HomeMy WebLinkAbout2024-05-23; Recovery-Based Group Homes Update (Districts - All); Murphy, JeffTo the members of the:
CITY COUNCIL
Date~CAV cc V
CM L AC~ DCM (3) ..-::::
Council Memorandum
May 23, 2024
To:
From:
Via:
Re:
Honorable Mayor Blackburn and Members of the City Council
Jeff Murphy, Community Development Director
Gary Barberio, Deputy City Manager, Community Services
Geoff Patnoe, Assistant City Manager §
Recovery-Based Group Homes Update (Districts -All)
{city of
Carlsbad
Memo ID# 2024036
In response to a growing number of complaints received from community members over the
establishment of neighboring sober living homes, this Council Memorandum is a status update on
the City Council's direction to monitor court cases and relevant state law changes regarding the
regulation of recovery-based group homes, including the ongoing litigation against the City of
Costa Mesa over its adoption of certain limitations and regulatory requirements for sober livings
homes.
Background
The City Council received an informational staff report on February 19, 2019 (Attachment A),
covering the topic of sober living homes. Following the presentation, the City Council approved a
minute motion directing the creation of an ad-hoc subcommittee to give community members a
venue to discuss concerns and recommendations regarding sober living homes and recommend
potential regulatory and legislative strategies for the City Council to pursue.
This effort culminated into the development of a comprehensive report on the purpose,
challenges, and limitations related to the regulation of residences that provide housing and
support for a group of individuals recovering from addiction (Attachment B), which was presented
to the City Council at their meeting on May 12, 2020 (Attachment C).
As reflected in the report, there are various types of group homes, each serving a slightly different
purpose and need, with varying levels of regulatory oversight. 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."
Sober living homes, which receive the most community complaints, 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, sober living homes do not
provide medical treatment services and therefore are exempt from state licensing requirements
that would otherwise apply to drug treatment facilities. For this reason, the regulation of sober
living homes by local governments is greatly limited. In short, the rules and regulations that govern
sober living homes must also apply to fill residential properties ---state and federal laws do not
Community Services Branch
Community Development Department
1635 Faraday Avenue I Carlsbad, CA 92008 I 442-339-2600 t
Council Memo -Recovery-Based Group Homes Update (Districts -All)
May 23, 2024
Page 2
allow a sober living home to be treated differently from a single-family residence. Refer to the
report in Attachment B for additional explanation.
Despite these state and federal regulatory limitations, the City of Costa Mesa passed in 2018 a
series of regulatory and permitting requirements specific to sober living homes. These ordinances
were challenged through lawsuits filed by multiple sober living home operators, which were still
pending appeal when the City Council received the report in May 2020. In response, the City
Council directed staff to monitor the court cases and report back for City Council consideration any
decision that resulted in definitive legal precedent and would feasibly allow the city to regulate
recovery-based group homes. The City Council also amended its legislative platform to "support
legislation that enables local agencies to effectively address issues concerning public safety and
proper management of group homes."
Discussion
The following is an update on the above referenced City Council directions.
A. City of Costa Mesa litigation
The City Attorney's Office has been tracking several of the lawsuits filed against Costa
Mesa. While Costa Mesa has obtained some victories in these lawsuits, there are other
cases that are left to be decided. Currently there are three cases pending trial and one
pending appeal in the Ninth Circuit Court of Appeals.
By way of example, in the case of SoCal Recovery v. Costa Mesa, sober living home
operators filed discrimination lawsuits against the city based on new permit requirements
and zoning rules, including a 650-foot separation standard. Costa Mesa prevailed at the
district court level with a motion to dismiss, but on appeal the Ninth Circuit overturned this
decision and allowed the plaintiff's discrimination claims to proceed to trial on remand.
The Ninth Circuit ruled that in order to proceed with a discrimination claim, operators need
only demonstrate that they serve or intend to serve individuals with disabilities. Costa
Mesa petitioned for a rehearing en bane before the Ninth Circuit (i.e., before different
Ninth Circuit judges), which was denied. Costa Mesa then filed a writ before the U.S.
Supreme Court, which was also denied. The litigants in this case had a scheduling
conference on May 20, 2024, to set a trial date. However, the judge postponed scheduling
of any trial date until another pending case against Costa Mesa has resolved: Ohio House v.
City of Costa Mesa, which is on appeal before the Ninth Circuit, having recently concluded
oral arguments.
Along with the SoCal Recovery case, there were four other lawsuits filed against Costa
Mesa by the same plaintiffs' group, in which Costa Mesa prevailed on summary judgment
based on a standing issue. One of these plaintiffs is Casa Capri Recovery, Inc., discussed on
page 14 of Attachment B. Also, in the case of Yellowstone Women's First Step House, Inc.,
et al. v. City of Costa Mesa, discussed on page 14 of Attachment B, the Ninth Circuit upheld
the trial court's verdict in favor of Costa Mesa.
Council Memo -Recovery-Based Group Homes Update (Districts -All)
May 23, 2024
Page 3
In short, it will likely be several months before the sober living home litigation against
Costa Mesa draws to a close or a court provides helpful legal guidance on this issue.
B. California legislature
The city has been monitoring three legislative bills being sponsored this session by the
League of California Cities, which aim to better regulate recovery-based group homes by
increasing operator transparency and accountability requirements and enhancing state
oversight and enforcement.
1. AB 2081 (Davies) passed out of the Assembly and is currently awaiting assignment in
the Senate Rules Committee. This bill would require the operator of a licensed recovery
home to disclose to those seeking care that they can check the CA Department of
Health Care Services website to confirm a facility's compliance with state licensing laws.
AB 2081 would ensure that those seeking treatment easily kn.ow what violations, if any,
have occurred within a treatment facility and would hold providers accountable by
making these violations easily accessible to the public.
2. AB 2574 (Valencia) also passed out of the Assembly and has been ordered to the
Senate for committee assignments. This bill would expand reporting requirements for
licensed recovery home operators to enhance the CA Department of Health Care
Services' oversight of sober living homes that are operating as an integral part of a
licensed drug treatment facility located elsewhere in the community. There have been
cases where a licensed facility provides services to the residents of a sober living home
but does not include the sober living home in the facility's licensure. AB 2574 would
provide increased transparency to ensure that if a recovery residence is operated as a
business with a licensed treatment facility, it is regulated like a business, not a
residential home.
3. SB 913 (Umberg) was held on the Senate Appropriations Committee Suspense File and
is not advancing any further this year. This bill would have required the CA Department
of Health Care Services to adopt a process that allows cities to request approval to
conduct site visits and enforce compliance with existing state licensing laws. Existing
law grants the sole authority in state government to the State Department of Health
Care Services to license adult alcoholism or drug abuse recovery or treatment facilities
and authorizes the department to conduct site visits to licensed facilities for the
purpose of determining compliance with applicable statutes and regulations. By
collaborating with cities, the bill would have allowed the state to leverage local
resources :to supplement its regulatory efforts.
The city has taken a SUPPORT position on both AB 2081 (Davies) and AB 2574 (Valencia).
