As the Honolulu City Council considers new laws against urinating and defecating in public, statistics show that under a state law enacted in 2008, police have issued 213 citations in downtown Honolulu.
Laws against people relieving themselves have historically been a highly divisive subject. Proponents call it a public safety issue, while opponents say they unfairly target people who are homeless.
The city is debating a proposal that would apply only to Waikiki, as well as another that would cover all of Oahu.
The two bills — along with three related bills that would ban lying and sitting on sidewalks — are up for public hearing at the Council’s 2 p.m. meeting Wednesday at Windward Community College.
The state law prohibiting urinating and defecating in downtown Honolulu, defined as the area from Nuuanu Stream to Ward Avenue makai of H-1 freeway, was passed in 2004 as a five-year pilot project. After renewal in 2009 for another five years, supporters wanted the Legislature this year to extend the prohibition. But in response to objections, state lawmakers instead opted to extend the ban for another two years, deferring a decision on a permanent ban until more information can be gathered about plans to increase the number of public restrooms available in the area.
A violation of the state law is punishable by a fine of up to $200 or a maximum of 40 hours of community service.
State Rep. Karl Rhoads, a longtime proponent of a downtown urination-defecation ban and author of the state bill to make the law permanent, said it has been effective both as an enforcement tool and as a deterrent.
The law "should be viewed as an opportunity to send the obviously mentally ill in for a psychological evaluation, refer the person to a homeless shelter and/or check for outstanding arrest warrants," the longtime Chinatown resident said.
Rhoads said he backs both city bills.
Bill 43, backed by Mayor Kirk Caldwell, would ban urinating and defecating within the Waikiki Special District, which is defined as the area bounded by the Ala Wai Canal and Kapahulu Avenue. Bill 47, introduced by Councilman Ikaika Anderson, would apply islandwide.
Both bills have language similar to what’s in the state law and apply only to those who "intentionally" defecate or urinate in a "public place."
A public place is defined as "any publicly owned or privately owned property open for public use or to which the public is invited for entertainment or business purposes and includes but is not limited to any street, sidewalk, driveway, alley, doorway, mall, plaza, park, public building, or parking lot."
An exception is allowed for those who’ve failed to use a toilet facility because of a physician-verified medical condition, as well as people "urinating or defecating while using appropriate fixtures in any restroom or other toilet facility designed for the sanitary disposal of human waste."
"To me this is a no-brainer," Rhoads said of the Oahu-wide plan. "Does anyone seriously think that you should be able to defecate or urinate in a public place?"
Advocates for those on the street, however, say they will oppose the bans on philosophical and moral grounds.
Jenny Lee, staff attorney with the Hawaii Appleseed Center for Law and Economic Justice, said the point lost by supporters who argue the greater good is at stake is that "these are human beings we are talking about citing."
Nothing can be gained by imposing the law further, but there are consequences for those cited that could keep them from getting out of homelessness, Lee said.
Both Lee and attorney Brian Brazier, who has represented (de)Occupy Honolulu in its legal challenges against the city’s controversial sidewalk removal ordinances, said the city needs to open up more bathrooms 24 hours a day to the public, and not just the homeless, before considering extending a urination-defecation ban outside of downtown.
"Until you have a place where you can use the bathroom, and you don’t offer them an alternative way of being in compliance with the law," the net effect could be criminalizing homelessness, Lee said.
Brazier called it a basic human rights issue. "They need to offer an option for people. People need to relieve themselves, and it can’t be illegal if there’s no place to legally do that," he said.
Caldwell administration officials also raised the point about the lack of restroom facilities as a concern when they raised reservations about Anderson’s plan for an islandwide urination-defecation prohibition. Without restrooms available 24 hours a day across the island, an Oahu-wide bill may not be able to meet constitutional muster, city Deputy Managing Director Georgette Deemer told the Council Zoning and Planning Committee.
Anderson told the Honolulu Star-Advertiser that he agrees, and he urged the administration to open up more restrooms around the clock across the island, even though it might mean additional costs for upkeep and security.
His main pitch for an islandwide ban is that he believes a prohibition in only certain areas would simply push the problem into other areas of the island where the law is not in place.
As for the possibility of legal challenges, Anderson said lawsuits can be filed, but that doesn’t mean they’ll be successful. "Just because the (de)Occupy Honolulu attorney deems a law to be unconstitutional doesn’t make it so." The Council can’t be afraid to act on a matter based simply on the threat of a lawsuit, he said.
Also up for second reading on Wednesday, and expected to draw just as much divisiveness, are three bills that bar lying and sitting on public sidewalks. Critics of the "sit-lie" bills also decry them as discriminating against and unfairly targeting the homeless.
Bill 42, pressed by the Caldwell administration, would apply only in Waikiki. Bill 45, authored by Anderson and co-introduced by colleagues Carol Fukunaga and Ann Kobayashi, would ban lying and sitting on sidewalks throughout Oahu. Both are on the afternoon calendar.
In a new development, Councilman Ron Menor on Thursday introduced Bill 48, which would apply a "sit-lie" ban in areas zoned by the city for commercial and business activities only, and only between 5 a.m. and 11 p.m. That bill will be up for first reading on the Council’s morning calendar Wednesday.
Menor’s bill appears to try to mirror a Seattle sit-lie bill. That ban applies only to certain commercial areas of downtown Seattle, and only between 7 a.m. and 9 p.m.
Caldwell argues that a 24-hour sit-lie ban should be placed in Waikiki because hotels and commercial businesses there serving the visitor industry are open around the clock.
