Sleeping, sitting or lying down on city sidewalks would be barred under a bill being considered by the Honolulu City Council.

The ban, which gets its first airing before the council tomorrow, would be applied throughout O'ahu. But Councilman Charles Djou said he introduced Bill 69-09 to address concerns raised by businesses and residents in Waikiki, where sleeping on city sidewalks is a growing problem.

Community leaders said the problem is worst at night when Kapi'olani Park and other city facilities close. The city last year began enforcing an ordinance that bans camping at city parks from 10 p.m. to 5 a.m.

"When they move out of the pavilions (at the beach) at night, they move over to the Pacific Beach (Hotel)," said Bob Finley, chairman of the Waikiki Neighborhood Board. "We encouraged Charles to do something about it."

David Lewin, general manager of the Hyatt Regency Waikiki Beach Resort and Spa, estimated there are about a half-dozen people who sleep along the mauka sidewalks of Kalakaua Avenue between Ka'iulani and Kapahulu avenues from about midnight to sunrise.

"There are a lot of people sleeping on the streets in Waikiki," Lewin said. "It's not very sanitary and it's not very appealing to the people that live here, and certainly (not to) the people who visit here."

The bill, however, is already drawing opposition from the American Civil Liberties Union, which called the proposal an infringement of constitutional rights.

"This bill would certainly lead to an immediate challenge under the Hawai'i Constitution, as it implicates fundamental rights, including the rights to freedom of movement and freedom of association," said Daniel Gluck, senior staff attorney for the ACLU of Hawai'i.

The bill states: "No person shall sleep, sit or lie on a public sidewalk, or on a blanket, chair, stool or any other object placed on a public sidewalk."

Exceptions include sitting or lying down due to a medical emergency or incapacitation, sitting on a bike, bus or park bench provided by the government or private owner, and sitting to watch or participate in a parade or other event.

The bill says a person must first be given a warning by a law enforcement officer before a violation could occur. A citation could result in a fine of up to $50 for each violation.

Last year's overnight park camping ban has done a fairly good job keeping people out of the facilities, Djou said.

However, "a lot of the vagrants in Kapi'olani Park ... during the hours when camping is prohibited, merely move to the sidewalk," Djou said. "It seems to be exploiting a loophole in the law."

Djou said he is still receiving "lots of complaints from my Waikiki constituents."

COMPLAINTS CITED

Finley, the Waikiki Neighborhood Board chairman, said complaints have been coming up practically every month. "We have nothing, really, against homeless people," he said. "It's just we're trying to generate income in Waikiki and we're getting complaints from visitors as well as residents that it's just turning into an ugly situation down there."

Rick Egged, president of the Waikiki Improvement Association, said the organization has not issued a position on the bill. Generally, he said, "it's always been our position that the sidewalks need to be kept clear for people to be able to move from one place to another. Sidewalks are for transit. They're not meant for commerce, they're not meant for sleeping or anything else of that nature."

The bill does not target homeless people "per se," Djou said. In general, however, "I don't think sleeping on the sidewalk is appropriate — that's not the intended use of a city sidewalk."

Recognizing that there could be a legal challenge to the measure, Djou said he asked council attorneys to find language that passed legal muster in other jurisdictions. The language in the bill is similar, although not identical, to language used in an ordinance adopted by Seattle. That bill got back a favorable ruling from the 9th U.S. Circuit Court of Appeals.

The ACLU Hawai'i chapter is submitting testimony opposed to the bill, calling it unconstitutional and too broad.

A person may not be able to solicit donations or signatures, register voters, protest government action or inaction, or other acts protected under the First Amendment, whenever such an act would involve sitting or lying down, Gluck said.

Honolulu Police Department spokeswoman Michelle Yu said police leaders are reviewing the bill and discussing it with prosecutors.

Last month, Councilmen Nestor Garcia and Rod Tam introduced a bill that would have created a city transit passengers' code of conduct which, in part, called for prohibitions against odors at buses and bus stops. It also included a ban on sleeping at transit facilities, including bus stops.

That bill, after heated testimony and national attention, was deferred indefinitely by the City Council Transportation Committee.

Gluck made reference to the "odor ordinance" when discussing the sidewalk bill.

"The City Council should find ways to make national news other than (by) proposing to violate the constitutional rights of the homeless and banning odorous people from buses," Gluck said in his testimony. "These proposals are embarrassing to us all; they do far more to damage our reputation with prospective tourists than the handful of street performers and homeless individuals who are the clear targets of this legislation."