The Honolulu City Council on Wednesday approved a bill that bans camping or putting up tents along “city-owned streams” if doing so creates a public health or safety risk.

Bill 46 was sponsored by Councilman Joey Manahan, whose district includes Kapalama Canal — the site of a burgeoning homeless encampment with more than 50 tents.

Also Wednesday, the council signed off on another expansion of the city’s controversial “sit-lie” ban, a series of ordinances prohibiting people from sitting or lying on sidewalks and in pedestrian malls.

Introduced by Councilwoman Carol Fukunaga, Bill 44 applies the sit-lie ban to two malls — College Walk Mall and Kila Kalikimaka Mall — in her district’s Aala area.

Low tide along the bmuddy banks of the Kapalama Canal near tents. 4 june 2015. photograph Cory Lum/Civil Beat

A growing homeless encampment along Kapalama Canal could be affected by a bill the City Council passed Wednesday.

Cory Lum/Civil Beat

Both bills were adopted on 7-2 votes — with council members Brandon Elefante and Kimberly Marcos Pine in opposition — despite lingering concerns that they won’t pass constitutional muster.

Jesse Broder Van Dyke, spokesman for Mayor Kirk Caldwell, told Civil Beat that the mayor is “unlikely to sign” Bill 44 because of its legal vulnerability.

“Mayor Caldwell introduced the first sit-lie bill in Honolulu and supports the concept,” Broder Van Dyke said. “However, he has consistently said … that for sit-lie to be legally defensible in federal court it can only apply to business districts during the hours they are open for business. Mayor Caldwell modeled the Waikiki sit-lie bill after Seattle’s law, which was the first to hold up in federal court because it was limited it to a defined business district during the hours that commerce was occurring in that area.”

But Caldwell is in favor of Bill 46 and “intends to sign it, pending a final legal review,” Broder Van Dyke said.

Manahan said both bills “are unfortunate but they are necessary.”

“When we have these encampments, and they become too entrenched, the conditions become dangerous, not just for people who may be in the area, but for people who are living there themselves,” Manahan said. “With Kapalama Canal, my concern is that … we’re not enforcing the expanded sit-lie ordinance, which is already in effect out there. What that does is basically say that the city is supporting, or somewhat supporting, an encampment where we’ve had assaults, we’ve had stabbings.”

The council’s votes came one day after a group of advocates rallied in front of Honolulu Hale, lining King Street with signs proclaiming, “Repeal Sit-Lie Now” and “Housing, Not Cruel Laws.”

The Housing Now Coalition also delivered a letter to state and city officials to urge them to halt the sit-lie expansion and make affordable housing their top priority.

“While we understand the logic behind implementing sit-lie laws, they are clearly not working as planned, making it difficult for the houseless to leave poverty and impeding social service providers from helping this vulnerable population get back on its feet,” the letter said. “Why waste precious time and money with policies that only increase the hardship of unsheltered people while failing to solve the underlying problem?”

Elefante concurred Wednesday, saying the sit-lie ban “only moves (homeless people) around. And it makes it quite difficult for our brothers and sisters who are homeless to really get back on their feet.”

The sit-lie ban was first adopted last year in Waikiki as a means to prod homeless people into shelters where they can receive needed services, a theory underpinning what Mayor Caldwell calls “compassionate disruption.”

But, even before Wednesday, the City Council’s repeated expansion of the ban was opposed by Caldwell himself. In May, Caldwell vetoed Bill 6, which he said contained “legally flawed language.” He and the Corporation Counsel Donna Leong were concerned that it expanded the ban’s boundary beyond Honolulu’s premier business districts, putting the city into perilous legal waters.

In June, the council overrode Caldwell’s veto.

In its testimony regarding the latest expansion, the Hawaii Appleseed Center for Law and Economic Justice wrote that the move makes the city “highly subject to legal challenge.”

“There is precedent that the criminalization of homelessness without adequate shelter space has been struck down as cruel and unusual punishment, and we lack adequate shelter space for families,” the center wrote.

But Manahan said the move is necessary because the Caldwell administration isn’t “moving fast enough on creating new housing.”

“As long as they’re doing that, we have no choice but to legislate more sit-lie,” Manahan said.

Kamana’opono Crabbe, chief executive officer of the Office of Hawaiian Affairs, expressed concerns in his written testimony that Manahan’s bill regarding streams could affect “numerous constitutionally recognized Native Hawaiian” activities.

“There are a number of Native Hawaiian traditional and customary and subsistence harvesting practices relating to streams and estuarine areas, which may be inadvertently impacted by this measure,” Crabbe wrote.

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