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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
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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
3
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
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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
18
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
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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
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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
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(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.
8
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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.
9
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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