A G E N D AMEETING - Zoning Sub-Committee

Manager's Conference Room

Tuesday, May 8, 20181:00 PM

Administration

18-116-01 Based on Public Hearing:

- Tobacco Retailer (TEMPORARY SIGNS and PRODUCT DISPLAYSINCIDENTAL TO THE CUSTOMER AREA)- Secondhand dealer RECORDS and DISQUALIFICATIONS (see attachedhighlighted sections)- Alcohol and Drug Free Housing (see separate item)- Tattoo and Body Piercing question from City Council regarding record keeping(see highlighted item)

18-117-01 Alcohol and Drug Free Houses

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Memo

Number:To: Zoning Sub-CommitteeFrom: Ian Houseal, Community DevelopmentDate: 2018-05-08 13:00:00

Subject:

Based on Public Hearing:

- Tobacco Retailer (TEMPORARY SIGNS and PRODUCT DISPLAYSINCIDENTAL TO THE CUSTOMER AREA)- Secondhand dealer RECORDS and DISQUALIFICATIONS (see attachedhighlighted sections)- Alcohol and Drug Free Housing (see separate item)- Tattoo and Body Piercing question from City Council regarding record keeping(see highlighted item)

RECOMMENDATION Consider the ordinance for adoption.

Background Information:The amendments update the business licensing program to better reflect the costassociate with administration and inspection of business licensing program. Theamendments clarify existing license categories, adding new license categories, andimproving the enforcement mechanism for all business licenses.

Legal Review Status:Complete

Sub-Committee or Board Recommendation:These amendments (attached) have been reviewed over seven meetings includingreview by all City Council Committees primarily the Zoning Committee and the PublicSafety Committee. The Operations Committee has also reviewed the amendments.The Public Safety Committee has met with pawnbrokers over five meetings. TheMarijuana Task Force recommended establishing the Tobacco Retailer License.

Administrative or Departmental Review :Business licensing amendments streamline licensing for certain businesses, putsregulations around certain businesses such as secondhand dealers, tattoo parlorsand body piercing establishments, and encourages certain businesses to locate inSanford such as food trucks and breweries. 2

Financial Impact or Review:The proposed changes increase revenue and reduce the property tax support ofbusiness licensing activity.

ATTACHMENTS

Chapter 215 - NEW Article - Tobacco Retailer 05-08-18.pdfChapter 193 - Pawnbrokers and Secondhand Dealers 05-08-18.pdfChapter 149 - NEW Article - Tattoo Artist and Body Piercing 05-08-18.pdf

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https://legistarweb-production.s3.amazonaws.com/uploads/attachment/pdf/184225/Chapter_215_-_NEW_Article_-_Tobacco_Retailer_05-08-18.pdfhttps://legistarweb-production.s3.amazonaws.com/uploads/attachment/pdf/184230/Chapter_193_-_Pawnbrokers_and_Secondhand_Dealers_05-08-18.pdfhttps://legistarweb-production.s3.amazonaws.com/uploads/attachment/pdf/184243/Chapter_149_-_NEW_Article_-_Tattoo_Artist_and_Body_Piercing_05-08-18.pdf

AN ORDINANCE AMENDING CHAPTER 215: ESTABLISHING REGULATION OF TOBACCO RETAILING, INCLUDING MARIJUANA PARAPHERNALIA

CHAPTER 215: SMOKING AND TOBACCO USE NEW ARTICLE: TOBACCO RETAILING § FINDINGS It is found that licensing tobacco retailers is appropriate to ensure that retailers comply with tobacco control laws and business standards to protect the health, safety and welfare of residents and especially children and therefore dependence, illnesses, and death associated with tobacco use. Additionally:

A. A requirement for a tobacco retailer license will not unduly burden legitimate business activities of retailers who sell or distribute tobacco products to adults.

B. There is a substantial interest in discouraging the purchase of tobacco products by persons

under the age of 21. § AUTHORITY This ordinance is adopted pursuant to 30-A M.R.S.A § 3001 and the City’s Home Rule Powers as provided for in Article VII-A of the Maine Constitution and 30-A M.R.S.A §§ 2101 et seq. and 22 M.R.S.A § 1556. § DEFINITIONS In general, all words, phrases, and terms used in this article shall have their customary and usual meanings; as used in this article, the following words, phrases, and terms shall have the meaning indicated. Tobacco Retailer. A retail business within the City of Sanford that sells tobacco products for personal consumption. Tobacco Product. Any product that is made from or derived from tobacco and is intended for human consumption or is likely to be consumed, whether smoked, heated, chewed, absorbed, dissolved, inhaled, or ingested by any other means, including, but not limited to, a cigarette, a cigar, pipe tobacco, chewing tobacco, snuff, snus, or an electronic smoking device. Tobacco product includes any component or accessory used in the consumption or accessory used in the consumption of a tobacco product, such as filters, rolling papers, pipes or liquids used in electronic smoking devices. Tobacco product does not include drugs, devices, or combination products authorized for sale by the U.S. Food and Drug Administration, as those terms are defined in the Federal Food, Drug, and Cosmetic Act. § APPLICABILITY The provisions of this article apply to tobacco retailers within the City of Sanford. § LICENSE REQUIRED No person, firm, or corporation may offer for sale, sell, furnish, display, or advertise for tobacco products unless a tobacco retailer has first obtained a license for such purpose from the City Clerk.

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Licenses under this article shall not be issued unless the City Clerk receives affirmation from the Inspection Team, that the applicant’s proposed operation meets all applicable requirements. Any person carrying out such activity without a license is in violation of these provisions. Failure to comply with any of these requirements shall be deemed in violation of this article and is adequate grounds for the denial, revocation, or suspension of a tobacco retailer license. § PROCEDURE AND FEES License applications under this article shall be processed according to the procedures established in this article and Chapter 149, Licensing. A license may be issued to a tobacco retailer license after the annual fee required has been paid through the City Clerk’s Office. The fee for a tobacco retailer license shall be established under Chapter 149, Licensing, §149-1.3, Fees, of this Code, for tobacco retailers. § CERTAIN LOCATIONS PROHIBITED FROM OBTAINING A LICENSE No tobacco retailer license may be issued to any seller of tobacco products that is not in a fixed, permanent location; mobile vending of tobacco products is prohibited. § TOBACCO PRODUCT SALE; FURNISHING; ACCESS STANDARDS Pursuant to 22 M.R.S.A § 1555-B (2), no licensee, or employee or agent of such licensee, shall sell, furnish, give away, or allow access to tobacco products to persons who have not attained 21 years of age, unless the person has attained 18 years of age as of July 1, 2018. Tobacco products may not be sold to any person who has not attained 30 years of age unless the seller first verifies that person’s age by means of reliable photographic identification containing the person’s date of birth. § TOBACCO PRODUCT DISPLAYS STANDARDS Self-service tobacco product displays are prohibited. Tobacco products may not be displayed in a manner intended to be visible from the exterior of the building. Tobacco product displays incidental the interior customer area of the building, unless intended to be visible from the exterior of the building are excluded. For customer areas or retail stores where persons under the age of 21, except for store employees:

(1) May be present, tobacco products must be in locked cabinets distinct and separated from other products or behind the sale counter accessible only with store employee assistance.

(2) May not be present, tobacco products may be in cabinets or on shelves or behind the sale counter accessible only with store employee assistance.

§ TOBACCO PRODUCT ADVERTISING STANDARDS Advertisements, displayed in a manner visible from the exterior to the building advertising tobacco products may not be displayed on temporary signs. § SEVERABILITY

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If any clause, sentence, paragraph, section, article, or part of this ordinance or of any ordinance included in this Code or through supplementation shall be adjudged by any court of competent jurisdiction to be invalid, such judgement shall not affect impair or invalidate the remainder therefor but shall be confined in its operation to the clause, sentence, paragraph, section, article, or part therefore directly involved in the controversy in which such judgement shall have been rendered.

