Berkeley sitting ban progresses toward November ballot

A group of young adults wakes up after spending the night on Telegraph Avenue recently. Photo: Frances Dinkelspiel

In a contentious meeting that lasted until the wee hours of the morning and exposed deep divisions in Berkeley, the City Council voted early Wednesday to proceed with a measure that would put a sit-lie ordinance on the November ballot.

In a 6 to 3 vote, with City councilmembers Kriss Worthington, Jesse Arreguín and Max Anderson dissenting, the council directed the city manager’s office to come back July 10 with wording for a ballot measure. The council will then have to vote again whether to actually place the measure on the November ballot, but its placement is expected.

City Council chambers and a downstairs hall were packed early in the evening with scores of people who wanted to speak for and against the measure, which would make it illegal to sit on a sidewalk in a commercial district between 7 am and 10 pm. Violators would be given two verbal warnings to get up, and if they didn’t comply, could get a $50 ticket. If voters adopt the measure in November, it would go into effect in July 2013.

The fact that Berkeley, a city long regarded as particularly welcoming to the disenfranchised, was cracking down on its homeless population, surprised many people and drew intense media attention to the measure. About 40% of Alameda County’s homeless population resides in Berkeley, far out of proportion to its size, and many of them are drawn to the city’s $3 million in services and outreach programs. In addition to those homeless because of drug and alcohol problems or mental illness, Berkeley also attracts dozens of homeless teenagers and young adults who live and sleep on the streets.

In recent weeks, perhaps as a result of a new beautification effort by downtown merchants, new homeless encampments have sprung up. While many street people used to congregate by the BART plaza at Shattuck and Center, some have moved next to the Main Library at Kittredge and Shattuck.

Numerous small merchants told the City Council that the presence of street people was hurting their businesses.

Michael Brown, who opened Green Earth Café and Bakery on Center Street a few months ago said his businesses is struggling, in part because customers and his staff do not feel safe when they get off BART or the bus and must navigate through a “scary” group of people.

“Please do not try to solve the problems of the homeless at the expense of small business,” said Brown.

But others said the sit-lie ordinance would not solve the problems of the homeless, just criminalize them and further drive a wedge between the haves and have-nots.

“The proposed sit lie ordinance will enlarge the already growing gap in privilege and opportunity between the higher and lower economic classes in our country and our community,” said Edward Maleshesky, an second year law student at Berkeley Law. “We should aspire to lift up members of our community that do not have a place to call home. Prohibiting a person from sitting or lying on the sidewalk will not solve the many underlying reasons why a person … is pushed onto the streets.”

City councilmembers finally got a chance to talk about the proposed measure right before midnight and their comments also showed just how differently the opposing sides regard the initiative, which Mayor Tom Bates just introduced two weeks ago.

“This ordinance, if we put it on the ballot, is an effort to contract civil and basic human rights and constitutional rights,” said City Councilmember Max Anderson. “It is so completely out of character with this city’s history and what most people in this city believe in. In harsh economic times people’s perceptions and their values shift somewhat because of the economic pressure. It is easy to scapegoat people in that kind of environment. It is easy to find a group of people, preferably vulnerable, without resources and without strong advocates in powerful places.”

Kriss Worthington criticized Mayor Bates for pushing through this measure without providing supporting documentation on its costs. He also questioned why alternative methods to improve commercial districts had not been considered, like allowing businesses to set up their wares outside, thus reducing the amount of space homeless people can occupy. The city could also consider limiting the number of items people place on the sidewalk, a much less draconian method of limiting the impact of the homeless.

Linda Maio said that figuring out her position on this matter was very hard but she eventually came to the conclusion that Berkeley’s efforts to help the homeless have fallen short.

“We put lots of money into services,” she said. “We’ve tried so many ways to get peoople into those services. In small ways we still fail. I don’t think you can deny there are some elements downtown and on Telegraph that do cause problems.”