Council Memo -Recovery-Based Group Homes Update (Districts -All)
May 23, 2024
Page 4
Next Steps
Staff will continue to monitor the Costa Mesa lawsuits and the state legislature and report back to
City Council with any news or updates.
Attachments:
A. Feb . 19, 2019, City Council staff report
B. A report on recovery-based group homes (exhibit to the May 12, 2020, City Council staff
report)
C. May 12, 2020, City Council staff report (on file with the City Clerk's Office)
https://records.carlsbadca.gov/Weblink/DocView.aspx?id=5155179&dbid=0&repo=CityofC
arlsbad
cc: Scott Chadwick, City Manager
Cindie McMahon, City Attorney
Allegra Frost, Senior Assistant City Attorney
Marissa Kawecki, Assistant City Attorney
Jason Haber, Intergovernmental Affairs Director
Tina Ray, Communication & Engagement Director
Sarah Lemon, Senior Program Manager
Natalie Reed, Community Relations Manager
Mike Strong, Assistant Director of Community Development
Eric Lardy, City Planner
Shawn Huff, Building Official
Robbie Hickerson, Code Enforcement Manager
Robb Efird, Principal Planner
Meeting Date:
To:
From:
Staff Contact:
Subject:
CA Review 1Wl,Jl---
February 19, 2019
Mayor and City Council
Scott Chadwick, City Manager
Debbie Fountain, Community & Economic Development Director
debbie.fountain@carlsbadca.gov or 760-434-2935
Informational staff report on sober living homes and applicable
regulations.
Recommended Action
Receive an informational staff report on sober living homes and applicable regulations. Staff is
providing no recommendation for action by the City Council at this time.
Executive Summary
On September 11, 2018, the City Council approved the following minute motion (5-0) "to place
the discussion of sober living facility regulations on a future agenda". In response to the City
Council direction, staff has spent the past several months researching the topic of sober living
homes and has prepared this informational report to summarize the applicable land use and
other related policies associated with sober living homes to allow for the council's desired
discussion. This report seeks to inform a response to concerns shared by residents of Carlsbad as
to potential actions the city can or cannot take as related to the sober living homes.
For many people recovering from a substance abuse addiction, sober living is a key part of the
treatment program. In California, sober living homes are most typically treated as residences, not
medical or psychological treatment facilities, and as such are governed with limited licensing and
zoning requirements. Sober living homes are protected under federal and state law because
these residences provide housing for people with disabilities such as substance abuse, and
mental illness. For this reason, no state or federal agency currently regulates sober living homes
from a licensing or permitting standpoint. Local governments cannot impose an isolated or
targeted policy or regulation on sober living homes, and they must be treated similarly to any
other residential home or risk complaints/lawsuits of discrimination against persons with
disabilities.
Discussion
Sober living homes are best described as group homes, usually containing six persons or fewer,
that bring together multiple unrelated individuals who live communally and mutually support
each others' recovery from addiction. Typically, these homes provide housing, but no medical
treatment, for recovering drug and alcohol addicts. Conceptually, sober living homes function
under the shared belief that providing housing for recovering drug and alcohol addicts in a safe,
single family neighborhood in a mutually supportive, accountable environment similar to other
family living situations is essential to the success of any addict's treatment and recovery.
February 19, 2019 Item #3 Page 1 of 21
Attachment A
February 19, 2019 Item #3 Page 2 of 21
In California, sober living homes are not required to obtain a license and are not limited to six or
fewer residents. Sober living homes are not considered a business by the State of California
because they provide a substance-free, family-like living environment for adults who are
recovering from drug and alcohol addictions and provide no service. If there is no treatment
provided to residents, no license is required. On the other hand, residential facilities that provide
treatment (medical or otherwise) and detoxification services are licensed by the state. The
limitation of six or fewer residents per single-family home only applies to those facilities requiring
licensing.
Proponents of locating sober living homes in residential neighborhoods contend that
reintegrating treatment patients into mainstream society through a typical family living situation
enhances recovery efforts. The rationale is that locating sober living homes in attractive settings
with attractive amenities significantly enhances a patient's chances of a successful recovery.
Proponents also cite legislative intent that they believe mandates that "each county and city shall
permit and encourage the development of sufficient numbers and types of alcoholism or drug
abuse recovery or treatment facilities" (See Cal. Health & Safety Code Section 11834.20)
Critics of placing sober living homes in residential neighborhoods most often cite personal
experiences of excessive and late-night noise, vulgar language, excessive cigarette smoking,
invasion of privacy and lewd conduct, increased litter, increased vandalism and problematic
traffic and parking issues. Many cities already have regulations that will address all the ancillary
issues/impacts noted above; this indicates that the transitory nature of home occupants and the
fact that they are recovering substance abuse addicts may be the larger concern. But it is more
difficult to regulate impacts associated with recovering substance abuse addicts and is likely the
reason most regulatory restrictions are not withstanding legal challenges.
Efforts to Regulate
In the past few years, there has been enhanced awareness of sober living homes in Carlsbad by
existing residents and concerns expressed that there is an increasing number of group homes for
recovering substance abuse addicts not only in Carlsbad but throughout cities in California as well
as across the United States. These concerns have been shared with legislators and other local
elected officials. Due to these resident concerns, there have been numerous state and local
attempts to approve new regulatory restrictions to govern these sober living homes and reduce
their impacts on residential neighborhoods. Proposed local regulations have included limiting the
total number of sober living homes, limiting the distance between sober living homes, requiring
more parking or placing other restrictions on the operations of these homes.
To date, nearly all of these new regulations have been met with legal challenges on the basis of
discrimination against those who are disabled. For example, the cities of Newport Beach and
Costa Mesa have approved ordinances to place restrictions on the location and/or number of
sober living homes permitted within their cities. These ordinances have faced or are facing major
legal challenges from disability advocacy groups and others in support of the sober living homes.
A proposed regulatory framework for the City of Los Angeles fa iled 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 3 of 21
Laguna Hills (2015), San Jose (2015), Encinitas (2015), San Bernardino County (2014) and
Redlands (2005); however, these local regulatory efforts have not been successful to date.
In the past 15 years state lawmakers have made multiple attempts to regulate sober living
homes; these attempts have been unsuccessful to date. Out of 25 bills affecting sober living
homes introduced since the 1998-99 legislative session, only three reached the Governor's desk
-and all of those were vetoed by the Governor. Many other states within the United States
have similar concerns around sober living homes. Recently, laws creating statewide voluntary
certification or accreditation of sober living homes have been introduced in Pennsylvania {2016)
and passed in Massachusetts (2014). In St. Paul, Minnesota, an ordinance passed in 2008 requires
a 330-foot buffer between sober living homes and places restrictions on occupancy and parking.
These examples show that California's issues are far from unique but also complicated to address
without violating the rights of those with disabilities including substance abuse and mental
illness.
