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Non-Agenda Item - Regulation of Charitable Solicitation CITY OF BOULDER, COLORADO Office of the City At[omey ~j Municipal Building 1777 Broadway Post Office Box 791 Boulder, Colorado 80306 , Telephooe(303) 441-3020 Facshoile(303) 441-3859 MEMORANDUM TO: William R. Toor, Mayor Members of the City Council Ann Getches, Chair Members of the Downtown Management Commission FROM: Joseph N. de Raismes, III, City Attorney SUBJECT: Regulation of Charitable Solicitation DATE: May 15, 2002 Aggressive Begging Issues For the last year, downtown interests (including the DMC and the DBI) and the Police Department (Sergeants Gerhardt and Thomas and Officer Scott Schelble, who is assigned to the Pearl Street Mall) have expressed growing concern that the City's existing prohibition of aggressive begging is not adequate to cope with the evolving patters of social interaction on the Mall. The City has received a steady stream of complaints from tourists and residents who feel victimized by what they perceive as increasingly coarse and sometimes threatening behavior. The existing law seems less and less a deterrent to the younger beggars, at least some of whom may not be homeless, who now congregate on the Mall. In the words of former Shelter Director Bob Mann, "these kids are giving the homeless a bad name." In response, the police have proposed looking at ordinances in other cities, particularly Denver, Fort Collins and Colorado Springs, which have enacted greater restrictions on begging than those of Section 5-3-7, B.R.C. 1981, "Aggressive Begging Prohibited," which has been in effect for about twenty years. The Boulder ordinance provides as follows: 5-3-7 Aggressive Begging Prohibited. No person shall beg or solicit aggressively for a gift of money or any thing of value on any public street, sidewalk, way, mall, park, building, or other public property, or on any private property open to the public while in close proximity to the individual addressed. "Aggressive begging" means begging or soliciting accompanied by or followed immediately by one or more of the following: (a) Repeated requests after a refusal by the individual addressed; (b) Blocking the passage of the individual addressed; (c) Addressing fighting words to the individual addressed; or (d) Touching the individual addressed As is readily apparent, the existing ordinance covers much of the behavior that has been criticized in the past year, or at least the portion of that behavior that can be criminalized. Thus, for example, the ordinance forbids begging accompanied by "fighting words," which can be prohibited under the United States Supreme Court case of Chaplinsky v. New Hampshire, 315 U.S. 568 (1942). However, while thus criminalizing speech which is likely to lead to an imminent breech of the peace, the ordinance does not reach offensive language which falls short of that standard - - as it cannot, under the Constitution, in a public forum like the Mall. Yet, people are disturbed by what they perceive as vile and gratuitous insults. And if they are disturbed enough, they shop elsewhere. Flatirons Crossing provides real competition, with areas designed to imitate the Pearl Street Mall, without the street people. That is the crux of the Mall merchants' complaints, and it may be a threat to the commercial viability of Boulder's downtown, as well as a social nuisance. So what is to be done? The Police Department's memorandum of January 23, 2002 is attached as Exhibit A. It contains twelve separate recommendations. Some respond to problems that have not yet occurred on the Pearl Street Mall, and some are impractical to enforce. Some may be better handled by rules for the use of facilities (e.g. buses, parking lots and structures) rather than ordinances enforced in Municipal Court. The common denominator is a recommendation to consider "bright-line" standards for time, place and manner restrictions on begging that do not require victim or eyewitness testimony, as the current aggressive begging ordinance does. At a recent meeting, the downtown interests and the police met with my office to discuss the aggressive begging issue. A representative of the Boulder Chapter of the ACLU attended as well. No evidence was presented concerning most of the proposed restrictions. On others, preliminary conclusions can be drawn. Suggestions number two (prohibition on soliciting young, old and disabled people) and number eleven (prohibition on soliciting within twenty feet of any building entrance) would be impractical to enforce. Identification of the disability or age of a person is inherently difficult, and a twenty-foot radius from every entrance would preclude solicitation on much of the Mall. But alternatives were discussed. The issues that were focused on were: (1) Most importantly, group begging, where the current ordinance can be evaded by assigning roles to more than one person- - perhaps this could be best expressed as a prohibition on "piling-on." (2) Blocking areas near entrances to buildings; (3) Begging from patios on the Mall where food is served; and H:TVVBDSEC%TABNIEMOSW-AGGRESSIVE BEGGING JGI.IUC.DOC 2 (4) Begging in close proximity to vending carts on the Mall. Although some of the other restrictions are reasonable time, place and manner restrictions that should pass muster under the First Amendment (like prohibiting begging from lines, from restrooms and, near ATM's), these have not been significant issues on the Pearl