Instate Separation between Commercial Houses in Residential Neighborhoods
The state of California's Department of Social Services licenses over 25 different forms of mostly permanent, congregate care living in residential neighborhoods. All but two forms are required to have a minimum of 300 feet -- or 1000 feet -- of separation between the exterior walls of each property, and a licensee must obtain proof that it has verified its proximity with the local jurisdiction prior to being licensed.
Instead of following this precedent, when the state Legislature passed the health code for addiction treatment housing, the Legislature stated its intention was for the state to license houses "commensurate with local need." In 2007, Attorney General Jerry Brown issued an opinion that this language did not intend to place a cap on the number of houses or define a density of housing, paving the way for the state to license addiction treatment housing well beyond local need, when almost all other forms of Congregate Care have separation. These codes have enabled houses to locate next to and across the street from each other, and DSS to license as many as even 10 treatment houses for adolescents all within a square mile. Ironically, in some California neighborhoods, 300 feet of separation is every other house.
Nevertheless, the courts and federal government have determined that "overconcentration" of housing of one form of Congregate Care discriminates against the occupants of such housing by forcing them to live in less diverse communities dominated by those with similar disabilities. In Familystyle of St. Paul v. City of St. Paul (8th Cir 1991) 923 F.2d 91, “the Court upheld both the State’s and City’s group home dispersal requirements finding that they were designed to “ensure that mentally handicapped persons needing residential treatment will not be forced into enclaves of treatment facilities that would replicate and thus perpetuate the isolation resulting from institutions.” In its regulation of "structured sober living homes (in California, called "Recovery Residences"), Prescott, Arizona addressed overconcentration and was later investigated by the DOJ and HUD at the request of operators claiming discrimination. DOJ and HUD concluded that 800 feet of separation could be supported as nondiscriminatory ("DOJ, HUD Close Investigation On Prescott Sober Living Home Regulations"). In 2016, DOJ and HUD put out a nine page "clarification" on separation requirements:
Instead of following this precedent, when the state Legislature passed the health code for addiction treatment housing, the Legislature stated its intention was for the state to license houses "commensurate with local need." In 2007, Attorney General Jerry Brown issued an opinion that this language did not intend to place a cap on the number of houses or define a density of housing, paving the way for the state to license addiction treatment housing well beyond local need, when almost all other forms of Congregate Care have separation. These codes have enabled houses to locate next to and across the street from each other, and DSS to license as many as even 10 treatment houses for adolescents all within a square mile. Ironically, in some California neighborhoods, 300 feet of separation is every other house.
Nevertheless, the courts and federal government have determined that "overconcentration" of housing of one form of Congregate Care discriminates against the occupants of such housing by forcing them to live in less diverse communities dominated by those with similar disabilities. In Familystyle of St. Paul v. City of St. Paul (8th Cir 1991) 923 F.2d 91, “the Court upheld both the State’s and City’s group home dispersal requirements finding that they were designed to “ensure that mentally handicapped persons needing residential treatment will not be forced into enclaves of treatment facilities that would replicate and thus perpetuate the isolation resulting from institutions.” In its regulation of "structured sober living homes (in California, called "Recovery Residences"), Prescott, Arizona addressed overconcentration and was later investigated by the DOJ and HUD at the request of operators claiming discrimination. DOJ and HUD concluded that 800 feet of separation could be supported as nondiscriminatory ("DOJ, HUD Close Investigation On Prescott Sober Living Home Regulations"). In 2016, DOJ and HUD put out a nine page "clarification" on separation requirements:
"...if a neighborhood came to be composed largely of group homes, that could adversely affect individuals with disabilities and would be inconsistent with the objective of integrating persons with disabilities into the community. Especially in the licensing and regulatory process, it is appropriate to be concerned about the setting for a group home. A consideration of over-concentration could be considered in this context. This objective does not, however, justify requiring separations which have the effect of foreclosing group homes from locating in entire neighborhoods.”
