THE CITY OF SEATTLE, Respondent, v. SARAH MCCONAHY, Petitioner.
THE CITY OF SEATTLE, Respondent, v. JOHN HOFF, Petitioner.
[1] Constitutional Law - Separation of Powers - Policy making Decisions. A court will not disturb a legislative policy decision unless it is unconstitutional or conflicts with state law.
[2] Constitutional Law - Construction - Considered as a Whole - Meaningful Interpretation. The constitution is interpreted as a whole so that no provision is ignored or rendered meaningless.
[3] Municipal Corporations - Powers - Police Powers - Constitutional Scope. Under CONST. art. I, § 1 and CONST. art. XI, § 11, a municipal corporation may enact reasonable health, safety, and welfare legislation that does not unduly infringe on individual rights.
[4] Appeal - Findings of Fact - Review - Supporting Evidence - In General. Appellate courts defer to legislative factual findings if they are supported by evidence in the record.
[5] Municipal Corporations - Ordinances - Validity - Police Power - Constitutional Rights. Courts will uphold local ordinances which are validly enacted under CONST. art. XI, § 11 if they do not violate important constitutional rights.
[6] Municipal Corporations - Ordinances - Validity - Police Power - Test. A municipal ordinance enacted under the authority of CONST. art. XI, § 11 is valid if it (1) was enacted for the purpose of protecting the public health, safety, morals, or general welfare, (2) is substantially related to the accomplishment of its goal, and (3) is narrowly tailored.
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[7] Municipal Corporations - Powers - Police Powers - Sitting or Lying on Sidewalks. A municipal ordinance which restricts persons from sitting or lying on public sidewalks in commercial districts, enacted on the basis of a legislative finding that such conduct presents a legitimate health and safety concern, is a reasonable exercise of police power under CONST. art. I, § 1 and CONST. art. XI, § 11.
[8] Constitutional Law - Right to Privacy - Innocent Activity - Sitting or Lying on Sidewalks. A municipal ordinance which restricts "persons from sitting or lying on public sidewalks in commercial districts, enacted on the basis of a legislative finding that such conduct presents a legitimate health and safety concern, does not constitute an unreasonable or arbitrary intrusion into the right to be left alone while engaged in innocent activity.
[9] Constitutional Law - Due Process - State and Federal Provisions - Independent State Interpretation. Washington's due process clause receives the same interpretation as the federal clause.
[10] Constitutional Law - Due Process - State and Federal Provisions - In General. State courts may refer to federal law to interpret our state's due process clause.
[11] Constitutional Law - Due Process - Substantive Due Process - Violation - Test. In deciding whether legislation violates substantive due process, courts should consider: (1) the government's interest in the legislation, (2) the manner in which that interest is furthered by the law, (3i the importance of the claimant's liberty interest standing alone and in the context of its exercise, (4) the extent to which the liberty interest is burdened by the law, and (5) the consequences of upholding or invalidating the law.
[12] Constitutional Law - Due Process - Substantive Due Process - Violation - Sitting or Lying on Sidewalks. A municipal ordinance which restricts persons from sitting or lying on public sidewalks in commercial districts, enacted on the basis of a legislative finding that such conduct presents a legitimate health and safety concern, does not violate substantive due process.
[13] Constitutional Law - Freedom of Speech - Pure Conduct. Pure conduct is not protected by the state's freedom of expression clause, CONST. art. I, § 5.
[14] Constitutional Law - Freedom of Speech - Expressive Conduct - What Constitutes - Test. Conduct is "expressive" if the actor intends to communicate a particular message by the conduct and the message would be understood by those who observe it.
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[15] Appeal - Findings of Fact - Review - Substantial Evidence - In General. An appellate court will not disturb a trial court's findings of fact if supported by substantial evidence in the record.
[16] Constitutional Law - Freedom of Speech - Expressive Conduct - Nonessential Conduct - Other Effective Means. Expressive conduct is protected by CONST. art. I, § 5 only if it is essential to the actor's message,
[17] Constitutional Law - Freedom of Speech - Expressive Conduct - What Constitutes - Civil Disobedience. Violating a law in protest of its validity is not protected expressive conduct.
