Immediately after Mayor Mike's extremely non-surprising show of support for the Trinity River toll road yesterday, the city council members retreated into executive session to continue talking about how to regulate the city's boarding homes .
After more than an hour off-camera, they came back and agreed to let staff move forward on drafting a city ordinance based on HB 216, the state law that lets cities require minimum quality-of-life standards from boarding home operators. But during the conversation, councilman Scott Griggs showed some frustration with the city attorneys and staff, who seem to be finding a lot of reasons why regulating boarding homes is going to be really, really hard and are we sure we want to do this, really?
At the moment, quality of life in boarding homes is no one's problem: The state regulates nursing homes and other managed-care facilities, and the city ensures code and fire compliance for the boarding homes that they know about. But no one's really making sure that the homes aren't exploiting their residents financially or putting them in substandard conditions, both issues that have been reported at some homes. The city currently has one code compliance inspector assigned to check code issues in boarding homes, which city council member Ann Margolin called "obviously grossly inadequate."
But the city's dragging its heels a little on making boarding homes its problem. Jimmy Martin, who runs code compliance for the city, said that the city will need to appoint an eyebrow-raising 18 staff members to supervise boarding homes, at a cost of more than a million dollars a year (for context, when the state was considering overseeing boarding homes, they estimated it would cost around $50 million a year to regulate all the homes in Texas).
And he and assistant city attorney Chris Bowers pointed out there are still "limitations" to the ordinance: They can't ensure "continuous compliance" from boarding home operators, and in some cases, they may be required to get a search warrant to enter and inspect the premises. (As some astute commenters have pointed out, you also can't ensure continuous compliance with the health code in a restaurant, unless you have an inspector sleeping in the walk-in freezer and doing spot-checks every five minutes.)
On the search warrant issue, Griggs pointed out that the state law says explicitly that a county or municipality "may conduct an inspection, survey or an investigation that it considers necessary," and can enter the premises of a boarding home facility to do so.
"How from that language do you take that you can't enter?" he inquired. "The state says you can enter at reasonable times."
"The bottom line is that is the operator says no, shuts the door, and locks it, they need to get a search warrant," Bowers replied.
But Griggs replied that an operator who refuses to let inspectors in would most certainly be probable cause for a search warrant. "If you get the door slammed and locked on you, that certainly means something's going on," he said. "You don't just stand there and not do anything. There will always be unreasonable owners that will bar the door and lock it because they have something to hide, but I don't think that should be an excuse."
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"There may be some institutional resistance to moving forward on this," Griggs added. "But HB 216 explicitly states the owners have to give us permission to enter their facilities at reasonable times. ... I think this is a little misleading, to say the least." He said the city needed "take a leadership role" on the boarding home issue. "The question for this council, the question for my colleagues is, are we going to be leaders in this? Are we going to take a step forward and be leaders, or are we going to stand on the sidelines?"
Mayor Rawlings agreed. Sort of. "This is obviously a complicated issue," he said. "There are legal, neighborhood-planning and enforcement issues. But ultimately it's about human beings, and we've got think through this and make sure they're put front and center." He's talked with groups of senior citizens recently, he said, who "had a lot of passion on this issue."
"I concur that we've got to keep pushing this along," Rawlings said, "But do it in a prudent way, so we make sure we cover our flanks on the legal side. Let's not let that deter us."
City staff will present a model ordinance to the council members later this month, and expect to start implementing it on October 1.