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AN ORDINANCE AMENDING CHAPTER 193 REGULATING PAWNBROKERS AND SECONDHAND DEALERS

CHAPTER 193. PAWNBROKERS AND , JUNK DEALERS, SECONDHAND DEALERS AND FLEA MARKETS § 193-1. DEFINITIONS. In general, all words, phrases, and terms used in this article shall have their customary and usual meanings; as used in this article, the following words, phrases, and terms shall have the meaning indicated. The following words and phrases, when used in this chapter, will have the meanings respectively ascribed to them: Flea market. Any group of five or more unrelated persons selling tangible used or secondhand personal or collector's items to the general public. Flea market dealer. Any person who sells goods at a flea market. Junk collector. Any person having a trucking license or traveling from place to place within the Town for the purpose of purchasing junk or making a business of purchasing junk from a person who carries it away after purchase. Junk dealer. Any person engaged in the purchase, sale or barter of old iron, steel, chain, aluminum, brass, copper, tin, lead, or other base metals, belting, wastepaper, old rope, old bags, bagging, barrels, piping, rubber, glass, empty bottles, and jugs of all kinds and quantities of less than one gross, and all other articles discarded or no longer used as manufactured articles composed of any one or more of the materials mentioned hereinbefore. Pawn transaction. The lending of money on the security of pledged tangible personal property that is delivered to a pawnbroker and held by the pawnbroker and including the purchase of tangible personal property on the condition that it may be repurchased by the seller for a fixed price within a fixed period of time. Pawnbroker. Any person, firm, or corporation and premises engaged in the business of pawn transactions. whose business or occupation is to take or receive, by way of pledges, pawn or exchange, any goods, wares or merchandise, or any kind of personal property whatsoever, as security for the repayment of money loaned thereon at a stipulated rate of interest or at a stipulated amount of repayment, or who purchases any such property on condition of reselling the same to the seller thereof or his assignee at a stipulated price. This definition will not apply to banking institutions, brokerage houses, members of the stock exchanges, or persons who make loans exclusively upon stocks, bonds, bills of lading, warehouse receipts, mortgages, contracts, commercial paper, or other written or printed evidence of ownership of property or of indebtedness to the holder or owner of any such security. Permanent place of business. Any building or other permanently affixed structure, including a home residence, which is owned or held under a twelve-month or longer lease or rental agreement at the time business is commenced and is used in whole or in part for the purpose of engaging in the sale of secondhand goods. Precious metals. Any item composed in whole or in part of gold, palladium, silver, or other such valuable metals but does not include dental gold, unrefined metal ore, and electronic product, any part of a mechanical system on a motor vehicle or gold or silver coins or bullion.

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Secondhand dealer. Any person, firm, or corporation and premises engaged in the business of selling and, acquiring through exchangeing, pawn or purchase dealing in or dealing with secondhand or used tangible personal property such as articles, merchandise, or goods from private citizens, including but not limited to electronics, gaming systems/video games/video game accessories, jewelry, valuable and precious metals and stones, firearms, opera glasses, telescopes, watches, clocks, diamonds or other precious stones; gold, silver, platinum, or other precious metals; jewelry, furs, fur coats or any other wearing apparel; antique, or other furniture, furnishings, glass and dishes; musical instruments and radios; used cars, tires, and automobile accessories, ; office and store fixtures and equipment, and household goods and appliances, but not typically including articles of clothing or books. Secondhand dealers do not include businesses engaged in the ; electrical, gas and water meters; and all classes of fixtures and their connections. In the event any of such articles are taken in trade for another or of similar article by a retail or wholesale establishment., such transaction shall not be considered as coming within the requirements of this chapter. A secondhand dealer includes previous metal dealers. A secondhand dealer is not a State licensed “dealer” pursuant to 29-A M.R.S.A. § 851 et seq. Transient seller of secondhand goods. Any person who engages in the business of selling secondhand merchandise and who does not have, for the purpose of carrying on such business, any permanent place of business within the Town of Sanford. "Transient seller of secondhand goods" does not include persons who sell at public fairs or expositions or members selling on behalf of public service organizations. § 193-2. PURCHASE FROM MINOR. A pawnbroker, junk dealer, junk collector, or secondhand dealer or transient seller of secondhand goods will not either directly or indirectly purchase, acquire, or receive, by way of barter or exchange, any tangible personal propertygoods or articles of value from a person who has not attained the age of 18 except when said minor shall be accompanied by a parent or legal guardian who shall sign the transaction record in person before said dealer or collector. § PURCHASE FROM KNOWN THIEVES. A pawnbroker and secondhand dealer will not knowingly either directly or indirectly purchase, acquire, or receive, by way of barter or exchange, any tangible personal property from a person known to be a thief or a receiver of stolen property. The Police Department may advise the secondhand dealer of any person previously convicted as a thief or receiver of stolen property. § 193-3. RECORDS. Pawnbrokers. Pursuant to 30-A M.R.S.A. § 3962. 3 and 3971 Eevery pawnbroker and secondhand dealer shall keep records of every transaction for a period of no less than 2 years which shall be made promptly available for inspection at the principal place of business upon request by a law enforcement officer or prosecuting attorney and shall electronically report every transaction of tangible personal property or precious metal acquired, exchanged, pawned, or pledged through an electronic reporting system in the format, form, and manner designated by the Chief of Police and shall maintain equipment of sufficient capability to produce detailed, daily electronic transaction reports for each transaction to that electronic reporting system. Such equipment and capabilities include but are not limited to a computer with

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internet access and a digital color camera capable of providing readable and recognizable document photocopies and facial photographs. Each records of each transaction shall include:

A. A digital color photograph of the person’s face from the front; B. A digital color photocopy of a valid government issued photo identification document; C. The person’s name, date of birth, height, weight, hair color, and eye color; D. The person’s current address and telephone number; E. If the person is acting on behalf of a company or business, the name, address, and telephone

number of such company or business shall also be recorded; F. The date and time of the transaction; G. A complete and thorough description of transaction including, but not limited to the following:

a. Type of articles; b. Brand name, make, manufacturer (if applicable); c. Model number (if applicable); d. Serial number (if applicable); e. Color, finish, metal-type, and karat (if applicable); f. Distinguishing marks, identifiers, engravings, number and color of stones, etc.

H. A digital photograph of each transaction of tangible personal property or precious metal including the capture of distinguishing characteristics, identifying numbers, markings, writing, or engravings, etc.

§ ELECTRONIC REPORTING OF TRANSACTIONS. Each transaction of tangible personal property or precious metal shall be recorded to the designated electronic reporting system each day that the transaction takes place. Multiple pieces of similar tangible personal property or precious metal such as baseball card collections, action figure collections, tool sets, or jewelry collections may be grouped together using one general descriptor when entered into the designated electronic reporting system as a transaction. Each transaction recorded in the designated electronic reporting system shall contain the following information with the form completed accurately and in its entirety:

A. The person’s name, date of birth, height, weight, hair color, and eye color; B. The person’s current address and telephone number; C. If the person is acting on behalf of a company or business, the name, address, and telephone

number of such company or business shall also be recorded; D. The date and time of the transaction; E. A complete and thorough description of transaction including, but not limited to the following:

a. Type of articles; b. Brand name, make, manufacturer (if applicable); c. Model number (if applicable); d. Serial number (if applicable); e. Color, finish, metal-type, and karat (if applicable); f. Distinguishing marks, identifiers, engravings, number and color of stones, etc.

F. A digital photograph of each transaction of tangible personal property or precious metal including the capture of distinguishing characteristics, identifying numbers, markings, writing, or engravings, etc.

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In the event that the electronic reporting system malfunctions or is otherwise not operating, such malfunction or non-operability must be reported to the Chief of Police immediately. All transactions during such system malfunction or non-operability shall be delivered to the Chief of Police within 24 hours. System malfunctions or non-operability of equipment will be corrected within 48 hours. Failure to record each transaction into the designed electronic reporting system in the format, form, and manner prescribed by the Chief of Police or failure to maintain reporting equipment is a civil violations and grounds for the denial, revocation, or suspension of a pawnbroker or secondhand dealer license. , at the time of receiving any article pawned, pledged or received in exchange, or any other article or consideration, shall give the pawner a statement that the pawnbroker will return the article at a stipulated price which shall be computed in accordance with the requirements of 30-A M.R.S.A. Ch. 183, Subchapter VI, and shall complete in duplicate a sworn statement, forms for which shall be furnished by the Chief of Police, detailing the proven identity of the seller, including full name, date of birth, sex and address and type of identification of the person with whom the transaction is being made. If the identity of the seller cannot be proven, no transaction may occur. The pawnbroker shall record the day, month, year and hour when the transaction took place and a full, accurate and detailed description, including all distinguishing marks, brand name, model number, serial number and color, of each article so pawned, pledged or exchanged so as to make its identification certain and plain and the fair market value thereof and the price paid by the licensee and the source from which and the time when the pawner, pledger or vendor procured the same and cause such statement to be signed and sworn in duplicate by the person with whom such transaction has been made. The pawnbroker shall deliver or cause to be delivered at the Criminal Investigation Division of the Sanford Police Department a copy of the record, as soon as possible, but no later than 72 hours after completion of the transaction. Said dealer shall retain a copy of the record at his local place of business, which, along with any article therein listed, may be inspected by any duly authorized police officer. No article so purchased shall be sold, changed, or altered in its appearance or otherwise for seven days after the purchase thereof except with the written consent of the Town of Sanford Chief of Police, but in no case within 48 hours after said purchase. The pawnbroker shall retain the other copy of the record on file for a period of not less than two years, during which time the record may be inspected at any reasonable time by a law enforcement officer. Junk dealers and junk collectors. A junk dealer or junk collector, upon acquisition of any article described hereinbefore, shall keep a permanent record of such transaction which must include a full, accurate and detailed description of the item, along with the full name and address of the seller, the registration number of any vehicle used in the delivery of such item, and the time and date of the transaction. A copy of the record shall be delivered to the Detective Division of the Police Department within seven days thereafter, unless earlier delivery is requested by a police officer. Said dealer must retain the original record of the transaction, which may be inspected by any law enforcement officer upon request. The article therein listed may also be inspected during the time it remains in the possession, custody or control of the dealer. Secondhand dealers. Every secondhand dealer, upon acquisition of any article by either purchase or exchange, shall complete duplicate transaction record blanks which will be furnished by the Chief of Police stating the full name, address, and month, day and year on which the transaction took place, as

