When a discussion of the homeless situation comes up among Lagunans, the sense of frustration on all sides is immediately apparent. On the one side, there is the belief that Laguna Beach goes above and beyond what any other municipality in Orange County does to provide year-round facilities for homeless individuals; and as the City is continually being sued into doing more, we become a magnet for ever greater numbers of homeless to descend on us from near and far. On the other side is the sense that Laguna could and should be doing more; that our support for the Alternate Sleeping Location (ASL) is insufficient and that the monies that we spend on police and emergency services directed at the homeless could be better allocated toward providing permanent supportive housing.

LagunaBeachCHAT wanted to look into the issue from the perspective of the current lawsuit that was filed in August 2015 against the City and its police department, by the ACLU of Southern California (et. al.) on behalf of several chronically homeless who are also disabled. This lawsuit is known as Glover v. Laguna Beach and it asserts that the City and Police are violating the following with respect to the Plaintiffs:

• Title II of the Americans with Disabilities Act, 42 U.S.C. § 12132 (the “ADA”); 

• Section 504 of the Rehabilitation Act of 1973 (the “Rehabilitation Act”)

• the 8th (cruel and unusual punishment) and 14th (equal protection) Amendments to the United States Constitution

• Article I, sections 7 (A person may not be deprived of life, liberty, or property without due process of law or denied equal protection of the laws) and 17 (Cruel or unusual punishment may not be inflicted or excessive fines imposed) of the California Constitution.

In a nutshell, it asserts that the Defendants are violating the rights of the DISABLED homeless because the ASL cannot accommodate them, and because of the City’s approach of giving priority to those it deems as “Laguna Beach homeless” over others is inherently unfair and discriminatory. Furthermore, the LBPD’s criminalization of their activities once they’ve been denied space at the ASL puts them in a no-win situation. (Our City Manager wrote an OpEd in February 2017 about the ACLU lawsuit for the Indy that you can read here. The piece asserts that the lawsuit is frivolous and that Laguna Beach can stand proudly behind its ongoing efforts to accommodate its homeless population).

Thus far, the City has spent $1,071,086.44 (end of March 2017) in defending this latest class action lawsuit in the courts, and it is my guess (as a non-attorney) that the City will ultimately lose if it does not agree to yet more concessions. If we assume this to be the case, perhaps the more enlightened approach would be to work with other local, state and Federal governments, non-profits, churches and other organizations to establish Permanent Supportive Housing (PSH) around the region. PSH is defined as housing that provides supportive services such as mental health treatment and case management. Several studies conclude that PSH is the only solution to address the issues inherent with disabled homeless persons. Those same studies claim that it ultimately saves taxpayers money in terms of dollars not spent on police, hospital emergency rooms and the courts. It is important that we work with a coalition of partners to ensure such PSH be reasonably available throughout the Orange County and surrounding areas so that Laguna Beach does not become the sole source and thus a magnet for ever more disabled homeless.

Some Background

In December 2008, the ACLU of Southern California and co-counsel filed suit on behalf of several disabled, homeless individuals challenging the City’s policy and practice of enforcing Laguna Beach Municipal Code (“L.B.M.C.”) section 18.04.0201 against disabled, homeless persons in a manner that criminalized sleeping in all public places at night and conducting “sweeps” of beaches, parks, and other public places at night and in the early morning to wake and harass sleeping homeless persons, as well as other enforcement tactics that targeted disabled, homeless individuals. The City settled the case quickly and as a result, repealed the offending statutes and ultimately established the Alternate Sleeping Location (ASL) run by Friendship shelter. The City contends that the creation of the ASL allows it to legally enforce laws prohibiting sleeping, camping, or lodging in public – despite its small size and limited accessibility, especially for those with disabilities. Funding the ASL are city tax dollars (which amounted to $242,000 most recently) and federal grants, for a total annual spend of approximately $360,000.

Some Numbers

The ACLU’s 2015 Glover v LB claims that the ASL is too small and inappropriate for mentally disabled (too loud, no privacy, etc) and as a result the rights of disabled homeless (as enumerated at the start) are still being violated. The suit claims that there are between 40 and 100 disabled homeless in Laguna who fall into the class. Providing PSH for this number of disabled individuals will no doubt be a very expensive undertaking, one which it is unreasonable and unfeasible for a city the size of Laguna Beach to finance. If we assume PSH with bare essentials to cost $3,000 per person, per month, even the smallest count of 40 persons would cost $1,440,000 annually. If we assume the same ratio of grants-to-city-funds as currently exist for the ASL, that $1.4million would cost Laguna Beach taxpayers $967,000 per year beyond the costs of the ASL.

