Unfounded Fears 

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

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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.

Moreover, in comparison to other cities, Berkeley's civil sidewalks measure is somewhat mild-mannered, and geared toward "soft" enforcement of the kind tried in Santa Cruz and Santa Monica. Caner notes that, at least initially, it will be the ambassadors, not the cops, who will be spearheading enforcement of the law.


This isn't the first time Berkeley has attempted to pass a sit/lie law. In 1994, city voters approved a similar measure, but it was a profoundly different time for the local economy. Back then Telegraph Avenue — not downtown — was the center of gravity in Berkeley. Its cluster of book and music stores accounted for a fairly broad swath of the city's retail — Cody's and Tower Records were two of the most popular businesses in the Telegraph shopping district, and they were surrounded by a loose collection of mom-and-pops, such as Leopold Records and Blake's restaurant and bar. Now, those businesses are gone, and they've left a gaping hole in the city's economy, said Roland Peterson, CEO of the Telegraph Business Improvement District.

Meanwhile, the number of street people appears to be increasing. According to a homeless count by the local organization EveryoneHome, the number of "literally homeless" people in Berkeley dropped slightly between 2003 and 2009, but the number of "hidden homeless" (i.e., people staying in motels or couch-surfing) rose more than 900 percent. Not to mention that, with its affluent shopping demographic and traditional bleeding-heart ethos, Berkeley has long been a magnet for panhandlers traveling from other cities — that was true eighteen years ago, and it remains true today.

In the early Nineties, the Berkeley City Council included just enough pro-business types to draft Measure O, a more far-reaching sit/lie ordinance than its current analogue — it included prohibitions against panhandling twenty feet from an ATM, or six feet from a storefront. After voters passed it, the ACLU and a consortium of other nonprofits sued Berkeley in February 1995 on the grounds that the sit/lie law violated the civil rights of poor people. Opponents of the measure got a court injunction to prevent Berkeley from enforcing it, and while the battle dragged on, Berkeley held new elections and changed the political makeup of its administration.

Some supporters of Measure O were replaced in 1996, and in 1997 the new city council majority decided to no longer defend the ordinance. The city settled with the ACLU for a reported $110,000 in attorneys' fees, and passed a new law that revoked the broader provisions of sit/lie, while retaining the ban on soliciting next to ATMs.

Then in September of 1997, a federal court in Seattle upheld that city's less draconian sit/lie ordinance, thereby creating the model for other municipalities on the West Coast to follow. Similar sit/lie measures were later affirmed by courts in other locales.

But by then, Berkeley had repealed its own law. And for years afterward, the city was among the last holdouts — a place that welcomed the poor and downtrodden after they'd been shunted from other communities. Berkeley became known as a city of unflagging generosity, with homeless services that far outstripped those of other communities. At this point, Berkeley allocates about $2.26 million from its general fund to care for the homeless.

Yet during times of austerity, there's no guarantee that the city can continue spending that much money on homeless services, and supporters of Measure S argue that things could get worse because Berkeley's street culture has made it much tougher for local businesses to survive. Right now, restaurants account for roughly 18 percent of sales tax revenue in Berkeley, and many local restaurateurs contend that the city's permissive attitude is really hurting them.

Amy Murray, who owns the downtown eateries Venus and Revival, said she's had enough. "When we moved to Shattuck Avenue I was shocked by the amount of homeless people who wanted food or coffee, to use the bathroom, sit at the tables, or dine and dash," Murray said. "We had a guy who would walk by the window every single day at the same time and spit."

Murray said the problem is worsened by the perception that people have about downtown. Many residents and visitors do not want to dine there because of the large numbers of street people, some of who urinate or defecate in doorways. Having an enforceable code on the books, Murray said, would certainly help boost her customer base. "A lot of older people will just stay in that two-block area around Berkeley Rep, and not walk three blocks down," she said, pointing out that the Addison Street corridor seems to have fared a lot better than Shattuck Avenue, partly because its geography isn't all that conducive to sitting and lying.

Other merchants agree. Alberto Malvestio, co-owner of Almare Gelato, said the street people lingering outside have scared a lot of customers away from his dessert shop in the BART plaza. "People sit in front of the door, they've peed on the door, they come in asking for water or spoons," he said. His business partner, Simone Arpaio, said that, once, a panhandler came in and stole all the money out of the tip jar. "I was planning to go to dinner and use it to pay," Arpaio lamented.

But the problems these merchants grouse about aren't new — if anything, they've become more embedded in Berkeley's cultural fabric over time. Many of Berkeley's homeless have chosen living on the street as a lifestyle, and they approach panhandling with the same diligence that someone might devote to an office job. Steve, who managed to secure a coveted spot on Telegraph Avenue, right outside of Fat Slice pizzeria, says he can pull up to $5 an hour on a good day — far less than minimum wage, but not bad for a job that involves sitting on a folding chair and shaking a cup. Steve, a polite, lanky man who said he migrated to the Bay Area from Chicago, originally to work as a chef, said he has a good rapport with the manager of Fat Slice. He sees himself as an ancillary part of the business, maintaining order outside and occasionally sweeping the floor or wiping the tables. "The manager, when he sees me, he knows things are going to be cool out here," Steve said, beaming.

