HomeMy WebLinkAbout2014-09-17 PacketPage 1 of 3
CITY OF UKIAH
CITY COUNCIL AGENDA
Regular Meeting
CIVIC CENTER COUNCIL CHAMBERS
300 Seminary Avenue
Ukiah, CA 95482
September 17, 2014
6:00 p.m.
1. ROLL CALL
2. PLEDGE OF ALLEGIANCE
3. PROCLAMATIONS/INTRODUCTIONS/PRESENTATIONS
a. Presentation: Recognition of Outstanding Performance for St. Mary’s School and Sierra
Sunset Apartments.
b. Update Regarding Visit Ukiah Activities and Progress.
4. PETITIONS AND COMMUNICATIONS
5. APPROVAL OF MINUTES
a. Minutes of September 3, 2014, a Regular Meeting.
6. RIGHT TO APPEAL DECISION
Persons who are dissatisfied with a decision of the City Council may have the right to a review of that decision by a court.
The City has adopted Section 1094.6 of the California Code of Civil Procedure, which generally limits to ninety days (90)
the time within which the decision of the City Boards and Agencies may be judicially challenged.
7. CONSENT CALENDAR
The following items listed are considered routine and will be enacted by a single motion and roll call vote by the City
Council. Items may be removed from the Consent Calendar upon request of a Councilmember or a citizen in which event
the item will be considered at the completion of all other items on the agenda. The motion by the City Council on the
Consent Calendar will approve and make findings in accordance with Administrative Staff and/or Planning Commission
recommendations.
a. Report of Disbursements for the Month of August, 2014
b. Report Purchase of a Replacement Mower from Belkorp Ag in the Amount of $21,032.04 for
the Parks Department.
c. Adoption of Resolution Setting the Limitation on City Expenditures (Gann Limit) for Fiscal
Year 2014-2015.
d. Award Purchase of 2015 Ford Model F350 Truck 2 W D, Standard Cab with Scelzi Service
Body for the Street Department to Ukiah Ford for the Total Amount of $34,294.30.
Page 2 of 3
e. Award Purchase of 2015 Ford Model F-450 Xl 2 Wheel Drive, Standard Cab Truck with
Scelzi Service Body for The Water/Sewer Department to Ukiah Ford for the Total Amount of
$73,766.67.
f. Award Purchase of 2014 Ford Model F-150 2 Wheel Drive, Super Cab Truck for the
Water/Sewer Operations Division to Ukiah Ford in the Amount of $24,484.09.
g. Award Purchase of 2015 Ford Model F750 Truck, Standard Cab with Scelzi 2,000 Gallon
Water Tank Body for the Public Works and Parks Departments to Mission Valley Ford Truck
Sales in the Amount of $104,719.49.
8. AUDIENCE COMMENTS ON NON-AGENDA ITEMS
The City Council welcomes input from the audience. If there is a matter of business on the agenda that you are interested in, you
may address the Council when this matter is considered. If you wish to speak on a matter that is not on this agenda, you may do
so at this time. In order for everyone to be heard, please limit your comments to three (3) minutes per person and not more than
ten (10) minutes per subject. The Brown Act regulations do not allow action to be taken on audience comments in which the
subject is not listed on the agenda.
9. COUNCIL REPORTS
10. CITY MANAGER/CITY CLERK REPORTS
11. PUBLIC HEARINGS (6:15 PM)
12. UNFINISHED BUSINESS
a. Provide Direction to Staff Regarding Priority Projects for the Ukiah Bicycle and Pedestrian
Master Plan.
13. NEW BUSINESS
a. Discussion and Consideration of Revising the City of Ukiah’s Camping and Panhandling
Ordinance.
b. Adopt Resolution Establishing Prequalification Procedures for Contractors Bidding on
Public Works Projects.
c. Consideration of Non-Financial Partnership Request and Adoption of Resolution Supporting
North Bay Made.
d. Quarterly Review of the Ukiah Valley Fire District and City of Ukiah Contract Report.
14. CLOSED SESSION – Closed Session may be held at any time during the meeting
a. Conference With Legal Counsel – Anticipated Litigation
Significant exposure to litigation pursuant to Gov’t Code 54956.9(d)(1) (1 case)
b. Conference with Legal Counsel – Existing Litigation
(Government Code Section 54956.9(d)(1))
Name of case: Ukiah Valley Sanitation District v. City of Ukiah, Mendocino County Superior
Court Case No. SCUK-CVC-13-63024
Page 3 of 3
c. Conference with Real Property Negotiators (§54956.8)
Property: APN 180-070-19
Negotiator: Jane Chambers, City Manager
Negotiating Parties: City of Ukiah and RCMC, LLC
Under Negotiation: Price & Terms
d. Conference with Real Property Negotiators (§54956.8)
Property: APN 003-572-17-00 and 003-572-18-00 Negotiator: Jane Chambers, City
Manager
Negotiating Parties: City of Ukiah and Cooper, Donna Mae
Under Negotiation: Price & Terms
15. ADJOURNMENT
Please be advised that the City needs to be notified 72 hours in advance of a meeting if any specific
accommodations or interpreter services are needed in order for you to attend. The City complies with
ADA requirements and will attempt to reasonably accommodate individuals with disabilities upon request.
Materials related to an item on this Agenda submitted to the City Council after distribution of the agenda
packet are available for public inspection at the front counter at the Ukiah Civic Center, 300 Seminary
Avenue, Ukiah, CA 95482, during normal business hours, Monday through Friday, 8:00 am to 5:00 pm.
I hereby certify under penalty of perjury under the laws of the State of California that the foregoing agenda
was posted on the bulletin board at the main entrance of the City of Ukiah City Hall, located at 300
Seminary Avenue, Ukiah, California, not less than 72 hours prior to the meeting set forth on this agenda.
Dated this 12th day of September, 2014.
Kristine Lawler, City Clerk
Agenda Item 5a
Page 1 of 4
CITY OF UKIAH
CITY COUNCIL MINUTES
Regular Meeting
CIVIC CENTER COUNCIL CHAMBERS
300 Seminary Avenue
Ukiah, CA 95482
September 3, 2014
6:00 p.m.
1. ROLL CALL
Ukiah City Council met at a Regular Meeting on September 3, 2014, having been legally noticed
on August 29, 2014. Mayor Baldwin called the meeting to order at 6:01 p.m. Roll was taken with
the following Councilmembers Present: Steve Scalmanini, Douglas F. Crane, Benj Thomas, Vice
Mayor Mary Anne Landis, and Mayor Phil Baldwin. Staff Present: Jane Chambers, City Manager;
David Rapport, City Attorney; and Kristine Lawler, City Clerk.
2. PLEDGE OF ALLEGIANCE
3. PROCLAMATIONS/INTRODUCTIONS/PRESENTATIONS
a. Proclamation: Russian River Watershed Association Pollution Prevention Week and
Creek Week 2014.
Presenter: Vice Mayor Landis.
Public Comment: Tim Eriksen, Public Works Director.
13. NEW BUSINESS
a. Discussion and Consideration of Revising the City of Ukiah’s Camping and
Panhandling Ordinance – Police Department.
Motion/Second: Crane/Landis to continue this item to the September 17, 2014, City Council
meeting. Motion carried by the following roll call votes: AYES: Scalmanini, Crane, Thomas, Landis,
and Baldwin. NOES: None. ABSENT: None. ABSTAIN: None.
4. PETITIONS AND COMMUNICATIONS
5. APPROVAL OF MINUTES
a. Minutes of August 20, 2014, Regular Meeting.
Motion/Second: Landis/Crane to approve the minutes of August 20, 2014, a Regular Meeting as
submitted. Motion carried by the following roll call votes: AYES: Scalmanini, Crane, Thomas,
Landis, and Baldwin. NOES: None. ABSENT: None. ABSTAIN: None.
6. RIGHT TO APPEAL DECISION
7. CONSENT CALENDAR
a. Report of Disposition of Surplus Materials, Used Equipment and Supplies – Community
Services Department.
City Council Minutes for September 3, 2014, Continued: Page 2 of 4
b. Award Contract (COU No. 1415-121) for Upgrade Hardware and Software for the SCADA
System at the Water Treatment Plant to Glenmount Global Solutions for the Amount of
$46,604.58 – Public Works Department.
c. Award Professional Services Agreement (COU No. 1415-122) to GHD Inc. for Preparation
of the Mendocino County Courthouse Traffic Study and Approve Budget Amendment –
Public Works Department.
d. Adoption of Resolution (2014-33) Approving Application for Grant Funds from the Habitat
Conservation Fund for Cleveland Lane Storm Water Retention Project and Authorize the
Match Funds from the Corresponding Capital Project Reserve Fund – Community Services
Department.
Motion/Second: Crane/Thomas to approve Consent Calendar Items 7a-d as submitted. Motion
carried by the following roll call votes: AYES: Scalmanini, Crane, Thomas, Landis, and Baldwin.
NOES: None. ABSENT: None. ABSTAIN: None.