The Fair Housing Act
In 1988 the federal Fair Housing Act ("the Act") was amended by Congress to add protections for
persons with disabilities and families with children. Since that time, there has been a great deal
of litigation concerning the Act's effect on the ability of local governments to exercise control
over group living arrangements, particularly for persons with disabilities. The Act prohibits
discrimination against individuals on the basis of race, color, religion, sex, national origin, familial
status and disability.
The Act forbids discrimination on the basis of the existence of a handicap. "Handicap" has the
same legal meaning as the term "disability" which is used in other federal civil rights laws. Persons
with disabilities (handicaps) are individuals with mental or physical impairments which
substantially limit one or more major life activities. The term mental or physical impairment may
include conditions such as blindness, hearing impairment, mobility impairment, HIV infection,
mental retardation, alcoholism, drug addiction, chronic fatigue, learning disability, head injury
and mental illness. The term "major life activity" may include seeing, hearing, walking, breathing,
performing manual tasks, caring for one's self, learning, speaking or working. It is important to
note that current users of illegal controlled substances, persons convicted for illegal manufacture
or distribution of a controlled substance, sex offenders and juvenile offenders are not considered
disabled under the Fair Housing Act. The Fair Housing Act also does not give protections to
individuals with or without disabilities who present a direct threat to the persons or property of
others. Determining whether someone poses such a direct threat must be made on an
individualized basis, however, and cannot be based on general assumptions or speculation about
the nature of a disability.
The Act prohibits municipalities and other local government agencies from making zoning or land
use decisions or implementing land use policies that exclude or discriminate against protected
persons, including individuals with disabilities and those residing within a sober living home. Any
land use restrictions applied to sober living homes in a single-family home would need to be
applied equally to any other single-family home. For example, if the city required all occupants
of sober living homes to live in the home for at least one year to prevent the impact of the
February 19, 2019 Item #3 Page 4 of 21
transient nature of the residents, all single-family homes would be required to comply with t he
same regu lations. 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 regu lations specifically for sober living homes which would not be considered
discriminatory in nat ure.
The Fair Housing Act makes it unlawful to:
• Apply land use policies or actions that treat groups of persons w ith 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 t he disability of individuals
who live or would live there. An example would be the denial of a building permit for a
home because it was intended to provide housing for persons in recovery for alcohol or
drug addiction.
It is important to note again that the Act does not protect persons who currently use illegal drugs,
persons who have been convicted of the manufacture or sale of illegal drugs or persons with or
without disabilities who present a direct threat to the persons or property of others. Sober living
homes are intended only for those persons in recovery from substance abuse addiction.
California Laws -Sober Living Homes
Sober living homes may locate in residential zones in California based on the 1980 California
Supreme Court decision, City of Santa Barbara v. Adamson, where t he 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 5 of 21
people with substance and alcohol abuse problems.
The idea behind these laws is to promote the integration of individuals with disabilities into the
community. These same laws also require cities to make reasonable accommodations in policies
and practices when accommodations are necessary to provide equal housing opportunities.
Because state and federal anti-discrimination laws apply to the non-licensed residential facilities,
the assumption is that non-licensed residential facilities are exempt from the six-person
limitation, local regulations relating to business taxation or licensing and most other permitting
requirements. Cities that have tried to impose such regulations on the unlicensed, family living
sober living homes have been engaged in lengthy and costly litigation costing millions of dollars.
California's Health & Safety Code requires all licensed facilities serving six or fewer persons, which
may include sober living homes, be treated like single-family homes for zoning purposes. These
licensed facilities are exempt from local zoning and land use regulations and business taxation
and licensing because they are considered residential uses. This land use protection allows sober
living homes to be permitted in all residential zones in which a single-family home is permitted.
Local governments cannot require zoning or land use permits or restrictions for a residence that
is not required to be licensed, unless such restriction is imposed on all residences in the
jurisdiction.
Alcohol and drug programs (ADPs) that provide 24-hour residential nonmedical services to adults
who are recovering from alcohol and/or drug abuse must obtain a state license. If a licensed ADP
facility serves six or fewer patients, state law prohibits cities from regulating it any differently
than a single-family home. Local agencies may not regulate the zoning of these licensed homes
by adding special parking requirements, setbacks, design standards, etc. In addition, sober living
homes are not required to obtain a conditional use permit, variance or any other special permit
unless the same permit is required for single-family homes. In addition to protections found in
California's Health & Safety Code, agencies are prevented by California Planning and Zoning Law
(Cal. Gov't Code 65008(d)(2)) from imposing different requirements on single-family or multi-
family homes because of the disability of the intended residents, in this case drug and alcohol
addicts in recovery.
The number of restrictions on licensed residential rehabilitation programs is fewer than other
licensed group homes. The Community Care Facilities Act, from which alcohol and drug
rehabilitation facilities are exempt, imposes various restrictions that protect the character of
residential neighborhoods. For example, under the act, licensed foster homes cannot be for-
profit businesses. Alcohol and drug rehabilitation facilities may operate as for-profit enterprises
in residential zones without business licenses because licenses are not required of other single-
family uses. Additionally, overconcentration of facilities does not apply to alcohol and drug rehab
facilities in California . The attorney general has stated that California cities "may not deny an
application for licensure or suspend or revoke the license of a treatment facility because the
particular community already has more than a sufficient number of treatment facilities to meet
the local need." (See Sober Living Businesses in Residential Zones, Western City)
Below is a chart from the State of California which provides a quick reference guide to the
licensing and other regulatory requirements for the various types of facilities available for
substance abuse treatment and recovery.
February 19, 2019 Item #3 Page 6 of 21
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privacy: A ·ramlly" as (may be sub-
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Federal l.r.v defines recov-consistent
with the Fair e ng aJcohollcsladdlcts Housing Aci) as "dlsabled" and protects
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thal basis; and
ADA req~res "reasonable
accommodation.·
A1C11Wttr0tllnll Health & Safety Code YES YES YES YES YES
... IIIOOINlyllNII-§11834.01 NonmedJcaJ .
.... ,.,....(ADPI resldenlJaJ
CCIRnUnllJC..Act HeaH.h & Safety Code YES YES YES YES YES
Ruldlnllll,__, §1500, Nonmedlcal.
resldentlaJ
Overconcentration Standards or Separation Requirements
Residents' greatest concern with sober living homes appears to be their overconcentration.
Residents contend that they operate more like a business than a single-family home, and their
proximity to each other changes the residential character of local neighborhoods. When applying
both state and federal laws, however, there is little that could be done by the city to regulate
these homes without being in direct conflict with applicable laws intended to prevent
discrimination against persons with disabilities.
The federal Department of Justice and Housing and Urban Development (HUD) have both taken
the position, and most courts that have addressed the issues agree, that density (or
overconcentration) restrictions are most typically inconsistent with the Fair Housing Act.
Overconcentration in California law is defined as a separation of less than 300 feet from another
licensed residential care facility; these separation requirements do not apply to residential care
facilities for the elderly or drug and alcohol treatment facilities, which are protected classes.
