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Council changes No Sit/No Lie ordinance

Friday, March 4, 2011 by Michael Kanin

The Austin City Council has finally adopted a handful of changes its No Sit/No Lie ordinance with an eye to making it easier to enforce. The amendments reconfigure the law’s exemptions for Austin’s disabled, redefine the area where it will be enforced, and establish a legal standard that those charged with a violation must reach to prove that they are exempt from the ordinance.


The changes are now slated to go in to effect on May 1.


Some advocates, however, are unsure about the effect of the changes. House the Homeless President Richard Troxell raised concerns in April 2010 that the wording of the existing ordinance could violate the Americans with Disabilities Act. The new language did little to assuage that worry.


“This ordinance, even as proposed to be amended, is in violation of the (ADA),” Troxell told the Council. “The Texas Civil Rights Project and Jim Harrington have expressed their written intent and desire to sue the City of Austin under (ADA) should you pursue this course of action as such.”


He was also concerned about the new legal standard. “About 40 percent of the folks that are experiencing homelessness have severe mental health problems,” he said. “So how is a mentally ill, disabled homeless person supposed to provide an affirmative defense that no one can tell us how to prove.”


Troxell further wondered whether widespread trimming in health and human services programs would undercut a portion of the ordinance. “Council Member Randi Shade says that this is a good process to get people with mental health concerns to community court to get the help they need,” he said. “Ethical questions aside … you’ve already heard today about the truncated level of mental health services in this area with more major reductions to come.”


Indeed, Austin Travis County Integral Care Housing Administrator Greg Gibson had just cautioned the Council that “deep budget cuts are being proposed that will constrain Integral Care’s ability to provide additional services that may be suggested through creative sentencing.”


A citation under the ordinance can trigger an appearance in the Downtown Austin Community Court. Hopes are that by using creative sentencing methods, the court could positively intervene with some violators. Shade was not concerned that health and human services cuts would dilute this side-effect of the law.


Many individuals charged under this and other ordinances through the (Downtown Austin Community Court) have substance abuse issues which (it) has resources to address,” she told In Fact Daily. “Proposed cuts in the state’s budget are expected to hit mental health services hard. Many organizations that refer people to mental health services funded by the State, the (Downtown Austin Community Court) included, will feel the impacts of these budget cuts; however, this ordinance change, in itself, is not expected to have a significant impact on the Court’s social service needs.”


Council Member Laura Morrison called on Assistant City Attorney David Douglas to address whether No Sit/No Lie violates the Americans with Disabilities Act. “While there is no case or ordinance exactly like this that we could find … we do not believe so,” he said.


Douglas also told the Council that the changes, including an affirmative defense of disability at the time the citation was given, were necessary. As it was written, the ordinance “places a burden on the prosecution and the police because … in those cases where (disability) is not obvious, not discernible, not manifested – it’s not something that the police are going to know or the prosecutor could know,” he said. So, it is up to the person charged to show his or her disability.


Even with Thursday’s Council action, there are some outstanding issues that will need to be resolved. The Austin Police Department will rework its general orders to reflect the change in the ordinance. That effort will be reviewed by the Council’s Health and Human Services subcommittee.


Morrison also promised to use that body to look into homeless concerns about a lack of public bench space.

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