Give It Arrest

The ACLU claims Dade County is using a temporary employment law to keep Hispanic day laborers off the job and in jail

The men who wait every morning just east of the Palmetto Expressway know the routine. "Once a month," says Carlos Sanchez, a broad-faced Managuan in a paint-spattered Calvin Klein T-shirt and sagging jeans, "a team of police come here and pick up a lot of people. They're not in uniform, so at first you think they're the employers."

Sanchez is one of dozens of men, almost all immigrants from Latin American countries, who congregate on SW 8th Street between 74th and 76th avenues hoping that a potential employer in a van or truck will stop to pick them up for a day job. This kind of blue-collar ritual, in which unemployed men stand on display as if in a store window, is played out in cities everywhere. It's a ritual, however, that's been illegal for almost three years in most neighborhoods in Dade County. "When the police come, we leave if we can," Sanchez continues, sweat beading on his brow in the 8:00 a.m. sun. "But me, I've been arrested eight times. A lot of guys out here have been arrested even more. We have to spend the night in jail with criminals, and in the morning the judge lets us go. There are robberies, murders, and crimes like that, but we're punished for trying to feed ourselves."

In September 1993, the Dade County Commission passed an ordinance making it a misdemeanor to hang out in most public places "for the purpose of soliciting or obtaining temporary employment for a period of less than one month." It's also illegal to "pick up" anyone seeking temporary work unless they're in areas zoned for industrial or agricultural use. After three years of undercover police sweeps, the county ordinance is now under attack in federal court: Two lawsuits filed this summer seek to have the law declared unconstitutional. Last week U.S. District Court Judge Ursula Ungaro-Benages consolidated the two cases, but no trial date has been set.

"As we see it, the ordinance raises a whole range of issues," says Andy Kayton, legal director of the American Civil Liberties Union of Florida. Kayton and two private lawyers who work with the ACLU filed a class-action lawsuit in June. "Hundreds of people have been improperly arrested without probable cause and held overnight in jail, all simply for asking for employment." The ACLU suit seeks unspecified damages from Dade County and the City of Miami (because city police officers also have made arrests).

Even before the ACLU launched its wide-ranging challenge, Fernando Candelario, a plasterer from Cuba who was arrested last year, filed a more limited lawsuit against Dade County and the City of Miami, also seeking to have the law ruled unconstitutional. "The more you think about this ordinance the sillier it gets," says David Glantz, attorney for Candelario.

But some residents and merchants in the area say the problems the law is attempting to solve are no laughing matter. Three years ago they met with County Commissioner Javier Souto to complain about the crowds of day laborers they accuse of scaring off customers, urinating in the yards of private homes, bathing in a nearby canal, and generally making life unpleasant in the neighborhood. "They told us this place was a time bomb ready to go off," recalls Souto's chief of staff, Bernardo Escobar. "A building manager told us he had been shot at a couple of times. Patients who visited the doctors' and dentists' offices were afraid to go there. Residents were afraid to leave their children out in their yards. When the commissioner went out to look, he saw about 100 people there. He thought they had every right to solicit work, but in locations not adjacent to residential neighborhoods."

So Souto's staff wrote an ordinance intended to steer the day laborers away from homes and retail businesses and into areas zoned for industrial and agricultural use -- areas where workers probably would be most likely to actually perform temporary construction, landscaping, warehousing, and general labor jobs (but which, according to one lawsuit, are often difficult to get to without a car, a luxury not affordable to those who work sporadically for $40 or $50 a day).

The commission approved the ordinance, signs were posted on SW Eighth Street, and police teams dispatched. If convicted of picking up a worker for a day job, an employer can be fined up to $250 and/or jailed up to thirty days. The ordinance doesn't specify punishment for the workers, however, and Escobar says that's because the intent wasn't necessarily to have them arrested, only to "stop them from going there. It's not their fault; it's the fault of the people who pick them up. There are industrial zones close by, for instance around Bird Road and 72nd Avenue." But that benign intent hasn't precluded the arrest of more than 200 men, according to the ACLU lawyers. "It appears they're charging people with something that's not even a crime," Kayton says. "It's something they're going to have to answer for."

If no penalty is specified in an ordinance, the county code calls for an omnibus punishment of up to $500 and/or no more than 60 days in jail. But even assistant county attorney Roy Wood, who will work with an attorney for the City of Miami to defend the law, isn't quite sure of the reason that no punishment is specified for the workers. "It is an issue," he concedes, "that remains to be resolved in this case." To Wood, the heart of the dispute is simply how much leeway the county government has in regulating economic activity, which would encompass job seeking and job contracting. Previous appellate court rulings, Wood explains, have upheld a local government's right to limit or regulate economic activity if it's for a legitimate reason -- in this case, protecting people who live or work near the activity in question.

But to Kayton, economics is peripheral. "[The ordinance] violates the First Amendment because it punishes free speech -- asking for a job," Kayton says. "We also have a bunch of discrimination claims; it appears this law has been applied exclusively to males of Hispanic origin. We have the arrest records, and every person arrested has a Hispanic surname."

In Candelario's case, 29 other men were arrested with him; most of the cases were eventually thrown out, according to Glantz. Three are still pending. The chief of misdemeanor prosecutions for the Dade State Attorney's Office, Gaston Cantens, says he can't comment on whether, or why, an exceptionally high percentage of charges under that ordinance is dropped, because there are cases pending.

The Metro-Dade police legal bureau did have a few words of caution about the enforceability of the law before it was approved by the commission. A memo from police legal bureau chief Maj. George Aylesworth to Metro-Dade Police Department Director Fred Taylor points out that the ordinance could be effectively enforced only by undercover police officers, and that the loitering prohibition would outlaw even innocuous public gatherings of job seekers. "For example," the memo reads, "there are occasional instances in which employers publish a need for temporary help, such as when the entertainment industry is advertising locally for extras, and many people arrive early and wait outside of the announced location."

Efforts by the police, though, haven't altogether stopped people from collecting on the same street corners. "It's a problem; it's bad for business," laments Tony Saladrigas, owner of Center Auto Parts in the 7400 block of SW Eighth Street. "But there are fewer men waiting around now; it's 30, not 300. And there are definitely fewer people coming to pick them up." Saladrigas acknowledges he's called police on occasion to disperse loiterers, although he denies being the man who, according to many workers who gather near Saladrigas's shop, almost daily rigs a high-power water sprinkler on the roof of the two-story building between 74th and 75th avenues to rain on the men gathered below. Not all merchants along that stretch seem bothered by the job seekers, though; owners of two nearby cafes say they can always see the men hanging around but the laborers don't cause problems for them or their customers.

"We have the right to try to work," insists one young man from Honduras who doesn't want his name published. "But undocumented people like us who don't have work permits, we have to stand out here; we can't go to employment agencies. What we really need is just a place, a secure place with bathrooms, where we can eat, where we can get work without being hassled."

"A few years ago, some high-ranking police officers, some people from the county government, representatives from the Hispanic community, came here and met with us," recalls Jose Rivas, a legal resident from Nicaragua. "We said we're here, we're sober, we're available for any kind of work. They promised to help us." As Rivas is speaking, a pick-up truck drives by and several men motion and whistle in unison. The truck slows as Rivas continues: "But naturally the county commission wants to please the business people around here, so they send the police out. Dicen que estamos contaminando el ambiente. (They say we're contaminating the environment.)

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