Bates said that proposing a sit-lie ordinance was not an easy thing, but it did not mean that Berkeley does not care about the poor.

“I do not think anyone can characterize or should characterize the Berkeley City Council or the city of Berkeley for the fact we’re not providing services for homeless people. We do more per captita than any other city in the United States,” said Bates.

None of the other city council supporters of the measure made any comments about it.

Throughout the council’s discussion, people in the audience hissed and called out. It got so raucous at times that Bates threatened to have police take people talking out of turn away.

But the most unruly discussion actually came between councilmembers. Anderson got mad when Bates told him he could not comment further on the proposed measure.

“You ain’t the dictator around here,” said Anderson to Bates. “You start gaveling me into silence and next time I’ll bring my gavel and gavel you into silence. … Who in the hell do you think you are? You are not going to treat me like one of your little punks.”

Read the Civil Sidewalks Ballot Measure recommendation document.

Related:
Proposed sidewalk sitting ban prompts debate, protest [06.12.12]
Mayor seeks to put sit-lie ordinance on November ballot [06.01.12]
Police step up patrols on Telegraph to keep sidewalks clear [05.01.12]
Newly cleaned up downtown hopes to attract more retail [04.04.12]
Anti sit-lie campaigners take protesters to City Hall [04.27.11]

Want to get a digest of all the day’s Berkeley news in your email inbox at the end of your working day? Click here to subscribe to Berkeleyside’s free Daily Briefing.

Print Friendly
Tagged , ,
  • The Sharkey

    Yes, it is.
    The crowd outside the main Library, at least, is much worse than usual.

  • julie

    I don’t like the way the BUSD spends its money either. Thanks for allowing me to make a typo ( sincerely ).  Many of the same people argue back and forth, and may times it is the same people, and I don’t think Berkeleyside represents the city. One CANNOT put a civil rights question on the ballot. This isn’t working in SF, it isn’t working in Santa Monica. Berkeley is cited to be one of the cruelest cities toward the homeless. I believe we are number 8, the last time I looked, which is shameful. Has anyone checked the real data? Nope.  Goodnight. 

  • serkes

    Saul’s makes their own pastrami now – we had it last night and it was wonderful … though I didn’t have a chance to say Hello Dalai to thank him.

  • serkes

    When I move to Berkeley in 1974, I’d often walk up the street to browse Cody’s and Moe’s books.  For many years before Cody’s closed in 2006, I asked Carol if she wanted to to come to Cody’s with me.  She’d always say no – she didn’t feel comfortable on Telegraph Avenue.

    One of my mentors always said “Get out of judgment and into curiosity”
    So … I’ll simply ask you how ” Andy Ross and the Telegraph Business Association have gone much farther toward destroying Telegraph than the street people.”

    I’m curious.

    Ira

  • serkes

    “But instead of capitalizing on the tourist value, as they had in the past, they do their best to destroy their best assets”

    It seems to me that People’s Park is on the liability side of the balance sheet … but I’ve really not been there that many times (perhaps the stories about broken glass on the sand volleyball courts colored my judgment)

    OK you creative people … how would you market People’s Park to all those people from around the world?

    Talk of the Nation had a show about New Jersey a few years ago … I was thrilled when they read my suggested tourism slogan on the air.

    “New Jersey, not just for criminals”

    Ira

  • SimplyMeAgain

    Berkeleyside posted a link to an MSNBC item about the  “sit/lie” ballot item.  The MSNBC piece references East Bay Legal Center’s  Osha Neumann feels Berkeley agencies tasked with serving the homeless population were not surveyed by the mayor and council members about the proposed ballot item. Osha might want to look at recent Facebook postings by Berkeley agencies showing Mayor Bates discussing what?? something?? with these organizations.

  • The Sharkey

    Well, the best way to market it would probably be to look at other historic sites that draw visitors and try to replicate what they do that visitors seem to like.

