Memorandum

City of Lawrence

Legal Services

TO:	Toni Ramirez Wheeler, Director of Legal Services
FROM:	Scott J. Miller, Staff Attorney
Date:	November 24, 2009
RE:	Licensure of Solicitation of Donations – Ordinance 8477

Introduction

As part of my review of approaches to the regulation of panhandling, I was asked to prepare an ordinance licensing the activity.  As has been previously discussed many times, the solicitation of donations is expressive activity that is protected by the First Amendment.  The United States Supreme Court has held, however, that the time, place and manner of solicitation may be regulated to promote the public’s interest in safety, peace, comfort and convenience. 

Like other time, place and manner restrictions in a traditional public forum, the licensing scheme must be content neutral in order to be valid.  The principle inquiry for content neutrality is whether the regulation was adopted because of a disagreement with the speaker’s message.  Regulations that favor one group over another based upon the content of their message constitute viewpoint discrimination, which is content based and triggers strict scrutiny under First Amendment analysis.  Such regulations are very unlikely to survive this level of scrutiny.  The regulations must also be narrowly tailored to serve a significant government interest and leave open ample channels of communication in order to be valid time, place and manner restrictions.

Licensing schemes constitute a prior restraint on speech.  Prior restraints require a person to get governmental permission before engaging in speech activity.  Prior restrains operate under a heavy presumption of constitutional invalidity.  Nonetheless, as a general matter a licensing action may be valid even if it constitutes a prior restraint if:

· The license is required to be issued within a reasonable time after application.

· Licensing decisions are based upon narrow, objective and definite standards to guide the exercise of discretion.  If the decision involves the review of facts, exercise of judgment and the formation of an opinion by the licensing authority the danger of censorship becomes too great to be permitted. 

· There must be the possibility of prompt judicial review of a license denial or revocation.

Ordinance 8477, if adopted, would require licensure of every person who solicits immediate donations of money or other things of value from members of the public in public places.  The primary purposes of the ordinance, as drafted, are to protect members of the public from fraudulent solicitations, deter aggressive or intimidating solicitations, and manage recidivist offenders.  In the rest of this memorandum, I will describe the operation of the ordinance in more detail.

Application of the Ordinance

The ordinance makes it illegal for a person to solicit a donation from a member of the public if either the solicitor or the person being solicited is in a public place unless the solicitor is licensed.  Each of these important concepts is defined more fully in the ordinance.

The definition of a “solicitation of donation” is very similar to the definition of panhandling in our aggressive panhandling ordinance.  Generally, it is a request for an immediate donation or money or something else of value.  A request to purchase an item for an amount far exceeding its value in circumstances where a reasonable person would understand that the purchase is in fact a donation falls under the definition as well.

Like the aggressive panhandling ordinance, the licensing scheme excludes from the definition of solicitation of a donation passively standing, sitting or engaging in a street performance with a sign requesting donations.  This serves several purposes, including preserving ample alternative channels of communication and helping to ensure that the ordinance is narrowly tailored to serve the significant governmental interests identified.  The overwhelming majority of other cities likewise exclude such activities from their panhandling and soliciting regulations.

Public places include public streets, alleys, sidewalks, trails, parking lots, roadways, parks and recreational facilities.  Therefore, the solicitation of donations on privately owned property would not require a license.  This means, for example, that if a business gave a person or group permission to solicit donations in its parking lots or private sidewalks that no license would be required under the ordinance.  Please note that under Section 14-418 of the City Code, the Aggressive Panhandling ordinance, it is unlawful to panhandle on private property without the consent of the owner of the property.

Members of the public for the purposes of the ordinance include only those people who the solicitor does not have a prior specific and identifiable family relationship or social acquaintance with at the time of the solicitation.  This means that if someone asked his or her brother or friend to give him lunch money no license would be necessary.  The fraud, intimidation and aggressiveness that the ordinance seeks to combat are likely not present in the same manner in this type of transaction, and there are other means available in such circumstances to deter this behavior if it does occur.

The ordinance does not allow a solicitor to avoid licensure merely by introducing himself or herself to the person being solicited and chatting for a short time before the solicitation.  If a reasonable person would conclude that the introduction or acquaintance was made with a primary purpose of facilitating a solicitation of donation then a license is required.

Licensing Procedure

Licenses are issued for a period of one year and there is no fee for their issuance.  The lack of fee helps refute any argument that licensure is an unattainable goal for those people who do not have money and who must solicit to meet their basic needs.  Having any significant fee would lead to allegations that the ordinance essentially criminalizes the condition of being poor. 

The ordinance is written in a way that preserves the status quo, which is the current right to solicit donations, during the application process.  Upon receiving a completed application, the City Clerk’s office must copy the application and sign off on it as received.  This completed application serves as a temporary license until a licensing decision is made.  As part of the application process the applicant must present a government issued identification with his or her photograph or sign a notarized statement that he or she has no such identification.  The applicant is photographed.  The City Clerk may not reject an application merely because the applicant has no permanent address, but will require the temporary addresses or locations that the person frequents to be listed.  If a license is issued, the licensee must update this information with the Clerk’s office if it changes.

