HomeMy WebLinkAbout17-06 Amend Title 9ORDINANCE NO. 17-06
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF COSTA MESA
AMENDING SECTION 9-374 OF ARTICLE 23 (GROUP HOMES) OF CHAPTER II
(REGULATION OF CERTAIN BUSINESSES) OF TITLE 9 (LICENSES AND BUSINESS
REGULATIONS) OF THE COSTA MESA MUNICIPAL CODE
THE CITY COUNCIL OF THE CITY OF COSTA MESA MAKES THE
FOLLOWING FINDINGS WITH RESPECT TO THE ADOPTION OF THIS ORDINANCE:
WHEREAS, under the California Constitution, Article XI, Section 7, the City has
been granted broad police powers to preserve the residential characteristics of its R21VID,
R2HD, and R3 zones; and planned development residential zones, which powers have
been recognized by both the California Supreme Court and United States Supreme Court,
the latter of which has stated that, "It is within the power of the legislature to determine
that the community should be beautiful as well as healthy, spacious as well as clean, well-
balanced as well as carefully patrolled'; and
WHEREAS, the Federal Fair Housing Act Amendments ("FHAA") and the
California Fair Employment Housing Act ("FEHA') prohibit enforcement of zoning
ordinances which would on their face or have the effect of discriminating against equal
housing opportunities for the handicapped; and
WHEREAS, a core purpose of the FHAA, FEHA and California's Lanterman Act is
to provide a broader range of housing opportunities to the handicapped; to free the
handicapped, to the extent possible, from institutional style living; and to ensure that
handicapped persons have the opportunity to live in normal residential surroundings and
use and enjoy a dwelling in a manner similar to the way a dwelling is enjoyed by the non -
handicapped; and
WHEREAS, to fulfill this purpose the FHAA and FEHA also require that the City
provide reasonable accommodations to its zoning ordinances if such accommodation is
necessary to afford a handicapped person an equal opportunity to use and enjoy a
dwelling; and
WHEREAS, the Lanterman Act fulfills this purpose in part by requiring cities to treat
state licensed residential care facilities serving six or fewer as a residential use; and
WHEREAS, in enacting this Ordinance the City Council of the City of Costa Mesa
is attempting to strike a balance between the City's and residents' interests of preserving
the characteristics of residential neighborhoods and to provide opportunities for the
handicapped to reside in such neighborhoods that are enjoyed by the non -handicapped;
' and
Ordinance No. 17-06 Page 1 of 9
' WHEREAS, over the past several years the City, County and State have seen a
significant increase in the number of single- and multi -family homes being utilized as
alcohol and drug recovery facilities for large numbers of individuals (hereafter, "sober
living homes"); and
WHEREAS, the increase appears to be driven in part by the Substance Abuse and
Crime Prevention Act of 2000 (hereafter, "the Act") adopted by California voters which
provides that specified first-time drug and alcohol offenders are to be afforded the
opportunity to receive substance abuse treatment rather than incarceration; and
WHEREAS, the Affordable Care Act has significantly expanded the availability of
health care coverage for substance abuse treatment; and
WHEREAS, the City of Costa Mesa has seen a sharp increase in the number of
sober living homes, which has generated secondary impacts including, but not limited to
neighborhood parking shortfalls, overcrowding, inordinate amounts of second-hand
smoke, and noise; and the clustering of sober living facilities in close proximity to each
other creating near neighborhoods of sober living homes; and
WHEREAS, over the past 38 months, from January 2014 to March 2017, the City
experienced an increase of 84% in the number of sober living facilities and residential
care facilities in the multiple -family residential zones. Those new facilities resulted in an
' increase of 715 beds, which is a 113% increase in beds since January of 2014. As of
March 1, 2017 the City had a total of 115 residential care facilities in the multi -family
residential zones, with an estimated 1347 beds to treat drug and alcohol addiction; and
WHEREAS, currently, in all zones, it is estimated that the City of Costa Mesa is
home to 1,748 alcohol and drug recovery beds, divided as follows: 63 state licensed
residential facilities/certified alcohol and drug programs in residential zones with six or
fewer occupants, providing 352 beds; 19 state licensed facilities with seven or more
occupants providing 269 beds; 97 unlicensed sober living homes in all residential zones,
providing 1,127 beds; included in those 97 homes are 10 homes that have been issued
Special Use Permits per the R1 Ordinance, providing 60 beds; and 1 approved CUP
application per the MFR Ordinance, providing 11 beds;
WHEREAS, the City of Costa Mesa is currently home to almost 29% of the state
licensed residential drug and alcohol treatment facilities in Orange County, while the City
holds 3.6% of the County's population; thus, it is reasonable to infer that unlicensed sober
living homes are locating in the City at a higher concentration than in nearby communities;
and
WHEREAS, over the last decade the number of sober living homes in the City of
Costa Mesa is rapidly increasing, leading to an overconcentration of sober living homes
in certain of the City's residential neighborhoods, which is both deleterious to the
