Regulating Behavior in Downtown Iowa City

In mid-August of this year (2013), Iowa City government began considering a new ordinance to prohibit certain behaviors on the city’s downtown Pedestrian Mall. Although the City Attorney properly notes that the Council is intending to regulate behavior, not individuals, it is clear that the regulatory effort is a response to the behavior of a relatively small cluster of individuals, many of who are homeless or transient.

Iowa City thus joins many other cities around the U. S. that fear the presence and behavior of homeless/transient individuals will thwart or undermine the cities’ efforts to support existing businesses and to attract new businesses, residents, and visitors downtown.

As described in an August 15, 2013 memo from Asst. City Manager Geoff Fruin to City Manager Tom Markus, the proposed ordinance was drafted in response to  “a growing number of complaints about behaviors in the downtown, especially in the Dubuque Street and Washington Street entrance to the Ped Mall.” These complaints highlight “aggressive behaviors, loud and vulgar language, storage of personal property in public spaces, smoking, littering, aggressive panhandling, and obstruction of public walkways and public amenities (e.g., benches and planters) in a manner than prohibits use and enjoyment by others.” According to the draft ordinance itself, these behaviors have produced a “sense of fear, intimidation, and disorder.” Fruin’s memo also states that both the City and the Downtown District “have exhausted non-regulatory approaches to this issue and thus now need to consider ordinance modifications aimed at mitigating the behaviors…” Fruin’s memo further reports that the City and the District have researched approaches taken in similar communities and that Staff has worked with the City Attorney to make sure that legal issues are being addressed appropriately.

As summarized by Fruin, the proposed ordinance would regulate certain activities on the Ped Mall and on the downtown sidewalks. It would limit the storage of personal property, prohibit lying on benches (except from 10 pm to 5 am) and on planters, and prohibit soliciting near parking meters and at City Plaza entrances. It would also restrict the use of electrical outlets to those who have obtained written permission. No citations would be issued until the offending person has been notified by a peace officer that the action violates city ordinances. Fruin also reports that the Police Department is working to create a diversion program, which would enable some offenders to conduct community service in lieu of paying the proposed $65 fine.

The proposed ordinance is not the City’s first effort to control certain behaviors in the downtown area. Prior steps taken by the City Council include its adoption in 2008 of a series of constraints on where people can solicit, lie or sit on sidewalks, or smoke, and to increase the fine for littering on the Ped Mall. In 2010 the Council constrained even further where people can smoke or solicit. And earlier this year, the City’s Library Board banned sleeping in the Library. These efforts are, according to Fruin’s memo, intended to “ensure that our public spaces can be utilized and enjoyed by all persons.”

The City Council held a public hearing and took its first vote on the proposed ordinance five days after Fruin’s memo announced the intended action. The motion to adopt passed 6-1, with me voting no. Two weeks later the Council I moved to amend the ordinance in several specific ways. That motion lost 1-6. The subsequent motion to approve the second reading passed 5-2, with Susan Mims and me in the negative. On September 17, the Council voted 6-1 to pass and adopt the ordinance, with me voting no.  

Why I voted against the proposed ordinance, and what I think we do instead

Everyone I have spoken with agrees that the situation has grown more troubling over the past six months or more, and that something needs to be done about it. From that point on, people disagree. Some think the downtown has become more dirty and dangerous, and they warn other people not to go there. Others think the proposed ordinance is just another step toward sanitizing the Ped Mall area through police enforcement, and that prior Council actions have (when coupled with the construction currently underway) contributed to the worsening situation.

I am persuaded that the situation needs attention, but I am not persuaded that the proposed ordinance will improve things.

I expressed my concerns and values during the August 20 and September 3 formal meetings of the City Council, and very briefly during the September 17 meeting. The following paragraphs synthesize what I said on those nights. 

We should deal with the situation in a thoughtful and compassionate way. The people of concern are fellow human beings and part of the Iowa City community. Although many of them are experiencing very difficult personal challenges, they have as much right to the city as any other resident. As Reverend Michael Langer said during the August 20 public hearing, we need to treat everyone involved with justice, mercy, and dignity.

We should clearly define the problem we are trying to solve. My sense is that we are confronting an acute, spatially-specific, manifestation of the problem of homelessness, transciency, and associated ills (such as mental illness, drug addiction and alcoholism). Although this larger problem is neither unique to Iowa City nor completely within the powers of the City to solve, there are many useful steps we could take to address it. Consequently, if the Council adopts the proposed ordinance, it should simultaneously promote and support a better community-wide response to the underlying problem. 

When deciding how to address the problem, we should emphasize that we value the individuals involved, and that we value the inherently “public” character of public space. The draft ordinance contains 23 “whereas” clauses, all of which basically indicate that we value having traffic flow freely; we value having a downtown that is attractive, vibrant and economically rewarding for downtown businesses; and we value shoppers and visitors feeling safe when they come downtown. These are important values, which I share. Having a healthy downtown is important for our city. But none of the clauses say anything about valuing the “offending” individuals themselves, or valuing the inherently “public” character of public spaces. Public spaces provide opportunities for diverse people to encounter one another, often in ways that make some people feel uncomfortable. They are places where one is likely to encounter strangers who might not share one’s values, history, or perspective.