[18] Criminal Law - Statutes - Overbreadth - Conduct - Expressive Conduct - Test. Legislation regulating conduct is overbroad if it sweeps more constitutionally protected expression than needed to achieve its goal within its prohibition.
[19] Constitutional Law - Freedom of Speech - Expressive Conduct - What Constitutes - Sitting. For purposes of CONST. art. I, § 5, sitting does not have inherent expressive value.
[20] Discovery - Scope - Review - Standard of Review. A trial court's ruling on s discovery request is reviewed for an abuse of discretion.
[21] Constitutional Law - Equal Protection - Classifications - Minimal Scrutiny - Test. Unless it affects a protected class, legislation does not violate Washington's equal protection clause if (1) it applies to all members within the designated class in the same way, (2) it is based on a reasonable distinction between persons inside and outside the class and (3) the classification is rationally related to the purpose of the legislation.
[22] Constitutional Law - Right To Travel - Scope. The constitutional right to travel does not prohibit reasonable police power regulations which do not restrict the right to move around.
[23] Constitutional Law - Right To Travel - Sitting or Lying on Sidewalks. Legislation prohibiting persons from sitting or lying on sidewalks in designated commercial zones during specified hours does not violate the constitutional right to travel.
[24] Civil Rights - Handicap Discrimination - Health and Safety Regulations - Elements. To establish a claim that the government's enforcement of a health and safety regulation violates the RCW 49.60.030 policy against disability discrimination the claimant must show disability and discrimination on the basis of that disability.
[25] Civil Rights - Handicap Discrimination - Health and Safety Regulations - "Handicap" - Question of Law or Fact. For
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purposes of a claim that the government's enforcement of a health and safety regulation violates the RCW 49.60.030 policy against disability discrimination, the determination of whether the claimant has a disability and whether the claimant's disability was the basis for the alleged discrimination are questions of fact for the trial court.
Nature of Action:. Prosecutions for violating a city ordinance prohibiting persons from sitting or lying on sidewalks in designated commercial zones between specified hours of the day.
Municipal Court: The Seattle Municipal Court, No. 200766527, Helen L. Halpert, J., on November 8, 1994, entered a judgment finding defendant Hoff guilty, and No. 235596, Michael S. Hurtado, J., on May 8, 1995, entered a judgment finding defendant McConahy guilty.
Superior Court: The Superior Court for King County, Nos. 94-2-29610-8 and 95-2-13008-9, Ricardo S. Martinez, J., on March 21, 1995, stayed the proceedings pending discretionary review by .he Court of Appeals.
Court of Appeals: Holding that the ordinance is a valid exercise of the police power, the defendants were engaged in pure conduct unprotected by the state constitutional protection of speech and expressive conduct, the ordinance was not overbroad, the ordinance does not violate equal protection or the right to travel, and the city's enforcement of the ordinance did not constitute disability discrimination, the court affirms the judgments.
Jeannie German, John P. Sheridan, Stephen K. Festor, and Sheridan & Associates, P.S., for petitioners.
Mark H. Sidran, City Attorney, and Thomas S. Sheehan and Sandra L. Cohen, Assistants, for respondent.
George N. Prince and Nancy L. Talner on behalf of American Civil Liberties Union, amicus curiae.
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[As amended by order of the Court of Appeals July 1, 1997.]
AGID, J. - Sarah McConahy, a formerly homeless youth, and John Hoff, an advocate for Seattle's homeless, were cited under the "Seattle sitting ordinance," SMC 15.48.040, for sitting on the sidewalk in the University District. They challenge the ordinance on several state constitutional grounds.«1» These include alleging that the ordinance violates their substantive due process and free expression rights under the Washington State Constitution and that it violates Washington's Privileges and Immunities Clause. McConahy also contends that the ordinance violates her right to travel, and Hoff argues that the officers violated Washington's ban on discrimination against persons with disabilities when they cited him.