8. AUDIENCE COMMENTS ON NON-AGENDA ITEMS
Public Comment: Libby Guthrie, Scott Miller, Cynthia Ariosta, Pastor Judy Shook, and Craig
Strattman.
9. COUNCIL REPORTS
Presenters: Councilmember Thomas and Vice Mayor Landis.
10. CITY MANAGER/CITY CLERK REPORTS
Presenters: Jane Chambers City Manager and Tim Eriksen, Public Works Director.
11. PUBLIC HEARINGS
a. Consideration and Possible Adoption of a Resolution Ordering Repair of Dilapidated
Palace Hotel Structure, Retention of Cota Cole, LLP, and Setting Forth the Conditions
for the Initiation of Proceedings Under Health and Safety Code Section 17980.7 to
Establish a Receivership for the Palace Hotel Property.
Presenter: Charlie Stump, Planning and Community Development Director.
PUBLIC HEARING OPENED AT 6:42 P.M.
Public Comment: Ernie Olsen.
Property Representative: Eladia Laines, Unique Properties, Inc. President.
Continued Public Comment: Bob Scaglione, Mendocino County Air Quality Management District;
Pinky Kushner; Craig Strattman; Cynthia Ariosta; Cynthia Cole; Tom Liden; Mari Rodin; John
McCowen (speaking as a private citizen); Leslie Bartolomie; Wendy Jackson; and Peter Good.
PUBLIC HEARING FOR SEPTEMBER 3, 2014, CLOSED AT 7:44 P.M.
MAYOR BALDWIN REOPENED THE PUBLIC HEARING AT 8:24 P.M.
PUBLIC HEARING FOR SEPTEMBER 3, 2014, CLOSED AT 8:25 P.M.
City Council Minutes for September 3, 2014, Continued: Page 3 of 4
Motion by Councilmember Thomas, Seconded by Vice Mayor Landis to adopt the Resolution
authorizing the filing of a petition of an appointment of a receiver; (2) Authorize the retention of
Cota Cole to provide legal services in connection with the appointment of a receiver; (3) and
authorize the petition to seek the appointment of Mark Adams as the receiver. Motion failed by the
following roll call votes: AYES: Thomas and Landis. NOES: Scalmanini, Crane and Baldwin. None.
ABSENT: None. ABSTAIN: None.
Motion by Councilmember Crane to continue the hearing to the second meeting of October.
Motion dies for lack of a second
Motion/Second: Scalmanini/Crane to direct staff to give an informational only update at the
September 17, 2014, and October 1, 2014, City Council meetings, and to continue the Public
Hearing to October 15, 2014. Motion carried by the following roll call votes: AYES: Scalmanini,
Crane, and Baldwin. NOES: Thomas and Landis. ABSENT: None. ABSTAIN: None.
RECESS AT 8:39 – 8:48 P.M.
12. UNFINISHED BUSINESS
a. Direction Regarding the Purchase of a Vertical Bar Screen for the Influent Pump
Station at the Waste Water Treatment Plant – Public Works Department.
Presenter: Tim Eriksen, Public Works Director and Andrew Luke, Wastewater Treatment Plant
Supervisor.
Motion/Second: Landis/Scalmanini to authorize $210,000 from the City Sewer Capital Fund for
the purchase, construction, and implementation of a vertical bar screen for the influent pump
station at the waste water treatment plant. Motion carried by the following roll call votes: AYES:
Scalmanini, Crane, Thomas, Landis, and Baldwin. NOES: None. ABSENT: None. ABSTAIN: None.
b. Authorization to Execute Change Order in an Amount not to Exceed $251,100 for
Construction of Trail Lighting for Northwestern Pacific Rail Trail Project, Phase 1,
Specification No. 14-01 – Public Works Department.
Presenter: Tim Eriksen, Public Works Director.
Motion/Second: Thomas/Landis to authorize City Engineer to execute a change order in an
amount not to exceed $251,100 for construction of trail lighting and approval of corresponding
budget amendment. Motion carried by the following roll call votes: AYES: Scalmanini, Thomas,
Landis, and Baldwin. NOES: Crane. ABSENT: None. ABSTAIN: None.
13. NEW BUSINESS
b. Appointment Recommendation by Council to the City Selection Committee for the
Mendocino County Airport Land Use Commission – Airport.
Presenter: Greg Owen, Airport Manager.
Motion/Second: Crane/Landis to recommend that the Airport Commission consider additional
applicants, and then make a recommendation for the Mendocino County Airport Land Use
Commission. Motion carried by the following roll call votes: AYES: Scalmanini, Thomas, and
Landis. NOES: None. ABSENT: None. ABSTAIN: Crane and Baldwin.
CITY COUNCIL ADJOURNED TO CLOSED SESSION AT 9:41 P.M.
City Council Minutes for September 3, 2014, Continued: Page 4 of 4
14. CLOSED SESSION
a. Conference With Legal Counsel – Anticipated Litigation
Significant exposure to litigation pursuant to Gov’t Code 54956.9(d)(1) (1 case)
b. Conference with Legal Counsel – Existing Litigation
(Government Code Section 54956.9(d)(1))
Name of case: Ukiah Valley Sanitation District v. City of Ukiah, Mendocino County Superior
Court Case No. SCUK-CVC-13-63024
c. Conference with Real Property Negotiators (§54956.8)
Property: APN 180-070-19
Negotiator: Jane Chambers, City Manager
Negotiating Parties: City of Ukiah and RCMC, LLC
Under Negotiation: Price & Terms
d. Conference with Real Property Negotiators (§54956.8)
Property: APN 003-572-17-00 and 003-572-18-00
Negotiator: Jane Chambers, City Manager
Negotiating Parties: City of Ukiah and Cooper, Donna Mae
Under Negotiation: Price & Terms
No action was taken on Closed Session Items.
15. ADJOURNMENT
There being no further business, the meeting adjourned at 10:45 p.m.
________________________________
Kristine Lawler, City Clerk
Attachment 1
City of Ukiah
Fleet Vehicle Justification
Proposed Vehicle: 2015 Ford F450 with Scelzi Service Body
Department: Public Works
Area of use: Water/Sewer Operations Division
Prepared by: Jarod Thiele
1 VEHICLE PURPOSE
Need for vehicle within Department fleet
This vehicle will be used daily for all of the Water/Sewer Operations Division’s
maintenance of the sewer collection and water distribution systems.
2 REPLACEMENT JUSTIFICATION
2.1 Current Vehicle
Description, Mileage, Funding Source and Market Value
The vehicle being replaced is #2621. It was purchased in 1995 with
Water/Sewer funds. Currently it has 102,731 miles on it. This vehicle is in poor
condition with a value of approximately $3,600.
2.2 Maintenance Costs
Overall Condition, Maintenance Costs, Out of Service Time, Parts
Availability, and Associated Safety Issues
Attachment 1
2.3 Shared Resources
Define any resources currently available within the City of Ukiah fleet which could
be utilized for this purpose.
No resources are recommended due to its age and poor condition
3 PROPOSED VEHICLE SPECIFICATIONS
Proposed Vehicle Specifications
Overall Mechanical Condition: This vehicle is in fair mechanical condition
but the service body is in very poor condition
Maintenance Costs: For the past year this vehicle has incurred approximately
$3,000 in labor and parts costs.
Out of Service Time: This vehicle is currently still in service
Parts Availability: Parts are no longer available from the factory
Associated Safety Issues: None
Attachment 1
2015 Ford F4350 with a Scelzi Service Body
4 ALTERNATIVE FUEL AND CARB REGULATIONS
4.1 Alternative Fuels Availability
Proposed Vehicle Alternative Fuels Availability
Alternative fueled vehicles for this type of use are not readily available.
4.2 CARB STANDARDS
CARB STANDARDS
CARB regulations do not apply to this purchase
.
Attachment 1
City of Ukiah
Fleet Vehicle Justification
Proposed Vehicle: 2014 Ford F150 Extended Cab 2WD
Department: Public Works
Area of use: Water/Sewer Operations Division
Prepared by: Jarod Thiele
1 VEHICLE PURPOSE
Need for vehicle within Department fleet
This vehicle will be used daily for all of the Water/Sewer Operations Division’s
maintenance of the sewer collection and water distribution systems as well as
for the on-call vehicle
2 REPLACEMENT JUSTIFICATION
2.1 Current Vehicle
Description, Mileage, Funding Source and Market Value
The vehicle being replaced is #3280 which is a 2004 Dodge Dakota. The Dodge
Dakota will go to City Hall to replace vehicle #3521 which is a 1989 Nissan
Pickup with 115,535 miles on it. The Dodge was purchased in 2004 with
Water/Sewer funds and the Nissan was purchased in 1989 with Meter Reading
funds. The Nissan is in very poor condition with a value of approximately
$1,500.
2.2 Maintenance Costs
Overall Condition, Maintenance Costs, Out of Service Time, Parts
Availability, and Associated Safety Issues
Attachment 1
2.3 Shared Resources
Define any resources currently available within the City of Ukiah fleet which could
be utilized for this purpose.
