Legislative Matter

Miami-Dade Legislative Item
File Number: 122354

Printable PDF Format

File Number: 122354

File Type: Ordinance

Status: Amended

Version: 0

Reference:

Control: County Commission

File Name: OVERNIGHT CAMPING ON COUNTY PROPERTY

Introduced: 11/27/2012

Requester: Internal Services

Cost:

Final Action:

Agenda Date: 12/18/2012

Agenda Item Number: 7D

Notes:

SEE 130012 FOR FINAL VERSION AS ADOPTED

Title:

ORDINANCE AMENDING CHAPTER 21 OF THE CODE OF MIAMI-DADE COUNTY, FLORIDA CREATING ARTICLE XVIII, SECTION 21-286 PROHIBITING OVERNIGHT CAMPING ON COUNTY PROPERTY; PROVIDING FOR PENALTIES FOR VIOLATIONS; PROVIDING SEVERABILITY, INCLUSION IN THE CODE, AND AN EFFECTIVE DATE (SEE ORIGINAL ITEM UNDER FILE NO. 121949)

Indexes:

NONE

Sponsors:

Lynda Bell, Prime Sponsor

Sunset Provision: No

Effective Date:

Expiration Date:

Registered Lobbyist:

None Listed

Legislative History
Acting Body	Date	Agenda Item	Action	Sent To	Due Date	Returned	Pass/Fail

Board of County Commissioners	12/18/2012	7D	Amended
REPORT:	(SEE AGENDA ITEM 7D AMENDED; LEGISLATIVE FILE NO. 130012.)

Board of County Commissioners	12/4/2012	7N	Deferred		12/18/2012		P

Office of the Chairperson	11/29/2012		Deferrals
REPORT:	The Sponsor requested deferral of this item to the December 18, 2012 BCC meeting.

County Mayor	11/27/2012		Assigned	Ed Marquez	11/27/2012	11/27/2012

County Mayor	11/27/2012		Assigned	County Attorney	12/4/2012
REPORT:	ISD (AMEND TO LEG# 121949) (ASST. COUNTY ATTY: DANNY FRASTAI) (BCC Sponsor: Cmsr Bell )

