Sarasota city attorney to revise draft ordinance that would prohibit sitting or lying on sidewalks in designated areas of business district

Interim chief of police to work with city attorney in meantime to clarify enforcement of 2015 ordinance banning unreasonable obstruction of sidewalks

(From left) Kevin Stiff, the city’s coordinator of responses to homelessness; interim Police Chief Rex Troche; and Assistant City Attorney and Police Department legal adviser Joe Polzak engage in discussion with the commissioners. News Leader image

On a unanimous vote this week, the Sarasota City Commission directed City Attorney Robert Fournier to proceed with crafting the final draft of a new ordinance that will forbid persons from sitting or lying on a sidewalk in specific areas of the city’s business district.

In the meantime, Fournier will work with interim Sarasota Police Chief Rex Troche on enforcement of a 2015 city ordinance that prohibits individuals from unreasonably obstructing a sidewalk. A report on the handling of that ordinance will accompany the draft of the new law, according to the motion that Commissioner Liz Alpert made.

A majority of the board members indicated that they would like to keep that law in effect even after they approve the new one.

Alpert pointed out that if the commissioners designate a specific area for the implementation of the new ordinance, then individuals who have been causing problems simply will move to another downtown area.

Troche responded that if the commission keeps the 2015 ordinance in place and then adds the new law, he believes the Police Department will be able to prevent the type of scenario she had described.

Although Fournier told the commissioners on Oct. 4 that no citations had been issued since that 2015 ordinance was put into effect, Troche said that information was incorrect. Prior to the meeting that night, Troche explained, he had had staff research the issue. In 2015, five citations were issued, Troche continued; in 2016, four; in 2017, seven; and in 2018, four. However, none was issued in 2019 or 2020, Troche added.

“I would have liked to have [the information] correct the first time,” Fournier responded. “I don’t like to provide incorrect information.”

Troche did not comment on Fournier’s remark.

This is a section of the 2015 ordinance. City Attorney Robert Fournier had highlighted specific words before including it in the backup agenda material for the Oct. 4 discussion. Image courtesy City of Sarasota

Troche did tell the commissioners that, having spoken with officers who routinely patrol downtown Sarasota, he had learned that confusion had arisen over whether the law applied to certain actions.

He took a walk downtown on Oct. 1, he pointed out, so he could get a firsthand look at situations patrol officers encounter. “There were people that were sitting and sleeping in the paver area,” Troche continued. When he called over officers to ask how they would handle that, they acknowledged that they do not know how they legally should deal with that situation, Troche said. “They just choose to ignore it.”

Troche took a photo of what he had observed and showed it to the department’s legal adviser, Assistant City Attorney Joe Polzak, who thought that the situation was a violation of the current ordinance, Troche continued. When Troche showed the picture to a person whom he characterized as a “subject matter expert,” that person told him the situation did not constitute a violation, Troche added.

Officers also have been concerned about ending up getting served with legal complaints if they enforced the ordinance, Troche noted, and they have voiced worries about having complaints lodged against them.

Enforcement of that ordinance “will come after we get the clarity from Mr. Fournier,” Troche told the commissioners. He hoped to have the issues resolved by the end of the week, he said.

On June 7, 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

Fournier did not offer a definitive timeline regarding his delivery of the proposed new law to the commissioners. However, he indicated that it probably would be in the first half of 2022, perhaps March or April.

During his comments at the outset of the discussion, he explained that, based on case law he had researched, it would be preferable to show that the board members took a deliberative approach to implementing the new regulations.

The commissioners first discussed the issue at length during their June 7 meeting. Business owners complained to the board members about individuals lingering on the sidewalks outside their shops and waylaying their customers.

Two of those business owners were back on Oct. 4 to reprise their concerns.