Berkeley's homeless population is anything but a monolith, and many of its members see themselves as boosters or securers of the local economy, rather than antagonists. Michael, who sits on the block of Shattuck Avenue between Bancroft Way and Kittredge Street, and spends his days hawking small landscape paintings for "donations" — he's been ticketed for peddling them on Telegraph without a permit — said he actually empathizes with supporters of the sit/lie measure. "I have mixed feelings," he said, bending over a wilderness painting he'd nearly completed, as an anti-sit/lie demonstration proceeded just two blocks away. "I understand that we aren't necessarily a positive addition to the sidewalk." Still, Michael said he's become part of the ambience in Berkeley, and thinks that in some ways he's made the sidewalk more interesting. The other day a family emerged from the ice cream shop, saw him painting, and sat down on the sidewalk to watch.


Even though sit/lie laws like the one Berkeley is considering have been challenged and upheld by the courts, they remain subject to intense criticism. Even with its nonthreatening and somewhat equivocal language, Measure S is, at heart, a law that criminalizes the act of sitting, said Elisa Della-Piana of the East Bay Community Law Center.

She and Carlos Villarreal, executive director of the National Lawyers Guild San Francisco Bay Area Chapter, both argue that the law would clog the courts with bench warrants for unpaid citations, divert police resources away from more pressing problems, and do nothing to actually help homelessness. Moreover, they say it could potentially violate the civil liberties of homeless people — Della-Piana points out that the measure leaves no exception for girl scouts sitting on sidewalks to sell cookies, but most likely, they won't be the ones targeted. "There's pressure on the commercial real estate folks to come up with something because we're in an economic crisis and people need to find someone to blame," she said. "Pinning this [downturn] on homeless people is a red herring."

Councilman Jesse Arreguín, who has campaigned vociferously against sit/lie — even to the extent that he introduced an abortive "compassionate sidewalks" proposal to Berkeley City Council in the hope of overruling the measure — maintains that the city already has laws against aggressive panhandling and obstruction of sidewalks, which render Measure S frivolous and unnecessarily punitive. Arreguín said he can understand Berkeley's growing animus against its homeless population, given that the student population is more affluent, the cost of living has gotten higher, and there's more pressure on downtown businesses to nourish the economy. But he also said that since the law doesn't have any actual civil services attached to it, the idea that it will somehow attenuate poverty and indigence in Berkeley is a canard. Moreover, Arreguín said there's no "tangible proof" to correlate homelessness with business drop-off. Even if business owners got rid of the panhandlers on their doorsteps, the slow economy would still be an albatross around their necks.

But perhaps the most persuasive argument against Measure S is that it won't be effective, and that it might only move Berkeley's homeless population around, rather than divert them into services. Opponents of the measure often point to a recent San Francisco City Hall Fellows report, which concluded that sit/lie statutes have done little to eradicate the homeless problem in places like Haight-Ashbury since their implementation in 2011. The Fellows concluded that sit/lie has merely taught younger, savvier panhandlers to move at the sight of a beat cop, leaving older, chronically homeless people to incur most of the citations. Many of the merchants interviewed for the Fellows' study complain that these laws haven't ultimately deterred people from sitting and lying in San Francisco's main retail districts.

But others argue that if the point of sit/lie is to bolster certain areas at certain times a day, then even a measure that temporarily moves people out of the way will help achieve the goal. Kent Uyehara, owner of FTC Skateboarding in the Upper Haight and former merchant chair of the Haight Ashbury Improvement Association (HAIA) — which helped lobby for sit/lie when it appeared on the San Francisco ballot two years ago — said his store's revenue increased by roughly 15 percent this summer. "I don't want to say that's specifically because of sit/lie," he said, adding that the measure was never supposed to be a cure-all. "But it's definitely had a positive effect on our business."

HAIA's current president, Ted Loewenberg, agreed. "It hasn't been the highest priority item for police, but they're doing a good job of it," Loewenberg said. "What's remarkable is how different it is now from what it was in fall of 2010. Back then you'd have a hard time going down the sidewalk from Stanyan to Masonic without having to walk around people with their dogs and their shopping carts."

While it's too early to tell whether sit/lie will create an appreciable change in the normal turnover of businesses on Haight Street, it's definitely affected the aesthetic of San Francisco's street culture, and proponents of sit/lie in other cities contend that, ultimately, that's good enough. The whole point is to create the perception that a city is looking after its merchants and its pedestrians — if you create that kind of attitude, then economic development will follow.

