BILL ANALYSIS
AB 2593
Page 1
Date of Hearing: April 29, 2008
Counsel: Kathleen Ragan
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Jose Solorio, Chair
AB 2593 (Adams) - As Amended: April 28, 2008
SUMMARY : Allows a city or county to adopt a local ordinance to
include a residential facility that serves six or fewer persons,
including a sober living facility, within the definition of
"single-family dwelling" for the purpose of restricting more
than one paroled sex offender from living in these facilities.
Specifically, this bill :
1)Deletes from current law the provision that a single-family
dwelling shall not include a residential facility which serves
six or fewer persons.
2)Allows a city or county to adopt a local ordinance to include
a residential facility that serves six or fewer people,
including a "sober living facility" within the definition of
"single-family dwelling."
3)Provide that a single room within a hotel is considered a
single-family dwelling.
EXISTING LAW :
1)Provides, in a statute entitled "Sex Offender Registrant
Parolees", that notwithstanding any other provision of law,
when a person is released on parole after having served a term
of imprisonment in a state prison for which registration as a
sex offender is required, that person may not, during the
period of parole, reside in any single family dwelling with
any other person required to register as a sex offender,
unless those persons are legally related by blood, marriage,
or adoption. [Penal Code Section 3003.5(a).]
2)States that for purposes of the above section, "single-family
dwelling" shall not include a residential facility which
serves six or fewer persons. [Penal Code Section 3003.5(a).]
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3)States that whether or not unrelated persons are living
together, an alcoholism or drug abuse recovery or treatment
facility which serves six or fewer persons shall be considered
a residential use of property, and the residents and operators
of such a facility shall be considered a family for the
purposes of any law or zoning ordinance which relates to the
residential use of property. [Health and Safety Code (HSC)
Section 11834.23.]
4)Prohibits any person required to register as a sex offender
from residing within 2,000 feet of any public or private
school, or park where children regularly gather. [Penal Code
Section 3003.5(b).]
5)States that nothing in this law shall prohibit municipal
jurisdictions from adopting local ordinances which further
restrict the residency of any person for whom registration as
a sex offender is required. [Penal Code Section 3003.5(c).]
6)Provides that no person required to register as a sex
offender, for an offense committed against an elder or
dependent adult, as defined, shall enter or remain on the
grounds of a day care or residential facility where elders or
dependent adults are regularly present or living, without
having registered with the facility administrator or his or
her designees, except to proceed expeditiously to the office
of the facility administrator or designee for the purpose of
registering. [Penal Code Section 653c(a).]
7)Provides that notwithstanding any other provision of law, an
inmate who is released on parole for a violation of lewd and
lascivious acts with a child, or continuous sexual abuse of a
child, whom the Department of Corrections and Rehabilitation
(CDCR) has determined poses a high risk to the public shall
not be placed or reside, for the duration of his or her
parole, within one-half mile of any public or private school
including any or all of Kindergarten and Grades 1 through 12,
inclusive. [Penal Code Section 3003(g).]
8)Requires any inmate convicted of a felony registerable sex
offense and who is committed to prison and released on parole
shall be monitored by global positioning system for the term
of his or her parole. [Penal Code Section 3000.07(a).]
9)Provides specified punishment for a sex offender entering onto
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the grounds of a day care or residential facility, as follows:
a) States that a first conviction shall be punishable by a
fine not exceeding $2,000; by imprisonment in a county jail
for a period of not more than six months; or by both that
fine and imprisonment.
b) Provides that if a defendant has been previously
convicted once of a violation of this section, he or she
shall be punished by imprisonment in a county jail for a
period of not less than ten days nor more than six months;
or by both imprisonment and a fine not exceeding $2,000,
and shall not be released on probation, parole or any other
basis until he or she has served at least 10 days.
c) States that if a defendant has been previously convicted
two or more times of a violation of this section, he or she
shall be punished by imprisonment in a county jail for a
period of not less than 90 days or more than six months; or
by both imprisonment and a fine of not exceeding $2,000,
and shall not be released on probation, parole or any other
basis until he or she has served at least 90 days.
d) States that nothing in this section shall preclude or
prohibit prosecution under any other provision of law.
[Penal Code Section 653c(e).]
10)States that except as otherwise provided, an inmate who is
released on parole shall be returned to the county that was
the last legal residence of the inmate prior to his or her
incarceration. "Last legal residence" shall not be construed
as the county wherein the inmate committed an offense while
confined in a state prison or local jail facility or while
confined for treatment in a state hospital. [Penal Code
Section 3003(a).]
11)States that for the purposes of any contract, deed, or
covenant for the transfer of real property, a residential
facility for the elderly which serves six or fewer persons
shall be considered a residential use of property and a use of
property by a single family, notwithstanding any disclaimers
to the contrary. (HSC Section 1569.87.)