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well as a full and detailed description of each article so purchased or exchanged, with the price paid therefor, and cause such record to be signed by the seller in person. A copy of the record shall be delivered to the Detective Division of the Police Department within seven days thereafter, unless earlier delivered to a duly authorized police officer upon request. The secondhand dealer shall retain the other copy of the record on file for a period of not less than two years, during which time the record may be inspected at any reasonable time by any law enforcement officer. No article so purchased shall be sold or otherwise disposed of or changed or altered in its appearance or otherwise within 72 hours after purchase thereof, except with the written consent of the Chief of Police or his designated representative. The Chief of Police may impose reasonable conditions for the granting of such consent. Transient seller of secondhand goods. Every transient seller of second goods will adhere to the recordkeeping guidelines as set forth in Subsection C of this section, as well as all requirements of state law. In addition to these requirements, the record shall include the location where the property is being kept or stored and who has custody of the same. § HOLDING PERIOD A secondhand dealer may not sell any tangible personal property with the exception of CDs, DVDs, and video games until the tangible personal property has remained in the secondhand dealer’s possession for 7 days after the date of acquisition by the secondhand dealer, except that a secondhand dealer that determines that the tangible personal property is not listed as stolen in the designated electronic database as verified and approved by the Chief of Police. A precious metal dealer may not sell or alter any precious metals until the precious metals has remained in the precious metal dealer’s possession for 15 days after the date of acquisition by the precious metal dealer, except that a precious metal dealer that determines that the precious metals are not listed as stolen in the designated electronic database as approved and verified by the Chief of Police, may sell or alter the precious metal 10 days after the date of acquisition. § 193-4. POSTING OF LAWS; DISPLAY OF SIGN. Every pawnbroker shall post in a conspicuous location within the place of business a copy of the applicable statutes of the State of Maine and a copy of this chapter and will further display within the place of business a sign, legibly inscribed in large letters in the English language, with the name and occupation of the pawnbroker. § 193-5. STATE LAW TO APPLY. Except to the extent that this chapter contains a contrary provision, all provisions of 30-A M.R.S.A §§ 3960 to 3964-A and 3901 shall be additional requirements to the provisions of this chapter. § ACCOUNT OF BUSINESS DONE AND DISCLOSURE TO CONSUMER. Every pawnbroker shall maintain records for a period of no less than two years, which shall be made promptly available for inspection at the principal place of business upon request by a law enforcement officer or prosecuting attorney, in which the pawnbroker shall enter:

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A. The date, duration, amount, periodic rate of interest and annual percentage rate on every loan that is made;

B. The finance charge, due dates for payment and the total payment needed to redeem or repurchase the pawned property;

C. An accurate account and description of the property pawned;

D. The terms of redemption or repurchase, including any reduction in the finance charge for early redemption or repurchase and the right of the consumer to at least one extension of one month at the same rate of interest upon request in writing or in person; and

E. The name and residence of the consumer.

F. At the time of the pawn transaction, the pawnbroker shall deliver to the consumer a signed, written disclosure complying with the truth-in-lending provisions of the Maine Consumer Credit Code, Title 9-A, Article 8-A, containing the items required by subsection 1 and the name and address of the pawnbroker.

§ 193-6. LICENSE REQUIRED; VIOLATIONS AND PENALTIES. No person, firm or corporation will may engage in the business of pawnbroker, junk dealer, junk collector, and secondhand dealer, or transient seller of secondhand goods or conduct a flea market without first obtaining a license for each such purpose from the City. Licenses under this article shall not be issued unless the City Clerk receives affirmation from the Inspection Team, that the applicant’s proposed operation meets all applicable requirements. Any person carrying out such activity without a license is in violation of these provisions. Failure to comply with any of these requirements shall be deemed in violation of this article and is adequate grounds for the denial, revocation, or suspension of a license.issued by the Town of Sanford for such activity, except as provided in § 193-9. Any person who violates the provisions of this chapter commits a civil infraction for which a maximum penalty of $100 for each occurrence will be imposed. For the purpose of this chapter, each day any person operates contrary to the provisions of this chapter is a separate violation. § 193-7. APPLICATION FOR LICENSE. PROCEDURE AND FEES License applications under this article shall be processed according to the procedures established in this article and Chapter 149, Licensing. A license may be issued after the annual fee required has been paid through the City Clerk’s Office. The fee for a license shall be established under Chapter 149, Licensing, §149-1.3, Fees, of this Code, for pawnbrokers and secondhand dealers. Application for a license for a pawnbroker, junk dealer, junk collector, secondhand dealer, or transient seller of secondhand goods will be made to the Town Clerk, with payment of the fee, and in accordance with the procedures set forth in the Code of the Town of Sanford. No license shall be issued to any person unless all buildings and properties to be used in connection with the licensed activity are in compliance with applicable zoning, building and fire safety codes. § 193-8. DISQUALIFICATION.

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In addition to the general standards for denial, suspension or revocation of a pawnshop or secondhand dealer license and the standards for investigation of applicants pursuant to Chapter 149, Licensing or other standards found in the Code or elsewhere, a pawnshop or second hand dealer license may be denied, suspended or revoked on one or more of the following grounds:

A. Conviction of the applicant, licensee, employee of the licensee or person representing the licensee of any Class A, Class B, or Class C Crime;

B. Conviction of the applicant, licensee, employee of the licensee or person representing the

licensee of any misdemeanors or crimes involving dishonesty, such as theft, negotiating a worthless instrument, forgery, or unsworn falsification;

A license will not be issued to any person who is not of good moral character. For purposes of this section, an applicant shall be deemed not to satisfy this standard if he or she has been convicted within the last 10 years of a crime carrying a maximum term of imprisonment of more than one year. § 193-9. FLEA MARKETS. Any person who provides tables or space or otherwise operates a flea market must obtain a license from the Town Clerk for such flea market and shall report the names and addresses of all flea market dealers in such flea market and the number of the times the dealer has participated in the flea market since the previous March 1 to the Clerk within three days after such flea market. In addition, the operator of a flea market will cause each flea market dealer to register on a form prescribed by the Clerk and shall give the Clerk a copy of such registration. Purchasing of goods by a flea market dealer from any person, except another flea market dealer at a flea market prior to the opening of the flea market to the general public, is prohibited. Food will not be sold at a flea market, unless all applicable licenses have been obtained. Any person selling or working at the tables at more than six flea markets between March 1 and the last day of February of each year must obtain a flea market dealer's license. Related persons working at the same table or tables need only obtain one flea market dealer's license which must list all the persons involved in selling. As used in this section, "related person" shall mean and include persons who are related by either affinity or consanguinity and reside at the same address. Any person who sells only craft items made by the flea market dealer is not required to obtain a flea market dealer's license. The flea market operator shall exclude from participation in any flea market any person who the operator knows is required to obtain a flea market dealer's license and does not present proof of such licensing or who the operator knows has been barred from selling under this section. A person under the age of 18 will not be permitted to sell goods or work as a flea market dealer unless permission has been given by that person's parent or legal guardian. A person who is licensed as a secondhand dealer must also obtain a flea market dealer's license if that secondhand dealer participated in more than six flea markets during the time period stated in this section. Secondhand dealers so licensed must comply with the requirements of the secondhand dealer's license as well as the provisions of this section.

