TO: Mayor and Town Council
FROM: W. Calvin Horton, Town Manager
Ralph Karpinos, Town Attorney
SUBJECT: Proposed Amendments to Solicitation Ordinance
DATE: March 3, 2003
The purpose of this memorandum is to recommend amendments to the Town’s solicitation ordinances.
Enactment of Ordinance A would amend Section 11-170 of the Town Code of Ordinances by prohibiting begging, panhandling, and solicitation along highways, roadways, shoulders and medians.
Enactment of Ordinance B would amend Section 11-170 of the Town Code of Ordinances by prohibiting begging, panhandling and solicitation at night if the solicitation is done orally or by means of handing to a person a direct written appeal for an immediate contribution.
Enactment of Ordinance C would add the same provisions as in Ordinance B, but in the appropriate form should Ordinance A have been approved first.
A memorandum containing responses to questions raised during the November 4 work session on public safety and downtown issues is attached.
BACKGROUND
Section 11-170 of the Town Code of Ordinances regulates begging, panhandling and soliciting in public places. This section prohibits solicitation in certain places. These places include bus stops and shelters, public areas within 20 feet of banks and automated teller machines, and along sidewalks and roadways if such acts impede the normal flow of traffic. No restrictions are placed on the time at which begging, panhandling and solicitation may occur.
On November 4, 2002, a work session was held to discuss public safety and downtown issues. During the work session the Council asked that information be provided regarding the possibility of prohibiting panhandling along highways, shoulders and medians, and prohibiting panhandling at night.
DISCUSSION
The number of individuals soliciting contributions has increased over the past several years. Some solicit on behalf of a group or organization. Others solicit for personal gain.
The Town continues to receive calls from merchants, citizens and visitors who are concerned about the number of times per day that they are approached by panhandlers, especially in the downtown area. While some of the panhandlers are reported to be passive in their manner of solicitation, others are reported to be aggressive and intimidating.
Panhandlers also continue to position themselves at several of the Town’s major intersections. We believe that their presence disrupts the safe movement of traffic and poses a potential public safety hazard by distracting the attention of motorists.
Enforcement of the current ordinances regarding aggressive panhandling is difficult for the police. An officer must observe the aggressive act take place or the accosted person must be willing to serve as the prosecuting witness and appear in court. In calendar year 2002 the police made six arrests for aggressive panhandling. Two of the six cases involved panhandling after dark.
We believe that the proposed amendments to the solicitation ordinance would enhance the safety of both motorists and pedestrians. The prohibition against roadside panhandling would eliminate the safety hazards faced by the solicitor, motorists and bystanders. We also believe that restricting nighttime solicitation would enhance the feeling of safety for those who feel less safe when approached by a stranger at night.
KEY ISSUES OF PROPOSED ORDINANCE A
Enactment of Ordinance A would make the following changes to Section 11-170 of the Town Code of Ordinances:
We believe that the enactment of Ordinance A would improve the safety of the solicitors, motorists and bystanders without placing undue restrictions on the locations at which solicitation could take place.
KEY ISSUES OF PROPOSED ORDINANCE B
Enactment of Ordinance B would make the following changes to Section 11-170 of the Code of Ordinances:
We believe that the enactment of Ordinance B would enhance the safety of persons walking at night, particularly in areas frequented by panhandlers, including the downtown business district. We also believe that the proposed limitations on nighttime solicitation are not so broad as to totally restrict solicitors from seeking contributions. One could play a musical instrument and have a box or open case at his or her feet. Solicitors could still hold signs asking for funds. Flyers and advertisements could still be handed out. The proposed restrictions would be limited to prohibiting an individual from approaching a pedestrian or motorist in a public place and directly soliciting a contribution.
LEGAL ISSUES AFFECTING PROPOSED AMENDMENTS
Several cities in North Carolina and others across the nation have ordinances that prohibit begging, panhandling and solicitation at night and along roadways. Legal justification for the amendments proposed herein is summarized in an attached legal brief prepared by Police Attorney Terrie Gale.
CONCLUSION
We believe that the recommended revisions to the Town Code regulating begging, panhandling and solicitation will place limited and reasonable restrictions on solicitors while enhancing the safety of solicitors, pedestrians and motorists.
