In response largely to business owners’ complaints, City Commission calls for ordinance forbidding people from obstructing sidewalks by sitting or lying on them

New law would apply to specific commercial area during specific hours

Harmoni Krusing showed the city commissioners this photo of a person lying on the sidewalk one day outside her business. Image courtesy City of Sarasota

In response to complaints of business owners in downtown Sarasota, the City Commission has asked City Attorney Robert Fournier to craft an ordinance that would prohibit the obstruction of sidewalks by sitting or lying on them.

At Fournier’s suggestion on June 7, the board members agreed to have him prepare a draft for further discussion at an upcoming commission meeting. Then, members of the public — including business owners — would have the opportunity to address facets of the proposed new regulations. The commissioners themselves could suggest tweaks of the draft ordinance, as well, before a public hearing was scheduled on it, Fournier pointed out.

Commissioner Jen Ahearn-Koch stressed the need for the ordinance to reflect what she described as “a middle ground” between individual rights and the problems that downtown business owners — and residents, she noted — have reported to the board members.

Although homeless persons have been the focus of many of the complaints, as indicated by business owners who addressed the board that night, Ahearn-Koch pointed out of the homeless, “These are members of our community that have problems and issues and need help. … I would caution us all to be respectful.”

Commissioner Jen Ahearn-Koch. File image

Nonetheless, she did acknowledge, “We need to take into consideration the merchants and what they’re going through …”

“I think we’re all understanding of people’s challenges in our community,” Mayor Hagen Brody responded. The city probably has more services to offer the homeless than any other municipality within the general area, he added. “But what good are the services if we can’t have rules on the books [and] have a city that’s functional?”

Brody also stressed, “It’s really important not to get hung up on any particular group.” The ordinance could affect sidewalk musicians and artists, for examples, he said.

In response to a Sarasota News Leader question, Fournier wrote in a June 21 email that he expected the second City Commission meeting in August would be the earliest that he would have the draft ready for discussion.

Brody had asked that the topic of sidewalk obstruction be included on the June 7 agenda. He noted that the City Attorney’s Office had been researching the issue.

During his initial remarks that night, Fournier pointed to an existing city ordinance, which was adopted in 2015 and later amended after a constitutional challenge.

It is important, he continued, to identify the objective of any new city regulations. The existing ordinance, Fournier added, was designed “to keep the rights of way open and free of obstruction so the sidewalks can be traveled on by pedestrians.” It forbids standing, sitting or lying on the sidewalks so as to obstruct them, he said.

Originally, the ordinance prohibited the placing of physical belongings on sidewalks, Fournier explained, but that section was eliminated.

“[The law] does call for some discretion,” he continued, “because the obstruction has to be unreasonable.” That was not specified in the original ordinance, he added, which led to a constitutional challenge on the basis of vagueness.

Fournier then described a scenario in which a person encounters an acquaintance on the sidewalk and ends up talking to that person for about 5 minutes. “You’re actually obstructing traffic on the sidewalk,” he said, but that is not generally considered an unreasonable obstruction unless the sidewalk is heavily traveled.

The purpose behind laws like the one under discussion that night, Fournier explained, “is to protect the economic viability of a commercial or a business district.”

Such ordinances, he noted, “are typically found in more touristed areas,” and they apply to a defined section of a municipality. The new law could be considered supplemental to the existing one, he added.

(Fournier told the News Leader in his June 21 email that he would provide the commissioners a copy of the existing ordinance, along with the draft of the new one, so they will be able to compare them in their follow-up discussion.)

Other factors for consideration

Fournier further noted on June 7 that the new ordinance would need to have a specific time frame in which the prohibition would be enforced, such as when the businesses in the affected area are open.

The City of Seattle has such an ordinance, Fournier pointed out, and it was upheld on a First Amendment challenge.

This is a section of the City of Seattle ordinance that Sarasota City Attorney Robert Fournier referenced on June 7. Image courtesy City of Sarasota

Brody told his colleagues that he believes they should think about situations in downtown Sarasota and on St. Armands Circle. The goal, he continued, is to make those areas “as vibrant and business-friendly as we possibly can.”

“We’re coming out of COVID,” Brody added. “We need to start thinking about how our downtown … can respond over the next, coming months with the hope that we have more and more pedestrian activity on Main Street …”

Fournier suggested that the new ordinance could apply in areas where the city has installed parking meters.

Brody said he believes that is a good idea.

City Attorney Robert Fournier. File photo

Before enacting the type of prohibition at the focus of the discussion, Fournier continued, the City Commission needs to compile a good record showing that the goal is to address a specific problem. Therefore, merchants’ statements about their experiences with sidewalk obstruction should be made part of that record.

