Memorandum

City of Lawrence

Legal Services

TO:	Toni Ramirez Wheeler, Director of Legal Services
FROM:	Scott J. Miller, Staff Attorney
Date:	October 29, 2009
RE:	Summary of Existing Nuisance Conduct Ordinances

I have been directed to summarize the City’s existing ordinances that regulate commonly encountered street nuisance behavior.  This list is not exhaustive because most of the offenses defined in the criminal laws of the State of Kansas and the City of Lawrence might apply to the streets and sidewalks of our public areas.  Members of the public are almost certainly aware that if they are battered, robbed, stolen from, or if they observe the use or sale of drugs that a crime has been committed.  This memo will focus on acts that the members of the public may believe are offensive but that they may not know are illegal.

Below is a table summarizing the crimes listed in this memorandum with corresponding citations to the City Code:

Ordinance	City Code Section Number
Aggressive Panhandling	14-418
Licensure for Peddlers, Solicitors, and Transient Merchants	6-801 et. seq.
Licensure for Sidewalk Vending of Food, Beverages and Flowers	16-1401 et. seq.
Obstruction of Sidewalks or Streets	16-803
Public Consumption of Alcoholic Beverages	4-105
Public Consumption of Cereal Malt Beverages	4-203
Illegal Camping	14-417
Public Urination/Defecation	14-412
Disorderly Conduct	14-409

If you require further assistance with information about other offenses omitted from this memo, please let me know.    

Panhandling and Selling Goods

Panhandling

Section 14-418 of the City Code prohibits aggressive panhandling.  The ordinance’s definition of panhandling includes a request for an immediate donation of money or a request to purchase an item for an amount in excess of its value to such an extent that a reasonable person would construe that request to be for a donation.  Merely holding a sign requesting a donation is not panhandling under the ordinance.

Panhandlers may not lawfully:

• Touch the person that is being solicited without the person’s consent.
• Intentionally block the path or the person being solicited, or intentionally block the entrance to a building.
• Continue to solicit a person after their request has been refused by that person.
• Follow or walk alongside a person who has walked away after being solicited.
• Make any gesture, or statement while soliciting a donation that would make a reasonable person feel threatened or fearful.

In addition, panhandling is not allowed at all at bus stops, in public transit vehicles, when the person being solicited is in a parked or stopped vehicle, within 20 feet of the entrance to a bank or a financial institution, or on private property without the owner’s consent.

Selling items on the street.

Section 6-801 et. seq. of the City Code requires peddlers, solicitors and transient merchants to be licensed before they can sell or take orders for items in the City of Lawrence.  Individuals selling items on the street fall under the ordinance’s definition of peddler.  Peddlers may not set up in locations that cause congestion or impede or inconvenience the public.  Peddlers are required to exhibit their licenses to anyone who asks to see it.  The license may be revoked for many reasons, including fraudulent behavior or when the peddler’s actions cause a breach of the peace.

Only peddlers who have obtained right of way permits are allowed to maintain a stationary location on public property.  Additionally, there is a separate licensing procedure under Section 16-1401 et. seq. for the sale of food, flowers and nonalcoholic beverages in certain areas along Massachusetts Street that have been set aside for street vending.

Use of Sidewalks

Pursuant to Section 16-803 of the City Code a person may not intentionally obstruct traffic on any street or sidewalk.  It is also unlawful to continue obstructing a street or sidewalk after being told by a police officer to stop whether the original obstruction was intentional or not.  “Obstruct traffic” means to walk, stand, sit, lie, or place an object in a manner that blocks lawful passage by another person or vehicle, or that requires another person or driver to take evasive action to avoid physical contact, or that blocks the entrance of any building or establishment from a public street or sidewalk.

There are several exceptions to the ordinance.  Among the excepted behaviors most typically encountered are obstructions occurring during medical emergencies, parades and rallies, for the purposes of sidewalk dining in an approved sidewalk dining area, and during events where a right of way use permit has been issued. 

Public Consumption of Alcoholic Beverages and Cereal Malt Beverages

Unless specific permission is obtained from the City Commission, the consumption of alcoholic beverages and cereal malt beverages on public streets, alleys, sidewalks and parking lots is illegal.  See Sections 4-105 and 4-203 of the City Code.

Other Offenses

Illegal Camping

Section 14-417 of the City Code prohibits camping in some areas.  The ordinance’s definition is somewhat technical, but generally prohibits using some areas as living accommodations as demonstrated by sleeping there, storing personal property there, lighting a fire for cooking or warmth there or erecting a tent or similar structure.  The key question under the ordinance is whether it reasonably appears by the way the person is conducting one or more of these activities that the person is trying to use the property as his or her living accommodations. 

Camping is illegal in the CD zoning district, which is the downtown area, and also on any private property without the owner of the property’s permission. 

Public Urination/Defecation

Section 14-412 of the City Code makes it illegal for any person on any street, sidewalk, alley, park, public property, private parking lot, any place open to the public, or in a place exposed to public view to urinate or defecate unless it is done in proper restroom facilities.

Disorderly Conduct

Many different behaviors, some not directly relevant to this discussion, may constitute disorderly conduct under K.S.A. 21-4101 and Section 14-409 of the City Code.  A specific portion of the law worthy of mention in this discussion, however, is the provision regarding offensive, obscene, or abusive language and noisy conduct.

In this context, disorderly conduct is using offensive, obscene, or abusive language or engaging in noisy conduct tending reasonably to arouse alarm, anger or resentment in others with knowledge or probable cause to believe that such acts will alarm, anger or disturb others or provoke an assault or other breach of the peace. 

Many of the behaviors listed above that are illegalized are entirely verbal.  In order to avoid striking down the law’s language because it may violate the First Amendment’s guarantee of freedom of speech, the Kansas Supreme Court has placed a limiting construction on the language in question.  A limiting construction excludes some behaviors that might otherwise fall under the law because those behaviors are protected by a higher law, in this case the United States Constitution, and the only other option is to invalidate the law in question entirely. 

In order for someone’s verbal behavior to be disorderly conduct, not only must it violate the standards listed in the individual law but the behavior must also include “fighting words.”  Generally, fighting words are abusive words that are inherently likely to provoke a violent reaction when addressed to an ordinary citizen.  Therefore, not every use of obscene or abusive language will result in a violation of the law.  Offensive or obscene speech or behavior that is egregious enough, however, will violate the law.