With Birmingham City Council elections only five months away, Councilor Elias Hendricks is feeling the heat from downtown and Five Points South merchants who want the city to do something about the urine, excrement, and sleeping bodies discovered on business doorsteps each morning. It’s been 18 months since Hendricks first proposed an ordinance that would crack down on such trespassing. But he “resents” Mayor Bernard Kincaid’s referencing the ordinance as “criminalization” of the homeless. “This is about trespassing and about definitions of trespassing, and how those definitions have to change as we become a more urban environment with people living (downtown),” Hendricks told the Mayor. “It’s not denying anybody access to shelters, and it’s not against the homeless. It’s against a behavior, no matter who’s exhibiting this behavior.”

At his May 24 press conference following the weekly City Council meeting, Mayor Kincaid addressed the issue. “I think there’s a duty to protect the businesspeople and the residents who live downtown, to be sure. But there’s also a duty to provide adequately for that genre of citizens [the homeless]. So we haven’t done all we could do. And the councilor that is presenting this ordinance is the councilor that was most vehement in his opposition to the [abandoned[ Parisian warehouse becoming the place that would house (the homeless). We could have additional housing facilities, we could have counseling facilities, we have job opportunities, all in that property that’s lying fallow sitting over there on 26th Street . . . But NIMBY is alive and well—Not In My Back Yard—and that’s what we get everywhere,” explained Kincaid. “Trespassing is a criminal act. You can’t take a criminal statute and attach this doorway portion to it and pretend it’s not criminal in its scope and nature. Criminal penalties don’t provide for civil remedies.” The Mayor also had a startling suggestion. Referencing Councilor Carole Smitherman’s solution to a vagrancy problem by erecting a fence around the entrance to her downtown law office, Kincaid said, “[Councilor Smitherman] talked about putting up a gate, and when the business is closed, the gate was closed. And the sleeping in her vestibule stopped. Maybe we as a city can make resources available to business owners as a stop-gap measure, to be sure, that will help abate the problem while we search for a permanent solution.”

“That just seems like a gigantic waste of money to build fences for private residences and businesses,” said Jeff Tenner, owner of Soca Clothing in Five Points South, in an interview the day after the Council delayed the ordinance. “If somebody wants to build a fence, they should build a fence themselves. But a much simpler (solution) is to pass this ordinance, which is not really a new law at all. It just defines a certain area to make sure that it’s specific to trespassing.”

Tenner had addressed the Council during the Tuesday meeting. “Things need to happen simultaneously. We need to do what we can to get more shelter beds and to be able to help the people that need the help,” said Tenner. “But at the same time, we need to recognize that it’s an economic issue and that if we cannot give the police the tools needed to deal with those certain members of society who are breaking the laws, that it will affect the tax base . . . This is just a simple common-sense tool that says you cannot do things on my property that I don’t want you to do.”

Barbara Dawson, business manager of Chez Fon Fon in Five Points South, read a statement from Frank Stitt, owner of Highlands Bar and Grill, Bottega, and Chez Fon Fon. Stitt noted that he is “saddened and disturbed by the decline of the Five Points District.” The restauranteur complained of loitering and “very conspicuous drug deals” made in the Five Points South area. Stitt commented that homeless persons sleeping in doorways are also more commonplace now. “Consequently, the daily observance of men and women urinating and defecating on the walls of buildings and in potted plants and alcoves is increasing as well,” he wrote. Stitt added that he had witnessed panhandlers harassing visitors and the “unsolicited rantings of a person or persons gathered around the fountain.”

Michelle Farley, executive director of Metropolitan Birmingham Services for the Homeless, was on the original task force that crafted the ordinance, which Hendricks previously delayed so concerns for the homeless could be addressed. “There was work being done on solving the problem rather than putting a Band-Aid on the problem,” said Farley. She explained that Birmingham has a chronic homelessness rate (those homeless for a year or more) of 29 percent as opposed to a national average of 20 percent. While she sympathizes with businesses that deal with excrement and loiterers in doorways, Farley said there is another aspect worth considering. “When people are asked to move along, they don’t really have a place to move along to,” she explained.

City Attorney Tamara Johnson said the challenge for the law department is “to try to fashion a penalty that will allow some kind of punishment for these individuals who are breaking a law that the Council will enact but, at the same time, have some kind of humanity in it.” Johnson added that penalties for loitering in doorways “really depended on the moral compass of the Council in terms of what they actually want in the ordinance.” At the suggestion of the law department, the ordinance will be rewritten to address such items as a lack of specific definitions for “plazas and common areas,” and to make enforcement of the law city-wide. =-

“It was poorly written,” Kincaid said of the ordinance. “No one in the law department takes authorship of this document, and it’s wrought with problems, as I see it, just from a legal standpoint: the absence of definitions, the applicability of one part of it to one part of town and not to the other.” &