“Anytime you legislate [in regard to these types of issues],” Fournier added, “you can expect to have your motives questioned. … You’ll be accused of simply wanting … to rid an area of people who may not be as well-groomed as other people … and that’s not a permissible government objective.”

“We are growing as a city,” Vice Mayor Erik Arroyo said. “We don’t have the biggest sidewalks in the world …”

As long as the city assists the homeless with getting services they need, Arroyo added, “and their rights are protected, I think we should move forward.”

And some of the homeless to whom services are offered have no desire to accept that help, Commissioner Liz Alpert noted.

Alpert stressed the need “to be really careful about how anything would be crafted.” The ordinance would have to be clear that it would apply to everybody, she pointed out.

Merchants’ laments

When Brody asked for public comments, the first speaker was Mark Zemil, who owns Zemil Jewelers at 1484 Main St.

“I think it’s a fabulous idea. I think it’s genius,” Zemil said of the proposed ordinance. “We’re there every day; we see what’s going on.”

He added, “I’ve had customers tell me numerous times that they have been blocked by people laying or sitting on the sidewalks, and they have been sometimes accosted by these people asking for money.”

Occasionally, Zemil continued, some of his elderly customers have feared they would be victims of violence if they did not give such individuals money.

At times, Zemil said, he has had to go outside his store to help customers. If he cannot get persons on the sidewalk to move away, he added, he calls the Sarasota Police Department.

Then he noted, “On my way to the meeting today, there were two people unconscious on the sidewalk on First Street that I had to walk around.”

The second speaker was Harmoni Krusing of Lotus Boutique at 1462 and 1464 Main St.

This is a second photo that Harmoni Krusing of Lotus Boutique showed the commissioners on June 7. Image courtesy City of Sarasota

She showed the commissioners a couple of photos she had taken of people lying on the sidewalk in front of her business. “It’s just an ongoing battle that we have,” she pointed out.

Over the 12 years since she opened the store, Krusing continued, she has seen an increase in the number of homeless people in the downtown area. “We’ve had enough.”

At times, when she walks up to her boutique, she added, she sees vomited food, blood and dried urine on the sidewalk.

One day, Krusing said, a young couple in front of her business was arguing and throwing things, so her customers were afraid to leave. “Not a good look for downtown.”

The third speaker, John Bordeaux, told the commissioners he is a full-time downtown resident. Referring to the comments Krusing and Zemil had offered, Bordeaux added, “This is their living. This is what’s happening downtown. This is Main Street. … Tourists and out-of-towners,” he stressed, “are shocked.

John Bordeaux looks at a photograph as Harmoni Krusing addresses the city commissioners. News Leader image

He offered full support for the proposed new ordinance. “No telling how much business the shops and restaurants downtown are losing as a result of this issue.”

Helping the homeless

After the comments concluded, Commissioner Ahearn-Koch asked Kevin Stiff, coordinator of homelessness response for the city, about his thoughts on the proposed new ordinance.

When he was a captain with the Police Department prior to starting his current position, Stiff responded, he saw how difficult it was for officers to try to determine whether a person was unreasonably blocking the sidewalk. As for the concept of the new law: “I think that the city does have a right to govern its public space and should do so when they think it is best for the economic safety [of the community]” and to ensure persons with physical disabilities are able to traverse the sidewalks without problems.

Kevin Stiff replies to a question on June 7. News Leader image

Nonetheless, Stiff continued, it is also important to give individuals who are obstructing the sidewalk an opportunity to understand why that action is not permitted within the city.

Then Ahearn-Koch asked City Attorney Fournier about the potential for the American Civil Liberties Union (ACLU) to file suit against the city if the commission does enact a new ordinance with the restrictions under consideration that night.

“Any time you do something like that,” Fournier replied, “there’s probably a higher probability than usual that it could be challenged …”

Still, he said, he doubted that a First Amendment challenge would come, but other types of suits could be filed.

Commissioner Kyle Scott Battie voiced interest in seeing the new law apply to the Rosemary District, as well. The situations the merchants described happen “throughout the city,” Battie added, but especially in Districts 1 and 2.

However, Mayor Brody said he felt the focus should be on Main Street at the outset. “It’s our hub. … It’s our economic engine for the city.

Following the discussion, Commissioner Alpert made the motion to give direction to Fournier to craft the proposed ordinance for discussion purposes, and Vice Mayor Arroyo seconded it. The motion passed unanimously.