|
Leon County
Board of County Commissioners Agenda Item#19 January 25, 2022 |
| To: | Honorable Chairman and Members of the Board |
| From: | Vincent S. Long, County Administrator Chasity H. O`Steen, County Attorney |
| Title: | Ordinance Addressing Public Health and Safety Issues, Including Issues Related to Homelessness |
| Review and Approval: | Vincent S. Long, County Administrator Chasity H. O`Steen, County Attorney |
|
Department/Division Review and Approval: |
Alan Rosenzweig, Deputy County Administrator |
|
Lead Staff/ Project Team: |
Andy Johnson, Assistant to the County Administrator Dan Rigo, Senior Assistant County Attorney |
Statement of Issue:
This item seeks Board consideration to schedule the first and only Public Hearing to consider an Ordinance that addresses public health and safety issues, including issues related to homelessness for February 8, 2022.
Fiscal Impact:
This item has no fiscal impact.
Staff Recommendation:
Option #1: Schedule the first and only Public Hearing to consider the draft Ordinance which repeals Chapter 11, Article VIII of the Code of Laws Entitled Solicitation on Public Street for February 8, 2022 at 6:00 p.m.
and Board direction for Options #2 through #4.
Report and Discussion
Background:
As directed by the Board during the December 14, 2021 meeting, this item presents a draft Ordinance (Attachment #1) for Board consideration that addresses public health and safety issues, including issues related to homelessness. As discussed in an agenda item presented during the December 14 meeting (Attachment #2), this draft Ordinance is intended to promote the health, safety, and welfare of Leon County’s residents and visitors and enhance sanitation in certain public areas. Recently, the County has received reports with increasing frequency of individuals engaging in activities that implicate public health and safety, including obstructing, camping, sleeping or intending to sleep, and soliciting in certain public areas, and of persons exhibiting immoral and indecent behavior by urinating and defecating in certain public areas. The draft Ordinance presented in this item would in part continue the County’s longstanding approach of addressing individuals in need of housing and/or other social services with dignity and respect. Through this Ordinance, the County’s priority would continue to focus on connecting individuals with housing and human services prior to any enforcement occurring.
It should be noted that the issues described above are not unique to Leon County. Local governments across the country are similarly faced with the challenge of regulating these activities in their communities in pursuit of promoting the public health, safety, and welfare while balancing the constitutionally protected rights of the people engaged in them, many of whom are often homeless or are at risk of becoming homeless. Local governments have taken a variety of policy approaches toward addressing these issues, shaped by several recent court rulings which have changed the manner by which courts evaluate the constitutionality of local Ordinances involving soliciting and other similar topics. Based on the experiences of other local governments throughout the country, these activities often intensify rapidly in communities if left unregulated, placing additional strain on public health, social service, and law enforcement resources to serve the homeless population as well as the community at-large. Accordingly, the draft Ordinance presented in this item reflects a multi-faceted approach to proactively and lawfully addressing these activities. This approach builds upon the County’s longstanding efforts to connect the homeless population with available housing and social services while also providing additional tools to enhance enforcement of potentially unlawful conduct that may result from a person’s refusal to accept such services or that furthers the compelling County interests of ensuring safe and sanitary conditions throughout the County.
Importantly, the policy options presented in this item are not intended to criminalize persons based on their status, which may be involuntary – for example, persons who may be homeless. Some Federal court cases have established that laws or Ordinances that criminalize persons based on their status, as opposed to regulating specific actions or conduct, are unconstitutional. Rather, the draft Ordinance seeks specifically to preserve and improve the public health, safety, and welfare of the County’s residents and visitors while at the same time enhancing community partners’ ability to engage those who may need housing and/or other social services. In this regard, the County has established longstanding partnerships with the City of Tallahassee (City), the Big Bend Continuum of Care (BBCoC), and a variety of community-based homelessness service agencies to coordinate and maximize local investments in homelessness programs and services, leverage local funding to secure additional Federal funding, and expand the current capacity in the community’s homelessness service system. In just the past year, for example, the County and City have taken the following substantial actions to provide economic relief and support homeless services:
A comprehensive report on homelessness in Tallahassee-Leon County was provided to the County and City Commissions at a joint workshop on July 13, 2021. This report provided a detailed discussion of the County’s partnerships with the City and a variety of community agencies to make homelessness rare, brief, and nonrecurring. In addition to the strategies listed above, at the July 13, 2021 joint workshop, the County and City Commissions continued to enhance the community’s homeless support infrastructure by approving a $1.4 million funding partnership with the BBCoC to further support street outreach, neighborhood-based agency capacity, and permanent supportive housing. An update on these street outreach efforts in partnership with the BBCoC was also included in the December 14, 2021 agenda item which is included as Attachment #2 to this item. At the July 2021 joint workshop, the Commissions also established a new Homeless Services Category under the Community Human Services Partnership and allocated approximately $3.8 million to this category in the upcoming FY 2023-FY 2024 funding cycle dedicated specifically to support a variety of services for the community’s homeless population.
