HomeMy WebLinkAbout04/06/2010 09 Panhandling BUSINESS OF THE CITY COUNCIL
YAKIMA, WASHINGTON
AGENDA STATEMENT
Item No.
For Meeting of March 23, 2010
ITEM TITLE: A public hearing relating to the enhanced regulation of panhandlers within the city
of Yakima.
SUBMITTED BY: Cynthia Martinez, Senior Assistant City Attorney
CONTACT PERSON/TELEPHONE: Cynthia Martinez, 509 - 575 -6033
SUMMARY EXPLANATION:
The number and visibility of panhandlers within the city of Yakima appears to be increasing and
has been the topic of comment by citizens. In response, the Yakima City Council requested
police reports and records pertaining to aggressive panhandling. When a lack of reports was
apparent, it was suggested that citizens may not be reporting incidents of aggressive
panhandling for a variety of reasons. The Yakima City Council passed a motion to hold a public
hearing and invite citizens to be heard on the issue and to document the perceived problem.
At the public hearing, the Council will be listening to the testimony to determine if the
panhandling- activity is affecting a substantial City Interest. The right to beg has been
recognized by the Courts as a First Amendment Right and any attempt to regulate begging in a
traditional public forum is subject to the most stringent court review. Legislation may not be
based solely on public annoyance. If a problem is sufficiently documented at the hearing, the
Council may direct the City Legal Department to draft an ordinance to address the problem.
Resolution Ordinance Contract Other(Specify)
Contract Mail to (name and address):
Phone:
Funding Source
APPROVED FOR SUBMITTAL: A ____
47 City Manager
STAFF RECOMMENDATION: Council Policy Issue.
BOARD /COMMISSION RECOMMENDATION: This issue has been considered by the full
Council.
COUNCIL ACTION:
C r r' r �
_!._��OLDY' I� !I
LEGAL
DEPARTMENT
200 South 'Third Street, Yakima, Wastington 98901 (509)5156030 Fax (509)5756160
MEMORANDUM
March 17, 2010
TO: Honorable Mayor Micah Cawleyand the Yakima City Council
FROM: Cynthia I. Martinez, Assistant City Attorney
SUBJ: Public Hearing Concerning Panhandling
The public hearing concerning panhandling within the City of Yakima is
scheduled during the next business meeting on March 23, 2010. Council Members
may be able to assist in creating a complete record by asking pointed questions of
those who testify. Remember that a municipality may not restrict panhandling based
solely on mere speculation of harm, public intolerance; or annoyance to citizens. I
imagine that almost every citizen in the City of Yakima is annoyed by the panhandling
and you may hear testimony that reflects this general opinion.
However, there may be others who have experienced moments of real fear or
who have altered their course of action as a result of a panhandler's behavior (for ,
example: choosing not to get out of their car, or not to go into a particular business).
These fears do need to be based in reason. Council members may be able to illicit
relevant testimony by asking the person testifying to expand or explain why they were
afraid or why they altered their course of action as a result of the panhandler. It will
also be useful to know where the panhandling that is the subject of the testimony took
place and at what hour.
Should a number of citizens testify, patterns in the testimony may be apparent
and Council could provide direction once the hearing has been closed. Regardless, I
will examine the complaints to determine whether the described panhandling is
affecting a significant government interest, and if so, whether a narrowly tailored
ordinance may be drafted to address the problem.
Attached is Yakima Municipal Code addressing aggressive panhandling for your
reference.
' Consolidated Edison Co. of New York, Inc. v. Public Service Commission of New York, 447 U.S. 530 (1980);
Shuttlesworth v. Birmingham, 382 U.S. 87, 91 (1965); Coates v. Cincinnati, 402 U.S. 611, 615 (1971).
Memo re Panhandling Hearing
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March 18, 2010
Page 2
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.
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).
BUSINESS OF THE CITY COUNCIL
YAKIMA, WASHINGTON
AGENDA STATEMENT
Item No.
