HomeMy WebLinkAbout08/03/1993, C-3 - PROHIBITION ON AGGRESSIVE SOLICITING MEETING AGENDA
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i.0wo COUNCIL AGENDA REPORT
FROM: James M. Gardiner `'t1
Chief of Police
SUBJECT: Prohibition on aggressive soliciting
CAO RECOMMENDATION:
Give final passage to Ordinance #1243 to add Chapter 9.06 to the Municipal Code
prohibiting aggressive soliciting.
DISCUSSION:
On July 20, 1993 the Council introduced to print an.ordinance to add Chapter 9.06 to the
Municipal Code prohibiting aggressive soliciting. This ordinance is in response to increasing
complaints regarding the "aggressive" conduct of persons who are soliciting money from others
in our community. Up until several years ago, this practice was a misdemeanor violation of the
California State Penal Code. However, the State Supreme Court struck down this section as a
violation of free speech and rendered it unenforceable. They did leave open, however, the
provision for local entities to adopt their own ordinances to cover "aggressive" soliciting.
This conduct has become increasingly disruptive in the downtown and in Mission Plaza. It has
had a negative impact on local business, visitors, and community members. While other
disruptive conduct has also been present, the single most flagrant problem has been people who
are being "accosted" by those seeking money.
If the ordinance is adopted, we would closely follow the recommendations of the City Attorney
and only take enforcement action in clearly aggravated or aggressive instances.
FISCAL IMPACT:
There should be no significant fiscal impact with the adoption of this ordinance.
CONCURRENCES:
The City Attorney concurs with the adoption of the ordinance with the listed enforcement
caveats.
ATTACHMENT(S):
1. Ordinance
c3
ORDINANCE NO. 1243 (1993 Series)
AN ORDINANCE OF THE COUNCIL OF THE CITY OF
SAN LUIS OBISPO ADDING CHAPTER 9 . 06 TO
THE MUNICIPAL CODE PERTAINING TO
PROHIBITION ON AGGRESSIVE SOLICITING
BE IT ORDAINED by the City Council of the City of San Luis
Obispo as follows:
SECTION 1. Title 9 of the San Luis Obispo Municipal Code is
amended by adding a new chapter, Chapter 9 . 06, which reads as
follows:
9. 06. 010 Definitions.
A. GENERAL DEFINITION. For the purpose of this ordinance, an
individual (solicitor) coerces, threatens, hounds, or intimidates
another (solicitee) when:
1. The solicitor's conduct would cause a reasonable
person in the position of the solicitee to fear for his or her
safety; or
2 . The solicitor intentionally blocks the path of the
solicitee; or
3 . The solicitor persists in following the solicitee
closely, while the solicitor continues to demand money or other
thing of value, after the solicitee has informed the solicitor by
words or conduct that the solicitee does not want to give money or
other thing of value to the solicitor to which the person demanding
payment is not entitled under law.
B. "SOLICIT" means to ask for money or goods as a charity,
whether by words, bodily gestures, signs or other means.
C. "SOLICITOR" is one who solicits as defined in Section
9.06. 010 (B) .
D. "FEAR FOR SAFETY" defined. The following facts, among
others, may be considered in deciding whether a reasonable person
would be caused to fear for his or her safety.
1. The occurrence of threatening gestures or other
threatening conduct of the solicitor, including following the
solicitee.
2 . The proximity of the solicitor to the solicitee and
the duration of the solicitation.
3 . The making of physical contact with the solicitee.
0-1243 C 9—c:;k
Ordinance No. 1243 (1993 Series)
Page Two
E. "INTENTIONALLY BLOCK" means to walk, stand, sit, lie or
place an object in such a manner as to block passage by another
person or a vehicle or to require another person or driver of a
vehicle to take evasive action to avoid physical contact.
9.06. 020 Prohibition of Aggressive Soliciting.
It shall be unlawful for any person on the streets, sidewalks,
or other places open to the public, whether publicly or privately
owned, to intentionally coerce, threaten, hound, or intimidate
another person for the purpose of soliciting alms.
9.06. 030 Demand for Services.
This ordinance is not intended to proscribe any demand for
payment for services rendered or goods delivered.
9. 06.040 Free Speech.
This ordinance is not intended to restrict the exercise of
protected free speech.
9.06. 050 Violation--Penalty.
Any person who violates any provision of this Chapter is
guilty of an infraction and is subject to punishment as provided
for in Chapter 1. 12 of this code.
