HomeMy WebLinkAboutCORRESPONDENCE - 11A (OPPOSED)Item 11A
No.
Date of
Correspondence
1 10/15/2019
City Council Meeting Correspondence
10/15/2019
SECOND READING ORDINANCE - OVERSIZED VEHICLE ORDINANCE
Name
Ugochi L. Anaebere-
Nicholson
Representative of
Public Law Center
In Favor of
RA*.
In opposition
of RA*.
Yes
`RA - Recommended Action
Tuesday, October 15, 2019 Page 1 of 1
Lopez, Kenia
From: Ugochi Nicholson <
Sent: Tuesday, October 15, 2019 8:17 PM
To: eComment
Subject: RE: Item 11A: Letter of Opposition
Attachments: RV Ordinance- Letter of Opposition 10.14.19.pdf
Good evening,
This afternoon, I sent the attached Letter of Opposition. Please find the amended version attached for the Public Record.
Sincerely,
Ugochi
Ugochi L. Anaebere-Nicholson I Directing Attorney
(pronouns: She/her/hers)
Housing and Homelessness Prevention Unit
Public Law Center
601 Civic Center Drive West
Santa Ana, CA 92701
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From: Ugochi Nicholson
Sent: Tuesday, October 15, 2019 1:58 PM
To:'ecomments@santa-ana.org' <ecomments@santa-ana.org>
Subject: Item 11A: Letter of Opposition
Good afternoon,
With reference to the opposition letter re Item 11A for the Santa Ana City Council meeting tonight.
Sincerely,
Ugochi
Ugochi L. Anaebere-Nicholson I Directing Attorney
(pronouns: She/her/hers)
Housing and Homelessness Prevention Unit
Public Law Center
601 Civic Center Drive West
Santa Ana, CA 92701
Confidentiality Notice: E-mails from this firm normally contain confidential and privileged material, and are for the sole
use of the intended recipient. Use or distribution by an unintended recipient is prohibited, and may be a violation of law.
If you believe that you received this e-mail in error, please do not read this e-mail or any attached items. Please delete
the e-mail and all attachments, including any copies thereof, and inform the sender immediately at 714-541-1010, ext.
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PROVIDING ACCESS Ta JUSTICE
FOR OPANCE COUNTY'SrRESIDENTS
October 15, 2019
Mayor Miguel Pulido and Members of the Santa Ana City Council
City of Santa Ana
20 Civic Center Plaza
P.O. Box 1988, M31
Santa Ana, CA 92701
I IA. ADOPT ORDINANCE NO. NS-2976 - AN ORDINANCE OF THE CITY COUNCIL OF
THE CITY OF SANTA ANA AMENDING CHAPTER 36 ARTICLE I (IN GENERAL)
DIVISION 1 (DEFINITIONS) TO ADD SECTION 36-19 (OVERSIZED VEHICLE); TO ADD
SECTION 36-20 (RECREATIONAL VEHICLE); TO ADD SECTION 36-21 (NON -
MOTORIZED VEHICLE); TO ADD SECTION 36-22 (PARK ROAD); TO ADD SECTION
36-23 (PARKING, PARK OR PARKED); AMENDING CHAPTER 36 ARTICLE IV
(PARKING REGULATIONS) TO ADD SECTION 36-149 (PROHIBITION OF PARKING OF
OVERSIZED VEHICLES, NON -MOTORIZED VEHICLES, AND RECREATIONAL
VEHICLES); TO ADD SECTION 36-150 (EXCEPTIONS TO PROHIBTION ON PARKING
OF OVERSIZED VEHICLES, NON -MOTORIZED VEHICLES, AND RECREATIONAL
VEHICLES); TO ADD SECTION 36-151 (NOTICE); TO ADD SECTION 36-152
(ENFORCEMENT REMEDIES); TO ADD SECTION 36-153 (PERMIT PROCESS FOR
TEMPORARY OVERNIGHT PARKING ON PUBLIC STREETS) {STRATEGIC PLAN NO.
