Four months after the City Council voted to put in place two new ordinances that would essentially take Mayor Kirk Caldwell’s “compassionate disruption” approach to homelessness islandwide, enforcement has yet to get underway.
The limbo status tagged to the new laws, known as the sidewalk obstruction and no-lodging ordinances, is both exasperating and puzzling. The Corporation Counsel’s office, which represents the city in legal matters, has declined to sign off on the laws, but has also failed to publicly specify why.
Last week, a Corporation Counsel official said the office, in tandem with Caldwell’s administration and the Honolulu Police Department, are sizing up questions regarding whether the laws can be tweaked or should be scrapped for fresh proposals.
Here are some more questions pertaining to the new ordinances, which are separate from established sit-lie, stored-property and sidewalk-nuisance laws: What needs tweaking, exactly? Why has Honolulu Hale kept the public in the dark about this no-go tactic? And why does it take so long to sort out such legal matters?
The city put in place its first sit-lie law five years ago, in Waikiki. Five more have followed — resulting in the current count of 15 commerce-
focused areas in which sitting or lying down on public sidewalks and in pedestrian malls is banned during business hours. The strategy has delivered mixed results.
Enforcement sweeps mean fewer tents and tarps pitched near sidewalks and curbsides. Also, fewer piles of accumulated camper possessions and trash spilling onto public walkways. But sweeps have also resulted in too many homeless campers shuffling to and from various neighborhoods, and too few seizing the opportunity to get help at shelters and assistance centers.
Caldwell’s administration had been leery of proposals to create an islandwide sit-lie ban due to potential legal challenges. Among the concerns: In the absence of easily accessible shelters, a wide-reaching ban could be viewed as essentially criminalizing people for sitting, sleeping or lying on sidewalks — something that might be viewed as cruel and unusual punishment, a violation of the Eighth Amendment.
The initial draft of the no-lodging ordinance, which bans lodging on a public sidewalk or other public places, seemed to counter that concern as it linked enforcement to the availability of shelter space. It stipulated that a law enforcement officer cannot issue a citation or make an arrest unless “shelter space is readily available” and a transport offer is extended.
A possible snag in the new law is linked to a last-minute add-on provision.
The law’s initial holdup in October occurred when Councilwoman Carol Fukunaga inserted language stating the city could not begin enforcement of the new laws until the Council first approved, via resolution, an updated homeless action plan, which was drafted in 2013.
In December, when the Council signed off on the resolution, it included an add-on directive that limits transport of homeless individuals to services and shelters within the city district in which they are picked up. Fukunaga has said it’s needed to avoid unfairly burdening areas with the most shelters and services for the homeless.
In response, Caldwell has said that such limitation could render the no-lodging law, or possibly both laws, unworkable and possibly unconstitutional. The islandwide sidewalk obstruction law bans blocking the “full, free, and unobstructed passage of pedestrians upon public sidewalks,” from 6 a.m. to 10 p.m.
It’s unclear whether the limit on transport or something else is holding up enforcement of the new laws. What is clear, though, is that Honolulu Hale owes the public an explanation as homelessness continues to be one of the most pressing problems confronting the city.
