Beram v. City of Sedona

587 F.Supp.3d 948

Sabrina BERAM, Plaintiff,

v.CITY OF SEDONA, et al., Defendant.

No. CV-21-08063-PCT-DJH

United States District Court, D. Arizona.

Signed February 28, 2022

Bret Rasner, Martin Joseph Coleman, Community Legal Services, Prescott, AZ, Pamela Marie Bridge, Community Legal Services, Phoenix, AZ, for Plaintiff.

ORDER

Diane J. Humetewa, United States District Judge

Pending before the Court is Defendant City of Sedona's ("Defendant") Motion to Dismiss Plaintiff Sabrina Beram's ("Plaintiff") Amended Complaint (Doc. 27). Plaintiff filed a Response in Opposition (Doc. 30), and Defendant filed a Reply (Doc. 34). Also pending before the Court is Plaintiff's Motion for Leave to file a Proposed Second Amended Complaint ("PSAC") (Doc. 33). Defendant filed a Response in Opposition (Doc. 35). Plaintiff did not file a Reply, and the time in which to do so has passed. See LRCiv 7.2(d).

I. Background

This case concerns Sedona Code 9.10.010 (the "Code"), which prohibits, among other things, persons from sleeping in their cars, even when on private property. The Code provides, in relevant part:

"9.10.010 Camping and sleeping in certain places.

A. It shall be unlawful for any person to set up, use or maintain any temporary structure, tent, bag, vehicle, camper or any other thing for the purpose of camping, lodging, sleeping, cooking, or starting or maintaining a campfire, or establishing a temporary place of rest, on any public property within the city limits unless exempted by the following subsections.

B. It shall be unlawful for any person to set up, use or maintain any temporary structure, tent, bag, vehicle, camper or any other thing for the purpose of camping, lodging, sleeping, cooking, or starting or maintaining a campfire, or establishing a temporary place of rest, on any private property within the city limits unless exempted by the following subsections.

C. It shall be unlawful for any person to sleep in or upon any public building, alley, sidewalk, public way, or any federal, state, county or municipal designated trailhead, or any property owned, operated or managed by any local, state or federal agency or department or any Indian tribe, or any other public place or facility within the corporate limits of the city.

D. It shall be unlawful for any property owner of any private property, or any manager, renter, lessee or agent thereof, to knowingly permit any person to violate this section.

E. No person shall be arrested for a violation of any provision in this section unless such person continues to engage in such conduct after warning by any police officer, an authorized representative of the government entity managing or responsible for such public property, or the property owner, manager, renter, lessee or agent thereof, as the case may be, or unless such property is conspicuously posted, warning of the provisions of subsection (A), (B) or (C) of this section, and designating such violation thereof as a misdemeanor.

....

K. Any violation of this section shall constitute a class 1 misdemeanor punishable by a fine of not less than $2,500 or by six months in jail, or both. [Code 2006 § 10-3-1].

9 S.C.C. § 9.10.010 (2021).¹

Plaintiff suffers from a severe, chronic obsessive-compulsive anxiety ("OCD"). (Doc. 26 at ¶ 5). When Plaintiff cannot complete her apartment cleaning rituals in time to obtain a restful sleep, she experiences a compulsion that commands her not to enter her apartment beyond the tiles inside the door. (Id. at ¶ 6). When this occurs, Plaintiff sleeps in her vehicle because the cleaning routines are easier to perform than her apartment rituals. (Id. at ¶ 8). Plaintiff alleges she sleeps in her vehicle one-third to one-half of the nights of any given week. (Id. at ¶ 9). Plaintiff's OCD began when she was a child, and she has received various mental health treatments.

(Id. at ¶ 10). Plaintiff alleges she sleeps in her vehicle solely because of her disability. (Id. at ¶ 14). Plaintiff therefore alleges "[t]he Code's prohibition against sleeping in a vehicle in all public and private places in Sedona injures [her] constitutional rights to liberty, privacy and to be free from unreasonable searches and seizures." (Doc. 33 at ¶ 69).

In November of 2020, while sleeping in her vehicle at a trailhead, Plaintiff alleges she received a warning from a police officer who informed her she could not sleep there. (Id. at ¶ 16). Plaintiff alleges "the officer told her that he put a note in a file associated with her name and license plate so police would know that he warned her." (Id. ) Around that same time, Plaintiff alleges her property manager also warned she could not sleep in her vehicle on the premises of her apartment complex because her conduct violated the Code. (Id. at ¶ 23). Plaintiff alleges she "has not slept in her vehicle at a trailhead since that warning was given to her [but] has slept in her vehicle in various public and private spaces." (Id. at ¶¶ 15–16).