5, 41 — Police Department- ("Ordinance No. NS-2976")—Letter of Opposition
Dear Mayor Pulido and Members of the Santa Ana City Council:
On behalf of the Public Law Center, we write to submit the following letter of opposition
Ordinance No. NS-2976 ("Ordinance") because it is yet again another attempt by the City to
criminalize homelessness under the guise of public safety. The Public Law Center is a non-profit
pro bono law firm in Orange County that provides access to justice for low-income and
vulnerable residents. Our practice includes providing representation to low-income families in
housing -related matters, preventing homelessness, and advocating for affordable and
inclusionary housing PLC is a non-profit pro bono law firm that provides access to justice for
low-income and vulnerable residents in Orange County, California. We also collaborate with
community organizations, statewide advocates, and law firms to push Orange County
jurisdictions to create and maintain effective housing policies for lower -income working
families.
601 Civic Center Drive West • Santa Ana, CA 92701-4002 • (714) 541-1010 • Fax (714) 541-5157
Letter of Opposition re Item 11A
October 15, 2019
p. 2
In the midst of a severe housing crisis characterized by dramatically rising rents', a shrinking
affordable housing supply2, long waits for housing subsidies, scarcity of shelter beds, and an
increase in the city's homeless population, the City of Santa Ana, through this proposed
Ordinance, targets its most vulnerable residents. For the homeless residents in the City of Santa
Ana, many with disabilities, their vehicles are their only reliable place for shelter from the
elements and the only place for them to store their belongings. As there are inadequate
alternatives for many of the City's unhoused population to turn, notwithstanding the City's
efforts to build homeless shelters, the City nonetheless proposes to repeatedly ticket and harass
these individuals for seeking shelter in their vehicles or simply for owning vehicles and having
nowhere else to park. The City also proposes to target homeless vehicle owners, ticket them and
impound their vehicles for unpaid tickets. Stunningly, the City proposes to threaten homeless
vehicle owners with cost -prohibitive fees (including injunctive relief and civil penalties'), arrest
and misdemeanor charges, with fees of $1,000, plus other court fines and fees, for the alleged
illegal lodging. The City's hurried efforts to approve this Ordinance, evidences that the City's
efforts are to criminalize and punish these individuals for their status as homeless persons.
Thus, the Ordinance as proposed is blatantly unconstitutional. As drafted, the Ordinance is not
narrowly tailored to meet time, place, and manner standards. It also violates various
constitutional rights, including the Fifth Amendment prohibiting the deprivation of property
without due process and just compensation, as well as the Eighth Amendment prohibition on
Cruel and Unusual Punishment. The Ordinance also violates the substantive and procedural due
process rights prohibiting reckless endangerment, the Right to Equal Protection, and the Right
to Travels, afforded to all individuals under the United States and California Constitutions. To
satisfy the Due Process Clause, the City must sufficiently define an ordinance to provide
adequate notice of the conduct proscribed and provide sufficient guidelines for the police so that
arbitrary and discriminatory enforcement does not occur.' As written, the Ordinance states, "the
recreational vehicle shall not be used for overnight camping, lodging, or accommodation
See www.rentjungle.com/average-rent-in-santa-ana-rent-trends/ (last visited on October 15, 2019) (providing that
as of April 2019, the As of April 2019, the average rent for a one -bedroom apartment in the City is $1,938 per
month, while the average rent for a two -bedroom apartment is $2,582 per month.)
2See 30th Anniversary Out of Reach Report, National Low Income Housing Coalition,
https://repons.nlilic.org/sites/default/files/oor/OOR 2019.pdf (last visited on October 15, 2019) (providing that
workers in Orange County need to earn $39.17 an hour to afford the rent for a typical two -bedroom apartment in
Orange County. The typical fair market rent (FMR) for a two -bedroom unit here is $2,037 per month, ranking
Orange County among the nation's top 10 most expensive metropolitan areas in the nation. The annual income
needed to afford a two -bedroom FMR is $81,480 and a minimum wage worker needs to work at least 131 hours per
week-3.3 jobs to afford a 2-bedroom FMR apartment.)
