HomeMy WebLinkAbout02/02/2010 07 Panhandlers/Panhandling - Pending Council Requests BUSINESS OF THE CITY COUNCIL
• YAKIMA, WASHINGTON
AGENDA STATEMENT
Item No. 7
For Meeting of: Feb 2, 2010
ITEM TITLE: Pending Council Requests re: Panhandlers
SUBMITTED BY: Cynthia Martinez, Senior Assistant City Attorney
Anna M. McFaul, Assistant City Attorney
CONTACT/TELEPHONE: Cynthia Martinez, 575-6033
Anna M. McFaul, 575-6033
SUMMARY EXPLANATION: •
The attached reports discuss efforts to address panhandling and how those efforts relate to the
City of Yakima ordinance regarding aggressive panhandling. The City Council requested a
legal update on opportunities that may be available to the City to address the concerns
regarding the occurrence of panhandling in the City. The attached reports consider responses
taken by other jurisdictions within the State, as well as some that have been pursued by cities in
other states, and provide a legal analysis of the constitutionality and enforceability of those
responses under the law as presently interpreted by the Washington Supreme Court
As part of this responsive effort the City Legal Department, along with the Public Works
Director and the Police Department's Deputy Chief, met with the Chairman of the Board and the
Director of CDY to discuss concerns CDY had expressed regarding opportunities available to
its Safety Ambassador staff to recognize and appropriately respond to observed incidents of
panhandling in the City's downtown business district. As a result of that meeting concerns
arising on the basis of provisions in current and pending contracts between CDY and the City
were discussed and a course of action was agreed upon whereby CDY Safety Ambassadors .
will be able to provide assistance to the City (and citizens) in a safe and effective manner
responding to instances of aggressive panhandling; as well as other conduct perceived to raise
legal or safety concerns. The outcome of that meeting was advantageous to the City and will
result in increased awareness, observation and response to safety issues arising in the City's
downtown business area. CDY also expressed its willingness to participate in public hearings
• that Council may initiate to seek the public's input on the panhandling issue and what additional
• regulation may be warranted.
Resolution Ordinance Contract Other: Council Policy Issue
Contract Mail to (name and address):
Phone: •
Funding Source
• APPROVED FOR SUBMITTAL:
City Ina er
STAFF RECOMMENDATION: Council Policy Issue.
BOARD/COMMISSION RECOMMENDATION:
0 COUNCIL ACTION:
CITY OF YAKIMA
LEGAL
0 . -
DEPARTMENT
200 South Third Street, Yakima, WA 98901-2830 (Phone) 509-575-6033 (Fax) 509-575-6160
MEMORANDUM
January 28, 2010
TO: Micah Cawley, Honorable Mayor
Yakima City Council Members
FROM: Cynthia I. Martinez, Senior Assistant City Attorney
SUBJECT: Panhandling Options
Attached is an updated version of Anna McFaul's memo addressing the
state of law pertaining to panhandling. As I researched creative models to
address the panhandling issues in the City of Yakima, I was struck by the
0 prevalence of this problem throughout the Country. 1 had thought that perhaps .
panhandling, at least the organized panhandling that occurs at some of our •
busiest intersections, could be classified as commercial speech. Commercial
speech enjoys less First Amendment protections and is more readily regulated. 1
did look for other models to this approach and found that the State of Florida had
enacted a Statute that required panhandlers to obtain a license prior to engaging
in the solicitous conduct. However, shortly after enacting the legislation, a
lawsuit was filed in the United States District Court which led to a permanent
injunction banning the enforcement of the Statute. The Court declared the
Florida Statute facially unconstitutional in violation of the First and Fourteenth
Amendments of the United States Constitution.'
As Ms. McFaul has briefed, the right to panhandle has been recognized
by the Washington Supreme Court and the United States. Supreme Court as a
First Amendment right. The exercise of First Amendment rights in traditional
public forums is highly protected activity. In a traditional public forum, the
government may enforce a content-based exclusion only if it can show that its
regulation is necessary to serve a compelling state interest and that it is narrowly
drawn to achieve that end. The City may also enforce regulations of the time,
I Chase v. City of Gainesville, 2006 WL 3826983 (N.D. FLA.)
