinances that attempt to control who lives in a household- whether families or unrelated persons, whether healthy or disabled, whether renters or owners. Based on the privacy clause in the State Constitution, California case law requires cities to treat groups of related and unrelated people identically when they function as one household. California law reinforces federal law in prohibiting housing discrimination against persons with disabilities, including alcoholics and addicts in recovery. California has also established state laws and regulations that prevent the discrimination of people with disabilities in housing, employment, education and other important life areas. In California, it is illegal to refuse the rental or sale of property to a person because of a disability or other characteristics such as his or her age, race, sex or gender. California Fair Employment and Housing Act The Fair Employment and Housing Act, adopted in California in 1959, to eliminate discrimination or harassment in employment or in housing accommodations because of a person's disability, medical condition, age or other personal characteristics. Under California law, Gov't Code § 12927(a), landlords, master tenants, realtors and property managers are prohibited from denying a tenant · housing because of the tenant's disability. Through this act a disabled person must be given the equal opportunity to use and enjoy a dwelling -including RGHs. 6 May 12, 2020 Item #3 Page 13 of 227 California Planning and Zoning Law California Planning and Zoning Law, Government Code Section 65583, has long contained provisions prohibiting discrimination in land use decisions based on disability. California requires that each city and county adopt a "housing element" as part of its general plan (Cal. Gov't Code 65580 et seq). The housing element administers the development of housing in the community. It must identify sites for all types of housing, induding transitional housing, supportive housing and emergency shelters. Beginning in 2002, local housing elements were required to review constraints on housing for persons with disabilities and to include programs to remove constraints or to provide reasonable accommodations for housing designed for persons with disabilities (Cal. Gov't Code 65583{a)(4); 65583{c)(3)). This means that communities must revise their zoning so that the only restrictions that may be applied to supportive housing are those that apply to other residences of the same type (single-family homes, duplexes, triplexes, or fourplexes) in the same zoning district; no conditional use permit or other permit is required unless other residences of that type in the same zone also must obtain the same permit. California Caselaw City of Santa Barbara v. Adamson SLHs 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. 27 Cal. 3d 126 (1980). This means that local governments cannot limit the number of unrelated adults who may reside together functioning as a family unit if they do not limit the number of related persons. SLHs that function as a family and do not provide medical treatment or 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. Broadmoor San Clemente Homeowners Assn. v. Nelson This California Court of Appeal decision held that the respondent homeowner's association {HOA) could not adopt restrictive covenants that would limit the use of homes to "private residences" which could exclude group homes for the disabled. Broadmoor San Clemente Homeowners Assn. v. Nelson, 25 Cal. App. 4th 1 (1994). It should be noted that after briefs in this case were filed, the Legislature amended the Government Code (sections 12955 and 12955.6) to make the restriction in the HOA's CC&Rs, as applied to the facts of this case, unlawful. City of Los Angeles v. Department of Health California courts have determined that state law can prevent charter cities (like Carlsbad), and other local agencies from regulating the location of small residential care facilities. In City of Los Angeles v. Dept. of Health, the City of Los Angeles attempted to enact ordinances containing a definition of "single family dwelling" that would have disallowed locating a small licensed recovery facility in an area zoned for single family residences. 63 Cal. App. 3d 473 (1977). The city claimed that the city's status as a charter city would support this definition. The Court of Appeal ruled that licensed RCFs serving six or fewer persons cannot be considered anything but a residential use by local government despite the city's charter status. 7 May 12, 2020 Item #3 Page 14 of 227 PAGE INTENTIONALLY LEFT BLANK 8 May 12, 2020 Item #3 Page 15 of 227 Local & State Permitting Limitations As noted in the previous section, SLHs that provide housing to recovering addicts must be treated like any other single-family home. If a special permit is not required for a family to live in a single- family residence, the city cannot require a special permit for an SLH or any other type of RGH. The same rules, regulations, building and zoning standards that apply to the construction of a single- family home {i.e., parking, setbacks, design standards}, apply to an RGH. Any nuisance laws that apply in a single-family neighborhood {i.e., noise, trash, parking on front-yard} must also be applied equally to an RGH . While state law prevents local agencies from requiring SLHs to be licensed, state or local jurisdictions have the authority to require a license and/or permit for other types of RGHs, depending upon certain factors as listed below. • The types of services being provided in the home {non-medical or medical} • The number of people residing in the home at any one time? Before explaining the certificate types, it is important to differentiate between a license and permit, and the two permit types that can be issued by local jurisdictions. City Business License The issuance of a city business licenses involves a ministerial {non-deliberative} application process and ultimately allows the local jurisdiction to track and ensure that taxes and fees are being collected from people conducting business in the city. Every entity or person doing business or headquartered in the City of Carlsbad is required to have a business license {with limited exceptions}. A business license does not authorize or allow a business to operate, nor does it regulate its operations. Also, a business license cannot be conditioned to impose additional limitations or restrictions beyond those that are codified in existing law. The city may revoke a business license in the·event the business violates state and federal laws. State License The State Department of Social Services, Community Care Licensing Division and the State Department of Health Care Services regulate, monitor and enforce licensed homes. Each agency has compliance, licensing and certification branches responsible for oversight of RGHs that provide treatment and ensuring that the facility provides quality services to all program participants in a safe and healthful environment. These agencies may suspend or revoke an RGH license when the treatment program fails to comply with any state statutory requirement, regulation or standards. Examples of program failure include, but are not limited to, program operation that leads to death, serious physical harm or imminent danger to a client; or if the program, its agents or employees are convicted of fraud or other crimes relating to the operation of the program. The state cannot revoke the license for inappropriate or illegal behavior conducted on the part of the RGH residents. 9 May 12, 2020 Item #3 Page 16 of 227 City Ministerial Permit Ministerial permits are granted upon determination that a proposed project complies with established standards and policies. The most common ministerial permit is the Building Permit. An applicant wanting to build a new home or expand an existing residence must show how the new construction will comply with state and local building, fire and zoning requirements. Once the applicant can show compliance with these objective standards, the local jurisdiction is legally obligated to issue the building permit. The process of reviewing and considering a ministerial permit does not involve a lot of discretion or involve public input or comment. Ministerial permits cannot be conditioned to regulate or address ongoing operations or use. City Discretionary Permit Discretionary permits and processes are required when development may have impacts on the surrounding area due to a proposed use, design feature or project location. Uses that typically require a discretionary permit include gas stations, restaurants/bars, shopping centers, large residential subdivisions and hotels. Discretionary approvals require the exercise of judgment and deliberation by a decision-maker and involve public input and public hearing. Discretionary permits can come in the form of a Conditional Use Permit or Site Development Permit that are considered and approved (in most cases) by the Planning Commission and appealable to the City Council. Table 1 below identifies the licensing and/or permitting requirements for the varying RGHs. Please note that the city's permitting authority for RGHs is greatly limited as explained in the previous section and precludes its ability to require discretionary permits for most RGHs. TABLE 1: Permitting Requirements per Facility Type Facility Type1 Sober Living Home Sober Living Home Residential Care Facilities Residential Care Facilities Professional Care Facilities Number of Occupants1 s Six ;:: Seven s Six ;:: Seven ;::one 1 Refer to "Types of Facilities," pages 5-6 Medical Services Provided?1 No No No No Yes Non-Medical Services Provided?1 No No Yes Yes Yes City Authority Can a Can a State Business Discretionary License License be Permit be Required? Required? Required? No No No No No No Yes Yes No Yes Yes Yes Yes Yes Yes 10 May 12, 2020 Item #3 Page 17 of 227 Attempts to Change the Laws Many states have concerns with RGHs being in residential neighborhoods, near churches and schools. Recently, laws creating statewide voluntary certification or accreditation of RGHs have been introduced in Pennsylvania (2016) and Massachusetts (2014). In St. Paul, Minnesota, an ordinance passed in 2008 requires a 330-foot buffer between RGHs and places restrictions on occupancy and parking. However, due to California state laws and relevant court cases, these restrictions cannot be easily applied in California without potentially violating the rights of those with disabilities including substance abuse and mental illness. In the past 15 years California lawmakers have made multiple attempts to regulate RGHs; these attempts have been unsuccessful to date. Out of 25 bills affecting RGHs introduced since the 1998 legislative session, only three reached the Governor's desk and all of those were vetoed by the Governor. At the federal level, the Recovery Home Certification Act of 2018 (RHCA), sponsored by two House members from California, R-Steve Knight and D-Anna Eshoo, would establish quality standards for RGHs. Introduced in the House (Feb. 27, 2018), the RHCA would require the Center for Substance Abuse Treatment and Recovery to establish model criteria for recovery homes and award grants to states that establish and operate recovery homes based on such model criteria. As of the writing of this report, the House of Representatives referred the bill to the Subcommittee on Crime, Terrorism, Homeland Security, and Investigations where it has remained with no action since March of 2018. At the state level, California Assembly member Tom Daly, (D-Anaheim) submitted a proposal (Assembly Bill 1779) that calls for establishing the first ever minimum operating standards for group homes for recovery that receive public money. It also would deny certification to would-be operators that have previously lost licenses to run addiction treatment centers. As of the writing of this report, the bill remains in committee and is held under submission. California Lawsuits Affecting RGHs The League of Cities white paper (Attachment 2) discusses the approaches of Newport Beach and Costa Mesa, which crafted zoning ordinances that attempt to regulate and limit group home concentration in residential areas (among other regulations on group homes). Some of the affected group homes filed lawsuits against these cities raising viable constitutional claims as well as violations of the FHA and the ADA. City of Newport Beach In Newport Beach the city originally proposed an ordinance that imposed a moratorium on "transitory uses" in residential districts (which included group living arrangements like RGHs and short-term vacation rentals (STVRs)). The city ultimately reduced the focus of the 11 May 12, 2020 Item #3 Page 18 of 227 group living arrangements by removing STVRs. The amended regulations prohibit new group homes in most residential areas, require existing group homes in those areas to submit to an onerous permit process and subjects those seeking to establish group homes in the limited areas in which they are still permitted to operate under the same burdensome permit process. In the case Pacific Shores Properties et. al. v. City of Newport Beach, a group of SLH operators filed suit against the City of Newport Beach claiming that the city's rules were discriminatory and resulted in loss of business and emotional distress.7 A federal district court sided with the City of Newport Beach, but a Ninth Circuit Court of Appeals panel reversed this decision and found that the city's purpose in enacting the ordinance was to exclude group homes from most residential districts and to bring about the closure of existing group homes in those areas.8 Although the City of Newport Beach was able to settle the case, which allowed the city to avoid a trial and retain their group home zoning · regulations, they paid approximately $5.25 million to three separate group home entities per the terms of the settlement; this is in addition to approximately $4 million spent defending the lawsuits. City of Costa Mesa The City of Costa Mesa has endured at least two costly and consuming lawsuits following the adoption of controversial RGH regulatory ordinances and a permitting scheme, similar to those adopted by the City of Newport Beach. In Yellowstone Women's First Step House, Inc., et al. v. City of Costa Mesa, multiple RGHs sued the City of Costa Mesa over such ordinances.9 One requirement of these regulatory ordinances is that RGHs must be located at least 650 feet from one another in residential zones. The plaintiffs, which operated RGHs in the City of Costa Mesa claimed that the newly adopted ordinances discriminated against disabled persons (especially those in recovery).10 A jury sided with the city. However, plaintiffs filed an appeal with the federal Ninth Circuit Court of Appeals in December 2019. Staff is not yet aware of a hearing date for this appeal. Another lawsuit against the City of Costa Mesa was filed by Casa Capri Recovery, Inc., a drug treatment facility that housed up to 28 women between two locations sited next door to one another in the city.11 The city's RGH ordinances required Casa Capri to apply for separate permits for the properties, triggering the 650-foot buffer rule. The city determined that Casa Capri was in violation of the RGH ordinances and denied its request for what Casa Capri called "reasonable accommodations" to operate on the contiguous parcels. Casa Capri sued the city for discrimination-related claims, similar to those articulated by the Yellowstone plaintiffs. On March 11, 2020, a federal district court considered a motion by the city to dismiss the case prior to trial and ruled in favor of the city (upholding the buffer zone). In so ruling, the court adopted the city's reasoning that not all participants in a drug rehabilitation program necessarily qualify as "disabled;" rather, this requires case-by-case 7 Pacific Shores Properties, LLC et al. v. City of Newport Beach, 730 F.3d 1142, 11S7 {9th Cir. 2013). 8 Id. 9 Yellowstone Women's First Step House, Inc., et al. v. City of Costa Mesa, Case No. 19-56410 {2019). 10 Id. 11 Casa Capri Recovery, Inc. v. City of Costa Mesa, Case No. 18-329 (2020). 12 May 12, 2020 Item #3 Page 19 of 227 assessment.12 While this judgment may appear promising for Costa Mesa at first blush, Casa Capri Recovery, Inc. has appealed the judgement to the Ninth Circuit Court of Appeals. Staff is not yet aware of a hearing date for this appeal. There are still other RGH lawsuits pending against the City of Costa Mesa, such as one filed by Socal Recovery, LLC, that is pending in the federal district court.13 In short, RGH litigation against the City of Costa Mesa is still pending in various courts at the district court and circuit court levels. While some decisions appear to favor the City of Costa Mesa and its RGH regulatory ordinances and permitting scheme, this litigation is still ongoing, and it is too premature at this time to draw any conclusions from these cases. 12 A similar ruling was recently reached in a lawsuit filed by Pacific Shores Recovery. It is not yet known whether Pacific Shores Recovery will also appeal its case. 13 Saco/ Recovery, LLC v. City of Costa Mesa et al., 8:18-CV-01304. 13 May 12, 2020 Item #3 Page 20 of 227 PAGE INTENTIONALLY LEFT BLANK 14 May 12, 2020 Item #3 Page 21 of 227 Ad-Hoc Subcommittee Meeting on SLHs On Feb. 19, 2019, the City Council received an informational staff report on SLHs and applicable regulations to allow for discussion of concerns raised by Carlsbad residents and potential actions to address those concerns (Attachment 3). Following the presentation of this staff report, the City Council approved a Minute Motion directing the creation of a subcommittee to discuss SLHs and return with a work plan (Attachment 4). On Jul. 23, 2019, the City Council unanimously adopted Resolution No. 2019-134 authorizing the formation of an ad-hoc subcommittee on SLHs (Attachment 5). The makeup and duties of the subcommittee pursuant to the adopted resolution were as follows: • That the City Council Ad-Hoc Subcommittee be comprised of two City Council members (Council Member Blackburn and Council Member Hamilton). Of note, Council Member Hamilton subsequently resigned her position prior to any meeting of the subcommittee and the City Council elected not to fill her vacancy. • The duties of the subcommittee include working with staff to engage community stakeholders, to listen to and discuss their concerns and recommendations regarding SLHs and to recommend potential state and local regulatory and legislative strategies for the City Council to pursue. On Dec. 2, 2019, staff meet with the ad-hoc subcommittee to discuss the logistics of a community meeting to discuss SLHs including date, time, location and format. Staff also discussed approaches to outreach and educational/outreach information that should be developed and made available at the meeting. On Jan. 29, 2020, City staff held a two-hour community meeting to solicit resident comments on SLHs. To ensure maximum participation, residents who previously expressed an interest on the issue were invited to attend the community meeting. The meeting was also advertised on the city's website and on the Next-door app. Printed flyers about the event were also placed at various high-traffic areas in city facilities. Roughly 21 residents attended, where they shared their concerns and experiences with SLHs located within their neighborhoods. During the meeting, staff also distributed a City of Carlsbad Group Living Arrangements Handout, which is also available on the city's website (Attachment 6). Community members were given until Feb. 12, 2020, to submit final comments, questions and concerns on the topic of sober living homes. Public Concerns & Comments Because there was a lot of similarities and overlap in the questions and concerns that were raised during and after the Jan. 29, 2020 community meeting, the city grouped the comments into four general categories. All the questions and correspondences have been included in Attachment 7, including the meeting minutes for the Jan. 29, 2020 subcomrnittee meeting. • Legal Concerns • Zoning & Building Concerns 15 May 12, 2020 Item #3 Page 22 of 227 • Safety Concerns • Subcommittee and Process Concerns The sections below include staff responses to each of these general categories. Legal Concerns The regulation of RGHs is a legally challenging area, as outlined in this report. Their regulation cannot be approached in the same manner as other property, land use and permitting regulations, such as short-term vacation rentals, since RGHs necessarily involve the constitutionally protected class of disabled persons. Again, the primary statutes that must be the touchstone of any regulatory analysis include the FHA and the ADA. The FHA prohibits zoning practices that discriminates against individuals with disabilities by making housing unavailable or denying housing to those persons. Pacific Shores Properties, LLC v. City of Newport Beach, 730 F.3d 1142, 1157 (9th Cir. 2013). Similarly, the ADA prohibits public entities from discriminating against individuals with disabilities through zoning ordinances and decisions. Bay Area Addiction Research & Treatment, Inc. v. City of Antioch, 179 F.3d 725, 730-32 (9th Cir. 1999). To comply with the FHA and ADA, a zoning law cannot treat disabled persons less favorably than non-disabled persons. In other words, a city cannot impose a zoning law that discriminates against persons recovering from alcoholism or drug addiction. Courts have found that if a disabled individual challenges such a law for "facial discrimination" (a law that by its very terms treats two different classes of persons differently), a city cannot defeat the challenge simply by implementing an approval procedure for group homes to "rescue" the ordinance (i.e., a use permit or reasonable accommodation program). Even a facially neutral zoning law may nevertheless be invalid in an "as applied" challenge under circumstances. If a plaintiff can establish a direct or circumstantial evidence that a discriminatory reason more likely than not motivated the city in adoption of such a permitting/operating conditions ordinance and the city's actions adversely affected the plaintiff in some way, the city could lose such a challenge. Therefore, even a seemingly innocent and neutral permitting scheme could be construed as discriminatory as applied to RGHs, since they would seemingly be the only types of homes targeted by and subject to such an ordinance. For more information on the laws governing the various types of RGHs, please refer to the "Group Living Arrangements" handout from the city's Jan . 29, 2020 town hall meeting on group homes (Attachment 6). Attachment 6 explains the general limits on local authority over unlicensed group living arrangements where unrelated individuals live as a household (which includes SLHs). Attachment 6 also explains that state law requires localities to consider such licensed group living arrangements as a residential use of property and as a family for purposes of any law or zoning ordinance that relates to residential uses of property. State law does not view SLHs as a home-based business even though profit may be incurred by the owner/operator. Due to the constraints of state and federal law, cities cannot create or interpret existing business licensing regulations to apply to RGHs strictly on this basis. If, 16 May 12, 2020 Item #3 Page 23 of 227 however, an RGH is engaged in business activity outside of the housing of unrelated, disabled persons for profit, the city will investigate the matter and enforce accordingly. Additional in-depth legal analysis of SLHs can be found in the League of California Cities white paper referenced earlier in this report (Attachment 2). Attachment 2 explains various cities' attempts at regulating sober living homes and the pitfalls of such regulations. NOTE : Despite these legal limitations on the regulation of RGHs, the city will pursue allowable enforcement action against RGHs as it would with any other code enforcement or police incident. For example, if there is conduct ongoing at an RGH that rises to the level of a public nuisance, the city notices and eventually cite the property owner and any occupants with an administrative or criminal citation, depending on the circumstances. There may be other applicable violations of the Carlsbad Municipal Code that could be enforced in a similar manner. The community feedback included many questions and suggestions that were legal in nature. For example, residents requested that RGHs have location restrictions, hoping that the city's zoning code could be modified to address density concerns and limit the number of RGHs within a certain geographic area . The federal Department of Justice as well as the Department of Housing and Urban Development have both taken the position that density (or over- concentration) restrictions are inconsistent with the Fair Housing Act.14 Notwithstanding, this is the zoning and regulatory approach that was enacted by the cities of Newport Beach and Costa Mesa, both the subjects of ongoing litigation (see section entitled "Attempts to Change the Law"). The city continues to monitor the progress of these lawsuits and will advise the City Council of any changed legal recommendations once the lawsuits conclude. Residents also requested that measures such as background checks and surprise inspections be performed on RGHs. The city has no local law or policy on point to allow for this, and these measures would likely violate state and federal laws. And, because the city must treat RGH occupants like any other occupant in a single-family home, any such requirements should be uniformly imposed on £1[ residential residents. Building & Zoning Concerns RGHs in Carlsbad that operate as a single housekeeping unit must comply with the same local zoning requirements as other dwelling or structures in a particular zone, including residential zones. Carlsbad cannot require a special city license or permit for RG Hs that is different from any other residences. In general, the City of Carlsbad requires building permits for all new construction, additions, and remodels. The city reviews plans to ensure compliance with building, housing and zoning codes before building permits are issued. State laws prohibit the city from imposing different parking requirements on licensed small group homes than those that apply to any 14 https://www.iustice. qov/crt(ioint-statement-department-iustice-and-department-housinq-and-urban-development. 17 May 12, 2020 Item #3 Page 24 of 227 other residence. State laws also prohibit the city from imposing a restriction on the number of cars allowed on residential property. Because the city does not have an ordinance regulating smoking on private residential properties, state laws prohibit the city from limiting or controlling smoking activities specifically for RGHs. Development standards and fire sprinkler requirements that apply generally to all residential development also apply to RGHs. The state Uniform Housing Code (UHC) specifies the occupancy limits that apply to residential uses, and the city is prohibited from imposing more restrictive occupancy limits for RGHs than those established in the UHC. Safety Questions The city must have reliable, objective evidence that the resident of an RGH poses a direct threat before taking any enforcement action. There are no mandated training, certification or background checks for RGH operators for the discrimination-related reasons previously explained. The police department responds to all calls for service, both arising from RGHs or from the surrounding neighborhood. In 2019, the city's police department responded to 38 calls involving known RGHs, which represents roughly .03 percent of the total number of nuisance calls that were responded. If any person observes a situation that endangers the safety of people or property, they are encouraged to call the police department's 24/7 non-emergency dispatch telephone number (760.931.2197), or 911 as appropriate. The police department will respond to investigate the concern. Also, an people are encouraged to report suspicious or illegal behavior. The police department embraces and encourages the "see something, say something program." Ad Hoc Committee Questions Many concerns were raised about the delay in holding the Jan. 29, 2020 public meeting, the city acknowledges and apologizes for this delay, due in large part to the sponsoring City Council sub- committee member's resignation and uncertainty whether a replacement councilmember would be appointed. There were also other city priorities that took scheduling precedence over the meeting. Residents also questioned why they were not able to be members of the ad-hoc subcommittee. As previously stated, on Jul. 23, 2019, the City Council unanimously adopted Resolution No. 2019-134 authorizing the formation of a two-Council Member ad-hoc subcommittee tasked with working with staff to engage community stakeholders, to listen to and discuss their concerns and recommendations regarding SLHs and to recommend potential regulatory and legislative strategies for the City Council to pursue. City staff respectfully submit that the subcommittee meeting held on Jan. 29, 2020, this report and the May 12, 2020 City Council meeting to present this report satisfy the City Council's direction. 18 May 12, 2020 Item #3 Page 25 of 227 Conclusion On April 17, 2020, staff met with the ad-hoc subcommittee to review the report and discuss its findings and conclusions. Following the discussion, the ad-hoc subcommittee found that given the restrictions in current state and federal law, as well as the current lack of legal clarity in the substantially undecided California case law concerning group homes and specifically sober living homes, the city is limited in what it can legally do to address many of the concerns raised by the community. However, there are a few things the city could do to help bring attention to the issue: City's Legislative Program Pursuant to Carlsbad's 2018 Legislative Platform, the city will use the platform and legislative advocacy efforts to: Protect the City's interests and local legislative authority and will take appropriate action when required to safeguard and/or advance the City's interests. This includes preserving and protecting the City's charter powers, duties and prerogatives to enact local legislation concerning local affairs. The City Council will soon be considering updates to the city's Legislative Platform. A new policy, which specifically addresses RGHs, is proposed under the "Planning & Zoning" section of the Legislative Platform and is currently drafted as follows: (g) Support legislation that enables local agencies to effectively address issues concerning public safety and proper management of group homes. With this direction, staff can work with agencies like the League of California Cities and our lobbyists to encourage state and federal representatives to develop new legislation that addresses the adverse impacts associated with RGHs in residential neighborhoods. For example, the city could encourage the DOJ and HUD to issue a new joint clarification under the ADA and FHA to allow local governments to enact reasonable guidelines for the health, safety and welfare of RGHs and their surrounding neighborhoods and communities. A DOJ/HUD clarification in 2016 provided little effective guidance, leading only to increased confusion.15 Changes Resulting from Lawsuits The city will continue to monitor current court cases and relevant lawsuits and report back for City Council consideration any decisions that result in definitive legal precedent and would feasibly allow the city to regulate RGHs, such as the Newport Beach and Costa Mesa cases. Continued Enforcement The city will continue to respond to complaints and calls from residents near RGHs and enforce those rules and regulations that apply to all single-family residences (i.e., unpermitted construction, public nuisances, trash). 15 https://www.governing.com/gov-institute/voices/col-regu/ation-sober-living-homes-recovery-residences-need.html. 19 May 12, 2020 Item #3 Page 26 of 227 Statement on Group Homes, Local Land Use, and the Fair Housing Act, issued on August 18, 1999. The first section of the Joint Statement, Questions 1-6, describes generally the Act's requirements as they pertain to land use and zoning. The second and third sections, Questions 7- 25, discuss more specifically how the Act applies to land use and zoning laws affecting housing for persons with disabilities, including guidance on regulating group homes and the requirement to provide reasonable accommodations. The fourth section, Questions 26=-27, addresses HUD's and DOJ' s enforcement of the Act in the land use and zoning context. This Joint Statement focuses on the Fair Housing Act, not on other federal civil rights laws that prohibit state and local governments from adopting or implementing land use and zoning practices that discriminate based on a protected characteristic, such as Title II of the Americans with Disabilities Act ("ADA"),3 Section 504 of the Rehabilitation Act of 1973 ("Section 504"),4 and Title VI of the Civil Rights Act of 1964.5 In addition, the Joint Statement does not address a state or local government's duty to affirmatively further fair housing, even . though state and local governments that receive HUD assistance are subject to this duty. For additional information provided by DOJ and HUD regarding these issues, see the list of resources provided in the answer to Question 27. Questions and Answers on the Fair Housing Act and State and Local Land Use Laws and Zoning 1. How does the Fair Housing Act apply to state and local land use and zoning? The Fair Housing Act prohibits a broad range of housing practices that discriminate against individuals on the basis ofrace, color, religion, sex, disability, familial status, or national origin ( commonly refen-ed to as protected characteristics). As established by the Supremacy Clause of the U.S. Constitution;· federal-laws such as the·Fair Housing Act talce precedence over conflicting state ~nd local laws. The Fair Housing Act thus prohibits state and locai land use and zoning laws, policies, and practices that discriminate based on a characteristic protected under the Act. Prohibited practices as defined in the Act include malcing unavailable or denying housing because of a protected characteristic. Housing includes not only buildings intended for occupancy as residences, but also vacant land that may be developed into residences. is drawn almost verbatim "from the definition of 'handicap' contained in the Fair Housing Amendments Act of 1988"). This document uses the term "disability," which is more generally accepted. 3 42 u.s.c. §12132; 4 29 U.S.C. § 794. 5 42 U.S.C. § 2000d. 2 May 12, 2020 Item #3 Page 29 of 227 2. What types of land use and zoning laws or practices violate the Fair Housing Act? Examples of state and local land use and zoning laws or practices that may violate the Act include: • Prohibiting or restricting the development of housing based on the belief that the residents will be members of a particular protected class, such as race, disability, or familial status, by, for example, placing a moratorium on the development of multifamily housing because of concerns that the residents will ip_clude members of a particular protected class. • Imposing restrictions or additional conditions on group housing for persons with disabilities that are not imposed on families or other groups of unrelated individuals, by, for example, requiring an occupancy permit for persons with disabilities to live in a single-family home while not requiring a permit for other residents of single-family homes. • Imposing restrictions on housing because of alleged public safety concerns that are based on stereotypes about the resjdents' or anticipated residents' membership in a protected class, by, for example, requiring a proposed development to provide additional security measures based on a belief that pers.ons of a particular protected class are more likely to engage in criminal activity. • Enforcing oth_erwise neutral laws or policies differently because of the residents' protected characteristics, by, for example, citing individuals who are members of a particular protected class for violating code requirements for property upkeep while not citing other residents for similar violations. • Refusing to provide reasonable accommodations to land use or zoning policies when such accommodations-may be necessary to allow persons with disabilities to have an equal opportunity to use and enjoy the housing~-by Jar example:· --- denying a request to modify a setback requirement so an accessible sidewalk or ramp can be provided for one or more persons with mobility disabilities. 3. When does a land use or zoning practice constitute intentional discrimination in violation of the Fair Housing Act? Intentional discrimination is also referred to as disparate treatment, meaning ~at ~he _ action treats a person or group of persons differently because of race, color, religion, sex, disability, familial status, or national origin. A land use or zoning practice may be intentionally discriminatory even if there is no personal bias or animus on the part of individual government officials. For example, municipal zoning practices or decisions that reflect acquiescence to community bias may be intentionally discriminat01y, even if the officials themselves do not personally share such bias. (See Q&A 5.) Intentional discrimination does not require that the 3 May 12, 2020 Item #3 Page 30 of 227 decision-makers were hostile toward members of a particular protected class. Decisions motivated by a purported desire to benefit a particular group can also violate the Act if they result in differential treatment because of a protected characteristic. A land use or zoning practice may be disc1iminat01y on its face. For example, a law that requires persons with disabilities to request permits to live in single-family zones while not requiring persons without disabilities to request such permits violates the Act because it treats persons with disabilities differently based on their disability. Even a law that is seemingly neutral will still violate the Act if enacted with discriminatory intent. In that instance, the analysis of whether there is intentional discrilllination will be based on a variety of factors, all of which need not be satisfied. These factors _include, but are not limited to: (1) the "impact" of the municipal practice, such as whether an ordinance disproportionately impacts minority residents compared to white residents or whether the practice perpetuates segregation in a neighborhood or particular geographic area; (2) the "historical background" of the action, such as whether there is a history of segregation or discriminatory conduct by the municipality; (3) the "specific sequence of events," such as whether the city adopted an ordinance or took action only after significant, racially-motivated community opposition to a housing development or changed course after learning that a development would include non-white residents; (4) departures from the "no1mal procedural sequence," such as whether a municipality deviated from normal application or zoning requirements; (5) "substantive departures," such as whether the factors usually considered important s~ggest that a state or local government should have reached a different result; and ( 6) the "legislative or administrative hist01y," such as any statements by members of the state or local decision-making body.6 4. Can state and local land use and zoning laws or practices violate the Fair Housing Act if the state or locality did not intend to discriminate against persons on a prohibited basis? Yes. Even absent a discriminatory intent, state or local governments may be liable under the Act for any land use or zoning law orpractice that has an unjustified discriminatmy effect because of a protected characte1istic. In 2015, the United States Supreme Court affirmed this interpretation of the Act in Texas Department of Housing and Community Affairs v. Inclusive Communities Project, Inc. 7 The Court stated that "[t]hese unlawful practices include zoning laws and other housing restrictions that function unfairly to exclude minorities from certain neighborhoods without any sufficient justification."8 6 Vill. of Arlington Heights v. Metro. Haus. Dev. Corp., 429 U.S. 252, 265-68 (1977). 