12)Includes as a "facility exempt from licensing" recovery
houses or similar facilities providing group living
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arrangements for persons recovering from alcoholism or drug
addiction where the facility provides no care or supervision.
[HSC Section 1505(i).]
13)Provides that for the purposes of any contract, deed, or
covenant for the transfer of real property, a residential
facility which serves six or fewer persons shall be considered
a residential use of property by a single family,
notwithstanding any disclaimers to the contrary. (HSC Section
1566.5.)
14)States that the "Community Care Facilities Act" (HSC Section
1501 et seq.) does not apply to recovery houses or similar
facilities providing group living arrangements for persons
recovering from alcoholism or drug addiction where the
facility provides no care or supervision, or to any alcoholism
or drug abuse recovery or treatment facility, as defined.
[HSC Section 1505(i)(j).]
15)Exempts from licensing "any alcoholism or drug abuse recovery
or treatment facility as defined by HSC Section 11834.11.
[HSC Section 1505(j).]
16)Defines "residential facility" as any family home, group care
facility, or similar facility determined by the director, for
24-hour non-medical care of persons in need of personal
services, supervision, or assistance essential for sustaining
the activities of daily living or for the protection of the
individual. [HSC Section 1502(a)(1).]
17)States Legislative declaration: "Six or Fewer Persons:
Provides that the Legislature hereby declares that it is the
policy of this state that each county and city shall permit
and encourage the development of sufficient types and numbers
of alcoholism or drug abuse recovery treatment facilities as
are commensurate with local need." Further states that the
provisions of this article apply equally to any chartered
city, general law city; county, county and city, district, and
any other local public entity. (HSC Section 11834.20.)
18)States for the purposes of this article, "six or fewer
persons" does not include the licensee or members of the
licensee's family or persons employed as facility staff. (HSC
Section 11834.20.)
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19)Provides, in a section of FEHA, "Effect of Federal Law", that
nothing in this part shall be construed to afford the classes
protected under this part, fewer rights or remedies than the
federal Fair Housing Amendments Act of 1988 and its
implementing regulations. (24 C.F.R. Section 100.1 et seq.)
or state law relating to fair employment and housing as it
existed prior to the effective date of this section. Provides
that any state law that purports to require or permit any
action that would be an unlawful practice under this part
shall to that extent be invalid. This part may be construed
to afford greater rights and remedies to an aggrieved person
than those afforded by federal law and other state laws.
(Government Code Section 12955.6.)
20)States, that the Legislature makes specified findings and
declarations regarding unlawful housing practices [Government
Code Section 12955.6 Uncodified Legislative Findings and
Declarations] including, but not limited to:
a) That public and private land use practices, decisions,
and authorizations have restricted, in residentially zoned
areas, the establishment and operation of group housing and
other uses;
b) That persons with disabilities and children who are in
need of specialized care and included within the definition
of family status are significantly more likely than other
persons to live with unrelated persons in group housing;
and,
c) That this act covers unlawful discriminatory
restrictions against group housing for these persons.
21)States in the California Constitution that "all people are by
nature free and independent and have inalienable rights.
Among these are enjoying and defending life and liberty,
acquiring, possessing, and protecting property, and pursuing
and obtaining safety, happiness, and privacy. (Cal. Const.
Art. I 1.)
22)Held that CDCR may place two or more sex offender parolees in
a "residential facility which serves six or fewer persons, as
that term is defined in the California Community Care
Facilities Act." Further, the term "residential facility
which serves six or fewer persons" has a well established
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meaning that may reasonably be applied in interpreting the
language of Penal Code Section 3003.5. [89 Cal. Op. Atty.
Gen. 199 (2006).]
23)Held that if a residential facility serves six or fewer
persons, it is considered a residential use of the property
under local ordinances and treated as any other single-family
dwelling in the same community. [73 Ops. Cal. Atty. Gen. 58,
59 (1990).]
24)Provides that an alcoholism or drug abuse recovery or
treatment facility which serves six or fewer persons shall not
be subject to any business taxes, local registration fees, use
permit fees, or other fees to which other single family
dwellings are not likewise subject. (HSC Section 11834.22.)
25)States that whether or not unrelated persons are living
together, an alcoholism or drug abuse recovery or treatment
facility which serves six or fewer persons shall be considered
a residential use of property, and the residents and operators
of such a facility shall be considered a family for the
purposes of any law or zoning ordinance which relates to the
residential use of property. (HSC Section 11834.23.)
26)Prohibits requiring a conditional use permit, zoning variance
or other zoning clearance for an alcoholism or drug recovery
or treatment facility that serves six or fewer persons that is
not required of a single-family residence in the same zone.
(HSC Section 11834.23.)
27)Defines "handicapped person" as a person with a physical or
mental impairment; that phrase includes but is not limited to
. . . drug addiction and alcoholism." (28 C.F.R. 41.31.)
28)States that the opportunity to seek, obtain and hold housing
without discrimination because of familial status or
disability, is hereby recognized as and declared to be, a
civil right. [Government Code Section 12921(b).]