2 City of Seattle v. Webster, 115 Wash 2d 635, 802 P.2d 1333 (1990)
3 Secretary of State of Md V. Joseph H. Munson Co., Inc., 467 U.S. 947, 104 S.Ct. 2839, 81 L.Ed. 2d 786
• (1984), Village of Schaumburg v. Citizens for a Better Environment, 444 U.S. 620, 100 S.Ct 826, 63
L.Ed.2d 73 (1980)
4 Carey v. Brown, 447 U.S. 455, 465, 100 S.Ct. 2286, 65 L.Ed.2d 263 (1980)
Memo to Mayor and
Yakima City Council
January 28, 2010
Page 2 11111
place, and manner of expression which are content neutral, if the regulations are
narrowly tailored to serve a significant government interest, and leave open
ample alternative channels of communication. Under the broad language of
Article 1, Section 5, the Court has held that restrictions on speech in a public
forum can be imposed only on a showing of a compelling governmental interest.
Other Cities around Washington State have enacted time, place, and
manner restrictions on panhandling after documenting the problem or the
compelling government interest. There are several ways to document the
problem; the City could look at police reports and crime statistics regarding the
perceived problem, the City could conduct a study of the effects of the problem,
and/or the City would hold public hearings in which citizens are invited to testify
about the problem.
The City of San Francisco, referenced by the citizen at the last Council
meeting, took all three measures to identify their community problem. They had
documented numerous crimes including a beggar who was slashing the tires of
people who refused to give him money and the stabbing of a police officer by a
downtown beggar, they conducted a study on the decline of business revenues
(which details tourist complaints regarding harassment by aggressive
•
panhandlers), and they fielded complaints made by businesses and citizens
regarding aggressive panhandling. The description of the environment sounds
like the Seattle Pioneer Square on steroids.
The City of Tacoma also looked at crime statistics and held public hearing
to define the problem so that they could draft an ordinance that was narrowly
tailored to address the significant government interest. They now regulate
panhandling near ATM's and near citizens while they are exiting or entering their
vehicle. Other Cities have conducted public awareness campaigns to
discourage citizens from giving money to panhandlers or focused on the drivers
blocking traffic while delivering money to the panhandler at intersections.
For the last year, we have been watching for crimes related to
panhandling and the attached recent report is the sole report collected. The
police department did research crimes at ATMs and were unable to document a
problem.
5 Ward v. Rock Against Racism, 491 U.S. 781, 791, 109 S.Ct. 2746, 105 L.Ed.2d 661
(1989); Vincent, 466 U.S. at 805, 104 S.Ct. 2118; Perry Educ. Ass'n, 460 U.S. at 45, 103
S.Ct. 948; Grayned v. City of Rockford, 408 U.S. 104, 115, 92 S.Ct. 2294, 33 L.Ed.2d
222 (1972).
•
6 Collier v. City of Tacoma, 121 Wash.2d 737, 747-48, 854 P.2d 1046 (1993) (citing
Bering, 106 Wash.2d at 234, 721 P.2d 918).
Memo to Mayor and -
Yakima City Council
January 28, 2010
• Page - 3
Currently, aggressive panhandling is a civil infraction which is punishable
by a fine only. The City could immediately criminalize aggressive panhandling.
However, I am currently in the process of drafting an ordinance to decriminalize
a number of low level misdemeanors as directed by Council in November 2009
to reduce jail cost and prosecution caseload. Criminalizing aggressive
panhandling would be counterintuitive to that effort. The City could criminalize
the act of using false statements to solicit - charity, but I imagine such
investigations would be low priority.
Interestingly, the article provided by the citizen at the public hearing,
discusses how the City of San Francisco is not planning to throw the
panhandlers in jail. "The idea is not to just throw the homeless into cells but to
help thern," says the Mayor who wrote the law. The law is being rolled out in
conjunction with a team of social workers to provide services to the panhandlers.
The City does have the Mental Health Diversion program that may provide the
same service as those being offered in San Francisco.
