Senate Bill No. 876

Introduced by Senator Liu

January 14, 2016

An act to add Part 2.2 (commencing with Section 53.8) to Division 1 of the Civil Code, and to amend Section 11135 of, and to add Section 11139.2 to, the Government Code, relating to homelessness.

LEGISLATIVE COUNSEL’S DIGEST

SB 876, as introduced, Liu. Homelessness.

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 Development’s Continuum of Care Homeless Assistance Program to annually provide to the Department of Housing and Community Development’s 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 organization’s 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.

Vote: majority. Appropriation: no. Fiscal committee: yes. State-mandated local program: yes.

The people of the State of California do enact as follows:

SECTION 1.  

The Legislature finds and declares all of the
following:

(a) According to the United States Department of Housing and
Urban Development’s report to Congress, 115,738 people were
estimated to be homeless in California in 2014, a rate that is
unprecedented following a deep and prolonged economic recession,
a severe shortage of safe and affordable housing, a failed veteran
and civilian mental health system, and a diminished social safety
net.

(b) According to the United States Department of Education,
284,086 schoolchildren were known to have experienced
homelessness in the 2013-14 school year.

(c) Homelessness is an independent risk factor for a number of
illnesses, making people more susceptible to increased health
problems due to high stress, sleep deprivation, unsanitary
surroundings, lack of access to hygiene facilities, and a myriad of
other situational stressors experienced by people without stable
housing. Subsequently, people who are chronically homeless are
more medically frail and three to four times more likely to die
prematurely than their housed counterparts.

(d) Throughout California, local governments have enacted
ordinances that make it illegal to rest or receive nourishment in
public spaces.

(e) Ending homelessness in California will require significant
state and federal resources and there is ample evidence that policies
that invest in ending homelessness, rather than criminalizing and
marginalizing people who are experiencing homelessness,
adequately balance the needs of all parties: community residents,
government agencies, businesses, and men and women who are
experiencing homelessness.

(f) Passing this act will not reduce homelessness, but neither
will local ordinances that criminalize homelessness. Instead,
ordinances that criminalize homelessness result in increased
incarceration rates and financial indebtedness of people who simply
have no means of support and prolong homelessness by making
it more difficult for people to secure housing, employment, and
medical care. Criminalization policies further marginalize men
and women who are experiencing homelessness, fuel inflammatory
attitudes, and may even unduly restrict constitutionally protected
liberties.

(g) That is why, on September 18, 2015, the United States
Department of Housing and Urban Development included in the
annual Notice of Funding Availability for the Continuum of Care
funding competition, provisions that would award additional points
to any application that could include steps the community is taking
to reduce criminalization of homelessness.

(h) It is also why, on August 6, 2015, the United States
Department of Justice submitted a rare statement of interest in a
United States District Court in opposition to the criminalization
of people who are homeless, calling it cruel and unusual
punishment to punish someone for a crime with the potential for
imprisonment and a violation of constitutional rights.

(i) While these ordinances apply to all residents, they
disproportionately impact people without homes, who have no
private place to rest or seek nourishment, and are often selectively
applied by law enforcement to people based upon their appearance
or an assumption of homelessness.

(j) In practice, these ordinances deprive persons experiencing
homelessness and those who may be perceived as homeless of a
safe and legal place to rest and seek nourishment, which adversely
impacts their health and well-being.

(k) Sleep deprivation impairs cognitive processes and puts one
at risk for obesity, heart disease, heart attack, heart failure, irregular
heartbeat, high blood pressure, stroke, diabetes, and depression.
People who are homeless suffer from sleep deprivation and, absent
a place to rest, they suffer it more frequently.

(l) Because current practices have denied the right to adequate
legal representation to people cited or arrested while resting or
sharing food, homeless persons are often denied relief or damages
through the courts.

(m) Both the federal government, through its Interagency
Council on Homelessness, and the United Nations have recognized
that discrimination and criminalization violate a homeless person’s
human rights and have called upon state and local governments to
cease enactment and enforcement of those laws.

(n) Homelessness and the increasing criminalization of
homelessness and discrimination against those experiencing
homelessness are widespread throughout California and are matters
of statewide concern.

(o) Section 1 of Article I of the California Constitution provides
that “[a]ll 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,” without
qualification as to whether or not a person is, or appears to be,
homeless.

