TRANSITIONAL HOUSING PARTICIPANT

MISCONDUCT ACT (THPMA) PRESENTATION

PART I

Do you have to use the court process to remove someone from transitional housing?

General Rule:– All agreements for housing involving “tenants,

lessees, boarders, lodgers, and others HOWEVER DENOMINATED” are subject to the unlawful detainer process. Civil Code §1940 (Narrow exceptions for certain transient hotel/motels).

– Never remove occupant w/o proper court process. Forcible removal, changing locks, removing possessions etc. are illegal!

Where is the THPMA?

–Health & Safety Code §50580 et. seq.

–Purpose: To allow transitional housing program (THP) operators to use expedited civil restraining order/injunction process when participants engage in serious misconduct or abuse.

What is a transitional housing program?

ANY program designed to assist homeless persons to live independently in permanent housing with ALL the following components:

What is a THP (cont.)?

– Residency requirements from 30 days to 24 months.

– Provides comprehensive social service programs incl. individualized case mgt. and may incl. other services such as alcohol/substance abuse counseling, self-improvement training, employment and training, and ind. living skills.

– Provides temporary housing with structured setting and rules participants need to comply with to remain in program.

What is a THP operator?

A government agency or private nonprofit receiving ANY portion of its THP funds from a governmental source – OR

Another person or agency hired by one of the above to operate a THP.

What is a THP participant?

A homeless person under contract with a THP operator to participate in a THP and to use a dwelling unit in the program site.– Homeless person = Individual or family

who lacked a fixed, regular, and adequate nighttime residence or lived in any temporary housing, shelter or institution. Includes sites not ordinarily used or designed for regular sleeping.

– Includes any person living with participant.

Does THP need a written contract with participant?

THPs don’t need written contracts. But, to utilize THPMA process, there must be a written contract with the following:– THP rules and regulations.– Statement of THP operator’s right of

control over and access to the unit.– Statement of procedures and rights

under the Act. (See, Judicial Council Form)

When may a THP operator use the THPMA process? An operator may use the expedited

THPMA restraining order/injunction process only for:

–Program misconduct

• OR

–Abuse

What is “program misconduct”?

THP may get restraining order/injunction for participant to refrain from “program misconduct”

Program misconduct = – Intentional violations of THP rules and regs – Which “substantially interfere with orderly

operation of program” – AND involve one of the following:

What is “program misconduct” (cont.)?

– Drunkenness on site– Unlawful use or sale of drugs– Theft– Arson– Destruction of property;*– Violence or threat of violence and

harassment.*• * Against operator, other participants,

employees, or persons living w/in 100 ft of program site.

What is “abuse?”

Intentional or reckless cause -- or attempt -- of bodily injury or sexual assault.– OR

Placing another in “reasonable apprehension” of “imminent serious bodily injury” to himself, other participant, staff, or person living w/in 100 ft of site.

How may a THP operator remove a participant for abuse or misconduct?

Use the eviction/Unlawful Detainer process.– OR

If abuse: Temporary Restraining Order (TRO)/injunction process under THPMA.

What is the “TRO” process?

– 2 step process:• File application for immediate temporary

restraining order pending hearing. May include orders to refrain from misconduct - or - exclude participant from THP site and stay at least 200 ft from site(s) if abuse is alleged.

• Hearing on permanent injunction (generally, w/in 5 days of filing TRO).

What are“stay away” and “exclusion” orders?

Exclusion: May request order to exclude participant from the THP site.

Stay away: May also request order to restrain the participant from coming w/in 200 feet of THP or other program sites.

How may a THP operator get exclusion or stay away orders?

May only ask for these orders for “abuse” -- NOT “program misconduct.”

May request these orders effective up to a year* after hearing. *renewable.

May get immediate exclusion or stay away orders in TRO pending hearing only in an “emergency.”– Emergency = necessary to protect another

participant, employee, or person living w/in 100 feet of site from “imminent serious bodily injury.”

What happens if operator gets exclusion or “stay away” order?

Pending hearing (TRO) : THP operator may have participant immediately removed from unit.

After hearing: Operator may take immediate possession of the unit and consider it “abandoned.”

If other occupants in unit (inc. family members) not named in petition, may only remove the participant named in petition.

What if THP operator does not get exclusion order?

