TRANSITIONAL HOUSING
PARTICIPANT
MISCONDUCT ACT
(THPMA) PRESENTATION
PART I
Do you have to use the court process to
remove someone from transitional housing?
General Rule:
– All agreements for housing involving
“tenants, lessees, boarders, lodgers, and
others HOWEVER DENOMINATED” are
subject to the unlawful detainer process.
Civil Code §1940 (Narrow exceptions for
certain transient hotel/motels).
– Never remove occupant w/o proper court
process. Forcible removal, changing locks,
removing possessions etc. are illegal!
Where is the THPMA?
–Health & Safety Code §50580 et.
seq.
–Purpose: To allow transitional
housing program (THP) operators
to use expedited civil restraining
order/injunction process when
participants engage in serious
misconduct or abuse.
What is a transitional housing
program?
ANY program designed to
assist homeless persons to live
independently in permanent
housing with ALL the following
components:
What is a THP (cont.)?
– Residency requirements from 30 days to
24 months.
– Provides comprehensive social service
programs incl. individualized case mgt. and
may incl. other services such as
alcohol/substance abuse counseling, self-
improvement training, employment and
training, and ind. living skills.
– Provides temporary housing with
structured setting and rules participants
need to comply with to remain in program.
What is a THP operator?
A government agency or private
nonprofit receiving ANY portion of its
THP funds from a governmental source
– OR
Another person or agency hired by one
of the above to operate a THP.
What is a THP participant?
A homeless person under contract with a
THP operator to participate in a THP and to
use a dwelling unit in the program site.
– Homeless person = Individual or family
who lacked a fixed, regular, and adequate
nighttime residence or lived in any
temporary housing, shelter or institution.
Includes sites not ordinarily used or
designed for regular sleeping.
– Includes any person living with participant.
Does THP need a written contract with
participant?
THPs don’t need written contracts.
But, to utilize THPMA process, there
must be a written contract with the
following:
– THP rules and regulations.
– Statement of THP operator’s right of
control over and access to the unit.
– Statement of procedures and rights
under the Act. (See, Judicial Council Form)
When may a THP operator
use the THPMA process?
An operator may use the expedited
THPMA restraining order/injunction
process only for:
–Program misconduct
• OR
–Abuse
What is “program misconduct”?
THP may get restraining
order/injunction for participant to refrain
from “program misconduct”
Program misconduct =
– Intentional violations of THP rules and
regs
– Which “substantially interfere with orderly
operation of program”
– AND involve one of the following:
What is “program misconduct” (cont.)?
– Drunkenness on site
– Unlawful use or sale of drugs
– Theft
– Arson
– Destruction of property;*
– Violence or threat of violence and
harassment.*
• * Against operator, other participants,
employees, or persons living w/in 100 ft
of program site.
What is “abuse?”
Intentional or reckless cause -- or
attempt -- of bodily injury or sexual
assault.
– OR
Placing another in “reasonable
apprehension” of “imminent serious
bodily injury” to himself, other
participant, staff, or person living w/in
100 ft of site.
How may a THP operator remove a
participant for abuse or misconduct?
Use the eviction/Unlawful Detainer
process.
– OR
If abuse: Temporary Restraining
Order (TRO)/injunction process
under THPMA.
What is the “TRO” process?
– 2 step process:
• File application for immediate temporary
restraining order pending hearing. May
include orders to refrain from
misconduct - or - exclude participant
from THP site and stay at least 200 ft
from site(s) if abuse is alleged.
• Hearing on permanent injunction
(generally, w/in 5 days of filing TRO).
What are“stay away” and
“exclusion” orders?
Exclusion: May request order to
exclude participant from the THP
site.
Stay away: May also request order
to restrain the participant from
coming w/in 200 feet of THP or
other program sites.
How may a THP operator get exclusion or
stay away orders?
May only ask for these orders for “abuse” --
NOT “program misconduct.”
May request these orders effective up to a
year* after hearing. *renewable.
May get immediate exclusion or stay away
orders in TRO pending hearing only in an
“emergency.”
– Emergency = necessary to protect another
participant, employee, or person living w/in 100
feet of site from “imminent serious bodily
injury.”
What happens if operator gets exclusion or
“stay away” order?
Pending hearing (TRO) : THP operator may
have participant immediately removed from
unit.
After hearing: Operator may take immediate
possession of the unit and consider it
“abandoned.”
If other occupants in unit (inc. family
members) not named in petition, may only
remove the participant named in petition.
What if THP operator does not get
exclusion order?