• For Meeting Of April 6, 2010
ITEM TITLE: Consideration of options to strengthen panhandling enforcement
SUBMITTED BY.: Dick Zais, City Manager
Jeff Cutter, City Attorney
Kelly Rosenow, Deputy Police Chief
CONTACT PERSON /TELEPHONE: Jeff Cutter, City Attorney, 575 -6030
Kelly Rosenow, Deputy Police Chief, 575 -6210
SUMMARY EXPLANATION:
Following a public hearing on March 23, 2010 regarding panhandling activity in Yakima, the
City Council requested that City management provide a review of options to strengthen and
enhance the enforcement and regulation of aggressive panhandling. The testimony at the
hearing provided additional facts and documentation of aggressive panhandling in the
downtown and other parts of Yakima. This information was needed in order for the Council to
entertain stronger measures to address the panhandling problem.
Attached are two reports for Council consideration. The first is from City Attorney Jeff Cutter,
which outlines several legal remedies and options that could be directed by the Council as
amendatory legislation to the City's current panhandling ordinance. The second report is from
Deputy Police Chief Kelly Rosenow, which outlines and makes recommendations for
additional police enforcement efforts to restrict and contain aggressive panhandling. Several
of these choices regard deployment and re- prioritization of existing resources within the
department to address this issue. One option would require an appropriation of $20,000 from
the City's general fund reserves for additional police officer overtime to enhance enforcement
efforts.
Resolution X Ordinance Other (Specify) Interlocal Agreement and Addendum No. 1 thereto
Contract Mail to (name and address):
Phone:
Funding Source
APPROVED FOR SUBMITTAL: \,. City Manager
STAFF RECOMMENDATION: Staff recommends Council review and consider the options
and proposals as submitted and provide appropriation direction to staff.
BOARD /COMMISSION RECOMMENDATION:
COUNCIL ACTION:
MEMORANDUM
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TO: • Honorable Mayor Cawley and City Council Members
Dick Zais, City Manager •
FROM: Jeff Cutter, City Attorney
•
DATE: March 31, 2010
•
SUBJ: Possible Options to Address Panhandling Concerns
The City Council held a public hearing on March 23, 2010 during which members of the
public and City Council were given the opportunity to speak of concerns and experiences
• they may have had with panhandlers within the City: During the hearing sixteen .
members of the public spoke on the panhandling issue, as did several of the Council
members. The information and testimony provided during the hearing essentially spoke
to two pervasive.undesirable contacts with panhandlers.
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The two undesirable contacts that were spoken to by the citizens were
approaches /contacts occurring within parking lots or parking spaces and approaches that .
occurred after the hours of darkness. The testimony to these events specifically described
feelings of helplessness, vulnerability and fear by those being solicited in these places
• and in this manner. The speakers also expressed concern that they felt they had no where
to go to avoid the situation, with several choosing to drive away to avoid the contact
initiated by the panhandler approaching their vehicle as they tried to park. One City
• Council member also spoke of receiving a letter from a citizen expressing similar feelings . •
about an apparent solicitation occurring at an ATM, although specifics were not
provided.
As was previously described by Prosecutor Cynthia Martinez, the courts in Washington
• have repeatedly. stated that the rights of individuals to solicit funds •from others is a
constitutionally protected right in Washington and in the rest of the United States as well.
Ms Martinez also explained that in certain jurisdictions where there have been
demonstrated evidences of specific conduct that has given rise to fear, loss of opportunity
and similar impacts on citizens attempting to carry on their normal activities the courts
have been willing to allow limited stricter regulation of the otherwise permissible activity
• to avoid the undesirable effects.
The stricter regulation has typically resulted from a• public process where concerned
individuals on either side of the issue were offered an opportunity to express their
experiences and concerns, much like the process the City Council just completed. On the
basis of those expressions, if deemed warranted, certain jurisdictions in Washington have
instituted some additional regulation of the undesirable. behavior that was reasonably
calculated to address the concerns expressed. Some of the stricter regulatory measures •
• utilized have required specific distance separation between the solicited party and the
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solicitor, denial of the right to solicit in certain locations or at certain times when
vulnerability of the solicited party is greater or the opportunity for foul play is deemed
more likely, and denial of the opportunity to solicit in settings where the solicited party
has little or no opportunity to avoid the solicitor.
