Existing law provides that no person shall, on the basis of race, national origin, ethnic group identification, religion, age, sex, sexual orientation, color, genetic information, or disability, be unlawfully denied full and equal access to the benefits of, or be unlawfully subjected to discrimination under, any program or activity that is conducted, operated, or administered by the state or by any state agency, is funded directly by the state, or receives any financial assistance from the state.

This bill would afford persons experiencing homelessness the right to use public spaces without discrimination based on their housing status and describe basic human and civil rights that may be exercised without being subject to criminal or civil sanctions, including the right to use and to move freely in public spaces, the right to rest in public spaces and to protect oneself from the elements, the right to eat in any public space in which having food is not prohibited, and the right to perform religious observances in public spaces, as specified. The bill would state the intent of the Legislature that these provisions be interpreted broadly so as to prohibit policies or practices that are discriminatory in either their purpose or effect.

The bill would authorize a person whose rights have been violated pursuant to these provisions to enforce those rights in a civil action in which the court may award the prevailing plaintiff injunctive and declaratory relief, restitution, damages, statutory damages of $1,000 per violation, and fees and costs.

The bill would also require all applicants for the United States Department of Housing and Urban Developments Continuum of Care Homeless Assistance Program to annually provide to the Department of Housing and Community Developments Division of Housing Policy Development a copy of its application for funding from the United States Department of Housing and Urban Development that includes the organizations response to the application question regarding steps that its community is taking to reduce criminalization of homelessness. Because the bill would require local agencies to perform additional duties, it would impose a state-mandated local program. The bill would require the Department of Housing and Community Development to compile the information regarding community actions to reduce criminalization of homelessness found in those applications and provide a report to the Assembly Housing and Community Development Committee and the Senate Transportation and Housing Committee

The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.

This bill would provide that, if the Commission on State Mandates determines that the bill contains costs mandated by the state, reimbursement for those costs shall be made pursuant to these statutory provisions.

Existing law provides that no person shall, on the basis of race, national origin, ethnic group identification, religion, age, sex, sexual orientation, color, genetic information, or disability, be unlawfully denied full and equal access to the benefits of, or be unlawfully subjected to discrimination under, any program or activity that is conducted, operated, or administered by the state or by any state agency, is funded directly by the state, or receives any financial assistance from the state.

This bill would afford persons experiencing homelessness the right to use public spaces without discrimination based on their housing status and describe basic human and civil rights that may be exercised without being subject to criminal or civil sanctions, including the right to use and to move freely in public spaces, the right to rest in public spaces and to protect oneself from the elements, the right to eat in any public space in which having food is not prohibited, and the right to perform religious observances in public spaces, as specified. The bill would state the intent of the Legislature that these provisions be interpreted broadly so as to prohibit policies or practices that are discriminatory in either their purpose or effect.

The bill would authorize a person whose rights have been violated pursuant to these provisions to enforce those rights in a civil action in which the court may award the prevailing party plaintiff injunctive and declaratory relief, restitution, damages, statutory damages of $1,000 per violation, and fees and costs.

The bill would also require all applicants for the United States Department of Housing and Urban Developments Continuum of Care Homeless Assistance Program to annually provide to the Department of Housing and Community Developments Division of Housing Policy Development a copy of its application for funding from the United States Department of Housing and Urban Development that includes the organizations response to the application question regarding steps that its community is taking to reduce criminalization of homelessness. Because the bill would require local agencies to perform additional duties, it would impose a state-mandated local program.

The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.

This bill would provide that, if the Commission on State Mandates determines that the bill contains costs mandated by the state, reimbursement for those costs shall be made pursuant to these statutory provisions.

Existing law provides that no person shall, on the basis of race, national origin, ethnic group identification, religion, age, sex, sexual orientation, color, genetic information, or disability, be unlawfully denied full and equal access to the benefits of, or be unlawfully subjected to discrimination under, any program or activity that is conducted, operated, or administered by the state or by any state agency, is funded directly by the state, or receives any financial assistance from the state.

This bill would expand those provisions to also include exclusion or discrimination based upon homeless status. The bill would prohibit cities, counties, cities and counties, and municipal agencies that receive state funds from enacting or enforcing a law that bans resting in a public space, as defined. The bill would afford persons experiencing homelessness the right to use public spaces without discrimination based on their housing status and describe basic human and civil rights that may be exercised without being subject to criminal or civil sanctions, including the right to use and to move freely in public spaces, the right to rest in public spaces and to protect oneself from the elements, the right to eat in any public space in which having food is not prohibited, and the right to perform religious observances in public spaces, as specified. Because the bill would require local agencies to perform additional duties, it would impose a state-mandated local program. The bill would state the intent of the Legislature that these provisions be interpreted broadly so as to prohibit policies or practices that are discriminatory in either their purpose or effect.

The bill would authorize a person whose rights have been violated pursuant to these provisions to enforce those rights in a civil action in which the court may award the prevailing party injunctive and declaratory relief, restitution, damages, statutory damages of $1,000 per violation, and fees and costs.

The bill would also require all applicants for the United States Department of Housing and Urban Developments Continuum of Care Homeless Assistance Program to annually provide to the Department of Housing and Community Developments Division of Housing Policy Development a copy of its application for funding from the United States Department of Housing and Urban Development that includes the organizations response to the application question regarding steps that its community is taking to reduce criminalization of homelessness. Because the bill would require local agencies to perform additional duties, it would impose a state-mandated local program.

Existing law provides that no person shall, on the basis of race, national origin, ethnic group identification, religion, age, sex, sexual orientation, color, genetic information, or disability, be unlawfully denied full and equal access to the benefits of, or be unlawfully subjected to discrimination under, any program or activity that is conducted, operated, or administered by the state or by any state agency, is funded directly by the state, or receives any financial assistance from the state.