Former Santa Cruz Mayor Rotkin said that in the eighteen years since the city passed its sit/lie law, business has generally seen an uptick. The businesses that flank Santa Cruz's main thoroughfare on Pacific Avenue are a robust mix of chains and smaller boutiques. There's a Gap, a Forever 21, and a Starbucks nestled right across the street from the local company Santa Cruz Coffee Roasting. Plenty of people still put their hats out on Pacific Avenue, but the city has largely curbed its problems with aggressive panhandling and loitering. No longer will a large group of kids colonize the sidewalk to play hacky sack.


That's exactly what Caner envisions for Berkeley. Strolling briskly down Shattuck Avenue on a sunny Friday afternoon, the tall, reedy, longtime Berkeley booster tried to articulate his goal in a couple sentences. "We're not telling people to leave," he said. "We're just asking them to sit on the benches and planters." He passed a man sitting on a crate with a cardboard "spare change" sign, just a few yards from the public rest areas in Constitution Plaza. Caner strode by, well aware of the man's existence, though the two of them didn't acknowledge each other.

Development backers in other cities praise Berkeley for finally tackling its panhandling problem, though they also contend that a "soft enforcement" approach might not be good enough. The text of Measure S, with its promise of a seven-month "comprehensive outreach" program prior to implementation, is benign in comparison to laws in other cities. Even lefty Santa Cruz had to adopt a tough-love approach in order to make the law work. "It required strict enforcement initially, and stay-away orders for people who'd been arrested downtown and were acting out regularly," Rotkin explained. "Once the word gets out that you can't just be doing the kind of stuff that was going on before, then you just have to do periodic strict enforcement on about a six-month cycle."

Caner's Santa Monica counterpart, Kathleen Rawson, agreed. She said that Santa Monica benefited from having a line of hospitality workers doling out warnings — much like Berkeley plans to do — though ultimately, Santa Monica needed a law on the books and cops to enforce it. Ambassadors are perfectly serviceable for the "outreach" side of the campaign, but they're not empowered to give citations or arrest people. Rawson indicated that it takes as many sticks as carrots to make a sit/lie law work, and even though these ordinances aren't intended to be punitive per se, they usually require a few citations, at least at the beginning.

Yet it's clear that such tactics won't go over well in Berkeley, where the city council is still divided on sit/lie (the July proposal received five votes in favor; Arreguín, Kriss Worthington, and Max Anderson are vociferously against it), and the local ACLU chapter has already sent two stern letters in dissent. If Caner and his Telegraph Avenue counterpart, Roland Peterson, try to placate the opposing side with a policy of soft enforcement, they may never accomplish the long-term goal of shoring up Berkeley's economy.

Should Measure S pass, astute panhandlers like Steve and Michael will figure out how to work within the system — Michael said the law might not affect him at all, since he has a potential job lined up as a street cleaner. It's the marginal, chronically homeless panhandlers who will most likely garner most of the citations, just as they did in San Francisco and Santa Cruz. Ideally, Caner said, the city would steer these people into services.

It's a goal that some homeless care providers — among them Dr. Davida Coady, founder of Options Recovery Services — fully support. Coady said that, in her observation, many of the street people in Berkeley suffer from crippling drug and alcohol addictions, which impede them from accomplishing basic tasks — like getting a California ID that would allow access to a shelter bed. She argues that Berkeley actually has the resources, and the largesse, to assist everyone, but most people won't ask for help on their own. "Middle class and upper class people have families or jobs that intervene," Coady pointed out. "With poor people, it's up to the emergency rooms or the courts." Thus, a citation for sitting on the sidewalk could be a catalyst for getting someone's life in order. Nonetheless, many of Coady's peers think her idea of a benevolent citation system is too sanguine.

Still, Berkeley has always had a street culture; it's always been a place where people begged for spare change on sidewalks; it's perhaps the best city on the West Coast for people to adopt homelessness as a lifestyle. And the chronically homeless don't always cotton to the idea of compulsory care: Cody said he's quite accustomed to sleeping outside, and that he prefers a doorway to a shelter bed. "The last one gave me scabies," he groused. As for getting a job and being integrated into society, he said it's not an option: "I'm out here because I'm crazy."

Neither Caner nor any other sit/lie proponents can force anyone not to be homeless, and they don't have the wherewithal to patch up deeper societal problems. That said, Caner is cautiously optimistic. He's watched other cities transform in conjunction with sit/lie ordinances, and he's seen how the paradigm could work in Berkeley. Moreover, he has a strong elevator pitch. Over the past few months, sit/lie advocates have built a powerful lobby, consisting not only of downtown boosters and commercial landlords, but also a slew of local merchants: Caner counts Paul's Shoe Repair, Caffe Mediterraneum, Site for Sore Eyes, E-Z Stop Deli, Starving Musician, and Thalassa among the supporters, not to mention he has Mayor Tom Bates on his side. He walks along Shattuck Avenue these days and sees green and yellow "Yes on S" signs in many store windows.

Even if Measure S isn't a fix-all, it can certainly make street life downtown a little less convenient for Cody. If voters pass the ordinance this November, he'll have to find a new bedroom.

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