[1] While we decline to invalidate the ordinance in this case, we wish to make clear what we are not deciding. First, we express no opinion about whether the ordinance is or is not good social policy. We hold only that the ordinance is constitutionally-valid legislation. SMC 15.48.040 is quintessential legislative policy making, and we will not disturb the policy decisions made by legislative bodies unless they are unconstitutional or conflict with state law. We also hold that the City did not violate appellants' right to free expression because Hoff and McConahy were not involved in expressive activity when they were cited. But we do not decide whether, on different facts involving a protected activity or speech, SMC 15.48.040 would be a valid time, place, manner restriction. We also do not decide whether homeless residents could establish the requisite disparate impact to invoke the
«1» After the City approved the ordinance, a class challenged it in federal court. The federal district court rejected their facial challenge to the ordinance on various federal constitutional and statutory grounds. Roulette v. City of Seattle, 850 F. Supp. 1442 (W.D. Wash. 1994). The Ninth Circuit denied appeal. Roulette v. City of Seattle, 97 F.3d 300 (9th Cir. 1996). McConahy and Hoff were both members of the class, but were cited after the federal court issued its order and now challenge the ordinance as applied to them.
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protection of the Privileges and Immunities Clause because these appellants have not done so.
FACTS
In response to complaints about increasing petty crime, declining shoppers in core retail areas, and problems with pedestrians' being blocked by people sitting or lying on sidewalks, the Seattle City Council enacted SMC 15.48.040. Under that ordinance, it is a civil infraction for any person to sit or lie on the sidewalk in downtown Seattle and other neighborhood commercial zones between 7 a.m. and 9 p.m. except in an emergency, or if lie or she is in a wheelchair or on a bench or in a bus zone or patronizing a commercial establishment or attending a permitted event.«2»
McConahy was cited while sitting on a street bulb with a group of friends, eating pizza, watching her friends play chess for change, and sometimes panhandling. Police officers approached the group and informed them that they were violating the ordinance. Her friends stood, but McConahy remained seated protesting the ordinance. McConahy wore an army jacket decorated with an American flag and a slogan that said, "'Fuck your American dream." She also wore a button that said, "Sitting is not a crime." Hoff was cited while sitting reading a book and leaning against a building with leaflets advertising a protest against the ordinance in his lap. They had separate trials in municipal court. The Hoff court heard testimony and allowed extensive argument on his constitutional claims, and the McConahy court accepted much of this record. Both courts found that the defendants violated the ordinance and rejected their free expression and substantive due process claims. The two cases were joined for appeal.
«2» The full text of the ordinance is reprinted in Appendix A.
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DISCUSSION
A. Substantive Due Process
Hoff and McConahy first contend that the sitting ordinance violates their substantive due process rights under the "Washington State Constitution. They argue that it violates art. I, § 1, because it is an unreasonable exercise of police power which infringes upon their individual liberties. They also argue that the state constitution, read as a whole, is more protective of individual liberties than the federal constitution and that the ordinance is invalid under our Personal Rights Clause, art. I, § 3.