Analysis:
The Analysis section of this item provides a discussion regarding the three public health and safety issues addressed in the draft Ordinance – soliciting, camping or sleeping, and defecating or urinating in certain public areas. A proactive, lawful, and multi-faceted approach is needed to provide adequate legal authority to regulate these activities. As stated earlier in this item, these activities often intensify in communities if left unregulated, placing further strain on the resources available to serve the homeless population as well as the community at large. As such, this item seeks Board direction as to whether to proceed with scheduling the draft Ordinance, as may be amended by the Board, to address any or all of these activities. In addition, the analysis concludes with a discussion regarding the Leon County Sheriff’s Homeless Outreach Street Team (HOST) Deputies and the continued request of the Sheriff’s Office to delay implementation of the draft Ordinance.
Soliciting:
At the December 14, 2021 meeting (Attachment #2), staff recommended and the Board approved staff to develop a draft Ordinance to repeal and amend the County’s existing Ordinance regarding solicitation in or on the median of any street within the County, to be consistent with more recent Federal court cases. As it relates to this Ordinance, the term “solicitation” refers to activities such as selling items or soliciting charitable donations, which are often conducted within medians or along roadways and can be hazardous to drivers and pedestrians.
To protect public safety and promote the free flow of traffic on roadways within the County, the draft Ordinance presented in this item would make it unlawful to hold a sign in a median for any reason and would apply countywide (inclusive of the City of Tallahassee). Although the City currently has a similar Ordinance governing this behavior within the City limits, which would prevail over the draft Ordinance to the extent of any conflict, the countywide draft Ordinance would continue to protect against such activity within medians in the event the City were to amend or repeal its Ordinance. In addition, State law already provides protection against unsafe activities within public streets by prohibiting any willful obstruction of a public street by impeding traffic, standing on or remaining in the street, or endangering the safe movement of vehicles or pedestrians. To provide an alternate means of communicating free speech, these activities would not be prohibited on sidewalks.
It should be noted that upon further review of the definitions contained in Chapter 316, Florida Statutes, the County Attorney has determined that regulation of activities within a street or highway as provided in section 316.2045, Florida Statutes, would apply to the entire width of a right-of-way including any sidewalks and medians. However, the draft Ordinance still would not be preempted by or in conflict with section 316.2045, Florida Statutes, as the conduct regulated under the Ordinance, i.e., holding signs in medians, merely supplements the statutory regulations. In other words, the draft Ordinance can co-exist with the state statutes because the compliance with one doesn’t violate the other. In addition, the Ordinance recommends the penalties be consistent with statutory penalties provided in Sections 316.130 and 316.2045, Florida Statutes, as may be amended. These penalties are currently $15 per violation. The draft Ordinance presented in this item provides clear definitions of areas where the Ordinance is applicable, who the Ordinance applies to, how the Ordinance shall be enforced, and the penalties for not complying with the Ordinance.
Camping or Sleeping in Certain Public Areas:
As discussed above, the County has recently received reports with increasing frequency of individuals obstructing, camping, sleeping, or intending to sleep on sidewalks, on benches, on private commercial properties, and in other public areas. In many instances, owners and managers of privately owned commercial properties have indicated to street outreach teams and law enforcement personnel that they have not given permission for people to camp or sleep on the property, but for various reasons are reluctant to request that law enforcement issue trespass warnings.
