CITY OF OCALA’S ENFORCEMENT OF ITS OPEN LODGING ORDINANCE RULED UNCONSTITUTIONAL FOR CRIMINALIZING HOMELESSNESS

(Feb. 8, 2021, OCALA, Fla.) – Three Ocala residents who are experiencing homelessness and thus had been repeatedly arrested under the city’s open lodging ordinance today won their case challenging the ordinance’s constitutionality when U.S. District Court Judge James S. Moody ruled that the ordinance “unlawfully punishes an individual based on their homeless status.”

Southern Legal Counsel, the ACLU of Florida, and pro bono attorney Andy Pozzuto represented the plaintiffs, Patrick McArdle, Courtney Ramsey and Anthony Cummings, who had been repeatedly arrested under the city’s open lodging ordinance for sleeping outside and experiencing homelessness. Additionally, the city had trespassed all three Plaintiffs from its public parks without providing them the ability to contest their trespass warnings.

“The court’s ruling recognized that it is cruel and unusual punishment to arrest and jail individuals for sleeping outside and being homeless when there is no shelter available to them. We are pleased that the court entered an injunction to protect individuals experiencing homelessness from being criminalized for the life-sustaining conduct of sleeping,” said Kirsten Anderson, litigation director for Southern Legal Counsel and lead counsel for the plaintiffs.

McArdle alone has spent 219 nights in jail and has been assessed a total of $4,186.00 in fines and court costs imposed for 10 counts of open lodging under the ordinance. The plaintiffs submitted evidence to the Court that 264 individuals were arrested and sentenced to 5,393 nights in jail and assessed more than $300,000 in court costs for open lodging.

Relying heavily on a recent opinion from the Ninth Circuit in Martin v. City of Boise, the court found this practice to be cruel and unusual punishment under the Eighth Amendment.

“As long as there are a greater number of homeless individuals than the number of available beds in shelters, cities are prohibited from prosecuting individuals for involuntarily sleeping in public. Courts across the country have recognized this and cities should immediately conform their practices to adhere to these basic constitutional principles,” said Jackie Azis, staff attorney at the ACLU of Florida.

The ruling points out that on any given night at least 150 people experiencing homelessness are in Marion County, where only 65 emergency shelter beds are available, and that the ordinance does not require officers to “ascertain whether there is available shelter space prior to arresting an individual” for open lodging.

The court enjoined the city from “arresting, citing, or otherwise enforcing the open lodging ordinance against someone identifying as homeless,” before inquiring about the availability of shelter space. As a result of the ruling, the City of Ocala can no longer arrest those experiencing homelessness under the ordinance without first looking into the availability of shelter space.

The lawsuit had also alleged that the plaintiffs’ Fourteenth Amendment rights to procedural due process had been violated when they were issued trespass warnings barring them from returning to a public park and downtown square without providing a process to appeal. Relying on Catron v. City of St. Petersburg, a decision from a case previously brought by Southern Legal Counsel on behalf of other homeless individuals, the court again sided with the plaintiffs. The court held that the city must rescind the trespass warnings against the plaintiffs and can no longer issue future trespass warnings without due process of law. The Court noted that existing trespass warnings provide no explanation of why they were issued, nor any process for challenging them, nor does the city provide written criteria for law enforcement to follow in issuing them.

Financial support for the suit was provided through a grant by the Impact Fund.

A copy of the order be found here.