7 _U.S._, 135 S. Ct. 2507 (2015). 8Jd. at2521.:..22: 4 May 12, 2020 Item #3 Page 31 of 227 A land use or zoning practice results in a discriminatory effect if it caused or predictably will cause a disparate impact on a group of persons or if it creates, increases, reinforces, or perpetuates segregated housing patterns because of a protected characteristic. A state or local government still has the opportunity to show that the practice is necessary to achieve one or more of its substantial, legitimate, nondiscriminatory interests. These interests must be supported by evidence and may not be hypothetical or speculative. If these interests could not be served by another practice that has a less discriminatory effect, then the practice does not violate the Act. The standard for evaJuating housing-related practices with a discriminatory effect are set forth in HUD's Discriminatory Effects Rule, 24 C.F.R § 100.500. Examples of land use practices that violate the Fair Housing Act under a discriminatory effects standard include minimum floor space or lot size requirements that increase the size and cost of housing if such an increase has the effect of excluding persons from a locality or neighborhood because of their membership in a protected class, without a legally sufficient justification. _Similarly, prohibiting low-income or multifamily housing may have a discriminat01y effect on persons because of their membership in a protected class and, if so, would violate the Act absent a legally sufficient justification. 5. · Does a state or local government violate the Fair Housing Act if it considers the fears or prejudices of community members when enacting or applying its zoning or land use laws respecting housing? When enacting or applying zoning or land use laws, state and local governments may not . act because of the fears, prejudices, stereotypes, or unsubstantiated assumptions that community members may have about current or prospective residents because of the residents' protected characteristics. Doing so violates the Act, even if the officials themselves do not personally share such-bias~ ·For-example, a city may not deny-zoning·approval fora low~income·housing · development that meets all zoning and land use requirements because the development may house residents of a particular protected class or classes whose presence, the community fears, will increase crime and lower property values in the surrounding neighborhood. Similarly, a local government may riot block a group home or deny a requested reasonable accommodation in · response to neighbors' stereotypical fears or prejudices about persons with disabilities or a particular type of disability. Of course, a city council or zoning board is not bound by everything that is said by every person who speaks at a public hearing. It is the record as a whole that will be determinative. 5 May 12, 2020 Item #3 Page 32 of 227 6. Can state and local governments violate the Fair Housing Act if they adopt or implement restrictions against children? Yes. State and local governments may not impose restrictions on where families with children may reside unless the restrictions are consistent with the "housing for older persons" exemption of t:Iie Act. The most common types of housing for older persons that may qualify for this exemption are: (1) housing intended for, and solely occupied by, persons 62 years of age or older; and (2) housing in which 80% of the occupied units have at least one person whois 55 years of age or older that publishes and adheres to policies and procedures demonstrating the . intent to house older persons. These types of housing must meet all requirements of the exemption, including complying with HUD regulations applicable to such housing, such as verification procedures regarding the age of the occupants. A state or local government that zones an area to exclude families with children under 18 years of age must continually ensure that housing iii that zone meets all requirements of the exemption. If all of the housing in that zone does not continue to meet all such requirements, that state or local government violates the Act. Questions and Answers on the Fair Housing Act and Local Land Use and Zoning Regulation of Group Homes 7. · Who qualifies as a person with a dis~bility under the Fair Housing Act? The Fair Housing Act defines a person with a disability to include (1) individuals with a physical or mental impairment that substantially limits one or more major life activities; (2) individuals who are regarded as having such an impairment; and (3) individuals with a record of such an impairment. The term "physical or mental impa:iiment" includes, but is not limited to, diseases and conditions such as orthopedic, visual, speech and hearing impairments, cerebral palsy, autism, epilepsy, muscular dystrophy, multiple sclerosis, cancer, heart disease, diabetes, HIV infection, developmental disabilities, mental illness, drug addiction ( other than addiction caused by cunent, illegal use of a controlled substance), and alcoholism. The term "major life activity" includes activities such as seeing, hearing, walking breathing, performing manual tasks, ~aring for one's self, learning, speaking, and working. This list of major life activities is not exhaustive. Being regarded as having a disability means that the individual is treated as if he or she has a disability even though the individual may not have an impaiiment or may not have an impairment that substantially limits one or more major life activities. For example, if a landlord 6 May 12, 2020 Item #3 Page 33 of 227 refuses to rent to a person because the landlord believes the prospective tenant has a disability, then the landlord violates the Act's prohibition on discrimination on the basis of disability, even · if the prospective tenant does not actually have a physical or mental impairment that substantially limits one or more major life activities. Having a record of a disability means the individual has a history of, or has been misclassified as having~ a mental or physical impairment that substantially limits one or more major life activities. 8. What is a group home within the meaning of the Fair Housing Act? The term "group home" does not have a specific legal meaning; land use and zoning officials and the courts, however, have referred to some residences.for persons with disabilities as group homes. The Fair Housing Act prohibits discrimination on the basis of disability, and persons with disabilities have the same Fair-Housing Act protections whether or not their housing is considered a group home. A household where two or more persons with disabilities choose to live together, as a matter of association, may not be subjected to requirements or conditions that are not imposed on households consisting ofpersons without disabilities. In this Statement, the term "group home" refers to a dwelling that is or will be occupied by unrelated persons with disabilities. Sometimes group homes serve individuals with a particular type of disability, and sometimes they serve individuals with a variety of disabilities. Some group homes provide residents with in-home support services of varying types, while others do not. The provision of support services is not required for a group home to be protected under the Fair Housing Act. Group homes, as discussed in this Statement, may be opened by individuals or by organizations, both for-profit and not-for-profit.. Sometimes it is the group -home operator or devel:nper, rathertlrantb_--e-fadividuals who live 01· are exp·ected to livein·fue -- home, who interacts with a state or local government agency about developing or operating the group home, and sometimes there is no interaction among residents or operators and state or local governments. In this Statement, the term "group home" includes homes occupied by person_s in recovery from alcohol or substance abuse, who are persons with disabilities under the Act. Although a group home for persons in recovery may commonly be called a "sober home," the term does not have a specific legal meaning, and the Act treats persons with disabilities who reside in such homes no_differently than persons with disabilities who reside in other types of group homes. Like other group homes, homes for persons in recovery are sometimes operated by individuals or organizations, both for-profit and not-for-profit, and support services or supervision are sometimes, but not always, provided. The Act does not require a person who resides in a home for persons in recovery to have participated in or be currently participating in a 7 May 12, 2020 Item #3 Page 34 of 227 substance abuse treatment program to be considered a person with a disability. The fact that a resident of a group home may currently be illegally using a controlled substance does not deprive the other residents of the protection of the Fair Housing Act. 9. In what ways does the Fair Housing Act apply to group homes? The Fair Housing Act prohibits discrimination on the basis of disability, and persons with disabilities have the same Fair Housing Act protections whether or not their housing is considered a group home. State and loc.al governments may not disc1iminate against persons with disabilities who live in group homes. Persons with disabilities who live in or seek to live in group homes are sometimes subjected to unlawful discrimination in a number of ways, including those discussed in the preceding Section of this Joint Statement. Discrimination may be intentional; for example, a locality might pass an ordinance prohibiting group homes in single- family neighborhoods or prohibiting group homes for persons with certain disabilities. These · ordinances are facially discriminatory, in violation of the Act. In addition, as discussed more fully in Q&A 10 below, a state or local government may violate the Act by refusing to grant a reasonable accommodation to its zoning or land· use ordinance when the requested accommodation may be necessary for persons with disabilities to have an equal opportunity to use and enjoy a dwelling. For example, if a locality refuses to waive an ordinance that limits the number of unrelated persons wlio inay live in a single-family home where such a waiver may be necessaiy for persons with disabilities to have an equal opportunity to use and enjoy a dwelling, the locality violates the Act unless the locality can prove that the waiver would impose an undue financial and administrative burden on the local government or fundamentally alter the essential nature of the locality's zoning scheme. Furthermore, a state or local government may violate the Act by enacting an ordinance that has an unjustified discriminatory effect on persons with disabilities who seek to live in a group home in the community. Unlawful actions concerning group homes are discussed in more detail throughout this Statement. 10. What is a reasonable accommodation under the Fair Housing Act? The Fair Housing Act makes it unlawful to refuse to make "reasonable accommodations" to rules, policies, practices, or services, when such accommodations.may be necessary to afford persons with disabilities an equal opportunity to .use and enjoy a dwellip.g. A "reasonable accommodation" is a change, exception, or adjustment to a rule, policy, practice, or service that may be necessary for a person with a disability to have an equal opportunity to use and enjoy a dwelling, including public and common use spaces. Since rules, policies, practices, and services may have a different effect on persons with disabilities than on other persons, treating persons with disabilities exactly the saine as others may sometimes deny them an equal opp01iunity to use and enjoy a dwelling. 8 May 12, 2020 Item #3 Page 35 of 227 Even if a zoning ordinance imposes on group homes the same restrictions that it imposes on housing for other groups of unrelated persons, a local government may be required, in individual cases and when requested to do so, to grant a reaso_nable accommodation to a group home for persons with disabilities. What constitutes a reasonable accommodation is a case-by- case determination based on an individualized assessment. This topic is discussed in detail in Q&As 20--c-25 and in the HUD/DOJ Joint Statement on Reasonable Accommodations under the _ Fair Housing Act. 11. Does the Fair Housing Act protect persons with disabilities who pose a "direct threat" to others? The Act does not allow for the exclusion of individuals based upori fear, speculation, or stereotype about a particular disability or persons with disabilities in general. Nevertheless, the Act does not protect an individual whose tenancy would constitute a "direct threat" to the health or safety of other individuals or whose tenancy would result in substantial physical damage to the property of others unless the threat or risk to property can be eliminated or significantly reduced by reasonable accommodation. A determination that an individual poses a.direct threat must rely on an individualized assessment that is based on reliable objective evidence (for example, current conduct or a recent history of overt acts). The assessment must consider:· (1) the nature, duration, and severity of the risk of injury; (2) the probability that injury will actually occur; and (3) whether there are any reasonable accommodations that will eliminate or significantly reduce the direct-threat. See Q&A 10 for a general discussion of reasonable accommodations. Consequently, in evaluatin$ an individual's recent history of overt acts, a state. or local government must take into account whether the individual has received intervening treatment or medication that has eliminated or significantly reduced the direct threat (in other words, significant risk of substantial harm). fu such a situation; the state or local government ma,y request that the individual show how the circumstances have changed so that he or she no longer poses a direct threat. Any such request must be reasonable and limited to information necessary to assess whether circumstances have changed. Additionally, in such a situation; a · state or local government may obtain satisfactory and reasonable assurances that the individual will not pose a direct threat dllill?-g the tenancy. The state or local government must have reliable, objective evidence that the tenancy of a person with a disability poses a direct threat before excluding him or her from housing on that basis, and, in making that assessment, the state or local government may not ignore evidence showing that the individual's tenancy would no longer pose a direct threat. Moreover, the fact that one individual may pose a direct threat does not mean that another individual with the same disability or other individuals in a group home may be denied housing. 9 May 12, 2020 Item #3 Page 36 of 227 12. Can a state or local government enact laws that specifically limit group homes for . individuals with specific types of disabilities? No. Just as it would be illegal to enact a law for the purpose of excluding or limiting group horn.es for individuals with disabilities, it is illegal under the Act for local land use and zoning laws to exclude or limit group horn.es for individuals with specific types of disabilities. For example, a governm.ent may not limit group horn.es for persons with mental illness to certain neighborhoods. The fact that the state or local governm.ent complies with the Act with regard to group horn.es for persons with some types of disabilities will not justify discrimination against individuals with another type of disability, such as mental illness. 13. Can a state or local government limit the number of individuals who reside in a group home in a residential neighborhood? Neutral laws that govern groups of unrelated persons who live together do not violate the Act so long as (1) those laws do not intentionally discriminate against persons on the basis of disability (or other protected class), (2) those laws do not have an unjustified discriminatory effect on the basis of disability ( or other protected class), and (3) state and local governments make reasonable accommodations when such-accommodations may be necessary for a person with a disability to have an equal opportunity to use and enjoy a dwelling. Local zoning and land use laws that treat groups of unrelated persons with disabilities less favorably than similar groups of unrelated perkons without disabilities violate the Fair Housing Act. For example, suppose a city's zoning ordinance defines a "family" to include up to a certain number of unrelated persons living together as a household unit, and gives such a group of unrelated persons the right to live in any zoning dist.J.ictwithout special permission from the city_.· If that ordinance also prohibits a group home having the same number of persons with disabilities in a certain district or requires it to seek a use permit, the ordinance would violate the Fair Housing Act. The ordinance violates the Act because it treats persons with disabilities less favorably than families and unrelated persons without disabilities. A local governm.ent may generally restrict the ability of groups of unrelated persons to live together without violating the Act as long as the restrictions are imposed on all such groups, including a group defined as a family. Thus, if the definition of a family includes up to a certain . number of unrelated individuals, an ordinance would not, on its face, violate the Act if a group home for persons with disabilities with more than the pennitted number for a family were not allowed to locate in a single-family-zoned neighborhood because any group of unrelated people without disabilities of that number would also be disallowed. A facially neutral ordinance, however, still may violate the Act if it is intentionally discriminatory (that is, enacted with discriminatory intent or applied in a discriminatory manner), or if it has an unjustified May 12, 2020 Item #3 Page 37 of 227 · discriminatory effect on persons with disabilities. For example, an ordinance that limits the number of unrelated persons who may constitute a family may· violate the Act if it is enacted for the purpose of limiting the number of persons with disabilities'who may live in a group home, or if it has the unjustified discriminatory effect of excluding or limiting group homes in the jmisdiction. Governments may also violate the Act if they enforce such restrictions more strictly against group homes than against groups of the same number of unrelated. p·ersons without · disabilities who live together in housing. In addition, as discussed in detail below, because the Act prohibits the denial of reasonable accommodations to rules and policies for persons with disabilities, a group home that provides housing for a number of persons with disabilities that exceeds the number allowed under the family definition has the right to seek an exception or waiver. If the criteria for a reasonable accommodation are met, the permit must be given in that instance, but the ordinance would not be invalid. 9 14. How does the Supreme Court's ruling in Olmstead apply to the Fair Housing Act? In Olmstead v: L. C., 10 the Supreme Court ruled that the Americans with Disabilities Act (ADA) prohibits the unjustified segregation of persons with disabilities in institutional settings where necessary services could reasonably be provided iii integrated, community-based settings. An integrated setting is one that enables individuais with disabilities to live and interact with individuals without disabilities to the fullest extent possible. By contrast, a segregated ,c;etting includes congregate settings populated exclusively or primarily by individuals with disabilities. Although Olmstead did not interpret the Fair Housing Act, the objectives of the Fair Housing Act and the ADA, as interpreted in Olmstead, are consistent. The Fair Housing Act ensures that persons with disabilities have an equal opportunity to choose the housing where they wish to live. The ADA and Olmstead ensure that persons with disabilities also have the option to live and receive services in the most integrated setting appropriate to their needs. The integration mandate of the ADA andOlmstead can be implemented without impairing the rights protected by the Fair Housing Act. for example, state and local governments that provide or fund housing, health care, or support services must comply with the integration mandate by providing these programs, services, and activities in the most integrated setting appropriate to the needs of individuals with disabilities. State and local governments may comply with this requirement by adopting standards for the housing, health care, or support services they provide or fund that are reasonable, individualized, and specifically tailored to enable individuals with disabilities to live and interact with individuals without disabilities to the fullest extent possible. Local · governments should be aware that ordinances and policies that impose additional restrictions on housing or residential services for persons with disabilities that are not imposed 0-9-housing or 9 Laws that limit the number of occupants per unit do not violate the Act as long as they are reasonable, are applied to all occupants, and do not operate to discriminate on the basis of disability, familial status, or other characteristics firotected by the Act. o 527 U.S. 581 (1999). 11 May 12, 2020 Item #3 Page 38 of 227 residential services for persons without disabilities are likely to violate the Act. In addition, a locality would violate the Act and the integration mandate of the ADA and Olmstead if it required group homes to be concentrated in certain areas of the jurisdiction by, for example, restricting them from being located in other areas. 15. Can a state or local government impose spacing requirements on the location of group homes for persons with disabilities? A "spacing" or "dispersal" requirement generally refers to a requirement that a group home for persons with disabilities must not be located within a specific distance of another group home. Sometimes a spacing requirement is designed so it applies only to group homes and sometimes a spacing requirement is framed more generally and applies to group homes and other types of uses such as boarding houses, student housing, or even certain types of businesses. In a community where a certain number of unrelated persons are permitted by local ordinance to reside together in a home, it would violate the Act for the local ordinance to impose a spacing requirement on group homes that do not exceed that permitted number of residents because the • I spacing requirement would be a condition imposed on persons with disabilities that is not imposed on persons without disabilities. In situations where a group home seeks a reasonable accommodation to exceed the number of unrelated persons who are permitted by local ordinance to reside together, the Fair Housing Act does not prevent state or local governments from taking into account concerns about the over-concentration of group homes that are located in close proximity to each other. Sometimes compliance with the integration mandate of the ADA and Olmstead requires government agencies responsible for licensing or providing housing for persons with disabilities to consider the location of other group homes when determining what housing will best meet the needs of the persons being served. Some courts, however, have found that spacing requirements violate the Fair Housing Act because they deny persons with disabilities an equal opp01iunity to choose where they will live. Because an across-the-board spacing requirement may discriminate against persons with disabilities in some residential areas, any standards that state or local governments adopt should evaluate the location of group homes for persons with disabilities on a case-by-case basis. Where a jurisdiction has imposed a spacing requirement on the location of group homes for persons with disabilities, courts may analyze whether the requirement violates the Act under ; an intent, effects, or reasonable accommodation theory. In cases alleging intentional discrimination, courts look to a number of factors, including the effect of the requirement on housing for persons with disabilities; the jurisdiction's intent behind the spacing requirement; the existence, size, and location of group homes in a given area; and whether there are methods other than a spacing requirement for accomplishing the jurisdiction's stated purpose. A spacing requirement enacted with discriminat01y intent, such as for the purpose of appeasing neighbors' stereotypical fears about living near persons with disabilities, violates the Act. Further, a neutral 12 May 12, 2020 Item #3 Page 39 of 227 spacing requirement that applies to all housing for groups of unrelated persons may have an unjustified discriminatory effect on persons with disabilities, thus violating the Act. Jurisdictions must also consider, in compliance with the Act, requests for reasonable accommodations to any spacing requirements. . 16. Can a state or local government impose health and safety regulations on group home operators? Operators of group homes for persons with disabilities are subject to applicable state and local regulations addressing health and safety concerns unless those regulations are inconsistent with the Fair Housing Act or other federal law. Licensing arid other regulatory requirements that may apply to some group homes must also be consistent with the Fair Housing Act. Such regulations must not be based on stereotypes about persons with disabilities or specific types of disabilities. State or local zoning and land use ordinances may not, consistent with the Fair Housing Act, require individuals with disabilities to receive medical, support, or other services or supervision that they do not need or want as a condition for allowing a group home to operate. State and local governments' enforcement of neutral requirenients regarding safety, licensing, . and other regulatory requirements governing group homes do not violate the Fair Housing Act so long as the ordinances are enforced in a neutral manner, they do not specifically target group homes, and they do not haye an unjustified discriminatory effect on persons with disabilities who wish to reside in group homes. Governments must also consider requests for reasonable accommodations to licensing and regulatory requirements and procedures, and grant them where they may be necessary to afford individuals with disabilities an equal opportunity to use and enjoy a dwelling, as required by the Act. 17. Can a state or_ local government address suspected criminal act.ivity or fraud and abuse at group homes for persons with disabilities? . . . . The Fair Housing Act does not prevent state and local governments from taking nondiscriminatory action in response to criminal activity, insurance fraud, Medicaid fraud, neglect or abuse of residents, or other illegal conduct occurring at group homes, including reporting complaints to the appropriate state or federal regulatory agency. States and localities must ensure that actions to enforce criminal or other laws are not taken to target group homes and are applied equally, regardless of whether the residents of housing are persons with disabilities. For example, persons with disabilities residing in group homes are entitled to the same constitutional protections against unreasonable search and seizure as those without disabilities. 13 May 12, 2020 Item #3 Page 40 of 227 18. Does the Fair Housing Act permit a state or local government to implement strategies to integrate group homes for persons with disabilities in particular neighborhoods where they are not currently located? Yes. Some strategies a state or local government could use to further the integration of group housing for persons with disabilities, consistent with the Act, include af:fumative marketing or offe1ing incentives. For example,jurisdictions may engage in affirmative marketing or offer variances to providers of housing for persons with disabilities to locate future homes in neighborhoods where group homes for persons with disabilities are not cunently located. But jurisdictions may not offer incentives for a disc1iminatory purpose or that have an unjustified discriminatory effect because of a protected characteristic. 19. Can a local government consider the fears or prejudices of neighbors in deciding whether;a group home can be located in a particular neighborhood? In the same way a local government would violate the law ifit rejected low-income housing in a community because of neighbors' fears that such housing would be occupied by racial minorities (see Q&A 5), a local government violates the law if it blocks a group home or denies a reasonable accommodation request because of neighbors' stereotypical fears or prejudices about persons with disabilities. This is so even if the individual government decision- makers themselves do not have biases against persons with disabilities. Not all community opposition to requests by group homes is necessarily discriminatory. For example, when a group hoine seeks a reasonable accommodation to operate in an area and the area has limited on-street parking to serve existing residents, it is not a violation of the Fair Housing Act for neighbors and local gov,ernment officials to raise concerns that the group home may create more demand for on-street parking than would a typical family and to ask the provider to respond. A valid unaddressed concern about inadequate parking facilities could justify denying the requested accommodation, if a similar dwelling that is not a group home or similarly situated use would ordina1ily be denied a permit because of such parking concerns. If, however, the group home shows that the home will not create a need for more parking spaces than other dwellings or similarly-situated uses located nearby, or submits a plan to provide any needed off-street parking, then parking concerns would not support a decision to deny the home a permit. 14 May 12, 2020 Item #3 Page 41 of 227 Questions and Answers on the Fair Housing Act and Reasonable Accommodation Requests to Local ~oning and Land Use Laws 20. When does a state or local government violate the Fair Housing Act by failing to grant a request for a reasonable accommodation? A state or local government violates the Fair Housing Act by failing to grant a reasonable accommodation request if (1) the persons requesting the accommodation or, in the case of a group home, persons residing in or expected to reside in the group home are persons with a disability under the Act; (2) the state or local government knows or should reasonably be expected to know of their disabilities; (3) an accommodation in the land use or zoning ordinance or other rules, policies, practices, or services of the state or locality was requested by or on behalf of persons with disabilities; ( 4) the requested accommodation may be necessary to afford one or more persons with a disability an equal opportunity to use and enjoy the dwelling; (5) the state or local government refused to grant, failed to act on, or unreasonably delayed the accommodation request; and ( 6) the state or local government cannot show that granting the accommodation would impose an undue financial and adminisfyative burden on the local government or that it ·would fundamentally alter the local government's zoning scheme. A requested acconimodation may be necessary if there is an identifiable relationship between the requested accommodation and the group home residents' disability. Further information is provided in Q&A 10 above and the ffiJD/DOJ Joint Statement on Reasonable Accommodations under the Fair Housing Act. 21. Can a local government deny a group home's request for a reasonable accommodation without violating the Fair Housing Act? Yes, a local government may deny a group home's request for a reasonable accommodation if the request was not made by·or on behalf of persons with disabilities (by, for example, the group home developer or operator) or if there is no disability-related need for the requested accommodation because there is no relationship between_ the -requested accommodation and the disabilities of the residents or proposed residents. In addition, a group home's request for a reasonable accommodation may be denied by a local government if providing the accommodation is not reasonable-in other words, if it would impose an undue financial and administrative burden on the local government or it would fundamentally alter the local government's zoning scheme. The determination of undue financial and administrative burden must be decided on a case-by-case basis involving various factors, such as the nature and extent of the administrative burden and the cost of the requested accommodation to the local government, the financial resources of the local government, and the benefits that the accommodation woul,.d provide to the persons with disabilities who will reside in the group. home. --. 15 May 12, 2020 Item #3 Page 42 of 227 When a local government refuses an accommodation request because it would pose an undue financial and administrative burden, the local government should discuss with the requester whether there is an alternative accommodation that would effectively address the disability-related needs of the group home's residents without imposing an undue financial and · administrative burden. This discussion is called an "interactive process." If an alternative accommodation would effectively meet the disability-related needs of the residents of the group home and is reasonable (that is, it would not impose an undue fmancial and administrative burden or fundamentally alter the local government's zoning scheme), the local government must grant the alternative accommodation. An interactive process in which the group home and the local government discuss the disability-related need for the requested accommodation and possible alternative accommodations is both required under the Act and helpful to all concerned, because.it often results in an effective accommodation for the group home that does not pose an undue financial and administrative burden or fundamental alteration for the local government 22. What is the procedure for requesting a reasonable accommodation? The reasonable accommodation must actually be requested by or on behalf of the individuals with disabilities who reside or are expected to reside in the group home. When the request is made, it is not necessary for the specific individuals who would be expected to live in the group home to be identified. The Act does not require that a request be made in a particular manner or at a particular time. The gi'oup home does not need to mention the Fair Housing Act or use the words "reasonable accommodation" when making a reasonable accommodation request. The gi·oup home must, however, make the request in a manner that a reasonable person would understand to be a disability-related request for an exception, change, or adjustment to a · rule, policy, practice, or service. When making a request for an exception, change, or adjustment toa local land use-or zoningregulation orpolicy;-the group home should explain whattype·of· -- accommodation is being requested and, if the need for the accommodation is not readily apparent or known by the local government, explain the relationship between the accommodation and the disabilities of the gi·oup home residents. A request for a reasonable accommodation.can be made either orally or in writing. · It is often helpful for both the group home and the local government if the reasonable accommodation request is made in writing. This will help prevent misunderstandings regarding what is being requested or whether or when the request was made. Where a local land use or zo~g code contains specific procedures for seeking a departure from the general rule, courts have decided that these procedures should ordinaiily be followed. If no procedure is specified, or if the procedure is umeasonably burdensome or intrusive or involves significant delays, a request for a reasonable accommodation may, 16 May 12, 2020 Item #3 Page 43 of 227 nevertheless, be made in some other way, and a local government is obligated to grant it if the requested accommodation meets the criteria discussed in Q&A 20, above. Whether or not the local land use or zoning code contains a specific procedure for requesting a reasonabl~ accommodation or other exception to a zoning regulation, if local government officials have previously made statements or otherwise indicated that an application for a reasonable accommodation would not receive fair consideration, or if the procedure itself is discriminatory, then persons with disabilities living in a group home, and/6r its operator, have the right to file a Fair Housing Act complaint in court to request an order for a reasonable accommodation to the local zoning regulations. 