Measure S would prohibit sitting on the sidewalk, during certain hours, in Berkeley’s commercial districts. Photo: Emilie Raguso
Measure S would prohibit sitting on the sidewalk, during certain hours, in Berkeley’s commercial districts. Photo: Emilie Raguso

On Nov. 6, Berkeley voters will decide whether to approve a controversial ordinance to ban, in most cases, sitting on sidewalks in the city’s business districts from 7 a.m. to 10 p.m.

Measure S is Berkeley’s second attempt to pass a law limiting where and when people can sit on sidewalks. (A 1994 attempt, which included lying on the sidewalk as well, later was repealed by the City Council, after initial approval by voters. The ACLU challenged the law before it went into effect and, in 1997, “a newly elected Berkeley City Council voted to repeal the sit-and-lie ban.”)

Supporters of Measure S have poured more than $90,000 into the campaign, while those opposed have raised just under $16,000, according to campaign reports filed with the city clerk’s office. (See a breakdown of the contributions at Berkeley’s Voter’s Edge.)

The proposed ordinance counts among its proponents developers such as the Beacon Group (which owns 2150 Shattuck, the old Power Bar building) and Panoramic Interests (which sold its large property holdings to Sam Zell’s Equity Residential REIT and now is involved in infill development); opponents include the ACLU of Northern California and Patricia Wall of the Homeless Action Center.

Posts related to the measure have resulted in more than 1,000 reader comments on Berkeleyside. The proposed ban has spurred coverage in local, regional and national media outlets.

A parade of giant puppets representing saints and prophets delivered a letter opposing Measure S, signed by 50 local clergy, to the City Council on Oct. 16 in Berkeley. Photo: Emilie Raguso
A parade of giant puppets representing saints and prophets delivered a letter opposing Measure S, signed by 50 local clergy, to the City Council on Oct. 16 in Berkeley. Photo: Emilie Raguso

Supporters say Measure S will clean up Berkeley’s business districts to make them friendlier to shoppers, while helping connect those in need with social services.

Those rallying against the proposed ban on sitting say it’s part of an increasing trend to criminalize homelessness, and that its passage would in no way bring help to those living on the street. Rather than passing laws to hide or criminalize the homeless, advocates say, cities would be better served by investing in services and supportive housing to address the root causes of the problem.

Those in favor of Measure S point to stories from other cities, such as Seattle and Santa Cruz, that similar bans have improved conditions. Opponents counter that evidence of purported improvements is scant, and say the data that do exist indicate no significant changes.

Measure S: FAQ

The Measure S item on the Nov. 6 ballot is complicated. Here are some commonly asked questions about what the measure would do and how the two sides differ.

What does Measure S restrict?

If passed, Measure S would prohibit sitting on sidewalks in commercial districts from 7 a.m. to 10 p.m. except in a medical emergency; when using a wheelchair or other mobility device; during a permitted street event; or when using seating such as fixed benches or café chairs. The law would apply to any sidewalks next to commercially zoned property, such as Telegraph Avenue, much of Shattuck Avenue, University Avenue, San Pablo and Solano avenues, and the streets surrounding the UC Berkeley campus. 

What is the penalty for someone found sitting in these areas? 

Someone violating these rules would first be advised of the ordinance, multiple times, by one of the city’s Hospitality Ambassadors and asked to move along, “so that police get involved only in rare cases,” said John Caner, who runs the Downtown Berkeley Association. Next would come a warning from a police officer and a chance to comply. Warnings would be in effect for 30 days; on the 31st day, for example, a new warning would need to be given. Those found in violation a second time, within 30 days of a warning, would receive a $75 fine or community service. Additional citations may be charged as infractions or misdemeanors. The ordinance would go into effect July 1, 2013. Caner said “very few citations are ever written” in cities with similar ordinances, and that the existence of the law will spur the homeless to settle elsewhere: “The day the ordinance went into effect in Seattle, people basically disappeared.” Caner said “95%” of the interactions with homeless individuals will involve Berkeley’s Ambassadors rather than police.

Bob Offer-Westort, coordinator for the No on S campaign, said the law is not so benign, as small fines could escalate and send people to jail. When court costs are taken into account, the initial fine is really $200, he said. Later violations could cost up to $1,000 and lead to six months in jail, he said. Court appearances would take place in Oakland, he added, making them hard to reach for those on limited budgets. Court dates would likely take place months in the future, making them difficult to keep track of; missing court dates could lead to bench warrants and jail time, he said.

So where could people go to rest if Measure S does pass?

