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: |
November 19, 2009
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RE: |
Comparison of Municipal Panhandling Ordinances |
Regulation of Panhandling in Set Geographic Areas
Total Bans and Loitering Enforcement
As part of the ongoing review of our panhandling ordinances and downtown issues, I was asked to provide comparative information regarding other cities’ approaches to regulating panhandling. I have reviewed the municipal codes of several cities in an attempt to provide the requested information. This process is somewhat difficult, as selecting the cities to sample and compare is always imprecise and subject to debate.
The main problem with this sort of comparison is the sheer number of municipalities in the nation. For example, according to the 2000 census estimates there are almost 400 United States cities with populations greater than 100,000 people. Any of those cities, or smaller cities like Lawrence, is free to take an individualized approach to panhandling regulation. Nonetheless, after reviewing secondary sources, the laws of a number of cities that were selected because they bear some similarity to Lawrence[1] and many other cities that were otherwise examined in the course of my research some trends appear to emerge. I will discuss some of the general approaches that have been adopted and then provide specific information about the group of cities specifically chosen for comparison. Please note that cities do not all refer to the actions in question in the same way. Panhandling laws may also be referred to as begging or soliciting laws in some jurisdictions. For the purposes of this document, all the terms are synonymous.
Predominantly, cities that choose to regulate panhandling adopt aggressive panhandling ordinances. Many cities enact no other laws that supplement their aggressive panhandling bans, but others do adopt additional panhandling-related laws. For the purposes of this memorandum, the term aggressive panhandling refers to laws similar to the one that Lawrence currently has in place. These laws prohibit certain offensive and intimidating actions that a panhandler might try to use to increase the effectiveness of his or her plea such as following the person solicited down the street, becoming abusive if a request is refused or touching the person solicited. These laws also usually 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. In addition to those cities discussed in the analysis of the group of selected cities below, the following cities are examples of ones that have aggressive panhandling laws: Dallas, Texas; Raleigh, North Carolina; Indianapolis, Indiana; Dayton, Ohio; Pittsburgh, Pennsylvania; Cleveland; Ohio; Atlanta, Georgia; Fort Lauderdale, Florida; Memphis, Tennessee; and Boston, Massachusetts. Of course, this list is not exhaustive.
Virtually all of the cities surveyed exclude the act of passively sitting with a sign asking for donations in some manner from their regulations but a few do recognize that aggressive acts with written signs could constitute aggressive panhandling and Austin, Texas applies distance and time limitations to all panhandlers.
None of the selected cities discussed below engage in the full scale licensure of panhandlers.[2] Several other cities have attempted panhandling licensure, but no general consensus on licensing seems to have emerged as it appears to have with aggressive panhandling regulation. Memphis, Tennessee, for example, requires a license for panhandling in certain geographic areas, but does not require a license for passive panhandling. Dayton, Ohio and Greensboro, North Carolina require a free license for panhandling but also do not license passive panhandling. Bettendorf, Iowa licenses all panhandlers and the licensing agent is a city social worker who ensures that all licensees are directed to appropriate social service resources. This allows anyone who encounters a panhandler with a license to know that the panhandler has been offered social services. Kansas City, Missouri has limited licensing for solicitations on public streets.
Raleigh, North Carolina has an ordinance prohibiting panhandlers from begging without governmental permission. Because the ordinance does not address many necessary aspects under the United States Supreme Court’s prior restraint analysis, the ordinance may not survive legal challenge. Other jurisdictions have already 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 in State v. Dean, 170 Ohio App. 3d 292 (2007) 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.
At least one other city has rejected licensing after discussion. Minneapolis, Minnesota elected not to adopt a licensing ordinance after the proposal was advanced by its police chief.
Regulation of Panhandling in Set Geographic Areas
Some cities have elected to prohibit active panhandling in specific geographical areas, usually areas of tourism and commerce. Atlanta, Georgia prohibits active panhandling in its “tourist triangle” but does not prohibit passive panhandling in the same area. Fort Lauderdale prohibits panhandling in its beach area through enforcement of a park regulation. The park regulation allows someone to be expelled for a period of time for panhandling and if they return they may be prosecuted through trespass laws. Kansas City, Missouri passed an ordinance that prohibits active panhandling in certain areas like the Country Club Plaza and Westport and the Central Business District. Passive panhandling is allowed in those areas away from entrances to a building. Boulder, Colorado has illegalized begging in some areas, such as its downtown area and its pedestrian mall, within a certain distance of the walls of any building. It, too, does not apply its prohibitions to passive panhandling.
