New ordinance banning sitting or lying on City of Sarasota sidewalks wins unanimous City Commission approval on first reading

City attorney to look into expanding affected area and hours before second reading

On June 7, 2021 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

This week, the Sarasota City Commission unanimously approved a new ordinance that forbids lying or sitting on a sidewalk on Palm Avenue and the portion of Main Street between U.S. 301 and U.S. 41.

Further, a person could not sit or lie on “a blanket, sleeping bag, chair, stool, or any other object not permanently affixed upon such area” between the curb or the edge of a roadway and the adjacent property line of privately or publicly owned properties.

The proposed hours of enforcement would be 10 a.m. to midnight. “This is when most people will be present,” City Attorney Robert Fournier pointed out.

The ordinance does include a number of exemptions, including a medical emergency; a person sitting or lying on a public right of way because that individual is attending an event such as a parade; and a person who is “engaged in expressive activity protected by the First Amendment when accompanied by incidents of speech such as signs or literature explaining the expressive activity.”

However, on a motion by Commissioner Hagen Brody, seconded by Commissioner Liz Alpert, the board members asked Fournier to consider expanding the area where the new regulations will apply, as well as the hours they will be in effect.

“I do think there is a slightly larger footprint that we should use,” Alpert said. “Lemon Avenue is our event space. … That’s a really high traffic area.” Further, the “little strip of State Street between Orange [Avenue] and Lemon” should be included, she added.

“I would like to see the boundary expanded as much as you’re comfortable with,” Brody told Fournier.

In the agenda request item for the commission’s regular meeting on April 4, Fournier pointed out that the dual purposes of the ordinance “are to promote public safety on the main commercial arteries in downtown Sarasota by having sidewalks that are passable and to promote the economic vitality of downtown Sarasota.”

It is not a valid purpose, he stressed on April 4, to rid the downtown of a certain segment of the population, such as homeless individuals.

The ordinance does call for a warning to be provided first to an offender. The penalty for non-compliance would be a notice to appear in County Court, Fournier said.

For the ordinance to go into effect, the commissioners will have to approve it on a second reading. In response to a Sarasota News Leader question, Fournier wrote in an April 5 email that he would include any recommendations about expanding the hours and “adding other areas of high pedestrian activity” when he presents the ordinance for that second reading. Fournier did not indicate when that would take place. The next regular City Commission meeting will be conducted on April 18.

These are part of the opening clauses of the new ordinance. Image courtesy City of Sarasota

The background and board remarks

During his opening remarks about the measure, Fournier reminded the commissioners that he had asked for a months-long delay in bringing the draft to them so he could talk with representatives of the Sarasota Police Department about enforcement of an ordinance already on the city books. That one, which went into effect in 2015, forbids obstructing a sidewalk. It can apply, as well, he said, to people sitting or lying on the sidewalk.

“This ordinance,” he continued of the new measure, “is intended to supplement that, not to replace it.”

City Attorney Robert Fournier. File image

As he pointed out during the last discussion of the proposal, in October 2021, Fournier said that no citations had been issued in response to violations of the existing ordinance. He speculated that the reason was the fact that officers are required to warn people first. That language, he continued, “insulates the city” from a legal challenge that the ordinance is constitutionally vague.

Nonetheless, Fournier added, his concern was that the lack of citations could pose challenges to enforcement of the new ordinance, with opponents saying it was designed to target homeless individuals. The proposed regulations do include a provision for warnings, as well, he said. “So you may end up with the same result” in terms of no citations issued.

He worked with Sarasota Police Department leaders to track the situation for six weeks — from the end of January to mid-March — as a sampling of enforcement actions regarding the existing ordinance, he told the commissioners.

During that period, Fournier said, 15 warnings — slightly more than two a week — were issued; no citations resulted. “Basically, everybody complies, and they move on.”

Further, Fournier explained that, for an ordinance to be considered valid, it must serve a valid purpose. In the case of the proposed Sit-Lie Ordinance, he continued, he had chosen the area for implementation to encompass just Main Street between U.S. 301 and U.S. 41, as well as Palm Avenue from Cocoanut Avenue to Ringling Boulevard.

This map shows Main Street between U.S. 41 and U.S. 301. Image from Google Maps

His decision, he said, was based on the fact that people pay to park on those streets, and they should not have to step over someone after they leave their vehicles.

In his research, Fournier also pointed out, he had reviewed sit-lie ordinances in 20 to 30 municipalities; among them were three in Florida cities: Orlando, Clearwater and St. Petersburg. Each of those ordinances has different hours in which the regulations are in effect, he noted.

Finally, Fournier told the commissioners, “It’s hard to say whether adoption of this [new ordinance] will bring about a legal challenge.”

The narrower the area the ordinance covers, he indicated, the greater the likelihood that it would survive a legal challenge. However, Fournier continued, the City Commission could implement the ordinance as drafted for six months and then revisit the area of enforcement and the hours. His big concern, he added, was the potential that the city would be accused of “criminalizing homelessness.”

“That’s a hard argument to make,” he pointed out, if the defined area is small.

Yet, Commissioner Brody argued for widening the zone to encompass the area from Fruitville Road on the north to Ringling Boulevard on the south.

Fournier reminded Brody that the city’s existing ordinance could be used in those other portions of the city. Nonetheless, Fournier continued, “We could do some more studies to determine areas outside the designated zone” that could be included in the ordinance through a future amendment, “with documented reasons.”

Commissioner Jen Ahearn-Koch. File image

Later, when Brody again argued that at least an expansion to the north, to Fruitville Road, would be appropriate, because of all the ground-level commercial and office space in that area, Fournier told him, “I don’t necessarily agree.” On the other hand, Fournier said, the areas Commissioner Alpert had noted seemed reasonable for inclusion in the ordinance. “Let us take a look at that.”

When Commissioner Jen Ahearn-Koch asked, “Is this absolutely necessary, this ordinance?” Fournier responded that it is not essential.

Then she questioned Deputy City Manager Patrick Robinson, who was deputy chief of the Sarasota Police Department when City Manager Marlon Brown named Robinson to his city administrative position.

“Any of these quality-of-life or public space ordinances carries a risk [of a legal challenge],” Robinson responded. However, he added, any tool that the commissioners approve, such as the new ordinance, provides an extra opportunity for officers in the field to take appropriate action to foster public safety.

City leaders will have to “see how [the new ordinance] works in operation,” Robinson told her.

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