Federico Moreno
Federico Moreno (am holt)

A federal judge on Monday questioned provisions for downtown toilet facilities in a proposed modification to a landmark settlement guaranteeing basic human rights to homeless people in Miami.

The proposed change would prohibit homeless people from urinating outdoors on public property if a public restroom was available within a quarter mile.

Chief U.S. District Judge Federico Moreno, who oversaw the original consent decree in 1998, said without adequate public facilities, homeless people will again be using sidewalks and alleys in the business district.

Attorney Benjamin Waxman of Robbins, Tunkey, Ross, Amsel, Raben & Waxman in Miami is representing the American Civil Liberties Union of Florida and the homeless population on a city request to revise the agreement, which it terms outdated. Waxman said concerns remain that some public restrooms near downtown are closed at night.

“You are going to have the same problem,” said Moreno, noting the public facilities issue was a major point of contention during negotiations in the 1990s. “I’m a practical person. It’s one of my faults. These places have to be open.”

Homeless advocates led by Waxman forged the Pottinger agreement with the city to guarantee “life-sustaining” rights to the homeless. Arrests are not permitted in cases of public nudity for bathing and cooking food in parks.

The city earlier this year sought to restore sweeping police powers to arrest homeless people after complaints from owners of some of the 200 stores that have opened since 1998. The downtown population also has grown by more than 70,000.

The agreement was made in the years following Hurricane Andrew, which increased the homeless population in Miami-Dade County. The city was accused of systematically harassing and displacing homeless people.

Today, about 800 homeless live in the county, including about 500 people living downtown. Many are classified as chronically homeless, often refusing assistance from shelters.

The proposed modifications to the Pottinger agreement were submitted to Moreno on Thursday following a two-day, 23-hour mediation session led by Gunster shareholder Angel Cortinas. The agreement would bar cooking fires in public parks and makeshift tents on public property.

Sleeping people would no longer be allowed to block pedestrians on sidewalks and must remain out of public view when cleaning themselves while nude or going to the bathroom.

Moreno also was concerned about how homeless people would be notified of the proposed changes, saying a newspaper announcement may not be adequate to get the word out.

“The easiest thing would for me to approve this,” said Moreno, making a mock rubber stamp motion.

He gave the go-ahead to put notices about of the proposed changes at two homeless shelters and in newspapers. He also set a Feb. 28 hearing where opponents can voice objections.

He wondered how police would know whether a homeless person is within a quarter-mile of an open public restroom. “We don’t want to have police officers having GPSs,” he said.

Attorney Tom Scott, a partner with Cole Scott & Kissane in Miami who represents the city, told Moreno numerous public restrooms are now available that weren’t in place in 1998. He also said the city is planning to opening restrooms that are currently closed.

Waxman said the city agreed to changes because of an expected influx of dollars to the Miami-Dade Homeless Trust should alleviate the problem of the chronically homeless. He said the new 100,000 Homes campaign, made possible through the U.S. Department of Housing and Urban Development, will provide people with housing outside the homeless shelter system and decrease their numbers greatly by 2015.

New plaintiffs will be added to the case since the whereabouts are unknown for Michael Pottinger, the homeless man for whom the case is named.