Transitional housing participant misconduct act thpma presentation
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TRANSITIONAL HOUSING PARTICIPANT MISCONDUCT ACT (THPMA) PRESENTATION. PART I. Does a transitional housing provider have to use the court process to remove someone from transitional housing?. General Rule :

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Does a transitional housing provider have to use the court process to remove someone from transitional housing?

  • General Rule:

    • All agreements for housing (where the occupant is not the owner), are subject to California formal eviction process (i.e., unlawful detainer). Civil Code §1940.

    • Removal of transitional housing occupant without legal process can subject provider to legal liability.


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What is the THPMA? process to remove someone from transitional housing?

  • Health & Safety Code §50580 et. seq.

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


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What is a transitional housing program? process to remove someone from transitional housing?

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


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What is a THP (cont.)? process to remove someone from transitional housing?

  • Residency requirements from 30 days to 24 months.

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

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


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What is a THP operator? process to remove someone from transitional housing?

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

    • OR

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


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What is a THP participant? process to remove someone from transitional housing?

  • A homeless person under contract with a THP operator to participate in a THP and to use a dwelling unit in the program site.

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

    • Includes any person living with participant.


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Does THP need a written contract with participant? process to remove someone from transitional housing?

  • THPs don’t need written contracts. But, to utilize THPMA process, there must be a written contract with the following:

    • THP rules and regulations.

    • Statement of THP operator’s right of control over and access to the unit.

    • Statement of procedures and rights under the Act. (See, Judicial Council Form)


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When may a THP operator use the THPMA process process to remove someone from transitional housing??

  • An operator may use the expedited THPMA restraining order/injunction process only for:

    • Program misconduct

      • OR

    • Abuse


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What is “program misconduct”? process to remove someone from transitional housing?

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

  • Program misconduct =

    • Intentional violations of THP rules and regs

    • Which “substantially interfere with orderly operation of program”

    • AND involve one of the following:


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What is “program misconduct” (cont.)? process to remove someone from transitional housing?

  • Drunkenness on site

  • Unlawful use or sale of drugs

  • Theft

  • Arson

  • Destruction of property;*

  • Violence or threat of violence and harassment.*

    • * Against operator, other participants, employees, or persons living w/in 100 ft of program site.


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What is “abuse?” process to remove someone from transitional housing?

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

    • OR

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


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

  • Use the eviction/Unlawful Detainer process.

    • OR

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


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What is the “TRO” process? misconduct?

  • 2 step process:

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

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


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

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

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


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

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

  • May request these orders effective up to a year (renewable) after hearing.

  • May get immediate exclusion or stay away orders in TRO pending hearing only in an “emergency.”

    • Emergency = necessary to protect another participant, employee, or person living w/in 100 feet of site from “imminent serious bodily injury.”


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

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

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

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


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What if THP operator does not get exclusion order? order?

  • (1) If participant violates conditions of restraining order: THP may serve 3-day notice to quit on participant and proceed with UD process upon expiration based on violation of Code of Civil Procedure §1161(3).

    • Violations not curable. (See, H&S Code §50587)


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

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


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

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


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THPMA limitations order?

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


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What may a THP operator do after 6 months? order?

  • If no THPMA action pending by 6-month deadline:

    • Use eviction/unlawful detainer process.

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


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What about stuff left in the unit? order?

  • Must give participant “reasonable” opportunity to remove belongings.

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


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Recap: Pros and Cons order?

  • THMPA process:

  • Pros –

    • Almost immediate court order.

    • Enforceable order to make participant behave or leave.

    • Order practically is permanent.

  • Cons –

    • Cannot remove participant unless behavior rises to level of “abuse.”


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Recap: Pros and Cons (cont.) order?

  • Unlawful Detainer:

  • Pros –

    • Expedited procedure (may be possible to evict participant in as little as one month).

    • Can start eviction with three-day notice.

    • It’s permanent.

  • Cons –

    • Cannot get any immediate order for eviction.

    • Record of eviction shows on credit report.


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Recap: Pros and Cons (cont.) order?

  • Civil harassment TRO:

  • Pros –

    • Almost immediate order excluding participant from site.

  • Cons –

    • Must establish that participant was involved in violence, threat of violence, or harassment – not simply misconduct.

    • Not permanent.


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THPMA Part II order?Procedures


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Get Judicial Council forms order?

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

  • May download all forms at :

    • www.courtinfo.ca.gov/cgi-bin/forms.cgi

    • Select “Transitional Housing Misconduct” from the menu.


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Filing petition order?

  • File Petition for Order Prohibiting Abuse or Program Misconduct.

    • If requesting TRO: Must include affidavit (see, Judicial Council form) stating one of the following:

      • Informed the participant w/in “reasonable” time of when and where TRO application would be filed.

      • Made “good faith” attempt to inform.

      • Specific reasons why shouldn’t inform.


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Ruling on TRO application order?

  • Judge may grant order pending hearing to restrain conduct, or exclude/stay away from site if affidavit shows:

    • “Reasonable proof” of program misconduct or abuse; and

    • “Great or irreparable harm” if TRO not granted.

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


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Scheduling hearing order?

  • Court schedules hearing no later than five days from TRO.

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


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Notifying law enforcement order?

  • If judge grants TRO: THP operator delivers copies of TRO (signed by judge) to appropriate law enforcement agencies.

    • May be done by court clerk. (see, H&S Code §50586(a) )

  • Operator may call police to enforce TRO if participant or others named in TRO violate orders.


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Serving the participant order?

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

    • Petition, affidavits, Order to Show Cause, TRO, other filed and supporting paperwork; AND

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


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Serving the participant (cont.) order?

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

  • If fail to properly and timely serve participant: Judge dissolves TRO.

    • But operator or attorney may file affidavit that participant could not be served timely and court may reissue new TRO.

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


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Participant’s response order?

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

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

  • No fees may be charged by court.


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Continuance of hearing order?

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

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

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


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Hearing order?

  • Participant may have an attorney or represent him/herself. Provider, as an organization, probably needs to be represented by an attorney.

  • Issues to be decided:

    • Should temporary restraining/exclusion/stay away orders be made into injunction?

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


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After the hearing order?

  • If judge rules for THP operator: Injunction issued prohibiting conduct, excluding participant, and/or “stay away” from site(s).

  • Injunction may be in effect no longer than one year.

    • No later than 3 months prior to expiration, may apply for renewal of injunction by filing new petition (not modification).

  • Serve police w copy of injunction for enforcement.


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