No resources are recommended due to its age and poor condition
3 PROPOSED VEHICLE SPECIFICATIONS
Proposed Vehicle Specifications
Overall Mechanical Condition: This vehicle is in poor mechanical condition
but the body is in very poor condition
Maintenance Costs: For the past year this vehicle has incurred minimal
maintenance costs due to the lack of use.
Out of Service Time: This vehicle is currently still in service
Parts Availability: Parts are no longer available from the factory
Associated Safety Issues: None
Attachment 1
Replace a 2004 Dodge Dakota with a 2014 Ford F-150
4 ALTERNATIVE FUEL AND CARB REGULATIONS
4.1 Alternative Fuels Availability
Proposed Vehicle Alternative Fuels Availability
Alternative fueled vehicles for this type of use are not readily available.
4.2 CARB STANDARDS
CARB STANDARDS
CARB regulations do not apply to this purchase
.
1
City Council Presentation – September 17, 2014
Ukiah Bicycle and Pedestrian
Master Plan
2
Agenda
•
•
•
•
3
Objectives
•
•
•
•
•
4
Process
5
Outreach Activities
6
Outreach Summary:
Desired
Improvement Areas
•Improved access
to/along and
crossing:
State Street
Perkins Street
Gobbi Street
•Trail development
along:
NWP Rail Trail
Orr Creek
7
Priority Project Design Sheets
•
8
Steering Committee Working Session
•NWP Rail Trail project
•The Orr Creek Greenway
•Clay Street bicycle
improvements, incl. RR
crossing
•Gobbi Street bicycle
improvements
•Orchard Avenue bicycle
improvements
Priority projects:
9
Steering Committee Working Session
•Outreach to local
schools
•Share the Road
campaign
•Vision Zero policy
•NACTO guidelines
Additional
recommendations:
10
Priority Project Design Sheet
Draft Evaluation Criteria
•
•
•
•
•
11
DRAFT
Priority Project
Sheet List
NWP Rail Trail
Project Phase 2
Clay Street
improvements
Gobbi Street
bicycle lanes
Orr Creek Trail
Study
Orchard Avenue
bike lanes
12
Next Steps
•
•
•
Law Offices Of
RAPPORT AND MARSTON
An Association of Sole Practitioners
405 W. Perkins Street
Ukiah, California 95482
e-mail: drapport@pacbell.net
David J. Rapport (707) 462-6846
Lester J. Marston FAX 462-4235
Scott Johnson
Darcy Vaughn
Mary Jane Sheppard
M E M O R A N D U M
TO: Chris Dewey, Chief of Police
FROM: Darcy Vaughn
DATE: September 11, 2014
SUBJECT: Legality of Anti-Car Habitation, Unlawful Camping Ordinance, Anti-Panhandling
Ordinance; and Authority of UPD to Oust Transient Groups from Public Areas
_____________________________________________________________________________
You have asked:
1.) If the City’s Anti-Car Habitation, Unlawful Camping, and Anti-Panhandling Ordinances are
impermissibly vague and, if so, how they may be amended so as to be constitutional.
2.) Whether the Ukiah Police Department (“UPD”) has any authority to ask groups of people to
leave public areas, such as Alex Thomas Plaza, if they are not committing a crime or violating a
current city ordinance.
3.) When the City cleans up culverts and under bridges prior to the rainy season, and such cleanups
often involve removal of refuse and possible personal items from homeless encampments, whether
notice must be provided prior to a homeless camp cleanup, what sort of notice is required, and
what procedures must officials follow when personal property is found during these sweeps?
CONCLUSION
It is my opinion that:
1.) The City’s Anti-Car Habitation Ordinance is definitely void for vagueness. The Unlawful
Camping Ordinance may be vague, though case law exists supporting a contention that it is
sufficiently specific about what conduct it prohibits. The Anti-Panhandling Ordinances is likely
not impermissibly vague. I have provided suggestions in the Analysis section below of how to
amend the Anti-Car Habitation Ordinance and the Unlawful Camping Ordinance to assure clarity,
Memorandum to Chief Dewey Page 2
August 26, 2014
Subject: Legality of Anti-Car Habitation, Unlawful Camping Ordinance, Anti-Panhandling
Ordinance; Authority of UPD to Oust Transient Groups from Public Areas; and Potential
City Liability for Transient Camp Sweeps
primarily by including duration provisions that may help distinguish ordinary conduct from
prohibited conduct.
2.) The UPD may not tell groups of transients to disperse from public areas if they are not
committing a crime. If the City wishes to draft ordinances that would give the UPD such authority,
they must be cautious not to craft anti-loitering ordinances, which are generally held to violate
fundamental liberties protected by the Constitution and are usually void for vagueness. The City
can successfully deal with the public disturbance issues caused by transient loitering by enacting a
“sit-lie law” or similar ordinance that prohibits obstructing pedestrian traffic.
3.) In order to avoid liability for illegal seizure and procedural due process violations, the City
must provide written notice prior to a homeless camp cleanup, must not destroy any items that can
be identified as personal property, and must implement procedures whereby an affected individual
can reclaim any property that the City removes during the course of a cleanup. Any property
removed should be kept for ninety days before it can be considered abandoned and be discarded.
FACTUAL BACKGROUND
I am informed, both by personal observation and by information passed by David Rapport from the
UPD, that the City has received numerous complaints about groups of transients congregating in
public areas in the City, including the Pear Tree Center and Alex Thomas Plaza. According to the
UPD, there are a number of homeless encampments, primarily located in culverts and under
bridges. I understand that the City routinely cleans up culverts and under bridges every fall before
winter rains come to remove trash or obstructions to the free flow of water in the floodway.
ANALYSIS
A. Anti-Camping, Panhandling, and Loitering Ordinances
1. Application of Vagueness Doctrine to Anti-Car Habitation, Unlawful Camping, and
Panhandling Ordinances
A statute or ordinance may be found in violation of the Due Process Clause of the Fourteenth
Amendment, “if it is so vague and standardless that it leaves the public uncertain as to the conduct
it prohibits . . . .” Giaccio v. Pennsylvania (1966) 382 U.S. 399, 402. Stated another way, a statute
is vague on its face when, “no standard of conduct is specified at all” and, as a result, its meaning
and the standard of conduct to apply can only be guessed. Coates v. City of Cincinnati (1971) 402
U.S. 611, 614.
Vagueness may invalidate a criminal law for two reasons: “First, it may fail to provide the kind of
Memorandum to Chief Dewey Page 3
August 26, 2014
Subject: Legality of Anti-Car Habitation, Unlawful Camping Ordinance, Anti-Panhandling
Ordinance; Authority of UPD to Oust Transient Groups from Public Areas; and Potential
City Liability for Transient Camp Sweeps
notice that will enable ordinary people to understand what conduct it prohibits; second, it may
authorize and even encourage arbitrary and discriminatory enforcement.” City of Chicago v.
Morales (1999) 527 U.S. 41, 56 (citation omitted). For purposes of a vagueness challenge, the
rationale for the fair notice requirement is to, “enable the ordinary citizen to conform his or her
conduct to the law.” Id. at 58. A penal statute cannot require the public to speculate as to its
meaning while risking life, liberty, and property in the process. See Lanzetta v. New Jersey (1939)
306 U.S. 451, 453. In order to determine whether a statute is unconstitutionally vague because it
encourages arbitrary or discriminatory enforcement, courts have considered whether or not the
statute provides standards “governing the exercise of . . . discretion,” for enforcing the statute. See
Papachristou v. City of Jacksonville (1972) 405 U.S. 156, 170. If the statute does not provide such
standards, it becomes “a convenient tool for harsh and discriminatory enforcement by local
prosecuting officials, against particular groups deemed to merit their displeasure.” Id. (internal
quotation marks omitted).
In Desertrain v. City of Los Angeles (9th Cir. 2014) 2014 U.S. App. LEXIS 11543, *22
(“Desertrain”), the Ninth Circuit held that a provision of the Los Angeles Municipal Code that
prohibited living in a vehicle was unconstitutionally vague.
The provision in question, Section 85.02, read as follows:
USE OF STREETS AND PUBLIC PARKING LOTS FOR HABITATION.
No person shall use a vehicle parked or standing upon any City street, or upon any
parking lot owned by the City of Los Angeles and under the control of the City of
Los Angeles or under control of the Los Angeles County Department of Beaches
and Harbors, as living quarters either overnight, day-by-day, or otherwise.
First, Section 85.02 failed the notice prong because it offered no guidance as to what conduct it
prohibited, necessitating speculation as to its meaning. Desertrain at *21-22. The court noted that
while Section 85.02 prohibited use of a vehicle “as living quarters either overnight, day-by-day, or
otherwise” the ordinance did not define “living quarters,” or specify how long is “otherwise.” Id. at
*22. LAPD officers issued citations to alleged violators who had not evidently slept in their
vehicles and who were not stockpiling belongings in their vehicles. Id. The court stated that it was
impossible to know what kind of conduct is required to violate Section 85.02, so that the plaintiffs
were left guessing what behavior would subject them to citation and arrest by an officer. Id. As
such, plaintiffs were arrested for violation of Section 85.02 when engaged in conduct that was
otherwise perfectly legal, such as eating food, talking on a cell phone, and stowing a sleeping bag,
food, and books in a car. Id.
