HomeMy WebLinkAboutSubmittal-District 3UNITED STATES DISTRICT COURT
S OUTHERN DISTRICT OF FLORIDA
CASE NO. 88-2406—CIV—MORENO
MICHAEL POTTINGER, PEI ER
CAR 1ER AND BERRY YOUNG,
Plaintiffs,
vs.
CITY OF MIAMI,
Defendant.
ADDENDUM TO SE1 fLEMENT AGREEMENT
The Plaintiffs, MICHAEL P01 FINGER, et al., and the class of Plaintiffs they represent
(hereinafter collectively referred to as "Plaintiffs"), and the Defendant, THE CITY OF MIAMI
(hereinafter "CITY"), by and through their respective undersigned counsel, agree to the following
addendum to the settlement agreement effective October 1, 1998. Subject to the approval of this Court,
except as hereinmodified, the terms and conditions of the Settlement Agreement effective' October 1,
1998 shall remain in full force and effect. The language underlined constitutes additions to the settlement
agreement and the language stricken constitutes deletions to the settlement agreement.
VII. T nw Enforcement Protocol
10. Definition of "Homeless Person". An individual is considered a "homeless person" if he or she
"lacks a fixed, regular, and adequate night time residence and has a primary night-time residency that is:
(a) a supervised publicly or privately operated shelter designed to provide temporary living
accommodations; (b) an institution that provides a temporary residence for individuals intended to be
institutionalized; or (c) a public or private place not designed for, or ordinarily used as, a regular sleeping
accommodation for human beings. The term 'homeless person' does not include any person imprisoned or
otherwise detained pursuant to an Act of Congress or a state law." 42 U.S.C. o11301, et seq. (1994). An
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officer is allowed to make reasonable inquiry to make this determination. For purposes of this
Addendum, any person identified as a registered sex offender under section 775.21 F.S. or sexual
predator under section 775.215, F.S. or Sections 21-277 to 21-21285, Miami -Dade County Code,
because they do not qualify for Available Shelter, is not afforded the protections under Section
VII, Paragraph 14, of the Settlement ApTeement.
11. Definition of "Available Shelter". An "available shelter" means a shelter for a period of
at least 24 hours, with a bed or a mat, at least three inches thick, at no cost to the homeless person, within
the territorial boundaries of the CITY or within one mile thereof, or if agreed to by the homeless person,
within Miami -Dade County, that treats homeless persons with dignity and respect, imposes no religious
requirements, and, unless agreed to by the homeless person, does not impose involuntary substance
abuse or mental health treatment as a condition for shelter.
14. Law Enforcement Protocol: The City hereby adopts a protocol to further protect the
rights of homeless persons, by limiting the circumstances under which arrests can be made, including the
handling of their personal property:
A. "Homeless Person Observed Not Engaging in Any Criminal Conduct:
There can be no arrest or detention. A law enforcement officer, social worker, or CITY
outreach worker a community outreach specialist may approach the homeless person and advise him
or her of shelter, services, or assistance which are then currently available. When the contact with the
homeless person has been initiated by a "citizen's complaint," the law enforcement officer may, whenever
appropriate, call for the assistance of outreach worker a community outreach specialist, who, if
available, may begin the process of engaging the homeless person in a dialogue which is intended to
advise the homeless person of shelter, services or assistance that is/are available. Required Records: (1) If
such an approach and advice concerning shelter, services, or assistance occurs by a law enforcement
officer, the law enforcement officer shall complete a Field Information Card, or its electronic
equivalent. In the case of a homeless person who refuses and who has refused assistance in the
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past thirty days, a new Field Information Card, or its electronic e uivale t is not ed to be
completed for each encounter as long as the prior -filed Field Information C d o
ic
equivalent, is updated with the new date of contact with the homeless person. Records Filing: A
copy of all required records shall be filed with the appropriate unit within the Miami Police Department.
B. Homeless Person Reasonably Believed to be Mentally 111: Where a homeless person
meets the criteria for involuntary examination under Florida Law (currently section 394.463, F.S.),
"Baker Act," a law enforcement officer may, in his or her discretion, take the homeless person to a
receiving thenearest receiving facility for involuntary examination. .Required Records: If the homeless
person is taken to receiving the nearest receiving facility for involuntary examination, a copy of the
forms required by section 394.463 (hereinafter "Baker Act Forms"), shall be filed with the nearest
receiving facility
d a Field Information
Card, or its electronic equivalent, to include the name.o a 'on and references that
a
Baker Acted shall be completed. Records Filing: A copy of all required records shall be filed with the
applicable unit within the Miami Police Department.
