Homeless Persons Legal Assistance Project Files Suit Challenging "Stay Away" Ordinance spleich [at] gmail.com)

Friday Jan 23rd, 2015 4:00 PM by Steve Pleich

Complaint Seeks to Enjoin Enforcement

On Thursday afternoon, the Homeless Persons Legal Assistance Project filed and served a lawsuit on the City of Santa Cruz challenging the constitutionality of the recently passed “stay away order” ordinance, Municipal Code Section 13.08.100 (revised). The ordinance had its second and final reading before City Council on January 13 and will go into effect thirty days thereafter by operation of law. The Complaint for Declaratory and Injunctive Relief (Santa Cruz Superior Court Case No. CV180919) was brought to seek a Preliminary Injunction to stay the effective date of the ordinance and enjoin the city from enforcement of the ordinance until the full case is heard by the court. The case has been assigned to Judge Rebecca Connolly in Department 4.



HPLAP is bringing this suit on behalf of the homeless community for whom City of Santa Cruz parks and beach areas are traditionally places for rest, relaxation and communal association. The Complaint alleges in part that “the activities (use of parks and open spaces for free assembly) … are protected by the First Amendment to the Constitution of the United States and by the California Constitution and Defendants’ restrictions as to place, time and manner embodied in Section 13.08.100 are not reasonable under the circumstances” It further alleges that “the ordinance as applied to Plaintiff’s activities … are based upon violations of other municipal ordinances which are so vague that they violate the due process standards as set forth in the Fourteenth Amendment to the Constitution of the United States in that a person of ordinary intelligence cannot reasonably know what he or she is legally permitted to do under the statutes as applied”. Eight Amendment issues related to cruel and unusual punishment are also raised by the Complaint.



The HPLAP Legal Team lead by Attorney Judith Barry of Aptos will be bringing the case to court next week to calendar a hearing on Plaintiff’s Ex Parte Application for Preliminary Injunction. HPLAP is confident that the hearing will be held in advance of the effective date of the ordinance and is hoping for strong community support at this hearing and the court appearances that will follow as the case makes its way through the judicial process.









Superior Court of the State of California

County of Santa Cruz





I.



JURISDICTION



1. This court has jurisdiction to grant Plaintiff declaratory relief pursuant to Code of Civil Procedure Section 1060.



2. This court has jurisdiction to grant Plaintiff injunctive relief pursuant to Code Civil Procedure Sections 525 and 526



3. Plaintiff is informed and believes and thereon alleges that this court has jurisdiction over this matter in that the issues and actions which are the subject of the case and all relevant events mentioned herein took place in the County of Santa Cruz.



II.



Parties



4. At all times relevant to this action, Plaintiff Homeless Persons Legal Assistance Project was, and is, an unincorporated association which provides pro bono legal services to people experiencing homelessness in the City of Santa Cruz and under relevant California law and procedure has standing to bring this action on their behalf.



5. Plaintiff is informed and believes and thereon alleges that Defendant City of Santa Cruz (hereinafter “Defendant”) is a Municipal Corporation conducting the business of civic governance by and through its agents, employees and assigns.



6. At all times mentioned herein, Defendant was a public governmental entity authorized to consider and pass into law public ordinances and was, at all times relevant to this action, responsible for the actions of its employees, agents and assigns, including but not limited to its duly elected City Council.



7. Plaintiff does not know the true names, capacities, basis for liability, or interests Defendants sued in this action as Does 1 through 25, inclusive, and will amend this Complaint when that information is discovered. At all relevant times, each defendant, including any defendant fictitiously named, was acting as the agent, servant, employee or assigned of each other defendant in doing the things alleged and is responsible in some manner for the damages and disputes alleged in this complaint.



III.



FACTUAL ALLEGATIONS



8. Plaintiff realleges each and every preceding allegation of this Complaint and incorporates each by this reference.



9.On December 9, 2014, Defendant, by and through its City Council, passed into law Municipal Ordinance 13.08.100 (revised) which states:

“Section 13.08.100 of the Santa Cruz Municipal Code is hereby amended to read as follows:

“Section 13.08.100 Order to Vacate Any Property Maintained by the Parks and Recreation Department.

(a)Any person who receives a citation or is arrested on city park or beach property or any property maintained by the parks and recreation department for a violation of the Santa Cruz Municipal Code or state law may be ordered by the citing/arresting city officer at the time of the citation/arrest to vacate that park or beach property and not to reenter said property again for the period of time specified below. Any such order shall apply to both the park or beach property at which the citation/arrest occurs and to any other park or beach property at which such an order was issued within the previous year. Any person who violates such an order from a city officer shall be guilty of a misdemeanor.

(1)First offense: Twenty-four hours from the time of the citing/arresting officer’s order.



