City commission passes a civil citation ordinance and votes to put some homeless people in hotels

BY JENNIFER CABRERA

At the Gainesville City Commission meeting on May 21, the commission welcomed its newest member, Commission Reina Saco, who was elected in March. They also selected Commissioner David Arreola, who was just re-elected, as the new Mayor Pro Tem.

An agenda item to rename the Equal Opportunity Director to Equity & Inclusion Director was removed from the agenda because the Race & Equity Subcommittee recommended putting it on the ballot next March.

“Last week the World Health Organization advised governments all over the world that a prerequisite of reopening is a positivity rate of less than 5%… In Alachua County, our rate is 2.5%”

During the “Update on City of Gainesville COVID-19 Response” item, Dr. Lisa Chacko, who is guiding the City in their COVID-19 response, gave a “big picture assessment… Our local snapshot is fairly good… 346 cases and 7 deaths… [We’ve] ramped up our public infrastructure… The beautiful thing about the testing is that we’ve been able to amplify our local health department through partnerships with UF, through the college of medicine, and the City of Gainesville…

“How do we know that we’re really ready to open?… How do we know we’re testing enough? There are numbers to help guide that, and I really want to say and reassure people that we are within those numbers. We are within those criteria. Last week the World Health Organization advised governments all over the world that a prerequisite of reopening is a positivity rate of less than 5%… In Alachua County, our rate is 2.5%… If it starts to trend upward, if it’s starting to reach 5 or go higher, then we know we have to push pause and ramp up testing… We are exceeding what the recommendation is, locally… The assessment would be that our community remains vulnerable but very well prepared as we move towards our next really big task, which is the start of the academic year at UF.”

“And so I think at the same time that we, of course, have to hold accountable everybody whose job it is to collect, report, share data, we also need to have some degree of trust.”

Chacko took a few minutes to talk about data and transparency: “Data will never be perfect. It never has been, and it never will be… but even if we accept that, we can still assume that the picture it’s providing is still extremely useful… and you can follow the trends in that inherently imperfect data to know which direction we’re going. And so I think at the same time that we, of course, have to hold accountable everybody whose job it is to collect, report, share data, we also need to have some degree of trust.” She said “certainly” we can trust Shands data, and keeping a close eye on their admissions will provide information on the local situation.

Arreola asked, “As the State of Florida takes an approach and we get closer to the fall, and schools are reopening and restrictions are being lifted, you mentioned that our community is very vulnerable. One of my concerns is, how do we, as local decision makers, insulate ourselves if the whole state is not taking what I would say are the best steps, the best measures to prevent a second outbreak?”

“The fact is that the State of Florida has fared quite well, and everyone wants to theorize what that’s about. And I would say that there has been good decision-making at the state level in a lot of ways.”

Chacko replied, “Well, we can’t close our borders… The fact is that the State of Florida has fared quite well, and everyone wants to theorize what that’s about. And I would say that there has been good decision-making at the state level in a lot of ways.”

She suggested that the city commission could find someone to be a liaison between them and the Alachua County Health Department and UF Epidemiology Program and that they should find a way to tap into the expertise in Gainesville. She also said that instead of “fearing the worst,” specifically around students and drinking, they should think about “creat[ing] safe spaces for recreation, both off campus and on campus.”

Anyone who loses their job has a 60-day window to qualify for an Affordable Care Act exchange plan.

Chacko also wanted people to know that anyone who loses their job has a 60-day window to qualify for an Affordable Care Act exchange plan. The subsidy for those plans is based on current income, not past income, so “you might be pleasantly surprised to find out how affordable healthcare on the exchange is.”

Updates on GNVCares

City Manager Lee Feldman gave an update on GNVCares for Neighbors, which has closed its application window. He said they received about 1000 applications, only 800 of whom live in the city. He said it appears they will have enough funds to give grants to those who applied (and live within the city limits). 

The City has also partnered with the Human Rights Coalition and the Rural Women’s Health Project, providing them $30,000 of the GNVCares for Neighbors money “to go for those households that have undocumented neighbors within them.”

GNVCares for Business closed May 20 at midnight, and they received 266 applications. The first checks for the Neighbors program are expected to be out by May 29. Now that restaurants are open, the GNVFeeds program will be ending June 7. 

Other updates

The City has also started an outdoor seating program for restaurants, but Feldman said “oddly enough,” there was some resistance by local restaurant owners to closing streets, so only one street will be closed, near Loosey’s in the Lot 10 area. The City has processed  7 permits for seating in restaurants’ parking lots. 

The City’s mobile COVID-19 testing bus, staffed by Gainesville Fire Rescue personnel, began operation on May 21. 