Mark Zemil addresses the commissioners on Oct. 4. News Leader image

Mark Zemil, who owns Zemil Jewelers at 1484 Main St., told the commissioners this week, “I think the time has come when things have really gotten out of hand.” His first customer that day, he continued, who was a woman who reported to him that another woman “shook her down for $10 dollars.”
Zemil added, “It’s not asking for spare change or a dollar. These people are getting very aggressive.”

Harmoni Krusing of Lotus Boutique at 1464 Main St. pointed out that after members of the public get out of their vehicles and go to the parking meters, “They’re aggressively panhandled.”

Just last week, she added, she heard a person on the sidewalk yell, “I’m going to f***ing kill you!” at a woman.
Krusing told the commissioners that she imagined all of them have had problems on Main Street. Visitors who come downtown will remember bad incidents, she pointed out. “This is our Achilles heel. … I’m really speaking on behalf of all the merchants.”

Another speaker, Jon Baugh, stressed, “This is not about the homeless. … It’s about criminals doing criminal behavior on Main Street.”

Although he is not a Main Street business owner, Baugh added, “I’ve watched what goes on. … [Individuals] argue over turf; they argue over drugs; they argue over drinking.”

“I don’t think we’ve been real enough about some of the problems” with which merchants and patrons of businesses have been encountering, Mayor Hagen Brody said. The commissioners need to respond to the issue in the context of downtown businesses having to compete with those in other locations where problems are not routine, Brody added. “Downtown is suffering. … This ordinance, I think, will help.”

Laying the groundwork

During his comments at the start of the agenda item, City Attorney Fournier reminded the board members that, in June, they asked him to draw up an ordinance that would deal directly with people sitting or lying on the sidewalks.

The primary goals of the initiative, he pointed out, would be to maintain the economic viability of a business district and to “just promote public safety.”

He had provided that draft in their backup agenda material.

City Attorney Robert Fournier. File photo

Fournier cautioned the commissioners, “I think you need to be aware, as I’m sure you already are, that these types of ordinances do tend to attract the attention of people who advocate [for persons] who like to sit and lie on the sidewalk. … There is probably a better than even possibility that the ordinance could be challenged [in court].”

Three Florida cities have implemented such laws, he continued: Orlando, Clearwater and St. Petersburg. “To the best of my knowledge,” Fournier added, none has faced litigation.

The draft ordinance he included in the Oct. 4 agenda packet said among its “whereas” clauses, “[S]itting or lying down is not the customary use of public rights-of-way including public sidewalks …”

Another “whereas” clause noted that “public streets and sidewalks can be prone to congestion, especially in the downtown core of the city where there is a higher level of pedestrian activity …”

Based on his research, Fournier continued, a sit/lie ordinance needs to be applied to “a specific geographical area within certain designated times.”

Fournier also advised the board members that the boundaries of the affected portion of the business district “really shouldn’t be arbitrarily drawn.” He suggested that the ordinance apply to the streets with parking meters.

If a person has to pay to park, Fournier said, that person “shouldn’t have to step over somebody laying out, sprawled out on the sidewalk …”

The draft ordinance specified that the areas where sitting or lying on the sidewalks would be prohibited would be Main Street between U.S. 41 and U.S. 301, as well as Palm Avenue between Cocoanut Avenue and Ringling Boulevard. The hours the law would be in effect would be 10 a.m. to midnight.

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

Vice Mayor Erik Arroyo suggested the boundaries be expanded.

“We can look at that and make a recommendation,” Fournier responded.

Among exempted situations would be those in which a person is having a medical emergency; people are seated for an event permitted by the city is taking place, such as a parade; and a person is in a wheelchair or a baby carriage, for examples.

During the discussion, Commissioner Jen Ahearn-Koch voiced concern that the new ordinance would appear to target homeless individuals.

When she asked for comments from former Sarasota Police Department Capt. Kevin Stiff, who serves as the coordinator of the city’s response to homelessness, Stiff told her that Fournier’s presentation about the proposed ordinance “sounds reasonable.”