Memorandum
City of Lawrence
Legal Services
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TO: |
Toni Ramirez Wheeler, Director of Legal Services |
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FROM: |
Scott J. Miller, Staff Attorney
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Date: |
October 23, 2008
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RE: |
Additional Panhandling Regulations |
In 2005, the City Commission passed Ordinance 7891, the aggressive panhandling ordinance. That ordinance regulates two types of panhandling. First, it flatly prohibits certain panhandling techniques that were determined to be overly coercive. Second, it completely bans panhandling in some locations, like the areas close to ATM machines, where the request for money carries an inherent element of intimidation or compulsion. The current ordinance does not include passive attempts to solicit donations as part of the definition of panhandling, instead focusing on verbal solicitations.
I have been informed that many citizens continue to complain to our elected officials and City management about panhandling activities within the City of Lawrence, especially in the downtown area, and that members of the City Commission have requested that City staff begin work on a legislative response. As a result of these concerns, I have been instructed to propose additional regulations aimed at reducing some of the negative impacts that have been associated with panhandling. Different cities and courts have concluded that restricting panhandling in public areas serves many different substantial government interests. These interests range from preventing individuals from being subjected to explicit or subtle threats or coercion, and providing a safe and nuisance free environment to preserving the free-flow of traffic on public streets and promoting tourism and the local economy.
After examining the approaches of other cities, reviewing applicable law, and receiving direction from City Management, a multi-tiered approach appears to be an effective way to advance the City’s interests in question. A single citywide panhandling ban would not be approved by the courts because of the Constitution’s freedom of speech guarantee. Cities may, however, lawfully enact content neutral time, place and manner restrictions on speech if the restrictions are narrowly tailored to serve one or more significant government interests and leave open ample alternative channels for the speech in question. Instead of a single ban, then, the regulatory efforts should be focused on the time, place and manner of panhandling.
An amended panhandling ordinance might:
Additionally, the City should consider gathering more data about the interests affected by panhandling in Lawrence and the frequency of objectionable behavior. Each of these possible actions will be discussed below.
Nighttime Panhandling Ban
Many cities, as part of their aggressive panhandling ordinances, have enacted bans on panhandling during the nighttime hours. The basis of these laws is the belief that being approached during darkness and asked for money is inherently more threatening and coercive than a similar request in broad daylight because of more limited opportunities to see and be seen by others. Such a provision could be easily added to our existing aggressive panhandling ordinance, if desired, and would apply through the entire City.
A primary concern of some cities that have enacted such a law involves the discomfort of individuals being approached and asked for donations in parking lots at night. This concern is likely to be more prominent for those areas that do not significantly rely on on-street parking, which suggests that it may be more pronounced outside the downtown area.
Downtown Panhandling Ban
Recently, some cities have begun to completely ban panhandling in certain limited geographical areas. Kansas City, Missouri, Fort Lauderdale, Madison, Wisconsin, and Atlanta are examples of cities that have adopted bans that cover specific limited geographical areas.
Almost universally, the areas included in these limited geographical bans are typically commercial or mixed use districts that are centers of commerce, entertainment and/or tourism such as the Country Club Plaza area in Kansas City and the Fort Lauderdale Beach area. Most cities ban panhandling completely within the designated areas but others, like Madison, limit panhandling to designated zones within the specified areas. A fundamental justification for all these initiatives seems to be to encourage people to patronize the shopping or entertainment areas by making these areas more safe and appealing to visitors.
Lawrence’s downtown is similar in character to many of the areas where total panhandling bans have been applied. It includes a concentration of retail stores, restaurants (including many with sidewalk dining), and entertainment venues and is promoted as an attraction for visitors from out of town. Other notable aspects of downtown include the significant amount of foot traffic it generates, and the density of business and other building entrances on the public right of way.
Because of its special character and the fact that it is a readily definable area, it is possible that a legally defensible ordinance banning panhandling in the downtown area could be drafted. Given that content neutrality is required for the ordinance to be legally valid, the ordinance would necessarily apply to all solicitations that fit the definition of panhandling regardless of the solicitor, the purpose of the solicitation, or the ultimate recipient of the funds. This means, for example, that charitable organizations could not verbally solicit for immediate contributions in the downtown area under such an ordinance.
An alternative to banning panhandling in a certain area would be to require licensure of panhandling in that area, although there would be a question about whether licensure would be as effective as an absolute ban.
Regulations on Passive Solicitations of Money Downtown
An overwhelming majority of the cities that I have surveyed that have enacted a panhandling ban in a specific geographical area do not include passive solicitation of funds, such as holding up a sign or shaking a cup, as part of their panhandling bans. This is likely the case because there is little or no coercion involved in these activities. Nonetheless, at least one city has restricted some passive panhandling within a limited geographical area.
Kansas City, Missouri, which bans active panhandling in many areas such as the Country Club Plaza, Westport, and the Zona Rosa shopping area, also prohibits the passive solicitation of handouts or donations within 20 feet of the entrance or exit of office buildings, retail stores, banks, outdoor dining areas, and residences in these areas. The purpose of the regulations is to keep the locations immediately adjacent to these entrances clear and to avoid the loss of customers who might be disinclined to enter the building because of the panhandling activity. Obviously, if Lawrence were to adopt this type of regulation the 20 foot buffer could be adjusted either upward or downward based upon the Commission’s view of local conditions. A properly-sized buffer zone potentially could meet Constitutional muster.
Because such a regulation prohibits all passive appeals for money in these areas, street musicians and other performers who passively solicit tips or payment for their performances would be confined to the places outside the buffer areas. Active solicitation by these performers would be barred by the downtown panhandling ban. Street musicians and performers who do not solicit contributions would not be affected by these regulations.
Data Collection
While it is appropriate to rely on the experience of other communities that have attempted to solve their panhandling-related problems with a regulatory response, it may also be appropriate and beneficial to the City in both a practical and legal sense to attempt to collect some data on the nature and extent of our panhandling problem. This sort of effort might focus on the public’s perception of the problem, whether individuals have made the choice to avoid certain areas because of aggressive panhandling, whether individuals have ever experienced panhandling or aggressive panhandling in Lawrence, whether business owners feel their businesses are hurt by panhandling near them, the number of people panhandling in Lawrence on a given day and other similar information.
This information would allow us to tailor our ordinance to our local conditions and further would help support the ordinance if it ever becomes necessary to defend it in court.
Please let me know if my further assistance is required.