On February 10, 2021, Community Legal Services, Inc. ("CLS"), sent a letter to Defendant on Plaintiff's behalf requesting a reasonable modification to the Code under the Americans with Disabilities Act ("ADA") that would relieve Plaintiff from any penalty attached to a violation of the Code due to her disability. (Id. at ¶ 23). On February 22, 2021, Defendant denied Plaintiff's request for a reasonable modification. Defendant first denied Plaintiff's request on the grounds that it was not related to a public accommodation that required the City's ADA compliance.² (Doc. 27 at 17). Defendant further stated that even if the ADA did apply to Plaintiff's request, it was too broad because Plaintiff's proposed modification exempting her from all application of the Code "would ostensibly mean [she] could sleep anywhere within the jurisdiction of the City of Sedona, not only in her car in the parking lot of her current apartment complex, but on any other private or public property in the City." (Id. at 17).

On February 24, 2021, CLS emailed Defendant a revised modification request, proposing that Defendant refrain from charging Plaintiff with violation of the Code if she sleeps in her vehicle in the parking areas appurtenant to her current apartment. (Doc. 26 at ¶ 28; Doc. 27 at 21). On March 1, 2021, Defendant denied Plaintiff's proposed modified accommodation request. (Doc. 27 at 20). Defendant reaffirmed the reasons for its prior denial and also noted Plaintiff had failed to demonstrate that the accommodation was necessary under the Fair Housing Act because Plaintiff failed "to show that ‘but for’ the accommodation, she would be denied the opportunity to enjoy the housing of her choice." (Id. ) Defendant explained "Ms. Beram's insufficient evidence does not demonstrate that "but for" the release from prosecution for sleeping in her car she is denied the opportunity to enjoy, not housing of her choice, but camping in a car on private property for which the owner is unwilling to allow such activity. The ‘housing’ Ms. Beram is stating is necessary as housing of her choice is actually a non-housing choice."

(Id. ) Defendant concluded that "it is not the City's ordinance that prevents Ms. Beram from at times using her apartment." (Id. )

CLS then requested that Defendant reconsider both of Plaintiff's modification requests, noting that Plaintiff's landlord felt "their hands [were] tied" by the Code and it would refuse to renew Plaintiff's lease "as long as [the Code] makes Ms. Beram's coping response to her mental illness a violation of Sedona's law." (Doc. 26 at ¶ 30; Doc. 27 at 20). Defendant did not respond. (Doc. 26 at ¶ 31).

A month later, on April 2, 2021, Plaintiff filed suit against the City of Sedona, and Plaintiff's landlord and property management company. (Doc. 1). Therein, Plaintiff alleged the Defendants violated her statutory rights under Title II of the ADA by denying her requests for a reasonable modification of the Code. She also alleged that the Code violates her rights under the Eighth and Fourteenth Amendments of the U.S. Constitution. (Id. ) Plaintiff subsequently entered into a confidential settlement agreement with the landlord and property manager, and those parties were dismissed from this action, with prejudice. (Docs. 25; 33 at ¶ 32). While Plaintiff did not provide a copy of the settlement agreement to the Court, she now alleges "[t]he owner can invalidate the settlement agreement under specific circumstances that Plaintiff has no control over." (Id. at ¶ 33). Plaintiff then filed her Amended Complaint, realleging her claims against the City of Sedona only. (Doc. 26).

On July 16, 2021, Defendant moved to dismiss Plaintiff's Amended Complaint under Fed. R. Civ. P. 12(b)(1) and (6), contending Plaintiff lacks Article III standing to challenge the Code's constitutionality. (Doc. 27 at 1). Defendant argues Plaintiff lacks standing to bring an action under the ADA because Defendant has never applied or threatened to apply the Code to Plaintiff, and thus there is no threat of imminent enforcement of the Code against her. (Id. ) Defendant further argues it has never denied Plaintiff any reasonable accommodation. (Id. ) Finally, Defendant contends the Amended Complaint fails to demonstrate that the Code is per se unconstitutional under Eighth and Fourteenth Amendments. (Id. )

After filing a Response to the Motion to Dismiss (Doc. 30), Plaintiff sought leave to file a second amended complaint because Plaintiff had "benefitted from a sharpening of the factual and legal issues in this case gained from responding to the motion to dismiss." (Doc. 33). Defendant opposes Plaintiff's request to file a second amended complaint, arguing none of the proposed amendments cure Plaintiff's deficient standing to bring her claims. (Doc. 35 at 2). Defendant argues the additional allegations contained in the PSAC concern Plaintiff's perception of her fears of prosecution under the challenged Code, and allegations regarding the terms of the confidential...