[2, 3] Article I, § 1 states that "[a]ll political power is inherent in the people, and governments derive their just powers from the consent of the governed, and are established to protect and maintain individual rights." Hoff and McConahy contend that this section prohibits governments from enacting legislation which detracts from individual liberties. They argue that this section embodies the fundamental predicate underlying the Washington constitution protecting individual liberties, and the Seattle ordinance violates it. But they cite no authority for the proposition that art. I, § 1 is not coequal with art. XI, § 11 of that same constitution which expressly permits "[a]ny county, city, town or township [to] make and enforce within its limits all such local police, sanitary and other regulations as are not in conflict with general laws." We must interpret the constitution as a whole so that no provision is ignored or meaningless. Washington. Econ. Dev. Fin. Auth. v. Grimm,
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[4-12] The Seattle City Council enacted the ordinance based on its findings that people sitting on the sidewalk presented a health and safety concern because many citizens had trouble maneuvering around them and shoppers were deterred from coming into core areas because petty crime and blight were increasing. The record supports these findings, and we must therefore accept them. We are bound to construe the ordinance as constitutional 11 we can do so without doing violence to important rights. See Duckworth v. City of Bonney Lake,
They also argue that the ordinance violates their fundamental right to "move about or stand still." We agree with appellants that the Washington and federal constitutions prohibit legislation that unreasonably interferes with the individual's right to be let alone while engaged in innocent activity. See Papachristou v. City of Jacksonville, 405 U.S. 156, 92 S. Ct. 839, 31 L. Ed. 2d 110 (1972); City of Seattle v. Drew,
Appellants argue that because the Washington Constitution provides greater protection to individual rights than does the federal constitution, we should apply a correspondingly more protective analysis when considering legislation which impacts these liberties. They suggest we adopt an analysis similar to the one the Ninth Circuit recently considered in Compassion in Dying v. Washington,
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79 F.3d 790 (9th Cir. 1996). The court there adopted a continuum approach which it posited is more consistent with the decisions of the United States Supreme Court. Compassion in Dying, 79 F.3d at 804. Under its formulation, a court considers the following factors when confronted with a substantive due process problem: (1) the State's interests; (2) the manner in which those interests are furthered by the law; (3) the importance of the liberty interest by itself and the context in which it is being exercised; (4) the extent that the interest is burdened by the law; and (5) the consequences of upholding or overturning the law. Compassion in Dying, 79 F.3d at 816.
We disagree with appellants' position that we must apply a more protective approach under the state constitution. Because the text of our provision is so similar to the federal one, our Supreme Court has held that they are to be interpreted the same way. State v. Ortiz,
First, Seattle has a valid interest in promoting pedestrian safety and economic vitality and in reducing petty crime. Prohibiting people from sitting on the sidewalks during busy work and shopping hours makes Seattle's core retail areas safer for pedestrians. It also helps make
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these areas more hospitable to shoppers and residents, thus opening the way to economic revitalization. Second, Hoff and McConahy argue that, despite the City's valid interests, their interest in being left alone while they are engaged in essentially innocent activity outweighs those the ordinance is designed to protect. While we agree that their interest is rooted in the right to be left alone, this legislation is carefully tailored to infringe only slightly on that right. It prohibits sitting on the sidewalk but it in no way limits anyone's right to be in the core areas. There are benches and parks in all the regulated areas on which appellants are free to sit at any time.
Third, Hoff and McConahy argue that the ordinance does not appreciably further the City's interests because it could have relied upon the pedestrian interference ordinance«3» to address the problems associated with people sitting on the sidewalk. But the constitution does not require the City to do so. It is constitutionally permissible for the City to adopt an incremental approach to clearing the sidewalks for shoppers and pedestrians by enforcing a civil ordinance rather than making each violation a criminal offense under the pedestrian interference ordinance. So long as the City does not unreasonably limit Hoff's and McConahy's right to freedom of movement, it may legally choose to reserve its criminal prosecution resources for more serious violations of the law.
In summary, the City's ordinance furthers a legitimate police power interest in a manner that infringes only minimally on appellants' concededly important freedom of movement. This ordinance is limited in scope, and alternative places to sit and rest are available. Were we to invalidate the ordinance, we would deprive the City of a rather benign tool for achieving its legitimate objectives. While the consequences of overturning the law are not catastrophic to the City's interest, even under the Compassion in Dying analysis, we cannot say that it violates Hoff's and McConahy's substantive due process rights. SMC
«3» SMC 12A.12.015.
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15.48.040 does not violate art. I, § 3 of the Washington State Constitution; rather, it is a reasonable legislative response to a local safety and welfare problem.
B. Freedom of Expression
[13, 14] Hoff and McConahy next contend that the ordinance impermissibly burdens their right to free expression under art. I, § 5 of the Washington State Constitution. Mere conduct is not expressive, and legislation may restrict it. But if the conduct is expressive and central to the actor's message, a law restricting that conduct is subject to a free expression challenge. O'Day v. King County,
[15] Hoff argues that he was engaged in expressive conduct because he was handing out leaflets announcing a protest against the ordinance. The trial court found otherwise. It acknowledged that he had leaflets in his lap but found that he was not trying to distribute them. Rather, he was leaning against a building reading a book. We will not disturb a trial court's factual findings on appeal when they are supported by substantial evidence. Bering v. Share,
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a button protesting the sitting ordinance, she was not engaged in a protest or expressing a message that would be understood by passersby. The court also found that she was not panhandling when she was cited. The record in McConahy's case also supports the court's findings, and we will not disturb them.
