Memorandum
City of Lawrence
Legal Services
|
TO: |
Mike Wildgen, City Manager
|
|
FROM: |
David L. Corliss, Assistant City Manager & Director of Legal Services Scott J. Miller, Staff Attorney
|
|
Date: |
June 14, 2005
|
|
RE: |
Public Civility Ordinances |
Attached you will find three ordinances that are designed to address certain concerns that were expressed regarding behaviors occurring within the public areas of the City of Lawrence. The ordinances and their general subjects are:
|
Ordinance Number |
Subject |
|
Aggressive Panhandling |
|
|
Use of Right-of-Way |
|
|
Unlawful Camping |
Each of the ordinances will be discussed in detail below. As a prefatory matter, it should be noted that enactments of this type have not been the subject of much litigation in Kansas courts, and staff necessarily analyzed and relied upon certain opinions of the United States Supreme Court, as well as other State and Federal courts, in order to determine the boundaries that our governing body can comfortably legislate within. The proposed ordinances do not reflect the most aggressive measures that have been implemented by some cities to address these issues. Instead, they are calculated to address these problems in a manner that staff believes is reasonably likely to survive judicial scrutiny.
The first ordinance, Ordinance 7891, creates the public offense of Aggressive Panhandling. This ordinance makes it illegal to engage in panhandling in a manner that could reasonably be construed as coercive or threatening. In addition, the ordinance prohibits panhandling at certain locations that make it difficult for the person being solicited to voluntarily disengage from an encounter with a panhandler, or where the nature of the location makes panhandling seem unduly threatening. One example would be asking for money close to an automatic teller machine. The term “panhandling”, as used in the ordinance, includes solicitations for the immediate donation of money, and solicitations to purchase property when a reasonable person would understand the request to purchase property for an amount far exceeding its actual value to be, in essence, a donation. Excluded from the definition of “panhandling” is passively sitting, standing, or engaging in a musical performance or other street performance with a sign or other indication that donations are being accepted, provided that there are no verbal requests for a donation initiated by the person accepting the donation.
Several acts are prohibited by the ordinance when performed in conjunction with panhandling -- touching the solicited person without his or her consent; intentionally blocking the path of any person being solicited; continuing to solicit a donation from a person after that person has already refused an earlier request; following or walking beside someone who walks away from the panhandler after being solicited; and making any statement, gesture, or other communication that would cause a reasonable person to feel threatened, fearful, or compelled. Panhandling is completely prohibited when either the panhandler or the person being solicited is at a bus stop, in a public transportation vehicle or facility, in a vehicle stopped on any public alley or street, within twenty feet of an ATM or financial institution, or on private property without the consent of the property owner.
The Aggressive Panhandling ordinance is based on ordinances of other cities that have been successfully defended in court as well as scholarly articles and model ordinances on the subject.
The next ordinance, Ordinance 7892, amends Sections 16-803 and 16-804 of the City Code. This ordinance replaces the current language of Section 16-803 that makes it illegal for a person to appropriate any part of the City’s right-of-way and provides more definite standards of illegal conduct. Specifically, it makes it illegal to intentionally obstruct traffic on the City’s right-of-way, including sidewalks and streets, and also illegalizes the continued obstruction of traffic on the City’s right-of-way when told by a police officer to end such obstruction. A person obstructs traffic pursuant to the ordinance when he or she blocks the entrance to any private or public building, places his or her body or some object in a way that blocks the passage of a person or vehicle, or causes another person using the right-of-way to take evasive action to avoid physical contact with the potentially obstructing person.
In order to buttress the legality of the ordinance’s prohibitions, and make certain policy exceptions to the prohibited conduct, Section 16-804 of the City Code is amended to exclude several types of conduct from Section 16-803’s reach. Legal protests or picketing, using a mobility assistance device by the disabled, use of the right-of-way during a medical emergency, patronizing a commercial establishment legally conducted on a sidewalk, attending a lawful parade, rally or festival, and sitting on benches or at bus stops are all exceptions to the general prohibitions of the ordinance.
The power of a city to legislate to prevent people from blocking sidewalks or obstructing traffic has been recognized by the United States Supreme Court in many cases, including Coates v. City of Cincinnati, 402 U.S. 611, 91 S. Ct. 1686 (1971), provided that the ordinance in question establishes a standard of conduct that is not impermissibly vague.
The final ordinance of the three, Ordinance 7893, makes it unlawful for a person to camp on private property without the prior consent of the owner of the property and also prohibits camping in any public park, recreation area, or City owned property. The definition of camping used in the ordinance is modeled after a National Park Service regulation approved by the United States Supreme Court in Clark v. Community for Creative Non-Violence, 468 U.S. 288, 104 S. Ct. 3065 (1984). Camping is defined as using an area to conduct one or more “specified activities” when it reasonably appears, in light of all the circumstances, that a person is using the area as living accommodations.
The specified activities consist of sleeping or making preparations to sleep, including laying down bedding; storing personal belongings in an area; making a fire for cooking or for warmth; or erecting a tent, lean-to or other similar structure. The specified activities are not themselves illegal, unless they are illegalized by some other law or ordinance. The specified activities merely trigger the inquiry concerning whether, based upon all the circumstances, it reasonably appears that the property is being used for living accommodations. Therefore, a citizen napping in the park on a warm summer day or grilling food in a park shelter designed for that purpose would not fall within the prohibition of the ordinance unless the evidence reasonably demonstrates he or she is using the property as living accommodations, as opposed to an incidental use.
The three ordinances, as drafted, do not contain individual penalty provisions. As a result, the general penalty provision contained in Section 1-112 of the City Code will control the potential range of punishments that may be imposed for violations of these sections. A person convicted of a violation of any of these sections may be fined not less than $1 or more than $1000, or sentenced to a jail term not to exceed 180 days, or both. The appropriate range of the penalty will be determined by the Municipal Court Judge, who will have the opportunity to listen to the facts of the case and the arguments presented to determine what is warranted and just in each particular case.
The three ordinances presented for Commission consideration attempt to provide the appropriate legal balance between the public’s interest in safety and enhancement of the general welfare and the constitutional mandates protecting civil liberties. This balance is difficult to achieve, is subject to evolving judicial precedent, and requires conservatively precise legislating. Ordinances from other communities that were suggested but not pursued (e.g. ordinances attempting to prohibit panhandling, loitering, etc.) did not meet this balancing requirement. The intent of the attached ordinances is not the “criminalization” of certain individuals based on their income or housing status. Such legislation clearly violates constitutional protections and is morally obnoxious. The proposed ordinances should not be viewed as a substitute for appropriate community resources for social services and housing needs. Instead, the purpose of these ordinances reflects the request which originally generated their consideration: enhancement of the City’s laws to prohibit certain conduct which is harmful to community residents and visitors.