Miami-Dade camping law may clash with federal ruling | Miami Herald

When Miami-Dade commissioners voted unanimously this month to ban overnight camping at “county facility property,” they opened the doors to debate about how police should apply the measure to homeless people.

The action was a clear shot at the Occupy Wall Streeters who flooded public spaces, including outside County Hall, in the summer of 2011.

In addition to making it illegal to camp on county property, the measure toughens permitting rules for public gatherings and permissible “free speech’’ zones. It also gives police the authority to arrest violators, including the homeless.

But a 25-year-old court ruling could present a conflict, some legal observers say. A 1988 federal court decision in the Pottinger vs. The City of Miami case found that Michael Pottinger and about 6,000 other homeless people in Miami could not be harassed or punished for occupying public property because doing so would violate their fundamental right to travel, and to be free from cruel and unusual punishment.

The new ordinance specifically provides that if police direct a homeless person occupying a county facility to leave, the officer first must look for sleeping space for the homeless person at a county shelter. If there is none, or if the person refuses the option, he or she can be arrested for trespassing if they remain or return to the space.

An ACLU lawyer said the measure could again open the door for police to harass and arrest homeless people.

“We’re prepared to litigate should there be issues in the future,” said attorney Dan Palugyai, who sits on the board of the Greater Miami Chapter of the American Civil Liberties Union. “Our past experience tells us it’s likely, even probable.”

During the commission meeting, County Mayor Carlos Gimenez said the homeless — at least in Miami — were protected from arrest by the Pottinger case.

The new law defines impermissible camping as the “setting up of tents, shacks, or shelters for sleeping activities or making preparations to sleep [including the laying down of bedding for the purposes of sleeping], from the hours of sunset to sunrise.”

Miami First Amendment lawyer Tom Julin said he’s troubled by that wording.

“They’re not allowing the general public to do the same type of things that they, or organizations they approve of, do in a park,” he said, referring to the ING Miami Marathon and some concerts at Bayfront Park, both of which allow people to spend the night, even if there is no formal permission granted.

Commissioner Lynda Bell, who sponsored the ordinance, said it was “not meant to harm anyone.’’ After some homeless advocates expressed concern, the language was added directing police to first find shelter for homeless people and to arrest only as a last resort.

“We obviously think it’s legally sufficient,’’ said Assistant County Attorney Danny Frastai.

Still not entirely clear: How the new law would apply to county parks like Matheson Hammock Park or Haulover Beach Park. At the final meeting before the full board of Miami-Dade County Commissioners when the ordinance was adopted, it was amended from not allowing camping on “county property,” to not allowing it on “county facility property.”

“We interpret facility to mean some type of structure, like a building,” said Frastai. “If it’s a park that has a structure, we’d have to look at it.”

That’s just sloppy language, noted Palugyai, the homeless advocate. “Hopefully, there will be opportunities to clean [the language] up.” The Occupy Wall Street crowd gathered on the west lawn at County Hall in Miami from the summer of 2011 until February, when they were finally evicted. The county says it spent between $10,000 and $17,000 cleaning up the mess left behind, and much more if you add police presence.

Though the group obtained a permit to camp out there, Miami-Dade Internal Services Director Lester Sola said they should have been directed to a different spot. He blamed the confusion on vague wording in the old code, which is what led to the revision. During the discussion, Commissioner Jean Monestime wanted to know why the county needed to legislate a camping ban.

“My apprehension here is we may be opening a can of worms here.”