[16, 17] Even if the record supported a finding that Hoff or McConahy were engaged in expressive conduct when cited, sitting was not essential to either's message. Hoff argues that sitting was essential to his protest against the sitting ordinance and that he could more effectively leaflet from a supplicant position. We disagree with both assertions. He could have effectively informed the public of his view that the ordinance was unjust while standing. Violating an ordinance in an attempt to protest against it is not protected expressive conduct. See Cox v. Louisiana, 379 U.S. 536, 554-55, 85 S. Ct. 453, 13 L. Ed. 2d 471 (1965). Nor is leafleting necessarily more successful when seated. Hoff would have been more visible and able to make eye contact had he been standing.
We also disagree that sitting was central to McConahy's message. She argues that sitting is central to begging. In Berkeley Community Health Project v. City of Berkeley, 902 F. Supp. 1084, 1092 (N.D. Cal. 1995), the court held that begging was expressive and protected by the California free speech clause. It also concluded that sitting on the sidewalk, even in violation of the city ordinance prohibiting it, was central to that expression because it was a sign of subservience and need. While we agree that begging is protected speech, we do not agree that sitting is essential to expressing subservience or need. Even if McConahy had been begging when eked, common experience demonstrates that she could have done so effectively without violating the ordinance. Because neither Hoff nor McConahy was engaged in expressive conduct, we need not decide whether SMC 15.48.040 is a reasonable time, place, manner restriction on speech.
[18, 19] Hoff and McConahy argue that the ordinance is
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unconstitutionally overbroad because it restricts more expression than needed to achieve its legislative purpose. A statute is overbroad if it sweeps within its proscriptions conduct that is protected and does not need to be restricted to achieve its purpose. O'Day,
C. Privileges and Immunities
[20] Hoff's and McConahy's next contention is that the ordinance disparately impacts poor or homeless and violates the state Privileges and Immunities Clause.«4» They argue that the ordinance disproportionately affects the homeless and poor because they cannot afford to patronize commercial establishments or have a home to go to and are therefore more likely to have to sit on the sidewalk. Appellants assert that the Washington Privileges and Immunities Clause grants greater protection than does the federal Equal Protection Clause. In the past, the Supreme Court has clearly held that the state and federal clauses are substantially alike and subject to the same interpretation. American Network, Inc. v. Washington Utils. & Transp. Comm'n,
«4» No law shall be passed granting to any citizen, class of citizens, or corporation other than municipal, privileges or immunities which upon the same terms shall not equally belong to all citizens, or corporations." WASH. CONST. art. I, §12.
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and it questioned whether our constitution provides greater protection than the federal Equal Protection Clause but did not resolve the issue. Griffin v. Eller,
[21] Because the record does not support a finding of disparate impact on a protected group, we apply minimum constitutional scrutiny. American Network,
«5» McConahy argues that she attempted to make this showing, but the trial court improperly denied her discovery request for photographs of persons cited under the ordinance, testimony regarding the City's motives for passing the ordinance, and demographics of Seattle's homeless. The court denied the discovery requests because they were too time consuming, expensive, and were inconsistent with the purpose of the civil infraction rules, to "secure the just, speedy, and inexpensive determination of every infraction case." IRLJ 1.1(b).
Decisions on discovery requests is within the discretion of the trial court and will not be disturbed on appeal unless manifestly unreasonable or based on untenable reasons. Doe v. Puget Sound Blood Ctr.,
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directly related to the ordinance's legislative purposes: namely, pedestrian safety, reduction of petty crime, and urban revitalization. While we recognize that these distinctions are related to wealth-or the lack of it-- where, as here, appellants have not established that the ordinance in fact has a disparate impact on the poor or homeless, it does not violate our Privileges and Immunities Clause.