23. Does the Fair Housing Act require local governments to adopt formal reasonable accommodation procedures? The Act does not require a local governmentto adopt formal procedures for processing requests for reasonable accommodations to local land use or zoning codes. DOJ and ffiJD nevertheless strongly encourage local governments to adopt formal procedures for identifying and processing reasonable accommodation requests and provide training for government officials and staff as to application of the procedures. Procedures for reviewing and acting on reasonable accommodation requests will help state and local governments meet their obligations under the Act to respond to reasonable accommodation requests and implement reasonable accommodations promptly. Local governments are also encouraged to ensure that the procedures to request a reasonable accommodation or other exception to local zoning regulations are well known throughout the community by, for example, posting them at a readily accessible location and in a digital format accessible to persons with disabilities on the government's website. If a jurisdiction chooses to adopt formal procedures for reasonable accommodation requests, the procedures cannot be onerous or require information beyond what is necessary to show that the individual 4as a disability and that the requested accommodation is related to that disability. For example, in most cases, an individual's medicai record or detailed information about the nature of a person's disability is not necessary for this inquiry. In addition, officials and staff must be aware that any procedures for requesting a reasonable accommodation must also be flexible to accommodate the needs of the individual making a request; including accepting and considering requests that are not made through the official procedure. The adoption of a reasonable accommodation procedure, however, will not cure a zoning ordinance that treats group homes differently than other residential housing with the same number of unrelated persons. 17 May 12, 2020 Item #3 Page 44 of 227 24. What if a local governme.nt fails to act promptly on a reasonable accommodation request? A local government has an obligation to provide prompt responses to reasonable accommodation requests, whether or not a fmmal reasonable accommodation procedure exists. A local government's undue delay in responding to a reasonable accommodation request may be deemed a failure to provide a reasonable accommodation. 25. Can a local government enforce its zoning code against a group home that violates the zoning code but has not requested a reasonable accommodation? The Fair Housing Act does not prohibit a local government from enforcing its zoning code against a group home that has violated the local zoning code, as long as that code is not discriminato1y or enforced in a discriminatory manner. If, however, the group home requests a reasonable accommodation when faced with enforcement by the locality, the locality still must consider the reasonable accommodation request. A request for a reasonable accommodation may be made.at any time, so at that point, the local government must consider whether there is a relationship between the disabilities of the residents of the group home and the need for the requested accommodation. If so, the locality must grant the requested accommodation unless doing so would pose a fundamental alteration to the local government's zoning scheme or an undue financial and administrative burden to the local government. Questions and Answers on Fair Housing Act Enforcement of Complaints Involving Land Use and Zoning 26. How are Fair Housing Act complaints involving state and local land use laws and · practices handled by HUD ·and· DOJ?-· · ·· ·_ -· -· ---· The Act gives HUD the power to receive, investigate, and conciliate complaints of discrimination, including complaints that a state or local government· has discriminated in exercising its land use and zoning powers. HUD may not issue a charge of discrimination pertaining to "the legality of any State or local zoning or other land use law or ordinance." Rather, after investigating, HUD refers matters it believes may be meritorious to DOJ, which, in · its discretion, may decide to bring suit against the state or locality within 18 months after the practice at issue occurred or te1minated. DOJ may also bring suit by exercising its authority to initiate iitigation alleging a patt<::m or practice of discrimination or a denial of rights to a group of persons which raises an issue of general public importance. IfHUD determines that there is no reasonable cause to believe that there may be a violation, it will close an investigation without referring the matter to DOJ. But a HUD or DOJ 18 May 12, 2020 Item #3 Page 45 of 227 decision not to proceed with a land use or zoning matter does not foreclose private plaintiffs. from pursuing a claim. Litigation can be an expensive, time-consuming, and uncertain process for all parties. HUD and DOJ encourage parties to land use disputes to explore reasonable alternatives to litigation, including alternative dispute resolution procedures, like mediation or conciliation of the HUD compiaint. HUD attempts to conciliate all complaints under the Act that it receives, including those involving land use or zoning laws. In addition, it is DOJ's policy to offer prospective state or local governments the opportunity to engage in pre-suit settlement .negotiations, except in the most unusual circumstances .. 27. How can I find more information? For more information on reasonable accommodations and reasonable modifications under the Fair Housing Act: • HUD/DOJ Joint Statement on Reasonable Accommodations under the Fair Housing Act, available at https://www.justice.gov/crt/fair-housing-policy-statements-and-guidance-0 or http://www.hud.gov/ offices/fheo/libra:ry/huddoj statement.pdf. • HUD/DOJ Joint Statement on Reasonable Modifications under the Fair Housing Act, available at https://www.justice.gov/crt/fair-housing-policy-statements-and-guidance-0 · or http://www.hud.gov/offices/fheo/disabilities/reasonable modifications mar08.pdf. For more information on state and local governments' obligations under Section 504: • · HUD website afliflp:7 /portaLhuclgov!hudporfal/HUD?src~/program offices/ · fair housing . equal opp/disabilities/sect504 . . For more information on state and local governments' obligations under the ADA and Olmstead: • U.S. Department of Justice website, www.ADA.gov, or call the ADA inf01mation line at (800) 514-0301 (voice) or (800) 514-0383 (TTY). e Statement of the Department of Justice on Enforcement of the Integration Mandate of Title II of the Americans with Disabilities Act and Olmstead v. L. C., available at http://www.ada.gov./olmstead/q&a olmstead.htm. • Statement of the Department of Housing and Urban Development on the Role of Housing in Accomplishing the Goals of Olmstead, available at http://portal.hud.gov/hudp01ial/ documents/huddoc?id=O lmsteadGuidnc0604 l 3. odf. 19 May 12, 2020 Item #3 Page 46 of 227 For more info1mation on the requirement to affumatively further fair housing: • Affirmatively Furthering Fair Housing, 80 Fed. Reg. 42,272 (July 16, 2015) (to be codified at 24 C.F.R. pts. 5, 91, 92, 570, 574, 576, and 903). • U.S. Department of Housing and Urban Development, Version 1, Affumatively Furtheripg Fair Housing Rule Guidebook (2015), available at https:/ /www .hudexchange.info/resources/doduments/ AFFH-Rule-Guidebook.pdf. • . Office of Fair Housing and Equal Opportunity, U.S. Department of Housing and Urban Development, Vol. 1, Fair Housing Planning Guide (1996), available at http://www.hud.gov/ offices/fheo/images/fhpg. pdf. For more information on nuisance and crime-free ordinances: • Office of General Counsel Guidance on Application of Fair Housing Act Standards to the Enforcement of Local Nuisance and Crime-Free Housing Ordinances Against Victims of Domestic Violence, Other Crime Victims, and Others Who Require Police or Emergency Services (Sept. 13, 2016), available at http://portal.hud.gov/hudportal/documents/ huddoc?id=FinalNuisanceOrdGdnce.pdf. 20 May 12, 2020 Item #3 Page 47 of 227 ATTACHMENT 2 League of CA Cities-SLH Challenges of Implementing ADA & FHA May 12, 2020 Item #3 Page 48 of 227 Notes: ---------------------------------------- League of California Cities® 2016 Spring Conference Marriott, Newport Beach May 12, 2020 Item #3 Page 50 of 227 REGULATING SOBER LIVING HOMES AND THE CHALLENGE OF IMPLEMENTING THE FAIR HOUSING ACT AND THE AMERICANS WITH DISABILITIES ACT I. Introduction T. Peter Pierce Richards I Watson I Gershon In the last 10 to 15 years, a unique type of group home has proliferated throughout California -the sober living home operated and managed not by the residents who live in the home, but by corporations and other business entities that house dozens of people in a single residence. These large homes often generate secondary effects burdening public services more so than other single-family uses, including smaller sober living homes, with fewer people. Quite commonly, large sober living homes are clustered in one residential area of a city such that smaller residential uses in the area experience disproportionately the impacts of the larger homes. , As used here, the term "large sober living home" refers to an unlicensed group home with seven or more residents. Other than occupancy restrictions applicable to all residential uses, there is no limit .. under federal Taw--or Califorrua law on the number of persons who may live in a large sober living home. Nothing in federal law categorically precludes a city from applying zoning laws to a sober living home, but those laws cannot discriminate against persons recovering from alcoholism or drug addiction. California law requires cities to treat a licensed /'alcoholism or drug abuse recovery or treatment facility'' with six or fewer residents the same as it .treats any single-family residence. (Health and Safety Code section 11834.23.)1 An 1 The term "sober living home" as used here means an unlicensed group home which provides the same services as an "alcoholism or drug abuse recovery or treatment facility." The latter term is broadly defined under California law as any premises that provides "24.:.hour nonmedical May 12, 2020 Item #3 Page 52 of 227 unlicensed "alcoholism or drug abuse recovery or treatment facility" is illegal under California law. (Health and Safety Code section 11834.30.) A city may therefore regulate an unlicensed sober living home with six or fewer residents without running afoul of California licensing laws, but federal law still constrains that regulation. Sober. livinghomes with six or fewer residents are less likely to generate negative ·secondary impacts, and less likely to create an institutionalized atmosphere, than their larger counterparts. This paper explores some of the options for regulating large sober · living homes, and how cities may exercise those options consistently with the federal Fair Housing Act (as amended in 1988 by the Fair Housing Amendments Act) (FHA) and the Americans with Disabilities Act (ADA).2 Also discussed below are the obstacles cities have faced in court, and practical tips for avoiding those obstacles. II. · The Federal Government's Position Regarding Local Regulation of Group Homes The U.S. Department of Justice and the U.S. Department of Housing and Urban Development in August 2015 updated their joint statement on ____ __ _ _____ ~' Grnup.Hom£s,. Laca1Land_Us_e,. and the_..Eair..Ho_using..A.ct~~(11D QJlHIID Joint Statement.") A copy of the DOJ/HUD Joint Statement is attached to this paper. It includes a number of questions frequently posed by local officials, and provides answers to those questions. Those answers must be approached with extreme caution. Local officials walk a fine line in attempting to implement a policy that seemingly meets with federal residential services to adults" recovering from alcoholism or drug addiction. (Health and Safety Code section 11834.02, subd. (a).) Those services, which are customarily provided in sober living homes, include group sessions, individual sessions, educational sessions, and treatment planning. (9 Cal. Code. Reg. § 10501.) 2 Persons recovering from alcoholism or drug addiction are disabled under both the FHA and the ADA. Pacific Shores Properties, LLC v. City of Newport Beach, 730 F.3d 1142, 1156-57 (9th Cir. 2013). -- May 12, 2020 Item #3 Page 53 of 227 approval under one part of the DOJ/HUD Joint Statement, but comes very close to running afoul of federal law as articulated in another part.· The federal government recognizes that cities, under certain' circumstances, may treat sober living homes differently than they treat other single-family uses:3 "A local government that believes a particular area within its boundaries has its 'fair share' of group homes could offer incentives to providers to locate future homes in other neighborhoods. However, some state and local governments have· tried to address this concern by enacting laws requiring that group homes be at a certain minimum distance from one another. 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 adversely affect individuals with disabilities and would be inconsistent with the objective of integrating persons with disabilities into the community. Especially in the licensing and regulatory process, it is appropriate to be concerned about the setting for a group home. A consideration of over-concentration could be cons~dered in this. context. This objective does not, however, justify requiring separations which have the effect of foreclosing group homes from locating in entire neighborhoods." (DOJ/HUD Joint Statement, p. 4.) 3 Even where a city. does not violate federal law, a city could still violate California law by treating a licensed sober living home differently than other single-family uses. Again, California Health and Safety Code section 11834.23 requires cities to treat a licensed "alcoholism or drug abuse recovery or treatment facility" with six or fewer residents the same as it treats a single- family residence. · May 12, 2020 Item #3 Page 54 of 227 As the case law discussed below shows, courts look skeptically upon a city's self-serving P!Onouncement that a new zoning regulation aims to integrate residents· of sober living homes into the community. This paper aims to assist local officials in navigating the pitfalls of federal law as interpreted and applied by the courts. 4 . III. Challenges in Implementing the FHA and ADA. The most common type of FHA or ADA challenge to a zoning law asserts discriminatory ti:eatment (also known as disparate treatment). A local zoning law that professes to protect re?idents of sober living homes commonly faces a "facial". challenge or an "as-applied" challenge under ·a discriminatory treatment theory. 5 No citation to authority is needed for the well-established principle that a zoning law discriminates on its face when by its very terms disabled persons are treated less favorably than non-disabled persons. In those circumstances, courts invalidate the law and it can no longer be applied at all. If a zoning law is facially neutral (i.e., it does not discriminate on its . . face), it may nevertheless be invalid as applied in particular circumstanc~s. Often, these "as-applied" challenges result in invalidation of a specific d . . I d -1~-ti b 1.... . • 1 . . ff . ec1s1on..on a_ an. .. use_appllca . Dn, __ ut b.Le_zomng. aw r_emams.ro.e . .e.ct on_ ......... ··-· thetheory that it may be validly applied in other circumstances. In the FHA and ADA contexts, however, a facially neutral zoning law that has been applied in a discriminatqry manner may lead not only to 4 Although this paper does not expressly address the restrictions on local regulation-imposed by · California's Fair Employment and Housing Act (FEHA), courts generally employ the same legal anaiysis in evaluating local laws under PEHA as they do in evaluating local laws under the FHA and ADA. See generally Budnickv. Town of Carefree, 518 F.3d 1109, 1114 (9th Cir. 2008); Auburn Woods I Homeowners Assn. v. Fair Employment and Hous. Comm 'n, 121 Cal.App.4th 1578, 1591 (2004). 5 This paper does not examine the other two theories under which an FHA or ADA violation may be established: (I) Disparate impact theory (recently reaffirmed in Texas Dept. of Housing and Community Affairs v. Jnclusive Communities Project, Inc., 135 S. Ct. 2507 (2015); and (2) Failure to provide a reasonable acCOilllI!Odation with respect to land use restrictions. May 12, 2020 Item #3 Page 55 of 227 invalidation of the specific decision applying the law, but also to invalidation of the law ~tself. Although we often think of Ii as-applied" challenges to a facially neutral law as a challenge only to a particular application of that law, it is a mistake to assume in FHA and ADA cases that a facially neutral law will be upheld simply because discrimination is not apparent on its face. This paper first examines FHA and ADA challenges to local zoning laws that are alleged to discriminate on their face. Next, the paper addresses cases in which local zoning laws neutral on their face are nevertheless invalid altogether, or invalid in particular circumstances. A. Challenges to Local Zoning Laws That Discriminate On Their Face In Community House, Inc. v. City of Boise, 490 F.3d 1041 (9th Cir. 2007) (Community House), the Ninth Circuit explained the standard for establishing a prima fade case of facial discrimination under the FHA .. "[A] plaintiff makes out a prima fade case of intentional discrimination under the [Fair Housing Act] merely by showing that a protected group has been subjected to explicitly differential -i.e., discriminatory - treatment." Id. at 1050 (internal citation and quotation omitted). A governmental agency that has adopted facially discriminatory zoning rules I/must show either: '(1) that the restriction benefits the protected class or (2) that it responds to the legitimate safety concerns raised by the individuals affected, rather than based on stereotypes:" Id. at 105,0 (internal citation omitted). A non-profit corporation in Community House had formerly managed a city-owned homeless shelter. The corporation sued the City under the FHA after a religious organization to which the City had later leased the shelter instituted a male-only policy. The complaint asserted that the male- only policy facially discriminated on the basis of gender and familial status. The Ninth Circuit held that plaintiff could likely establish a prima fade case of discrimination under the FHA. As justifications for the male~only May 12, 2020 Item #3 Page 56 of 227 . policy, the City asserted general safety concerns and the need to house. homeless men so that a second facility could be made available for women and children. Community House, 490 F.3d at 1051. The court held that the City might later in the litigation prove that safety concerns warranted a male,-only policy, but tha.t the plaintiff had raised questions that were · serious enough to warrant the issuance of an injunction. Id . at 1052. Community House was followed by the District Court in Nevada Fair Housing Center, Inc. v. Clark Cd ., 2007 U.S.Dist.Lexis 12800 (D.Nev. 2007) (Nevada Fair Housing). In that case, the County's group home ordinance prohibited group homes for the disabled .that housed more than six · persons. Id. at *18. The ordinance also required a special use permit for homes housing six or fewer persons to locate within 1500 feet of a similar home. Id. at *18. A non-profit corporation advocating for housing rights filed suit under the FHA, asserting that the ordinance facially discriminated against the .disabled. Id. at *1-*2. The District court held that the County's ordinance was facially discriminatory and failed the test adopted by the Ninth Circuit in Community _Hquse. The County argued that the spacing requirement was necessary to coll}ply with state law and to prevent the clustering of group homes in certain areas. Id. at *26. The court refrained froin addressing whether the relevant state law violated the FHA; noting instead that the County's Ordinance "did not track the language of [the statute].") Id. at *27. The court also found that the County failed to provide any evidence that its Ordinance promoted deinstitutionalization. Ibid. More recently, the Central District of California rejected a facial . challenge to an ordinance of the City of Costa Mesa regulating sober living homes. Solid Landings Behavioral Health, Inc. v. City of Costa Mesa, (unpublished Order, dis1nissing lawsuit, filed April 21, 2015). Costa Mesa requires residential uses in its R-1 residential zone to function as "single housekeeping units." The primary hallmarks of a."single housekeeping unit" in Costa Mesa are (1) that household members share responsibilities and expenses; (2) that members have "some control" over the membership May 12, 2020 Item #3 Page 57 of 227 of the household; and (3) that the residential activities of the household are conducted on a nonprofit basis. Costa Mesa defines a fl sober living home" as a group of persons in recovery from alcohol and/or drug addiction who are considered disabled under federal or state law. Sober living homes do not include residences operating as a single-housekeeping unit. A sober living home,, which is by definition not a single housekeeping unit,, may operate in the R-1 residential zone only with a special use permit or a reasonable accommodation. The findings in Costa Mesa's ordinance establishing these requirements include concerns that its neighborhoods not become institutionalized with sober living homes such that residents of those home~ fail to integrate into the community. Plaintiffs challenged Costa Mesa's ordinance on its face. They alleged that the ordinance was born of discriminatory animus by City officials; that the ordinance's sp~cial use permit and reasonable accommodation processes are discriminatory; and that the City subjected them. to embarrassment and ridicule by imposing a condition on any special use permit that a sober living home not be located within 650 feet of another sober living home or a state licensed alcoholism or drug abuse recovery or treatment facility. The court found that plaintiffs had not stated a facial challenge under either the FHA or the ADA. The court found that Costa Mesa's ordinance treats sober living homes more favorably than other residential uses that also did not qualify as single housekeeping units. The ordinance provides the special use permit option for sober living homes to locate.in the R-1 residential zone; that option is not available to other residential uses with only non-disabled residents. The court also concluded that Costa Mesa's 650-foot separation rule for sober living homes is not facially unreasonable. To the extent plaintiffs challenged the special use permit and reasonable accommodation May 12, 2020 Item #3 Page 58 of 227 processes, their claims constituted unripe as-applied challenges because they had not yet sought either approval. The court also rejected equal protection and due process claims. Notably, the Court did not expressly rule upon or discuss the allegations that Costa Mesa had adopted the ordinance for a discriminatory purpose. The court entered judgment in favor of Costa Mesa. Plaintiffs appealed from the judgment. The Ninth Circuit has enjoined enforcement of Costa Mesa's ordinance pending further court order. An appellate mediation conference is scheduled forMay 17, 2016. The above cases bring to mind the rule that local government may not defeat a facial challenge simply by implementing an approval procedure for group homes (e.g., a use permit or reasonable accommodation program). In Bay Area Addiction Research and Treatment, Inc. v. City of Antioch, 179 F.3d 725 (9th Cir. 1999), operators of a methadone clinic announced their plans to open in the City, which enacted a _. - moratorium against substance abuse clinics in response to the proposal. Id. at 727-28. The basis for the moratorium was the City's finding that the ----elimc-weuld-attract-tlrug dealers-and-lead-te-an-inerease-in-er-ime-in-the---------: ------- surrounding area. Id at 729. The clinic filed suit under the ADA and the Rehabilitation act, and sought a preliminary injunction, The District Court denied the request for an injunction, but the Ninth Circuit reversed and remanded the matter. Because the clinic had alleged that the moratorium was facially discriminatory, the District Court had erred by requiring the . . clinic to show that the City had failed to provide a reasonable accommodation. Id. at 733-734. Facially discriminatory ordinances are not subject to a reasonable accommodation analysis, and the availability of a reasonable accommodation procedure cannot rescue a facially discriminatory ordinance. A separate strand of facial challenge involves a facially valid regulation where the government uses a proxy (i.e. service dogs) as a substitute for identifying the protected class (handicapped). In Children's Alliance v. City of Bellevue, 950 F.Supp. 1491 (W.D.Wash. 1997) (Children's May 12, 2020 Item #3 Page 59 of 227 Alliance), an brdinance required group homes to be separated by 1000 feet and limited to six or fewer residents. The defining difference between a Fl family" and a group, home under the ordinance was the addition of staff operating at the latter. Id. at 1493-94. The District Court held "that this use of 'staff' was a proxy for a classification based on the presence of individuals under eighteen and the handicapped as both groups require supervision and assistance." Id. at 1496. Thus, the ordinance was facially . discriminatory. The dispersal did not sufficiently benefit the handicapped by preventing the development of institutional neighborhoods because the City then had no group homes. The court also remarked that any alleged benefit would be closely scrutinized and found sufficient only if the benefits of the regulation clearly outweighed its burdens. Id. at 1499 (internal citations omitted). The District Court also held that the City's repeated statements that it would be willing to reasonably accommodate the plaintiff's group home was insufficient to rebut a finding of facial discrimination. Id. at 1500. Proxy cases are common. See, e.g., Mc Wright v. Alexander, 982 F.2d 222,228 (7th Cir. 1992) (gray hair may be a proxy for age); Erie County ·· Retirees Ass'n v. County of Erie, 220 F.3d 193,211 (3rd Cir. 2000) ("Medicare status is a direct proxy f~r age."); Cmty. Servs., Inc. v. Wind Gap Mun. Auth., 421 F.3d 170, 179 (3d Cir. 2005) (service dogs or wheelchairs are a proxy for handicapped status). Zoning laws that discriminate on their face against disabled persons face substantial obstacles in court. Before a city adopts an ordinance which on its face treats disabled persons differently than non-disabled persons, it should consider the following tips: ■ To survive a facial challenge under federal and California anti- discrimination laws, government must make a concrete evidentiary showing that the plaintiffs themselves pose a legitimate threat to public safety. It is not sufficient to rely upon stereotypes of unidentified people who share the same disability as plaintiffs. May 12, 2020 Item #3 Page 60 of 227 ■ A generalized con~ern about retaining neighborhood character is likely insufficient to make the requited showing of a legitimate threat to public safety. ■ Any regulation which treats a protected class differently than others,. no matter how seemingly innocuous, or even well-intentioned, is ill- advised. For example, persons in recovery are being harassed by residents who did not know that a sober living home was opening in the community. In response, the municipality adopts a neighbor notification law with the intent of diffusing the situation and assisting the residents in the sober living home. That law is invalid because· it treats sober living homes for persons who are legally disabled differently than it treats other residential. uses. ■ Rigid distancing requirements face a high risk of being found by a court to be facially invalid, but an unsettled question is whether distancing requirements may be considered as one factor among· others when clustering of housing serving the disabled-has occurred in one area. B. Challenges to Local Zoning Laws That are Facially Neutral . ' . A plaintiff may establish a prima facie case of discriminatory application of a facially neutral ordinance in one of two ways. First, a plaintiff may establish a prima facie case of discriminatory treatment by simply producing '"director circumstantial evidence demonstrating that a discriminatory reason more likely than not motivated' the defendant and that the defendant's actions adversely affected the plaintiff in some way." Pacific Shores Properties, LLC v. City of Newport Beach, 730 F.3d 1142, 1158 (9th Cir. 2013) (Pacific Shores), citing McGinest v. GTE Serv. Corp., 360 F.3d 1103, 1122 (9th Cir. 2004) (McGinest). This standard is at times referred to as the "direct evidence test." May 12, 2020 Item #3 Page 61 of 227 Second, and alternatively, a plaintiff may satisfy the elements of the test set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1981) (McDonnell Douglas). Pacific Shores, 730 F.3d at 1158. Plaintiff establishes a prima fade case of dis.crim.inatory treatment under McDonnell Douglas by showing: (1) plaintiff is a member of a protected group, (2) plaintiff sought use and enjoyment of a particular dwelling ( or type ~f dwelling, or housing in a particular '.?One) and was qualified to use and enjoy such dwelling; (3) plaintiff was denied the opportunity to use and enjoy such dwelling ( or zoning) despite being qualified; and (4) defendant permitted use and enjoyment of such a dwelling ( or zoning) by a similarly situated party during a period relatively near the time plaintiff was being denied use and . · enjoyment. See Gamble v. City of Escondido, 104 F.3d ~00, 305 (9th Cir. 1997). (Gamble). "[I]t is not particularly significant whether [a plaintiff] relies on the McDonnell Douglas [factors] or, whether he relies· on direct or circumstantial evidence of discriminatory intent" to establish a prima fade case of · disc~iminatory treatment. McGinest, 360 F.3d at 1123. "[T]he McDonnell Douglas test is inapplicable where the plaintiff presents d]!ect evidence of discrimination." Trans World Airlines, Inc. v. Thurston, 469. U.S. 111, 121, 105 S. Ct. 613, 83 L. Ed. 2d 523 (1985). If a plaintiff establishes a pr:ima fade case of discriminatory treatment, "the burden shifts to the defendant to articulate a legitimate, nondiscriminatory reason for its action." Gamble, 104 F.3d at 305 .. If the defendant articulates a legitimate, nondiscriminatory reason for its action, "the burden shifts to [plaintiff] to present evidence that [the] reason [asserted by defendant] is pretextuaL. .. " Gamble, 104 F.3d at 306. Whether furnishing direct evidence that discriminatory intent motivated the challenged action, or proceeding instead under the McDonnell Douglas . framework, a plaintiff must respond to defendant's articulated reason by producing "some evidence suggesting that the challenged action 'was due in part or whole to discriminatory intent.' [Citation.]" Budnick v. Town of Carefree, 518 F.3d 1109, 1114 (9th Cir. 2008) (Budnick). May 12, 2020 Item #3 Page 62 of 227 A survey of cases reveals that zoning laws are more vulnerable to successful challenge under the "direct evidence test" than _under the McDonnell Douglas factors. This appears to arise from differences between the two approaches with respect to the reasons behind the challenged law. The "direct evidence test" focuses more on reasons or motivations, whereas the McDonnell Douglas test focuses more on the mechanics of the challenged decision. The McDonnell Douglas test requires a showing that ' . the government treated the plaintiff les_s favorably than a similarly situated third party. The II direct evidence teE>t" does not look to comparator evidence. Thus, the II direct evidence test" is more likely to lead to . complete invalidation of a facially neutral law on the ground that it was adopted for discriminatory reasons, and ~e McDonnell Douglas test is more likely to lead to invalidation of only a particular c1pplication of a facially neutral law. This paper addresses only the "direct evidence test." 1. Establishing a prim.a facie case under the direct evidence test. a. Case Law The somewhat malleable factors comprising the direct evidence test flow from the seminal decision in Village of Arlington Heights, et al. v. Metropolitan Housing Dev. Corp., 429 U.S. 252 (1977) (Arlington Heights). "Determining whether invidious discriminatory purpose was a motivating factor demands a sensitive inquiry into such circumstantial and direct · evidence of intent as may be available." Id. at 266: Thus, the Supreme Court articulated several nonexclusive criteria which courts should evaluate in deciding whether the challenged action was motivated by discriminatory intent. "The historical background of the decision is one evidentiary source" to examine. Id. at 267. "The specific sequence of events leading up to the challenged decision also may shed some light on the decisionmaker' s purposes." Id. at 267. "Departures from the normal procedural sequence also mightafford evidence that improper purposes ate playing a role. Substantive departures too may be relevant[.]" Id. at 267. "The legislative or administrative history may be highly relevant, May 12, 2020 Item #3 Page 63 of 227 especially where there are contemporary statements by members of the · decisionmaking body, minutes of its meetings, or reports." Id. at 268. Arlington Heights involved race-based discrimination, but its list of criteria has guided courts in evaluating claims brought by disabled persons, as set forth below. Courts have applied the Arlington Heights criteria in various· . formulations. Some courts have invalidated regulations based on fewer than all of the criteria. In many cases, plaintiffs rely only upon one or two of .the criteria, with mixed results. There is no bright-line rule articulating the number of Arlington Heights factors that must be satisfied to establish a prima fade case of discriminatory intent under the direct evidence test. Nor is there a rule establishing which particular factors must be satisfied. Courts enjoy considerable discretion in employing and weighing the factors in each case. (i) Recent Ninth Circuit Cases In Pacific Shores, the Ninth Circuit applied the Arlington Heights factors to conclude that plaintiffs had marshaled strong evidence · warran~g a trial under the direct evidence test. Newport Beach's ordinance regulating group homes did not single out sober living homes on its face; "the Ordinance facially imposed restrictions on some other - types of group living arrangements as well." 730 F.3d at 1147. The Court nevertheless examined the circumstances surrounding the preparation, adoption and implementation of the ordinance and concluded that "the City's purpose in enacting the Ordinance was to exclude group homes from most residential districts and to bring about the closure of existing group homes. in those areas." Ibid. In reaching this conclusion, the Court relied upon the following factors: ■ Some of the restrictions on sober living homes originally had applied to properties rented to vacationing tourists, who would generate the same secondary effects as sober living home May 12, 2020 Item #3 Page 64 of 227 residents, but after objections from those in the vacation rental industry, the City lifted the restrictions on the vacation properties. 730 F.3d at 1147. ■ Concerned citizens in the community used derogatory terms when referring to residents of sober living homes, and the Court stated that the City appeared to adopt its ordinance in response to those comments. 730 F.3d at 1149. ■ Before the ordinance was adopted, the City Council formed a committee comprised of two council members, a. planning commissioner, and private citizens to review laws governing residential uses and to recommend solutions to preserve the residential character of the neighborhood. 730 F.3d at 1149. ■ Before the ordinance was adopted, City staff created a task force to locate sober living homes, conduct surveillance of them,. and enforce the existing zoning code against them. 730 F.3c:l at 1162, 1164. · ■ Before the ordinance was adopted, the City Council created an ad hoc committee of a minority of its members and met privately off the record with legal counsel to prepare the ordinance. The City Council had never before created an ad hoc committee of its - members to assist in preparing an ordinance. 730 F.3d at 1151, 1164. ■ Before the ordinance was adopted, City staff disu-ibuted surveys to residents, many of whom lived in neighborhoods opposed to sober living homes, to inquire of their views of group uses. The City had never before done this with respect to proposed legislation. 730 F.3d at 1150, 1164. · ■ One City Council member inquired on the record about whether sober living homes are effective in treating alcoholism or drug · addiction. 730 F.3d at 1149. May 12, 2020 Item #3 Page 65 of 227 ■ Another City Council member said the City's goal in preparing the ordinance was to ensure that no new sober living homes opened in the community; and that through strict enforcement of the ordinance, the existing over-concentration of those homes would subside. The Council member also characterized the ordinance as the most aggressive challenge in California to the over- concentration of sober living homes, and invited residents to judge the Council by the actual results generated by the ordinance. 730 F.3d at 1152. ■ One planning commissioner said there was no need to be concerned about issues of discrimination, and that those issues are better saved for the courtroom. 730 F.3d at 1151. ■ After the ordinance was adopted and the 90-day period to seek a use permit to continue operating had lapsed, the City sent abatement notices to sober living homes, but not to other non- conforming uses (until much later). 730 F.3d 1154f 1162. ■ Public hearings on use permit applications submitted by sober living home operators were attended by residents who repeated the same derogatory comments they had made about sober living residents before the ordinru:i-ce was adopted. 730 F.3d at 1154 .. The Ninth Circuit concluded that all of these factors together clearly constituted an inference that the ordinance was enacted with the discriminatory purpose of harming sober living homesf and that plaintiffs were entitled to proceed to trial on their discriminatory treatment claim. 730 F.3d at 1164. The City could not rebut the inference of discriminatory intent just because the ordinance discr~inated against non-disabled · groups also. 730 F.3d at 1159-60. Plaintiffs also produced evidence that the ordinance adversely affected them. The use permit and reasonable accommodation applications submitted by plaintiffs were denied except for one reasonable accommodation application that was granted on the condition that no more May 12, 2020 Item #3 Page 66 of 227 than 12 residents live in each of two houses. 