C. Homeless Person Observed Violating a "Life Sustaining Conduct" Misdemeanor:
1. "Life sustaining conduct" misdemeanors are those which a homeless individual commits
by the mere fact that he or she is without shelter, and must conduct life sustaining activities, such as
eating, sleeping, sitting, congregating, or walking in public.
2. If the homeless person described above is observed committing one of the below listed
"life sustaining conduct" misdemeanors, the law enforcement officer may warn the homeless person to
stop the unlawful conduct. If there is no "available shelter," no warning shall be given. If there is an
"available shelter," the law enforcement officer may advise the homeless person of its availability. If
there is an "available shelter," and the shelter has been offered to the homeless person, and that person
accepts this assistance, no arrest shall take place and arrangements shall be made to transport the
homeless person to the shelter. Only if there is an "available shelter" and the homeless person refuses to
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accept the shelter, or if the sole Available Shelter at the time is a shelter from which the homeless person
is barred because of his -or her own purposeful misconduct, criminal or otherwise, which occurred at that
shelter, may the law enforcement officer arrest the homeless person for a "life sustaining conduct"
misdemeanor. Required Records: (1) If a homeless person is transported to an available shelter,'the law
enforcement officer shall complete a Field Information Card, or its electronic equivalent,; (2) If an
arrest is made, an Arrest Affidavit shall be completed. Records Filing A copy of all required records
shall be filed with the appropriate unit within the Miami Police Department. However, if the homeless
person described above is observed committing one of the below listed "life sustaining conduct"
misdemeanors, and the life sustaining conduct misdemeanormisdemeanorcauses irnininent threat ofphysical infury to
the homeless person or other person(s) the law enforcement officer must warn the homeless person to
stop, and, if they refuse to do so, may arrest them regardless of whether there is Available Shelter.
3. The "life sustaining conduct" misdemeanors referenced above are as follows:
a. Being in park after hours. Current Provisions:, oo38-3 & 1-13, City of Miarni Code
("CMC"); 0162.22, F.S. (1994);
b. Public nudity where necessary to carry on the daily necessities of life, such as bathing or
responding to a call of nature. If the public nudity is done intentionally in plain view of others, the law
enforcement officer may arrest the person regardless of whether there is an Available Shelter. Moreover,
in no circumstance shall public nudity be allowed for a call of nature if there exists an open
ublic restroom within one-civarter of a 1 320 feet) of the homeless person
call of nature. Current Provisions: o800.03. F.S. (1994), o37-1, 38-62, CMC.
c.
d. Obstructing passage on sidewalks. Obstructing a street, road, or highway shall not be
construed to be a "life sustaining conduct" misdemeanor within the meaning of this protocol except that,
after one warning, no person or persons may lie on the sidewalk in a perpendicular fashion blocking the
sidewalk or a obstruct a sidewaik in such a way as to endanger other persons by requiring them to
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walk onto astreet wherebut for the obstruction such persoos would otherwise have been able to safely
walk on the sidewalk. Current Provisions: oo54-1 to 54-3, 37-3, CMC; o316.2045, F.S. (1994).
e. Vehicles, living or sleeping in. Current Provision: 037-4,
f. Loitering in Restrooms. Current Provision: 038-68, CMC;
Littering, except, if within 300 feet of a usable trash receptacle, a law enforcement officer
g.
must the homeless person to stop, and. if they refuse to do so may cite them e ardless of h
there is Available Shelter. Current Provisions: 04031314, Fla. Stat.; o22-6, 38-17, 38-63 CMC; and
h. Camping in parks. Current Provision: o3 8-71, CMC;
i. Use of facilities for other than intended purpose (e.g., sleeping on park bench). Current
Provisions: o38-54, CMC;
k. Trespass on "public property" other than structure or conveyance. Current Provision:,
o810.09(1), Fla. Stat. Trespass on private property or an "exempt public property" is not a "life
sustaining conduct" misdemeanor within the meaning of this protocol, and such violation should always
be treated either as specified under paragraph D or E below. A homeless persons' presence interior of an
"exempt public property" is not a trespass within the meaning of this paragraph where the homeless
person's activities are reasonably related to the governmental business activities normally performed
within these physical structures.
