Arrests for public urination/defecation are a fundamental tool in the war against homeless people in Los Angeles, as well as being a major part of the BID Patrol’s work in Hollywood. In 2015, for instance, the BID’s data shows that about 8%¹ of the arrests that Andrews International made across the two HPOA BIDs² were for public urination/defecation, which is a violation of LAMC 41.47.2.

When the City Council passed LAMC 41.47.2 in 2003, they were roundly (and rightly) criticized by advocates for the rights of homeless people, who pointed out that it was inhumane to criminalize an activity that is necessary to sustain life without providing a practical alternative. My colleagues have written before about how Councilmembers responded to this by promising informally that it wouldn’t be enforced if there were no nearby public restrooms and by promising to install more public restrooms around the City. However, they failed to amend the actual statute, which has led to widespread abuse.³ And 13 years later there aren’t significantly more public restrooms.

However, there is another part of the public urination law, LAMC 41.47.1, which is never even mentioned in discussions of the issue, and yet it is not only relevant, but radically, transformatively relevant. It was adopted by the Council in 1988 and says:

If restroom facilities are made available for the public, clients, or employees, no person owning, controlling, or having charge of such accommodation or facility shall prohibit or prevent the use of such restroom facilities by a person with a physical handicap, regardless of whether that person is a customer, client, employee, or paid entrant to the accommodation or facility. Employee restrooms need not be made available if there are other restroom facilities available on the premises unless employee restroom facilities have been constructed or altered to accommodate the physically handicapped and such facilities are not available elsewhere on the premises.

This has the potential to change the entire conversation about public restrooms, public urination, and homelessness in Los Angeles.

Of course, it’s necessary to read the full ordinance⁴ to understand who this law covers; that is who is “a person with a physical handicap.” Section 1(a) is fairly detailed and a little complicated, but section 1(b) just lays it right out: “A person with a physical handicap [is] … an individual who requests the use of the restroom facilities and states that because of a physical infirmity he or she requires immediate access to restroom facilities.” It’s hard to believe, but it is actually, literally, true. This law says that in the City of Los Angeles, in any facility that’s open to the public and has a restroom, even if it’s for employees only, and someone comes in and asks to use it and “states that because of a physical infirmity he or she requires immediate access to restroom facilities” they are required by law to be allowed to use the restroom. All you have to do is say you require immediate access to the bathroom and they have to let you use it. Arguably, every human being has this physical infirmity just by virtue of being human, so every restroom in a public space in the City is open to everyone in the City. In any case, the law only requires one to make a statement, not to provide medical verification.

And what will happen if they don’t let you use their bathroom? Well, this code section doesn’t specify what the consequences of violating it are. This is apparently a common trope in legislative circles, and the standard move is to have a default that applies to all sections unless specifically overruled. In the case of the Los Angeles Municipal Code this default is found in LAMC 11.00(m), which states in pertinent part:

It shall be unlawful for any person to violate any provision or fail to comply with any of the requirements of this Code. Any person violating any of the provisions or failing to comply with any of the mandatory requirements of this Code, shall be guilty of a misdemeanor unless that violation or failure is declared in this Code to be an infraction.

The code section doesn’t say that a violation is an infraction, so violating it is a misdemeanor. They’re actually committing a misdemeanor if they don’t let you use the bathroom after you tell them that you have a physical infirmity. And what can happen if they commit that misdemeanor? The same code section lays that out as well:

Every violation of this Code is punishable as a misdemeanor unless provision is otherwise made, and shall be punishable by a fine of not more than $1,000.00 or by imprisonment in the County Jail for a period of not more than six months, or by both a fine and imprisonment.

As hard as it is to believe, then, it is true. If you go into a restaurant or any other establishment that’s open to the public, tell them that you have an infirmity and you have to use the bathroom immediately, and they don’t let you, they can go to jail for six months. Not that they would, or even that they should, but the mere fact that they could is astonishing.

