By Anna Pulley
By Erin Sherbert
By Chris Roberts
By Erin Sherbert
By Rachel Swan
By Joe Eskenazi
By Erin Sherbert
By Erin Sherbert
Six hundred and twenty-two dollars and eighty-one cents. This is a figure virtually every builder toiling within San Francisco city limits has had emblazoned onto his or her memory through sheer repetition. In fact, counting in multiples of the dreaded $622.81 ticket has become something of a prerequisite for those in the city's building trades.
When a police officer pulled up at the Mission District construction site Brian was overseeing last year, the contractor's experience in adding — and multiplying — that number began. Claiming Brian's cones, road signs, and flagmen were placed improperly, the officer handed him a ticket for $622.81. Brian adjusted his site to meet the officer's demands. But, several days later, another officer showed up — brandishing yet another $622.81 ticket. The second officer claimed his colleague's notions about cones, signs, and flagmen were wrong and had Brian remake the site once again. So by the time a third officer dropped by roughly a week later and pulled the same act, Brian had had enough. "I said, 'Listen, I'm not signing that ticket. I'm doing it exactly the way your fellow officer told me to do it,'" he recalls. And that's when the cuffs came out.
Brian — who asked that his last name not be used — shut his mouth and signed the ticket. He is just one of the hundreds of contractors, roofers, and movers stung by the city's Safe Paths of Travel (SPOT) program. In a setup unique among California cities, police officers earning hefty overtime pay from the Municipal Transportation Authority's Department of Parking and Traffic cruise the city, ticketing builders who allegedly block the sidewalk, double-park, or otherwise impede the public right-of-way. SPOT's organizers claim the program is not about generating tickets or amassing money — yet, in not quite four years of operation, it has done plenty of both. Officers have handed out more than 4,200 tickets resulting in revenues approaching $2 million, including $771,372 last year alone.
The little-known program's public profile grew significantly last month, but not in a manner SPOT's leadership enjoyed. Half a dozen builders filed reports with the city's Office of Citizen Complaints charging harassment, discrimination, and selective enforcement. Supervisor Aaron Peskin echoed some of those stinging criticisms after a recent meeting in his office with SPOT's top administrators and other city personnel.
SPOT director Sergeant Pat Tobin describes his program as "a diamond of the city" with a crusader's zeal — but not everyone's view is so sanguine. Even the program's staunchest supporters are uncomfortable with the fact that some of the city's biggest businesses have such low ticket totals. Of the 4,202 tickets written from 2005 through August of this year, just 1.4 percent went to utility companies such as PG&E, AT&T, and Comcast. These firms are ubiquitous presences on city streets; PG&E alone estimates it sends 80 to 85 trucks through San Francisco daily to work on 30 to 35 job sites. Meanwhile, only five tickets — total — have been given to city crews like the Department of Public Works or the Water Department.
Even more disturbingly, a handful of contractors told SF Weekly that Tobin or his officers have suggested that worksite problems would be alleviated if they hired off-duty police on overtime to oversee their jobs — a charge Tobin denies. Off-duty officers earned $4.93 million in overtime pay on San Francisco construction sites last year alone. As for the notion that hiring police means you won't get tickets, Tobin himself is unsure of the last time his program ticketed a site with police on it. For builders, this was no revelation: "If you have a police officer, you can pretty much do what you want on-site," one fairly large contractor says. "If you've got cops there, there's definitely a different standard. It's great – if you can afford it."
Tobin slams a fat binder on the table. It's chock-full of chaotic San Francisco construction zone snapshots in which Baghdad by the Bay resembles Baghdad, period. To make their tickets stick, Tobin and his officers are equipped with digital cameras — and, as the girth of the binder reveals, they use them. Photos of disabled people and women with strollers forced onto the roadway by careless contractors are par for the course. Yet Tobin grows most animated by the Holy Grail of construction ticketing photos: an improperly blocked sidewalk forcing a toddler out on the street — who is also pushing an infant in a stroller. He nods vigorously and thrice raps his finger on the offending picture. This is what SPOT is all about.