In summary, as advised by Ms. McFaul, if the City of Yakima wants to
• consider regulating the time, place, and manner of panhandling within traditional
public forums the City of Yakima needs to take steps to identify the problem to
be addressed. The City will not be able to eradicate panhandling all together
because it is a constitutionally protected activity. The City Legal Department is
ready to draft a defensible ordinance once the significant government interest is
identified.
cc. Dick Zais
Jeff Cutter
Sam Granato
•
C
LEGAL 1111
DEPARTMENT
320 Souitilhird Sheel,Yalcima,WadifIgInn 940 (539)575-0320 Fax 099)575-6163
MEMORANDUM
January 27, 2010
TO: City Council
FROM: Anna McFaul, Assistant City Attorney
SUBJ: Prohibiting Panhandling at ATM's
This memo was originally completed and circulated March 17, 2009. It was again circulated
October 20, 2009 to the Public Safety Committee. There have been no changes in the case law or
statutes that apply to the issues addressed in this memo. The Yakima Municipal Code regarding
pedestrian/vehicular interference is listed on the last page of this memo.
Question: Can the City Of Yakima prohibit panhandling near an ATM?
Answer: No.
Analysis: The right to panhandle and request solicitations is a form of speech protected by the
First Amendment.' The state's right to limit protected speech in a traditionally public forum is
very limited and heavily scrutinized. Public places such as streets, sidewalks, and parks are
considered to be traditional public forums. Content-neutral restrictions on speech and conduct
may be enacted, but are subject to reasonable time, place, and manner restrictions. Regulations
and restrictions regarding panhandling and solicitations are considered content-neutral. These
Roulette v. City of Seattle, 850 F.Supp. 1442 (W.D. Wash. 1994), aff'd 97 F.3d 300 (9 Cir. 1996); Spokane v.
Marr, 129 Wash.App. 890, 120 P.3d 652 (2005); City of Seattle v. McConahy, 86 Wash.App. 557, 937 P.2d 1133
(1997).
Capitol Square Review and Advisory Board v. Pinette. 515 U.S. 753 (1995); Widmar v. Vincent, 454 U.S. 263
(1981); Jacobsen v. Howard, 109 F.3d 1268 (8 Cir. 1997).
3
U.S. v. Grace, 461 U.S. 171 (1983).
4 Clark v. Community for Creative Non-Violence, 468 U.S. 288 (1984); Artistic Entertainment Inc. v. City of Warner
Robins, 331 F.3d 1196 (11 Cir. 2003).
5 U.S. v. Kokinda, 497 U.S. 720 (1990); Initiative and Referendum Institute v. U.S. Postal Service, 297 F. Supp.2d
143 (D.D.C. 2003).
Memo re Prohibiting Panhandling at ATM's
January 28, 2010
Page 2
III .
restrictions must be narrowly tailored to serve a substantial government interest, and must leave
open alternative channels for communication.
An example of a statute that meets the courts standards for a reasonable time, place, and .
manner restriction is Seattle's SMC 12A.12.015 which forbids panhandlers from intentionally
blocking the passageway of pedestrians and aggressive begging that intimidates pedestrians.'
The City of Yaldma has a very similar statute in YMC 6.75.020. The Seattle statute has been
found to meet the narrowly tailored portion in that they prohibit only panhandling with intent to
block passage or to intimidate others. It meets a substantial government interest in that it
promotes clearer and safer pathways, lessens congestion in urban core of Seattle, and proscribes
threatening behavior. This statute also leaves open alternative channels for panhandlers to relay
their message in non-blocking and non-threatening ways."
Statutes that prohibit panhandling are often struck down as overbroad and for producing a
chilling effect on constitutionally protected freedom of movement and speech. A municipality
may not restrict panhandling based solely on mere speculation of harm, public intolerance, or
annoyance to citizens. Reducing crime is a substantial government interest to justify a time,
place, and manner regulation of speech. A city may rely on a police department study that
reports increased crime patterns in an area to show a substantial government interest.''
The Washington cities listed below have adopted statutes that address panhandling near
0 ATM's. Jurisdictions attempting to pass ATM statutes have faced citizen concerns that police
have more serious crimes to respond to; subjects cited are often unable to pay the fines; and poor
timing of the statute due to a recession in the economy. There have not yet been any Washington
cases where a regulation banning panhandling near an ATM has been challenged.
Federal Way Revised Code 6.35.030: This statute prohibits panhandling within 15 feet of any
ATM. Federal Way is located in King County and has a population of 88,040.
Lacey Municipal Code 5.21: This statute prohibits solicitation within 50 feet of any ATM.
