Many Colorado Springs City Councilors indicated last week they didn’t believe a proposed ordinance to stem panhandling downtown goes far enough, but free speech advocates question its constitutionality.
Council will have a first reading Tuesday and conduct a hearing on the proposed amendment to its city-wide ordinance against aggressive panhandling. The change would outlaw begging entirely in a specific section of downtown.
“Soliciting for money is a First Amendment-protected free speech,” said Colorado Springs City attorney Chris Melcher.
That doesn’t mean the city has to leave the issue alone, but it has to be very careful in how it drafts an ordinance. Any limitation on free speech has to be content-neutral, leave ample alternative means of communication, narrowly tailored and serve a significant government interest, Melcher said. Those are factors the Supreme Court weighs when deciding constitutionality of free-speech limitations.
Melcher’s proposed zone is roughly bordered by Boulder and Cucharras streets on the north and south, and Cascade and Nevada Avenues on the west and east.
Laws limiting panhandling have come under scrutiny nationally in recent months. A federal judge ruled Aug. 31 that a Michigan state law banning begging was unconstitutional. Nearly 400 people had been prosecuted under that law since its passage in 2008.
Days before Colorado Springs City Council was scheduled to discuss the proposed ordinance in May, an attorney filed suit against the city of Chicago for arresting people for panhandling on the Magnificent Mile.
Mark Weinberg, who fights cases for panhandlers and filed the Chicago lawsuit, said, “I don’t think you can do it. Your city is articulating privileging certain values — commercial interests — over people’s constitutional liberties.”
It’s too hard for cities to draft a law that adequately protects free speech rights, he said, and even harder to draft one that could be enforced in a way that would help the city achieve its goals.
“I’ve fought five of these cases and I’ve won them all,” he said. “Is it reasonable to block off a whole section of a city? I would say no, and the Seventh Circuit seems to say no.”
Melcher said he worked to draft an ordinance that would hold up to scrutiny.
“I know the ACLU is interested,” he said.
Mark Silverstein, legal director for the Colorado ACLU, said Melcher sent him a draft before presenting it to City Council.
“I was very concerned about the astounding breadth of the prohibitions,” Silverstein said.
He said he thinks the proposed law is too broad to be constitutional. The language (see draft law in box) is borrowed almost verbatim from a Fort Lauderdale, Fla., law that prohibits panhandling on about five miles of beach and adjacent sidewalks. That law was challenged and upheld to be constitutional.
Chaz Adams, spokesman for Fort Lauderdale, said the city also reviewed other municipalities’ ordinances before passing its own.
But the law applied specifically to a beach area, he said. It wasn’t drafted for a city setting.
Fort Lauderdale passed a second ordinance in April to ban panhandling within certain parts of its downtown core. That law is new and hasn’t been challenged, Adams said. But the language is dramatically different and specifies areas like bus stations and set distances from places like outdoor cafes, storefronts and ATMs where panhandling is illegal.
It allows for entertainers and sign-holders because it doesn’t ban passive solicitation, Adams said.
Melcher said Colorado Springs would likely have to create a permitting system to allow food vendors and entertainers on the streets if it passes an ordinance like Fort Lauderdale’s beach law.
Silverstein said he thought the language was unusual.
“This would prohibit someone from walking down the street with a sign saying please donate to the campaign to stop prostate cancer,” he said. “But it wouldn’t prohibit someone from walking down the street with a sign that says, ‘re-elect mayor so-and-so.’”
Melcher said the law was drafted to be content-neutral and to prevent people from approaching strangers on the street to request anything.
Several cities have ordinances against panhandling in specific zones. Boulder prohibits it within certain distances of storefronts, restaurants and ATMs along its popular Pearl Street.
Those urging an ordinance argue that panhandlers deter people who would come downtown.
“All the cities that have looked at this have determined that a vibrant, healthy downtown is key to the economic vitality of the community,” Melcher said.
