Editor’s Note: A previous version of this article incorrectly stated that Fayetteville City Council Member Mario Benavente voted in opposition of the ordinance. Benavente voted to move forward with the ordinance. The council reached a consensus with a 9-0 vote to introduce the ordinance for further consideration at a future meeting. CityView apologizes for this error.
A new ordinance proposed by the city attorney’s office on Monday would make loitering illegal in the vast majority of cases in Fayetteville.
Loitering is defined in the ordinance as “remaining in a public place or on private property without permission for purposes that are unlawful or which unreasonably interfere with the use of such places by other persons having a right to be there.”
Assistant City Attorney Sonyé Randolph proposed the ordinance at Monday’s Fayetteville City Council meeting. Randolph said it was intended to address recent incidents that have raised public safety concerns in Fayetteville’s downtown parking decks. Fayetteville does not currently have laws in place to restrict loitering except for when it involves drug-related activity, Randolph said.
“So the limitations of that,” she said, “combined with recent incidents that have happened in our downtown parking decks have led to increased crime risk, property damage, some liability concerns and just inadequate law enforcement tools.”
The proposed ordinance bans people from staying on school grounds, at transportation facilities and city-owned or operated parking facilities without a specific purpose for being there. The ordinance also states it is against the law to stay in a public or private place while engaging in behavior that is perceived as “drug-related,” such as repeatedly stopping cars or exchanging packages that “could reasonably be determined to be unlawful drugs.” The regulation contains a “general” section that bans behavior on public or private property that could lead to public disturbance, cause discomfort or annoyance to others, obstruct passages for pedestrians or vehicles or interfere with the use of entrances and exits of businesses.
The council reached a consensus with a 9-0 vote to introduce the ordinance for further consideration at a future meeting. Council Member Lynne Greene was absent.
Before the ordinance becomes part of the municipal code, the council will have to take another vote to formally adopt it, along with implementing staff training on the new regulations and informing the public of the ordinance, Randolph said.
Council Member Mario Benavente — who is running for mayor in this fall’s municipal elections — said he agreed with most of the ordinance, but was concerned about the “general loitering” section. Unlike other sections of the ordinance that ban loitering under specific circumstances, this provision bans loitering based on subjective criteria, Benavente argued. For example, the ordinance states a person could be in violation if they “create or cause to be created any disturbance or annoyance to the comfort and repose of any person.”
The consideration of the loitering ordinance follows the city council’s approval of a youth curfew in May. At the time, some council members raised concerns about the curfew, saying it relied too heavily on officer discretion and infringed on civil liberties.
The loitering ordinance discussion also comes after the city recently passed other related laws, including a nuisance ordinance to restrict large, disruptive gatherings, and an ordinance that makes it illegal to block sidewalks or streets.
Benavente said he was concerned about the proposed loitering ordinance infringing on civil liberties and placing the onus on the individual to prove their innocence, especially in ambiguous circumstances. He said probable cause is left to an officer’s discretion, and expressed concern that this ordinance might lead to over-policing.
“We’re not really thinking about the second- and third-order effects and the true cost of the community when our tool after tool after tool is just more and more hammers,” Benavente said.
Mayor Mitch Colvin, who is running for reelection, disagreed. He said he had faith that police officers will not over-apply the ordinance and are trained to be able to determine probable cause and protect constitutional rights. He thought the language in the ordinance was adequate.
“Society has to have rules,” Colvin said. “We can’t just wait on it to fix itself.”
There are exceptions in the ordinance in cases where people are exercising First Amendment rights, such as protests, rallies or demonstrations. According to the proposed ordinance, warnings will be given before someone is prosecuted for breaking it.
Violation of the ordinance is considered a Class 3 misdemeanor, the least serious type of misdemeanor offense. The maximum penalty is 20 days in jail or a $50 fine, or both, for most offenses. However, if the ordinance breach occurs in city parking facilities, violators can be charged up to $500, per North Carolina General Statute. The court can also prescribe community service in addition to or instead of the other penalties, according to the ordinance.
Government accountability reporter Evey Weisblat can be reached at eweisblat@cityviewnc.com or 216-527-3608.
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