County Attorney	11/27/2012		Assigned	Daniel Frastai

Infrastructure and Land Use Committee	11/15/2012	1F4 Amended	Forwarded to BCC with a favorable recommendation with committee amendment(s)				P
REPORT:	Assistant County Attorney Geri Bonzon-Keenan read the foregoing proposed ordinance into the record. Chairwoman Edmonson opened the public hearing on the foregoing proposed ordinance. Ms. Terry Coble, Policy and Programs Director for the Miami Coalition for the Homeless, appeared before the Committee and spoke in opposition to the foregoing proposed ordinance. She noted the organization’s Executive Director was present as well. She said they were requesting that the ordinance be amended because they were concerned with its impact on the homeless. She pointed out that its language provided no exception for people who had no place to go. She noted the shelters in Miami-Dade County were full and had long waiting lists as more and more people, including families and members of the armed forces, were losing their homes as a result of the economic situation. She said that these people were subject to criminal charges for doing certain things in public even though they had no choice. She requested that the ordinance be amended to provide that homeless people must be offered a place to stay before they could be arrested. She urged the commissioners not to subject a person who was helpless from an economic perspective to criminal sanctions. Ms. Renita Holmes appeared before the Committee in opposition to the foregoing proposed ordinance. She referred to the Occupy Movement and stated that during that time women were raped, overdosed, or were subject to violence in the tents. She pointed out that homeless women were having difficulty securing places in the homeless shelters which had more places for men. Therefore, the homeless women preferred to camp out near the Government Center which was one of the safest areas for them. She urged the commissioners to consider the impact of this ordinance on homeless women before approving it. Mr. Daniel Palugyai, Attorney with the American Civil Liberties Union (ACLU), 4500 Biscayne Blvd, Miami, appeared before the Committee in opposition to the foregoing proposed ordinance, noting it would negatively affect the homeless. He stated that it could not withstand constitutional challenges as this type of ordinance prohibiting overnight camping had been ruled unconstitutional before. He said that the police could pursue criminal activity and make arrests on private property, but an ordinance targeting life-sustaining, harmless, non-criminal activities on public property was unlawful. Chairwoman Edmonson closed the public hearing after no one else appeared wishing to speak. Chairwoman Edmonson opened the floor for questions or comments from members of the Committee. She asked whether this ordinance was proposed by staff and if staff consulted with the Homeless Trust before putting it forth. Mr. Lester Sola, Director, Internal Services Department, indicated that the department had worked with the Homeless Trust and with the County Attorney’s Office to ensure that this ordinance did not infringe on anyone’s rights. He stressed that this ordinance only addressed activities carried out on County properties and defined camping as the use of outdoor space for living accommodation purposes, including but not limited to setting up of any tents, shacks or shelters for sleeping activities. Chairwoman Edmonson asked how the Pottinger case would impact the proposed ordinance. Assistant County Attorney Daniel Frastai indicated that a case was decided after the Pottinger case by the 11th circuit appellate court, which approved this type of legislation. Therefore, the County Attorneys were confident that the proposed ordinance was legally sufficient. Chairwoman Edmonson inquired whether we should not at least offer some sort of shelter or assistance to the homeless people before arresting them. Assistant County Attorney Frastai advised that although the ordinance did not explicitly mandate this, it did instruct police officers to issue a warning to those camping on County property before arresting them. Chairwoman Edmonson pointed out that the ordinance made it criminal to be homeless. Assistant County Attorney Frastai noted the proposed ordinance mirrored a state statute on trespassing. He indicated that under this statute anyone could be arrested for trespassing whether or not they were homeless. Commissioner Jordan asked whether the sponsor would be willing to entertain the proposed amendment. Commissioner Bell pointed out that the proposed ordinance pertained to overnight camping and not to the homeless. She said that they had worked with the Homeless Trust in crafting this legislation, and they were not proposing anything new. She said that she was not opposed to instructing police officers through the Police Department’s Standard Operating Procedures to offer to take the homeless to shelters before arresting them. However, Commissioner Bell reiterated that the proposed ordinance was aimed at overnight camping, noting some comments were made earlier which proved how dangerous such camping sites could be, and how necessary this legislation was. Assistant County Attorney Frastai reiterated that the County Attorneys believed this item was legally sufficient and constitutional. Commissioner Jordan asked the ACLU Attorney to respond to Assistant County Attorney Frastai’s comments regarding the decision by the 11th circuit appellate court which found that this type of legislation was constitutional. Mr. Palugyai stated that although the Jewel decision distinguished Pottinger, it did not overrule Pottinger. He explained that in Jewel, County shelters in Orlando were unable to prove that they were fully occupied, so the homeless people had an alternative to sleeping in the park. He pointed out that this was not the case in Miami, where homeless people sometimes have no alternative to sleeping on the streets because the shelters are full. He noted Pottinger and Jewel were consistent in that they found that if homeless people could be accommodated in shelters, they had to go to shelters; however, if the shelters were full, the homeless people had no choice but to sleep on the streets and it would be unconstitutional