This bill would expand those provisions to also include exclusion or discrimination based upon homeless status. The bill would prohibit cities, counties, cities and counties, and municipal agencies that receive state funds from enacting or enforcing a law that bans resting in a public space, as defined. The bill would afford persons experiencing homelessness the right to use public spaces without discrimination based on their housing status and describe basic human and civil rights that may be exercised without being subject to criminal or civil sanctions, including the right to use and to move freely in public spaces, the right to rest in public spaces and to protect oneself from the elements, the right to eat in any public space in which having food is not prohibited, and the right to perform religious observances in public spaces, as specified. Because the bill would require local agencies to perform additional duties, it would impose a state-mandated local program.

The bill would authorize a person whose rights have been violated pursuant to these provisions to enforce those rights in a civil action in which the court may award the prevailing party injunctive and declaratory relief, restitution, damages, statutory damages of $1,000 per violation, and fees and costs.

The bill would also require all applicants for the United States Department of Housing and Urban Developments Continuum of Care Homeless Assistance Program to annually provide to the Department of Housing and Community Developments Division of Housing Policy Development a copy of its application for funding from the United States Department of Housing and Urban Development that includes the organizations response to the application question regarding steps that its community is taking to reduce criminalization of homelessness.

The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.

This bill would provide that, if the Commission on State Mandates determines that the bill contains costs mandated by the state, reimbursement for those costs shall be made pursuant to these statutory provisions.

SENATE COMMITTEE ON TRANSPORTATION AND HOUSING

Senator Jim Beall, Chair

2015 - 2016 Regular

Bill No: Hearing Date: 4/12/2016

SUBJECT:

DIGEST: This bill affords persons experiencing homelessness the right to use public space without discrimination based on their housing status and a civil remedy if their rights pursuant to this bill are violated.

ANALYSIS:

Existing law:

1. Provides that no person shall be unlawfully denied full and equal access to the benefits of, or discriminated under, any program or activity that is conducted, operated, or administered by the state or by any state agency, on the basis of race, national origin, ethnic group identification, religion, age, sex, sexual orientation, color, genetic information, or disability.
2. Provides that any person who lodges in any building, structure, vehicle, or place, public or private, without the permission of the owner or person entitled to the possession or control of it shall be guilty of disorderly conduct, a misdemeanor, punishable by imprisonment in the county jail not exceeding six months, or by a fine not exceeding $1,000, or both.

This bill:

1. Provides that persons experiencing homelessness shall be permitted to use public space (specified below) at any time that the public space is open to the public, without discrimination based upon their housing status, and without being subject to criminal, civil, or administrative penalties. The intent of the Legislature is that this section shall be interpreted broadly so as to prohibit policies or practices that are discriminatory in either their purpose or their effect. Persons experiencing homelessness may use public space including, but not limited to, all of the following:
2. Free movement without restraint
3. Sleeping or resting, and protecting oneself from the elements while sleeping or resting, in a non-obstructive manner
4. Eating, sleeping, accepting, or giving food in a space in which food is not otherwise generally prohibited
5. Praying, meditating, worshiping, or practicing religion
6. Defines “public space” as any property that is owned by a government entity or upon which there is an easement for public use and that is held open to the public, including, but not limited to, plazas, courtyards, parking lots, sidewalks, public transportation facilities and services, public buildings, shopping centers, and parks. The ability to rest shall not apply to a space during a time when it is closed to all persons or when a fee is required for entry or use.
7. Defines “rest” as the state of not moving, holding certain postures that include, but are not limited to, sitting, standing, leaning, kneeling, squatting, sleeping, or lying.
8. Provides that nothing in this bill shall prevent law enforcement from enforcing laws to protect the right of people to use the sidewalk pursuant to the federal Americans with Disabilities Act.
9. Provides that nothing in this bill shall prevent law enforcement from enforcing the Penal Code, except Penal Code Section 647(e) insofar as it prohibits rest. This exception would exempt a person from committing a misdemeanor if that conduct is protected under this bill.
10. Provides that a person whose rights are violated pursuant to this bill may enforce those rights in a civil action and may be entitled to: injunctive and declaratory relief; restitution for loss of property or personal effects and belongings; actual damages; compensatory damages; exemplary damages; statutory damage of $1,000 per violation; and reasonable attorney’s fees and costs to a prevailing plaintiff.
11. Requires all applicants for the U.S. Housing and Urban Development’s (HUD) Continuum of Care Homeless Assistance Program funds to annually provide the Department of Housing and Community Development’s Division for Housing Policy Development (DHPD) a copy of its application for funding from HUD that includes the organization’s response to the application question regarding steps that its community is taking to reduce criminalization of homelessness. DHPD shall compile the information regarding community actions to reduce criminalization of homelessness found in those applications and provide an annual report to the Assembly Housing and Community Development Committee and the Senate Transportation and Housing Committee.

COMMENTS:

1. Purpose. The author states homelessness is the most severe face of poverty. California is the eighth largest economy in the world, yet home to the nation’s largest homeless population. This bill seeks to end the criminalization of the non-criminal activities of life exercised by homeless people by protecting the freedom of movement, sitting, standing, lying, and sleeping, and clarifying that people shall have the right to share food and practice religion in public in California. With poverty and homelessness reaching record numbers in California, there has been a documented increase in laws that target people without homes and impact the poor. These anti-homeless laws — commonly referred to as “vagrancy,” “quality of life,” or “anti-nuisance” laws — deny people the right to exist in public. A survey of homeless people conducted by the Western Region Advocacy Project revealed that the majority of people without homes do not know of a safe place to sleep at night where they would not be arrested.

