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TRANSITIONAL%20HOUSING/%20GROUP%20HOME%20COMPLAINT%20INVESTIGATION

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Title: TRANSITIONAL%20HOUSING/%20GROUP%20HOME%20COMPLAINT%20INVESTIGATION


1
TRANSITIONAL HOUSING/ GROUP HOMECOMPLAINT
INVESTIGATION
  • 7/08

2
Transitional Housing/Group HomeComplaint
Investigation
3
Our Goals
  • Elimination of dangerous and/or unsafe or
    substandard rental housing conditions.
  • Elimination of nuisance and/or criminal activity
    attendant to these rental properties.
  • Achieve compliance with Conditional Use Permit
    requirements where applicable (e.g., parolee
    housing ordinance).

4
Our Goals cont.
  • Ensure properties are brought into compliance
    with the Riverside Municipal Code by correcting
    all code violations to the extent such
    enforcement is not otherwise pre-empted by state
    or federal law.

5
Our Goals cont.
  • Ensure that the applicable state licensing agency
    (e.g., Community Care Licensing Division of the
    Department of Social Services, Department of
    Alcohol Drug Programs, etc.) maintains proper
    oversight and ensures compliance with the terms
    of the license for the facility.
  • Ensure that the Division of Adult Parole
    Operations of CDCR places its paroled sex
    offenders in compliance with Penal Code sections
    3003 and 3003.5.

6
Our Goals cont.
  • Ensure that we distinguish legitimate sober
    living homes from boarding houses masquerading
    as sober living homes.
  • Ensure proper and appropriate regulation of the
    use and occupancy of single-family rental
    properties throughout the city in order to
    preserve the residential character of the
    neighborhood.

7
The Spin
8
Overview The typical complaint
WAY TOO many people in that house - Gotta be
ILLEGAL Dopers Molesters DO
SOMETHING !!!
9
  • The owner is renting single ROOMS and does not
    live on the property.
  • The renters are extra sleazy looking..

10
The Initial Complaint
  • Frequently triggered by a perception that there
    are too many residents so the residency must be
    illegal.
  • Often salted with emotional buzz words like
    six-pack, halfway house, drug house,
    parolee home, and phrases such as theyre
    having meetings, and they come and go at all
    hours.
  • Usually long on conclusions and short on facts.
  • Police calls-for-service may be minimal.

11
Labels are misleading, often self-serving, and
usually wrong. Municipal actions and
investigations must be conducted and documented
carefully and thoroughly.
12
The Typical Scam
  • Single-family residence rented out by an owner
    who does not live in the City, let alone the
    County.
  • Owner believes they are leasing the house to a
    single family when in fact the lessee then rents
    to 10 20 individual persons and charges each
    person 400 500/month.
  • Alternatively, the owner purchases one or more
    homes as owner-occupied and then stuffs each
    home with 10 20 individual renters.

13
The Typical Scam cont.
  • Frequently, there are substandard living
    conditions and/or illegal construction/room
    conversions.
  • None of the individual renters are recovering
    from alcoholism or drug abuse.
  • Owner or straw lessee calls it a sober living
    home to evade local regulation!

14
Investigation Focus
  • Actual ownership of the property
  • Actual possession/control of the property
  • WHO lives there and WHY
  • Licenses? CUP?
  • Maximum legal occupancy count/range
  • Whether a state license is required
  • Nature scope of criminal activity
  • Nature scope of code violations

15
Why?
  • You cant tell the PLAYERS
  • without a program.

The investigation focus cuts
through the chaos of the complaint and frames the
particular group home problem into organized
elements for investigation that will lead to a
definitive analysis and accurate identification
of the propertys use which, in turn, will lead
to an effective enforcement solution.
16
  • The group home players typically fall within
    one of three distinct categories
  • 1. Homes subject to state licensing
  • 2. Legitimate sober living homes
  • 3. Homes not subject to state licensing and whose
    occupants are not within a protected class (i.e.,
    disabled). These are the problem homes and they
    are subject to local regulation.

