Kiki Lopez, left, and Tony Martinez play some jazz as they busk inside the 16th Street Mission BART station. (Kevin N. Hume/S.F. Examiner)

Kiki Lopez, left, and Tony Martinez play some jazz as they busk inside the 16th Street Mission BART station. (Kevin N. Hume/S.F. Examiner)

BART puts the brakes on proposed busking, panhandling ban

BART’s proposed ban on busking, panhandling and solicitation was stopped in its tracks at the Board of Directors meeting Thursday.

Although board director Debora Allen, who first proposed the ban, may reintroduce the topic in the future, five of nine directors came out in opposition to any ordinance prohibiting panhandling and solicitation within the transit agency’s system, tabling the discussion for now.

Those who opposed creating the ordinance said there is a lack of evidence to support the efficacy of such bans, that BART riders place greater priority on a suite of issues other than solicitation and that such an ordinance might infringe upon people’s first amendment rights.

“Not only do I find this policy ineffective, I also believe that even entering policymaking is a bad use of our resources,” said District 8 director Janice Li, who represents part of San Francisco. “There’s so many issues that we’re grappling with, and taking at least two more meetings to consider a policy is the wrong priority and not a good use of not only our board time, which is limited, but staff time in even considering policymaking.”

Some of the issues BART is faced with currently are declining weekend ridership, fare evasion and the delayed opening of two new stations in Santa Clara County. Citing the results of BART’s 2018 customer satisfaction survey, Li said riders are less concerned with panhandling and solicitation than they are with station cleanliness, train temperature, on-time performance and seat and standing room availability. She also said she was “really disturbed” that a section of the report conflated panhandling and homelessness, because the two are separate issues.

“People even think train windows and train exterior conditions are more important than addressing homelessness,” Li said. “We have this data, let’s respond to it. Let’s stop prioritizing things that our riders are not asking for.”

More public comments were made in opposition to the ban at Thursday’s meeting, but there were a few who spoke in its favor. Proponents included the BART Police Officers Association president and a station agent, while opponents included buskers, an American Civil Liberties Union attorney and human rights advocates.

When Allen first floated her proposal to ban panhandling in August, it was immediately met with opposition. The ACLU of Northern California emailed the Board of Directors, warning them that banning the solicitation of money is akin to unconstitutionally banning free speech.

By Thursday’s meeting, BART Chief Legal Counsel Matt Burrows had determined it would be constitutional for the agency to enact such an ordinance on trains and in ticketed areas.

At the heart of the matter is whether BART property is considered a designated public forum.

Burrows argued that the free areas of BART — anywhere on BART property outside of the fare gates — are considered designated public spaces, whereas the paid areas, which include areas inside the fare gates, platforms and trains, are most accurately described as non-public spaces. Therefore, it would be legal for BART to ban busking, panhandling and solicitation in its paid areas, despite being a public entity.

Transit agencies in New York City, Los Angeles, Chicago, Atlanta, Seattle and Washington, D.C., already prohibit panhandling in their paid areas within fare gates.

Abre Connor, staff attorney with the ACLU of Northern California, disputed the general counsel’s conclusions in her public statement.

“It’s also important to understand that under the California Constitution, section two, that there are greater and broader protections for individuals as it relates to free speech,” Connor said. “So even looking at different transit systems across the country may not necessarily be helpful when it comes to free speech here in California.”

Those in favor of drafting an ordinance, including Allen and District 5 director John McPartland, said the ban would make BART riders feel safer and more comfortable in the system.

“Is it dangerous — the performance, the panhandling, the soliciting — is it a danger to people? I think that’s a perception. And I think everyone’s perception is a little bit different,” Allen said. “I don’t view it as a danger to me, but I’ve heard from a lot of disabled people [and] elderly people who say they feel fear when they are asked for money because they don’t know what will happen if they don’t give them money.”

Professional musician Kevin Goldberg said he wouldn’t be where he is today if not for the connections he’s made while busking. Playing in public for donations has led to numerous opportunities, including playing private parties and a weekly residency at a local venue.

“I think that in an era with such extreme wealth disparity, as we can see, the number of people panhandling is just increasing dramatically,” Goldberg said. “This is really just treating a symptom and we’re not looking at the underlying causes. And I think that we’re actually doing more damage to people who are an integral part of our community by increasing criminalization of panhandling and busking.”

Allen said that responses she has heard from riders are a “bit of a mixed bag” because some people dislike being asked for food or money, but enjoy some of the performances they see while riding BART or walking through its stations.

“If you have no ordinance, you have nothing to enforce,” Allen said. “If you have an ordinance, at least you have something to start with.”

After the proposal was tabled, Allen said, “I think we’re hearing that we have five directors that are not interested in that, and that’s really unfortunate to me that we have not enough interest in serving the riding public with what they overwhelmingly are asking for.”

Li had a different conclusion.

“Being uncomfortable or wanting solitude on trains and not getting that solitude is not an appropriate threshold for making policy and it’s incumbent on this board to know the difference between real safety issues and people who feel simply bothered,” Li said.

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