Gainesville City Commission passes “unpalatable” ordinance prohibiting public camping on first reading

BY JENNIFER CABRERA

GAINESVILLE, Fla. – At today’s Gainesville City Commission meeting, an “unpalatable” ordinance prohibiting public camping passed on first reading with some modifications.

Ordinance is required under new state statute

The ordinance is required by Florida Statute 125.0231, which provides that Florida counties and municipalities may not authorize or otherwise allow any person to regularly engage in public camping or sleeping on any public property.

The ordinance modifies Article V of the City Charter (Public Rights-of-Way and Obstructions), which currently makes it illegal for any person to obstruct any right-of-way, including temporarily obstructing vehicular or pedestrian traffic; the changes add “public property” to “right-of-way” in that section of the Charter. The ordinance also adds “public camping or sleeping on any public property or right-of-way” as an illegal activity. The penalty would be a fine of $125. 

Property owners can file civil lawsuits starting on January 1 if they notify a local government in writing that someone is sleeping on public property and the local government does not address the issue within five days.

Phil Mann: “We don’t necessarily want to criminalize homelessness”

Special Advisor to the City Manager Phil Mann said, “One of the things that staff has worked on – and in addressing this, we said all along, we don’t necessarily want to criminalize homelessness, but with the implementation of House Bill 1365 and the requirements that go into place on January 1, we needed to be able to give the police department and the code enforcement department the tools they need – that if somebody absolutely refuses to move when we ask them, then we have those tools for our law enforcement… The big thing is, we’re going to try to get them to move on… Barring that, this will be our last resort because effective January 1, if we’re not addressing this, other folks have the ability to file suit against us.”

Ward: “If we don’t take action, people can take action against us”

Mayor Harvey Ward emphasized that part: “If we don’t take action, people can take action against us… As unpalatable as it may be, we can’t enforce a law that we must enforce without taking actions like this.”

Mann said the myGNV app will have a place to report encampments, so the City will be able to document reports of encampments and also document that “we did, in fact, interact with that camp and ask those people to move on and got compliance.”

Commissioner Bryan Eastman agreed, “As unpalatable as it is,.. it seems like… we just copied the [statute] language, word for word, into each one.” He asked why a violation was classified as an offense with a $125 penalty.

City Attorney Nee: “The goal isn’t to charge a fine. The goal is to move people along.”

City Attorney Daniel Nee said the enforcement mechanism is “consistent with other ordinance violations that we have… Here the issue is, the legislature has told us that a municipality may not authorize or allow public camping or overnight sleeping on public properties, and… our traditional enforcement mechanisms are civil citations… The goal isn’t to charge a fine. The goal is to move people along… And ultimately,… [we have the] ability to enforce a municipal ordinance violation, ultimately, by arrest, if necessary… If they move, you don’t have to penalize them at all.” Nee clarified that the $125 is a “fine on conviction” and that ultimately the court decides on the appropriate penalty if someone is arrested and convicted.

Nee also explained that if someone is camping or sleeping on public property, “it’s not likely that that’s a civil citation context, because if they’re willing to move, they’ve corrected the problem [and] won’t be issued a citation… If they’re not willing to move, that’s when a civil citation won’t do the trick,” and the person will need to be removed.

Nee said the $125 fine would be more in the context of a retailer blocking the sidewalk with merchandise and refusing to remove it within a reasonable time upon request. If it happens again, it can be elevated to a higher fine. He continued, “Our goal of implementing this isn’t in any way to criminalize or sanction homelessness; it’s the behavior of improperly being on public property or impeding travel in public right-of-ways. It’s the action, not the character or status of the person.”

Eastman said the $125 fine “is not a whole lot for, like, a bar or someone who’s blocking the right-of-way in large areas,” but he would prefer something like $25 or $50.

Saco: “We don’t really have a choice”

Commissioner Reina Saco said, “I think the general overarching point that I feel needs to be made about this is – we don’t really have a choice… And that’s kind of Tallahassee… making laws on behalf of the local municipality, and then you have to execute it.”

Mann emphasized, “Our overall goal here is to get people to move. It’s not to issue them a $125 fine, or whatever number this Commission settles on, or cart them off to jail. It’s to get them to a place where they get the services they need.”

Saco continued, “I wanted that to be on the record, that it is not out of any personal dislike or feelings up here; it is a requirement put upon us by Tallahassee.” She said she didn’t think the amount of the fine mattered because “if you’re sleeping on a sidewalk, you do not have $5 or $125 or $500. That is a moot point.” She pointed out that they didn’t have time to send it back to the City Attorney’s office for major changes because this is their second-to-last meeting of the year, and the ordinance needs to be in effect by January 1.

Outreach teams and Block-by-Block Ambassadors expected to be “first line of defense”

Mann repeated, “Our first goal is not to send the police department or code enforcement out there. Our first goal is to have [the Community Resource Paramedicine team], the GRACE outreach team, the new Block-by-Block Ambassadors – that is our plan to be our first line of defense.”

Ward responded, “And the counter to that… is that while that may be our first intent in this room now, it may not be the first intent… in future years… Regardless, I agree with Commissioner Saco; we are where we are. We don’t have a lot of choice.”

Definition change could require prohibition against people sitting or standing on medians

Commissioner Casey Willits asked about the definition of “Obstruct,” which changed from impeding the movement of vehicular or pedestrian traffic to impeding “with areas dedicated to or used for the” movement of vehicular or pedestrian traffic; he asked how that will affect medians. 

Nee said he thought it was maybe “an effort to be inclusive and not to give gray areas where we are accused of allowing people to be in areas or to stay in areas where the statute says we’re not allowed to.”

Willits followed up, “Is a median dedicated to the movement of the vehicular or pedestrian traffic?”

Nee said a median “could be included in that area,” but it would require a warning and reasonable time to move.

Willits said he wanted to make sure that “the legislative intent here is to not ban – quote, unquote – you know, panhandling in a median that currently is over six feet, as per current ordinance.”

Nee said, “It wouldn’t be whether someone is panhandling or holding a sign… It’s the being there… It’s the time, place, and manner of there being an obstruction in an area dedicated for the movement of vehicles, pedestrians, and so forth… People standing in the area of a median does obstruct the intended use of the right-of-way… It’s not intended for people to be sitting there all day long for whatever purpose.”

Willits asked whether the ordinance would ban sitting or standing on a median, and Nee said he thought it could be enforced that way.

Willits: “I don’t think [medians are] what most people thought we would be voting on today”

Willits said, “I don’t think that’s what most people thought we would be voting on today,” and Nee said the urgent part for the Commission was the public camping piece. Willits said, “I will be a no vote unless we somehow change or strike that.”

After public comment, Eastman said, “I feel uncomfortable criminalizing homelessness more than we’ve criminalized smoking. I mean, the smoking penalty is $25 – I think that would make sense for us.”

Motion and vote

Eastman made a motion to approve the ordinance with a penalty of no more than $25 for public camping and sleeping violations and to remove the additions to the definition of “obstruct” that could include medians. There were multiple seconds.

The ordinance passed 6-0 on first reading, with Commissioner Desmon Duncan-Walker absent.