Loading...
HomeMy WebLinkAboutSubmittal-Daniel Palugyai-Pottinger LetterRTR ROBBINS TUNKEY Ross AMSEL RABEN &WAXMAN LAWYERS PLAZA 2250 SW 3 AVENUE 4TH FLOOR. MIAMI, FLORIDA 33129 WWW.CRIMLAWFIRM.COM TOLL FREE: 800-226-9550 DADE: 305-858-9550 BROWARD: 954-522-6244 FAX: 305-858-7491 March 2, 2015 Victoria Mendez, Esq. City Attorney, City of Miami 444 S.W. 2d Avenue, Suite 945 Miami, FL 33130 Re: Pottinger v. City of Miami, No. 88-2406-CIV-Moreno Dear Ms. Mendez: We are writing in regard to the newly approved Section 37-11 of the City of Miami Code, pro- hibiting Public Urination or Defecation,1 and a proposed Section that purports to ban camping on public property and rights of way.2 These ordinances violate the Consent Decree the City en- tered into in Pottinger v. City of Miami, No. 88-2406-CIV-MORENO. As you know, the Consent Decree was originally approved by the federal district court in 1998, and modified with its approval in 2014. The Consent Decree requires the City to "protect the constitutional rights of homeless persons," and to "prevent arrests and harassment of these per- sons, and the destruction of their property, inconsistent with the provisions" of the Consent De- cree.3 Among other things, those provisions limit the power of the City to arrest homeless per- sons for certain kinds of misdemeanors "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, sleep- ing, sitting, congregating, or walking in public."4 The Consent Decree also requires the City to "respect the personal property of all homeless people."5 The Consent Decree represents the set- tlement of over a decade of litigation triggered by the City's systematic policy of arresting home- less people and destroying their property simply for being homeless, which Judge Atkins found to have violated the Constitution. Pottinger v. City of Miami, 810 F. Supp. 1551 (S.D. Fla. 1992). The enactment of these ordinances clearly violates the Consent Decree. On its face the so-called camping ordinance makes every homeless person within the City of Miami subject to arrest I As we understand it, this ordinance will go into effect on March 14, 2015. 2 This proposed ordinance had its first reading on February 12, 2015. The draft of this Section that accompanied the agenda for that date is also labelled Section 37-11. See http://egov.ci.rniami.fl. us/Legistarweb/Attachments/79049.pdf . As we understand it, this proposed provision is tentatively scheduled to have its second reading before the City Commission on March 12, 2015. 3 Consent Decree, VI.9. 4 Consent Decree, VII.14.C.1. 5 Consent Decree, VII.14.F.1. Submitted into the public record for item(s) 5 R.. a on 3- la• 2os City Clerk ►�- 0oO5 - Sk)vm►t 1- DGrrWe,\ Poltin(q LA-1- rS Victoria Mendez, City Attorney Page 2 March 2, 2015 simply for being homeless. In practice, every activity covered by the Consent Decree, with its carefully negotiated limitations on the City's power to arrest, is covered as well by this ordinance — with none of the Consent Decree's protections. Although the City represented to the Court just a year ago that the revisions to the Consent Decree would not change its property protections ex- cept to allow disposal "where it's a security issue or contamination,"6 the proposed ordinance makes property that virtually every homeless person carries with them (for example, blankets) subject to police seizure if left unguarded for even a moment. Criminalizing homelessness not only violates the Consent Decree; it is counterproductive. There still are not enough spaces in shelters in the City for homeless people. Arresting those who are on the streets will only make it harder for them to gain housing and public benefits. On its face the other ordinance, now approved and scheduled to take effect next month, also makes homeless persons subject to arrest in circumstances that are inconsistent with the protec- tions of the Consent Decree.? For example, under the new ordinance, a homeless person who an- swered the call of nature in public could be arrested in the absence of available shelter, even though he or she did so discreetly and there was no public bathroom within a quarter mile. Such an arrest would be inconsistent with the Consent Decree. The Public Urination or Defecation Ordinance is particularly troubling given that Judge Moreno expressed concern that the Addendum did not solve the practical problem that bathrooms are not widely available to people who are homeless.8 Nevertheless, at the urging of the parties — includ- ing the City — Judge Moreno approved the pertinent provisions of the Addendum to the Consent Decree. This approval left the City free to use its powers to implement constructive solutions to the problems Judge Moreno noted: The City could (as the plaintiffs have long urged) open more public restrooms throughout the City. Instead, the City is attempting to use its power to unilater- ally modify the very provision that it urged the Court to accept. Enactment of these ordinances is in blatant disregard of the Consent Degree and in disrespect of the Court. Less than a year after the Court approved modifications to the Decree — the culmina- tion of a process initiated by the City — the City now seeks to use its legislative power to unilat- erally modify the limits the Decree places on the City's power to arrest homeless people or dis- pose of their property. In sum, any change to the Consent Decree's limitations on the power to arrest homeless people or seize their propprty . must cone through the process to which: the City agreed,. includingthe ban on initiating changes before January 2, 2016. If the City does not acknowledge this fact and act accordingly, we will take appropriate action to protect our clients' rights, including seeking Court involvement. 6 Proceedings on Joint Motion to Approve Settlement Agreement Before the Honorable Federico A. Moreno, Chief United States District Judge, Pottinger v. City of Miami, No. 88-2406-CIV- MORENO, Feb. 28, 2014, at 37 ("as far as the property is concerned, this settlement agreement does not change the original agreement. The only time the City can do anything with property is where it's a security issue or contamination.") (Counsel for City). 