FISCAL EFFECT : None
COMMENTS :
1)Author's Statement : According to the author, "AB 2593 intends
to eliminate any potential conflict of uses in residential
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neighborhoods and to reduce potential dangers associated with
multiple sex offenders living next door to a family with
children. This bill will permit a city or county to regulate
the over-concentration of sex offenders in a residential care
facility that serves six or fewer individuals."
2)Background : According to background information provided by
the author, "AB 2593 removes the exclusion of a residential
facility which serves six or fewer persons from the definition
of a single family dwelling. AB 2593 allows a county or city
to prohibit a person released on parole, after having served a
term of imprisonment for any offense for which registration as
a sex offender is required, from residing, during the parole
period, in any single family dwelling with any other person
also on parole, unless those persons are related.
"Residential care facilities are often single family dwellings
that are in residential neighborhoods and may house several
sex offenders under one roof. As a result, paroled sex
offenders are concentrated in a single family home located in
neighborhoods where children live, ride their bikes, play in
front yards, and walk to and from school. This environment
places young, innocent children at serious risk of assault,
injury or death, and can foster sexual misconduct on the part
of paroled sex offenders.
3)Comments :
a) Although this bill amends a Penal Code section relating
to sex offender parolees, this bill also inserts a specific
reference to "sober living facilities" into that section.
(Penal Code Section 3003.5.) Sober living facilities exist
to help persons disabled by an addiction to alcohol or
drugs in their recovery process. Is it the intent of this
bill to only allow local jurisdictions to regulate sex
offenders released on parole after serving a term of
imprisonment for a registerable sex offense? After the sex
offender has successfully completed parole, is it this
bill's intent to allow sex offender registrants to live
anywhere they desire, subject to the provisions enacted
pursuant to Proposition 83 as Penal Code 3003.5(b) and (c)?
Or, since Penal Code Section 3003.5 (b) and (c) restrict the
residency of all registered sex offenders, not just those
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on parole, is this bill intended to allow local ordinances
to regulate the residency of non-parolee registered sex
offenders? Under the provisions of this bill, will all
registered sex offenders be precluded from residing in a
sober living facility if that facility already houses one
registered sex offender?
b) Legislative restrictions which are focused on family
composition rather than the number of occupant dwelling
units have been held to be violative of both the Federal
Fair Housing Act and the State of California's Fair
Employment and Housing Act; and unconstitutional under the
United States and California Constitutions. ["The right of
privacy is an important American heritage and essential to
the fundamental rights guaranteed by the First, Third,
Fourth, and Ninth Amendments to the United States
Constitution. This right should be abridged only when
there is a compelling public need."] See below for
further discussion of this issue.
c) There is no definition, either in this bill or in
existing law, of "sober living facilities."
d) A "Fact Sheet" issued in December 2007 by the California
Department of Alcohol and Drug Programs states in part that
alcohol and drug-free houses (also known as "sober living
facilities") are important in supporting treatment and
recovery services in a community by helping recovering
persons to maintain an alcohol- and drug-free lifestyle.
e) Persons who are recovering alcoholics or drug addicts
are "disabled" persons entitled to the protections of the
Federal Fair Housing Act and the California Fair Employment
and Housing Act. [42 U.S.C. 3601 et seq.; Government
Code 12921(b).]
"[C]ongress intended to recognize that addiction is a disease
from which, through rehabilitation efforts, a person may
recover, and that an individual who makes the effort to
recover should not be subject to housing discrimination
based on society's 'accumulated fears and prejudices'
associated with drug addiction." [United States v.
Southern Management Corporation, 955 F. 3d 914, 923 (4th
Circuit 1992).] "Our ruling is fair notice regarding the
ambit of the [Federal Fair Housing Act's] coverage of drug
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addicts." (Id. at p. 923.)
f) In targeting "sober living facilities" and other
residential facilities serving six or fewer persons
(generally group homes serving a protected class under the
Fair Housing Act), this bill invites prohibited
discrimination against disabled persons and other potential
residents of such group homes, notwithstanding this bill's
stated focus on registered sex offenders. The United
States Supreme Court has clearly held that local ordinances
that target the type of occupants, rather than the number
of occupants (to prevent overcrowding) violate the Fair
Housing Act. [City of Edmonds v. Oxford House, Inc.,
(1995) 514 U.S. 725.]
g) The law clearly distinguishes between registered sex
offenders and "sexually violent predators." Sexually
violent predators are persons who have been civilly
committed due to their risk of re-offending. There have
been only four sexually violent predators ever released
under existing law. Determination of status as a sexually
violent predator occurs through civil commitment
proceedings, which are completely separate from sex
offender registration requirements under the Penal Code.
h) Nothing but anecdotal evidence has been presented
regarding any connection between "sober living facilities"
and registered sex offenders.
i) Where will parolees required to register as sex
offenders live ? As bills such as this one deprive such
people of housing options, is it contemplated that the
State will be responsible for the construction,
development, and management of alternative types of
housing? Would this bill make it harder for parole agents
to locate housing for these parolees? From a public safety
viewpoint, would it be safer for these parolees to be
homeless than to live in a single-family dwelling, or sober
living facility with another sex offender? If these
parolees also have a substance abuse problem, would this
bill make it impossible, or extremely difficult, to place
sex offender parolees in small sober living facilities?