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A person who is determined by the Chief of Police or his designee to have violated any provision of this section may be barred from selling at a flea market for a period of not more than one year. Any person so charged will be afforded notice and an opportunity to be heard prior to being barred. Exception. The Chief of Police, upon written request, is empowered by this chapter to waive the licensing provisions of § 193-6 and this section when the request is made by a nonprofit charitable and benevolent organization. Examples include, but are not limited to, churches, scouts and schools. Such exemption will not be approved when any such nonprofit charitable organization applies for any more than three such singular events during a calendar year. If the nonprofit charitable organizations wish to administer a continuing, long-term flea market, then the licensing provisions of this chapter shall apply in full. The Chief of Police shall provide the Town Clerk with any waiver provided by this section. § 193-10. EXCLUSIONS. Specifically excluded from the provisions of this chapter are the following: Purchase from private residences by citizens not engaged in a secondhand-dealer-type business. Transactions between secondhand dealers. § 193-11. INSPECTIONS. The Chief of Police or any officer authorized by him may, at any time, enter upon any premises used by a licensed pawnbroker or licensed secondhand dealer for the purposes of his business to ascertain how he conducts his business and examine all articles taken in pawn or kept or stored in or upon said premises and all books and inventories relating thereto. Every such pawnbroker or secondhand dealer, his clerk, agent, servant or other person in charge of the premises shall exhibit to such officer on demand any or all such articles, books and inventories. § 193-12. LICENSE FEES. The licensing fees shall be established from time to time by the Town Council; provided, however, that the fee for any licensed pawnbroker or secondhand dealer or junk dealer/collector who has a fixed place of business in Town shall be reduced by 80% for any such licensee who videotapes all of his or her business transactions licensed hereunder and makes such videotapes available to the Police Department upon request of the Chief or his designee for official law enforcement purposes. § DIGITAL VIDEO RECORDING EQUIPMENT A secondhand dealer that makes high definition video recordings of their premises during hours of operation of high quality and placement in a manner to identify facial features of all customers entering and exiting the place of business and conducting all transactions may be eligible for a 50% discount from the secondhand dealer license fee and waiver of the obligation to record by way of a digital color

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photograph, the person’s face making the transaction upon verification and approval by the Chief of Police that the equipment is operational, of high quality and placement in the proper manner. The recordings must be kept for a minimum of 10 days.

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AN ORDINANCE AMENDING CHAPTER 149: LICENSING ESTABLISHING REGULATION OF TATTOO ARTISTS AND BODY PIERCING CHAPTER 149: LICENSING NEW ARTICLE: TATTOO ARTISTS AND BODY PIERCING § DEFINITIONS Body piercing. The creation of an opening in the body of a human being for the purpose of inserting jewelry or other decoration including, but not limited to, piercing of an ear, lip, tongue, nose, or eyebrow. Body piercing does not include piercing an earlobe with a disposable, single-use or solid needle that is applied using a mechanical device to force the needle or stud through the earlobe. Tattoo. Inserting pigment under the skin of human beings by pricking with a needle or otherwise, so as to produce an indelible mark or figure visible through the skin. § LICENSE REQUIRED No person, firm, or corporation may operate a tattoo artist establishment or body piercing establishment until such person, firm, or corporation first obtains a license for such purpose from the City. Licenses under this article shall not be issued unless the City Clerk receives affirmation from the Inspection Team, that the applicant’s operation meets all applicable requirements. Any person carrying out such activity without a license is in violation of these provisions. Failure to comply with any of these requirements shall be deemed in violation of this article and is adequate grounds for the denial, revocation, or suspension of a license. § PROCEDURE AND FEES License applications under this article shall be processed according to the procedures established in this article and Chapter 149, Licensing. A license may be issued after the annual fee required has been paid through the City Clerk’s Office. The fee for a license shall be established under Chapter 149, Licensing, §149-1.3, Fees, of this Code, for a tattoo artist or body piercing establishment. § APPLICATION FOR LICENSE A license application shall be made to the City Clerk on a form furnished by the City Clerk for such purpose and shall include in addition to any other required information established under Chapter 149, Licensing a copy of a valid State of Maine License for such occupation pursuant to 32 M.R.S.A. §§ 4201-4301 for tattoo artists and 32 M.R.S.A. §§ 4321-4329 for body piercing. § PREREQUISITES FOR TATTOOING In addition to those rules and regulations promulgated according to 32 M.R.S.A. §§ 4201-4301, no tattoo shall be administered except by conforming to all of the following:

A. Age. No tattoo shall be administered to any person less than 18 years old, as verified by a driver's license, liquor identification card, military identification card or other adequate record.

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B. Notice of permanency. Before administering a tattoo, the patron shall be advised that the tattoo should be considered permanent; that it can be removed only with a surgical procedure; and that any effective removal will leave permanent scarring and disfigurement. A written cautionary notice shall be furnished to and signed by the patron.

C. Skin condition. The skin to be tattooed shall be free from rash, pimples, infection or recent (less than two years) scar tissue. The patron must be in apparent good health, and the skin to be tattooed generally in a healthy condition to all appearances.

D. Sobriety of patron. Tattoos shall not be administered to any person under the influence of drugs or alcohol, and the operator is charged with the responsibility of making reasonable observation and inquiry to assure himself that the patron is not under the influence of drugs or alcohol.

E. Food, drink, smoking, and alcoholic beverages prohibited. The consumption of food or drink and smoking is prohibited in the tattooing area. The consumption of alcoholic beverages on the tattooing premises is prohibited.

F. Prior jaundice or hepatitis. The patron shall be asked, before the operation, whether he has had jaundice or hepatitis. If the answer is in the affirmative, the tattoo operation shall not be performed.

G. Record; form. The tattoo establishment shall keep a permanent record of all patrons tattooed, stating name, age, address, date of tattoo, operator's name, place where tattooed, and a description of the design of the tattoo. Such records shall be made available to any city official upon request, and shall be in the following form, which shall be signed by the patron and the tattoo artist: Date: _______________________________ I, the undersigned, realize that a tattoo is permanent; that it can be removed only with a surgical procedure; and that any effective removal will leave permanent scarring and disfigurement. Name: _______________________________ Address: _______________________________ Date of birth: _______________________________ Have you had jaundice or hepatitis within the last two years? Yes ________ No ________ Patron’s Signature: _______________________________ Description of tattoo: _______________________________ Area of body: _______________________________ Tattoo Artist’s Signature: _______________________________

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Memo

Number:To: Zoning Sub-CommitteeFrom: Ian Houseal, Community DevelopmentDate: 2018-05-08 13:00:00Subject: Alcohol and Drug Free Houses

RECOMMENDATION Review the attached business license for Alcohol and Drug Free Houses that is notregulated by the State of Maine and consider regulation of Alcohol and Drug FreeHousing for consistency between group homes which are State-licensed and un-licensed by the State and as applied from Federal Law regarding housingdiscrimination. See the definition of Family under Chapter 280 under Zoning

Background Information:In consideration of business licenses related to residential uses: - Group Homes -Alcohol and Drug Free Housing - Day Care Facilities

ATTACHMENTS

Chapter 149 - NEW Article - Alcohol and Drug Fee Housing.pdfFair Housing Act - Q&A - Federal Joint Statement.pdfSober House - Connecticut.pdfSober House Reference Materials.pdfSober House Regulation Legal Review - Texas.pdfThe Fair Housing Act Oxford House and the Limits of Local Contr.pdf

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https://legistarweb-production.s3.amazonaws.com/uploads/attachment/pdf/184248/Chapter_149_-_NEW_Article_-_Alcohol_and_Drug_Fee_Housing.pdfhttps://legistarweb-production.s3.amazonaws.com/uploads/attachment/pdf/184249/Fair_Housing_Act_-_Q_A_-_Federal_Joint_Statement.pdfhttps://legistarweb-production.s3.amazonaws.com/uploads/attachment/pdf/184250/Sober_House_-_Connecticut.pdfhttps://legistarweb-production.s3.amazonaws.com/uploads/attachment/pdf/184251/Sober_House_Reference_Materials.pdfhttps://legistarweb-production.s3.amazonaws.com/uploads/attachment/pdf/184252/Sober_House_Regulation_Legal_Review_-_Texas.pdfhttps://legistarweb-production.s3.amazonaws.com/uploads/attachment/pdf/184253/The_Fair_Housing_Act_Oxford_House_and_the_Limits_of_Local_Contr.pdf