730 F.3d ~t 1154. The ordinance led to the closure of one-third of the sober living homes in the city and restricted new ones to multi-family zones; the city gran_ted few use permit and reasonable accommodation applications submitted by other sober living home operators. 730 F.3d at 1155, 1165. Plaintiffs expended substantial time and money to comply with the use permit and reasonable accommodation application procedures. 730 F.3d at 1165. In contrast, the Ninth Circuit in Budnick looked to the legislative ~ecord and concluded that comments made by neighbors did not evince a discriminatory motive on the part of the town. The court explained: "[P]ermitting town councils, planning commissions, and the like to hear the views of concerned citizens and other interested parties about proposed projects is the essence of all zoning hearings. There is no evidence in the record to suggest that the cited comments or similar ones, which were a small part of the total comments, motivated the commissioners or Town Council members to vote against the [Special Use Permit], and we decline to make such an inference based solely on the fact that the comments were made." Budnick, 518 F.3d at 1117-18. Although not a group home case, the Ninth Circuit most recently employed the Arlington Heights factors, and cited extensively to Pacific Shores, in Avenue 6E Investments, Inc. v ; City of Yuma, 2016 WL_ 1169080 (9th Cir. March 25, 2016) (Avenue 6E). In that case, th~ Ninth Circuit reversed the dismissal of a discriminatory treatment claim under the FHA. Id. at *1. . Avenue 6E arose from the denial of an application to rezone land t6 permit higher density development in a neighborhood populated largely by Hispanic residents. 2016 WL 1169080, *1. The Ninth Circuit held that the plaintiff developers had stated a plausible claim under the FHA based on the following allegations: May 12, 2020 Item #3 Page 67 of 227 ■ The City Council denied the application despite the advice of its own experts to grant the application. Id. at *l, *3. ■ The application for rezoning was the only one of 76 such applications that the City: denied in the last three years; all others were granted. Id. at *l, *5. ■ The City Council capitulated to the animus expressed by opponents of high density development. Id. at *l, *2, *4, *8, *9. The City Council received letters and comments tinged with discriminatory animus toward Hispanic residents. Id. at *4, *8-*10. The City Council then denied the application, overruling the recommendations of the zoning commission and planning staff to approve it. Id. at *11. Thus the Ninth Circuit observed: "The presence of community animus can support a finding of discriminatory motives by government officials even if the officials do not personally hold such views." 2016 WL 1169080 at *8. "[U]nlike in Budnick, community members' opposition to Developers' application, using language indicating animus toward a . protected class, provides circumstantial evidence of discriminatory intent by the City." Id. at *9. Parsing the comments of community members, the Ninth Circuit iterated that "[w]e have held., however, that the use of 'code . words' may demonstrate discriminatory intent." Id . at *9. The court focused on comments such as "the type of people living in ... large households;" or who "used single-family homes as multi-family dwellings;" or who "own numerous vehicles which they park in the streets and yards, [ and] fail to maintain their residences, and lack pride of ownership." Id. at *10. These comments, the court found, reflect "stereotypes of Hispanics that would be well-understood in Yuma." Id. at *10. May 12, 2020 Item #3 Page 68 of 227 (ii) Cases Outside the Ninth Circuit In numerous other cases,. courts have attributed the discriminatory comments of members of the community; or their concerns, to the governing board of the local agency, and have found discrimination based in part on those comments or concerns. . In Stewart B. McKinney Foundation, Inc v. Town Plan and Zoning Com., 790 F.Supp. 1197 (D.Conn. 1992), the plaintiff, a nonprofitorganization, sought to operate a group home for HIV-infected persons. The town sent. to plaintiff thirteen written questions about the operational details of the house and the medical needs of its inten_ded occupants. Id. at 1204-1205. The town zoning commisston determined the plaintiff needed to obtain a "special exception" to its zoning requirements in order to operate the home in a residential neighborhood. The plaintiff had not applied for a special exception, and asked the commission to reverse its decision, arguing that its proposed group home complied with the town's definition of "family" for purposes of the zoning code. Id. at 1205-06. The Commission refused on the grounds that special exceptions are required for both "charitable uses" and "nursing homes.". Ibid. The plaintiff sought a preliminary injunction against the special exception requirement. Id. at 1207. The District Court issued the injunction and found that plaintiff was likely to prevail on its discriminatory treatment claim under the FHA. The court relied heavily on the comments of opponents of the group home. Those comments were evidence that the commission acted with discriminatory intent Id. at 1212-1213. The court · also found that the commission had discriminated because it had departed . from its normal procedures by (1) requiring a special exception for a group that qualified as a "family," (2) requesting that the plaintiff answer ·the thirteen questions before any use was formally proposed; and (3) conducting a hearing in the absence of any application by the plaintiff. Id. at 1213. May 12, 2020 Item #3 Page 69 of 227 In Potomac Group Home Corp. v. Montgomery County, 823 F.Supp. 1285 (D. Md.1993), the Distric_t Court reviewed several aspects of a county's licensing program for group homes for the elderly. The County allowed such homes by right in all residential zones, but (1) required the operators of the group homes to send letters to each neighboring property owner setting _forth their plans to operate, (2) subjected each proposed_home to a prograp,. review board hearing; and (3) excluded from group homes persons who were e~otionally, mentally, or socially incapable of taking action for self-preservation under emergency conditions, or who were insufficiently mobile to exit a building in an emergency. Id. at 1289-91. The District Court held that all three of these provisions violated the FHA. Id. at 1302: The neighbor notification requirement was declared facially invalid because it applied to· no other groups and was unsupported by any rational basis. Id. at 1296. The notification rule instead caused a great deal of harm by provoking a negative reaction from the community and stigmatizing the disabled. Ibid. Likewise, the program review board hearing was declared invalid because the County selectively applied it only to projects that provoked community opposition. Ibid. Moreover, the review boards included neighborhood representatives, but no one from the group home community. Id. at 1297. Thus, the County had given undue weight to community concerns and prejudices. Id. at 1298. The court dismissed the County's argument that it was i·equired to hold public meetings by state law. Id. at 1299. ~'To the extent that the state Open C Meetings Act 'stands as an obstacle to the accomplishment of the full purposes.and objectives' of the FHAA, it may not be enforced." Ibid. Finally, the exclusion from group homes of persons incapable of exiting a building during ail emergency was declared invalid because it irrationally excluded disabled persons from group homes. Id. at 1300. Fire code regulations already addressed the emergency needs of disabled persons to such an extent that the exclusion lacked any rational basis. Ibid. In Support Ministries for Persons with AIDS, Inc. v. Village of Waterford, 808 F. Supp. 120, 122 (N.D.N.Y. 1992), plaintiff alleged discrimination arising from a village's rejection of a residence for HIV-infected homeless May 12, 2020 Item #3 Page 70 of 227 persons. The village had drafted Local Law No. 2 of 1990~ which amended the zoning ordinance's definition of the term "boarding house" to exclude plaintiff's facility. Id. at 125. The ordinance was passed quickly during the period plaintiff was completing purchase of the property, and there was no other indication that amending this definition was otherwise needed. Ibid. Comments_of Village board'members revealed discriminatory animus. See id. at 123-28. The court found that plaintiffs established both discriminatory intent and disparate impact, stating, "[i]t is crystal clear that Local Law No. 2 of 1990 was enacted by the board members to prevent Support Ministrie~ from establishing its adult home for homeless [individuals with AIDS] in Waterford." Id. at 133. The court held, "the HIV-positive status of the futui:e residents of the Sixth Street house was at least one .factor, and probably the primary factor, for the enactment and application of the new zoning law." Id. at 134. Furthermore, the court explained, "[d]efendants' actions were blatantly based on the community's unfounded fear of AIDS, their misperceptions of AIDS, and their prejudices against [persons with AIDS], and not on a legitimate zoning interest." Id. · at 136. When defendants asserted that the facility would result in a potential risk of infection of the village residents, the court stated, · "[ d]efendants' argument merely repeats the uneducated, discriminatory beliefs that brought this case to the court. Their argument is totally unsupported by the medical evidence." Id. at 137. The court enjoined the village from interfering with the facility, thereby effectively enjoining enforcement of the ordinance. Id. at 139. In Tsombanidis v. City of West Haven, 129 F. Supp. 2d 136, 139:-40, 147 (D. Conn. 2001 ), the owner and residents of an Oxford House ( a provider of housing for persons-in recovery from alcohol or substance abuse) brought ·_ suit against a city and its fire district, alleging violations of the FHA and ADA. Prompted by neighbors' complaints; the city inspected the property and found various violations of the property maintenance code. Id. at 141. Plaintiffs claimed this was· a departure from normal procedure. Id. at 152. A group· of concerned neighbors also met with the mayor, circulated a petition, and attended a city council meeting. Id. at 143-44. A fire inspector May 12, 2020 Item #3 Page 71 of 227 was sent to the property and later issued an abatement notice to correct violations. Id. at 145. As to discriminatory intent, the court stated, "even where individual members of government are found not to be biased themselves, liability may still be imposed where discriminatory governmental actions are in response to significant community bias." Id. at 152. The court quoted Innovative Health Systems, Inc. v. City of White Plains, 117 F. 3d 37, 49 (2d Cir. 1997): "a decision made in the context of strong, discriminatory opposition becomes tainted with discriminatory intent even if the decisionmakers personally have no strong views on the matter." Tsombanidis, 129 F. Supp. at 152. Upon the city's declaration that "representative government requires that even arguably intolerant citizens have the right to have their complaints investigated," the court agreed but explained that the city's . actions in response to these complaints must be examined and thus cannot be decided by a summary judgment motion. Id. at 153. As to the fire district, there was no evidence that community opposition played any role in its enforcement efforts, or even that the fire officials were aware of such opposition. The court granted summary judgment in favor of the fire district regarding intentionar discrimination. Id. at 154-55. The Second Circuit affirmed in part and reversed in part in Tsombanidis v. West Haven Fire Department, 352 F. 3d 565, 581-82 (2d Cir. 2003). As to discriminatory intent, the court reiterated that plaintiffs offered valid evidence that the city rarely took enforcement action against boarding houses in residential neighborhoods, the city ignored Oxford Houses' explanatory letters, and one of the property maintenance code officials was dissatisfied with Oxford House. Id. at 580. Evidence supported the trial court's finding that the history of neighborhood hostility and pressure on city officials motivated the city in initiating and continuing its enforcement efforts. Ibid. In Steinhauser v. City of St. Paul, 595 F. Supp. 2d 987, 991-92, 999, 1006 (D . Minn. 2008), residential property owners alleged illegal enforcement of the city's property maintenance standards against properties leased to low- May 12, 2020 Item #3 Page 72 of 227 income residents. The court rejected a FHA discriminatory treatment claim. The city enforced its housing code by conducting proactive sweeps requested by city officials and responding to citizen complaints, but due to limited resources, housing inspectors had discretion in their application of the rules. Id. at 993. Plaintiffs alleged that neighboring properties also had code violations but did not receive enforcement orders. Id. at 995. A legislative aide received a call from a resident who was concerned that her neighbors were submitting complaints about her due to her race. · Id. at 1000. The court found that the resident was concerned about the neighbors, and not about the city targeting her, and that the city took her concerns seriously and sought to resolve the matter. Ibid. Although there was testimony of the neighbors making false allegations to the police, the court held, "discriminatory animus on the part of the neighbors is not evidence of discriminatory animus on the part of [the city]." Id. at 1004. The Court of Appeals affirmed the District Court's decision. Gallagher v. Magner, 619 F.3d 823 (8th Cir. 2010). The comments of local officials also led to adverse results in LeBlanc- Sternberg v. Fletcher, 67 F:3d 412,419 (2d Cir. 1995). · There, the federal government and private plaintiffs brought two suits against a village and its officers, alleging the village had been incorporated to exclude the Orthodox Jewish community through zoning restrictions on places of worship .. The jury in the private plaintiffs' suit found the village had violated the FHA, but two days later, the district court found against the federal government. Id. at 422. The court then corrected what it considered two inconsistent judgments by concluding that the village was entitled to judgment as a matter of law. Id. at 423. On appeal, the Second Circuit held the village was liable. Id. at 435. First, the court noted "the plethora of statements in the record attributed to ... leaders who became Village officials, expressing anti-Orthodox Jewish sentiments." Id. at 430. One official said, "the only reason we formed this village is to keep those Jews from Williamsburg out of here." Ibid. The mayor called the Orthodox Jewsllforeigners and interlopers," "ignorant and uneducated," and "an insul~ to the people who lived there previously." Id. at 420. Another May 12, 2020 Item #3 Page 73 of 227 official said that the village did not have to pursue particular proceedings with respect to a home synagogue because "there are other ways we can harass them." Ibid. Second, the events cited by the officials as evidencing a need to incorporate as a village, along with the subsequent actions, demonstrated an animosity toward Orthodox Jews. Id. at 431. The pre- incorporation zoning was seen as leading to the "grim picture of a Hasid1c belt." Ibid. The officials cited traffic and noise problems but only paid attention to those created by the Orthodox Jews. Ibid. The officials . · opposed slight variances for a synagogue's construction but unanimously allowed a Catholic mausoleum variance. Ibid. In Yeshiva Chafetz Chaim Radin, Inc. v. Village of New Hempstead, 98 F. Supp. 2d 347,349 (S.D.N.Y. 2000), a non-profit Orthodox Jewish organization and two ultra-Orthodox Jewish residents brought suit against the village and its officials, alleging religious discrimination in zoning enforcement. Village zoning laws includ~d a prohibition of multi-family housing and a requirement of a special permit to have two kitchens in one . house, which plaintiffs claimed was discriminatory. Id. at 351. Plaintiffs submitted testimony that the mayor m_ade discriminatory comments about the history of intentional discrimination .by the village. Id. at 355. The court denied defendants' summary judgment motion, finding that plaintiffs had raised a triable issue of fact as to discriminatory intent. Id. at 349. In United States v. City of Parma, 661 F.2d 562, 564-65 (6th Cir. 1981), the U.S. sought to enjoin the city from continuing its actions which had the purpose and effect of maintaining racial segregation. The city refused to enact a fair housing resolution welcoming "all persons of goodwill," passed four land use ordinances imposing height, parking and voter approval limitations on housing developments, did not apply for federal funds, and rejected proposal$ for public or low-income housing. Id. at 566- 67. The district court held that some of the city's actions "were motivated by a racially discriminatory and exclusionary intent" in order to "maintain the segregated 'character' of the City," and the Sixth Circuit affirmed in rpart. Id. at 568,579. There was evidence of elected officials' public May 12, 2020 Item #3 Page 74 of 227 statements that were either overtly racist or found to have racist meanings, open hostility of both the residents and officials regarding low-income housing, and departures from normal practices by city employees in handling a subsidized housing project proposal, including unusually strict adherence to the planning and zoning code, and not accommodating the developer through informal negotiations. Id. at 566,568,575. There was also "ample testimony that Parma already had a reputation among black residents of the Cleveland area of hostility to racial minorities." Id. at 57 4. In Oxford House-C v. City of St. Louis, 843 F. Supp. 1556, 1572 (E.D. Mo. 1994), recovering alcohol and drug users alleged FHA violations arising from code enforcement. The district court found the city liable based on discriminatory intent, and permanently enjoined the city from prohibiting a recove1y facility housing more than eight people. Id. at 1584. Die city received a complaint about the facility,· and thus sent its city inspector to investigate, which led to subsequent inspections and citations, including one for a non-existent violation. Id. at 1565-66, 1576. According to a city employee, "the neighbors did not have complaints about specific problems, but 'concern for the idea that a drug rehab house was in their neighborhood."' Id. at 1566. The decision to cite the facility for a violation of the zoning code was made by the city's zoning administrator, who testified in a deposition that he "'wouldn't want them living next door."' Id. at 1566-67. The court explained, "[i]ntentional discrimination can include actions motivated by stereotypes, unfounded fears, misperceptions, and 'archaic attitudes', as well as simple prejudice about people with disabilities." Id. at 1575-76. Intentional discrimination does riot require proof of a malicious desire to discriminate, but rather "[i]t is - enough that the actions were motivated by or based on consideration of the protected status itself." Id. at 1576. "The evidence here showed that city officials responded to the presence of the Oxford Houses based on stereotypical fears of recovering addicts and alcoholics, and carried out their enforcement efforts in response to neighborhood and community fears and concerns about "some sort of drug rehab" May 12, 2020 Item #3 Page 75 of 227 house being in the two neighborhoods. In short, the evidence . clearly showed that defendant's actions were motivated by consideration of plaintiffs' handicapped status." Id. at 1576. The court explained that the city made no attempt to assuage the fears of its residents by explaining the benefits of the Oxford House program or the relevant non-discrimination laws: "[A] decisionmaker has a duty not to allow illegal prejudices of the majority to influence the decision making process." Id. at 1576. Also, the city had not prosecuted -various religious orders that violated the same ordinance. Id. at 1578. The city asserted that no one ever complained about the religious orders, but the court explained that this "supports_ the argument that defendant enforced the ordinance only against politically unpopular groups like the handicapped plaintiffs here." Id. at 1578 & n.17. The Eighth Circuit reversed in Oxford House-C v. City of St. Louis, 77 F. 3d 249, 250-51 (8th Cir. 1996), holding the city acted lawfully. The court explained, "[r]ather than discriminating against Oxford House residents, the City's zoning code favors them on its face. The zoning code allows only three unrelated, nonhandicapped people to reside together in a single family zone, but allows group homes to have up to eight handicapped· residents." Id. at 251 ~52. Despite evidence that the eight-person limit would destroy the financial viability of many Oxfo_rd Houses, the court concluded that the rule was rational. Id. at 252. The court observed that "Oxford House did not show the City ignored zoning violations by nonhandicapped people." Ibid. The city never received complaints about the other groups Oxford House alleged were violating the zoning code. Ibid. "[W]e believe the City's enforcement actions were lawful regardless of whether some City officials harbor prejudice or unfounded fears about recovering addicts." Ibid. These "isolated comments" do not reveal a discriminatory application of the zoning code, especially when the Oxford Houses were "plainly in violation of a valid zoning rule and City officials have a duty to ensure compliance." Ibid. The City's inspectors did not May 12, 2020 Item #3 Page 76 of 227 hold policymaking positions, and thus their commentary and actions did ·not impute to the city as evidence of discriminatory intent. Ibid. b. Practical Tips for Minimizing Exposure Based on Alleged Discriminatory Intent · ■ Local officials should refrain from affirming or agreeing with discriminatory. comments made by members of the public. Discriminatory comments from the public, which are shown to influence a local agency's decision adverse to a protected group, could form the basis for a successful challenge in court. Comments by members of the public alone, without agreement of the governing body, are unlikely to form the basis of a successful anti-discrimination lawsuit. Nevertheless, discriminatory comments on the record make for bad atmospherics and could taint an otherwise strong defense. ■ Local officials should remind members of the public who make discriminatory comments that it is not permissible for government to discriminate based on a person's disabled or otherwise protected status. This might ~ot always be possible given that multiplE'. concerns are often in play. If loq1l officials feel they are not in a position to issue admonitions in an emotionally charged environment, they should at the very least listen respectfully to everyone without expressly agreeing with anyone. In a heated setting, it might be advisable for the Mayor or Chair to read a prepared statement at_ the outset of a public hearing; and before reconvening after each break, remind everyone of the governing law, and that disrespectful comments are inappropriate. This may help avoid one or more particular speakers feeling target~d if the Mayor or Chair reads a stat_ement immediately aft€r a speaker's comments. May 12, 2020 Item #3 Page 77 of 227 ■ Local officials should refrain from making comments that could be perceived as discriminatory by others. Discriminatory comments by local officials, depending on their frequency and severity, may lead to liability in an anti-discrimination lawsuit. On some occasions, attorneys from the U.S. Department of Justice attend City Council ot Planning Commission meetings unbeknownst to . anyone else present, and City officials do not learn of this until much later. Comments by local officials during those meetings could trigger further investigation by the Department of Justice culminating in a lawsuit brought by the United States. ■ Local officials should state the reasons for their decision in non- discriminatory terms. Language matters. Depending upon context, terms such as "those people" or "you people" or "them" do not read well in a transcript. Avoid demeaning terms such as "addicts". or II drunks" and the like. Courts develop a feel for the backstory based on the terms used. The more neutral and professional the language and tone, the better. Where the evidence is such that the case is a close call, courts might be willing to give the benefit of the doubt to the government when the record reflects good behavior. ■ Local officials and government staff members should not align themselves with a group, no matter how well-intentioned that group may be, that opposes housing for disabled persons. Officials and staff should not attend private meetings of an opposition group. If officials and staff conduct workshops or seminars in an effort to resolve community differences, they should invite people from all groups to participate, instead of inviting only some of the interested parties. May 12, 2020 Item #3 Page 78 of 227 ■ If any interested party circulates inaccurate information that appears to be fueling public opposition-to a protected group, particularly where the inaccurate information involves the action or inaction of local officials and staff members, the local agency should attempt immediately to provide accurate information. ■ If a particular project, or the implementation of a regulation, requires input or action from multiple departments within the local agency, ensure that all departments communicate with each other so that none takes action inconsistent with the others. ■ Conform as much as possible to past practice. For example, if applications for use permits in a particular zone usually involve Planning Commission or City Council hearings over a period of a few hours on a single date, but an application involving a protected group involves hearings over multiple days where the same residents opposing a project speak more than once, or where the comments of a large number of residents opposing the project are repetitive, this could be considered evidence of discriminatory intent. Also, if the protected group is required to obtain a discretionary approval, ensure that the application process for that approval is not significantly more onerous than the process for any discretionary approval to which other groups may be eligible for the same purpose. c. · Articulating a legitimate nondiscriminatory reason for the regulation. Courts view subjective explanations of regulations with skepticism. · Objective evidence of asserted reasons leads to better results for the defendant agency. "In examining the defendant's reason, we view skeptically subjective rationales concerning why he denied housing to members of protected groups. Our reasoning, in part, is that 'clever men . may easily conceal their motivations,' [citation].· There is less reason to be May 12, 2020 Item #3 Page 79 of 227 wary of subjective explanations, though, where a defendant provides objective evidence indicating that truth lies behind his assertions of nondiscriminatory conduct." Soules v. U.S. Dep't of Housing & Urban Dev., 967 F.2d 817, 822 (2d Cir. 1992). Concern for the residential character of the neighborhood is a legitimate and nondiscriminatory goal. Gamble v. City of Escondido, 104 F.3d 300,306 (9th Cir. 1997). "Though [Plaintiff] made an effort to ensure that [the use] would aesthetically blend in with its surrounding neighborhood, [the use] nevertheless required a [use permit] because certain aspects of the [the use] did not meet all of the requirements of the residential zones in which it would have been located." Budnick, 518 F.3d at 1116. See also Gamble, 104 F.3d at 305 ("[W]e ... conclude the reason the City advances for its decision, concern for the character of the neighborhood, is legitimate and nondiscriminatory."). Nonetheless, if a municipality has shown little regard for the character of the neighborhood by previously allowing other uses inconsistent with that asserted character, the court most likely will reject preservation of neighborhood character as a legitimate nondiscriminatory reason. d. Showing the asserted reason for the regulation is a ---pretext for discrimination. -------- In direct evidence cases, courts decide the issue of pretext by examining the same factors that inform whether plaintiff has established at the outset a prima facie case of discriminatory treatment. In several of the cases discussed above, it was the gravity of plaintiff's evidence, or lack thereof, regarding legislative history, sequence of events, or departure from customary practice, that was outcome determinative on the issue of pretext. In Keys Youth Services, Inc. v. City of Olathe, 248 F.3d 1267, 1269 (10th Cir. 2001), a youth group homes operator brought suit against the city, alleging in relevant part that the denial of a special use permit (SUP) was a violation of the FHA. The district court ruled for Olathe on this claim. Id. May 12, 2020 Item #3 Page 80 of 227 at 1269-70. On appeat Keys argued that Olathe denied the SUP because of the children' s·disabilities, but Olathe responded that "it denied the permit because the troubled juveniles would pose a legitimate· threat to neighborhood safety." Id. at 1273. The Tenth Circuit called this a legitimate nondiscriminatory basis for the decision. Ibid .. Thus, "the sole · issue for trial focused on whether Olathe' s safety concerns were mere pretext for handicap discrimination." Ibid. The district court found this reason was not mere pretext, and the appellate court stated this inquiry was a factual issue. Id. at 1273-74. The home was for youths ages 12 to 17 · who were abused, neglected, or abandoned, and whose scores were high on a rating scale of juvenile behavioral problems, meaning they were typically antisocial, aggressive, and engaged in violent crimes. Id. at 127 4. · Keys operated another such home that had a break-out in the past, and the juveniles went on a crime spree. Ibid. Although Keys showed that additional nighttime staff was hired after the break-out, which had . prevented further break-outs, and the majority of police calls did not affect the neighbors, the court stated, "Olathe' s fears are not groundless .... It is not unreasonable to think that [these juveniles] are capable of causing similar problems in the future." Id . at. 1274-75. It then affirmed the district court's holding that this reason was not mere pretext. Id. at 1275. IV. Conclusion A facially neutral zoning law will not survive a legal challenge on the sole basis that it treats everyone the same on its face. Courts routinely look beneath the surface in an attempt to uncover any discriminatory intent. A court will examine any _one or more of the rrniltiple factors, discussed above, that inform discriminatory purpose. Government agencies should take care to ask themselves whether a specific action, no matter how well- intentioned, could be perceived as evidence of discrimination. This is often a difficult task. The case law discussed in this paper ptovides at least some guidance as to when govenmlent agencies have crossed the sometimes nebulous boundary between valid action and discrimination. May 12, 2020 Item #3 Page 81 of 227 This page intentionally left blank. League ·of California Cities® 2016 Spring Conference Marriott, Newport Beach May 12, 2020 Item #3 Page 82 of 227 ATTACHMENT 3 Informational Staff Report on Sober Living Homes dated Feb. 19, 2019 May 12, 2020 Item #3 Page 83 of 227 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 May 12, 2020 Item #3 Page 85 of 227 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 specificaily 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 personswho 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 May 12, 2020 Item #3 Page 87 of 227 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 standarqs. 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 city1s 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 Councii"wishestodo 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 of this 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 May 12, 2020 Item #3 Page 91 of 227 Exhibit 1 Appendix: Recent proposed legislation The following table includes all bills directly or indirectly affecting sober living homes that have been introduced since the 1998-99 legislative session. Year Status Bill, Description .Sponsor 1993 Vetoed by Governor. S8.1540 Required state licensure of adult recovery maintenance (Kamette) facilities or "sober living homes" and required the Department of Social Services to develop plans regarding community 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 licensure and regulation of adult recovery maintenance facilities. 2001 Never heard in 5B239 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 for 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 S8340 Required the Department of Alcohol and Drug Programs to committee. (Florez.) administer the licensure 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 May 12, 2020 Item #3 Page 93 of 227 Year Status Bill,· Description Sponsor 2009 Gut and amended SB 589 Authorized a county or city to prohibit a person released to address a (Hollingsworth) on parole, after having serve-0 a term of imprisonment in different subject. state prison for any offense for which registration 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 related by blood, marriage or adoption. 2010 Died in Senate AB 2221 Permitted 24-hour residential treatment facilities Appropriations. (Beall) that provide services ta 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 facflity lic-:nse. 2012 Died in Assembly AB40 Required an alcoholism or dmg abuse program Appropriations. jMansoor) licensee to report specified events or incidents, including the death of a resident, within one working day of the event or incident. 2012 Nev1=r 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 supportive housing (Manso or) from licensure as an alcohol and drug treatment program. 2014 Died in Senate. AB 2491 Required the Department of Health care Services to (Nestande) license and regulate adult recovery maintenance facilities. Exempted sober living homes fromlicensure. 2016 Died in Assembly AB 838 (Brough Required any recovery houses operated by licensed Health Committee. and Harper) community care facility to be deemed to be facilities that provide treatment or services under the license of the community care facility. 2016 Inactive bill. AB 1283 (Bates AUmved a city, county, or both to adopt healt11 and and Brough) safety standards and enforcement mechanisms for structured sober living homes. February 19, 2019 Item #3 Page 12 of 21 May 12, 2020 Item #3 Page 95 of 227 • 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 handicaeped 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 q.irrent, 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 May 12, 2020 Item #3 Page 97 of 227 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 ofTitle 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 al.lowed to locate in all residential zones with a special use permit (SUP), which requires: February 19, 2019 ■ 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 Item #3 Page 16 of 21 May 12, 2020 Item #3 Page 99 of 227 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. Pursuantto 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 ordina_nce 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 OHCS when they offer at least one of the following services: 0 Detoxification 0 lndividual or group sessions 0 Education 0 Recovery or treatment planning 0Individualized 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 May 12, 2020 Item #3 Page 101 of 227 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 offoreclosing 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 residentfal 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 ho~sing 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 resident$ 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 c.ode. 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 ' May 12, 2020 Item #3 Page 102 of 227 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, 20~9 Item #3 Page 20 of 21 May 12, 2020 Item #3 Page 103 of 227 Sober Living Homes & Regulations Report Debbie Fountain Community and Economic Development Director Feb. 19,2019 May 12, 2020 Item #3 Page 105 of 227 City Council Request September 11, 2018 City Council Motion: "to place the discussion of sober living facility regulations on a future agenda". May 12, 2020 Item #3 Page 106 of 227 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 May 12, 2020 Item #3 Page 107 of 227 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 May 12, 2020 Item #3 Page 109 of 227 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 May 12, 2020 Item #3 Page 111 of 227 Summary • Sober living homes enjoy legal protection • Resident concerns shared nationwide • No license, no count • Legal options -Costly -Likely to fail • City Council direction May 12, 2020 Item #3 Page 112 of 227 ATTACHMENT 5 Staff Report and City Council Resolution #2019-134 dated Jul. 23, 2019 May 12, 2020 Item #3 Page 119 of 227 Morgen Fry · Subject: . FW: Sober living home committee agenda item . From: Rosemary Eshelman Sent: Tuesday, July 23, 2019 6:54 AM /UtV'~Agenda-.ftem #-I ,,.6 For the Information of the: -OUNCIL ' I •• / oat@ ?A _Q_ ca __ ._ CM _ktoo V DCM {3} L To: Matthew Hail <Matt.Hall@carlsbadca.gov>; Priya Bhat-Patel <Priya.Bhat-Patel@CarlsbadCA.gov>; Keith Blackburn <Keith.Blackburn@carlsbadca.gov>; Cori Schumacher <Cori.Schumacher@CarlsbadCA.gov>; Barbara Hamilton <Barbara.Hamilton@CarlsbadCA.gov>; Kristen Rahmeyer < >; Senator Bates< > Cc: Manager Internet Email <Manager@CarlsbadCA.gov>; Attorney <attornev@CarlsbadCA."gov:>; Neil Gallucci <Neil.Gallucci@carlsbadca.gov>; Andrea Dykes <Andrea.Dykes@carlsbadca.gov>; Jason Haber <Jason.Haber@carlsbadca.gov> Subject: Sober living home committee agenda item Good afternoon all, I kno"'." the sober living subcommittee is on the agenda this evenings agenda to speak about formulating a committee as approved earlier this year. am very excited to see a committee come together of council and community stakeholders. It will be great to look at state, local and federal regulatory legislation in relation to these homes in carlsbad and the surrounding communities. I am not sure how y<;>u will organize the committee whether it will be application process or appointment or both, but i am interested in continuing to be engaged in this committee for Carlsbad. Unfortunately, fortunately i will not be in town as my son has been called up to major league baseball by the Orioles and i will be in Arizona with him since they made it to the west coast. · ' I will look at the results of the meeting and am always available by phone 760 845 0318 or email. Thanks so much. Rosemary Sent from my Sprint Samsung Galaxy 58. 