After grappling with concerns about constitutional rights and drawing a distinction between "behaviors" and "type of individuals," Burlington's city council voted unanimously Monday night to initiate what a Church Street Marketplace official describes as "a timeout for adults."
The new ordinance empowers police to issue a citation exiling an individual from the Marketplace. It specifies that a no-trespass notice can be handed out only to a person engaged in illegal actions such as disorderly conduct, property damage, public consumption of alcohol or possession of banned drugs. A first offense would result in banishment from the pedestrian mall for the remainder of a day; a second citation puts the Marketplace off limits for 30 days; and a third ostracizes an offender for up to one year.
Advocates argued that the new measure is needed because current penalties have not adequately deterred illegal behaviors on Church Street. Outdoor Gear Exchange owner Marc Sherman told councilors that potential customers don't want to expose their children to the "reality show at Church and Cherry" — the location of Sherman's store.
Councilors then debated what could be interpreted as an offensive or illegal "reality show."
Rachel Siegel, a Ward 3 Progressive, proposed stripping from the ordinance references to "inappropriate" or "antisocial" behavior. These terms are "extremely subjective," Siegel argued, noting that years ago when she was a Marketplace peddler, she regarded one store's amplified tape loop of Alvin & the Chipmunks as "antisocial."
Ward 4 Democrat Dave Hartnett added, "I don't want it to apply to people who have purple hair."
Chip Mason (D-Ward 5) earlier told his colleagues that city attorneys had offered assurances on the constitutionality of the ordinance's wording. The new rule, which is supported by social-service agencies, is not aimed at types of individuals, such as the homeless, but rather at unlawful forms of behavior, Mason added.
Police Chief Mike Schirling assured the council that no-trespass citations would be issued only in response to the four types of well-defined illegal activities. He said the ordinance would likely help prevent such actions from occurring because "people curtail their behavior" rather than risk expulsion from favored settings. That has been the case with City Hall Park and the Fletcher Free Library, where issuing a no-trespass order is already an option, Schirling noted.
"I do trust our police department to utilize this tool appropriately," commented Councilor Sharon Bushor, a Ward 1 Independent.
The council voted 11-2 to accept Siegel's amendment, and it then approved the reworded ordinance with no dissenting votes.
The ordinance includes an appeal mechanism enabling anyone ordered off the Marketplace to bring his or her case to a newly created hearing panel. The Church Street Marketplace will appoint the appeal body's three members, with the stipulation that one must represent business interests, another the social-services sector, and the third be drawn from "the general public."
The ordinance won't produce a sanitized scene on Church Street, Marketplace director Ron Redmond assured in an interview following the council's vote. "Church Street needs to be diverse," he said. "There's a need to keep Church Street funky."
In Redmond's view, the ordinance establishes "a timeout for adults." He said it has the effect of warning offenders, "If you keep doing this, you're not going to be able to hang out with your friends."