We recommend that the amended ordinances, if enacted, become effective immediately.
We also recommend that enforcement of the new provisions of the ordinances not begin until May 1, 2003. This would give us time to work with social service providers, civic organizations and merchants to develop a public information program that would inform people about the changes.
RECOMMENDATIONS
That the Council enact Ordinance A that would amend Section 11-170 of the Town Code to prohibit begging, panhandling and solicitation along highways, roadways, shoulders and medians.
That the Council enact Ordinance C that would amend Section 11-170 of the Town Code to include both the provisions of Ordinance A as described above, and the provisions of Ordinance B that would prohibit nighttime begging, panhandling and solicitation in a public place if done orally or by direct written appeal.
ATTACHMENTS
ORDINANCE AMENDMENT A
AN ORDINANCE AMENDING CHAPTER 11 OF THE CODE OF ORDINANCES REGARDING REGULATION OF AGGRESSIVE PANHANDLING (2003-03-03/O-1a)
BE IT ORDAINED by the Council of the Town of Chapel Hill as follows:
Section 1. Article XVII, Chapter 11 of the Town Code is hereby revised to read as follows:
“ARTICLE XVII. REGULATION OF AGGRESSIVE PANHANDLING
Sec.
11-170. Begging, panhandling, or soliciting alms or contributions.
(a) Definitions:
(1) To beg,
panhandle, or solicit alms or contributions shall be defined to
include, without limitation, the spoken, written, or printed word or such other
acts as are conducted in furtherance of the purpose of obtaining alms or
contributions;
(2) Accosting another person shall be defined as approaching or speaking to someone in such a manner as would cause a reasonable person to fear imminent bodily harm or the commission of a criminal act or damage to property in his immediate possession;
(3) Intimidate another person shall be defined as acting in such a way as would cause a reasonable person to fear bodily harm and therefore to do something he or she would not otherwise have done;
(4) Forcing oneself upon the company of another person shall be defined as:
(i)Continuing to
request or solicit alms contributions in close proximity to the
person addressed after that person has responded negatively;
(ii)Blocking the passage of the person addressed; or
(iii)Otherwise engaging in conduct which reasonably could be understood as intended to force a person to accede to demands.
(5) Public place shall be defined to include streets, highways, and roadways (including the shoulders and medians), sidewalks, alleys, and other public property, as well as town-owned and town-controlled property and private property open to the public unless permission to solicit has been obtained from the town or from the private property owner or other person in authority.
(b) No person shall beg, panhandle, or solicit alms
or contributions in a public place in a manner so as to intimidate another
person or by accosting another person, or by forcing oneself upon the company
of another person.
(c) No person shall beg, panhandle, or solicit alms
or contributions from another person within twenty (20) feet of an entrance
or exit of any bank or financial institution or within twenty (20) feet of any
automated teller machine.
(d) No person shall beg, panhandle, or solicit alms
or contributions in any public transportation vehicle owned or operated by
the Town of Chapel Hill or at any station for such vehicle or within six (6)
feet of a bus stop sign, bus stop shelter, or bus stop bench.
(e) No person shall beg, panhandle, or solicit alms
or contributions while sitting or standing on a roadway or the shoulder or
median of a roadway if such action impedes the normal flow of traffic.
(f) Violation of this section shall constitute a misdemeanor and shall subject the violator to a fine of not more than fifty dollars ($50.00) or imprisonment for not more than seven (7) days.
Section 2. This ordinance shall become effective the third day of March, 2003.
This the 3rd day of March, 2003.
ORDINANCE AMENDMENT B
AN ORDINANCE AMENDING CHAPTER 11 OF THE CODE OF ORDINANCES REGARDING REGULATION OF AGGRESSIVE PANHANDLING (2003-03-03/O-1b)
BE IT ORDAINED by the Council of the Town of Chapel Hill as follows:
Section 1. Article XVII, Chapter 11 of the Town Code is hereby revised to read as follows:
“ARTICLE XVII. REGULATION OF AGGRESSIVE PANHANDLING
Sec.
