Transcript of the Testimony of Date: April 12, 2017 Case: Appeals Hearing Before Sr. Administratie Law Judge Frank Lombardo Printed On: April 25, 2017 Siebert and Associates Court Reporters, Inc. Phone:773 851-7779 e-mail:cmsreporters@comcast.net 1 APPEALS HEARING BEFORE SENIOR ADMINISTRATIVE LAW JUDGE FRANK LOMBARDO APRIL 12, 2017 Department of Administrative Hearing, Municipal Hearing Re: Case No. 17 PA 000002 Transcript of an audio recording transcribed by Christine M. Vitosh, C.S.R. No. 084-02883, State of Illinois. Siebert & Assocs. Court Reporters, Inc. (773) 851-7779 cmsreporters@comcast.net 2 1 APPEARANCES: 2 MR. NICKOLAS KAPLAN, Attorney for 3 Mr. Thayer; 4 5 MR. THOMAS A. DORAN, 6 MS. KELLEY A. GANDURSKI, 7 MS. LISETTE MOJICA and 8 MR. EDWARD N. SISKEL, 9 Attorneys for the City of Chicago. 10 11 - - - - - 12 13 14 15 16 17 18 19 20 21 22 23 24 Siebert & Assocs. Court Reporters, Inc. (773) 851-7779 cmsreporters@comcast.net 3 1 (WHEREUPON, the following 2 proceedings were 3 transcribed from an audio 4 recording file:) 5 HEARING OFFICER LOMBARDO: 6 Okay. Next is the City of Chicago 7 versus I guess it's Andy Thayer and the Tent 8 City Alternative to LSD Viaduct organization, 9 which is 17 PA 000002. 10 For the City? 11 MR. DORAN: 12 behalf of the City of Chicago. 13 out that in this matter Mr. Thayer is actually 14 the petitioner, who is filing an appeal. 15 16 17 Tom Doran, D-O-R-A-N, on I'd also point HEARING OFFICER LOMBARDO: Thank you. All right. Who else? MS. GANDURSKI: And Kelly A. 18 Gandurski. 19 G-A-N-D-U-R-S-K-I, senior counsel on behalf of 20 the City of Chicago. 21 22 23 24 K-E-L-L-E-Y, middle initial A, HEARING OFFICER LOMBARDO: And for petitioner? MR. KAPLAN: Nickolas Kaplan. N-I-C-K-O-L-A-S, on behalf of the petitioner, Siebert & Assocs. Court Reporters, Inc. (773) 851-7779 cmsreporters@comcast.net 4 1 2 3 Mr. Thayer. HEARING OFFICER LOMBARDO: Last name is Kaplan? 4 MR. KAPLAN: Yes, K-A-P-L-A-N. 5 HEARING OFFICER LOMBARDO: So it's 6 the -- Here's where we're at: There was a 7 notice of assembly filed. 8 to that notification denying because of 9 whatever reason informing the petitioner they There was a response 10 had a right to appeal that decision. 11 was filed timely and we're here today. 12 Appeal So, Mr. Doran, when you made your 13 correction, are you telling me that the 14 petitioner should start its case first or does 15 the City start? 16 MR. DORAN: 17 HEARING OFFICER LOMBARDO: 18 19 20 Well -- what was the -MR. DORAN: -- I just wanted to make sure that the caption was correct. 21 HEARING OFFICER LOMBARDO: 22 MR. KAPLAN: 23 24 I mean, Oh, okay. That it is an appeal from a denial in essence. HEARING OFFICER LOMBARDO: Well, why Siebert & Assocs. Court Reporters, Inc. (773) 851-7779 cmsreporters@comcast.net 5 1 2 don't we start with the City? MR. KAPLAN: And I would also point 3 out as part of the denial there was an 4 alternate provided to -- 5 6 HEARING OFFICER LOMBARDO: get into that. Well, we'll We'll let the City start out. 7 MR. KAPLAN: I did have a pre -- 8 HEARING OFFICER LOMBARDO: 9 MR. KAPLAN: Oh, okay. I did have pre-hearing -- 10 HEARING OFFICER LOMBARDO: 11 MR. KAPLAN: 12 matters to attend to. 13 ask for a continuance under 214-76-D. 14 Sure. -- matter to -- two First of all, we would The reason for this, Your Honor, 15 is that we actually received a motion to 16 dismiss at 1:16 p.m. yesterday. 17 position based on not only the Municipal Code 18 of Chicago, but Illinois statute, as well as 19 Illinois case law, which if you would allow me 20 to cite, we would like to cite on the record 21 that this constitutes a violation of 22 fundamental due process and we would ask leave 23 from a week from today to file a written 24 response in response to the City's motion to It is our Siebert & Assocs. Court Reporters, Inc. (773) 851-7779 cmsreporters@comcast.net 6 1 dismiss so that we can adequately address 2 their -- their cases and their arguments. 3 4 HEARING OFFICER LOMBARDO: interrupt you for one minute, sorry. 5 (Discussion had off the 6 record.) 7 8 Let me just HEARING OFFICER LOMBARDO: Sorry for the interruption. 9 City have a response for that? 10 MS. GANDURSKI: Yes, Your Honor. We 11 filed a motion yesterday. 12 rules pertaining to public notifications, 13 denial and request to appeal the same, we're 14 under a very short timeline. 15 If you look at the There is only -- there was only 16 five days for Mr. Thayer to file his -- strike 17 that. 18 and then five days for this body to schedule a 19 hearing, so to that end, the City really had no 20 option other than to file this motion within a 21 short time period, but be that as it may, we 22 chose to file it in writing, gave Mr. Thayer 23 notice and a copy over email yesterday so he 24 had ample time to look at it before this Three days for him to file his appeal Siebert & Assocs. Court Reporters, Inc. (773) 851-7779 cmsreporters@comcast.net 7 1 hearing. 2 We could have also presented this 3 motion orally, but we chose to do so in writing 4 so that that way Mr. Thayer would have notice 5 exactly what our arguments would be. 6 MR. DORAN: And I would add to that, 7 we were not contacted that this continuance was 8 sought and, consequently, we have brought two 9 City employees who are -- have other things to 10 11 do, so... HEARING OFFICER LOMBARDO: So the 12 purpose for your continuance is simply to 13 respond to their written motion? 14 MR. KAPLAN: Yes, and I would like to 15 clarify on that matter. 16 you know, the nature -- the timely nature of 17 this particular appeal, but the issue here is a 18 due process one we still contend. 19 I do appreciate the -- There's nothing within, you know, 20 the broader case law and the broader statute 21 that applies to administrative hearings in 22 Illinois that suggests such a narrow reading as 23 is the position of the City. 24 We would also note that contrary Siebert & Assocs. Court Reporters, Inc. (773) 851-7779 cmsreporters@comcast.net 8 1 to their statement, we did actually, the last 2 time we were in front of you, Your Honor, 3 receive what was then a memorandum, not a 4 motion, and that was actually received two days 5 in advance rather than less than 24 hours, as 6 in this case. 7 In that particular instance we 8 chose not to respond, but in this instance it's 9 a ten-page brief with ten pages of exhibits 10 with ample case law cited, with ample 11 arguments, and the issue, Your Honor, our 12 position, is not whether we've had ample time 13 to read it or to review it, but to provide a 14 response in writing that allows us to 15 fully -- to fully engage with both the City's 16 arguments and to have that writing on the 17 record as a matter of -- you know, as a matter 18 of the file. 19 HEARING OFFICER LOMBARDO: 20 the motion. 21 with the hearing on the motion assuming we have 22 authority to continue the matter, but I don't 23 know if that's necessary at this point. 24 I've reviewed it. I received I will proceed Why don't you give us a brief Siebert & Assocs. Court Reporters, Inc. (773) 851-7779 cmsreporters@comcast.net 9 1 2 3 rundown of your motion? MR. KAPLAN: We did have one other brief matter, Your Honor. 4 HEARING OFFICER LOMBARDO: 5 MR. KAPLAN: Sure. We'd also like under the 6 same ordinance, 214-76, to ask at this time if 7 you, the administrative law officer, may issue 8 subpoenas, specifically for Michael Simon. 9 I'd like to point your attention 10 to the motion that was filed by the City, 11 specifically City's Exhibit D and City's 12 Exhibit E, where Mr. Simon is both the 13 individual whose opinion -- whose letter forms 14 the basis for the denial, and he's also cited 15 in an affidavit in Exhibit E where he is 16 specifically attesting to whether or not there 17 had been a public way permit application issued 18 as of the time you took his testimony. 19 We would -- we would like to have 20 Michael Simon here to testify and to be able to 21 have Mr. Thayer directly examine and confront 22 this witness. 23 24 MR. DORAN: If I may, I don't quite understand the basis for the request for the Siebert & Assocs. Court Reporters, Inc. (773) 851-7779 cmsreporters@comcast.net 10 1 2 subpoena. The affidavit that was attached 3 to the motion to dismiss is very simple; it 4 said that the -- the petitioner has not applied 5 for a public way use permit. 6 I would understand it if they're 7 somehow representing that they had and they're 8 contesting that affidavit, but if that's not 9 the case, then it's just a waste of time. 10 MR. KAPLAN: Yes. So our position, 11 first of all, is that there is the first matter 12 of City's Exhibit D, which is specifically the 13 denial letter itself which made certain 14 contentions that we would argue is our position 15 are not reflected within the ordinance, are not 16 within the purview of, you know, the 17 appropriate response to this denial, but even 18 beyond that, Your Honor, our -- my client and 19 Mr. Simon have had repeated communications even 20 prior to this immediate hearing in the lead-up 21 to this particular moment that we find 22 ourselves at right now in which Mr. Thayer and 23 Mr. Simon were in communication about an 24 initial public assembly permit. Siebert & Assocs. Court Reporters, Inc. (773) 851-7779 cmsreporters@comcast.net 11 1 That was disposed of; however, it 2 is our position that those communications are 3 still part of this case and controversy, are 4 relevant to establishing any -- any possibility 5 of City motive or City reasoning on this denial 6 and we would still consider Mr. Simon's 7 testimony to be relevant and the denial of 8 Mr. Thayer to confront him directly be in posit 9 with this forum. 10 HEARING OFFICER LOMBARDO: 11 have the power to issue a subpoena. 12 to find that it is not necessary at this time, 13 it would be simply cumulative. 14 I certainly I'm going You certainly have the advantage 15 if he's not here, you can present whatever 16 evidence you feel is relevant and I'll 17 certainly consider that, so that is denied. 18 19 20 Let's proceed with the summary of the motion quickly. MS. GANDURSKI: Yes. Again, Your 21 Honor, Kelly Gandurski, for the record. 22 The crux of our motion to 23 dismiss, Your Honor, is that even taking this 24 matter in light most favorable to the Siebert & Assocs. Court Reporters, Inc. (773) 851-7779 cmsreporters@comcast.net 12 1 petitioner, Mr. Thayer, that this forum should 2 dismiss this case before there is a hearing 3 because there are other affirmative matters 4 simply defeating his claim. 5 First of all, this forum is here 6 to decide a denial based on time, place, and 7 manner of restrictions. 8 Amendment issue typically when public 9 notifications are denied, so that's really what 10 11 This is a 1st the focus should be here today. Mr. Thayer is getting exactly 12 what he wants. 13 read the denial letter, he's going to have that 14 opportunity to assemble. 15 If he wants to assemble, if you What he can't do is break the 16 law, which is a very simple concept in law, is 17 that illegality and illegal acts are just 18 simply not allowed under the guise of a public 19 notification, or even in contract law. 20 can't contract for something that's illegal. 21 You And so what Mr. Thayer has done 22 is he has presented this public notification 23 under the guise of doing an illegal activity 24 and he's saying it's a 1st Amendment right or Siebert & Assocs. Court Reporters, Inc. (773) 851-7779 cmsreporters@comcast.net 13 1 1st Amendment issue, but it's actually not. 2 So if you look closely at our 3 motion, what you'll see is that what he really 4 wants is to be able to have a certain 5 classification of people that he has classified 6 as the homeless set up tents on the public way. 7 What our denial letter has said 8 is that you cannot set up a structure, a tent, 9 on the public way absent a public use permit. 10 Mr. Thayer did not submit a 11 public use permit along with his public 12 notification of assembly. 13 HEARING OFFICER LOMBARDO: I mean, I 14 don't want to interrupt you, but this seems 15 like you're getting into the matters of the 16 actual hearing, so let's stop it there. 17 18 19 Do you have a quick response to their motion to dismiss? MR. KAPLAN: Yes. First of all, 20 before we proceed further, I would like to note 21 that under the specific language of 10-28 -- or 22 rather 10-8-344, first of all, we would note 23 that we do acknowledge the issue of the manner 24 restriction and, in fact, that's the basis for Siebert & Assocs. Court Reporters, Inc. (773) 851-7779 cmsreporters@comcast.net 14 1 our contention that this motion to dismiss is 2 contrary to the intent, it's contrary to the 3 spirit, of the 1st Amendment. 4 What we would state is that 5 really the restriction of the tents in this 6 particular instance is a manner restriction. 7 It is a restriction upon the manner in which 8 Mr. Thayer and other individuals who wish to 9 enjoy this permit seek to express their 1st 10 Amendment right. 11 But we do have other issues to 12 redress to that that we'll get to a little bit 13 later. 14 The main issue that I'd like to 15 take issue with is this public assembly per -- 16 rather, strike that, the public way use permit 17 as it's outlined in 10-28-10-B, and the problem 18 that we have with that is if you look to the 19 statutory construction, it seems to suggest 20 that the only way to actually secure a public 21 way use permit, if it's already not created via 22 another ordinance, is essentially to go through 23 the legislative process itself, right, it's in 24 order to obtain this public way use permit for, Siebert & Assocs. Court Reporters, Inc. (773) 851-7779 cmsreporters@comcast.net 15 1 say, in a use that is not already con -- 2 contemplated in the code, you essentially have 3 to go through the legislative process of the 4 city council, and our position is that is -- 5 that is a restriction upon first -- upon free 6 assembly, upon what Mr. Thayer is seeking in 7 this case that goes well and beyond the ability 8 for him to exercise his 1st Amendment right to 9 public assembly. Again, we understand -- 10 HEARING OFFICER LOMBARDO: 11 I don't want -- we're getting into the issues 12 of the matter here, so I'm going to do this. 13 Motion to dismiss denied. 14 the hearing. 15 And, again, Let's proceed with Excuse me. 16 (Discussion had off the 17 record.) 18 MS. GANDURSKI: All right. Your 19 Honor, to develop my opening statement -- or 20 actually it's the petitioner's case, would you 21 like the petitioner to -- 22 23 24 HEARING OFFICER LOMBARDO: I'll let the City. MS. GANDURSKI: Again, we'll outline Siebert & Assocs. Court Reporters, Inc. (773) 851-7779 cmsreporters@comcast.net 16 1 the issues very clearly here. 2 public assembly notification on an illegal 3 activity, which is exactly what the petitioner 4 is doing here today. 5 You can't have a For instance, I cannot get a 6 public assembly notification to congregate a 7 hundred people outside of City Hall for the 8 purpose of spraying graffiti on a public 9 building. 10 Just because you want to assemble 11 for a 1st Amendment right does not mean you 12 should be allowed to do so under all 13 circumstances, especially if the activity is 14 illegal. 15 So what the City intends to prove 16 today and show today is that that is exactly 17 what Mr. Thayer intends to do. 18 The ordinances are very clear. 19 If you look at the plain language in 20 Section 10-28-010-B, in order to erect a 21 structure on the public way, one must have a 22 public use permit to do so, and we have 23 evidence to present today via expert testimony 24 that a tent, even a camping tent, is a Siebert & Assocs. Court Reporters, Inc. (773) 851-7779 cmsreporters@comcast.net 17 1 structure, and it falls squarely within 2 Title 10 under that ordinance. 3 allowed unless there is a public use permit. 4 It cannot be Furthermore, we have evidence to 5 present that what Mr. Thayer wants to do, 6 congregate on behalf of a group of individuals, 7 he simply lacks the authority and the standing 8 to do. 9 Mr. Thayer has not himself 10 classified himself as a homeless person, he has 11 been given the right to assemble on the public 12 way, so his -- he has the authority to do that 13 already. 14 He has filed this notification 15 asking for about a nine-month period to 16 assemble; he's been given that right to do so. 17 The City has not said you can't assemble for a 18 legal and lawful purpose, but what he wants to 19 do is basically find housing for a group of 20 people and do so in the middle of the public 21 way. 22 You cannot do that. So essentially, Your Honor, we're 23 asking that the denial be sustained and 24 affirmed and, again, the City is prepared to Siebert & Assocs. Court Reporters, Inc. (773) 851-7779 cmsreporters@comcast.net 18 1 present expert testimony as well as fact 2 witness testimony to inform this court as to 3 why that denial should be heard. 4 I'd like to call Luis Benitez. 5 6 HEARING OFFICER LOMBARDO: up. Would you state your name for me? 7 8 Step right MR. BENITEZ: Luis Benitez. L-U-I-S, B-E-N-I-T-E-Z. 9 HEARING OFFICER LOMBARDO: 10 Mr. Benitez, raise your hand for me, please. 11 (The witness was thereupon duly 12 sworn.) 13 HEARING OFFICER LOMBARDO: 14 The City? LUIS BENITEZ, 15 called as a witness herein, having been first 16 duly sworn, was examined upon oral 17 interrogatories and testified as follows: 18 19 20 DIRECT EXAMINATION BY MS. GANDURSKI: Q. Mr. Benitez, you've stated and spelled 21 your name already, but would you please tell us 22 by whom you are employed? 23 A. Chicago Department of Transportation. 24 Q. And how long have you been employed Siebert & Assocs. Court Reporters, Inc. (773) 851-7779 cmsreporters@comcast.net 19 1 there? 2 A. For the last three and a half years. 3 Q. What is your current title? 4 A. I'm the assistant chief engineer and 5 6 7 the chief bridge engineer. Q. And how long have you been in that position? 8 A. For the last three and a half years. 9 Q. And what are your primary job duties 10 11 as assistant chief engineer of bridges? A. I manager 400 structures, including 42 12 movable, anything that has to do with 13 structures, you know, right-of-way permits we 14 review, the consultants, and all these 15 different capital bridges -- capital programs 16 in the City of Chicago. 17 Q. Do you manage any other individuals? 18 A. Around 50 people. 19 Q. And you are a structural engineer and 20 Other engineers. a professional engineer; is that correct? 21 A. Yes. 22 Q. And from where did you receive your 23 24 undergraduate degree? A. I graduated from Illinois Institute of Siebert & Assocs. Court Reporters, Inc. (773) 851-7779 cmsreporters@comcast.net 20 1 Technology. 2 Q. 3 And when did you complete your undergraduate degree? 4 A. 1996 -- 99. 5 Q. And what was your degree in? 6 A. Bachelor of science in engineering. 7 Q. And do you have any postgraduate 8 degrees? 9 A. 10 engineering. 11 Q. 12 Yes. I have a master in structural And where did you receive your master's degree? 13 A. From Illinois Institute of Technology. 14 Q. And when did you receive your master's 15 degree? 16 A. 2006. 17 Q. And are you licensed in the state of 18 Illinois as both a structural and professional 19 engineer? 20 A. Yes. 21 Q. And when did you receive your 22 professional engineer's license? 23 A. 2005. 24 Q. And when did you receive your Siebert & Assocs. Court Reporters, Inc. (773) 851-7779 cmsreporters@comcast.net 21 1 structural engineer's license? 2 A. 2006. 3 Q. I'm going to show you -- forgive me, 4 Your Honor, it's a little cumbersome up here, 5 give me one moment, please. 6 Tendering to counsel also what 7 has been marked as City's Exhibit A for 8 identification. 9 Mr. Benitez, I'm showing you 10 what's been marked as City's Exhibit A for 11 identification. 12 Do you recognize this? 13 A. Yes. 14 Q. And what do you recognize it to be? 15 A. My resume, my work history. 16 Q. And you prepared this document 17 yourself, did you not? 18 A. Correct. 19 Q. And is this document kept in your 20 ordinary course of business? 21 A. Yes. 22 Q. Is it the regular practice of 23 engineers to keep such a record, a resume or 24 Curriculum Vitae? Siebert & Assocs. Court Reporters, Inc. (773) 851-7779 cmsreporters@comcast.net 22 1 A. Yes. 2 Q. And you update it at or near the time 3 that events appear on that Curriculum Vitae; is 4 that correct? 5 A. 6 7 Sure. MS. GANDURSKI: We'd like to offer City's Exhibit A into evidence, Your Honor. 8 MR. KAPLAN: 9 HEARING OFFICER LOMBARDO: 10 objection, it will be marked City's Exhibit A 11 and moved into evidence. 12 BY MS. GANDURSKI: 13 Q. No objection. Without Now, your Curriculum Vitae, which I 14 call a CV for short, says you have 17 years of 15 experience in structural and professional 16 engineering. 17 Where were you employed prior to 18 the City of Chicago, Department of 19 Transportation? 20 A. Collins Engineers. 21 Q. And how long were you employed there? 22 A. Around 14 years. 23 Q. What was the last title you held in 24 that position? Siebert & Assocs. Court Reporters, Inc. (773) 851-7779 cmsreporters@comcast.net 23 1 A. Lead structural engineer. 2 Q. And what were your day-to-day job 3 duties as lead structural engineer for Collins 4 Engineers? 5 A. Manage five or six engineers and 6 design, inspect and rating different 7 structures. 8 Q. 9 10 And is it true -- I'm looking at your CV -- that you currently sit on two national engineering councils? 11 A. Correct. 12 Q. And what are those councils? 13 A. One of them is council -- national 14 council which writes the structural engineer 15 exam and the council that grades the structural 16 engineer exam. 17 Q. And if you look at this CV, I see 18 that -- it appears that you were the lead 19 structural engineer on over 20 projects; is 20 that correct? 21 A. Correct. 22 Q. What do you mean by "minimum"? 23 A. I only put here big projects. 24 Q. What do you consider big projects? Minimum. Siebert & Assocs. Court Reporters, Inc. (773) 851-7779 cmsreporters@comcast.net 24 1 2 3 4 5 A. Usually anything over five million, ten million dollars. Q. What was the biggest project you've ever worked on? A. The commissioning of BP 6 infrastructures after the Hurricane Katrina. 7 It was around three billion dollars. 8 9 Q. And your CV states that you've been a structural engineer on at least 48 projects; is 10 that correct? 11 A. Correct, ma'am. 12 Q. And so when you say "minimum", again, 13 have there been more projects that you've 14 worked on that just haven't been included on 15 this CV? 16 17 A. Correct. I just put -- MR. KAPLAN: Objection. 18 feel a little bit repetitive here. 19 see where this is going. This does I'd like to 20 HEARING OFFICER LOMBARDO: 21 your purpose is to qualify him as an -- as an 22 expert, is that -- 23 MS. GANDURSKI: 24 MR. KAPLAN: I think That is correct. I think we've heard Siebert & Assocs. Court Reporters, Inc. (773) 851-7779 cmsreporters@comcast.net 25 1 ample -- amply about Mr. Benitez's experience. 2 3 MS. GANDURSKI: With all due respect, it's my witness, and so -- 4 HEARING OFFICER LOMBARDO: 5 willing to stipulate that he qualifies as an 6 expert? 7 MR. KAPLAN: 8 HEARING OFFICER LOMBARDO: 9 Are you Yes. Let's get the honest qualifications and go ahead. 10 MS. GANDURSKI: So we have a 11 stipulation that Mr. Benitez is qualified as an 12 expert? 13 14 HEARING OFFICER LOMBARDO: as an expert. 15 MR. KAPLAN: 16 MS. GANDURSKI: 17 20 In this area, yes. In the structural engineering. 18 19 Qualified MR. KAPLAN: Yes. BY MS. GANDURSKI: Q. Okay. Moving forward, now, you 21 informed us a little bit about your experience 22 and your background, but what I'd like to 23 understand more about is the study of 24 structural engineering. Siebert & Assocs. Court Reporters, Inc. (773) 851-7779 cmsreporters@comcast.net 26 1 What is the study of structural 2 engineering? 3 A. It's -- Structural engineering is 4 basically design structures, you know, 5 elements, a series of elements framed with 6 design basics, exterior forces, live loads and, 7 you know, any other conditions. 8 9 10 11 Q. And in terms of structural engineering, how are structures themselves defined? A. Defined -- Structure can be defined as 12 members or a series of member framing system 13 made of other members to compose, you know, 14 bridges, houses, buildings, tunnels, you know, 15 et cetera. 16 Q. So to give us a more specific example, 17 is a structure considered something that's 18 free-standing? 19 A. Anything -- a strong system, any 20 free-standing structure, any light poles, any 21 concrete barriers, anything, is considered 22 structure. 23 24 Q. And is there any parameters on what type of weight a structure has to support? Siebert & Assocs. Court Reporters, Inc. (773) 851-7779 cmsreporters@comcast.net 27 1 A. It has to support its own self weight 2 and external elements like wind loading, ice 3 loading, snow, you know, live loads, et cetera. 4 5 Q. And what do structural engineers specifically do? 6 A. Okay. We're basically responsible for 7 the design, the stability, the integrity of any 8 of these elements in design for code and for 9 the application, the load and the live load, 10 the self weight, you know, for the specific 11 use. 12 Q. All right. 13 definitions. 14 Thank you for those I'm going to mark into evidence 15 City's Exhibit B for identification, and I have 16 tendered a copy to counsel as well. 17 Reviewing City's Exhibit B, this 18 is a public assembly notification that has been 19 in fact denied by the City of Chicago 20 Department of Transportation. 21 I would like you to read 22 specifically paragraph five of that 23 notification. 24 the statement is and then what the response is I would like you to read what Siebert & Assocs. Court Reporters, Inc. (773) 851-7779 cmsreporters@comcast.net 28 1 2 if you could, out loud. A. Paragraph five. We will erect tents on the public 3 right-of-way of pedestrian member, not on the 4 sidewalk, or anticipate a brief obstruction of 5 the public sidewalks or people congregating or 6 moving tents. 7 Q. Okay. And then I would like you to 8 look at what has been marked City's Exhibit C 9 for identification. 10 opposing counsel. 11 I tender a copy to Here is your copy. Specifically, in looking at 12 Exhibit C, I would like you to look at the 13 second paragraph in that letter where it 14 states -- do you see where it states a public 15 notification filed by Mr. Thayer was denied 16 based upon Chicago Municipal Code 17 10-28-010-B-10? 18 A. Yes. 19 Q. Okay. Do you see that? I'm also going to show you the 20 ordinance language of 10-28-010-B. 21 copy to counsel as well. 22 23 24 I give a Now, are you familiar with this section of the Chicago Municipal Code? A. Yes. Siebert & Assocs. Court Reporters, Inc. (773) 851-7779 cmsreporters@comcast.net 29 1 MR. KAPLAN: Objection for relevance. 