In an SF Weekly ride-along with Tobin, he didn't see any children directing strollers into traffic. But there was plenty to get him excited. "Look at that! Look ... at ... that!" he exclaims as he hurriedly pulls his SUV to the side of the road high atop foggy Corona Heights and speedwalks toward a trench in the sidewalk. A confused plumber pops his head out of the hole and squints at the rapidly approaching boots of the tall, white-haired man. "Dónde está el jefe?" Tobin quizzes the worker. "Muy peligroso, muy peligroso! Have your boss call me right away," he says, miming a phone call. Tobin strides across the street and makes the same speech to the roofers blocking the sidewalk completely with their truck.
"I remember one thing Pat said that I'll never get out of my mind," contractor Kieran Buckley recalls, sporting a wan smile while he shakes his head. "He said, 'The hardest thing for me to do is giving you guys tickets next to going out and telling somebody a family member has been killed or died.'" Yet spotting gaping trenches or blocked sidewalks didn't seem to induce a state akin to mourning in Tobin at all. In fact, it was quite the opposite: He lit up like a birdwatcher rewarded with a glimpse of a nesting blue heron.
After leaving the plumbers and roofers, Tobin confirmed that he'd usually cite them for their obvious violations of city rules and the Americans with Disabilities Act. Today, however, he'd make a "gentlemen's agreement" with their bosses and let everyone off the hook if they attended SPOT's monthly safety seminar. And yet, five minutes later, he reconsidered his display of benevolence. He phoned Officer Mike Palada, dictated the address, and told him to issue citations. "You don't change a culture with admonishments," Tobin says nonchalantly.
Instead, Tobin has attempted "paradigm change" among the building trades with the costly tickets, and lots of them. Through the program's first three years, it handed out 34 tickets for every admonishment; in 2006, it issued 1,051 tickets and only six admonishments. And while a $65 ticket for double-parking your Ford F-150 may not get contractors' attention, a $622.81 citation for double-parking in a construction zone will. Tobin admits that the fine — which the MTA claims is set by ordinance and the California Superior Court — is gratuitously high. That, he argues, is the way to alter builders' behavior. Also, he eschews the term "double-parking" in favor of "inappropriate temporary traffic control work zone."
The origins of Tobin's controversial program can be traced back to when former Mayor Willie Brown grew impatient while sitting in the back of a limo caught in construction-induced gridlock. This led to the "Unclog the Streets" program, which restricted construction on major city thoroughfares to limited hours of the day during certain months of the year. Working through the Department of Public Works, Tobin and other police were sent to "shoo along" contractors blocking the streets.
By 2004, however, traffic engineers — and Tobin — had grown weary of simply asking builders to obey the law. "We weren't getting the level of enforcement we thought was appropriate," says Brian Dusseault, a traffic engineer attached to SPOT since the beginning. The Department of Parking and Traffic wrested SPOT away from Public Works and began paying police on overtime to nab builders for violating long-unenforced statues on San Francisco's books. Dusseault says the DPT now pays police on SPOT detail an average total of $50,000 a month. The off-duty officers often earn up to $80 or more an hour in overtime pay.
Tobin matter-of-factly states that if there were no violations, there'd be no SPOT. Dusseault adds that he has never set a ticket quota. Yet the reality of any self-funded program stocked by overtime employees is evident. If police issued fewer and fewer tickets, there'd be less and less justification to send them out to earn time and a half. And ticketing is not going down — extrapolating SPOT's 2008 midyear ticket and revenue counts, the program is on pace to far exceed its citations and income from 2006.
While Dusseault says SPOT is unique in focusing on "the entire work zone," it remains unclear what the program does that other city agencies couldn't. "It's a duplication of effort, definitely," says Ed Sweeney, a senior inspector with the Department of Building Inspection. When one of the DPW's 27 field inspectors was asked what SPOT officers can do on-site that he cannot, he answered, "Nothing, really. ... Our job is to teach the contractor how to avoid any kind of ticketing. The other thing [SPOT] is almost detrimental. It comes to nitpicking."
Regardless of its merits as a safety or education program, SPOT has inarguably provided robust second incomes for police officers already earning yearly salaries of $90,000 to well into six figures. According to the city controller's office, Tobin himself earned $261,080 in overtime pay from SPOT between fiscal 2004-05 and 07-08, including $74,824 last year — in addition to his regular yearly salary of $108,760 as a motorcycle officer. When, in recent months, contractors began complaining to elected officials and media queries began coming Tobin's way — "You surfaced," he told SF Weekly with a grin — he abruptly renounced his overtime pay. He explained that he didn't want anyone arguing that he was gung-ho about his program only because it was rewarding him so richly. But Tobin doesn't intend to go without overtime compensation for long. He plans on forgoing it only "for a few more months," until complaints die down.
