New: Berkeley’s New Anti-Poor Laws­
What Are They?

Carol Denney
Sunday June 28, 2015 - 11:58:00 PM

> June 30 > 6:00 p.m.: Rally at Old City Hall (2134 MLK Jr Way) > 7:00 p.m.: City Council Meeting (2134 MLK Jr Way)

Berkeley City Manager Christine Daniel has re-tooled the March 17, 2014 anti-homeless proposals from the Downtown Berkeley Association (DBA) for Berkeley City Council approval on June 30th. She dialed back some of the DBA’s more extreme suggestions-- she even pointed out that they are currently enforcing laws against behavior which is perfectly legal-- but obediently developed some new recommendations on behalf of merchant groups hostile to sharing public space with poor, homeless, transient and traveling people: 

RECOMMENDATION 1. Adopt first reading of an Ordinance amending Berkeley Municipal Code Section 13.37.020 to add a provision that it is unlawful for any person to solicit another who is making a payment at a parking meter. 2. Adopt first reading of an Ordinance adding Section 13.36.040 to the Berkeley Municipal Code Regulating Lying in City-Owned Planters. 3. Adopt first reading of an Ordinance amending Berkeley Municipal Code Chapter 14.48 to ensure that public streets, and especially sidewalks, are fully accessible and usable for the purposes for which they were constructed and are intended, specifically the movement of pedestrian and vehicular traffic and goods. 4. Adopt first reading of an Ordinance adding Section 13.36.085 to the Berkeley Municipal Code prohibiting urination and defecation in public places. 

The first provision (#1.) expands Berkeley’s current prohibition on panhandling within ten feet of an Automatic Teller Machine to include a prohibition on soliciting anyone in the act of making a payment at a parking meter. 

The second provision (#2.) expands Berkeley’s prohibition on lying on the sidewalk to include lying on the walls and interior of downtown planters unless there is a medical emergency. 

The third provision (#3.) has detailed provisions prohibiting anyone from putting anything on the sidewalk which exceeds two square feet for more than one hour unless the person gets a permit from the traffic engineer, a measure clearly aimed at the people who traditionally share their artwork, crafts, or political materials and collect donations along the streets. 

The fourth provision (#4.) makes it a crime to urinate or defecate in a public place (already prohibited under California law) or any place “exposed to public view”, more inclusive language which would cover private property near a public area such as an alley or doorway without creating any additional access to bathrooms – in fact, the DBA is on record recommending against adding a public bathroom to the (yet again) BART Plaza redesign on the grounds that it would constitute “an attractive nuisance.” 

The City Manager’s assumption in the third and possibly most problematic provision is that the First Amendment rights of artists, signature collectors at tables, people with political displays, etc., have to be “balanced” with concerns about “economic vitality” which is presumed to be negatively affected by the presence of First Amendment activity. The words “vital” or “vitality” appear eight times in the document. The words “aesthetic” or “aesthetic” appear six times, with additional phrases which work overtime to avoid stating overtly the crisis of having some scruffy guy spoiling “an aesthetically pleasing streetscape.” 

It’s worth noting that the ordinance Daniel is attempting to re-word was born in the 1950’s as an effort to curb problematic merchant behavior on behalf of pedestrians, who were tired of trying to navigate through streets cluttered with chairs, tables, signs, and displays of goods blocking the public right of way. 3262 N.S. 12.1 was dusted off in the early 1990’s by Chief of Police Dash Butler for use only against poor and homeless people until civil rights advocates brought the pattern and practice of its discriminatory application to the attention of, of all people, Councilmember Linda Maio, who had the clarity of mind in those days to call for a halt to the obvious discrimination. 

But times have changed. The city now creates special permits for the permanent acquisition of public space by adjacent merchants adjacent to sidewalks. And the struggling kid with the hand-painted cards hoping to raise enough through donations to make it through the week can just go fish.