At the time of the application, the applicant will be provided with a list of the currently available social service programs in the City that would allow a person to meet his or her basic needs without resort to the solicitation of donations.  In addition to the obvious benefit to the applicant, the fact that the information was offered might be utilized in any public information campaign aimed at deterring panhandling.  Further, upon request the applicant will be provided with a copy of the licensing ordinance and aggressive panhandling law at no charge so that the licensee will know the behavior that is illegal or otherwise not permitted. 

A decision regarding whether to grant or deny a license must be made within 10 days, and if the application is granted the license must be issued within that period of time as well.  If the application is denied the applicant will be provided notice and has 10 business days to file an appeal.

A license may only be denied if:

· The licensee materially misstates any information in his or her application for licensure.  If this material misstatement is made knowingly the person may be charged with a criminal violation as well.

· The applicant has previously been convicted of solicitation of donations without a license two or more times within the preceding two years.

· The applicant has been convicted of aggressive panhandling under our ordinances within the preceding year.

· The applicant has had a previous license for solicitation of donations revoked within the preceding year.

· The applicant has been convicted two or more times in the last two years of violations of one or more other laws prohibiting aggressive or intimidating solicitation, panhandling or begging.

License Conditions

If a licensee does not abide by the code of conduct set forth in the license conditions section of the ordinance then his or her license may be revoked.  Licenses may be revoked for many reasons.  If it is determined after a license is issued that a licensee materially misstated any information in his or her application for licensure, then the license may be revoked.  If substantial evidence exists that the licensee committed aggressive panhandling while licensed, solicits donations without the license in his or her possession, or fails to produce the license for inspection when requested to do so then the person may be subject to revocation.  It is also a violation of the conditions to lend a license to another person for his or her use.  And, if it is determined that the person no longer qualifies for a license or has failed to update application information within 10 days after it has changed then action may be taken to revoke the license as well.

One final license condition bears special mention.  It is a violation of the terms and conditions of a license for a licensee to engage in a fraudulent solicitation.  Fraudulent solicitations are those solicitations in which false and misleading statements are made by the solicitor.  Some specific examples might be stating the donation is needed to meet a need that does not exist, stating the solicitor is from out of town and stranded when that is not true, or claiming to have a disability when that is not true.  While fraudulent solicitations may be fairly difficult to detect and it should not be expected that any significant percent will be found out, having some recourse against those people who are found to have engaged in fraudulent solicitation seems very helpful.

License Revocation

If a license condition is violated, the City Clerk is directed to revoke the license.  He or she provides the licensee with a written notice served by personal service or, provided the licensee has registered a permanent address, by certified mail to the licensee’s registered address.  The licensee’s license or temporary license remains effective pending the outcome of the hearing and any non-judicial appeal.

The written notice must include a description of the reasons for the revocation and detail the appeal rights afforded by the licensing ordinance.  If desired, an appeal of the revocation may be filed within 10 days of service of notice of the contested action.  Once the appeal time runs without an appeal being filed, all temporary licenses and licenses become invalid.    

Appeals

Appeals will be heard by the City Commission as soon as it is practicable to do so.  The City Clerk or his or her designee has the burden of submitting evidence to justify the license denial or revocation.  The City Commission must decide whether, based upon the ordinance and evidence presented, the City Clerk’s decision should be upheld.  If the decision is upheld, then any applicable licenses or temporary licenses are no longer valid. 

Judicial Review

The availability of judicial review of City Commission decisions is controlled by Kansas Statutes.  K.S.A. 60-2101 provides that a judgment rendered by a political subdivision exercising judicial or quasi-judicial functions may be reversed, vacated or modified by the district court on appeal.  Any such appeal must be handled in a manner that recognizes the important constitutional issues at stake and that expedites resolution of the matter.

Penalty

Anyone who unlawfully solicits donations while unlicensed or knowingly makes a material misrepresentation in a license application commits a crime.  Upon conviction he or she may be punished by a fine of not more than $500, a jail term not to exceed 30 days, or both for each offense.  An incentive exists for licensing in the proposed ordinance even if someone has already been charged with soliciting without a license.  Each person charged with soliciting without a license may, on one occasion, have such charge dismissed if he or she applies for a solicitation of donation license within three business days of being charged.  This ensures that anyone convicted of the offense had ample notice of the licensing requirement or was given an opportunity to cure the deficiency before punishment is possible  

Conclusion

Solicitor licensing is a course of action that might be considered as an adjunct to our current aggressive panhandling ordinance, or any amendments to that ordinance, as it makes each of those ordinances more effective.  To be legally valid, however, the licensing must be done in a way that meets the tests for valid prior restraint and time, place and manner restrictions.       

If I can answer any questions on this matter or perform further service, please let me know.