4. Nothing in this paragraph discussing "life sustaining conduct" misdemeanors shall
prevent an immediate arrest under o800.04, F.S., entitled, "Lewd, lascivious, or indecent assault or act
upon or in presence of a person child," if a law enforcement officer has probable cause to make such an
arrest.
D. Homeless Person Observed Violating a Misdemeanor (which is not classified above as
"Life Sustaining Conduct"):
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1. The "non -life -sustaining conduct" misdemeanors are those which a homeless individual
commits, but are not associated with "life sustaining activities," such as eating, sleeping, sitting,
congregating, or walking in public.
2. If the homeless person described above is observed violating a misdemeanor (which is
not classified in this Protocol as "life sustaining conduct"), the law enforcement officer may warn the
homeless person to stop the unlawful conduct, or, if the officer deems it appropriate, the officer may
detain or arrest the homeless person. A law enforcement officer may, in his or her discretion, approach
the homeless person and advise him or her of shelter, services or assistance which is then currently
available. If the law enforcement officer deems it appropriate, he or she may also offer to call aft
outreach worker a community outreach specialist to the scene so that the homeless person can be
transported to an "available shelter" that is appropriate for the homeless person's needs at that time.
Records required: (1) If a homeless person is transported to an available shelter, the law enforcement
officer shall complete a Field Information Card, or its electronic equivalent; (2) Nan arrest is made, an
Arrest Affidavit shall be completed; (3) If the law enforcement officer warns the homeless person to stop
the unlawful conduct, but no arrest is made, then the law enforcement officer shall complete a Field
Information Card, or its electronic equivalent; (4) If an approach and advice concerning shelter,
services or assistance occurs by a law enforcement officer, or if an outreach worker a community
outreach specialist is called, the law enforcement officer shall complete a Field Information Card, or its
electronic equivalent, except where a homeless person refuses assistance and has refused assistance in
the past thirty days,a new Field Information Card,or its electronic e uivalent d to be
completed for each encounter as long as the prior -filed Field Information Card, or its electronic
equivalent, is updated with the new date of contact with the homeless person. Records Filing: A copy of
all required records shall be filed with the appropriate unit within the Miami Police Department.
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E. Homeless Person Committing Felony Offense:
If a law enforcement officer has probable cause to believe that a homeless person is committing,
or has committed, a felony, the law enforcement officer may detain or arrest the homeless person.
Required Records: If an arrest is made, an Arrest Affidavit shall be completed. Records Filing: A copy
of all required records shall be filed with the appropriate unit within the Miami Police Depai latent.
F. Disposition of Personal Property Belonging to a Homeless Person who is Arrested .
1. The CITY shall respect the personal property of all homeless people. The Miami Police
Department and all other Departments including but not limited to Parks and Recreation and Solid Waste)
shall follow their own internal procedures for taking custody of personal property. In no event shall any
city official or worker destroy any personal property known to belong to a homeless person, or readily
recognizable as property of a homeless person (i.e., bedding or clothing and other belongings organized or
packaged together in a way indicating it has not been abandoned), except as permissible by law and in
accordance with the department's operating procedure, or if the property is contaminated or otherwise
poses a health hazard or obvious safety issue to CITY workers or to members of the public.
Notwithstanding any language in this Settlement Agreernent to the contrary, the CITY is not responsible
for taking custody of mattresses. When a homeless person is placed in a shelter, large and bulky
items.which are riot contaminated or otherwise pose a health hazard or obvious safety issue, and
that are not abandoned, shall be secured by an outreach worker and maintained in accordance
with existing outreach procedures.
2. The disposition of personal property shall never prevent a law enforcement officer from
effectuating an arrest authorized under the previous sections of this protocol. However, the following
safeguards shall be undertaken by the arresting officer or any other CITY agent or official to preserve the
property of a homeless person, to the extent feasible:
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a. The arresting officer shall always attempt to secure personal items such as identification,
medicines and eyeglasses and other small items of importance identified by the arrestee, which are not
large or bulky, in accordance with the police department's existing procedures;
b. The arresting officer shall ensure that large or bulky items (which are not contaminated or
otherwise pose a health ha72rd or olDvious safety issue to CITY officers or workers or to members of the
public) are not abandoned at the point of arrest, but rather secured by an outreach worker and maintained
in accordance with existing outreach procedures, or, if an outreach worker is unavailable, secured by the
arresting officer until an outreach worker becomes available to assume its maintenance in accordance
with existing outreach procedures.