The Ninth Circuit also noted that, while Section 85.02 was broad enough to cover almost any
Memorandum to Chief Dewey Page 4
August 26, 2014
Subject: Legality of Anti-Car Habitation, Unlawful Camping Ordinance, Anti-Panhandling
Ordinance; Authority of UPD to Oust Transient Groups from Public Areas; and Potential
City Liability for Transient Camp Sweeps
driver in Los Angeles, the ordinance was enforced only against the homeless. Id. at *24-25. The
vagueness doctrine is intended to prevent this type of selective enforcement that penalizes those
who are “vaguely undesirable in the eyes of the police and prosecution, although not chargeable in
any particular offense.” Papachristou v. City of Jacksonville at 166 (quoting Winters v. New York
(1948) 333 U.S. 507, 540 (Frankfurter, J., dissenting)). While the court stated that the health and
safety goals cited by the city as the rationale for Section 85.02 were legitimate, those goals did not
excuse the fact that the ordinance effectively penalized otherwise legal, everyday conduct and was
so vague that it failed to give notice of the conduct it actually prohibited. Desertrain at *26-27. The
court noted that the members of the LAPD could not even agree on a unified interpretation and
enforcement policy for Section 85.02, so that the ordinance was “incompatible with the concept of
an even-handed administration of the law to the poor and to the rich that is fundamental to a
democratic society.” Id. at 27. However, had the LAPD provided consistent guidance for its
officers on how Section 85.02 should be enforced, and its officers had actually complied with the
guidance given, Section 85.02 might not be void, as exactness can be achieved not just on the face
of the statute, but also through limiting constructions given to the statute by the state court or
enforcement agency. Id. (citing Hess v. Bd. of Parole & Post-Prison Supervision (2008) 514 F.3d
909, 914).
Ukiah City Code § 6080 sets forth some of the relevant definitions for Article 8 of the Code, which
contains the City’s ordinances applicable to camping. CAMP or CAMPING is defined as “the
activity of living temporarily in the outdoors, including to place, pitch, or use camp facilities or
camp paraphernalia for such purposes.” CAMP FACILITIES includes, but is not limited to, “tents,
huts, motor vehicles, recreational vehicles or temporary structures, when established, maintained
or operated to camp.” CAMP PARAPHERNALIA includes, but is not limited to, “bedrolls,
blankets, tarpaulins, cots, beds, sleeping bags, tents, hammocks, items used for cooking food or
similar equipment, and also includes other personal effects, when used or stored with camp
paraphernalia.” ESTABLISH is defined as “setting up or moving equipment, supplies or materials
onto public or private property to camp.” MAINTAIN is defined as “keeping or permitting
equipment, supplies or materials to remain on public or private property in order to camp or
operate camp facilities.” STORE is defined as “to put aside or accumulate for use when needed, to
put for safekeeping, to place or leave in a location.” The terms OPERATE and OCCUPY are not
defined for the specific purposes of Article 8.
Ukiah City Code § 6084 (“Anti-Car Habitation Ordinance”) violates the Fourteenth Amendment
as written due to vagueness. The Anti-Car Habitation Ordinance states that it is unlawful for any
person to use any motor vehicle or recreational vehicle for human habitation on or in any public or
private street, alley, or parking area or any public or privately owned off street parking facility/area
which is held open for common public use. In particular, the Anti-Car Habitation Ordinance, in
similar in effect to Section 85.02, does not define the phrase “human habitation” as it is used in
Article 8, much as “living quarters” is not defined in Section 85.02. One reading the statute must
Memorandum to Chief Dewey Page 5
August 26, 2014
Subject: Legality of Anti-Car Habitation, Unlawful Camping Ordinance, Anti-Panhandling
Ordinance; Authority of UPD to Oust Transient Groups from Public Areas; and Potential
City Liability for Transient Camp Sweeps
guess at what kind of conduct would constitute using the car for human habitation and what sort of
conduct would trigger enforcement of the statute.
Because the Ukiah Police Department has been reluctant to enforce the Anti-Car Habitation
Ordinance due to concerns about the legality of the Ordinance, there is no information available
about whether the Ordinance encourages discriminatory enforcement. If the Anti-Car Habitation
Ordinance were enforced in such a way as to effectively penalize otherwise legal, everyday
conduct and enforced only against the transient population, this would satisfy the arbitrary and
discriminatory enforcement prong of the vagueness test. As an illustration, the Desertrain court
held that Section 85.02, as written, could ostensibly cover any driver in Los Angeles who ate food
or transported personal belongings in his or her vehicle, but was enforced only against the
homeless. Section 85.02 was thus deemed to “enable men to be caught who are vaguely
undesirable in the eyes of the police and prosecution, although not chargeable in any particular
offense.” Desertrain at *25 (internal cites removed).
As currently written, Ukiah City Code § 6081 (“Unlawful Camping Ordinance”) could violate the
Due Process Clause of the Fourteenth Amendment as an unconstitutionally vague statute, as it is
similar in effect to Section 85.02 in the Los Angeles ordinances reviewed in the Desertrain
decision. The Unlawful Camping Ordinance currently reads as follows:
Except as provided in subsections B1 through B4 of this section, it is unlawful and
a public nuisance for any person to camp, establish, maintain, operate or occupy
camp facilities, or use camp paraphernalia in the following areas:
A. Any public property; or
B. Any private property, provided, however, that this prohibition does not apply
to:
1. Overnight camping on private residential property by friends or family of the
property owner or person in lawful possession of the property, so long as the owner
or lawful occupant consents, and the camping does not creat e a public or private
nuisance;
2. Mobile home parks and special occupancy parks;
3. Camping in public parks pursuant to section 1967 of this code; and
4. Camping on public or private property in connection with a special event, when
authorized pursuant to section 6082 of this article.
Memorandum to Chief Dewey Page 6
August 26, 2014
Subject: Legality of Anti-Car Habitation, Unlawful Camping Ordinance, Anti-Panhandling
Ordinance; Authority of UPD to Oust Transient Groups from Public Areas; and Potential
City Liability for Transient Camp Sweeps
For purposes of Article 8, the definition of the word “camp,” that is, “living temporarily in
the outdoors” is problematic as it is not clear how a law enforcement officer is to properly
discern whether someone is violating the Unlawful Camping Ordinance. How long does
one have to remain outdoors before they are “living temporarily in the outdoors”? What
might be evidence that someone is living outdoors? The phrases “operate” and “occupy”
are not defined in Article 8, much as “living quarters” is not defined in Section 85.02. In
addition, it is unclear what sort of conduct would “create a public or private nuisance.” One
reading the statute must guess at what kind of conduct would constitute operating or
occupying camp facilities and what sort of conduct would trigger enforcement of the
statute. Without additional limiting language, the Unlawful Camping Ordinance could be
triggered by parking a truck with a camper on a city street overnight.
As with the Anti-Car Habitation Ordinance, it is hard to imagine the Unlawful Camping
Ordinance being enforced against anyone except the transient population. If the
Anti-Camping Ordinance were enforced in such a way as to effectively penalize otherwise
legal, everyday conduct and enforced only against the transient population, this would
satisfy the arbitrary and discriminatory enforcement prong of the vagueness test.
However, California case law suggests that an ordinance that bans camping in public areas,
provided that the law contains sufficient detail as to the conduct prohibited, is not void for
vagueness. The California Supreme Court held that the City of Santa Ana’s ordinance
prohibiting camping, occupying camp facilities, and using camp paraphernalia in any street,
public parking lot, or public area was not void for vagueness because conduct triggering
the ordinance was clear when its terms were read in context and considering the purpose of
the ordinance. Tobe v. City of Santa Ana (1995) 9 Cal. 4th 1069, 1107. The Santa Ana
ordinance explicitly stated that the purpose of the ordinance was to make public areas
readily accessible to the public and to prevent use of public property “for camping
purposes or storage of personal property” which “interferes with the rights of others to use
the areas for which they were intended.” Id. The court observed that a statute should be
sufficiently certain so that a person may know what is prohibited thereby and what may be
done without violating its provisions, but it cannot be held void for uncertainty if any
reasonable and practical construction can be given to its language. Id. at 1106. Read in light
of the ordinance’s stated purpose, the ordinance would not prohibit ordinary conduct such
as leaving a towel on a beach, an umbrella in the public library, or a student backpack in a
school, or using picnic supplies in a park in which picnics are permitted, but would instead
bar only residing or dwelling on public property. Id. at 1107-1108. The ordinance was, thus,
not vague because it gave adequate notice of the conduct it prohibits. Id. at 1108.