' See Ord. NS-2976, at §36-152 ("Use of criminal enforcement and/or administrative citations shall not prevent or
preclude the City from seeking injunctive relief and civil penalties in court for violations of this Division."),
emphasis added.
4 Plyler v. Doe (1982) 457 U.S. 202, 216-17.
s Cal. Const. Art. §§7, 24 (specifically protects the intrastate right to travel); Memorial Hospital v. Marieopa County
(1974) 415 U.S. 250; Pottinger v. Miami (S.D. Fla. 1992) 810 F.Supp. 1551 (finding that enforcement practices that
deprive individuals of a basic necessity of life may be found to burden the right to travel unconstitutionally.) See
also Tobe v. City of Santa Ana ("Tobe"), (1995) 9 Cal. 4th 1069; Joyce v. City & Cty. ofS.F, (N.D. Cal. 1994) 846
F.Supp. 843, 860 ("the right to travel has found its strongest expression in the content of attempts by states to
discourage the in -migration of indigents.")
G Tobe, supra, 9 Cal.4th at pp. 1106-1107.
601 Civic Center Drive West • Santa Ana, CA 92701-4002 • (714) 541-1010 • Pax (714) 541-5157
Letter of Opposition re Item HA
October 15, 2019
p. 3
purposes while parked on the street."' None of the terns used —"camping", "lodging", or
"accommodation purposes", are defined anywhere in the Ordinance. The Ordinance fails to
provide adequate notice and sufficient guidance, which would allow an individual to ascertain
beyond mere speculation as to how one uses a parked or standing vehicle as a camper, lodging,
or as an accommodation. The Ordinance therefore fails to "draw a clear line between innocent
and criminal conduct,"s and it invites selective enforcement against people who are homeless,
many of whom are persons with disabilities. The Ordinance, as drafted is therefore,
unconstitutionally vague on its face and as applied in violation of substantive due process
protections under the Fourteenth Amendment to the United States Constitution.' Moreover, if
the City passes and enforces the Ordinance, it would constitute impermissible discrimination
against vehicle owners based on disability in violation of the antidiscrimination protections of
Title 11 of the Americans with Disabilities Act10 and Section 504 of the Rehabilitation Act. It
impermissibly denies meaningful access of people with disabilities to the City's parking permit
system and amenities the City offers to its residents without disabilities."
Even after advocates alerted the City to the violations of law presented by the Ordinance at the
initial public hearing on October 1, the City still refuses to modify its proposal to allow homeless
individuals to park their vehicles on City streets or other public property, at least until affordable,
accessible, and medically appropriate housing is made available to them. The Ordinance also
fails to provide any accommodation for homeless individuals, including those with disabilities,
yet the City has created an exemption to the Ordinance, via a permit system, for only those who
can provide proof of residency, and afford to pay for the cost of a permit12,1s The City not only
allows those who are not homeless to park their RVs overnight, it imposes stiff and significant
penalties against those who are homeless, and in particular, disabled for the same behavior, while
unlawfully denying meaningful access to the City's proposed permit program and the amenities
that the City proposes to offer to those who are not disabled.14
Ord. NS-2976 at §36-153, subd. (h).
$ Desertrain v. City ofLos Angeles (9th Cir. 2014) 754 F.3d 1147, 1149, 1156 ("Deserttrain").
Deserttrain, supra, 754 F.3d at p. 1149.
10 42 U.S.C. § 12132 ("[Me qualified individual with a disability shall, by reason of such disability, be excluded
from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be
subjected to discrimination by any such entity."); see also Yeskey v. Pennsylvania Dep't. of Corr. (3d Cir. 1997) 118
F.3d 168, affd. (1998) 524 U.S. 206 (under the ADA's broad language, a "program, service, or activity" includes
within its scope "anything a public entity does.") (Quoting 28 C.F.R. Pt. 35, App. A, preamble to ADA regulations);
28 C.F.R. §35.130, subd. (b)(7); Crowder v. Kitagaw (9th Cir. 1996) 81 F.3d 1480 (requiring that public entities
provide reasonable modifications to avoid discrimination brought upon by facially neutral policies as applied to
individuals with disabilities unless the public entity can demonstrate that such modifications would result in a
fundamental alteration of the program); Giebeler v. M& B Associates (91h Cir. 2003) 343 F.3d 1143 (providing that
reasonable modifications can adjust for the financial limitations that arise from a disability, not just the immediate
manifestations of the impairment giving rise to the disability.) See also 29 C.F.R. §35.130, subd. (b)(3) (prohibits a
public entity from using criteria or methods of administration that have the effect of subjecting qualified individuals
with disabilities to discrimination based on disability); 28 C.F.R. §35.130, subd. (b)(8) (Prohibits a public entity
from imposing eligibility criteria that screen out or tend to screen out individuals from fully and equally enjoying
any service, program, or activity.)
