My name is David Carlisle and I am a legal intern at the East Bay Community Law Center’s Neighborhood Justice Clinic. For eight years the NJC has worked with Alameda County residents on issues of civil rights, use of public space, and consumer protection.
I am writing to request that you remove a sign posted on the exterior of the Downtown Berkeley BART Station at the corner of Shattuck Avenue and Center Street (see attached photograph). The sign reads “No Loitering, Begging, Soliciting, Open Containers” and lists several state and local ordinances (P.C. 602.1(b), P.C. 647(c), P.C. 602.7, BMC 13.36.070, BMC 13.36.015, BMC 12.70.030, BMC 10.12.110, and B&P 25620(a)).
The sign is deceptive and chilling of people’s First Amendment right to peaceably assemble in Constitution Square, the plaza which is directly adjacent to the Downtown Berkeley BART station. Except for the ordinances prohibiting open alcoholic beverage containers (BMC 13.36.070 and B&P 25620(a)) the listed statutes do not, individually or collectively, prohibit the specified actions.
• P.C. 602.1(b) prohibits intentional interference with the business of a public agency by “obstructing or intimidating” the public. Loitering, the passive act of lingering in one location, begging, and soliciting have little in common with affirmative obstruction or intimidation of the public.
• P.C. 647(c) prohibits one from accosting people in a public place for the purpose of begging or soliciting. This ordinance has been interpreted to prohibit “walking up to and approaching another for the purpose of soliciting…the manner of approach is thus pertinent [emphasis added].” Ulmer v. Municipal Court, 55 Cal.App.3d 263, 267 (1st Dist. 1976). The Ulmer court specifically notes that “the statute does not extend to one ‘who merely sits or stands by the wayside.’” Id.
• P.C. 602.7 prohibits the selling of any “goods, merchandise, property, or services of any kind…on the property, facilities, or vehicles…of the San Francisco Bay Area Rapid Transit District.”
• BMC 13.36.015 prohibits individuals from lying on the ground or gathering more than 2 stationary dogs on commercial sidewalks from 7:00 am to 10:00 pm.
• BMC 12.70.030 prohibits smoking in specified public and private establishments including restaurants (12.70.030(a)), healthcare facilities (12.70.030(c)), sports arenas and outdoor theaters (12.70.030(j)), other enclosed spaces generally open to the public (12.70.030(h), (n), (o)), and commercial zones (12.70.090(w)).
• BMC 10.12.110 prohibits the hitching or tying of animals to fire hydrants, electrolier standards, or shade and ornamental trees throughout the city.
It is unacceptable that BART would post such a misleading sign. Neither the City of Berkeley, nor the state of California, have passed blanket bans on loitering, begging, or soliciting. Loitering, begging, and soliciting may make some individuals uncomfortable, but they are not illegal. Particularly due to the sign’s chilling effect on the public space, it should be removed immediately.