Though the Desertrain court did not couch its vagueness analysis in whether Section 85.02
was clear when its terms were read in context and considering the purpose of the ordinance,
Memorandum to Chief Dewey Page 7
August 26, 2014
Subject: Legality of Anti-Car Habitation, Unlawful Camping Ordinance, Anti-Panhandling
Ordinance; Authority of UPD to Oust Transient Groups from Public Areas; and Potential
City Liability for Transient Camp Sweeps
it is possible that Section 85.02 would not have been found void had the language of the
ordinance been better tailored to accomplish a particular legislative goal. While the Santa
Ana ordinance prohibits camping and dwelling in public areas so that those areas remain
accessible to the entire public, the purpose of increasing enforcement efforts for Section
85.02 was, as discussed at Los Angeles’ “Town Hall on Homelessness”, was to curb “the
illegal dumping of trash and human waste on city streets that was endangering public
health”. Desertrain at *3. An ordinance prohibiting car habitation, with or without
clarifying instructions on what conduct signifies using a car as living quarters, does not
explicitly address this purpose.
Section 6091 of the Ukiah City Code, titled UNLAWFUL PANHANDLING
(“Panhandling Ordinance”), states that it is unlawful and a public nuisance for any person
to:
A. Panhandle in an aggressive manner in any public place.
B. Panhandle within twenty feet (20’) of any entrance or exit of any check cashing
business, supermarket or retail store, or within twenty feet (20’) of any automated
teller machine without the consent of the owner/agent of the property or another
person legally in possession of such facilities; provided, however, that when an
automated teller machine is located within an automated teller machine facility,
such distance shall be measured from the entrance or exit of the facility.
C. Panhandle an operator or other occupant of a motor vehicle while such vehicle
is located on any street or highway on ramp or off ramp, for the purpose of
performing or offering to perform a service in connection with such vehicle or
otherwise soliciting donations or the sale of goods or services; provided, however,
that this subsection shall not apply to services rendered in connection with
emergency repairs requested by the operator or passenger of such vehicle.
D. Panhandle in any public transportation vehicle, or in any public or private
parking lot or parking structure.
Section 6090 of the City Code provides the definitions applicable to the Panhandling
Ordinance, and defines not only “Panhandling”, but also, in significant detail, outlines the
types of conduct that will be considered “Aggressive Panhandling”. Federal courts have
upheld city ordinances barring aggressive panhandling when said ordinances have been
challenged on vagueness grounds, particularly where, as here, the types of conduct that
constitute aggressive panhandling are defined in detail. See Thayer v. City of Worcester
(1st Cir. June 19, 2014) 2014 U.S. App. LEXIS 11578 (holding that plaintiff’s claim that
Memorandum to Chief Dewey Page 8
August 26, 2014
Subject: Legality of Anti-Car Habitation, Unlawful Camping Ordinance, Anti-Panhandling
Ordinance; Authority of UPD to Oust Transient Groups from Public Areas; and Potential
City Liability for Transient Camp Sweeps
an anti-panhandling ordinance was void for vagueness was unlikely to prevail as the
conduct engaged in by plaintiff was clearly proscribed by the ordinance); Gresham v.
Peterson (7th Cir. 2000) 225 F.3d 899, 908 (holding that provisions of an anti-panhandling
ordinance proscribing conduct considered aggressive panhandling are subject to
reasonable interpretations that answer the vagueness challenge).1 It is my opinion that the
Panhandling Ordinance contains sufficient detail to provide adequate notice of the conduct
proscribed by the Ordinance.
2. How to Remedy Vagueness Issues in Unlawful Camping and Anti-Car Habitation
Ordinances
The Desertrain court noted that an otherwise vague statute can be clarified “through limiting
constructions given . . . by the . . . enforcement agency.” Desertrain at *27 (citing Hess v. Bd. of
Parole & Post-Prison Supervision (9th Cir. 2008) 514 F.3d 909, 914). For example, Section 85.02
could have been remedied by an internal memorandum instructing officers making an arrest for
violations of Section 85.02 to first “establish one of the following — (i) overnight occupancy for
more than one night or (ii) day-by-day occupancy of three or more days.” Desertrain at *27.
However, the existence of the clarifying memo was deemed irrelevant because the LAPD did not
instruct officers to adhere to the memo, and those officers who had been given the memo did not
follow it and, instead arrested individuals even if they had not observed overnight occupancy or
occupancy for three consecutive days. Id. at *27-28.
However, any limiting constructions could just as easily be written into the Ukiah City Code. I
suggest that the Unlawful Camping and Anti-Car Habitation Ordinances be amended to include
more detail as to the type of conduct prohibited by each ordinance.
The Anti-Car Habitation Ordinance could be modified to state that it is unlawful for any person to
dwell or reside in any motor vehicle or recreational vehicle, on or in any public or private street,
alley, or parking area or any public or privately owned off street parking facility/area which is held
open for common public use. Whether a person dwells or resides in any motor vehicle or
recreational vehicle shall be established by overnight stay, between midnight and 5am, for three
consecutive days. As stated in the comparison of the outcomes in Tobe and Desertrain, the City
may find it useful to consider what is the ultimate purpose of the Anti-Car Habitation Ordinance. If
this purpose has a clear causal connection with the conduct prohibited in the Anti-Car Habitation
Ordinance, it might be useful to include this statement of purpose in the text of the Ordinance.
1 However, note that a recent federal district court case, ACLU of Idaho, Inc. v. City of Boise (D. Idaho Jan. 2, 2014)
2014 U.S. Dist. LEXIS 291, which struck down an anti -panhandling ordinance on First Amendment grounds, stated
that the court must reject the Gresham analysis to the extent that it conflicts with Ninth Circuit precedent. I have not
found any Ninth Circuit cases holding that an anti -panhandling ordinance is void for vagueness.
Memorandum to Chief Dewey Page 9
August 26, 2014
Subject: Legality of Anti-Car Habitation, Unlawful Camping Ordinance, Anti-Panhandling
Ordinance; Authority of UPD to Oust Transient Groups from Public Areas; and Potential
City Liability for Transient Camp Sweeps
While the Unlawful Camping Ordinance may be less problematic than the Anti-Car Habitation
Ordinance, it might be prudent to remedy any possible vagueness by amending Ukiah City Code §
6080 to clarify the vague terms used in the Anti-Camping Ordinance. Most crucially, the phrase
“living temporarily outdoors” could be clarified by adding the following language after the
definition of CAMP or CAMPING, “Whether a person is living temporarily in the outdoors shall
be established by overnight stay, between midnight and 5am, for three consecutive days.”
Section 13-23.040 of the Santa Rosa City Code may also be a helpful model as it describes in great
detail the conduct prohibited and also contains a duration provision in its prohibition of camping in
city parks:
No persons shall set up tents, shacks, sleeping bags or other shelter in any City park
for the purpose of overnight camping, nor shall any person leave any of the above
or any movable structure or special vehicle to be used, or that could be used for
such purpose, including but not limited to, house trailers, camp trailers, camp
wagons and other mobile or stationary campers in any City park. The restrictions
contained within this section shall not apply to programs sponsored or
co-sponsored by the City.
B. Legality of Anti-Loitering Ordinances
With regard to what options the UPD has to ask transients congregating in public places to disperse,
the options are few if the transients are not violating a provision of the Ukiah City Code applying
to public behavior, such as the ordinance prohibiting public intoxication. It is unlikely that the City
could craft an anti-loitering ordinance that would not violate constitutionally protected rights, nor
be found void for vagueness. The United States Supreme Court, holding that there exists a
fundamental freedom to stand and wander on sidewalks, has, on numerous occasions, invalidated
ordinances penalizing “loitering” on grounds of vagueness and in an attempt to prevent the
penalization of such conduct on the whim of a police officer. See Papachristou v. City of
Jacksonville, 405 U.S. 156, 170 (1972). The Supreme Court reinforced the general right to “loiter”
in a public place, stating that the “right to remove from one place to another according to
inclination” as “an attribute of personal liberty” protected by the Constitution. City of Chicago v.
Morales, 527 U.S. 41, 53-54 (1999)(“Morales”) (citing Williams v. Fears (1900) 179 U.S. 270,
274). See also Justin v. City of Los Angeles (C.D. Cal. Dec. 5, 2000) 2000 U.S. Dist. LEXIS 17881,
*11-12.
In Morales, the Supreme Court also held that a Chicago law prohibiting “loitering,” which it
defined as “remain[ing] in any one place with no apparent purpose,” lacked fair notice, as it was
“difficult to imagine how any citizen . . . standing in a public place with a group of people would
know if he or she had an ‘apparent purpose’“ and was, therefore, void for vagueness. Morales at
Memorandum to Chief Dewey Page 10
August 26, 2014
Subject: Legality of Anti-Car Habitation, Unlawful Camping Ordinance, Anti-Panhandling
Ordinance; Authority of UPD to Oust Transient Groups from Public Areas; and Potential
City Liability for Transient Camp Sweeps
56-57.
In addition, city ordinances that attempt to circumvent vagueness by prohibiting only that loitering
that bothers other persons attempting to use the public space have also failed to meet constitutional
muster. In Coates v. Cincinnati, the Supreme Court struck down an ordinance that penalized the
act of loitering in groups on a public sidewalk or street corner and there engaging in conduct “in a
manner annoying to persons passing by.” Coates v. Cincinnati (1971) 402 U.S. 611, fn. 1. The
Court held that the phrase “in a manner annoying” was “unconstitutionally vague” and
unconstitutionally broad because it authorizes the punishment” of constitutionally protected
freedom of assembly.” Id. at 614.