2 We understand that the expert here has been 3 presented as an expert in structural 4 engineering. 5 I will wait to see where this is 6 going, but just to, you know, note that this 7 is -- We're not asking for legal conclusions 8 here based upon the expertise. 9 HEARING OFFICER LOMBARDO: 10 for now. 11 BY MS. GANDURSKI: 12 Q. Okay. Overruled Now, in reviewing -- taking a 13 look at Section -- Chicago Municipal Code 14 10-28-010-B-10, it states specifically that 15 unless you obtain a public use permit, you 16 cannot erect a structure on the public way 17 essentially. 18 A. Correct. 19 Q. Okay. 20 Is that correct? Now, is the word "structure" defined under Title 10? 21 A. Not defined under Title 10, no. 22 Q. Okay. In other words, nowhere in 23 Title 10 lists what the term "structure" means; 24 is that right? Siebert & Assocs. Court Reporters, Inc. (773) 851-7779 cmsreporters@comcast.net 30 1 MR. KAPLAN: Objection for relevance. 2 Again, this is -- I understand that he's 3 presented as a structural engineer thing, but 4 this is a matter of the statutory construction, 5 which we -- our position again is that this is 6 a legal question and not a question of the 7 specific structure itself. 8 9 HEARING OFFICER LOMBARDO: to overrule. I'm going I'm going to let him testify. 10 I'll take into consideration his expertise and 11 the ordinance. 12 BY MS. GANDURSKI: 13 14 15 16 17 18 19 Q. In your opinion, Mr. Benitez, is a tent, such as a camping tent, a structure? A. Any -- any tent is considered a structure. Q. Okay. And why is that? Why is a tent considered a structure? A. Any -- it has a framing system, it has 20 walls, roofs, it has to be stable, it has to 21 hold the wind -- it has to be able to resist 22 the wind, it has to be able to be adequate for 23 the people inside. 24 Q. Now, in terms of you saying that a Siebert & Assocs. Court Reporters, Inc. (773) 851-7779 cmsreporters@comcast.net 31 1 tent is a structure, you gave us a definition 2 earlier of what a structure is; is that right? 3 A. Correct. 4 Q. Okay. And again, just to reiterate, 5 you feel that a tent is a structure and meets 6 the definition of structure you gave earlier? 7 A. Any -- any system with -- that has 8 walls, poles, you know, and is -- you know, it 9 is meant to resist wind loading, you know, 10 elements or anything, hold its self weight, you 11 know, it is a structure. 12 Q. Now, you've said that Title 10 does 13 not define structure, and it does not define a 14 tent as a structure; is that correct? 15 A. Correct. 16 Q. Okay. But I want to show you Title 17 13, specifically 13-96-480-A. 18 to opposing counsel. 19 Give this also I want you to look at 20 Section 13-96-480-A and read that definition 21 under Section A if you will. 22 A. For the purpose of this article, a 23 tent is defined as a portable structure, 24 covered or enclosed with paint, canvas or Siebert & Assocs. Court Reporters, Inc. (773) 851-7779 cmsreporters@comcast.net 32 1 similar materials, and supported by poles, 2 stakes, beams, ropes or cables. 3 Q. Now, are you aware of whether or not 4 Title 13 requires one to obtain a permit before 5 erecting a tent? 6 MR. KAPLAN: Objection. That's -- 7 Again, that's a legal question here. 8 thing to ask what the term itself states, but 9 to state -- 10 HEARING OFFICER LOMBARDO: 11 overrule. 12 he either knows or he doesn't. 13 It's one I'll She's asking what his knowledge is; MS. GANDURSKI: I'd also ask that I be 14 allowed to finish my question before I'm 15 interrupted so that the record is clear. 16 HEARING OFFICER LOMBARDO: 17 an objection, wait until she finishes all of 18 her question. 19 BY MS. GANDURSKI: 20 21 22 Q. If you have Again, let me repeat the question. Got a little confused there. Now, are you aware of whether or 23 not Title 13 requires one to obtain a permit 24 before erecting a tent? Siebert & Assocs. Court Reporters, Inc. (773) 851-7779 cmsreporters@comcast.net 33 1 A. Yes. 2 Q. Okay. And what is your understanding? 3 A. Okay. If I remember correctly, 4 anything over -- over 240 square foot requires 5 a permit. 6 7 Q. Okay. And that's under Title 13, correct? 8 A. Correct. 9 Q. Okay. So why then under MCC, 10 Municipal Code, 10-28-010-B, would one need a 11 public use permit if one would not need a 12 permit to erect a tent under 240 square feet 13 under Title 13? 14 A. Okay. There's a difference. Title 13 15 is for private property, while Title 10 is 16 public way. 17 In the public way you need a 18 permit for anything that will be erected in the 19 public way, in the sidewalk, streets, anywhere. 20 You need a public way permit. 21 Q. And why is that the case? 22 A. In the public way you need to be able 23 to look out for the pedestrian, the traveling 24 people, you have to be able to look out for the Siebert & Assocs. Court Reporters, Inc. (773) 851-7779 cmsreporters@comcast.net 34 1 people occupying the space is stable, you know, 2 making sure that you have the proper signage, 3 you know, if you're going to have a structure 4 housed in the street, that you have everything 5 blacked out on the other -- height, are you 6 going to cause damage to existing 7 infrastructure. 8 9 10 11 There's still -- There's a lot of considerations that we need to look at, again, private property versus public property. Q. Do you have concerns about the 12 proximity of a structure such as a tent to the 13 public way, specifically the street? 14 A. Any structures that have been erected 15 have to be stable, they can be cannot be blown 16 out by the wind, weather or anything like that, 17 again, making sure the occupants of the 18 structures on the traveling public are safe, 19 you know. 20 everything have to be stable. 21 Q. Everyone have to be safe and Very good. Okay. I am now marking -- 22 I am showing you what's been marked as City's 23 Exhibit D for identification. 24 opposing counsel. I give one to Siebert & Assocs. Court Reporters, Inc. (773) 851-7779 cmsreporters@comcast.net 35 1 2 3 4 MR. KAPLAN: Thank you. BY MS. GANDURSKI: Q. this. I'd like you to take a moment and read This is an affidavit of Michael Simon? 5 A. Yes. 6 Q. Do you know who Michael Simon is? 7 A. Yes. 8 Q. And who is he? 9 A. He is the assisting commissioner for 10 the public way permits, one of the deputy 11 commissioners, assisting deputy commissioners, 12 and he is in charge of the public way 13 department. 14 Q. And based upon your review of this 15 affidavit, is it your understanding that there 16 has been no public use permit applied for for 17 the erection of tents on the public way at 4525 18 North Kenmore Avenue in Chicago? 19 20 21 A. Yeah, my understanding is there hasn't been no permit filed. Q. And in your opinion does it impose a 22 danger to the public health and safety for 23 individuals to erect tents on the public way 24 without first obtaining a public use permit? Siebert & Assocs. Court Reporters, Inc. (773) 851-7779 cmsreporters@comcast.net 36 1 A. Correct. You have to obtain a permit 2 before erecting any structures in the public 3 way. 4 Q. And why is that your opinion? 5 A. Again, we need to look at the specific 6 structures, the specific -- everything that 7 happens, that it is stable, that it is properly 8 done, signage, everything, make sure that it 9 doesn't hinder or will cause other danger to 10 other people. 11 Q. 12 13 For example, do you consider a chair a structure? A. Any -- a light pole is a structure, a 14 concrete barrier is a structure. Any -- a 15 chair would be a structure, and you cannot just 16 put a chair in the middle of the street. 17 Everything will have to be considered, 18 everything will have to be -- how would you 19 stabilize the chair in the middle of the 20 street. 21 Q. Is it your opinion, Mr. Benitez, to a 22 reasonable degree of structural engineering 23 certainty that erecting tents in the public way 24 without first obtaining a public use permit can Siebert & Assocs. Court Reporters, Inc. (773) 851-7779 cmsreporters@comcast.net 37 1 2 3 4 cause danger to the public health and safety? A. Correct. You have to coordinate it, submit it for permit. Q. Is it your opinion, Mr. Benitez, to a 5 reasonable degree of structural engineering 6 certainty, that tents, even camping tents, are 7 considered structures? 8 A. Yes. 9 Q. Is it also your opinion to a 10 reasonable degree of structural engineering 11 certainty that Chicago Municipal Code 12 10-28-010-B-10 requires individuals to obtain a 13 public use permit before erecting any 14 structure, including a tent, on the public way? 15 A. 16 17 MS. GANDURSKI: HEARING OFFICER LOMBARDO: 22 Counsel, cross? 20 21 I have no further questions. 18 19 Yes. CROSS EXAMINATION BY MR. KAPLAN: Q. Mr. Benitez, is it your experience 23 that homeless people have ever applied for 24 and/or been denied a public assembly permit? Siebert & Assocs. Court Reporters, Inc. (773) 851-7779 cmsreporters@comcast.net 38 1 2 MS. GANDURSKI: Objection, relevance and outside the scope of the direct. 3 HEARING OFFICER LOMBARDO: 4 some leeway here. 5 this? Where are you going with 6 MR. KAPLAN: 7 HEARING OFFICER LOMBARDO: 8 opinion here? 9 BY MR. KAPLAN: 10 Q. Give him No, no, no. Yes. Asking his In your experience, in 11 the three and a half years that you have been 12 in your position at CDOT, in your experience, 13 in your personal knowledge, have there been any 14 homeless individuals who have applied for and 15 received a public assembly permit? 16 A. I have no -- I do not know if public 17 permits have been come through for 18 coordination. 19 Q. Yes. And have you ever had any 20 homeless individuals who have applied for a 21 public way permit during this time? 22 23 24 A. For -- no, not for the last three years. Q. Not for the last three years. And Siebert & Assocs. Court Reporters, Inc. (773) 851-7779 cmsreporters@comcast.net 39 1 have you -- have you in your work has the City 2 ever encountered any homeless individuals using 3 the public way in any capacity? 4 5 MS. GANDURSKI: Objection, speculation. 6 MR. KAPLAN: 7 HEARING OFFICER LOMBARDO: 8 MR. KAPLAN: HEARING OFFICER LOMBARDO: 12 again. 13 BY MR. KAPLAN: 15 16 Q. Do it To the presence of tents on public way property in the City of Chicago. A. So what was the question? 17 HEARING OFFICER LOMBARDO: 18 restate? 19 BY MR. KAPLAN: 20 Yes, his knowledge as -- in his position with CDOT to the use -- 11 14 Asking what his knowledge is? 9 10 Objection -- Q. Yes. Can you Both in your personal expertise 21 with the Chicago Department of Transportation 22 as well as a citizen of Chicago, if you are, 23 Mr. Benitez, in your -- are you aware of there 24 being any tents that have been erected by Siebert & Assocs. Court Reporters, Inc. (773) 851-7779 cmsreporters@comcast.net 40 1 homeless individuals on public property? 2 A. Yes, I have seen tents erected. 3 Q. Yeah. Yes. And specifically, are you 4 familiar with tents in the Wilson area 5 underneath a bridge viaduct? 6 A. Yes. 7 Q. And how long have you been aware of 8 these? 9 A. For the last year. 10 Q. For the last year. And in your -- 11 have they -- have they posed -- have these 12 bridges specifically posed danger in terms 13 of -- strike that. 14 Have these bridges -- have these 15 tents posed in your personal knowledge a 16 specific danger to public safety within that -- 17 within that street? 18 MS. GANDURSKI: 19 MR. KAPLAN: Objection, foundation. Objection, foundation. 20 Mr. Benitez is a CDOT employee who is 21 familiar -- who has been called as a witness in 22 this matter. 23 24 We do understand that it's a relatively narrow scope within the definition Siebert & Assocs. Court Reporters, Inc. (773) 851-7779 cmsreporters@comcast.net 41 1 of structures, but this is relevant to his 2 expertise and to his personal understanding of 3 the specific public safety concerns here. 4 MS. GANDURSKI: We don't know who he 5 is talking about, we don't know what type of 6 tent or structure, we don't know where, we 7 don't know when. 8 MR. KAPLAN: 9 MS. GANDURSKI: 10 HEARING OFFICER LOMBARDO: 12 some leeway. 13 question. 14 16 There is no foundation. 11 15 I will -- I will -- Overruled. MR. KAPLAN: I will give Restate your Yes. BY MR. KAPLAN: Q. Are you familiar right now of there 17 being a tent encampment site in the Uptown 18 neighborhood along Wilson Avenue? 19 A. There is some tents on Wilson Avenue. 20 Q. There are some tents, yes. And those 21 are tents that are consistent with the 22 definition that you presented in 13-96-480? 23 A. Correct. 24 Q. And those tents -- Now, when we say Siebert & Assocs. Court Reporters, Inc. (773) 851-7779 cmsreporters@comcast.net 42 1 those tents, they have been there would you say 2 for the duration of your time working for CDOT? 3 4 5 A. I know they've been there for the last year. Q. For the last year. So at least for 6 the last year. And to your knowledge have 7 there been any specific citations to your 8 office about public safety or health dangers as 9 a result of these tents -- 10 A. No citations -- 11 Q. -- to the public? 12 A. -- to my office. 13 Q. No citations to your office. And has 14 there been -- and also I want to reiterate back 15 to this. 16 You are saying your expertise is 17 in structural engineering. 18 did ask you a question with regard public 19 health, correct? 20 A. Correct. 21 Q. Yes. 22 Opposing counsel But your expertise is not in public health per se? 23 A. Well, I took it as health being danger 24 of being -- Siebert & Assocs. Court Reporters, Inc. (773) 851-7779 cmsreporters@comcast.net 43 1 Q. 2 But you're no -MS. GANDURSKI: Your Honor, I'm sorry, 3 he's not even letting the witness finish his 4 statement before he's asking the next question. 5 MR. KAPLAN: 6 HEARING OFFICER LOMBARDO: 7 finish up. 8 BY THE WITNESS: 9 10 11 12 A. I apologize. Let him I meant safety. BY MR. KAPLAN: Q. Okay, safety. And so your safety is strictly to the structural issue? 13 A. Safety to the passing cars -- 14 Q. To passing cars? 15 A. -- or maybe the people in the tents. 16 Q. The people in the tents. But the 17 tents -- Now, to your knowledge are these 18 tents, however, in the middle of the road, of 19 the street? 20 A. They're on the side. 21 Q. And have you received any reports to 22 your office to the best of your knowledge that 23 homeless individuals have been harmed as a 24 result of the structures they maintain? Siebert & Assocs. Court Reporters, Inc. (773) 851-7779 cmsreporters@comcast.net 44 1 MS. GANDURSKI: 2 HEARING OFFICER LOMBARDO: 3 what his knowledge is. 4 BY THE WITNESS: 5 6 7 8 A. BY MR. KAPLAN: Q. Not to your knowledge. HEARING OFFICER LOMBARDO: MS. GANDURSKI: Redirect? I have some brief redirect, yes. 12 14 No further questions at this time. 10 13 He's asking Not to my knowledge. 9 11 Objection, foundation. REDIRECT EXAMINATION BY MS. GANDURSKI: Q. Mr. Benitez, are you in charge of 15 reviewing all permit applications for public 16 way -- public use permits for the City of 17 Chicago? 18 19 20 A. Anything that will have structure, then I will work with my assignment on those. Q. Okay. But if it doesn't have a 21 structural component to it, you don't 22 necessarily review that; is that correct? 23 A. Correct. 24 Q. Okay. And Counsel asked you whether Siebert & Assocs. Court Reporters, Inc. (773) 851-7779 cmsreporters@comcast.net 45 1 or not any of the individuals under the 2 Lawrence and Wilson viaducts have received 3 citations by CDOT over the last year, that 4 you're aware of individuals having tents under 5 those viaducts. Do you remember that question? 6 A. Yes. 7 Q. And do you specifically issue 8 citations to individuals? 9 A. No. 10 Q. And is that part of your day-to-day 11 job duties? 12 A. No. 13 Q. Who issues citations on behalf of CDOT 14 if you know? 15 A. Public way inspectors. 16 Q. Okay. And do you ever communicate 17 with the public way inspectors as to whether or 18 not they issue citations to individuals? 19 A. No. 20 Q. Okay. So is it true then that you 21 don't know whether citations have been issued 22 to individuals living under the Wilson or 23 Lawrence viaducts? 24 A. Correct. Siebert & Assocs. Court Reporters, Inc. (773) 851-7779 cmsreporters@comcast.net 46 1 Q. And in terms of public health, is 2 public health and safety something that 3 typically go hand in hand in your experience? 4 5 6 7 8 A. Safety, yes. If it's anything to do with regard to safety. Q. And when you mean safety, what specifically are you referring to? A. Safety of the structure, safety of the 9 pedestrian, safety of the commuters, you know, 10 anything in the public way is a little bit more 11 complicated. 12 everyone that has to use the infrastructures. 13 Q. Everything has to be safe for And so you're not only concerned about 14 the general transportation or foot traffic 15 going under those bridges, you're also 16 concerned about anyone staying under those 17 bridges, correct? 18 A. Correct. 19 20 HEARING OFFICER LOMBARDO: recross? 21 MR. KAPLAN: 22 23 24 Any Very briefly. RECROSS EXAMINATION BY MR. KAPLAN: Q. With regard to the construction of the Siebert & Assocs. Court Reporters, Inc. (773) 851-7779 cmsreporters@comcast.net 47 1 tents on the public way, I understand that 2 you're not personally in contact with the 3 public way inspectors. 4 I do wish to ask you again, 5 however, to your knowledge has there been 6 any -- any issuance by the department in any 7 form whatsoever specifically condemning the 8 structures on -- on the Wilson and Lawrence 9 viaducts as contrary to public health or 10 safety? 11 A. 12 13 14 15 about the structural stability of the bridges? Q. 18 19 20 No, the -- Pardon me. The tents that are underneath those bridges. A. 16 17 Are you talking -- and you're talking Oh, okay. MS. GANDURSKI: Again? BY THE WITNESS: A. Yes, sorry. Sorry. BY MR. KAPLAN: Q. Yes. Has there been to your knowledge 21 any issuance of violation in any form, be it 22 through the public way inspectors or any other 23 manner, on these two viaducts as it relates to 24 tents that are erected under these viaducts? Siebert & Assocs. Court Reporters, Inc. (773) 851-7779 cmsreporters@comcast.net 48 1 A. Not to my knowledge. 2 Q. Not to your knowledge. And was there 3 any similar issuance of either citation or 4 notice by the agency that you worked for during 5 the three-month period where at Stewart School 6 there were tents that were erected on the 7 public way in 2016? 8 MS. GANDURSKI: 9 HEARING OFFICER LOMBARDO: 10 MR. KAPLAN: 12 will -- Yes. 13 BY THE WITNESS: A. Yes, we will -- we No, I have not. 15 HEARING OFFICER LOMBARDO: 16 MR. KAPLAN: 17 this time. MS. GANDURSKI: 19 HEARING OFFICER LOMBARDO: 21 Sustained. No further questions at 18 20 That hasn't been testified to. 11 14 Objection, foundation. No redirect. Another witness? MR. DORAN: So at this time the City 22 would rest, and we would reserve rebuttal if 23 necessary. 24 HEARING OFFICER LOMBARDO: Okay. Siebert & Assocs. Court Reporters, Inc. (773) 851-7779 cmsreporters@comcast.net 49 1 MR. KAPLAN: If possible we'd like to 2 ask for a short recess before we begin with 3 presenting our -- 4 5 HEARING OFFICER LOMBARDO: to a short recess? 6 MS. GANDURSKI: 7 HEARING OFFICER LOMBARDO: 8 minutes? 9 Five minutes? MR. KAPLAN: 10 11 What do you need? 15 if possible. HEARING OFFICER LOMBARDO: 15 minutes? Okay. Back on the record. City of Chicago versus Andy 16 Thayer, 17 PA 000002. 17 minutes. We had broke for a few Mr. Kaplan, it's your case. MR. KAPLAN: Yes, thank you. At this 20 time I'd ask leave for Mr. Thayer to make a 21 brief opening statement on this matter. 22 Ten (A short recess was taken.) 15 19 Okay. Let's reconvene at exactly two o'clock. 13 18 No. HEARING OFFICER LOMBARDO: 12 14 Objection I do -- I do permit this, and 23 given the rules of the administrative law 24 hearings, I'm a little bit more relaxed to give Siebert & Assocs. Court Reporters, Inc. (773) 851-7779 cmsreporters@comcast.net 50 1 the permission requested to allow Mr. Thayer to 2 make a brief statement on his behalf. 3 4 HEARING OFFICER LOMBARDO: objection to it? 5 6 MR. DORAN: counsel. 7 8 Do you have Well, he's represented by He's very -- it's not typical. HEARING OFFICER LOMBARDO: It's not typical. 9 Mr. Thayer, a couple minutes. 10 MR. THAYER: 11 HEARING OFFICER LOMBARDO: 12 to give a little opening, go ahead. 13 MR. THAYER: Yes. Thank you. If you want Your Honor, 14 as you know, this appeal is brought under 15 10-8-334, Subsection C1, and the reasons why 16 334 and its predecessor, 330, exist in the 17 first place is due to multiple violations of 18 the right of public assembly by the City. 19 20 MR. DORAN: Objection. This is -- this -- 21 HEARING OFFICER LOMBARDO: 22 getting into some accusations that -- you're a 23 little bit beyond what I -- 24 MR. THAYER: You're I would reference the Siebert & Assocs. Court Reporters, Inc. (773) 851-7779 cmsreporters@comcast.net 51 1 2 1968 protests against the City of Chicago. HEARING OFFICER LOMBARDO: 3 before us. Not before us today. 4 it to what's going on here today. That's not Let's limit 5 MR. THAYER: Very well. 6 HEARING OFFICER LOMBARDO: 7 MR. THAYER: Sustained. At this point I'd like to 8 introduce four exhibits, one of which the City 9 already introduced, Exhibits A, B, C and D, the 10 first one being public assembly permit 11 application dated March 30th, 2017, filed by 12 myself; the City denial of same dated 13 April 3rd; the City denial for use of the exact 14 same location dated March 15th; and the audio 15 recording of proceedings of case number 16 17 PA 000001 regarding that application. 17 The -- if -- 18 19 20 21 22 23 24 MR. DORAN: If I could just interrupt for a moment -HEARING OFFICER LOMBARDO: Does the City have an objection? MR. DORAN: I don't know if you want the exhibits marked A, B or 1, 2, 3. HEARING OFFICER LOMBARDO: Siebert & Assocs. Court Reporters, Inc. (773) 851-7779 cmsreporters@comcast.net 52 1 Respondent's exhibits can be A, B, it's up to 2 him. 3 MR. DORAN: Okay, thank you. 4 HEARING OFFICER LOMBARDO: We'll 5 identify it as City and Respondent, that's 6 fine. 7 MR. THAYER: The Exhibit D, which is 8 the audio recording of the proceedings which we 9 FOIA'd are on a flash drive here, along with 10 two other exhibits, later exhibits, which by 11 definition had to be on flash drives as well. 12 They were films of what has transpired at the 13 mall location and I will introduce those when 14 appropriate, but they're all on the same flash 15 drive, so... 16 17 MR. DORAN: exhibits one at a time so I don't -- 18 HEARING OFFICER LOMBARDO: 19 second. 20 objections? 21 If I can deal with these Hang on one Let's -- So these are -- You have MR. DORAN: Yes. I object to any of 22 the exhibits from -- that reference the past 23 proceeding. Again, it is not relevant to this 24 proceeding. If -- You were the hearing officer Siebert & Assocs. Court Reporters, Inc. (773) 851-7779 cmsreporters@comcast.net 53 1 at that first hearing on the denial and the 2 issues were entirely different. 3 Here we have a request for a 4 group of people to set up an encampment at 5 the Stewart -- 6 7 HEARING OFFICER LOMBARDO: I understand your -- it's relevancy? 8 MR. THAYER: 9 MR. DORAN: Well, the relevance is -But I would like to make 10 the record that it's not relevant because the 11 two issues were different. 12 encampment; that one was opening the Stewart 13 campus mall, which was already opened at the 14 time. This one is the 15 HEARING OFFICER LOMBARDO: 16 distinction based on relevance is very clear. 17 Go ahead. 18 MR. THAYER: I think a The issue is this, Your 19 Honor, that the City has previously denied a 20 public assembly permit for this exact same 21 location fallaciously citing safety concerns, 22 frankly trying to cite anything except the 23 kitchen sink in order to deny that previous 24 public assembly permit. Siebert & Assocs. Court Reporters, Inc. (773) 851-7779 cmsreporters@comcast.net 54 1 MR. DORAN: 2 MR. THAYER: 3 Objection. It goes to the -- It goes to the -- 4 HEARING OFFICER LOMBARDO: 5 to sustain the objection. 6 issue before us now. Let's focus on the 7 MR. THAYER: 8 HEARING OFFICER LOMBARDO: 9 is sustained. I'm going The issue -Relevance I'm not going to allow this 10 evidence from a previous hearing. It has no 11 bearing on what the determination will be 12 today. All right? 13 MR. THAYER: 14 HEARING OFFICER LOMBARDO: 15 16 sustained. Okay. So Do you have something else? MR. THAYER: Okay. Your Honor, we 17 understand that you're not empowered to rule on 18 constitutional issues, but nonetheless, for the 19 purposes of preserving our rights under appeal, 20 we understand that we need to introduce briefly 21 such evidence, and it goes to the -- again, the 22 core of why 10-8-330 and 10-8-334 were 23 developed in the first place; namely, the 1st 24 Amendment right of public assembly. Siebert & Assocs. Court Reporters, Inc. (773) 851-7779 cmsreporters@comcast.net 55 1 And what the City we will charge 2 is doing is that they are committing a 1st 3 Amendment violation. 4 No one is arguing that there are 5 not time, place and manner restrictions as 6 applied to the 1st Amendment. 7 that, but that is settled case law. 8 the issue here. 9 I may not like That isn't The City, in granting the exact 10 same time and place, removed the issue of time 11 and place, so the only thing at issue so far as 12 the 1st Amendment of the U.S. Constitution is 13 concerned is the manner restriction. 14 I would also note, though, 15 that it is more than just simply the 1st 16 Amendment of the U.S. Constitution that's at 17 issue. 18 The more stringent guarantee of 19 the Illinois Constitution also applies, namely, 20 Article 1, Section 5, which protects both 21 expressive and non-expressive assemblies, in 22 the form of tents for the homeless in this -- 23 in this case we would argue. 24 Another constitutional violation, Siebert & Assocs. Court Reporters, Inc. (773) 851-7779 cmsreporters@comcast.net 56 1 which is probably even stronger, is the 2 violation of the 8th Amendment protection 3 against cruel and unusual punishment, and in 4 this context I would like to introduce Exhibits 5 E through U, which are mainly a paper log, and 6 I will list out as those are indicated. 7 The tent city that existed on the 8 location before its destruction by -- we will 9 show this destruction by the City working in 10 conjunction with a private developer, the tent 11 city that was on the pedestrian mall -- 12 MR. DORAN: Objection. You know, I 13 understand that this was going to be a brief 14 opening remark. 