1 l May 12, 2020 Item #3 Page 123 of 227 Ad-Hoc City Council Subcommittee on Sober Living Homes Wednesday, January 29, 2020 5:30 -7:30 p.m. Faraday Admin. Center Meeting Notes Presenters: David Graham, Chief Innovation Office( Mike Peterson, Asst. Director Kerry Jezisek, Sr. Program Manager Keith Blackburn, City Council member Time: 5:31 pm ATTACHMENT 6 David presented /facilitated. Gave a brief presentation and explained the purpose of subcommittee. · Please fill out the sign in sheet to be notified when it goes to City Council. Staff will take written comments. Goals: provide context for discussion, receive public input and develop report to City Council. Subcommittee: Developed through City Council minute motion in Feb. of 2019 Population serviced at risk youth, elderly, chronically m, and mentally disabled Who regulates? Federal gov. and Fair Housing act and America w/Disabilities Act. State of California control the care and different types of licenses. Common group homes: independent living homes, supportive housing, rec.every homes/sober living. Recovery Homes or Sober living -unlicensed by the state, substance addiction recovery, no treatment, Protections Common issLJes: Activity impacts, overcrowding, safety, traffic, concentration of too many in an area. Residential facilities-licensed by the state, 24 hr. non-medical cif persons Public comment with speaker slips: Ernie T. of Carlsbad -He stated there is a group home for eating disorders near his residence and had two concerns: 1. parking two facilities close together. Visitors coming. 6 people, i;lnd staff. Parking allocations any restrictions? 2. Distance allowed between these facilities? Tiffany-Firefighter retired. Referred to Sunrise living group home in Chula Vista, 17 bedrooms. Company just taking their money. Lemon Grove has a group home of 26 bedrooms. Crowed living, trash, . dirty. Asked the city to really investigate the companies that are coming here. Martha -Carlsbad, a 30-yr. resident-confused by the format. Discouraged with format that it is not an · . Ad Hoc CC Subcommittee. It is not what the citizens asked for. Issue what is best for the community. These group homes are not being supervised. Trouble kids. Cash cows'. facilities. May 12, 2020 Item #3 Page 125 of 227 Jeanna .Taylor -Carlsbad -concerns: quality, no supervision, compatibility of the neighborhood, .intention of the owners (financial gain or care), and accumulative effect of what is going to happen. Rosemary Eshelman -On 2/19 City Council asked for ad hoc committee. When has the Ad hoc Committee niet and who is on the committee? A clarity of goals, timeline of this committee. What is the fallout of these residents after they leave? Has any research been done? We want to be part of the solution too. Mark Gladden -owner and operating of two facilities. Advocate tci drug addicts. He has been helped by such a_ facility. Glen c-Carlsbad -owns properties on Jefferson. Neighbor's house sold, and it became a living facility for 6 people. There are cigarette buds, trash, playing ping pong, loud noises, has had to call the police several times. Concerned about who is living the house. Asked city to give notice to neighbors within -500 ft. Who regulates the number of tenants? Does the city keep a record of how many times PD shows up? Robin -Carlsbad resident-stated that this is like a SB330 discussion. We cannot hold the city responsible if the Federal gov. and insurance companies are letting these group homes operate. Orange County-zoned for it and bus them in. There are privacy laws. Health insurance companies don't care about long term care. Look at how the health care is not addressing it. Follow the money. Gary Nessim -The city does not require business licenses for every boarding home. Safety requirements, fire sprinklers if you have so many people in the home. Chris N. -Accountability. ADA compliance, are they? It is not a licensable business. Ellie -Operates Sober Living for Wome_n -SOR, regulates, has inspections from Sacramento no overcrowding. We want to be good neighbors. We are trying to help. Overview Parking, concentration, emergency impacts, character, overcrowding, care supervised? bad operators, trash, neighborhood compatibility, business license, and enhanced bldg .. codes, what are the safety and building requirements. Alexis -Asked about a group home on Pine. Does the Planning Dept. do anything in to have the houses match? Better coordination with State/City licensing. No slip speaker asked -Are there occupancy limits? • At least regulate vacation rentals and not put back to back on the same street. Speaker asked: A violation of a code Do you always have to have a compliant to get action? Lack of efficiency. • Rosemary-DOCUMENT PLAN OF ACTION citizens on COMMITTEE What kinds of recourse does the city have? Compliance, fines, court. • Rosemary -After tonight, gather input and put it on a sheet as a communication piece. SUMMARY -Information gathered here, and additional written comments will be developed into a report. Can be provided between now and Fed. 12, 2020 to Kerry. This will be attached to City Council report. An actual item on City Council agenda. Outline main questions. GOAL-to City Council Workshop before summer. May 12, 2020 Item #3 Page 126 of 227 Would it be better to have this posted before 2/12 -next week? Public -YES! City Council will decide what they want to do. Keith -stated·staff will go thru this and organize it; City Council will have a discussion and give direction to staff .. Ad Hoc Committee -Barbara H. said citizens would be on it. 2/19/19 City Council agenda David asked what the public thought the priorities were: • Codes written and not being enforced. • Operators accountability and follow-up • Communication with residents • Develop clear goals for the Ad Hoc Committee • Timeliness of a response back to residents Issue: Parking nuance. Citizen heard the state pays the owner $3000 per resident, per. month. This should be regulated somehow. · Problem solving: Quality of life -mitigate tqgether. Keith Blackburn closes. You will be notified when it goes to City Council. It will go to city atty. The city is taking this very seriously. Mike -thanked the public for coming. If you want tq add additional comments, please give email to be ,notified. Staff has sign-up sheets available. · Adjourned: 7:00 p.m. May 12, 2020 Item #3 Page 127 of 227 Community Member Questions Legal Questions 1) Can Sober Living Homes be licensed and put under similar operating conditions (good neighbor agreements, parking guide lines, license posting, POC, 3-strikes policy for violations, etc.) as short-term vacation rentals? 2) Can background checks ('criminal and mental health) be performed for group home operators · and residents prior to home establishment and/ or tenant move in? 3) Can the city conduct "surprise" inspections of the Sober Living Home? 4) Can the number of residents residing in a sober living home be restricted? 5) Can the number of vehicles allowed to park at a sober living home be limited? 6) Can for profit sober living homes be denied, allowing only charity-based homes? 7} Can placement of gro_up homes in the city consider the distance from one group home to another? (Deny group homes on the same block) Also, can this be expanded to include the distance between group homes and STVRs? 8) Can group homes be required to have on-site supervision/ manager on premise? 9) Can the city work to change the definition of disabled persons to no longer include recovering drug and alcohol addicts? 10) Sober living homes are home-based businesses and should be taxed and licensed as such . Why isn't it a discriminatory practice to allow group homes to go unlicensed and tax free while other home-based businesses are prescreened and taxed? 11} How can these homes operate without a governing body and oversight? 12) How can vulgar language used by group home residents be restricted? Zoning Questions 1) How does the city ensure that group homes meet or exceed Building, Housing and Zoning Codes? And, how can proactive enforcement be leveraged? 2) Can parking at group homes be restricted? If so, how? 3) Can smoking be restricted at group homes? 4) Can there be development standards specific to group homes? Require fire sprinklers, more -square footage per resident, etc.?. 5) Can the number of cars allowed at a property be tied to the number of bedrooms? Safety / Police Questions 1} How can resident safety be a priority if there is no on-site supervision? 2) How can the safety of neighbors of grciup homes be a priority and ensured? 3) Can police activity and call out information related to group homes be made public? Ad Hoc Committee Process Questions 1) Why the delay with the project? 2) Why aren't residents a part of the Ad Hoc Committee? 3) Why hasn't staff reached out to State and Federal Elected Officials for support (if they have not done so already)? May 12, 2020 Item #3 Page 128 of 227 May 12, 2020 Item #3 Page 131 of 227 !....,..~-~~~--, ...... , ,/' . '. ' ... o;~--~---~"'-,.,.. _...,. ...... ~~,:,rt~t·•··""" -:· •'"'"""-";~~ · Sober Living Residence ··; ---·-·-· . . -. . . . . -~-. . ··-----.-----------·--=-J • A Sober Living Home is a Recovery Residence • Does not provide clinical services in the home • Residents suffer from substance use disorders, and are committed to recovery • There is no license for a Sober Living Residence to have. {Not licensable)· • Recovery is based on mutual peer support Definition of a Recovery Residence May 12, 2020 Item #3 Page 137 of 227 May 12, 2020 Item #3 Page 141 of 227 May 12, 2020 Item #3 Page 143 of 227 Federal Fair Housing of 1-988: . R .. . ,,: ec0ve~1nnc · . :,., .,·.:·•.,> .. ,s'.:\··''' ,: ..... ,,/'·'\,-,,· .. /·'•, \ •. ,,/· .', ·,,. •· .. ~ .. ,;,-~:;._ . . alcoholics and · drug addicts are a ·protected disabled. class . . .., .. ·~:~.:.! ... ,,:.-t,::. -~--: ... <-.:·--~, ....... {~~~"_.: ~•:':,..__ __ :. -·~·:I -..... ::;,;-.,. ;::·, ::,--,, -=->;;-,~ .. :~ i--.-.. :· . .-::t,~---. -, .... -:-·\ •~ ... r/ May 12, 2020 Item #3 Page 168 of 227 .State & Federal . . Fair . Housing Laws,· . . ,r .. s,· ,. • Prohibits housing discrimination for persons with aisabilities. • Disabilities include alcoholics and recovering addicts • Disabled unrelated persons can live together in a dwelling as a family unit. • Criminal justice-involved residents are a grey area. May 12, 2020 Item #3 Page 170 of 227 Rosemary Eshelman, 1133 Camino Del Sol Circle, Carlsbad, CA 92008 Notes about Ad Hoc Co.mmittee Sober Living Homes in Carlsbad Presented to City Council February 19, 2019 with other neighbors about the amount of services that the home at 1110 Camino Del Sol Circle were utilizing and the amciunt of chaos we were experiencing because of this sober Living home, group home 6 person home, un licensed rental. Council unanimously voted to create c:1n ad hoc committee to {I thought work with residents and staff) to look into this and other communities as to what was happening with Sober Living Homes. Council Members Barbara Hamilton and Keith Blackburn were assigned to th~ committee with no input from residents or staff. Barbara Hamilton resigns October 31, 2019. District 1 now has No representative per se. I reached out to council and staff about the ad hoc committee possibly meeting with no response. Fast forward to February 2020 and a meeting is taking place for group homes in Carlsbad . Since I had been engaged rn the original conversations I was invited. The meeting overview is basically we are not here to solve any problems just to give you the facts and background about what a group home can and cannot do in Carlsbad. The City Representative David Graham Chief Innovation Officer and Mike Peterson Assistant Director presented with four other staff members, Councilman Blackburn and a police officer in attendance. My first question of the evening was this was a whole year without communication from the City of Carlsbad. Has there been any conversations with other citie.s by staff, legislative conversations with Sacramento? Assemblywomen Tasha Horvath has an .office in Carlsbad on Carlsbad Village Drive that should be easy enough. Council member Co.ri Schumacher worked for her. No conversations with other cities just stats about what group homes are and what the city can and cannot do. I am sorry but I relish my evenings and this was a waste of time. There were no results other than it will go back to council and you will be notified before summer. The way i understand it the ad hoc committee is done in July 2020. Closure was what you want to see from the group attending: Business Licensing Local oversight Accountability Just like the rest of us paying citizens District 1 has been not represented for the past year. Two people have been killed in District 1; recently a 70 year old woman in a secure assisted living facility was attacked in District 1. May 12, 2020 Item #3 Page 182 of 227 Janann Taylor January 31, 2020 Kerry Jezisek 1635 Faraday Avenue Carlsbad, CA 92009 , CA 92008 Dear Kerry, City of Carlsbad Staff, Mayor and City Council: I attended the Group Homes Public Meeting that was held Wednesday, January 29 from 5:30 -7:30 pm. It was an interesting meeting to discuss some differences between . Licensed and Unlicensed Group Living Arrangements. Mostly this meeting discussed how "Group Recovery Homes" are designed by a property owner to provide "group living arrangements for people who are attempting to recover from a drug and /or alcohol addictions". · 1 am grateful for the opportunity to explore this challenge to the quality of life created by founders oftl-ie City of Carlsbad and us. Yes, It is an opportunity to voice concerns for this situation and to participate in the process of dialogue to build awareness, compassion and solutions. At the meeting I voiced the concern of Compatibility with the surrounding neighborhood. I have pers~nal experience of working with neighbors and the City of Carlsbad to secure a property to provide education to children aged 5-12 years. The facility was staffed with professionals with appropriate qualifications and the sit~ was prepared with drives for emergency vehicles, fire sprinklers, alarms, ADA requirements for entrance, egress and bathrooms. Several times architects, engineers, co.nsultants and planners presented to the City for review to assure that there would be a quality of life for the children receiving education and the neighboring properties. Traffic engineers and lighting experts were called upon to present. All of these experts were compensated to guarantee the property would be used for the greater good, as well as a location to create a livelih_ood for myself and staff. It is clear that there are those who wish to create an income by providing space for persons whose families or loved ones have experienced addictions. It is a commendable pursuit, if the intention is to uplift the people in need and community. May 12, 2020 Item #3 Page 183 of 227 At the meeting, several speakers including a former First Responder, Tiffani Czapinksi, detailed descriptions of group homes that were dreadful and shameful to the point that the home subjected the 'person in recovery' to abhorrent and abusive living conditions. From the City of Carlsbad Council and Staff, citizens and property owners have heard that there are laws and protections for the landlord of the Group Home to carry on with business as they see fit ,abiding to expectations of occupancy of any household, the definition of which is that the occupants apparently eat meals 'together'. Also, the Uniform Housing Code, was mentioned as one method to assure standards. We understand that Americans have Constitutional Rights of 'life, liberty and pursuit of happiness' which includes families who have single family residences in a stable neighborhood. However, most of what the City of Carlsbad Council and Staff have presented and showcased were Codes, Ordinances and Laws which are in place to protect Group Homes for Drug and Alcohol Addiction, several,of which have been a threat to peace, _ safety and well-being in residential neighborhoods. As paid experts, legal counsel and representatives of the entire population in Carlsbad, it is imperative that professional guidance be utilized to protect the residents in our neighborhoods. Council, the legal team and Staff must use their best skills, insight, talents and wisdom to maintain and protect families in grounded neighborhoods. On Pine Avenue, there is a project at the Planning Department which is being built with the intention of being For-Profit Group Home. The property at 1284 Pine has been placed, I believe, in an LLC and has had a long history of building "out of character and compatibility" with the neighborhood. My objection to having a Group Home installed on this site is: safety of elderly who regularly walk for exercise on the street; youth who bike and skateboard; families with children who regularly walk past the property going to school, Holiday Park, Krueger House, either Learning Center or Cole Library, the athletic fielcls at Pine Park and the Scout ~ouse. Our neighborhood is unique for the established urban forest. The owner at 1284 has left the property bare surrounded .by plastic for many years, which_ shows no regard for aesthetic of this neighborhood and the values of its Carlsbad residents. The original Owner is a non-Carlsbad resident who has deliberately constructed multi- family structures in this designated R-! single-family neighborhood and has never had a town meeting to explore how to cooperate with concerned residents. . . May 12, 2020 Item #3 Page 184 of 227 Due to concerns of the residents, the Building, Engineering and Planning Departments have been involved to modify, yet the arrangement persists as apartments for non-related persons. Hence accountability is a major issue moving forward. There are other locations to put in apartments with suitable lighting, ADA enhancements for Group Home and lighting. Basically, this developer purchased land for a single-family house with perhaps attached or detached second dwelling unit, yet manipulating the City of Carlsbad to have his way trying every angle to gain huge profits. First he attempted Vacation Rentals and now Group Homes: not to enhance the community, but exploiting the situation for his own profit. Additionally, many locations or establishments nearby are available for legal purchase of alcohol and lodging available on Pio Pico and near the freeway off Carlsbad Village Drive. In conclusion, forth is location it must be maintained that the owner not build specifically for a Group Home nor a Vacation Rental. Surely the City has some discretion when permitting for new construction that does not violate the federal Fair Housing Act or Health and Safety Codes. Hopefully you can support this point of view and assist us, as the residents of Pine Avenue have been living and working in Olde Carlsbad for generations. We request your conscientious support to maintain safety and decency for all the. generations present on this street. Cumulative effect is my third major concern when allowing permits to build Group Homes in a neighborhood. If and when Group Homes are located in close proximity to other licensed or unlicensed facilities, the result is a district where standards and reputation is developed and maintained. The history and demographics of Carlsbad has been families participating in community. Must residents choose to create walls barricading single family residences from influences of a Group Home? The City of Carlsbad has the obligation to use resources and expertise to preserve the integrity and value of neighborhoods and protect the standards to which homeowners and taxpayers are accustomed. I trust that there will be appropriate guidance for a positive outcome and solution Sincerely, Janann Taylor May 12, 2020 Item #3 Page 185 of 227 From: Martha Law-Edwards > Sent: Thursday, February 6, 2020 8:14 AM To: Council Internet Email <CityCouncil@carlsbadca.gov>; Manager Internet Email <Manager@CarlsbadCA.gov>; David Graham <David.Graham@carlsbadca.gov>; Celia Brewer <Celia.Brewer@carlsbadca.gov> Cc: Kerry Jezisek <Kerry.Jezisek@carlsbadca.gov> Subject: Response to the Group Homes Public Meeting Held January 29, 2020 To All Concerned: Thank you for taking the time to consider the following: Fact# 1 -On September 20, 2018, the residents of Pine Ave (between Pio Pico and Highland Ave) submitted a petition to the City Council to form an Ad Hoc Committee for the purpose of addressing the concerns with sober living residences. 97% of the residents signed the petition. The petition -specifically asked that the Committee be comprised of residents and city staff. Fact# 2 -At the City Council Meeting of February 19, 2019, a 21 page report was submitted to the Council by _Scott Chadwick and Debbie Fountain entitled " Informational staff report on sober living homes and applicable regulations" · Fact# 3 -Following the presentation and discussion of the report mentioned above, the City ·council, with a 5-0 vote, approved the formation of an Ad Hoc Committee to address the issue of sober living residences/group homes. Fact# 4 -On January 29, 2020 a Group Homes Public Meeting was held -facilitated by David Graham and Mike Peterson. · Fact# 5 -At the onset of the Public Meeting, Mr. Graham stated that the meeting was not to be a dialogue on the subject of Group Homes, but a forum to receive input from community members present. Various city staff members sat dutifully and silently in the back row. Further, Mr. Graham stated the city staff in attendance would be the ones to compile the input and then submit yet another report to the City Council -possibly by the summertime. Response #1 -The time delay of responding to a clear directive by the City Council on February 19, 2019 is troublesome. Response #2 -The lack of inclusion of residents in the process of formulating follow-up recommendations to the Council is in direct conflict to the sincere petition submitted by city residents; and consequently, a general lack of regard for those who actually experience the immediate impact of group homes in their neighborhood. Response #3 -Mr. Chadwick and Ms. Fountain listed in their report five possible actions that could be researched further. Rather than a regurgitation of what has already been presented, allow residents and city staff to proceed TOGETHER in continuirig this effort to provide recommendations to the City Council -in a timely fashion. May 12, 2020 Item #3 Page 186 of 227 Response # 4 -It is the obligation and responsibility of elected officials and their assigned · designees to represent the interests of their constituents. That is our expectation and right as residents of this wonderful city of Carlsbad. To do otherwise, could be viewed as a dereliction of duty. Respectfully Submitted, Martha Law-Edwards CAUTION: Do not open attachments or click on links unfe$S you recognize the sender and know the content is safe. May 12, 2020 Item #3 Page 187 of 227 -----Original Message--- From: Council Internet Email Sent: Thursday, February 6, 2020 8:01 AM . Cc: David De Cordova <David.deCordova@carlsbadca.gov>; Mike Peterson <Mike.Peterson@carlsbadca.gov> · Subject: FW: Opposition to For-Profit Group Home on Pine avenue -----Original Message----- From: SYLVIA G RAMIREZ Sent: Wednesday, February 5, 2020 7:38 PM To: Council Internet Email <CityCouncil@carlsbadca.gov> Subject: Opposition to For-Profit Group Home on Pine avenue I am opposed to the possible approval of a for~profit group home on Pine Ave, the center of Old Rural Carlsbad. The council would be liable if anything-happened by brining this element into single family homes next to a park and pre-school. I have lived on Pine Avenue for more than 40 years and raised my five ch_ildren on Pine Avenu~. I have seen the slow deterioration of Holiday Park. We have had to call the police numerous times because of alcohol and drug abuses by homeless people in the park. Unless neighbors call continually, this park has not been well supervised . This is especially concerning because there is a well-regarded pre-school run by the city of Carlsbad in this park. In fact I made a decision to not send my granddaughter to that pre-school because of the continuing issues with.the unsupervised homeless in the park who are abusing alcohorand drugs, often in broad daylight. Now,' the council is considering bringing in a For-profit Group home for people in recovery to an already unstable situation that Carlsbad ha.s not been able to effectively patrol. Children will be in danger, and that is inconceivable to me. You must look at the reality of the park situation, the numerous children who are in this area at all times of the day, and the surrounding neighborhood and see that it is not conducive to this type of for-profit residence. You have a person who is not a Carlsbad resident, who previously tried to "sneak in" vacation rentals, and now wants to make a profit any way he can without regard for the neighborhood, the safety of children, or the already difficult park situation. I ask you to do your civic duty and deny this permit. Please uphold the values and safety of Carlsbad citizens and have respect for the needs of the community. Sylvia G Ramirez Carlsbad; California CAUTION: Do not open attachments or click on links unless you recognize the sender and know the content is safe. May 12, 2020 Item #3 Page 188 of 227 -----Original Message----- From: Council Internet Email Sent: Wednesday, February 5, 2020 3:54 PM Cc: Mike Peterson <Mike.Peterson@carlsbadca.gov>; David De Cordova <David,deCordova@carlsbadca.gov> Subject: FW: Group Home on Pine Avenue -----Origina I Message----- From: Raymond Ramirez Sent: Wednesday, February 5, 2020 3:21 PM To: Council Internet-Email <CityCouncil@carlsbadca.gov> Subject: Group Home on Pine Avenue Council, we live on Pine Avenue and we oppose the idea of a substance abuse group home in our block .. We vote "no" to this ill conceived notion that this situation would be compatible with the values and realities of this residential neighborhood. I suspect that this is being proposed for the income it would generate rather than for a concern for any recovery of this population or for the continued tranquility of this rural segment of olde Carlsbad. This proposal would generate unnecessary increases in the liabilities profile for the city and its residents especially those on Pine Avenue, Holiday Park and the children's day care center practically next door. Sincerely, Raymond and Sylvia Ramirez Sent from my iPad Raymond Ramirez CAUTION: Do not open attachments or click on links unless you recognize the sender and know the content is safe. May 12, 2020 Item #3 Page 189 of 227 Kerry Jezisek From: Sent: To: Cc: Subject: Good Morning, Martha Law-Edwards < Tuesday, February 11, 2020 11:00 AM Celia Brewer; Manager Internet Email; David Graham; Council Internet Email Don Neu; Kerry Jezisek Fwd: Press Release The attached press release reports the legal precedent that has been set by the joint effort of the Orange County District Attorney's Office and the California Department of Insurance in the healthcare fraud by the operators of so-called sober living homes. What we have cautioned you about has now been clearly and legally exposed. It would be foolish to think that this type of miscarriage of faith and trust entrusted in these establishments by the vulnerable and their families is not, in fact, a similar reality in some other for-profit businesses embedded within our residential communities. Based on this, and on behalf of all concerned Carlsbad residents, I formally request that an investigation be conducted of similar businesses that exist within our residential neighborhoods -most specifically, into the owner and operator of such establishments at 1204 Oak Ave, and 1274-84 Pine Ave. Further, we ask that no building permit be issued to the prop_osed project at 1284 Pine Ave, as it clearly displays through design and past egregious behavior of the owner, that yet another such business is about to add to an adverse encroachment into our community. There is no excuse not to pursue this. I ask that a reply to this formal request be issued at your earliest convenience. Most sincerely, Martha Law-Edwards http://orangecountyda.org/civica/press/display.asp?layout=12&Entry=5957&fbclid= I CAUTION: ·oo not open attachments or click on links unless you recognize the sender and know the content! jis safe.I 1 May 12, 2020 Item #3 Page 190 of 227 Mohases was arrested on January 13, 2020 and arraigned on January 14, 2020, he has pied not guilty. He is out on $250,000 bail and is scheduled for a pre-trial on February 5, 2020 in Department C-57. Reeves was arrested on January 14, 2020 and arraigned ori January 15, 2020, he has pied not guilty. He is out on $100,000 bail and is scheduled for a pre-trial on January 22, 2020 in Department C-55. A preliminary hearing for this suspect is scheduled for February 13, 2020 in Department C-55. Frageau appeared in Court on warrant on January 15, 2020, he was arraigned on January 15, 2020. 1-ie is out on $250,000 bail and is scheduled for a continued arraignment on February 7, 2020. J Williams turned himself into Huntington Beach Police Department on January 15, 2020. No arraignment date has been scheduled for him yet. Lomonaco was arrested on January 16, 2020. He is scheduled to be arraigned January 17, 2020. Deputy District Attorney James Bilek of the Insurance Fraud Unit at The Orange Couf')ty District Attorney's Office is prosecuting this case. ### May 12, 2020 Item #3 Page 192 of 227 Kerry Jezisek From: Sent: To: Cc: . Subject: Good Afternoon, . Alexa Kingaard Tuesday, February 11, 2020 1:25 PM Martha Law-Edwards Celia Brewer; Manager Internet Email; David Graham; Council Internet Email; Don Neu; Kerry Jezisek Re: Press Release As part of a a third generation home-owner at 1344 Pine Avenue, I agree with my neighbor, Martha Law-Edwards, that we deserve the same respect and commitment from. our city that you have shown the builder of the Sober Living Facility on Oak Avenue and proposed facility on Pine Avenue. I hope your better judgment will allow you to delve further into this situation and protect the many long-time residents who have built this town. Please don't misconstrue our intentibn to demand further investigation into the owner of these "group homes" as a dismissal of the residents who are suffering and truly in need of a comprehensive, compassionate program. Their health and well-being is also at risk with community environments that are meant solely for profit, and not recovery. This situation affects all Carlsbad homeowners, renters, tourists, and visitors. We expect a fair, unbiased and lawful solution before further building permits are issued for the construction of the proposed sober living facility at 1274:-1284 Pine Ave. Thank you for your time. Alexa Holmes Kingaard On Tue, Feb 11, 2020, 10:59 AM Martha Law-Edwards wrote: Good Morning, The attached press release reports the legal precedent that has been set by the joint effort of the Orange County District Attorney's Office and the Cc;11ifornia Department of Insurance in the healthcare fraud by the operators of so- called sober living homes. What we have cautioned you about has now been clearly and legally exposed. It would be foolish to think that this type of miscarriage of faith and trust entrusted in these establishments by the vulnerable and their families is not, in fact, a similar reality in some other for-profit businesses embedded within our residential communities. Based on this, and on behalf of all concerned Carlsbad residents, I formally request that an investigation be conducted of similar businesses that exist within our residential neighborhoods-most specifically; into the owner and operator of such establishments at 1204 Oak Ave, and 1274-84 Pine Ave. Further, we ask that no building permit be issued to the proposed project at 1284 Pine Ave, as it clearly displays through design and past egregious behavior of the owner; that yet another such business is about to add to an adverse encroachment into our community. There is no excuse not to pursue this. I ask that a reply to this formal request be issued at your earliest convenience. 1 May 12, 2020 Item #3 Page 193 of 227 Most sincerely, Martha Law~Edwards http://orangecountyda.org/civica/press/display.asp?layout=12&Entry=5957&fbclid= CAUTION: Do not open attachments or click on links unless you recognize the sender and know the content is safe. 2 May 12, 2020 Item #3 Page 194 of 227 Kerry Jezisek From: Mike Peterson . Sent: Tuesday, February 11, 2020 1 :37 PM To: Subject: Tom Mallory; Laureen Ryan; Jeff Murphy; Kerry Jezisek Fwd: Sober Living Homes and Fraud Attachments: Sober Living Home Fraud.html; ATT00001.htm FYI Sent from my iPhone Begin forwarded message: From: Rosemary Eshelman Date: February 11, 2020 at 1:09:02 PM PST To: Matthew Hall <Matt.Hall@carlsbadca.gov>, Keith Blackburn <Keith.Blackburn@carlsbadca.gov>, Cori Schumacher<Cori.Schumacher@CarlsbadCA.gov>, Priya Bhat-Patel <Priya.Bhat-Patel@CarlsbadCA.gov>, Manager Internet Email <Manager@CarlsbadCA.gov>, Mike Peterson <Mike.Peterson@carlsbadca.gov>, David Graham <David.Graham@carlsbadca.gov>, Gary Barberio <Gary.Barberio@carlsbadca.gov> Subject: Soberliving Homes and Fraud AH ' Since the last meeting of Group Homes (Sober Living Homes) this was brought to my attention by Senator Bates office. Sh~ has been working on a bill in Sacram~nto to bring attention to the predators that recruit for the sake of · money. Her bill was shot down, but I know Pat she will not give up she has a social work background and . understands this line of work. I just want you all to understand that these homes are making money, they should be licensed and there should be accountability. When the hom.e that .opened at 1110 Camino Del Sol Circle years back I noticed cars with expired plates from many states throughout the country and started calling . Ca'rlsbad PD. They were towed as some had expired plates or had been there for weeks. 1 May 12, 2020 Item #3 Page 195 of 227 Thank you for taking the time I know you have many other issues going on, but I just don't think this one is as it seems. When you live near it daily you notice. Rosemary __ ,_ Rosf'.'m2irv Es,wln1i.10 . .-1-;;-~l...• ;;'i_·r:! '?-:·•-~ '~-, .. _,...! .':;_:~·-: ,;..,::/1:J.11 ~ Cansbad Unl1led School Dls1rict ~ ''ii P~ $225 El Ca!11!'.10 R~ Carlsoad. CA92009 !CAUTION: Do not open attachments or click on links unless you recognize the sender andl !know the content is safe. I 2 May 12, 2020 Item #3 Page 196 of 227 $3.2 Million Sober Living Home Fraud Scheme Shut Down Five defendants charged with multiple felonies for preying on vulnerable substance abuse patients to bilk insurance company out of millions ; · I , SANTA ANA, Calif. -A joint effort by the Orange County District Attorney's Office and the California Department of Insurance has shut down an alleged $3.2 million healthcare fraud ring which preyed on vulnerable substance ab\jse patients in order to bilk an insurance company out of millions. Steven Lomonaco, 61, of Laguna Beach, Mahyar "Christian" Mohases, 37, of Santa Ana, Robert Williams, 41, of Murrieta, Nicholas Reeves, 42, of Aliso Viejo, and James Frageau, 29, of Temecula have been charged with multiple felony counts including insurance fra~d and money laundering in connection with the scheme. Mohases, Williams, Reeves, and Frageau have. each been charged with two counts of committing medical insurance fraud, one count of fraudulent written claim to an insurance company, two counts of money laundering in excess of $150,000, four counts of money laundering, and cine enhancement for aggravated white collar crime over $200,000. They each face a maximum sentence of 14 years if convicted on all charges. Lomonaco has been charged with two counts of committing medical insurance fraud, one count of fraudulent written claim to an insurance company, one count of medical insurance fraud, and one enhancement for aggravated white collar crime over $200,000. He faces a maximum sentence of 8 years 4 months if convicted on all charges. · "Th heartless nature of these crimes are appaling," said Insurance Commissioner Ricardo Lara. "These suspects. trafficked vulnerable substance abuse patients to California just to make a quick buck from the insurance company, with no regard for their lives, health or recovery. Thanks to the efforts of Department of Insurance investigators, and our close work with District Attorney Todd Spitzer's office, there is one less fraud ring preying on unsuspecting patients." Mohases, Frageau, Williams and Reeves are accused of finding patients across the country who were seeking help for substance use recovery and flying them to California to enter treatment at Casa Bella International Inc., which was owned and operated by Lomonaco. In order to obtain payment from the insurance company for these patients, Mohases, Frageau, Williams and Reeves directed employees to fill out policies for the patients using false information. · They are accused of lying on the insurance applications, stating that patients lived in California, when in actuality the addresses were for employees or businesses related to the co-conspirators. Lomonaco paid the other co-conspirators upwards of $10,000 per patient who stayed enrolled in treatment for more than 30 days. "Sober living homes are valuable resources designed to facilitate recovery and healing for patients battling potentially life-threating addiction issues," said Orange County District Attorney Todd Spitzer. "Instead of helping these patients, these individuals preyed on extremely susceptible people and exploited their addictions for profit. Working closely with the california Department of Insurance, we are cracking down on these criminals and their predatory operations in order to protect substance abuse patients from unknowingly being trafficked, as protect their loved ones and insurance companies from these unscrupulous operators."