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Unfounded Fears

Why the controversy over a Berkeley measure that would ban sitting on sidewalks is overblown.



Cody doesn't mind letting strangers into his bedroom, so long as they understand that his definition of a "bedroom" is pretty liberal — most people would call it a doorway. By Cody's standards, though, it's a prime piece of real estate. He sleeps in the two-by-two-foot threshold of a vacant storefront in downtown Berkeley, just spitting distance from the BART station. Once home to the All Star Cafe, it's now piled high with plastic shopping bags, rolled-up sleeping mats, and mounds of detritus. A hand-written sign in the window seems strangely apologetic: "Closed, sorry."

When Cody woke up there on a recent Sunday morning, he found himself right in the crosshairs of a contentious political debate. A small horde of activists had gathered at Constitution Plaza, the small area of benches and potted plants that surrounds the BART entrance. They were protesting a measure that landed on the November ballot in July, following a contentious city council meeting during which opponents interrupted the proceedings with songs and chants — including a rousing rendition of "We Shall Not Be Moved." The council called a recess, returned after ten minutes, and voted 5-3 to put Measure S on the ballot anyway. Members of the ACLU would later accuse the five "ayes" of violating California's open meetings law — and the council's own procedures — but as of now, the measure stands. If passed, it would prohibit anyone from sitting on sidewalks in Berkeley's commercial districts between 7 a.m. and 10 p.m. Violators would be subject to a $75 fine or community service for their first offense, and a potential misdemeanor charge for subsequent infractions.

Although highly controversial, Measure S is not revolutionary — not by a long shot. Seattle enacted its sit/lie ordinance in 1993, and communities up and down the West Coast followed suit — including liberal cities like Santa Cruz, Santa Monica, and, two years ago, San Francisco.

Officials in many cities say their sit/lie ordinances are succeeding. The former mayor of Santa Cruz, Mike Rotkin, a longtime progressive and self-described "socialist feminist," adamantly supports sit/lie laws. "This is not intended to drive people out of town or make it impossible for homeless people to live here," explained Rotkin, who is now the president of the union representing lecturers and librarians at UC Santa Cruz. "We draw a pragmatic line about what kinds of behavior are acceptable and what's not."

Proponents hope Measure S, known as the Civil Sidewalks ordinance, would help Berkeley's commercial districts, including the downtown and Telegraph Avenue areas, which have been plagued by empty storefronts and struggling small businesses. Kathleen Rawson, CEO of a business improvement district in Santa Monica, said the sit/lie ordinance that the city passed in 1997 has been a roaring success. "It's off-the-charts effective," she gushed.

Berkeley has long had a reputation as being a haven for the homeless, not only because the city is known for generous social services, but also because police tend not to penalize the city's indigent. Although there are laws on the books against drunkenness and public urination, there's very little that a merchant can do when someone monopolizes the space outside his or her doorway. Cody said he migrated to Berkeley from San Diego after that city passed its sit/lie law.

City administrators are quick to point out that Measure S isn't literally a "sit/lie" law, since lying down on the sidewalk is already illegal in Berkeley. Nonetheless, that no-lying-down law is viewed as being somewhat ineffective because many homeless people merely sit up when police approach them.

John Caner, CEO of the Downtown Berkeley Association, said that much of the frontline enforcement work under the sit/lie law would be delegated to "ambassadors" rather than to Berkeley cops. Ambassadors are employed by merchants' associations. Caner foresees a system in which ambassadors would quietly shoo homeless people away from the city's main commercial districts, making them cleaner and more pedestrian-friendly, while creating an uptick in foot traffic to bolster local businesses.

He also argues that even though Measure S includes citations, it's not viewed as way to raise revenue for the city. Rather, it's a tool to divert homeless people into social services, and protect and grow businesses that provide sales tax revenue for the city — and thus help fund those social services. "They've had a hard time renting out here because the scene out there has had a real chilling effect," Caner explained, referring to owners and managers of commercial property. He and others blame homeless people like Cody for the closure of All Star Cafe, and the demise of nearby businesses. Caner also predicted correctly that Tully's Coffee would also shutter, leaving another storefront vacant in Constitution Plaza. A mere glance at the empty windows and gutted buildings shows that the area is suffering.

As for opponents of Measure S, they generally make two main arguments against it: that it would violate the civil rights of homeless people, criminalize them, and put them in jail; and that the measure would simply move people around and ultimately be ineffective. Although the two positions are contradictory — after all, homeless people won't be moving to other areas of the city if they're in jail — the combined opposition to the sit/lie law has created a tough bulwark for proponents to topple.

From Caner's perspective, Berkeley is a city with lots of potential and an unfortunate amount of resistance. He and proponents of Measure S also contend that it's long past time for Berkeley to address its culture of panhandling and follow the model of other, similar progressive cities. Berkeley is ripe for growth — it's now home to a more affluent student population with greater discretionary income, and it's right on the cusp of becoming a busier commercial center.