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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 • 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 • • 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. • 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 • 1 • • 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 2 * 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. • • • • • 3 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. 1 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. 2 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. • • 3