(2)Second offense within one week of the first offense: One week from the date of the citing/arresting officer’s order in response to the second offense.



(3)Third offense within thirty days of the second offense: Thirty days from the date of the citing/arresting officer’s order in response to the third offense.



(4)Fourth offense within six months of the third offense: Six months from the date of the citing/arresting officer’s order in response to the fourth offense.



(5)Fifth offense within one year of the fourth offense: One year from the date of the citing/arresting officer’s order in response to the fifth offense.



(b)Any person who receives an order to vacate pursuant to this section and who desires to appeal that order shall, within ten days of the order, file a written notice of appeal with the city manager. The city manager or the city manager’s designee shall hear the appeal within two business days from the date the written appeal is received by the city manager’s office. The appeal shall list the appellant’s contact information including a phone number, if any.



The appellant shall be notified of the date, time and location of the appeal hearing and may personally appear, may be represented by counsel, may call witnesses and may hear and examine the city officer who issued the order.



Alternatively the appellant may set forth the basis for the appeal and the arguments in support of the appeal in the written appeal notice and waive the appeal hearing. The appeal hearing shall not be governed by the rules of evidence. If the city manager or city manager’s designee determines by a preponderance of the evidence that the appellant did not engage in the conduct for which the order to vacate was issued, the order to vacate shall be immediately withdrawn and of no further force or effect. The city manager or city manager’s designee shall issue a decision on the appeal no later than twenty-four hours after the appeal hearing has been completed or the appeal notice waiving the hearing has been submitted. The decision of the city manager or city manager’s designee shall be final.”



10. On January 13, 2015, the ordinance was approved by the City Council on second reading and will become effective by operation of law thirty (30) days from that date.



11. Plaintiff is informed and believes and thereon alleges that the right to peacefully assemble is recognized as an inalienable right and further alleges that freedom of speech and freedom of assembly are rights guaranteed by the Constitution of the United States and by the California Constitution in equal measure.



12. For many people experiencing homelessness in the City of Santa Cruz, the parks and beach areas are traditionally places or rest, relaxation and communal association.



13. Plaintiff is informed and believes and thereon alleges that the activities as above described are protected by the First Amendment to the Constitution of the United States and by the California Constitution and Defendants’ restrictions as to place, time and manner embodied in Section 13.08.100 are not reasonable under the circumstances.



14. The ordinance as applied to Plaintiff’s activities as aforesaid are based upon violations of other municipal ordinances which are so vague that they violate the due process standards as set forth in the Fourteenth Amendment to the Constitution of the United States in that a person of ordinary intelligence cannot reasonably know what he or she is legally permitted to do under the statutes as applied herein.



15. Plaintiffs are further informed and believe and thereon allege and will show that the ordinance as approved selectively targets people experiencing homelessness in violation of the right to equal protection under the law guaranteed to every person under both the federal and state constitutions.



16. Plaintiff is informed and believes and thereon alleges that Defendants’ actions also violate the spirit of the Eight Amendment to the Constitution of the United States in that such actions are cruel and unusual as applied.



17. Plaintiff is informed and believes and thereon alleges that such harm that it may suffer is entitled to protection through the court’s injunction authority.



18. Plaintiff is further informed and believes and thereon alleges that it has no other plain, speedy or adequate relief with respect to the violation of its constitutional right to free speech and freedom of assembly and that injunctive relief is appropriate pending adjudication of its fairly raised constitutional claims.



19. Plaintiff is further informed and believes and thereon alleges that it will suffer irreparable harm if Defendant is not restrained from the above-described conduct and that the risk of harm to Defendants is not significant under the facts and circumstances of this case.



20. Plaintiff has suffered and will continue to suffer irreparable injury unless and until this court enjoins Defendant from continuing this conduct and pattern of behavior.



21. A judicial declaration is necessary so that the parties may ascertain Plaintiff’s rights in this controversy.



IV.



PRAYER FOR RELIEF:



Wherefore, Plaintiff asks this court to grant the following relief:

(a) Adjudge and declare Defendant’s acts, omissions, policies and procedures as aforesaid are discriminatory, have grave potential for abuse and selective enforcement and abridge fundamental constitutional rights as applied to Plaintiff;

(b) Preliminarily and Permanently enjoin Defendant from continuing the acts, omissions, policies and procedures as aforesaid;

(c) Retain jurisdiction of this case until Defendant has fully complied with the order(s) of this court and there is reasonable assurance that Defendant will continue to comply in the future absent continuing jurisdiction;

(d) Award Plaintiff costs of suit;

(e) Award such other and further relief as the court deems just and proper.



DATED: January 22, 2015



_____________________



Judith Barry



Attorney for Plaintiff



Homeless Persons Legal



Assistance Project







