A Sarasota Whole Foods sidewalk could become fair game for demonstrators

04/13/12 Janelle Irwin
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An arrest at the end February prompted the ACLU of Florida to investigate the process used to issue trespass warnings in parts of downtown Sarasota. Charges in that case were dropped this week. One sidewalk in the area is, for now, fair game for demonstrators.

40-year-old Occupy Sarasota activist Chris Young was arrested in a park for writing messages on a sidewalk in Five Points Park. Now the ACLU is asking for – and receiving – a moratorium of trespass enforcement in that area. Michael Barfield, an attorney with their Sarasota chapter, said as of March 20th the city manager seems to be on board.

“In comments that he made last night at the city commission meeting, that he has put a moratorium on the program because of some concerns about the program not complying with the law.”

Whole Foods entered into an agreement with the city of Sarasota that designates the sidewalk for public use. The ACLU argues that makes exercising freedom of speech there fair game. But Sarasota Police Department’s spokesperson, Captain Paul Sutton said it’s unclear whether the sidewalk is public or private property.

“Whole Foods installed the sidewalks themselves as opposed to normally the city would install sidewalks. And they have in their contract that the sidewalks are available for the use of customers and invited guests of Whole Foods. Based on that, in the past, when Whole Foods has requested one, there have been trespass warning issued to people who were not wanted – who they did not want to have on that property. That’s something that the city attorney is reviewing.”

In an email Casto-Zenith, the developer for Whole Foods, asked that trespass enforcement along the sidewalk be suspended until city attorneys could review whether or not previous warnings were lawful. It puts a stop to what’s called the Trespass Enforcement Program Sarasota operates under. Sutton explained that program.

“And that’s when people post proper signs and when there’s a signed agreement between the property owner and the police department. Then the police officers can issue trespass warnings for their property.”

But Barfield, the ACLU attorney, called that program a general order within the police department. He said that a recent ruling involving homeless residents of St. Petersburg holds that trespassing policy should be written into a city ordinance in order to ensure due process.

“There must be some way for the person who is trespassed to object and to be able to go to court and say ‘I wasn’t doing anything wrong’ or ‘I was on public property, or whatever. Here, under the city’s general order, it was the police officer in the street was judge, jury and executioner. There was no due process. It was get out of the park, get off the sidewalk and if you come back here and I see you, you will be arrested and taken to jail.”

Barfield said he thinks that people are being given trespass warning based on how they look or what they are saying – and that’s a breech of First Amendment rights. But he added that the bigger issue is one of economic status.

“People who are not from wealth, who get off of a bus and they walk down a sidewalk and go to the park which is a block away and then you have the wealthy condo dwellers who don’t really want to see people like this in their park sitting on a park bench. So, they lobbied the city commission to take out those park benches to deter people from sitting in a park bench. So, to me this is really more about wealth and poverty clashing.”

Barfield said he expects a decision from Sarasota city staff soon as to whether or not they will dismiss any previous trespass warnings around the Whole Foods and Five Points Park area. The ACLU has investigated three months of activity there concluding with the arrest of Chris Young in late February. So far they’ve found 14 trespass warnings issued in the area.

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