to arrest them for doing so. Commissioner Jordan asked the Assistant County Attorney to explain the difference between camping and homeless people sleeping on the street. Assistant County Attorney Frastai explained that the ordinance specifically defined camping as follows: someone would have to be using outdoor space for living accommodation purposes, including but not limited to setting up any tents, shacks, or shelters for sleeping activities, or making preparations to sleep, including the laying down of bedding for the purpose of sleeping. He pointed out that the proposed ordinance only applied to County property, and not to all Miami-Dade County, so it would not prevent the homeless people from going across the street to sleep. He stated that in the Pottinger case the homeless people had no other alternatives. Commissioner Jordan noted she disagreed with the proposed ordinance because there had been incidents in the past in which people who were sleeping on public property were arrested. She stated that this proposed ordinance could have unintended consequences, and cause some people, even families, to be harassed. For this reason, Commissioner Jordan said, she would prefer to amend the proposed ordinance to instruct police officers to work with the homeless shelters to place homeless people rather than arresting them. She added that if the shelters were full, the police officers should not be able to arrest the homeless people. Pursuant to Chairwoman Edmonson’s inquiry, Assistant County Attorney Frastai confirmed that the proposed ordinance applied to individuals and to groups. Chairwoman Edmonson noted she would prefer for the proposed ordinance to only apply to groups, and not to individuals. Nevertheless, she said that she would support it because she agreed with its intent. Commissioner Sosa said that if the sponsor accepted the amendment, the Board should still consider what to do if the homeless person refused to go to a shelter. She noted other counties and even states were sending their homeless people to Miami-Dade County. Although the Homeless Trust had come a long way, there must be some order, she stated. Commissioner Sosa urged the sponsor to accept the amendment, but said that if the police offered to send the homeless to shelters and they refused, this was a problem. On the other hand, if the shelters were full, the homeless would still have to move, because they would be prevented by law from sleeping on the streets. She noted she would support the item with the amendment if it addressed what would happen (1) if the homeless people refused to go to a shelter, and (2) if the shelters were full. She reminded her fellow commissioners that the Board had approved a special shelter for homeless veterans. Commissioner Barreiro pointed out that in the Pottinger case a zone was set up for homeless people, noting it was necessary to devote specific locations to people who found themselves in these unfortunate circumstances. He said that hopefully once the new Camillus House was completed, sufficient space would be available to accommodate the homeless even in the courtyard. In the meantime, he stated, he would support the item. Commissioner Bell said that she appreciated the comments, but pointed out that the original proposed amendment virtually nullified the legislation, because it excluded the homeless entirely. On the other hand, she indicated that she was prepared to accept the amendment proposed by Commissioners Jordan and Sosa and instruct police officers to make a good faith effort to ensure that the homeless people were offered the opportunity to be placed in shelters. She reiterated that the intent of the legislation was to prevent overnight camping and egregious behavior, noting this legislation was not anti-homeless. However, she pointed out that the homeless did not comprise a homogeneous group of people: some had substance abuse problems, some had mental illnesses, and some were just going through a difficult time economically. She said that many homeless people refused to go to shelters, and the Board would have to decide what to do about these cases. Assistant County Attorney Bonzon-Keenan said that the attorneys wanted to confirm that the amendment was approved, and if so what it should provide. She said that their understanding was that the individual should be offered space at a homeless shelter; if space was not available or the individual refused to go to a shelter, the individual still had to leave the premises. Commissioner Bell noted the Administration should work with the Police Department to create a Standard Operating Procedure to ensure that police officers made a good faith effort to take the homeless people to a shelter rather than arresting them, as the ordinance’s intent was not to be punitive towards the homeless. Commissioner Sosa said that if the homeless people refuse to go to a shelter after the offer is made, they should leave the premises; however, if there is no space in the shelters, they should not be forced to leave the premises. Commissioner Jordan said that she did not believe a person could be forced to go into a shelter. The police officer would have to contact the Homeless Assistance Center for help with placing the homeless people, but she stressed that they should not be arrested if no space was available at the shelters or if they refused to go to a shelter, because this would put an undue burden on the homeless and on the detention centers. Chairwoman Edmonson noted she would support the proposed ordinance for the time being to allow it to be considered by the full Board. In the interim, she and her staff would research this matter fully, she indicated. Assistant County Attorney Bonzon-Keenan asked whether the Committee members wished to forward the item to the full Board with or without the amendment. Commissioner Bell reiterated that the Administration should work with the Police Department to create a Standard Operating Procedure to ensure that police officers made a good faith effort to take the homeless people to a shelter rather than arresting them, as the ordinance’s intent was not to be punitive towards the homeless. Hearing no further questions or comments, the Committee members proceeded to vote on the foregoing proposed ordinance, as amended.