A report published by United States Interagency Council on Homelessness (US ICH), called “Searching out Solutions: Constructive Alternatives to Criminalization,” demonstrates that enforcement of laws against resting is ineffective; it does not increase business revenue or improve public perception of the problem of homelessness. These laws effectively make it harder for people to escape homelessness because the resulting warrants, fines, and criminal records make people ineligible for jobs and housing. To that end, HUD included additional points to applications for 2015 Continuum of Care Program funding that include steps the community is taking to reduce the criminalization of the homeless. Cities cannot continue to punish homeless individuals for engaging in activities necessary for their survival. Arresting or ticketing the homeless creates a criminal record that can lead to rejection for jobs, education loans, and housing, and further blocks their pathway out of poverty.

1. Factors contributing to homelessness. Homelessness is the most severe face of poverty. According to HUD, California had 115,738 homeless people, or 21% of the nation’s overall homeless population, in January 2015. California had the highest rate of unsheltered homeless people at 64% and the second largest increase of homeless persons at 1.6%. California also had the largest numbers of unaccompanied homeless children and youth and veterans, and over one-third of the nation’s chronically homeless population.

Contemporary homelessness began in the early 1980s due to shifts in economic and social policy at the federal level, such as dramatic cuts in affordable housing and other programs designed to serve low-income people. These economic and social policies continue to contribute to homelessness today. In addition, California’s homelessness rates are exacerbated by the state’s lack of affordable housing and decreased housing funding from the loss of statewide funding. Rents have risen to levels that make it difficult for low-wage workers to find affordable rental units. California has one of the nation’s highest rates of “poor renters,” or people that spend more than 50% of their income on rent. While most homeless people in the U.S. lived in emergency shelters or transitional housing in 2013, most homeless people in California were unsheltered. California’s high housing costs and shortage of shelters leave many homeless people with no choice but to rest and sleep in public.

1. Data indicates vagrancy laws punish status, not behavior. Researchers from the Policy Advocacy Clinic at the University of California at Berkeley Law School identified and analyzed more than 500 municipal laws that criminalize standing, sitting, resting, sleeping, and sharing of food in public places in its report “California’s New Vagrancy Laws: The Growing Enactment and Enforcement of Anti-Homeless Laws in the Golden State.” The report found that the number of ordinances targeting those behaviors rose with the increase in homelessness following the sharp decline of federal funding for affordable housing in the 1980s and again with the Great Recession in 2008. Researchers noticed a similar correlation between arrests and the economy; arrests rose during times of economic recessions and fell during rises in the economy. The report noted that these trends indicate that enforcement of vagrancy ordinances increases in response to deteriorating economic conditions and rising levels of homelessness.

Since 2011, despite decreases in unemployment and reduced impacts of the Great Recession, vagrancy arrests have continued to trend upwards. Additionally, researchers found that statewide arrests for these types of offenses rose by 77%, while arrests for drunkenness and disorderly conduct have decreased by 16% and 48% respectively. The report suggests that homeless people are being punished for their status, rather than their behavior.

1. Creating barriers to housing and other services. The Western Regional Advocacy Project (WRAP) led a survey effort documenting homeless people’s experiences with the criminal justice system for survival-related crimes. More than three-quarters of survey respondents (78%) reported being harassed, cited, or arrested by police officers for sleeping outside. Seventy-five percent reported the same for sitting or lying down, and 76% for loitering or “hanging out.” Most of the relevant laws are infractions, which generally do not result in jail or prison time but do carry significant fines. Due to an inability to pay fines or make a court appearance, 57% reported bench warrants for their arrest.

Arrests and criminal records create a significant barrier to employment. For those who are working, an arrest or associated court appearances can cost them their jobs. Involvement with the criminal justice system often limits a person’s eligibility for public programs, cutting them off from the social safety net. WRAP suggests that enforcement of these laws ultimately does not address the root causes of homelessness and could bar the homeless from accessing public assistance, qualifying for public housing, and finding and maintaining employment.

1. Local costs? Opponents argue that the enactment of this bill will lead to increased local costs and loss of revenues associated with maintenance and repair to public parks, public facilities, and open spaces, and would impact businesses. The researchers at the Policy Advocacy Clinic at the UC Berkeley Law School argue, however, that it might be more costly to enforce these vagrancy laws. In addition to time police officers spend issuing citations, the justice system spends time and money processing them. In San Francisco alone, the Superior Court processing costs for anti-homeless citations was estimated at $4.10 per case in 2000, resulting in $77,900 in costs that year. The San Francisco District Attorney’s office then spent $317,086 processing infractions and misdemeanors that same year.

An analysis published by the US ICH analyzed cost studies of homeless interventions conducted between 2004 and 2009 in major U.S. cities, including Los Angeles and San Francisco, and found that U.S. jurisdictions spend an average of $87 per day to incarcerate an individual in a county jail, but only $28 per day to offer shelter. Further, programs that offer housing and supportive services, such as Project 50 in Los Angeles, realized a surplus after two years due to savings on incarceration and medical services. The researchers at the Policy Advocacy Clinic at the UC Berkeley Law School conclude that enforcement efforts may burden cities with significant financial costs.

1. Right for homeless people to use public space. This bill would establish a right for a homeless person to use public spaces in the same manner as any other person without discrimination based upon their housing status and without being subject to criminal, civil, or administrative penalties. This bill does not preclude a local jurisdiction from restrictions on use of public space, so long as those restrictions do not treat homeless and non-homeless persons differently. For example, a city may impose time restrictions on the use of a park, so long as the restriction is not intended to target the homeless or is only being enforced against them.

This bill also does not preclude law enforcement from enforcing the California Penal Code or laws that protect the right of people to use the sidewalk pursuant to the federal Americans with Disabilities Act. Further, a person whose rights have been violated may enforce those rights in a civil action and be entitled to appropriate relief and damages, including restitution and reasonable attorneys’ fees.