Cities are prohibited from imposing separation requirements on these state licensed residential
facilities. Under current law, the city could only adopt distance requirements for sober living
homes if the effect was not discriminatory, i.e., if any requirements applied equally to similarly
February 19, 2019 Item #3 Page 7 of 21
situated housing for the non-disabled or provided preferential treatment for the disabled. This is
the zoning and regulatory approach that was recently enacted by the City of Costa Mesa, which
was the subject of recent litigation.
Conclusion: What Can the City Do to Address Resident Concerns?
This report has provided information on the applicable state and federal laws for sober living
homes, and summarized the challenges associated with efforts to regulate sober living homes
differently from single family residences. The issues and concerns associated with sober living
homes are shared-across the United States and not unique to Carlsbad. Some cities can verify an
increase in the number of sober living homes to support this public concern.
In Carlsbad, we do not have permitting or licensing requirements for sober living facilities that
are operating simply as housing for recovering substance abuse addicts; we are compliant with
state and federal laws regulating these homes. Staff, therefore, does not have data on how many
sober living homes are operating within the city. Staff is unable to confirm whether Carlsbad has
an over-concentration of sober living homes, or even whether Carlsbad has experienced an
increase in the number of sober living homes year over year. This report acknowledges, however,
that there is an enhanced resident awareness throughout the state of the increasing number of
sober living homes and more complaints about their impacts on residential neighborhoods. The
city has received complaints from residents in neighborhoods in the older part of the city about
sober living homes, but the number of complaints in the city as a whole has not been substantial
to date.
Due to the complexity of the issue and the challenge of developing regulations that would not be
in direct conflict with significant state and federal anti-discrimination laws, it is difficult to
recommend a course of action that would not potentially result in costly litigation for the city.
Below are suggested actions that staff could research further and complete a risk analysis to
determine if they are appropriate for Carlsbad:
1. Several county governments have adopted certification procedures for sober living
homes that receive public funding or referrals from local courts and county agencies. In
Orange County, certification requires an inspection of the facility as well as submission to
random inspections at any time while certified; there are strict standards for the
maintenance of properties; homes must adopt a good-neighbor policy to receive and
remedy complaints; and they must place curfews and other restrictions on tenant
behavior. Certification programs of this type would be limited, but would be labor
intensive and costly from an administrative standpoint. Staff could work with county
officials to determine if this action would be appropriate.
2. Continue to work with state legislators to require a recovery house that is owned or
operated by a community care facility, which is defined as a 24-hour non-medical care
facility typically for children or adults with developmental disabilities, and that functions
as an integral component of that community care facility to be licensed and subject to
inspection and enforcement. Senator Bates has authored and co-authored several bills to
February 19, 2019 Item #3 Page 8 of 21
address regulatory requirements for sober living homes, but none have been successful
to date, primarily due to opposition from operators of sober living homes and advocates
for the disabled. Attached as Exhibit 1 is a summary of legislative efforts to date.
3. Require all residential rentals, short-term and long-term, to obtain a business license,
include good-neighbor rules in their leases and be subject to annual inspections to ensure
the homes meet basic housing quality standards. This program would be very costly and
labor intensive, but there are models in other cities (such as the City of Los Angeles) of
rental licensing/registration and inspection that could be used to develop a program in
Carlsbad. It is very important to note that this program would need to apply to fill rentals,
not only sober living homes, to avoid claims of discrimination or fair housing violations.
4. Complete a more extensive review of the new ordinance adopted by the City of Costa
Mesa to regulate group and sober living homes and continue to monitor the legal
challenges. Return to Council at a later date with a similar ordinance for consideration if
it is ultimately upheld in whole or parts by the courts. Attached as Attachment 2 is a
summary of the Costa Mesa information guide for its residents and new ordinance
requirements. To date, the city's requirement for separation between homes of 650 feet
has been upheld as nondiscriminatory and staff could study this further to determine if it
would have applicability in Carlsbad; other legal determinations will be monitored and
discussed at a later date in more detail as legal challenges are resolved through the courts.
5. Residents in the Olde Carlsbad neighborhood have asked for the City Council to appoint
an Ad Hoc Citizen Advisory Committee to work with the city on developing regulations for
Sober Living Homes. If the City Council wishes to do so, it is recommended that the council
provide specific instructions on the work program for this committee and provide legal
counsel for this effort. This is a very legally challenging issue that requires significant
expertise in state and federal laws related to fair housing and anti-discrimination to
develop legally defensible regulations.
This report is provided for informational purposes only to allow for public discussion of concerns
by Carlsbad residents and potential actions to address those concerns as related to sober living
homes. Attached as Exhibits 1-3 are additional resource materials that helped to inform this
report to City Council.
Fiscal Analysis
At this time there is no fiscal impact associated with the presentation 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 9 of 21
Environmental Evaluation (CEQA)
Pursuant to Public Resources Code section 21065, this action does not constitute a "project"
within the meaning of CEQA in that it has no potential to cause either a direct physical change
in the environment, or a reasonably foreseeable indirect physical change in the environment,
and therefore, does not require environmental review.
Public Notification
This item was noticed in accordance with the Ra lph M. Brown Act and was available for public
viewing and review at least 72 hours prior to the scheduled meeting date.
Exhibits
1. Summary of legislative efforts to date
2. Summary of City of Costa Mesa ordinance -sober living homes briefing paper
3. Reference/resource list -sober living homes
February 19, 2019 Item #3 Page 10 of 21
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
1998 Vetoed by Governor. SB 1540 Required state licensure of adult recovery maintenance
(Karnette} fa cilities or "sober living homes11 and required the
Department of Social Services to develop plans rega rding
community care facilities.
1999 Vetoed by Governor. SB986 Required the Department of Alcohol and Drug Programs
(Karnette) to license and regulate adult recovery maintenance
fa cilities 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. (Karnette) to administer the licensure and regulation of adult
recovery maintenance facilities.
2001 Never heard in SB 239 Required court, probation department, Department of
committee. (Morrow) Corrections, or California Youth Authority to refer persons
to a sober living facility only if certified.
2001 Never heard in SB 1089 Required the Department of Social Services to develop and
committee. (Karnette) submit to the Legislature plans regarding a statewide
database of alcohol and drug abuse treatment and
recovery facilities and a plan 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
facil ities on or before July 1, 2003.
2003 Never heard in SB 340 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 Rec.every Maintenance Facilities.
February 19, 2019 Item #3 Page 11 of 21
Year Status Bill, Description
Sponsor
2006 Never heard in AB 1225 Required the owner of an alcoholism and drug abuse
committee. (Strickland) recovery or treatment facility that serves more than six
unrelated persons to notify the local law enforcement
agency of its eXistence. The bill would have prohibited a
facility from existing in a locatJon with more t han five
facilities within a square mile, with more than one facility
located on a single city blook, or within 1,000 feet of
another facility.
2007 Never heard in AB 327 Required Department of Social Services, in consultation with
committee. (Horton) the Department of Alcohol and Drug Programs and other
state departments to establish an d maintain a statewide
computeriZed database of community care licensing
facilities and alcoholism and drug abuse treatment and
recovery facilities.
