ATTACHMENT 4

 

MEMORANDUM OF LAW ON REGULATION OF PANHANDLING

 

 

This memorandum addresses the legal issues raised by regulation of panhandling, both on urban streets and sidewalks and on the medians and shoulders of roadways.  Most of the legal issues raised by such regulation 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.

 

 

First Amendment Issues

 

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.  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. But the courts have held that aggressive begging, which includes such elements as repeated requests, intimidation, fear, and crowd disorder, is not protected. 

 

In addition, the courts have upheld some restrictions upon even non-aggressive begging, despite the resulting difference in the legal treatment of speech soliciting contributions as compared to other types of speech.  The U.S. Supreme Court has stated that regulation of solicitation may be permissible even when other speech limitations are not 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).  On the Mall in Washington, D.C., probably the premier public forum in the country, solicitation is prohibited without a permit and even then allowed only within an area specified in the permit.  ISKCON v. Kennedy, 61 F.3d 949 (D.C. Cir. 1995).

 

Provisions narrowly tailored to serve significant governmental purposes.  The courts have held that the restrictions must be narrowly tailored to serve legitimate purposes and must not be unduly vague, although they need not be the least restrictive means of accomplishing their purpose. 

 

Availability of alternative means of expressive activity.   The courts, in deciding whether various restrictions on panhandling are constitutional, have looked to whether alternative means for requesting donations or handouts, such as alternative locations or times, are available.

 

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, at bus stops, 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.) 

 

 

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 of Roadway Solicitation in 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 is considering a proposal to ban nighttime panhandling and to ban all panhandling in a small downtown area.  Raleigh has required a permit for panhandling for over 20 years and more recently Garner has enacted a permit requirement.

 

In addition, both Orlando and Fort Lauderdale, Florida prohibit panhandling in certain areas.  Orlando bans panhandling in an approximately two-square-mile area of downtown, with the exception of what are called “blue boxes,” which are rectangles painted on sidewalks, one or more blocks apart, where panhandlers may stand.  Fort Lauderdale’s regulation is described among the court decisions below.   Also, Charleston, South Carolina has an ordinance banning begging which, according to its legal counsel, is no longer valid.

 

 

Relevant court decisions include:

 

• Forsyth County v. The Nationalist Movement, 505 U.S. 123 (1992), which struck down a fee requirement for public demonstrations which was calculated based on the public expense related to the demonstration, on grounds that “[s]peech cannot be financially burdened…simply because it might offend a hostile mob.”
• Gresham v. Peterson, 225 F.3d 899 (7^th Cir. 2000), which upheld an Indianapolis ordinance that banned verbal panhandling (but not written signs requesting donations) between sunset and sunrise, as well as near cafes, banks, and bus stops anytime, on grounds that sufficient alternatives existed.
• Heffron v. International Society for Krishna Consciousness, 452 U.S. 640 (1981), which held that a ban on solicitation outside of designated booths at a state fair was valid, on grounds that the fairgrounds were not a traditional public forum and the state had a reasonable interest in crowd control.
• ISKCON v. Kennedy, 61 F.3d 949 (D.C. Cir. 1995), which held that federal regulation of begging on the Mall is content neutral; and that, while begging may not be totally banned from the Mall, it may be subjected to a permit requirement and confined to a permit area.
• Loper v. New York City Police Department, 999 F.2d 699 (2d. Cir 1993), which held that begging is a form of First Amendment protected expressive activity and could not be prohibited from the public sidewalks, which are a traditional public forum.
• Riley v. National Federation of the Blind of North Carolina, 487 U.S. 781 (1988), which struck down North Carolina’s licensing requirement as to professional fundraisers; professional fundraisers were required to delay soliciting for an indefinite period of time until a determination upon a license application was made, while volunteer fundraisers could solicit as soon as a license application was submitted.
• Seattle v. Webster, 802 P.2d 1333 (Wash. 1990), cert. denied 500 U.S. 908 (1991), which upheld laws prohibiting aggressive panhandling on grounds that they regulated specific conduct that extended beyond expressive activity and included elements of criminal intent.
• Smith v. City of Fort Lauderdale, 177 F.3d 954 (11^th Cir. 1999), which upheld an ordinance banning begging on a five-mile-long beach, a one-and-a-half-mile-long beachside promenade, and a commercial-area sidewalk opposite the promenade, on grounds that the ordinance was sufficiently narrowly tailored, that the government had a legitimate interest in promoting tourism, and that sufficient alternative means existed in that begging was allowed in other parts of the city.
• United States v. Kokinda, 497 U.S. 720 (1990), which upheld the application of a federal regulation which bans solicitation on Postal Service property to a sidewalk linking a post office and a parking lot.  The Court held that the sidewalk in question was not a public forum, and in addition held that the inherently disruptive nature of solicitation constituted “a content-neutral ground” for the ban on solicitation.   In a concurring opinion, Justice Kennedy stated that solicitation may be regulated whether sidewalks “are public or nonpublic forums.”
• Ward v. Rock Against Racism, 491 U.S. 781 (1989), which upheld a city rule that musicians performing in the Central Park bandshell, a public forum, must use city-provided amplification equipment, on grounds that the requirement that a First Amendment restriction be narrowly tailored does not mean that the city must use the least restrictive or least intrusive means of accomplishing its purpose.
• Watchtower Bible and Tract Society v. Village of Stratton, U.S. Supreme Court, June 17, 2002, which struck down a city ordinance requiring permits for door to door advocacy of religious and political causes as well as sales and solicitations.   The Court based its decision on the ordinance’s restriction of political and religious speech, stating that the ordinance may have been constitutional had it “been construed to apply only to commercial activities and the solicitation of funds.”  (Chapel Hill Town Code Chapter 13, which requires permits for door to door solicitation, exempts from its coverage the circulation of petitions or promotion of views concerning political or religious issues.)
• Young v. New York City Transit Authority, 903 F.2d 146 (2d Cir. 1990), which held that begging could be banned in the subway system on the basis that the subway is not a traditional public forum and that the ban left alternative locations available for begging.

 

                                                                                                           Terrie Gale

                                                                                                            Police Attorney

                                                                                                            Chapel Hill

                                                                                                             Police Department

                                                                                                             October 30, 2002