11-170. Begging, panhandling, or soliciting alms or contributions.
(a) Definitions:
(1) To beg, panhandle,
or solicit alms or contributions shall be defined to include,
without limitation, the spoken, written, or printed word or such other acts as
are conducted in furtherance of the purpose of obtaining alms or
contributions;
(2) Accosting another person shall be defined as approaching or speaking to someone in such a manner as would cause a reasonable person to fear imminent bodily harm or the commission of a criminal act or damage to property in his immediate possession;
(3) Intimidate another person shall be defined as acting in such a way as would cause a reasonable person to fear bodily harm and therefore to do something he or she would not otherwise have done;
(4) Forcing oneself upon the company of another person shall be defined as:
(i)Continuing to
request or solicit alms contributions in close proximity to the
person addressed after that person has responded negatively;
(ii)Blocking the passage of the person addressed; or
(iii)Otherwise engaging in conduct which reasonably could be understood as intended to force a person to accede to demands.
(5) Public place shall be defined to include streets, highways, and roadways (including the shoulders and medians), sidewalks, alleys, and other public property, as well as town-owned and town-controlled property and private property open to the public unless permission to solicit has been obtained from the town or from the private property owner or other person in authority.
(6) Vocal appeal shall be defined as begging, panhandling, or solicitation of contributions by spoken word or other verbal request. This shall not include the act of performing music with a sign or other indication that a contribution is being sought, without any vocal request other than in response to an inquiry.
(7) Direct written appeal shall be defined as begging, panhandling, or solicitation by handing to a person or attempting to hand to a person a written solicitation for immediate contributions.
(8) Nighttime shall be defined as the time from dusk to dawn.
(b) No person shall beg, panhandle, or solicit alms
or contributions in a public place in a manner so as to intimidate another
person or by accosting another person, or by forcing oneself upon the company
of another person.
(c) No person shall beg, panhandle, or solicit alms
or contributions from another person within twenty (20) feet of an entrance
or exit of any bank or financial institution or within twenty (20) feet of any
automated teller machine.
(d) No person shall beg, panhandle, or solicit alms
or contributions in any public transportation vehicle owned or operated by
the Town of Chapel Hill or at any station for such vehicle or within six (6)
feet of a bus stop sign, bus stop shelter, or bus stop bench.
(e) No person shall beg, panhandle, or solicit alms
or contributions while sitting or standing on a roadway or the shoulder or
median of a roadway if such action impedes the normal flow of traffic.
(f) No person shall beg, panhandle, or solicit contributions in a public place by vocal appeal or direct written appeal during nighttime.
(f) (g)
Violation of this section shall constitute a misdemeanor and shall subject the
violator to a fine of not more than fifty dollars ($50.00) or imprisonment for
not more than seven (7) days.
Section 2. This ordinance shall become effective the third day of March, 2003.
This the 3rd day of March, 2003.
ORDINANCE AMENDMENT C
AN ORDINANCE AMENDING CHAPTER 11 OF THE CODE OF ORDINANCES REGARDING REGULATION OF AGGRESSIVE PANHANDLING (2003-03-03/1c)
BE IT ORDAINED by the Council of the Town of Chapel Hill as follows:
Section 1. Article XVII, Chapter 11 of the Town Code is hereby revised to read as follows:
“ARTICLE XVII. REGULATION OF AGGRESSIVE PANHANDLING
Sec. 11-170. Begging, panhandling, or soliciting contributions.
(a) Definitions:
(1) To beg, panhandle, or solicit contributions shall be defined to include, without limitation, the spoken, written, or printed word or such other acts as are conducted in furtherance of the purpose of obtaining contributions;
(2) Accosting another person shall be defined as approaching or speaking to someone in such a manner as would cause a reasonable person to fear imminent bodily harm or the commission of a criminal act or damage to property in his immediate possession;
(3) Intimidate another person shall be defined as acting in such a way as would cause a reasonable person to fear bodily harm and therefore to do something he or she would not otherwise have done;
(4) Forcing oneself upon the company of another person shall be defined as:
(i)Continuing to request or solicit contributions in close proximity to the person addressed after that person has responded negatively;
(ii)Blocking the passage of the person addressed; or
(iii)Otherwise engaging in conduct which reasonably could be understood as intended to force a person to accede to demands.