2007 Died in Senate A8724 Defined "sober living home" as a residential property which
Health Committee. (Benoit) is operated as a cooperative living arrangement to provide
an alcohol-and drug-free environment for persons
recovering from alcoholism or drug abuse, or both, who
seek a living environment in which to remain clean and
sober, and which meets other specified requirements.
2007 Vetoed by Governor. S8992 Required the Department of Alcohol and Drug Programs to
(Wiggins) license Adult Recovery Maintenance Facllities.
2009 Died in AB 1055 Expanded the Department of Alcohol and Drug
Assembly (Chesbro) Programs licensure authority for alcohol and drug
Appropriations. treatment facilities to include 24-hour facilities
that do not require a health facility license.
2009 Never heard in SB 214 Provided that a sober living home is exempt from licensure
committee. (Benoit) under specified conditions. A residence housing those
purported to be recovering from drug and alcohol abuse
would be presumed to be a sober living home if It has been
certified, registered, or approved by a recognized
nonprofit organization that provides a credible quality
assurance for applicants or members.
February 19, 2019 Item #3 Page 12 of 21
Year Status Bill, Description
Sponsor
2009 Gut and amended SB 689 Authorized a county or city to proh ibit a person released
to address a (Hollingsworth) 0 parole, after having served a term of imprisonment in
diffeJent 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, u less legally related by blood,
marriage or adoption.
2010 Died in Senate AB 2221 Permitted 24-hour residential treatment facilities
Appropriations. (Beall) that provide service.s to adults recovering from
alcohol and drug abuse that are licensed by the
Department of Alcohol and Drug Programs to
provide medical services and the facility would not
require a health facility license.
2012 Died in Assembly AB40 Required an alcoholism or drug abuse program
Appropriations. (Mansoor) licensee to report specified events or incidents,
including the death of a resident, within one
working day of the event or incident.
2012 Never heard in AB 1983 Defined integral alcohol and drug abuse treatment
committee. (Mansoor) facilities for purposes of licensure by the Department of
Alcohol and Drug Programs and excluded integral
facilities from being residential use of property.
2014 Died in Assembly. AB 2335 Exempted a sober living home or supportive housing
(Mansoor) 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 from licensure.
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
t he community care facility.
2016 Inactive bill. AB 1283 (Bates Allowed a city, county, or both to adopt health and
and Brough) safety standards and enforcement mechanisms for
structured sober living home.s.
February 19, 2019 Item #3 Page 13 of 21
Exhibit 2
City of Costa Mesa Group/Sober Living Home
Briefing Paper
Costa Mesa, California is one of the cities attempting to regulate sober living and group homes through
zoning law. Because of the significant number of sober living homes in Costa Mesa, this issue is of
significant concern to the residents of that city. The City of Costa Mesa created a page on its website to
serve as the main source of information regarding the City's regulation of group homes, including sober
living homes, and certain state licensed facilities. The City states that it is attempting to find a balance
between the needs of its residents, who wish to enjoy the peace and quiet of their homes in a
traditional residential neighborhood, and the needs of those living in residential recovery facilities to
enjoy this same quality of life that Costa Mesa has to offer.
The City has invested substantial resources toward this cause and has revised its Municipal Code to
regulate both small and large group homes as well as large licensed facilities in the City's residential
zones. Following is a grouping of information and resources Costa Mesa is making available to residents
around group homes/ sober living homes. Many of the questions and information contained on the
Costa Mesa website are applicable to Carlsbad as well.
1) Persons recovering from addiction to drugs and/or alcohol are considered to be disabled
under state and federal law.
Since the federal Fair Housing Act ("the Act") was amended by Congress in 1988 to add
protections for persons with disabilities and families with children, there has been a great deal
of litigation concerning the Act's effect on the ability of local governments to exercise control
over group living arrangements, particularly for persons with disabilities. The Department of
Justice has taken an active part in much of this litigation, often following referral of a matter by
the Department of Housing and Urban Development ("HUD"). Following is an overview of the
Fair Housing Act's requirements in this area.
The Fair Housing Act prohibits a broad range of practices that discriminate against individuals on
the basis of race, color, religion, sex, national origin, familial status, and disability. The Act does
not pre-empt local zoning laws. However, the Act applies to municipalities and other local
government entities and prohibits them from making zoning or land use decisions or
implementing land use policies that exclude or otherwise discriminate against protected
persons, including individuals with disabilities.
2} The Fair Housing Act makes it unlawful to:
• Utilize land use policies or actions that treat groups of persons with disabilities less
favorably than groups of non-disabled persons. An example would be an ordinance
prohibiting housing for persons with disabilities or a specific type of disability, such as
mental illness, from locating in a particular area, while allowing other groups of
unrelated individuals to live together in that area.
• Take action against, or deny a permit, for a home because of the disability of individuals
who live or would live there. An example would be denying a building permit for a home
because it was intended to provide housing for persons with mental retardation.
February 19, 2019 Item #3 Page 14 of 21
• Refuse to make reasonable accommodations in land use and zoning policies and
procedures where such accommodations may be necessary to afford persons or groups
of persons with disabilities an equal opportunity to use and enjoy housing.
• The Fair Housing Act requires jurisdictions to offer reasonable accommodation to meet
the needs of disabled persons.
3) What constitutes a reasonable accommodation is a case-by-case determination.
Not all requested modifications of rules or policies are reasonable. If a requested
modification imposes an undue financial or administrative burden on a local
government, or if a modification creates a fundamental alteration in a local
government's land use and zoning scheme, it is not a "reasonable" accommodation.
The Fair Housing Act does not protect persons who currently use illegal drugs, persons
who have been convicted of the manufacture or sale of illegal drugs, or persons with or
without disabilities who present a direct threat to the persons or property of others.
HUD and the Department of Justice encourage parties to group home disputes to
explore all reasonable dispute resolution procedures, like mediation, as alternatives to
litigation.
Adapted from the Joint Statement of the Department of Justice and the Department of
Housing and Urban Development {August 18, 1999)
4) Definitions
Alcoholism or Drug Abuse Recovery or Treatment facility-An adult alcoholism or drug
abuse recovery or treatment facility that is licensed pursuant to Section 11834.01 of the
California Health & Safety Code. Alcoholism or Drug Abuse Recovery or Treatment
Facilities are a subset of Residential Care Facilities.
Conditional use permit (CUP) -A discretionary approval usually granted by the planning
commission which allows a use or activity not allowed as a matter of right, based on
specified findings.
Group home -A facility that is being used as a supportive living environment for
persons who are considered handicapped under state or federal law.
Handicapped -As more specifically defined under the fair housing laws, a person who
has a physical or mental impairment that limits one (1) or more major life activities, a
person who is regarded as having that type of impairment, or a person who has a record
of that type of impairment, not including current, illegal use of a controlled substance.
