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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."
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