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Next Steps for the Public Commons

By Judith Scherr
Friday November 30, 2007

While enforcement for new restrictions against those lying on the sidewalk and smoking in commercial areas will likely begin within six weeks, new services—lauded by supporters as an integral part of the Public Commons for Everyone Initiative passed by the City Council Tuesday—will take more time. 

Police spokesperson Lt. Wesley Hester told the Planet Wednesday that the resolution making it easier to cite people for public “lodging” will kick in only after the police chief gives officers specific directions for implementation.  

The resolution amends local guidelines for enforcing a state law prohibiting “lodging” to require one warning and no complaint, with enforcement a low priority between 10 p.m. and 6 a.m.” (The original resolution required two warnings; the citation was complaint-driven.) 

Attorney Osha Neumann told the council Tuesday that police were not waiting for the council to approve the new laws to crack down on the homeless. He alleged that they began as soon as the council approved the concept of the Public Commons for Everyone Initiative (PCEI) in June. 

Neumann spoke of three clients he said had been wrongly cited by police.  

A disabled woman who uses a wheelchair was cited for loitering near a school in Willard Park (next to the middle school) during the day, he said. A young man sitting against the locked gate of an empty store on a public sidewalk on Telegraph Avenue was cited for trespassing, he said.  

And a 62-year-old woman who uses a wheelchair, is legally blind, has been diagnosed with Tourette’s syndrome, diabetes, arthritis, cancer and schizophrenia and is in constant pain, was cited for trespassing as she was sitting in a doorway of an empty storefront on University Avenue, Neumann said. 

The council had requested but was unable to obtain documentation on the frequency of quality-of-life citations, prosecutions and convictions—and the city manager’s office denied the Planet’s similar Public Records Act request—saying it was not possible to get that information from the Berkeley Police Department’s computerized records system. 

At the meeting, Councilmember Linda Maio repeatedly asked the police representative and city attorney how the prohibition against “lodging,” a state law, was implemented in Berkeley. She said sleeping people should not be harassed and wanted to be sure “people would still be able to sleep in sleeping bags.” 

The response was non-committal. “There would be no change in how we apply the law,” responded acting City Attorney Zach Cowan.  

“The main difference is that we could act without a citizen complaint,” Capt. Eric Gustafson, sitting in for the police chief, added. 

Maio pressed for specifics: “Under what circumstances would you invoke this law?” she asked.  

Gustafson said he could not think of an example, and Maio said: “We’re being asked to change something that is broken, but we don’t know what is broken about it. Why is it that we would disturb someone who is sleeping in a doorway?” 

The Berkeley Police Department Training and Information Bulletin Number 220 says: “…647(j) [the state law prohibiting lodging] applies when there is probable cause to believe that the person is lodging outside for the entire night on public property … Factors to consider in deciding whether to cite for violation of PC 647 (j) include whether the person: is on or in a sleeping bag or bedroll; is sleeping; has other belonging[s] clustered around and/or otherwise appears to be staying for the entire night; appears or is reported to have been at the location for an extended period of time.” 

Asked by the Planet for specifics about how officers currently implement prohibitions against lodging, Hester said it is up to an officer’s discretion.  

Asked to explain enforcement as “low priority,” Hester gave an example: if a person is seen “lodging” and if a robbery is in progress, the officer will respond to the robbery. 


New Ordinances 

The ordinance expanding prohibitions against smoking to larger areas within commercial districts, in parks and near health facilities, child care facilities and senior centers, and the ordinance prohibiting lying in all commercial areas will get a second reading at the Dec. 11 council meeting and take effect 30 days later. 

To pay for new services, new revenue—an anticipated $1 million annually—will be raised from a 25 cent per hour increase in parking meter rates. The council will consider an ordinance to that effect in January. Lauren Lempert, consultant on the PCEI, told the Planet Wednesday she expects meters to be recalibrated by March.  

To approve new services, the council must pass specific ordinances or resolutions and then approve contracts with vendors. In some instances, vendors will bid on the services.  

Lempert said she thinks increased advocacy for homeless persons to get disability payments, Medi-Cal and food stamps (for which the council has tentatively set aside $78,000) could begin soon after the council formally approves the services, given that the Homeless Action Center already does this work and can be asked to expand it. 

Lempert said expanding bathroom hours could happen in January or February (for which $142,000 is set aside) and new supportive housing for 10 to 15 of the city’s most difficult to house chronically homeless people (at $350,000) could be in place by April. 

Services that will go out to bid will take longer to implement. With council approval, they could include hiring “hosts” (at $200,000) to watch commercial areas for inappropriate behavior and help tourists and increasing public seating and trash receptacles (at $60,000). 

In a report to the council on PCEI, Lempert referred to the possible establishment of a community court where people would not be criminalized for acts of lying on the sidewalk, lodging, smoking or other quality-of-life offenses, but instead be allowed or required to perform community service and go into mandatory drug/alcohol treatment programs. The report does not include a formal proposal or costs for the court. 

As the new laws kick in, opponents of the Public Commons initiative promised to continue to fight it, with local resident Carol Denney telling the council to expect a “lie-in” on the sidewalk at the Downtown Berkeley Association offices.