AN ORDINANCE REGULATING ALCOHOL AND DRUG FREE HOUSING

CHAPTER 149: LICENSING NEW ARTICLE: ALCOHOL AND DRUG FREE HOUSING § PURPOSE. The regulation of businesses that provide living facilities for people in recovery from substance abuse disorders is necessary in order to protect the public health, safety, and welfare and:

(1) Protect the residents living in those living situations from exploitation; (2) Maintain adequate health and safety standards for protection of residents and neighbors; (3) Ensure adequate fire, police, and emergency response; and (4) Facilitate appropriate emergency response for residents who may require special assistance

during an emergency. § APPLICABILITY. This article shall apply to all businesses operating alcohol and drug free houses that are not licensed by the State of Maine. § EXCEPTIONS. A license shall not be required under this license category from State-licensed community living facilities, supported living arrangements, or nursing homes. § DEFINITIONS. In general, all words, phrases, and terms used in this article shall have their customary and usual meanings; as used in this article, the following words, phrases, and terms shall have the meaning indicated. Alcohol and drug free house. A business operated on a residential premises tailored for people in recovery from substance abuse disorders that may or may not be occupied under the definition of a family as defined by the Zoning Code, as a community living facility for eight or fewer people residing at that premises and that is not a state-licensed housing facility. An alcohol and drug free house is also known as a sober house or recovery house. Operator. The lawful owner of an alcohol and drug free house or a person, firm, or corporation employed and designated by the owner to have primary responsibility for the daily operation of such house and for maintaining standards and conditions in such house that create an environment supportive of substance use disorder recovery. The operator may be a resident of the alcohol and drug free house. § LICENSE REQUIRED. No person, firm, or corporation may operate an alcohol and drug free house until such person, firm, or corporation first obtains a license for such purpose from the City. Licenses under this article shall not be issued unless the City Clerk receives affirmation from the Inspection Team, that the applicant’s proposed operation meets all applicable requirements. Any person carrying out such activity without a license is in

19

violation of these provisions. Failure to comply with any of these requirements shall be deemed in violation of this article and is adequate grounds for the denial, revocation, or suspension of a license. § PROCEDURE AND FEES License applications under this article shall be processed according to the procedures established in this article and Chapter 149, Licensing. A license may be issued after the fee required has been paid through the City Clerk’s Office. The fee for a license shall be established under Chapter 149, Licensing, §149-1.3, Fees, of this Code, for alcohol and drug free house. § APPLICATION FOR LICENSE A license application shall be made to the City Clerk by the operator on a form furnished by the City Clerk for such purpose and shall include in addition to any other required information established under Chapter 149, Licensing:

(1) The name of the applicant (operator), business name, and contact information including name, mailing address, phone number and email address;

(2) An affidavit from the operator, which shall be a statement of having met the requirements of the section concerning the OPERATOR.

(3) An affidavit from the owner of the property, which shall state that the owner understands their property is being used for such business activity.

(4) Copy of the house rules for the facility, demonstrating having met the minimum standards set expressed in this article.

(5) The number of residents. § ISSUANCE OF LICENSES; CONDITIONS A license pursuant to this article may only be issued to the operator named and for the address provided on the approved license application. Only one license may be issued for each address and operator named on the approved license application. No transfer of a license is allowed between the names or addresses; any change of ownership or address requires a new license. § OPERATOR. An alcohol and drug free house must be operated or managed by a person, firm, or corporation with at least two years’ experience working with people with substance abuse disorders or, if the operator or manager is in recovery, they must be abstinent for at least one year. § MINIMUM HOUSE RULES. An applicant shall provide as documentation with their license application, a set of house rules or documentation of policies and procedures that state, at a minimum:

(1) Absolutely no alcohol or non-professionally administered drug use on or off the premises;

(2) Eviction for failing to submit a urine sample when asked by house staff and for committing or threatening violence;

(3) No visitors allowed without manager’s consent and no guests allowed overnight; 20

(4) No borrowing money from staff or other residents;

(5) Signing-out when leaving and returning to house; and

(6) Adherence to house curfew.

(7) Providing residents access to staff 24 hours a day, seven days a week.

(8) Prohibition against anyone with an outstanding criminal warrant to live there;

(9) Providing furnished living space to all residents;

(10) Prohibiting smoking anywhere in the house;

(11) Emergency procedures. § LIFE SAFETY AND PROPERTY MAINTENANCE CODE REQUIREMENTS

A. The residential premises shall be in compliance with the appropriate chapter(s) of the NFPA 101 Life Safety Code as adopted by reference.

B. The residential premises shall be in compliance the International Property Maintenance Code as

adopted by reference.

C. The residential premises shall be in compliance with the Zoning Code.

§ CERTAIN LOCATIONS PROHIBITED FROM OBTAINING A LICENSE No license may be issued to a business location within 500 feet of another business of the same kind.

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U.S. DEPARTMENT OF HOUSING A ND URBAN DEVELOPMENT OFFICE OF FAIR HOUSING AND EQUAL OPPORTUNITY

U.S. DEPARTMENT OF JUSTICE CIVIL RIGHTS DIVISION

Washington, D.C. November 10, 2016

JOINT STATEMENT OF THE DEPARTMENT OF HOUSING AND URBAN

DEVELOPMENT AND THE DEPARTMENT OF JUSTICE

STATE AND LOCAL LAND USE LAWS AND PRACTICES AND THE APPLICATION

OF THE FAIR HOUSING ACT

INTRODUCTION

The Department of Justice (“DOJ”) and the Department of Housing and Urban Development (“HUD”) are jointly responsible for enforcing the Federal Fair Housing Act (“the Act”),1 which prohibits discrimination in housing on the basis of race, color, religion, sex, disability, familial status (children under 18 living with a parent or guardian), or national origin.2

The Act prohibits housing-related policies and practices that exclude or otherwise discriminate against individuals because of protected characteristics.

The regulation of land use and zoning is traditionally reserved to state and local governments, except to the extent that it conflicts with requirements imposed by the Fair Housing Act or other federal laws. This Joint Statement provides an overview of the Fair Housing Act’s requirements relating to state and local land use practices and zoning laws, including conduct related to group homes. It updates and expands upon DOJ’s and HUD’s Joint

1 The Fair Housing Act is codified at 42 U.S.C. §§ 3601–19.

2 The Act uses the term “handicap” instead of “disability.” Both terms have the same legal meaning. See Bragdon

v. Abbott, 524 U.S. 624, 631 (1998) (noting that the definition of “disability” in the Americans with Disabilities Act

1

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Statement on Group Homes, Local Land Use, and the Fair Housing Act, issued on August 18, 1999. The first section of the Joint Statement, Questions 1–6, describes generally the Act’s requirements as they pertain to land use and zoning. The second and third sections, Questions 7– 25, discuss more specifically how the Act applies to land use and zoning laws affecting housing for persons with disabilities, including guidance on regulating group homes and the requirement to provide reasonable accommodations. The fourth section, Questions 26–27, addresses HUD’s and DOJ’s enforcement of the Act in the land use and zoning context.

This Joint Statement focuses on the Fair Housing Act, not on other federal civil rights laws that prohibit state and local governments from adopting or implementing land use and zoning practices that discriminate based on a protected characteristic, such as Title II of the Americans with Disabilities Act (“ADA”),3 Section 504 of the Rehabilitation Act of 1973 (“Section 504”),4 and Title VI of the Civil Rights Act of 1964.5 In addition, the Joint Statement does not address a state or local government’s duty to affirmatively further fair housing, even though state and local governments that receive HUD assistance are subject to this duty. For additional information provided by DOJ and HUD regarding these issues, see the list of resources provided in the answer to Question 27.

Questions and Answers on the Fair Housing Act and

State and Local Land Use Laws and Zoning

1. How does the Fair Housing Act apply to state and local land use and zoning?

The Fair Housing Act prohibits a broad range of housing practices that discriminate against individuals on the basis of race, color, religion, sex, disability, familial status, or national origin (commonly referred to as protected characteristics). As established by the Supremacy Clause of the U.S. Constitution, federal laws such as the Fair Housing Act take precedence over conflicting state and local laws. The Fair Housing Act thus prohibits state and local land use and zoning laws, policies, and practices that discriminate based on a characteristic protected under the Act. Prohibited practices as defined in the Act include making unavailable or denying housing because of a protected characteristic. Housing includes not only buildings intended for occupancy as residences, but also vacant land that may be developed into residences.

is drawn almost verbatim “from the definition of ‘handicap’ contained in the Fair Housing Amendments Act of 1988”). This document uses the term “disability,” which is more generally accepted.