Residency Test

At the City’s behest, the ASL gives priority to those who can demonstrate that they are “local Laguna Beach residents.” This residency requirement for homeless individuals has an extremely high bar – individuals must demonstrate that an immediate family member currently lives in Laguna Beach, that they attended K-12 school in Laguna Beach, that they leased or paid utilities for residential property in Laguna Beach, or that the LBPD knows them to have been members of the Laguna Beach homeless community for at least 18 months.

An individual who does not meet this City residency requirement can only receive shelter by appearing there in person each night and adding his or her name to a waitlist. ASL staff members draw names from the waitlist to determine who can stay at the shelter on that night. Individuals whose names are not selected in this lottery cannot stay at the shelter, and there is no other legal place for them to sleep within the City. (per Glover v. LB).

It seems that the City is being entirely reasonable in applying a ‘residency test’ for priority placement at the ASL. If not for this test, then the floodgates would open and many additional homeless would make their way to Laguna Beach, claim residence and demand full privileges for services. There are 2 problems with this line of thinking:

1. The ASL may indeed not be appropriate for disabled homeless, even the subset that we consider our local homeless. The City would still be in violation of the ADA, the Rehabilitation Act, the 14^th amendment among others, if it failed to accommodate disabled homeless individuals.
   
2. Residency Tests – This is fraught legally. When localities have attempted to limit eligibility of benefits by applying residency tests, the Supreme Court has found such residency tests illegitimate. The U.S. Supreme Court has made clear that a state/locality can impose residency requirements as a condition of eligibility for fundamental rights only under certain circumstances. A fundamental right is any right that is guaranteed by the U.S. Constitution. A state must have a compelling State Interest to justify the restriction of basic rights by the imposition of residency requirements. The courts ultimately determine whether the state has a significant interest by examining and Balancing the interests of the state against the rights of the person. Where a residency requirement does not serve compelling state interests, it will be held unconstitutional as a denial of equal protection of the laws guaranteed by the Constitution. The courts have addressed residency requirements involving Welfare and public housing benefits, basic medical care, and voting that are based on fundamental rights. Certainly the benefit of a roof is one that the courts would consider as fundamental, and therefore not subject to the imposition of a ‘test’. (Bear in mind too, that the Supreme court has concluded that the constitutional guarantee of personal liberty gives each citizen the right to travel throughout the United States without unreasonable restrictions).

Where To Go From Here

If the City cannot deny services to homeless who consider themselves Lagunans (a phrase one sees frequently in the ACLU’s lawsuit), and if the level of services currently provided by the ASL are not adequate for disabled homeless and in short supply overall it seems that we have few options available:

• The City could continue to fight in the courts (est cost $500,000 per year)
  
• The City could expand its existing homeless services and agree to provide PSH to at least 40 persons at a great additional cost to the taxpayers (est cost of an additional $967,000 per year)
• The City could look to work together with Federal, State, local governments, non-profits, churches to establish and help support PSH regionally

There are no simple answers to this very complex issue. One could argue that the City made a misstep in 2009 when it settled the original ACLU lawsuit by unilaterally setting up the ASL for “local homeless”. Its legal representation must have known that establishing a residency test to limit those eligible to use the ASL was folly, and that ultimately the ASL’s creation would become a magnet (beyond the natural magnet of good weather and beautiful surroundings).  Instead, it seems that the City Council of the day wanted to make the ACLU lawsuit ‘go away’ via the most expeditious and cost-effective approach then presented to them. This author believes that at the first hint of the earlier lawsuit, the City would have been well advised to start working collaboratively with others to ensure that homeless services would be distributed across the region; services appropriate for homeless with or without disabilities.

As a local taxpayer it is frustrating that the efforts and treasure that our City has directed towards helping the homeless are now being met with demands for ever more. I’m frustrated too, that these efforts and treasure have had no measurable effect on staying ahead of the problem. If we are correct that the City will have to make significant concessions as a result of the Glover v. LB lawsuit, LagunaBeachCHAT strongly advises the City to seek a regional solution of which it will be a part, but by no means go it alone, and one that includes PSH.  Bear in-mind though, that the City Council at the time of the 2008/2009 ACLU lawsuit included current City Mayor Toni Iseman and Mayor Pro Tem Kelly Boyd; so perhaps the momentum towards trying a new approach isn’t there and we will instead see the: go-it-alone/make-it-go-away approach of the past.

You can read the entire Glover v. Laguna Beach lawsuit here.