× Expand News-IrvingSmith-05-01-2017 Irving Smith receiving a ticket for "occupying a planter" last summer.

Bad behavior at the top of State Street continues to vex city officials. Police and business owners say there is a “bad element” that causes trouble in the public space, often referred to as Tinkertoy Park. The area is also a frequent hangout for people who are homeless. Officials there have struggled for several years to address harassment of pedestrians, public intoxication, drug dealing and other crimes.

To aid in “activation” of the community space, the Madison Central Business Improvement District is launching a new effort dubbed the “Summer in YOUR City Café.” The program, which starts the first week of May, will add 12 bistro tables and 24 chairs to Tinkertoy Park and across the street in the public space adjacent to the Wisconsin Historical Museum.

“We are putting bright, colorful tables and chairs to encourage people to have coffee, hold a meeting, have lunch and really just use the space in a way it hasn’t been used before,” says Tiffany Kenney, executive director of the Madison Central Business Improvement District. “What we are trying to create is a space where everyone feels welcome. In theory, more people hanging out doing the right thing will discourage people from doing the wrong thing.”

The business district’s ambassadors will set up the tables and chairs Sunday through Friday, 11 a.m. to 2 p.m. The mayor’s office allocated $1,500 to the Madison Business Improvement District to purchase the bistro table sets. Earlier this spring, food carts were also assigned spots in Tinkertoy Park during the lunch hours.

Anthony Rineer, owner of Teddywedgers, welcomes the new seating outside his restaurant.

“I think the tables and chairs will be a wonderful addition. I hope it brings a good energy down here because it is such a good converging point for Madison,” Rineer says. “But I’m not sure it will solve all the problems. There are a lot of people who hang out around here who need help and services. There are also people who prey on vulnerable people. Tables and chairs won’t help with that.”

In fact, until recently the open space adjacent to the historical museum offered permanent seating options. But in the summer of 2015, Mayor Paul Soglin ordered that the stones for the public art installation, Philosopher's Grove, be removed. The bus shelter near the stones was also taken out because it was used for drinking, loitering and sleeping.

Ald. Mike Verveer, who represents downtown, acknowledges “there is a certain irony to adding tables and chairs after removing seating there just two years prior.”

But he nevertheless supports the new “activation efforts.”“The top of State Street is known to be an open-air drug market. That obviously has an effect on the atmosphere there,” Verveer says. Nick “Marty” Martin, co-owner and managing partner of Ian’s Pizza, says the summer cafe is a good first step toward thwarting bad behavior but is a far cry from a permanent solution.

“There are two issues at play here: the homeless and the criminal activity. There is some overlap but our concern is over the illicit activity that continues to be a problem 24 hours a day, seven days a week,” Martin says. “We need to help the homeless find services, and we, as a business, have reached out to groups so we know where to direct people. But there are some people who don’t want help and just cause trouble. They are preventing the kind of family-friendly environment that we need to do business.”

Kenney says the Madison Central Business Improvement District isn’t stopping at tables and chairs. Other ideas being floated include adding a merry-go-round, more vendors or even creating a public landmark like the giant, reflective bean in Chicago’s Millennium Park.

“One of our challenges with a long-term plan for the 100 block of State Street is we know changes are coming, including the possibility of a new hotel,” says Kenney, referring to a proposed nine-story boutique hotel where the Fountain restaurant and bar is currently located. “Our efforts have to match up with what’s happening there.”

As the weather warms up, Central District Captain Jason Freedman says police are once again seeing a rise in crime at the top of State Street. Around a dozen people are also sleeping in the area most nights.

“Some people need assistance, resources, and providing that is part of our goal,” says Freedman. “But there are some folks that either can’t or won’t abide by acceptable standards of behavior. Especially when it becomes a public safety issue, there is a need for arrests and citations.”

In April, police posted new signs at Tinkertoy Park. One lists phone numbers and addresses of organizations that provide homeless services. The other says “Please be safe and respectful” and lists unlawful activities like “use of city electricity without a permit,” depositing of “human waste” or “rubbish or refuse,” making “unreasonable noise” and ”occupying or damaging a planter, flower bed or planting.”

Last summer, squad cars were a common sight at the top of State Street. It was part of an effort to enforce city ordinances and add a visible police presence to the area.

But Irving Smith says the crackdown went too far, especially when police started issuing $439 citations for sitting on the cement planters that surround the small stage at Tinkertoy Park. He says the ordinance was only being enforced against people police deemed “undesirable.”

“They just used it as an excuse to tell poor people to move along,” says Smith, a frequent protester at the Capitol. “The bottom line is everyone has a right to be in the commons. They were using this ordinance in ways that it wasn’t written for. I wanted to call them out on their bullshit.”

Smith decided to test the law by fighting an “occupying a planter” ticket in court. But first he had to receive one. So on Aug. 3, he did handstands on the cement planters while informing passersby that the city was violating people’s rights. Smith says he was careful not to disturb the plants during his act of civil disobedience. The stunt attracted attention from police, and Smith walked away with the citation he was seeking.

On April 21, Smith’s case went to trial. He was found not guilty, and the ticket was tossed. Smith asked Municipal Judge Dan Koval to recuse himself because his brother, Mike Koval, is the chief of police. Judge Dan Floeter, the lead court commissioner in Dane County, heard the case. He called police ticketing Smith for sitting on a wall an “overreach.”

“My kids have sat there. I’ve probably sat there,” said Floeter at Smith’s trial in late April. “I think the way this [ordinance] was written was to address the problems we have had with people sliding a sleeping bag under bushes and trying to sleep. Occupying that area. But sitting on the wall I don’t think constitutes occupying a flower bed or planting area. I’m concerned about trying to stuff this into this ordinance.”

Even so, Assistant City Attorney Brittany Wilson — who prosecuted the case — says she disagrees with Floeter's interpretation of the ordinance. And she says the decision is “not binding” on future decisions related to similar ordinance violations. Ten tickets were issued for occupying a planter in 2016, eight at the top of State Street. Wilson says, as far as she knows, Smith was the only one to contest the ticket. Police have yet to write any tickets this year for occupying a planter.

Freedman agrees that tickets are only a short-term fix; but he says citations are necessary sometimes.

“If you are dealing drugs or fighting, we are going to hold you accountable for that,” he says. “But we have noticed that when the space is in full activation, for an event like the farmers’ market, and there is a lot of people in the area, that tends to limit the ability or willingness of folks to engage in potentially negative behaviors.”

For now, Soglin says the city will continue its stepped-up police presence in the area while exploring more ways to populate the community space. He says starting in July, a new street team of social workers will also be deployed to the top of State Street to help connect people who are homeless with existing services.

“We aren’t giving up on this” Soglin says, “until we have satisfactory results.”