(p) Subdivision (a) of Section 7 of Article I of the California
Constitution provides that “[a] person may not be deprived of life,
liberty, or property without due process of law or denied equal
protection of the laws ... .”

(q) Concordant with this fundamental belief, a person should
not be subject to discrimination based on his or her income, housing
status, or ability or desire to appear housed. Therefore, it is the
intent of the Legislature in enacting this legislation to protect the
rights of all Californians, regardless of their housing status, and
ameliorate the adverse effects caused by the criminalization of
homelessness on our communities and our citizens.

(r) Decriminalization of rest allows municipal governments to
redirect resources from local enforcement activities to activities
that address the root causes of homelessness and poverty.

SEC. 2.  

Part 2.2 (commencing with Section 53.8) is added to
Division 1 of the Civil Code, to read:

 

PART 2.2.  Homeless Persons

 

53.8.  

For purposes of this part, the following definitions shall
apply:

(a) “Homeless persons,” “homeless people,” or “persons
experiencing homelessness” means those individuals or members
of families who lack a fixed, regular, and adequate nighttime
residence, including people defined as homeless using the criteria
established in the Homeless Emergency Assistance and Rapid
Transition to Housing (HEARTH) Act of 2009.

(b) “Motor vehicle” means a motor vehicle as defined in Section
415 of the Vehicle Code.

(c) “Public space” means any property that is owned by a
government entity or any property 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.

(d) “Recreational vehicle” means a recreational vehicle as
defined in Section 18010 of the Health and Safety Code.

(e) “Rest” means the state of not moving, holding certain
postures that include, but are not limited to, sitting, standing,
leaning, kneeling, squatting, sleeping, or lying.

53.81.  

(a) Persons experiencing homelessness shall be
permitted to use public space in the ways described in this section
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. Permitted
use of the public space include, but are not limited to, all of the
following:

(1) Free movement without restraint.

(2) Sleeping or resting, and protecting onself from the elements
while sleeping or resting in a nonobstructive manner.

(3) Eating, sharing, accepting, or giving food in a space in which
having food is not otherwise generally prohibited.

(4) Praying, meditating, worshiping, or practicing religion.

(b) Nothing in this section shall prevent law enforcement from
enforcing laws to protect the right of people to use the sidewalk,
pursuant to the Americans with Disabilities Act of 1990 (42 U.S.C.
Sec. 12101 et seq.).

(c) Nothing in this section shall prevent law enforcement from
enforcing the Penal Code, except subdivision (e) of Section 647
of the Penal Code, so far as it prohibits rest.

53.82.  

(a) Any person whose rights have been violated pursuant
to this part may enforce those rights in a civil action.

(b) The court may award appropriate injunctive and declaratory
relief, restitution for loss of property or personal effects and
belongings, actual damages, compensatory damages, exemplary
damages, statutory damages of one thousand dollars ($1,000) per
violation, and reasonable attorney’s fees and costs to a prevailing
party.

SEC. 3.  

Section 11135 of the Government Code is amended
to read:

11135.  

(a) No person in the State of California shall, on the
basis of race, national origin, ethnic group identification, religion,
age, sex, sexual orientation, color, genetic information, begin delete or end delete
disability, begin insert or homeless status, end insert 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. Notwithstanding Section 11000, this section applies
to the California State University.

(b) With respect to discrimination on the basis of disability,
programs and activities subject to subdivision (a) shall meet the
protections and prohibitions contained in Section 202 of the federal
Americans with Disabilities Act of 1990 (42 U.S.C. Sec. 12132),
and the federal rules and regulations adopted in implementation
thereof, except that if the laws of this state prescribe stronger
protections and prohibitions, the programs and activities subject
to subdivision (a) shall be subject to the stronger protections and
prohibitions.

(c) (1) As used in this section, “disability” means any mental
or physical disability, as defined in Section 12926.