The draft Ordinance presented in this item provides clear definitions of areas where the Ordinance is applicable, who the Ordinance applies to, how the Ordinance shall be enforced, and the penalties for not complying with the Ordinance. Under the Ordinance, a person would be prohibited from camping in a public area without the permission of the property owner. Public areas, as defined below, include both public property as well as private property which is open to the public or generally visible to public view. As such, the activity of setting up or maintaining a tent with the intent to camp in the parking lot of a shopping mall, or of sleeping on the grounds adjacent to a sidewalk or roadway, would also be prohibited without the permission of the property owner. Following are key definitions included in the draft Ordinance related to camping or sleeping in public areas:
Camp or camping means sleeping or otherwise being in a temporary shelter outdoors, sleeping or intending to sleep outdoors, or cooking over an open flame outdoors, except that camp or camping does not include tailgating, picnicking, or other similar temporary celebratory activities conducted in good faith in connection with the occurrences of a legitimate sporting event, concert, theatrical events or other similar activity conducted by a school, college, university, professional sports association, orchestra, governmental agency, religious or civic organization or Section 501(c)(3) organization.
Public area(s) means an area open to the public or generally visible to public view, and includes, but is not limited to, public rights-of-way, driveways, parking lots, parks, playgrounds, plazas, and the doorways and entrances to buildings and grounds adjacent to them.
Public right(s)-of-way means a way open to travel by the public, including, but not limited to a roadway. The term also includes associated sidewalks and medians, and all culverts, rains, ditches, water storage areas, waterways, embankments, slopes, retaining walls, bridges, and tunnels used in connection therewith.
The draft Ordinance continues the County’s focus on assisting homeless individuals with receiving shelter or housing assistance before any penalties can be considered. Under the draft Ordinance, if a homeless individual is found to be camping in a public area without the permission of the property owner, then a trained Street Outreach Team member will determine if shelter or housing assistance is needed and provide assistance in connecting the homeless individual with the shelter or housing. Pursuant to the Ordinance, Street Outreach Team member(s) are defined as follows:
Street Outreach Team member(s) shall mean persons trained as homeless outreach workers contracted or employed by an organization(s) approved by the County Administrator responsible for providing information about a variety of available social services for individuals and/or families experiencing homelessness, including, but not limited to, shelter or housing alternatives, mental health counseling, substance abuse counseling, and assistance to homeless veterans.
If a person refuses the offer of shelter or housing assistance, or if the person has been offered or received such assistance within the previous ninety days, then the person may be cited for a violation under the Ordinance. The Ordinance is clear that law enforcement may obtain compliance by way of warning, notice or education. The Ordinance is also clear that enforcement may not occur unless and until a Street Outreach Team member has conducted outreach efforts and a determination has been made that a shelter or housing alternative is available. However, the Ordinance also provides that if a person does not comply and law enforcement is unable to obtain compliance, then a violator may be prosecuted in the same manner as for a violation of a misdemeanor. Upon conviction, the violator is subject to a fine not to exceed $500 or up to 60 days imprisonment or both.
As would be required by the proposed Ordinance, housing services are currently available to unsheltered individuals and families in Leon County. In coordination with the BBCoC, which is recognized by the state and federal government for planning and overseeing homeless services in the region, housing assistance resources have been enhanced over the past several months, expanding the availability of services offered by homeless service providers. As mentioned earlier, the County in partnership with the City and BBCoC have provided more than $2.8 million to improve the facilities and operations at the homeless shelters located in Leon County (including $2.1 million of the County’s allocation of CARES Act funding) over the past 18 months. Additionally, $6.3 million in County and City American Rescue Plan Act funding will be administered over the next two years to expand the Street Outreach Teams and increase services in the areas of shelter, diversion, prevention, and permanent supportive housing.
Through the combination of County, City, and BBCoC resources, the Street Outreach Teams engage unsheltered individuals and families to connect them with housing assistance that is currently available in the community, which includes emergency shelter (Kearney Center for single men and women, HOPE Community for families with children, Capital City Youth Services for minors, and Refuge House for domestic violence victims) and diversion which can include hotel vouchers, bus tickets, and vehicle repair to assist with returns to places of origin outside of Leon County. The availability of these resources is monitored regularly by the BBCoC in coordination with the homeless services providers through the Homeless Services Management Information System (HMIS) operated by the BBCoC. HMIS is utilized by the providers to input client information (name, race, gender, birthdate, etc.) as well as services provided including the dates provided. The Street Outreach Teams’ encounters with unsheltered individuals are also captured in HMIS including resources provided (e.g., hygiene kits, snacks, PPEs, etc.), services accepted, and services declined. Often the unsheltered individuals decline the Street Outreach Teams’ initial offers of housing assistance and multiple engagement efforts are required to build relationships and foster trust that will lead to the acceptance of services.