Federal courts have, however, found constitutional ordinances that prohibit obstructing or
blocking free passage of pedestrians through a public area. Shuttlesworth v. City of Birmingham
(1965) 382 U.S. 87; Roulette v. City of Seattle (9th Cir. 1996) 97 F.3d 300 (“Roulette”). In Roulette,
which involved a challenge to Seattle’s “sit-lie law” generally prohibiting people from sitting or
lying on public sidewalks in certain commercial areas between seven in the morning and nine in
the evening, the Ninth Circuit noted that the ordinance didn’t restrict sitting or lying in public
parks, private or public plazas, nor the sidewalk in noncommercial areas of the city, and would also
allow sitting on the sidewalks in the commercial areas at night. Roulette at 302. The court also
observed that no citations could be issued under the ordinance unless first notified by a police
officer that one was violating the ordinance. Id. The court rejected a challenge to the “sit-lie law”
on first amendment grounds, noting that such conduct was not expression. Id. at 303-304. While
the plaintiffs in Roulette asserted that the ordinance violated the Due Process Clause of the
Fourteenth Amendment and was a thinly veiled attempt to drive transients from commercial areas,
Seattle argued that the ordinance is a legitimate response to substantial public concerns. Id. at
305-306. Noting that “the fact that [a legislative act] might operate unconstitutionally under some
conceivable set of circumstances is insufficient to render it wholly invalid”, the Ninth Circuit
rejected the Substantive Due Process claim and held that Seattle may, by ordinance, “prevent
individuals or groups of people from sitting or lying across a sidewalk in such a way as to prevent
others from passing.” Id. (citing United States v. Salerno (1987) 481 U.S. 739, 745). See also
Justin v. City of Los Angeles (C.D. Cal. Dec. 5, 2000) 2000 U.S. Dist. LEXIS 17881 (finding that
the City of Los Angeles may not be enjoined from ordering the homeless to move along from
where they are standing if they are obstructing or blocking the free passage of pedestrians).
I am unable to locate an ordinance that resembles Seattle’s “sit-lie law” in the Ukiah City Code.
Such an ordinance would be the City’s best option for dispersing groups of transients in
commercial areas such as the Pear Tree Center, provided that these groups are actually blocking
pedestrian traffic. The ordinance should include the following language: “No person shall stand in
or upon any street, sidewalk or other public wa y open for pedestrian travel or otherwise occupy
any portion thereof in such a manner as to obstruct or unreasonably interfere with the free passage
Memorandum to Chief Dewey Page 11
August 26, 2014
Subject: Legality of Anti-Car Habitation, Unlawful Camping Ordinance, Anti-Panhandling
Ordinance; Authority of UPD to Oust Transient Groups from Public Areas; and Potential
City Liability for Transient Camp Sweeps
of pedestrians.”
C. Homeless Camp Sweeps and their Implications Regarding Illegal Seizure and
Procedural Due Process Requirements
In addition to vagueness issues, in cleaning up a site used for camping in violation of a camping
ordinance, clean-up should avoid seizing personal property of apparent value.
The Fourth Amendment to the United States Constitution protects against unreasonable seizures
and searches. Menotti v. City of Seattle (9th Cir. 2005) 409 F.3d 1113, 1152. A seizure for Fourth
Amendment purposes occurs when there is some meaningful interference with an individual’s
possessory interest in property. Soldal v. Cook County, Ill (1992) 506 U.S. 56, 63. In order to
comply with the Fourth Amendment, a seizure must be reasonable under the totality of the
circumstances. San Jose Charter of the Hells Angels Motorcycle Club v. City of San Jose (9th Cir.
2005) 402 F.3d 962, 975. Specifically, a court assessing reasonableness of a seizure will balance
the nature and quality of the intrusion on the individual’s Fourth Amendment interests against the
countervailing governmental interests at stake - for example, if the items are evidence of a crime or
are contraband. Id.; Soldal v. Cook County, Ill at 68.
The government’s conduct could also constitute a violation of the procedural due process
requirements of the Fourteenth Amendment of the United States Constitution. The Fourteenth
Amendment to the United States Constitution provides that “No state shall … deprive any person
of life, liberty, or property, without due process of laws.” United States Const. Amend XIV.
An individual’s personal possessions, which for a homeless individual may represent most of what
they own, constitute “property” for purposes of constitutional analysis. Fuentes v. Shevin (1972)
407 U.S. 67, 84. The Pottinger and Kincaid courts both noted that the fact that a homeless person’s
personal property may be shabby and look like junk to many observers does not mean that its value
should be discounted for a procedural due process analysis. Kincaid at *96; Pottinger at 1559.
Before the government seizes an individual’s property, even temporarily, it must provide notice
and an opportunity to be heard prior to the seizure, except in “extraordinary situations where some
valid governmental interest is at stake that justifies the postponing of the hearing until after the
event.” United States v. James Daniel Good Real Prop. (1993) 510 U.S. 43, 53. Pre-seizure notice
is not dependent upon the value of the property. Fuentes v. Shevin, 407 U.S. at 84-87; Propert v.
District of Columbia (D.C. Cir. 1991) 948 F.2d 1327, 1334 (government must provide adequate
notice to owners of parked cars before it tows them as “junk.”).
The basic requirements of procedural due process are a right to notice and an opportunity to be
heard at a meaningful time and in a meaningful manner. Mathews v. Eldridge (1976) 424 U.S. 319,
Memorandum to Chief Dewey Page 12
August 26, 2014
Subject: Legality of Anti-Car Habitation, Unlawful Camping Ordinance, Anti-Panhandling
Ordinance; Authority of UPD to Oust Transient Groups from Public Areas; and Potential
City Liability for Transient Camp Sweeps
339-43. When a protected property interest is threatened, three factors must be considered to
determine whether the basic requirements of procedural due process have been met: “First, the
private interest that will be affected by the official action; second, the risk of an erroneous
deprivation of such interest through the procedures used, and the probable value, if any, of
additional or substitute procedural safeguards; and finally, the Government’s interest, including
the function involved and the fiscal and administrative burdens that additional or substitute
procedural requirement would entail.” Mathews v. Eldridge at 335.
In Kincaid, the court held that the process provided by Fresno was constitutionally inadequate,
particularly in light of the fact that property seized - shelter, medicine, clothing, identification
documents, and personal effects of unique and sentimental value - constituted basic necessities of
life for the affected homeless individuals. Kincaid at *97. The court focused on the fact that Fresno
offered limited evidence of any written pre-deprivation notice, and the notice given indicated the
wrong date for the sweep operation. Id. Furthermore, any oral notice given was inconsistent and
confusing, and thus not effective. Id at *97-98. In order to provide adequate procedural due
process, Fresno should provide written notice of the sweeps “consistently and sufficiently in
advance of any planned operation, publicly posted and if practicable affixed to any specific
property at issue, and simultaneously given to service providers in the immediate area. The notice
should be written in a manner reasonably calculated to be understood by the affected parties and
should include a clear and unambiguous statement of the nature and purpose of the action to be
taken, the legal authority for such action, the specific location where the action is to be taken, and
the date and time of the action. There should also be a post-deprivation process, described in the
notice, to be followed to reclaim any personal property that is seized.” Id at *99.
The Federal District Court for the Central District of California has found that the City of Los
Angeles had unlawfully and unreasonably seized personal property of homeless individuals in
violation of the Fourth Amendment and that before the City can seize and destroy personal
property, it must fulfill the basic procedural due process requirements outlined in Mathews v.
Eldridge, except in “extraordinary situations where some valid governmental interest is at stake
that justifies the postponing of the hearing” until after the property is seized. Lavan v. City of Los
Angeles (C.D. Cal. 2011) 797 F. Supp. 2d 1005, 1016-1017 (citing United States v. James Daniel
Good Real Prop. at 53). While the City had provided some notice, it was inadequate due to the fact
that the written notices were typically posted “at a very high level with small print, obscured by
foliage or taped over”. Lavan v. City of Los Angeles at 1017. Furthermore, the City failed to give
meaningful post-deprivation hearings at which the affected individuals could recover their
property. Id. The City was thus enjoined from seizing personal property at homeless camps
“absent an objectively reasonable belief that it is abandoned, presents an immediate threat to
public health or safety, or is evidence of a crime, or contraband” and from destroying “said seized
property without maintaining it in a secure location for a period of not less than 90 days” unless
there existed an immediate threat to public health or safety. Id. at 1020. The court further ordered
Memorandum to Chief Dewey Page 13
August 26, 2014
Subject: Legality of Anti-Car Habitation, Unlawful Camping Ordinance, Anti-Panhandling
Ordinance; Authority of UPD to Oust Transient Groups from Public Areas; and Potential
City Liability for Transient Camp Sweeps
the City to “leave a notice in a prominent place for any property taken on the belief that it is
abandoned, including advising where the property is being kept and when it may be claimed by the
rightful owner.” Id.
