City attorney says the issues, including an allegation that the city has violated the plaintiffs’ Eighth Amendment rights, should be heard in U.S. District Court
A lawsuit the American Civil Liberties Union (ACLU) Foundation of Florida filed Sept. 30 against the City of Sarasota alleging the city’s “persistent efforts to criminalize the status of those who are homeless despite the lack of an available shelter and a deepening housing crisis” is headed to federal court, City Attorney Robert Fournier notified the city commissioners by email this week.
Writing in the morning of Oct. 7, Fournier advised the city board members that a Notice of Removal from the 12th Judicial Circuit Court to federal court was filed the previous afternoon.
In an Oct. 8 telephone interview with The Sarasota News Leader, Fournier pointed out, “The City of Sarasota is accused of violating a federal law. It just appeared to us — whether or not a federal law has been violated — that that should be determined by a federal court.”
Speaking on behalf of the six plaintiffs in the lawsuit, Michael Barfield, a paralegal with the office of Sarasota attorney Andrea Flynn Mogensen, told The Sarasota News Leader in an Oct. 7 telephone interview, “We’re fine” with the city asking to have the case moved to the U.S. District Court for the Middle District of Florida, in Tampa, although a Sarasota judge “may have more insights” into the local situation.
Fournier added that the case has been assigned to Judge Elizabeth Kovachevich. Typically, he said, a federal judge will review a filing and then schedule a case management conference. As of the morning of Oct. 8, he added, “Nothing has been scheduled.”
The lawsuit says that enforcement of a city ordinance prohibiting outdoor lodging “when there is no publicly available shelter violates the Eighth Amendment prohibition on cruel and unusual punishment.” All six of the plaintiffs are described in the complaint as lacking “a fixed, regular, and adequate nighttime residence” as well as a permanent residence.
The ordinance the suit cites is Section 34-41 of the City Code, which makes it illegal to lodge out of doors on public or private property without the permission of the property owner. The ordinance includes in that prohibition “the laying down of bedding, such as a blanket or sleeping bag or similar material for the purpose of sleeping.”
The lawsuit seeks a temporary restraining order and/or a preliminary or permanent injunction to prevent the enforcement of the ordinance “when there is no publicly available shelter.”
Additionally, the complaint says the city’s ordinance “criminalizing panhandling is facially unconstitutional because it contains geographical restrictions that are content-based in violation of the First Amendment.”
It is also more appropriate for a federal judge to make a determination on those allegations, Fournier told the News Leader. A discussion about a revised city ordinance on panhandling is expected to be on a City Commission agenda in November, Fournier said during the Oct. 5 City Commission meeting.
Fournier advised the city board not to suspend enforcement of the outdoor lodging ordinance while the case is being litigated. If the board agreed on a temporary halt to enforcement, Fournier added, “I think that somewhere in some prominent location you would see a tent city go up,” perhaps in Five Points Park. “Of course, Michael Barfield would be at the epicenter of all the drama,” Fournier added.
Barfield, who serves as vice president of the ACLU Foundation of Florida, has worked with attorney Mogensen in filing other lawsuits against the city related to homelessness and violations of the state’s Sunshine Laws, Fournier pointed out to the City Commission.
“I just want to say right upfront that after reading this [complaint], in my opinion, this lawsuit is not about protecting anyone’s constitutional rights. This lawsuit is about furthering the political agenda of Michael Barfield,” Fournier told the city commissioners this week. “This lawsuit is intended to create pressure on the City Commission to green-light the Marbut come-as-you-are shelter in North Sarasota.”
Fournier was referring to Robert Marbut, a nationally known consultant on homelessness issues who was hired by the city and Sarasota County in 2013 to analyze the community situation and provide recommendations. Among the latter, which he presented in November 2013, Marbut advised that a come-as-you-are shelter, similar to a Clearwater facility called Safe Harbor that he helped establish, should be constructed close to where the majority of the county’s homeless have been counted. Because most are in the city, Marbut said, and because the majority of service providers who could help the homeless also are in the city, the best place for the shelter would be in the city of Sarasota.
Barfield pointed out to the News Leader that in annual reports the city has submitted to the U.S. Department of Housing and Urban Development (HUD), city staff has written that the community needs a shelter, “and [the city] took federal money” to assist with the homeless.
“Consistently, going back to the late ’90s,” he continued, “the city actually identifies NIMBY-ism [not in my backyard] … [as] the biggest obstacle” to building a shelter in Sarasota.
“We know that a shelter is not the sole solution, by far,” Barfield added. The community also needs affordable housing, he pointed out, but the lack of such homes “is a key component to homelessness.”
Other reasons behind the city’s decision to move the case to federal court are related to “prior experiences with Mogensen/Barfield/ACLU lawsuits,” Fournier told the News Leader, though he said he could not elaborate at this time.
One of those cases, which is still being litigated, Fournier pointed out to the City Commission, alleges that in the fall of 2013, City Commissioner Susan Chapman participated in an unadvertised meeting with downtown merchants to discuss how to deal with the homeless and vagrants. City Commissioner Suzanne Atwell also was a defendant in the suit, but she settled out of court without admitting to any wrongdoing.