1. Differences from SB 608. This bill is similar to SB 608, which was heard in the Senate Transportation and Housing Committee last year. The author’s office made the following changes to that bill to address concerns raised by members of this committee and the opposition:

• Deleted the definitions of “BID Agents,” as the bill no longer applies to them;
• Deleted the definition of “harassment,” as the bill no longer applies to harassing behaviors;
• Deletes the protection of people who are lawfully occupying their car or recreational vehicle;
• Clarifies the bill applies only to “public space,” or space held open to the public, and does not apply to public space when it is closed to all persons or subject to a fee for entry or use;
• Clarifies that the bill does not prevent law enforcement from enforcing laws to protect the rights of people to use the sidewalk pursuant to the federal Americans with Disabilities Act;
• Clarifies that the bill does not prevent law enforcement from enforcing the California Penal Code, except insofar as it prohibits rest in public space.

1. Opposition. Opponents argue that this bill would preempt local authority to address important issues affecting public health and safety in public spaces and on property held open to the public. Further, opponents allege that this bill will not help the problem and would instead undermine existing efforts to address homelessness. Instead, they propose providing resources to provide permanent housing beds and accompanying social services such as mental health treatment, job training, and addiction counseling.
2. Double-referral. The Senate Rules Committee has referred this bill to both this committee and the Judiciary Committee.

Related Legislation:

SB 608 (Liu, 2015) — would have created the Right to Rest Act, which would afford persons experiencing homelessness the right to use public space without discrimination based on their housing status and a civil remedy if their rights pursuant to the Act are violated. This bill failed passage in the Senate Transportation and Housing Committee.

AB 5 (Ammiano, 2014) — would have created the Homeless Person’s Bill of Rights and Fairness Act, which: 1) prohibited discrimination against the homeless by public entities; 2) provided that every person had the right to move freely, rest, eat, accept or give food or water, and solicit donations in public spaces; and 3) established the right to lawful self-employment, confidentiality of specified records, and assistance of legal counsel. The bill also required the Department of Public Health to fund the provision of health and hygiene centers for use by homeless persons in designated areas. This bill was held on suspense in the Assembly Appropriations Committee.

FISCAL EFFECT: Appropriation: No Fiscal Com.: Yes Local: Yes

POSITIONS: (Communicated to the committee before noon on Wednesday,

March 23, 3016.)

SUPPORT:

ACLU of California

Affordable Homeless Housing Alternatives, Inc.

Affordable Housing Network of Santa Clara County

Alameda County Health Care for the Homeless Program Consumer/Community Advisory Board

Alchemist Community Development Corporation

Alliance of White Antiracists Everywhere

American Friends Service Committee

Anti-Eviction Mapping Project

Building Opportunities for Self-Sufficiency

California Central Valley Journey for Justice

California Church IMPACT

California Civil Liberties Advocacy

California Coalition for Women Prisoners

California Food Policy Advocates

California Partnership

California Partnership to End Domestic Violence

Caduceus Justice

Civic Center Roundtable

Coalition on Homelessness San Francisco

Community Homeless Alliance Ministry

Compass Family Services

Consumer Attorneys of California
Courage Campaign

Critical Resistance Oakland

Critical Resistance Los Angeles

Denver Homeless Out Loud

Disability Rights California
East Bay Community Law Center

Ella Baker Center for Human Rights

Episcopal Community Services of San Francisco

Faith in Action Bay Area

Food Not Bombs

Fort Collins Homeless Coalition

Gray Panthers

Health Care for the Homeless - Sacramento

H.O.M.E.L.E.S.S.

Homeless Action Center

Homeless Advocates for CHRIST

Hospitality House

Housing California

Housing for All Alliance of Silicon Valley

Housing Rights Committee of San Francisco

Hunger Action Los Angeles 

Humboldt Unitarian Universalist Fellowship Social Action Committee

The Instituto de Educacion Popular del Sur de California

Justice Reform Coalition

Larkin Street Youth Services

Legal Services for Prisoners with Children

Los Angeles Catholic Worker

Jericho, a Voice for Justice
Los Angeles Community Action Network
Los Angeles Human Right to Housing Collective

Los Angeles Poverty Department
Lawyers Committee for Civil Rights of The San Francisco Bay Area

Manilatown Heritage Foundation

Mission Neighborhood Resource Center

Mutual Housing California

National Association of Social Workers — California chapter
National Coalition for the Homeless

National Law Center on Homelessness & Poverty

National Lawyers Guild – Sacramento Chapter

People Organized for Westside Renewal

Planting Justice

Prison Activist Resource Center

Resources for Independent Living

Sacramento Homeless Organizing Committee
Sacramento Housing Alliance

Sacramento Hunger Coalition

Sacramento Loaves and Fishes

Sacramento Regional Coalition to End Homelessness

Safe Ground Sacramento
San Francisco Tenants Union
Senior & Disability Action

Silicon Valley De-Bug

St. Anthony Foundation

St. James Infirmary
St. Mary’s Center

Stop LAPD Spying Coalition

Street Spirit

Suitcase Clinic

Tenants Together

Transition Albany

United Coalition East Prevention Project

Venice Community Housing Corporation
Veterans Democratic Club of Sacramento County

Watts Labor Community Action Committee

Western Center on Law & Poverty, Inc.
Western Regional Advocacy Project
Women Organizing Resources, Knowledge and Services

149 individuals

OPPOSITION:

Advanced Knitting Mills, Inc.