While the case law for both the Fourth Amendment seizure analysis and the Fourteen Amendment
procedural due processes analysis regarding destruction of the personal property of the homeless
does not give an all-purpose definition of trash, the Kincaid court did find that Fresno was
obligated to make an effort to distinguish between personal property and trash, and to separate and
store for later the items of personal property. Kincaid at *91-92. Instead, Fresno’s policy was that
the items seized and destroyed during the sweeps were abandoned unless its owner were literally
standing by, and therefore all seized property constituted trash that could be destroyed. Id. at 93.
The court found that there was no legal justification for this rule and that it was dishonest. Id.
An item is “property” unless the owner intentionally and voluntarily abandons it because “she
simply no longer desires to possess the thing being abandoned.” 1 Cal.Jur.3d Lost and Escheated
Property, Sec. 2; See Katsaris v. United States (11th Cir. 1982) 684 F.2d 758, 761-62
Abandonment is determined by the intent of the owner and the “inquiry should focus on whether,
through words, acts or other objective indications, a person has relinquished a reasonable
expectation of privacy in the property at the time of the search or seizure.” U.S. v. Nordling (9th
Cir. 1986) 804 F.2d 1466, 1469. Such a determination is “to be made in light of the totality of the
circumstances, and two important factors are denial of ownership and physical relinquishment of
the property.” Id. It is impermissible to treat property as abandoned and trash just because the
owner has not removed it in the time the government has allotted. A & W Smelter and Refiners, Inc.
v. Clinton (9th Cir. 1998) 146 F.3d 1107, 1111; Kincaid at *94. Furthermore, once it has seized
property, the government “may not finally destroy a property interest without first giving the
putative owner an opportunity to present his claim of entitlement.” Logan v. Zimmerman Brush Co.
(1982) 455 U.S. 422, 434.
While the relevant case law does not absolutely delineate the procedures the City must follow to
avoid illegal seizures and ensure that it is providing procedural due process, it does suggest certain
minimum procedures. The City must provide notice prior to the sweep, the notice should be
written (oral notice should also be given if there are any persons occupying the camp while the
notice is being posted), and the notice should be posted in a clearly visible spot. As stated in
Kincaid, “notice should be written in a manner reasonably calculated to be understood by the
affected parties and should include a clear and unambiguous statement of the nature and purpose of
the action to be taken, the legal authority for such action, the specific location where the action is to
be taken, and the date and time of the action. There should also be a post-deprivation process,
described in the notice, to be followed to reclaim any personal property that is seized.”
It is my opinion that the City could protect itself by adopting the procedures mandated in the
Memorandum to Chief Dewey Page 14
August 26, 2014
Subject: Legality of Anti-Car Habitation, Unlawful Camping Ordinance, Anti-Panhandling
Ordinance; Authority of UPD to Oust Transient Groups from Public Areas; and Potential
City Liability for Transient Camp Sweeps
settlement agreement reached in the Kincaid litigation between the City of Fresno and the
homeless plaintiffs. The City should require that any officials engaging in sweeps of homeless
camps, conducted for the purpose of promoting public health and safety, post written notice in a
visible spot at the sweep location at least three days before clearing any personal property from the
encampment area, and items of apparent value that are seized should be stored for ninety days.2 As
such, the notice should also state where the seized, abandoned property will be stored, the hours
during which the property will be available for reclamation, and what procedures the owner must
undertake to secure their return. For the City’s purposes, these procedures could include the
purported owner completing a claim form identifying the property, the location from which it was
seized, and the approximate time of seizure.
Note that while both Kincaid and Lehr indicate that the personal property of the homeless should
not be considered abandoned simply because the owner hasn’t removed it in the time allotted, both
cases focused on the constitutional implications of the immediate destruction of the property rather
than the seizure of the allegedly abandoned property. Also, while neither case indicates how an
official cleaning up a camp site might distinguish between personal property and trash, Kincaid
lists some categories of property that were impermissibly destroyed as abandoned or trash: tents,
carts, clothing, bicycles, personal effects, memorabilia, and other property that they need to
survive. As such, it is my opinion that while officials may clear away all trash AND property
during a culvert sweep, only that property which can clearly be identified as waste, and not
property necessary for survival, may be destroyed. The seized property must be kept for ninety
days and a post-deprivation remedy for reclaiming and recovering the property must be given.
D. Homeless Camp Sweeps and Implications for Substantive Due Process/Danger
Creation Doctrine
A transient camp clean-up may also trigger liability under substantive due process where a
government official acts to place an individual in a situation of known danger with deliberate
indifference to their personal, physical safety. See Kennedy v. City of Ridgefield (9th Cir. 2006)
439 F.3d 1055 (“Kennedy”). This theory of liability is also referred to as the danger creation
doctrine.
Substantive due process under the Fourteenth Amendment “forbids the government from
depriving a person of life, liberty, or property in such a way that shocks the conscience or
interferes with the rights implicit in the concept of ordered liberty.” Corales v. Bennett (9th Cir.
2 The California Civil Code requires law enforcement officers to hold lost or abandoned property for ninety days.
Lehr v. City of Sacramento (E.D. Cal. Aug. 15, 2011) 2011 U.S. Dist. LEXIS 90473; Cal.Civ.Code. § 2080.2. The
Civil Code also states that if the owner of the lost or abandoned property appears within ninety days, after receipt of
the property by the police department or sheriff's department, proves his ownership of the property, and pays all
reasonable charges, the police department or sheriff's department shall restore the property to him.
Memorandum to Chief Dewey Page 15
August 26, 2014
Subject: Legality of Anti-Car Habitation, Unlawful Camping Ordinance, Anti-Panhandling
Ordinance; Authority of UPD to Oust Transient Groups from Public Areas; and Potential
City Liability for Transient Camp Sweeps
2009) 567 F.3d 554, 568 (internal citations and quotations omitted). The substantive component of
the Due Process Clause is violated by executive action only when it “can properly be characterized
as arbitrary, or conscience shocking, in a constitutional sense.” Collins v. City of Harker Heights
(1992) 503 U.S. 115, 128. One of the liberty interests protected by the Constitution is a citizen’s
liberty interest in his or her own bodily security. See, e.g., Ingraham v. Wright (1977) 430 U.S. 651,
673-74; Wood v. Ostrander (9th Cir.1989) 879 F.2d 583, 589. This is the basis of the danger
creation doctrine, which is thoroughly analyzed in Kennedy.
In Kennedy, the plaintiff contacted Ridgefield police to report that a neighbor had molested her
minor daughter and warned officers that the neighbor had violent tendencies. Kennedy at 1057.
The police assured plaintiff that she would be given notice prior to any police contact with the
neighbor’s family about the allegations. Id. at 1058. Despite this promise, the plaintiff was given
notice only after the police informed the neighbor about the allegations. Id. Later that night, the
neighbor broke into plaintiff’s home, shot plaintiff, and fatally shot plaintiff’s husband. Id.
Plaintiff alleged that the involved officer violated her Fourteenth Amendment right to substantive
due process by placing her in a known danger with deliberate indifference to her personal physical
safety.
The Ninth Circuit acknowledged the substantive due process implications of the liberty interest in
bodily security and observed that, although the state’s failure to protect an individual against
private violence does not generally violate the guarantee of due process, it can where state action
creates or exposes an individual to a danger which he or she would not have otherwise faced.
Kennedy at 1061 (citing DeShaney v. Winnebago County Dep’t of Social Servs. (1989) 489 U.S.
189, 197; Wood v. Ostrander at 589-90.). The Kennedy court then reviews a series of cases that
establish that state actors may be held liable “where they affirmatively place an individual in
danger” by acting with “deliberate indifference to [a] known or obvious danger in subjecting the
plaintiff to it”. Kennedy at 1061 (citing Munger v. City of Glasgow (9th Cir. 2000) 227 F.3d 1082,
1086; L.W. v. Grubbs (9th Cir. 1996) 92 F.3d 894, 900.) Thus, in Kennedy, the Ninth Circuit
delineated the two part test for the danger creation doctrine, requiring (1) official (state) action that
affirmatively placed an individual in danger; and (2) deliberate indifference to that danger. See
Sanchez v. City of Fresno (E.D. Cal. May 16, 2014) 2014 U.S. Dist. LEXIS 67863, *19-22
(“Sanchez”). Deliberate indifference is a stringent standard of fault, requiring proof of “1) an
unusually serious risk of harm, 2) defendant’s actual knowledge of (or, at least, willful blindness to)
that elevated risk, and 3) defendant’s failure to take obvious steps to address that known, serious
risk.” L.W. v. Grubbs (9th Cir. 1996) 92 F.3d 894, 900. To pursue a claim against a state actor
based on the danger creation doctrine, the plaintiff must establish that the state actor is the
proximate cause of his or her injuries. Lawrence v. United States (9th Cir. 2003) 340 F.3d 952, 957.
That is, the specific injury the state actor in fact inflicted on the plaintiff must be foreseeable.