15 has -- wants to lay out his -- and preserve his 16 constitutional issue; however, we -- we do need 17 to maintain the scope of what's going to be 18 discussed here, and I understand if he wants to 19 make an objection based on constitutional 20 issues for this particular case, but I don't 21 believe that it's appropriate to go back and 22 litigate 1968 cases or past versions of this 23 ordinance or even, as you found earlier, the -- 24 the denial from two weeks ago. I understand that Mr. Thayer Siebert & Assocs. Court Reporters, Inc. (773) 851-7779 cmsreporters@comcast.net 57 1 2 3 What we're here for is this denial, and that's what should be addressed. MR. THAYER: And we are addressing the 4 specific location that the City says was not 5 proper for this particular permit application. 6 We're addressing the structure issues -- 7 HEARING OFFICER LOMBARDO: But this 8 is preserving your record, I'm glad to give you 9 some latitude to make your constitutional 10 arguments. 11 that was the subject of this particular 12 hearing, which I -- 13 If you could focus on the denial MR. DORAN: With these exhibits, 14 that's usually done during the hearing, it's 15 not done in opening statements, especially when 16 there is an attorney sitting there. 17 HEARING OFFICER LOMBARDO: 18 maybe you want to consult with your attorney 19 because there is a proper way to proceed with 20 the hearing. 21 MR. THAYER: Okay. Mr. Thayer, We will -- We will 22 work on the exhibits during the course of 23 testimony then, okay? 24 HEARING OFFICER LOMBARDO: Okay. Siebert & Assocs. Court Reporters, Inc. (773) 851-7779 cmsreporters@comcast.net 58 1 Thank you. 2 MR. THAYER: I would note, though, 3 that the violation of the 8th Amendment against 4 cruel and unusual punishment has been cited by 5 the Department of Justice itself in Bell versus 6 Boise in the context of the loss of affordable 7 housing options where people are forced to 8 become homeless due to this. 9 banning or imposing owner's impediments on the 10 homeless, including erecting tents, and in the 11 words of the Justice Department, enforcement of 12 the ordinances amounts to the criminalization 13 of homelessness in violation of the 8th 14 Amendment. 15 City ordinances Further, the DOJ -- HEARING OFFICER LOMBARDO: I think 16 you've made your constitutional argument, I 17 think it's preserved for the record. 18 move on and address the specific issue before 19 us today. 20 MR. THAYER: Okay. Let's The -- the 21 constitutional issues aside, the City's 22 rejection is a violation of both state law and 23 city ordinance. 24 We will show that the City's Siebert & Assocs. Court Reporters, Inc. (773) 851-7779 cmsreporters@comcast.net 59 1 application of 10-28-010 is in this instance a 2 violation of the State of Illinois Bill of 3 Rights for Homeless Act, which states, quote, 4 It is the long-standing policy of the state 5 that no person shall suffer unnecessarily from 6 cold or hunger, be deprived of shelter, or the 7 basic rights incident to shelter or be subject 8 to unfair discrimination based on his or her 9 homeless status. 10 At the present time many persons 11 have been rendered homeless as a result of 12 economic hardship, severe shortage of safe and 13 affordable housing, and a shrinking social 14 safety net. 15 It is the intent of this act to 16 lessen the adverse affects and conditions 17 caused by the lack of residence or a home. 18 The requirement by the City for a 19 permit under 10-28-010 is a violation of the 20 Illinois Homeless Bill of Rights. 21 The requirement for passage of an 22 ordinance in order to secure such a permit is 23 also such -- is also a violation of this Act. 24 And also the requirement for insurance by those Siebert & Assocs. Court Reporters, Inc. (773) 851-7779 cmsreporters@comcast.net 60 1 homeless people -- 2 MR. DORAN: You know, I would like to 3 object and I would like to go back to the 4 City's opening statement, which was this -- 5 when we had our motion to dismiss up. 6 This is a hearing on the denial 7 of a permit application for a public assembly, 8 and if the posing party wants to have a 9 declaratory, that should be done in circuit 10 court where those issues, these constitutional 11 issues, are more appropriately brought. 12 For one, as we all know, the 13 lawyers in this room right now, you have to 14 have as a plaintiff, a party that's been -- 15 that has a potential -- 16 MR. THAYER: Objection, Your Honor. 17 He did not raise this in his opening. 18 trying to try the case during my opening. 19 20 21 22 HEARING OFFICER LOMBARDO: Hang on. He's All right. Let's -MR. DORAN: And so I guess what I -- what I'm saying is -- 23 HEARING OFFICER LOMBARDO: Mr. Thayer, 24 you've had plenty of opportunity to preserve Siebert & Assocs. Court Reporters, Inc. (773) 851-7779 cmsreporters@comcast.net 61 1 your constitutional arguments, and I do believe 2 that some of your arguments are better suited 3 for a different forum when this issue is 4 resolved, so be that as it may, please consult 5 with your attorney. 6 forward specifically to the issues before us. 7 We want to move this MR. THAYER: And, Your Honor, if I may 8 respond, I am referring now not to 9 constitutional matters, I'm referring to the 10 same ordinances the City cited in its denial of 11 our permit, 10-28-010. 12 talking about constitutional issues here. That's -- I'm not 13 HEARING OFFICER LOMBARDO: 14 matter before me was whether it was 15 (inaudible) -- 16 17 MR. THAYER: Well, the I'm talking about other points of law than constitutional issues. 18 HEARING OFFICER LOMBARDO: I don't 19 have any other authority to declare that either 20 constitutional or legal, whatever you are 21 seeking. 22 denial, affirm or reverse that denial, so -- 23 24 I can neither affirm or deny that MR. DORAN: And what's so confusing is, as you know, you can't rule on the Siebert & Assocs. Court Reporters, Inc. (773) 851-7779 cmsreporters@comcast.net 62 1 constitutionality of any of these issues. 2 HEARING OFFICER LOMBARDO: 3 MR. DORAN: Right. So if -- and I would ask 4 this of the court, if we can somehow separate 5 this out so we can have a hearing on the actual 6 issues that you can rule upon, and then I don't 7 know if they want to make an offer of proof or 8 what they want to do, or if they decide they 9 want to go to circuit court where this really 10 should be done, or actually federal court, but 11 otherwise this is just going to turn into a 12 circus. 13 HEARING OFFICER LOMBARDO: So we 14 understand, I intently gave you an opportunity 15 to create your record -- 16 MR. THAYER: Yes. 17 HEARING OFFICER LOMBARDO: 18 your constitutional arguments to preserve your 19 arguments for an expected appeal, and that's 20 fine. -- make You have an attorney representing you. 21 MR. THAYER: 22 HEARING OFFICER LOMBARDO: 23 some latitude. 24 Counsel, please. I understand. I gave you Your attorney needs to step up. Siebert & Assocs. Court Reporters, Inc. (773) 851-7779 cmsreporters@comcast.net 63 1 2 MR. KAPLAN: At this time we will seek to introduce our first witness, Mr. Thayer. 3 HEARING OFFICER LOMBARDO: 4 first witness. 5 hand, please. 6 Call your Mr. Thayer, raise your right (The witness was thereupon duly 7 sworn.) 8 HEARING OFFICER LOMBARDO: 9 name and spell your last name. 10 MR. DORAN: State your You know, I'm going to 11 object because I just heard a reference, 12 a-hole. 13 MR. KAPLAN: No. 14 MR. THAYER: No. 15 16 administrative law officer. A-L-O, Thank you. HEARING OFFICER LOMBARDO: All right. 17 Everybody settle down, take a breath. 18 counsel, please control yourself, control your 19 witnesses. 20 21 Counsel, Let's move on. MR. KAPLAN: Thank you. ANDREW STEVEN THAYER, 22 called as a witness herein, having been first 23 duly sworn, was examined upon oral 24 interrogatories and testified as follows: Siebert & Assocs. Court Reporters, Inc. (773) 851-7779 cmsreporters@comcast.net 64 1 DIRECT EXAMINATION 2 BY MR. KAPLAN 3 Q. 4 Would you state your name for the record, please? 5 A. Andrew Steven Thayer. 6 Q. Mr. Thayer, what do you do for a 7 living? 8 A. 9 office. 10 Q. 11 I work as an office manager at a law And how long have you lived in the Uptown neighborhood? 12 A. A little over 30 years. 13 Q. And where do you currently live? 14 A. I live at 4745 North Beacon Street. 15 Q. Mr. Thayer, how long have you been 16 applying for public assembly permits? 17 A. Since about 2003. 18 Q. And in your experience -- or strike 19 that. 20 About how many public assembly or 21 parade permits have you applied for over the 22 years? 23 24 A. I would say probably at least two dozen. Siebert & Assocs. Court Reporters, Inc. (773) 851-7779 cmsreporters@comcast.net 65 1 Q. And in your experience, when -- in the 2 event that the City has -- of Chicago has 3 denied your permit, do they provide you an 4 alternative time and venue and manner? 5 A. Most of the time they do provide an 6 alternative venue, time or manner, although in 7 my layman's understanding of the ordinance 8 sometimes they do not, which is a violation 9 of -- 10 MR. DORAN: 11 HEARING OFFICER LOMBARDO: 12 13 Objection. Sustained. BY MR. KAPLAN: Q. Mr. Thayer, have you ever had any 14 difficulties from the City in terms of applying 15 for the public assembly permit in the form of 16 any denial or negative disposition of the 17 permits? 18 MR. DORAN: Objection. If they're 19 going to reference specific cases of problems, 20 there should be some foundation laid. 21 22 HEARING OFFICER LOMBARDO: We'll give you some leeway with -- 23 MR. KAPLAN: Yeah, yeah. 24 HEARING OFFICER LOMBARDO: Rephrase Siebert & Assocs. Court Reporters, Inc. (773) 851-7779 cmsreporters@comcast.net 66 1 the question. 2 BY MR. KAPLAN: 3 Q. Yes, yes. Mr. Thayer, have you 4 ever -- have you ever had any denials of City 5 of Chicago public assembly permits? 6 A. Yes. I should note that the public 7 assembly permit ordinance was only introduced 8 in 2012. 9 omnibus 10-8-330, which is the public parade Before that it was all under the 10 ordinance, which had an assembly version 11 underneath it. 12 Q. And to clarify for the record, 13 Mr. Thayer, what is the reason for your 14 additional familiarity with these ordinances 15 despite you being a layman? 16 A. I have been charged under 10-8-330 17 several times, I have organized frequently due 18 to issues that the City has not been shall we 19 say friendly to, and have felt that on several 20 occasions that my permits have been denied on 21 those bases. 22 Q. Thank you. Briefly I'd like to draw 23 your attention to the morning of September 26, 24 2016. Siebert & Assocs. Court Reporters, Inc. (773) 851-7779 cmsreporters@comcast.net 67 1 2 We do ask leave to develop foundation on this to the current -- 3 HEARING OFFICER LOMBARDO: 4 it goes. 5 BY MR. KAPLAN: 6 7 8 9 Q. Thank you. See where Mr. Thayer, where were you on the morning of September 26, 2016? A. I was in the Stewart pedestrian mall, a pedestrian mall, a grassy area, that is in 10 front of the old Stewart School located between 11 Broadway Avenue and Wilson Avenue, what used to 12 be Kenmore, blocked off. 13 14 15 Q. presence? A. 16 17 18 And what was the reason for your We had received notice that -MR. DORAN: Objection to the use "we". BY MR. KAPLAN: Q. If I could rephrase the question. 19 Mr. Thayer, were you there alone that morning 20 or with others? 21 A. I was with several others. 22 Q. And are you form of any -- Are you 23 24 part of any organization or coalition? A. Yes. In this particular case it's Siebert & Assocs. Court Reporters, Inc. (773) 851-7779 cmsreporters@comcast.net 68 1 Uptown Tent City Organizers Group that is 2 dedicated to protecting the rights of the 3 homeless. 4 Q. 5 been around? 6 A. 7 8 9 10 And how long has this organization I would say since August of 2015 approximately. Q. And, very briefly, could you describe the composition of members of this coalition? A. Some of us live in residences that we 11 rent, some of us are homeless, people from the 12 neighborhood that are concerned about homeless 13 people's rights. 14 Q. Thank you. Back to that morning, 15 September 26th, about how many residents were 16 on the pedestrian mall at that time, that 17 morning? 18 19 20 A. I would say that there were approximately 40 or 50 of us. Q. And among those residents, among the 21 people on the pedestrian mall, did you observe 22 any City workers? 23 24 A. Yes, there were at least a dozen police officers, there were several Department Siebert & Assocs. Court Reporters, Inc. (773) 851-7779 cmsreporters@comcast.net 69 1 of Family and Support Services personnel, and 2 there were also people from a construction 3 firm, a private firm of some sort. 4 5 Q. And they were all there at the same time to your recollection? 6 A. Yes. 7 Q. And do you recall what they were 8 9 doing? A. Yes. They were blocking off the -- I 10 should say the police officers were overseeing 11 the private contractors blocking off the 12 pedestrian mall. 13 14 I had learned through the press that -- 15 MR. DORAN: 16 MR. KAPLAN: 17 Objection. We do -- we do have exhibits. 18 HEARING OFFICER LOMBARDO: 19 MR. KAPLAN: 20 21 22 23 24 Sustained. We do have exhibits to attest to this. HEARING OFFICER LOMBARDO: Where are you going with this? MR. KAPLAN: Yes. Yes. Your Honor, at this time I would like to submit into the Siebert & Assocs. Court Reporters, Inc. (773) 851-7779 cmsreporters@comcast.net 70 1 record -- and we will have the chance to 2 examine it one-by-one both for the witness and 3 opposing counsel -- Exhibits A through F, 4 pictures of the pedestrian mall on 5 September 26, 2016. 6 MR. DORAN: So I at this point would 7 object because I still don't know what the 8 relevancy of this testimony is. 9 been explained. 10 MR. KAPLAN: It's never Again, this is 11 demonstrative evidence. 12 the purpose and foundation for it as we enter 13 it into the record. 14 We do hope to develop Mr. Thayer as my witness will 15 verify and explicate these demonstrative 16 exhibits, and we do hope at this time that we 17 will be able to establish relevance for our 18 current matter. 19 HEARING OFFICER LOMBARDO: 20 I've given you some leeway in going back prior 21 to the application or the notice. 22 23 24 MR. KAPLAN: I mean, I do appreciate that, Your Honor. HEARING OFFICER LOMBARDO: I'm trying Siebert & Assocs. Court Reporters, Inc. (773) 851-7779 cmsreporters@comcast.net 71 1 to, you know, give you some opportunity here, 2 but let's relate it to what happened -- 3 MR. KAPLAN: 4 HEARING OFFICER LOMBARDO: 5 Yes. -- for this notice. 6 MR. KAPLAN: Right. And we would like 7 to note that this is relevant to establishing 8 the purpose behind the permit. 9 called, of course, the applicant himself to This is why I 10 testify to that purpose or exhibits relevant to 11 that. 12 MR. DORAN: Again, it's not relevant. 13 It's not relevant to the issue before this 14 hearing body, and it's not relevant to the 15 constitutional issues that he's trying to 16 establish. 17 MR. KAPLAN: I mean, if you'd like to 18 have this in camera and make a determination 19 yourself, Your Honor, I would be open to that, 20 but barring that, I would like to enter these 21 into the record. 22 HEARING OFFICER LOMBARDO: I'll give 23 you a few more questions to see if you can tie 24 it in -- Siebert & Assocs. Court Reporters, Inc. (773) 851-7779 cmsreporters@comcast.net 72 1 MR. KAPLAN: 2 HEARING OFFICER LOMBARDO: 3 let's get it going. 4 BY MR. KAPLAN: 5 6 Q. to the photos that I do intend to present. Mr. Thayer, when were these 8 photos taken? 9 A. 11 12 13 14 -- but Just a couple of questions with regard 7 10 Yes. The photos were taken on September 26, 2016. MR. DORAN: talking about? And what photos are we I haven't seen -- MR. KAPLAN: These are the -- these are -- again, these are -- 15 MS. GANDURSKI: 16 MR. KAPLAN: Are they -- I would be more than 17 happy to enter them into the record, but I am 18 trying to lay a foundation before I can -- 19 being sensitive to -- being sensitive to the 20 concerns that the City has raised on this 21 matter to establish why they are relevant, why 22 they are, you know, accurate and try to 23 authenticate them for the purpose of this. 24 MR. DORAN: Beyond that, generally Siebert & Assocs. Court Reporters, Inc. (773) 851-7779 cmsreporters@comcast.net 73 1 when this is done, counsel tenders a copy of 2 the photograph to opposing counsel. 3 4 MR. KAPLAN: welcome -- we are more than willing to do that. 5 6 MR. DORAN: Could I finish? Before they start questioning about the photos. 7 8 And we are more than HEARING OFFICER LOMBARDO: Do you have copies of the photograph? 9 MR. KAPLAN: Yes, I do, and I've been 10 trying for the last minute to -- 11 HEARING OFFICER LOMBARDO: 12 offer them up and let's see what you have, and 13 then offer up why this is relevant to what 14 occurred in the application. 15 16 MR. DORAN: MR. KAPLAN: Yes, the ones you just tendered. 19 MR. DORAN: 20 E and F. 21 D yet. 22 Just so you verify, you did receive Exhibits A through E -- 17 18 Well, let's -- I believe. That's the same as D. A, B, C, D, I don't have a C, B -- B. HEARING OFFICER LOMBARDO: You've got 23 photographs marked Exhibits A, B, C, D, F. 24 what do these reference? And Siebert & Assocs. Court Reporters, Inc. (773) 851-7779 cmsreporters@comcast.net 74 1 MR. KAPLAN: 2 HEARING OFFICER LOMBARDO: 3 these are extra. 4 through F. 5 Your Honor -I think I don't know what -- A MR. KAPLAN: Your Honor, we're 6 presenting these photos as demonstrative 7 evidence from September 26, 2016, for the 8 purpose of demonstrating A, the erection of 9 tents that were present as of that date and 10 present there prior for the three-month period 11 before then as documented by (inaudible). 12 In addition, we do present it for 13 purposes of refuting the claim with regard to 14 the public safety and ability to navigate the 15 public way, which is really at the root in 16 opposition, Your Honor, of the ordinance and 17 the -- the safety concerns that were brought by 18 City's witness earlier. 19 HEARING OFFICER LOMBARDO: 20 MR. KAPLAN: 21 HEARING OFFICER LOMBARDO: I think -- And I would like -I think you 22 know we're talking about the basis of the 23 denial. 24 MR. KAPLAN: Right. Siebert & Assocs. Court Reporters, Inc. (773) 851-7779 cmsreporters@comcast.net 75 1 HEARING OFFICER LOMBARDO: The basis 2 of the denial was the lack of having a permit, 3 public way permit essentially. 4 MR. KAPLAN: 5 HEARING OFFICER LOMBARDO: Yes. Right? 6 this -- You're showing me that in the past 7 there's been some structures on this area. 8 9 MR. KAPLAN: So There were structures on this area, Your Honor, yes, and they were there 10 for three months, during which time they were 11 there with apparently even the non-enforcement 12 consent of the City and were removed only once 13 this construction -- 14 MR. DORAN: 15 HEARING OFFICER LOMBARDO: Objection. 16 him finish. 17 what happened to your -- 18 Well, let Tie it in, how is that relevant to MR. KAPLAN: Your Honor, yes, it's 19 relevant because we're trying to establish the 20 viability essentially of what -- of this public 21 assembly that Mr. Thayer has petitioned for and 22 applied for. 23 24 This is essentially the structures that existed on this public way Siebert & Assocs. Court Reporters, Inc. (773) 851-7779 cmsreporters@comcast.net 76 1 prior to the eviction of homeless residents 2 from that way, and we -- it is our position 3 that based on the previous viability and 4 maintenance of these structures in the past 5 that this is a permissible use either based on 6 the ordinance or contrarily based on some of 7 our other arguments to be preserved for appeal. 8 9 HEARING OFFICER LOMBARDO: I don't find these relevant to what -- to what 10 occurred. 11 or evidence in this matter. 12 relate it to what happened on your notice and 13 your denial. 14 I'm going to deny these as exhibits MR. KAPLAN: You've got to Well, with regard to 15 the -- with regard to the notice, this is 16 specifically -- these are -- these are 17 essentially demonstrative evidence showing what 18 we intended to essentially recreate on that 19 public way. 20 Essentially this was a structure 21 that existed prior that we intended to revive. 22 This is documentary evidence that is put forth 23 to show the viability and the ability for those 24 structures to be maintained. Siebert & Assocs. Court Reporters, Inc. (773) 851-7779 cmsreporters@comcast.net 77 1 HEARING OFFICER LOMBARDO: 2 understand the point, but my question is what 3 does that have to do with the fact that you may 4 have had either illegal or undocumented or 5 legal or permitted activities at this place 6 prior to your current notice of intent and 7 denial? 8 MR. KAPLAN: 9 HEARING OFFICER LOMBARDO: I Yeah. 10 it as being relevant to today. 11 MR. KAPLAN: I don't see It is, because in the 12 initial matter -- and, again, I understand the 13 City's position on this, but this is directly 14 related to why there was this -- this series of 15 cases and of appeals that were brought. 16 HEARING OFFICER LOMBARDO: 17 made your -- you've made your record for that. 18 The exhibits will be denied as irrelevant. 19 BY MR. KAPLAN: 20 Q. You've I'd like to proceed at least to the 21 most recent incident here with regard to what 22 is occurring at the lake shore. 23 Mr. Thayer, how long have you -- 24 how long have you been involved in advocacy on Siebert & Assocs. Court Reporters, Inc. (773) 851-7779 cmsreporters@comcast.net 78 1 the viaduct -- the viaduct's position at Wilson 2 and Marine Drive? 3 A. Since August of 2015. 4 Q. And what was your reason for being 5 6 involved in this? A. I was told by my friend, Ryan Foelker 7 (phonetic), that the City was threatening to 8 arrest people. 9 10 MR. DORAN: Objection. It's -- it's hearsay. 11 MR. KAPLAN: 12 HEARING OFFICER LOMBARDO: 13 MR. KAPLAN: 14 rephrase the question. 15 BY MR. KAPLAN: 16 Q. Yes, I understand. Sustained. If you allow me to Mr. Thayer, when did you personally 17 become involved in your own experience with the 18 issues facing residents in that viaduct? 19 A. August, 2015. 20 Q. Okay. 21 And did you personally witness this? 22 A. Yes, I did. 23 Q. Did you have any personal interaction 24 with homeless residents there? Siebert & Assocs. Court Reporters, Inc. (773) 851-7779 cmsreporters@comcast.net 79 1 A. Yes. 2 Q. And was your understanding of this 3 problem primarily formed by homeless residents 4 themselves? 5 A. Yes. 6 Q. And from August, 2015 -- And, 7 Mr. Thayer, are you still currently involved 8 with the advocacy scene? 9 A. Yes. 10 Q. And to that end, so you were involved 11 in the viaduct advocacy, correct, and when did 12 you -- what spurred you -- or is there any 13 nexus between that advocacy and the purpose of 14 this public assembly permit we're here for 15 today? 16 A. Yes. 17 Q. And what was that purpose? 18 A. There is -- The City at numerous 19 meetings and accounts have informed us that the 20 viaduct -- 21 MR. DORAN: 22 MR. KAPLAN: 23 HEARING OFFICER LOMBARDO: 24 Objection. If you'd like -- Let's let him finish, go ahead. Overruled. Overruled. Siebert & Assocs. Court Reporters, Inc. (773) 851-7779 cmsreporters@comcast.net 80 1 2 BY THE WITNESS: A. There have been several press accounts 3 about the Lake Shore Drive bridge viaducts 4 being scheduled for reconstruction this summer, 5 forcing the residents who are living under 6 there to move once the reconstruction of these 7 1930's era viaducts are under construction. 8 BY MR. KAPLAN: 9 10 Q. And, Mr. Thayer -- Mr. Thayer, you are yourself housed at this moment, correct? 11 A. Yes, I am. 12 Q. What was the basis of your concern 13 then for -- for applying for this permit, 14 somebody who is housed, on behalf of the 15 homeless? 16 A. Once the Lake Shore Drive viaducts are 17 closed, there are very little other public 18 space for the homeless people in our 19 neighborhood to stay, one of which was 20 previously the school area, where homeless had 21 stayed for many months in my experience until 22 they were forced out by the City. 23 MR. DORAN: Objection. 24 HEARING OFFICER LOMBARDO: Overruled. Siebert & Assocs. Court Reporters, Inc. (773) 851-7779 cmsreporters@comcast.net 81 1 Go ahead. 2 BY MR. KAPLAN: 3 Q. Now, to that point, in your 4 experiences with homeless residents in the 5 viaducts, do they ever face any issues around 6 life sustaining activities such as, you know, 7 getting around, being mobile, anything of that 8 nature? 9 A. Well, the weather is -- is a huge 10 issue, especially in the winter. 11 Frostbite and exposure to the wind and the cold 12 has been a continuing concern, and the -- when 13 in my experience they have been forced to move 14 for the City cleanings, especially on very, 15 very cold days, they're really forced out of 16 their tents into very freezing weather. 17 Q. People -- To that -- and to that point, in your 18 experience, do the homeless face any other 19 concerns in terms of, for example, accessing 20 public transportation or any other kind of 21 issues around mobility in the City? 22 A. Well, yes. I mean, the reason why so 23 many people stay in the Uptown area is there 24 are social services for them, and lacking money Siebert & Assocs. Court Reporters, Inc. (773) 851-7779 cmsreporters@comcast.net 82 1 for public transportation, being in proximity 2 to these social services, whether drug 3 treatment or other services, is very important. 4 Q. Yes. 5 HEARING OFFICER LOMBARDO: 6 why we're here today. 7 BY MR. KAPLAN: 8 9 Q. Yes, I am. Yes. Tie that to And to that end, Mr. Thayer, was this difficulty in accessing -- 10 inserting public transportation or 11 inserting concerns of that nature part of your 12 motivation in applying, despite the fact you're 13 not homeless, for this permit? 14 15 A. Yes. have -- I have personally witnessed -- 16 17 And I might also add that we MR. DORAN: Objection. No question pending. 18 MR. KAPLAN: Yes. 19 HEARING OFFICER LOMBARDO: 20 a question and have him answer? 