Unfounded Fears 

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

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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.

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