residential character of these neighborhoods and may also lead to the institutionalization
of such neighborhoods; and
Ordinance No. 17-06 Page 2 of 9
' WHEREAS, the purpose of sober living homes is to provide a comfortable living
environment for persons with drug or alcohol addictions in which they remain clean and
sober and can participate in a recovery program in a residential, community environment,
and so that they have the opportunity to reside in the residential neighborhood of their
choice; and
WHEREAS, recovering alcoholics and drug addicts, who are not currently using
alcohol or drugs, are considered handicapped under both the FHAA and FEHA; and
WHEREAS, in 2008, the U.S. Department of Health and Human Services
projected spending on substance abuse recovery to be $35 billion annually by 2014
(source: Projections of National Expenditures for Mental Health Services and Substance
Abuse Treatment 2004-2014, U.S. Dept. of Health and Human Services, Substance
Abuse and Mental Health Services Administration, Katharine R. Levit et al., 2008); and
WHEREAS, because of their extremely transient populations, above -normal
numbers of individuals/adults residing in a single dwelling and the lack of regulations,
sober living facilities present problems not typically associated with mon: traditional
residential uses, including but not limited to: the housing of large numbers of unrelated
adult who may or may not be supervised; disproportionate numbers of cars associated
with a single housing unit, which causes disproportionate traffic and utilization of on -street
' parking; excessive noise and outdoor smoking, which interferes with the use and
enjoyment of neighbors' use of their property; neighbors who have little to no idea who
does and does not reside in the home; little to no participation in community activities that
form and strengthen neighborhood cohesion; a history of opening facilities in complete
disregard of the Costa Mesa Municipal Code and with little regard for impacts to the
neighborhood; disproportional impacts from the average dwelling unit to nearly all public
services including sewer, water, parks, libraries, transportation infrastructure, fire and
police; a history of congregating in the same general area; and the potential influx of
individuals with a criminal record; and
WHEREAS, housing inordinately large numbers of unrelated adults in a single
dwelling or congregating sober living homes in close proximity to each other does not
provide the handicapped with an opportunity to "live in normal residential surroundings,'
but rather places them into living environments bearing more in common with the types
of institutional/campus/dormitory living that the FEHA and FHAA were designed to
provide relief from for the handicapped, and which no reasonable person could contend
provides a life in a normal residential surrounding; and
WHEREAS, notwithstanding the above, the City Council recognizes that while not
in character with residential neighborhoods, that when operated responsibly, group
homes, including sober living homes, provide a societal benefit by providing the
handicapped the opportunity to live in residential neighborhoods, as well as providing
recovery programs for individuals attempting to overcome their drug and alcohol
addictions, and that therefore providing greater access to residential zones to group
Ordinance No. 17-06 Page 3 of 9
' homes, including sober living homes, than to boardinghouses or any other type of group
living provides a benefit to the City and its residents; and
WHEREAS, without some regulation there is no way of ensuring that the
individuals entering into a group home are handicapped individuals and entitled to
reasonable accommodation under local and state law; that a group home is operated
professionally to minimize impacts to the surrounding neighborhood; and that the
secondary impacts from over concentration of both group homes in a neighborhood and
large numbers of unrelated adults residing in a single facility in an individual home are
lessened; and
WHEREAS, based on the City's experience it has become clear that at least some
operators of sober living homes are driven more by a motivation to profit rather than to
provide a comfortable living environment in which recovering addicts have a realistic
potential of recovery, or to provide a living environment which remotely resembles the
manner in which the non -disabled use and enjoy a dwelling; and
WHEREAS, the residents of group and sober living homes come to the City from
all parts of the country and often lack established ties to the community and lack a local
support system independent of the group or sober living home and are especially
vulnerable to becoming homeless upon eviction; and some such evicted resident have in
fact become homeless within the City; and
' WHEREAS, it an intent of this ordinance to require that operators of group and
sober living homes provide the residents information regarding the available local housing
resources prior to eviction from a home; and
WHEREAS, this Ordinance has been reviewed for compliance with the California
Environmental Quality Act (CEQA), the CEQA guidelines, and the City's environmental
procedures, and has been found to be exempt pursuant to Section 15061 (b)(3) (General
Rule) of the CEQA Guidelines, in that the City Council hereby finds that it can be seen
with certainty that there is no possibility that the passage of this Ordinance will have a
significant effect on the environment.