Would limiting the ability of parole agents to place sex
offenders in sober living facilities enhance public safety?
Is being a roommate in a regulated facility (such as a
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sober living facility) more dangerous than two sex
offenders being adjacent neighbors in residential hotels or
apartment complexes?
4)The Federal Fair Housing Act: The Federal Fair Housing Act
(42 U.S.C. Section 3601 et seq.) makes it unlawful to
discriminate against any person because of race, color,
religion, sex, familial status or national origin. [42 U.S.C.
Section 3604(b).] It is also unlawful to discriminate in the
sale or rental, or to otherwise make unavailable, a dwelling
to any buyer or renter because of handicap . [42 U.S.C.
Section 3604(f)(1).] In implementing regulations, the Federal
Government also defines "handicapped person" as a person with
a physical or mental impairment; that phrase includes but is
not limited to ? drug addiction and alcoholism ." (28 C.F.R.
Section 41.31.)
5)Discrimination is further defined to include a refusal to make
reasonable accommodations in rules, policies, practices or
services when such accommodations may be necessary to afford
such person equal opportunity to use and enjoy a dwelling.
[42 U.S.C. Section 3604(f)(3)(B).]
In defining "handicap", the Fair Housing Act encompasses the
handicap of the buyer or renter; a person residing in or
intending to reside in that dwelling or of any person
associated with that buyer or renter. [42 U.S.C. Section
3604(f)(1).] Implementing regulations further define
"handicapped person" as a person with a physical or mental
impairment; that phrase includes but is not limited to ? drug
addiction and alcoholism." (28 C.F.R. Section 41.31.)
The Federal Fair Housing Act defines "family" as including a
single individual. [42 U.S.C. Section 3602(c).] The Act
defines "dwelling" as any building, structure, or portion
thereof which is occupied as, or designed or intended for
occupancy as, a residence by one or more families, and any
vacant land which is offered for sale or use for the
construction or location thereon of any such building,
structure, or portion thereof. [42 U.S.C. Section 3602(b).]
The Federal Americans with Disabilities Act states that no
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
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of a public entity, or be subjected to discrimination by any
such entity. (42 U.S.C. Section 12132.)
6)The United States Supreme Court and Federal Appellate Courts
have held that Local Ordinances Prohibiting a Specified Number
of Unrelated Persons from Living Together in a Family
Residence Zone are Unconstitutional .
a) The United States Supreme Court has held that laws which
focus on the composition of households rather than the
total number of occupants in living quarters violate the
Federal Fair Housing Act. The Court stated that a local
ordinance governing areas that are zoned for single-family
dwellings - which provision had been invoked against a
group home for persons recovering from alcoholism and drug
addiction - is a family composition rule and is not a
maximum occupancy restriction (which might be exempt from
scrutiny under the Federal Fair Housing Act. [City of
Edmonds v. Oxford House, Inc., (1995) 514 U.S. 725.] As a
family composition rule, however, the ordinance was held
subject to strict scrutiny under the Fair Housing Act and
underlying constitutional principles.
Thus, the United States Supreme Court has held that local
ordinances which focus on the composition of the household
(e.g., sober living facilities) rather than the total
number of occupant living quarters are prohibited by the
Federal Fair Housing Act. The Court distinguished between
the composition of the households and the total number of
occupant living quarters.
b) Federal lower courts have held that group homes are
dwellings. "It is well settled that the Fair Housing
Amendments Act applies to the regulation of group homes."
[Larkin v. Mich. Dept. of Social Services, 89 F. 3d 285,
289 (6th Circuit 1996).] A court has also discussed the
legislative intent expressed in the House Resolution Report
No. 100-711 as to the types of discrimination that
committee intended to prevent under the Fair Housing
Amendments Act, and noting in particular "the enactment or
imposition of heath, safety, or land-use requirements on
congregate living arrangements among non-related persons
with disabilities." [Lakeside Resort Enterprises et.al. v.
Board of Supervisors of Palmyra Township, 455 F. 3d 154
(3rd Circuit (2006); cert. denied 2007 U.S. LEXIS 1182
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(January 22, 2007).]
In the Lakeside Resort case, the issue was whether a proposed
drug and alcohol treatment facility qualified as a dwelling
under the Fair Housing Act. The Federal Appellate Court
held that while the residents were at the facility, they
treated the facility like a home, eating together,
receiving mail and visitors, and decorating their rooms.