Integral facilities -Any combination of two (2) or more group homes which may or may
not be located on the same or contiguous parcels of land, that are under the control and
management of the same owner, operator, management company or licensee or any
affiliate of any of them, and are integrated components of one (1) operation shall be
referred to as integral facilities and shall be considered one (1) facility for purposes of
applying federal, state and local laws to its operation. Examples of such integral facilities
include, but are not limited to, the provision of housing in one (1) facility and recovery
February 19, 2019 Item #3 Page 15 of 21
programming, treatment, meals, or any other service or services to program
participants in another facility or facilities or by assigning staff or a consultant or
consultants to provide services to the same program participants in more than one (1)
licensed or unlicensed facility.
Integral uses -Any two (2) or more residential care programs commonly administered
by the same owner, operator, management company or licensee, or any affiliate of any
of them, in a manner in which participants in two (2) or more care programs participate
simultaneously in any care or recovery activity or activities so commonly administered.
Any such integral use shall be considered one (1) use for purposes of applying federal,
state and local laws to its operation.
Operator-A company, business or individual who provides residential services, i.e., the
placement of individuals in a residence, setting of house rules, and governing behavior
of the residents as residents. Operator does not include a property owner or property
manager that exclusively handles real estate contracting, property management and
leasing of the property and that does not otherwise meet the definition of operator.
Permitted use -Any use allowed in a land use zoning district without requiring a
discretionary approval, and subject to the provisions applicable to that district.
Residential Care Facility-A residential facility licensed by the state where care,
services, or treatment is provided to persons living in a supportive community
residential setting.
Single Housekeeping Unit-The occupants of a dwelling unit have established ties and
familiarity with each other, jointly use common areas, interact with each other, share
meals, household activities, and expenses and responsibilities; membership in the single
housekeeping unit is fairly stable as opposed to transient, members have some control
over who becomes a member of the household, and the residential activities of the
household are conducted on a nonprofit basis. There is a rebuttable presumption that
integral facilities do not constitute single housekeeping units. Additional indicia that a
household is not operating as a single housekeeping unit include but are not limited to:
the occupants do not share a lease agreement or ownership of the property; members
of the household have separate, private entrances from other members; members of
the household have locks on their bedroom doors; members of the household have
separate food storage facilities, such as separate refrigerators.
Sober Living Home -a Group Home for persons who are recovering from a drug and/or
alcohol addiction and who are considered handicapped under state or federal law.
Sober living homes shall not include the following: (1) Residential Care Facilities; (2) any
Sober Living Home that operates as a single housekeeping unit.
5) The difference between a Residential Care Facility and a Sober Living Home
A Residential Care Facility is one that is licensed by the California Department of Social
Services (DSS} or the Department of Health Care Services (DHCS). Residential Care
facilities that provide drug and or alcohol abuse treatment are licensed by DHCS and are
known as alcoholism or drug abuse recovery or treatment facilities. Homes are required
to be licensed by the DHCS when at least one of the following services is provided:
February 19, 2019 Item #3 Page 16 of 21
detoxification, group counseling sessions, individual counseling sessions, educational
sessions, or alcoholism or drug abuse recovery or treatment planning.
A Sober Living Home is a home used by people recovering from substance abuse, which
serves as an interim environment between rehab and their future lives. These homes
are not allowed to provide the same services as a DHCS licensed alcoholism or drug
abuse recovery or treatment facility. Sober Living Homes are primarily meant to provide
housing for people who have just come out of rehab and need a place to live that is
structured and supportive for those in recovery.
6) How the City regulates sober living homes.
The City's regulations for group homes, including sober living homes, and state licensed
alcoholism or drug abuse recovery or treatment facilities, are found in Chapters XV and
XVI of Title 13 (Zoning) and Article 23 of Title 9 (Licenses and Business Regulations) Click
Here of the Costa Mesa Municipal Code. The general requirements are as follows:
Group homes, including sober living homes, with 6 or fewer residents, plus one house
manager are allowed to locate in all residential zones with a special use permit (SUP),
which requires:
■ A public hearing in front of the Development Services Director prior to
issuance
■ Notice to all residents and property owners within 500'
■ Written Rules and regulations
■ Relapse policy
■ Manager present 24-hours a day o Garage and driveway must remain
available for parking
■ Residents must park on site or within 400 feet
■ Compliance with all applicable provisions of the California Vehicle Code, such
as those related to parking, stopping and licensure
■ No care and supervision is allowed
■ Full compliance with building and zoning codes
■ If a resident is evicted, operators must notify the resident's emergency
contact and provide transportation to their permanent address
■ If the resident has no home to return to or otherwise refuses transportation
home, the operator must provide transportation to another facility if a bed is
available
■ Sober living homes also require:
■ 650' separation from another sober living home or state licensed alcoholism
or drug abuse recovery or treatment facilities
February 19, 2019 Item #3 Page 17 of 21
• Occupants must be enrolled in Alcoho lics Anonymous or Narcotics
Anonymous
• No use of alcohol or non-prescription drugs -violators must be evicted
• Limits on the number of occupants subject to sex offender registration
• A good neighbor policy that direct occupants to be considerate of neighbors,
including refraining from engaging in excessively loud, profane or obnoxious
behavior that would unduly interfere with a neighbor's use and enjoyment of
their dwelling unit
• No detoxification, counseling sessions or treatment or recovery planning
allowed
State licensed alcoholism or drug abuse recovery or treatment facilities with 6 or fewer
residents are regulated by the DHCS and are not subject to the City's group home
regulations pursuant to state law, but are subject to all other code requirements
applicable to single-family dwellings.
Group homes, sober living homes, and DHCS licensed alcoholism or drug abuse recovery
or treatment facilities with 7 or more residents may locate only in the multiple-family
residential zones. The general requirements are:
• A conditional use permit {CUP) must be obtained
• Public hearing in front of the Planning Commission
• Separation requirements
• Must be 650' away from another group homes, sober living home, or State
licensed alcoholism or drug abuse recovery or treatment facility
• Sober living homes also require an operator's permit which includes most of
the same requirements as a SUP
7) Residential Care Facilities and Group Homes are permitted in single-family residential
neighborhoods (Rl zones}.
The state of California has determined that licensed facilities serving six or fewer residents are
residential uses under state law, and cannot be subject to zoning regulations that do not apply
generally to all residences in an area. Therefore, Residential Care Facilities serving six or fewer
persons are permitted in the Rl zone. Group homes are subject to the City's zoning regulations
and require a SUP (CMMC 13-311).
8) Residential Care Facilities and Group Homes are permitted in multifamily residential zones
(R2-MD, R2-HD, R3, PDR-LD, PDR-HD, PDR-NCM, PDC, and POI}.
February 19, 2019 Item #3 Page 18 of 21
Residential Care Facilities serving six or fewer persons are permitted in multifamily zones
pursuant to state law. Group homes serving six or fewer residents require a SUP (CMMC 13-
311). Residential Care Facilities and Group Homes serving seven or more persons require a CUP .
9) Reasonable Accommodation.
Pursuant to Federal regulations, the city is required to grant disabled individuals reasonable
accommodation from zoning restrictions when necessary to allow equal use or enjoyment of a
dwelling. An accommodation is reasonable if it does not cause undue hardship, fiscal, or
administrative burdens on the municipality, or does not undermine the basic purpose a zoning
ordinance seeks to achieve. A three-part test is applied to determining whether a reasonable
accommodation is necessary:
(1) the accommodation must be reasonable and
(2) necessary, and must,
(3) allow a substance abuser equal opportunity to use and enjoy a particular dwelling.