21 MR. KAPLAN: 22 23 24 Can you ask Yes, I understand. BY MR. KAPLAN: Q. Mr. Thayer, so you said this is part of the basis and you are going to explicate as Siebert & Assocs. Court Reporters, Inc. (773) 851-7779 cmsreporters@comcast.net 83 1 far as to the end of why you did so instead of 2 a homeless resident in this case. 3 A. Yes. I have some experience with 4 public assembly and -- and parade permits, and 5 the -- I had personally witnessed several times 6 Chicago Police officers also -- 7 MR. DORAN: 8 HEARING OFFICER LOMBARDO: 9 10 11 Objection. Sustained. Get us to today, come on. BY MR. KAPLAN: Q. And -- yes, yes. And did you have any 12 communications with homeless residents that you 13 intended to go forth with this? 14 A. Yes, yes. 15 MR. DORAN: 16 HEARING OFFICER LOMBARDO: 17 18 19 20 Objection. Foundation. Sustained. BY THE WITNESS: A. Yes. BY MR. KAPLAN: Q. In your organizational meetings as 21 part of this coalition, did you have direct 22 communications with -- with homeless residents 23 about your intent to go forth with this? 24 A. Yes. Homeless people are a part of Siebert & Assocs. Court Reporters, Inc. (773) 851-7779 cmsreporters@comcast.net 84 1 our coalition and we collectively discussed 2 the impending -- 3 MR. DORAN: 4 HEARING OFFICER LOMBARDO: 5 question -- 6 BY THE WITNESS: 7 A. 8 9 14 15 MR. KAPLAN: And I'll be sure to try to direct my witness, too. HEARING OFFICER LOMBARDO: Thank you. BY MR. KAPLAN: Q. And to reiterate, this was done with homeless residents' consent? 16 A. Yes. 17 Q. And in -- 18 -- and try not to give more than the answer asks. 12 13 Answer the Yes. HEARING OFFICER LOMBARDO: 10 11 Objection. MR. DORAN: Objection. There's been 19 no foundation laid for who these people are, 20 where this conversation took place, when this 21 conversation took place, it's just -- there's 22 no -- who are these people? 23 24 HEARING OFFICER LOMBARDO: I -- I accept the objection, but I'm going to overrule Siebert & Assocs. Court Reporters, Inc. (773) 851-7779 cmsreporters@comcast.net 85 1 it. 2 it. I'll give it due weight when I consider 3 MR. DORAN: 4 HEARING OFFICER LOMBARDO: 5 MR. KAPLAN: 6 7 8 Thank you. Go ahead. Yes. BY MR. KAPLAN: Q. So with regard to this, you do -- do you have regular meetings of this coalition? 9 A. Yes. 10 Q. And where do you have these meetings? 11 A. Typically at Everybody's Coffee, but 12 not always. 13 Q. 14 Okay. And these meetings are open -- Are they open to the public? 15 A. Generally, yes. 16 Q. Okay. 17 And at these meetings do homeless individuals regularly appear? 18 A. Yes. 19 Q. And you regularly discuss issues 20 regarding their advocacy? 21 A. Yes. 22 Q. And at a meeting within the past three 23 24 months this was -- this permit was discussed? A. Yes. Siebert & Assocs. Court Reporters, Inc. (773) 851-7779 cmsreporters@comcast.net 86 1 Q. And it was agreed upon to apply for 3 A. Yes. 4 Q. With homeless individuals' consent? 5 A. Yes. 6 Q. Very briefly, I would like to return 2 it? 7 back to the date of March 6th, just lay a 8 foundation very briefly for the extent of this 9 hearing and the fact that this has been a 10 rather lengthy ordeal, the end to be arriving 11 at here today. 12 MR. DORAN: Again, I believe this 13 objection has already been ruled upon, that 14 this is beyond the scope of this hearing. 15 MR. KAPLAN: 16 HEARING OFFICER LOMBARDO: 17 where he goes. 18 BY MR. KAPLAN: 19 Q. Yes. We're not -Let's see Ask your question. Yes. Mr. Thayer, what was the 20 location and street address for the original 21 permit? 22 A. 23 24 I believe it was 4502 -HEARING OFFICER LOMBARDO: The same -- Siebert & Assocs. Court Reporters, Inc. (773) 851-7779 cmsreporters@comcast.net 87 1 THE WITNESS: 2 HEARING OFFICER LOMBARDO: 3 6 -- prior to today. 4 5 Yes. THE WITNESS: Yes. BY MR. KAPLAN: Q. Mr. Thayer, what was your reason for 7 applying for a public assembly permit, the 8 permit that we are here for today. 9 A. To provide -- 10 11 MR. DORAN: HEARING OFFICER LOMBARDO: 13 him answer it again. 14 BY MR. KAPLAN: Q. 16 17 18 Asked and answered. 12 15 Objection. I'll let Let's -- The specific permit for today? HEARING OFFICER LOMBARDO: Okay. BY THE WITNESS: A. To provide a safe space where homeless 19 people could put their tents without fear of 20 interference from City workers. 21 BY MR. KAPLAN: 22 Q. 23 for it? 24 A. And was this your first time applying No. Siebert & Assocs. Court Reporters, Inc. (773) 851-7779 cmsreporters@comcast.net 88 1 Q. Okay. And so you applied for this 2 permit. 3 that you wanted to erect tents; is that 4 correct? Now, in the permit itself, you noted 5 A. That is correct. 6 Q. And why did you decide for this public 7 assembly permit to include tents as part of 8 your permit? 9 A. The City had previously denied -- 10 MR. DORAN: 11 HEARING OFFICER LOMBARDO: 12 I want to hear. 13 BY THE WITNESS: 14 A. Objection. Overruled. Go ahead. The City had previously denied a 15 permit application that lacked that, citing 16 safety grounds that they never explicated, and 17 after the rejection of that permit, I felt it 18 was necessary to be more specific as to what 19 we intended to do with our public assembly 20 permit. 21 BY MR. KAPLAN: 22 Q. Okay. And as far as these tents, 23 these are tents that -- how are these tents to 24 be provided for as the public assembly permit Siebert & Assocs. Court Reporters, Inc. (773) 851-7779 cmsreporters@comcast.net 89 1 holder? 2 A. Homeless people would provide their 3 own. 4 which is the name of our group, has provided 5 free tents for those homeless people who needed 6 them. 7 On occasion Uptown Tent Cities Coalition, Q. And have you had experience with 8 managing a homeless encampment as part of your 9 advocacy? 10 A. I don't manage the homeless 11 encampment, the homeless people manage it 12 themselves. 13 other people of the coalition, whether homeless 14 or not, do as well. 15 16 Q. I offer what assistance, as do So you have had experience with partaking in that? 17 A. Yes. 18 Q. We'll draw this to a close here. So 19 specific to this denial, when you -- when you 20 read through the language of 10-8-344 -- Now, 21 first of all, this is an ordinance you've had 22 experience with before? 23 A. A great deal of experience, yes. 24 Q. Yes. Did you see anything in there Siebert & Assocs. Court Reporters, Inc. (773) 851-7779 cmsreporters@comcast.net 90 1 that made specific reference to any erections 2 on the public assembly? 3 Did you see -- did you see any 4 language referencing any restrictions on what 5 could be built or maintained as part of this 6 public assembly? 7 A. No. 8 Q. In your experience with this 9 assembly -- with this permit process, have you 10 in the past had knowledge of there being such a 11 provision in this ordinance? 12 A. No. 13 Q. And when you applied for this permit, 14 did you apply for it in specific contravention 15 to this other ordinance or as you understood 16 the plain -- as you understood what was before 17 you in the ordinance? 18 19 20 A. This other ordinance was irrelevant under my understanding. Q. Mr. Thayer, when you applied for the 21 ordinance, did you see reference to this other 22 ordinance that was referenced in the denial 23 letter? 24 A. No. There was no place in 10-8-334 Siebert & Assocs. Court Reporters, Inc. (773) 851-7779 cmsreporters@comcast.net 91 1 2 where there is any reference to 10-28-010. Q. So the denial letter was the first 3 time that you were apprised of -- of this 4 ordinance, this additional ordinance? 5 A. Yes. 6 Q. And, Mr. Thayer, you did apply for an 7 appeal of that, correct? 8 A. Yes, I did. 9 Q. And, Mr. Thayer, did you state any 10 specific grounds in your appeal for your wish 11 to appeal that denial? 12 A. No, I did not state any in the appeal. 13 I did not state any specific reasons for the 14 appeal -- 15 Q. And -- 16 A. -- aside from the denial of the permit 17 18 and my exercising my rights under 334. Q. And in your understanding of 10-8-344, 19 Mr. Thayer, is it required under that ordinance 20 to state the reason in order to appeal? 21 A. No. There is no provision in 334 for 22 stating your appeal, simply that if you 23 received a denial, you have five business days 24 within which to appeal to the Administrative Siebert & Assocs. Court Reporters, Inc. (773) 851-7779 cmsreporters@comcast.net 92 1 2 Law Department for your appeals hearing. Q. Mr. Thayer, I understand, of course, 3 you're not a structural engineer, but you 4 have -- you have born witness to these homeless 5 encampment sites. 6 Have you personally witnessed any 7 danger to public safety arising from the 8 Stewart School mall? 9 A. No. 10 Q. Have you seen any danger to the public 11 12 at the Wilson viaduct? A. No. Aside I should note from the 13 weather issues, but to other members of the 14 public, no. 15 Q. 16 17 And have you witnessed any dangers to the public at the Lawrence Drive viaduct area? A. No, I have not. 18 MR. KAPLAN: 19 HEARING OFFICER LOMBARDO: 20 No further questions. City, cross? 21 MR. DORAN: 22 Sure. CROSS EXAMINATION 23 BY MR. DORAN: 24 Q. Mr. Thayer, I'm going to ask you a few Siebert & Assocs. Court Reporters, Inc. (773) 851-7779 cmsreporters@comcast.net 93 1 questions, so just listen to them, and if you 2 misunderstand, just let me know. 3 HEARING OFFICER LOMBARDO: 4 can you do me a favor? 5 the microphone a little bit? Kind of step up towards 6 THE WITNESS: 7 HEARING OFFICER LOMBARDO: 8 BY MR. DORAN: 9 Q. Mr. Thayer, Yes. Thank you. Now, Mr. Thayer, you just stated that 10 you saw no reference to Section 10-8-010 in the 11 public assembly permit; is that correct? 12 A. It's 10-28-010. 13 Q. 28, thank you. 14 15 16 17 18 Is that -- is that correct? A. There is no reference to 10-28-010 under 10-8-334. Q. Okay. Is there any reference to any law other than the public assembly? 19 A. Yes, there is. 20 Q. Is there a reference to, for example, 21 graffiti? 22 A. No, there is not. 23 Q. Is there a reference to murder? 24 A. No. Siebert & Assocs. Court Reporters, Inc. (773) 851-7779 cmsreporters@comcast.net 94 1 Q. Is there a reference to theft? 2 3 MR. KAPLAN: Objection. I don't see where this is going. 4 HEARING OFFICER LOMBARDO: I'll give 5 you a couple more questions, let's -- go ahead. 6 BY MR. DORAN: 7 Q. 8 Now, you stated you are employed, correct? 9 A. Yes indeed. 10 Q. And where are you employed? 11 A. As a supervisor of a law office. 12 Q. And how long have you been employed 13 14 there? A. Employed as an employee since 15 approximately 2006. 16 contractor. 17 Q. 18 Okay. Before that I worked as a And you've stated that you are not currently homeless, correct? 19 A. That's correct. 20 Q. Showing you what has previously been 21 marked City's Exhibit B -- I believe you 22 already have a copy. 23 MR. KAPLAN: Yes. Thank you. 24 Siebert & Assocs. Court Reporters, Inc. (773) 851-7779 cmsreporters@comcast.net 95 1 BY MR. DORAN: 2 Q. Do you recognize this? 3 A. Yes. 4 Q. And can you tell the hearing officer 5 what that is? 6 A. This is the permit application that I 7 have filed with the City for public assembly 8 that I submitted to the City on March 30th of 9 this year. 10 11 12 Q. Okay. But it's actually a permit notification, isn't it? A. Actually at the Department of 13 Transportation office it says this is where 14 public assembly permit applications are 15 accepted. 16 17 18 Q. Okay, but I'm asking about that document. A. I have a photograph to that effect. What is it entitled? The document says Notification of 19 Public Assembly, but at the DOT office on the 20 9th floor of the City, it says public assembly 21 permit applications. 22 Q. Okay. Can I have that back? I'd like 23 to move this into evidence, City's Exhibit -- 24 HEARING OFFICER LOMBARDO: I've Siebert & Assocs. Court Reporters, Inc. (773) 851-7779 cmsreporters@comcast.net 96 1 already -- I've already -- 2 MR. DORAN: 3 BY MR. DORAN: 4 Q. Okay. Already did. Turning to Page 2 of this 5 notification, does your signature appear on 6 this? 7 A. Yes, it does. 8 Q. And is that immediately under the 9 words "submitted by"? 10 A. Yes. 11 Q. Did you review the notification of 12 public assembly before signing and submitting 13 it? 14 A. Yes. 15 Q. And was all the information you 16 provided in the notification accurate and 17 complete when you submitted it to CDOT on 18 March 30th? 19 A. Yes. 20 Q. In paragraph one of the notification 21 you state the name of the public assembly is 22 the Tent City Alternative to the LSD Viaduct? 23 A. Yes. 24 Q. And you've stated that this is a -- Is Siebert & Assocs. Court Reporters, Inc. (773) 851-7779 cmsreporters@comcast.net 97 1 2 3 4 5 this the name of the public assembly? A. That is the name of the public assembly. Q. Is this a group or an organization of any type? 6 A. It's the name of the assembly. 7 Q. Okay. Now, in paragraph six of the 8 notification, you estimate the number of 9 participants as 40; is that correct? 10 A. Yes. 11 Q. And you base this estimate on the 12 approximate 40 homeless people currently living 13 under the Lake Shore Drive viaduct at Wilson 14 and Lawrence? 15 A. Yes. 16 Q. And you state in paragraph six of the 17 notification that the basis for this estimate 18 is that the City has proven unable or unwilling 19 to house these 40 homeless people; is that 20 correct? 21 A. Yes. 22 Q. You did not speak with a 23 representative of the City who stated that the 24 City was unable or unwilling to house the 40 Siebert & Assocs. Court Reporters, Inc. (773) 851-7779 cmsreporters@comcast.net 98 1 homeless people; is that correct? 2 A. Repeat the question, please? 3 Q. You didn't speak to a representative 4 of the City who stated that they were unwilling 5 or unable to house these 40 people? 6 MR. KAPLAN: I'd like to make an 7 objection to relevance here. 8 public assembly permit does not require exact 9 certitude as to -- this is a public assembly 10 purpose, whether it's a protest at an alleged 11 inability or to represent it in that manner, 12 this is not -- this is not as a document that 13 is specifically making allegations, it is 14 simply a notification of public assembly. 15 I mean, the HEARING OFFICER LOMBARDO: I am going 16 to overrule. 17 is relevant to the exact language that was put 18 in the notice, it's subject to the cross 19 examination. 20 BY THE WITNESS: 21 A. I think, you know, the question Go ahead. I did not speak directly to a City 22 representative, but I -- 23 BY MR. DORAN: 24 Q. Thank you. Siebert & Assocs. Court Reporters, Inc. (773) 851-7779 cmsreporters@comcast.net 99 1 2 3 4 5 6 7 8 A. -- must add that I have read the City's press releases. Q. But you didn't -- No one from the City told you that, that's your testimony, right? A. That the City would be unable to? I've seen with my own eyes. Q. I'm asking if the City told you that. That's the question. 9 A. No, the City did not say that. 10 Q. Thank you. Now, how many of these 40 11 people have you spoken to about attending the 12 public assembly for the purpose of erecting 13 tents at 4525 North Kenmore? 14 A. Approximately 30. 15 Q. Okay. And how many of those 30 told 16 you that they wanted to leave the Wilson and 17 Lawrence Avenue viaduct on April 14th, 2017? 18 19 20 21 22 23 24 A. About a dozen said they were considering it at that time. Q. So none said that they would definitely leave at that time; is that correct? A. Actually I believe about a half dozen said they would. Q. So give or take six? Mr. Thayer? Siebert & Assocs. Court Reporters, Inc. (773) 851-7779 cmsreporters@comcast.net 100 1 2 3 4 5 6 7 8 9 About six people told you that? A. They affirmatively said, and others were considering. Q. Now, can you tell me the names of the people you spoke to? A. Only a few of whom I know by name. Most go by first names. Q. Can you give me the names that you do know? 10 A. Joe, Maria. 11 Q. No, the full names of the ones you do 12 13 know. A. Joe and Maria Murray. I know first 14 names for a few others; others didn't prefer to 15 have their names mentioned. 16 Q. So you -- there's only two people out 17 of the 40 that you know their full name; is 18 that correct? 19 A. Yes. 20 Q. And how often have you spoken with 21 22 these people under the viaducts? A. I speak with them on a bi-weekly basis 23 at least, except for when I am out of town, 24 because the City holds -- cleans at that time Siebert & Assocs. Court Reporters, Inc. (773) 851-7779 cmsreporters@comcast.net 101 1 2 3 which had been -Q. So twice a week, is that what you're saying, two times a week? 4 A. No, every other week. 5 Q. Every other week. 6 A. At a minimum. 7 Q. At a minimum. 8 And that's -- And that's for a period beginning when? 9 A. Since approximately December of 2015. 10 Q. Have you kept any records of your 11 12 13 contacts with these -- these individuals? A. I have -MR. KAPLAN: Objection to relevance. 14 This is just -- I understand you're trying to 15 make an argument here about the communication, 16 but this isn't -- we're not representing 17 ourselves -- or pardon me, Mr. Thayer is not 18 representing himself as an organization, this 19 is a community coalition. 20 21 HEARING OFFICER LOMBARDO: Response to the objection? 22 MR. DORAN: Well, yeah, he has 23 represented himself. 24 testimony about how they meet about the He gave sensitive Siebert & Assocs. Court Reporters, Inc. (773) 851-7779 cmsreporters@comcast.net 102 1 homeless issue, about moving the homeless 2 issue -- 3 4 HEARING OFFICER LOMBARDO: How is that relevant? 5 MR. DORAN: -- and it's relevant 6 because of the constitutional issues that have 7 been raised. The -- at the beginning -- 8 MR. KAPLAN: 9 MR. DORAN: (Inaudible). If I may finish. At the 10 beginning of the presentation, there was a 11 constitutional issue brought up regarding the 12 8th Amendment, and to that end, the City needs 13 to show that it is taking appropriate measures 14 in dealing with the homeless issue, so, I 15 mean... 16 HEARING OFFICER LOMBARDO: Overruled. 17 I think we're allowing the record for 18 constitutional arguments at a later point, so 19 we're going to go ahead and allow it. 20 MR. KAPLAN: I was under the 21 impression, though, for the record, also that 22 those constitutional arguments were kept simply 23 for the opening -- for the opening statement, 24 that they weren't to be entertained during the Siebert & Assocs. Court Reporters, Inc. (773) 851-7779 cmsreporters@comcast.net 103 1 cross examination, direct examination. 2 HEARING OFFICER LOMBARDO: 3 allowing the record to be made for purposes of 4 preserving the record on appeal. 5 was in the opening arguments or some other time 6 is fine. 7 BY MR. DORAN: 8 Q. 9 10 11 Okay. I was Whether it And have you encouraged these people to move into shelters that are living under the viaducts? A. I have talked to them about it, as 12 have other people in our coalition, and they 13 have sometimes responded, as in the case of 14 Mr. and Mrs. Murray, that they do -- there are 15 no shelters that allow married couples without 16 dependents. 17 Q. So to ask my questions again, you have 18 encouraged these individuals to move into 19 shelters? 20 A. I have not encouraged them, I've 21 tried -- Those who asked me about same, I 22 understand that there is many reasons why 23 people do not enter shelters, whether due to 24 capacity or the conditions of the shelters Siebert & Assocs. Court Reporters, Inc. (773) 851-7779 cmsreporters@comcast.net 104 1 themselves or the restrictions placed upon 2 shelter -- upon shelter residents, and people 3 such as Mr. and Mrs. Murray have raised various 4 issues why the existing shelters are not 5 appropriate. 6 Q. Okay. 7 A. I have also fought to preserve what 8 shelters that we have got so that people will 9 have those options. 10 11 Q. Do you have -- Can I ask what your educational background is? 12 A. Yes. 13 Q. Would you tell me that, what it is, 14 please? 15 A. Yes. 16 Q. Okay. 17 A. I received a BA in 1985. 18 Q. And do you have any formal training or 19 20 21 22 I am a history major. education in working with the homeless? A. I do not have formal education concerning working with the homeless. Q. Now, isn't it true that the purpose of 23 the notification to the City is because you 24 want to erect tents at 4525 North Kenmore for Siebert & Assocs. Court Reporters, Inc. (773) 851-7779 cmsreporters@comcast.net 105 1 the homeless? 2 A. 3 4 Myself and -- and others who want to stay there, yes. Q. And the homeless will live in the 5 tents you want to erect under the notification, 6 correct? 7 A. Yes. 8 Q. And your notification of a public 9 assembly is from April 14th of 2017 to 10 November 22nd of 2017; is that correct? 11 A. That is correct, yes. 12 Q. And this period of time is a few days 13 over seven months? 14 A. That sounds like the math is correct. 15 Q. Okay. And you don't anticipate 16 ongoing interference with pedestrian traffic at 17 the 4525 North Kenmore location for seven 18 months, do you? 19 A. Not for the entire seven months, but 20 as I noted in my application, the movement of 21 tents and so forth would periodically involve 22 the temporary blockage of the sidewalk. 23 24 Q. So is it fair to say that your anticipation of this obstruction of the Siebert & Assocs. Court Reporters, Inc. (773) 851-7779 cmsreporters@comcast.net 106 1 sidewalk would only occur on April 14th when 2 the tents are being moved into the area? 3 A. No. 4 Q. Okay. 5 6 How much obstruction do you anticipate over that seven-month period? A. As people move in and out, there will 7 be obstructions of the entrances which -- for 8 those who are familiar with the site, there are 9 gates around the entire perimeter except for 10 some fairly narrow entrances, and on the 11 eviction of people on September 26th there 12 certainly was obstruction of those entrances 13 blocking the public way temporarily. 14 15 Q. Okay. So this will be an ongoing issue over the seven-month period? 16 A. It would be an occasional -- 17 Q. Is that correct to say? 18 A. Yes. 19 Q. Okay. 20 21 22 23 24 Now, you don't plan to erect a tent and live at 4525 North Kenmore? A. I do not personally plan on; I plan on visiting frequently, though. Q. Okay. And you do currently have a residence; is that correct? Siebert & Assocs. Court Reporters, Inc. (773) 851-7779 cmsreporters@comcast.net 107 1 A. Yes, which is why I don't need a tent. 2 Q. Okay. 3 Now, you submitted this notification pursuant to 10-8-334, right? 4 A. Yes. 5 Q. And you said you're very familiar with 6 this ordinance; is that correct? 7 A. Reasonably familiar, yeah. 8 Q. And you have submitted notifications 9 10 in the past as you've testified; is that correct? 11 A. Yes. 12 Q. And in your notification to the City, 13 in paragraph five, you state that you will 14 erect the tents on the public right-of-way of 15 the pedestrian mall, but not on the sidewalks; 16 is that right? 17 A. That is correct, yes. 18 Q. And you also state in paragraph five 19 that you anticipated those obstructions when 20 people congregate and move tents? 21 A. Yes. 22 Q. And that's the reason for the 23 obstruction? 24 A. Yes. Siebert & Assocs. Court Reporters, Inc. (773) 851-7779 cmsreporters@comcast.net 108 1 Q. When -- Would you agree that under 2 Section 10-8-334 of the Code that you would 3 only need to provide a notification of a public 4 assembly to the City if you anticipate an 5 obstruction or impediment to pedestrian 6 traffic? 7 A. Yes. And we anticipated such 8 impediment and, hence, we applied for the 9 permit. 10 Q. Now, you have not applied for a public 11 way use permit with the Chicago Department of 12 Transportation under Section 10-28-015 of the 13 Code for -- 14 A. 010 I believe. 15 Q. Well, 015 is actually the application 16 section. 17 A. Okay. 18 Q. So under 015 for the location of 4525 19 North Kenmore. 20 A. That's correct. 21 Q. And to the best of your knowledge, no 22 one associated with the public assembly named 23 the Tent City Alternative to the LSD Viaduct 24 has applied for a public way use permit? Siebert & Assocs. Court Reporters, Inc. (773) 851-7779 cmsreporters@comcast.net 109 1 A. Not to my knowledge. 2 Q. And as of today, you have no permit 3 for a public way use for 4525 North Kenmore? 4 A. Correct. 5 Q. You did not provide CDOT, therefore, 6 with a public use permit with your 7 notification? 8 A. No, I did not. 9 Q. So to the best of your knowledge, no 10 one from the City has evaluated the feasibility 11 of 40 people living on the public way at 12 4525 North Kenmore? 13 A. I would actually counter that. There 14 were plenty of City employees who personally 15 witnessed months of said activity on the mall, 16 which is why I thought it was important to 17 introduce that evidence as part of my opening, 18 that the City has had plenty of experience with 19 people being on that particular public way, and 20 our permit application was prompted by the fact 21 that the City in -- 22 Q. So -- 23 A. -- conjunction with a private 24 developer evicted people -- Siebert & Assocs. Court Reporters, Inc. (773) 851-7779 cmsreporters@comcast.net 110 1 Q. That's something you -- 2 A. -- not on one occasion, but three 3 4 occasions. Q. -- observed -- I don't mean to cut you 5 off, but that's something you observed, right, 6 at that location? 7 A. Yes. 8 Q. My question to you, though, was to the 9 best of your knowledge, has the City conducted 10 a feasibility of 40 people living at that 11 location, 4525 North Kenmore? 12 13 14 A. In terms of City Hall employees that are assigned to City Hall, no. Q. And you have not made any arrangements 15 for waste and garbage removal from 4525 North 16 Kenmore in the event that these 40 people move 17 in, have you? 18 A. 19 or Lawrence. 20 Q. 21 22 No more than have been made for Wilson So my question is that you have not made these arrangements, correct? A. I have not made those arrangements, 23 and to my knowledge those arrangements have not 24 been made for the Wilson and Lawrence Siebert & Assocs. Court Reporters, Inc. (773) 851-7779 cmsreporters@comcast.net 111 1 viaducts -- 2 Q. Right, but we're not talking about 3 that. We're talking about the Kenmore 4 location. 5 A. That's where -- 6 Q. And you have not made -- 7 A. -- the residents of Wilson and 8 Lawrence will be going. 9 Q. Excuse me. You have not made 10 arrangements for water accessibility for 11 approximately 45 people -- or 40 people living 12 at the 4525 North Kenmore location either, have 13 you? 14 15 16 17 A. No more than the City has made for Wilson and Lawrence viaducts. Q. My question is have you personally made arrangements for water accessibility? 18 A. No, I have not. 19 Q. And you currently do not have a public 20 way use permit for any other location in 21 Chicago; is that correct? 22 A. That is correct. 23 Q. And it's also correct that you've not 24 made any applications for a public way use Siebert & Assocs. Court Reporters, Inc. (773) 851-7779 cmsreporters@comcast.net 112 1 permit for any other locations in Chicago? 2 A. That is correct. 3 Q. Okay. Now, if you could take a look 4 at City's Exhibit C, which has been previously 5 marked, which is -- 6 A. I've got A and B here. 7 MS. GANDURSKI: C is the denial. 8 BY MR. DORAN: 9 Q. C is the denial letter. 10 A. One moment, please. 11 MR. DORAN: 12 too. 13 BY MR. DORAN: 14 Q. Okay. 15 A. This is -- 16 There are exhibits there, We do have a copy as provided. This is -- No, it's -- Okay. 17 Q. Has this been moved into evidence? 