Therefore, the appellate court deemed the facility a
dwelling under 42 U.S.C. Sections 3602(b) and 3604(f)(1).
"We hold that the facility intended as a drug and alcohol
treatment facility is a dwelling under the Fair Housing
Act." (Id. at p. 160.)
"Alcoholism is impairment, and where alcoholics are unable to
maintain abstinence and continued recovery in an
independent living situation, they are substantially
limited in their ability to care for themselves and thus
such individuals are disabled under the Americans with
Disabilities Act (42 U.S.C. 12102.)" [Regional Econ.
Community Action Program, Inc. v. City of Middletown 281 F.
3d 333 (2nd Circuit 2002); corrected 294 F.3d 35; cert.
denied (2002) 537 U.S. 813 (2002).]
In MX Group, Inc. v. City of Covington 106 F. Supp. 2d 914
(E.D. Ky. 2000); affirmed 293 F3d 326 (6th Circuit 2006),
the Court found that recovering heroin addicts were
'persons with disabilities' under 42. U.S.C. Section
12102(2), where addiction was a long-term problem affecting
major life activities of working and parenting, at a
minimum, and the prospective clients of the facility had a
record of or were regarded as being disabled.
The court in A Helping Hand, LLC v. Baltimore County, MD
(2005 District Court Maryland) 2005 U.S. Dist. LEXIS 22196,
recognized that the Americans with Disabilities Act applies
to local zoning decisions. Also, numerous precedents
establish that the administration of zoning laws is a
"service, program or activity" within the meaning of 42
U.S.C. Section 12132. The court further noted that the
plaintiff "does not presently rely on other theories that
may be available under the ADA, including disparate impact
and failure to provide reasonable accommodation." The
Helping Hand Court also reviewed the procedural history of
the local ordinance, and determined that the circumstances
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indicate that the bill was specifically designed to prevent
A Helping Hand from providing services to its disabled
clients. "Courts have found that a decision made in the
context of strong, discriminatory opposition becomes
tainted with discriminatory intent even if the decision
makers personally have no strong views on the subject."
(Id.)
7)Local Ordinances Passed Pursuant to This Bill May Result in
Protracted, Costly Litigation, Brought by Both Private
Plaintiffs and the United States Government : Because local
ordinances passed pursuant to this bill are likely to invite
local legislation enacted in the context of strong,
discriminatory opposition, it appears likely that such local
ordinances will be the subject of lengthy, costly litigation
against any locality that passes an ordinance discriminating
against persons with disabilities. [See, e.g., United States
v. City of Boca Raton, (2008 S.D. Florida), 2008 U.S. Dist.
LEXIS 20088, a case brought by the United States Department of
Justice, under 42 U.S.C. 3614(a), which gives the Attorney
General the authority to commence an action under the Fair
Housing Act whenever "he has reasonable cause to believe that
any person or group of persons has been denied any of the
rights granted by the Act and such denial raises an issue of
general public importance." The United States Department of
Justice also filed a brief in a related case, Jeffrey O. v.
City of Boca Raton, 511 F. Supp. 2d 1339 (S.D. Fla. 2007). In
both cases, the City was alleged to have established a
classification directed at housing for persons with particular
disabilities and imposed unique restrictions on that housing.]
In the United States v. Boca Raton case, the court reiterated
its finding in Jeffrey O., supra, that the portion of the city
ordinance which capped the number of unrelated individuals who
could live together in residential zones at 3, to be in
violation of the Fair Housing Act because it did not establish
a reasonable accommodation procedure. The U.S. v. Boca Raton
court also held that the purpose of the Fair Housing Act is to
"prohibit local governments from applying land use
restrictions in a manner that will give disabled people less
opportunity to live in certain neighborhoods than people
without disabilities" citing Good Shepherd Manor Foundation v.
City of Momence, 323 F. 3d 557, 562 (7th Circuit 2003).
As the court ruled in Community Housing Trust v. Department of
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Consumer and Regulatory Affairs, 257 F. Supp. 2d 208 (D.D.C.
2003) "an ordinance which ? classifies persons upon the basis
of their 'common need for treatment, rehabilitation,
assistance, or supervision in their daily living does, in
fact, apply different standards to persons on the basis of
their disability."
This bill, in specifically singling out "sober living
facilities" for appropriate differential treatment by local
ordinances, thus violates the Fair Housing Act by applying
different standards to the disabled persons who reside in
sober living facilities. By so doing, this bill will likely
result in any number of lawsuits, by private individuals,
groups who own sober living facilities, and the United States
Government under the provisions of Section 3614. (42 U.S.C.
Section 3614.) As stated in United States v. Boca Raton,
supra, "governmental agencies are not bound by private
litigation when the agency's action seeks to enforce a federal
statute that implicates both public and private interests,"
citing Herman v. South Carolina National Bank, 140 F.3d 1413,
1425 (11th Circuit 1998); U.S. v. City of Boca Raton, supra.
