Dealing With Dots

When Beverly Calder had colored dots painted on the sidewalk in front of her store before the Elkhorn Classic bicycle race in June, city officials were obliged to review the city's ordinances and determine whether the dots were legal.

Sidewalks, after all, are public rights-of-way — unlike, say, display windows and awnings — and the city is responsible for ensuring sidewalks aren't misused.

We disagree, however, with city officials' interpretation of the ordinance which they cite as evidence that Calder's dots are prohibited.

That ordinance is No. 2893. It's been in effect since December 1984. The ordinance, according to its title, is a "comprehensive revision of city regulations regarding traffic regulations."

Both City Manager Steve Brocato and Mayor Jeff Petry, in recent e-mails, contend that Calder, who is a city councilor, violated Section 6 of that ordinance by painting the dots.

That section reads, in its entirety: "It shall be unlawful for any person to letter, mark, or paint in any manner any letters, marks, or signs on any sidewalk, curb, street or alley, or to post on a parking strip anything designed or intended to prohibit or restrict parking in front of any sidewalk, dwelling house, business house, or in any alley, except in compliance with the provisions of this ordinance."

Brocato and Petry argue that that section, as evidenced by the conjunction "or," prohibits two separate and distinct actions: one, posting anything on a parking strip that's intended to prohibit or restrict parking; and two, making any mark on any sidewalk, for any reason.

We disagree.

Unfortunately, though, that section of the ordinance is sufficiently ambiguous that the city's interpretation might seem, at least at first glance, to make sense.

Here's our take: Section 6 lists actions which are illegal if those actions are — and here we quote from the latter part of that section — "designed or intended to prohibit or restrict parking in front of any sidewalk, dwelling house, business house, or in any alley. . ."

In other words you're not supposed to paint anything on a sidewalk, or post anything on a parking strip, if your purpose in either case is to prohibit or restrict parking.

We don't believe, however, that Section 6 is intended to ban all markings on sidewalks, regardless of the purpose.

The most compelling evidence supporting the validity of our reading of Section 6 is most of the rest of the ordinance, including its title. The ordinance, beyond any doubt, is designed primarily to deal with matters involving the movement of traffic, both non-motorized and motorized, on streets, alleys and sidewalks. The ordinance also contains more than a dozen references to parking.

It's logical, then, that the ordinance would ban people from making any mark on a sidewalk that's intended to — again, quoting Section 6 — "prohibit or restrict parking."

But it's not logical to conclude that that ordinance, in the very section that outlaws posting anything on a parking strip if it's intended to prohibit or restrict parking, would toss in a ban on marking sidewalks for any reason, even if that reason has nothing whatever to do with parking.

The dots painted on the sidewalk in front of Calder's store did not prohibit or restrict parking.

Nor did Calder have the dots painted so as to affect parking in any way — except maybe to persuade customers to park in front of her store, a matter about which Section 6 is silent.

Another city councilor, Dennis Dorrah, earlier this month had posted on the streetlight pole in the sidewalk in front of his business a sign that reads "Store Parking Only, Please. Thank You!"

That sign, which had been removed as of this morning, apparently was intended to restrict parking along the street. That's precisely the kind of marker which Section 6 is supposed to prevent (businesses can restrict parking on their privately owned lots, but not on adjacent public streets).

Police Chief Wyn Lohner, whose department is responsible for enforcing Ordinance 2893, said Monday afternoon that he had not seen the sign at Dorrah's business but that he or one of his officers would look into the matter.

Unfortunately, based on our interpretation of Section 6 the city has no legal recourse to stop people from making pretty much any mark on sidewalks or streets so long as the purpose isn't to restrict or prohibit parking.

This, obviously, is not acceptable, either.

Chalk-drawn hopscotch grids, for instance, which disappear after every rain shower, are utterly harmless.

But the painting of a penis, a defacement which a city worker had to erase from a street recently, is a different matter.

If the City Council deems it appropriate to restrict sidewalk markings, then it needs to approve a clearly worded ordinance to that effect.