Caner said there are “over 30 benches and planters” for people to sit on downtown. They can also go to parks, public spaces like the library, or “they can go outside the business districts.”

Do other cities have laws forbidding sitting in certain instances? 

The National Law Center on Homelessness and Poverty surveyed 234 cities with ordinances about various types of prohibited conduct; 33% of them, as of the November 2011 report, had a prohibition against sitting or lying in particular public places. Law center staff surveyed 154 service providers, advocates, and people experiencing homelessness, and said 19% reported arrests, citations, or both, for sitting on the sidewalk.

Do these laws work? 

According to the Yes on S campaign, 60 cities, including Santa Cruz, Santa Monica and San Francisco have passed similar ordinances: “All cities have seen improved merchant areas. We expect even better results because Berkeley has two important advantages: an existing Ambassador program and a commitment to waive citations for persons entering services.”

Santa Cruz passed a civil sidewalks ordinance in 1994. Former five-time mayor of the city, Mike Rotkin, said that, while it has not solved all the problems, the net result has been a “dramatic reduction in problematic behaviors with few citations ever issued in the process.” In an Opinionator piece published on Berkeleyside, he writes, “Pacific Avenue is now a vibrant commercial district… Business tax receipts bear witness to the success of the turnaround… Santa Cruz has maintained its soul… but [is] now just a bit more welcoming with mutual respect for everyone.”

Opponents disagree that the laws are effective.

Are there any data on whether these laws achieve their goals?

Opponents of the law say there isn’t much evidence to show that the ordinances help businesses, or the homeless. Offer-Westort pointed to a March 2012 report from the non-partisan City Hall Fellows that looked at the impact of San Francisco’s 2010 sit-lie ordinance. According to the report, most business owners surveyed in the Haight, the area most targeted for enforcement, reported no improvement or a worsening in the street scene, that the ordinance did little to change behavior of the homeless, and that the same people were cited repeatedly. The report noted that there had been no misdemeanor convictions as a result of the ordinance, and that police said “the law provides a tool to ask people to move along without having to issue a citation.” In most cases, wrote the City Hall Fellows, people left and no citation was issued, though they sometimes just sat on another sidewalk nearby. The fellows found that homeless individuals were not consistently offered services, and that there wasn’t a reliable system in place for tracking individuals who had been connected to services.

Several Berkeley Law students released a report last week, after being approached by a “coalition of community groups and individuals opposed to Measure S,” that found “no meaningful evidence to support the arguments that Sit-Lie laws increase economic activity or improve services to homeless people.” The students surveyed “key stakeholders” in 19 sit-lie jurisdictions. They acknowledged “the scarcity of data” but said, given supporter claims about sit-lie laws, they expected more: “Our literature review did not reveal any evidence of Sit-Lie’s efficacy in other jurisdictions, and of the fifteen survey responses we received, none directed us to any evidence in support of their views about the positive or negative impacts of Sit-Lie.”

Do homeless people on the streets affect businesses?

Hundreds of business owners have signed up in support of Measure S. Alberto Malvestio, whose ALMARE Gelato sits next to the BART plaza at 2170 Shattuck, is one of them. He said his sales drop off 30% when groups of homeless people gather in front of his shop to party and play music. He said he’s tried both to speak with people outside and, when that didn’t work, to call police. It had no effect, he said.

“I can see the feeling of the customers when they sit here with their kids, that bad things are going on. They don’t like it. They take the kids away. They are shaking their head, saying ‘Oh my god, what’s going on here?”

YouTube video

Malvestio said he wouldn’t have opened at his current location had he known how big an issue the homeless youth would be. (He provided the video above.)

A 2011 survey of UC Berkeley students said cleanliness and safety concerns were among factors that caused at least half of them to avoid Telegraph Avenue and downtown most of the time. Offer-Westort, however, cited a 2010 report that found downtown and Telegraph seeing smaller decreases in sales tax revenue than many other business districts in Berkeley. In the report by then-City Manager Phil Kamlarz, five steps are suggested to improve the economy: support a “Buy Local” campaign; encourage night-time businesses on Telegraph and downtown; help market available commercial space; improve the permit process for new retail; and continue to support Business Improvement District efforts. Offer-Westort said any of these solutions likely would have more of an impact on improving the city’s business climate than would Measure S.

Sales on Telegraph Avenue and in downtown appeared to be slightly more buoyant than other areas of Berkeley, according to a 2010 city report. Source: City of Berkeley economic report, Oct. 26, 2010

What’s the size of Berkeley’s homeless population and what services exist?