Dog parks are now open with a 10-person limit, but benches were removed. People are encouraged to bring their own seating. Skate parks are now open, limited to 10 skateboarders at a time. Tennis courts are open for single play, and the tennis nets on every other court have been removed. The City is still looking at pools, wellness centers, community centers, playing fields for football and soccer, playgrounds, basketball courts, and Bo Diddley to decide when and how to re-open them. They are working on a plan for summer camps. 

Emergency ordinance to allow for civil citations

Commissioner Gail Johnson said she didn’t want “criminalize” not wearing a face mask. City Attorney Nicolle Shalley said she had an emergency ordinance ready for them to consider. She said the issue is that under state law, any violation of an emergency order issued by a city or a county is, by virtue of state law, a second-degree misdemeanor. However, local authorities can provide alternative methods for enforcement. The County has language in their order providing for enforcement by civil citation, but the City’s code says it’s a second-degree misdemeanor. The emergency ordinance “recognize[s] that the County is issuing orders that are effective county-wide, which they have the authority to do under the statute, and to be consistent with that and to allow City staff to enforce it in the same way that County staff is, this emergency ordinance would recognize that it can be done as a civil citation within the city of Gainesville.”

Continuing with comments about COVID-19 issues, Commissioner Adrian Hayes-Santos said he was concerned that there is a “strong push” against wearing masks. “And I have seen a down-crease in people wearing it the last couple of days. I don’t want this to be eroded by certain individuals in our community who I don’t think are taking our health seriously. We need to find a way to make sure that we’re doing what we can, and maybe it is doing a couple civil citations for people who are not following the orders might get people to wear it again.”

Commissioner Harvey Ward said the Alachua County Supervisor of Elections had reached out to him about making City staff available to work at polling places during the August elections. “Many of their volunteers are not going to be — they’re older folks who are worried about social distancing. They’re just not going to be available for the August elections… I very much want us to make, if it is possible, I want us to make City workers available… to volunteer at no cost to themselves to be election workers, election volunteers, if at all possible.” He moved that the commission direct the charter officers to come back with a plan for that. Hayes-Santos seconded the motion and asked to amend it to have that plan come back at the next city commission meeting. 

“… being very specific within the language in the Emergency Order, saying that violation of this order is a noncriminal infraction and that a violation of this does not authorize the search or arrest of any individual”

Johnson said she was still concerned about the possibility of criminal prosecution for violating the County’s Emergency Order. She wanted to remove the reference to Florida Statute 252.50 that allows for criminal punishments: “So removing the reference to that statute is the direction that it seems like we need to go in. And also being very specific within the language in the Emergency Order, saying that violation of this order is a noncriminal infraction and that a violation of this does not authorize the search or arrest of any individual. So just being very specific in the language.”

Shalley said they couldn’t remove reference to the statute, but they could allow it to be enforced as a civil citation. She said the County Order “[strikes] a balance” by saying “the County shall enforce” through fines for the first three violations. “So someone would have to violate it four times before they would be subject to the criminal penalties provided in the statute.”

Arreola said they need to spend more time talking about getting ready for fall and the return of the students than talking about mask enforcement. In line with Dr. Chacko’s suggestion for a liaison, he suggested having the City Manager appoint an EMS liaison to attend City meetings. 

“And I would always err on the side of regulating as little behavior as you have to, right? Because it’s what most of us do, most of the time, that matters.”

Dr. Chacko cautioned them to be judicious in mandating behavior: “All civic leaders have to walk a very fine line in discerning what behavior do we have to regulate and what behavior can we shape through creative programming, public spaces, campaigns, etc. And I would always err on the side of regulating as little behavior as you have to, right? Because it’s what most of us do, most of the time, that matters. Which is why I personally don’t get up in arms if one person didn’t wear their mask, because it’s really what most of us are doing that matters.

“So really keep that in mind in terms of thinking about this creatively and proactively and less punitively. To some extent we welcome freedom of choice, right? That’s part of our culture, and we put loopholes into our laws on purpose so that people can determine if they have a medical reason not to wear the mask, and we’re not going to pat you down, we’re not going to give our police force excuses to pat people down.”

They moved on to discussion of the emergency ordinance that gives them the ability to enforce the face mask order with civil citations. This screenshot is blurry because the City’s system is not high-resolution, but this is all that was provided to the public:

Johnson asked whether officers would be able to search someone if they stopped them to give a civil citation for not wearing a mask. Assistant City Attorney Lee Libby said, “If the officer sees a bulge or sees some type of other action by the individual that makes them think there’s something unlawful—except for the mask—then they would continue their investigation like they would normally. Or they smelled marijuana coming from around their body while they’re talking to them. That could lead to a pat down or other enforcement. But the mask violation alone would not allow that.”

