Print

Guest Letter

Aaron C. Harp

City Attorney

City of Newport Beach

How we’re addressing and intepreting law related to residential care facilities

Guest Letter Aaron Harp

Click on photo for a larger image

Courtesy of City of NB

Aaron C. Harp

Dear Assemblywoman Cottie Petrie-Norris,

Thank you for your letter dated April 8, 2022, in which you expressed concerns about the City of Newport Beach’s (“City”) regulation of state licensed residential care facilities. Based on a review of your correspondence, we believe that the “policy experts” who are providing you advice may not understand the nuances related to local regulation of state licensed facilities.

Before addressing the ability of the City to regulate state licensed facilities, we think it’s important to distinguish between the various types of residential facilities and the sections of state law that regulate those facilities. In general, under state law, a “social rehabilitation facility” and an “alcoholism or drug abuse recovery or treatment facility” are two different types of licensed group residences. They are defined differently and regulated by different sections of the California Health and Safety Code.

Regarding your concerns related to the regulation of social rehabilitation facilities, as you know, there are five applications that are currently pending with the Department of Social Services for new facilities to serve six or fewer residents in Newport Beach. Under state law, the City is prohibited from treating any state licensed facility differently from other dwellings if the facility serves six or fewer residents. (See, Health & Safety Code § 1566.3).

Specifically, Section 1566.3 states that residential facilities – which includes social rehabilitation facilities – serving six or fewer residents must be “considered a residential use of property” and “the residents and operators of such a facility shall be considered a family for the purposes of any law or zoning ordinance that relates to the residential use of property...” (See, Health & Safety Code § 1566.3(a).) Furthermore, under state law, cities may place only the same restrictions on these facilities as they do on “other family dwellings of the same type in the same zone.” (See, Health & Safety Code § 1566.3(c).). Finally, cities may not impose a “conditional use permit, zoning variance, or other zoning clearance” requirement on these facilities if such a requirement is not also imposed on “a family dwelling of the same type in the same zone.” (See, Health & Safety Code§ 1566.3(e).2). 

In your letter, you cited to Section 11834.20 3 to support the idea that the City has the authority to oversee the number and types of social rehabilitation facilities “commensurate with local need.” Specifically, Section 11834.20 states:

The Legislature hereby declares that it is the policy of this state that each county and city shall permit and encourage the development of sufficient numbers and types of alcoholism or drug abuse recovery or treatment facilities as are commensurate with local need.

We agree that since the language refers to local need, the statutory scheme allows the City to regulate facilities serving seven or more persons. However, the sections that follow the introductory language above (which has a parallel provision in the Community Care Facilities Act) restricts local authority to regulate licensed alcoholism or drug abuse recovery or treatment facilities and residential facilities that serve six or fewer persons, respectively. (See, Health & Safety Code§§ 11834.21 et seq; 1566.3). Overall, it appears that the Capitol “policy experts” may have missed the more specific prohibitions related to state licensed facilities serving six or fewer residents when they advised your office regarding this matter.

Also, in your correspondence you state that the Capitol “policy experts” have advised you that the City can regulate two separately state licensed facilities as an integral facility. As noted above, the City is prohibited from regulating a single state licensed facility serving six or fewer residents. While the case law in this area is evolving, we are unaware of any court decision that has upheld a local agency combining two state licensed facilities into one large facility for purposes of applying local regulation. That said, we do agree with the overall premise that two facilities working in conjunction with each other should be licensed as one facility rather than as two separate facilities.

Finally, there appears to be confusion regarding the City of Costa Mesa’s regulation of state licensed facilities. Attached hereto is a list of facilities licensed by the Department of Health Care Services (“DHCS”) in Costa Mesa. As you will note, DHCS has licensed multiple facilities adjacent to each other as separately licensed facilities rather than as one integral facility. The City of Costa Mesa is not regulating these separately state licensed facilities as one integral facility, and we think it is important for the public to know that Costa Mesa and Newport Beach are regulating these types of facilities in the same manner. 

Please know that the City is committed to ensuring that the operators of residential care facilities provide safe, decent housing for the disabled and protected populations who reside in these facilities. Currently, the City is considering adding new provisions that address some of the concerns raised by the “bad actors” referenced in your letter. First, to ensure that commercial operators do not mislead potential residents about the services they legally may or may not provide, the City is considering a provision that would prohibit advertisements that mislead potential residents by stating that the facility provides services requiring a state license when it does not have a license to do so. Also, to preserve the residential nature of these facilities and ensure that residents are given the opportunity to enjoy housing in the same way as non-disabled populations, the City is considering a provision that would prohibit a facility from offering services to people who do not reside onsite (thereby altering the residential nature of the home).

The City also is considering other provisions to ensure the safety of residents in these facilities and make sure they are integrated within the community. For example, the City is considering requiring an operator to prepare a nuisance response plan and a resident discharge plan, meaning that operators would need to provide information regarding available community resources, as well as immediate transportation, to any resident who is evicted. Operators would need to get the residents’ acknowledgment of the offer of information and transportation and provide such forms to the City. In this way, the City could ensure that the operators are acting in the best interests of the residents and providing necessary resources to residents leaving the facility. The City also would be able to determine if a specific operator has a pattern of evicting residents.

As you can see, although the City’s authority to regulate licensed facilities serving six or fewer residents may be limited, the City still hopes to regulate the “bad actors” and ensure that residents are provided safe, decent housing. We encourage the state to take a more direct role in enforcing its licensing programs, especially given the somewhat limited scope of the City’s authority in this area.

In conclusion, if local agencies are granted more authority with respect to the regulation of “residential facilities” and “alcoholism or drug abuse recovery or treatment facilities,” the City would be glad to play a more direct role in enforcement. Regardless, we welcome the opportunity to continue to collaborate with the state and with your office in these efforts.

CITY ATTORNEY’S OFFICE

Aaron C. Harp City Attorney

City of Newport Beach