Alameda; City of

Albany; City of

Alhambra; City of

American Planning Association, California Chapter

Antioch; City of

Association of California Cities – Orange County

Azusa City Council

Bellflower; City of

Buena Park; City of

Building Owners and Managers Association of California

California Apartment Association
California Business Properties Association

California Chamber of Commerce

California Downtown Association

California Police Chiefs Association
California State Sheriffs' Association

California Travel Association
Carpinteria; City of

Carson; City of

Cathedral City; City of
Central City Association of Los Angeles

Central City East Association

Chino Hills; City of

Civil Justice Association of California

Clayton; City of

Clearlake; City of

Cloverdale; City of

Colton; City of

Commercial Real Estate Development Association

Concord; City of
Covina; City of

Danville; City of
Del Paso Blvd Partnership

Desert Hot Springs; City of

Diamond Bar; City of

Downey; City of

Downtown Long Beach Associates

Downtown Pomona Owners Association

Downtown Sacramento Partnership

Dublin; City of

El Cajon; City of

Farmersville; City of

Fortuna; City of

Fountain Valley; City of

Fowler; City of

Fremont; City of

Glendora; City of

Greater Merced Chamber of Commerce

Greenfield; City of

Harold Markey and Son

Hayward; City of

Highland; City of

Hollywood Property Owners Alliance

Huntington Park; City of

Imperial Beach; City of

Indian Wells; City of

Indio; City of

Inner-City Arts

International Council of Shopping Centers

La Cañada Flintridge; City of
LA Fashion District

La Habra; City of

La Mirada; City of

La Quinta; City of

Laguna Beach; City of

Lake Elsinore; City of

Lakeport; City of

Lakewood; City of

Leadership of Mt. Shasta

League of California Cities

League of California Cities, Los Angeles County Division

Lincoln; City of

Little Tokyo Lofts

Livermore; City of

Lodi; City of
Long Beach; City of

Los Angeles Area Chamber of Commerce

Los Angeles Cold Storage Company

Los Banos; City of

Malibu; City of

Manteca Chamber of Commerce

Marin County Council of Mayors and Council Members

Martinez; City of

Mayors’ and Councilmembers Association of Sonoma County

Merced; City of

Montclair; City of

Moraga; City of

Mt. Shasta; City of

Murrieta; City of

Napa; City of

Needles; City of

Newark; City of

Norwalk; City of

Oakdale; City of

Ontario; City of

Pacific Grove; City of

Palmdale; City of

Palm Springs; City of

Palos Verdes Estates; City of

Paradise; Town of

Paramount; City of

Peace Officers Research Association of California

Pepper Spray Times

Pomona; City of

Prospect Enterprises, Inc.

Rancho Cordova; City of

Rancho Cucamonga; City of

Redding; City of

Richmond; City of

The River District

Riverside; City of

Riverside Downtown Partnership

Rocklin; City of

Rosemead; City of

Sacramento; City of
Sacramento Downtown Partnership

Salinas; City of

Samdae Enterprises, Inc.

San Clemente; City of

San Fernando; City of

San Gabriel; City of

San Joaquin County Board of Supervisors

San Juan Bautista; City of

City of San Juan Capistrano

San Luis Obispo; City of

San Marino; City of

San Rafael; City of

Sand City; City of

Santa Ana; City of

Santa Barbara; County of

Santa Monica; City of

Scotts Valley; City of

Sea Win, Inc.

Selma; City of

Signal Hill; City of

Sonora; City of
South Park Business Improvement District

South Pasadena; City of
Southwest California Legislative Council 

Studio Liliana Becerra, Inc.

Sunnyvale; City of

Susanville; City of

Tashdjian Holdings LLC

Temecula; City of

Thousand Oaks; City of

Torrance; City of

Tracy; City of

Tuolumne County Board of Supervisors
Tuolumne County Chamber of Commerce

Turlock; City of

Umeya Inc.

Union City; City of

Venice Stakeholders Association

Veteran Company

Villa Park; City of

Visalia; City of

Vista; City of

Waterford; City of

Watsonville; City of

West Coast Industries, Inc.

West Covina; City of

Whittier; City of

Yamasa Enterprises

Yucaipa; City of

Three individuals

-- END --

SENATE COMMITTEE ON TRANSPORTATION AND HOUSING

Senator Jim Beall, Chair

2015 - 2016 Regular

Bill No: SB 876 Hearing Date: 3/29/2016

SUBJECT: Homelessness

DIGEST: This bill affords persons experiencing homelessness the right to use public space without discrimination based on their housing status and a civil remedy if their rights pursuant to this bill are violated.

ANALYSIS:

Existing law:

1. Provides that no person shall be unlawfully denied full and equal access to the benefits of, or discriminated under, any program or activity that is conducted, operated, or administered by the state or by any state agency, on the basis of race, national origin, ethnic group identification, religion, age, sex, sexual orientation, color, genetic information, or disability.
2. Provides that any person who lodges in any building, structure, vehicle, or place, public or private, without the permission of the owner or person entitled to the possession or control of it shall be guilty of disorderly conduct, a misdemeanor, punishable by imprisonment in the county jail not exceeding six months, or by a fine not exceeding $1,000, or both.

This bill:

