Loading...
HomeMy WebLinkAboutExhibit*Case 1:68-cv-02406-FAM Document 525-1 Entered on FLSD Docket 12/12/2013 Page 1 of 11 MTCHAEL POTTINGER, PETER CARTER AND BERRY YOUNG, Plaintiffs, vs. CITY OF MtANiT, Defendant. Plaintiffs UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA CASE NO. 88-2406-C1V--MORENO ADD +'NDUM TO SETTLEMENT AGREEMENT MICRAEL POTTI ?GER, nii 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 herein modified, the terms: and conditioii 1998 shall remain in full force and effect. The language agreement and the lasigns ge stricken derlined'cons Agreement effective October 1, tes additions to the settlement onstitutes deletions to the settlement agreement. . VII. Law Enforcement P f0. Definition of 'Homeless Person" Au individual is eonsidered a "homeless person" if he or she "lacks a .fixed; re zd adequatenight tine residence and has a primary nig timeresidency that is:. ) a supervised publicly or privately operated shelter designed to provide temporary living accomrrindatidns; an:i3lstitution that provides "a temporary residence for individuals intended to be. institutionalized; or (c) private place not designed for, or ordinaiily used as, a regular sleeping accommodation for human beings. The terin. 'homeless person' does not include any person imprisoned or otherwise: detained pursuant to. an Aot. of Congress or a state lawn". 42 U S.q. of 1301,.et seq.11994).. An Case 1:88-cv-02406-FAM Document 525-1 Entered on FLSD Docket 12/12/2013 Page 2 of 11 officer is owed 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, FS. or Sections 21-277 to 21-21285, Miami -Dade County Code, because they do not -Oualifv for Available Shelter, is not afforded the protections under Section VII, Paragraph 14, of the Settlement Agreement 11. Definition of !takkiaiIalile. Shelter : An n vailable 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 Geist lb the homeless person, within the territorial boundaries of the CITY Or within one Mile thereof, or if areed to by the homeless person, within Miarrii -Dade County, that treats homeless persons with di,gnityinci roSpect,'inipoSeS no religious requirements, and, unless agreed to by the homeless person, does not impose illizelUfititr-f substance abuse or mental health treatment as a condition for shelter 14 Law Enforcement Protocol The City hereby adopts a protocol further protect the rights ofhomeless persons, by limiting the.circurostances under which arrests canbe.made, including the handling of theirpersonal prperty "Homeless Person Observed Not Engaging in Any criminal Conduct There oari be no arrest or detention A laW enforcement officer; Sciefal -worker, or.CITY e*eash-werker a 'community outreach specialist may approach the homeless person and advise him or her. of shelter, sery-ibek or assistance which are then currentlyavailable.. When the contact with the homeless person has been initiated by a"Citiien's Complaintthe law enforcement officer may, whenever • appropriate, call for the assistance of outreach wOrker a corarramity outreach snecia.list, whO, if available, may begin the process of engaging the homeless person in a dialogue which is intended to advise the hoiiieless person of shelter, services or assistance that is/am: available..ReqUired Records: (1) If such On zapPrOaeli and; advice concerning shelter, serviees,, aSsiStance 'ocCursby.a law. enforcement officer, the law enforcement officer shall complete a Field Information Card, or its electronic equivalent; J±i the case of a homeless person who refii:ses andiiti has reftised aSsistaiieeli:the • Case 1:88-cV-02406-FAM Document 525-1 Entered on FLSD Docket 12/12/2013 Page 3 of 11 ast thirty days a nw Field Inf. halation Card. or its el Dtronic egwvalent i tiot reguired to be completed for each counter as long as the prior -filed Field Information Card. or its el ectronie 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 El: Where a homeless person meets the criteria for involuntary examination under Florida Law (cuveritly section 394,463, F.S.), "Baker Act," a law enforcement officer may, in his or her discretion, take the homeless person to a 4 _ receiving the nearest receiving facility for involuntary examination'. Required Records: If the homeless person is taken a tec6i\;:ifig the nearest receiving.facility for involuntary exaMination, a copy of the forms_ required. by section. 