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In spite of ALL of the evidence that separation requirements are supported by the federal government and a common part of state law regarding congregate care, opposition to separation requirements for addiction treatment housing is unusually strong, under the premise that keeping houses apart will somehow limit either the State's ability to license wherever it pleases or the number of beds available.
Note that two California cities have adopted Arizona-style restrictions on Recovery Residences: Costa Mesa and Laguna Niguel have 650 feet and 1000 feet of separation, respectively. Costa Mesa, as the first city to adopt such regulations, has been sued by numerous recovery operators, all claiming discrimination. The most recent judgements about their suits have concluded that the rehab operators have yet to prove their clients are disabled, let alone that they have suffered discrimination through municipal regulation. The County of Orange has also adopted 1000 feet of separation for Recovery Residences in residential zones for which it has oversight.
2018 - SB 1290 Bates
Makes patient brokering a crime but does not indicate penalties. Would form a Commission on Substance Abuse and Recovery to address "appropriate care and consideration of local effects,” which would identify issues such as overconcentration.
2018 - SB 1317 - Portantino
An anti-overcrowding bill. Changes the State Health Code to require a state licensed residence notify the city that it is opening, and show how it will address the impacts on parking and sewage. It would restrict the residence to one full bathroom for every two residents, and no more than two residents in any bedroom.
2018 - AB 3162 - Friedman, Allen and Stern
This bill would allow the State to deny an application for a site within 300 feet of another licensed facility. It assesses higher penalties for violations. It creates a one year provisional period in licensing, and if licensing provisions were broken, the person could not reapply for licensure for 2 years. It requires that the state inspect unlicensed houses alleged to be providing licensed services and shut them down if they are operating without a license.
2017 - SB 786 Mendoza
A bill that strictly creates a separation of 300 feet between licensed facilities. Scheduled to be heard before the Health Committee on April 19th.
2017 - SB 34 Bates
A combo bill requesting 300 feet of separation between licensed facilities and defining many unlicensed facilities as licensable. Sen. Bates is holding onto this bill at the moment because her office believes the Legislature needs more education. ei
Note that two California cities have adopted Arizona-style restrictions on Recovery Residences: Costa Mesa and Laguna Niguel have 650 feet and 1000 feet of separation, respectively. Costa Mesa, as the first city to adopt such regulations, has been sued by numerous recovery operators, all claiming discrimination. The most recent judgements about their suits have concluded that the rehab operators have yet to prove their clients are disabled, let alone that they have suffered discrimination through municipal regulation. The County of Orange has also adopted 1000 feet of separation for Recovery Residences in residential zones for which it has oversight.
2018 - SB 1290 Bates
Makes patient brokering a crime but does not indicate penalties. Would form a Commission on Substance Abuse and Recovery to address "appropriate care and consideration of local effects,” which would identify issues such as overconcentration.
2018 - SB 1317 - Portantino
An anti-overcrowding bill. Changes the State Health Code to require a state licensed residence notify the city that it is opening, and show how it will address the impacts on parking and sewage. It would restrict the residence to one full bathroom for every two residents, and no more than two residents in any bedroom.
2018 - AB 3162 - Friedman, Allen and Stern
This bill would allow the State to deny an application for a site within 300 feet of another licensed facility. It assesses higher penalties for violations. It creates a one year provisional period in licensing, and if licensing provisions were broken, the person could not reapply for licensure for 2 years. It requires that the state inspect unlicensed houses alleged to be providing licensed services and shut them down if they are operating without a license.
2017 - SB 786 Mendoza
A bill that strictly creates a separation of 300 feet between licensed facilities. Scheduled to be heard before the Health Committee on April 19th.
2017 - SB 34 Bates
A combo bill requesting 300 feet of separation between licensed facilities and defining many unlicensed facilities as licensable. Sen. Bates is holding onto this bill at the moment because her office believes the Legislature needs more education. ei