1. Provides that persons experiencing homelessness shall be permitted to use public space (specified below) at any time that the public space is open to the public, without discrimination based upon their housing status, and without being subject to criminal, civil, or administrative penalties. The intent of the Legislature is that this section shall be interpreted broadly so as to prohibit policies or practices that are discriminatory in either their purpose or their effect. Persons experiencing homelessness may use public space including, but not limited to, all of the following:
2. Free movement without restraint
3. Sleeping or resting, and protecting oneself from the elements while sleeping or resting, in a non-obstructive manner
4. Eating, sleeping, accepting, or giving food in a space in which food is not otherwise generally prohibited
5. Praying, meditating, worshiping, or practicing religion
6. Defines “public space” as any property that is owned by a government entity or upon which there is an easement for public use and that is held open to the public, including, but not limited to, plazas, courtyards, parking lots, sidewalks, public transportation facilities and services, public buildings, shopping centers, and parks. The ability to rest shall not apply to a space during a time when it is closed to all persons or when a fee is required for entry or use.
7. Defines “rest” as the state of not moving, holding certain postures that include, but are not limited to, sitting, standing, leaning, kneeling, squatting, sleeping, or lying.
8. Provides that nothing in this bill shall prevent law enforcement from enforcing laws to protect the right of people to use the sidewalk pursuant to the federal Americans with Disabilities Act.
9. Provides that nothing in this bill shall prevent law enforcement from enforcing the Penal Code, except Penal Code Section 647(e) insofar as it prohibits rest. This exception would exempt a person from committing a misdemeanor if that conduct is protected under this bill.
10. Provides that a person whose rights are violated pursuant to this bill may enforce those rights in a civil action and may be entitled to: injunctive and declaratory relief; restitution for loss of property or personal effects and belongings; actual damages; compensatory damages; exemplary damages; statutory damage of $1,000 per violation; and reasonable attorney’s fees and costs to a prevailing plaintiff.
11. Requires all applicants for the U.S. Housing and Urban Development’s (HUD) Continuum of Care Homeless Assistance Program funds to annually provide the Department of Housing and Community Development’s Division for Housing Policy Development (DHPD) a copy of its application for funding from HUD that includes the organization’s response to the application question regarding steps that its community is taking to reduce criminalization of homelessness. DHPD shall compile the information regarding community actions to reduce criminalization of homelessness found in those applications and provide an annual report to the Assembly Housing and Community Development Committee and the Senate Transportation and Housing Committee.

COMMENTS:

1. Purpose. The author states homelessness is the most severe face of poverty. California is the eighth largest economy in the world, yet home to the nation’s largest homeless population. This bill seeks to end the criminalization of the non-criminal activities of life exercised by homeless people by protecting the freedom of movement, sitting, standing, lying, and sleeping, and clarifying that people shall have the right to share food and practice religion in public in California. With poverty and homelessness reaching record numbers in California, there has been a documented increase in laws that target people without homes and impact the poor. These anti-homeless laws — commonly referred to as “vagrancy,” “quality of life,” or “anti-nuisance” laws — deny people the right to exist in public. A survey of homeless people conducted by the Western Region Advocacy Project revealed that the majority of people without homes do not know of a safe place to sleep at night where they would not be arrested.

A report published by United States Interagency Council on Homelessness (US ICH), called “Searching out Solutions: Constructive Alternatives to Criminalization,” demonstrates that enforcement of laws against resting is ineffective; it does not increase business revenue or improve public perception of the problem of homelessness. These laws effectively make it harder for people to escape homelessness because the resulting warrants, fines, and criminal records make people ineligible for jobs and housing. To that end, HUD included additional points to applications for 2015 Continuum of Care Program funding that include steps the community is taking to reduce the criminalization of the homeless. Cities cannot continue to punish homeless individuals for engaging in activities necessary for their survival. Arresting or ticketing the homeless creates a criminal record that can lead to rejection for jobs, education loans, and housing, and further blocks their pathway out of poverty.

1. Factors contributing to homelessness. Homelessness is the most severe face of poverty. According to HUD, California had 115,738 homeless people, or 21% of the nation’s overall homeless population, in January 2015. California had the highest rate of unsheltered homeless people at 64% and the second largest increase of homeless persons at 1.6%. California also had the largest numbers of unaccompanied homeless children and youth and veterans, and over one-third of the nation’s chronically homeless population.

Contemporary homelessness began in the early 1980s due to shifts in economic and social policy at the federal level, such as dramatic cuts in affordable housing and other programs designed to serve low-income people. These economic and social policies continue to contribute to homelessness today. In addition, California’s homelessness rates are exacerbated by the state’s lack of affordable housing and decreased housing funding from the loss of statewide funding. Rents have risen to levels that make it difficult for low-wage workers to find affordable rental units. California has one of the nation’s highest rates of “poor renters,” or people that spend more than 50% of their income on rent. While most homeless people in the U.S. lived in emergency shelters or transitional housing in 2013, most homeless people in California were unsheltered. California’s high housing costs and shortage of shelters leave many homeless people with no choice but to rest and sleep in public.

1. Data indicates vagrancy laws punish status, not behavior. Researchers from the Policy Advocacy Clinic at the University of California at Berkeley Law School identified and analyzed more than 500 municipal laws that criminalize standing, sitting, resting, sleeping, and sharing of food in public places in its report “California’s New Vagrancy Laws: The Growing Enactment and Enforcement of Anti-Homeless Laws in the Golden State.” The report found that the number of ordinances targeting those behaviors rose with the increase in homelessness following the sharp decline of federal funding for affordable housing in the 1980s and again with the Great Recession in 2008. Researchers noticed a similar correlation between arrests and the economy; arrests rose during times of economic recessions and fell during rises in the economy. The report noted that these trends indicate that enforcement of vagrancy ordinances increases in response to deteriorating economic conditions and rising levels of homelessness.

Since 2011, despite decreases in unemployment and reduced impacts of the Great Recession, vagrancy arrests have continued to trend upwards. Additionally, researchers found that statewide arrests for these types of offenses rose by 77%, while arrests for drunkenness and disorderly conduct have decreased by 16% and 48% respectively. The report suggests that homeless people are being punished for their status, rather than their behavior.

1. Creating barriers to housing and other services. The Western Regional Advocacy Project (WRAP) led a survey effort documenting homeless people’s experiences with the criminal justice system for survival-related crimes. More than three-quarters of survey respondents (78%) reported being harassed, cited, or arrested by police officers for sleeping outside. Seventy-five percent reported the same for sitting or lying down, and 76% for loitering or “hanging out.” Most of the relevant laws are infractions, which generally do not result in jail or prison time but do carry significant fines. Due to an inability to pay fines or make a court appearance, 57% reported bench warrants for their arrest.

Arrests and criminal records create a significant barrier to employment. For those who are working, an arrest or associated court appearances can cost them their jobs. Involvement with the criminal justice system often limits a person’s eligibility for public programs, cutting them off from the social safety net. WRAP suggests that enforcement of these laws ultimately does not address the root causes of homelessness and could bar the homeless from accessing public assistance, qualifying for public housing, and finding and maintaining employment.