394463 (hereinafter 'Baker: Ant Forms"); Shall be filed with the nearest receiving facility M ntal I-Italth Cn-cis-Center.at Jaclzon Memorial Frospitaland a Field Information . • . ' Card, -Or its -eletironie eguiValent, to include the name, date, location, and referenceS. that the person was • Baker Acted shall be completed Records Filing A. copy of all requiredre-cords shall be filed with the applicable unit within the Miann Police Department C. Homeless Person Observed Violating "Life Sustaining Conduct" Misdemeanor "Life sustaining conduct" rnisdemea.nois are those which a homeless individual corm -nits by the mere fact that he or she is Without shelter, arid 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. [f there fito "a-vailable shelter," no warning shall be- given. Ifiiai S • "available shelter," the la* enforcement officer may advise the honieleS 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 a.spistance, no arrest shall take place and arrangement shall be made to transport the hOrneless person to the shelter. ;Only if there is an "available shelter" and: the homeless person refuses to -3 Case 1:88-cv-02406-FAM Document 525-1 Entered on FLSD Docket 12/12/2013 Page 4 of 11 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. Requirerl Records: (1) If a homeless person is transported to an available shelter," the law enforcement officer shall complete a Field Information Card, or it electronic equivalent.; (2) If an arrest is made, an Arrest Affidavit shall be completed. Records Filing: A copy of all required reeords shall be filed with the appropriate unit within the Miami Pollee Departinent. However. if the homeless . _ • - person described above is observed committing one of the below listed "life sustaininv conduct" ' •• Misdemeanersand the life sustaining conduct misdemeanor causes imininent threat ofphysical injury to the -homeless nersO.n or other personfs)., the law enforeernent officer must warn the homeless person to • . . stop; and, if thelfrefuSe to do so, may arrest them regardless of whether there is Available Shelter: 3. The life sustaining epriduerimsdemeariora referenced above are as follows: a. Being in parkat hours; Current ProviSionS:, 0638-3 & 1713, city of M anai. Code ('CMC");01.62.24ES;.(1.994); b. Publictuclity..whereneceiSary to carry on the daily neessities of life, such as bathing or . . responding to a ball of nature. If the public nudity is done -intentionally in plain view of others, the law enforcement offieer inay arrest the person regardless of whether thereis an AVailable Shelter; :1\43:ireoVer, . . in no circumstance shall Public nudity be anew:ea for -a call of nature if there exists an open public restroom within one -quarter of a mile (1,320 feet) of the homeless person performing a call Of nature. Current Provisions; o800.03. F.S. (1994), b37-1, 38762, -CMC. c. '••Firci1park3. Current Obstructing paSsage on: sidewalks. Obstructing a. street, read, et. higliWay_ Shall' riot he • construed tebealife sustaining Conduer thisdetheanor within the Meaning Of this protocol except that, after one WarriiIIOPPiteri or persons may. lie on the sidewalIdn *a perpendicular fashi&i blocking the sidewalk may ..Obstiiiet asidewaik in Stich a -way as to endanger other neraons therit to Case 1:88-cv-02406-FAM Document 525-1 Entered on FLSD Docket 12/12/2013 Page 5 of 11 walk onto a. street where, but for the obstruction, sucb persons would otherwise have 'been able to safely. walk on the sidewalk.- Current Provisions; o054-1 to 54-3, 37-3, .CMC; o316.2046, F.S, (1994). Vehicles, living or sleeping in. Current: Provision: 037-4, oitenng in Restroorns: Current Provision; n38.68, CIVIC; Littering, except, if within 300 feet of a usable trash receptacle, a law enforcement officer must wan the homeless person to stop_ and, if they refuse to do so; may cite them regardless of. Whether there is Available Shelter` Current Provisions: 0403 314, Fla. Stat; 022-6, 38-17, 38-63 C'Iv1.C,,and ided purpose (e.g., sleeping n 'public property" other than structure or conveyance. Current Provisi 0.09(1), : Fla. Stat: Trespass on private property or