3 42 U.S.C. §12132.

4 29 U.S.C. § 794.

5 42 U.S.C. § 2000d.

2

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2. What types of land use and zoning laws or practices violate the Fair Housing Act?

Examples of state and local land use and zoning laws or practices that may violate the Act include:

Prohibiting or restricting the development of housing based on the belief that the residents will be members of a particular protected class, such as race, disability, or familial status, by, for example, placing a moratorium on the development of multifamily housing because of concerns that the residents will include members of a particular protected class.

Imposing restrictions or additional conditions on group housing for persons with disabilities that are not imposed on families or other groups of unrelated individuals, by, for example, requiring an occupancy permit for persons with disabilities to live in a single-family home while not requiring a permit for other residents of single-family homes.

Imposing restrictions on housing because of alleged public safety concerns that are based on stereotypes about the residents’ or anticipated residents’ membership in a protected class, by, for example, requiring a proposed development to provide additional security measures based on a belief that persons of a particular protected class are more likely to engage in criminal activity.

Enforcing otherwise neutral laws or policies differently because of the residents’ protected characteristics, by, for example, citing individuals who are members of a particular protected class for violating code requirements for property upkeep while not citing other residents for similar violations.

Refusing to provide reasonable accommodations to land use or zoning policies when such accommodations may be necessary to allow persons with disabilities to have an equal opportunity to use and enjoy the housing, by, for example, denying a request to modify a setback requirement so an accessible sidewalk or ramp can be provided for one or more persons with mobility disabilities.

3. When does a land use or zoning practice constitute intentional discrimination in violation of the Fair Housing Act?

Intentional discrimination is also referred to as disparate treatment, meaning that the action treats a person or group of persons differently because of race, color, religion, sex, disability, familial status, or national origin. A land use or zoning practice may be intentionally discriminatory even if there is no personal bias or animus on the part of individual government officials. For example, municipal zoning practices or decisions that reflect acquiescence to community bias may be intentionally discriminatory, even if the officials themselves do not personally share such bias. (See Q&A 5.) Intentional discrimination does not require that the

3

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decision-makers were hostile toward members of a particular protected class. Decisions motivated by a purported desire to benefit a particular group can also violate the Act if they result in differential treatment because of a protected characteristic.

A land use or zoning practice may be discriminatory on its face. For example, a law that requires persons with disabilities to request permits to live in single-family zones while not requiring persons without disabilities to request such permits violates the Act because it treats persons with disabilities differently based on their disability. Even a law that is seemingly neutral will still violate the Act if enacted with discriminatory intent. In that instance, the analysis of whether there is intentional discrimination will be based on a variety of factors, all of which need not be satisfied. These factors include, but are not limited to: (1) the “impact” of the municipal practice, such as whether an ordinance disproportionately impacts minority residents compared to white residents or whether the practice perpetuates segregation in a neighborhood or particular geographic area; (2) the “historical background” of the action, such as whether there is a history of segregation or discriminatory conduct by the municipality; (3) the “specific sequence of events,” such as whether the city adopted an ordinance or took action only after significant, racially-motivated community opposition to a housing development or changed course after learning that a development would include non-white residents; (4) departures from the “normal procedural sequence,” such as whether a municipality deviated from normal application or zoning requirements; (5) “substantive departures,” such as whether the factors usually considered important suggest that a state or local government should have reached a different result; and (6) the “legislative or administrative history,” such as any statements by members of the state or local decision-making body.6

4. Can state and local land use and zoning laws or practices violate the Fair Housing Act if the state or locality did not intend to discriminate against persons on a prohibited basis?

Yes. Even absent a discriminatory intent, state or local governments may be liable under the Act for any land use or zoning law or practice that has an unjustified discriminatory effect because of a protected characteristic. In 2015, the United States Supreme Court affirmed this interpretation of the Act in Texas Department of Housing and Community Affairs v. Inclusive Communities Project, Inc.7 The Court stated that “[t]hese unlawful practices include zoning laws and other housing restrictions that function unfairly to exclude minorities from certain neighborhoods without any sufficient justification.”8

6 Vill. of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 265–68 (1977).

7 ___ U.S. ___, 135 S. Ct. 2507 (2015).

8 Id. at 2521–22.

4

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A land use or zoning practice results in a discriminatory effect if it caused or predictably will cause a disparate impact on a group of persons or if it creates, increases, reinforces, or perpetuates segregated housing patterns because of a protected characteristic. A state or local government still has the opportunity to show that the practice is necessary to achieve one or more of its substantial, legitimate, nondiscriminatory interests. These interests must be supported by evidence and may not be hypothetical or speculative. If these interests could not be served by another practice that has a less discriminatory effect, then the practice does not violate the Act. The standard for evaluating housing-related practices with a discriminatory effect are set forth in HUD’s Discriminatory Effects Rule, 24 C.F.R § 100.500.

Examples of land use practices that violate the Fair Housing Act under a discriminatory effects standard include minimum floor space or lot size requirements that increase the size and cost of housing if such an increase has the effect of excluding persons from a locality or neighborhood because of their membership in a protected class, without a legally sufficient justification. Similarly, prohibiting low-income or multifamily housing may have a discriminatory effect on persons because of their membership in a protected class and, if so, would violate the Act absent a legally sufficient justification.

5. Does a state or local government violate the Fair Housing Act if it considers the fears or prejudices of community members when enacting or applying its zoning or land use laws respecting housing?

When enacting or applying zoning or land use laws, state and local governments may not act because of the fears, prejudices, stereotypes, or unsubstantiated assumptions that community members may have about current or prospective residents because of the residents’ protected characteristics. Doing so violates the Act, even if the officials themselves do not personally share such bias. For example, a city may not deny zoning approval for a low-income housing development that meets all zoning and land use requirements because the development may house residents of a particular protected class or classes whose presence, the community fears, will increase crime and lower property values in the surrounding neighborhood. Similarly, a local government may not block a group home or deny a requested reasonable accommodation in response to neighbors’ stereotypical fears or prejudices about persons with disabilities or a particular type of disability. Of course, a city council or zoning board is not bound by everything that is said by every person who speaks at a public hearing. It is the record as a whole that will be determinative.

5

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6. Can state and local governments violate the Fair Housing Act if they adopt or implement restrictions against children?

Yes. State and local governments may not impose restrictions on where families with children may reside unless the restrictions are consistent with the “housing for older persons” exemption of the Act. The most common types of housing for older persons that may qualify for this exemption are: (1) housing intended for, and solely occupied by, persons 62 years of age or older; and (2) housing in which 80% of the occupied units have at least one person who is 55 years of age or older that publishes and adheres to policies and procedures demonstrating the intent to house older persons. These types of housing must meet all requirements of the exemption, including complying with HUD regulations applicable to such housing, such as verification procedures regarding the age of the occupants. A state or local government that zones an area to exclude families with children under 18 years of age must continually ensure that housing in that zone meets all requirements of the exemption. If all of the housing in that zone does not continue to meet all such requirements, that state or local government violates the Act.

Questions and Answers on the Fair Housing Act and

Local Land Use and Zoning Regulation of Group Homes

7. Who qualifies as a person with a disability under the Fair Housing Act?

The Fair Housing Act defines a person with a disability to include (1) individuals with a physical or mental impairment that substantially limits one or more major life activities; (2) individuals who are regarded as having such an impairment; and (3) individuals with a record of such an impairment.

The term “physical or mental impairment” includes, but is not limited to, diseases and conditions such as orthopedic, visual, speech and hearing impairments, cerebral palsy, autism, epilepsy, muscular dystrophy, multiple sclerosis, cancer, heart disease, diabetes, HIV infection, developmental disabilities, mental illness, drug addiction (other than addiction caused by current, illegal use of a controlled substance), and alcoholism.

The term “major life activity” includes activities such as seeing, hearing, walking breathing, performing manual tasks, caring for one’s self, learning, speaking, and working. This list of major life activities is not exhaustive.

Being regarded as having a disability means that the individual is treated as if he or she has a disability even though the individual may not have an impairment or may not have an impairment that substantially limits one or more major life activities. For example, if a landlord

6

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refuses to rent to a person because the landlord believes the prospective tenant has a disability, then the landlord violates the Act’s prohibition on discrimination on the basis of disability, even if the prospective tenant does not actually have a physical or mental impairment that substantially limits one or more major life activities.