18 A. Okay. 19 I do have it in front of me now. 20 MR. DORAN: And if it's without 21 objection, I'd ask that this be moved into 22 evidence. 23 24 HEARING OFFICER LOMBARDO: It has already been moved. Siebert & Assocs. Court Reporters, Inc. (773) 851-7779 cmsreporters@comcast.net 113 1 2 MR. DORAN: It's been marked, I didn't -- 3 4 Okay. HEARING OFFICER LOMBARDO: It's marked and admitted. 5 MR. DORAN: 6 BY MR. DORAN: 7 Q. Okay, great. Now, this denial letter provided you 8 with an alternate public assembly; is that 9 correct? 10 A. Yes. 11 Q. And at the bottom of the letter it 12 states, and I'll quote, that you may engage in 13 a public assembly at the, quote, pedestrian 14 mall between North Kenmore Avenue at North 15 Broadway Avenue and North Kenmore Avenue street 16 where the pavement begins one-half block south 17 of West Wilson Avenue dash 4525 North Kenmore 18 Avenue. 19 Is that correct? 20 A. That is correct. 21 Q. And isn't it true that this is the 22 exact location requested in your notification? 23 A. As I noted in my opening, yes. 24 Q. And the denial letter allows you to Siebert & Assocs. Court Reporters, Inc. (773) 851-7779 cmsreporters@comcast.net 114 1 engage in a public assembly from Friday, 2 April 14th, 2017, at 10:00 a.m., to Wednesday, 3 November 22nd, 2017, at 12:00 p.m., for any 4 lawful purpose; is that correct? 5 6 7 A. As I noted in my opening, the time and place were precisely as I applied for, yes. Q. Okay. Just so you know, the opening 8 is not considered evidence, so I have to ask 9 you those questions to make sure it is part of 10 the record. 11 And this is the identical time 12 frame you requested in your notification; is 13 that right? 14 A. That is correct. 15 Q. Now, you are familiar with the 16 location at 4525 North Kenmore and you -- do 17 you know that this is sometimes referred to as 18 the Stewart School campus? 19 A. Yes. 20 Q. Okay. And you are aware that a vacant 21 school at this location is being converted into 22 condominiums; is that correct? 23 24 A. Well, it's actually adjacent to the area we are talking about. It is not the same Siebert & Assocs. Court Reporters, Inc. (773) 851-7779 cmsreporters@comcast.net 115 1 area. 2 Q. Well, it's part of the campus mall, 3 though. I know -- I know it's different than 4 the location you're asking for, but it's part 5 of the Stewart campus mall. 6 A. Well, no, Counsel. It is actually -- 7 one is a City of Chicago property and the other 8 was formerly Board of Education property. 9 The Board of Education property 10 was sold to a private developer, who in turn 11 illegally, in the terms of Ms. Gandurski, 12 erected barriers around the mall in addition to 13 the school. 14 Q. 15 Okay. Well, but you are aware that school is being converted into condominiums? 16 A. Yes, I am. 17 Q. Okay. And isn't it true that these 18 condominiums will add additional housing stock 19 to the 46th Ward? 20 A. I'm sure there are plenty of people 21 that are homeless that will be able to afford 22 them, yes. 23 24 Q. So but I'm asking will it add to the housing stock? Siebert & Assocs. Court Reporters, Inc. (773) 851-7779 cmsreporters@comcast.net 116 1 A. Not that most residents could access. 2 Q. Okay. And do you believe that the 3 construction project at 4525 North Kenmore is 4 good for the community? 5 A. No, I do not. 6 Q. And can you state why you don't 7 8 9 believe it's good for the community? A. Well, there were many charrettes that the City of Chicago paid, probably tens of 10 thousands of dollars, to gain community input, 11 and it was my opinion at those *sherets, as 12 well as many people who attended them, that 13 that building should be used for community 14 assembly purposes, as well as moderate income 15 housing. 16 The City spent lots of money 17 gathering that input not just from myself, but 18 also literally from hundreds of other Uptown 19 residents, but then the Board of Education, 20 presumably Alderman Cappleman, decided to 21 ignore that. 22 Q. 23 24 So is it fair to say that you are hostile towards this project? MR. KAPLAN: Objection. Siebert & Assocs. Court Reporters, Inc. (773) 851-7779 cmsreporters@comcast.net 117 1 HEARING OFFICER LOMBARDO: 2 BY MR. DORAN: 3 Q. You are unhappy with this project? 4 MR. KAPLAN: 5 HEARING OFFICER LOMBARDO: 6 7 8 9 10 Sustained. Objection. Rephrase it. MR. KAPLAN: This isn't a matter of emotionality. HEARING OFFICER LOMBARDO: He's asking for his opinion. 11 MR. DORAN: I'm asking about his -- 12 MR. KAPLAN: This isn't rel -- we 13 already established the particular reasons and 14 this is beyond the scope of the notification 15 which only references -- 16 THE WITNESS: The pedestrian mall. 17 MR. KAPLAN: Yes, and as a personal 18 opinion of Mr. Thayer in his free speech 19 expression as to City policies. 20 It is not -- for the record, it's 21 not relevant to the merits of the ordinance. 22 HEARING OFFICER LOMBARDO: I'm going 23 to overrule, it goes to state of mind. 24 go ahead and answer the question. Let's Siebert & Assocs. Court Reporters, Inc. (773) 851-7779 cmsreporters@comcast.net 118 1 2 BY THE WITNESS: A. I am indeed hostile to this project, 3 as are most people, but it was -- the permit 4 application was not for that property. 5 BY MR. DORAN: 6 Q. I understand, but -- 7 A. You can ask me how I feel about a 8 condominium downtown is relevant, because the 9 permit application was for the mall and not for 10 the school. 11 Q. But you do agree that the permit 12 application is right next to the school 13 which will be -- 14 A. It is adjacent. 15 Q. Adjacent. 16 17 MS. GANDURSKI: here? 18 19 Thank you. I'm sorry, excuse me. HEARING OFFICER LOMBARDO: What's that? 20 MS. GANDURSKI: 21 coming from the gallery. 22 Who is testifying There are voices HEARING OFFICER LOMBARDO: All right. 23 Please keep the comments to yourselves. 24 on the record and we can't have any We're Siebert & Assocs. Court Reporters, Inc. (773) 851-7779 cmsreporters@comcast.net 119 1 disruptions, please. 2 MR. DORAN: And just one last thing 3 here, we've asked that the affidavit of Mike 4 Simon be moved into evidence, I don't know if 5 it was. 6 HEARING OFFICER LOMBARDO: I think 7 that was Exhibit D, I believe that was also 8 marked and accepted into evidence as well. 9 MR. DORAN: 10 Okay. Thank you. HEARING OFFICER LOMBARDO: So City's 11 Exhibits A through D are marked City's Exhibits 12 A through D and admitted as evidence. 13 14 MR. DORAN: questions. 15 16 HEARING OFFICER LOMBARDO: MR. KAPLAN: 21 Yes, a little bit of redirect. 19 20 Any redirect, Counsel? 17 18 And I have no further REDIRECT EXAMINATION BY MR. KAPLAN: Q. Mr. Thayer, would you say that you are 22 an activist, that it's something that you do 23 beyond your employ? 24 A. Yes, I am an unpaid activist. Siebert & Assocs. Court Reporters, Inc. (773) 851-7779 cmsreporters@comcast.net 120 1 Q. Yes. And are you somebody that -- 2 Would you say in your experience that you are 3 somebody who is known to the City, that is of 4 awareness to City agents or employees? 5 A. 6 7 8 Frequently -MR. DORAN: BY THE WITNESS: A. 9 Frequently police officers, yes. HEARING OFFICER LOMBARDO: 10 I'll hear it. 11 BY THE WITNESS: 12 13 14 Objection. A. Yes. Overruled, Yes. BY MR. KAPLAN: Q. So -- And would you say that some of 15 these City employees are familiar with your 16 advocacy around homeless in Uptown? 17 A. Yes, quite -- 18 Q. And would you -- 19 MR. DORAN: I'm objecting. He's 20 asking a question about people who we don't 21 know who he is referring to and their state of 22 mind. 23 testify -- 24 It's -- I mean, if he wants them to MR. KAPLAN: I am trying to -- Siebert & Assocs. Court Reporters, Inc. (773) 851-7779 cmsreporters@comcast.net 121 1 HEARING OFFICER LOMBARDO: I've given 2 a lot of leeway here, let's go ahead and hear 3 the answer. 4 BY MR. KAPLAN: 5 Q. Yes. 6 A. Would you repeat the question, please? 7 Q. Yes. Have you had -- Are you somebody 8 who is known as an activist to some City 9 employees? 10 11 12 A. Yes. I know Mike Simon pretty well, as well as any number of other City employees. Q. Yes. And have you spoken to any City 13 employees about your concerns, about affordable 14 housing, about anything else of this nature, 15 that is, the condition of homelessness? 16 you spoken to them? 17 18 19 A. Have Frequently I have attended and spoken at public hearings. Q. And have any of these City employees 20 outside of this public assembly permit or any 21 other public forum reached out to you privately 22 with regard to your homeless advocacy? 23 A. No, they have not. 24 Q. Have they reached out to you to try to Siebert & Assocs. Court Reporters, Inc. (773) 851-7779 cmsreporters@comcast.net 122 1 come to some sort of negotiation around housing 2 stock in Uptown? 3 A. No, they have not. 4 Q. Have they reached out to you about 5 their concerns about homeless residents under 6 the viaducts? 7 A. No, they have not. 8 Q. Have they reached out to you with 9 regard to, you know, your concerns about 10 housing outside of the specific precedent legal 11 matter that is before us? 12 A. No, they have not. 13 Q. Mr. Thayer, is it your understanding 14 under your testimony pursuant to 10-8-334 that 15 a public assembly permit is for assembly? 16 A. Yes. 17 Q. And you have applied for these, as 18 established earlier, multiple times? 19 A. Yes. 20 Q. Have you ever been notified of any 21 specific restrictions to any -- any structures 22 or any other auxiliary structures that might be 23 used as part of that permit? 24 A. No. Siebert & Assocs. Court Reporters, Inc. (773) 851-7779 cmsreporters@comcast.net 123 1 2 Q. Have you ever used any auxiliary structures as part of your public assembly? 3 A. Yes. 4 Q. Have you ever used any say -- 5 MR. DORAN: I'm going to object at 6 this point. 7 scope of this particular application. 8 9 10 Again, we're going beyond the MR. KAPLAN: This is -- this is a matter of -- this is a matter of Mr. Thayer's understanding. 11 It's been alleged both within the 12 previous motion to deny as well as within the 13 cross to direct that Mr. Thayer knowingly and 14 deliberately flaunted 10-8 -- 10-28-010 to the 15 end of willfully trying to put up structures 16 and disregarding the procedure here. 17 18 It is relevant to the redirect that I'm trying to have on rebuttal. 19 HEARING OFFICER LOMBARDO: 20 overrule it. 21 questions. 22 BY MR. KAPLAN: 23 24 Q. I'll I'll give you a couple more And specifically when you -- You did receive a denial letter, correct? Siebert & Assocs. Court Reporters, Inc. (773) 851-7779 cmsreporters@comcast.net 124 1 A. Yes, indeed. 2 Q. And when you received that denial 3 letter, were you ever instructed as to how to 4 go about applying for a public way permit? 5 A. I wasn't instructed. It was mentioned 6 that I needed to apply under 10-28-010. 7 Reading that ordinance, it was clear to me that 8 such an application was not necessary, both in 9 terms of my reading of the ordinance as well as 10 my experience with the tent encampments both at 11 the Stewart School as well as the Wilson and 12 Lawrence viaducts. 13 Q. And was it your understanding from 14 this denial letter that even assuming arguendo 15 you were to -- 16 A. Arguendo? 17 Q. Even if you were to have applied for 18 this public way permit that it would be 19 permissible, that it would be permissible? 20 21 22 A. Yes. It should -- the public assembly permit -Q. Let me rephrase. It wasn't 23 specifically explained to you that it 24 wouldn't -- that it wouldn't be permitted? Siebert & Assocs. Court Reporters, Inc. (773) 851-7779 cmsreporters@comcast.net 125 1 A. Correct. 2 Q. And, lastly, it was brought out in 3 cross examination your familiarity with names 4 of specific homeless individuals on the 5 viaducts? 6 A. Yes. 7 Q. And opposing counsel asked you about 8 Mr. and Mrs. Murray, correct? 9 A. That's correct, yes. 10 Q. And you do know Mr. and Mrs. Murray on 11 the viaduct? 12 A. 13 14 15 16 Yeah, they are typically at the Lawrence viaduct. Q. Yes. And how did you become familiar with their last names? A. Through some demonstrations that we 17 had organized in defense of homeless people's 18 rights and against harassment by the Chicago 19 Police, and in part of that their names would 20 be listed on press releases as speakers at 21 various events. 22 23 24 Q. And did you have any communications with them via social media to that effect? A. Yes, I have -- yes, I communicate with Siebert & Assocs. Court Reporters, Inc. (773) 851-7779 cmsreporters@comcast.net 126 1 2 them frequently on social media. Q. Yes. Yes. And relative to this population, 3 how many homeless individuals from this 4 encampment are also on social media? 5 A. Not very many in my experience. 6 Q. Are they among those that are on 7 social media? 8 A. Joe and Maria are really the only ones 9 that I am familiar with at the -- actually 10 regularly living at the viaducts who are on 11 social media. 12 Q. Do they list their last name on there? 13 A. No. 14 Q. And is it frequent for homeless 15 residents to give out their last names to 16 individuals, be they advocates or passersby? 17 A. No. People try to fly underneath the 18 radar screen as much as possible, they don't 19 want to be harassed, and giving out their last 20 names presumably they feel makes them 21 vulnerable to such. 22 Q. And, lastly, have you in your time 23 nearby the homeless encampment ever seen any 24 water available there? Siebert & Assocs. Court Reporters, Inc. (773) 851-7779 cmsreporters@comcast.net 127 1 A. Yes. 2 Q. What is typically -- how is typically 3 4 this water contained or distributed? A. In bottles. It's been my experience 5 doing cop watch at the viaducts that kindly 6 residents drop by and open up their trunk and 7 pull out a case of water. 8 9 I was actually quite gratified to see how many people anonymously give food 10 stuffs as well as water and generally support 11 our homeless neighbors. 12 me after I started doing the cop watch back in 13 late 2015. 14 Q. It was a surprise to And so -- so have you heard of any 15 regular concerns or complaints around water 16 accessibility at these sites? 17 A. No, I have not. 18 MR. DORAN: 19 HEARING OFFICER LOMBARDO: 20 21 22 I'm good. Anything further? MR. KAPLAN: At this time we would like to move to close. 23 HEARING OFFICER LOMBARDO: 24 MR. KAPLAN: Okay. Or let me -- Yes, we Siebert & Assocs. Court Reporters, Inc. (773) 851-7779 cmsreporters@comcast.net 128 1 would like to -- 2 HEARING OFFICER LOMBARDO: 3 MR. KAPLAN: 4 Yes, we would like to rest. 5 6 You rest? MR. DORAN: Could we have like a five-minute break? 7 HEARING OFFICER LOMBARDO: 8 Any objection to a five minute? 9 MR. KAPLAN: Absolutely. No. 10 HEARING OFFICER LOMBARDO: 11 Let's come back here -- Let's make it 20 after 12 3:00. 13 All right. (A short recess was taken.) 14 HEARING OFFICER LOMBARDO: Back on the 15 record after a brief break, Number 17 PA 16 000002. 17 18 19 20 21 22 23 24 The petitioner has just rested and now for the City? MR. DORAN: Yes. We would call Alisa Rodriguez to testify. HEARING OFFICER LOMBARDO: Miss Rodriguez, please raise your right hand for me. (The witness was thereupon duly sworn.) Siebert & Assocs. Court Reporters, Inc. (773) 851-7779 cmsreporters@comcast.net 129 1 2 HEARING OFFICER LOMBARDO: name and spell your last name. 3 4 State your THE WITNESS: Alisa Rodriguez. R-O-D-R-I-G-U-E-Z. 5 ALISA RODRIGUEZ, 6 called as a witness herein, having been first 7 duly sworn, was examined upon oral 8 interrogatories as follows: 9 DIRECT EXAMINATION 10 BY MR. DORAN: 11 Q. 12 13 14 Ms. Rodriguez, can you tell us where you are currently employed? A. The City of Chicago Department of Family and Support Services. 15 Q. And what is your position there? 16 A. I am the deputy commissioner over the 17 18 19 homeless programs for the City. Q. And how long have you been with the Department of -- DFSS? 20 A. 28 years. 21 Q. And how long have you been in your 22 position as the deputy commissioner for 23 homeless programs? 24 A. Two years. Siebert & Assocs. Court Reporters, Inc. (773) 851-7779 cmsreporters@comcast.net 130 1 2 3 Q. And prior to that what was your title and responsibilities? A. I was the assistant director over the 4 homeless programs, and my main responsibility 5 was to manage the homeless system, which was 6 inclusive of shelter, prevention and outreach, 7 and I managed about 150 delegates. 8 9 10 11 Q. And just briefly, can you give the hearing officer a description of your educational background? A. So I have a Bachelor's degree from 12 North Park University. 13 graduate student, set to graduate this December 14 with a master's in non-profit management. 15 Q. Okay. I am currently a Marking what has been City's 16 Exhibit E, do you recognize that document -- 17 this document? 18 A. Yes, sir. 19 Q. And what is that, Ms. Rodriguez? 20 A. This is my resume. 21 Q. And who prepared that? 22 A. I did. 23 24 MR. DORAN: I'd ask that City's Exhibit E be moved into the record. Siebert & Assocs. Court Reporters, Inc. (773) 851-7779 cmsreporters@comcast.net 131 1 MR. KAPLAN: No objection. 2 HEARING OFFICER LOMBARDO: Without 3 objection, the document will be marked as 4 City's Exhibit E and moved into evidence. 5 BY MR. DORAN: 6 Q. And prior to your role as the 7 assistant director of homeless service, what 8 were your responsibilities with DFSS? 9 A. So before that I was the program 10 coordinator in the Head Start and Child Care 11 Services Division. 12 13 14 Q. And did you work with homeless children at that time? A. I did. I was charged with providing 15 Head Start child care services to homeless 16 children residing in shelters. 17 18 19 Q. Can you define for the ALJ what the term "homeless" is? A. So homeless means someone who is 20 living on the street, somewhere that is not 21 meant for human habitation, or in a shelter. 22 Q. Okay. And can you tell us what the 23 difference is between temporary homelessness 24 and chronic homelessness? Siebert & Assocs. Court Reporters, Inc. (773) 851-7779 cmsreporters@comcast.net 132 1 A. So temporary homeless are those that 2 have to use our shelter system because of lack 3 of income or because they've been evicted or 4 they are victims of domestic violence, so they 5 are in our shelters and our programs 6 temporarily, versus a chronic homeless person 7 has long episodes of chronic homelessness, in 8 addition to a disorder that disables them. 9 10 11 Q. Okay. And what is the socioeconomic make up of the homeless? A. So it runs the gamut. We serve 12 families, seniors, youth, we serve victims of 13 domestic violence, we serve single individuals, 14 so we really -- and we serve veterans, so it's 15 just about everybody. 16 Q. And, finally, can you tell us what the 17 difference is between sheltered homelessness 18 and unsheltered homelessness? 19 A. So a sheltered person would be someone 20 who is in one of our shelters and being 21 provided the supportive services and a safe 22 environment to be in. 23 24 The unsheltered are normally those that are on the streets, in parks, under Siebert & Assocs. Court Reporters, Inc. (773) 851-7779 cmsreporters@comcast.net 133 1 bridges, or in places not meant for human 2 habitation. 3 Q. 4 Okay. Do you count the number of homeless in Chicago? 5 A. Yes, sir. 6 Q. And is the City, like other agencies 7 and municipalities, mandated to count the 8 number of homeless? 9 10 11 12 13 14 15 16 17 A. Yes. We are mandated by HUD to count the homeless every other year. Q. And how often does Chicago count the homeless? A. Chicago has made a commitment to count the homeless every year. Q. Okay. And how do you count the number of homeless in Chicago? A. So DFSS takes the lead for the count; 18 however, we work with a cohort of non-profit 19 agencies that are located throughout the City, 20 in addition to advocacy groups, the local 21 continuum of care providers, so in total we 22 have about 400 volunteers that help us ensure 23 that we have canvassed the entire City of 24 Chicago and not missed any encampments. Siebert & Assocs. Court Reporters, Inc. (773) 851-7779 cmsreporters@comcast.net 134 1 Q. Okay. I am showing you what I have 2 previously marked as City's Exhibit F for 3 identification. 4 opposing counsel. 5 6 7 8 I am tendering that to Can you tell -- Can you tell the hearing officer what this is? A. This is our 2016 Homeless Count and Survey Report. 9 Q. Okay. And who prepared this document? 10 A. This document is prepared by DFSS 11 policy team members in addition to the UIC 12 Vorhees Research Center. 13 Q. And when was this prepared? 14 A. This was prepared in July of 2016. 15 Q. And what exactly is this document? 16 A. This document demonstrates who we 17 found on the street, who is in shelters, the 18 specific demographics of the persons that we 19 surveyed. 20 It will also show trends within 21 wards and trends within communities of where 22 encampments are moving throughout the city. 23 24 Q. And can you more fully explain who the UIC Vorhees Research Center is? Siebert & Assocs. Court Reporters, Inc. (773) 851-7779 cmsreporters@comcast.net 135 1 A. They are our research partner. 2 HUD methodology requires that we have a 3 research component attached to our count. 4 5 6 Q. The And what is their role in the creation of this document? A. They are the experts on the data. 7 They validate our data, they validate our 8 methodology, and then they essentially put 9 together a report that shows the outcome of the 10 11 count. Q. And is this something you rely on in 12 your work as the deputy commissioner for 13 homeless programs? 14 A. Yes. 15 Q. Okay. Based on the PIT report, 16 point-in-time report, how many homeless were 17 there in Chicago on January 26, 2016? 18 A. 5,885. 19 Q. And how many of these homeless were 20 unsheltered, in other words, living on the 21 street? 22 A. We counted 1,243. 23 Q. Has this count been done for 2017? 24 A. Yes, it has. Siebert & Assocs. Court Reporters, Inc. (773) 851-7779 cmsreporters@comcast.net 136 1 Q. And do you have the data yet? 2 A. We do not. 3 Q. I am marking for you what -- I'm 4 sorry, we ask that the PIT report be moved into 5 evidence. 6 MR. KAPLAN: 7 HEARING OFFICER LOMBARDO: 8 objection, it will be marked City's Exhibit F 9 and admitted into evidence. 10 BY MR. DORAN: 11 Q. No objection. No I am showing you what has previously 12 been marked City's Exhibit G for 13 identification. 14 Ms. Rodriguez? Can you -- What is this, 15 A. This is Chicago's Plan 2.0. 16 Q. And when was this prepared? 17 A. This was prepared in June of 2012. 18 Q. And who prepared this document? 19 A. This document was prepared by 20 approximately 500 stakeholders that include 21 advocacy members, non-profits, government 22 workers, in addition to formerly homeless 23 individuals and homeless individuals. 24 Q. And can you tell the hearing officer Siebert & Assocs. Court Reporters, Inc. (773) 851-7779 cmsreporters@comcast.net 137 1 what this document is and what this document 2 does? 3 A. This document lays out the foundation 4 how Chicago will implement and move forward the 5 strategies needed to ensure that everyone in 6 Chicago has a home or access to a home. 7 Q. And is it sort of a mission statement? 8 A. It is. It has seven strategies, 9 priorities that we work towards, with about 85 10 action items, and it's a document that although 11 prepared in June is a live and living document. 12 We provide updates to it and we 13 bring varied stakeholders to the table to track 14 our progress on the plan. 15 16 MR. DORAN: Okay. I would ask that City's Exhibit G be moved into evidence. 17 MR. KAPLAN: No objection. 18 HEARING OFFICER LOMBARDO: 19 objection, City Exhibit G will be marked and 20 admitted into evidence. 21 BY MR. DORAN: 22 Q. No And, Ms. Rodriguez, are you familiar 23 with an approach to homelessness described as 24 Housing First? Siebert & Assocs. Court Reporters, Inc. (773) 851-7779 cmsreporters@comcast.net 138 1 A. Yes. 2 Q. And is that encompassed in the Chicago 3 Plan 2.0? 4 A. Yes, it is. 5 Q. Can you describe this approach for the 6 7 hearing officer? A. Housing First is an approach that 8 basically says there is no wrong door. 9 does, it provides immediate access to housing 10 by eliminating all of the barriers that in the 11 past have pretty much prohibited someone to go 12 into housing, so we don't look at your mental 13 health status, your substance abuse issue. 14 What it We house you first and then we 15 wrap around the services to ensure that you are 16 stable. 17 Q. 18 And does Housing First also encompass supportive services? 19 A. Absolutely. 20 Q. And can you describe those? 21 A. So the supportive services might be 22 things as ensuring that if you have a substance 23 abuse issue, a mental health issue, that you 24 are connected with the right supportive Siebert & Assocs. Court Reporters, Inc. (773) 851-7779 cmsreporters@comcast.net 139 1 delegate agency to help you gain stability. 2 It also ensures that you remain 3 housed, so it's that care piece that is 4 essential, aside from the housing, so we know 5 that the housing and the care piece kind of go 6 together, so this care piece is what really 7 promotes housing stability. 8 9 10 11 Q. And does -- can you tell the court how Housing First works in establishing relationships with the homeless? A. Absolutely. I think one of the most 12 important things when doing this type of work 13 is to build a relationship with the 14 participant, so it's really engaging them where 15 they are and providing the services to where 16 they are, so this allows us an opportunity to 17 A, build that foundation of trust so that they 18 do accept our services, and once they accept 19 our services, that they continue to thrive in 20 that permanent housing unit by allowing us to 21 continuing to provide support services for 22 them. 23 24 Q. And does the City of Chicago utilize this approach? Siebert & Assocs. Court Reporters, Inc. (773) 851-7779 cmsreporters@comcast.net 140 1 A. Yes. 2 Q. And what benefits are derived from 3 4 utilizing this approach? A. I think the clear benefit is that the 5 participants are taken from street to home 6 immediately, if -- if that's available, and 7 it's really important because most of the folks 8 that we work on the street are chronically 9 homeless and have a disabling condition, so 10 when they accept the Housing First model, then 11 we feel much better that they are now in a safe 12 place and will bring services to them. 13 Q. Okay. Now, you work in the Department 14 of Family and Support Services. 15 with other agencies? 16 A. Absolutely. Does DFSS work We work with a cohort of 17 about 150 delegate agencies that provide a 18 series of services, from shelter to prevention 19 to outreach, and also that care piece. 