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Letter of Opposition re Item HA
<br />October 15, 2019
<br />p. 3
<br />purposes while parked on the street."' None of the terns used —"camping", "lodging", or
<br />"accommodation purposes", are defined anywhere in the Ordinance. The Ordinance fails to
<br />provide adequate notice and sufficient guidance, which would allow an individual to ascertain
<br />beyond mere speculation as to how one uses a parked or standing vehicle as a camper, lodging,
<br />or as an accommodation. The Ordinance therefore fails to "draw a clear line between innocent
<br />and criminal conduct,"s and it invites selective enforcement against people who are homeless,
<br />many of whom are persons with disabilities. The Ordinance, as drafted is therefore,
<br />unconstitutionally vague on its face and as applied in violation of substantive due process
<br />protections under the Fourteenth Amendment to the United States Constitution.' Moreover, if
<br />the City passes and enforces the Ordinance, it would constitute impermissible discrimination
<br />against vehicle owners based on disability in violation of the antidiscrimination protections of
<br />Title 11 of the Americans with Disabilities Act10 and Section 504 of the Rehabilitation Act. It
<br />impermissibly denies meaningful access of people with disabilities to the City's parking permit
<br />system and amenities the City offers to its residents without disabilities."
<br />Even after advocates alerted the City to the violations of law presented by the Ordinance at the
<br />initial public hearing on October 1, the City still refuses to modify its proposal to allow homeless
<br />individuals to park their vehicles on City streets or other public property, at least until affordable,
<br />accessible, and medically appropriate housing is made available to them. The Ordinance also
<br />fails to provide any accommodation for homeless individuals, including those with disabilities,
<br />yet the City has created an exemption to the Ordinance, via a permit system, for only those who
<br />can provide proof of residency, and afford to pay for the cost of a permit12,1s The City not only
<br />allows those who are not homeless to park their RVs overnight, it imposes stiff and significant
<br />penalties against those who are homeless, and in particular, disabled for the same behavior, while
<br />unlawfully denying meaningful access to the City's proposed permit program and the amenities
<br />that the City proposes to offer to those who are not disabled.14
<br />Ord. NS-2976 at §36-153, subd. (h).
<br />$ Desertrain v. City ofLos Angeles (9th Cir. 2014) 754 F.3d 1147, 1149, 1156 ("Deserttrain").
<br />Deserttrain, supra, 754 F.3d at p. 1149.
<br />10 42 U.S.C. § 12132 ("[Me qualified individual with a disability shall, by reason of such disability, be excluded
<br />from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be
<br />subjected to discrimination by any such entity."); see also Yeskey v. Pennsylvania Dep't. of Corr. (3d Cir. 1997) 118
<br />F.3d 168, affd. (1998) 524 U.S. 206 (under the ADA's broad language, a "program, service, or activity" includes
<br />within its scope "anything a public entity does.") (Quoting 28 C.F.R. Pt. 35, App. A, preamble to ADA regulations);
<br />28 C.F.R. §35.130, subd. (b)(7); Crowder v. Kitagaw (9th Cir. 1996) 81 F.3d 1480 (requiring that public entities
<br />provide reasonable modifications to avoid discrimination brought upon by facially neutral policies as applied to
<br />individuals with disabilities unless the public entity can demonstrate that such modifications would result in a
<br />fundamental alteration of the program); Giebeler v. M& B Associates (91h Cir. 2003) 343 F.3d 1143 (providing that
<br />reasonable modifications can adjust for the financial limitations that arise from a disability, not just the immediate
<br />manifestations of the impairment giving rise to the disability.) See also 29 C.F.R. §35.130, subd. (b)(3) (prohibits a
<br />public entity from using criteria or methods of administration that have the effect of subjecting qualified individuals
<br />with disabilities to discrimination based on disability); 28 C.F.R. §35.130, subd. (b)(8) (Prohibits a public entity
<br />from imposing eligibility criteria that screen out or tend to screen out individuals from fully and equally enjoying
<br />any service, program, or activity.)
<br />u 29 U.S.C. §749; 25 C.F.R. §§ 8.3, 8.4; Alexander v. Choate (1985) 469 U.S. 287, 301.
<br />12 See Ord. NS-2976, at §36-153, subd. (a)(1)-(2), (b), (f), and (g).
<br />13 See Fns. 10, 11.
<br />"See Fax. 10, 11.
<br />601 Civic Center Drive West • Santa Ana, CA 92701-4002 • (714) 541-1010 • Fax (714) 541-5157
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