(5) Public place shall be defined to include streets, highways, and roadways (including the shoulders and medians), sidewalks, alleys, and other public property, as well as town-owned and town-controlled property and private property open to the public unless permission to solicit has been obtained from the town or from the property owner or other person in authority.
(6) Vocal appeal shall be defined as begging, panhandling, or solicitation of contributions by spoken word or other verbal request. This shall not include the act of performing music with a sign or other indication that a contribution is being sought, without any vocal request other than in response to an inquiry.
(7) Direct written appeal shall be defined as begging, panhandling, or solicitation by handing to a person or attempting to hand to a person a written solicitation for immediate contributions.
(8) Nighttime shall be defined as the time from dusk to dawn.
(b) No person shall beg, panhandle, or solicit contributions in a public place in a manner so as to intimidate another person or by accosting another person, or by forcing oneself upon the company of another person.
(c) No person shall beg, panhandle, or solicit contributions from another person within twenty (20) feet of an entrance or exit of any bank or financial institution or within twenty (20) feet of any automated teller machine.
(d) No person shall beg, panhandle, or solicit contributions in any public transportation vehicle owned or operated by the Town of Chapel Hill or at any station for such vehicle or within six (6) feet of a bus stop sign, bus stop shelter, or bus stop bench.
(e) No person shall beg, panhandle, or solicit contributions while sitting or standing on a roadway or the shoulder or median of a roadway.
(f) No person shall beg, panhandle, or solicit contributions in a public place by vocal appeal or direct written appeal during nighttime.
(f) (g)
Violation of this section shall constitute a misdemeanor and shall subject the
violator to a fine of not more than fifty dollars ($50.00) or imprisonment for
not more than seven (7) days.
Section 2. This ordinance shall become effective the third day of March, 2003.
This the 3rd day of March, 2003.
MEMORANDUM OF LAW
ON PROPOSED AMENDMENTS
TO CHAPEL HILL Town code section 11-170
TO: Gregg E. Jarvies, Chief of Police
FROM: Terrie Gale, Police Attorney
DATE: March 3, 2003
Amendments are proposed to Town Code Section 11-170, entitled “Begging, panhandling, or soliciting alms or contributions.” These amendments would prohibit soliciting from a roadway or the shoulder or median of a roadway whether or not the solicitor overtly impedes traffic in the roadway, and would regulate nighttime panhandling by banning spoken solicitations and written solicitations handed directly to citizens.
This memorandum addresses the legal issues raised by these proposals. Most of these issues relate to ensuring that First Amendment protections are not abrogated. In addition, the issue of the Town’s authority to regulate conduct on State roads is addressed.
SUMMARY
A proposed amendment to the Town’s panhandling ordinance would prohibit panhandling from roadsides or medians at all times. A second proposed amendment would prohibit nighttime panhandling in public places either by verbal request or by handing a written request for an immediate contribution to a person. Panhandling, as a form of speech protected by the First Amendment, may be regulated only by reasonable time, place, and manner restrictions. The restrictions which would be applied to panhandling by the proposed amendments are similar to restrictions existing in other cities which have been upheld by the courts.
Proposed Amendments
Prohibition of Roadway Solicitation. A State statute, NCGS 20-175(b), prohibits persons on roadways, shoulders, or medians from soliciting employment, business, or contributions from the driver or occupant of a vehicle if such action “impedes the normal movement of traffic on the public highways or streets.” Current Town Code Section 11-170(e) similarly bans roadway solicitation which impedes traffic. The State statute and our ordinance have been enforced only when the solicitor physically slowed, stopped, or otherwise visibly affected the flow of traffic. The proposed amendment would forbid solicitation from a shoulder or median even if the solicitor did not step into the roadway and overtly affect traffic flow. This proposal is in response to citizen complaints and police observation that such solicitation diverts drivers’ attention and creates a public safety hazard.