During SF Weekly's ride-along with Tobin, he largely steered clear of SOMA and downtown neighborhoods where, in the words of a city department head critical of SPOT, "blocking the sidewalk has been raised to an art form." At the outset, however, Tobin lamented that a massive SOMA project by several of the city's largest construction companies was illegally blocking the sidewalks on entire blocks while workers clumsily redirected cars around a boom crane — but did not call an officer to issue citations or admonishments. He did, however, tell three men across the street loading cardboard boxes into a pickup truck to stop blocking the driveway.
That did not surprise midsize contractor John Pollard. SPOT records indicate he paid seven tickets last year — the exact same number as PG&E. He doesn't dispute that he deserved those tickets, but can't fathom a system in which small-to-midsize contractors are more heavily penalized than a billion-dollar utility company, while city crews — legendary in the building community for their carelessness — aren't penalized at all.
On a drive around the city, it didn't take long for Pollard to run into a bevy of problematic work sites. PG&E was tearing apart whole streets in Potrero Hill, and he pointed and shouted "622 dollars! 622 dollars!" at every potential violation. Gaping trenches without barricades, trucks and equipment parked on sidewalks, street closures without signage, and large earth-moving machines backing blindly into oncoming traffic were only the most egregious PG&E violations he saw.
And Pollard was just getting warmed up. Down the road, San Francisco Water Department crews blocked entire streets and sidewalks without any signs indicating a road closure. Port of San Francisco trucks were double-parked along the Mission Bay waterfront, and a backhoe sat unattended on the sidewalk not far off. Across town in North Beach, a Public Works tree-trimming crew had neglected to place a "lane closed ahead" sign prior to the intersection in which its trucks were parked, and a big rig driver nearly missed the abrupt blockage. He swerved, but still crushed an orange cone, just a few yards from oblivious tourists.
While Tobin told SF Weekly that the major downtown-area construction sites are "tuned in" to SPOT regulations and far safer than their smaller colleagues remodeling homes in the avenues, a journey to the actual sites was far from reassuring. At 1 Rincon Hill — perhaps the most visible project in the city — the entire sidewalk was blocked off without signage, and construction vehicles motored against traffic on the wrong side of the road. On Mission Street downtown, where high-rise construction sites loom over the area, pedestrians dodged construction machines on the sidewalk and wandered into busy streets to avoid double-parked flatbeds unloading equipment. Open trenches spiked with jutting bits of rebar resembled miniature tiger traps. Just a stone's throw away stood a pod of off-duty police officers earning overtime pay from the construction companies to "oversee" the site.
Tobin seems taken aback when asked why sites staffed by police on overtime aren't hit by SPOT. He insists they are — but can't name the last time it happened, stating that it "probably" occurred last year. To put that answer into perspective, in 2007 and '08 to date, more than 2,500 tickets have been issued.
Meanwhile, 57 city officials or building professionals queried by SF Weekly said they have never heard of a citation being issued on a site staffed by police officers on overtime — and it certainly hasn't happened to them. Andy Schreck and Tom Taylor, project managers for Webcor — one of the state's largest construction companies and a frequent SPOT target — confirm they've gotten their share of tickets, but never on the days they hired police. Any ticketable offense "will be smoothed out," Schreck says. Some builders say the most useful part of hiring off-duty cops is that it prevents on-duty police from dropping by at all. A structural engineer for a major downtown paving job notes that "when we hired cops, everyone turned the other way. But when we didn't hire them and had our own guys flagging, chaos broke loose. The cops were all over us. When I worked for the big boys, it was always implied that if you had cops on your site, you wouldn't have a problem."
