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Photo courtesy of Coleen Cusack

As colorful bikes and scooters pop up on sidewalks citywide, homeless advocates are seizing on what they see as a contradiction: The city is ignoring bike rental companies while hammering homeless San Diegans for the same violations.

A lawyer who’s sued the city for applying its encroachment code to homeless San Diegans says he expects to highlight the differing enforcement decisions in his ongoing case.

Nearly a decade ago, city officials began using the new city code intended to clear trash from public spaces to force homeless San Diegans to move along.

Use of that code has since exploded. In 2009, police handed out just 77 encroachment citations and made no arrests. Last year, amid deadly hepatitis A outbreak, police recorded 2,742 encroachment arrests and citations.

[infogram id=” encroachment-enforcement-in-san-diego-1h7g6km3zy8g4oy”]

Now San Diego’s seeing an explosion of so-called dockless bikeshare companies. Bikes are parked on sidewalks, not tethered to racks or signs, throughout the central city neighborhoods where many homeless San Diegans have settled, waiting to be checked out by residents with smart phones.

San Diego police do not cite the companies that own the bikes for encroachment violations.

City officials say they’re doing their best to respond to a sudden bicycle boom, but homeless advocates think it’s unfair.

“You have a statute that says you can’t leave anything there on any public property and the only people who get the tickets are homeless people,” said Scott Dreher, one of two attorneys behind the class-action lawsuit alleging the city’s encroachment code is unconstitutional. The suit, brought on behalf of homeless San Diegans affected by the policy, aims to halt the city’s approach.

Fellow attorney Coleen Cusack, who’s represented homeless San Diegans in a slew of other cases, is raising similar concerns. She sent me these photos of bikes blocking sidewalks.

Photo courtesy of Coleen Cusack

Cusack said she’d expect homeless people who set their belongings in the same places to be ticketed – or to have their belongings discarded or impounded if they weren’t there when authorities showed up.

“If (the city) were consistent, they would be confiscating all these bikes and throwing them away, and fining the company,” Cusack said.

That isn’t happening. A spokesman for the city’s Environmental Services Department, which often impounds homeless San Diegans’ property during sweeps, confirmed the department has yet to confiscate any dockless bikes.

Instead, he said, the city’s working behind-the-scenes on policies to combat rule breakers. He said the regulations could be released soon.

First, though, the city is simply urging bike companies to follow the rules.

Two weeks ago, Assistant Chief Operating Officer Stacey LoMedico sent letters to the bike companies warning that “a number of violations” should be addressed.

“We have received a particularly high number of complaints regarding bicycles/scooters being placed in the right of way by users. This is a reminder that it is illegal to block the public right of way, including the sidewalk,” LoMedico wrote in the March 6 letters. “Not only is this a violation of the city’s municipal code, but the right of way must remain free of impediments to comply [with] the federal Americans with Disabilities Act. The city must impound bicycles found to be in violation of these laws, as appropriate.”

City officials say these warnings are consistent with how they handle other encroachment violations, including those involving homeless people. They prefer to have property owners move their belongings rather than city workers.

When homeless San Diegans are standing with their property, police are adamant that they almost always offer services and suggest that a homeless person move along before writing a ticket.

“Enforcement’s usually the last resort,” said police Capt. Scott Wahl, who just took the helm of a new police division focused on addressing homelessness and quality-of-life issues.

But Wahl acknowledged the city’s still figuring out how to handle the onslaught of bikes.

“These bikes have surfaced in the last few days downtown,” Wahl said earlier this month. “This is just evolving.”

An encounter homeless advocate Michael McConnell recently had with officers underscores the lack of clarity.

McConnell said he recently saw some bikes blocking a sidewalk and asked San Diego police officers who had just arrested a homeless person to move the bikes as well.

“I said, ‘You remove homeless people’s belongings. I would like you to remove those bikes. It’s the same thing,’” McConnell said.

The officers drove away without moving them, he said.

Greg Block, a spokesman for Mayor Kevin Faulconer, said in a statement that police and other city staffers are authorized to move or impound any objects blocking the right of way but that more urgent public safety issues can take precedence.

“People or businesses are encouraged to contact the dockless bike business operators directly to ask them to move their property out of the public right of way,” Block said.

LimeBike and ofo, two of the companies, say they’re trying to prevent violations by educating riders and monitoring where bikes are parked. A LimeBike spokeswoman said her company’s trying to upgrade existing sensors to detect those parked improperly.

For now, the onus seems to largely be on bike companies and riders to handle this.

Addressing homelessness, on the other hand, is a higher priority for the city.

“Our comprehensive approach to reducing homelessness is about saving lives,” Block wrote. “Keeping our sidewalks clean and getting individuals off of the streets and into supportive services will continue to be a public safety priority.”

While the city’s debuted new shelter tents and other services for homeless San Diegans, it’s also increasingly turned to enforcement.

Encroachment arrests and citations spiked 25 percent from 2016 to 2017, in part due to the hepatitis A outbreak.

Dreher argues the differing treatment of homeless people and newly arrived bikes underlines the problem with the city’s encroachment code: it’s subject to interpretation.

“Maybe you can craft some statute that states no camping on a public street or no blocking more than 50 percent of a sidewalk. Those would probably be valid statutes,” Dreher said. “But you can’t have a statute that says no one can put anything anywhere at any time.”

Lisa Halverstadt

Lisa is a senior investigative reporter who digs into some of San Diego's biggest challenges including homelessness, city real estate debacles, the region's...

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