Having a record of a disability means the individual has a history of, or has been misclassified as having, a mental or physical impairment that substantially limits one or more major life activities.

8. What is a group home within the meaning of the Fair Housing Act?

The term “group home” does not have a specific legal meaning; land use and zoning officials and the courts, however, have referred to some residences for persons with disabilities as group homes. The Fair Housing Act prohibits discrimination on the basis of disability, and persons with disabilities have the same Fair Housing Act protections whether or not their housing is considered a group home. A household where two or more persons with disabilities choose to live together, as a matter of association, may not be subjected to requirements or conditions that are not imposed on households consisting of persons without disabilities.

In this Statement, the term “group home” refers to a dwelling that is or will be occupied by unrelated persons with disabilities. Sometimes group homes serve individuals with a particular type of disability, and sometimes they serve individuals with a variety of disabilities. Some group homes provide residents with in-home support services of varying types, while others do not. The provision of support services is not required for a group home to be protected under the Fair Housing Act. Group homes, as discussed in this Statement, may be opened by individuals or by organizations, both for-profit and not-for-profit. Sometimes it is the group home operator or developer, rather than the individuals who live or are expected to live in the home, who interacts with a state or local government agency about developing or operating the group home, and sometimes there is no interaction among residents or operators and state or local governments.

In this Statement, the term “group home” includes homes occupied by persons in recovery from alcohol or substance abuse, who are persons with disabilities under the Act. Although a group home for persons in recovery may commonly be called a “sober home,” the term does not have a specific legal meaning, and the Act treats persons with disabilities who reside in such homes no differently than persons with disabilities who reside in other types of group homes. Like other group homes, homes for persons in recovery are sometimes operated by individuals or organizations, both for-profit and not-for-profit, and support services or supervision are sometimes, but not always, provided. The Act does not require a person who resides in a home for persons in recovery to have participated in or be currently participating in a

7

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substance abuse treatment program to be considered a person with a disability. The fact that a resident of a group home may currently be illegally using a controlled substance does not deprive the other residents of the protection of the Fair Housing Act.

9. In what ways does the Fair Housing Act apply to group homes?

The Fair Housing Act prohibits discrimination on the basis of disability, and persons with disabilities have the same Fair Housing Act protections whether or not their housing is considered a group home. State and local governments may not discriminate against persons with disabilities who live in group homes. Persons with disabilities who live in or seek to live in group homes are sometimes subjected to unlawful discrimination in a number of ways, including those discussed in the preceding Section of this Joint Statement. Discrimination may be intentional; for example, a locality might pass an ordinance prohibiting group homes in single-family neighborhoods or prohibiting group homes for persons with certain disabilities. These ordinances are facially discriminatory, in violation of the Act. In addition, as discussed more fully in Q&A 10 below, a state or local government may violate the Act by refusing to grant a reasonable accommodation to its zoning or land use ordinance when the requested accommodation may be necessary for persons with disabilities to have an equal opportunity to use and enjoy a dwelling. For example, if a locality refuses to waive an ordinance that limits the number of unrelated persons who may live in a single-family home where such a waiver may be necessary for persons with disabilities to have an equal opportunity to use and enjoy a dwelling, the locality violates the Act unless the locality can prove that the waiver would impose an undue financial and administrative burden on the local government or fundamentally alter the essential nature of the locality’s zoning scheme. Furthermore, a state or local government may violate the Act by enacting an ordinance that has an unjustified discriminatory effect on persons with disabilities who seek to live in a group home in the community. Unlawful actions concerning group homes are discussed in more detail throughout this Statement.

10. What is a reasonable accommodation under the Fair Housing Act?

The Fair Housing Act makes it unlawful to refuse to make “reasonable accommodations” to rules, policies, practices, or services, when such accommodations may be necessary to afford persons with disabilities an equal opportunity to use and enjoy a dwelling. A “reasonable accommodation” is a change, exception, or adjustment to a rule, policy, practice, or service that may be necessary for a person with a disability to have an equal opportunity to use and enjoy a dwelling, including public and common use spaces. Since rules, policies, practices, and services may have a different effect on persons with disabilities than on other persons, treating persons with disabilities exactly the same as others may sometimes deny them an equal opportunity to use and enjoy a dwelling.

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Even if a zoning ordinance imposes on group homes the same restrictions that it imposes on housing for other groups of unrelated persons, a local government may be required, in individual cases and when requested to do so, to grant a reasonable accommodation to a group home for persons with disabilities. What constitutes a reasonable accommodation is a case-by-case determination based on an individualized assessment. This topic is discussed in detail in Q&As 20–25 and in the HUD/DOJ Joint Statement on Reasonable Accommodations under the Fair Housing Act.

11. Does the Fair Housing Act protect persons with disabilities who pose a “direct threat” to others?

The Act does not allow for the exclusion of individuals based upon fear, speculation, or stereotype about a particular disability or persons with disabilities in general. Nevertheless, the Act does not protect an individual whose tenancy would constitute a “direct threat” to the health or safety of other individuals or whose tenancy would result in substantial physical damage to the property of others unless the threat or risk to property can be eliminated or significantly reduced by reasonable accommodation. A determination that an individual poses a direct threat must rely on an individualized assessment that is based on reliable objective evidence (for example, current conduct or a recent history of overt acts). The assessment must consider: (1) the nature, duration, and severity of the risk of injury; (2) the probability that injury will actually occur; and (3) whether there are any reasonable accommodations that will eliminate or significantly reduce the direct threat. See Q&A 10 for a general discussion of reasonable accommodations. Consequently, in evaluating an individual’s recent history of overt acts, a state or local government must take into account whether the individual has received intervening treatment or medication that has eliminated or significantly reduced the direct threat (in other words, significant risk of substantial harm). In such a situation, the state or local government may request that the individual show how the circumstances have changed so that he or she no longer poses a direct threat. Any such request must be reasonable and limited to information necessary to assess whether circumstances have changed. Additionally, in such a situation, a state or local government may obtain satisfactory and reasonable assurances that the individual will not pose a direct threat during the tenancy. The state or local government must have reliable, objective evidence that the tenancy of a person with a disability poses a direct threat before excluding him or her from housing on that basis, and, in making that assessment, the state or local government may not ignore evidence showing that the individual’s tenancy would no longer pose a direct threat. Moreover, the fact that one individual may pose a direct threat does not mean that another individual with the same disability or other individuals in a group home may be denied housing.

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12. Can a state or local government enact laws that specifically limit group homes for individuals with specific types of disabilities?

No. Just as it would be illegal to enact a law for the purpose of excluding or limiting group homes for individuals with disabilities, it is illegal under the Act for local land use and zoning laws to exclude or limit group homes for individuals with specific types of disabilities. For example, a government may not limit group homes for persons with mental illness to certain neighborhoods. The fact that the state or local government complies with the Act with regard to group homes for persons with some types of disabilities will not justify discrimination against individuals with another type of disability, such as mental illness.

13. Can a state or local government limit the number of individuals who reside in a group home in a residential neighborhood?

Neutral laws that govern groups of unrelated persons who live together do not violate the Act so long as (1) those laws do not intentionally discriminate against persons on the basis of disability (or other protected class), (2) those laws do not have an unjustified discriminatory effect on the basis of disability (or other protected class), and (3) state and local governments make reasonable accommodations when such accommodations may be necessary for a person with a disability to have an equal opportunity to use and enjoy a dwelling.

Local zoning and land use laws that treat groups of unrelated persons with disabilities less favorably than similar groups of unrelated persons without disabilities violate the Fair Housing Act. For example, suppose a city’s zoning ordinance defines a “family” to include up to a certain number of unrelated persons living together as a household unit, and gives such a group of unrelated persons the right to live in any zoning district without special permission from the city. If that ordinance also prohibits a group home having the same number of persons with disabilities in a certain district or requires it to seek a use permit, the ordinance would violate the Fair Housing Act. The ordinance violates the Act because it treats persons with disabilities less favorably than families and unrelated persons without disabilities.