A number of contractors have told SF Weekly that Tobin suggested it would be beneficial if they hired police on overtime. Several distinctly recall Tobin doing so during a May 2007 meeting with the Residential Builders Association (RBA). "He said, 'If you hire these officers they'll show you how to set up your cones and your problems will be solved,'" RBA president Sean Keighran recalls. RBA treasurer Richie Hart, who was also present, claims Tobin said, "All the big guys hire police officers on overtime and they never have a problem on their jobs. That's something everybody should do." Pollard says Tobin hit him up during a SPOT safety seminar to hire police. And another contractor — who, like many builders contacted for this story, feared retribution if his name was revealed — said he was issued a ticket by officers who chided him for not hiring police. "I called Tobin and told him this was extortion, and I would scream and scream loud and it would be heard," he says. "He said he'd take care of it." According to the contractor, Tobin made the ticket go away. Other contractors said they, too, had been asked to hire police — and complied — but refused to have their names used for fear this article will touch off a ticketing barrage.
Tobin issued a blanket denial that any of the above instances took place, and could not recall "taking care of" the aforementioned ticket: "If they are saying I want them to put cops on their job site, then, absolutely, they are lying."
The SPOT program's influence on Bob Planthold's life is not abstract but concrete — literally. If builders block the sidewalk, the pedestrian activist and childhood polio patient, who uses crutches and leg braces, can't get by. Planthold — an adviser to MTA and a former member of the city's Ethics Commission and Civil Grand Jury — vividly recalls the anger, humiliation, and danger of being forced into Geary Boulevard traffic when scaffolding blocked the walkway, and counts himself as a strong SPOT backer. And yet even he couldn't contain his frustration with the program's "selectivity of enforcement."
"A lot of times, people driving city vehicles get away with it when they're parked on the sidewalk," he says. "There's a figurative blind eye turned toward city employees. For city employees to get two tickets while private contractors got 1,728 [in 2007], that is not the real world."
Tobin defends his practice of not citing city workers, claiming his officers give photos of reckless Public Works, Water Department, and other crews to their supervisors. And yet he concedes that there are no statistics kept on how frequently — or infrequently — city crews are reported to their bosses. There is no measurement to chart whether city crews' behavior is improving. In fact, there's no measurement to chart if anyone's behavior is improving. Four years and millions of dollars' worth of tickets into its existence, SPOT is a program with no statistical method of charting success or failure. Planthold, again, sees this as a major problem. "You need benchmarks," he says. "That's a hallmark of 21st-century government functioning. There ought to be good recordkeeping and a consistent application of the enforcement process."
That kind of criticism hurts, because Tobin cites professionalism as the number one reason police are needed to staff his program. Police, he says, "are used to stopping behavior that is not lawful. We have a very high standard of not being swayed."
This is an odd statement — and not just because the inspectors from the Department of Public Works, the Department of Building Inspection, and the state Occupational Safety and Health Administration hardly carry reputations for being easily manipulated and incompetent. Tobin's sentiments are also curious because in no other major California city are police — or any employees on overtime — used to enforce traffic and pedestrian safety at construction zones. And in no other city has a system been crafted that amasses such a vast yearly revenue.
Calls to administrators in Los Angeles, Long Beach, Sacramento, Oakland, San Jose, and San Diego revealed that other cities handle blocked sidewalks, open trenches, and other construction site problems with inspectors from Public Works or a similar department. And, unlike the San Francisco approach — admonishments are up this year, but, since '05, SPOT has still issued 10 citations for every admonishment — other cities tend to speak softly before using the big stick. In Long Beach and San Diego, inspectors have no authority to issue tickets, but can shut down a construction site, which rapidly costs a wayward contractor even more. Just the threat of a closure is almost always enough to induce compliance. George Qsar, a construction engineer in San Diego's engineering and capital projects department, estimates the city shuts construction sites only around half a dozen times a year.
In Los Angeles, Sacramento, Oakland, and San Jose, meanwhile, city inspectors can ticket irresponsible builders, often for up to $1,000. Yet again, the mere threat of such a penalty is virtually always enough to get the city its way. In Sacramento, Public Works inspectors opted to issue $1,000 tickets only eight times in the first eight months of this year. And across the bay in Oakland, the city gave itself the authority to issue $1,000 tickets in July — and hasn't written one yet.
Incidentally, San Francisco's own Department of Public Works also has the authority to issue tickets of $1,000 or more, and hasn't been standing idly by during SPOT's ascent. Barbara Moy, the manager of the DPW's street use and mapping bureau, confirmed that since March alone, her department has issued 98 correction notices — admonishments — and 76 notices of violation. Those violations resulted in $178,000 worth of fines. "This might be a record year," she says. "There's a record amount of infrastructure work going on in the city." When it comes to fining builders, San Francisco is truly the city that knows how.
