Two new bills being proposed by Honolulu Mayor Kirk Caldwell would give his administration further ammunition to conduct his "compassionate disruption" campaign to remove the homeless from the sidewalks of Waikiki.
Drafts of the measures, expected to be formally unveiled this week as part of a revamped strategy to fight homelessness, were contained in a memorandum sent Thursday by Caldwell to City Council Chairman Ernie Martin.
The first bill would bar people from sitting or lying on public sidewalks within the Waikiki Special District, defined in city land use laws as the area east and south (makai) of Ala Wai Boulevard and west of Kapahulu Avenue. The bill is patterned after Seattle’s so-called "sit-lie ordinance," which was upheld by the 9th U.S. Circuit Court of Appeals.
The second bill would prohibit urinating and defecating in public areas and privately owned areas open for public use within the Waikiki Special District.
A similar prohibition currently exists, in the form of a state law, for downtown Honolulu.
The "sit-lie" bill would include a number of exceptions, including medical emergencies, expressive activities, wheelchairs, carriages and strollers, parade viewing and construction or maintenance of a government entity or public utility. The language calls for no person to be cited unless they first are warned that the conduct is a violation and then continue the activity.
The Caldwell proposal calls for the prohibition to be in effect 24 hours a day, unlike the Seattle ordinance, which bars sitting and lying on public sidewalks in certain commercial areas between 7 a.m. and 9 p.m. Caldwell, in his memo to Martin, said that’s because hotels and commercial businesses in Waikiki serve the visitor industry on a 24-hour basis.
"A 24-hour prohibition would ensure sidewalk access to the hotels and commercial businesses as well as ensure pedestrian safety for the visitors and abutting neighbors," Caldwell wrote.
Robert Thomas, a Honolulu attorney who specializes in land use and government law, said he does not see the difference causing any constitutional problems for Honolulu because the key part of the 9th Circuit ruling was its determination that the Seattle law regulates conduct and not free speech.
"It’s just conduct and not free speech, and the First Amendment (guaranteeing free speech) doesn’t really kick in at that point," Thomas said.
Homeless advocates may still argue that the bill would criminalize homelessness, he said.
A number of jurisdictions, particularly on the West Coast, have sit-lie laws in place. A municipal judge in Portland, Ore., struck down that city’s sit-lie law in 2009 for being overly broad, although efforts appear to be underway to craft a new version. Opponents to such legislation may also try to tackle it through the state court system, Thomas said.
The urination/defecation bill is similar in language to the state law prohibiting people from relieving themselves in public areas downtown. Gov. Abercrombie signed a bill in April extending the downtown prohibition through Dec. 31, 2016.
Exceptions would be allowed for people who fail to use a restroom or toilet facility because of physician-verified medical conditions, and those using portable toilet facilities.
Thomas said a cursory check of U.S. law databases found prohibitions against urination and defecation to be quite common, and none has been successfully challenged and turned back.
"I think it would be awful tough to convince a court that this is unconstitutional," Thomas said. "It’s basically public hygiene."
If the two Waikiki homeless bills are passed, the actions they prohibit would be considered petty misdemeanors carrying fines of up to $500 and 30 days in jail.
The proposals are the latest developments in Caldwell’s two-pronged approach to fighting homelessness. Since Caldwell became mayor in January 2013, the city has ramped up its removal of homeless encampments on Honolulu sidewalks by enforcing existing park-closure laws and two new sidewalk laws: the Stored Property Ordinance and the Sidewalk Nuisance Ordinance.
At the same time, the administration has pressed for additional funding to provide shelter and other services for the homeless. After the mayor proposed that $22.9 million should go to start a Housing First initiative that targets the chronically homeless, the Council upped the ante by including $32 million more, through general obligation bonds, to provide shelter to needy families.
Pam Witty-Oakland, the city’s director of community services, told the Honolulu Star-Advertiser on Friday that details of how the additional funding is to be used will be provided this week as part of the revamped strategy to fight homelessness.
Witty-Oakland said the bills have two main thrusts: discourage out-of-state homeless from wanting to come to Hawaii, and "serve as a disruption" for those who are already homeless on Oahu.
"We want to get folks to that point where they say, ‘OK, I’ve had enough. I’m ready’ to take the step to go to a shelter or to get the treatment that they need," she said.
As for why the focus is on Waikiki, Witty-Oakland said both the business and resident communities have been clamoring for the city to do more to solve the homeless crisis in one of the state’s top economic engines.
"We want to be sure that we maintain pedestrian and authorized commercial activity in a safe environment," she said. "And it’s a safety concern as well."
The compassionate-disruption concept has been generally supported by the local providers and agencies that serve the homeless, Witty-Oakland said.