Before adopting new regulations, we should reassess the wisdom and effectiveness of existing ones. The Council has already adopted several related ordinances over the past five years. The resulting map of prohibited behaviors is so complex it cannot be fully or clearly drawn. These prohibitions have had the unintended consequence of clustering specific people into one specific part of the Ped Mall. Moreover, as Ruth Lapointe’s guest opinion in the September 15 edition of the Iowa City Press-Citizen documents, the Council’s prior actions have also had the perverse consequence of prohibiting street musicians from playing on the Ped Mall (if the musicians collect tips from passers-by). Before we adopt a new ordinance, we should reconsider the existing code and carefully assess what will be gained by regulating behavior further.

There needs to be more objective evidence that the situation has become dangerous.  I recognize that many people, myself included, often feel uncomfortable when they walk past certain people downtown. I also recognize that some people think downtown is dirty and dangerous, partly because of the presence of this cluster of people, some of whom are homeless. However, the fact that some of us feel uncomfortable does not mean that specific people in this specific location are dangerous. We should be careful to distinguish between behavior that makes some of us feel uncomfortable and behavior that is dangerous. Only anecdotal evidence of danger has been presented thus far. We should require better evidence.

On this point, does anyone really believe that limiting the storage of personal property, prohibiting lying on benches and on planters, prohibiting soliciting near parking meters and at City Plaza entrances, and restricting the use of electrical outlets to those who have obtained written permission will reduce or eliminate the truly reprehensible behaviors that many supporters cite when justifying the ordinance? No, they will not. What they will do is discourage specific people from inhabiting the Ped Mall. 

Prohibiting certain behaviors on the Ped Mall will simply shift people engaging in those behaviors to some other part of the city. The proposed ordinance basically defines the problem in terms of offensive and occasionally dangerous behaviors at the northern edge of the Ped Mall. It is highly unlikely that prohibiting those behaviors on the Ped Mall will eliminate them. More likely, it will simply shift them to some other part of the city. What will the Council do if and when “offending behaviors” occur in those locations?

Completion of the construction project will alleviate the situation, perhaps greatly. The proposed ordinance and background information refers to disorder, chaos and congestion. Some of this is caused by the staging area for the new publicly subsidized 14-story 201 S. Dubuque building being constructed on the Ped Mall (see photo). Moreover, the construction has made the space unappealing for other people who used to frequent it. If true, this suggests that the spatially specific aspects of the problem are likely to become much less acute once the staging area is available to other downtown users. This might eliminate the need for any new ordinance, or at least open up an opportunity to clarify and simplify the code after the new ordinance is adopted.IMG_5249

If we adopt new regulations on behavior, we should rely heavily on a community policing approach to enforcement. Everyone I have spoken with has praised the work of Officer David Schwindt, who was recently assigned to the new downtown beat. Officer Schwindt’s approach to enforcement perfectly exemplifies the “serve and protect” features of community policing that many Iowa Citians have rightly been advocating. As he is quoted as saying in the September 3 edition of the Iowa City Press-Citizen, “You can do a lot of bridge building with a pair of fresh, clean socks.”

The decision-making process has been flawed. Lastly, there has been a significant flaw—a democracy deficit—in the process by which the ordinance has been proposed and discussed. Geoff Fruin’s memo consistently states that “the City” thought this and did that, but the City Council was not involved in the actions his memo refers to. Instead, City staff presented the draft ordinance to the Council after lengthy discussions with the Downtown District and downtown business owners, but without prior discussion with the Council during a work session. Consequently, at least some of the Council members, and certainly the broader public, did not know new regulations were going to be proposed until just a few days before the public hearing and first vote on the ordinance. Moreover, the public hearing conducted on August 20 took place so late in the evening (approximately 11 pm) that many people who had intended to speak left before the Agenda item came up.

In brief, the proposed ordinance is unlikely to improve the situation and might actually make it worse (or simply shift it to some other part of the city). We would be better served by assessing and revising the existing code, strongly supporting the “community policing” efforts of Officer Schwindt, completing the construction project and thereby reopening more public space for public use, and promoting/supporting a better community-wide response to the underlying problem.

With these views in mind, I made two motions immediately after the Council passed the ordinance on the evening of September 17.

The first motion was to have the Council instruct staff not to enforce the personal possessions provisions of the ordinance until a location for safe, secure, and accessible temporary storage of personal possessions is provided.

The second was to have the Council acknowledge receipt of the Johnson County Local Homeless Coordinating Board’s (LHCB’s) recent working paper concerning the “Housing First” option and the Frequent User Service Enhancement, or FUSE, model; and that we direct the staff to assist the LHCB in to developing the details of how Housing First and the FUSE model could be used to respond better to the problem of homelessness and associated ills in Iowa City.

Both motions lost 1-6.

The good news is that more people are now thinking about what we can and should do to produce a much better community-wide solution to the underlying problems.


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