8)California Statutory Law, as Set Forth in the California Fair
Employment and Housing Act, Provides Greater Protections to
the Disabled than Afforded in Federal Law . In Government Code
Section 12926.1, "the Legislature finds and declares as
follows:
a) The law of this State in the area of disabilities
provides protections independent from those in the federal
Americans with Disabilities Act of 1990 (Public Law
101-336). Although the federal act provides a floor of
protection , this state's law has always, even prior to
passage of the federal act, afforded additional
protections.
b) The law of California contains broad definitions of
physical disability, mental disability, and medical
condition.
c) Physical and mental disabilities include, but are not
limited to, chronic or episodic conditions such as
HIV/AIDS, hepatitis, epilepsy, seizure disorder, diabetes,
clinical depression, bipolar disorder, multiple sclerosis,
and heart disease. In addition, the Legislature has
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determined that the definitions of 'physical disability'
and 'mental disability' under the law of this state require
a 'limitation' upon a major life activity, but do not
require, as does the Americans with Disabilities Act of
1990, a 'substantial limitation.' This distinction is
intended to result in broader coverage under the law of
this State than under that federal act. Under the law of
this state, whether a condition limits a major life
activity shall be determined without respect to any
mitigating measures, unless the mitigating measure itself
limits a major life activity, regardless of federal law
under the Americans with Disabilities Act of 1990.
Further, under the law of this state, 'working' is a major
life activity, regardless of whether the actual or
perceived working limitation implicates a particular
employment or a class or broad range of employments.
d) States that notwithstanding any [contrary]
interpretation of law the Legislature intends: (a) for
state law to be independent of the Americans with
Disabilities Act of 1990, (b) to require a 'limitation'
rather than 'a substantial limitation' of a major life
activity, and (c) by enacting Section 12926(4)(i) and (k)
to provide protection when an individual is erroneously or
mistakenly believed to have any physical or mental
condition that limits a major life activity.
9)California Law in FEHA Declares Discrimination on the Basis of
Disability in Housing Accommodations to be against Public
Policy . (Government Code Section 12920.)
10)The California Supreme Court and California Appellate Courts
have Held That Land Use Practices Which Promote Discrimination
on the Basis of Disability Are Unlawful :
a) The California Supreme Court Held Unconstitutional a
Local Ordinance Prohibiting 12 Unrelated Persons from
Living Together in a Family Residence Zone. In City of
Santa Barbara v. Adamson, (1980) 27 Cal. 3d 123, the
California Supreme Court stated, "The right of privacy is
the right to be left alone. It is a fundamental and
compelling interest. It protects our homes, our families,
our thoughts, our emotions, our expressions, our
personalities, our freedom of communion, and our freedom to
associate with the people we choose? The right of privacy
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is an important American heritage and essential to the
fundamental rights guaranteed by the First, Third, Fourth,
and Ninth Amendments to the United States Constitution.
This right should be abridged only when there is a
compelling public need . . . . [citing White v. Davis, 13
Cal. 3d 757, at pp. 774-775. (1979).]"
b) Other California Appellate Court Decisions on
Discrimination in Housing On the Basis of Disability : In
Hall et al., v. Butte Home Health, Inc., 60 Cal. App. 4th
308 (3rd District 1997), the appellate court stated, "The
Legislature amended the Fair Employment and Housing Act
(Gov. Code, 12955 and 12955.6), in 1993, and thereby
declared restrictive covenants which, through land use
practices, promote discrimination on the basis of
disability, to be unlawful. One reason for the legislative
change was to bring California law into conformity with the
federal Fair Housing Act of 1968, which precludes the
enforcement of restrictive covenants, even those neutral on
their face, that have the purpose of discriminating, in
housing, against handicapped individuals. The Hall Court
also stated: "Furthermore, Gov. Code, 12955.6, was
intended to and did invalidate the portion of Health &
Safety Code, 1569.87, that permitted the use of pre-1979
restrictive covenants to exclude group homes for the
disabled elderly."
In Broadmoor San Clemente Homeowners Association v. Nelson,
25 Cal. App. 4th 1, (4th Appellate District 1994) the Court
held that the "Federal Fair Housing Act of 1968, was
amended in 1988 to make it unlawful 'to discriminate in the
sale or rental, or to otherwise make unavailable or deny, a
dwelling to any buyer or renter because of a handicap of ?
a person residing in, or intending to reside in that
dwelling after it is so sold, rented or made available.
[42 U.S.C. 3604(f)(1).] Restrictions on housing
accommodations for the disabled violate the Federal Fair
Housing Act as amended in 1988.
"[I]n discussing the scope of the amended Act, the House
Committee on the Judiciary reviewed the legislative history
of the Federal Fair Housing Act and noted 'In discussing
the scope of the amended Act, the House Committee on the
Judiciary stated that the Act is intended to prohibit
special restrictive covenants or other terms or conditions,
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or denials of service because of an individual's handicap,
and which ? exclude, for example, congregate living
arrangements for persons with handicaps".