7 Section 37-11 ("Public Urination or Defecation Prohibited; Exceptions; Penalties"). 8 Id. (bathrooms "have to be available. Not just to the homeless .... [I]f you have a home and you have money, you go to the restaurant, you pay your meal and the restroom is yours. But if you're homeless, it isn't" available). submitted into the public ROBBINS, TUNSEY, ROSS, AMSEL, RABEN & WAXMAN, ���Otd for item(s) S(Z• - _ on _3- I2.-20K• City Clerk Victoria Mendez, City Attorney Page 3 March 2, 2015 As noted in our letter of February 19, 2015 (to which we have requested a response by today), we have made repeated efforts to meet with the City to discuss implementation of the Consent Decree, to no avail. We still wish to schedule such a meeting, and we would be happy to discuss as well the concerns we have set out in this letter. cc: George K. Wysong, Assistant City Attorney Warren Bittner, Deputy Emeritus City Attorney Thomas E. Scott, Esq. Benjamin Waxman, Esq. Stephen Schnably, Esq. Dante Trevisani, Esq. Submitted into the public record for item(s) 512• on 3 - I Z• Zols . City Clerk ROBBINS, TUNTEEY, ROSS, AMSEL, RABEN & WAXMAN, P.A. RTR ROBBINS.TUNKEY Ross AMSEL RABEN. &WAXMAN LAWYER'S PLAZA 2250 SW 3 AVENUE 4TH FLOOR MIAMI, FLORIDA 33129 WWW.CRIMLAWFIRM.COM TOLL FREE:.800-.226-9550 DADE303-858-9550 B RO WARD: 954-522-6244 FAX: 305-858-7491 February' 19, 2015 Victoria Mendez City Attorney, City of Miami 444 S.W. 2nd Avenue, Suite 945 Miami, FL 33130 Re: Pottinger v. City of Miami, No. 88-2406-CIV-Moreno Dear Ms. Mendez: As you are aware, under the Pottinger Settlement Agreement and Addendum to Settlement Agreement, the City of Miami is required to generate and maintain records of all City of Miami police arrests and detentions of homeless persons and encounters with homeless persons which result in a warning or referral. Over the past seven months, Plaintiffs' counsel have attempted, without success, to arrange a meeting with your office to discuss the implementation of the Addendum to Settlement Agreement and obtain Field Information Cards accounting for police encounters with homeless persons, and other relevant documents and information. This letter serves as a formal demand for immediate access to the Field Information Cards that the City of Miami is required to maintain and make available under the Pottinger Settlement and Addendum. While we are entitled to these records based on the Settlement Agreement, this letter is also a Public Records Act request, pursuant to Florida Statutes section 119.07 et seq., for the following: (1) the Field Information Cards, (2) the Standard Operating Procedures adopted by the Miami Homeless Assistance Program and its Community Outreach Specialists for implementing the Pottinger Addendum to Settlement Agreement, and (3) the Standard Operating Procedures/Departmental Order adopted by the City and its police department for implementing the Pottinger Addendum to Settlement Agreement, which would include a list of restrooms the City of Miami considers to be "public restrooms" as contemplated by the Addendum. Under section 15(a) and (b) of the Settlement Agreement, the City of Miami is required to generate and maintain records of all City of Miami police arrests and detentions of homeless persons, as well as records of all City of Miami police encounters with homeless persons. Further, under section 15(f) of the Addendum to Settlement Agreement, "Field Information Cards, or their electronic equivalent, 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 Submitted into the public record for item(s) SP- • a on 3 -I 2 - 206 . City Clerk Victoria Mendez, City Attorney February 19, 2014 Page 2 insure compliance with the Settlement Agreement and Addendum." Plaintiffs' counsel advised you as early as August 5, 2014, that we expected the second batch of Field Information Cards in early September, and requested a meeting to go over the Field Information Cards in anticipation of their delivery. We followed up with further requests by emails dated October 15, 2014 and October 23, 2014. To date, the City has not provided these Field Information Cards or the documents that reflect the modifications in the Addendum to Settlement Agreement executed on December 11, 2013. For the past seven months, the City has frustrated Plaintiffs' counsel's attempts to meet and gain access to the requested records. Since July 2014, Plaintiffs' counsel have repeatedly, through emails and phone calls, attempted to secure a date on the calendar of Assistant City Attorney George Wysong and others at the City Attorney's office who we have been made to understand are essential to the conversation and obtaining the documents. While Plaintiffs' counsel have patiently awaited an opening on Mr. Wysong's calendar, the delay has unreasonably extended beyond seven months. Wysong's and the City's lack of responsiveness gives the impression that the City of Miami does not intend to comply with the provisions of the Pottinger Settlement Agreement and Addendum that require record maintenance and access. Please contact any one of us within the next ten days to provide us access to any and all Field Information Cards that were generated between February 27, 2014 and January 30, 2015, as well as other documents referred to in this letter. We still wish to schedule a meeting to go over questions we may have about the documents supplied, as well . as other concerns we have regarding implementation of the revised Settlement Agreement. If we do not hear from you, we will take other measures to enforce our clients' rights, including seeking Court involvement. Reectfully, tavtivr,tIvrN , Esq. Benjamin Waxman, F Stephen Sch.nably, Esq. Dante Trevisani, Esq. cc: George Wysong, Assistant City Attorney Warren Bittner, Deputy Emeritus Thomas E. Scott, Esq. ROBBINS, TUNKEY, ROSS, AMSEL, RABEN & WAXMAN Submitted into the public record for item(s) -� on 3 - l .- Wt5 . City Clerl