Regulation of Nighttime Panhandling. The current Town ordinance on aggressive panhandling, Section 11-170, includes various manner and place restrictions, including that begging should not be repeated, persistent, obstructive, or intimidating, and that begging should not take place near ATMs, banks, bus stop signs, or on public transportation. Panhandling in these manners or places is inherently intimidating to the person being approached. The proposed amendment adds a time restriction – nighttime – because night panhandling is also inherently intimidating to many people. Nevertheless, a panhandler who wishes to beg at night would have alternatives: he/she may panhandle, day or night, on any private property if the owner does not object, as the ordinances apply only to public places; he/she may panhandle, day or night, in public places so long as he does not make a spoken request for immediate contributions or thrust a written request at a person. Additionally, the proposal would not bar such actions as holding up a written sign, or leaving a guitar case open while performing, etc.
Current Chapel Hill Ordinances Relevant to Panhandling
Town Code Section 11-170. Begging, panhandling, or soliciting alms or contributions.
Aggressive begging, panhandling, and soliciting, whether by spoken or written means, are banned. Aggressiveness is defined to include such actions as accosting, intimidating, or blocking a person, forcing oneself upon a person, continuing to request contributions after being refused, blocking passage, or otherwise engaging in conduct which could reasonably be understood to force a person to accede. Aggressive begging, panhandling, and soliciting also are defined to include any panhandling in certain areas where being solicited would be inherently intimidating, including near bank entrances and exits, ATMs, near bus stop signs, or on buses. In addition, panhandling is banned on roadways (including shoulders and medians) if traffic is thereby impeded.
Town Code Section 12-3. Rules and regulations for town parks.
Soliciting, peddling, and begging are prohibited by Section 12-3(l) in Town parks, with exceptions for concessions granted franchises by the parks department and for nonprofit and civic groups which have received written permission from the parks director.
Town Code Section 17-17. Use of public benches, seats, and tables.
Sleeping or lying prone on benches, seats, or tables in the downtown area or at bus stops is prohibited.
Town Code Chapter 13. Peddlers and solicitors.
Chapter 13 requires a permit for door-to-door sales and solicitations of orders for sales. (Note that no permit is required for door-to-door dissemination of religious and political information, the subject of a recent U.S. Supreme Court decision.)
First Amendment Issues
Soliciting, panhandling, and begging on the public sidewalks or other places considered to be public forums have been held to be forms of speech or expressive activity protected by the First Amendment. When speech or other expressive activity falls within the protections of the First Amendment to the United States Constitution, it may be regulated only by reasonable time, place, and manner restrictions (1) which are content neutral, (2) which are narrowly tailored to serve a significant government interest, and (3) which allow for alternative means of communication.
Content neutrality. Although begging in public places falls within the purview of the First Amendment, the courts have upheld regulation of aggressive begging, which includes such elements as repeated requests, intimidation, fear, and crowd disorder. The U.S. Supreme Court has stated that regulation of solicitation is “a content-neutral ground” because “confrontation by a person asking for money disrupts passage and is more intrusive and intimidating than an encounter with a person giving out information.” U.S. v. Kokinda, 497 U.S. 720, 734 (1990).
Provisions narrowly tailored to serve significant governmental purposes. The courts have held that restrictions on First Amendment speech must be narrowly tailored to serve legitimate purposes and must not be unduly vague, but need not be the least restrictive means of accomplishing their purpose. The amendments addressed here have been developed in response to citizen complaints of harassment and danger on city sidewalks and roadway intersections, and are proposed for the purpose of increasing public safety by minimizing threatening conduct, eliminating distractions to drivers, and preventing and resolving crime. The requirements as to conduct are clear.
Availability of alternative means of expressive activity. The restrictions of Section 11-170 are applicable only to public places and forbid only aggressive or dangerous panhandling. Nonaggressive panhandling and solicitations off public property would not be regulated. Solicitations on private property open to the public also are allowed, with the permission of the property owner.
AUTHORITY TO RESTRICT Roadway Solicitation
A State statute, NCGS 20-175(b), prohibits persons on roadways, shoulders, or medians from soliciting employment, business, or contributions from the driver or occupant of a vehicle if such action “impedes the normal movement of traffic on the public highways or streets.” Town Code Section 11-170(e) similarly bans roadway solicitation which impedes traffic. The State statute and our ordinance have been enforced only when the flow of traffic is overtly and noticeably slowed or stopped.