The city must make exceptions in its zoning rules to afford people with disabilities the same
access to housing as those who are without disabilities. However, fundamental or substantial
modifications from municipal or zoning codes are not required .
10) When a state license is required.
The DHCS licenses facilities providing 24-hour residential nonmedical services to eligible adults
who are recovering from alcohol or other drug misuse or abuse. Facilities are required to be
licensed by the DHCS when they offer at least one of the following services:
0 Detoxification
0lndividual or group sessions
0 Education
0Recovery or treatment planning
0lndividualized 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 19 of 21
12) Limitations on the number of Group Homes that can locate in a certain area.
The Department of Justice and HUD take the position, and most courts that have addressed the
issue agree, that density restrictions are generally inconsistent with the Fair Housing Act. We
also believe, however, that if a neighborhood came to be composed largely of group homes,
that could create an institutional setting. Such a setting would be inconsistent with the objective
of integrating persons with disabilities into the community. This objective does not, however,
justify separations which have the effect of foreclosing group homes from locating in entire
neighborhoods.
The City has established a separation standard of 650 feet between group homes and
Residential Care Facilities serving those in recovery. This separation standard only applies to
those facilities subject to the City's permitting requirements. The intent is to allow about one
such facility per block. The City adopted this standard to prevent neighborhoods from becoming
institutionalized with multiple group homes. The intent of state law in allowing these facilities in
residential neighborhoods is to allow those in recovery to live in a residential setting.
13) Group homes are not considered a business operation.
State law provides that cities must treat licensed facilities serving six or fewer residents as a
single-family residential use. Federal and state fair housing laws protect people with disabilities
from housing discrimination. Recovering alcoholics and drug addicts are disabled for purposes of
anti-discrimination laws. When people in recovery live together in a sober living home, the city
cannot discriminate on the basis of the disability, which means an ordinance cannot treat sobe r
living homes differently than other similar uses in residential zones.
14) The City allows neighbors to provide input when the City is making a decision about
granting a permit to a Group Home or licensed care facility to locate in a residential
neighborhood.
The City modified its regulations to require a public hearing prior to approving a SUP. SUPs allow
sober living homes serving six or fewer residents to operate in a residential zone. The City's
regulations stipulate that an SUP can only be denied if it fails to comply with the zoning code .
The purpose of the hearing is to allow neighbors to provide evidence as to the facility's
compliance with the zoning code. Decisions regarding SUPs may be appealed to the Planning
Commission.
Facilities serving more than seven residents require approval of a CUP. The Planning
Commission must hold a public hearing prior to taking action on a CUP. The Commission may
impose conditions of approval to ensure the use is compatible with the neighborhood. The
decisions of the Planning Commission may be appealed to the City Council.
The City provides notices of these public hearings to all owners and occupants of property
within 500 feet of the proposed group home. Notice is also published in the Daily Pilot at least
ten days prior to the hearing, and notices are posted on the subject property. The City also
maintains an email interest list and provides informal notice when hearings involving group
homes are scheduled. To sign up for this list, Click here and enter in subject line: Interest list
February 19, 2019 Item #3 Page 20 of 21
15) Factors the City may consider when evaluating an application for a group home or licensed
care facility
In the same way a local government would break the law if it rejected low-income housing in a
community because of neighbors' fears that such housing would be occupied by racial
minorities, a local government can violate the Fair Housing Act if it blocks a group home or
denies a requested reasonable accommodation in response to neighbors' stereotypical fears or
prejudices about persons with disabilities. This is so even if the individual government decision-
makers are not themselves personally prejudiced against persons with disabilities. If the
evidence shows that the decision-makers were responding to the wishes of their constituents,
and that the constituents were motivated in substantial part by discriminatory concerns, that
could be enough to prove a violation. Of course, the City Council and Planning Commission are
not bound by everything that is said by every person who speaks out at a public hearing. It is the
record as a whole that will be determinative. If the record shows that there were valid reasons
for denying an application that were not related to the disability of the prospective residents,
the courts will give little weight to isolated discriminatory statements. If, however, the
purportedly legitimate reasons advanced to support the action are not objectively valid, the
courts are likely to treat them as pretextual, and to find that there has been discrimination. The
decision makers must base decisions on specific evidence regarding the application under
consideration. If the facility is creating specific problems that interfere with the ability of
surrounding residents to enjoy their property, those issues may properly influence the decision.
However, City officials cannot base decisions to approve or deny these applications based on
stereotypical fears or general concerns about possible impacts.
16) Types of conditions the City may impose when approving a group home or residential care
facility.
When approving a CUP, the City may impose conditions necessary to ensure compliance with its
regulations, and to address operational considerations that may be creating issues in the area.
However, conditions may not discriminate against the residents of the home by denying them
privileges enjoyed by other residents in the neighborhood. Since the City does not limit the
number of cars that may be kept at any residence, for instance, the City may not impose
conditions limiting the number of vehicles that can be kept at a group home.
17) Protections for individuals who may be evicted from a group home
The City requires operators to notify the resident's emergency contact at least 48 before
evicting a resident. The operator is also obligated to provide transportation back to the
resident's permanent address. Further, operators are required to contact OC Links, the County
of Orange referral service, and the City's Network for Homeless Solutions, to determine if
services are available for the resident. If the resident refuses transportation back to their
permanent address, and there is a bed available in another facility, the operator is required to
provide transportation to that facility.
February 19, 2019 Item #3 Page 21 of 21
Exhibit 3
Sober Living Homes Briefing Paper
Reference/Research Materials
1. MacCannell, Jason and Hogue, Kellie Jean, "Sober living homes in California: Option for State and
Local Regulation," California Research Bureau, September, 2016.
2. Chrisi Hogan, "Sober Living Businesses in Residential Zones," Western City, August 1, 2014,
www.westerncity.com/article/sober-living-businesses-residential-zones.
3. Rick McNeil, Colin Higgins, Leslie Barron, "Rumble in the Riviera," OC Lawyer, April 1, 2016.
4. Joint Statement, Department of Housing and Urban Development and the United States Department
of Justice, August 6, 2015, www.justice.gov/crt/joint-statement-department-justice-and-department-
housing-and-urban-development.
5. Joint Statement of the Department of Justice and the Department of Housing and Urban
Development -Group Homes, Local Land Use and the Fair Housing Act, August 18, 1999 and updated
November 14, 2016, www.idaholegalaid.org/files/HUD-DOJ Statement ReGrpHm-
localLandUseandTheFairHousingAct.pdf.
6. City of Los Alamitos Frequently Asked Question (FAQ) Guide -Residential Care Facilities Non-Licensed
Residential Homes, December 14, 2015, https://cityoflosalamitos.org/?wpfb dl=2060.