· In order to pay the insurance premiums, the defendants are accused of developing a massive money laundering scheme in which they filtered money through non-profit, StopB4UStart, by providing "donations" from Mohases, Frageau, Williams and Reeves under their corporation, Nationwide Recovery. These "donations" would be cashed out, and the owner of StopB4UStart would receive cashier's checks in specified amounts based on the information he received from one of the other co-conspirators. More than 800 checks in total were used to pay the insurance premiums on the·fraudulent policies. Mohases was arrested on January 13, 2020 and arraigned on January 14, 2020, he has pied not guilty. He is out on $250,000 bail' and is scheduled for a pre-trial on February 5, 2020 in Department C-57. May 12, 2020 Item #3 Page 197 of 227 Reeves was arrested on January 14, 2020 and arraigned on January 15, 2020, he has pied not guilty. He is out on $100,000 bail and is scheduled for a pre-trial on January 22, 2020 in Department C-55. A preliminary hearing for this suspect is scheduled for February 13, 2020 in Department C-55. Frageau appeared in Court on warrant on January 15, 2020, he was arraigned on January 15, 2020. He is out . on $250,000 bail and is scheduled for a continued arraignment on February 7, 2020. Williams turned himself into Huntington Beach Police Department on January 15, 2020. No arraignment date has been scheduled for him yet. Lomonaco was arrested on January .16, 2020. He is scheduled to be arraigned January 17, 2020. Deputy District Attorney James Bilek of the Insurance Fraud Unit at The Orange County District Attorney's Office · is prosecuting this case. ### May 12, 2020 Item #3 Page 198 of 227 Date: February 12, 2020 To: Carlsbad City Council Re: Sober Living Group Homes in Carlsbad, CA Carlsbad City Council, Hello. I have been a Carlsbad r~ldent living ln the same single family home with my wife since 2009, and have had a child in our home since 2012. On January 29; 2020, I attended the "Group Homes . Public Meeting'.' Where the City of Carlsbad was seeking input on this topic from residents, This was a very welcome meeting, as my family and neighbors haVefelt helptess to affect a much needed change in the laws and guidelines governing these facili1:i8$. At the end of that meeting, attendees were encouraged to send further written input to oe included in a report that will be presented to the Carlsbad City Council, who presumably will take necessary actions t0; protect all citizens of the community and improve their overall quality of life. I would like the issues I ra:ise1 outlined below in this document; to be included in that report. My conqerns that follow are organized into sections of information. My Family's Circumstance I live in the beautiful La Costa Meadows area of Carlsbad in a single family residential neighborhood. In March of 2017, without noti.ce to anyone, the home directly adjacent to my property was sold and immediately converted from a traditional family residence to a sober living faciTity for recovering alcohol and drug addicts. The facility houses up to 10 recovering addicts (all men) living in the home. The presence .of this facility has· led to a major negative impact on my family, my property, and the neighl;>0rhood asa whole. We feel victimized by opportunistic proprietors and a broken legal system that has been set up to favor these facilities while completely ignoring any harm done to other residents. Compromised Personal Safety • No Vetting of Tenants: Realistically, most people with addiction problerns have a history-of poor judgement arid self controL It is a reasonable conclusion to assur:ne that this trait could lead to criminal and/or inappropriate behaviors for some. There is no regulation in place to monitor or filter . indMduals who might endanger or compromise the sanctity of the community with their behavior. We have no way .of knowing who these people are or .ifihey present a credible risk to the community. There are no standards in place to evaluate and convey the mental health and/or criminal records of individuals placed in these facilities. • No Supervision of Tenants: MY understanding is that, by law, no tre;:itment for addiction snould be pccurring at these facilities. Given that fact, picture up to10 recovering addicts thrown together in tight living quarters with nothing but each other to keep them in check. These are people with severe behaviora1 problems. They are mostly young people and their observ.ed actions lead me to believe. they ~re largely immature. I have personally witnessed disturbing behaviors on multiple occasions. One of many examples: For a period of time, as part of their group meeting regiment, the sober living residents decided to start bonfires in their yard. This directly correlated with a time .of high winds/heat and active red alert fire threat warnings in the area. The disturbing antics included ·' throwing furniture on the fire arid laughing as sparks rose higher than a two story building. Unfortunately, on at least 3 occasions, the fire became out of control and created a credible danger to the neighborhood which prompted formal complaints. Neighbors are acutely paranoJd where this · sort of behavior can lead if these men continue to fend for themselves. 1 of 5 May 12, 2020 Item #3 Page 199 of 227 • High Incidence of Relapse: Look at any credible study on relapse rates for drug and alcohol addiction and you will see that the relapse rate is extremely high. By some accounts; this can be as high as 80%, even after being in a treatment program. My concern here is that my family is not just living next door to up to 1 O recovering addicts, but potentially a high percentage of active users. This would certainly amplify the potential risk of inappropriate behaviors. • High Tenant Turnover Rate: This home has a revolving door of tenants that move in or out very frequently. Transient people almost never have the same sense of pride and loyalty to their community. They do not have any personal connection with the neighborhood. They will be gone in a short period, so the personal stakes are low if they make poor choices in relation to the people and property of the neighborhood. Once they are .gone, there is no accountability. • · Poor Environment for You~g Children: Ask yourself, would you want your young child to live next door to up to 1 O recovering drug addicts who consistently display questionable behavior? The answer from any responsible parent would, of course, be "no". No parent wants to subject their child to unnecessary risks of any kind. Because we have no way of knowing the true threat of these individuals, the only responsible thing to do is to err on the side of caution. Unfortunately there are · other consequences for a family living in this unusual circumstance. For instance, my son is now not allowed to play outside in his own yard unless closely supervised at all times. Also, my son wanted to have a large birthday party at our house, but we had to deny the request because we felt the unpredictable behavior of the addicts next door was not conducive to entertaintng a group of children. My son asks questions about the men next door such as "Why can't I knock on their door and visit with them like I do our other neighbors?". As much as I would like to give these men the benefit of doubt, as I do feel sympathy for their plight, I value my family's personal safety too greatly to just blindly trust them. The lack of regulations governing these tenants forces this paranoid behavior from people like us. Decreased Property Value • Prospective Home Buyers Deterred: We believe that the presence of a sober living home next door to our property has not only decreased the value of our home, but possibly made it unsellable. · • Realistically, the moment any prospective home buyer finds out that their potential next door neighbors are up to 10 recovering addicts, they will not buy our home, especially ifthey have children. Living next fo a sober living home is a liability that nearly all home buyers would not willingly. accept. So, despite being extremely frustrated that my family has been victimized by this situation, we are unable to simply sell our home and move, without taking an unacceptable monetary loss on our property. • Delayed/Cancelled Home Improvements: ·Our family has a long term plan for improving our home with upgrades and remodel projects. We completed a major remodel to the home in 2013, and considered that to be the first of many similar upgrades to the property. These upgrades should be a sound investment and welcomed by the neighborhood as a signal for increasing overall real estate value. However, we have now made the decision to indefinitely suspend any significant home improvement projects because of the property value impact of the sober living facility next door. We believe that further improvements will not help our home value because no one will want to purchase our home, regardless of improvements. Note that if this becomes a pervasive attitude shared by all neighbors, this can ultimately lead to the decline of the neighborhood as a whole. • Poor Choices by Sober Living Home: The mere presence of the sober living home has already created a huge real estate value problem for their immediate neighbors. To.make matters worse, the proprietor of the sober living facility has made additional poor choices for the property in an effort to accommodate the large number of inhabitants in the facility. These choices have amplified the problem by damaging the neighborhood aesthetic. For instance, what was once a nicely landscaped front and side yard, is now surrounded by a very tall cheap piastic fence. What was once a beautiful spacious grassy lawn has been replaced with gia.nt storage shacks, an expansive covered area to house group meetings, and a disarray of wood chips everywhere else. What was 2of5 May 12, 2020 Item #3 Page 200 of 227 • Lack of Neighborly Attitude: Neighborhoods such as ours have a personality. I would describe ours to be friendly and cordial. However, the inhabitants of the sober living facility make no attempt to interact with any neighbors or even aspire to something as simple as a wave hello occasionally. They consistently live in what I would describe as their own tittle self-serving bubble where nothing matters in the outside world. My perception of this attitude is that possibly the tenants are so focused on their own severe problems that they don't have the interest or skills to interact in a normal way with the neighborhood.-A group home in a single family residential neighborhood is awkward, inappropriate, and possibly embarrassing to all involved, including the recovering addicts. In addition, many neighbors have expressed to me a level of fear of the sober living residents based on the uncertainty of their stability. The neighborly attitude of our community has been damaged by the presence of this facility. Unfair Sober Living Home Laws • Recovering Addicts Inappropriately Classified as "Disabled": As I understand it, there are federal and state laws in place that classify recovering alcoholics and drug addicts as "disabled". While the intent of this classification is surely to help those with addiction problems, this ill-conceived expansion of the law has clearly been $u$ed by opportunists both in recovery and those preyin_g on those in recovery. For starters, the standards for being classified as a drug addict, and in turn "disabled," are sketchy at best. Further, the argument for placing drug addicts into the same disabled group as-cerebral palsy, paraplegia, or blindness victims is highly in que$tion and arguably inappropriate. The reason that this classification is significant. is because once a person is deemed as "disabled, u it becomes unlawful to consider their disability as a factor with regard to housing, employment, and other life issues. This opens the door for exploitation. • Unethical Proprietors Exploit Loophole in Laws: The classification of addicts as "disabled" has allowed sober living facilities to move into residential neighborhoods unchecked. Proprietors of these facilities know that no one can legally question their actions and that they have no responsibility to alert the other homeowners, realtors, or any level of government regarding their intent. The law has given theni a license to freely operate these facilities despite the detriment of those affected by their presence. Additionally, while proprietors rake in huge profits on these facilities, there are absolutely no checks and balances in place to ensure that their tenants are in an environment that is conducive to recovery. Because the profit margin is so high on these homes, proprietors are only incentivized to keep their homes stuffed full and to keep the tenants there as long as possible. My belief is that these facilities are businesses which are largely preying on addicts while operating for profit in residential neighborhoods and masquerading as homes. Proprietors are able to hide behind a vefl of being altruistic, wh-ich may be true hi some rare instances, but the negative incentives in place have enabled an overall system of corruption. • Fear of Challenging the Law: Most people can objectively see that there are problems with the current treatment of sober living facilities. But few are willing to do anything about it. There is a whole new niche of attorneys emerging specifically to defend and cash-in on these sober living facilities. These lawyers are well-versed on the loopholes which allow the facllities to operate. Just as the proprietors are preying on neighborhoods, these layers in turn prey on the proprietors because they know a lot of money is at stake for them. Of course, the real losers in this legal mess are other homeowners and sometimes the cities that attempt to defend them. Private homeowners cannot afford to take on the legal teams hired by sober living corporations and are forced to endure their negative affects. Cities, even if they know it's the right thing to do, are scared that there will be political, budgetary, and public relations consequences for taking on these laws. If you look into. previous court cases of in this realm, it is rare that justice prevails. The result is usually that the sober living facilities continue to operate unchecked. Everyone who could make a difference turns the other way and pretends it isn't a problem. I hope that my city and community are different, not afraid to do the right thing, . 4of5 -May 12, 2020 Item #3 Page 202 of 227 Action Taken: v Notes By law, everyone has the right to choose where to live without discrimination, including individuals with disabilities. Individuals recovering from drug or alcohol addiction are defined as disabled under the Fair Housing Act. · It may also be a violation of the Fair Housing Act to: • Prohibit or restrict group homes based on the belief that the residents will be members of a protected class, such as recovering substance-abuse addicts. • Impose restrictions on where group homes may be located because of alleged public safety concerns, for example, by requiring a group home to provide additional security measures based on the belief that the persons of a protected class are more likely to engage in criminal activity. • Impose additional restrictions or conditions on group homes which are not imposed on families or other groups of unrelated individuals. For example, the Oty cannot require an occupancy permit for group homes and not require it for other residents living in single-family homes. Please sendthe response above to the community member and the resident. Note Created Modified Troy Mallory Hi Tom, if you need anything further please reach out 2/12/2020 4:51:00 PM by to Kerry J. Thanks, Laureen Laureen Ryan v Message History Date 2/12/2020 4:51:00 PM by I Laureen Ryan ~ May 12, 2020 Item #3 Page 207 of 227 Date CC: tom.mallory@carlsbadca.gov; Sheila.Cobian@carlsbadca.gov; david.graham@carlsbadca.gov; elaiile.lukey@carlsbadca.gov; gary.barberio@carlsbadca.gov; scott.chadwick@carlsbadca.gov; kerry.jezisek@carlsbadca.gov Subject: Carlsbad Public Records Request Center Correspondence Request :: C001093-020620 Body: RE: Council Inquiry of February 06, 2020., Reference# C001093-020620. Dear Ms. Law-Edwards, The City of Carlsbad received a request from you on February 06, 2020. Your request was regarding the Jan. 29 town hall meeting. Response: We' re sorry you were dissatisfied with the Jan. 29 town hall meeting the city held with community members to discuss the subject of group homes. That.meeting was intended to hear and take note of the public concerns on the subject and to identify any potential ideas for how to address the issue of group homes. Staff members involved recall that most of the hour-and-a-half-long meeting was spent on gathering input on the topic from community members. At no point were any community members denied an opportunity to share their concerns, input and ideas. City staff gathered that material to assess the concerns of highest priority to those in attendance. This information will be shared with the · City Council and the public at a future City Council workshop meeting. · The discussion at that meeting revealed some concerns, which you have also expressed, that the ad-hoc subcommittee did not include residents, as the petition submitted by community members had requested. The City Council chose to appoint two of its members to this ad-hoc subcommittee. Carlsbad City Council sub-committees are just that, sub-committees usually comprised of two council members. Members of the public would not be sitting members of a city council sub-committee. The sub-committees can, of course, receive information from staff members and members of the community. But ultimately it is the members of the City Council who provide the direction for that sub- . committee, not community members or city staff. Regarding this sub-committee, the City Council approved a minute motion February 19, 2019, directing staff to return with an agenda item to create an Ad-Hoc City Council Subcommittee on Sober Living Homes "with limited duration, composed of residents and legal staff." Consideration of the Ad-Hoc Sober Living Home Subcommittee item was then scheduled for the July 23, 2019 agenda. Given that ad-hoc committees can be comprised solely of members of the City Council, that is, no staff and no members of the public, the staff report for this agenda item recommended that the subcommittee be comprised of two council members who would engage community stakeholders and work with staff to gather information for the committee's recommendations to the full City Council. This recommendation was contained in the resolution that was approved by the council at its July 23, 2019 meeting. That resolution officially established the Ad-Hoc Sober Living Subcommittee, and the council appointed council members Keith Blackburn and Barbara Hamilton as its two members. You asked why ii took as long as ii did for this sub-committee to hold the Jan. 29 public meeting. Less than two months after the subcommittee was formed, subcommittee member Hamilton resigned from the City Council. Around this same time, a key staff member who oversaw this issue retired from city service. These factors delayed the launch of this project. In a separate inquiry, you requested that the City of Carlsbad conduct a criminal investigation into sober living homes in residential neighborhoods in Carlsbad, following the model of a similar investigation that was initiated in Orange County. It would be up to law enforcement agencies to determine whether to open such a criminal investigation. If you have any evidence of criminal activity in such enterprises, we ask that you please share it with the Carlsbad Police Department, the San Diego County District Attorney's Office, the California Attorney General' s Office or, in cases of insurance fraud, the California Department of Insurance. Your concerns have been shared with the City Council, who will also get a copy of your inquiry and this response. For your reference, here is some additional background on the topic, which was provided at the January 29, 2020, meeting: The City of Carlsbad has limited authority to impose and enforce restrictive regulations on group homes. California law explicitly protects unlicensed group homes, such as sober living and recovery homes operating as a household unit as well as licensed group homes · serving six or fewer residents. Other laws provide protection for group homes, regardless of their size, if they serve certain people in certain protected classes. These laws prohibit discrimination based upon disability, familial status, source of income, race, low income and many other factors. In effect, these laws prohibit targeted, restrictive regulations on group homes serving these protected classes, no matter how many people live in the home or whether a state license is required. Such laws include the Federal Fair Housing Act (42 U.S.C. Section 36~the California Fair Employment and Housing Act. • By law, everyone has the right to choose where to live without dIscnminatIon, including 1ndIvIduals with dIsabIhtIes. lndNJdual recovering from drug or alcohol addiction are defined as disabled under the Fair Housing Act. It may also be a violation of the Fair Housing Act to: • Prohibit or restrict group homes based on the belief that the residents will be members of a protected class, such as recovering substance-abuse addicts. May 12, 2020 Item #3 Page 209 of 227 Contact Request: Dear Kerry, City of Carlsbad Staff, Mayor and City Council: I attended the Group Homes Public Meeting that was held Wednesday, January 29 from 5:30 -7:30 pm. It was an interesting meeting to discuss some differences between Licensed and Unlicensed Group Living Arrangements. Mostly this meeting discussed how "Group Recovery Homes" are designed by a property owner to provide "group living a~rangements for people who are attempting to recover from a drug and /or alcohol addictions". I am grateful for the opportunity to explore this challenge to the quality of life created by founders of the City of Carlsbad and us. Yes, It is an opportunity to voice concerns for this situation and to participate in the process of dialogue to build awareness, compassion and solutions. At the meeting I voiced the concern of Compatibility with the surrounding neighborhood. I have personal experience of working with neighbors and the City of Carlsbad to secure a property to provide education to children aged 5-12 years. The facility was staffed with professionals with appropriate qualifications and the site was prepared. with drives for emergency vehicles, fire sprinklers, alarms, ADA requirements for entrance, egress and bathrooms. Several times architects, engineers, consultants and planners presented to the City for review to assure that there would be a quality of life for the children receiving education and the neighboring properties. Traffic engineers and lighting experts were called upon to present. All of these experts were compensated to guarantee the property would be used for the greater good, as well as a location to create a livelihood for myself and staff. It is clear that there are those who wish to create an income by providing space for persons whose families or loved ones have experienced addictions. It is a commendable pursuit, if the intention is to uplift the people in need and community. At the meeting, several speakers including a former First Responder, 1lffani Czapinksi, detailed descriptions of group homes that were dreadful and shameful to the point that the home subjected the 'person in recovery' to abhorrent and abusive living conditions. From the City of Carlsbad Council and Staff, citizens aqd property owners have heard that there are laws and protections for the landlord of the Group Home to carry on with business as they see fit ,abiding to expectations of occupancy of any household, the definition of which is that the occupants apparently eat meals 'together'. Also, the Uniform Housing Code, was mentioned as one method to assure standards. We understand that Americans have Constitutional Rights of 'life, liberty and pursuit of happiness' which includes families who have single family residences in a stable neighborhood. However, most of what the City of Carlsbad Council and Staff have presented and showcased were Codes , Ordinances and Laws which are in place to protect Group Homes for Drug and Alcohol Addiction, several of which have been a threat to peace, safety and well-being in residential neighborhoods. As paid experts, legal counsel and representatives of the entire population in Carlsbad, it is imperative that professional guidance be utilized to protect the residents in our neighborhoods. Council, the legal team and Staff must use their best skills, insight, talents. and wisdom to maintain and protect families in grounded neighborhoods. On Pine Avenue, there is a project at the Planning Department which is being built with the intention of being For-Profit Group Home. The property at 1284 Pine has been placed, I believe, in an LLC and has had a long history of building "out of character and compatibility" with the neighborhood. My objection to having a Group Home installed on this site is: safety of elderly who regularly walk for exercise on the street; youth who bike and skateboard; families with children who regularly walk past the property going to school, Holiday Park, Krueger House, either Learning Center or Cole Library, the athletic fields at Pine Park and the Scout House. Our neighborhood is unique for the established urban forest. The owner at 1284 has left the property bare· surrounded by plastic for many years, which shows no regard for aesthetic of this neighborhood and the values of its Carlsbad residents. The original Owner is a non-Carlsbad resident who has deliberately constructed multi-family structures in this designated R-! single-family neighborhood and has never had a town meeting to explore how to cooperate with concerned residents. Due to concerns of the residents, the Building, Engineering and Planning Departments have been involved to modify, yet the arrangement persists as apartments for non-related persons. Hence accountability is a major issue nioving forward. There are other locations to put in apartments with suitable lighting, ADA enhancements for Group Home and lighting. Basically, this developer purchased land for a single-family house with perhaps attached or detached second dwelling unit, yet manipulating the City of Carlsbad to have his way trying every angle to gain huge profits. First he attempted Vacation Rentals and now Group Homes: not to enhance the community, but exploiting the situation for his ciwn profit. Addition.ally, many locations or establishments nearby are available for legal purchasrmo.·I and lodging available on Pio Pico and near the freeway off Carlsbad Village Drive. In for this location it must be maintained that the owner not build specifically for a Gro r a Vacation Rental. Surely the City has some discretion when permitting for new canst at does not violate the federal Fair Housing Act or Health and Safety Codes. Hopefully you can support this point of view and assist us, as the residents of Pine Avenue have been living and working in Olde Carlsbad for generations. We request your conscientious support to maintain safety and decency for all the generations present on this street. Cumulative effect is my third major concern when allowing permits to build Group Homes in a May 12, 2020 Item #3 Page 216 of 227 Please read into the record. May 12, 2020 RE: Recovery-Based Group Homes Good Afternoon Mayor Hall, Council Members and Staff, All Receive -Agenda Item # _3 For the Information of the: ~IT! COUNCIL Date~ CA v cc / CM __LACM_. CM (3}L The report submitted by Jeff Murphy regarding Recovery-Based Group Homes is not only inclusive and thorough, but encyclopedic in the challenges and restrictions any municipality faces in addressing the issue. It is truly commendable. Despite the legal labyrinth the report clearly exposes, immediate and viable resources are required to address the real and growing concerns by the residents. May I suggest the following for your consideration: 1. Substance abuse is a symptom, not the problem . The underlying issues for those who struggle with ongoing addiction, are quite often the same as those who are homeless .. The city has wisely created a team to address the homeless issue in our city -including Holly Nelson and Sgt. Gary Marshall. Would it not be sensible to utilize their services to act as the community's first contact with problems that arise from these homes? This would utilize an existing and timely resource for concerned residents, and would centralize any recording of incidents that might occur. ( I recently called on Sgt. Marshall to assist a homeless young woman in need. Not only did he already know the young woman, but made direct contact within an hour or two ... , most impressive.) 2. Form a collaboration with the National Alliance of Recovery Residences (NARR), the Society of Addiction Recovery Residences (SOARR), and/or the California Consortium of Addiction Programs and Professionals (CCAPP). These organizations are formed to insure "sustaining accountability and certifiable standards" for residential recovery homes. It is my understanding that included in their services are : mediation to address community concerns, and home inspection as needed. The challenge is daunting, but practical and immediate resources are available. Please take action to provide the tangible support we need. Thank you, Martha Law-Edwards Hector Gomez From: Sent: To: Subject: Attachments: Thank you. Rosemary Eshelman Monday, May 11, 2020 4:03 PM City Clerk I wish to have my letter read at the council meeting Rosemary EshelmanMay 12.docx CAUTION: Do not open attachments or click on links unless you recognize the sender and know the content is safe. 1 All Receive -Agenda Item# 3 For the Information of the: CITY COUNCIL DateS PJtOc.AK cc )( CM K_ C )C_DCM (3)-K_ Rosemary Eshelman Carlsbad 92008 Good evening Mayor, Manager, Council and Staff, May 12, 2020 I would like to address the item on the agenda this evening relating to Sober Living Homes and in particular the one on Camino Del Sol Circle in Carlsbad which is the street I reside on. As you know I have been in touch with many of you over the years that this home has been in place. I have seen this home on my residential street go from all men to all women all under the guise of a regulated protected class of ADA group home. I have seen the flux of patients that this home provides for not knowing who is who in our neighborhood. I have witnessed police, ambulance and fire services many times only to be dismissed as the client seems to be ok to be transported by the group homes services themselves. I now understand that this home will be applying for a state license. I am not sure why now maybe there is a financial incentive to become licensed. My question to aU of you is if they become licensed what type of business requirements would be granted locally and what set of rules would they be expected to follow? As of right now do these clients actually get the help they need, is there any data that shows all of the previous clients and where they are today? I appreciate you adding this subject to the legislative team so that maybe something can be done in the future for local control. If we are able to get the state to understand that there needs to be monitoring of these homes and the clients that come and go . . I understand the reasoning behind having sober living homes and the transition back into society for many of the people transitioning. The thing I am asking is that we find a way to make it work for the quality of life for everyone involved. I like knowing I have a sense of community and connectedness. Thank you Rosemary Hector Gomez From: Sent: To: Subject: Good Afternoon, Chris Nicholson Monday, May 11, 2020 4:01 PM City Clerk Council Meeting Comments for May 12, 2020 3:00pm All Receive -Agenda Item# "3 For the Information of th;- COUNCIL Da CA ~CC ~ CM _ACM 2£ DCM (3)~ Below are comments regarding the sober house agenda item that I would like to have read at the meeting on May 12, 2020. Thank you. Good Afternoon, I am a Carlsbad resident and have a unique perspective of having a sober house in my neighborhood. I say unique because in my cul de sac of 9 homes, we have a sober house and a STVR so in my RESIDENTIAL neighborhood, 22% of the residential dwellings are being used for a COMMERCIAL purpose which is absurd. We have profiteers taking over our residential neighborhoods and jeopardizing the availability of rental housing for families to actually live in as members of the community. The City of Carlsbad owes a duty to it's citizens to not allow what has happened to me and my neighbors to occur anywhere else in this city. There is no sense of community being exercised by the transient population of either of these two houses and this negatively effects the safety in our neighborhoods. The sober house is utilizing a COMPLETELY disproportionate amount of emergency response resources and in one instance of an 11 day period in April 2020, during a worldwide pandemic, had 2 full 911 responses. I have witnessed firsthand during a previous forum the house operators hiding behind what they claim are ADA protections are dictating term to the City, not vice versa. This needs to change . I have just learned there is a pending application with California Health and Human Services for a "social rehabilitation facility" at 1110 Camino Del Sol Circle, 92008. I am not sure what the license would allow them to do above and beyond what they are doing now, but if this in ANY way expands their ability to even further commercialize this residential property, and I think I speak for all of my neighbors as well, I am vehemently against it. I have read the report to be presented this afternoon and have 2 questions. The ADA is to ensure that people with disabilities are not treated differently than others so regulations cannot single them out. An excerpt from the report states "State law does not view SLHs as a home-based business even though profit may be incurred by the owner/operator. Due to the constraints of state and federal law, cities cannot create or interpret existing business licensing regulations to apply to RGHs strictly on this basis." I could not find any state or federal cited to this effect in the report? Additionally if these houses are operating as STVRs (rentals of less than 30 days) why are they not subject to the rules and requirements than anyone else would be? I once again could not find any federal or state laws cited to that effect? It appears the city's intention is to remain on the sidelines until all of the other cities in California have exhausted all appeals before doing anything on the issue? That seems like it could take decades and the sober house operators will keep multiplying and exacerbating the lack of affordable housing availability, stressing our emergency services capabilities and doing it on the backs of the disabled. Ch ris Ni cholson 1 STATE OF CALIFORNIA --HEALTH AND WELFARE AGENCY DEPARTMENT OF SOCIAL SERVICES 744 P Street, Sacramento, CA 95814 (916) 657-2586 COSS MANUAL LETTER NO. CCL-98-06 PETE WILSON, Regulation Package #0696-27 TO: HOLDERS OF COMMUNITY CARE LICENSING MANUAL, TITLE 22, DIVISION 6, CHAPTER 2, SOCIAL REHABILITATION FACILITIES Regulation Package #0696-27 Effective 10/1/98 Sections 81065, 81065.5, 81065.6, 81068.2, and 81087 Assembly Bill (AB) 2835, Chapter 517, Statutes of 1996, required the Department to implement regulations to specify those medical services that may be provided in adult CCFs, under what circumstances they may be allowed, and the medical conditions that are not allowed in an adult CCF. Prior to this, there were no regulations to address incidental medical services. These regulations implement the following changes: 1) new sections are adopted to set forth the staffing requirements in Social Rehabilitation Facilities, 2) the needs and services plan section is amended to provide consistency throughout the regulations, and 3) language was relocated and amended to place subject matter in a more logical format for clarity and ease of use. These regulations were originally adopted on an emergency basis and became effective February 1, 1997. Since that time public hearings were held and changes were made to the regulations. This package represents the final regulations which became effective October 1, 1998. These regulations were considered at the Department's public hearings held on March 24 through 28, 1997. FILING INSTRUCTIONS Revisions to all manuals will now be shown in graphic screen. The attached pages are to be entered in your copy of the Manual of Policies and Procedures. The latest prior manual letter containing Community Care Licensing changes was Manual Letter No. CCL-98-05. The latest prior manual letter containing Social Rehabilitation Facilities changes was Manual Letter No. CCL-97-03. Please replace your entire manual with the attached pages. # Attachments RG Regulations SOCIAL REHABILITATION FACILITIES TABLE OF CONTENTS TITLE 22, DIVISION 6 CHAPTER 2 SOCIAL REHABILITATION FACILITIES Article 1. General Requirements and Definitions Section General . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . .. . . . . . . . . . . . . . . . . . . . . . 81000 Definitions............................................................................................................................................. 81001 Article 2. Licensing Posting of License.................................................................................................................................. 81009 Limitations on Capacity and Ambulatory Status................................................................................. 81010 Article 3. Applications Procedures Application for License......................................................................................................................... 81018 Plan of Operation ................................................................................................................................. 81022 Waivers and Exceptions........................................................................................................................ 81024 Repealed by Manual Letter No. CCL-91-42, effective 9/9/91............................................................ 81027 Repealed by Manual Letter No. CCL-91-42, effective 9/9/91............................................................ 81031 Article 4. Administrative Actions Revocation or Suspension of License................................................................................................... 81042 Article 5. Enforcement Provisions (Reserved) Serious Deficiencies (Reserved) ................................................ ........... ........... ............................. ......... 81051 CALIFORNIA-DSS-MANUAL-CCL MANUAL LETTER NO. CCL-91-42 Effective 9/9/91 SOCIAL REHABILITATION FACILITIES Regulations TABLE OF CONTENTS (Continued) Article 6. Continuing Requirements Section Basic Services......................................................................................................................................... 