17
Homes Subject to State Licensing
  • Abuse Recovery/Treatment facility (Cal. Health
    Saf. Code sections 11834.20--11834.25)
  • Residential care facilities (Cal. Health Saf.
    Code section 1566.3)
  • Adult recovery maintenance facilities (Cal. SB
    992)
  • These homes are not subject to local regulations
    relating to zoning (i.e., CUPs), business
    taxation, or licensing if serving six or fewer
    residents.
  • These homes are subject to local regulation that
    applies to residential use of property in the
    same zone.

18
CALIFORNIA AB 2184
  • Amends Cal. Health Saf. Code section
    1566.3(d)-- This section shall not be construed
    to prohibit the application to a residential care
    facility of any local ordinance that deals with
    health and safety, building standards,
    environmental impact standards, or any other
    matter within the jurisdiction of a local public
    entity if the ordinance does not distinguish
    residential care facilities which serve six or
    fewer persons from other family dwellings of the
    same type in the same zone and if the ordinance
    does not distinguish residents of the residential
    care facilities from persons who reside in other
    family dwellings of the same type in the same
    zone. Nothing in this section shall be construed
    to limit the ability of a local public entity to
    fully enforce a local ordinance, including, but
    not limited to, the imposition of fines and other
    penalties associated with violations of local
    ordinances covered by this section.

19
CALIFORNIA AB 2184
  • Effective January 1, 2007
  • Clarifies existing lawas long as the local
    ordinance does not treat the residents of a
    state-licensed group home or the use of that
    property any differently from the Joneses next
    door or the Smiths across the street the
    ordinance is fully enforceable.
  • A common perception held by the public, some
    local governments, and some courts is that the
    mere residency of six or fewer, unrelated persons
    or the operation of a licensed home for six or
    fewer persons somehow confers a Kings X status
    and makes the property off-limits to local
    regulation. That perception is wrong.

20
Legitimate Sober Living Home
  • Not subject to local zoning, business taxation or
    licensing regulations.
  • Cal. Gov. Code section 12955 (FEHA) --- It shall
    be unlawful(l) to discriminate through public or
    private land use practices, decisions, and
    authorizations because of disability .
    Discrimination includes, zoning laws, denial of
    use permits, that make housing opportunities
    unavailable.

21
Legitimate Sober Living Home cont.
  • 42 U.S.C. 3601, et seq. (Fair Housing Amendments
    Act FHAA)
  • 41 U.S.C. 12101, et seq. (Americans with
    Disabilities Act ADA)
  • 29 U.S.C. 504 and 706(8)(C)(iii)
    (Rehabilitation Act)

22
What is a Legitimate Sober Living Home?
  • There is no definition under state or federal
    law.
  • At this point, the local agencies are left to
    develop their own definition compliant with state
    and federal disability discrimination laws.

23
Sober Living Homes
  • Typically, the use of a single family residence
    by a group of recovering addicts and/or
    alcoholics choosing to live in a cooperative
    living arrangement and in an alcohol/drug free
    environment to maintain sobriety and stay clean.

24
Characteristics of Legitimate Sober Living Homes
  • Democratic, self-governing or house manager
  • Zero tolerance of alcohol/drug use by residents
  • Each resident is in recovery and participating in
    NA or AA program
  • AA or NA meetings on-site are permissible
  • Residents legally deemed disabled
  • Not subject to state licensing
  • No Title 9 services permitted on-site
  • Regular, random drug testing

25
CALIFORNIA AB 724 (Benoit)
  • Sponsored by the City of Riverside
  • Introduced February 22, 2007
  • Two-year bill
  • Passed Assembly 73-1, pending in California State
    Senate Health Committee

26
California Assembly Bill 724
  • The purpose of this section is to provide a
    definition of a sober living home so as to give
    both those purporting to operate these facilities
    and local code and law enforcement agencies the
    ability to determine whether residences housing
    former drug and alcohol abusers are exempt from
    local regulation or exercise of local police
    powers.
  • Sober living home means a residential property
    that is operated as a cooperative living
    arrangement to provide an alcohol and drug-free
    environment for persons recovering from
    alcoholism or drug abuse, or both, who seek a
    living environment in which to remain clean and
    sober, and that satisfies all of the following
    requirements

27
California AB 724 cont.
  • Residents of the facility, including live-in
    managers, operators, or owners, are living a
    sober lifestyle.
  • Residents actively participate in legitimate
    programs, including, but not limited to,
    Alcoholics Anonymous or Narcotics Anonymous
    programs, and maintain current records of meeting
    attendance.
  • Owners, managers, operators, and residents
    observe and promote a zero tolerance policy
    regarding the consumption or possession of
    alcohol or controlled substances, except for
    prescription medications obtained and used under
    direct medical supervision. The observation and
    promotion of this policy may take into account
    demonstrable efforts made by residents to respond
    to, and prevent additional violations of, the
    policy.

