Finding a way forward

Finding a Way ForwardThis session is designed to illuminate how, by working with the

community and local advocates, compromise can serve the needs of all.

Richard R. TroxellDirector

Legal Aid for the Homeless-TRLAPresident

House the Homeless, Inc.

Michael E. UrenaAttorney

Texas Rio Grande Legal Aid- Eagle Pass

“Quality of Life” Ordinances

Finding themselves in conflict with people experiencing homelessness, municipalities across America are passing “Quality of Life” Ordinances.

-no camping-no panhandling-no sitting-no lying down etc.

Americans with Disabilities Act

With half of the people experiencing homelessness are so disabled they cannot work, at least one of these

ordinances was in direct violation of the ADA.

Petition for Benches

In 2008, House the Homeless, Inc., HTH,

petitioned City Council Member Lee

Leffingwell for benches around the

homeless shelter.

Benches Accused of Illegal Drug Sales

The request of 400 people was refused by the operators of the shelter citing grave concerns that drugs might be sold from the benches.

Health Survey

In January 2010, HTH surveyed 501 people experiencing homelessness, revealing that 48% were so disabled that they could not work.

Type

s of

Dis

abili

ties

Debilitating Chronic Back PainCOPDPost Traumatic Stress Disorder EmphysemaHeart DiseaseNeuropathy SchizophreniaEye InjurySevere Hearing LossChronic Viral BronchitisDegenerative Rheumatoid ArthritisDegenerative Joint DiseaseGlaucomaDegenerative Bone DiseaseNeurological DisorderScoliosis with chronic pain

Circulatory ProblemAnd numerous others

Relief Sought

HTH members met with Austin City Council Member Mike Martinez seeking Council’s support for re-opening the No Sit/ No Lie

Ordinance, which assesses fines of between $200-$500 for sitting or lying down. HTH called for compliance under the Americans with

Disabilities Act.

No Sit/ No Lie Ordinance

• Provides for fines between $200 & $500 per person – Citizens are being ticketed for sitting down while in

line for health care– Police officers are finding the only evidence of a

disability is a wheelchair• HTH called for compliance under the Americans

with Disabilities Act.

City of Austin Code of Ordinances

9-4-14 Sitting or lying down on public sidewalks in the downtown business area prohibited.(D) A person commits an offense if, after having been

notified by a law enforcement officer that the conduct violates this section.

1. the person is asleep outdoors; or 2. the person sits or lies down in the right-of-way between the roadway

and the abutting property line or structure, or on an object placed in that area.

Texas Rio Grande Legal AidMemorandum of Law

To: Richard Troxell, Director, Legal Aid for the HomelessFrom: Michael E. Urena, Team Manager, Disability Rights PracticeDate: July 19, 2010RE: The ADA and Austin City Code 9-4-14

BACKGROUND

You asked for a legal opinion regarding whether the Americans With Disabilities Act would require the City of Austin to accommodate persons with disabilities by partially exempting them from the “Quality of Life” ordinance by allowing them to sit down on public sidewalks and/or by the placement of benches for their use.

Texas Rio Grande Legal AidMemorandum of Law

To: Richard Troxell, Director, Legal Aid for the HomelessFrom: Michael E. Urena, Team Manager, Disability Rights PracticeDate: July 19, 2010RE: The ADA and Austin City Code 9-4-14

CONCLUSION…Thus, unless the City makes a reasonable accommodation to insure that

public sidewalks are “readily accessible” to homeless individuals with disability, the “Quality of Life” ordinance, and, thus, the City, violates the ADA. Providing benches for their use or allowing an exemption that allows homeless individuals with a disability to sit on public sidewalks appear to be two ways of providing a reasonable accommodation.

Progress:

• Council Support Attained• Open Records Act data Acquired• Suggested Ordinance Exemptions Reviewed

Open Records Act

• HTH, under the Open Records Act, learned that in 2008- 1,564 tickets were issued under the Ordinance.

• In 2009- 2,729 tickets were issued under the No Sit/No Lie Ordinance.

• Only 70 tickets were dismissed and 708 resulted in conviction.