7. "Three Legal Protections California Local Governments and Providers of Sober and Other Independent
Living for Persons with Disabilities Need to Know," Future Associates Inc., Solutions for Treatment
Expansion Project (STEP), July 2009, https://soberhousing.net/wp-
content/uploads/2016/01/Legal Protections FINAL.pdf.
8. Joint Statement of the Department of Housing & Urban Development and the Department of Justice,
State and Local Land Use Laws & Practices and the application of the Fair Housing Act, November 10,
2016.
9. Joint Statement of the Department of Housing & Urban Development and the Department of Justice,
Reasonable Accommodations under the Fair Housing Act, May 14, 2004.
Debbie Fountain
Community and Economic Development Director
Feb. 19, 2019
Sober Living Homes & Regulations
Report
City Council Request
September 11, 2018 City Council Motion:
“to place the discussion of sober living facility
regulations on a future agenda”.
Sober living homes
•Group homes: typically 6 or fewer residents
-Addiction recovery
-Residences, not treatment facilities
•Limited licensing and zoning requirements
•Residents are considered disabled (addiction)
•Protected under federal and state law
Sober Living Neighbor Concerns
•Neighborhood impact
–Noise, smoking, language
•Traffic & parking
•Property values
•Overconcentration
Efforts to regulate
•The Fair Housing Act
–Prohibits discrimination against the disabled
•Agencies attempt to regulate
–Limit the #, distance & operational restrictions
•Met with legal challenges
–Bills: 25:3:0
•Costa Mesa
Costa Mesa regulations
•650-foot buffer
•Special permit
–6 resident cap
–live-in manager, no alcohol or nonprescription drugs
–No “loud, profane or obnoxious” behavior
•Background checks for house managers
•Federal jury sides with Costa Mesa
•Case cost: $2 million
•Appeal planned
Options
•Certification of sober living homes
•Partner with legislators
•Require a business license
–Good neighbor rules & annual inspections
•Costa Mesa Ordinance
–Wait, see, follow?
•Ad Hoc Citizen Advisory Committee
Summary
•Sober living homes enjoy legal protection
•Resident concerns shared nationwide
•No license, no count
•Legal options
–Costly
–Likely to fail
•City Council direction
Thank You
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
City of Carlsbad
Community Development Department | MAY 2020
Attachment B
1
PAGE INTENTIONALLY LEFT BLANK
Contents
Executive Summary .................................................................................................................. 3
Purpose & Types ........................................................................................................................ 5
Purpose ........................................................................................................................................ 5
Types of Facilities ........................................................................................................................ 5
Sober Living Homes (SLHs) ...................................................................................................... 5
Residential Care Facilities (RCFs) ............................................................................................. 5
Professional Care Facility (PCFs) .............................................................................................. 6
Laws Governing Group Homes .............................................................................................. 7
The Basics ................................................................................................................................... 7
Federal Acts & Laws .................................................................................................................... 7
Federal Fair Housing Act ......................................................................................................... 7
Federal Americans with Disabilities Act .................................................................................. 8
State Acts & Laws ........................................................................................................................ 8
California Fair Employment and Housing Act .......................................................................... 8
California Planning and Zoning Law ........................................................................................ 9
California Caselaw ....................................................................................................................... 9
City of Santa Barbara v. Adamson ........................................................................................... 9
Broadmoor San Clemente Homeowners Assn. v. Nelson ........................................................ 9
City of Los Angeles v. Department of Health ........................................................................... 9
Local & State Permitting Limitations ................................................................................. 11
City Business License ............................................................................................................. 11
State License .......................................................................................................................... 11
City Ministerial Permit ........................................................................................................... 12
City Discretionary Permit ....................................................................................................... 12
Attempts to Change the Laws ............................................................................................. 13
California Lawsuits Affecting RGHs ........................................................................................... 13
City of Newport Beach ........................................................................................................... 13
City of Costa Mesa ................................................................................................................. 14
Ad-Hoc Subcommittee Meeting on SLHs ......................................................................... 16
Public Concerns & Comments ................................................................................................... 16
2
Legal Concerns ....................................................................................................................... 17
Building & Zoning Concerns .................................................................................................. 18
Safety Questions .................................................................................................................... 19
Ad Hoc Committee Questions ............................................................................................... 19
Conclusion .................................................................................................................................. 20
City’s Legislative Program .......................................................................................................... 20
Changes Resulting from Lawsuits .............................................................................................. 20
Continued Enforcement ............................................................................................................ 20
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
3
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 July 23, 2019, the City Council adopted a resolution 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.
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.
As further detailed in the report, 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 can 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.
• 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, trash).
City staff respectfully submit that the subcommittee meeting held on Jan. 29, 2020, this report on RGHs and
the anticipated May 12, 2020 City Council meeting to present this report, satisfy the City Council’s July 23,
2019 direction.
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5
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 or fewer persons, 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
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• Alcoholism or Drug Abuse Recovery Counseling
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.
--
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Laws Governing Group Homes
The allowance and regulation of RGHs can be traced back to various federal and state statutes as
well as caselaw. 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)
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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.
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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, including 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.
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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 Department of Health Care Services (DHCS) is the state agency that finances and administers
several individual health care service delivery programs. Within DHCS, the Substance Use Disorder
Compliance Division, Licensing and Certification Branch is responsible for licensing RGHs that
provide non-medical treatment and ensuring that the facility provides quality services to all
program participants in a safe and healthful environment.
The DHCS 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.
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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
1 Refer to “Types of Facilities,” pages 5-6
City Authority
Facility
Type1
Number of
Occupants1
Medical
Services
Provided?1
Non-Medical
Services
Provided?1
State
License
Required?
Can a
Business
License be
Required?
Can a
Discretionary
Permit be
Required?
Sober Living
Home ≤ Six No No No No No
Sober Living
Home ≥ Seven No No No No No
Residential Care
Facilities ≤ Six No Yes Yes Yes No
Residential Care
Facilities ≥ Seven No Yes Yes Yes Yes
Professional
Care Facilities ≥ One Yes Yes Yes Yes Yes
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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 (02/27/2018), 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 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.
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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 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
7 Pacific Shores Properties, LLC et al. v. City of Newport Beach, 730 F.3d 1142, 1157 (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 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 Socal Recovery, LLC v. City of Costa Mesa et al., 8:18-CV-01304.
15
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.
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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 July 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 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 subcommittee meeting.
• Legal Concerns
• Zoning & Building Concerns
• Safety Concerns
• Subcommittee and Process Concerns
The sections below include staff responses to each of these general categories.
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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
Fair Housing Act (“FHA”) and the Americans with Disabilities Act (“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 Circ.
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 January 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,
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.
18
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 imposed uniformly staff does not on all 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 RGHs 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
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
14 https://www.justice.gov/crt/joint-statement-department-justice-and-department-housing-and-urban-development
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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, all 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.
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Conclusion
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 RGHs 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 can pursue 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.
An update to the Legislative Platform is tentatively scheduled for City Council consideration
sometime in spring 2020. 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 Sober Living Homes and the Regulation They Need, Governing, MAY 14, 2018