28
California AB 724 cont.
  • Owners, managers, operators, and residents do not
    provide onsite any of the following services, as
    they are defined in paragraph (6) of subdivision
    (a) of Section 10501 of Title 9 of the California
    Code of Regulations
  • (A) Detoxification.
  • (B) Educational counseling.
  • (C) Individual or group counseling sessions.
  • (D) Treatment or recovery planning.

29
California AB 724 cont.
  • The number of residents who are subject to the
    sex offender registration requirements of Section
    290 of the Cal. Penal Code does not exceed the
    limit set forth in Section 3003.5 of the Cal.
    Penal Code and does not violate the distance
    provisions set forth in Section 3003 of the Cal.
    Penal Code.
  • Residents do not require nonmedical care or
    supervision, as those terms are defined in Cal.
    Health Saf. Code section 1503.5 and in Title 22
    of the California Code of Regulations.

30
California AB 724 cont.
  • Owners, managers, operators, and residents ensure
    that the property and its use comply with
    applicable state and local law.
  • A residence housing those purporting to be
    recovering from drug and alcohol abuse shall be
    presumed to be a sober living home if the
    residence has been certified, registered, or
    approved by a recognized nonprofit organization
    that provides a credible quality assurance
    service for applicants or members.

31
California AB 724 cont.
  • A sober living home shall be exempt from
    licensure under Chapter 7.5 (commencing with Cal.
    Health Saf. Code section 11834.01).
  • Nothing in this section shall be construed to
    prohibit minor children who are dependents of a
    resident of the facility from also residing in
    the facility.

32
Flophouse/Boarding House
  • IF the operation of a single family residence as
    a group home is
  • NOT licensed by the state or
  • NOT subject to licensing by the state
  • NOT a legitimate sober living home.
  • THEN the operation is a boarding or rooming
    type house (i.e., a flophouse) that is subject
    to local regulation including zoning laws and
    treatment as a business operation.

33
86 Ops.Cal.Atty.Gen. 30 (2003)
  • A city may prohibit, limit or regulate the
    operation of a boarding house or rooming house
    business in a single family home located in a low
    density residential (R-1) zone, where boarding
    house or rooming house is defined as a residence
    or dwelling, other than a hotel, wherein three or
    more rooms, with or without individual or group
    cooking facilities, are rented to individuals
    under separate rental agreements or leases,
    either written or oral, whether or not an owner,
    agent or rental manager is in residence, in order
    to preserve the residential character of the
    neighborhood.

34
Flophouse/Boarding House
  • The investigation, if complete, will determine
    whether the subject group home is a facility
    subject to state licensing a legitimate sober
    living home or a flophouse that can be regulated
    by ordinance.
  • If you dont know, the investigation is
    incomplete.

35
  • CUTTING THROUGH THE

    CHAOS
  • of the Complaint requires
  • Assembling an investigation team.
  • Understanding the different types of occupancies
    state-licensed group home, sober living home,
    parolee home or boarding house and the
    laws/regulations applicable to each one.
  • Developing a complaint investigation and
    enforcement process and protocol.

36
The Investigation Team
  • Success requires a focused, collaborative
    approach of municipal departments
  • City Attorney
  • Police
  • Fire
  • Code Enforcement
  • Building Safety
  • Planning

37
Investigation Overview
  • Gather background information
  • Parole/Probation compliance check
  • Joint inspection of the group home property
  • Follow-up interviews
  • Re-inspection for compliance with municipal code
    (refer state law violations to state agencies)
  • Prepare occupancy inspection reports

38
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39
Investigation Tips
40
Look for these conditions(Is the claim of a SLH
legitimate?)
  • Whether the residents are welcoming or going
    over the fence upon your arrival
  • Overcrowding (UHC 503.2 Floor Area)
  • All residents are recovering from alcoholism or
    drug abuse
  • House rulesparticularly for alcohol and drug
    testing
  • Use of pre-admission screening questionnaires
    (why are you here? focus)
  • Resident manager or peer control

41
Conditions Contd
  • Membership in recognized sober living
    organizations
  • Living arrangement agreements or rental contracts
  • Presence of alcohol, drugs, paraphernalia (be
    alert to trash)
  • Traffic flow in and out of the residence
    particularly Friday and Saturday nights (most
    frequent occurrence of relapse)
  • Nighttime hours when does house shut down for
    the night?