Although others may certainly exist, I was unable to locate any jurisdiction that has banned both active and passive panhandling in a set geographical area, except for Austin’s 7 P.M. to 7 A.M ban on panhandling in its downtown area.
Total Bans and Loitering Enforcement
Some cities, like Duluth, Minnesota, completely ban begging. Wichita illegalizes loitering and explicitly includes begging as a form of loitering. As previously mentioned, Raleigh, North Carolina requires that beggars have written permission to beg from the chief of police but does not specify what standards apply to the police chief’s decision. There is little doubt that other cities have other, similar laws.
The commonality shared by most of these laws is that they are usually fairly old. Subsequent court cases have called into question these practices. As previously mentioned, requiring someone to get permission before they speak and leaving that permission to the unbridled exercise of an official’s discretion has been found to violate the First Amendment. Likewise, total bans on panhandling, an activity protected by the First Amendment, will not likely survive judicial challenge. That is why most cities with such bans do not enforce them. It has been reported that in 1991 fourteen major cities still had absolute bans on begging but twelve of them had already ceased enforcement. The legal problems with loitering laws are amply demonstrated by Papachristou v. Jacksonville, 405 U.S. 156 (1972).
In short, none of these approaches are considered to be realistic approaches to the problems presented by panhandling and are not the approaches currently favored by the cities addressing these issues or by the courts.
While not an enforcement-related, regulatory approach, one other type of effort should be mentioned. A substantial percentage of the cities that I surveyed are engaging in or have engaged in public education campaigns to encourage people to direct their charitable impulses to organizations that serve the homeless community rather than to panhandlers. This approach addresses the supply side of the equation by pointing out that many panhandlers are not homeless and that many homeless panhandlers use the money they receive to feed addictions rather than for more worthwhile needs. Information is provided about the many public service organizations that provide food and shelter and other resources to the homeless community. Some cities have attributed beneficial results to these efforts like the reduction of panhandling-related police reports, which probably also increases citizen satisfaction. Many cities deploy these programs in conjunction with their legislative efforts.
If you desire further research on this subject, please let me know.
I will more thoroughly describe the approaches to panhandling taken by the cities I selected for comparison. Those cities are: Boulder and Fort Collins, Colorado; Lincoln, Nebraska; Ames, Iowa; Chapel Hill, North Carolina; Berkeley, California; Austin, Texas; Kansas City, Missouri; and Manhattan, Topeka and Wichita, Kansas. For the reasoning behind these selections, see Footnote 1.
Boulder has an aggressive begging ordinance. It further illegalizes active begging in certain places, such as its pedestrian mall and downtown area, within specified distances to the walls of any building. The distances vary based upon the area of the city, but are generally between 10 and 15 feet. Passive panhandling is not affected by the ordinance.
Fort Collins has one of the more unique approaches of any of the cities surveyed. It has an ordinance prohibiting knowing solicitation of “at risk” individuals and disabled individuals. At risk individuals are those who are under 18 years of age or more than 60 years old. Fort Collins has also passed an aggressive panhandling ordinance, including panhandling within a certain distance of certain facilities, like automatic teller machines and bus stops. Panhandling is also illegal at night. Approaching a person with a sign is considered to be active panhandling and is regulated, while sitting passively with a sign requesting a donation is not.
Ames apparently only incidentally regulates panhandling in their ordinance aimed at door to door solicitors. It requires licensure for residence to residence soliciting if the solicitor does not have a permanent presence in the city. Soliciting is defined broadly enough to potentially include someone panhandling for his or her own economic benefit.
Lincoln outlaws aggressive panhandling, including panhandling near sidewalk dining, ATMs, and bus stops, among other areas. Panhandling is illegal at night. The ordinance does not regulate passive panhandling. Lincoln has also engaged in a public relations campaign to promote alternatives to giving to panhandlers.
