This stinks.
Posted on: Friday, September 4, 2009
Honolulu City Council moves to kill conduct bill By Gordon Y.K. Pang
Advertiser Staff Writer
A City Council committee yesterday snuffed out a bill that would have regulated bad odors and other behavior on city transit vehicles and facilities.
The proposed transit passenger code of conduct bill attracted interest from media outlets globally largely because it attempts to impose regulations on smell. And while the bill does get into many other concerns from the use of electronic music devices to farebox jumping, much of yesterday's discussion was focused on the odor ban.
According to the bill, passengers would not be able to bring "onto transit property odors that unreasonably disturb others or interfere with their use of the transit system, whether such odors arise from one's person, clothes, articles, accompanying animal or any other source."
Committee members said they deferred Bill 59-09 yesterday with the intent of killing it.
Councilman Nestor Garcia, a co-introducer of the bill, said that at some point he'd like to introduce another bill that would address passenger conduct, but made it clear that following yesterday's discussion regulating odors would not be included.
Representatives from the Honolulu Police Department, the Honolulu prosecutor's office and the city corporation counsel's office all voiced concerns with the bill.
HPD Maj. William Chur said police support the concept and intent of the legislation but are bothered that "the bill would make criminal offenses out of certain prohibitive activities that up until now have not been criminal in nature."
Such prohibitions, now subject to citation, would include eating, listening to music without headphones and drinking alcoholic beverages.
"Up until now, those haven't been criminal sanctions, but it may have been cause for a person being asked to leave TheBus," Chur said. "But under this proposal, these activities would in fact be criminal activities."
Chur said the department is also worried about enforceability of the odor prohibition.
"We think that is going to be very difficult to enforce," he said. "The question of odors is a question that is somewhat subjective."
"Too subjective," said Transportation Committee Chairman Gary Okino, who wound up recommending that the bill be deferred.
Chur added: "We're not aware of any other offenses where odors, unless they're clearly identified as nauseous or noxious, are subject to criminal sanctions."
BILL CONCERNS
Deputy Prosecutor Lori Nishimura said her office views the odor prohibition problematic, made worse because the bill calls for it to be a criminal offense.
"If the (proposed) statute basically leaves it to the arbitrary discretion of each police officer to decide if somebody is too smelly to get on the bus or is OK, I think you're going to have those challenges," Nishimura said.
Nishimura also echoed Chur's concerns about upping the existing violations to criminal offenses. The violations would become either petty misdemeanors with 10 days jail, or full misdemeanors with up to six months in jail. The latter would allow for defendants to have jury trials, she said.
About half a dozen passengers testified on the bill — split nearly evenly among those who supported it and those opposed.
Nu'uanu resident Robert Asam said he supports the bill, pointing out that he's seen people spit on the bus. At least some are "not from here," he said, adding that he tells them " 'You have to respect where you are. You're in our home.' "
"You can't be worried about the civil rights of one when the rights of all the rest of us are being infringed upon," Asam said. "What makes that person so special?"
Besides a fine, Asam said someone found in violation could go through "some sort of retraining or something."
But Kane'ohe resident and bus rider Irma O'Toole called the code of conduct absurd.
O'Toole said she's worried that if a complaint is made during a bus ride, a bus could be hung up for half an hour or more waiting for a police officer to arrive at the scene.
"Some of these things are ridiculous," she said. "If you don't like the smell, there is a cord that you can pull, and you get off the bus."
O'Toole said she's exposed to a number of smells from ethnic foods picked up by elderly passengers getting on TheBus in Chinatown. "You can appreciate another person's culture or belief because the human smells are not that bad, they're human."
NOT A CHOICE
Dan Gluck, senior staff attorney for the American Civil Liberties Union, said his office has already been contacted by people with metabolic disorders which cause them to have a body odor. "It's not hygienic, it can be from a disease," Gluck said.
Councilman Rod Tam said he drew criticism for co-introducing and defending the bill, pointing out that the odor provision was modeled after a passenger code of conduct that is in place in King County, Wash.
Local riders have asked for a code of conduct "to ensure the safety, security, comfort and convenience of public transit users," Tam said.
"I'm getting constant complaints about people not using bus stops for catching the bus but ... for camping, sleeping, whatever you want to call it. So people are afraid to go there."
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