(1) If participant violates conditions
of restraining order: THP may serve
3-day notice to quit on participant
and proceed with UD process upon
expiration based on violation of
Code of Civil Procedure §1161(3).
– Violations not curable. (See, H&S
Code §50587)
What if THP operator does not get
exclusion order (cont.)?
(2) If participant violates conditions
of restraining order/injunction: THP
operator may file “contempt” action
along with petition to modify orders
to include exclusion order (even if
the action is based on “program
misconduct.”)
What if THP operator does not get
exclusion order (cont.)?
(3) If participant “willfully
disobeys” restraining order:
May be criminal misdemeanor
(Penal Code §166).
THPMA limitations
Cannot utilize THPMA process
against a participant who has been
in THP for 6 months or more,
unless an injunction or TRO is
already pending or in force against
the participant.
What may a THP operator do after 6
months?
If no THPMA action pending by 6-month
deadline:
– Use eviction/unlawful detainer
process.
– May still use civil harassment
restraining order process (see, Code
of Civil Procedure §527.6)
What about stuff left in the unit?
Must give participant “reasonable”
opportunity to remove belongings.
If belongings left in unit, must follow
procedures under Civil Code §1980
et seq. to dispose of property --
cannot dispose of property w/o
using this process.
THPMA Part II
Procedures
Get Judicial Council forms
The Judicial Council has all forms to file
with court for THPMA process with
helpful statements of operator’s and
participant’s rights.
May download all forms at :
– www.courtinfo.ca.gov/cgi-bin/forms.cgi
– Select “Transitional Housing Misconduct”
from the menu.
Filing petition
File Petition for Order Prohibiting
Abuse or Program Misconduct.
– If requesting TRO: Must include affidavit
(see, Judicial Council form) stating one of
the following:
• Informed the participant w/in
“reasonable” time of when and where
TRO application would be filed.
• Made “good faith” attempt to inform.
• Specific reasons why shouldn’t inform.
Ruling on TRO application
Judge may grant order pending hearing
to restrain conduct, or exclude/stay
away from site if affidavit shows:
– “Reasonable proof” of program
misconduct or abuse; and
– “Great or irreparable harm” if TRO not
granted.
TRO may remain in effect up to five
days. But may be modified, terminated,
or extended per judge’s discretion.
Scheduling hearing
Court schedules hearing no later
than five days from TRO.
Court returns filed papers to THP
operator (or attorney) for service on
participant and others (not minors)
in unit named in petition.
Notifying law enforcement
If judge grants TRO: THP operator
delivers copies of TRO (signed by
judge) to appropriate law enforcement
agencies.
– May be done by court clerk. (see, H&S
Code §50586(a) )
Operator may call police to enforce
TRO if participant or others named in
TRO violate orders.
Serving the participant
No later than 2 days prior to hearing, THP
operator (or attorney) must personally serve
participant (and other persons named in
petition) with copies of:
– Petition, affidavits, Order to Show Cause,
TRO, other filed and supporting paperwork;
AND
– Blank copies of response, two blank copies
of declaration (Judicial Council form MC-031),
blank copy of proof of service, and copy of
instructions (see, Judicial Council forms)
Serving the participant (cont.)
The Order to Show Cause (OSC) form: Must
write in name, address, and tel. # of local
legal services office prior to serving
participant.
If fail to properly and timely serve participant:
Judge dissolves TRO.
– But operator or attorney may file affidavit
that participant could not be served timely
and court may reissue new TRO.
– No fees may be charged by court for
reissuance. (see, H&S Code §50585 ( c ) )
Participant’s response
Participant may file response and
declarations and other supporting docs prior
to hearing. Must serve operator or attorney
personally or by mail after filing paperwork.
Person who served papers on operator fills
out proof of service (POS). POS may be filed
w clerk or taken to hearing.
No fees may be charged by court.
Continuance of hearing
Participant is entitled to continuance of
hearing date if requested before or at
hearing.
Continued hearing must be set w/in 15
days of request, unless participant
requests later date.
Judge may extend (or modify and
extend) TRO until hearing date.
Hearing
Either party may have attorney or
represent him/herself.
Issues to be decided:
– Should temporary
restraining/exclusion/stay away orders be
made into injunction?
– Is there “clear and convincing” evidence of
program misconduct or abuse?
After the hearing
If judge rules for THP operator:
Injunction issued prohibiting conduct,
excluding participant, and/or “stay
away” from site(s).
Injunction may be in effect no longer
than one year.
– No later than 3 months prior to expiration, may
apply for renewal of injunction by filing new
petition (not modification).
Serve police w copy of injunction for
enforcement.