With the Honolulu City Council scheduled to hear bills Thursday that make it illegal to sit and lie on sidewalks in two parts of Honolulu, Councilman Ikaika Anderson said he will press to have colleagues consider a third proposal that imposes the same prohibition throughout Oahu.
Anderson told the Honolulu Star-Advertiser he also is introducing a separate bill that makes it illegal to urinate or defecate on public sidewalks islandwide.
Because they are not on the posted agenda for Thursday’s special Council meeting, both of Anderson’s new bills need a "supermajority" of six votes from the nine-member Council to even be heard.
Last week, Anderson stood with Mayor Kirk Caldwell and Waikiki community leaders at a news conference where the mayor unveiled Bill 42, banning lying or sitting down on Waikiki sidewalks, and Bill 43, barring urinating and defecating in Waikiki public areas. The two bills are part of Caldwell’s revamped, two-pronged "compassionate disruption" strategy to attack homelessness that includes $47.2 million to house about 400 people over the next two years.
On Friday, Councilwoman Carol Fukunaga unveiled Bill 44, which imposes the "sit-lie" ban in an area from River Street to Ward Avenue, makai of the H-1 freeway. Fukunaga said the homelessness issue is just as acute in that area as it is in Waikiki. The Downtown-Chinatown region already has a state-imposed restriction on urination and defecation.
Bills 42, 43 and 44 are the only measures listed on Thursday’s 8:45 a.m. Council agenda.
Anderson said that since Fukunaga introduced her bill, he’s heard from people across the island, from McCully to Kaneohe. While he supports the idea of imposing the restrictions in Waikiki because of its economic significance to the state, "I hear loud and clear the concerns of others throughout the City and County of Honolulu … that people will simply pick up and move to other areas."
He added, "It may be possible to address all of this with simple, islandwide bills."
Anderson said attorneys with the Office of Council Services, the Council’s research branch, have stated that imposing a 24-hour sit-lie prohibition "could be a problem." However, he said, "I think we need to start the discussion there."
He said he’s hoping Oahu residents will make their thoughts known on the issue and various bills Thursday.
Tuesday afternoon Caldwell said, "I welcome all measures and tools available that would make it more effective to deal with the homelessness issue."
However, he said, "we want to make sure whatever passes can withstand constitutional scrutiny. … That’s going to be my biggest concern."
City attorneys have assured him that the two Waikiki bills are OK but that time, place and manner restrictions can come into play, especially on the sit-lie issue, he said.
A bill introduced by Councilman Stanley Chang banning lying on public sidewalks throughout Oahu stalled last year.
All three current sit-lie bills are patterned after a Seattle ordinance, except that law bars sitting and lying on public sidewalks only in certain commercial areas and only between 7 a.m. and 9 p.m. Caldwell argues that a 24-hour ban should be placed in Waikiki because hotels and commercial businesses there serve the visitor industry are open around the clock.
Robert Thomas, a Honolulu attorney who specializes in land use and government law, said he believes the Waikiki sit-lie bill likely would pass constitutional muster because a 9th Circuit Court of Appeals ruling determined in 1996 that the Seattle law regulates conduct, not free speech.
However, homeless advocates have argued successfully, in a 2006 9th U.S. Circuit Court of Appeals case, that Los Angeles laws disrupting the homeless on public sidewalks serve to criminalize homelessness, Thomas said. Attorneys opposed to the LA ordinances successfully argued that because homeless shelters in the area were turning away people, those on the street had nowhere to go.
"That turned these into status offenses," Thomas said, noting that the U.S. Supreme Court has ruled in other cases that laws cannot be imposed against people based on their status.
As a result, he said, expanding the sit-lie bill to geographically include all of Oahu "makes it more likely to be challenged."
Ron Lockwood, chairman of the McCully-Moiliili Neighborhood Board, said he personally likes Anderson’s approach. If sit-lie and urination-defecation laws are in effect in both Waikiki and west of Ward Avenue, the area in between including Ala Moana, McCully-Moiliili and Manoa could see an influx of sidewalk dwellers, he said.
Lockwood said he also wonders whether police would be able to enforce a sit-lie restriction, and how quickly officers would be able to respond to complaints.