Chapel Hill has passed an aggressive panhandling ordinance that primarily applies to vocal appeals or written appeals if the person performing the written appeal approaches the person being solicited and tries to hand the person a written request for an immediate contribution. Chapel Hill also prohibits all panhandling, active or passive, in roadways or on the shoulder of roadways. The city has established a nighttime ban on panhandling, and has included distance limitations from financial institutions and public transit facilities. A public relations campaign to discourage giving to panhandlers has also taken place.
Berkeley enacted an aggressive panhandling ordinance. Originally, it included several distance restrictions but currently only panhandling near ATMs is restricted. The other restrictions that previously existed in the ordinance were removed in response to a lawsuit by the ACLU.
Austin has an aggressive solicitation ordinance. It includes distance limitations from several types of places such as financial institutions, sidewalk dining, crosswalks, public transportation facilities and schools. Panhandling is banned in downtown Austin between 7 P.M. and 7 A.M. Austin’s ordinance is fairly atypical in that its distance and time regulations apply to spoken or written requests, and passive panhandling does not appear to be treated differently than active solicitation is. Door to door solicitation is unlawful between 9 P.M. and 9 A.M. Some groups in Austin are currently making a public relations effort to address panhandling. See www.downtownaustin.com/business/resources/cleansafe/ for more information.
Kansas City, Missouri passed a comprehensive panhandling ordinance in March, 2007. It appears based upon media accounts that due to legal concerns parts of the ordinance are not enforced. The ordinance flatly prohibits active panhandling in areas of the city that are centers of tourism and commerce like the Country Club Plaza, Zona Rosa, and Westport. Passive panhandling is legal in these areas unless it is within 20 feet of building entrances and outdoor dining. It prohibits aggressive panhandling and imposes distance limitations on panhandling near many places, including within five feet of the edge of a street, on streets without a permit, near public transportation and by drive-up teller windows. Permits for panhandling on roadways are limited to no more than two occasions per calendar year and no more than six days per occasion. The permit requirements include mandatory signage, and require that a uniformed public safety officer be at each solicitation site. Kansas City’s Downtown Council has also engaged in public relations efforts to discourage panhandling.
Topeka appears not to have passed any panhandling-related ordinances.
Wichita’s city code contains longstanding prohibition against loitering, and all begging is declared to be loitering per se under the ordinance. A public relations campaign concerning panhandling has also been conducted by the Downtown Wichita Development Corporation. See http://www.downtownwichita.org/do_business-stop_panhandling.php .
Manhattan does not appear to have taken any special steps to regulate panhandling.
Below, please find a table with references to the municipal code sections of the selected cities that regulate panhandling. In addition, a report by the National Law Center on Homelessness and Poverty and the National Coalition for the Homeless entitled Homes not Handcuffs: The Criminalization of Homelessness in U.S. Cities (July, 2009)[3] contains a chart at page 165 that, in part, categorizes begging regulations in many more United States cities.
If more in-depth analysis is required on any of these subjects, please let me know.
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Jurisdiction |
Municipal Code Sections |
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Boulder, Colorado |
5-3-7; 5-3-12 |
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Fort Collins, Colorado |
17-127 |
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Ames, Iowa |
17.26(3) |
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Lincoln, Nebraska |
9.20.080 |
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Chapel Hill, North Carolina |
11-170 |
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Berkeley, California |
13.37.020 |
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Austin, Texas |
9-4-13; 9-4-22 |
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Kansas City, Missouri |
50-8.5 |
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Topeka, Kansas |
N/A |
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Wichita, Kansas |
5.48 |
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Manhattan, Kansas |
N/A |
[1] The cities specifically selected for comparison were either chosen because of their geographic proximity to Lawrence or because they are cities with major universities. The university towns were selected because studies have indicated that while 10-60% of the general population gives money to panhandlers, 50-60% of the college student population does so. See the Center for Problem Oriented Policing Panhandling Guide, Center for Problem Oriented Policing | Problem Guides | Panhandling at http://www.popcenter.org/problems/panhandling/ for more information. Perhaps for this reason college towns seem to be at the forefront of many panhandling debates.
[2] Ames, Iowa, as part of their soliciting ordinance, requires solicitors without a permanent presence in their city to obtain a permit if they solicit door to door. The definition of solicitor might be interpreted to include panhandlers if they panhandled door to door. Kansas City, Missouri has limited licensing for solicitation on streets.
[3] The report may be retrieved at http://www.nationalhomeless.org/publications/crimreport/CrimzReport_2009.pdf .