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Waste Management: Why Muni Won't Ban Serial Bus-Soilers 

Wednesday, Feb 20 2013

Forty years after outfitting its trains with cushioned seats and carpeting, BART has announced it will finally begin taking steps against those who habitually befoul them. The transit agency will this month start rolling out a new policy in which riders repeatedly cited for behaviors such as soiling trains can be banished from the system for periods ranging from one month to one year.

Most transit agencies had the good sense not to install interior decor befitting a 1970s rumpus room; BART was the outlier there. But, it turns out, BART is also an outlier in formally blackballing those who have been arrested or cited for crimes — but not yet found guilty. "I can see why a transit agency would like to do this," says Tom Rubin, a former Alameda-Contra Costa Transit CFO. "I can see why this is a desirable thing." It turns out, however, that it's also a hard thing to put in motion; Rubin has consulted for "hundreds" of transit agencies, but couldn't think of another with a similar policy. BART required state-level legislation to take this step — and has spent more than a year slowly enacting the policy.

There is one transit agency, however, that likely wouldn't face the legal and logistical headaches of other agencies. An agency that, distinctively, is a semi-autonomous department of a city. An agency that rarely ventures out of one county. An agency with a richly deserved reputation for slowly transporting people and their effluvia around town. That agency, of course, is Muni.

San Francisco's transit agency does not have a policy of barring passengers cited or arrested, repeatedly, for victimizing others or damaging city property. And not only does it not know what steps it would need to take to enact such a policy, it doesn't want to know. "At this time we are not considering a policy to ban people from the system," says Muni spokesman Paul Rose. And if it were? "The first course of action would be to see what our next steps could be. Because this is a policy we haven't pursued, that hasn't been done yet."

To paraphrase John Lennon, imagine someone urinating on intercity rail — it's easy if you try. What's not easy, however, is the convoluted legal process that would follow in attempting to keep this person off future trains. As a state transit district, BART and other such systems only have the authorities granted them within their founding legislation — and banning passengers is not one of them. What's more, the penalties for public urination (or other offenses) may differ in the many cities and counties trains whiz through. Authorities would be required to determine exactly where the train was located when the incident took place.

Assembly Bill 716 cleaned up that mess. Originally passed in 2011, it allowed BART to enjoy a privilege earlier legislation granted to Sacramento- and Fresno-area transit agencies: assembling a no-ride list. Following multiple citations — or perhaps just one for serious crimes — and a hearing, offending riders are informed they are subject to charges of misdemeanor trespassing if discovered on agency property for the duration of their banishment. In BART's case, anyone cited three times in a 90-day period for urinating or defecating on the trains or in the stations would be subject to excommunication.

BART's weekday ridership hovers at around 367,000, so it's likely that a serial train-defacer could slip aboard even after being banished. If caught misbehaving, however, he or she would face additional charges. "We now have a tool to ratchet up the penalties," says Mark Lonergan, the COO of the Sacramento Regional Transit District. "Our goal isn't to arrest you, it's to keep you from misbehaving. If this stops you from acting out, that accomplishes our goal."

That's an end no one could argue with. But it's an approach Muni — and AC Transit and Caltrain — won't take.

Prior to 2002, it was illegal for a San Franciscan to leave his dog's excrement on the street but legal for him to leave his own. The bizarre legislative triumvirate of Supervisors Tony Hall, Chris Daly, and Gavin Newsom solved this pressing iniquity. Per Ordinance No. 160-02, "It shall be unlawful for any person to deposit or cause to be deposited any human urine or feces upon any public or private highway or road ... or upon any public property other than property designated or set aside for that purpose."

Unlike BART, Muni is not narrowly bound by its founding legislation; it does not venture between multiple jurisdictions, and it all but certainly does not require state legislation to begin barring accused train-defoulers — or accused iPhone thieves or vandals — from the system. The City Attorney's office declined to speak with SF Weekly on this matter, citing attorney-client privilege. Yet it would seem Muni is in a uniquely unhindered position to enact a ban on those who habitually deposit or cause to be deposited improper materials on public property such as buses or trains. "As long as [the accused] gets a proper hearing and can present evidence and examine evidence, I don't see a problem," says Golden Gate University law professor Myron Moskovitz, a constitutional scholar. He adds that he's "surprised" BART beat Muni to the punch of barring those who habitually foul the vehicles. "That problem is worse on Muni than on BART."

Asked why Muni has no interest in such a policy, Rose says, "We are a city-funded public transit system that is meant to provide a public service for those who live, work, and visit San Francisco." Public officials are understandably touchy about booting the neediest riders off transit. Sacramento's Lonergan notes that he was unable to convince the Assembly to include serial fare-evasion as one of the crimes that could induce banishment from a transit agency: "The legislative will wasn't there."

It's not here, either. "Anytime you try to hold people accountable for their behavior, there are some people who yell very loudly about that. That's part of San Francisco politics," says Supervisor Scott Wiener. "People who repeatedly break the law on Muni — I believe Muni should have the option of banning them from transit, at least for a period."

Those befouling Muni vehicles likely aren't on the bus because their Bentley is in the shop. Muni's refusal to cast them unto the streets demonstrates what's best about San Francisco. But it also demonstrates what's worst. By coddling the system's most problematic users, it ensures misery for all.

About The Author

Joe Eskenazi

Joe Eskenazi

Joe Eskenazi was born in San Francisco, raised in the Bay Area, and attended U.C. Berkeley. He never left. "Your humble narrator" was a staff writer and columnist for SF Weekly from 2007 to 2015. He resides in the Excelsior with his wife, 4.3 miles from his birthplace and 5,474 from hers.


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