When all this became clear to me, I immediately fired off a public records request to Mike Dundas of the LA City Attorney’s office asking for a list of all prosecutions for violations of LAMC 41.47.1. It turned out, according to Mike, that in the 28 years since this law was passed, there have been precisely zero prosecutions. It’s not feasible to find out how many arrests there’ve been, but Mike’s data includes rejected prosecutions, so it’s probably safe to say there have also been zero arrests.⁵

Clearly this law would be violated innumerable times if anyone had ever heard of it. So actually, the entire bathroom problem in LA could be solved immediately with just a little education and maybe a little enforcement. Not just for homeless people, either, but for tourists and residents as well. We don’t have to wait until the City builds public restrooms. We don’t have to wait for anything. All we have to do is to inform the homeless, the tourists, the residents, of their rights and inform people in charge of facilities open to the public of their duties.

And the Hollywood Property Owners Alliance is famous for its educational campaigns. At one time or another they’ve tried to get people to stop giving money to panhandlers, to stop giving money to street characters, and so on. They print pamphlets and signs. They set up web pages. They claim to educate homeless people about alcohol abuse services rather than arresting them for drinking in public. They tell homeless people about the Greater West Hollywood Food Coalition and other social service providers. Why not also give them pamphlets explaining their rights under LAMC 41.47.1? Why not, in fact, inform them that they have the right to use the bathroom in HPOA headquarters at 6562 Hollywood Boulevard? In fact, every BID office is probably subject to this law.⁶ Why don’t the BIDs put some of their effort into spreading the word?⁷
Obviously an education campaign and a commitment by the City to take this law seriously would generate significant backlash. But I think it’s too cynical to assume that the zillionaires would win the ensuing battle. There are actually mainstream political advocacy groups that have successfully pushed for these kinds of laws across the country and would clearly fight the repeal of this one. For instance, the Crohn’s and Colitis Foundation of America provides “I can’t wait” cards to its members, and evidently at least 12 states have some form of bathroom access legislation. I haven’t been able to find out how many cities do. The point is, though, that it won’t be easy to change this law because it’s not just homeless people and their advocates who would defend it. It certainly seems like a strategy that’s worth a try.

Image of restaurant window is ©2016 MichaelKohlhaas.org.

1. The spreadsheet shows 606 arrests across the two BIDs. However, 293 of these are what, last year, they started calling “alcohol referral arrests.” I just found out recently that these are not actual arrests (and they’re not actual referrals, either). Why the BID Patrol is calling them arrests is something I hope to learn in the future, but meanwhile, you can watch one here to see what goes on. Thus the BID Patrol made 313 custodial arrests in 2015, and 25 of them were for public urination/defecation. This boils down to 7.98%. That this is a reasonable way to look at things is confirmed by the fact that, in 2014, before they had such a thing as “referral arrests,” there were 1057 arrests total, of which 70 were for urination/defecation. This makes 6.62%, which is essentially the same within expected tolerances.
2. Sunset & Vine and the Hollywood Entertainment District.
3. In part because the meaning of “public” is ambiguous in the context of restrooms. The BID Patrol, and for all I know, the actual cops, interprets this as including restaurant bathrooms with no consideration of whether or not a purchase is required, whereas common sense and humanity suggest it must mean open to all without qualification, like restrooms found in parks or at the beach.
4. Look at Tom Bradley’s signature at the bottom for a not-entirely-unwelcome blast from the past.
5. If you know some way to find out how many people have been arrested for violating a given law please let me know either via email or in the comments.
6. A lawyer with whom I discussed this idea told me that the issue here would be whether or not BID offices are open to the general public. I think that any agency which is subject to CPRA is open to the general public, though, because of the right to inspect records during office hours. If you can go in to inspect records you must therefore also be able to use the bathroom.
7. It’s pretty obvious why. Because, for all their hand-wringing and pearl-clutching about the plight of the homeless, their only real goal is to get homeless people out of their neighborhoods. Arresting McDonald’s owner and BID activist Carol Massie for not letting homeless people use her bathrooms is not going to further this goal. In fact, the situation highlights one of the many, many problems with letting BIDs be in charge of law enforcement. Their enforcement is selective, and it’s not motivated by enhancement of public safety, but by the parochial needs of property owners. This discussion is a little to far off topic for this post, though, but it’s an important, relevant issue.