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF COSTA MESA
DOES ORDAIN AS FOLLOWS:
Section 1: Section 9-374 of Article 23 (Group Homes) of Chapter II (Regulation of
Certain Businesses) of Title 9 (Licenses and Business Regulations) is hereby amended
as follows:
Sec. 9-374. - Requirements for issuance of operator's permit.
(a) The owner/operator shall submit an application to the director that provides the
' following information:
(1) The name, address, phone number and driver's license number of the
owner/operator;
Ordinance No. 17-06 Page 4 of 9
' (2) if the applicant and/or operator is a partnership, corporation, firm or association, then
the applicant/operator shall provide the additional names and addresses as follows and
such persons shall also sign the application:
I. every general partner of the partnership;
ii. every owner with a controlling interest in the corporation; and
iii. the person designated by the officers of a corporation as set forth in a resolution
of the corporation that is to be designated as the permit holder.
(3) the license and permit history of the applicant(s), including whether such applicant(s),
in previously operating a similar use in this or another city, county or state under license
and/or permit, has had such license and/or permit revoked or suspended, and the reason
therefore;
(4)The name, address, phone number and driver's license number of the house manager;
(5) A copy of the group home rules and regulations;
(6) Written intake procedures;
(7) The relapse policy;
(8) An affirmation by the owner/operator that only residents (other than the house
manager) who are handicapped as defined by state and federal law shall reside at the
group home;
(9) Blank copies of all forms that all residents and potential residents are required to
complete; and
(10) A fee for the cost of processing of the application as set by resolution of the city
' council.
(b) Requirements for operation of group homes.
(1) The group home has a house manager who resides at the group home or any multiple
of persons acting as a house manager who are present at the group home on a twenty-
four -hour basis and who are responsible for the day-to-day operation of the group home.
(2) All garage and driveway spaces associated with the dwelling unit shall, at all times,
be available for the parking of vehicles. Residents and the house manager may each only
store or park a single vehicle at the dwelling unit or on any street within five hundred (500)
feet of the dwelling unit. The vehicle must be operable and currently used as a primary
form of transportation for a resident of the group home.
(3) Occupants must not require and operators must not provide "care and supervision" as
those terms are defined by Health and Safety Code Section 1503.5 and Section
80001(c)(3) of title 22, California Code of Regulations.
(4) Integral group home facilities are not permitted. Applicants shall declare, under penalty
of perjury, that the group home does not operate as an integral use/facility.
(5) If the group home operator is not the property owner, written approval from the
property owner to operate a group home at the property.
(6) At least 48 hours prior to eviction from or involuntary termination of residency in a
group home, the operator thereof shall:
I. notify the person designated as the occupant's emergency contact or contact of
record that the occupant will no longer be a resident at the home;
ii. contact the Orange County Health Care Agency OC Links Referral Line or other
' entity designated by the City to determine the services available to the occupant,
including but not limited to, alcohol and drug inpatient and outpatient treatment;
Ordinance No. 17-06 Page 5 of 9
' in. notify the city's Network for Homeless Solutions that an occupant is no longer a
resident at the home, determine the services available therefrom; and
iv. provide the information obtained from ii. and iii. and any othertreatment provider
or service to the occupant prior to his or her release on a form provided by the city
and obtain the occupant's signed acknowledgement thereon;
v. provided, however, that if the occupant's behavior results in immediate
termination of residency pursuant to rules approved by the city as part of the
special use permit for that facility, the operator shall comply with I. though iv. as
soon as possible.
(7) Prior to an occupant's eviction from or involuntary termination of residency in a group
home, the operator thereof shall also:
I. make available to the occupant transportation to the address listed on the
occupant's driver license, state issued identification card, or the permanent address
identified in the occupant's application or referral to the group home;
ii. provided, however that should the occupant decline transportation to his or her
permanent address or otherwise has no permanent address, then the operator shall
make available to the occupant transportation to another group home or residential
care facility that has agreed to accept the occupant.