20 We have delegate agencies that -- 21 whose sole purpose is just to provide case 22 management. 23 Q. 24 And are these formal relationships with outside agencies or informal Siebert & Assocs. Court Reporters, Inc. (773) 851-7779 cmsreporters@comcast.net 141 1 relationships? 2 A. They are both. 3 Q. Okay. 4 A. We have -- Many of our providers are Can you -- 5 under contract, so we monitor their 6 performance, we monitor to ensure that they are 7 contractually meeting their obligations, but we 8 have a lot of informal relationships with 9 community partners that are not necessarily 10 funded by the City, but have a vested interest 11 in the homeless. 12 Q. 13 HOP team is? 14 A. 15 16 17 18 Okay. And can you tell the ALJ what a The HOP team is our Homeless Outreach and Prevention team. Q. And what are the HOP team's responsibilities? A. So the main responsibility of the HOP 19 team are to canvass the entire city of Chicago 20 and track encampments as they are either 21 ramping up or ramping down, in addition to 22 ensuring that once we identify an encampment or 23 a hot spot that we quickly bring services and 24 outreach engagement services to those Siebert & Assocs. Court Reporters, Inc. (773) 851-7779 cmsreporters@comcast.net 142 1 communities. 2 Q. Okay. Now, you've testified that on 3 any given -- that you have counted 1,243 4 unsheltered homeless in Chicago. 5 6 7 8 9 Approximately how many shelter beds would be available on a typical night? A. So I would say approximately 4,000 beds are available. Q. And can you more fully explain the 10 number 4,000 and how it relates to occupancy 11 and non-occupancy? 12 A. So of the 4,000 beds we have in our 13 system, 3,000 are funded by DFSS, so we monitor 14 and track the occupancy of those beds daily, so 15 we know the movement of the in-flow. 16 The other thousand are, you know, 17 community partners that we work with that 18 routinely do have availability, and we leverage 19 that support to make sure that anyone who is 20 seeking shelter has access to a bed. 21 22 23 24 Q. Okay. And then approximately how many empty beds would there be on a typical night? A. On a typical night I think it would be about 120, and that's going to fluctuate Siebert & Assocs. Court Reporters, Inc. (773) 851-7779 cmsreporters@comcast.net 143 1 2 3 depending on in-flow. Q. Okay. Now, will the unsheltered homeless readily accept offered shelter? 4 A. No. 5 Q. And can you describe for ALJ Lombardo 6 7 why that is the case? A. That is the case because I think many 8 of them have become acclimated to living on the 9 street, they've built communities where they 10 live. 11 In addition to that, many of them 12 fear going into shelters because they fear 13 theft, they fear being attacked, a lot of them 14 fear, you know, the fact that you might have 15 bed bugs or just fear large crowds. 16 17 Q. And can you require an individual to accept entry into a shelter? 18 A. No. 19 Q. Can you require an individual to seek 20 treatment for any drug issues? 21 A. No. 22 Q. And, finally, can you require an 23 24 individual to seek mental health treatment? A. No. Siebert & Assocs. Court Reporters, Inc. (773) 851-7779 cmsreporters@comcast.net 144 1 Q. Is there a common place where current 2 data is placed for the City and other agencies 3 to keep track of how many unsheltered homeless 4 that are on any given day? 5 A. Yes, there is. 6 Q. And can you describe what that system 7 8 9 is and how it works? A. So it is the HMIS system, the Homeless Management Information System. The system is 10 used by every single provider in the city of 11 Chicago that provides a service to the 12 homeless, so it collects universal data and 13 elements that are really critical in ensuring 14 that we have the data we need that will inform 15 how we use our funding and how we develop our 16 programming for the participants that are 17 enrolled in HMIS. 18 Q. Turning your attention to specifically 19 the Wilson and Lawrence viaduct homeless 20 population, are you familiar with this 21 location? 22 A. Yes. 23 Q. And in the context of homelessness, 24 how are you familiar with these two locations? Siebert & Assocs. Court Reporters, Inc. (773) 851-7779 cmsreporters@comcast.net 145 1 2 3 A. There are homeless participants residing under those viaducts. Q. Can you describe what steps the City 4 took to address the particular -- the 5 particular population of homeless at these two 6 locations? 7 A. So the City embarked on what we called 8 the Chronic Homeless Pilot Initiative, which 9 was created under the premise of the mayor's 10 homeless interagency task force. 11 That is a task force that is 12 comprised of City departments that in one way 13 or another touch the homeless, so we launched 14 this in early 2016. 15 and then we assessed and engaged participants. We canvassed those areas 16 Q. And was this a pilot program? 17 A. This was a pilot program that was 18 moved forward under the premise of the 19 successes that we had with our Ending Veteran 20 Homelessness Initiative, where we in effect 21 housed over 300 -- 3,000, sorry, homeless 22 veterans. 23 24 Q. And can you tell the court why the populations under the viaducts were chosen for Siebert & Assocs. Court Reporters, Inc. (773) 851-7779 cmsreporters@comcast.net 146 1 2 the Chronic Homelessness Pilot program? A. So this area was chosen particularly 3 because the HOP team, Homeless Outreach and 4 Prevention team, had indicated that that was 5 the highest density encampment in the city at 6 that time, so of all of the encampments that we 7 had in the city, that was the one with the 8 largest number, so we thought it would be best 9 to go into the areas where we had the highest 10 11 number of participants. Q. And can you tell us how many people 12 were living in the viaducts at the time of this 13 program? 14 A. When we launched the Chronic Pilot, we 15 spent some time scanning the area, so we would 16 have a good sense of how many people were 17 there, so that when we went in to do 18 assessments, we had the right number of people 19 with us to make sure that they went pretty 20 smooth and seamless. 21 enrolled into the Chronic Pilot 75 22 participants. 23 Q. And that was out of how many? 24 A. Well, it was the total of 75 We identified and Siebert & Assocs. Court Reporters, Inc. (773) 851-7779 cmsreporters@comcast.net 147 1 2 3 4 5 participated in the -Q. And were there more homeless that chose not to enroll? A. There were more that chose not to enroll, and we respected their decision. 6 Q. Okay. 7 A. Yes, yes. 8 Q. And can you tell us what work was done 9 10 And was that number 90? as part of this Pilot program? A. So in essence what we did is we 11 conducted an assessment to gather information 12 about their homeless status, how long had they 13 been homeless, what got them to be homeless, 14 what other debilitating factors they had that 15 had been prohibiting -- that prohibit them from 16 going into either a shelter or permanent 17 housing. 18 Then what we did was we developed 19 a by-name list so that we would have a by-name 20 list that we would then use with our System 21 Integration team to follow every individual 22 through the trajectory from shelter -- I mean, 23 from street to home. 24 Q. And you mention a system integration Siebert & Assocs. Court Reporters, Inc. (773) 851-7779 cmsreporters@comcast.net 148 1 team. 2 coordinator and a system integration team is? 3 Can you tell us what a system A. So that is the process that we have 4 developed in Chicago, and they are the team 5 that in essence follow every single 6 participant, so we engage them and assess them. 7 We match them to the right housing option that 8 fits their specific needs at that time, and 9 then the integration team, the System 10 Integration team ensures that those 11 participants are then going to their housing 12 appointments, filling out their applications, 13 you know, getting a medical hold, so we are 14 providing services and really in essence kind 15 of navigating them through the housing process 16 until they get housed. 17 Q. Okay. I previously had marked City's 18 Exhibits -- Do that again. 19 City's Exhibit H and I. 20 you. 21 22 23 24 Previously marked Let me hand those to Looking at Exhibit H, can you tell us what that is? A. This is the Chronic Homelessness Initiative Assessment. Siebert & Assocs. Court Reporters, Inc. (773) 851-7779 cmsreporters@comcast.net 149 1 Q. And what is the use of this form? 2 A. This assessment was used to capture 3 very specific data on every participant that 4 was in the Pilot from where they used to live, 5 emergency contact information, debilitating 6 conditions in terms of their physical and 7 mental health, income information, the length 8 of homelessness, so all of those data points 9 that really help us determine what the next 10 step should be for this individual. 11 Q. And who prepared this document? 12 A. This document was prepared in 13 collaboration with DFSS policy team, the 14 Chicago Continuum of Care, various 15 stakeholders, addition to the Corporation for 16 Supportive Housing. 17 18 19 Q. Okay. And is this something you use in your job as deputy commissioner? A. Yes. 20 MR. DORAN: 21 moved into evidence. I'd ask that Exhibit H be 22 MR. KAPLAN: 23 HEARING OFFICER LOMBARDO: 24 No objection. No objection, Exhibit H will be marked City's Siebert & Assocs. Court Reporters, Inc. (773) 851-7779 cmsreporters@comcast.net 150 1 Exhibit H and admitted as evidence. 2 BY MR. DORAN: 3 Q. 4 what this is? 5 A. 6 7 8 9 Turning to Exhibit I, can you tell us This is the vulnerability index screening tool. Q. And what is the purpose of this document? A. The purpose of this document is to 10 gather information on those who are chronically 11 homeless that have a debilitating condition, 12 whether it be kidney disease, heart disease, 13 diabetes, and these factors help us determine 14 how vulnerable the participant is. 15 Q. And who prepared this document? 16 A. Same group as before, DFSS policy 17 team, Chicago Continuum of Care, Corporation 18 for Supportive Housing, in addition to various 19 stakeholders. 20 Q. 21 22 23 24 And this is something that you use as an assessment tool today? A. Yes. MR. DORAN: Okay. I'd ask that this City's Exhibit I be moved into evidence. Siebert & Assocs. Court Reporters, Inc. (773) 851-7779 cmsreporters@comcast.net 151 1 2 HEARING OFFICER LOMBARDO: Counsel, objection? 3 MR. KAPLAN: No objection. 4 HEARING OFFICER LOMBARDO: No 5 objection, Exhibit I is be marked City's 6 Exhibit I and admitted as evidence. 7 BY MR. DORAN: 8 Q. Now, as part of the Pilot program, the 9 Chronic Homelessness Pilot program, did the 10 City develop something called the One List? 11 A. We did. 12 Q. And describe what the One List is. 13 A. The One List is a by-name list that 14 helped us determine the -- the client, get 15 their vital information, and then use this one 16 list to move them through the trajectory from 17 street to home. 18 19 Q. And what is the benefit of using a one list? 20 A. You know, it's that connection with 21 the client. 22 know who they are, and now they've accepted my 23 services, but it also is accountability, 24 because if I have you on my list, then yes, I It's that I know their name, I Siebert & Assocs. Court Reporters, Inc. (773) 851-7779 cmsreporters@comcast.net 152 1 need to move you through the trajectory of 2 housing. 3 Q. Now, of the 75 people that 4 participated in the Chronic Homelessness Pilot 5 program, can you give us an update -- 6 A. Yes, absolutely. 7 Q. -- on the success? 8 A. We've been very successful. 9 10 Of the 75, 73 are no longer living under the viaducts and are in permanent housing. 11 Q. And what is the housing status of the 12 participants? 13 A. So they are either in a permanent 14 housing setting, which is -- could be either 15 market rent, permanent supportive housing, or 16 they are in bridge housing, which is that 17 temporary housing that we use when, for 18 example, we've identified you as an eligible 19 participant for a permanent supportive housing 20 unit that isn't quite ready, but you're willing 21 to come off the street, using that Housing 22 First model, we will put you in a temporary 23 unit until your unit becomes available, so we 24 use a combination of those because we Siebert & Assocs. Court Reporters, Inc. (773) 851-7779 cmsreporters@comcast.net 153 1 definitely don't want to keep people on the 2 street that are ready to go into housing. 3 Q. And is there a plan to apply this 4 Pilot program, the Chronic Homelessness Pilot 5 Program, city-wide? 6 A. Yes. 7 Q. And how would this program be applied 8 9 city-wide? A. So we're going to take the lessons 10 learned through the Ending Veteran Homelessness 11 Initiative, as well as the Chronic Homeless 12 Pilot, and initiate what we're calling 13 coordinated entry for the entire system, so we 14 will have an entry system that will be 15 city-wide and available for all of those 16 entering into the homeless system. 17 18 Q. Okay. What's previously been marked Exhibit J I'm handing to you. 19 Let me -- Can you tell us what this 20 document is? 21 A. Yes. So this document basically lays 22 out our process for coordinated entry, which is 23 a centralized and streamlined system for 24 accessing housing and support services to Siebert & Assocs. Court Reporters, Inc. (773) 851-7779 cmsreporters@comcast.net 154 1 essentially end homelessness, and what this 2 does, it allows the community to work in 3 collaboration to making sure that we have entry 4 points at all parts of the city and that we 5 have a housing option for all of those that are 6 eligible, but before that, it will make sure 7 that as the City, we are prioritizing and 8 housing those that are chronically homeless and 9 vulnerable first. 10 Q. And is this document a draft? 11 A. This is recently -- This is a draft, 12 so we hope to have a final soon. 13 Q. 14 be a final -- 15 A. I think the final -- 16 Q. -- document? 17 A. -- will be ready in a couple weeks. 18 Q. And will there be much editing to 19 20 21 22 23 24 And how soon do you think there will what's before you now? A. I highly doubt there will be much editing. Q. Okay. And is this a document that you use in your job as deputy commissioner? A. Yes. Siebert & Assocs. Court Reporters, Inc. (773) 851-7779 cmsreporters@comcast.net 155 1 2 MR. DORAN: I'd ask that this be moved into evidence. 3 HEARING OFFICER LOMBARDO: 4 MR. KAPLAN: 5 HEARING OFFICER LOMBARDO: Objections? No objection. No 6 objection, Exhibit J will be marked City's 7 Exhibit J and admitted as evidence. 8 BY MR. DORAN: 9 Q. Is there currently a coordinated 10 outreach at the Wilson and Lawrence Avenue 11 viaducts? 12 A. Yes. 13 Q. So that's as of today? 14 A. Well, we've had a coordinated process 15 16 for quite some time in that community. Q. Okay. And can you describe what that 17 coordinated outreach that's been occurring for 18 some time is? 19 A. Absolutely. So currently right now we 20 have about four agencies that are assigned that 21 area, we have Salvation Army, we have 22 Thresholds, and we have our own HOP team, that 23 routinely canvass that community and those 24 viaducts offering shelters, services and, you Siebert & Assocs. Court Reporters, Inc. (773) 851-7779 cmsreporters@comcast.net 156 1 know, any type of service the homeless want, 2 but, you know, we -- we intend to stay in that 3 community. 4 Q. Okay. And are you -- Is DFSS part of 5 the street cleaning that occurs at these two 6 locations? 7 A. We do participate. 8 Q. And can you tell us what the role of 9 10 DFSS is and how that street cleaning occurs? A. The role of DFSS is to engage the 11 clients; we go there before, we ask them to 12 make sure that they safeguard all of their 13 personal possessions so that when the City does 14 come out to clean, none of those are at risk. 15 We're there to provide support. 16 We engage and outreach for the homeless, we are 17 not there to enforce any of the cleaning 18 policies. 19 Our role is to make sure that 20 we're there and that we can educate the clients 21 as to what they need to do with especially all 22 of their personal, you know, belongings. 23 24 Q. And does the Salvation Army -- Is the Salvation Army part of the outreach at that Siebert & Assocs. Court Reporters, Inc. (773) 851-7779 cmsreporters@comcast.net 157 1 2 location? A. They are. They frequent that 3 community providing services, food, to the 4 homeless, in addition to the same activities 5 the others do, which is shelter and other 6 auxiliary services. 7 Q. And what about the McDermott Center 8 Haymarket Outreach teams, do they service this 9 area? 10 A. They do. They actually go out, they 11 provide mental health, substance abuse 12 programming and anyone that is ready to go into 13 a treatment center, McDermott will facilitate 14 that for them. 15 16 Q. And what about the Threshold Mobile Assessment Unit, does that service this area? 17 A. It does. 18 Q. The viaducts. 19 A. Not as frequently. We use Thresholds 20 more because they are the skilled delegate that 21 provides really robust mental health services, 22 so when we encounter participants that might 23 have a mental health issue, we bring in 24 Thresholds because they have the skill set to Siebert & Assocs. Court Reporters, Inc. (773) 851-7779 cmsreporters@comcast.net 158 1 2 3 work with that population. Q. Okay. Now, are you familiar with homeless encampments known as tent cities? 4 A. Yes. 5 Q. And can you tell the hearing officer 6 what is the adverse issues with regard to 7 encampment of the homeless? 8 9 A. So I think primarily their sanitation issues, there is no running water, there is 10 lack of appropriate toilet facilities, in 11 addition to just the enormous amount of debris 12 that is collected by the participants. 13 It just really heightens the 14 tension even amongst those that are in that 15 community, it heightens the tension within 16 community members at-large, you know. 17 a lot of them, you know, want to stay in that 18 encampment because they've kind of built a 19 community there. 20 Q. I think So it's harder to remove someone from 21 an encampment into a shelter once they become a 22 member of that group? 23 24 A. Yeah, it's really hard, because once they become a member of that community, can you Siebert & Assocs. Court Reporters, Inc. (773) 851-7779 cmsreporters@comcast.net 159 1 imagine, I mean, although you're living in a 2 tent, you're still my neighbor, right? 3 Q. Right. 4 A. They have bonded together. What they 5 do many times is like I have to go to work, but 6 you're going to be here, you watch my stuff. 7 So they're building communities, 8 so, you know, yeah, when you go in to try to 9 engage and provide services, many times they'll 10 do the type of things that really prohibit a 11 participant to accept services right away. 12 13 Q. Okay. Does DFSS offer shelter space to anyone willing to accept? 14 A. Yes. 15 Q. And based on your 28 years of 16 experience working with DFSS, has anyone who 17 has ever sought shelter been denied? 18 A. No, sir. 19 Q. And can you explain to the hearing 20 21 officer why that is the case? A. I think it's important to note that 22 those that have been chronically homeless on 23 the street may always say no to you, but when 24 they are ready to accept shelter, I think it's Siebert & Assocs. Court Reporters, Inc. (773) 851-7779 cmsreporters@comcast.net 160 1 our responsibility to make sure that they have 2 access to shelter, so we will go above and 3 beyond to expand our beds, we will ask our 4 providers to provide extra cots if necessary, 5 because when someone is ready to leave the 6 streets, then yes, it is my responsibility and 7 the responsibility of my staff to make sure 8 that there is a shelter bed accessible for 9 them. 10 11 12 Q. What future action does DFSS plan to take regarding the homeless problem in Chicago? A. I think what we're going to do -- and 13 this is very evident with the work that we have 14 done in the last few years -- is take lessons 15 learned from not only our EVHI initiative, but 16 to take things as robust coordinated entry and 17 apply it system-wide. 18 I think we've done a really good 19 job staying true to Plan 2.0 and the strategies 20 within that plan, and we are moving forward to 21 make sure that at a minimum, we build a robust 22 shelter system that has access points and has 23 availability to all those that are willing to 24 accept services. Siebert & Assocs. Court Reporters, Inc. (773) 851-7779 cmsreporters@comcast.net 161 1 Q. And is there any particular initiative 2 or action that will be taken recent -- in the 3 near future? 4 A. So, yes, we will launch coordinated 5 entry and we will start developing a binding 6 list and we will use things as our System 7 Integration team. 8 As we start to develop this list, 9 we will then move people through the trajectory 10 of street to home. 11 Q. And is this known as a blitz? 12 A. Excuse me? 13 Q. Is there going to be a blitz this 14 summer? 15 A. We will be conducting what we're 16 calling the individual blitz come June where we 17 will have surveyors going through all of our 18 hot spots and when they're in those hot spots 19 getting some very detailed information on all 20 of the participants, putting them on a One List 21 and building our One List, yeah. 22 23 24 Q. Okay. And this will apply to the single population, including single couples? A. Absolutely. Siebert & Assocs. Court Reporters, Inc. (773) 851-7779 cmsreporters@comcast.net 162 1 MR. DORAN: I have nothing further. 2 HEARING OFFICER LOMBARDO: 3 you are going to have an opportunity to cross. 4 MR. KAPLAN: 5 HEARING OFFICER LOMBARDO: 6 Counsel, Yes. This is rebuttal testimony. 7 MR. KAPLAN: Yes. 8 HEARING OFFICER LOMBARDO: 9 you wide, wide latitude to develop your record 10 obviously for appeal. 11 MR. KAPLAN: 12 HEARING OFFICER LOMBARDO: 13 14 I'll allow Yes. You'll have the opportunity to cross. MR. KAPLAN: Yes. Your Honor, I 15 would -- I would note that in terms of the 16 testimony that was provided, again, we do 17 recognize that you provided wide latitude, but 18 we were not allowed the same scope of 19 questioning when we were conducting our direct 20 on Mr. Thayer. 21 the record. 22 We would like to note that for HEARING OFFICER LOMBARDO: 23 it for the record. 24 apologize. I will note If you feel slighted, I do You can amply make your record for Siebert & Assocs. Court Reporters, Inc. (773) 851-7779 cmsreporters@comcast.net 163 1 your constitutional arguments. 2 MR. KAPLAN: 3 HEARING OFFICER LOMBARDO: 4 7 Thank you. You are welcome. 5 6 Yes. CROSS EXAMINATION BY MR. KAPLAN: Q. I did want to go through a few things. 8 First of all, I wanted to ask about your 9 methodology for homelessness. 10 You mentioned that it's a -- You 11 say that it's basically a count on one day in a 12 given area, that you go in there and you count 13 all individuals who are present at that 14 particular site? 15 MR. DORAN: I just -- I would object 16 to the -- to the question because it's more 17 than just a single place. 18 MR. KAPLAN: I'm just trying to 19 clarify the methodology. 20 BY THE WITNESS: 21 A. So to start off I'll say that our 22 method is HUD approved, so the federal 23 government has approved our methodology. 24 We actually canvass the entire Siebert & Assocs. Court Reporters, Inc. (773) 851-7779 cmsreporters@comcast.net 164 1 City of Chicago using census tracks. We 2 obviously cannot do that unless we have a nice, 3 robust amount of volunteers, so like I said, we 4 have over four to 500 volunteers that are 5 deployed through the entire city of Chicago 6 canvassing areas based on census tracks so that 7 there is very limited opportunity for 8 duplication, so although we do it in one 9 night -- and that is what HUD requires, that we 10 do it in one night, because what we want to 11 have is that snapshot of what homelessness 12 looks like in any municipality on that given 13 night. 14 BY MR. KAPLAN: 15 Q. Are you familiar with any other survey 16 methods used by Chicago-based homeless advocacy 17 groups to count the homeless? 18 A. There are various methods used with 19 various methodologies, I have to tell you that 20 although they are out there, we will continue 21 to use the methodology that has been approved 22 by HUD. 23 Q. 24 Okay. And are you familiar with the methodology specifically reported by the Siebert & Assocs. Court Reporters, Inc. (773) 851-7779 cmsreporters@comcast.net 165 1 Chicago Coalition for the Homeless? 2 A. Absolutely. 3 Q. And what is the distinction between 4 5 that methodology and the one that you use? A. So our methodology only counts those 6 that are in shelter or on the street on that 7 given night. 8 9 The methodology used by the Coalition expands the definition of 10 homelessness and will use people who are 11 doubled up. 12 Q. And it's your position that the 13 doubled-up definition is not consistent with 14 the definition of homelessness that your agency 15 uses? 16 A. It is not a definition that the City 17 of Chicago or any of our stakeholders that 18 provide homeless services to the homeless use. 19 Q. And it is true, I've had an 20 opportunity to briefly survey some of the 21 exhibits you had, that you counted 1500 22 approximately homeless students, people under 23 the age of 18, in Chicago? 24 A. That were in shelter. Siebert & Assocs. Court Reporters, Inc. (773) 851-7779 cmsreporters@comcast.net 166 1 Q. Yes. I'd like to introduce into the 2 record Exhibit A, I'll tender it here. 3 Exhibit A is from the Chicago Coalition for the 4 Homeless, as far as numbers that were derived 5 to -- with respect to specific subsets of the 6 homeless population, homeless students, and -- 7 MR. DORAN: Right. This has already 8 been previously marked and denied, so you may 9 want to -- 10 MR. KAPLAN: This was -- this was 11 actually -- We didn't try to enter these 12 particular exhibits in. 13 14 That was the demon -- those are demonstratives. This is not one of those. 15 HEARING OFFICER LOMBARDO: 16 photographic evidence and a thumb drive that 17 was denied. 18 19 20 21 22 23 MR. DORAN: There was Right, but it was marked Exhibit A. MR. KAPLAN: Yes, and we struck those from the record. HEARING OFFICER LOMBARDO: (Inaudible). 24 Siebert & Assocs. Court Reporters, Inc. (773) 851-7779 cmsreporters@comcast.net 167 1 2 BY MR. KAPLAN: Q. Yes. If you could go to the very last 3 bolded section on the first page of Exhibit A, 4 can you -- can you note for the record how many 5 homeless students according to the CCH report 6 were counted as of last year? 7 8 9 A. 11.6 percent, which was equal to 2,180. Q. I was actually specifically 10 referencing the total number of homeless 11 students, the very first sentence in that 12 section. 