The Miami Beach City Commission gave its initial blessing Wednesday to a new ordinance that would subject homeless people to arrest if they decline placement in a shelter, despite advocates’ concerns that the law would effectively make it illegal to be homeless in the city and fail to address underlying issues.

Miami Beach already had a ban on outdoor sleeping on the books. But that ordinance required police to give people a warning before making an arrest, giving people an opportunity to relocate. The new ordinance would eliminate that warning provision.

“It’s not criminalizing and arresting people because they’re homeless,” said Mayor Dan Gelber, emphasizing services the city offers to unhoused people in response to criticism by opponents of the change. “We just have something else in the toolkit right now.”

The vote was 4-3 to pass the revised “camping” ban on first reading. The item would need to be approved on second reading at a subsequent meeting to become law.

Gelber and Commissioners Alex Fernandez, Kristen Rosen Gonzalez and Steven Meiner were in favor.

Commissioners Ricky Arriola, David Richardson and Laura Dominguez were opposed.

“Being homeless is not a criminal activity and we shouldn’t make it a crime,” Arriola said. For people struggling with addiction or mental illness, “putting them in jail makes that condition potentially worse for many of them,” he added.

Modeled after an Orlando ordinance

The legislation, which was first floated in July, is modeled after an Orlando ordinance that bans sleeping outdoors on public property in most cases and was upheld in 2000 by the United States Court of Appeals for the 11th Circuit.

It says if someone is sleeping outdoors on public or private residential property and volunteers that they have no home or other permanent shelter, officers must give them an opportunity to enter a shelter within Miami-Dade County before making an arrest.

READ MORE: ‘We can’t coexist anymore’: Miami Beach weighs outdoor sleeping crackdown for homeless

The item passed over the objections of many speakers who argued it would criminalize homelessness.

“Criminalization has not worked anywhere to reduce homelessness,” said Matthew Marr, an assistant professor of sociology at Florida International University. “It ends up hurting people ... and it can be very traumatizing.”

Stephen Schnably, a University of Miami law professor and ACLU cooperating attorney who worked on the landmark Pottinger case that addressed homelessness in the city of Miami, said the Miami Beach ordinance sends a “draconian” message that, “if you are homeless, then you need to get out of town or be arrested.”

Schnably added that the Miami Beach proposal could face constitutional challenges because there are no shelters within city limits. The 11th Circuit’s decision in 2000 noted that a shelter in downtown Orlando was open at all hours and had never reached capacity.

Could city be exposed to a lawsuit?

Assistant City Attorney Rob Rosenwald acknowledged the city could potentially face a lawsuit from groups like the American Civil Liberties Union on those grounds but said the 11th Circuit decision wasn’t explicitly conditioned on there being a shelter in the city.

“We feel comfortable that this is the most defensible route,” Rosenwald said.

Miami Beach had an unsheltered homeless population of 152 in an overnight count last month by the Miami-Dade County Homeless Trust, down from 235 in January and 167 last August.

Countywide, the numbers pale in comparison to cities like San Francisco, which reported more than 7,700 people experiencing homelessness last year.

Meanwhile, Miami Beach has seen a reduction in crime rates in recent years, data show. But residents have raised concerns about an increased “perception” of crime and greater visibility of unhoused people, prompting elected officials to respond.

Fernandez said the new ordinance was an act of “love” for homeless people, protecting them against the elements and from becoming victims of crime while living on the streets.

“It is tough love,” Fernandez said. “But we’re offering love to people so that they’re not exposed to the inhumanities that they get exposed to living on the streets — and we also protect the dignity that our own residents, visitors, employees and businesses deserve.”

Forcing people to a shelter has consequences

Homeless advocates have challenged the idea that temporarily forcing homeless people off the street is the most effective or compassionate approach.

Schnably, the University of Miami law professor, told the Miami Herald in July that there are many reasons a homeless person may not accept placement in a shelter, including that shelters only let people stay temporarily, often for 24 hours, and don’t always let people bring all of their belongings inside.

Gelber and other officials supporting the ordinance emphasized the city’s efforts to support the homeless population, including $7.6 million in the budget that goes toward services and enforcement.

The city has more than 50 shelter beds set aside for its homeless residents at shelters in Miami, is investing $2 million to fund 45 permanent housing units and 10 shelter beds for the Miami Beach homeless population at locations outside the city, and has called for a special election in November 2024 to impose a 1% tax on food and beverage sales to help fund the county Homeless Trust and domestic violence centers.

“I would not support this if we weren’t doing all of these things,” Gelber said.

The mayor added that the city is “not going to be raiding people.”

“That’s not going to happen in this city,” he said.

Rosen Gonzalez said homeless people in Miami Beach often decline to accept the city’s services. She shot back against advocates who said the new ordinance is misguided.

“To villainize elected officials who are trying to protect their communities from people who are breaking the laws is wrong,” she said. “I don’t understand when it became a horrible thing to want to have law and order. I am not apologetic about creating this ordinance in any way.”

Miami Beach has made scant progress in adding affordable housing units over the past decade, while housing costs have skyrocketed in the tourist hub.

READ MORE: ‘It’s embarrassing’: Why does Miami Beach keep failing to meet affordable housing goals?

The city employs a team of municipal prosecutors that focuses on “quality of life” offenses, such as drinking in public and entering a park after hours. In 2019, the Miami Herald found that two-thirds of the team’s cases involved homeless defendants. The program has expanded in the years since.

“Let’s arrest them for the laws they actually break,” Arriola said Wednesday.