D. Right to Travel
[22, 23] McConahy's final contention is that the ordinance impermissibly restricts her right to travel. The right to travel, including the right to travel within a state, is a fundamental right subject to strict scrutiny under the United States Constitution. Kent v. Duties, 357 U.S. 116, 78 S. Ct. 1113, 2 L. Ed. 2d 1204 (1958). A law violates the right to travel if it penalizes migration from state to state, or makes, it impossible to move about within a state. Memorial Hosp. v. Maricopa County, 415 U.S. 250, 259, 94 S. Ct. 1076, 39 L. Ed. 2d 306 (1974).
McConahy argues that because she was homeless, she had to travel long distances around Seattle to access food, shelter, and other social services. During these journeys she often needed to rest on the sidewalk when no bench or park was available. Traditionally, a violation of the right to travel arises from residency requirements, waiting periods, or additional fees for new state residents to receive basic services. See Memorial Hosp., 415 U.S. at 259; Shapiro v. Thompson, 394 U.S. 618, 89 S. Ct. 1322, 22 L. Ed. 2d 600 (1969); Eggert v. City of Seattle,
But Seattle's sitting ordinance does not implicate the right to travel. Unlike the ordinance in Pottinger, it does
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not exact a penalty for moving within the state or prohibit homeless persons from living on the streets of Seattle. Nor does it make it more difficult for people to migrate from state to state. Instead, the ordinance restricts sitting or lying down during certain hours in some places to benches or parks which are out of pedestrian traffic and not in the path to retail areas. McConahy may still travel around Seattle to access services and rest on benches or in parks.
B. RCW 49.60.030
Hoff finally contends that the officers violated RCW 49.60.030, Washington's ban on discrimination against persons with disabilities, when they cited him for sitting. He claims that he has a disability that requires him to sit and rest periodically and often must sit on the sidewalk where there is no bench or park. SMC 15.48.040 exempts persons using wheelchairs or having a medical emergency. Hoff counters that his disability is not so severe that he must use a wheelchair or that it qualifies as a medical emergency, but that it nonetheless requires him to sit.
[24, 25] To prevail in his claim, Hoff must show both that his disability exists and that the City discriminated against him because of that disability. Doe v. Boeing Co.,
Affirmed.
BAKER, C.J., and BECKER, J., concur.
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APPENDIX A
SMC 15.48.040 Sitting or lying down on public sidewalks in downtown and neighborhood commercial zones.
A. Prohibition. No person shall sit or lie down upon a public sidewalk, or upon a blanket, chair, stool, or any other object placed upon a public sidewalk, during the hours between seven a.m. (7:00 a.m.) and nine p.m. (9:00 p.m.) in the following zones:
1. The Downtown Zone, defined as the area bounded by the Puget Sound waterfront on the west. South Jackson Street on the south, Interstate 5 on the East, and Denny Way and Broad Street on the North;
2. Neighborhood Commercial Zones, defined as areas zoned as Pioneer Square Mixed (PSM), International District Mixed (IDM), Commercial 1 (C1), Commercial 2 (C2), Neighborhood Commercial 1 (NC1), Neighborhood Commercial 2 (NC2), and Neighborhood Commercial 3 (NC3).
B. Exceptions. The prohibition in subsection A shall not apply to any person:
1. Sitting or lying down on a public sidewalk due to a medical emergency;
2. Who, as the result of a disability, utilizes a wheelchair, walker, or similar device to move about the public sidewalk;
3. Operating or patronizing a commercial establishment conducted on the public sidewalk pursuant to a street use permit; or a person participating in or attending a parade, festival, performance, rally, demonstration, meeting, or similar event conducted on the public sidewalk pursuant to a street use or other applicable permit;
4. Sitting on a chair or bench located on the public sidewalk which is supplied by a public agency or by the abutting private property owner;
5. Sitting on a public sidewalk within a bus stop zone while waiting for public or private transportation.
Nothing in any of these exceptions shall be construed to permit any conduct which is prohibited by SMC Section 12A.12.015, Pedestrian interference.
C. No person shall be cited under this section unless the person engages in conduct prohibited by this section after having been notified by a law enforcement officer that the conduct violates this section.
Review denied at