Whatever else they're accused of, don't charge San Francisco's contractors with not knowing the meaning of irony: Local builders, many of whom were flagged for violating the Americans with Disabilities Act, find their cases adjudicated in a building that is not ADA-compliant. To reach the second-floor hearing room at the San Francisco headquarters of the California Community Dispute Services, you must duck into a garage stuffed with hubcaps and broken-down furniture and ascend a rickety staircase that looks as if it were assembled by Robinson Crusoe.
Seated around a faux-wood folding table and outfitted in T-shirts invariably inscribed with the names and phone numbers of their construction companies, builders pass the tedium with shop talk and gripes about the tickets they're here to appeal.
Richie Walsh's complaint was typical. First off, an officer asked him to do about 10 minutes' worth of fixes regarding sidewalk blockages and proper barricades on his site, then gave him a ticket. But, even more confusingly, Walsh says the officer informed him that he'd been observing the site over the course of three days. "What if something would have happened while he was just sitting there?" Walsh wonders. "Rather than sit there and take photos, he should have pointed out the problem straight away." While Tobin claimed he and his officers may wait "10 or 15 minutes" to snap a damning photograph at a construction site, numerous builders told SF Weekly of SPOT officers, on overtime, lurking for hours. Builder Danny Kerley says he actually stopped work on his site and had everyone cool their heels for the better part of an hour because a neighbor informed them that Tobin — whom Kerley says previously buzzed the site in a Porsche — had been sitting in a car across the street since long before the builders arrived that morning.
Noel Boggins is an old hand at the appeal process. The proprietor of Celtic Scaffolding walks into a small conference room and sits next to Tobin; a laptop placed between them displays photos of Boggins' offending site. On speakerphone from Santa Barbara is arbitrator Thom Bateman, who has copies of the same photos as Tobin (builders hoping to introduce photo evidence of their own are out of luck). Questions about the ADA compliance of Boggins' site lead the builder to make a couple of snipes about the ADA compliance of the building he's currently sitting in.
But Boggins quickly comes to the same conclusion as all the builders before him: The best course of action is to readily admit guilt, profess interest in attending a SPOT seminar, and accept whatever reduction in fine Bateman sees fit. On this day, Boggins ended up paying $122.81. He's still grumbling as he walks down the ramshackle steps, traipses through the garage, and heads into the daylight — and what he sees before him does not improve his mood. A dozen cars are double-parked along Seventh Street, blocking the dispute center's driveway — and pinning in the car that was already illegally parked in front of the driveway. Across the street, a three-wheeled Department of Parking and Traffic interceptor protrudes into the bike lane, and two workers block the sidewalk with their flatbed as they unload a small forklift. It's a galling sight for a man who'd just been given a tag-team lecture about traffic and pedestrian safety.
The day before Boggins' hearing, Tobin heard from a San Franciscan with a bit more clout than a disgruntled scaffolder: Supervisor Aaron Peskin. The president of the board of supes summoned Tobin, MTA/DPT engineers, and other city officials to his office for a Sept. 10 informational meeting. Peskin's assessment of SPOT was eerily similar to that of contractor Mel Annuzzi, Tobin's closest ally in the building community: "It's a good program, but the approach they use sucks."
Peskin describes the SPOT program as "an orphan — no one really owned it or managed it." Rather than spend the vast majority of its money to fund enforcement officers, the supervisor thought it would be fairer and more productive to "require some kind of proactive educational program in order to receive a permit ... rather than going out and reactively citing people."
He was stunned to learn that 98.5 percent of the program's tickets go to private contractors, but was most concerned with the vast amounts of overtime money involved and a structure in which officers can justify their overtime gig by readily handing out citations. "The police department has got to come up with a plan to get off the overtime tit and get this on straight time," says Peskin, who plans a follow-up meeting. "The fines shouldn't be about generating money or perpetuating the program."
But whether SPOT morphs into the program Peskin would like it to be or maintains its lucrative status quo, it won't make much difference to Mike Butler. The scaffolder was one of several members of the building trades who told SF Weekly that he's had it with San Francisco.
"Frankly, it's gotten so bad that I pulled my ad out of the San Francisco Yellow Pages," he says. "I've been doing this for 30 years, but, other than my solid customers, I ain't going over there anymore. We can make money in other cities."