A local government may generally restrict the ability of groups of unrelated persons to live together without violating the Act as long as the restrictions are imposed on all such groups, including a group defined as a family. Thus, if the definition of a family includes up to a certain number of unrelated individuals, an ordinance would not, on its face, violate the Act if a group home for persons with disabilities with more than the permitted number for a family were not allowed to locate in a single-family-zoned neighborhood because any group of unrelated people without disabilities of that number would also be disallowed. A facially neutral ordinance, however, still may violate the Act if it is intentionally discriminatory (that is, enacted with discriminatory intent or applied in a discriminatory manner), or if it has an unjustified

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discriminatory effect on persons with disabilities. For example, an ordinance that limits the number of unrelated persons who may constitute a family may violate the Act if it is enacted for the purpose of limiting the number of persons with disabilities who may live in a group home, or if it has the unjustified discriminatory effect of excluding or limiting group homes in the jurisdiction. Governments may also violate the Act if they enforce such restrictions more strictly against group homes than against groups of the same number of unrelated persons without disabilities who live together in housing. In addition, as discussed in detail below, because the Act prohibits the denial of reasonable accommodations to rules and policies for persons with disabilities, a group home that provides housing for a number of persons with disabilities that exceeds the number allowed under the family definition has the right to seek an exception or waiver. If the criteria for a reasonable accommodation are met, the permit must be given in that instance, but the ordinance would not be invalid.9

14. How does the Supreme Court’s ruling in Olmstead apply to the Fair Housing Act?

In Olmstead v. L.C.,10 the Supreme Court ruled that the Americans with Disabilities Act (ADA) prohibits the unjustified segregation of persons with disabilities in institutional settings where necessary services could reasonably be provided in integrated, community-based settings. An integrated setting is one that enables individuals with disabilities to live and interact with individuals without disabilities to the fullest extent possible. By contrast, a segregated setting includes congregate settings populated exclusively or primarily by individuals with disabilities. Although Olmstead did not interpret the Fair Housing Act, the objectives of the Fair Housing Act and the ADA, as interpreted in Olmstead, are consistent. The Fair Housing Act ensures that persons with disabilities have an equal opportunity to choose the housing where they wish to live. The ADA and Olmstead ensure that persons with disabilities also have the option to live and receive services in the most integrated setting appropriate to their needs. The integration mandate of the ADA and Olmstead can be implemented without impairing the rights protected by the Fair Housing Act. For example, state and local governments that provide or fund housing, health care, or support services must comply with the integration mandate by providing these programs, services, and activities in the most integrated setting appropriate to the needs of individuals with disabilities. State and local governments may comply with this requirement by adopting standards for the housing, health care, or support services they provide or fund that are reasonable, individualized, and specifically tailored to enable individuals with disabilities to live and interact with individuals without disabilities to the fullest extent possible. Local governments should be aware that ordinances and policies that impose additional restrictions on housing or residential services for persons with disabilities that are not imposed on housing or

9 Laws that limit the number of occupants per unit do not violate the Act as long as they are reasonable, are applied

to all occupants, and do not operate to discriminate on the basis of disability, familial status, or other characteristics

protected by the Act.

10 527 U.S. 581 (1999).

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residential services for persons without disabilities are likely to violate the Act. In addition, a locality would violate the Act and the integration mandate of the ADA and Olmstead if it required group homes to be concentrated in certain areas of the jurisdiction by, for example, restricting them from being located in other areas.

15. Can a state or local government impose spacing requirements on the location of group homes for persons with disabilities?

A “spacing” or “dispersal” requirement generally refers to a requirement that a group home for persons with disabilities must not be located within a specific distance of another group home. Sometimes a spacing requirement is designed so it applies only to group homes and sometimes a spacing requirement is framed more generally and applies to group homes and other types of uses such as boarding houses, student housing, or even certain types of businesses. In a community where a certain number of unrelated persons are permitted by local ordinance to reside together in a home, it would violate the Act for the local ordinance to impose a spacing requirement on group homes that do not exceed that permitted number of residents because the spacing requirement would be a condition imposed on persons with disabilities that is not imposed on persons without disabilities. In situations where a group home seeks a reasonable accommodation to exceed the number of unrelated persons who are permitted by local ordinance to reside together, the Fair Housing Act does not prevent state or local governments from taking into account concerns about the over-concentration of group homes that are located in close proximity to each other. Sometimes compliance with the integration mandate of the ADA and Olmstead requires government agencies responsible for licensing or providing housing for persons with disabilities to consider the location of other group homes when determining what housing will best meet the needs of the persons being served. Some courts, however, have found that spacing requirements violate the Fair Housing Act because they deny persons with disabilities an equal opportunity to choose where they will live. Because an across-the-board spacing requirement may discriminate against persons with disabilities in some residential areas, any standards that state or local governments adopt should evaluate the location of group homes for persons with disabilities on a case-by-case basis.

Where a jurisdiction has imposed a spacing requirement on the location of group homes for persons with disabilities, courts may analyze whether the requirement violates the Act under an intent, effects, or reasonable accommodation theory. In cases alleging intentional discrimination, courts look to a number of factors, including the effect of the requirement on housing for persons with disabilities; the jurisdiction’s intent behind the spacing requirement; the existence, size, and location of group homes in a given area; and whether there are methods other than a spacing requirement for accomplishing the jurisdiction’s stated purpose. A spacing requirement enacted with discriminatory intent, such as for the purpose of appeasing neighbors’ stereotypical fears about living near persons with disabilities, violates the Act. Further, a neutral

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spacing requirement that applies to all housing for groups of unrelated persons may have an unjustified discriminatory effect on persons with disabilities, thus violating the Act. Jurisdictions must also consider, in compliance with the Act, requests for reasonable accommodations to any spacing requirements.

16. Can a state or local government impose health and safety regulations on group home operators?

Operators of group homes for persons with disabilities are subject to applicable state and local regulations addressing health and safety concerns unless those regulations are inconsistent with the Fair Housing Act or other federal law. Licensing and other regulatory requirements that may apply to some group homes must also be consistent with the Fair Housing Act. Such regulations must not be based on stereotypes about persons with disabilities or specific types of disabilities. State or local zoning and land use ordinances may not, consistent with the Fair Housing Act, require individuals with disabilities to receive medical, support, or other services or supervision that they do not need or want as a condition for allowing a group home to operate. State and local governments’ enforcement of neutral requirements regarding safety, licensing, and other regulatory requirements governing group homes do not violate the Fair Housing Act so long as the ordinances are enforced in a neutral manner, they do not specifically target group homes, and they do not have an unjustified discriminatory effect on persons with disabilities who wish to reside in group homes.

Governments must also consider requests for reasonable accommodations to licensing and regulatory requirements and procedures, and grant them where they may be necessary to afford individuals with disabilities an equal opportunity to use and enjoy a dwelling, as required by the Act.

17. Can a state or local government address suspected criminal activity or fraud and abuse at group homes for persons with disabilities?

The Fair Housing Act does not prevent state and local governments from taking nondiscriminatory action in response to criminal activity, insurance fraud, Medicaid fraud, neglect or abuse of residents, or other illegal conduct occurring at group homes, including reporting complaints to the appropriate state or federal regulatory agency. States and localities must ensure that actions to enforce criminal or other laws are not taken to target group homes and are applied equally, regardless of whether the residents of housing are persons with disabilities. For example, persons with disabilities residing in group homes are entitled to the same constitutional protections against unreasonable search and seizure as those without disabilities.

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18. Does the Fair Housing Act permit a state or local government to implement

strategies to integrate group homes for persons with disabilities in particular

neighborhoods where they are not currently located?

Yes. Some strategies a state or local government could use to further the integration of group housing for persons with disabilities, consistent with the Act, include affirmative marketing or offering incentives. For example, jurisdictions may engage in affirmative marketing or offer variances to providers of housing for persons with disabilities to locate future homes in neighborhoods where group homes for persons with disabilities are not currently located. But jurisdictions may not offer incentives for a discriminatory purpose or that have an unjustified discriminatory effect because of a protected characteristic.

19. Can a local government consider the fears or prejudices of neighbors in deciding whether a group home can be located in a particular neighborhood?

In the same way a local government would violate the law if it rejected low-income housing in a community because of neighbors’ fears that such housing would be occupied by racial minorities (see Q&A 5), a local government violates the law if it blocks a group home or denies a reasonable accommodation request because of neighbors’ stereotypical fears or prejudices about persons with disabilities. This is so even if the individual government decision-makers themselves do not have biases against persons with disabilities.

Not all community opposition to requests by group homes is necessarily discriminatory. For example, when a group home seeks a reasonable accommodation to operate in an area and the area has limited on-street parking to serve existing residents, it is not a violation of the Fair Housing Act for neighbors and local government officials to raise concerns that the group home