    I’d probably start with interpretive panels dotted throughout the park talking about different events (maybe add an audio walking tour), put in some nice new bathrooms, and institute curfew and loitering laws.

    In order to draw a crowd People’s Park: The Tourist Destination would need to look a lot different from the way it does now.

  • The Sharkey

    Worthington, Arreguin & Anderson: W.A.A.

    The three big cry-babies who don’t believe in the Citizens of Berkeley enough to want to give them the right to vote.

  • Scottyduck

    I’d say “I wouldn’t spend a dime in those fascist establishments.”

  • Scottyduck

    One look at the red state, christian coalition, republicans that have taken over Tom Bates and his friends and you would cringe to your toesies. At the Chamber of Commerce speech they set up a table blocking the sidewalk ( The laws are for the poor only.)  And then some repub creep was standing out there feeling up all the ladies (Or men in drag, I couldn’t really tell.) as they came in. It was a shocking dose of reality for me. Brrrrrrrr……

  • PragmaticProgressive

    Something like the Freedom Trail in Boston would be good — self-guided walking tour to various spots of interest, with the option of a guided tour.  But the destinations would have to be cleaned up.

  • PragmaticProgressive

    “red state, christian coalition, republicans that have taken over Tom Bates and his friends ”

    If you think that’s what Berkeley is, you are seriously misinformed.  

  • Sally Hindman

    I’d say, “Great, which of the one gazillion diverse restaurants do you want to eat at–and which theater or movie would you like to visit afterward?”

  • Sally Hindman

     Hmmm. What is tough love in this case? When the City did it’s last survey of the youth on Telegraph Avenue, 85 percent reported having experienced physical or sexual abuse. At least twenty percent were found to be GLBTQ youth who had left challenging situations at home or in their home town. Is THAT what you mean by tough love?

    Berkeley has NO daytime drop in services or place for homeless for homeless youth to go. And our 30 bed youth shelter is only open six months out of the year–Nov. to May.

    I don’t call ANY of this LOVE–tough or not. It’s the absence of BASIC needed services for youth in our community.

  • hardlyaguest

    The police are the leading edge of our shovel and the council is the handle. If we really want to scrape this crap off the streets, we need a regime change. Remember it begins at home. No More Left Overs!

  • Guest

    I hear ya, hardlyaguest.  But with the exception of three IDIOTS sitting in the council chambers, I was darned impressed by my elected officials at the last council meeting.  Mayor included.  

    I do want the police to not only enforce this next measure, but all the other citable offenses n the books.  Maybe Kusmiss of BPD has to go? 

  • Chrisjuricich

    There is entertainment downtown which my wife and I will avail ourselves of periodically. I used to visit the bookstores fairly often but I’ve turned digital in large part so that is less of a draw. I have no particular problem with the prices downtown…

    The homeless and disenfranchised kids? No problem. It’s the complete and utter waste of time looking for parking.
    I rely on my bike for grocery shopping as much as possible, but going downtown to shop on my bike just isn’t all that much more convenient, either.

    It’s the parking and the high rates per minute.

  • hardlyaguest

    While I understand feeling encouraged by the council vote, the fact remains that special interest groups have used our staggered district elections and the general apathy among Berkeley’s taxpayer class to turn the City Council and School Board seats into lifetime appointments. 

    Seriously, in a district with more real geniuses than many countries, can Kriss Worthington actually be the best man for the job? Year, after year, after year? And why do the San Jose Fire Fighters contribute to his campaign? And so on down the list. 

    This long bust after the big boom has dragged the high cost and poor performance  of COB and BSUD operations out into the daylight. When it’s a real struggle to pay your property taxes and all the special assessments that go with them, we can’t shrug off the systemic problems with “Well, that’s just Berzerkely!” any longer.

    30+ years of ‘Left Overs’ rule is enough. Is this democracy when the same dozen faces have been in office since my kid’s math teacher was born?  

  • bgal4

    why are you attacking Sgt Kumiss ? do defect from the Chief’s poor judgement?

    and furthermore the rest of the council has been dragging on this matter for how many years
    http://www.ci.berkeley.ca.us/City_Manager/Home/Public_Commons_for_Everyone_Initiative.aspx

  • bgal4

    the council will be deserving of praise IF they ever implement program evaluation requirements for all those CBO they pander to and fund.

    The HAC does good work in assisting with SSI application, however they also engage in some questionable practices. Does the city and council review  the various CBO programs for alignment with the city’s strategic plans for homeless services prior to funding? Are there annual evaluation for outcomes and affinity to program goals?

    How many years have gone by since the City Council admitted that without evaluation the are simply rubber-stamping failed programs and funding special interest groups?

  • Guest

    No, no, bgal4, I don’t mean to dump on Kusmiss.  I seriously DON’T KNOW why our panhandling laws and other ones that I’d like to see applied IN ADDITION to this new mesure aren’t getting strictly enforced to begin with.  I was asking if Kusmiss is part of the problem, that’s all.  I support our local law enforcement. 

    As for the city council … I think they learned something last meeting. 

  • bgal4

    it all starts at the top, police policies are established by the CM who is directed by the Mayor and Council. Kumiss is just a Sgt, she takes orders.

    Berkeley does not enforce any laws consistently and it could be argued fairly, Berkeley practices selective enforcement is response to complaints and the city benefit when it is convenient.

  • julie

    The article reads 600 comments. Is it possible to see how many people are posting, since many post several times. Thanks.

  • George Dorn

    I live near downtown and work right there, in the middle of everything. It’s great to be able to walk to work, and my wife also walks (during daytime only) to various classes near campus and downtown. After living in Berkeley for 25 years I’ve almost got the knack of reducing the panhandlers and crazies to a subliminal level, while also developing a “personal radar” for avoiding, or at least steeling myself against, the people who are going to get in my face or in my way. So I don’t have the shocked reaction of the people who post “visited once, never again” stories.

    But when I visit an area like Elmwood, Rockridge, Fourth St., Piedmont Avenue, the neighborhood near Monterey Market, or Park Street in Alameda, it’s like that saying that after you’ve been banging your head against a wall for years, it feels so good when you stop. When we “hang out”, those are the places we go. I do sometimes visit Telegraph by myself for Moe’s, Shakespeare…and that’s about it.

    Oh, and I’ll vote for the ordinance, but I don’t think it addresses the real problem more than symbolically. Back in 90’s, Measure O was passed as a sort of “compact” between the citizenry at large and “homeless advocates”, where increased city services would go hand in hand clamping down on street nuisances. But the bargain largely wasn’t kept: aside from outlawing hovering next to someone while they’re at an ATM, the city didn’t have the political will to defend the measure against suit by the ACLU of Northern California. The history is summarized in a Daily Cal article from a few years back: http://www.webcitation.org/68TyeAGah

  • George Dorn

    I think it’s being targeted because it’s an objectively identifiable behavior (unlike “aggressive” vs. non-aggressive panhandling) and it’s not a momentary phenomenon (like standing too close to a passerby, forcing them to dodge around you). So it doesn’t run as much risk of being entangled in legal shenanigans or political rhetoric about the subjectivity of enforcing a proposed law.

    Aside from those factors the ordinance is probably more of a political trial balloon to see whether the populace will support more general moves to impose regulations on behavior in public spaces.

  • George Dorn

    I agree. Perceptive.

  • Cammy

    Santa Monica in the 1970’s had many of the same problems as Berkeley. It is much different now. Unfortunately, SF and Berkeley don’t have a very “family friendly” feel at night, or in some parts in the day. It’s got the University, lots of theater, music, culture, but there are so many things that could be done to make it more palatable. Even when I went to UCLA in the 1980’s there were problems, and that has changed. Someone needs a vision.

  • sky

    (clearly someone who has no idea what Food Not Bombs is)

  • sky

    Are you seriously implying that there are no conservatives in Berkeley? I ask again: is it possible that you even live here????
    Maybe you just don’t realize that conservative does not automatically equal Republican

  • sky

    Wow. i never thought I would agree with you, Pragmatic progressive… but although I have a different end view, I completely agree: making a distinction between then and now is primarily about how old you are, I believe.

  • sky

    They have been there for 4 weeks, Sharkey. There have been many worse crowds that I have been around… 
    And they are NOT that much worse than usual, imo. Maybe a bit noisier than usual, but then again, they are young. 

  • sky

    Concerts in the park would be a good start. Festivals, as we have had before…
    World Music, Folk music…

  • sky

    As far as Andy Ross: buying Cody’s, then opening two more locations, sucking all the money out of the original location to fund the new locations, closing down the original location, then the other two… this leaves a bad taste in one’s mouth.
    By the way, I like the point that you make that it has been this way for a long time. This is not some new issue because of 20 kids on Shattuck.
    I have seen Telegraph businesses be open and friendly to everyone, and generally do very well. Policemen walking a beat had a generally positive effect, since they got to know everyone. Seeing the street people as a “colorful cast of characters” in the past caused everyone to have a more friendly relationship. Attacking and arresting people leads to a much more hostile atmosphere. 
    (Kings generally become aware of this principle)

  • serkes

    I guess applying the Milo Minderbinder business plan wasn’t such a good idea.

    Ira

  • sky

    to say the least.

  • serkes

    The Milo Minderbinder business plan?

    Ira

  • sky

    >wasn’t such a good idea

    to say the least.

    I am interested, however, to hear your thoughts re: police beat & friendly businesses.

  • sky

    Are they that much worse than the usual BART rotunda crowd? Come on.

  • Bruce Love

    Thank you Councilmember Capitelli who writes:

    Last week the City Council asked the City Manager to develop language for a November 2012 ballot measure that would regulate sitting and lying on sidewalks in commercial districts. The regulation is not intended to be an upfront enforcement mechanism (two warnings would be given before a citation would be written), but another engagement tool for our Downtown Hospitality Ambassadors, giving them opportunities to dialogue with street people and hopefully to establish relationships that may well lead them to services, support and housing.

    thus helping to ensure that Berkeley will rightfully lose the lawsuit that will ensue should it pass.  Oh, yes, and also exposing the hypocrisy and naiveté of the council majority on this matter.

  • Bruce Love

     Earlier this year the United States Interagency Council on Homelessness and the Department of Justice published a report called “Searching Out Solutions: Construct Alternatives to the Criminalization of Homelessness.”

    In addition to suggesting programs of constructive solutions, it pointsout that laws criminalizing homelessness easily run afoul of the US Constitution and, incidentally, may also violate international human rights law:

    Here is an article about it:

    http://jurist.org/paperchase/2012/04/criminalization-of-the-homeless-may-violate-human-rights.php

  • Bruce Love

    Local measures that criminalize homelessness are cropping up around the country but Rhode Island has gone a different direction by passing civil rights legislation to protect the homeless from discrimination in such matters as the use of public space:

    The “Homeless Bill of Rights”:

    http://jurist.org/paperchase/2012/06/rhode-island-lawmakers-pass-homeless-bill-of-rights.php

  • The Sharkey

    Really? How would a letter from a Council member written before the final draft of the ordinance has been written, much less voted on by the community and put into practice ensure that the City will lose the inevitable lawsuit from “civil rights” concern trolls?

  • The Sharkey

    Among the rights
    ensured by the bill are the right to move freely in public spaces and on
    public transportation, the right to obtain identification and register
    to vote, and the right to be free from harassment by law enforcement. It
    also forbids employment discrimination based on homeless status and
    grants a “reasonable expectation of privacy in …personal property to
    the same extent as personal property in a permanent residence.”

    … absolutely none of which would be infringed upon by the proposed sit-lie ban, if the final proposal is anything like the (very rough) draft.

    • Not being able to sit on the sidewalk in business districts during business hours does not infringe on anyone’s right to move freely in public spaces or on public transportation.
    • Not being able to sit on the sidewalk in business districts during business hours does not infringe on anyone’s right to obtain identification or register to vote.
    • Not being able to sit on the sidewalk in business districts during business hours does not infringe on anyone’s right to be free from “harassment” by law enforcement.
    • Not being able to sit on the sidewalk in business districts during business hours does not infringe on anyone’s right to employment equality.

  • The Sharkey

     Thankfully, a law prohibiting sitting on the sidewalks in business districts during business hours does not criminalize homelessness.

  • Bruce Love

     

    Thankfully, a law prohibiting sitting on the sidewalks in business
    districts during business hours does not criminalize homelessness.

    The United States Interagency Council on Homelessness and the US Department of Justice don’t seem to agree with you, Sharkey.

    http://www.usich.gov/resources/uploads/asset_library/RPT_SoS_March2012.pdf

  • Bruce Love

     

    Really? How would a letter from a Council member written before the final draft of the ordinance has been written, much less voted on by the community and put into practice ensure that the City will lose the inevitable lawsuit from “civil rights” concern trolls?

    Councilmember Capitelli has kindly added to the documentation of legislative intent.   He has clarified that in his view the measure’s target is a class of people (“street people”) and purpose is to create further opportunities to single out and bother that class of people of under color of law.

    Of course, opponents have said it was just that all along.   It is refreshing to hear a proponent state his agreement so directly.   Usually legislators are more worried about keeping up the appearance of Constitutional legitimacy.

    Councilmember Capitelli has also done a positive service in this regard:

    If we take his words at face value then he should be satisfied by any mechanism that creates more “opportunities to dialogue with street people and hopefully to establish relationships that may well lead them to services, support and housing.”   No prohibition against sitting or newly defined crime is needed to achieve that aim.   We should expect that he will be open to alternative approaches to achieve his stated intent.

  • The Sharkey

    Is Councilmember Capitelli writing the legislation?
    Will Councilmember Capitelli be in charge of enforcing the legislation?

    No?

    Then “his view” of an as-yet-unwritten legislation is irrelevant.

  • The Sharkey

    Perhaps I’m missing the appropriate footnote, but it would appear that the linked opinion paper was written solely by The United States Interagency Council on Homelessness, and is not a joint publication with the DoJ.

    The opinion of the ICoH is irrelevant, legally speaking, and a ban on sitting on the sidewalks in business districts does not prevent the City of Berkeley from embracing some of the “constructive solutions” proposed by the ICoH,

  • Bruce Love

     

    Perhaps I’m missing the appropriate footnote, but it would appear that
    the linked opinion paper was written solely by The United States
    Interagency Council on Homelessness, and is not a joint publication with the DoJ.

    DOJ is co-sponser and published the report here:

    http://www.justice.gov/atj/publications.html

    as part of their “Access to Justice” project.

    The opinion of the ICoH is irrelevant, legally speaking,

    The relevant part of the report is not expressing any opinion of ICoH.   Rather, it cites the outcomes of a number of legal challenges.   It deals in facts.

  • The Sharkey

    My mistake. While the document appears to have been written solely by the ICoH, the DoJ is definitely listed as a “sponsor” at the end.

    I disagree, however, with your characterization of the publication. It reads, to me at least, like an opinion piece that has a lot of suggestions and, as they put it, “explores themes and solutions.”

    What section do you think is most relevant to the rough draft of the proposed sidewalk sitting ban here in Berkeley? While I agree with you that equality of enforcement is extremely important so that such a ban does not target any specific group, I’m not sure which part of this report you think concretely proves that the sort of sitting ban being proposed would “criminalize homelessness” or run afoul of the Constitution.