According to a June 2012 report prepared by the city manager, Berkeley had a population of 680 homeless residents in 2009, the most recent year available. The city operates 135 year-round emergency shelter beds, 70 emergency beds in the winter and 163 transitional housing beds. The city also pays for additional seasonal emergency shelter services; through one, 50 people can receive shelter for up to 40 nights. In another, the city provided 393 nights in hotels for 49 families and 20 individuals. Berkeley funds daytime drop-in centers through programs such as Building Opportunities for Self Sufficiency, the Women’s Daytime Drop-In Center, the Berkeley Drop-In Center, and Berkeley Food and Housing. In 2011-12, the city spent $2.8 million on homeless services. Learn about the city’s Mental Health division here.

Shattuck Avenue is one area of Berkeley where the homeless most commonly congregate. Photo: Emilie Raguso

Will this law help homeless people get connected with services?

Caner, of the Downtown Berkeley Association, said Measure S will help connect people to services in multiple ways. Fewer people will come to Berkeley to live on the street because of the law, he said, freeing up existing services for those who are here. Additionally, Measure S will give downtown Hospitality Ambassadors, many of whom have lived through addiction and recovery, more of a reason to speak with the homeless and learn about their needs: “The fact is, if you have more boundaries, you have more reason for interacting and encouraging people into services.” Caner said Ambassadors receive training from Berkeley’s Mental Health division and that agreeing to services would result in waived penalties for violations. Offer-Westort, of No on S, said there is no language in the ordinance itself to guarantee services or the waiver of penalties. He said the city’s Ambassadors are not qualified to help connect youth or those with mental health problems to care they might need. Offer-Westort said penalties such as jail time and warrants also could result in people losing access to key services or losing their spot in line for housing. He added that the city has limited services available specifically for youth, who make up a large portion of the population living on the streets in the business districts.

But a lot of homeless people don’t actually want services, right? 

Offer-Westort said, of the “literally hundreds” of homeless people he knows, the vast majority would like to be in housing, and many others would like to be in shelters. But the shelters are full, he said. Some of these people, those with addictions, for example, may not be interested in housing that forbids all substance use, smoking or drinking. “They don’t want a ‘tough love’ approach,” he said. “But saying that certain services are inappropriate is different from being across-the-board service-resistant.”

Davida Coady, who runs Options Recovery, an organization that aims to help people escape homelessness and drug addiction, said Measure S would “give teeth” to Ambassadors to help them make a better case for offering services. Coady said she’s been concerned to find that some advocates are “more into the wants of the homeless” than interested in providing structure and intervention. She said people generally do not get into treatment without some kind of intervention, such as from family or a job. People who are homeless aren’t likely to have these kinds of support systems, she said, so they need more structured intervention that can arise from repeated interactions and growing relationships with the city’s Ambassadors.

Will the law be selectively enforced, and used to target the homeless?

Advocates for the homeless say Measure S would be one of a growing number of local ordinances passed nationally to target the rising homeless population. Offer-Westort described the ordinance as “a law plus a wink and a nudge,” which would not be used, for example, to stop a lemonade stand or Girl Scout cookie sales: “It’s trying to make it a crime to be a certain kind of person. It’s extremely problematic in a democratic society to apply laws only to one group of people and not to others.” Caner, of Yes on S, said, “It needs to be equally enforced. If somebody is sitting down on the ground eating an ice cream cone, an Ambassador will inform them: Go sit on a bench.” Sitting in the Cheese Board median on Shattuck Avenue, which already is prohibited, would not be impacted by the ordinance, he said. It’s already prohibited under current city code, and that won’t change. Alan Schlosser, legal director of the American Civil Liberties Union of Northern California, said it’s not that simple: “Most people in Berkeley know it’s not going to be enforced against them. It clearly is a law that is punishing conduct that’s innocent. Sitting on the sidewalk should not be a crime.”

So will Girl Scouts be able to sell their cookies, or not?

Caner said Measure S does not address where sales can, or cannot, take place. He said the city handles permit applications for vendors who sell items, such as arts and crafts, on the street or sidewalk. Measure S, he said, does not relate to that activity. He said the city also has free speech zones, which allow for other types of behavior. He said, theoretically, Girl Scouts who wanted to sit while they sell cookies could set up in front of existing benches or planters.

Doesn’t Berkeley already have laws to address problems, such as lying down, aggressive panhandling and the like?

Caner said existing laws are tough to enforce; lying down isn’t allowed, but “if you have an elbow up it doesn’t count as lying.” Blocking the sidewalk isn’t allowed, but “you have to block the entire sidewalk.” Drinking is not allowed “but it’s difficult to catch people.” Caner described the law against aggressive panhandling as “pretty subjective” and “difficult to enforce.”