The public hearing conducted by the City Council in Yakima has provided testimonial
support for the two specific situations identified in the second paragraph, above.
Regulations to address those specific concerns would be rather limited in effect.
However, there is judicial acknowledgment of the acceptability of one jurisdiction
recognizing and relying upon. the experiences and problems of other jurisdictions dealing
with similar relevant issues, as support for action taken to avoid similar problems from
occurring. This concept is most succinctly stated in the U.S. Supreme Court case that
arose from events in Washington State pertaining to adult entertainment- issues. The
Supreme Court recognized that every individual jurisdiction that desired to regulate
certain adult entertainment land uses need not establish its own evidence associated with
the harms to public health, safety and welfare that are associated with certain adult
entertainment activities. In fact, the court specifically held:
•
Renton was entitled to rely on the experiences of.Seattle and other cities, and in
particular on the "detailed findings" summarized in the Washington Supreme
• Court's Northend Cinema opinion, in enacting its adult theater zoning ordinance.
The First Amendment does not require a city, before enacting such an ordinance,
• to conduct new studies or produce evidence independent of that already generated
by other cities, so long as whatever evidence the city relies upon is reasonably
believed to be relevant to the problem that the city addresses. (Emphasis
added)
•
Renton v. Playtime Theaters, Inc., 475 U.S. 41, 51, 106 S.Ct. 925 (1986).
•
Although the City is not considering the impacts of adult entertainment in this particular
case, it is my belief that the Renton court's reasoning may be analogized to
considerations of panhandling among the many jurisdictions that have wrestled with the
problems associated therewith. By relying on the testimony and evidence accumulated
by other jurisdictions that have already been involved in the panhandling issues the City
may not be limited to only the two particular issues that were mentioned during the
City's public hearing. So long as the evidence the City relies upon from other
jurisdictions is reasonably believed to be relevant to the problem the City is attempting to
resolve, then the Renton case appears to support the City's reliance on such evidence and
testimony to support actions taken locally.
The City of Tacoma is one example of a jurisdiction that has taken more stringent
regulatory steps to curtail problems associated with panhandling. Based upon testimony
and evidence Tacoma gathered, it enacted ordinances that provide specific restrictions on
panhandling, providing separation requirements and even prohibiting panhandling for:.
* automated teller machines * public areas near building entrances
* exterior public telephones * public transportation stops
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* entering or exiting vehicles * hours after sunset and before sunrise
* soliciting vehicles on public roadways. Other jurisdictions may have taken some other
regulatory approaches, although Tacoma's ordinances are fairly aggressive.
For the purposes of this Memorandum I believe that Council may consider similar
additional regulatory actions for Yakima, based upon the evidence developed by other
jurisdictions dealing with the same issues surrounding panhandling activity. It would be
important, were Council to choose to follow other cities' approaches to the perceived
problem, that the record be properly developed to include the evidence accumulated by
the other jurisdictions from which regulatory measures are being modeled. The legal
department would pursue that evidentiary fact - gathering on behalf of Council if so
directed.
Finally, I am not aware of other jurisdictions that have specifically applied the principle
stated by the, Renton court for the purpose of addressing panhandling problems.
Therefore, I believe the analogy to be essentially untested for .this purpose. I believe the
premise presented is sound, and so long as an adequate record can be developed, the
analogy of the Renton court should be sufficient to support regulation in Yakima if
similar regulation was determined to be necessary in other jurisdictions that have
developed an adequate record to support their action.
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City of Yakima 4' ""°
Police Department 200 S. 3-d Street Yakima,
// • S , o
Samuel Granato, Chief of Police Washington 98901 'it= ' dW == ��
1� f
i�OS N S'
Telephone (509)575 -6200 Fax (509)575 -6007 `% ;
MEMORANDUM
April 1, 2010
TO: Dick Zais, City Manager
FROM: Kelly M. Rosenow, Deputy Chief of Police
SUBJECT: Options to Address Panhandling Activities
The police department recognizes the value of assisting in the development of a
comprehensive approach to panhandling. Panhandling is a public safety concern for
a number of reasons. Research indicates communities all across the nation are
seeking ways to address panhandling.
