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Potential flaws in new city laws aimed at homeless prevent enforcement

The city’s two newest tools aimed at curbing homeless activity have unspecified legal problems that are preventing their enforcement, nearly four months after they became law.

“I just have to say this is so unacceptable,” Councilwoman Kymberly Pine told representatives of the Honolulu Police Department and the city’s Corporation Counsel office at the City Council’s Committee on Public Infrastructure, Technology and Sustainability last week. “Now I have to go back and report (to my West Oahu constituents) that people who were part of authoring this bill … are telling us that it’s unenforceable. I’m kind of speechless.”

On Oct. 11 Mayor Kirk Caldwell signed Bills 51 and 52, which became city ordinances 18-34 and 18-35, known informally as the sidewalk obstruction and no-lodging ordinances.

Notably, the spaces on both ordinances are blank where a representative from the Corporation Counsel’s office — which represents the city in legal matters — was supposed to sign.

Ordinance 18-34 states, “No person shall create, cause, or maintain an obstruction on a public sidewalk that interferes, impedes, and/or prevents the full, free, and unobstructed passage of pedestrians upon public sidewalks or interferes with the normal flow of pedestrian traffic upon a public sidewalk during the hours from 6 a.m. to 10 p.m.”

Caldwell’s office previously said City Ordinance 18-34 also would apply to anyone who blocks a city sidewalk, including vendors and kiosks.

Ordinance 18-35 says, “No person shall lodge on a public sidewalk or other public place.” Law enforcement cannot issue a citation, make an arrest or otherwise enforce the ordinance unless “shelter space is readily available; an offer has been made to transport the person to the available shelter; and the officer requests or orders the person to refrain from the alleged violation of this section.”

The new ordinances are separate from the city’s sit-lie, stored property and sidewalk nuisance ordinances that have been used to clear homeless encampments for the last few years.

Councilwoman Carol Fukunaga, chairwoman of the Committee on Public Infrastructure, Technology and Sustainability, saw the new ordinances as another tool to expand enforcement islandwide.

Assistant Honolulu Police Chief Sean Naito told Fuku­naga’s committee that “after reviewing the bills, there were concerns. … We feel the law in general is over-broad, in general, and we’re looking at the equal and fair application of the law. … 18-34, for example, there’s unintended consequences.”

Duane Pang, deputy corporation counsel for the city, did not specify the problems with the ordinances at the hearing and declined to comment to the Honolulu Star-Advertiser after the meeting.

Fukunaga said her frustrated Chinatown constituents have been asking why the new laws have not gone into effect.

For now, Fukunaga said, it’s unclear whether the new ordinances will need minor “tweaks” or a total rewrite.

“What are our next steps if the current legislation may not be the be-all, end-all to what we had originally envisioned?” Fukunaga asked.

Pang said the Corporation Counsel’s office, in conjunction with Caldwell’s administration and HPD, “is looking into whether the bill can be tweaked or whether a whole new bill needs to be introduced.”

Caldwell said, “I’m not backing away from the two bills, and I’m not backing away from enforcement.”

Regarding the problems with the bills, Caldwell said, “It has to do with the enforcement part of it and how do we write it more clearly. And I don’t know how to write it more clearly. I think it’s clear in my mind.”

Caldwell also suggested that the city might need to find a way to define “a kiosk.”

“There’ve been issues raised about how the bills are drafted and that perhaps there needs to be some tweaks,” Caldwell said. “I don’t want to go and then get sued, so we’re taking a step back. We’re going to look to see are there things we need to amend, and, if necessary, we’ll amend those bills.”

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