Offer-Westort said asking police to focus on these kinds of “quality of life” laws keeps them tied up from dealing with more serious crimes. Added Schlosser of the ACLU, “There are plenty of laws on the books that deal with the kinds of conduct that are causing the problems. I don’t think the city should expand police power to target innocent conduct.”

Luke, 22, (sitting, left) said he would likely move on to Oakland if Berkeley voters pass Measure S. Here, he sits in front of a vacant storefront on Shattuck, and tries to sell handmade jewelry, Oct. 16, 2012, Berkeley, CA. Photo: Emilie Raguso

What do some members of the homeless community think?

Drew, 23, who goes by the name Purple, said, to him Measure S is just another way to criminalize the homeless. He described himself as “normal” — “not crazy, not a drug addict, not violent” — and said he’d chosen to live on the streets and travel, essentially, to drop out of the rat race and pursue a life of “infinite freedom.” He said the real culprits hurting local businesses are the landlords who are driving up rents, and that homeless people are just the scapegoat.

Luke, 22, said Berkeley’s “been around too long” to change the culture: “People have been coming here for years and years and years.” He said he once had a house and went to college, but didn’t like it, so he decided to travel and sell jewelry on the street. He said many of his friends are watching Measure S closely, and plan to leave town if it’s passed rather than risk being sent to jail for minor offenses. As for himself? “I’d go to Oakland.”

In a nutshell, why is Measure S the answer?

Said Caner: “We really need to help out the local merchants. We need to improve our public spaces. Unfortunately, with the encampments of street people that often are on Telegraph and Shattuck avenues, and often there are drugs and alcohol involved, it has a chilling effect on people coming to downtown and to Telegraph and the merchants suffer accordingly. The encampments often involve sitting in groups, often with dogs, often with pitbulls. That can cause a lot of discomfort. And people sort of feel a lot of times that they have to walk the gauntlet when there are these large groups…. If we’re effective in changing behaviors and also discouraging Berkeley as being a mecca for certain types of activity, hopefully we’ll see less strain on city services, and can actually focus a lot of our services and our funding on those who are truly in need.” He said Berkeley is “the only progressive city on the West Coast” without a sit ordinance.

If Measure S isn’t the answer, what is?

Said Offer-Westort: “Young homeless people are a group that has been tremendously alienated by society already. The good solution is creating options where people are able to get back into society, and enter situations where they are able to be tolerated. Using the criminal justice system, it’s more like they’re being shunned. Demonizing homeless youth has been tremendously counterproductive.”

Said Schlosser: “I think some people would prefer for there to be no homeless people in the city. That just is not tolerated in our system. We can’t prohibit people who are poor from being visible. Panhandling is as protected as soliciting donations for charities. As long as there are people in need, that’s going to be part of our world.”

Who’s for it and who’s against it?

See a full list of supporters here, and a list of those against Measure S here.

How can I learn more?

Op/Ed: Say yes on Measure S: help those living on the streets [10.29.12]
Op/Ed: Five lies about Measure S — from both sides of the debate [10.24.12]
Op/Ed: Yes on Measure S mailer is full of falsehoods [10.24.12]
Op/Ed: Measure S is a step backwards for Berkeley [10.10.12]
Op/Ed: Measure S: We can do better with civil sidewalks [09.19.12]
Mayor Bates defends his handling of raucous meeting [07.12.12]
Berkeley sitting ban goes to ballot after raucous meeting [07.11.12]
Opponents of Berkeley sitting ban gear up for fight [07.09.12]
Berkeley sitting ban progresses toward November ballot [06.13.12]
Proposed sidewalk sitting ban prompts debate, protest [06.12.12]
Mayor seeks to put sit-lie ordinance on November ballot [06.01.12]
Police step up patrols on Telegraph to clear sidewalks [05.01.12]
Newly cleaned up downtown hopes to attract more retail [04.04.12]
Anti sit-lie campaigners take protest to City Hall [04.27.11]

Clarification: The original story reported that the 1994 ordinance was withdrawn by the Berkeley City Council. This was changed shortly after publication, but has been returned to its original state. We have included some additional context about the earlier ordinance.

Read more about Measure SVisit Berkeleyside’s Voter’s Edge Berkeley for complete coverage and tracking of the city’s 10 ballot measures. Visit Berkeleyside’s Election 2012 section to see all our coverage in the run-up to Nov. 6.

Emilie Raguso (former senior editor, news) joined Berkeleyside in 2012 and covered politics, public safety and development until her departure in 2022. In 2017, Emilie was named Journalist of the Year...