VIII. Record Generation/Maintenance/Access
15. The CITY shall, within 30 days of the execution of this Settlement Agreement, adopt a
procedure for monitoring and accounting for its police officers' encounters with the homeless persons.
This procedure shall include the following:
(f) Records Generation — Field Information Cards, or their electronic eguivalent,shall be available
twice per calendar year to Plaintiffs' counsel at no cost for the six month period prior to the request, to
monitor and insure compliance with the Settlement Agreement and Addendum
X. Enforcement/Mediation
25b." The parties agree that the Addendum to the settlement agreement was made in good faith
and measurable and observable improvemen
o u ation will take time.
Therefore, no earlier than January 2, 2016, the parties may, mediate further modifications of the settlement
areement and Addendum, including addressing ated to the chronically homeless,a non-
binding mediation. Ifsuch matters are not resolved in mediation, either party may invoke the court's
jurisdiction with consent to having atte heard before a U.S. Magistrate Judge,to seek further
modifications to the settlement agreement given the established prima facie showing and finding by the
court.
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XII. Class Approval/Notice to Class Members
27b. Notice to the class of the Addendum shall be given by publicationin The Miami Herald,
El Nuevo Herald,and New Times on three different days, including oneweekend day, of hree
consecutive eeks, which shall not be less than a 1/4 page in the Local (Locale
n of each Daier. to
maximize the chance of actual notice to the class members. The costs of such notices shall be borne by
the CITY. The notice shall advise class members of the status of this case, and describe,_generally, the
proposed Addendum . The notice shall be subject to court approval. Class members shall have 30 days
following the fmal notice within which to file any written objections to the Addendum. The court shall
convene a hearing at the convenience of its calendar, but at least 30 days thereafter to consider any such
objections after which the court shall approve or disapprove the Addendum. The notice shall state the
date, time, and location of this hearing. The Court shall set the date for the hearing o consider objections
at the time it approves the content of the notice.
XIV. Court and City Commission Approval
29b. This Addendum to the Settlement Agreement shall not be effective until approved by the
City of Miami Commission and the Court. The Court shall retain jurisdiction to enforce the terms hereof.
XVI. Integration Clause
3 lb. The Addendum to the Settlement Agreement contains the entire agreement of the parties
reached on this date and supersedes all previous oral or written representations or agreements concerning
the Addendum. This Addendum to the Settlement Agreement shall not be supplemented by parol
evidence.
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DATED December 11, 2013.
BEN , E
Robbins, Tunkey, Ross et al.
Attorneys for Plaintiffs
2250 S.W. Third Avenue, 4th Floor
Miami, Florida 33129
Tel: (305) 858-9550
Fax: (305 858-7491
benjwaxman@aol.com
TORJA MENDEZ, CITY Al I ORNEY
N BI1TNER, DEPUTY EMERITUS
Attorney for Defendant, City of Miami
iami Riverside Center, Suite 945
444 S.W. 2nd Avenue
Miami, Flori a 33130
Tel: (305) 4 6 1800
Fax: (305)
wrbittne
THO , ESQ.
SCO ESQ. -
Cole, ott & sane P.A.
Atto y for the Defendant, City of
Dade dnd Centre LI — Suite 1400
Mi , FL 33156
Tel: 305) 350-5300
Fax: 05j 373-2294
o as.sco al.com
Sco
Renee .naflcs1dega1.com
Mary.rigau(@,cskleRal.com
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YANAN(EQ.
ACLU Foundation o orida, Inc.
Co -Counsel for Plaintiffs
4500 Biscayne Boulevard, Suite 340
Miami, FL 33137
Tel: (786) 363-2700
Fax: (786) 363.3108
micavanan@aclufl.ou
STEP SQ.
University of Mia Scho o Law
1311 Miller Drive
Coral Gables, FL 33146
Tel: (305) 282-4817
Schnably@law.rniami.edu
2 South Biscayne Boulevard, Suite 3400
Miami, FL 33133
Tel: (305) 376-6043
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