A summary of this ordinance, approved by the City Attorney,
together with the ayes and noes, shall be published at least five
(5) days prior to its final passage in the Telegram-Tribune, a
newspaper published and circulated in this City, and the same shall
go into effect at the expiration of thirty (30) days after its
final .passage. A copy of the full text of this ordinance is on
file in the office of the City Clerk on and after the date
following introduction and passage to print and shall be available
to any interested member. of the public.
INTRODUCED AND PASSED TO PRINT by the Council of the City of
San Luis Obispo at its meeting held on the 20th day of July ,
1993, on motion of Council Member Rappa , seconded by
Council..Aember Romero , and on the following roll call
vote:
AYES: Council Members Rappa, Romero, Roalman, Settle and. Mayor Pinard
NOES: None
ABSENT: None
Mayor Pe Pinard
ATTEST: '
Wry
1 ne Gla wel City Clerk
Ordinance No. 1243 (1993 Series)
Page Three
i ttg ne
July 26, 1993 ;:ATE A MR
Members of the City Council
City Hall COUNCIL ❑ CDD DIR
P. O. Box 8100 g CAO ❑ FIN DIR
San Luis Obispo CA 93403-8100 'KACAO ❑ FIRE CHIEF
XATTORNEY ❑ PW OR
RE: PROPOSED PANHANDLING ORDINANCE %CLERKORIG )CPOLICECHF
❑ MGMT TEAM ❑ REC DIR
Dear Honorable Mayor and Council Members: ❑ c R�FILE ❑ PEFtsTIL R
'�� ❑ . ERS DIP.
opo+• •asw_
I was very moved by the enclosed article by Helen Hershkoff in the American Bar
Assodation✓oamal June 1993, and thought it pertinent to your pending
deliberations. In addition, I'd like to bring to your attention two facts and a plea about
panhandling laws in the hope that you will be persuaded to vote against this
unnecessary ordinance.
First, California laws against aggressive panhandling have been struck down in the
federal courts and are currently on appeal (Blair Y Shanahan,775 F. Supp. 1315
(N.D. Cal. 1991)). Many legal organizations have made it their policy to fight these
ordinances as a violation of First Amendment Rights; grounds which are not frivolous
and have strong backing in legal precedent. (See the enclosed ABA ✓oarnalarticle.)
Are you willing to pay the legal fees to defend this ordinance in the courts?
Secondly, and most interesting, I have enclosed a list prepared from a San Francisco
Police Department printout dated July 13, 1993 showing that since the San Francisco
anti-panhandling ordnance has been in effect (January 1, 1993) there have been 35
arrests and NO convictions. The charges for 28 of those arrested were dropped and
the other 7 involved multiple charges. In other words, the ordnance is totally
ineffective and a waste of police time. (I did not enclose, but have copies of
memoranda from San Francisco police officers themselves reporting on the
ineffectiveness of enforcing the anti-panhandling ordinance.) The printout also
underscores the compelling argument that existing laws are certainly adequate to
handle any aggressive or harassing behavior.
Finally, a personal plea. I feel guilty about the poverty I see in the homeless and the
panhandlers. The problems seem vast. Certainly too vast for me to handle, and
perhaps even too vast for a city like San Luis Obispo. I hope that the creativeness of
better minds than mine will come up with solutions, but until then, I firmly believe it is
better to do nothing than to waste expensive legal resources and police time enacting
an ordinance that merely indulges our wish that the homeless would disappear.
Sincerely,
: f VEL)
JUL 21 1993
Deborah Spatafore CITY COU14CIL
1686 La Vineda SAN LUIS osiSPo, CA
San Luis Obispo, CA 93401
P. S. I did not want to encumber you with a stack of copies, but if you.would like more
information, such as the police memoranda, I would be happy to supply it to you'Ray
PROPOSITION J / AGGRESSIVE PANHANDLING
ARRESTS AND DISPOSITIONS
JANUARY 1 1993 - JUNE 30, 1993
Prop. J (§120. 1 MPC) Arrests
Total . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .35
Convictions / Guilty Pleas on §120. 1 charge. . . . . . 0
Multiple charges . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Disposition Category
Dropped . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
Bench Warrants°. . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Diversions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Guilty Plea to §415 PC / $100 fine. . . . . . . . 1
Guilty Plea to §240 . . . . . . . . . . . . . . . . . . . . . . 1
"Pending" (but §120. 1 charge dropped) . . . . . 1
TOTAL . . . . . . . . . . . . . . . . . . . . . . 35
Penal Code §647 (c) "Accosting" arrests6. . . . . . . . . . . . . . . . . . . .9
' . This summary is based on "Cases Arrested in 1993 for
Possible Panhandling, " SFPD computer printout dated July 13 , 1993.