1. Local costs? Opponents argue that the enactment of this bill will lead to increased local costs and loss of revenues associated with maintenance and repair to public parks, public facilities, and open spaces, and would impact businesses. The researchers at the Policy Advocacy Clinic at the UC Berkeley Law School argue, however, that it might be more costly to enforce these vagrancy laws. In addition to time police officers spend issuing citations, the justice system spends time and money processing them. In San Francisco alone, the Superior Court processing costs for anti-homeless citations was estimated at $4.10 per case in 2000, resulting in $77,900 in costs that year. The San Francisco District Attorney’s office then spent $317,086 processing infractions and misdemeanors that same year.

An analysis published by the US ICH analyzed cost studies of homeless interventions conducted between 2004 and 2009 in major U.S. cities, including Los Angeles and San Francisco, and found that U.S. jurisdictions spend an average of $87 per day to incarcerate an individual in a county jail, but only $28 per day to offer shelter. Further, programs that offer housing and supportive services, such as Project 50 in Los Angeles, realized a surplus after two years due to savings on incarceration and medical services. The researchers at the Policy Advocacy Clinic at the UC Berkeley Law School conclude that enforcement efforts may burden cities with significant financial costs.

1. Right for homeless people to use public space. This bill would establish a right for a homeless person to use public spaces in the same manner as any other person without discrimination based upon their housing status and without being subject to criminal, civil, or administrative penalties. This bill does not preclude a local jurisdiction from restrictions on use of public space, so long as those restrictions do not treat homeless and non-homeless persons differently. For example, a city may impose time restrictions on the use of a park, so long as the restriction is not intended to target the homeless or is only being enforced against them.

This bill also does not preclude law enforcement from enforcing the California Penal Code or laws that protect the right of people to use the sidewalk pursuant to the federal Americans with Disabilities Act. Further, a person whose rights have been violated may enforce those rights in a civil action and be entitled to appropriate relief and damages, including restitution and reasonable attorneys’ fees.

1. Differences from SB 608. This bill is similar to SB 608, which was heard in the Senate Transportation and Housing Committee last year. The author’s office made the following changes to that bill to address concerns raised by members of this committee and the opposition:

• Deleted the definitions of “BID Agents,” as the bill no longer applies to them;
• Deleted the definition of “harassment,” as the bill no longer applies to harassing behaviors;
• Deletes the protection of people who are lawfully occupying their car or recreational vehicle;
• Clarifies the bill applies only to “public space,” or space held open to the public, and does not apply to public space when it is closed to all persons or subject to a fee for entry or use;
• Clarifies that the bill does not prevent law enforcement from enforcing laws to protect the rights of people to use the sidewalk pursuant to the federal Americans with Disabilities Act;
• Clarifies that the bill does not prevent law enforcement from enforcing the California Penal Code, except insofar as it prohibits rest in public space.

1. Opposition. Opponents argue that this bill would preempt local authority to address important issues affecting public health and safety in public spaces and on property held open to the public. Further, opponents allege that this bill will not help the problem and would instead undermine existing efforts to address homelessness. Instead, they propose providing resources to provide permanent housing beds and accompanying social services such as mental health treatment, job training, and addiction counseling.
2. Double-referral. The Senate Rules Committee has referred this bill to both this committee and the Judiciary Committee.

Related Legislation:

SB 608 (Liu, 2015) — would have created the Right to Rest Act, which would afford persons experiencing homelessness the right to use public space without discrimination based on their housing status and a civil remedy if their rights pursuant to the Act are violated. This bill failed passage in the Senate Transportation and Housing Committee.

AB 5 (Ammiano, 2014) — would have created the Homeless Person’s Bill of Rights and Fairness Act, which: 1) prohibited discrimination against the homeless by public entities; 2) provided that every person had the right to move freely, rest, eat, accept or give food or water, and solicit donations in public spaces; and 3) established the right to lawful self-employment, confidentiality of specified records, and assistance of legal counsel. The bill also required the Department of Public Health to fund the provision of health and hygiene centers for use by homeless persons in designated areas. This bill was held on suspense in the Assembly Appropriations Committee.

FISCAL EFFECT: Appropriation: Fiscal Com.: Local:

POSITIONS: (Communicated to the committee before noon on Wednesday,

March 23, 3016.)

SUPPORT:

ACLU of California

Affordable Homeless Housing Alternatives, Inc.

Affordable Housing Network of Santa Clara County

Alameda County Health Care for the Homeless Program Consumer/Community Advisory Board

Alchemist Community Development Corporation

Alliance of White Antiracists Everywhere

American Friends Service Committee

Anti-Eviction Mapping Project

Building Opportunities for Self-Sufficiency

California Central Valley Journey for Justice

California Church IMPACT

California Civil Liberties Advocacy

California Coalition for Women Prisoners

California Food Policy Advocates

California Partnership

California Partnership to End Domestic Violence

Caduceus Justice

Civic Center Roundtable

Coalition on Homelessness San Francisco

Community Homeless Alliance Ministry

Compass Family Services

Consumer Attorneys of California
Courage Campaign

Critical Resistance Oakland

Critical Resistance Los Angeles

Denver Homeless Out Loud

Disability Rights California
East Bay Community Law Center

Ella Baker Center for Human Rights

Episcopal Community Services of San Francisco

Faith in Action Bay Area

Food Not Bombs

Fort Collins Homeless Coalition

Gray Panthers

Health Care for the Homeless - Sacramento

H.O.M.E.L.E.S.S.