(1) If participant violates conditions of restraining order: THP may serve 3-day notice to quit on participant and proceed with UD process upon expiration based on violation of Code of Civil Procedure §1161(3). – Violations not curable. (See, H&S Code

§50587)

What if THP operator does not get exclusion order (cont.)?

(2) If participant violates conditions of restraining order/injunction: THP operator may file “contempt” action along with petition to modify orders to include exclusion order (even if the action is based on “program misconduct.”)

What if THP operator does not get exclusion order (cont.)?

(3) If participant “willfully disobeys” restraining order: May be criminal misdemeanor (Penal Code §166).

THPMA limitations

Cannot utilize THPMA process against a participant who has been in THP for 6 months or more, unless an injunction or TRO is already pending or in force against the participant.

What may a THP operator do after 6 months?

If no THPMA action pending by 6-month deadline:

– Use eviction/unlawful detainer process.

– May still use civil harassment restraining order process (see, Code of Civil Procedure §527.6)

What about stuff left in the unit?

Must give participant “reasonable” opportunity to remove belongings.

If belongings left in unit, must follow procedures under Civil Code §1980 et seq. to dispose of property -- cannot dispose of property w/o using this process.

THPMA Part IIProcedures

Get Judicial Council forms

The Judicial Council has all forms to file with court for THPMA process with helpful statements of operator’s and participant’s rights.

May download all forms at :– www.courtinfo.ca.gov/cgi-bin/forms.cgi– Select “Transitional Housing Misconduct”

from the menu.

Filing petition

File Petition for Order Prohibiting Abuse or Program Misconduct.– If requesting TRO: Must include affidavit

(see, Judicial Council form) stating one of the following:• Informed the participant w/in

“reasonable” time of when and where TRO application would be filed.

• Made “good faith” attempt to inform.• Specific reasons why shouldn’t inform.

Ruling on TRO application

Judge may grant order pending hearing to restrain conduct, or exclude/stay away from site if affidavit shows:– “Reasonable proof” of program misconduct

or abuse; and– “Great or irreparable harm” if TRO not

granted.

TRO may remain in effect up to five days. But may be modified, terminated, or extended per judge’s discretion.

Scheduling hearing

Court schedules hearing no later than five days from TRO.

Court returns filed papers to THP operator (or attorney) for service on participant and others (not minors) in unit named in petition.

Notifying law enforcement

If judge grants TRO: THP operator delivers copies of TRO (signed by judge) to appropriate law enforcement agencies. – May be done by court clerk. (see, H&S

Code §50586(a) ) Operator may call police to enforce TRO

if participant or others named in TRO violate orders.

Serving the participant

No later than 2 days prior to hearing, THP operator (or attorney) must personally serve participant (and other persons named in petition) with copies of:– Petition, affidavits, Order to Show Cause,

TRO, other filed and supporting paperwork; AND

– Blank copies of response, two blank copies of declaration (Judicial Council form MC-031), blank copy of proof of service, and copy of instructions (see, Judicial Council forms)

Serving the participant (cont.)

The Order to Show Cause (OSC) form: Must write in name, address, and tel. # of local legal services office prior to serving participant.

If fail to properly and timely serve participant: Judge dissolves TRO. – But operator or attorney may file affidavit that

participant could not be served timely and court may reissue new TRO.

– No fees may be charged by court for reissuance. (see, H&S Code §50585 ( c ) )

Participant’s response

Participant may file response and declarations and other supporting docs prior to hearing. Must serve operator or attorney personally or by mail after filing paperwork.

Person who served papers on operator fills out proof of service (POS). POS may be filed w clerk or taken to hearing.

No fees may be charged by court.

Continuance of hearing

Participant is entitled to continuance of hearing date if requested before or at hearing.

Continued hearing must be set w/in 15 days of request, unless participant requests later date.

Judge may extend (or modify and extend) TRO until hearing date.

Hearing

Either party may have attorney or represent him/herself.

Issues to be decided: – Should temporary

restraining/exclusion/stay away orders be made into injunction?

– Is there “clear and convincing” evidence of program misconduct or abuse?

After the hearing If judge rules for THP operator:

Injunction issued prohibiting conduct, excluding participant, and/or “stay away” from site(s).

Injunction may be in effect no longer than one year.– No later than 3 months prior to expiration, may

apply for renewal of injunction by filing new petition (not modification).

Serve police w copy of injunction for enforcement.