The primary factor in the new case, Barfield told the News Leader, is “whether there was an available shelter” at the time the plaintiffs were cited for lodging out of doors.
Barfield said he and Mogensen have data to support their plaintiffs’ claims that the Salvation Army in Sarasota did not have sufficient space on the nights in question, going back to January 2013. Through the end of September, he added, on 235 of approximately 280 nights, the Salvation Army’s facility was “well beyond maximum legal capacity.”
The lawsuit says, “Under the terms of a Conditional Use Permit issued by the City, the Salvation Army is not permitted by zoning to have more than 262 beds.” The complaint adds, “Under current zoning regulations governing mass shelters, the Salvation Army is required to have a minimum of 35 square feet of space for each of the 262 beds at the facility,” which is on 10th Street, just north of downtown Sarasota.
The lawsuit also notes that since approximately 2007, “the Salvation Army has designated 98 mats to be placed on the floor in the facility’s kitchen and in hallways each evening for the purpose of taking individuals off the street and, for a fee, providing them with a temporary shelter.”
In response to a city commissioner’s question this week, Sarasota Police Chief Bernadette DiPino said that all of her officers have been trained to offer shelter to any person found sleeping out of doors. “To my knowledge, we have never been turned down by the Salvation Army … Sometimes it’s on a mat in the kitchen area.” She added that she believes such an arrangement is preferable to being outside, especially in inclement weather.
“The Salvation Army does a wonderful job,” Barfield told the News Leader, “but they are well beyond their capacity on any given night.”
The lead plaintiff
Fournier explained to the City Commission this week that in August, a city police officer issued a trespass warning to the lead plaintiff in the case, David Cross, after the officer found Cross sleeping about 4 a.m. at Selby Public Library in downtown Sarasota. Fournier added that city laws allow an officer who observes a person pursuing a prohibited activity in a public place to issue a written trespass notice to that person. The action means the person must stay off the property for one year, or the person risks being arrested. The city trespass ordinance also allows a person to appeal to a Special Magistrate, Fournier continued. After such an appeal is filed, the city does not enforce the trespass warning as it awaits the outcome of the case.
(Barfield told the News Leader that while the City Attorney’s Office draws a distinction between the police issuing a summons or a Notice to Appear, and arrests, “a legal difference does not exist.” He added in an email to the News Leader, “The process that subsequently occurs is indistinguishable from a custodial arrest. It is recorded in the [FBI’s National Crime Information Center] database as an arrest …” During the telephone interview with the News Leader, he pointed out, “The only real difference is that [those cited] do not go to jail.”)
Fournier further explained to the City Commission that Barfield contacted Fournier about Cross’ trespass warning, because Barfield said Cross enjoys being a patron of the library. Before Fournier could even look into the matter, Fournier added, the Sarasota Police Department (SPD) received a public records request from attorney Mogensen, who informed SPD that she was representing Cross in an appeal.
When he researched the incident, Fournier continued, including statements of bystanders, “It seemed to be consistent that Mr. Cross was told that there was a shelter available” at the Salvation Army. However, one bystander apparently indicated the facility was full that night, Fournier added. Fournier then offered to withdraw the trespass warning that had been issued to Cross.
Although the trespass warning was in effect for only about one day, Fournier pointed out, he learned that Cross had difficulty entering the library the following week. “As far as I’m concerned,” he told the commissioners, that was an internal matter that did not involve the city.” (Sarasota County owns the library.)
Neither Cross nor two other plaintiffs in the case who had received trespass warnings from city police officers ever had been given a criminal citation for violating the outdoor lodging ordinance or for trespassing, Fournier said.
“The only adverse impact on these three plaintiffs was their inability to access Selby Library for one day,” he added. “I don’t think that not being able to go to the library for one day constitutes the type of cruel and unusual punishment that the 8th Amendment was designed to prohibit.”
The lawsuit says Cross was criminally prosecuted by the city in 2013 for lodging out of doors, but a judge dismissed that case. The lawsuit adds, “Mr. Cross is in need of shelter and lives in fear that each night he will be arrested by the City and criminally prosecuted for lodging out of doors or other criminal offenses for the life-sustaining activity of sleeping.”
The lawsuit also explains that when Congress approved the Homeless Emergency Assistance and Rapid Transition Housing (HEARTH) Act of 2009, it consolidated HUD assistance for the homeless into a single program known as the Continuum of Care (CoC) planning process. HUD then worked to expand the use of technology in creating a unified database to help the federal government and other agencies provide better assistance and funding to the homeless. The lawsuit points out that the Suncoast Partnership to End Homelessness is the lead agency in Sarasota County designated by HUD “to further the CoC agenda …” Annually, the Partnership collaborates with 28 local agencies to conduct a comprehensive survey of homeless adults in the county — the Point-In-Time Survey — the lawsuit adds. The 2015 survey found at least 1,365 homeless people in Sarasota County, the lawsuit says, adding that 1,106 of them — more than 75 percent — were in the city of Sarasota.
“I’ve never given a damn where the shelter goes,” Barfield told the News Leader. “We just have to forget the not-in-my-backyard mentality and figure out where we are going to put it.”