Legislative Text

TITLE
ORDINANCE AMENDING CHAPTER 21 OF THE CODE OF MIAMI-DADE COUNTY, FLORIDA CREATING ARTICLE XVIII, SECTION 21-286 PROHIBITING OVERNIGHT CAMPING ON COUNTY PROPERTY; PROVIDING FOR PENALTIES FOR VIOLATIONS; PROVIDING SEVERABILITY, INCLUSION IN THE CODE, AND AN EFFECTIVE DATE

BODY
WHEREAS, this Board finds that it is in the interest of the County to maintain County property in an attractive and intact condition, readily available for the enjoyment of all of its visitors; and

WHEREAS, the County has an obligation to maintain its property clean, safe and publicly accessible in accordance with the requirements of law; and

WHEREAS, County property is an inappropriate setting for overnight camping activities for reasons that include, but are not limited to, the lack of adequate means for disposing of waste and access to utilities; and

WHEREAS, overnight camping in areas not equipped for such activities leads to the physical deterioration of such areas; and

WHEREAS, prohibiting overnight camping on County property would help keep County property in an attractive and intact condition by reducing wear and tear on these areas; and

WHEREAS, prohibiting overnight camping on County property would also help keep these areas accessible to visitors,

NOW, THEREFORE, BE IT ORDAINED BY THE BOARD OF COUNTY COMMISSIONERS OF MIAMI-DADE COUNTY, FLORIDA:

Section 1. Article XVIII, Section 21-286 of the Code of Miami-Dade County, Florida is hereby created within Chapter 21, Offenses and Miscellaneous Provisions, to read as follows.

ARTICLE XVIII. PROHIBITION ON OVERNIGHT CAMPING

Sec. 21-286 Prohibition on Overnight Camping

(1) Except as otherwise provided for in this Code, there shall be no overnight camping on County property. Overnight camping is defined as the use of outdoor space for living accommodation purposes, including but not limited to, setting up any tents, shacks, or shelters for sleeping activities or making preparations to sleep (including the laying down of bedding for the purpose of sleeping), from the hours of sunset to sunrise. The provisions of this chapter shall apply to the incorporated and unincorporated areas of Miami-Dade County.

(2) Any person violating this section shall, upon being warned by a County official or a law enforcement officer, cease the prohibited activity. If the person continues the prohibited activity after such warning, the official or law enforcement officer may direct the individual to leave the premises. Any individual who does not leave as directed is subject to arrest for trespassing pursuant to Chapter 810.09 Florida Statutes.

>>(3) Any homeless person violating this section shall be offered an opportunity to go to a homeless shelter by a County official or law enforcement officer.<<

Section 2. If any section, subsection, sentence, or clause of this ordinance is held invalid, the remainder of this ordinance shall not be affected by such invalidity.

Section 3. It is the intention of the Board of County Commissioners, and it is hereby ordained that the provisions of this ordinance, including any sunset provision, shall become and be made a part of the Code of Miami-Dade County, Florida. The sections of this ordinance may be renumbered or re-lettered to accomplish such intention, and the word "ordinance" may be changed to "section," "article," or other appropriate word.

Section 4. This ordinance shall become effective ten (10) days after the date of enactment unless vetoed by the Mayor, and, if vetoed, shall become effective only upon an override by this Board.

HEADER
Date:

To: Honorable Vice Chairwoman Audrey M. Edmonson
and Members, Board of County Commissioners
From: Carlos A. Gimenez
Mayor

Subject: Ordinance Prohibiting Overnight Camping on County Property

The item was amended by the members of the Internal Management and Fiscal Responsibility Committee at their November 14, 2012 meeting to include that any person violating this section shall be offered an opportunity to go to a homeless shelter by a County official or law enforcement officer.

STAFF RECOMMENDATION
Recommendation
It is recommended that the Board of County Commissioners (Board) adopt the attached ordinance which establishes Article XVIII, Section 21-286 of the Code of Miami-Dade County (Code) to prohibit overnight camping on County property.

Scope
Approval of this Ordinance will apply to all County property throughout Miami-Dade County.

Fiscal Impact/Funding Source
There is no fiscal impact to the County with the approval of this ordinance.

Track Record/Monitor
Not applicable as this item codifies the County�s policy on prohibiting overnight camping and does not approve or authorize the contracting with any vendor or require any additional administrative oversight by County staff.

MANAGER'S BACKGROUND
Background
This ordinance will prohibit overnight camping on County property, and specifically bans the use of County outdoor space for living accommodation purposes for sleeping activities (or making preparations to sleep) from the hours of sunset to sunrise. Any person found in violation of this law, will be warned to cease their activities. Further violation of this law is subject to arrest.

With approval of this ordinance, the County will help ensure the proper aesthetic maintenance and safety of our properties and facilities.

___________________________
Edward Marquez
Deputy Mayor