Sen. Bates drives legislation on sober living regulations

REGION — The “bad actors” are overwhelming the good ones.

And for at least the past 20 years, the state of California has struggled to combat those bad actors regarding sober living homes.

In addition, little headway has been made in the U.S. Congress as residents throughout the Golden State are battling against profit machines, patient brokering and unlicensed or undisclosed homes in their neighborhoods.

For the past four years, Sen. Pat Bates (R-Laguna Niguel) has been attempting to pass some legislation without violating the rights of the addicts being treated.

One major hurdle, though, is those individuals in sober living homes, or residential treatment facilities (RTF), are classified as disabled and are protected under the American with Disabilities Act and Fair Housing Act.

Bates said no major movement against the bad actors and to give more local control to cities and counties can occur until Congress amends the ADA, FHA or both.

Still, Bates introduced two bills last legislation session, which were quickly killed in committee. Bates and Jim Patterson (R-Fresno) co-authored and introduced AB 704 on Feb. 19.

“We have the patient brokering that’s going on,” Bates said. “I’m hoping that will be something where there’s stiffer penalties when it’s discovered that a rehab facility or corporation is paying to import drug addicts into their RTFs or sober living homes.”

Her bill calls for mandatory background checks for “a person who has responsibility” over the patients and clients living at sober living homes and treatment facilities.

Bates, who also represents Carlsbad and Oceanside extending north into Orange County, said she proposed the same bill last year, which was killed.

The pause, she said, were other legislators were worried those in recovery and thus seeking to become treatment professionals would be disqualified from service due to a potential crime in their background.

However, Bates said it is not the case and included language prohibiting the State Department of Health Care Service from denying involvement due to a drug-related crime.

Other challenges

Sober living homes can house up to six individuals and are not required to employ a licensed professional to care for those in recovery. However, a residential treatment facility must be licensed by the California Department of Health Care Services (DHCS).

“You have two laws and they navigate between the two,” Bates said of those taking advantage of the system.

Bates and Assemblywoman Laura Friedman (D-Glendale) co-authored a bill passed last year to provide a probation period for RTFs and show at the end of the yearlong process goals set forth have been met.

The hurdle, Bates said, is hiring more employees for enforcement, which then becomes a budget issue.

Sober living homes, though, have been the toughest obstacle for the state and local municipalities to tackle, Bates said.

Due to the structure of the law, they are not required to have licenses, a licensed caseworker and cannot provide treatment, thus leading to many issues with residents in those neighborhoods.

“Those are the ones where probably the greatest abuses are taking place,” Bates explained, “because there is no regulation that local government or state government can put on that because they are protected as a group home and a protected class.”

Bates, though, stressed she views many of those in sober living homes as being pawns and victims of patient brokering, which is another piece of legislation she is working to pass.

Operators receive $3,000 per month per patient. Revenue is generated, generally, though the patients outright or through insurance.

Her goal, Bates said, is not to violate their rights, but to ensure their protection, while also providing relief for homeowners or renters in those neighborhoods.

Residents

Rosemary Eshelman, who lives in Olde Carlsbad, said a sober living home seemingly “popped up” over night on her street at least five years ago.

While sympathetic and empathetic to those in recovery, Eshelman said there have been numerous incidents involving trash, police calls, noise, parking and turnover.

The Carlsbad City Council heard numerous speakers during an agenda item last month, although the city’s hands are mostly tied.

Still, the council did approve to form a resident ad-hoc committee to generate ideas, although she will hold the council accountable to the committee and bring neighbors into the fold.

One challenge, Eshelman said and city staff reported, is the difficulty in locating sober living homes. Staff only found four advertised online, but Eshelman said she has found at least 10 throughout the city.

“It’s just a matter of monitoring my own street is what it comes down to,” she added.

Another obstacle, Eshelman said, is the operators will use a limited liability company (LLC) and put different names on the LLC in different locations to avoid violating any rental, or other, ordinances or laws.

“They’re not stupid about how they do it,” Eshelman. “I know there’s more. They are starting to surface and that’s what I’m going to expose. I’m looking for ones owned by smaller groups.”

She also alleges some of the sober living facilities in North County were engaged in patient brokering, bringing in people from the East Coast.

Perhaps even more confusing, Eshelman said, is how these homes are not required to have any licenses or notify the city, saying businesses such as child care are regulated and require licenses.

“We get no revenue off this whatsoever and they can utilize all the city services,” she added. “They don’t have to contribute anything back. I don’t understand that part. There is no oversight.”

Lawsuits

Bates represents part of Orange County, where an explosion of sober living homes has put residents on edge and led to costly legal battles between cities and proprietors.

Newport Beach spent $10 million and lost defending an ordinance, while Costa Mesa won a federal jury trial, although the decision has been appealed to the Ninth Circuit Court of Appeals.

Costa Mesa’s ordinance includes a 650-foot buffer between sober living homes, a special permit requirement and background checks for house managers at sober homes, according to a December story from the Orange County Register.

The suit was filed in 2014 by Yellowstone Women’s First Step House and the Sober Living Network.

Bates said she, along with many other elected city and state officials, are following the case closely.

“It was that neighborhoods were being taken over by sober living homes by 50 percent to 60 percent in one block,” Bates said. “If that same rationale is used as it goes up the line, that’s a good one. The judge believed it was not good for the quality of the neighborhood.”

In addition to Newport Beach and Costa Mesa, four other Orange County cities have tried to enact legislation, as well as Los Angeles, San Jose, Encinitas, San Bernardino County and Redlands, according to a 2016 report from the California Research Bureau and California State Library.

Federal action

H.R. 5724 was introduced by former Congressman Dana Rohrabacher (R-Costa Mesa) on May 9, 2018. It would have amended the Fair Housing Act to allow state or local governments to implement laws or regulations to prohibit recovery facilities in residential zones.

In addition, former Congressman Steve Knight (R-Edwards) also introduced a bill to congress. H.R. 5100 was submitted on Feb. 27, 2018, to authorize grants for states to establish and operate recovery home certification programs.

It also attempted to curb unlawful payments for referrals with up to five years in prison, a fine or both.

“I think it will take, really, another couple of Congressional sessions to alter a very sacred bill, the Americans with Disabilities Act, in such a way it is fine tuned what one can do at the local government level for regulating sober living home, or group home concept,” Bates said. “That would be my mission as I go forward in the next couple of years. That means convening some really good brains in behavioral sciences and the legal community.”