The following is the testimony of Richard R. Troxell, president of House the Homeless, Inc., before the Health and Human Services Committee of the Austin, Texas, City Council on Thursday, March 3, 2011. The Committee was considering making changes to the language in Austin’s “No Sit/No Lie” ordinance to bring it into compliance with the Americans with Disabilities Act.
Greetings to the Mayor, City Council and the Citizens of Austin,
I’m Richard Troxell, President of House the Homeless. This is our simple truth about the No Sit/ No Lie Ordinance that allows homeless people to be fined up to $500.00 for sitting of lying down.
On January 1, 2009, at our 9th annual Thermal Underwear Party, House the Homeless conducted a health survey of 501 people experiencing homelessness. The results showed us that 48% or about half all people experiencing homelessness in the Austin Area are so disabled that they cannot work. Their disabilities range from strokes, congestive heart failure, schizophrenia to diabetes, etc. We learned that there were no exceptions to these fines for people with disabilities under the No Sit/No Lie Ordinance. We recognized that this is in violation of the Americans with Disabilities Act. House the Homeless approached Mayor Pro Tem, Mike Martinez, who championed our cause, along with Council Member Laura Morrison, to bring our local ordinance in line with the federal ADA.
A resolution was unanimously passed by Council to send the issue to the Health & Human Services Committee. At that time, Mayor Lee Leffingwell instructed the HHS Committee to explore the idea of providing enough benches for people to sit upon so as to possibly make the entire issue moot. The Committee was chaired by Council Member Randi Shade who was joined by Mike Martinez and Laura Morrison. Three “stake holder” meetings were held involving businesses, downtown neighbors and homeless advocates.
At the first meeting, House the Homeless presented a list of twenty “exceptions” to be considered. For example, if a person had an award letter of disability from the Social Security Administration, the Veterans Administration, the Disability Determination Services a Mobility Impaired Bus Pass or a note of disability with a doctors backing, then they would be recognized to be disabled and exempt from receiving fines under the ordinance. To the shock of House the Homeless, under the guidance of city staff, we were told that the concept was unacceptable and they would not consider any of the exceptions.
At the end of the meeting, House the Homeless reminded the group of the Mayor’s Directive about benches and as a result, we were all then instructed to return with ideas and locations for benches. HTH returned to the next Stake Holders meeting with photos of benches with center dividers so people could not lie down and sleep on the benches and a list of places where benches were needed where they would not interfere with pedestrian or business foot traffic. Again, this city staff led group would not even consider the list. Instead it was suggested that the benches in the “Great Streets Project” would suffice for the benches. Period. Later, upon research, HTH learned that this was a total sham and the “Great Streets Project” only included a handful of streets with no new benches in their budget.
When the Health and Human Services Committee next met, HTH disclosed these events, but they fell on deaf ears. It was then decided by someone on the committee or the city legal department to insert the word “physical” making the ordinance read that anyone with a “physical disability” would be exempt under the ordinance. HTH argued that conversely, this would mean that anyone with a mental health disability would be subject to fines. HTH decried this as unacceptable. I asked for a meeting with Police Chief, Art Acevedo, and Council Member Laura Morrison to discuss their concerns. The Chief said that he simply did not want disabled homeless people sitting and lying down all over the city.
In response to the HTH objection, Randi Shade changed the language to read that anyone with a “physical manifestation” would be exempt. We understood that they wanted there to be an “event”…like I’m disabled and I’m feeling dizzy so that is why I need to sit down. We get that. But when you say you are looking for a “physical manifestation” it suggests to the police officer that if he can’t observe a missing body part, then he should issue a ticket.
And here is the other problem…the bottom line. The committee is now recommending to council that a person facing a fine must “create an affirmative defense” to show that they had been 1) disabled (sounds like our list of exceptions) and 2) that they had been dizzy, faint, feeling nauseous, suffering pain, a migraine headache or experiencing weakness.
House the Homeless has asked the Health and Human Services group both in committee and by e-mail, how for example, Council Member Laura Morrison’s husband, Phillip, and others like him who are diabetic, are supposed to be able to prove that on X date, that they had needed to sit down because they felt woozy because of low blood sugar? No one has been able to answer our question. Realize that about 40% of the homeless folks have severe mental health concerns. How is a mentally ill, disabled homeless person supposed to provide an affirmative defense that no one can tell me how to prove. How does one prove that they were feeling nauseous, faint, dizzy, suffering pain or experiencing weakness?
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. Ethical questions aside, like ticketing people to get them into health care, you’ve already heard today about the truncated level of mental health services in this area with more major reductions to come. But what Council Member Shade may not realize is that their funds are already drastically reduced and if you suffer PTSD for example from seeing your spouse raped or your daughter burned to death in a fire, that you could not get treatment.
I’m at the Homeless Resource Center every day. Even with MHMR/Integral Care located in the same building, there are dozens and dozens of people with serious mental illnesses, many hearing voices, talking to themselves, and having hallucinations, who are not being served now. They are already traumatized. Does it really make any sense to force them into a court system, unrepresented to “affirmatively defend” against an ordinance that none of its would-be creators can tell us how they could possibly defend themselves?
Instead, how about this, strike the one word “physical” and the one clause “affirmative defense.” Let the police officer approach the individual and inquire why they are sitting down. If they say they are disabled, or “I have diabetes, I’m feeling woozy, I just need a minute or two,” the officer then assesses the situation, asks if he/she needs emergency care and if not, says “OK, I’ll be back through here in about 30 minutes. If you’re still here and having a problem, I’ll assess you for an emergency medical call. If you don’t need the emergency medical care you’ll be asked to move on, immediately. If you don’t move, you’ll be ticketed and this conversation will have served as your warning. Fair enough?”
If a ticket is issued, the case goes before a judge and with the affirmative defense clause struck, he can make a proper determination but without the individual being asked to fall on their own sword.
This does not need to go back to committee. We can give the officers the plastic HTH cards with the acceptable list of disabilities so parameters are clear to everyone. Additionally, we can begin budgeting now for enough benches to make Austin the world class city that it aspires to be.
These steps will bring us into compliance with the ADA law and yet the city gets to restrict wholesale sitting or lying down. Win-Win. Just strike the one word: “physical,” and the clause, “Affirmative Defense,” because the way it looks to HTH, the City of Austin with all of its power, lawyers, and resources cannot figure out how to prosecute these people. It’s asking people with mental illnesses, who are abjectly homeless, to prosecute themselves.
Finally, the Texas Civil Rights Project and it’s director, Jim Harrington, have expressed their written intent and desire to sue the City of Austin under the ADA should you pursue this course of action. Don’t give Austin a Black Eye.
Richard R. Troxell, President
House the Homeless, Inc.
Photo courtesy of House the Homeless, Inc.