Lacey is located in Thurston County and has a population of 38,040. To date, Lacey has not
cited anyone under this statute, thus the regulation has not yet been used or challenged.
6
Perry Educ. Ass 'n v. Perry Local Educators Ass'n, 460 U.S. 37 (1983); Young v. American Mini Theaters, Inc.,
427 U.S. 50 (1976); Hudgens v. N.L.R.B., 424 U.S. 507 (1976); Lehman v. City of Shaker Heights, 418 U.S. 298
(1974); DCR, Inc. v. Pierce County, 92 Wash.App. 660, 964 P.2d 380 (1998).
Seattle Municipal Code 12A.12.015. .
8 Yakima Municipal Code 6.75.020. ,
9 City of Seattle v. Webster, 115 Wash.2d 635, 802 P.2d 1333 (1990); Roulette v. City of Seattle, 850 F.Supp 1442
(W.D. Wash. 1994), aff'd 97 F.3d 300 (9 Cir. 1996).
10 1d.
" Id.
12 City of Seattle v. Slack, 113 Wash.2d 850, 784 P.2d 494 (1989).
13 Consolidated Edison Co. of Now York, Inc. v. Public Service Commission of Nov York, 447 U.S. 530 (1980);
0 Shuttles v. Birmingham, 382 U.S. 87, 91 (1965); Coates v. Cincinnati, 402 U.S. 611, 615 (1971).
14 City of Los Angeles v. Alameda Books, Inc., 535 U.S. 425 (2002).
15 id.
Memo re Prohibiting Panhandling at ATM's
January 28, 2010
Page 3
Pierce County Code 9.60: This statute prohibits solicitation within 25 feet of any ATM. Pierce
County has a population of 785,639.
Tacoma Municipal Code 8.13A: This statute prohibits solicitation within 15 feet of any ATM.
Prior to enacting this statute, Tacoma held extensive public hearings during which they received
numerous communications from citizens and businesses regarding fear, intimidation, harm to
tourism and business, loss of access due to congestion, as well as increased crime that
panhandling near ATM's was causing. Tacoma is located in Pierce County and has a population
of 196,520.
In investigating Yakima's situation, I interviewed Officer Jeff Guilland of Yakima Police
Department Traffic and Transit Special Operations. Officer Guilland indicated that complaints
from citizens about panhandling at ATM's are received about 2-3 times per month and can
increase to 4-6 complaints in the summer months. Officer Guilland indicated that these
complaints report only the citizens' annoyance at being asked for money while at the ATM, but
have not included reports of increased congestion, criminal activity, loss of business, or loss of
access to public space. I further interviewed Detective Doug Robinson and Detective Zachary
Helms of the Yakima Police Department regarding crime at ATM's. Neither of the detectives
were aware of any criminal investigations or complaints of crimes near ATM's such as robbery,
assault, or identity theft related to panhandling.
At this time, the City of Yakima is unable to show a substantial government interest to
support such a statute. In order to show a substantial government interest, the City of Yakima
would need to substantiate more serious concerns than have currently been received. If there was
evidence of increased crime, increased congestion, lack of access, businesses losing customers,
or less tourism occurring due to panhandling at ATM's, the statute would be more likely to be
upheld. At the current time, there are insufficient facts to show a substantial government interest
to support such a statute.
Yakima Municipal Code 6.75.020 Pedestrian or vehicular interference.
A. A person is guilty of pedestrian or vehicular interference if, in a public place in the city of
Yakima, he or she intentionally:
1. Obstructs pedestrian or vehicular traffic; or
2. Aggressively begs. •
Memo re Prohibiting Panhandling at ATM's
January 28, 2010
Page 4
B. Among the circumstances to be considered in determining whether a person intends to
aggressively beg are whether that person:
1. Touches the person solicited;
2. Follows the person solicited;
3. Directs profane or abusive language toward the person solicited;
4. Uses violent or threatening gestures toward the person solicited; or
5. Persists in begging after the person solicited has given a negative response.
C. The following definitions apply to subsection A of this section:
1. "Obstructs pedestrian or vehicular traffic" means to walk, stand, sit, lie or place an object
in such a manner as to block passage by another person or vehicle to such an extent that evasive
action is necessary to avoid physical contact. Innocent acts which unintentionally and
inadvertently block traffic or cause others to take evasive action; acts authorized as an exercise of
one's Constitutional right to picket or to legally protest; and acts authorized by permit issued
'pursuant to this code shall not constitute an obstruction or interference with pedestrian or
vehicular traffic.