13 A. The very first sentence. 14 Q. Right under where it says how many 15 homeless students are in Chicago. 16 A. 17 number. 18 Q. I'm sorry, I'm trying to find the 18,831. Yes. And that is -- and that is a 19 higher number than the approximately 1500 that 20 were -- 21 A. It is, but I don't recall the 22 methodology that the Chicago Coalition uses to 23 come up with that number. 24 Q. Yes, I appreciate that. I'm only Siebert & Assocs. Court Reporters, Inc. (773) 851-7779 cmsreporters@comcast.net 168 1 asking with regard to the methodology your 2 agency uses, noting that there is a difference 3 in methodology there. 4 A. But you should also note that although 5 there -- there is a deference on our 6 methodology, but this number is inclusive of 7 people and individuals that are doubled up in 8 permanent housing, no doubt vulnerable, but not 9 homeless. 10 Q. Yes. And it is -- and it should also 11 be noted that -- that your methodology -- does 12 your methodology look specifically at student 13 enrollment at CPS to calculate the homeless? 14 15 A. We do capture that information, those that are in shelter that are in school. 16 Q. Only those who are in shelter? 17 A. Yes, because they are the ones who are 18 homeless. 19 risk are living with their aunt, their uncle, 20 they're living doubled up with other families, 21 but they are not technically homeless, in a 22 shelter or on the street. 23 24 Q. Those that are doubled up and at So they do -- So is it your position that despite the fact that they don't own a Siebert & Assocs. Court Reporters, Inc. (773) 851-7779 cmsreporters@comcast.net 169 1 home, despite the fact they don't have a 2 property to their name, that they are not 3 homeless? 4 5 A. They are not homeless; however, but they are vulnerable. 6 Q. They are vulnerable. 7 A. Yes. 8 Q. And would they qualify for your 9 10 11 services? A. If they were to seek shelter and our services, absolutely. 12 Q. But only if they seek shelter? 13 A. But only if they seek shelter. 14 Q. I was going to wonder here, I seem to 15 recall from this record -- well, let me put it 16 to you. 17 To the best of your recollection, 18 how many individuals specifically in the Uptown 19 neighborhood were considered to be homeless? 20 A. So you'll see in our report the number 21 that was by community in the 48th -- in the 22 Uptown area. 23 you can't imagine -- 24 Q. You'll have to excuse me because Yes, of course. Siebert & Assocs. Court Reporters, Inc. (773) 851-7779 cmsreporters@comcast.net 170 1 A. -- the amount of data that I have in 2 my head, but if you'll refer to the back of the 3 report, you'll see the trends -- 4 Q. Yes. 5 A. -- of by the community the transition 6 7 from one community to another. Q. Would you -- would you approximate to 8 the best of your recollection that it was over 9 50 or under 50? 10 A. Not unless I look at the number. 11 Q. Okay. 12 A. So I -- I cannot give you that number. 13 Q. May I have permission to look at that, 14 please? 15 HEARING OFFICER LOMBARDO: 16 (Inaudible). 17 BY THE WITNESS: 18 A. 19 20 I don't have it in front of me. HEARING OFFICER LOMBARDO: exhibit are you referring to? 21 MR. KAPLAN: 22 referencing -- 23 BY THE WITNESS: 24 Which A. I believe that I was Exhibit F. Siebert & Assocs. Court Reporters, Inc. (773) 851-7779 cmsreporters@comcast.net 171 1 BY MR. KAPLAN: 2 Q. Yes. 3 A. So as you will see on Page 10 of 4 Exhibit F, the movement in Uptown -- and again, 5 we are tracking this by year, from '14 to '16, 6 indicated that in '14 there were nine people 7 counted in Uptown. 8 to 41, and then aligned with what we did with 9 the Chronic Homeless Pilot there were 73 in 10 That number in '15 went up that community at that time. 11 Q. And so this was 73 on the streets? 12 A. Yes, on the streets. 13 Q. And in the shelters? 14 A. Not in shelters. 15 Q. Not in shelters? 16 A. This is only the number of folks that 17 18 were found on street in this Appendix A. Q. And to your knowledge do individuals 19 and homelessness ever traverse between shelters 20 and unsheltered living spaces? 21 A. Yeah. 22 Q. Would you say that's a regular 23 24 Yeah, they do. occurrence, fairly uncommon? A. Not a regular occurrence, not for Siebert & Assocs. Court Reporters, Inc. (773) 851-7779 cmsreporters@comcast.net 172 1 those that are chronically homeless on the 2 street. 3 Q. And to your opinion there is a 4 fundamental distinction between those who are 5 in shelters as far as their risk level or their 6 chronicness than those who are in the -- in the 7 viaducts? 8 9 A. So I think anyone who is in our system, whether in shelter or under the 10 viaduct, they are still very vulnerable and 11 need a subset of services in order to gain 12 stability. 13 Those that are on the street 14 obviously have to contend with the elements of 15 the weather, the elements of just being on the 16 street, versus the same vulnerable population 17 we have in shelter, who are under a roof and 18 are getting their basic needs met, so yes. 19 Q. And to your knowledge on average in 20 any given neighborhood, of course there are 21 many wards and neighborhoods in Chicago, but is 22 there typically a proportionate number of beds 23 that are available to all individuals who are 24 homeless on a given night? Siebert & Assocs. Court Reporters, Inc. (773) 851-7779 cmsreporters@comcast.net 173 1 A. Obviously not. I mean, on any given 2 night we might have between 120 to 150 3 available beds, but like I testified earlier, I 4 mean, if anyone is seeking shelter and wants to 5 go in shelter above those beds, we, the City, 6 will work with our providers to ensure that 7 they get a bed. 8 9 10 11 Q. And do they get it on the same day they request it or is it typically a longer process? A. If they want a shelter bed on that 12 night, we will go above and beyond to make sure 13 they get a shelter bed. 14 Q. And at this point could you -- would 15 it be fair to say that your agency has the 16 capacity, if the total known population of 17 homeless according to that report were to 18 request shelter or housing, would you be able 19 to provide that this evening on per -- 20 A. No. 21 Q. No. Now, you've been engaged in this 22 work for a very long time, specifically with 23 the product -- with the program as deputy 24 commissioner at DFSS for the homeless program. Siebert & Assocs. Court Reporters, Inc. (773) 851-7779 cmsreporters@comcast.net 174 1 Do you consider yourself fairly 2 up-to-date, well read, on various local media 3 reports, news reports on issues of 4 homelessness? 5 A. I hope that I am. 6 Q. I'd like to at this time introduce 7 Exhibits B, C, D and E. These are exhibits 8 that have been -- these are various local media 9 reports that are of relevance to the testimony 10 about the viaducts, about housing stock 11 available in the city of Chicago, that we at 12 this time would like to enter into the record. 13 HEARING OFFICER LOMBARDO: 14 MR. DORAN: I will object. 15 all newspaper articles or the like. 16 HEARING OFFICER LOMBARDO: 17 MR. KAPLAN: Yes, I do. 19 MR. DORAN: It's hearsay. 21 These are Do you have a copy for the record? 18 20 Counsel? It's not reliable. MR. KAPLAN: We would -- we would note 22 obviously this being a more informal forum, but 23 rules of evidence typically do -- 24 HEARING OFFICER LOMBARDO: Can we have Siebert & Assocs. Court Reporters, Inc. (773) 851-7779 cmsreporters@comcast.net 175 1 2 some basis for what they are? MR. KAPLAN: This is with regard to -- 3 We've had an opportunity when Miss Rodriguez 4 was testifying earlier to hear about the 5 familiarity with some of the literature, with 6 some of the studies that have been done. 7 This is to kind of buttress and 8 accompany to the extent that this is 9 contemporaneous reporting of various issues 10 with regard to availability of housing stock, 11 with regard to conduct of city agencies, 12 including DFSS in the management, if you will, 13 of homeless encampments. 14 15 16 HEARING OFFICER LOMBARDO: I'm just asking physically where do these come from. MR. KAPLAN: Physically -- yes, these 17 were printed up from the worldwide web, from 18 the internet, yes. 19 HEARING OFFICER LOMBARDO: And these 20 are purported to be copies of articles from 21 various newspapers, Chicago Tribune and -- 22 23 24 MR. KAPLAN: WBEZ, CBS, the local affiliate. HEARING OFFICER LOMBARDO: And City, Siebert & Assocs. Court Reporters, Inc. (773) 851-7779 cmsreporters@comcast.net 176 1 you are objecting to this? 2 MR. DORAN: Yes, I am objecting, it's 3 hearsay and it's not something someone would 4 rely on. 5 I mean, these are written from a 6 point of view, and I understand that the rules 7 of evidence are relaxed here, but they still 8 exist. 9 HEARING OFFICER LOMBARDO: I am going 10 to admit them, mark them City's Exhibits B 11 through E and they will be admitted. 12 MR. KAPLAN: You mean the petitioner? 13 HEARING OFFICER LOMBARDO: I'm sorry, 14 yes, Plaintiff's or Petitioner's Exhibits B 15 through E, correct. 16 17 18 MR. KAPLAN: Thank you very much. BY MR. KAPLAN: Q. I'd like to go through -- If you can 19 give me just one moment. 20 through just one-by-one very briefly and give 21 you, of course, the opportunity to briefly 22 peruse. 23 24 I'd like to go I'm not expecting full familiarity with the article, but just Siebert & Assocs. Court Reporters, Inc. (773) 851-7779 cmsreporters@comcast.net 177 1 beginning with Exhibit B. 2 A. Mm-hum. 3 Q. Now, Exhibit B is an article, and I 4 can summarize it here while you're having an 5 opportunity to peruse. 6 A. No, need. I've read this one. 7 Q. You've read this one? 8 A. Yes, sir. 9 Q. So you're familiar with -- that 10 there's been a dramatic uptick in the number of 11 individuals in Chicago with -- who are paying 12 30 percent or more in rent in the city of 13 Chicago? 14 A. Yes, sir. 15 Q. And is there a term -- is there a term 16 that is used in your area of expertise to 17 describe this phenomenon? 18 A. It's just a phenomenon. I mean, the 19 working -- you cannot control the rental 20 market. 21 Q. 22 rent burden? 23 A. I am. 24 Q. Is this the term that is typically Yes. Are you familiar with the term Siebert & Assocs. Court Reporters, Inc. (773) 851-7779 cmsreporters@comcast.net 178 1 used when an individual is paying 30 percent or 2 more -- 3 A. Yes, it is. 4 Q. -- in their rent? 5 6 And so you said you were familiar with this report? 7 A. Mm-hum. 8 Q. And so you are familiar that the 9 homeless population in Chicago has not just 10 been -- has not been stable, but in fact has 11 either been increasing or is at risk of it as a 12 result of this incline of affordable? 13 A. So I would like to tell you that 14 according to our point-in-time counts, we have 15 seen a reduction in homelessness, so I think 16 it's really important to note that. 17 Yes, there are rent burdens and 18 there are other contributing factors, but in 19 Chicago, from last year -- from '15 to '16, we 20 saw a 13-percent reduction in homelessness. 21 22 Q. And this is specifically with regard to methodology you have used? 23 A. Correct. 24 Q. And does -- Siebert & Assocs. Court Reporters, Inc. (773) 851-7779 cmsreporters@comcast.net 179 1 2 3 A. Which, by the way, was accepted by Q. I thank you for that clarification. HUD. 4 Does your -- does your office 5 ever cross-reference against any other surveys 6 other than the HUD-supported one methodology? 7 A. We do not. 8 Q. Okay. 9 I'd like to move ahead to the second article, Article C. I do apologize, 10 it's a little bit small, but I -- I will be 11 happy to provide any assistance with just -- or 12 if you need an extra second, just -- it's just 13 one page. 14 I'd like to turn your attention 15 to paragraph two. 16 that you've had familiarity on a name basis 17 with many of the residents in this particular 18 area, that you've had -- I should actually -- 19 Strike that. 20 21 Miss Rodriguez, you said Have you personally visited the Uptown viaducts before? 22 A. Yes. 23 Q. How regularly do you visit these 24 Uptown viaducts? Siebert & Assocs. Court Reporters, Inc. (773) 851-7779 cmsreporters@comcast.net 180 1 A. I personally do not visit them 2 regularly, but I do have staff whose job it is 3 to visit them regularly. 4 Q. Okay. Have you -- I'd like to draw 5 your attention to the third -- I would say 6 there is a caption under that picture there, 7 the paragraph begins with I live, and it 8 references a particular individual by the name 9 of Maria Murray. 10 A. Mm-hum. 11 Q. Are you familiar with Miss Murray? 12 A. The name -- The name isn't familiar to 13 me, but like I said, it will probably be very 14 familiar to the staff I have assigned in those 15 areas. 16 Q. I would like to draw your attention to 17 the paragraph right -- right after that, to the 18 name of Miss Morrison-Butler. 19 with Miss Morrison-Butler? Are you familiar 20 A. Yes, I am. 21 Q. And what is her position in your 22 agency? 23 A. 24 She is the commissioner of the Department of Family and Support Services. Siebert & Assocs. Court Reporters, Inc. (773) 851-7779 cmsreporters@comcast.net 181 1 Q. And is it true at least based on this 2 report at that final decision about keeping 3 tents has not -- had not at the time of that 4 article, which was back in September I will 5 note for the record, had not been made? 6 A. It had not been made, and I will state 7 further that, you know, we are cognizant of the 8 weather in Chicago, and we don't want anyone to 9 perish on the street, so making a decision on 10 whether to leave someone with a tent that could 11 protect them from the inclement weather or 12 applying the rules is a really hard decision -- 13 Q. Yes. 14 A. -- but we are there to provide a 15 service to the homeless and we want to make 16 sure that we treat them with dignity and 17 respect, so if letting them keep a tent through 18 the winter is what we need to do, then yes. 19 Q. Yes. Have you in your 28 years at 20 DFSS heard of any incidence of homeless or 21 transitionally homeless individuals dying as a 22 result of inclement weather? 23 A. There have been some incidents. 24 Q. Have there been any incidences of that Siebert & Assocs. Court Reporters, Inc. (773) 851-7779 cmsreporters@comcast.net 182 1 within your specific two-and-a-half year 2 tenure? 3 A. Not in my two and a half years. 4 Q. Not to your knowledge? 5 A. Not to my knowledge. 6 Q. I'd like to turn your attention to 7 Exhibit D. This article here is from the 8 Chicago Reporter talking about SRO's. 9 Miss Rodriguez, are you familiar 10 with SRO's? 11 A. I am. 12 Q. And what do SRO's stand for? 13 A. Single room occupancies. 14 Q. And briefly can you kind of explain 15 what the purpose of single room occupancy 16 housing is? 17 A. So single room occupancies usually are 18 buildings where there are a multitude of units 19 that share common amenities, so the units might 20 not in particular have like their own bathroom 21 or their own kitchen, there are common 22 amenities for that, and they are primarily only 23 for singles. 24 Q. Miss Rodriguez, do you have Siebert & Assocs. Court Reporters, Inc. (773) 851-7779 cmsreporters@comcast.net 183 1 familiarity -- what's been the current trend 2 per this article and your expertise in SRO 3 housing in the city of Chicago? 4 5 6 7 A. There has been a decline in SRO's in being converted. Q. Has there been any decline specifically in the Uptown neighborhood? 8 A. Yes, there has been. 9 Q. And do you or your agency work with 10 SRO's as part of your engagement strategy for 11 housing homeless individuals as -- 12 A. We will use that as an option for a 13 participant and whether they accept it or not, 14 that's up to them. 15 Q. And speaking to this -- this decline 16 in SRO's, in your opinion, does this present 17 any additional challenges to homeless residents 18 in the specific communities that they are 19 located in? 20 A. 21 So I think affordable housing overall is the bigger issue here. 22 Q. Yes. 23 A. The fact that we do not have enough 24 units within that zero to 15 percent AMI, yeah, Siebert & Assocs. Court Reporters, Inc. (773) 851-7779 cmsreporters@comcast.net 184 1 it's a concern for us, but it is part of our 2 Plan 2.0. 3 You will see in Exhibit G that 4 one of the strategies is to have an affordable 5 housing pipeline developed robust enough to 6 manage the in-flow of those seeking housing. 7 Q. Finally I'd like to turn your 8 attention to the last of these exhibits, 9 Exhibit E. Exhibit E is a WBEZ article 10 concerning a clearance of an encampment from a 11 former school site known in this hearing as the 12 Stewart School on the date of this article, 13 September 26, 2016, introduced purely for 14 purposes of Miss Rodriguez's familiarity to be 15 developed in questioning. 16 Miss Rodriguez, when did you 17 first learn about the clearance of this 18 encampment site? 19 A. For the Stewart? 20 Q. For the Stewart School. 21 A. Oh, God. 22 MR. DORAN: You know, I'm going to 23 object. We've been through this before, the 24 relevancy of this action in September. That's Siebert & Assocs. Court Reporters, Inc. (773) 851-7779 cmsreporters@comcast.net 185 1 not the issue here today. 2 HEARING OFFICER LOMBARDO: I agree, 3 but I'm going to overrule that. 4 MR. DORAN: 5 HEARING OFFICER LOMBARDO: 6 given you a lot of time and I'm going to give 7 them the same opportunity to ask some more 8 questions. 9 10 11 MR. KAPLAN: I have Thank you. BY THE WITNESS: A. So I would say it was during the 12 summer of 2016. 13 BY MR. KAPLAN: 14 Okay. Q. During the summer of 2016. And at the 15 time were there any encampments present at the 16 Stewart School? 17 18 19 A. There were individuals living in that area. Q. To your knowledge, to the best of your 20 knowledge, were there any concerns about safety 21 or any other concerns raised to your agency 22 about these encampments? 23 24 A. They are the same concerns we have with all the other encampments; the fact that Siebert & Assocs. Court Reporters, Inc. (773) 851-7779 cmsreporters@comcast.net 186 1 they do not have any running water, the fact 2 that they do not have any, you know, usable 3 sanitation, you know, facilities. 4 They are the exact same concerns 5 whether you are in an encampment here or in an 6 encampment on the South side. 7 Q. Did your agency, either on its own 8 accord or in conjunction with any other 9 agencies, attempt to redress the water issue? 10 A. Our agency's job is to engage an 11 outreach to these individuals and offer 12 auxiliary services. 13 water. 14 It is not to bring them It is to offer them services that 15 get them into a shelter or a permanent housing 16 facility. 17 Q. Do these aux -- have -- at this point 18 or any time these auxiliary services accounted 19 for basic day-to-day living use for those who 20 are not in shelters? 21 A. So we have providers such as the 22 Salvation Army who have a canteen who routinely 23 go to that community offering food, water, for 24 those participants that want to partake in Siebert & Assocs. Court Reporters, Inc. (773) 851-7779 cmsreporters@comcast.net 187 1 that. 2 Q. Yes. 3 A. Yes, so there are those type of 4 services there, but it's not something that 5 DFSS does directly. 6 Q. Okay. But to the best of your 7 knowledge was the Salvation Army in any 8 capacity involved in providing water -- 9 A. They are -- they are in various 10 locations of this community providing services 11 to known encampments and known participants. 12 13 14 Q. And to your knowledge was DFSS present at the clearance of this site? A. We were, but only as an entity to 15 provide services. 16 is not our job. 17 a participant wanted to accept services. 18 We are not enforcers, that It was there in the event that MR. KAPLAN: If I may have a moment, 19 please. I will -- I will submit at this time 20 for the City at least one copy of it, we will 21 proceed with the additional one if you give us 22 leave to present that as well to you. 23 24 And what exhibit are we at currently? Siebert & Assocs. Court Reporters, Inc. (773) 851-7779 cmsreporters@comcast.net 188 1 2 3 HEARING OFFICER LOMBARDO: We're on Exhibit F. MR. KAPLAN: F. We will tender it 4 just briefly for your examination before I 5 tender it to the City. 6 Your Honor, I'd like to enter 7 into evidence Exhibit F. 8 that was from the viaduct cleaning 9 contemporaneously taken. 10 This is a picture We would ask for leave as needed 11 to allow for redirect -- rebuttal redirect to 12 establish that foundation either at this time 13 or following Miss Rodriguez's testimony. 14 HEARING OFFICER LOMBARDO: 15 mean, who took the picture, when was it taken? 16 MR. KAPLAN: Yes. Well, I This was taken -- 17 this was taken by Mr. Thayer, on the morning of 18 September 26, 2015 (sic), contemporaneous to 19 the clearance that was -- and specifically 20 offered as I will establish through questioning 21 that I ask for with regard to the 22 communication. 23 24 HEARING OFFICER LOMBARDO: Which location was it? Siebert & Assocs. Court Reporters, Inc. (773) 851-7779 cmsreporters@comcast.net 189 1 MR. KAPLAN: 2 School right near by the gate. 3 4 This was at the Stewart HEARING OFFICER LOMBARDO: date did you say it was? 5 MR. KAPLAN: September 26. 6 MR. DORAN: And relevancy. 7 through this before. 8 9 MR. KAPLAN: to -- if I forgot to ask -HEARING OFFICER LOMBARDO: 11 noted, but I will allow you to ask. 12 14 We've been Relevancy -- I'm about 10 13 And what MR. KAPLAN: Objection Thank you. BY MR. KAPLAN: Q. Miss Rodriguez, if you could take a 15 moment just to examine that picture. Miss 16 Rodriguez do you see any City employees in this 17 picture? 18 A. I see three, four, five -- seven. 19 Q. Seven. 20 A. Chicago Police Department and the 21 22 23 24 What agencies are they from? Department of Family and Support Services. Q. And you recognize the employee from the Department of Family and Support Services? A. I do. Siebert & Assocs. Court Reporters, Inc. (773) 851-7779 cmsreporters@comcast.net 190 1 Q. And what is her name? 2 A. Her name is Shaundra Libby. 3 Q. Okay. And Miss Libby -- Was Miss 4 Libby typically involved at all in appearing 5 and/or providing support at these -- at 6 cleanings? 7 A. Yes, Miss Libby is director of the HOP 8 team, the Homeless Outreach and Prevention 9 team. 10 Q. I would like to note for the record 11 that you had stated that there was no court -- 12 that there's been no coordination between DFSS 13 and these City agencies at these cleanings? 14 A. No. What I said was that yes, we 15 obviously coordinate, but I was specifically 16 referring to my role. I am not an enforcer. 17 Q. Okay. 18 A. I am not the enforcer of the 19 ordinances or the rules. My staff is there to 20 provide a service, to help the homeless gather 21 their personal belongings, to help the homeless 22 transfer to another area, not to enforce 23 ordinances that are clearly being enforced 24 here. Siebert & Assocs. Court Reporters, Inc. (773) 851-7779 cmsreporters@comcast.net 191 1 Q. Is it your understanding that DFSS 2 workers who do help coordinate the HOP team 3 during cleanings ever coordinate or communicate 4 with officers in the course of their alleged 5 provision of services? 6 A. So we are there together. When we do 7 cleanings, it's CPD, Streets and San, the HOP 8 team. 9 It's a City coordination. Q. Is it common for there to be 10 conversation between -- between various City 11 agencies, say the Chicago Police Department and 12 DFSS at these cleanings? 13 A. Yes. 14 Q. And to your knowledge is this an 15 accepted practice of your agency, for there to 16 be communications between City of Chicago 17 Police officers and DFSS officials at these 18 cleanings? 19 20 21 A. I don't see how else we would coordinate if we did not speak. Q. So you would say that there is -- not 22 in your personal capacity, but in that of your 23 agency, coordination during these cleanings? 24 A. There is coordination. Siebert & Assocs. Court Reporters, Inc. (773) 851-7779 cmsreporters@comcast.net 192 1 Q. There is coordination. 2 A. Because when we are there engaging -- 3 the police have to do their job. I'm not the 4 police. 5 Q. And what is -- 6 A. The police are there to enforce 7 ordinances and make sure that, you know, there 8 is peace in the public. 9 Q. Yes. 10 A. My job is to engage and outreach to 11 the homeless to provide services. We are both 12 there because we are working with the same 13 subpopulation. 14 Q. Okay. 15 A. So I just want to make it very clear 16 17 DFSS does not enforce, DFSS provides a service. Q. Has your agency ever sought to 18 communicate or advise CPD in their enforcement 19 capacity about the policy wisdom of enforcement 20 of municipal ordinances that may directly or 21 disparately impact the homeless? 22 MR. DORAN: Objection. This is -- 23 this is getting way beyond the issue at hand. 24 HEARING OFFICER LOMBARDO: You're Siebert & Assocs. Court Reporters, Inc. (773) 851-7779 cmsreporters@comcast.net 193 1 asking whether she knows about enforcement? 2 MR. KAPLAN: I'm just trying to 3 establish whether -- because Miss Rodriguez 4 establishes -- represented that the only extent 5 of coordination is really their coexistence in 6 that time and place. 7 I'm trying to get some insight in 8 her capacity at the agency as to whether there 9 is any not advising, but any communication or 10 any concerns that ever have been addressed 11 about enforcement as it relates to the welfare 12 of homeless individuals. 13 14 MR. DORAN: And she's answered it like 15 times already. 15 HEARING OFFICER LOMBARDO: 16 allow her to answer it and then we'll move on. 17 BY THE WITNESS: 18 A. I will So there is clear coordination. I 19 mean, the police is there because they have to 20 enforce ordinances, but I can tell you that at 21 the very least, when we are there together, the 22 police is there because they, too, have a 23 relationship with the homeless. 24 Many of these officers know the Siebert & Assocs. Court Reporters, Inc. (773) 851-7779 cmsreporters@comcast.net 194 1 homeless by name and have built relationships 2 with them, so there isn't any type of discord 3 when we do cleanings. 4 BY MR. KAPLAN: 5 Q. And very briefly, lastly on this 6 point, in your experience have homeless -- have 7 homeless clients of yours ever expressed any 8 mistrust or concerns about police conduct as 9 relates to their encampments? 10 A. They have displayed distrust on the 11 police, on the city workers, on everyone who is 12 there. 13 Q. But specifically in that -- 14 A. Yes. 15 Q. The police? 