The Broadmoor Court also discussed federal cases which found
violations of the Federal Fair Housing Act by the
enforcement of a neutral covenant in state law designed to
terminate the operation of a home for the handicapped.
[See, e.g., Casa Marie v. Superior Court of Puerto Rico,
752 F. Supp. 1152 where "the court held that the Fair
Housing Act was violated by the defendants' enforcement of
a neutral restrictive covenant in state court to terminate
the operation of a home for the handicapped," citing U.S. v
Scott 788 F. Supp. 1155, 1561 (Dist. Court Kansas 1992).
Broadmoor, supra, at p. 8.]
The court held that enforcement of a covenant that had the
effect of excluding group homes for the handicapped was
prohibited by law. Specifically, federal law prohibits
enforcement of a restrictive covenant having the effect of
excluding group homes for the handicapped. (Broadmoor
supra.)
The Broadmoor case reviewed the history of the 1993
amendments to the Fair Employment and Housing Act (FEHA).
The amendments added "It shall be unlawful to discriminate
through public or private land use practices? because of
disability? Discrimination includes but is not limited to
restrictive covenants. Section 1569.87 of the Health and
Safety Code permits restrictive covenants executed before
1979 to prohibit residential care facilities for the
elderly. "It therefore appears from the face of Government
Code Sections 12955 and 12955.6 that the portion of 1569.87
containing such permission has been repealed . The
legislative intent expressly stated in the act amending
Sections 12955 and 12955.6 confirms this conclusion."
(Broadmoor, supra, at p. 8.)
"Federal law prohibits enforcement of a restrictive covenant
which has the effect of excluding group homes for the
handicapped. The legislative intent expressed as part of
the amendments, specifically refers to the desirability of
making group housing for the disabled available in
residential areas. (Broadmoor, supra, at p. 9.)
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c) California Appellate Courts Have Adopted the
"Discriminatory Impact" Theory of Housing Discrimination :
Broadmoor, supra, was cited with approval by the California
Supreme Court in Konig v. Fair Employment and Housing
Commission, 28 Cal. 4th 743, 750 (2002) and by Sisemore v.
Master Financial Inc., 151 Cal. App. 4th 1386 (6th District
Court of Appeal 2007.) In Sisemore, the Court stated that
"a plaintiff need not show a discriminatory intent to
establish a disparate impact claim under the Fair Housing
Act," citing Pfaff v. U.S. Department of Housing and Urban
Development, (9th Circuit 1996) 88 F. 3d 739, 745-746.
"Rather, the essential premise of a Fair Housing Act
disparate impact claim is that some housing practices,
adopted without a deliberately discriminatory motive, may
in operation be functionally equivalent to intentional
discrimination." [Sisemore, supra at p. 1420, citing
Mountain Side Mobile Estates v. Secretary of HUD, (10th
Circuit 1995) 56 F. 3d 1243, 1250-1251.]
11)"Sober Living Facilities" Are Not Defined in This Bill :
Although this bill specifically references "sober living
facilities" the bill does not define precisely what is meant
by that term. The only reference found to "sober living
facilities" was in a fact sheet issued in December 2007 by the
California Department of Alcohol and Drug Programs. That fact
sheet, which cites no statutory or regulatory authority,
states, in part:
a) Alcohol and drug-free houses (also known as "sober
living facilities") are important in supporting treatment
and recovery services in a community by helping recovering
persons to maintain an alcohol- and drug-free lifestyle.
Residents are free to organize and participate in self-help
meetings or any other activity that helps them to maintain
sobriety.
b) The house or its residents do not and cannot provide any
treatment, recovery, or detoxification services; do not
have treatment or recovery plans or maintain case files,
and do not have a structured or scheduled program of
alcohol and drug education, group or individual counseling,
or recovery support sessions.
c) Persons typically become residents of an alcohol- and
drug-free house after being in a licensed non-medical
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residential alcohol or other drug recovery or treatment
facility. However, participation in a licensed facility is
not necessarily a prerequisite for residency.
d) Alcohol- and drug-free houses are not required to be
licensed, nor are they eligible for licensure. By
definition they do not provide alcohol or drug recovery or
treatment services and are, therefore, not subject to
regulation or oversight by the State Department of Alcohol
and Drug Programs (ADP.)
e) These houses have three things in common:
i) They ensure that a person who is in recovery lives
in an environment that is free from alcohol and drugs;
ii) The residents themselves reinforce their recovery
through support with other recovering persons; and,
iii) The residents are free to voluntarily pursue
activities to support their recovery, either alone or
with others.
f) Alcohol- and drug-free houses are subject to
landlord/tenant law in California, including the Unruh
Civil Rights Act (Civil Code Section 53 et seq.) and FEHA's
provisions regarding non-discrimination in housing
(Government Code Section 12980 et seq.).
g) The Fact Sheet also directs readers to the Federal Fair
Housing Amendments Act, 42 U.S.C. 3601 et seq.) which
"forbids discrimination on the basis of disability in sale,
rental, zoning, land use restriction and other rules."