81060 Reporting Requirements ...... -..................... _............................................................................................ 81061 Administrator Qualifications and Duties ................................................................................. ,........... 81064 Program Director Qualifications and Duties....................................................................................... 81064.1 Personnel Requirements....................................................................................................................... 81065 Day Staff-Client Ratio ........................................................................................................................... 81065.5 Night Supervision................................................................................................................................. 81065.6 Personnel Records................................................................................................................................. 81066 Admission Agreements ..................................................................................................... -.................... 81068 Admission Procedure ............................................................................................................................ 81068.1 Needs and Services Plan........................................................................................................................ 81068.2 Modifications to Needs and Services Plan........................................................................................... 81068.3 Acceptance and Retention Limitations................................................................................................ 81068.4 Repealed by Manual Letter No. CCL-97-03, effective 2/1/97 ............................................................ 81068.5 Client Medical Assessments.................................................................................................................. 81069 Client Records .................................................................................................. :.................................... 81070 Personal Rights...................................................................................................................................... 81072 CALIFORNIADSS-MANUAL-CCL MANUAL LETTER NO. CCL-98-06 Effective 10/1/98 Regulations SOCIAL REHABILITATION FACILITIES TABLE OF CONTENTS (Continued) Section Health-Related Services......................................................................................................................... 81075 Food Service . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . . . . . . . . . . 810 7 6 Responsibility for Providing Care and Supervision............................................................................. 81078 Activities................................................................................................................................................ 81079 Resident Councils................................................................................................................................. 81080 Article 7. Physical Environment Buildings and Grounds......................................................................................................................... 81087 Outdoor Activity Space......................................................................................................................... 8108 7. 2 Indoor Activity Space............................................................................................................................ 81087.3 Fixtures, Furniture, Equipment, and Supplies..................................................................................... 81088 CALIFORNIA-DSS-MANUALCCL MANUAL LETTER NO. CCL98-06 Effective 10/1/98 SOCIAL REHABILITATION FACILITIES This Users' Manual is issued as an operational tool. This Manual contains: (a) Regulations adopted by the Department of Social Services (DSS) for the governance of its agents, licensees, and/ or beneficiaries (b) Regulations adopted by other State Departments affecting DSS programs (c) Statutes from appropriate Codes which govern DSS programs (d) Court decisions and (e) Operational standards by which DSS staff will evaluate performance within DSS programs Regulations of DSS are printed in gothic type as in this sentence. Handbook material, which includes reprinted statutory material, other department's regulations and examples, is separated from the regulations by double lines and the phrases "HANDBOOK BEGINS HERE", "HANDBOOK CONTINUES", and "HANDBOOK ENDS HERE" in bold print. In addition, please note that as a result of the changes to a new computer system revised language in this manual letter and subsequent community care licensing manual letters will now be identified by graphic screen. Questions relative to this Users' Manual should be directed to your usual program policy office. CALIFORNIA-DSS-MANUALCCL MANUAL LETTER NO. CCL97-03 Effective 2/1/97 Page 4 Regulations 81000 SOCIAL REHABILITATION FACILITIES CHAPTER 2. SOCIAL REHABILITATION FACILITIES Article 1. GENERAL REQUIREMENTS AND DEFINITIONS GENERAL 81001 (Cont.) 81000 (a) Social Rehabilitation Facilities, as defined in Section 8000 ls.Q), shall be governed by the provisions specified in this chapter and in Chapter 1, General Licensing Requirements. (b) In addition to (a) above, Social Rehabilitation Facilities shall be governed by those provisions specified in Title 9, Subchapter 3, Article 3.5, Sections 531 through 535 of the California Code of Regulations. (c) California Code of Regulations Title 22, Division 6, Chapter 2 shall not be in effect until California Code of Regulations, Title 9, Subchapter 3, Article 3.5, Sections 531 through 535 are in effect. NOTE: Authority Cited: Section 1530, Health and Safety Code. Reference: Sections 5453 and 5458, Welfare and Institutions Code; Sections 1501, and 1502(a)(7), Health and Safety Code. 81001 DEFINITIONS 81001 In addition to Section 80001, the following shall apply: a. (Reserved) b. (Reserved) £,. (1) "Certified" means a Social Rehabilitation program that has been certified by the Department of Mental Health as meeting the standards established for that program. d. W "Direct-Care Staff" means those persons who deliver direct care and supervision to the clients. ~ W "Evict" or "eviction" means an involuntary relocation or removal of a client from the facility by the licensee. f. (Reserved) CALIFORNIA-DSS-MANUAL-CCL MANUAL LETTER NO. CCL-91-27 Effective 5/28/91 81001 (Cont.) SOCIAL REHABILITATION FACILITIES Regulations 81001 g. h. i. j. k. DEFINITIONS (Continued) (Reserved) (Reserved) (Reserved) (Reserved) (Reserved) 81001 L. (l) "Long-Term Residential Treatment Program" means a program as defined in Welfare and Institutions Code, Section 5458(b). HANDBOOK BEGINS HERE (A) Welfare and Institutions Code Section 5458(b) provides: "A long-term residential treatment program, with a full day treatment component as a part of the program, for persons who may require intensive support for as long as two or three years. TI1is program shall be designed to provide a rehabilitation program for the so-called "chronic" patient who needs long-term support in order to develop independent living skills. The clients in this program are to be those who would otherwise be living marginally in the community with little or no service support and who would return many times to the hospital for treatment. It also is to serve those who are referred to, and maintained in state hospitals or nursing homes because they require long-term, intensive support. This program is to go beyond maintenance to provide an active rehabilitation focus for these individuals. The services in this program shall include, but not limited to, intensive diagnostic work, including learning disability assessment, full day treatment program with an active prevocational and vocational component, special education services, outreach to develop linkages with the general social service system, and counseling to aid clients in developing the skills to move toward a less structured setting." HANDBOOK ENDS HERE CALIFORNIA-DSS-MANUALCCL MANUAL LETTER NO. CCL-91-27 Effective 5/28/91 Regulations SOCIAL REHABILITATION FACILITIES 81001 (Cont.) 81001 DEFINITIONS (Continued) 81001 m. (D "Mental Illness" means the mental condition of any adult who has been evaluated and referred for treatment for a mental disorder, as defined in Section 8000lm.(D. n. (D "Needs and Services Plan" means a time-limited, goal oriented, written plan which identifies the specific needs of an individual client, including the items specified in Section 81068.2, and delineates those services necessary to meet the client's needs. o. (D "On-Call Staff'' means a staff person who is not on duty on the facility premises, but who can be contacted by the facility if an additional staff person is needed, and can be at the facility and on duty within 30 minutes. 11,. (D "Program Director" means the person who has been designated the authority and responsibility by the licensee to oversee and carry out the overall treatment program and management of the facility. q. r. Q) "Program Type" means the type of program as defined in Sections 810011.(D, tlD. and ull that may be provided by a social rehabilitation facility. (Reserved) (Reserved) §..,, (D "Short-Term Crisis Residential Program" means a program type as defined in Welfare and Institutions Code, Section 5458(a). HANDBOOK BEGINS HERE (A) Welfare and Institutions Code Section 5458(a) provides: "A program for a short-term crisis residential alternative to hospitalization for individuals experiencing an acute episode or crisis requiring temporary removal from their home environment. The program shall be available for admissions 24 hours a day, seven days a week. The primary focus of this program shall be on reduction of the crisis, on stabilization, and on a diagnostic assessment of the person's existing support system, including recommendations for referrals upon discharge. HANDBOOK CONTINUES CALIFORNIA-DSS-MANUAL-CCL MANUAL LETTER NO. CCL-91-27 Effective 5/28/91 Page 7 I 81001 (Cont.) SOCIAL REHABILITATION FACILITIES Regulations 81001 DEFINITIONS (Continued) 81001 HANDBOOK CONTINUES The services in the program shall include, but not be limited to, provision for direct family work, connections to prevocational and vocational programs, and development of a support system, including income and treatment referrals. This program shall be designed for persons who would otherwise be referred to an inpatient unit, either locally or in the state hospital. This program shall place emphasis on stabilization and appropriate referral for further treatment or support services, or both." HANDBOOK ENDS HERE a) "Social Rehabilitation Facility" means any facility which provides 24-hour a day nonmedical care and supervision in a group setting to adults recovering from mental illness who temporarily need assistance, guidance, or counseling. t. W "Transitional Residential Program" means a program type as defined in the Welfar~ and Institutions Code, Section 5458(c). HANDBOOK BEGINS HERE (A) Welfare and Institutions Code Section 5458(c) provides: "A transitional residential program designed for persons who are able to take part in programs in the general community, but who, without the support of counseling, as well as the therapeutic community, would be at risk of returning to the hospital. This program may employ a variety of staffing patterns and is for persons who may be expected to move toward a more independent living setting within approximately three months to one year. The clients shall be expected to play a major role in the functioning of the household, and shall be encouraged to accept increasing levels of responsibility, both in the residential community, and in the community as a whole. Residents are required to be involved in daytime activities outside of the house which are relevant to their personal goals and conducive to their achieving more self-sufficiency. HANDBOOK CONTINUES CALIFORNIA-DSS-MANUALCCL MANUAL LETTER NO. CCL91-27 Effective 5/28/91 Page 8 Regulations SOCIAL REHABILITATION FACILITIES 81001 81001 DEFINITIONS (Continued) 81001 u. v. w. x. y. z. HANDBOOK CONTINUES The services in this program include, but are not limited to, counseling and ongoing assessment, development of support systems in the community, a day program which encourages interaction between clients and the community-at-large, and an activity program that encourages socialization and utilization. of general community resources." HANDBOOK ENDS HERE (l) "Treatment Program" means the services that are to be provided to the clients and are specific to the program type(s) certified by the Department of Mental Health. Q) "Treatment/Rehabilitation Plan" means a plan as defined in California Code of Regulations, Title 9, Subchapter 3, Article 3.5, Section 532.Z(c). HANDBOOK BEGINS HERE Refer to Section 81068. 2(a)(3) for the definition of Treatment/Rehabilitation Plan. HANDBOOK ENDS HERE (Reserved) (Reserved) (Reserved) (Reserved) (Reserved) (Reserved) NOTE: Authority Cited: Section 1530, Health and Safety Code. Reference: Sections 5453 and 5458, Welfare and Institutions Code; Sections 1501 and 1502(a)(7), Health and Safety Code. CALIFORNIA-DSS-MANUAL-CCL MANUAL LETTER NO. CCL-91-27 Effective 5/28/91 Regulations SOCIAL REHABILITATION FACILITIES 81010 Article 2. LICENSING 81009 POSTING OF LICENSE 81009 (a) The license shall be posted in a prominent, publicly accessible location in the facility. NOTE: Authority Cited: Section 1530, Health and Safety Code. Reference: Sections 5453 and 5458, Welfare and Institutions Code; Sections 1501 and 1502(a)(7), Health and Safety Code. 81010 LIMITATIONS ON CAPACITY AND AMBULATORY STATUS 81010 (a) In addition to Section 80010, the following shall apply: (b) The total capacity of all program types certified for one facility shall not exceed the total licensed capacity of the facility. (c) The total licensed capacity of a Social Rehabilitation Facility shall not exceed 15, except as provided in (d) below. (d) A facility licensed as an Adult Residential Facility prior to the effective date of these regulations shall be allowed to apply for a Social Rehabilitation Facility license, at the same location, with a capacity equal to or less than that for which the facility is currently licensed. (1) The licensing agency shall not deny an application solely because the requested capacity exceeds 15. NOTE: Authority Cited: Section 1530, Health and Safety Code. Reference: Sections 5453 and 5458, Welfare and Institutions Code; Sections 1501 and 1502(a)(7), Health and Safety Code. CALIFORNIA-DSS-MANUALCCL MANUAL LETTER NO. CCL91-09 Issued 2/2/91 Regulations SOCIAL REHABILITATION FACILITIES 81018 Article 3. APPLICATIONS PROCEDURES 8.1018 APPLICATION FOR LICENSE 81018 (a) In addition to Section 80018, the following shall apply: (b) Each applicant shall submit to the Department an itemized financial plan of operation. The financial plan of operation shall consist of a financial statement listing the applicant's assets and liabilities and an anticipated budget, including operating income and costs. (1) Liquid assets shall be available for start up funds sufficient to cover the first three months operating costs of the facility. (A) The value of an existing contract with a County Mental Health Agency shall be included . as a liquid asset. (c) The licensing agency shall have the authority to require written verification of the availability of the funds required in subsection (b)(l) above. (d) Prior to licensure each applicant shall submit to the licensing agency evidence of current program certification, which shall be signed by an authorized representative of the Department of Mental Health. (1) The certification document shall contain the following: (A) Facility name and address; (B) Program type(s); (C) Capacity for each program type; (D) Staff positions and qualifications; (E) Staffing pattern and ratio; and (F) Certification effective/ expiration date. (2) The facility shall notify the Department of Mental Health of any changes pertaining to Section 81018(d)(l). (A) The licensee shall keep written evidence on file at the facility that the Department of Mental Health has received the notification. NOTE: Authority Cited: Section 1530, Health and Safety Code. Reference: Sections 5453 and 5458, Welfare and Institutions Code; Sections 1501 and 1502(a)(7), Health and Safety Code. CALIFORNIA-DSS-MANUAL-CCL MANUAL LETTER NO. CCL-91-09 Issued 2/2/91 Page 11 81022 SOCIAL REHABILITATION FACILITIES Regulations 81022 PLAN OF OPERATION 81022 (a) In addition to Section 80022, the plan of operation shall include: (1) A statement that specifies the maximum length of treatment for the clients, which shall not exceed 18 months. (2) Written evidence of arrangements for any consultants and community resources which are to be utilized in the facility's plan of operation or to meet regulatory requirements. (3) Provisions for ensuring that food service requirements (Sections 80076 and 81076) and building and grounds requirements (Sections 80087 and 81087) shall continue to be met when the clients are unable or unwilling to perform these functions as a part of their treatment plans. (4) A written plan for the supervision and training of staff as required by Section 81065(f). (5) A written staff continuing education plan which meets the requirements of Section 81065(g). (6) A written plan for managing client psychiatric crises, including procedures for facility staff intervention and for securing assistance from local psychiatric emergency response agencies. (7) A current, valid program certification by the Department of Mental health. (A) The certification document shall contain the information required in Section 81018. (b) In addition to Subsection (a) above, any facility with a certified Long-Term Residential Treatment Program shall submit the following information to the licensing agency: (1) The treatment program which shall include those services specified in Section 810011(1). (c) In addition to Subsection (a) above, any facility with a certified ShortT erm Crisis Residential Program shall submit the following information to the licensing agency: CALIFORNIA-DSS-MANUAL-CCL MANUAL LETTER NO. CCL-91-27 Effective 5/28/91 Regulations SOCIAL REHABILITATION FACILITIES 81024 81022 PLAN OF OPERATION (Continued) 81022 (1) TI1.e treatment program which shall include those services specified in Section 81001s.(1). (d) In addition to Subsection (a) above, any facility with a certified Transitional Residential Program shall submit the following information to the licensing agency: (1) The treatment program which shall include those services specified in Section 81001t.(1). NOTE: Authority Cited: Section 1530, Health and Safety Code. Reference: Sections 5453 and 5458, Welfare and Institutions Code; Sections 1501 and 1502(a)(7), Health and Safety Code. 81024 . WAIVERS AND EXCEPTIONS 81024 (a) In addition to Section 80024, the following shall apply: (b) TI1.e Department shall notify the Department of Mental Health of all ,,;,,aiver and exception requests. (1) A copy of the approval or denial shall be sent to the Department of Mental Health. (c) Repealed by Manual Letter No. CCL-91-42, effective 9 /9 /91. (d) Repealed by Manual Letter No. CCL-91-42, effective 9/9/91. NOTE: Authority Cited: Section 1530, Health and Safety Code. Reference: Sections 5453 and 5458, Welfare and Institutions Code; Sections 1501 and 1502(a)(7), Health and Safety Code; and Section 153 7 6, Government Code. CALIFORNIA-PSS-MANUAL-CCL MANUAL LETTER NO. CCL-91-42 Effective 9/7/91 81027 SOCIAL REHABILITATION FACILITIES Regulations 81027 INITIAL APPLICATION REVIEW 81027 Repealed by Manual Letter No. CCL-91-42, effective 9/9/91. NOTE: Authority Cited: Section 1530, Health and Safety Code. Reference: Section 1520.3, Health and Safety Codei and Section 15376, Government Code. 81031 ISSUANCE OF LICENSE 81031 Repealed by Manual Letter No. CCL-91-42, effective 9/9/91. NOTE: Authority Cited: Section 1530, Health and Safety Code. Reference: Section 15376, Government Code. CALIFORNIA-DSS-MANUALCCL MANUAL LETTER NO. CCL91-42 Effective 9/7/91 Regulations 81042 SOCIAL REHABILITATION FACILITIES Article 4. ADMINISTRATIVE ACTIONS REVOCATION OR SUSPENSION OF LICENSE (a) In addition to Section 8004 2, the following shall apply: 81042 81042 (b) The Department shall initiate revocation action against the license of a Social Rehabilitation Facility when it is found that the program certification has been withdrawn by the Department of Mental Health. NOTE: Authority Cited: Section 1530, Health and Safety Code. Reference: Sections 5453 and 5458, Welfare and Institutions Code; Sections 1501 and 1502(a)(7), Health and Safety Code. CALIFORNIA-DSS-MANUAL-CCL MANUAL LETTER NO. CCL-91-09 Issued 2/2/91 Page 15 Regulations 81051 SOCIAL REHABILITATION FACILITIES Article 5. ENFORCEMENT PROVISIONS (Reserved) SERIOUS DEFICIENCIES (Reserved) 81051 HANDBOOK BEGINS HERE 81051 (a) In addition to Section 80051, the following are examples of regulations which, if not complied with, nearly always result in a serious deficiency. (1) Sections 81068.4(a)(l) and (2) and Section 81075(c) relating to persons with communicable diseases and persons requiring inpatient health care. HANDBOOK ENDS HERE NOTE: Authority Cited: Section 1530, Health and Safety Code. Reference: Sections 5453 and 5458, Welfare and Institutions Code; Section 1501 and 1502(a)(7), Health and Safety Code. CALIFORNIA-DSS-MANUAL-CCL MANUAL LETTER NO. CCL-91-09 Issued 2/2/91 Regulations SOCIAL REHABILITATION FACILITIES 81060 81060 Article 6. CONTINUING REQUIREMENTS BASIC SERVICES (a) For SSI/SSP recipients who are residents, the basic services shall be provided and/or made available at the basic rate with no additional charge to the resident. (1) This shall not preclude the acceptance by the facility of voluntaiy contributions from relatives or others on behalf of an SSI/SSP recipient. (A) HANDBOOK BEGINS HERE The Social Security Administration has interpreted Federal Regulations (20 CFR 416.1102, 416.1103, and 416.1145) to mean that any contribution given directly to the facility on behalf of an SSI/SSP recipient will not count as income (i.e., will not reduce the recipient's SSI/SSP check) if the payment is used for items other than food, clothing or shelter (e.g., care and supervision). HANDBOOK ENDS HERE (2) An extra charge to the resident shall be allowed for a private room if a double room is made available but the resident prefers a private.room, provided the arrangement is documented in the admissions agreement and the charge is limited to 10% of the Board and Room portion of the SSI/SSP grant. (3) An extra charge to the resident shall be allowed for provision of special food services or products beyond that specified in Section 80076(a)(2) and (a)(4) when the resident wishes to purchase the setvices and agrees to the extra charge in the admissions agreement. NOTE: Authority cited: Section 1530, Health and Safety Code. Reference: Sections 1501 and 1502(a)(7) and Section 12350, Welfare and Institutions Code. CALIFORNIA-DSS-MANUALCCL MANUAL LETTER NO. CCL96-04 Effective 4/19/96 81061 SOCIAL REHABILITATION FACILITIES Regulations 81061 REPORTING REQUIREMENTS 81061 (a) In addition to Section 80061, the following shall apply: (b) The licensee shall notify the licensing agency, in writing, within 10 working days of a change of administrator or program director. Such notification shall include the following: (1) Name, residence and mailing address of the new administrator/program director. (2) Date he/she assumed his/her position. (3) Description of his/her background and qualifications, including documentation of required education and related experience. NOTE: Authority Cited: Section 1530, Health and Safety Code. Reference: Sections 5453 and 5458, Welfare and Institutions Code; Sections 1501 and 1502(a)(7), Health and Safety Code. 81064 ADMINISTRATOR QUALIFICATIONS AND DUTIES 81064 (a) In addition to Section 80064, the following shall apply: (b) All Social Rehabilitation Facilities shall have an administrator. (c) The administrator shall have the following qualifications prior to employment: (1) One year of full-time work experience in a management or administrative position and, (2) Completion, with a passing grade, of 15 college or continuing education semester or equivalent quarter units, of which 9 units which shall be in administration and/ or management. (A) Three years of full-time work experience in a management or administrative position may be substituted to meet the requirement of (2) above. CALIFORNIA-DSS-MANUALCCL MANUAL LETTER NO. CCL-98-06 Effective 10/1/98 Regulations SOCIAL REHABILITATION FACILITIES 81064 81064 ADMINISTRATOR QUALIFICATIONS AND DUTIES (Continued) 81064 (d) The administrator of the facility shall be responsible for the following: (1) Communication with the licensee concerning the administrative operations of the facility. (2) Development of an administrative plan and procedures to define lines of responsibility, workloads, and staff supervision. (3) Recruitment, employment, and training of qualified staff, and termination of staff. (e) Any person designated as an administrator shall be required to complete at least 20-clock-hours of continuing education per year in areas relating to mental health and the care of the mentally ill, and/ or administration. (f) Persons employed as the administrator in an Adult Residential Facility serving clients who meet the definition of "mental illness" as contained in Section 81001 m. ( 1) as of the effective date of this section, shall not be required to meet the education/ experience requirements specified in (c) above. (g) If the administrator is also the program director, he/she shall also meet the requirements of the program director set forth in California Code of Regulations, Title 9, Subchapter 3, Article 3.5, Sections 532.6(f), (g), and (i). HANDBOOK BEGINS HERE (1) Refer to Section 81064. l(d)(l) for qualifications of a director. HANDBOOK ENDS HERE NOTE: Authority Cited: Section 1530, Health and Safety Code. Reference: Sections 5453 and 5458, Welfare and Institutions Code; Sections 1501 and 1502(;:i.)(7), Health and Safety Code. CALIFORNIA-DSS-MANUAL-CCL MANUAL LETTER NO. CCL-98-06 Effective 10/1/98 81064.1 SOCIAL REHABILITATION FACILITIES Regulations 81064.1 PROGRAM DIRECTOR QUALIFICATIONS AND DUTIES 81064.1 (a) All Social Rehabilitation Facilities shall have a program director. (b) The program director shall he on the premises the number of hours necessary to manage and administer the treatment program of the facility in compliance with California Code of Regulations, Title 9, Subchapter 3, Article 3.5, Sections 531 through 535 and Title 22, Division 6, Chapter 2, Sections 810011.(1), s.(1) and t.(1). (c) When the program director is temporarily absent from the facility, there shall be coverage by a substitute program director designated in writing by the licensee. (1) lftl1.e absence is for more than 14 consecutive calendar days, excluding emergency leave, sick leave or vacation of the program director, the designated substitute shall meet the qualifications of a program director set forth by the Department of Mental Health. (d) The program director shall meet the minimum qualifications set forth in California Code of Regulations, Title 9, Subchapter 3, Article 3.5, Sections 532.6(f), (g), and (i). HANDBOOK BEGINS HERE (1) Title 9, California Code of Regulations, Sections 532.6(f), (g), and (i) provide in part: The program director of a certified Short-Term Crisis Residential Treatment Program shall have a bachelor's degree in psychology, social work or any other major which includes at least 24 semester college units in one or more of the following subject areas: psychology, social work, sociology, behavioral sciences, psychiatric nursing, and two years of full-time work experience in a community program that serves clients who have a mental illness. Such experience must be in direct provision of services to clients, of which one year must be supervising direct care staff. Four years of experience, one of which must be supervising direct care staff, and graduation from high school or possession of a GED may be substituted for the education/ experience requirements. HANDBOOK CONTINUES CALIFORNIA-DSS-MANUAL-CCL MANUAL LETTER NO. CCL-98-06 Effective 10/1/98 Page 20 Regulations SOCIAL REHABILITATION FACILITIES 81064.1 (Cont.) 81064.1 PROGRAM DIRECTOR QUALIFICATIONS AND DUTIES (Continued) 81064.1 HANDBOOK CONTINUES The program director of a certified Transitional or Long-Term Residential Treatment Program shall have a bachelor's degree in psychology, social work or any other major which includes at least 24 semester college units in one or more of the following subject areas: psychology, social work, sociology, behavioral sciences, psychiatric nursing, and one year full-time work experience in a community program that serves clients who have a mental illness. Such experience must be in direct provision of services to clients, of which four months must be supervising direct care staff. Three years of experience of which six months must be supervising direct care staff and graduation from high school or possession of a GED may be substituted for the education/ experience requirements. Program directors of social rehabilitation programs as of the date that this section is adopted shall be considered as meeting all the requirements of this section until two (2) years after the effective date of this section, at which time the requirements of this section must be met in full. HANDBOOK ENDS HERE (e) The program director shall ensure the following: (1) Communication with the licensee concerning the operation of the facility. (2) Provision of the services identified in each client's individual needs and services plan or required by California Code of Regulations, Title 9, Subchapter 3, Article 3.5, Sections 531 through 535 or Title 22, Division 6, Chapters 1 and 2. (3) Arrangements for clients to attend available community programs, when clients have needs, identified in the needs and services plan, which cannot be met by the facility but can be met by community programs. (A) Such arrangements shall include, but not be limited to, arranging for transportation. (1) This requirement does not exempt the licensee from providing transportation when public transportation is not practical or when the client is unable to use public transit. CALIFORNIA-DSS-MANUALCCL MANUAL LETTER NO. CCL98-06 Effective 10/1/98 81064.1 (Cont.) SOCIAL REHABILITATION FACILITIES Regulations 81064.1 PROGRAM DIRECTOR QUALIFICATIONS AND DUTIES (Continued) 81064.1 (4) Arrangements for special provision of services to clients with disabilities including visual and auditory deficiencies. HANDBOOK BEGINS HERE (A) Such provisions may include additional staff, safety and emergency information printed in braille, and lights to alert the deaf to emergencies. HANDBOOK ENDS HERE (5) Development of an employee work schedule as required in Section 81066(b). (6) Provision of staff support to clients in the planning, preparing, and serving,of meals. (A) If clients are unable to plan, prepare, and serve meals, the program director shall initiate and carry out the program plan pursuant to Section 81022(a)(3) to ensure the requirements of Sections 8007 6 and 8107 6 are met. (7) Provision of staff support to clients in performing facility maintenance and/ or cleaning activities as designated in the client's treatment/rehabilitation plan. (A) If clients are unable to perform facility maintenance and/ or cleaning activities, the program director shall initiate and carry out the plan developed pursuant to Section 81022(a)(3) to ensure the requirements of Section 80087(a) are met. (f) Any person designated as a program director shall be required to complete at least 20-clock-hours of continuing education per year in areas relating to mental health and the care of the mentally ill, and/ or administration. ' (g) If the program director is also the administrator, he/she shall also meet the requirements of the administrator set forth in Section 81064(c). NOTE: Authority Cited: Section 1530, Health and Safety Code. Reference: Sections 5453 and 5458, Welfare and Institutions Code; Sections 1501 and 1502(a)(7), Health and Safety Code. CALIFORNIA-DSS-MANUAL-CCL MANUAL LETTER NO. CCL-98-06 Effectived 10/1/98 Regulations SOCIAL REHABILITATION FACILITIES 81065 (Cont.) 81065 PERSONNEL REQUIREMENTS 81065 (a) In addition to Section 80065, the following shall apply: (b) All direct care staff shall meet the minimum qualifications as set forth in California Code of Regulations, Title 9, Subchapter 3, Article 3.5, Sections 532.6(h) and (i). HANDBOOK BEGINS HERE (1) Title 9, California Code of Regulations, Sections 532.6(h) and (i) provide: (h) "All direct care staff shall have graduated from high school or possess a GED and have a minimum of one (1) year of full-time experience, or its part-time equivalent, working in a program serving persons with mental disabilities. Such experience shall be in direct services to clients. If the employee does not have the required experience, the program shall document a specific plan of supervision and in-service training for the employee which will guarantee the ongoing qualification of the employee to perform the job. The plan should include but not be limited to the frequency and number of hours of training, the subjects to be covered, and a description of the supervision to be provided." (i) "Program directors and all direct care staff of social rehabilitation programs as of the date that this section is adopted shall be considered as meeting all the requirements of this section until two (2) years after the effective date of this section, at which time the requirements of this section must be met in full." HANDBOOK ENDS HERE W The licensee shall hire support staff as necessary to perform office work, and maintenance of buildings, equipment, and grounds. (d) The licensee shall ensure that a direct service to a client shall be provided by a person with the I appropriate license or certificate when required by law. W The licensee shall develop, maintain, and implement a written plan for the orientation, continuing education, on-the-job training, supervision, and evaluation of all direct care staff. (£) All direct care staff shall receive a minimum of 20-clock-hours of continuing education per year, which shall provide the staff with the knowledge and skills as appropriate to their job assignment. CALIFORNIA-DSS-MANUAL-CCL MANUAL LETTER NO. CCL-98-06 Effective 10/1/98 Page 23 81065 (Cont.) SOCIAL REHABILITATION FACILITIES Regulations 81065 PERSONNEL REQUIREMENTS (Continued) 81065 (1) The continuing education may include such topics as the following: (A) Basic knowledge of mental disorders; (B) Counseling skills, including individual, group, vocational and job counseling skills; (C) Crisis management; (D) Development and updating of needs and services plan; (E) Discharge planning; (F) Medications, including possible side effects and signs of overmedicating; (G) Knowledge of community services and resources; and (H) Principles of good nutrition, proper food preparation and storage, and menu planning. (2) The licensee shall document the number of hours of continuing education completed each year by direct care staff. NOTE: Authority Cited: Section 1530, Health and Safety Code. Reference: Sections 5453 and 5458, Welfare and Institutions Code; Sections 1501, 1502(a)(7), 1507 and 1562 Health and Safety Code. 81065.5 DAY STAFF-CLIENT RATIO 81065.5 (a) A licensee shall ensure that sufficient direct care staff are at the facility whenever clients are present. (1) TI1ere shall be at least one direct care staff person on duty, on the premises, any time clients are in the fac ility. (A) Any time there is only one direct care staff person on duty on the premises, another direct care staff person shall be on call and capable of responding within 30 minutes. (2) Short Term Crisis Residential Programs sh all have at least two direct care staff persons on duty, on the premises , any time clients are in the facility. CALIFORNIADSS-MANUAL-CCL MANUAL LETTER NO. CCL-98-06 Effective 10/1/98 Regulations SOCIAL REHABILITATION FACILITIES 81065.6 81065.5 DAY STAFF-CLIENT RATIO 81065.5 (Continued) (3) All facilities shall employ staff and have staffing patterns and ratios as indicated on the facility certification document. (A) The facility shall notifv the Department of Mental Health when staff qualifications, positions or staffing patterns change. (b) Whenever a client who relies upon others to perform all activities of daily living is present, the following minimum staffing requirements shall be met: (1) For Regional Center clients, staffing shall be maintained as specified by the Regional Center, but no less than one direct care staff to three such clients. (2) For all other clients. there shall be a staff-client ratio of no less than one direct care staff to three such clients. NOTE: Authority cited: Section 1530, Health and Safety Code. Reference: Sections 5453 and 5458, Welfare and Institutions Code, and Sections 1501, 1502(a)(7), 1507 and 1562, Health and Safety Code. 81065.6 NIGHT SUPERVISION 81065.6 I (a) In addition to Section 81065.5(a), the following shall apply. (b) In facilities providin!2' care to seven or more clients who rely upon others to perform all activities of daily living, there shall be at least one person on duty, on the premises and awake. (1) For every additional 14 such clients. there shall be one additional person on duty. on the .premises and a~ake. (c) In facilities providing care to Regional Center clients who rely upon others to perform all activities of daily living. night supervision shall be maintained as required by the Regional Center, but no less than specified in (b) and (b)(l) above. NOTE: Authority cited: Section 1530. Health and Safety Code. Reference: Sections 5453 and 5458, Welfare and Institutions Code. and Sections 1501, 1502(a)(7). 