Kennedy at 1064 n. 5
Memorandum to Chief Dewey Page 16
August 26, 2014
Subject: Legality of Anti-Car Habitation, Unlawful Camping Ordinance, Anti-Panhandling
Ordinance; Authority of UPD to Oust Transient Groups from Public Areas; and Potential
City Liability for Transient Camp Sweeps
While the danger doctrine analysis often focusses on whether a state actor has placed an individual
in the way of a harm created by state action, the danger creation doctrine is also applicable when a
defendant does something “to render [the plaintiff] more vulnerable” to a danger. Sanchez at
*30-31 (citing DeShaney v. Winnebago County Dep’t of Social Servs. at 201.)
In Sanchez, the plaintiffs, all homeless individuals residing in encampments on public streets,
claimed that the City of Fresno was liable for danger creation because the City’s actions,
specifically, seizing and destroying personal property necessary for survival, caused plaintiffs to
be without shelter for some period of time after a homeless camp sweep. Sanchez at *25. In
analyzing the application of the danger creation doctrine in Sanchez, the court posited that “the key
question is whether Defendants’ destruction of Plaintiffs’ shelters left Plaintiffs in situations that
were more dangerous than the ones in which Defendants found them. Id. at *25-26. The plaintiffs
had indicated that they were fearful of being vulnerable to physical violence after the removal of
their shelters. Id. at *32. While the court did not dispute that the area where plaintiffs camped was
dangerous, the court observed that none of the plaintiffs was actually attacked during the relevant
time period and that a danger creation claim cannot prevail simply because the affected individual
was “threatened with a substantially greater risk of assault and loss of life.” Id. at *33. The court
also stated that even if dicta in danger creation jurisprudence that suggests that mere exposure to a
risk is sufficient to cause liability, it was unable to “locate a single example of a court imposing
danger creation liability based upon anything other than actual, serious bodily injury.” Id. at *34.
As such, plaintiffs’ claim that defendants were liable under a danger creation theory for exposing
them to an added threat of physical violence failed. Id. at *36.
The Sanchez court also considered whether the danger creation doctrine extended to the conditions
experienced by the plaintiffs after their property was seized and destroyed and whether the
environmental conditions were extreme enough during the relevant period of time to trigger
application of the danger creation doctrine. Id. at *40. While the plaintiffs claimed that they
suffered from various physical and psychiatric conditions, and that these conditions were
aggravated by environmental exposure, no competent evidence had been introduced to establish a
causal connection between environmental exposure and the claimed physical and psychiatric
conditions. Id. at *41-42. If, as in Kneipp v. Tedder, 95 F.3d 1199 (3d Cir. 1996), plaintiffs had
demonstrated that they suffered complications from hypothermia as a result of defendants’ seizure
of their property, their claim might have prevailed. Id. at 41. However, without such evidence, no
causal connection could be established and the environmental exposure claim failed for lack of
proof. Id. at *41-42.
Because the homeless individuals dwelling in camps in culverts and under bridges in the City are
already dwelling in dangerous areas and their property serves them scant protection from physical
violence, as in Sanchez, it is unlikely that a potential plaintiff would be able to produce evidence
that they were exposed to increased violence as a result of seizure of their property. In addition, the
Memorandum to Chief Dewey Page 17
August 26, 2014
Subject: Legality of Anti-Car Habitation, Unlawful Camping Ordinance, Anti-Panhandling
Ordinance; Authority of UPD to Oust Transient Groups from Public Areas; and Potential
City Liability for Transient Camp Sweeps
fact that these individuals are already dwelling in areas fraught with violent incidents suggests that,
even if an individual were attacked after a property seizure, that seizure would not be the cause of
the attack. While the City should be mindful about the effect of extreme weather conditions on the
homeless population in the aftermath of a camp sweep, any potential plaintiff would have to show
that the City’s actions caused an event of sunstroke or hypothermia. Given that these individuals
already dwell outdoors, it might be difficult to show that the City increased their exposure to
extreme environmental conditions that could result in injury or death unless the City has, for
example, seized warm clothing during cold weather conditions.
UFD/UVFD REPORT
January 1st – June 30, 2014
State Street Fire
7 5 10 2 0
235
37 2 37
87
8 20 10 3 4 10 2
528
24 3
68
258
34 0
Incidents by Type - Jan. 1 - June 30, 2014 UVFD
Incidents by Type - Jan. 1 - June 30, 2014 UFD
UVFD Calls = 450 UFD Calls = 944 Total Calls = 1,394
UVFA ON THE JOB
CALLS BY PERCENTAGE
•There were a total of 1,394 emergency
responses in the Ukiah Valley Fire Authority
response area.
•450 of those emergency responses were in the
Ukiah Valley Fire District’s response area.
•944 of the emergency responses were in the
Ukiah City fire Departments response area.
•This equates to 68% of the emergency
responses in the City of Ukiah, and 32% of the
emergency calls in the Ukiah Valley Fire
District.
UVFD=450
32% UFD = 944
68%
Calls by Percentage: 1/1/2014 - 6/30/2014
UFD ENGINE 6552 at
the scene of a vehicle
accident.
UVFD ENGINE 6585 at
the scene of lumber
mill fire.
UVFD / UFD EQUIPMENT MILEAGE 4/1/2014
Through 6/1/2014
BEGINNING ENDING TOTAL
STATION VEHICLE MILEAGE MILEAGE MILES
641 6400 61354 63815 2461
641 6403 80247 83917 3670
641 6504 41166 43010 1844
641 6505 50367 52891 2524
641 6456 147866 147982 116
641 6440 38247 38899 652
641 6460 46194 47205 1011
641 6481 8886 9952 1066
641 6468 69678 69678 0
641 6580 55945 58676 2731
642 6547 25786 25861 5
642 6490 19514 20046 532
642 6483 94220 94466 246
642 6485 87040 87182 142
642 6520 07727 07727 0
642 6560 53216 53354 138
643 6584 68676 69364 688
643 6552 18421 21210 2789
643 6472 29285 29390 105
643 6545 75732 76716 984
643 6431 27213 27396 183
Total UVFD mileage -10184 Total UFD mileage – 11703
Mileage by Percentage of Responses
•The City of Ukiah vehicles were driven
11,703 or 53% of the total miles.
•The Ukiah Valley Fire Districts vehicles were
driven 10,184 or 47% of the total miles.
•There was a total of 21,887 miles driven by
all vehicles in the Ukiah Valley Fire
Authority.
•The Ukiah Valley Fire District drove their
vehicles15% more to emergency responses
then the City of Ukiah or 3,180 miles.
32%
47%
68%
53%
Mileage Comparison 1/1 - 6/30/2014
UVFD UFD
Percentage of Calls Percentage of Miles
Village Circle Apartment Fire
City of Ukiah
Sick Leave, Comp and Vacation
1-1-2014 thru 6-30-2014
Total Sick Leave usage 792 hrs. or 33 days
Total Vacation Usage 1224 hrs. or 51 days
Total Comp Time Usage 2880 hrs. or 120 days
Total time off 4896 hrs. or 204 days
Average of 544 hrs. or 22.7 days per person
Ukiah Valley Fire District
Sick Leave, Comp and Vacation
1-1-2014 thru 6-30-2014
Total Sick Leave usage 324 hrs. or 13.5 days
Total Vacation Usage 744 hrs. or 31 days
Total time off 1068 hrs. or 44.5 days
Average of 42.72 hrs. or 8.9 days per person
Vehicle Accident Vichy Springs Road
COST OF OT
$26,529.05
1,306.00 OT
HOURS
COST OF OT
$39,600.31
1,291.50 OT
HOURS
Total Overtime (OT) Hrs. & Cost
UFD 1/1 - 6/30/2014 UVFD 1/1 - 6/30/2014
OVERTIME HOURS WORKED
Total overtime worked by UVFD = 1305 hrs or 54.4 days
Total overtime cost to UVFD = $26,529.05
Average Cost per day for overtime = $487.66
Total overtime worked by UFD = 1291.50 hrs or 53.8 days
Total overtime cost to UFD = $39,600.31
Average cost per day for overtime = $736.06
Overtime Hours worked By Rank
UVFD Overtime hours worked UFD Overtime hours worked
Captain – 203.5 hrs. Captain – 324 hrs.
Captain – 180 hrs. Captain – 274 hrs.
Captain – 180.25 hrs.
Engineer – 194 hrs. Engineer – 190.5 hrs.
Engineer – 150.50 hrs. Engineer – 182.50 hrs.
Engineer – 196 hrs.
Firefighter – 48 hrs.
Firefighter – 76 hrs.
Total Overtime Hours = 1,305 Total Overtime Hours = 1,291
Total Overtime Cost = $26,529.05 Total Overtime Cost = $39,600.31
Overtime versus Time off
TOTAL TIME OFF COMPARED TO OVERTIME WORKED
UVFD Personnel total Overtime worked = 1,305 hrs.
UVFD Personnel total Vacation and Sick Leave used = 1,068 hrs.
Extra Hours worked covering for UFD employees = 237 hrs.
UFD Personnel total Overtime worked = 1,291 hrs.
UFD Personnel total Vacation and Sick Leave used = 2016 hrs.
Extra Hours worked covering for UFD employees = 0 hrs.
UKIAH VALLEY FIRE AUTHORITY