12)Arguments in Support :
a) The Mayor, Town of Apple Valley (the sponsor of this
bill), states, "The intent of AB 2593 is to preserve public
safety, ensure the integrity, quality, and public-service
benefit derived from group homes, and to protect our
children and communities from the proliferation of
registered sex offenders living in residential
neighborhoods. If adopted, AB 2593 would provide cities
and counties with greater oversight and authority over sex
offender housing concentrations in Residential Care
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Facilities (small group homes of six residents or less)
licensed by the State. Because existing law does not
permit a city or county to regulate the number or types of
residents living in a small group home, AB 2593 is
necessary to permit a city or county to adopt a local
ordinance to prohibit more than one registered sex offender
from residing in a small group home.
"Over the last several years, public outcry has grown
significantly throughout California, particularly here in
Apple Valley. Local elected officials are charged with the
reasonability of providing public safety for all California
residents. AB 2593 would go a long way to providing safer
communities and addressing public concern regarding state
licensed group homes while continuing to improve the public
benefit these facilities provide.
"AB 2593 is a good public safety measure which will allow
communities who are most affected by the release of
sexually violent predators to have a say in the placement
of these individuals."
b) The Bakersfield Office of the City Attorney states, "The
intent of AB 2593 is to preserve public safety, ensure the
integrity, quality and public-service benefit derived from
group homes, and to protect our children and communities
from the proliferation of registered sex offenders living
in residential neighborhoods. If adopted, AB 2593 would
provide cities and counties with greater oversight and
authority over sex offender housing concentrations in
Residential Care Facilities (small group homes of six
residents or less) licensed by the State and sober living
facilities . . . . AB 2593 would go a long way to
providing safer communities and addressing public concern
regarding state licensed group homes while continuing to
improve the public benefit these facilities provide."
c) The Mayor, City of Hesperia , states, "Over the last
several years, public outcry has grown significantly
throughout California, particularly here in the High Desert
region of San Bernardino County. AB 2593 would go a long
way to providing safer communities and addressing public
concern regarding state licensed group homes while
continuing to improve the public benefit these facilities
provide."
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13)Arguments in Opposition :
a) The California Public Defenders Association states, "AB
2593 would bar parole officials from placing sex offenders
in residential facilities or sober living facilities that
serve six or fewer persons. This bill would place
additional burdens on parole authorities in finding places
for 290 registrant parolees to live.
"The California Sex Offender Management Task Force identified
housing as one of the key problems blocking successful
reintegration of offenders into the community. Research
has shown that stability is a key factor in preventing sex
offenders from re-offending. Making it impossible for sex
offender parolees to live in the community, this bill makes
it more likely that sex offenders will become homeless and
be more likely to commit new offenses."
b) The American Civil Liberties Union states, "This bill
would place additional burdens on parole authorities in
finding places for sex offender parolees to live. The
California Sex Offender Management Task Force identified
housing as one of the key problems blocking successful
reintegration of offenders into the community. Research
has shown that stability is a key factor in preventing sex
offenders from re-offending. The additional hurdles
imposed by this bill are counterproductive."
14)Related Legislation :
a) AB 724 (Benoit) would allow a city or county the right
to exercise its police power to regulate, without
restriction, the use and occupancy of a single-family
residence located in a single-family residence zone, as
defined. AB 724 failed passage in the Committee on Health.
b) AB 370 (Adams) would allow a city or county to include
in a local definition of single-family dwelling a
residential facility which serves six or fewer persons. AB
370 was held on the Appropriations Committee's Suspense
File.
c) SB 992 (Wiggins) would require the Department of Alcohol
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and Drug Programs (DADP) to administer the licensure and
regulation of adult recovery maintenance facilities, as
defined and also required DADP to adopt emergency
regulations in this regard. SB 992 failed passage on the
Assembly floor.
d) SB 1000 (Harman) would have required registration of
sober living facilities with the Department of Alcohol and
Drug Programs. SB 1000 failed passage in the Senate Health
Committee and was returned to the Secretary of the Senate.
e) SB 913 (Hollingsworth) would have deleted the provision
in existing law which exempts residential facilities that
serve six or fewer persons from the prohibition against
more than one parolee required to register as a sex
offender from living in a single-family dwelling, unless
they are related. SB 913 failed passage in the Senate
Public Safety Committee and was returned to the Secretary
of the Senate.
REGISTERED SUPPORT / OPPOSITION :
Support
Mayor, Town of Apple Valley (Sponsor)
Bakersfield Office of the City Attorney
Mayor, City of Hesperia
Opposition
American Civil Liberties Union
California Public Defenders Association
Analysis Prepared by : Kathleen Ragan / PUB. S. / (916)
319-3744