2. These are cases where arrestees were charged with other
offenses in addition to the Prop. J charge. In other words, Prop.
J would not have been necessary to arrest more than 50% of these
people. The other charges included brandishing. a deadly weapon,
assault with a deadly weapon, battery, assault, possession of
drugs, possession of drug paraphernalia, under the influence of
drugs, trespass, disorderly conduct, attempted robbery, obstructing
an officer, and battery on a police officer.
3. This includes dismissals described as "interest of
justice, " "lack of evidence, " "lack of corpus, " and "released to
other agency. " There were five "releases to other agencies. "
These "releases" are referrals to the probation department with no
further prosecution on the §120. 1 charge or other charges. All of
the seven cases that were not dropped involved multiple charges.
°. These warrants were apparently issued on the non-§120. 1
charges.
5. Charged with §148 (A) -- obstructing a peace officer.
6. §647 (c) was declared unconstitutional in Blair v.
Shanahan, 775 F.Supp. 1315 (N.D. Cal. 1991) .
. Fi®tV1tL�5:�
Al IbWt
Aggressive Panhandling Laws
Do these statutes violate the Constitution?
Yes: Silencing the Homeless
BY HELEN HERSHKOFF tering laws to which they are histon- in sub�°ays-a case is which the
tally related, therefore raise serious American Civil Liberties Union ap-
In an effort to deal with the due process questions. geared amicus curiae�ne beggar
enormous increase in poverty and Begging is a form of charitable described his solicitation in detail:
homelessness in cities across the solicitation—a spoken appeal for fun ds "I tell hem that social services
country during the past decade, nu- made by one person to another.In its in New York City
are
back not signed to
merous municipalities are enforcing, 1940 landmark decision in Cantwell help poo peopleS can waste
with renewed vigor, long-dormant v. Connecticut, he U.S. Supreme feet. I tell hem s a
ordinances prohibiting the destitute Court held that charitableappeals ust whole clay trying
nothing with
a
from asking members of the public for funds were deserving lished. I tell hem that the public
for money. Amendment protection. ch recently p
These ordinances, having heir as 1980, in the case of Schaumburg shelters are dangerous placethe s,where
roots in the nary, misguided and, fi� the Court V. Citizens observedor a ,"Our eases long belonviolengings I have mighte often occurs deasilyf be
are unnecessary, misgui
nally,unconstitutional because they have protected speech even though it stolen." therefore implicates not
violate the First Amendment. The is in the form of... a solicitation to only Begging
the ggar's right to speak,but
purpose of anti-begging laws is not to pay or contribute money." only the public's right to know.
protect the public from harassment, The real,but unstated,purpose
intimidation or a breach of the peace. Chilling Free Speech laws is to ash the
Laws criminalizing such behavior Groups and individuals all over of anti-begging si ht, to protect he
already exist. Rather, anti-begging the United States engage in highly beggarsS
laws seek to silence the beggar. public fundraising for all sorts of public from he sometimes unset-
laws
poken to bt-
Although supporters of such laws causes and charities. Proponents of hnSlewho live at the margins erience ofbeing oof our
seek to characterize begging as a anti-begging laws argue that beg- PeOPty P poverty to the
form of conduct, begging is really a ging is different because beggars ask socie But cashing po rty
communicative act.According to Web- for money for themselves, whereas other side of the tracks will not make
ars of
stet's Dictionary,to beg is'Ib ask for others solicit money for others. But itheiiraFirstt Ammey. nddmnt�right tospeakspeak
as a charity, especially habitually or that very distinction turns on words,
from house to house."Begging,even and under the First Amendment, about he issues uppermost in their
"aggressive'begging,is more speech laws that suppress speech solely on minds deprvis vita message
than conduct. ublic of its
content are presumptively invalid right P
An anti-begging bill from Evan- Furthermore, begging involves about poverty in our midst
st°n, IIl., for example, defined "ag- more than just a in a est most money.
Many find the beggar's message
here is no
gressive" begging as asking more It comms^ica*ay�n a most poignant unpalatable.inis s teeth that can pro-
than once. The term "aggressive is and graphic way, information to the that begging P
vague and leaves too much discretion public about poverty in our midst duces that destitute indi- awareness
otherwise among
think about
with police,who are likely to enforce people viduals face eery day. In an afida- the poor.Beggars,like everyone else,
it disproportionately against peOP vit filed against the New York City have the right to contribute to Amer-
who are dirty,different or of minority S ica's"marketplace of ideas." ■
groups. Anti-begging laws, like loi- Transit Authority's ban on begging
4o ABA JOURNAL/JUNE 1993 –