u 29 U.S.C. §749; 25 C.F.R. §§ 8.3, 8.4; Alexander v. Choate (1985) 469 U.S. 287, 301.
12 See Ord. NS-2976, at §36-153, subd. (a)(1)-(2), (b), (f), and (g).
13 See Fns. 10, 11.
"See Fax. 10, 11.
601 Civic Center Drive West • Santa Ana, CA 92701-4002 • (714) 541-1010 • Fax (714) 541-5157
Letter of Opposition re Item IIA
October 15, 2019
p. 4
The permitting process is also extremely limiting, as it only allows for duration of no more than
24 hours, and cannot exceed three consecutive 24-hour periods, and no more than 72 permits
shall be issued to any one address in any one calendar year period.15 Sheltering oneself is not
voluntary conduct. It is a basic human need. It is harmless; and it is an act integral to the status of
homelessness. For those who are unhoused and fortunate enough to have RVs or other vehicles,
their only reasonable option is to use the rudimentary shelter provided by their vehicles until
permanent, accessible, and in some instances, medically appropriate housing that they can afford,
becomes available.
Finally, the City should remove any reference to misdemeanor criminal liability under the
Ordinance. The United States incarcerates more people than anywhere in the world. There are
approximately 2.2 million people who are incarcerated in the nation's jails or prisons, and the
overwhelming persons behind bars are Black and Brown children, women, and men." Despite
the fact that stable and affordable housing is an urgent need among people leaving jails and
prisons, people with a criminal record face a monumental challenge when trying to access
affordable housing. First, they are competing with the 37 million other Americans who live at or
below the federal poverty level. Second, formerly incarcerated individuals face systemic
discrimination, despite posing no risk to their neighbors. Third, overly restrictive admissions
policies specifically target and reduce options for people with criminal records. More
importantly, persons who the police arrest or who plead no contest or who a jury convicts after a
court trial are significantly more likely to end up homeless because of their interaction with the
criminal justice system, placing them at grave risk of recidivating and returning to jail or prison.
In our practice, we have represented people against landlords and public housing authorities who
have denied justice -impacted persons the basic necessity of housing, for no other reason than for
the person's interaction with the criminal justice system. The City should not willingly
participate in the disparate impact discrimination that results because of an individual's
interaction with the criminal justice system. It should remove the reference to misdemeanor
criminal liability from the Ordinance.
Rather than adequately accommodating this homeless, largely disabled group of individuals and
complying with statutory and constimitional requirements, the City has instead chosen, yet again,
to jeopardize the health, safety, and lives of homeless vehicle owners in the hope that the
continuing and escalating harassment will force these residents to simply leave the City. The
City should disapprove the Ordinance.
Sincerely,
Isl Ugochi Anaebere-Nicholson
Directing Attorney, Housing and Homelessness Prevention Unit
Id. at subds. (c), (d), and (e).
16 The Sentencing Project, "The Facts, State -by -State Data, available at hitps://www.sentencingproject.org/the-
f nets/#map, last visited on August 14, 2019. (providing that the racial disparity in incarceration rate as follows in
California (Black: white ratio: 8.8:1); Hispanic: white ratio: (1.9:1), and Juvenile custody rate (per 100,000) 165).)
601 Civic Center Drive West • Santa Ana, CA 92701-4002 • (714) 541-1010 • Fax (714) 541-5157