an ''exempt public property" .is not a "life sustaining conduct" nusderneanor within the meaning of this protocol, and such violation should always be treated either as specified under paragraph D or E below; Ahoiiieless persons' presenceinterior,of an "exempt public property" is not a trespass: with'; of this paragraphwhere the hornel sons activities are reasonably related_ to thegovernmental business activities normally performed 4 Nothing in this paragraph discussing "life sustaining . c prevent an immediate anest under a800.04., F,S ; entitled, "Lewd, :Iaseivioi upon' or in presence of a person ehild," if a law enfo arrest erient officerhasprobable cause to make such an D. • ,Hopeless Person Observed Violating a Misdemeanor (which is not `..olassiiied. above as "Life Sustaining Conduct Case 1:83-cv-02406-FAM Document 525-1 Entered on FLSD Docket 12/12/2013 Page 6 of 11 1. The •"non -life. sustaining conduct" misdemeanors arethose which a homeless individual commits, but are not associated with "life sustaining activities," such as eating, :sleeping, Sitting, congregating, br 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 homele,ss person. A law enforcement officer may, in his or her discretion, approach the homeless person and advise hiin or her of shelter, services or assistance which is then currently aysilableif the law enforcement officer deems it appropriate, he or she may also offer to call an outreach *worker a tommuniti outreach specialist to the scene so that the homeless person Can be transported to an 'available shelter" that s appropriate for the homeless person's needs at that time. Records required: (I) If a homeless person is transported to an available shelter, the law enforcement officer shall completeField hiformation Card, or its electronic equivalent, (2) If an 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:appi-caoli and adviee concerning shelter - services or assistance occurs ,by enforcement officer, or if an :OutrcaCh wCricek: a community " • ' . . • , • . outreach specialist is called, the law enforcement officer shall complete a Field Inforination Card, or its electronic equivalent, except where a homeless person refuses assistance and has refused assistance in the past thirtV days. anew Field Infortnatieri'Card. or its 6leetrolli. eqUivalent, is not required to be : completed for each :encounter's& lonaas the Prior -filed Field InforniStian card, its electronic equivalent, is undated 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. • : • 6 Case 1:88-cv-02406-PAM Document 525-1 Entered on FLSD Docket 12/12/2013 Page 7 of 11 Homeless Person Committing Felony Offense: 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 iriade,' est Affidavit shall be completed: Records Filing: A copy :: of all required records shall be Eled with the appropriate unit within the Miaini Police Department. Disposition of Personal Property Belonging to a Homeless Person who' is Arrested The CITY shall respect the personal property of all homeless peop1 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. hi no event shall any .. city. official Or worker: destroy any. personal property kiiowii to.beleng to a homeless person, or readily recognizable as Property of a hopeless person (i.e., bedding or clothing and:other belongings orgRnizrd 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 contat inated or Otherwise ise poses a healer hazard or obvious safety issue to CITY workers .or to of the public. Notwithstanding anylaiiguage in plus Settlenient.,Agreenieiit to thecontrary,theCITY is not responsible : • a homeless person is placed in a shiellter; large acid biilk_y_:.. which are not contaminated o • that are not:abandoned,.shall be secured by an outreach work with existing outreach procedures: sposition of personal property shall effectuating an arrest authorized under the previous s afeguards shall be undertaken by the arresting officer or any other CITY agent or official to preserve the or obvious safety issue; and d in accordance ever prey a Taw e ]forceraent officer fipm tocoi. However, the following Case 1:88-cv-02406-FAM Document 525-1 Entered on FLSD Docket 12/12/2013 Page 8 of 11 a. . The arresting officer shall.always attempt to secure personal items