1507 and 1562. Health and Safety Code. CALIFORNIA-DSS-MANUAL-CCL MANUAL LETTER NO. CCL-98-06 Effective 10/1/98 81066 SOCIAL REHABILITATION FACILITIES Regulations 81066 PERSONNEL RECORDS 81066 (a) In addition to Section 80066, the following shall apply: (b) An employee work schedule shall be developed at least monthly, shall be displayed conveniently for employee reference, and shall contain the following information for each employee: (1) Name; (2) Job title; (3) Dates, days and hours of work; and (4) Days off. (c) Staff training as required by Section 81065(g) shall be documented. Documentation shall include the subject of tl1e training, who conducted the training, and the date(s) of the training. NOTE: Authority Cited: Section 1530, Health and Safety Code. Reference: Sections 5453 and 5458, Welfare and Institutions Code; Sections 1501 and 1502(a)(7), Health and Safety Code. 81068 ADMISSION AGREEMENTS 81068 (a) In addition to Section 80068, the following shall apply: (b) The admission agreement shall specify the following: (1) Facility policies which are intended to ensure that no client, in the exercise of his/her personal rights, infringes upon the personal rights of any otl1er client. (2) Those actions, circumstances, or conditions which may result in the client's eviction from the facility as specified in Section 81068.5. (3) An indication whether the client is either receiving or eligible for Short/Doyle payments pursuant to Welfare and Institutions Code Sections 5700 through 5750. · NOTE: Authority Cited: Section 1530, Health and Safety Code. Reference: Sections 5453, 5458, and 5713.1, Welfare and Institutions Code; Sections 1501 and 1507(a)(7), Health and Safety Code. CALIFORNIA-DSS-MANUAL-CCL MANUAL LETTER NO. CCL-98-06 Effective 10/1/98 Regulations SOCIAL REHABILITATION FACILITIES 81068.1 81068.1 ADMISSION PROCEDURE 81068.1 (a) The licensee shall develop, maintain, and implement admission procedures which shall meet the requirements specified in this section. (b) No client shall be admitted prior to a determination of the facility's ability to meet the needs of the client, which shall include an appraisal of his/her individual service needs as specified in Section 81068.2. (c) Prior to accepting a client for treatment, the program director or an experienced staff person who has received training in developing a needs and services plan shall: ' (1) Interview the prospective client, and his/her authorized representative, if any. (A) The interview shall provide the prospective client with information about the facility, including the information contained in the Admission Agreement and any additional policies and procedures, house rules, and activities. (2) Obtain and review documents as specified in Sections 81068.2(a)(l) and (2). (A) This information may not be readily available for clients accepted in a short-term residential crisis program. If this information is not available at the time of admission, this fact must be documented in the client's file. This information must be obtained within three days of admission to the program. (d) The facility shall obtain the medical assessment, performed as specified in Section 80069. HANDBOOK BEGINS HERE (1) See Section 81069 for requirement exceptions. HANDBOOK ENDS HERE (e) If terms of admission are mutually agreeable, the facility shall obtain the signature of the client, or his/her authorized representative, if any, on the Admission Agreement. NOTE: Authority Cited: Section 1530, Health and Safety Code. Reference: Sections 5453 and 5458, Welfare and Institutions Code; Sections 1501 and 1502(a)(7), Health and Safety Code. CALIFORNIA-DSS-MANUAL-CCL MANUAL LETTER NO. CCL-98-06 Effective 10/1/98 Page 27 81068.2 SOCIAL REHABILITATION FACILITIES Regulations 81068.2 NEEDS AND SERVICES PLAN 81068.2 (a) Prior to admission, the licensee shall determine whether the facility's program can meet the prospective client's service needs. (b) If the client is to be admitted, then prior to admission, the licensee shall complete a written Needs and .Services f lan, that must include: (1) A written assessment as required in California Code of Regulations, Title 9, Subchapter 3, Article 3.5, Section 532.2(b). HANDBOOK BEGINS HERE (A) Title 9, California Code of Regulations, Section 532.2(b) provides: "There shall be a written assessment of each client on admission which includes at least: (1) Health and psychiatric histories; (2) Psycho-social skills; (3} Social support skills; (4) Current psychological, educational, vocational, and other functional limitations; (5) Medical needs, as reported; and (6) Meal planning, shopping, and budgeting skills." HANDBOOK ENDS HERE (2) Any needs appraisal or individual program plan completed by a placement agency or consultant. (3) A written treatment/rehabilitation plan as required by California Code of Regulations, Title 9, Subchapter 3, Article 3.5, Section 532.2(c). CALIFORNIA-DSS-MANUAL-CCL MANUAL LETTER NO. CCL-98-06 Effective 10/1/98 Regulations SOCIAL REHABILITATION FACILITIES 81068.2 NEEDS AND SERVICES PLAN (Continued) HANDBOOK BEGINS HERE (A) Title 9, California Code of Regulations, Section 532.2(c) provides: 81068.2 81068.2 The program and client shall together develop a written treatment/rehabilitation plan specifying goals and objectives and the staff and client's responsibilities for their achievement. Clients shall be involved in an ongoing review of progress towards reaching established goals and be involved in the planning and evaluation of tl1eir treatment goals. The plan shall contain at least the following elements: (1) Statement of specific treatment needs and goals. (2) Description of specific services to address identified treatment needs. (3) Documentation of reviews by staff and client of the treatment/rehabilitation plan adhering to the following schedule: (A) Short-Term Crisis Residential Treatment Program: at least weekly. (B) Transitional Residential Treatment Program: at least once every 30 days. (C) Long-Term Residential Treatment Program: at least once every 60 days. (4) Anticipated length of stay needed to accomplish identified goals, and methods to evaluate the achievement of these goals. HANDBOOK ENDS HERE (4) If the client has a restricted health condition, as specified in Section 80092, a written Restricted Health C ondition Care Plan as specified in Section 80092. 2. NOTE: Authority Cited: Section 1530, Health and Safety Code. Reference: Sections 5453 and 5458, Welfare and Institutions Code; Sections 1501, 1502(a)(7), and 1507, Health and Safety Code. CALIFORNIA-DSS-MANUAL-CCL MANUAL LETTER NO. CCL-98-06 Effective 10/1/98 Page 29 81068.3 SOCIAL REHABILITATION FACILITIES Regulations 81068.3 MODIFICATIONS TO NEEDS AND SERVICES PLAN 81068.3 (a) The program director or an experienced staff person who has been trained in the development and modification of a needs and services plan shall, with the client's participation, update the needs and services plan specified in Section 81068.2. (b) The program director or staff person specified in (a) above shall, with the client's participation, review the treatment/rehabilitation plan according to the schedule set forth in California Code of Regulations, Title 9, Subchapter 3, Article 3.5, Section 532.2(c)(3). HANDBOOK BEGINS HERE (1) California Code of Regulations, Title 9, Subchapter 3, Article 3.5, Section 532.2(c)(3) provides in part: Reviews by staff and client of the treatment/ rehabilitation plan adhering to the following schedule: Short-Term Crisis Residential Treatment Program: at least weekly. Transitional Residential Treatment Program: at least once every 30 days. Long-Term Residential Treatment Program: at least once every 60 days. HANDBOOK ENDS HERE (c) The program director shall ensure that the updated needs and services plan includes documentation of all changes in the client's physical, mental, emotional, and social functioning. (1) The program director shall ensure that all changes are considered when modifying the needs and services plan. (2) The program director shall ensure that all changes are brought to the attention of the client's physician, mental health professional, or authorized representative, if any. (d) If modifications to the plan identify an individual client need which is not being met by the program of services, the following requirements shall apply: (1) The program director shall secure consultation from a dietitian, physician, social worker, psychologist, or other consultant as necessary to assist in determining _if such needs can be met by the facility within the facility's program of services. CALIFORNIA-DSS-MANUAL-CCL MANUAL LETTER NO. CCL-98-06 Effective 10/1/98 Regulations SOCIAL REHABILITATION FACILITIES 81068.3 MODIFICATIONS TO NEEDS AND SERVICES PLAN (Continued) 81068.4 81068.3 (2) If it is determined that the needs can be met, the program director, in conjunction with the consultant, shall develop and maintain in the facility a written services plan which shall include the following: (A) Objectives, within a time frame, which relate to the client's problems and/ or needs; (B) Plans for meeting the objectives; (C) Identification of any individuals or agencies responsible for implementing and evaluating each part of the plan; and (D) Method of evaluating progress. (3) If it is determined that the needs cannot be met, the licensee shall bring this fact to the attention of the client and/ or his/her authorized representative or mental health professional, if any, and request that the client relocate. (A) If the client refuses to relocate, the licensee shall be permitted to evict the client in accordance with Section 81068.5. NOTE: Authority Cited: Section 1530, Health and Safety Code. Reference: Sections 5453 and 5458, Welfare and Institutions Code; Sections 1501 and 1502(a)(7), Health and Safety Code. 81068.4 ACCEPTANCE AND RETENTION LIMITATIONS 81068.4 (a) The licensee shall not accept or retain the following: (1) Persons with prohibited health conditions specified in Section 80091. (2) Persons who require inpatient care in a health facility. (3) Persons who have needs which are in conflict with other clients or the program of services offered. (4) Persons who require more care and supervision than is provided by the facility. (b) A client's length of stay shall not exceed 18 months. NOTE: Authority Cited: Section 1530, Health and Safety Code. Reference: Sections 5453 and 5458, Welfare and Institutions Code; Sections 1501, 1507, and 1502(a)(7), Health and Safety Code. CALIFORNIA-DSS-MANUAL-CCL MANUAL LETTER NO. CCL-98-06 Effective 10/1/98 Page 31 81068.5 SOCIAL REHABILITATION FACILITIES Regulations 81068.5 EVICTION PROCEDURES 81068.5 Repealed by Manual Letter No. CCL-97-03, effective 2/1/97. 81069 CLIENTMEDICALASSESSMENTS 81069 (a) Notwithstanding Section 80069(a), the licensee must obtain a medical assessment prior to or within 3 days following acceptance of a client into a short-term crisis program. (1) Assessments completed by a referring medical or mental health agency may be accepted by the facility; however, the licensee must ensure all information required in Section 80069(b) is either contained in the assessment or is obtained by the licensee within three days following acceptance of a client. NOTE: Authority Cited: Section 1530, Health and Safety Code. Reference: Sections 5453 and 5458, Welfare and Institutions Code; Sections 1501 and 1502(a)(7), Health and Safety Code. 81070 CLIENT RECORDS 81070 (a) In addition to Section 80070, the following shall apply. (b) Each client record shall contain the following information: (1) Last known address. (2) Religious preference, and name and address of clergyman or religious advisor, if any. (3) Needs and services plan and any modifications thereto, as specified in Sections 81068.2 and 81068.3. NOTE: Authority Cited: Section 1530, Health and Safety Code. Reference: Sections 5453 and 5458, Welfare and Institutions Code; Sections 1501 and 1502(a)(7), Health and Safety Code. CALIFORNIA-DSS-MANUAL-CCL MANUAL LETTER NO. CCL-98-06 Effective 10/1/98 Regulations SOCIAL REHABILITATION FACILITIES 81072 81072 PERSONAL RIGHTS 81072 (a) In addition to Section 80072, the following shall apply: (b) The licensee shall insure that each client is accorded the following personal rights: (1) To visit the facility with his/her relatives, mental health professional or authorized representative prior to admission. (2) To have the facility inform his/her relative, mental health professional, or authorized representative, if any, of activities related to his/her care and supervision, including but not limited to no~ification of any modifications to the needs and services plan. (A) This may only be done with prior written permission from the client. (3) To have communications to the facility from his/her relatives, mental health professional, or authorized representative answered promptly and completely. (4) To have visitors, including advocacy representatives, visit privately during waking hours, provided that such visitations do not infringe upon the rights of other clients. (5) To wear his/her own clothes. (6) To possess and use his/her own personal items, including his/her own toilet articles. (7) To possess and control his/her own cash resources. (8) To have access to individual storage space for his/her private use. (9) To have access to telephones in order to make and receive confidential calls, provided that such calls do not infringe upon the rights of other clients and do not restrict availability of the telephone during emergencies. (A) The licensee shall be permitted to require reimbursement from the client or his/her authorized representative for long distance calls. (B) The licensee shall be permitted to prohibit the making of long distance calls upon documentation that requested reimbursement for previous calls has not been received. (10) To mail and receive unopened correspondence. (11) To receive assistance in exercising the right to vote. (12) To move from the facility. NOTE: Authority Cited: Section 1530, Health and Safety Code. Reference: Sections 5453 and 5458, Welfare and Institutions Code; Sections 1501 and 1502(a)(7), Healtl1 and Safety Code. CALIFORNIA-DSS-MANUAL-CCL MANUAL LETTER NO. CCL-98-06 Effective 10/1/98 81075 SOCIAL REHABILITATION FACILITIES Regulations 81075 HEALTH-REIATED SERVICES 81075 (a) In addition to Section 80075, the following shall apply: (b) The facility administrator shall ensure the development and implementation of a plan which insures assistance is provided to the clients in meeting their medical and dental needs. (c) The facility administrator shall ensure the isolation of a client suspected of having a contagious or infectious disease and shall ensure that a physician is contacted to determine suitability of the client's retention in the facility. NOTE: Authority Cited: Section 1530, Health and Safety Code. Reference: Sections 5453 and 5458, Welfare and Institutions Code; Sections 1501 and 1502(a)(7), Health and Safety Code. 81076 FOOD SERVICE 81076 (a) In addition to Section 80076, the following shall apply: (b) The following requirements shall be met when serving food: (1) Meals served on the premises shall be served in one or more dining rooms or similar areas in which the furniture, fixtures, and equipment necessary for meal service are provided. (A) Such dining areas shall be located near the kitchen so that food may be served quickly and easily. (2) Tray service shall be provided in case of emergency need. (c) The licensee shall meet the following storage requirements: (1) Supplies of staple nonperishable foods for a minimum of one week and fresh perishable foods for . a minimum of two days shall be maintained on the premises. CALIFORNlA-DSS-MANUAL-CCL MANUAL LETTER NO. CCL-98-06 Effective 10/1/98 Regulations SOCIAL REHABILITATION FACILITIES 81079 (Cont.) 81076 FOOD SERVICE (Continued) 81076 (2) Freezers shall be large enough to accommodate required perishables and shall be maintained at a temperature of zero degrees F ( -1 7. 7 degrees C). (3) Refrigerators shall be large enough to accommodate required perishables and shall maintain a maximum temperature of 45 degrees F (7 .2 degrees C). (4) Freezers and refrigerators shall be kept clean, and food storage shall permit the air circulation necessary to maintain the temperature specified in (2) and (3) above. NOTE: Authority Cited: Section 1530, Health and Safety Code. Reference: Sections 5453 and 5458, Welfare and Institutions Code; Sections 1501 and 1502(a)(7), Health and Safety Code. 81078 RESPONSIBILITY FOR PROVIDING CARE AND SUPERVISION (a) Notwithstanding Section 80078, the following shall apply: 81078 (1) The licensee shall arrange for and/or provide those services identified in the client's needs and services plan as necessary to meet the client's needs. NOTE: Authority Cited: Section 1530, Health and Safety Code. Reference: Sections 5453 and 5458, Welfare and Institutions Code; Sections 1501 and 1502(a)(7), Health and Safety Code. 81079 ACTIVITIES 81079 (a) The licensee shall ensure that planned recreational activities, which include the following, are provided for the clients: (1) Activities that require group interaction. (2) Physical activities including but not limited to games, sports, and exercises. (b) Each client who is capable shall be given the opportunity to participate in the planning, preparation, conduct, clean-up and critique of the activities. CALIFORNIA-DSS-MANUAL-CCL MANUAL LETTER NO. CCL-98-06 Effective 10/1/98 81079 (Cont.) SOCIAL REHABILITATION FACILITIES Regulations 81079 ACTIVITIES (Continued) 81079 (c) The licensee shall ensure that clients are encouraged to participate in and shall make available community activities including but not limited to the following: (1) Worship services and activities of the client's choice. (2) Community service activities. (3) Community events including but not limited to concerts, tours, dances, plays and celebrations of special events. (4) Self-help organizations. (5) Senior citizen groups, sports leagues, and service clubs. (d) Notices of planned activities shall be posted in a central location readily accessible to clients, relatives, and representatives of placement and referral agencies. (e) Activities shall be encouraged through provision of the space, equipment, and supplies specified in Sections 81087.2, 81087.3 and 81088(f). NOTE: Authority Cited: Section 1530, Health·and Safety Code. Reference: Sections 5453 and 5458, Welfare and Institutions Code; Sections 1501 and 1502(a)(7), Health and Safety Code. 81080 RESIDENT COUNCILS 81080 (a) Each facility, at the request of a majority of its residents, shall assist its residents in establishing and maintaining a resident-oriented facility council. (1) The licensee shall provide space for, and post notice of, meetings, and shall provide assistance in attending council meetings for those residents who request it. (A) If residents are unable to read the posted notice because of physical or functional disabilities, the licensee shall notify the residents in a manner appropriate to that disability including but not limited to verbal announcements. (2) The licensee shall document notice of meetings, meeting times, and recommendations from council meetings. CALIFORNIA-DSS-MANUAL-CCL MANUAL LETTER NO. CCL-98-06 Effective 10/1/98 Regulations SOCIAL REHABILITATION FACILITIES 81080 81080 RESIDENT COUNCILS (Continued) 81080 (3) In order to permit a free exchange of ideas, at least part of each meeting shall be conducted without the presence of any facility personnel. (4) Residents shall be encouraged, but shall not be compelled to attend council meetings. (b) The licensee shall ensure that in providing for resident councils the requirements ot the Health and Safety Code Section 1520.2 are observed. HANDBOOK BEGINS HERE (1) Health and Safety Code Section 1520.2 reads in pertinent part: "(a) ... The council shall be composed of residents of the facility and may include family members of residents of the facility. The council may, among other things, make recommendations to facility administrators to improve the quality of daily living in the facility and may negotiate to protect residents' rights with facility administrators. (b) A violation of subdivision (a) shall not be subject to the provisions of Section 1540 (misdemeanors) but shall be subject to the provisions of Section 1534 (civil penalties) and any other provisions of this chapter. (c) This section shall not apply to a community care facility .. .licensed to provide care for six (6) or fewer individuals." HANDBOOK ENDS HERE NOTE: Authority Cited: Section 1530, Health and Safety Code. Reference: Sections 5453 and 5458, Welfare and Institutions Code; Sections 1501, 1502(a)(7) and 1520.2 Health and Safety Code. CALIFORNIA-DSS-MANUAL-CCL MANUAL LETTER NO. CCL-98-06 Effective 10/1/98 Regulations SOCIAL REHABILITATION FACILITIES 81087 (Cont.) Article 7. PHYSICAL ENVIRONMENT 81087 BUILDINGS AND GROUNDS 81087 (a) In addition to Section 80087, the following shall apply. (b) Bedrooms must meet, at a minimum, the following requirements: (1) No more than two clients shall sleep in a bedroom unless the program justifies a group living arrangement of more than two persons to a room and such arrangement is approved in writing by the licensing agency. (2) Bedrooms must be large enough to allow for easy passage and comfortable use of any required client assistive devices including but not limited to wheel chairsi walkers, or oxygen equipment. between beds and other items of furniture specified in Section 81088(c). (3) No room commonly used for other purposes shall be used as a bedroom for any person. (4) No client bedroom shall be used as a public or general passageway to another room, bath, or toilet. (c) Stairways, inclines, ramps, open porches, and areas of potential hazard to clients whose balance or eyesight is poor shall not be used by clients unless such areas are well lighted and equipped with sturdy hand railings. (d) Facilities shall meet the following requirements in laundry areas: (1) Space and equipment for washing, ironing and mending of personal clothing. (2) Space used for soiled linen and clothing shall be separated from the clean linen and clothing storage and handling area. (e) There shall be space available in the facility to serve as an office for business, administration, and admission activities. (f) The licensee shall have the authority to use a centralized service facility to provide laundry or food service to two or more licensed facilities if the use of the centralized facility does not result in a violation of California Code of Regulations, Title 22, Division 6, Chapter 1, Section 80076 or Chapter 2, Section 81088 and the licensing agency has issued prior written approval. CALIFORNIA-DSS-MANUAL-CCL MANUAL LETTER NO. CCL-98-06 Effective 10/1/98 Page 38 81087 (Cont.) SOCIAL REHABILITATION FACILITIES Regulations 81087 BUILDINGS AND GROUNDS..(Continued) 81087 (g) Notwithstanding Section 80087(h) firearms, weapons, and ammunition are not permitted in the facility or on the facility property. NOTE: Authority Cited: Section 1530, Health and Safety Code. Reference: Sections 5453 and 5458, Welfare and Institutions Code; Sections 1501 and 1502(a)(7), Health and Safety Code. 81087.2 OUTDOOR ACTIVITY SPACE 81087.2 (a) The licensee shall ensure that outdoor activity areas are provided, are easily accessible to clients and protected from traffic. (b) The licensee shall ensure that the outdoor activity areas are shaded, comfortable, and furnished for outdoor use. NOTE: Authority Cited: Section 1530, Health and Safety Code. Reference: Sections 5453 and 5458, Welfare and Institutions Code; Sections 1501 and 1502(a)(7), Health and Safety Code. 81087.3 INDOOR ACTIVITY SPACE 81087.3 (a) As a condition of licensure, there shall be common rooms, including a living room, dining room, den or other recreation/ activity room, which provide the necessary space and/ or separation to promote activity programs within the facility and to prevent such activities from interfering with other functions. ( 1) At least one such room shall be available to clients for relaxation and visitation with friends and/ or relatives. NOTE: Authority Cited: Section 1530, Health and Safety Code. Reference: Sections 5453 and 5458, Welfare and Institutions Code; Sections 1501 and 1502(a)(7), Health and Safety Code. CALIFORNIA-DSS-MANUAL-CCL MANUAL LETTER NO. CCL-98-06 Effective 10/1/98 Page 39 Regulations SOCIAL REHABILITATION FACILITIES 81088 (Cont.) 81088 FIXTURES, FURNITURE, EQUIPMENT, AND SUPPLIES 81088 (a) In addition to Section 80088, as a condition of licensure, the following shall apply. (b) Toilet, washbasin, and bath and shower fixtures shall at a minimum meet the following requirements: (1) At least one toilet and washbasin shall be maintained for each six persons residing in the facility. (2) At least one bathtub or shower shall be maintained for each six persons residing in the facility. (3) Toilets and bathrooms shall be located near client bedrooms. (4) Individual privacy shall be provided in all toilet, bath, and shower areas. (5) The lock on bathroom doors shall allow for quick and easy opening from the outside. (c) The licensee shall ensure provision to each client of the following furniture, equipment and supplies necessary for personal care and maintenance of personal hygiene. (1) An individual bed, except that couples shall be allowed to share one double or larger size bed, maintained in good repair, and equipped with good bed springs, a clean mattress, and pillow(s). (A) Fillings and covers for mattresses and pillows shall be flame retardant. (B) No social rehabilitation facility shall have more beds for client use than required for the maximum capacity approved by the licensing agency. (2) In addition to Subsection (c)(l) above, each client shall have a chair, a night stand, and a lamp or lights necessary for reading. (A) Two clients sharing a bedroom shall be permitted to share one night stand. CALIFORNIADSS-MANUALCCL MANUAL LETTER NO. CCL-98-06 Effective 10/1/98 81088 (Cont.) SOCIAL REHABILITATION FACILITIES Regulations 81088 FIXTURES, FURNITURE, EQUIPMENT, AND SUPPLIES (Continued) 81088 (3) Permanent or portable closets and drawer space in each bedroom to accommodate the client's clothing and personal belongings. (A) A minimum of two drawers or eight cubic feet (.2664 cubic meters) of drawer space, whic;hever is greater, shall be provided for each client. (4) Clean linen in good repair, including lightweight, warm blankets and bedspreads; top and bottom bed sheets; pillow cases; mattress pads; rubber or plastic sheeting, when necessary; and bath towels, hand towels, and washcloths. (A) The quantity of linen provided shall permit changing the linen at least once each week or more often when necessary to ensure that clean linen is in use by clients at all times. (B) The use of common towels and washcloths shall be prohibited. (5) Feminine napkins, nonmedicated soap, toilet paper, toothbrush, toothpaste, and comb. (d) If the facility maintains its own laundry equipment, necessary supplies shall be available and equipment shall be maintained in good repair. (1) If the washing machine and/or dryer is coin operated, clients shall be provided with coins or tokens and laundry supplies. (A) Coins and laundry supplies shall be provided to clients when public laundry equipment is used. (B) The licensee shall be permitted to designate a safe location or locations, and/or times in which clients shall be permitted to iron. (e) Emergency lighting, which shall include at a minimum working flashlights or other battery-powered lighting, shall be maintained and readily available in areas accessible to clients and staff. (1) An open-flame type of light shall not be used. (2) Night lights shall be maintained in hallways and passages to nonprivate bathrooms. (f) The licensee shall provide and maintain the equipment and supplies necessary to meet the requirements of the planned activity program. CALIFORNIA-DSS-MANUAL-CCL MANUAL LETTER NO. CCL-98-06 Effective 10/1/98 Regulations SOCIAL REHABILITATION FACILITIES 81088 FIXTURES, FURNITURE, EQUIPMENT, AND SUPPLIES (Continued) 81088 81088 (1) Such supplies shall include but not be limited to daily newspapers, current magazines and a variety of reading materials. (2) Special equipment and supplies necessary to accommodate physically handicapped persons or other persons with special needs shall be provided to meet the needs of handicapped clients. (3) When not in use, recreational equipment and supplies shall be stored where they do not create a hazard to clients. (g) All social rehabilitation facilities, except facilities with sprinkling systems, shall have an approved, commercially manufactured and battery operated smoke detector installed in the hallway(s) in each sleeping area in the home. The smoke detectors shall be audible in each bedroom or sleeping room. (h) Facilities shall meet the following signal system requirements: (1) Any facility certified as a Short-Term Crisis Residential Program and/or a Long-Term Residential Treatment Program with a licensed capacity of 15 or more clients, or having separate floors or separate buildings without full-time staff present on each floor or in each separate building when clients are present, shall have a signal system or shall have facility staff visually check on all clients no less than on an hourly basis. (2) If a signal system is used, it shall meet the following requirements. (A) Operation from each client's sleeping unit. (B) Transmission of a visual and/or auditory signal to a central location, or production of an auditory signal at the client's living unit which is loud enough to summon staff. (C) Identification of the specific client's sleeping unit from which the signal originates. NOTE: Authority Cited: Section 1530, Health and Safety Code. Reference: Sections 5453 and 5458, Welfare and Institutions Code; Sections 1501 and 1502(a)(7), Health and Safety Code. CALIFORNIA-DSS-MANUALCCL MANUAL LETTER NO. CCL98-06 Effective 10/1/98 Sheila Cobian From: Sent: To: Subject: Sober Living Homes Joanna C Nicholson Tuesday, May 12, 2020 11 :SO AM Hector Gomez Re: Council meeting 5/12/2020 Let me know if you need any additional information. Thank you, Joanna Nicholson All Receive -Agenda Item # 3 l'or the Information of the: ITY COUNCIL J Dt1te 0 \'}--CA V cc ✓ -CM . ACM~M(3)_ On Tuesday, May 12, 2020, 10:54:30 AM PDT, Hector Gomez <hector.gomez@carlsbadca.gov> wrote: Hello, Could you please clarify which agenda item you are speaking on? Thank you, Hector Gomez Deputy City Clerk City of Carlsbad 1200 Carlsbad Village Drive Carlsbad, CA 92008-1949 www.carlsbadca.gov 760-434-5021 I hector.qomez@carlsbadca.gov -----Original Message----- From: Joanna Nicholson Sent: Monday, May 11 , 2020 10:27 PM · To: City Clerk <Clerk@carlsbadca.gov> Subject: Council meeting 5/12/2020 My email relates to an agenda item and I desire to have the email read into the record at the City Council meeting Please help me understand. I am the mother of four young and impressionable children . There is absolutely no good that can come from this house situation . These people are not being taken care of. I have stood by quietly for too long. My boys have witnessed and discussed "white vans pulling up and piles of people come out and truck in the house then silver vans leave with piles of people." Massive bodies and suitcases being shipped in and out What kind of operation is happening here? EMS services deployed THREE times in FOUR weeks. What is the rental agreement? I never see the same 6 people there; as I was told it was a group home for 6. It is like a vagrant motel with constant turnover. How is this helping people? I have been a practicing medical clinician for over 20 years and I have never seen a more blatant scheme for exploitation. Seems like a devious shell game. Obviously terrible for the community and devastating for these poor people that need some actual help. CAUTION: Do not open attachments or click on links unless you recognize the sender and know the content is safe. 1 Sheila Cobian From: Sent: To: Subject: Vincent Ponce Tuesday, May 12, 2020 8:59 AM City Clerk Sober Living Home on Camino Del Sol All Receive~ Agenda Item# 6 For the Information of the: CITY COUNCIL J Date ~l \~CA ,/ CC L CM-~-CM _.Joe_ DCtvM (3) This letter is being provided to you for the public verbal comment section of the council's agenda ... Vincent Ponce Carlsbad,Ca.92008 Good Evening Mayor Hall and City Council Members, I was taught if you work hard you can achieve the American Dream. Home ownership, raising children in a safe neighborhood, being a good neighbor, giving back to your community through service, being honest, and gainfully employed were cornerstones of that dream. Regrettably, I believe decisions you have made in the last few years have served to undermine this dream for our community. There are only nine homes on the cul de sac my family lives on. One is a sober living facility (with a six week turnover of clients), and two Airbnb's (with a constant flow of strangers). Each of these homes have been turned into "for profit" businesses, at our neighborhood's expense. Having "sober living clients" walk up and down our cul de sac, or linger in front' of their "home" smoking, or needing emergency services on a regular ba?is, undermines our sense of community and safety. On one occasion our teenage daughter discovered an infant child, strapped into a car seat, abandoned on the sidewalk in front of this home. We had to call the police who then spent 3-4 hours on the street trying to sort out what happened with a client. On a regular basis, Fire and Paramedics are summoned for medical emergencies. This often involves multiple CPD officers who also respond. Further, parking is a problem on our cul de sac due to the number of employees who work at the SLH and those staying in the Airbnb's. As I understand it the owners of the Sober Living Home are requesting state licensing that would result in a new designation as a Social Rehabilitation Facility. We are completely opposed to any changes that would expand the services or the number of clients that this business serves provides. Please consider the impact of your actions on the honest and hardworking citizens who have made Carlsbad their home. Let's not create a city where you buy a million dollar home just to live next door to a "Social Rehabilitation Facility" or an "Airbnb." Thank you for your consideration. Vincent Ponce CAUTION: Do not open attachments or click on links unless you recognize the sender and know the content is safe. 1 Tammy Cloud-McMinn From: Sent: To: Gary Nessim Tuesday, May 12, 2020 2: 10 PM City Clerk Subject: Agenda item 3 Group homes No need to read aloud Honorable Mayor Matt Hall Council Members City Manager Scott Chadwick May 12, 2020 No need to read aloud. You are receiving a most excellent report from a very fine staff. All Receive -Agenda Item tt3_ For the Information of the: -~112' COUNCIL Dat~CA v cc ✓ CM ;r-ACM ~DCM (3) 1/ I have lived near a group home for several years now and find it annoying but tolerable. What I did not like is that there is no business license required and therefore no notice to residents that an extensive rental business ( like a small hostel or hotel ) is about to move in, or has moved into your residential neighborhood. Please consider, at a later date when some action is recommended, requiring a business license for all rental properties, so that we can keep track of room rentals, recovery homes, vacation rentals, and keep statistics on this which will assist us in knowing our low income housing and other resources provided in Carlsbad. This data is more easily maintained by online permitting than years past and is not discriminatory. Gary Nessim Carlsbad CAUTION: Do not open attachments or click on links unless you recognize the sender and know the content is safe. 1 Jeff Murphy Community Development Director May 12, 2020 A Report from the Ad-Hoc Subcommittee on Sober Living Homes Background •Feb. 19, 2019 info report on sober living homes •July 23, 2019 ad-hoc subcommittee created •Dec. 2, 2019 staff discussed meeting logistics •Jan. 29, 2020 public meeting •Apr. 17, 2020 staff discussed report 2 The Report •Different types and purposes •Overview of governing laws and regulations •Permitting limitations •Attempts to change the law •Ad-hoc subcommittee meeting •Conclusions 3 Types & Purpose •Sober Living Homes Occupants act as a “family unit” Treated like any other single-family home Professional treatment not provided Typically ≤6, but more can reside in home 4 Types & Purpose •Residential Care Facilities Occupants act as a “family unit” Treated like any other single-family home Non-medical treatment provided Typically ≤6 occupants 5 Types & Purpose •Professional Care Facilities Professional treatment center Medical/non-medical treatment provided Typically larger facilities 6 Regulations & Case Law •Individuals recovering from addiction = “disabled” •Regulations cannot discriminate against disabled persons •Must be treated like any other home •Occupants are considered a “family unit” •Cannot develop occupancy limits that are different from single-family homes 7 Regulations & Case Law TABLE 1: Permitting Requirements per Facility Type City Authority Can a Can a Medical Non-Medical State Business Discretionary Facility Number of Services Services License License be Permit be Type1 Occupants1 Provided?1 Provided?1 Required? Required? Required? Sober Living ::s; Six No No No No No Home Sober Living ~ Seven No No No No No Home Residential Care s Six No Yes Yes Yes No Facilities Residential Care ~ Seven No Yes Yes Yes Yes Facilities Professional ~ One Yes Yes Yes Yes Yes Care Facilities 1 Refer to "Types of Facilities," pages 5-6 Permitting Limitations •Current known facilities in Carlsbad 11 Sober Living Homes 5 Residential Care Facilities (≤ 6 people) 0 Residential Care Facilities (≥7 people) 0 Professional Care Facilities 9 Attempts to change the law •City of Newport Beach •City of Costa Mesa •Litigation pending; premature to draw conclusions 10 Ad-hoc Meeting •Over 20 people attended the Jan. 29th meeting •Community given until Feb. 12th to comment •Public comments grouped into four categories: Process concerns Legal & Policy Zoning & building Safety 11 Ad-hoc Meeting –Public Comments •Process Concerns Committee make up Late start Lack of communication Lack of partnership with state 12 Ad-hoc Meeting –Public Comments •Legal & Policy Concerns Lack of coordination with the state Homes operate like STVR Need for inspections Background checks owners/operators Cities authority limited 13 Ad-hoc Meeting –Public Comments •Zoning & Building Concerns Licensing and oversight Distance between SLHs Act as businesses Homes not adequate for use Occupancy limits 14 Ad-hoc Meeting –Public Comments •Safety Concerns Welfare of residents Exploitation of residents Neighborhood safety Language, smoking and traffic Transient nature 15 •Restrictions in current state & federal laws •Lack of clear legal clarity in California case law •Difficult to adopt local regulations to address community concerns Ad-hoc Meeting –Staff Analysis 16 Recommendations •Continue to work with our lobbyists and representatives to change laws •Continue tracking other cities’ lawsuits and bring forward feasible regulation opportunities 17 Recommendations •Enforce regulations that apply to residential zones •Parking •Nuisances noise •Trash •Property maintenance & upkeep 18 Jeff Murphy Community Development Director May 12, 2020 A Report from the Ad-Hoc Subcommittee on Sober Living Homes 19