As discussed in detail in the December 14, 2021 agenda item (included as Attachment #2 to this item), the draft Ordinance was developed based upon several other local Florida governments and recent Federal court decisions, as the rights of the homeless to camp or sleep in public places has been often litigated in the Federal court system over the past twenty to thirty years. Among the local governments reviewed in preparing this item include Sarasota County and the cities of Miami and West Palm Beach.
Through the Sarasota County Sheriff’s Office, an outreach team comprised of law enforcement officers and social workers is tasked with outreach to individuals in violation of the County’s prohibition of camping or storage of personal property on public property. In addition to offering available shelter and support services, the outreach team provides support to remove barriers to receiving assistance, including transportation to available shelter and short-term storage of personal belongings. While arrests are not made unless the individual refuses to receive shelter assistance, Sarasota County has experienced minimal instances where arrests were made due to such violations – notably, of the 1000+ contacts made by the outreach team in 2021, a total of four arrests were made.
Similarly, the City of Miami’s Homeless Empowerment Assistance Team (“HEAT Team”) leads enforcement of the City’s prohibition on encampments in public places. Following initial outreach efforts, including written warnings of violations, arrests may be made upon confirmation of shelter availability and refusal of an individual to receive shelter assistance. However, the HEAT Team prioritizes direct outreach to empower individuals to take advantage of available services, rather than conducting arrests, to achieve compliance with the Ordinance. From establishment of the HEAT Team on August 2, 2021 through December 31, 2021, the team coordinated outreach with 875 individuals, 412 shelter placements, and 24 referrals to mental health and/or substance abuse services. While a total of 33 arrests were also made during this period, according to the City of Miami these arrests have been related to existing warrants or possession of narcotics.
Finally, following adoption of its Ordinance in April 2021, the City of West Palm Beach established an outreach team to lead efforts to connect individuals with shelter assistance and support services. While the Ordinance provides means of enforcement, such as issuance of citations, the City has not taken any enforcement action to date due to lack of shelter availability in the community. Accordingly, the outreach team continues to coordinate shelter placements as capacity becomes available as well as connections with other social service assistance as needed.
In accordance with the decision of the United States Eleventh Circuit Court of Appeals in Joel v. City of Orlando, 232 F.3d 1353 (11th Circ. 2000), homeless persons are not a suspect or protected class, and sleeping outdoors is not a fundamental right. The County further recognizes that, in accordance with the Joel decision, prohibiting camping or sleeping in certain public areas is rationally related to the County’s interest in promoting aesthetics, sanitation, public health, and safety, and furthermore, does not violate a person’s Eighth Amendment right to be free from cruel and unusual punishment if fair notice is provided to persons about what conducted is prohibited. Consistent with Joel the draft Ordinance presented in this item can only be enforced when adequate shelter or housing assistance is available, and the individual refuses the accommodation.
As reflected in the Board options at the conclusion of this item, the Ordinance can be applicable in either only the unincorporated area of the County or countywide (inclusive of the City of Tallahassee). If approved to be implemented countywide, pursuant to the Leon County Charter, if any provisions of the Ordinance conflict with a City Ordinance, the City Ordinance would prevail. Currently, the City only has an Ordinance addressing sleeping/camping in City parks; therefore, the Ordinance would be applicable in all other areas of the City.
Public Urination and Defecation:
Like the issues discussed above, Leon County has also received reports with increasing frequency of persons urinating or defecating in certain public areas, primarily in the downtown area. In order to provide a more effective means of enforcement, several local governments in Florida maintain local Ordinances that specifically make it unlawful to urinate or defecate in any public place not designated for such purposes or on another person’s private property. Pursuant to Section 13-34(b) of the City Code, it is unlawful to urinate or defecate within a park or recreational facility owned, managed, maintained, or controlled by the City except in toilet facilities provided by the City. A violation of this section of the City’s Code constitutes a noncriminal offense and carries a penalty similar to that provided for sleeping or camping within City parks; violators are subject to a warning, immediate ejection from the park, or issuance of a trespass warning by a law enforcement officer.
As such, the draft Ordinance makes it unlawful to urinate or defecate in certain public areas that have not been designated for use as a urinal or toilet. The proposed penalty under this Ordinance would be a fine of $50.00. The Board options at the conclusion of this item also seek direction as to whether the Board wishes to consider a draft Ordinance which applies countywide or only in the unincorporated area.
