ACTION REQUESTED:
Title
Communication from the City Manager and Corporation Counsel with a Request to RECEIVE & FILE a REPORT Regarding the Status of the LAW for PANHANDLING and SOLICITATION.
Body
BACKGROUND:
Legal Background:
On October 7, 2003 the City adopted Ordinance No. 15537 amending its regulation of panhandling. Ordinance No. 15537 is attached for review. It generally defined panhandling as “any solicitation made in person upon any street, public way, public place or park in the city, in which a person requests an immediate donation of money or other gratuity from another person and includes but is not limited to seeking donations.” It did not include the act of passively standing with a sign. It also excluded the performance of music, singing or street performance. It defined aggressive panhandling as someone who is panhandling and touches another person, while in line waiting to be admitted to a business, blocking the path of another person or blocking an entrance to a building, following a person, using profane or abusive language or panhandling in a group of two or more persons. Panhandling was prohibited after sunset and before sunrise and at certain locations in the city including bus stops, in a sidewalk café or within 20’ of an ATM machine.
In 2015 the U.S. Supreme Court demanded closer examination of laws that regulate speech based on its content in Reed v. Gilbert. 576 U.S. 155 (2015). Clyde Reed, pastor of Good News Community Church (Good News), rented space at an elementary school in Gilbert, Arizona, and placed about 17 signs in the area announcing the time and location of Good News' services. Gilbert had an ordinance that restricted the size, number, duration, and location of certain types of signs, including temporary directional ones, to prevent improper signage. After Good News received an advisory notice from Gilbert that it violated the Sign Code, Good News sued Gilbert and claimed that the Sign Code violated the Free Speech Clause of the First Amendment and the Equal Protection Clause of the Fourteenth Amendment.
The district court found that the Sign Code was constitutional since it was content-neutral and was reasonable in light of the government interests. The U.S. Court of Appeals for the Ninth Circuit affirmed and held that, even though an official would have to read a sign to determine what provisions of the Sign Code applied, the restrictions were not based on the content of the signs, and the Sign Code left open other channels of communication.
The U.S. Supreme Court held that an ordinance restricting the size, number, duration and location of temporary directional signs violated the Free Speech Clause of the First Amendment and the Equal Protection Clause of the Fourteenth Amendment. Justice Thomas articulated a new standard for courts to assess the content neutrality of laws regulating speech, 135 S. Ct. at 2228-29 (stating first step in analysis is “determining whether the law is content neutral on its face”). The Reed decision signaled a new standard for content-neutrality and subsequently altered panhandling jurisprudence.
While the Reed decision caused many local governments to question the constitutionality of their sign ordinances, the Seventh Circuit, in Norton v. City of Springfield <http://www.rluipa-defense.com/files/2015/08/Norton-v.-Springfield.pdf>, (7th Cir. 2015), extended Reed to panhandling regulations.
Between 2015 and 2017 the Seventh Circuit Court of Appels issued a series of opinions in Norton v. City of Springfield, 2018 WL 3964800 (C.D. Il. 2018). Norton involved a challenge to Springfield’s panhandling ordinance, which prohibited panhandling in the downtown historic district (less than 2% of the City’s area but containing principal shopping, entertainment and government areas). The ordinance defined “panhandling” as “an oral request for an immediate donation of money.” Although the ordinance prohibited panhandling, it allowed oral pleas for deferred donations and signs requesting money.
Individuals cited under the ordinance argued that barring oral requests for money now but not regulating requests for money later was a form of content discrimination. Initially, the Seventh Circuit rejected this claim, reasoning that the ordinance regulated according to subject matter instead of content or viewpoint.
Following the Supreme Court’s decision in Reed, the Seventh Circuit granted a petition for rehearing and ruled the Springfield ordinance unconstitutional. Norton noted that under Reed “regulation of speech is content based if a law applies to particular speech because of the topic discussed or the idea or message expressed.” Just as the Supreme Court rejected the Town of Gilbert’s justification that the sign ordinance there was neutral with respect to ideas and viewpoints, the Seventh Circuit rejected the same argument advanced by the City of Springfield. Because Springfield’s panhandling ordinance regulated by topic (oral requests for donations of money), the Seventh Circuit concluded that the ordinance was content based under the Supreme Court’s new test adopted in Reed.