(2) The Legislature finds and declares that the amendments
made to this act are declarative of existing law. The Legislature
further finds and declares that in enacting Senate Bill 105 of the
2001-02 Regular Session (Chapter 1102 of the Statutes of 2002),
it was the intention of the Legislature to apply subdivision (d) to
the California State University in the same manner that
subdivisions (a), (b), and (c) already applied to the California State
University, notwithstanding Section 11000. In clarifying that the
California State University is subject to paragraph (2) of
subdivision (d), it is not the intention of the Legislature to increase
the cost of developing or procuring electronic and information
technology. The California State University shall, however, in
determining the cost of developing or procuring electronic or
information technology, consider whether technology that meets
the standards applicable pursuant to paragraph (2) of subdivision
(d) will reduce the long-term cost incurred by the California State
University in providing access or accommodations to future users
of this technology who are persons with disabilities, as required
by existing law, including this section, Title II of the federal
Americans with Disabilities Act of 1990 (42 U.S.C. Sec. 12101
and following), and Section 504 of the Rehabilitation Act of 1973
(29 U.S.C. Sec. 794).

(d) (1) The Legislature finds and declares that the ability to
utilize electronic or information technology is often an essential
function for successful employment in the current work world.

(2) In order to improve accessibility of existing technology, and
therefore increase the successful employment of individuals with
disabilities, particularly blind and visually impaired and deaf and
hard-of-hearing persons, state governmental entities, in developing,
procuring, maintaining, or using electronic or information
technology, either indirectly or through the use of state funds by
other entities, shall comply with the accessibility requirements of
Section 508 of the federal Rehabilitation Act of 1973, as amended
(29 U.S.C. Sec. 794d), and regulations implementing that act as
set forth in Part 1194 of Title 36 of the Federal Code of
Regulations.

(3) Any entity that contracts with a state or local entity subject
to this section for the provision of electronic or information
technology or for the provision of related services shall agree to
respond to, and resolve any complaint regarding accessibility of
its products or services that is brought to the attention of the entity.

(e) As used in this section, “sex” and “sexual orientation” have
the same meanings as those terms are defined in subdivisions begin delete (q)
and end delete (r) begin insert and (s) end insert of Section 12926.

(f) As used in this section, “race, national origin, ethnic group
identification, religion, age, sex, sexual orientation, color, or
disability” includes a perception that a person has any of those
characteristics or that the person is associated with a person who
has, or is perceived to have, any of those characteristics.

(g) As used in this section, “genetic information” has the same
definition as in paragraph (2) of subdivision (e) of Section 51 of
the Civil Code.

begin insert

(h) As used in this section, “homeless status,” or “people
experiencing homelessness” means those individuals or members
of families who lack a fixed, regular, and adequate nighttime
residence.

end insert begin insert

(i) As used in this section, “public space” means any property
that is owned by any government entity or any property 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.

end insert begin insert

(j) As used in this section, “rest” means the state of not moving,
holding certain postures that include, but are not limited to, sitting,
standing, leaning, kneeling, squatting, sleeping, or lying. Rest also
includes the act of protecting oneself from the elements, in a
nonobstructive manner.

end insert begin insert

(k) The Legislature finds and declares that people with a
homeless status lack a private space to rest, and, therefore, they
must rest in a public space.

end insert begin insert

(l) It is the intent of the Legislature to protect the rights of all
people, including those experiencing homelessness, in order to
diminish the adverse effects of municipalities engaged in violating
the fundamental right to rest.

end insert begin insert

(m) In order to ensure full and equal access to the benefits and
protections afforded by this section against discrimination in the
administration of any program or activity conducted, operated,
or administered by the state or any state agency funded directly
by the state, or that receives any financial assistance from the
state, no city, county, city and county, or municipal agency that
receives state funds shall enact or enforce a law that bans resting
in a public space, as defined in Part 2.2 (commencing with Section
53.8) of Division 1 of the Civil Code.

end insert

SEC. 4.  

Section 11139.2 is added to the Government Code, to
read:

11139.2.  

To improve monitoring of discrimination based upon
housing status and violations of Section 11135, and to ensure that
people who are experiencing homelessness are not unlawfully
denied full and equal access to the benefits of state-funded
programs or assistance, or unlawfully subjected to discrimination,
all applicants for the United States Department of Housing and
Urban Development’s Continuum of Care Homeless Assistance
Program shall annually provide to the Department of Housing and
Community Development’s 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 organization’s response to the application question
regarding steps that its community is taking to reduce
criminalization of homelessness.

SEC. 5.  

If the Commission on State Mandates determines that
this act contains costs mandated by the state, reimbursement to
local agencies and school districts for those costs shall be made
pursuant to Part 7 (commencing with Section 17500) of Division
4 of Title 2 of the Government Code.