Leon County Sheriff’s Office (LCSO) Homeless Outreach Street Team (HOST) Deputies
At the December 14, 2021 meeting, the Sheriff requested (Attachment #3), and the Board approved, an allocation of approximately $491,000 in funding to support two HOST deputies for the remainder of FY 2022 and FY 2023. The Sheriff’s Office is in the process of hiring and training these officers. The HOST deputies’ responsibilities focus on connecting individuals and families to available housing and a variety of social services including mental health counseling, substance abuse programs, veteran assistance programs, and more. HOST deputies would be solely assigned to address issues related to homelessness and would provide enhanced services for the care of homeless citizens in the community, establishing a “boots on the ground” law enforcement presence on a regular basis and acting as a force multiplier and liaison to the BBCoC. Broadly, the purpose of the deputies is to provide enhanced law enforcement outreach services with resources, knowledge, and training specific to assisting homeless individuals.
At the December 14, 2021 meeting, the Sheriff requested the Board’s consideration to approve the funding request for the two HOST deputies and to defer action at this time on developing a draft Ordinance as discussed in the agenda item. The Sheriff continues to request the Board consider deferring action on the approval of the Ordinance and has expressed concerns regarding the potential impact of such an Ordinance on the inmate population at the Leon County Detention Facility. However, the Sheriff remains confident that the Sheriff’s Office will be able to adequately address issues related to homelessness in the community with the Board’s support of funding for the two HOST deputies, including connecting homeless individuals and families with affordable housing and social services in partnership with the BBCoC street outreach teams. The Sheriff’s request seeks to enhance enforcement as well as outreach to the homeless community without potentially introducing these individuals to the criminal justice system. The HOST deputies will be assigned to provide law enforcement and outreach services within the Tallahassee city limits as well as the unincorporated area.
Conclusion
Leon County has established longstanding partnerships with the City, the BBCoC, and a variety of community-based homelessness service agencies to coordinate and maximize local investments in homelessness programs and services, leverage local funding to secure additional Federal funding, and expand the current capacity in the community’s homelessness service system. Although the COVID-19 pandemic has exacerbated existing challenges and created new challenges with respect to serving the community’s homeless population, the County has continued to escalate its efforts in coordination with these partner agencies to make homelessness rare, brief, and nonrecurring.
These efforts notwithstanding, the County has recently received reports with increasing frequency of individuals obstructing, camping, sleeping or attempting to sleep, or soliciting in certain public areas, and of persons behaving immorally and indecently in certain public areas such as parks and libraries. The draft Ordinance addresses three specific public health and safety issues – soliciting, camping or sleeping in certain public areas, and defecating or urinating in certain public areas. The draft Ordinance reflects a proactive, lawful, and multi-faceted approach which would provide adequate legal authority to regulate these activities. As stated earlier in this item, these activities often intensify in communities if left unregulated, placing further strain on the resources available to serve the homeless population as well as the community at large. The approach taken in the draft Ordinance reinforces Leon County’s longstanding commitment to connecting individuals in need with available shelter, housing, and services while also enhancing the tools and resources available to enforce public health and safety measures with dignity and respect for individuals struggling with homelessness.
It is important to reiterate that the issues discussed in this item are not unique to Leon County; local governments across the country are similarly faced with the challenge of regulating these activities in their communities in pursuit of promoting health, safety, and welfare while balancing the constitutionally protected rights of the people engaged in them, many of whom are often homeless or are at risk of becoming homeless. To that end, the draft Ordinance does not criminalize those persons for being homeless. Rather, the Ordinance specifically preserves and improves the public health, safety, and welfare of the County’s residents and visitors, while at the same time further enhancing outreach to those who may need housing and/or other social services. These efforts reflect the County’s continued efforts to promote health, safety, and welfare for all Leon County citizens and visitors while also providing compassionate care and services to those experiencing the greatest need.
This item therefore seeks Board direction regarding whether to schedule the draft Ordinance, as may be amended by the Board, for a public hearing to be scheduled for February 8, 2022 at 6:00 p.m. As reflected in the Board options below, this item also seeks policy direction on the Ordinance being applied countywide or only the unincorporated areas of the County.
Options:
Recommendation:
Option #1 and Board direction for Options #2 through #4.
Attachments: