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Battle Over Sidewalk Use Returns to Council

By Judith Scherr
Friday November 23, 2007

Residents in the vicinity of Magee Avenue and Blake Street became very much alarmed yesterday afternoon over the actions of a stranger. In fact, they became so alarmed that the marshal’s office was called upon to investigate the case and protect the people from what they supposed was a maniac—and all because the man was so thoughtless as to sit down on the edge of the sidewalk and remove one of his shoes. 

—Berkeley Daily Gazette, July 16, 1905, as cited by Richard Schwarz in Berkeley 1900. 


The Public Commons for Everyone Initiative, targeting people with behaviors some consider inappropriate for shopping areas, comes back to the City Council Nov. 27. It’s a proposal to enact restrictions on lying on the sidewalk and smoking in commercial areas, and it also calls for raising $1 million from increased parking meter fees to fund, in part, services for difficult-to-serve people with mental illnesses and drug and/or alcohol addictions. 

The controversial set of laws and possible services, proposed in various iterations over seven months by Mayor Tom Bates, pits some mental health and homeless advocates, who say the plan further criminalizes homeless and mentally ill persons, against many in the business community who argue that people with inappropriate behaviors keep shoppers away. 

The proposal the council will debate on Nov. 27 satisfies neither those in the business sector who wanted stronger prohibitions against inappropriate street behavior, nor advocates for homeless, addicted or mentally ill people who called for increasing services without the stick. 

If the plan were approved next week, lying on the sidewalk in all commercial areas would be banned, with police citing violators after one warning. The citation would not have to be complaint-driven. (The current law applies to fewer streets and requires two warnings and that the citation is complaint-driven.) 

The proposed law says enforcement would remain “low priority” between 10 p.m. and 6 a.m., except when there is a complaint against the individual or there is a history of chronic problems of persons “lodging without consent” in a given location. 

Smoking would be banned on commercial-area sidewalks. 

Roland Peterson, chair of the Berkeley Chamber of Commerce board and executive director of the Telegraph Avenue Business Improvement District, says the proposed ordinances are weak.  

“Originally, I wanted to see no long-term sitting on the sidewalk,” he said. “So many people sit on the sidewalk and accost [others].”  

The council removed sidewalk sitting from Bates’ original proposal, saying it would reconsider it later in light of results from the other restrictions. 

Peterson had argued there should be no warning—“like most laws,” he said—before an officer cites people lying on sidewalks. 

Peterson was also critical of the no-smoking-in-commercial-areas component. “The issue is not smoking,” he said, explaining that smoking restrictions fail to address the central issue: inappropriate street behavior.  

While the lying and smoking restrictions would kick in 30 days after the ordinances get a second reading—Dec. 11 if the council gives its approval Nov. 27—the proposed services, if approved, would take longer to get started. 

If the council votes in concept on Nov. 27 to increase the parking meter rate from $1 to $1.25, the city attorneys still have to write a resolution to that effect to come back to the council at a later date. The meters would then have to be recalibrated and the increased funds collected to pay for any new services. 

Meanwhile, the council has yet to decide what services to provide and who would provide them if the money became available. 

The programs proposed in the staff report for Nov. 27, prepared by Management Analyst Lauren Lempert, who was hired at $7,200 per month to put together the initiative, include increasing the number and availability of public toilets, providing housing and support services to 10 or 15 of the most difficult to serve chronically homeless persons, expanding services for older teens and young adults, providing advocacy for people to obtain disability benefits, and more. 

Responding to the proposal, the Homeless Commission said in a report to the council that the concept remained too undeveloped to consider. “The Commission cannot support the enforcement aspects of the initiative without the opportunity to review them in the context of a fully developed plan that includes new housing and social services opportunities,” the commission wrote. 


Public bathrooms 

While the initiative underscores the need to treat public urination and defecation as an infraction, which police are more likely to enforce than a misdemeanor, the plan before the council Tuesday says the city will write no new laws prohibiting public urination or defecation until a sufficient number of public toilets becomes available. 

The initiative proposes spending $142,000 to increase the number of public bathrooms available, including new “porta-potties,” and increasing public toilet hours. The bathrooms would be cleaned through a work program designed to put unemployed people to work, the staff report said. 

The initiative includes a “visitor restroom program” on Telegraph in which business owners would open their restrooms to the public and the city would pay a stipend to them for restroom upkeep. 


Supportive housing 

For the Homeless Commission, Councilmember Dona Spring, Osha Neumann, attorney and advocate for homeless persons, and others, the most important component of any plan to help people with mental health or drug and alcohol issues get off the streets is housing linked to supportive services.  

Spring pointed out that the plan has to take a long-term view—it takes years to stabilize someone on the streets with multiple needs, she said. 

The staff proposal would dedicate $350,000 to housing subsidies and coordinated intensive services for 10 or 15 chronically homeless adults “who are hardest to reach and most likely to [exhibit] problematic street behavior.”  

Spring pointed to the difficulty of selecting which people receive these services, noting that some have been on waiting lists for such services for years. “We need to serve 10-to-15 people one hundred times,” she said. 


No Smoking 

The proposed ordinance expands prohibitions against smoking to include commercial areas, designated by streets, senior centers, health facilities and parks.  

Asked how the new law would affect small-business owners or their employees alone in their shops, who frequently step outside for a cigarette break, Lempert told the Planet that there won’t be “a cop posted outside every store.”  

The ordinance will be enforced by “peer pressure,” she said. “It will be complaint driven.” 


No Lying  

Neumann told the Planet he believes from talking to his clients that as soon as the mayor proposed new laws last spring, police in the Telegraph area stepped up ticketing homeless people for so-called “quality of life” violations, such as lying on or obstructing the sidewalk. 

The Daily Planet submitted a public records act request to see the numbers and kinds of violations being ticketed, but City Manager Phil Kamlarz responded that the data was unavailable: “We were unable to extract the information from our data base due to the way the data entry coding is done,” he said in a Oct. 31 email. (The City Council similarly requested but did not receive this information.) 

Fearing arbitrary enforcement, Spring called the ordinances “punitive” and “a giant step backwards.  

“Even if [the prohibition against lying on the public right of way] is low priority at night, people will still be harassed,” she said, noting that the men’s shelter has a 30-day stay limit. “What do you do when your 30 days are up?” she asked. 

Responding to her own question, she answered: “You go and try to sleep in some doorway.”