42
Conditions Contd
  • Drug testing kits (i.e., First Step 5-panel),
    alcohol test kits (saliva)
  • Drug test records (if not self test, where are
    tests sent for results?)
  • Police calls for service
  • Code enforcement history

43
Representative Substandard Conditions
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46
As is the case with vacant board-ups, a lack of
utilities (water power) will not deter
occupants of group homes
47
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51
Be alert to other code violations
52
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53
Until your investigation proves otherwise, the
term Sober Living Home is just a self-serving
label.
54
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60
OVERCONCENTRATIONLIMITS
  • State licensed group homes
  • Overconcentration limits are generally regulated
    by State law.
  • Examples under California State law
  • Foster family homes, residential care facilities
    for the elderly or transitional shelter care
    facilities no distance separation requirements.
  • 24-hour group homes for minor children, adult
    community care, social rehabilitation, mentally
    or physically disordered, family care home
    distance separation of 300 feet from another
    group home.

61
OVERCONCENTRATIONLIMITS
  • State licensed group homes
  • Examples under California State law
  • Intermediate care facilities distance
    separation of 300 feet between facilities
  • Facilities for terminally ill or catastrophically
    and severely disabled distance separation of
    1000 feet between facilities

62
OVERCONCENTRATIONLIMITS
  • Sober Living/Group Homes
  • Overconcentration limits have generally been
    struck down by courts.
  • A plaintiff may show discrimination which would
    be a violation of the FHAA or ADA in three ways
    (1) intentional discrimination (2)
    discriminatory impact and (3) a refusal to make
    reasonable accommodation.

63
OVERCONCENTRATIONLIMITS
  • Cases
  • County ordinance, implementing a 1500-foot
    spacing requirement between group homes for
    disabled adults, found to be facially
    discriminatory because the spacing requirement
    did not apply to similarly situated non-disabled
    adults. Nev. Fair Hous. Ctr., Inc. v. Clark
    County 2007 U. S. Dist. LEXIS 12800 (D. Nev.
    2007)

64
OVERCONCENTRATIONLIMITS
  • Cases
  • City of Coatesville argued that the 500-foot
    spacing requirement is necessary to preserve
    residential districts, avoid saturation and the
    creation of hospital districts. However, the
    court said there was no rational basis for
    imposing a distance rule on people with
    disabilities while allowing those without
    disabilities to live wherever they choose. The
    court affirmed the decision of the zoning hearing
    board finding that the ordinance violated both
    the FHAA and the equal protection clause of the
    14th Amendment. City of Coatesville v. Zoning
    Hearing Board (2000) 48 Pa. D. C.4th 169.

65
OVERCONCENTRATIONLIMITS
  • Cases
  • In response to neighbor complaints, the City of
    West Haven, Connecticut, commenced enforcement of
    the Citys existing zoning, building and property
    maintenance codes and the State Fire Code against
    the Oxford House property.
  • The City determined that the Oxford House was a
    boarding house because the residents were
    unrelated. With that determination Oxford
    residents, unlike a family with seven related
    members, would not be able to live in any
    neighborhood with single-family zoning.

