12 Jul 2011
- Written by Paul Dumont
Similarly, Tommy Olmstead, Georgia State Commissioner of Human Resources, thought people with mental illness did not belong in community based settings. Olmstead ignored mental health professional’s opinion that 2 women were ready to transition from a psychiatric hospital into mainstream society.
In 1999 the Supreme Court ruled they had the right to receive care in the most appropriate integrated setting, and that government has an affirmative duty to plan for integration under the Americans with Disabilities Act. This obligation became known as the “integration mandate”.
In June, 2011 the States Department of Justice, Fair Housing Enforcement Section issued a statement that declares the goal of the integration mandate “has yet to be fully realized. Some state and local governments have begun providing more integrated community alternatives to individuals in or at risk of segregation in institutions or other segregated settings. Yet, many people who could and want to live, work, and receive services in integrated settings are still waiting for the promise of Olmstead to be fulfilled.” Enforcing Olmstead is a top DOJ priority.
The Fair Housing Act provides separate and distinct protections for disabled people. The Joint Statement of the Department of Justice and the Department of Housing and Urban Development explains the “Fair Housing Act makes it unlawful to utilize land use policies or actions that treat groups of persons with disabilities less favorably than groups of non-disabled persons.”
Reasonable accommodations must be considered for disabled people seeking exceptions to land use and zoning laws that hinder their ability to live in single family areas.
The City of Los Angeles seeks an end run around this federal law by regulating all shared living arrangements in single family zones. The question of legality would then turn to enforcement. Under the Fair Housing Act a prima facie showing of discriminatory effect may also be established by evidence that a facially neutral housing practice perpetuates segregated housing patterns. Los Angeles will be in violation of the Fair Housing Act if code enforcement efforts center on intended targets: sober living homes housing a protected class of disabled people.
The proposed Community Care Facilities ordinance runs afoul of both the Americans with Disabilities Act as made specific in the Olmstead decision, and the Fair Housing Act. Pushing perceived problems into other areas is not a solution and it creates a lot of new challenges.
Englander claims “If a group home is licensed and meets [certain] requirements then they can continue to provide their services without a problem”. This idea was addressed by DOJ/HUD in their statement which cautions municipalities “Regulation and licensing requirements for group homes are themselves subject to scrutiny under the Fair Housing Act.
Such requirements based on health and safety concerns can be discriminatory themselves or may be cited sometimes to disguise discriminatory motives behind attempts to exclude group homes from a community.” If the purportedly legitimate reasons advanced to support regulating group homes are not objectively valid, the courts are likely to treat them as pretextual, and to find that there has been discrimination.
Los Angeles has no objective data to support the notion single family homes with multiple leases are any more of a problem than those with only one agreement.
In 2008 Smith distributed an email containing a Daily News article “underscoring the need to regulate unlicensed group homes in residential neighborhoods.” That article complained “Many of these owners and operators are also convicted felons, as are the inhabitants of such homes - addicts, alcoholics, parolees and probationers, convicted sex offenders and paranoid schizophrenics.”
The evidence does show Smith was responding to the wishes of his constituents, but the constituents were motivated in substantial part by discriminatory concerns - and that in and of itself proves a Fair Housing Act violation. Paranoid schizophrenics and recovering alcoholics and addicts are not necessarily criminals. Most are not.
We are not without options for controlling placement of group homes. Orange County defined offers certification for providers who seek government referrals. The great majority of group homes for persons with disabilities are subject to state regulations intended to protect the health and safety of their residents.
The Department of Justice and HUD believe, as do responsible group home operators, that such licensing schemes are necessary and legitimate. Neighbors who have concerns that a particular group home is being operated inappropriately should be able to bring their concerns to the attention of the responsible licensing agency.
The original motion sought to regulate sober living homes that are not presently eligible for any license (hence the characterization of “unlicensed group homes” implying they are illegal).
Council could offer providers incentives to locate future homes in other areas. Simply outlawing sober living homes along with all multiple lease arrangements in low density zones has been met with fierce opposition by a host of housing, civil and disability rights lawyers and is being monitored by the Justice Department. Government will be fighting government.
In a 2011 campaign interview, Englander railed against sober living homes stating “community care facilities are not part of the community and they don’t care. They do not belong in your single family neighborhoods.”
In the same interview, he bragged about spending our tax dollars hiring outside lawyers to fight a developer because he does not trust our City Attorney. In the current fiscal climate, and in the face of certain litigation, this proposal is nonsensical.
Los Angeles deserves a more responsive and practical approach to controlling problem homes.
(Paul Dumont is a sober living home owner and a sober housing advocate.) -cw
Vol 9 Issue 55
Pub: July 13, 2011