(8) The group home operator shall maintain records for a period of one year following
eviction from or involuntary termination of residency of an occupant that document
compliance with subsections (a)(6) and (a)(7), provided, however, that nothing herein
shall require an operator of a group home to violate any provision of state or federal law
regarding confidentiality of health care information. The group home operator may not
satisfy the obligations set forth in subsection (a)(7) by providing remuneration to the
occupant for the cost of transportation.
(9) All drivers of vehicles picking up or dropping off persons at a group home shall
comply with all applicable provisions of this code and the Vehicle Code, including but
not limited to those provisions regulating licensure and parking, standing and stopping.
(10) The property must be fully in compliance with all building codes, municipal code and
zoning.
(11) In addition to the regulations outlined above, the following shall also apply to sober
living homes:
L All occupants, other than the house manager, must be actively participating in
legitimate recovery programs, including, but not limited to, Alcoholics Anonymous
or Narcotics Anonymous and the sober living home must maintain current records
of meeting attendance. Under the sober living home's rules and regulations,
refusal to actively participate in such a program shall be cause for eviction.
ii. The sober living home's rules and regulations must prohibit the use of any
alcohol or any non-prescription drugs at the sober living home or by any recovering
addict either on or off site. The sober living home must also have a written policy
' regarding the possession, use and storage of prescription medications. The facility
cannot dispense medications but must make them available to the residents. The
possession or use of prescription medications is prohibited except for the person
Ordinance No. 17-06 Page 6 of 9
' to whom they are prescribed, and in the amounts/dosages prescribed. These rules
and regulations shall be posted on site in a common area inside the dwelling unit.
Any violation of this rule must be cause for eviction under the sober living home's
rules for residency and the violator cannot be re -admitted for at least ninety (90)
days. Any second violation of this rule shall result in permanent eviction.
Alternatively, the sober living home must have provisions in place to remove the
violator from contact with the other residents until the violation is resolved.
iii. The number of occupants subject to the sex offender registration requirements
of Penal Code Section 290 does not exceed the limit set forth in Penal Code
Section 3003.5 and does not violate the distance provisions set forth in Penal Code
Section 3003.
iv. The sober living home shall have a written visitation policy that shall preclude
any visitors who are under the influence of any drug or alcohol.
v. The sober living home shall have a good neighbor policy that shall direct
occupants to be considerate of neighbors, including refraining from engaging in
excessively loud, profane or obnoxious behavior that would unduly interfere with a
neighbors use and enjoyment of their dwelling unit. The good neighbor policy shall
establish a written protocol for the house manager/operator to follow when a
neighbor complaint is received.
vi. The sober living home shall not provide any of the following services as they
are defined by Section 10501(a)(6) of Title 9, California Code of Regulations:
detoxification; educational counseling; individual or group counseling sessions;
' and treatment or recovery planning.
(c) An applicant may seek relief from the strict application of this section by submitting an
application to the director setting forth specific reasons as to why accommodation over
and above this section is necessary under state and federal laws, pursuant to Article 15
of Chapter IX of Title 13 of this Code.
(d) The operator's permit shall be issued by the director if the applicant is in compliance,
or, where applicable, has agreed to comply, with the requirements of subsections (a) and
(b) above.
(e) In addition to denying an application for failing to comply, or failing to agree to comply,
with subsections (a) and/or (b), an operator's permit shall also be denied, and if already
issued shall be revoked upon a hearing by the director, under any of the following
circumstances:
(1) Any owner/operator or staff person has provided materially false or misleading
information on the application or omitted any pertinent information.
(2) Any owner/operator or staff person has an employment history in which he or she was
terminated during the past two (2) years because of physical assault, sexual harassment,
embezzlement or theft; falsifying a drug test; and selling or furnishing illegal drugs or
alcohol.
(3) Any owner/operator or staff person has been convicted of or pleaded nolo contendere,
within the last seven (7) to ten (10) years, to any of the following offenses:
i. Any sex offense for which the person is required to register as a sex offender
' under California Penal Code Section 290 (last ten (10) years);
ii. Arson offenses—Violations of Penal Code Sections 451-455 (last seven (7)
years); or
Ordinance No. 17-06 Page 7 of 9
' Hi. Violent felonies, as defined in Penal Code Section 667.5, which involve doing
bodily harm to another person (last ten (10) years).
iv. The unlawful sale or furnishing of any controlled substances (last seven (7)
years).