66
OVERCONCENTRATIONLIMITS
  • Cases
  • Oxford House requested, as a reasonable
    accommodation, pursuant to the FHAA, that the
    City of West Haven treat Oxford House as a
    single-family dwelling and permit it to remain.
  • The City of West Havens denial of a requested
    accommodation was discriminatory because the
    benefits to the residents clearly outweighed the
    Citys administrative burdens. Tsombanidis v.
    City of West Haven 180 F.Supp.2d 262 (D. Conn.
    2001)

67
OVERCONCENTRATIONLIMITS
  • Cases
  • City Zoning Code restricts group homes from
    locating within 1,000 feet of one another.
  • Court ordered summary judgment for plaintiff and
    against defendant City finding that the City
    violated FHAA by failing to reasonably
    accommodate plaintiff corporation and allow the
    corporation to locate the group home within 1,000
    feet of another group home by granting a special
    use permit. United States v. City of Chicago
    Heights 161 F.Supp.2d 819 (N.D. Ill. 2001)

68
OVERCONCENTRATIONLIMITS
  • Cases
  • City ordinance permitting group homes without
    qualification if the homes are not within 2500
    feet of one another, or less than 2500 feet from
    another home with a variance, did not provide a
    reasonable accommodation. Oconomowoc Residential
    Programs, Inc. v. City of Milwaukee 300 F.3d 775
    (7th. Cir. Wis. 2002)

69
OVERCONCENTRATIONLIMITS
  • Cases
  • Plymouth Neighborhood Church Foundation purchased
    an abandoned 140-bed nursing home, intending to
    convert the space into the Lydia House, a
    supportive housing facility of 40 efficiency
    apartments designed as permanent homes for adult
    men and women, who are homeless or living in
    temporary shelters and are disabled. The
    location of Lydia House required a conditional
    use permit, a waiver of the ¼ mile spacing
    distance from other facilities of that type, and
    a variance because Lydia House would be serving
    more than 32 residents.

70
OVERCONCENTRATIONLIMITS
  • Cases
  • Even though at least 7 facilities of the type
    covered by the spacing requirements existed
    within ¼ mile of the Lydia House, the City of
    Minneapolis granted a spacing waiver of the ¼
    mile requirement, a conditional use permit and a
    maximum occupancy variance to respondent
    foundation and appellant citizens appealed. The
    appellate court affirmed the trial courts grant
    of summary judgment to the foundation, holding
    that Minneapoliss grant of the waiver, permit,
    and variance was reasonable. Citizens for a
    Balanced City v. Plymouth Congregational Church
    (2003) 672 N.W.2d 13.

71
OVERCONCENTRATIONLIMITS
  • Cases
  • Group home provider awarded 331,928 in damages
    because City failed to grant reasonable
    accommodations when provider requested a
    certificate of occupancy to operate homes at
    three addresses with 4 persons each in a zone
    which required a distance of ½ mile between group
    homes. Developmental Servs. Of Neb. V. City of
    Lincoln, 504 F.Supp.2d 714 (D. Neb. 2007)

72
OVERCONCENTRATIONLIMITS
  • Exceptions
  • City ordinance, requiring a 500-foot distance
    between group homes, was held to be legitimate
    and City did not violate state and federal laws
    prohibiting discrimination against people with
    disabilities. Moretha Harding. et al. v. City of
    Toledo 433 F.Supp.2d 867 (N.D. Ohio, 2006)

73
OVERCONCENTRATIONLIMITS
  • Exceptions
  • In Avalon Residential Care Homes, Inc. v. City of
    Dallas 130 F.Supp.2d 833 (N.D. Texas, 2000), the
    court granted summary judgment to City on
    plaintiffs equal protection claim and FHA claim
    that Citys ordinance made housing unavailable on
    the basis of handicap. Summary judgment was
    denied with respect to plaintiffs FHA reasonable
    accommodation claim, as well as Citys claim that
    plaintiff violated its zoning regulations.

74
OVERCONCENTRATIONLIMITS
  • Exceptions
  • The court stated at page 840
  • .we do not address whether an appropriate
    dispersal requirement is 1000 feet, 600 feet, or
    200 feet. Instead, these questions are better
    addressed by the City on a case-by-case basis.
    For this reason we inquire into the Citys
    willingness to interpret its zoning laws in a
    flexible manner so as to meet the needs of
    handicapped individuals. In order words, does
    the City ordinance provide handicapped persons a
    reasonable accommodation?