The authority of the Town to enforce a solicitation ban on State highways is based on NCGS 160A-174 and 160A-300. The latter statute states that a “city may by ordinance” regulate traffic on the public streets of the city, which include State roadways which are within the city’s jurisdiction. NCGS 160A-174 states that “city ordinances requiring a higher standard of conduct” than that required by State law are not precluded by State law.
Regulation of Panhandling and Roadway Solicitation in OTHER NORTH CAROLINA Cities
Several local governments in North Carolina regulate panhandling and roadway solicitation more stringently than does the Town of Chapel Hill. All solicitation and attempted solicitation from medians and shoulders of roadways, whether or not the flow of traffic is noticeably affected, is banned by Asheville, Charlotte, Garner, Gastonia, Greensboro, Greenville, Raleigh, and Wilmington. Raleigh and Garner both currently ban nighttime solicitation. Asheville bans day and nighttime panhandling in two areas of the city. Raleigh has required a permit for panhandling for over 20 years and more recently Garner has enacted a permit requirement.
Relevant court decisions include:
MEMORANDUM
TO: W. Calvin Horton, Town Manager
FROM: Gregg Jarvies, Chief of Police
SUBJECT: Follow-up to Public Safety Issues Work Session
DATE: March 3, 2003
During the November 4, 2002 work session on public safety issues and issues affecting the downtown, council members requested additional information regarding particular topics that were under discussion. The purpose of this memorandum is to provide that information.
At what time were the arrests made for the six offenses of aggressive panhandling?
Four of the six arrests were made between the hours of 8:00 a.m. and 5:00 p.m. Of the remaining two, one was made in the late evening and the other shortly after midnight.
What happened to the operating funds that accrued as a result of the vacancies experienced by the police department?
At the beginning of FY 01-02 the police department had nine sworn vacancies. Though eleven officers were hired at some point during the year, ten officers left town employment. The department started FY 02-03 with eight sworn vacancies.
None of the unexpended funds resulting from these vacancies were transferred to other accounts or spent on other needs. On February 8, 2002 I sent a memorandum to Finance Director Jim Baker indicating that I would be able to reduce our projected expenditures for the year by $231,390. A significant portion of these unexpended funds ($157,642) were from personnel accounts.
Do the civilian security monitors receive training in the laws and ordinances regulating offenses most likely to be observed downtown?
All security monitors receive training before they begin service to the town. However, this training is somewhat basic and does not include in-depth training about local ordinances and State statutes. Such training will be included in the future.
Is the security monitor program effective? Are we getting a good return for our investment?
I believe that civilian security monitor program is a worthwhile endeavor. I believe that the presence of monitors downtown, at the Hargraves Center and Northside Gym, and at the Town Hall enhances the feeling of safety at those locations. However, the number of monitors, the scope of the coverage areas, and the constant turnover of monitors have made the program difficult to manage.
We have approximately twenty monitors positions. Two monitors work downtown four to five days per week. One is assigned to the Town Hall during all public, nighttime meetings. One works most evenings at the Northside Gym. These assignments are typically handled by the same individuals. This component of the program has caused few problems and has proven popular with people who frequent these locations.
Hiring, staffing and supervising the monitors who work in the downtown area at night have proven more difficult. Most of these monitors work sporadically during the month. Attendance and scheduling issues present significant problems for the officer who, in addition to his other duties, manages the program. On-site supervision of the monitors is the responsibility of the on-duty commander, who is also responsible for all other police operations in Town. Also, because most of our monitors are college students or have full time jobs, it is difficult to find enough monitors willing to work until the early morning hours.
I have entered into preliminary discussions with private security companies that provide security services similar to those expected of our security monitors. These companies provide security at some of the State’s military bases as well as on many public and private properties throughout the State. These discussions are for fact-finding purposes only. However, such companies may be able to help us ensure consistent coverage at posts such as Town Hall, the Northside Gym, and the Community Center on Estes Drive.