Restraining Order Oklahoma

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					    TRANSITIONAL HOUSING
 PARTICIPANT MISCONDUCT
ACT (THPMA) PRESENTATION

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

   General Rule:
     All agreements for housing (where the
      occupant is not the owner), are subject to
      California formal eviction process (i.e.,
      unlawful detainer). Civil Code §1940.
     Removal of transitional housing occupant
      without legal process can subject provider to
      legal liability.
What 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 include
     other services such as alcohol/substance abuse
     counseling, self-improvement training,
     employment and training, and living skills.
    Provides temporary housing with structured
     setting and rules participants need to comply with
     to remain in program.
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

   abuse: Temporary Restraining
 If
  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 (renewable) after hearing.
   May get immediate exclusion or stay away
    orders in TRO pending hearing only in an
    “emergency.”
       Emergency = necessary to protect another
        participant, employee, or person living w/in 100
        feet of site from “imminent serious bodily
        injury.”
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.)?

    If participant “willfully
 (3)
 disobeys” restraining order: May
 be criminal misdemeanor (Penal
 Code §166).
THPMA limitations
 Cannot utilizeTHPMA 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.
Recap: Pros and Cons
   THMPA process:
   Pros –
       Almost immediate court order.
       Enforceable order to make participant behave
        or leave.
       Order practically is permanent.
   Cons –
       Cannot remove participant unless behavior
        rises to level of “abuse.”
Recap: Pros and Cons
(cont.)
   Unlawful Detainer:
   Pros –
       Expedited procedure (may be possible to evict
        participant in as little as one month).
       Can start eviction with three-day notice.
       It’s permanent.
   Cons –
       Cannot get any immediate order for eviction.
       Record of eviction shows on credit report.
Recap: Pros and Cons
(cont.)
   Civil harassment TRO:
   Pros –
       Almost immediate order excluding participant
        from site.
   Cons –
       Must establish that participant was involved in
        violence, threat of violence, or harassment –
        not simply misconduct.
       Not permanent.
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
 Participant may have an attorney or
  represent him/herself. Provider, as an
  organization, probably needs to be
  represented by an attorney.
 Issues to be decided:
     Should temporary restraining/exclusion/stay
      away orders be made into injunction?
     Is there “clear and convincing” evidence of
      program misconduct or abuse?
               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.

				
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