By Maureen Juran
The Landscape: As we emerge from the Great Recession, a vestige remains evident on street corners and sidewalks throughout the state. When panhandlers stand on street corners and medians, municipalities become understandably concerned with issues such as motorist distractions, traffic disruptions, blockage of pedestrian paths and harassment of pedestrians, as well as possible injury to the panhandlers, landscape damage and littering concerns.
Cities across the country have increased efforts to crack down on an apparent rise in panhandling, often perceived to be aggressive, while advocates for the homeless and civil liberties groups contend that regulations go too far. A November 2011 report by the National Center on Homelessness and Poverty that surveyed 234 cities found that 53% prohibited begging in particular public places, 53% prohibited “aggressive” panhandling and 24% prohibited begging citywide. The same report also cited a 7% increase in prohibitions on begging and panhandling between 2009 and 2011 within 188 cities surveyed in both of those years.
If your municipality is confronting this issue, it needs to address a solution thoughtfully. Civil liberties organizations and advocacy groups for the homeless have their ears tuned for regulations in this area. Recently, in Colorado Springs, the ACLU brought suit to enjoin the city from enforcing a new ordinance that in part established a no-solicitation zone in the 12 block core of its downtown. After a preliminary injunction was issued in December, 2012, that prevented enforcement of that provision until the matter was fully settled in the courts, the City Council determined to repeal the no-solicitation zone provisions. Another portion of that city’s panhandling ordinance that forbids solicitation within 20 feet of a residential or business doorway was not challenged and remains in effect.
The Legal Considerations:
Places such as parks, streets and sidewalks are generally considered traditional public places open to the public for expressive activity. Courts have established that panhandling or solicitation constitutes expressive activity entitled to the same First Amendment protections as traditional speech. At the risk of oversimplifying a very complicated area of the law, local governments trying to regulate such speech in public places may be successful only if their regulations are (a) reasonable time, place and manner restrictions, (b) justified without reference to the content of the protected speech, (c) content-neutral, and (d) narrowly tailored to serve a significant government interest, while (e) leaving open ample alternative avenues of expression.
The first step to determine if a regulation will pass constitutional muster is to decide if the regulation is content-neutral. If it’s not, it is presumed unconstitutional and will only survive a challenge if a court finds the regulation is the least restrictive means to serve a compelling interest, or passes a strict scrutiny test, which is a high standard indeed. Courts have generally found that bans on the act of solicitation are content-neutral while any regulations that focus on the words of solicitation for differential treatment are not content-neutral. Thus, a ban on in-hand soliciting from automobiles has been deemed content-neutral when the regulation did not also prohibit literature distribution requesting contributions. So, if the way or the manner in which a panhandler transmits his message is regulated but not the message they carry, the regulation may be content-neutral.
Assuming a jurisdiction carefully crafts a content-neutral ordinance, it still must ensure that it has made a strong legislative record that:
- Outlines the significant government interest to be served, such as a need to reduce distractions for the operators of moving vehicles or reduce traffic accidents on corners where soliciting has produced such problems. Ideally, this record will contain specific facts that verify the existence of the problem to be redressed;
- Describes why the ordinance only regulates the time, place or manner of delivering the speech and not the content of the speech itself;
- Describes the alternative avenues available for expressing the speech, such as specifically allowing passive panhandling (standing with a sign without approaching a person); and
- Describes why the regulation is a narrowly tailored means to accomplish the interest to be served. This part of the record may even include alternatives that were considered and rejected and why.
Despite the potential minefields, it remains possible to regulate panhandling activities. Examples of possible approaches include:
Aggressive panhandling. Cities that choose to regulate panhandling predominantly adopt aggressive panhandling ordinances. These laws seem less susceptible to legal challenges and generally prohibit certain offensive and intimidating actions that a panhandler might use such as following or touching the person solicited. These laws also sometimes impose distance restrictions on panhandling in some areas where the act is especially intrusive or intimidating, such as near ATMs, public transportation facilities, and sidewalk dining areas. Fort Collins, Loveland and Larimer County and other jurisdictions also make it unlawful to panhandle after dark and to knowingly solicit from an “at-risk” person (over 60 and under 18 or with a disability).
Licensing solicitors. While narrowly crafted prohibitions on aggressive panhandling have withstood constitutional challenges, more problematic is the approach of attempted panhandling licensure. Licensing requirements can be considered prior restraints on free speech, and prior restraints on expression have a heavy presumption against constitutionality. Memphis, Tennessee, requires a license for panhandling in certain geographic areas, but does not require a license for passive panhandling. One Iowa community requires that all panhandlers be licensed. The licensing agent is a city social worker who ensures that all licensees are directed to appropriate social service resources. Kansas City, Missouri, has limited licensing for solicitations on public streets. Raleigh, North Carolina, has an ordinance prohibiting panhandlers from begging without governmental permission. Some jurisdictions have had their ordinances struck down by courts or repealed by subsequent governing bodies for a failure to meet applicable legal standards. Cincinnati, Ohio’s licensing ordinance was invalidated for failure to provide for the prompt judicial review necessary to justify a prior restraint. In Marion County, Florida, a panhandling licensing provision was repealed by the county commission after a United States District Court judge issued a preliminary injunction against enforcement of the ordinance, finding that there was a substantial likelihood that the plaintiff panhandler would prevail on his First Amendment claims. Marion County eventually
settled with the plaintiff for $10,000 but also had to contend with a claim for plaintiff’s attorney fees in excess of $150,000.
Geographic area bans. Although the City of Colorado Springs has repealed its no-solicitation zone ordinance, such bans remain on the books in other cities. In Boulder, for example, it remains unlawful to beg on the Pearl Street Mall within ten feet of a building wall, in the downtown or the University Hill commercial district within five feet of a building wall, within ten feet of any outdoor patio where food or drink are served, and within ten feet of any properly permitted vending cart. Begging or solicitation solely by means of a sign carried by the person, so long as the sign is not extended within eighteen inches of the person solicited, is still allowed. Recalling that reasonable time, place and manner restrictions may be permissible, it is critical that all factors required for passing First Amendment scrutiny are met if a city desires to approach regulations in this manner.
In a world complicated by competing interests, the First Amendment exists to ensure that the rights of all individuals are respected. In regulating panhandling, it is critical that you obtain expert advice to assist you in carefully weighing and properly adopting regulations that ensure the proper balance is reached.