Memorandum

City of Lawrence

Legal Services

TO:	Toni Ramirez Wheeler, Director of Legal Services
FROM:	Scott J. Miller, Staff Attorney
Date:	December 3, 2008
RE:	Ordinance 8362 – Unlawful Panhandling Amendments

At the City Commission meeting on November 11, 2008, City staff was directed by the City Commission to prepare for its consideration an ordinance that further restricts panhandling within the City of Lawrence. Ordinance 8362 was prepared as a result of that direction and amends the current Aggressive Panhandling ordinance, Section 14-418 of the City Code.

The ordinance, as drafted, has two primary effects. The first is to prohibit panhandling at night citywide, with night being defined as those hours between sunrise and sunset. The second result of the ordinance is a categorical panhandling ban on the public streets, sidewalks and other public rights of way in Lawrence’s downtown area, regardless of time. The part of the City affected by that portion of the ordinance is the area between 6^th and 11^th Streets and Vermont and New Hampshire Streets. In addition, the caption of the ordinance is changed from “Aggressive Panhandling” to “Unlawful Panhandling” to better reflect the scope of its coverage.

As has been previously mentioned, panhandling is considered to be speech that is entitled to First Amendment protection. The limitation of speech in a public forum is best accomplished through time, place and manner restrictions. These restrictions are only legal if they are content neutral, narrowly tailored to advance one or more significant governmental interests, and leave open ample alternative channels of communication. The recitals contained in the ordinance specify the governmental interests that appear, based upon previous City Commission discussions and the experience of other cities, to exist in this situation. The Governing Body may wish to review those recitals to ensure that they accurately reflect its reasoning.

With the exception of the additions described above, the current ordinance’s provisions are nearly unchanged. One of the important parts of the ordinance that has not substantially changed is the definition of panhandling. Panhandling is defined as follows:

“Panhandling” shall mean any request for or solicitation of an immediate donation of money. A request or solicitation to purchase an item for an amount far exceeding its value, in circumstances where a reasonable person would understand that the purchase is in substance an immediate donation, constitutes panhandling. Panhandling shall not include the act of passively standing, sitting, or engaging in a musical performance or other street performance with a sign or other indication that donations are being sought, without any verbal request for a donation other than in response to an inquiry by another person.

This definition sets forth the behavior that is subject to the ordinance’s regulation. It focuses on those requests for money that are likely more coercive or disconcerting – active, verbal requests for an immediate donation. It applies equally to any person who makes such a request regardless of the purpose of the request. It clearly exempts passive panhandling and allows for donations to street performers following musical or other performances. Finally, if an individual engages a panhandler in conversation it does not prohibit the panhandler from responding. Along with the limited size of the geographical area governed by the total ban on active panhandling, these limitations attempt to ensure that ample alternative means of communication remain for panhandlers.

Because the limitations of the ordinance are aimed at requests for immediate donations, there is nothing in the ordinance that would prohibit an individual or civic organization from soliciting pledges for future donations. Likewise, there is nothing that prohibits a street musician from playing with an open guitar case or tip jar. This is the case because the coercive, intimidating, or nuisance aspects of panhandling would appear to be significantly diminished in these scenarios.

If I can answer any questions, provide ordinance revisions, or otherwise be of any additional assistance in this matter, feel free to call on me.