By By Claire O’Callahan Gillian Heck — The Berkshire Eagle The Berkshire Eagle
PITTSFIELD — A day after a City Council subcommittee kicked back his proposed camping ban, Mayor Peter Marchetti on Tuesday said he is “very open” to making the changes that were requested.
Marchetti was among the attendees at Monday night’s meeting of the Ordinances and Rules subcommittee, during which opponents and supporters aired their thoughts about the proposal before a discussion by the councilors.
“I think that their requests are reasonable and I clearly hear the intent that if we’re going to have legislation it needs to be crystal clear what the intent is and not open to interpretation,” he said. “We’ll be working to bring additional new language and a new schedule forward.”
Marchetti proposed the ordinance in May after hearing concerns from business owners about homelessness impacting their businesses. The proposal, which would ban homeless people from sleeping on all public property, immediately met with pushback from advocates who said it would criminalize homeless people without addressing the causes of homelessness.
In sending the measure back to the mayor’s office, members of the subcommitee called for a number of changes, including removing provisions that would charge homeless people with criminal penalties and prevent private-property owners from allowing people to camp on their property for more than three days.
The councilors also asked the mayor and city solicitor to develop a fee schedule that begins with a written notice for the first offense, followed by fees below the established rates of $50, $100 and $300.
Councilor Rhonda Serre proposed removing the civil penalties from the ordinance entirely, but Council President Peter White and the city solicitor pushed back, arguing that would make the ordinance unenforceable.
“I’m very happy that we are talking about taking criminal penalties off the table,” Serre said. “[But] if you can’t get blood from a stone, why are you imposing civil penalties on people that have no resources?”
MAKING CHANGES
Earlier this month, Pittsfield’s Public Health and Safety Committee and Homelessness Advisory Committee voted to refer Mayor Marchetti’s proposed camping ordinance to the Ordinances and Rules subcommittee.
But they requested two amendments — the removal of provisions that would burden homeless people with criminal penalties and ban private property owners from allowing people to camp on their property for more than three days.
On Monday night, the Ordinances and Rules subcommittee endorsed those recommendations, and added requests of their own.
“It’s unconstitutional to criminalize homelessness and we all swore oaths to the constitution, so it’s a no-brainer to take that section out,” said Councilor Patrick Kavey.
But even with the removal of the criminal penalties, Kavey said he is “really concerned” that the ordinance will result in selective enforcement. In particular, he asked the mayor and city councilors to review the definition of camping paraphernalia — which the ordinance currently defines as “bedrolls, tarpaulins, cots, beds, sleeping bags, hammocks or cooking facilities and similar equipment.”
When Kavey asked the city solicitor, Devon Grierson, who would define “similar equipment,” he said “it would be up to the officer enforcing it.”
“When you bring this back like Councilor Serre has asked you to, can you also figure out a way to word section four better so we don’t have people picking and choosing what they’re enforcing and not enforcing?” Kavey said.
ENFORCEMENT WITHOUT CRIMINALIZATION?
The councilors agreed unanimously to remove criminal penalties from the ordinance, but their consensus splintered when it came to discussing civil penalties.
“I’m saying let’s take it a step further,” Serre said. “Let’s get rid of the civil requirement for it and just completely take out the entire subsection two of enforcement so that it’s not criminal to follow the mission of a nonprofit organization or to be a kind compassionate human.”
In the current language, people who sleep on public property in the city and anyone “causing, permitting, aiding, abetting or concealing” them will be subject to civil penalties.
Community organizers, mental health professionals and business owners who offer support to people experiencing homelessness have said such penalties would hinder the work they do. Erin Forbush, who directs housing and shelter for ServiceNet, told the committee that the ordinance will burden the shelter with fines because she will continue to provide resources to homeless people, regardless of whether the city deems it illegal.
Marchetti resisted Serre’s recommendation to remove the civil penalty for service providers, advocates and concerned residents.
“If you know that there is a law that says you can’t camp in parks, why do you give someone a tent?” he asked.
White and the city solicitor also defended the civil penalties for homeless people and their advocates, arguing that without them the ordinance would be unenforceable.
“I’m not sure how the ordinance would be enforced at that point,” Grierson said. “If there’s no civil or criminal penalties, I’m not sure what the penalties would be.”
Instead, White proposed altering the fee schedule for civil infractions. The councilors recommended unanimously that the mayor and city solicitor make the first offense a written notice, followed by a lower tier of fees. In the current language, anyone violating the ordinance would be charged $50 for the first offense, $100 for the second and $300 for each subsequent offense.
Before making the recommendation Counselor Dina Lampiasi asked the solicitor what happens if someone cannot pay the fine, regardless of the cost.
“There are probably tens of thousands of unpaid fines due to the city for all sorts of offenses that have gone uncollected,” he said. “We’ve attempted to work with the DA’s office and the city clerk of the court to try to come up with some sort of enforcement mechanism, but at this point we haven’t been able to.”
Housing advocates and community leaders said they are thankful that the councilors voted to remove the criminal penalties, but they said that’s not enough to ensure homeless people won’t be criminalized for having nowhere else to go.
“Noncriminal penalties can still lead to criminal complaints,” said Sean Manion, lead organizer for Berkshire Interfaith Organizing. “If you are issued a fine and you cannot pay or do not pay it by the time you’re supposed to, you could be issued a criminal complaint.”
WHAT COMES NEXT
While the mayor and the city solicitor revise the ordinance, community organizers said they plan to use the next three weeks to foster conversations between themselves, service providers, business owners and people experiencing homelessness.
“The morals and the data are on our side, so we’re going to keep agitating the public,” said Michael Hitchcock, who co-founded Roots & Dreams and Mustard Seeds. “It’s a shame that we’re going to have the community conversations without the mayor. He should have been arranging them as a leader, but he failed to do it.”
Ultimately, the organizers said they want to see the ordinance thrown out completely.
“What I would really like to see is that the ordinance is scrapped, and we start over with a process that is informed by community input on a very large scale,” Manion said. “I would like to see the voices and the perspectives and the needs of the unhoused population recorded and incorporated into that process.”