Last month, the downtown San Diego franchise of the Burgerim restaurant chain closed its doors, contending that chaotic conditions caused by large numbers of homeless people in and around nearby Horton Plaza Park had driven customers away and made it impossible to operate, even during the Christmas season. The shuttering of the Burgerim location, which had been open for little over a year, was a warning signal to the San Diego business community—and to city hall, too. Burgerim would not be leaving quietly. The franchisee, backed by parent company Burgerim USA, intended to sue in state court, claiming that neither its landlord nor the City of San Diego had lived up to their responsibilities to keep the city’s historic Gaslamp Quarter clean and suitable for business.
Burgerim’s legal action will be of special interest to members of the multi-billion-dollar homelessness industry nationwide. (In Seattle alone, $1 billion a year gets spent on the city’s 11,500 homeless people). San Diego County’s homeless number about 8,500, which means this beautiful Southern Californian region has the nation’s fourth-largest homeless population (after New York, Los Angeles, and Seattle), a rank it has held for several years. The San Jose area is fifth.
Despite the many billions spent on homelessness, however, the problem is getting worse, especially in California. Along with homeless encampments come deadly outbreaks of hepatis A, typhus, and other communicable diseases, driven by attending drug addiction. Some parts of the city are littered with syringes. A desperate San Diego now steam-cleans its streets and sidewalks. Even in expensive neighborhoods, unguarded greenery is often strewn with trash and toilet paper, revealing where homeless people have spent the night. The city tries to keep the squalor at bay with improved shelter programs. It even plans to provide 500 bins, where the homeless can stash their belongings, but that effort alone will cost the city about $2 million a year in overtime for the cops who guard the lockers. Advocates suggest that these overtime millions could be better spent placing hundreds of homeless in their own studio apartments.
Will Burgerim’s lawsuit have any effect on this complex, expensive, and apparently intractable social issue? Can retail and restaurant tenants really use the courts to force landlords and municipal governments to protect them against a problem that no one seems able to solve?
Absolutely, says Niv Davidovich, a lawyer for Burgerim. “There is ample case law that will allow the Burgerim lawsuit to move forward,” he maintains. “Landlords and the city are responsible for reasonably maintaining the common areas of any commercial property. If they fail to do so, they are violating the lease terms, violating their covenant of good faith and fair dealing with the tenant, which is implied into the lease by operation of law, and are acting negligently, thus subjecting themselves to liability both in tort and contract.”
Whatever the fate of Burgerim’s lawsuit, it’s difficult to foresee how legal action will affect the homelessness crisis long-term. If held liable for problems caused by people over whom they have no control, private landlords at least have the option of going out of business—a nightmare scenario that has already destroyed large sections of urban America. But what about municipal government? Can the law force cities to end or control homelessness?
For decades it’s been an open secret that “homeless” is, for the most part, a euphemism for chronic afflictions that have proven very difficult to treat. The overwhelming majority of homeless people end up on the streets either because they are mentally ill, or because they engage in self-destructive behaviors, or because they live in a cruelly compassionate “non-judgmental” society that no longer grants itself the moral authority to distinguish between illness and health.
In the mid-1980s, when I worked in New York’s City Hall, Mayor Ed Koch commissioned a detailed study of the city’s single homeless men. I no longer have the report, but I recall its main conclusions, which divided this population into five main groups. A large segment of homeless men were clinically diagnosed as seriously mentally ill; occasionally dangerous, they were for the most part frightened, confused, and unable to cope with life. A smaller group suffered from severe personality disorders. They weren’t necessarily sick, but they had a hard time interacting with others. If they held a job, they would fight with the boss; get them an apartment, and they would fight with the landlord. Another 20 percent of the persistently homeless were crippled by substance abuse (though men in all five groups used drugs and alcohol to some extent). Hardcore slackers—what we used to call “bums”—made up about 15 percent of the total. They were generally healthy, and often had job skills, but preferred not to be tied down to regular jobs. They might work or panhandle long enough to buy a bus ticket to Florida or San Diego, but wherever they went, they would soon wind up back on the streets.
The remaining segment—roughly 10 percent of the homeless—were simply down on their luck. They had lost a job, they had been burned out of their apartment building, or they had seen a marriage break up. They needed a helping hand to get back on their feet. Find them a job, and they would keep it. Get them an apartment, and they would take care of it, and pay the rent. The report concluded that only this last 10 percent of the homeless population could be helped in any meaningful way, an observation that sheds light on why, despite billions in spending and hundreds of social programs, homelessness and the chaos it creates has reached the crisis point in cities and states across the country.
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