75
OVERCONCENTRATIONLIMITS
  • Parolee/Sex Offender Housing
  • A person released on parole for a violation of
    Penal Code section 288 or 288.5 whom the
    Department of Corrections and Rehabilitation
    determines poses a high risk to the public shall
    not be placed or reside, for the duration of
    his/her parole, within ½ mile of any public or
    private school including any or all of
    kindergarten and grades 1 to 12, inclusive.
    Cal. Penal Code section 3003

76
OVERCONCENTRATIONLIMITS
  • Parolee/Sex Offender Housing
  • A parolee who is a PC 290 registrant cannot
    reside with another PC 290 registrant in ANY
    SINGLE FAMILY RESIDENCE, unless they are related
    or married, or the residence is a state-licensed
    group home serving six or less residents. Cal.
    Penal Code section 3003.5 89 Ops.Cal.Atty.Gen.199
    (2006)

77
OVERCONCENTRATIONLIMITS
  • Parolee/Sex Offender Housing
  • A parolee who is a PC 290 registrant cannot
    reside within 2000 feet of any public or private
    school, or park where children regularly gather.
    Cal. Penal Code section 3003.5
  • Cal. Penal Code section 3003.5 does not prohibit
    municipal jurisdictions from enacting local
    ordinances that further restrict the residency of
    PC 290 registrants.

78
Enforcement Overview
  • Prepare and serve Administrative Civil Penalties
    (ACP) Notice Order
  • Prepare Hearing packet
  • Conduct pre-hearing witness review
  • Present case at ACP hearing
  • Prepare for judicial review (i.e., appeal
    pursuant to Cal. CCP 1094.6)
  • or other appropriate notice or pleading
    depending upon the requirements of the
    administrative or legal remedy sought.

79
Recommendations
  • Investigate group home complaints thoroughly.
  • Determine actual nature of the use and occupancy
    of the property investigated as a group home.
  • Nature of the propertys use determines the
    legality of the use and identifies enforcement
    options.
  • Update your zoning code to define a legitimate
    sober living home.
  • Update your zoning codes regulation of boarding
    houses to conform to the Attorney Generals
    recent opinion.

80
Recommendations cont.
  • Adopt/enforce an ordinance which regulates
    parolee homes (e.g., MCUP required for 2 or more
    parolees up to 6, full CUP required for 7 or more
    parolees).
  • Tour legitimate sober living homes and engage the
    regional sober living coalitions to assist you in
    the identification of legitimate homes.
  • Consider issuance of legislative subpoenas (Cal.
    Gov. Code 37104, et seq.) for relevant documents
    re ownership and occupancy from owner, lessee,
    lender, et al.

81
Recommendations cont.
  • Partner with your District Attorney to
    investigate and prosecute lending fraud
    associated with the acquisition of some of these
    homes.
  • Partner with your U.S. Attorney and/or District
    Attorney to investigate and prosecute tax fraud
    associated with the operation of some of these
    homes.
  • Take the time to educate your community on the
    limits of a citys ability to regulate
    state-licensed group homes of six or less as well
    as legitimate sober living homes.
  • Engage your regional and local parole
    administrators regarding their placement and
    housing of parolees in general and sex offenders
    in particular

82
Recommendations cont.
  • Partner with Parole to establish a Police and
    Corrections (P.A.C.) Team in your community to
    reduce crime, reduce the rate of recidivism and
    provide intervention/re-entry services to
    parolees and probationers.
  • Partner with Parole to establish a city or
    regional Parolee Multi-Service Center.
  • Start thinking regionally as to how we
    reintegrate parolees back into our communities,
    reduce the recidivism rate and reduce the
    victimization of our residents.

83
Something to Consider. . . .
  • 97 of inmates in Californias prisons will be
    eligible for parole.
  • Currently, 60,000 California inmates are serving
    the final 0-3 years of their sentences.
  • ? of those inmates being released have a
    substance abuse problem.
  • There are presently 170,000 parolees in
    California.
  • 70 are re-arrested within 3 years of release
    the highest recidivism rate in the country.
  • These offenders are coming back to our cities and
    towns whether they are rehabilitated or not.
  • We have to be prepared to protect our citizens
    and assist in their successful re-entry to our
    communities.

84
ATTACHMENTS
  1. Summary of Residential Occupancy Regulations
    under California State law and Riverside
    Municipal Code
  2. California Legislative Counsel Opinion re Sober
    Living Homes (6/18/97)
  3. AB 724 (amended 5/15/07)
  4. Excerpts from City of Riversides New Zoning Code
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