2. "Aggressively beg" means to beg with the intent to intimidate another person into giving
money or goods.
3. "Intimidate" means to engage in conduct which would make a reasonable person fearful or
feel compelled.
4. "Beg" means to ask for money or goods as a charity, whether by words, bodily gestures,
signs, or other means.
5. "Public place" means an area generally visible to public view and includes, but is not
limited to, alleys, bridges, buildings, driveways, parking lots, parks, plazas, sidewalks and streets
;open to the general public, and doorways and entrances to buildings or dwellings accessible to
the public and the grounds enclosing them. (Ord. 98 -3 § 59 (part), 1998).
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YAKIMA POLICE DEPARTMENT
•
. / DETAIL REPORT
OFFENSE: TRESPASS 2
CASE#: 09-18827
DATE: 11-14-09
OFFICER: CRAIG W. MILLER #6304
A/0: B. LANHAM
RELATED CASE #: N/A '
PAGE: 2 OF 2
ON 11-14-09 ® 1127 HRS, I WAS SENT TO THE AREA OF 101* N. 2'''' STREET THE BANK OF
AMERICA IN REGARDS TO A SUSPICIOUS PERSON NEAR THE ATM MACHINE. THIS
SUBJECT WAS DESCRIBED AS BEING 30-35 YOA, BLN SHORT HAIR. THE RP STATED THAT
THE SUBJECT HAD HIS HANDS IN HIS POCKETS LUKE HE MIGHT HAVE A GUN OR
SOMETHING, THE RP SAID THAT HE WAS APPROACHING PEOPLE ASKING FOR MONEY
STATING HE NEEDED GAS. THE R1 THEN STATED THAT HE WAS JUST WEIRD.
BASED ON THIS INFORMATION, I RECOGNIZED THE PERSON TO BE IMMINNIIIIIIMIMP
ellir HE RESIDES AT 011.11111111111. OFTEN PANHANDLES FOR MONEY TELLING PEOPLE
THAT HE NEEDS MONEY FOR GAS. HE SOMETIMES USES A. SMALL GAS CAN AS A PROP,
AND FREQUENTS THE DOWNTOWN BUSINESSDISTRICT AREA.
I HAD THE OCCASION TO HAVE CONTACT WITH /NM. ON 09-29-09 AT 1619 HRS, WHEN •
THE BANK OF AMERICA MANAGER CALLED ME TO THIS LOCATION IN REGARDS TO
AGGRESSIVELY PANHANDLING PEOPLE EXITING HIS BANK, AND CONTACTING
THEM NEAR THE ATM. HE REQUESTED THAT HE BE TRESPASSED FROM THEIR PROPERTY.
THIS WAS DONE IN MY PRESENCE.
I FOUND INNIIM ON 11-14-09@ 1127 HRS, ON S. 2. STREET IN THE 100 BLK. I SPOKE TO
HIM ABOUT BEING UP AT THE BANK OF AMERICA PROPERTY, WHICH HE SAID HE WAS
SORRY FOR DOING, AND THAT HE JUST NEEDED SOME MONEY. UNFORMED HIM THAT I
WAS THE OFFFICER WHO WAS PRESENT WHEN HE WAS TRESPASSED FROM THE BANK OF
AMERICA PROPERTY ON 09-29-09. ..
• OFCR, B. LANHAM AND I WERE A TWO MAN UNIT AND TOOK HIM INTO CUSTODY, AND
SEARCHED HIS PERSON INCIDENT TO ARREST FINDING NO CONTRABAND. I ISSUED CITE
#G68817 FOR TRESPASS 2 DEGREE AND OR'DIIIII/M ON HIS PROMISE TO APPEAR.
I CERTIFY OR DECLARE UNDER THE PENALTY OF PERJURY UNDER THE LAWS OF THE
ST OF WASHINGTON THAT TIM FOREGOING IS TRUE AND CORRECT.
— 2
OFFICER CRA.x1t. #6304 YAKIMA PD .
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