Thousands snared by law on closed parks

Waikiki resident Richard Perez found out the hard way that using a city restroom in a closed park at night is serious business.

His after-hours use of the Kapiolani Park tennis court facilities on July 6 has Perez facing more than $500 in legal costs, a jail term of up to 30 days and a criminal record. Police cited him around 12:30 a.m., shortly after he saw a sign posted at a closed Waikiki public bathroom indicated that the tennis court restroom was open 24 hours.

"I wouldn’t have walked the three-quarters of a mile to the Kapiolani Park bathroom if I hadn’t seen the city sign directing me there," said Perez, 60. "Later, I followed the lighted sidewalk by the courts to catch a bus."

While the restroom was open, an officer told Perez that it’s a crime to be in the park from midnight to 5 a.m.

Perez isn’t alone. People arrested for being in an Oahu park after it is closed account for about 20 percent of the District Court criminal and traffic cases, and most of them leave with criminal records, said Deputy Prosecuting Attorney Darryl Miyahira.

Police issued 5,420 citations from January 2003 to October 2012 at parks outside of Waikiki, said HPD Capt. Andrew Lum. From January 2010 to this month, police have issued 1,647 citations in Waikiki and 4,110 warnings, Lum said. Earlier information was unavailable for Waikiki, he said.

The city’s park closing law was directed at complaints about noise, illegal activity and homelessness.

But critics say the law has done little to reduce homelessness, added to the burden of the courts and resulted in stiff penalties for residents who caused no disturbance.

The city should take another look at its park closing policy, say City Councilman Stanley Chang (Waikiki-Ala Moana-East Hono­lulu), state Rep.Tom Brower (D-Waikiki, Ala Moana, Kakaako), some members of the Waikiki and Diamond Head/Kapa­hulu/St. Louis Heights neighborhood boards and the Kapiolani Park Preservation Society.

"I realize what the intent of this law is, but at the same time we can’t have our residents walking from one side of the street to the other and ending up with a criminal record," said Waikiki Neighborhood Board Chairman Bob Finley. "This is something that Councilman Chang has to jump on very quickly."

Finley said the board was under the impression that park closing violation fines would not be more than $25 and would not be a criminal offense when it supported the law.

Violations should be decriminalized, said William Baga­sol, supervising deputy in the Office of the Public Defender, which has handled more than 2,500 cases since 2003. These cases drive up public costs, gum up an already overburdened court system and affect the lives of defendants far longer than they should, Baga­sol said.

"In many instances they involve some prohibition of what otherwise would be lawful behavior like trying to go urinate somewhere," he said. "People shouldn’t be placed in the position of having to commit a crime versus relieving themselves."

The penalties for violations, which are outlined in Revised Ordinances of Hono­lulu 10-1.6, should more closely approximate simple trespass, Baga­sol said.

"Simple trespass is the same thing, but it’s not a criminal offense and there’s no jail time," he said.

City Department of Parks and Recreation Director Gary Cabato said in an email that the park closing law has reduced illegal activities.

There should be some sort of penalty for being in Kapiolani Park after hours, said Alethea Rebman, president of the Kapiolani Park Preservation Society. "But people should not be facing jail time for being in a closed park," she said.

The preservation society favors keeping Kapiolani Park open 24 hours a day but only if the police can keep down illegal activity and homelessness, Rebman said. Because the police were having difficulty staying on top of crime in the park overnight, Rebman supports the law but with a less severe penalty.

Linda Wong, chairwoman of the Diamond Head Neighborhood Board, said something is amiss if you can get a criminal record for walking through a park after hours.

"This needs to be righted," Wong said. "Also, they need to fix the signage immediately. They shouldn’t refer to a place where you can get a ticket."

When public restrooms in Waikiki are closed at around 10 p.m., signs at the restrooms as recently as Friday directed people to 24-hour facilities at the Kapiolani Park tennis court, bandstand and other locations.

In light of the glitch that caught Perez when he went to the Kapiolani restroom, the American Civil Liberties Union of Hawaii is speaking out against the park closing law, which they say is part of a thick patchwork of anti-homeless laws that don’t work.

"The increasing numbers of complaints by Waikiki residents who have themselves been cited for being in the parks after hours, or who can’t have a pop-up tent without a permit, is an inevitable consequence of years of ill-conceived, mean-spirited ‘anti-homeless’ laws passed by our City Council and Legislature," said Daniel Gluck, senior staff attorney for ACLU of Hawaii.

These laws, which come at a heavy cost to the public who often support their passage, do nothing to abate homelessness or improve public safety, Gluck said.

There are 300 city parks on Oahu, and it’s a criminal offense to be in all but 82 of them after hours, Deputy Prosecutor Miya­hira said.

"Usually there are only a small number of troublemakers involved," said Miya­hira, who estimates that at least half of the park violation cases that he sees weekly involve residents who stay in a park too late or are walking through it.

The law was established by Mayor Frank Fasi. However, closing hours were changed under Mayors Jeremy Harris and Mufi Hannemann to deal with growing complaints.

Miyahira estimates only about 30 percent of the cases that he sees weekly in District Court involve people that police listed as having no local address or as homeless. About 20 percent of the current weekly caseload is made up of visitors, military or transients, he said. The bulk of those cited are residents.

Miyahira confirmed that while a few cases are dismissed and a small number of defendants receive deferrals or have the charge reduced to a violation like simple trespass, most defendants end up with criminal records.

Bagasol, the public defender, said clients vary, but almost all are surprised to find that their actions could result in a criminal record. Most have to wait months for resolution, Baga­sol said.

Due to the backlog, Perez, the Waikiki resident cited July 6, won’t meet with a public defender until Oct. 23, and his first court date is set for Nov. 3.

"I’m so worried about this," Perez said.

On Friday, in response to the Star-Advertiser’s questions about Perez’s case, Parks and Recreation Director Cabato said in an email the city would begin locking the Kapiolani Park tennis court gates and the nearby restroom at 10:15 p.m. Cabato also said the signs at the Waikiki bathrooms would be removed. While the city took down several signs during the weekend, it still had not removed one at the restroom near the Prince Kuhio statue directing people to Kapiolani Park after hours.

Cabato did not have an immediate response to the Star-Advertiser’s request for more information about the city’s signage plans. He also did not respond to a question about which restrooms, if any, would be open 24 hours a day in the Waikiki area heavily trafficked by tourists.

"That’s no solution at all. That’s just stupid," said Waikiki Neighbor Board member John Dew, who is Perez’s longtime friend. "What are people going to do now? If they start closing all the public bathrooms, people are going to start going on the sidewalk."

Dew said the city’s stance is a knee-jerk reaction that lacks oversight. It’s still unclear how these changes will affect Perez and others who have been cited.

"What’s the court going to say now?" Dew said. "Are they going to throw out all the pending cases? How are they going to fix what has been done?"