BILL NUMBER: SB 876 INTRODUCED
BILL TEXT
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,
or disability, or homeless status, 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
(q) and (r) and (s) 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.
(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.
(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.
(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.
(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.
(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.
(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.
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.