CLEARWATER — What's the difference between a homeless person and a sit-in protester?
According to Clearwater's proposed ban on sitting in public rights of way: a sign.
The ban would cover public rights of way downtown, on Clearwater Beach and in the East Gateway neighborhood, and resistant sitters could face fines or 60 days in jail.
But exceptions to the ban — including sitting on a bench or wheelchair, or while holding protest-related "signs or literature" — could provide a way around the rules.
Any homeless advocacy group looking to sidestep the sitting ban "should arm every single homeless person with brochures or small signs or booklets," Tampa lawyer Eric Adams said. "They would stop being homeless folks sitting in the forbidden areas, and they would start being protesters now protected by the First Amendment."
That small detail could become a big loophole in the ban, likely to be approved by city leaders next week. But attorneys say those exceptions are key to keeping the city's ban on solid legal footing.
As written, the ban "does not make a crime out of the status of being homeless. It regulates conduct: my conduct, your conduct, anyone's conduct," said Richard A. Harrison, an attorney and adjunct professor at the Stetson University College of Law.
"The city certainly has a legitimate interest in protecting its economic investment, protecting its tourist environment. It's likely to survive any legal challenges."
City officials say the sit-lie ban — as well as other proposed city laws against public sleeping, public bathing and street solicitation — was crafted after months of research and is legally defensible.
Some residents have cheered the bans, thinking the new rules will push undesirables elsewhere. Though the proposals still require a final vote from the City Council to become law, police officers began training on enforcement of them this week.
If Clearwater passes its sit-lie ban next week, it would join a host of other cities with similar laws, including St. Petersburg, Denver, San Francisco and Seattle. A National Coalition for the Homeless report in 2009 found that 30 percent of the 235 cities it surveyed restricted sitting or lying down in public.
In Portland, Ore., where two attempts at sit-lie bans were ruled unconstitutional in the courts, a third law allowing sitting on sidewalks' outer edges and leaving a 6-foot "no sitting zone" in the center was passed in 2010. The liberal stronghold of Berkeley, Calif., will decide on a ban similar to Clearwater's in November.
Some of these rules have legal gray areas. In San Francisco, where banners were hoisted declaring "Sidewalks are for People," some critics built and installed wooden benches — an exception that could also work under Clearwater's proposed law.
After Tampa passed a panhandling ban with an exception for newspaper sales in November, a community publisher, the late Bill Sharpe, began printing a street newspaper, the Tampa Epoch. Its distribution transformed some homeless people from vagrants to protected vendors under the law.
Legal challenges brought by advocates for the homeless have generally centered on First Amendment freedom of speech, Eighth Amendment protections against cruel and unusual punishment, and the Fourteenth Amendment's Equal Protection Clause. Courts also have swatted down some laws, including ones against loitering and vagrancy, as too vague to enforce.
But in many cases, courts have sided with cities and their concerns over crime, cleanliness, aesthetics and public safety, according to a 2009 article, "America's Lost Cause," in Boston University's Public Interest Law Journal.
Judges also have protected cities' rights to regulate behavior they claim is detrimental to the public interest, rejecting opponents' claims that the laws unfairly target the homeless and working poor.
In a 1996 Seattle case, judges rejected a legal challenge to a sit-lie ban on public sidewalks, saying that sitting or lying on sidewalks could be "dangerous to pedestrian safety and economic vitality."
Florida advocates who fought laws affecting the homeless have scored some landmark victories. The Florida Supreme Court in 1965 swatted down a Miami vagrancy ordinance targeting "habitual loafers," saying "innocent victims of misfortune" made homeless should not face criminal punishment.
And in 1992, federal judges said Miami's arrests of the homeless for acts of living they had to perform in public were unconstitutional. In a settlement, the city opened a $600,000 compensation fund for homeless plaintiffs and agreed to offer rides to shelter in lieu of more arrests.
Few recent local legal cases have seen similar success. A federal lawsuit against St. Petersburg was tossed in 2010 when a judge ruled it was within the city's right to arrest people sleeping in downtown rights of way. A legal challenge in Clearwater, attorneys say, would likely end the same way.
"The city is well situated to prepare itself to defend the validity of the ordinance. But all of this comes with a price tag," Tampa attorney Adams said. "It costs money for these organizations to hire lawyers, and it costs the city to pay for their city attorneys. I wonder whether all of those dollars might be better spent on trying to create more beds."
Contact Drew Harwell at (727) 445-4170 or [email protected] Send letters to the editor at tampabay.com/letters.