Business owners have complained that many previous customers refuse to come downtown to shop because they say panhandling has gotten out of hand.
“I definitely see more,” said What’s In Store owner Derinda Gianarelli. “The last couple years there have been a lot more people and a lot of new faces I haven’t seen before.”
While calls for service in response to aggressive panhandling have dropped since 2009, Police Chief Pete Carey told Council that there is anecdotal evidence of increased panhandling activity downtown.
Susan Godec, who owns Phancy Pheasant, said that while she’d like to see the ordinance pass, the city probably already has the laws it needs to get the problem under control. She had a copy of the city’s loitering ordinance next to her cash register.
“It’s all about enforcement,” she said. “If this passes, are they going to enforce it?”
Melcher said the loitering ordinance is hard to enforce because of free speech rights and that law’s intricacies.
“It’s hard to tell if someone is just stopping for a little while or loitering, and all you can really do is tell them to move on,” he said.
Carey told Council that the aggressive panhandling ordinance is difficult to enforce because store owners have to make an official complaint if an officer doesn’t witness it. If soliciting were completely illegal, he and his officers could let panhandlers and the public know that soliciting is illegal with a campaign that could include fixed signs downtown warning new comers.
Not broad enough
Melcher left out areas generally considered public forums like Acacia Park, Penrose Library and Pioneers Museum. Councilors Bernie Herpin and Tim Leigh feel those areas should be included in the panhandling prohibition.
“To not include Acacia in this, to me, we might as well forget the whole thing,” Leigh said. “I think you’ve missed the picture.”
Herpin said at the informal Council meeting Aug. 27 that making exceptions would concentrate panhandling in areas of particular importance to downtown vitality like Acacia Park.
Melcher said he would seek any precedent for including parks in these kinds of ordinances. Since then, he said his office’s attorneys have called other municipalities with similar ordinances.
“What we’re discovering is that there are a few towns, if you follow up with the town, where there are parks in the no-solicitation zones,” Melcher said this week.
In fact, Fort Lauderdale’s new ordinance for the city includes city-owned parks, parking garages and meters.
If it’s challenged
Melcher said he will present the legal framework for the law, but will ultimately do whatever Council decides.
“Obviously, we’d like to draft it correctly in the first place,” he said, “and we’d hope that it won’t be challenged.”
He said he’s in touch with the ACLU and will work with Council to make sure the ordinance is narrowly tailored and drawn to include exactly the areas Council wants to protect. If there is significant concern from community members or the ACLU, Council will have to decide its strategy.
“If it’s challenged,” he said, “my office would defend it in court.”
The proposed solicitation amendment
The term “solicit” or “soliciting” shall mean and include any one or more of the following activities:
1. Seeking to obtain orders for the purchase of goods, merchandise, foodstuff services or another thing of any kind, character or description whatsoever for any kind of consideration.
2. Selling goods, merchandise, foodstuff, services or another thing of any kind, character or description whatsoever, for any kind of consideration.
3. Selling or seeking to obtain subscriptions to books, magazines, periodicals, newspapers and every other type or kind of publication for any kind of consideration.
4. Seeking to obtain gifts, or contributions of money, clothing or any other thing for any reason.
5. Seeking to obtain orders for, or selling real estate of any kind, character or description whatsoever for any kind of consideration.
6. Renting or seeking to obtain orders for the rental of goods, merchandise, foodstuff, services, real estate or another thing of any kind, character or description whatsoever, for any kind of consideration.
7. Promoting sales or rentals of real estate, services or goods by the offering of any free services or goods of any kind, character or description whatsoever as an inducement to examine the desirability of such purchase or rental.
8. Placing or carrying, or causing to be placed or carried any showboard, placard or sign for the purpose of accomplishing any of the activities set forth in subsections 1 through 7 of this definition.
D. Solicitation Prohibited: It shall be unlawful for any person to engage in solicitation within the downtown No Solicitation Zone. Nothing in this subsection D shall be construed to prevent a person from acting in accord with a license or permit.