Stake Holders Meetings

• “Stake Holders” included businesses, business lobbyists, Downtown Austin Alliance, Homeless Service Providers, City Staff, and House the Homeless

Suggested No Sit/ No Lie Exemptionsfor anyone with-

• Mobility impaired bus pass• Documentation of hospital care

within the previous two weeks• Documentation of food stamp

work exemption• Award letter from SSA for

disability• Documentation of recuperative

care within the previous 2 weeks• Doctors note of disability• Letter of disability from DARS• In line for health services• Using cane, crutches, walker, or

braces• Taking psychotropic medications

• A letter of participation from– David Powell AIDS Clinic– Community Court – Austin Recovery Center– PT or OT program

•All pregnant women•All exempt with Heat Index of 100˚ and ozone action days•All obese persons•Adults with children•All senior citizens•And anyone sitting to PREVENT a medical emergency

City of Austin Legal ResponseTo: Public Health & Human Services SubcommitteeFrom: Cathie Childs, Assistant City AttorneyDate: August 9, 2010RE: Constitutionality of City’s “Sit/Lie” OrdinanceSUBJECT:

Where the city’s current “sit/lie” ordinance violates the Americans with Disabilities Act by denying the City’s homeless population the benefits of services, programs or activities of the City.

Short Answer: The city’s “sit/lie” ordinance does not violate the ADA.

A) “Homelessness” is not, in-and-of itself, a “disability” under the ADA;B) The city’s public sidewalk program does not “provide services” to

the City’s homeless population; and, C) The City’s sidewalk program does not discriminate against the homeless receiving services based upon any alleged “disability.”

2nd Stakeholders’ Meeting

• City staff directs all Stakeholders to explore the concept of benches.• House the Homeless responds with list of potential location

of benches and bench design.• House the Homeless purchases bench for Homeless

Memorial from City of Austin Parks Department.

Response

• Unilateral rejection of all exemptions and benches.– No explanation for rejection of exemptions– Benches decried as source of drug sales and

criminal sleeping.

Texas Rio Grande Legal AidMemorandum of Law

To: Richard Troxell, Director, Legal Aid for the HomelessFrom: Michael E. Urena, Team Manager, Disability Rights PracticeDate: August, 2010RE: Response to Austin Assistant City Attorney’s Memo dated 8/9/2010• My memo does not address any constitutional issues, rather it concerns

the ADA and Austin’s “Quality of Life” ordinance prohibiting sitting or lying on public sidewalks in the downtown area of Austin.

• The Childs’ memo misconstrues my memo suggesting that it establishes homelessness as a “disability” under the ADA.

• The memo and City practices show an unfortunate disregard for the rights of disabled persons experiencing homelessness, even though a recent HTH survey revealed that 48% of the homeless individuals surveyed were disabled individuals.

NegotiationsWith all cards on the table, Richard Troxell of HTH and Randi Shade, head of the Health and Human Services Committee, COA, continue in a protracted back and forth conversation over proposed changes to the ordinance.

City of Austin Code of Ordinance (Revised)

9-4-14 Sitting or lying down on public sidewalks or sleeping outdoors in the downtown Austin Community Court area prohibited.

New ordinance encompasses the following changes: Definition of Physical and Mental impairments as defined by

the ADA Exempts anyone who: is waiting in a line for goods or

services… It is an affirmative defense to prosecution if a person sits or

lies down as the result of physical manifestation of a disability not limited to visual observation.

Police Procedures

Whenever City Council passes an ordinance, the police department receives the ordinance and devises procedures as to how the ordinance will be implemented. Ordinarily, this is a process that is closed to outside influence. In this particular case the COA police department chose to include a major concern of HTH that involves extreme weather conditions.

Police Procedures

30 Minute Respite • When a police officer comes across a sitting individual, he will

inquire if the individual needs immediate medical attention, if so, the officer will call an ambulance.

• If the individual claims a disability and just asks for “a moment” for the pain to pass or to catch his breath, etc. the police officer will offer a 30 minute respite.

• Upon returning, the police officer will again ask if the individual needs an ambulance, if so, an accommodation will be made; otherwise, the individual will be asked to move on or be ticketed.

Outreach/ Community Awareness

• House the Homeless has produced 5,000 laminated, informational guides outlining the new parameters of the No Sit/No Lie Ordinance in both English and Spanish.

• Austin is now the first city in the US to bring its No Sit/No Lie Ordinance in compliance (seemingly) with the ADA.

HTH continues to promote benches for a World Class City