Street Mall, and the four issues listed above should provide enough controversy for the time being. Other issues can be revisited later, if and as required. For example, the panel of downtown interests has indicated an ongoing interest in regulating solicitation at night, when aggressive begging can be perceived as more threatening. But more evidence is needed to pursue this initiative. And in each case, more vigorous enforcement of the current ordinance, perhaps through alternative means, needs to be considered as an alternative to passing a new one. Accordingly, I propose to focus my office's work on drafting alternative ordinances to deal with group begging, blocking areas near building entrances, and begging from patios and near vending carts, as a first priority. Group begging presents serious drafting challenges, since proof of conspiracy would be impractical in most cases, but there is no question that the existing aggressive begging ordinance does not address this phenomenon. Perhaps a simple prohibition on making negative comments or a repeated request within thirty seconds of a refusal would be enough. Blocking passage is already an element of aggressive begging, so the City Council could easily consider adding a liberal definition of what constitutes "blocking" a building entrance, if that would aid in prosecuting such cases. This contrasts with the original proposal for a twenty-foot no-begging radius from all building entrances, which would make much of the Mall a no-speech zone. Perhaps five feet could be a definition of "blocking." But one panel member recommended keeping a ten- foot radius. Begging from Mall patios is a classic "captive audience" problem, which raises very few First Amendment problems. Patios could be defined as an absolute no solicitation zone, if the Council was concerned that any solicitation of such a captive audience is problematic. But of course, the current rule against repeated solicitations may be deemed enough, and that will be for Council to judge. No specific concerns were raised about the patio issue at the meeting. Finally, there is the issue of vending carts. The meeting did provide an opportunity for a good exchange on the issue of begging near vending carts, and there was testimony that the vendors are up to the task of protecting their customers from harassment. But the testimony also raised serious questions about the civility of life on the Mall in recent months, and City staff, the DMC and Council need to continue that dialogue. Certainly, vendors and their customers should be given equal protection with patio diners. The ACLU has been consulted in the preparation of this memorandum. Barry Satlow (who is not the ACLU representative on the panel) reminded me of the Mall "First Amendment Tables" issue that he handled to a successful compromise before the City Council. He suggested that instead of adding additional "aggressive begging" restrictions, Council consider simply prohibiting smoking on the mall. It might be more effective and less controversial than anything else we could do to control the current Mall phenomenon, But there will be a negative reaction to controlling outdoor smoking, so the outcome is uncertain as a political question. And it responds only indirectly to the solicitation concerns. Thus, I recommend proceeding with the four initiatives discussed above. H.TWBDSMTABIMEMOSW-AGGRESSIVE BEGGING IGI.JUC.DOC 3 Prohibition of Standing on Medians The City Council decided in 1998 to allow newspaper sales from medians on a trial basis, when the Daily Camera/Rocky Mountain News and the Denver Post were engaged in a newspaper circulation competition. Rules were suggested by the City and enforced by the newspapers. See Exhibit B. The newspaper war is now over, and no newspapers are sponsoring median sales. However, other persons are making charitable solicitations from the medians. It is alleged that these solicitors do not follow the rules. In particular, it is alleged that they do not stay on the medians and interfere with traffic. Council has received electronic correspondence requesting regulation of median solicitation. This is a politically charged issue, since no clear harm to the public has occurred. However, what Council first considered this issue in 1999, it clearly would have prohibited persons from standing on medians (which are not well-designed for that purpose), had it not been for the communicative function being performed by the newspaper hawkers. Now that the communicative function has ended, staff feels compelled to ask whether Council would wish to prohibit standing on medians (with a specific defense that the standing occurred only for long enough to cross the street safely). There is no legal reason why Council may not freely prohibit standing on medians. But the symbolism of removing beggars from the medians needs to be carefully considered as a countervailing factor in pursuing this ordinance change. The charge certainly will be made that Council's aim is merely to get the homeless out of sight. Conclusion Any attempt to regulate speech-based or speech-related begging behaviors will almost certainly be viewed with some trepidation by two elements of our community. Community members who are sensitive to civil liberties and protection of free speech will tend to look with some suspicion on such proposals. Members of our community who are very concerned about the needs of the truly destitute and homeless among us can also be expected to have