Text by Sarah Phelan
Asking for change outside local nightclubs could end up costing you $100 or a stint in the county jail, thanks to a newly enacted loitering ban that's aimed at making clubbing safer but threatens First Amendment rights.
Google the phrase “we met outside the club” and you’ll get all sorts of interesting hits, mostly involving luscious bands, lascivious strippers and a crazy story titled “Getting laid Brazilian style.”
But meeting band members, picking up strippers and getting laid San Francisco style by people you met outside clubs here just got potentially harder, thanks to loitering legislation that the Board of Supervisors passed yesterday, in an effort to make clubbing safer. And then there are the usual questions about how this legislation impinges on people’s First Amendment rights and how it will most likely end up netting a bunch of homeless folks rather than hardened criminals.
“The areas outside nightclubs have become the site of robberies, assaults, stabbings and shootings” states the loitering ban that the Board passed in a 9-2 vote, with Sups. Chris Daly and John Avalos dissenting.
“In addition, the Board finds that persons attending nightclubs have become intimidated and fearful for their safety because of the presence of persons loitering outside the clubs. Prohibiting loitering outside nightclubs will assist police and club security staff in protecting club patrons and may decrease the incidence of crimes of violence directed at club patrons by providing law enforcement officers with an additional crime-fighting tool that does not infringe on any person’s basic right.”
“We know that acts of violence take place outside nightclubs,” said Sup. Bevan Dufty ahead of yesterday’s vote on the legislation, which Mayor Gavin Newsom and Sup. Sophie Maxwell introduced, following a rash of violent incidents outside clubs.
“You cannot be cited if you are exercising your First Amendment rights,” claimed Bob Davis, executive director of the Entertainment Commission, while Deputy City Attorney Cheryl Adams assured the Board that to survive First Amendment challenges, the Board’s city operations and neighborhood services committee heard testimony from the San Francisco Police Department and club owners, testimony that included what Adams described as “anecdotal evidence about challenges club owners face.”
“It was important to establish a record at the committee level, so that there is evidence to support action if the Board does want to take it,” Adams said.
A loiterer, for the purposes of this legislation, is a person who “remains a pedestrian for a period of over three minutes within ten feet from the entrance of a nightclub or within ten feet from any point on any lines formed at the entrance to a nightclub.”
The legislation does not prohibit a) waiting in line to enter a club, b) being present in a club’s designated smoking area, c) waiting for a bus or waiting to enter a theater or other business and d) any lawful activity more than ten feet from the club’s entrance.
Officers must warn folks and give them an opportunity to comply, before citing and/or arresting a person under this newly passed ordinance. And violators can be deemed guilty of a misdemeanor or an infraction.
If charged with an infractions, “loiterers” will be fined $50-$100 and/or community service. But if charged with a misdemeanor, they will be punished with a $200-$500 fine and/or community service, or six months in the County jail, or fine and jail. And those fines increase with subsequent convictions, though the jail time remains the same.
Sup. Chris Daly was the only board member to ask about First Amendment rights.
Observing that testimony heard in committee, “may be different from what is happening out in these neighborhoods,” Daly acknowledged that supporters of the legislation argue that it will be “an effective tool to make bad situations in front of certain clubs better.”
“I get that, yet the constitutionality [of this legislation] remains a serious problem,” Daly said, noting that “if you are a homeless person asking for spare change [outside a club], you’re going to get moved along.In order for this legislation to be effective, you need to violate the U.S. Constitution—and you won’t solve the problems that are real.”
Loitering legislation in the United States has a long and unfortunate racist history, and it was used in the Civil Rights era to break up protests and once even to prevent testimony by Dr. Martin Luther King, Jr, who was arrested for loitering in the courthouse.
More recently efforts to adopt an anti-loitering law in Chicago in 1992 to restrict gang-related activity, was struck down by the Supreme Count, as unacceptably vague.
Chicago has since adopted a revised version in which loitering is defined as "remaining in any one place under circumstances that would warrant a reasonable person to believe that the purpose or effect of that behavior is to enable a criminal street gang to establish control over identifiable areas, to intimidate others from entering those areas, or to conceal illegal activities.”
It’ll be interesting to see how well San Francisco’s legislation stands up to the legal challenges that likely lie ahead of this ban in a town where people pride themselves on hanging out on the sidewalk and where protesting bans of any sort has become a professional art form.