such as identification, ;medicines and eyeglasses and other small items of unportance identified by the arrestee, which are not large or bulky, in accordance with the police depa±nent s existing procedures; The arresting officer shall ensure that large or bully items (which are not contaminated or otherwise pose a health hazard or opvious 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 available; secured by the arresting officer until an outreach worker becomes available to assume; its ti aintenanee in accordance istang outreach procedures. VIIi Record freneration/MaintenancefA.ecess The CITY :shall, within:30 days of"the ex: procedure f©= mo ijfoii g and accounting for its polio This procedure shall include the following: cutio i of this„ Settlement Agreement, adopt a ters with the homeless persons: (f) . -: Records Generation 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 insure Compliance with the Settlement AQreenieiit and Addendum: 25b.' : The parties agree that the Addendum to the settlement agreenient.was made in good faith and theashrable anct observable iniprovernents to the City's homeless population will take time. Therefore, no earlier than January 2,_2016, the parties may mediate further modifications of the settlement a_zreement and Addendum including addressing issues related to the chro ealIy homeless, iri a non binding mediation. If such.niatters are not resolved in rived urisdiction; witi coiisen inodificatiO ivinz_anv matters heard before a U.S. Magstra ation, either party -may invoke the Court's o the settlement agre rent given the established Judge. to Seek further ie-showing and finding by the Case 1:88-cv-02406-FAM Document 525-1 Entered on FLSD Docket 12/12/2013 Page 9 of 11 XII. Class .Approval/Notice to Class Members 27b. Notice to the class of the Addendum shall be given by imblicationin The Miami Hera] , El Nuevo Herald, and New Times,' on three different days, including one Weekend day, of three consecutive weeks. which shall not be less than a 1/4 Dage in Local (Locales) sectionof each paper, th 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 ninposed Addendum . The notice shall be subject to court approval. Class members shall have 30 days following' the final 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 clays thereafter to consider any such objections after which the .0 birt shall approve or disapprove the Addendum. The notice shall state the date, time, and location of this hea.ring. The Court shall set the date for the hearing to Consider obiections at the timetimeitpproves the content of the notice. XIV. Comtand City COnnuission 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 terns hereof. VI. Integration Clause 3 ib. The Addendum to the Settlement Agreernent cOntains.the entire agreement of the -parties reached on this date and supersedes all-PreVinua. Oral or written representations or agreements concerning .th6 Addendum This Addendum to the Settlement Agreement shall not be supplemented by parol. evidenoe, 9 Case 1:88-cv-02406-FAM Document 525-1 Entered on FLSD Docket 12/12/2013 Page 10 of 11 DATED December 1, 2013. RDbbins, Ttinkey, Ross et al. Attorneys for Plaintiffs 2250 S.W. Third Avenue, 4th Floor Miami, Florida 33129 Tel: (305) 858-9550 Fax (305 858-7491 benjwaxmaneaol.com OR1A NIENDEZ, CITY" Al 1ORNEY 'ARRENI3ITTNER, DEPUTY EMERITUS ttorney for Defendant, City ofMiami Ivliatni Riverside Center, Suite 945 -444 S.W. 2nd Avenue MiaimF1ont 33130 Tel (3 05) 4 ' 6 1.00 Fax (305) . btttieria corn THO 0 , ESQ, SC ESQ. Cole, ott & ane, P.A. Att4dy i.e.'. the Defendant, City of Miami Dadejlnd Centrell —'Suite 1400 Mai,FL 33156 Tel: 305) 350-5300 Fax; j(3055 373-2294 Tho $co .ole es ra co 4ary kenee.nail@csidegal.corn " "igen kleRal:tom 10 Case 1:88-cv-02406-FAM Document 525-1 Entered on FLSD Docket 12/12/2013 Page 11 of 11 V AN A : " Foundation o orida, Inc.. Co -Counsel for Plaintiffs 4500 Biscayne Boulevard, Suite 340 Miami, FL 33137 Tel• (786) 363-2700 Fax: (786) 3633108 nikayanani aclufl.org University of :Mi Sc10 of Law 1311 Miller Drive.:. Coral Gables, FL :33146' Tel: (305) 282-4817 Scbnably@law.rniarni:edu ... ' ; : • T A ► _.' +t ATOP. ster 2 South Biscayne_Boulevard, Suite 3400 Miani, 'FL 33133 Tel;. (305) 376-6043