some concerns. Each of these two interest groups is capable of mounting a strong and passionate response to any proposed legislation that they see as threatening civil liberties and the homeless. A counterproductive development would be to allow those manifesting obnoxious behaviors on the Mall to somehow become a cause around which well-meaning community members coalesce. Thus, any new restrictions must be crafted in the narrowest way that is consistent with effectively addressing the specific problems that the community is encountering. In that way, there will be the greatest chance that such regulations will reflect a community consensus. Such a consensus, in turn, will provide the best atmosphere for enforcement. If community expectations are made clear and unambiguous, the probability of compliance with those expectations is vastly increased. Based upon these principles, I will schedule meetings with the panel and with the DMC to get their advice concerning potential revisions to the code that address the following specific problems: 1. Aggressive group begging situations; 2. Begging in a way that blocks building entrances and areas immediately adjacent to building entrances; 3. Begging from mall patios, where diners represent a captive audience; RTWBDSEC1TABNEMOSWbAGGRESSWE BEGGING JGI.IVC.DOC 4 4. Begging immediately adjacent to vending carts, for the same reason; and 5. Standing on medians. I will report the results to the DMC and the Council, and Councilmembers or the Council as a whole may then take up those issues or may wait for the presentation of the draft ordinances, after Council's June recess. cc: Molly Winter Task Force Members H:\PWBDSEC%TABWEMOSMbAGGRESSTVE BEGGING JGI.IUC.DOC 5 Drafter's note: The mall is defined for Title 5 purposes as follows: "Mall" means the Downtown Boulder Mall as defined in Ordinance No. 4267, as amended by Ordinance No. 4543. A footnote elaborates: 'The ordinances generally describe the area included within the mall as the entire right-of-way of Pearl Street from approximately the east curbline of 11th Street to the west curbline of 15th Street except for the roadway at the intersections at Broadway, 13th and 14th Streets; and, the area directly south of the Boulder County courthouse complex, specifically, the area bounded by the east curbline of 13th Street on the west, the west curbline of 14th Street on the east, the north boundary line of the Pearl Street right-of-way on the south and, on the north, by a line coinciding with the south wall of the west wing of the County courthouse complex and extending westerly at a right angle from the west wall thereof to the east curbline of 13th Street and extending easterly at a right angle from the east wall thereof to the west curbline of 14th Street; excepting, however, any buildings or portions of buildings which are owned by the County of Boulder and located in such area. This existing definition will be contained in the agenda memorandum, but is included here for the convenience of those reviewing the ordinance in draft format. ORDINANCE NO. AN ORDINANCE AMENDING CHAPTERS 5-3 AND 7-6, B.R.C. 1981, TO CONTROL AGGRESSIVE BEGGING BY MORE THAN ONE PERSON, TO DEFINE A LIMITED NUMBER OF PUBLIC PLACES WHERE BEGGING IS PROHIBITED, AND TO PROHIBIT STAYING ON MEDIANS FOR MORE TIME THAN IS NEEDED TO CROSS THE STREET. BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF BOULDER, COLORADO: Section 1. Section 5-3-7, B.R.C. 1981, is amended to read: 5-3-7 Aggressive Begging Prohibited. No person shall beg or solicit aggressively for a gift of money or any thing of value on any public street, sidewalk, way, mall, park, building, or other public property, or on any private property open to the public while in close proximity to the individual addressed. "Aggressive begging" means begging or soliciting accompanied by or followed immediately by one or more of the following: (af) Repeated requests after a refusal by the individual addressed; C:1DmC nts and SettingsWadeRIUo l SeWngs\TemplobeggWS.khb.wpd (b) Blocking the passage of the individual addressed; (e) Addressing fighting words to the individual addressed; or (>3) Touching the individual addressed. Section 2. Chapter 5-3, B.R.C. 1981, is amended by the addition of a new section 5-3-12 to read: ' W&WIM Npfi ~j yi3 1 rFT~ .-.~g ,i it9t2en,.» CMDucwn m and Setdngs\MadeRllLocal Sdfings\Tengb-begging.khb.wpd 2 Oil Wgick bt rE 1~ m~ m ,,yyam~,, Irv e} kffilx i~el~ ~g yra;4~011 t3 tPi t( t II { s LII i i °.3t yt 3 ~.W ,..y -60 W Section 3. Chapter 7-5, B.R.C. 1981, is amended by the addition of anew section 7-5-25 to read: AIM OT e _ . _ . , ball 'U-F NOW,: P a it!e a . E'er i"lu C.,Doco is end SetdngsNMadeRJU"al S6dngffmTb-beS&g.khb.wpd 3 Section 4. This ordinance is necessary to protect the public health, safety, and welfare of the residents of the city, and covers matters of local concem. Section 5. The council deems it appropriate that this ordinance be published by title only and orders that copies of this ordinance be made available in the office of the city clerk for public inspection and acquisition. INTRODUCED, READ ON FIRST READING, AND ORDERED PUBLISHED BY TITLE ONLY this day of 20_ Mayor Attest: City Clerk on behalf of the Director of Finance and Record READ ON SECOND READING, PASSED, ADOPTED, AND ORDERED PUBLISHED BY TITLE ONLY this day of 20_ Mayor Attest: City Clerk on behalf of the Director of Finance and Record C:1Doaumems and SetingsMadeRlUL l SetfingsUempb-beggingAbb.wpd 4