By Reggie Ellis @Reggie_SGN
VISALIA – A 2018 appellate court decision bars cities from arresting a homeless person for sleeping in a public park, but that doesn’t mean the city can’t regulate when and how they camp.
At its July 15 meeting, the Visalia City Council held the first reading or ordinance overhauling its municipal codes relating to parks and recreation areas. The purpose for the update is to limit homeless encampments to nighttime hours and give the city manager authority to close the parks for watering, maintenance, and situations deemed hazardous to public health.
City Attorney Ken Richardson said his office oversaw an Ad Hoc committee comprised of members of various city commissions to do a comprehensive update of park policies following the 9th Circuit Court of Appeals’ ruling in September. The decision stated prosecuting someone for sleeping in a public place is cruel and unusual punishment, a violation of that person’s 8th Amendment rights, unless the enforcing agency provides a low-barrier shelter for homeless people to sleep and they refuse to seek shelter there. The term low-barrier refers to a shelter that does not have any restrictions to enter. In other words, it does not require those seeking shelter to be sober, participate in a religious program, or separate families based on gender.
Since Visalia does not have a permanent, low-barrier shelter, Richardson said the committee began updating its parks ordinance to narrowly define times when homeless can camp in city parks.
“It’s commonly misconceived that this case told cities they had to allow homeless on all public properties at all time, that is simply not the case,” Richardson said.
Richardson said the ruling suggests several exceptions from removing homeless people from camping in parks. For example, the city is allowed to limit times and locations where homeless camping is allowed, the types of tents or structures they are allowed to use, and outright bans to protect environmentally sensitive areas, such as the banks of creeks and rivers.
The ordinance complies with the 9th Circuit Court’s decision that homeless camps can be banned from all parks if there is an available shelter for them to sleep at night. Under the ordinance, “available shelter” is defined as public or private shelter or similar accommodation, with an available overnight space, open to an individual or family unit experiencing homelessness, at no charge. If future low-barrier shelters were to reach capacity, those left without space would still be allowed to camp in public parks.
Once the ordinance passes, camping will only be allowed in parks for people experiencing homelessness and is limited to between 10 p.m. and 5 a.m. daily in most parks and from 8 a.m. to 8 p.m. or from 6 p.m. to 8 a.m., depending on daylight savings, at Lincoln Oval Park, Pappas Park, Provident Skate Park, Recreation Park, Rotary Park and Seven Oaks Park. Camps can be tents but can’t be tarps connected to city facilities such as fences and arbors. Homeless camps can be restricted to certain areas of the park to prevent damage to park amenities.
“At 6 a.m., tents need to come down, paraphernalia needs to be removed, and folks can use resources but must comply with same rules as citizens during the daytime hours,” Richardson told the council.
The ordinance would also give the city manager authority to close a park at any time for construction, maintenance, as well as hazards to healthy and public safety. Councilmember Phil Cox asked watering the park would fall under the reasons for closing a park.
“I don’t want to turn the water on them but we can say ‘We are going to water and you need to move’,” Cox said.
Richardson said there are many things that fall under the city manager’s authority to close the park, including installation of new equipment, flooding, and yes, irrigating landscaping was one of them. Homeless people are not allowed to camp in any waterways or riparian areas, such as dry creek bed or ditch.
The council also asked if the St. John’s Parkway would be considered a riparian water way where they city could ban camping. Richardson said St. John’s Parkway is not considered a city park but the area could fall under a future ordinance updating rules at other public spaces.
In addition to camping restrictions, the ordinance goes on to restrict the storage of personal property in parks, swimming and bathing in water features, smoking, littering, nudity, unleashed animals, glass containers, amplified music. Other updated rules include prohibiting fires, fireworks, firearms, commercial advertising, golfing, and the use of vehicles, generators, etc. in the parks.
At any time, an individual can be suspended from a park for up to 12 months for disorderly conduct including drug possession, prostitution, assault, vandalism, indecent exposure, etc.
“This is a tree we’re trying to chop down and it’s going to take a bunch of chops to cut it down,” said Councilmember Brian Poochigian. “We are moving in the right direction and I’m glad it gives law enforcement tools to deal with this situation.”
Sgt. Brent Miller, officer in charge of the Homeless Outreach and Prevention Enforcement (HOPE) Team, said the updated ordinance will finally give officers a tangible guidelines to address homeless encampments in the park.
“When you have cops and lawyers talking they speak different languages,” Miller said. “This will make a big difference for us.”
Mayor Bob Link said he appreciated all of the city attorney’s hard work but would still like to see other ideas to find a more permanent solution to the issue of homelessness.
“All we are doing is moving them to somewhere else in the city,” Link said. “We need to figure out where we can start putting these people where they can stay.”
Richardson did said homelessness is an issue that has plagued urban areas for a decade or more and they are in constant litigation to solve it. In conversations with other city attorneys, Richardson said most municipalities are encountering activist judges who are not in favor of their efforts to keep public areas clear of homeless camps. To make matters worse, he said the adverse rulings in district court funnel cities into settlement rulings that often involve hefty payments and new regulations. He did say that his staff was in the process of updating ordinances with guidelines for public areas other than parks, such as city-owned buildings and property.
“The legal arena as we know has a number of precedences of what the courts will and will not allow,” Richardson said. “This will be a fluid ordinance, that will have issues arise and we will be back again. This is a good first step I hope.”
Vice Mayor Steve Nelson made the motion to do the first reading of the proposed ordinance. He said he was glad to finally have answers for people’s questions as to why the city has not removed homeless people from city parks.
“This is a small piece of a larger pie but a good first step,” Nelsen said. “There’s a lot of vagueness in it.”
The motion was seconded by Councilmember Phil Cox who noted a recent closure of Recreation Park resulted in moving out the homeless and cleaning it up in preparation for the Independence Day celebration on July 3. Cox said the weeklong closure brought life back to the park and he has started to notice that families are returning.
“I drive by Recreation Park twice per day. I saw two families the other day who were at the park,” Cox said. “It’s good to see families are back there playing again.”
The reading passed unanimously 4-0 as Councilmember Greg Collins was absent.