“You have to trust them to enforce it lawfully. I mean, we give the police officers out there guns and everything else and trust them to make the right decision.”

Johnson was unconvinced, so Libby said, “You have to trust them to enforce it lawfully. I mean, we give the police officers out there guns and everything else and trust them to make the right decision. They don’t always do, don’t get me wrong, but I think the majority… I don’t think they even want to write a citation, if it comes down to it, to be honest with you. I’m not saying they won’t if they’re directed to. But it’s not like they’re out there trying to do something else.”

Ward said he would accept adding the emergency ordinance to his original motion but that he was getting  “increasingly uncomfortable with multipart motions.”

Skop: The city commission has “systematically violated” their own procedural rules.

During public comment on the motion, Nathan Skop said the city commission has “systematically violated” their own procedural rules. He said he had sent two emails to Mayor Poe about previous violations and that Poe had responded that they were going to do better. Skop pointed out that the emergency ordinance had been provided to the commissioners but not in the agenda backup. “It’s a blatant and knowing violation of your own rules of procedure.” He was also concerned about “separation of powers” in paying City employees to work at polling places. He further pointed out that a later item on the agenda (regarding the City retirement plan) had a previous version of a document, not the version that they would be discussing. 

Zissimopulos: “Shall creates a floor; it does not create a ceiling.”

The second caller was Nick Zissimopulos, a local attorney. He disagreed with Libby’s analysis, saying the ordinance “can be used to issue criminal penalties on the first issuance.” He said the City Attorney’s analysis hinges on the word “shall,” but the ordinance doesn’t say that the civil citation is the maximum punishment. He cited several examples in criminal law. “Shall creates a floor; it does not create a ceiling.” He said the ordinance makes it possible for an officer to decide there’s probably cause to issue a criminal penalty. “And if you do that, you’re allowing for stop, frisk, search, and eventually potential jailing. And that’s the reality.” He suggested alternative language. 

Shalley said she disagreed with that analysis because “in our world,” in City and County ordinances, “shall means that’s how you need to do it for the facial covering component of this.”

Shalley also admitted that Skop was correct about their procedures: “Certainly we didn’t meet the agenda time frame for submitting that emergency ordinance, but your rules do provide that you can waive the rules except those that are required by law or that involve notice, and I’ve advised you all that the emergency ordinance does not involve any notice. It can be waived by a two-thirds vote of the members present, so you could both waive your rules and adopt the emergency ordinance, which I forgot to tell you also requires a two-thirds vote. Five of you would have to waive the rules and adopt the emergency ordinance.”

Poe also acknowledged that there was a “misplaced attachment to that item that was referred to” by Skop. So they continued that item to their June 4 meeting.

They split the motion, with the first vote being to waive their rules and adopt the emergency ordinance. That vote passed unanimously.

The second part was regarding allowing city employees to volunteer (while being paid by the City) in the August elections. That also passed unanimously. 

Waldo Road and 39th Avenue

The commission discussed the land at Waldo Road and 39th Avenue that the County intends to lease to the Army for an equipment maintenance facility. They decided to send two letters to the County: one to ask if the City can add the property to their Community Redevelopment Act (CRA) district, and one to ask the county to carve out a lot on the corner of the property for commercial use. The CRA portion passed 5-2, with Arreola and Commissioner Gigi Simmons in dissent. The second part passed unanimously. 

Food truck parks

They also passed (6-1, with Arreola in dissent) an ordinance on first reading that would allow the development of food truck parks. That will have to come back for a second reading. 

Putting homeless people in hotels

Ward made a motion asking the City Manager to, “if his office deems necessary,” house the 24 homeless individuals that were discussed in Tuesday’s meeting in hotels for a month. Hayes-Santos asked for clarification of the cost and was told that the City would be responsible for 100% of the cost because the County had decided not to proceed. Hayes-Santos said he thought the County should pay for all of it. 

Johnson said she agreed with Hayes-Santos: “I absolutely do believe that the County needs to be paying for this, but I think there is a failure of them to act to protect our most vulnerable folks here, and in the absence of them acting, I think it’s important for us to step up to the plate, but let me just say for the record, I’m incredibly disappointed in some of the decision-making around our homeless population of the County because the County is ultimately responsible for social services.”

Poe said he supported housing the homeless individuals in a hotel but agreed with Hayes-Santos and Johnson that the County should pay for it: “I mean, if they’re not going to do this, we have to.” The vote was 6-1 in favor, with Hayes-Santos in “stand-on-principle dissent,” according to Poe. 

They did not discuss the cost during the meeting, but the estimate in the May 19 meeting was that it would cost about $40,000 per month.