Homeless Action Center

Homeless Advocates for CHRIST

Hospitality House

Housing California

Housing for All Alliance of Silicon Valley

Housing Rights Committee of San Francisco

Hunger Action Los Angeles 

Humboldt Unitarian Universalist Fellowship Social Action Committee

The Instituto de Educacion Popular del Sur de California

Justice Reform Coalition

Larkin Street Youth Services

Legal Services for Prisoners with Children

Los Angeles Catholic Worker

Jericho, a Voice for Justice
Los Angeles Community Action Network
Los Angeles Human Right to Housing Collective

Los Angeles Poverty Department
Lawyers Committee for Civil Rights of The San Francisco Bay Area

Manilatown Heritage Foundation

Mission Neighborhood Resource Center

Mutual Housing California

National Association of Social Workers — California chapter
National Coalition for the Homeless

National Law Center on Homelessness & Poverty

National Lawyers Guild – Sacramento Chapter

People Organized for Westside Renewal

Planting Justice

Prison Activist Resource Center

Resources for Independent Living

Sacramento Homeless Organizing Committee
Sacramento Housing Alliance

Sacramento Hunger Coalition

Sacramento Loaves and Fishes

Sacramento Regional Coalition to End Homelessness

Safe Ground Sacramento
San Francisco Tenants Union
Senior & Disability Action

Silicon Valley De-Bug

St. Anthony Foundation

St. James Infirmary
St. Mary’s Center

Stop LAPD Spying Coalition

Street Spirit

Suitcase Clinic

Tenants Together

Transition Albany

United Coalition East Prevention Project

Venice Community Housing Corporation
Veterans Democratic Club of Sacramento County

Watts Labor Community Action Committee

Western Center on Law & Poverty, Inc.
Western Regional Advocacy Project
Women Organizing Resources, Knowledge and Services

149 individuals

OPPOSITION:

Advanced Knitting Mills, Inc.

Alameda; City of

Albany; City of

Alhambra; City of

American Planning Association, California Chapter

Antioch; City of

Association of California Cities – Orange County

Azusa City Council

Bellflower; City of

Buena Park; City of

Building Owners and Managers Association of California

California Apartment Association
California Business Properties Association

California Chamber of Commerce

California Downtown Association

California Police Chiefs Association
California State Sheriffs' Association

California Travel Association
Carpinteria; City of

Carson; City of

Cathedral City; City of
Central City Association of Los Angeles

Central City East Association

Chino Hills; City of

Civil Justice Association of California

Clayton; City of

Clearlake; City of

Cloverdale; City of

Colton; City of

Commercial Real Estate Development Association

Concord; City of
Covina; City of

Danville; City of
Del Paso Blvd Partnership

Desert Hot Springs; City of

Diamond Bar; City of

Downey; City of

Downtown Long Beach Associates

Downtown Pomona Owners Association

Downtown Sacramento Partnership

Dublin; City of

El Cajon; City of

Farmersville; City of

Fortuna; City of

Fountain Valley; City of

Fowler; City of

Fremont; City of

Glendora; City of

Greater Merced Chamber of Commerce

Greenfield; City of

Harold Markey and Son

Hayward; City of

Highland; City of

Hollywood Property Owners Alliance

Huntington Park; City of

Imperial Beach; City of

Indian Wells; City of

Indio; City of

Inner-City Arts

International Council of Shopping Centers

La Cañada Flintridge; City of
LA Fashion District

La Habra; City of

La Mirada; City of

La Quinta; City of

Laguna Beach; City of

Lake Elsinore; City of

Lakeport; City of

Lakewood; City of

Leadership of Mt. Shasta

League of California Cities

League of California Cities, Los Angeles County Division

Lincoln; City of

Little Tokyo Lofts

Livermore; City of

Lodi; City of
Long Beach; City of

Los Angeles Area Chamber of Commerce

Los Angeles Cold Storage Company

Los Banos; City of

Malibu; City of

Manteca Chamber of Commerce

Marin County Council of Mayors and Council Members

Martinez; City of

Mayors’ and Councilmembers Association of Sonoma County

Merced; City of

Montclair; City of

Moraga; City of

Mt. Shasta; City of

Murrieta; City of

Napa; City of

Needles; City of

Newark; City of

Norwalk; City of

Oakdale; City of

Ontario; City of

Pacific Grove; City of

Palmdale; City of

Palm Springs; City of

Palos Verdes Estates; City of

Paradise; Town of

Paramount; City of

Peace Officers Research Association of California

Pepper Spray Times

Pomona; City of

Prospect Enterprises, Inc.

Rancho Cordova; City of

Rancho Cucamonga; City of

Redding; City of

Richmond; City of

The River District

Riverside; City of

Riverside Downtown Partnership

Rocklin; City of

Rosemead; City of

Sacramento; City of
Sacramento Downtown Partnership

Salinas; City of

Samdae Enterprises, Inc.

San Clemente; City of

San Fernando; City of

San Gabriel; City of

San Joaquin County Board of Supervisors

San Juan Bautista; City of

City of San Juan Capistrano

San Luis Obispo; City of

San Marino; City of

San Rafael; City of

Sand City; City of

Santa Ana; City of

Santa Barbara; County of

Santa Monica; City of

Scotts Valley; City of

Sea Win, Inc.

Selma; City of

Signal Hill; City of

Sonora; City of
South Park Business Improvement District

South Pasadena; City of
Southwest California Legislative Council 

Studio Liliana Becerra, Inc.

Sunnyvale; City of

Susanville; City of

Tashdjian Holdings LLC

Temecula; City of

Thousand Oaks; City of

Torrance; City of

Tracy; City of

Tuolumne County Board of Supervisors
Tuolumne County Chamber of Commerce

Turlock; City of

Umeya Inc.

Union City; City of

Venice Stakeholders Association

Veteran Company

Villa Park; City of

Visalia; City of

Vista; City of

Waterford; City of

Watsonville; City of

West Coast Industries, Inc.

West Covina; City of

Whittier; City of

Yamasa Enterprises

Yucaipa; City of

Three individuals

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