(4) Any owner/operator or staff person is on parole or formal probation supervision on the
date of the submittal of the application or at any time thereafter.
(5) The owner/operator accepts residents, other than a house manager, who are not
disabled or handicapped as defined by the FHAA and FEHA.
(6) An operator's permit for a sober living home shall also be denied, and if already issued
shall be revoked upon a hearing by the director, under any of the following additional
circumstances:
i. The owner/operator of a sober living home fails to immediately take measures to remove
any resident who uses alcohol or illegally uses prescription or non-prescription drugs, or
who is not actively participating in a legitimate recovery program from contact with all
other sober residents.
ii. For any other significant and/or repeated violations of this section and/or any other
applicable laws and/or regulations.
Section 2: Retroactive effect. To the fullest extent allowed by law, the requirements of
this Ordinance set forth in Section 2 herein, are intended to apply to each and every group
home and/or sober living home located in the City, including those that have applied for
and/or received an operators permit prior to the effective date of this Ordinance.
' Section 3: Inconsistencies. Any provision of the Costa Mesa Municipal Code or
appendices thereto inconsistent with the provisions of this Ordinance, to the extent of
such inconsistencies and no further, is hereby repealed or modified to that extent
necessary to affect the provisions of this Ordinance.
Section 4: Severability. If any chapter, article, section, subsection, subdivision,
sentence, clause, phrase, word, or portion of this Ordinance, or the application thereof to
any person, is for any reason held to be invalid or unconstitutional by the decision of any
court of competent jurisdiction, such decision shall not affect the validity of the remaining
portion of this Ordinance or its application to other persons. The City Council hereby
declares that it would have adopted this Ordinance and each chapter, article, section,
subsection, subdivision, sentence, clause, phrase, word, or portion thereof, irrespective
of the fact that any one or more subsections, subdivisions, sentences, clauses, phrases,
or portions of the application thereof to any person, be declared invalid or unconstitutional.
No portion of this Ordinance shall supersede any local, state, or federal law, regulation,
or codes dealing with life safety factors.
Section 5: This Ordinance shall take effect and be in full force thirty (30) days from and
after the passage thereof, and prior to the expiration of fifteen (15) days from its passage
shall be published once in the ORANGE COAST DAILY PILOT, a newspaper of general
circulation, printed and published in the City of Costa Mesa or, in the alternative, the City
Clerk may cause to be published a summary of this Ordinance and a certified copy of the
text of this Ordinance shall be posted in the office of the City Clerk five (5) days prior to
Ordinance No. 17-06 Page 8 of 9
' the date of adoption of this Ordinance, and within fifteen (15) days after adoption, the City
Clerk shall cause to be published the aforementioned summary and shall post in the office
of the City Clerk a certified copy of this Ordinance together with the names and member
of the City Council voting for and against the same.
PASSED AND ADOPTED this 2nd day of May, 2017.
Kati inaey, Mayor
ATTEST:
.B.YkXt>` YPP DL
Brenda Green, tity Clerk
STATE OF CALIFORNIA )
COUNTY OF ORANGE ) ss
CITY OF COSTA MESA )
APPROVED AS TO FORM:
A nov /r
Thom a e, City Attorney
I, BRENDA GREEN, City Clerk of the City of Costa Mesa, DO HEREBY CERTIFY
that the above and foregoing Ordinance No. 17-06 was duly introduced for first reading
at a regular meeting of the City Council held on the 181^ day of April, 2017, and that
thereafter, said Ordinance was duly passed and adopted at a regular meeting of the City
Council held on the 2nd day of May, 2017, by the following roll call vote, to wit:
AYES: COUNCIL MEMBERS: STEPHENS, GENTS, FOLEY
NOES: COUNCIL MEMBERS: MANSOOR, RIGHEIMER
ABSENT: COUNCIL MEMBERS: NONE
IN WITNESS WHEREOF, I have hereby set my hand and affixed the seal of the
City of Costa Mesa this 3rd day of May, 2017.
§�(OaLC2k&
' BRENDA GREEN, CITY CLERK
Ordinance No. 17-06 Page 9 of 9