16 A. Mm-hum. 17 Q. And to just clarify, moving from this, 18 you have not communicated those concerns to the 19 City of Chicago Police? 20 A. We have. I mentioned earlier that the 21 mayor developed an interagency task force. 22 police sit on this task force. 23 24 The The main purpose of that is that as a city we develop a process that effectively Siebert & Assocs. Court Reporters, Inc. (773) 851-7779 cmsreporters@comcast.net 195 1 serves the homeless, so the police is there, 2 and we are routinely training all of the City 3 departments on how the homeless should be 4 treated, the rights of the homeless, and what 5 we do to engage them properly, so yes, the 6 police are there at the table and they do know. 7 Q. I'd like to draw your attention from 8 that. Miss Rodriguez, are you familiar with 9 the Illinois Bill of Rights of the Homeless? 10 A. I am. 11 Q. Were you or your agency involved at 12 all in the advocacy around the passage of that 13 act? 14 A. No, sir. 15 Q. To your understanding -- well, strike 16 that. 17 Have you been apprised of the 18 application of this Bill of Rights as relates 19 to homeless encampments in your advocacy work 20 with any other organizations? 21 A. Yes. 22 Q. Can you name -- what -- have any of 23 these organizations apprised you of this in a 24 legal capacity? Siebert & Assocs. Court Reporters, Inc. (773) 851-7779 cmsreporters@comcast.net 196 1 A. So we work very closely with the 2 Chicago Coalition, who as you know use that 3 document as the foundation of the work that 4 they do when it comes to protecting the rights 5 of the homeless. 6 Q. And as the basis of that -- as a 7 result of that advocacy has there been a change 8 in policy of enforcement of the removal or the 9 permanence of tents at least for the time 10 11 being? A. So the policy sets forth many 12 priorities that are important to preserving 13 specific areas of encampments. 14 agree with the fact that this is where someone 15 chooses to live, this is their home, right? 16 Yes, I totally So our process and our 17 methodology is to make sure that we have a 18 robust system in place so that we can provide 19 the services that they need, and just like we 20 did with the Chronic Homeless Pilot where we 21 successfully housed 73 of those participants 22 who were in encampments, in tents, we intend to 23 use that across the City, whether they are in 24 tents or whatever. Siebert & Assocs. Court Reporters, Inc. (773) 851-7779 cmsreporters@comcast.net 197 1 I mean, the way that we are 2 moving removing our system does align with a 3 lot of the policies set forth by the Illinois 4 Rights -- Homeless Rights bill, in addition to 5 best practices that have been implemented 6 throughout the country, and very much so 7 supported by the supportive -- the Corporation 8 for Supportive Housing. 9 Q. Briefly to the policy that was 10 introduced earlier, obviously haven't had the 11 opportunity to fully review, but does it set 12 out within that policy a say five, ten, maybe 13 20-year plan towards a permanent end of 14 homelessness in the city of Chicago? 15 A. It does not. 16 Q. And in your discussions, in your 17 agency, has there been any intent to arrive at 18 a permanent end to homelessness in the city of 19 Chicago? 20 A. So let me just tell you that ending 21 homelessness is very important to the City and 22 DFSS, right? 23 me. 24 In order to do that -- listen to In order to do that, I have to Siebert & Assocs. Court Reporters, Inc. (773) 851-7779 cmsreporters@comcast.net 198 1 scale up our system, all right? 2 enough housing stock in our system, I have to 3 have a robust coordinated entry system. 4 I have to have But it is unrealistic to think 5 that we will end homelessness in totality. 6 There will always be at people at risk needing 7 services. 8 mental health, substance abuse issues who take 9 to the street as their permanent home. 10 There will always be people who have What we need to do is to make 11 sure it's a coordinated entry and more a plan 12 that we have enough resources to manage the 13 in-flow. 14 Q. Miss Rodriguez, are you familiar with 15 any cities, again -- realize of course the city 16 of Chicago is a very large municipality, but 17 are you familiar with any cities that have 18 either ended or effectively created a system 19 that -- wherein homelessness is essentially 20 either terminated or effectively managed? 21 A. There are some cities. I think 22 Houston and Utah have ended veteran 23 homelessness, some cities have ended chronic 24 homelessness, but no city that I know of has Siebert & Assocs. Court Reporters, Inc. (773) 851-7779 cmsreporters@comcast.net 199 1 ended homelessness in totality. 2 So I don't know of a city out 3 there that doesn't have shelters or doesn't 4 have permanent supportive housing programs or 5 doesn't have a method to outreach to vulnerable 6 populations. 7 Q. Miss Rodriguez, are you familiar 8 with -- in your professional expertise the 9 DOJ's recommendation or a recent filing that 10 they made, I believe it was in 2015, about 11 criminalization of homelessness? 12 A. I vaguely am familiar with it. 13 Q. Okay. At this time we would like to 14 enter exhibit I believe G, is it not, into -- 15 HEARING OFFICER LOMBARDO: 16 MR. KAPLAN: What is it? It is the DOJ's statement 17 of interest, and I will provide a little bit of 18 additional context to it, purely -- purely 19 provided not for the legal reasoning, but for 20 familiarity with the statement in its -- you 21 know, in its general summation. 22 23 24 HEARING OFFICER LOMBARDO: How does it relate to your examination? MR. KAPLAN: It was relevant -- it was Siebert & Assocs. Court Reporters, Inc. (773) 851-7779 cmsreporters@comcast.net 200 1 relevant because Miss Rodriguez has referenced 2 federal agency guidelines and provisions, 3 chiefly HUD. 4 HUD is, you know, another federal 5 agency that coordinates with DOJ often times on 6 issues of housing and homeless policy, and the 7 DOJ's report was in the stream of homeless 8 advocacy considered very seminal in terms of 9 establishing a federal agency position on 10 criminalization of homelessness. 11 familiar to somebody -- 12 13 14 It would be HEARING OFFICER LOMBARDO: How is that relevant to what's happening here? MR. KAPLAN: It is relevant because it 15 specifically cites an ordinance construction, 16 around anti-camping, around tents and other 17 life sustaining activities that is really at 18 the heart of what we are -- what was discussed 19 in terms of the efficacy of tents and with 20 regard to the permit that we are seeking, too. 21 HEARING OFFICER LOMBARDO: 22 23 24 Briefly, let's get it into the record. MR. KAPLAN: Yes. I'd like to -- give me this again. Siebert & Assocs. Court Reporters, Inc. (773) 851-7779 cmsreporters@comcast.net 201 1 MR. DORAN: This is a 16-page -- I 2 don't -- it's been entered -- I don't know if 3 they're going to enter it into the record or 4 whatever, but I don't think it's really 5 beneficial to go through the questioning -- 6 7 MR. KAPLAN: do intend -- 8 9 Well, I do intend to -- I HEARING OFFICER LOMBARDO: Keep it short if we can. 10 MR. KAPLAN: Yes, absolutely. 11 HEARING OFFICER LOMBARDO: In all 12 fairness, Counsel, you kind of opened the door. 13 BY MR. KAPLAN: 14 Q. I'd like to briefly at least address 15 the factual similarity in these two cases, so 16 just to clarify, this was a statement of 17 interest that was filed on a Federal District 18 Court case known as Bell v. City of Boise, 19 Idaho, and I'd like to just -- Miss Rodriguez, 20 if you could please, just read the paragraph, 21 the first full paragraph on Page 4, and I'll 22 actually -- actually I'll make it a little bit 23 shorter, the -- let me see. 24 the very last two sentences of that. The one, two -- Siebert & Assocs. Court Reporters, Inc. (773) 851-7779 cmsreporters@comcast.net 202 1 A. Where it says "if"? 2 Q. Yes. 3 A. If sufficient shelter space is 4 unavailable because there is inadequate beds 5 for the entire population or there are 6 restrictions of those beds that disqualify 7 certain groups of homeless individuals, e.g., 8 because of disability access or exceeding 9 maximum stay requirement, then it would be 10 impossible for some homeless individuals to 11 comply with these ordinances. 12 below, in those circumstances, enforcement of 13 the ordinances amounts to the criminalization 14 of homelessness in violation of the 8th 15 Amendment. 16 Q. As set forth Miss Rodriguez, very briefly -- and 17 then I'll move on from this exhibit -- to the 18 best of your knowledge in your -- your 19 non-legal policy experience and advocacy 20 experience with homeless individuals, has there 21 ever been a time where it has been impossible 22 due to, you know, basic living needs such as 23 sleep, such as tents, such as very basic access 24 to shelter and sleep, that homeless individuals Siebert & Assocs. Court Reporters, Inc. (773) 851-7779 cmsreporters@comcast.net 203 1 have not been able to comply with the 2 ordinances we are here for today? 3 A. Can you explain that a little further? 4 Q. Yes. 5 A. I didn't understand the question. 6 MR. DORAN: 7 that. 8 BY THE WITNESS: 9 10 11 A. I'm going to object to I don't understand the question. BY MR. KAPLAN: Q. I apologize. I'll rephrase the 12 question, Miss Rodriguez. 13 any time in which homeless individuals, were 14 they to choose between complying with the 15 ordinance or sleeping out in public because 16 there is no other place to sleep, would they -- 17 in other words, have you ever seen a situation 18 where homeless individuals have been forced to 19 violate the ordinance or else have nowhere else 20 to sleep? 21 22 23 24 MR. DORAN: Has there ever been Objection. I don't know what the ordinance is. MR. KAPLAN: Asking 10-8-334, which in the record -- sorry, my apologies. Not Siebert & Assocs. Court Reporters, Inc. (773) 851-7779 cmsreporters@comcast.net 204 1 that one. 2 3 HEARING OFFICER LOMBARDO: Twenty. BY MR. KAPLAN: 4 Q. Yes, 10-28, which is with regard to -- 5 which is with regard to public assembly -- or, 6 I'm sorry. Public way. Public way. 7 HEARING OFFICER LOMBARDO: 8 asking if she knows if somebody has violated 9 public way? 10 Are you BY MR. KAPLAN: 11 Q. In order to be able to like sleep or 12 because of -- or lack of alternative shelter? 13 HEARING OFFICER LOMBARDO: 14 her. 15 BY THE WITNESS: 16 Well, ask Do you know of that happening? A. So I think it's important to note that 17 we have outreach agencies canvassing the city 18 at all times. 19 time and they say no. 20 BY MR. KAPLAN: We offer shelter every single 21 Q. Respectfully -- 22 A. Right? 23 24 They say no. I cannot force anybody into shelter. Q. And to your -- Miss Rodriguez, to that Siebert & Assocs. Court Reporters, Inc. (773) 851-7779 cmsreporters@comcast.net 205 1 point, you had mentioned before that there were 2 complaints about -- or fears rather as you 3 stated about bed bugs, about attacks. 4 Have these -- have these fears 5 ever been substantiated to you in your outreach 6 to homeless individuals? 7 A. So I think what's important to note is 8 that there are bed bugs in the best hotels and 9 the best universities in this country. 10 When you have hundreds of people 11 going through one facility, that's going to 12 happen. 13 place, we require our shelters to remediate 14 often, to provide documentation that they're 15 remediating, but I can't control the fact that 16 a bed can turn five or six times and someone 17 might bring in a bed bug, and if you know 18 anything about bed bugs, you know that they 19 will multiply to thousands of bed bugs within a 20 week's time, so -- 21 Q. We do have bed bug remediation in Are they substantially more common in 22 your average homeless shelter in the city of 23 Chicago than, say, the Drake Hotel? 24 MR. DORAN: Objection. Siebert & Assocs. Court Reporters, Inc. (773) 851-7779 cmsreporters@comcast.net 206 1 2 BY THE WITNESS: A. I don't know anything about the Drake 3 Hotel. 4 BY MR. KAPLAN: 5 Q. Do you -- 6 A. I will tell you that when we do -- 7 MR. DORAN: 8 HEARING OFFICER LOMBARDO: 9 10 Objection. Objection. Sustained. BY MR. KAPLAN: Q. So specifically to that point, this is 11 the second point, of attacks, have you heard 12 about attacks happening in the homeless 13 shelters in the city of Chicago? 14 A. I have not. I will tell you that we 15 monitor the shelter system very closely, and 16 when incidents occur in our shelter system, our 17 providers are required to submit documentation 18 and to report that incident, so we haven't had 19 any major incidents in our shelters that are 20 alarming or concerning to us. 21 Q. Have you ever heard -- I'll move on 22 from this one after this. Have you ever heard 23 of any incidences of sexual assault happening 24 at city of Chicago homeless shelters? Siebert & Assocs. Court Reporters, Inc. (773) 851-7779 cmsreporters@comcast.net 207 1 A. We have not gotten any reports of 2 sexual assaults that have come to us, DFSS, who 3 is the funder. 4 Q. Now, in your experience have any of 5 your homeless -- have any of the homeless that 6 you've worked with ever tried to applied for a 7 public way use permit? 8 A. Not to my knowledge. 9 Q. Have they tried to apply for any 10 11 permit to solidify their encampment? A. I wouldn't know that because that's 12 not a question that I ask. 13 in the services that they need to get them off 14 the street. 15 HEARING OFFICER LOMBARDO: 16 you can wrap this up? 17 MR. KAPLAN: 18 I'm more interested Counsel, if No further questions at this time. 19 HEARING OFFICER LOMBARDO: 20 MR. DORAN: 21 HEARING OFFICER LOMBARDO: For you? No questions. 22 the parties ready for closing? 23 MR. DORAN: 24 HEARING OFFICER LOMBARDO: Okay. Are We are, Your Honor. Let me Siebert & Assocs. Court Reporters, Inc. (773) 851-7779 cmsreporters@comcast.net 208 1 reiterate for the record, City Exhibits A 2 through J have been marked as City Exhibits A 3 through J and admitted as evidence; the 4 respondent -- or Petitioner's Exhibits A 5 through G have been marked with Petitioner's 6 Exhibits A through G and admitted as evidence. 7 8 City first? MS. GANDURSKI: Your Honor, just 9 briefly, to reiterate, the reason that we're 10 here today as you well know is whether or not 11 this denial for the public notification of 12 assembly should be sustained or should be 13 reversed, and it is our position that of course 14 the denial should be affirmed. 15 clear violation of 10-28-010-B-10 when the 16 purpose of the petition is to erect structures 17 on the public way. 18 There is a You heard the testimony of expert 19 witness Luis Benitez, structural engineer, who 20 testified that tents, even camping tents, are 21 considered structures and do fall within that 22 ordinance, and so that was unrebutted. 23 24 There was no expert witness on the other side saying that tents are not Siebert & Assocs. Court Reporters, Inc. (773) 851-7779 cmsreporters@comcast.net 209 1 structures, so that's uncontested evidence that 2 we have in the record today. 3 Additionally, we know, 4 uncontested, no issue of material fact, that 5 there was not a public way permit applied for 6 or obtained by Mr. Thayer in conjunction with 7 his public notification of assembly, so to that 8 end, the City had a basis to deny the public 9 notification of assembly as submitted by 10 Mr. Thayer. 11 However, and pursuant to the 12 ordinance, the City did give Mr. Thayer his 13 right to assemble on the public way in the 14 exact area where he wants to assemble for the 15 exact length of time, for approximately seven 16 months, so there is no 1st Amendment issue 17 here. 18 Mr. Thayer has raised other 19 constitutional arguments, which, again, this 20 forum cannot address, but we think that the 21 record is very clear as to those facts and that 22 will be for perhaps another forum to look at 23 later, so in looking at even everything in 24 light most favorable to Mr. Thayer here today, Siebert & Assocs. Court Reporters, Inc. (773) 851-7779 cmsreporters@comcast.net 210 1 2 he can't win this argument. The reason why he can't win is 3 because there is a clear violation of City 4 ordinance if he -- if he is allowed to have 5 tents erected on the public way. 6 Just because you're allowed to 7 assemble does not mean you are allowed to 8 assemble absent any time, place or manner 9 restrictions, and you heard Mr. Thayer state 10 that he agrees, there should be restrictions 11 on -- there's no restriction on time or place 12 in this instance, but it's the manner that he 13 doesn't like because what he wants he can't 14 have, because what he wants to do is set up an 15 encampment on the public street. 16 You can't build a house on the 17 sidewalk, just not allowed. If we open the 18 door on this, Your Honor, public policy 19 reasons, we open the door on a lot of other 20 illegal activity under the guise of an 21 assembly, and I'll put that in quotes, so to 22 that end the City would argue that the 23 notification denial should be affirmed and 24 there should be no other issue here before this Siebert & Assocs. Court Reporters, Inc. (773) 851-7779 cmsreporters@comcast.net 211 1 forum today. 2 3 HEARING OFFICER LOMBARDO: Thank you. 4 Okay. Appreciate it. Counsel? 5 MR. KAPLAN: Yes. I think the issue 6 of what Mr. Thayer wants has been really the 7 central theme if you will of today's hearing, 8 and not only what Mr. Thayer wants, but 9 Mr. Thayer as a representative of the larger 10 homeless population, and we appreciate the 11 concerns of Miss Rodriguez in her advocacy role 12 with the City and we appreciate, you know, the 13 role that structures can provide in maintaining 14 safety and health within the city of Chicago, 15 but these are not enough we argue, and we close 16 on this because there are bigger issues at 17 stake. 18 When we look at this issue of 19 criminalization and illegality, it's been 20 demonstrated thoroughly in the record that 21 there have been countless times when the City 22 in contravention of its own laws has created 23 homeless tent encampments. 24 We understand that Siebert & Assocs. Court Reporters, Inc. (773) 851-7779 cmsreporters@comcast.net 212 1 non-enforcement may itself be an only 2 persuasive point, but it should be noted that 3 on countless occasions whether it be in Uptown, 4 whether it be the viaducts, whether it be the 5 Stewart School had this pedestrian way itself, 6 there have been encampments, and while we 7 realize that as a matter of ordinance or 8 municipal construction that these have been 9 violations, if you look to the violations as 10 explicated in 10-28-10, these are only fines. 11 These are only payments that are made. 12 not illegality to the extent of what was 13 represented earlier as murder. 14 references to, you know, maiming. 15 This is This isn't The homeless is a peaceful 16 community, and it should be noted, as 17 Miss Rodriguez clearly pointed out, that they 18 are a community and they are a community that 19 we have had the privilege to know, that we've 20 had the privilege to hear from, and the 21 privilege to represent in this court today, and 22 so the requirement of public way use permit is 23 an impingement on the Illinois Homeless Bill of 24 Rights, and it is our position, too, that in Siebert & Assocs. Court Reporters, Inc. (773) 851-7779 cmsreporters@comcast.net 213 1 federal law, which is, of course, a different 2 forum, but a forum that should be persuasive to 3 this forum, especially given that it was from 4 the DOJ, from the Department of Justice, that 5 criminalization even under the guise of 6 legitimate neutral ordinances is still 7 criminalization. 8 9 It is still a violation of rights. And it's more than just a violation of 10 rights, Your Honor. 11 human dignity. 12 It's a violation of basic You heard from Miss Rodriguez 13 herself that notwithstanding the tireless 14 advocacy of the City of Chicago, there are 15 still not enough shelters on any given evening, 16 and, in fact, the methodology itself used only 17 accounted for a snapshot of one evening. 18 There is no telling how many 19 people are made homeless in the winter time 20 when heat and other expenses become so 21 inordinate that there is no way to maintain a 22 house, and there is no way to know how people 23 fall into housing, out of housing, through 24 temporary support services or doubled up Siebert & Assocs. Court Reporters, Inc. (773) 851-7779 cmsreporters@comcast.net 214 1 spaces, and we would argue that the methodology 2 put forward by the CC agent and many more 3 advocacy organizations more accurately reflects 4 that far from there being nearly 1500 or so 5 students as one subset there is ten times that 6 amount, and certainly far more than merely 73 7 on any given night in Uptown. 8 9 And our final point, our final matter we would like to say, is that the public 10 way use permit itself is burdensome, and we 11 understand that that might be a policy matter 12 best made for the City Council, but the reality 13 is that there is no way for an individual to 14 fully express public assembly in the manner 15 they wish without getting an ordinance passed, 16 and we argue that that puts an undue burden not 17 only to the expression of free assembly in and 18 of itself, but more importantly, and much more 19 critically, to the ability of how humans who 20 are homeless people to live and sleep in peace. 21 Thank you. 22 HEARING OFFICER LOMBARDO: Appreciate 23 both sides in this matter. It was very 24 emotional I think and a very complicated Siebert & Assocs. Court Reporters, Inc. (773) 851-7779 cmsreporters@comcast.net 215 1 process. 2 maintained dignity and respect for each other 3 and I appreciate that, showed a lot of patience 4 on both parts to get this information into the 5 record. 6 Throughout I believe both parties I mean, the matter before me is 7 really quite simple. 8 there is a denial of a notice, and there is an 9 appeal based on whatever those grounds are, and 10 11 I mean, there's a notice, I will rule on those grounds. I gave ample opportunity to both 12 sides to develop their constitutional arguments 13 and form a basis obviously for appeal, you've 14 had ample opportunity to present rebuttal and 15 both sides had ample opportunity to I think, 16 you know, work those out. 17 clear record of what's going on. 18 So there is a pretty I will publish an opinion on 19 Friday by 9:30 a.m. 20 to return here while I read the opinion from 21 the bench, and I can email copies to both 22 parties contemporaneously with it -- you know, 23 my final reading of the order. 24 Both parties are welcome So my findings and decision order Siebert & Assocs. Court Reporters, Inc. (773) 851-7779 cmsreporters@comcast.net 216 1 will be issued on Friday the -- I believe it's 2 the 14th, at 9:30 a.m. in this room. 3 MR. KAPLAN: 4 MS. GANDURSKI: 5 . Thank you. Thank you, Your Honor. (Which was the end of the 6 audio recording file.) 7 ---o0o--- 8 9 10 11 12 13 14 15 STATE OF ILLINOIS 16 COUNTY OF LA SALLE 17 ) ) SS. ) I, Christine M. Vitosh, a Certified 18 Shorthand Reporter, do hereby certify that I 19 transcribed from an audio recording the 20 contents herein. 21 22 23 24 I further certify that I am in no way interested in the outcome thereof. I further certify that my certificate annexed hereto applies to the original Siebert & Assocs. Court Reporters, Inc. (773) 851-7779 cmsreporters@comcast.net 217 1 transcript and copies thereof, signed and 2 certified under my hand only. 3 responsibility for the accuracy of any 4 reproduced copies not made under my control or 5 direction. 6 7 I assume no In testimony whereof, I have hereunto set my hand this 24th day of April, A.D., 2017. 8 9 ___________________________ 10 Christine M. Vitosh 11 Illinois CSR No. 084-002883 12 13 14 15 16 17 18 19 20 21 22 23 24 Siebert & Assocs. Court Reporters, Inc. (773) 851-7779 cmsreporters@comcast.net Page 218 A a-hole 63:12 A-L-O 63:14 A.D 217:7 a.m 114:2 215:19 216:2 ability 15:7 74:14 76:23 214:19 able 9:20 13:4 30:21,22 33:22,24 70:17 115:21 173:18 203:1 204:11 absent 13:9 210:8 absolutely 128:7 138:19 139:11 140:16 152:6 155:19 161:24 165:2 169:11 201:10 abuse 138:13,23 157:11 198:8 accept 84:24 139:18,18 140:10 143:3 143:17 159:11 159:13,24 160:24 183:13 187:17 accepted 95:15 119:8 151:22 179:1 191:15 access 116:1 137:6 138:9 142:20 160:2 160:22 202:8 202:23 accessibility 111:10,17 127:16 accessible 160:8 accessing 81:19 82:9 153:24 acclimated 143:8 accompany 175:8 accord 186:8 accountability 151:23 accounted 186:18 213:17 accounts 79:19 80:2 accuracy 217:3 accurate 72:22 96:16 accurately 214:3 accusations 50:22 acknowledge 13:23 act 59:3,15,23 195:13 action 137:10 160:10 161:2 184:24 activist 119:22 119:24 121:8 activities 77:5 81:6 157:4 200:17 activity 12:23 16:3,13 109:15 210:20 acts 12:17 actual 13:16 62:5 add 7:6 82:14 99:1 115:18 115:23 addition 74:12 115:12 132:8 133:20 134:11 136:22 141:21 143:11 149:15 150:18 157:4 158:11 197:4 additional 66:14 91:4 115:18 183:17 187:21 199:18 Additionally 209:3 address 6:1 58:18 86:20 145:4 201:14 209:20 addressed 57:2 193:10 addressing 57:3 57:6 adequate 30:22 adequately 6:1 adjacent 114:23 118:14,15 administrative 1:8,13 7:21 9:7 49:23 63:15 91:24 admit 176:10 admitted 113:4 119:12 136:9 137:20 150:1 151:6 155:7 176:11 208:3 208:6 advance 8:5 advantage 11:14 adverse 59:16 158:6 advise 192:18 advising 193:9 advocacy 77:24 79:8,11,13 85:20 89:9 120:16 121:22 133:20 136:21 164:16 195:12 195:19 196:7 200:8 202:19 211:11 213:14 214:3 advocates 126:16 affidavit 9:15 10:2,8 35:4,15 119:3 affiliate 175:23 affirm 61:21,22 affirmative 12:3 affirmatively 100:2 affirmed 17:24 208:14 210:23 afford 115:21 affordable 58:6 59:13 121:13 178:12 183:20 184:4 age 165:23 agencies 133:6 133:19 140:15 140:17,20,24 144:2 155:20 175:11 186:9 189:19 190:13 191:11 204:17 agency 48:4 139:1 165:14 168:2 173:15 180:22 183:9 185:21 186:7 191:15,23 192:17 193:8 195:11 197:17 200:2,5,9 agency's 186:10 agent 214:2 agents 120:4 ago 56:24 agree 108:1 118:11 185:2 196:14 agreed 86:1 agrees 210:10 ahead 25:9 50:12 53:17 79:24 81:1 85:4 88:12 94:5 98:19 102:19 117:24 121:2 179:8 alarming 206:20 Alderman 116:20 align 197:2 aligned 171:8 Alisa 128:19 129:3,5 ALJ 131:17 141:12 143:5 allegations 98:13 alleged 98:10 123:11 191:4 allow 5:19 50:1 54:9 78:13 102:19 103:15 162:8 188:11 189:11 193:16 allowed 12:18 16:12 17:3 32:14 162:18 210:4,6,7,17 allowing 102:17 103:3 139:20 allows 8:14 113:24 139:16 154:2 alternate 5:4 113:8 alternative 3:8 65:4,6 96:22 108:23 204:12 Amendment 12:8,24 13:1 14:3,10 15:8 16:11 54:24 55:3,6,12,16 56:2 58:3,14 102:12 202:15 209:16 amenities Siebert & Assocs. 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