The real problem is people supporting the panhandlers by giving them money. We
recommend as part of any panhandling the Council takes measures or efforts to
educate and encourage the public to refrain from supporting panhandlers.
The reasons most individuals continue to panhandle because they are successful in
doing so and in some cases are unaware of alternatives by which they could address
their needs. While not an expert in this area, I would recommend prominent
signing, informational flyers which could be supplied to business for use by them
and their customers on how to discourage panhandling, and information which could
be distributed to panhandlers on where to get help.
I will attempt to research successful programs in other areas and be prepared to
discuss with you and /or City Council in greater detail other community's approaches
in the near future. We must keep in mind any new campaign or program
implemented by the city needs to be cost effective. In other words, how can we
address community education of panhandling in a least expensive way to the city?
We have discussed the panhandling issue in great detail, including the importance of
developing a community education campaign with CDY and the Westside Merchants
Association. It is our intention to reach out the Yakima Greater Chamber of
Commerce and other organizations in seeking their assistance.
Many communities have implemented programs in which residents can purchase
tokens or script, which is then handed to the panhandler in lieu of money. This
approach will need to be implemented in partnership with community resources and
should be overseen by a non - governmental agency, such as the Salvation Army, Red
Cross, other local non - profits, and /or the faith community.
The marketing of such a community program is very important, which should
include signage on streets, sidewalks, billboards, and /or businesses advertising it
within their own business community.
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Meanwhile, the department has identified enforcement resources which are available
to the council to address panhandling. The resources are limited and will affect
other functions and duties of the department, but if directed we will re- deployed or
implement them.
We recommend to the council consider the following:
Overtime: The best case scenario for the department is for council to authorize
overtime for panhandling enforcement. This will not disrupt the current functions of
the department. This emphasis patrol would not be as labor intensive as the gang
violence related emphasis patrols. This may cause some discussion within the
community as to why overtime funds are directed to panhandling instead of
addressing violence or gang activity. •
An example of costs: _If the council authorized $20,000 in additional overtime funds
(which I assume would need to come from Reserves) with 2 police officers working
10 hour shifts, the department can conduct a 17 day emphasis patrol.
We can anticipate as the panhandlers are disrupted from one location they will most
likely move to another area of town. In addition, once the emphasis period has
elapsed, individuals engaged in illegal activities associated with panhandling will
return. Finally, the City is experiencing revenue shortfalls in the General Fund; as
such there is no additional money to fund this alternative, unless something else is
reduced.
Downtown Foot Beat Officers: A long term approach to the downtown
panhandlers is the deployment of patrol officers (1 per squad) to physically walk the
downtown business core. This will not address the problems of panhandlers outside
of the downtown area. This option will however create a much more visible police
presence within the central business district which will in turn discourage illegal
panhandling, and other illegal activities in the area.
Such a redeployment of officers would however impact patrol officer response times
to calls for service. If approved, the department will need direction as to the length
of time the council wishes for the downtown foot beat program to be implemented.
Reserves: In an effort to develop a baseline for the problem of illegal panhandling
activities the department is deploying the Reserves to conduct research on the
panhandler's activities. The Reserves will document how often and how many
panhandlers are actually committing offenses. The Reserves will conduct this
research by assigning monitoring certain locations in the city to document offenses.
This research will not be extensive or time consuming and will allow the department
to determine locations with the most offenses occurring.
The utilization of Reserves for an extended period time and /or in place of offering
overtime to regular police officers will need to be negotiated.
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On duty Patrol Officer: The majority of the panhandling is occurring in the day
Tight hours. We can change the department's call priority policy and require the
officers to address any violations of law they observed being committed by
panhandlers. This will likely result in a delay of patrol officer's response to other
non - priority calls for service.
ProAct: There has been some discussion of redeploying the ProAct Officers to
address panhandling. While this is possible, we prefer not to utilize the ProAct
Officers for a long time period. The ProAct Officers are doing some good work in
recovering stolen property and arresting those (the fences) who purchase the
property.
The ProAct Sergeant can be instructed to assign 2 officers to short term
enforcement action. We again stress, we recommend this be very short term so as
not to disrupt pending investigations.
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