Based on Reed and Norton the ACLU began lobbying communities in Illinois that had panhandling ordinances on their books. The City of Peoria, consistent with the law of Reed and Norton, repealed its panhandling ordinance on September 11, 2018 (Ordinance 17,610 attached). Note that Aurora, Oak Park, Urbana, Decatur, Chicago, Carbondale and Glen Ellen and others have repealed their panhandling ordinances, as well.
As communities began repealing their panhandling ordinances, questions remained about how to regulate aggressive or violent behavior by some solicitors. Some communities reported using ordinances or state laws for assault, battery and disorderly conduct to regulate behavior in public places. Some communities began enforcing 625 ILCS 5/11-1006(c) which states:
|
(625 ILCS 5/11-1006) (from Ch. 95 1/2, par. 11-1006) Sec. 11-1006. Pedestrians soliciting rides or business. (a) No person shall stand in a roadway for the purpose of soliciting a ride from the driver of any vehicle. (b) No person shall stand on a highway for the purpose of soliciting employment or business from the occupant of any vehicle. (c) No person shall stand on a highway for the purpose of soliciting contributions from the occupant of any vehicle except within a municipality when expressly permitted by municipal ordinance. The local municipality, city, village, or other local governmental entity in which the solicitation takes place shall determine by ordinance where and when solicitations may take place based on the safety of the solicitors and the safety of motorists. The decision shall also take into account the orderly flow of traffic and may not allow interference with the operation of official traffic control devices. The soliciting agency shall be: 1. registered with the Attorney General as a |
|
charitable organization as provided by "An Act to regulate solicitation and collection of funds for charitable purposes, providing for violations thereof, and making an appropriation therefor", approved July 26, 1963, as amended; |
|
2. engaged in a Statewide fund raising activity; and 3. liable for any injuries to any person or property |
|
during the solicitation which is causally related to an act of ordinary negligence of the soliciting agent. |
|
Any person engaged in the act of solicitation shall be 16 years of age or more and shall be wearing a high visibility vest. (d) No person shall stand on or in the proximity of a highway for the purpose of soliciting the watching or guarding of any vehicle while parked or about to be parked on a highway. (e) Every person who is convicted of a violation of this Section shall be guilty of a Class A misdemeanor. (Source: P.A. 88-589, eff. 8-14-94.) |
While the state statute appeared to provide a solution to some communities panhandling and solicitation issues, on January 14, 2021, a federal court, issued a permanent ban on the State’s panhandling law (listed above) from being enforced because it violates the First Amendment. Michael Dumiak and Christopher Simmons v. Village of Downer’s Grove, et. al., 19-CV-5604 (January 11, 2021). Federal Judge Robert W. Gettleman entered a stipulated final order finding that as a matter of law, 625 ILCS 5/11-1006(c) is a content-based restriction on the freedom of speech that is not justified by any compelling interest and that the provision violates the First Amendment and is unconstitutional on its face under Reed and Norton. A copy of the final order and permanent injunction is attached.
The Village of Downers Grove and a number of their police officers were originally defendants in the suit, but the Village repealed its local ordinance that implemented the state statute and settled the counts against the Village and its officers for nominal damages. The remaining defendants, ISP and the DuPage County State’s Attorney, consented to the entry of a preliminary injunction on January 11, 2021 that prohibits enforcement of the statute by those defendants.
Although the order entered by the court applied only to the parties in the litigation, any enforcement of a similar restriction would likely result in legal challenges seeking injunctive relief, monetary damages and attorneys’ fees for violations of the solicitors First Amendment rights under the U.S. Constitution.
Summary:
After the Reed, Norton and Downer’s Grove cases, the Courts’ have left Illinois municipalities with little direction or resources to address panhandling.
Considerations:
1. Obstruction of Traffic. Safety of drivers and solicitors is a valid concern when a solicitor steps into or blocks traffic. The City currently has an ordinance prohibiting vehicles from obstruction traffic. Section 28-169 reads “no vehicle shall be operated or allowed to remain upon any street in such a manner as to form an unreasonable obstruction to traffic thereon.” The City could amend the ordinance to also include a prohibition against a person remaining upon a street and obstructing traffic. Keep in mind that this would have to be enforced against all persons who are obstructing traffic, it could not solely or only be targeted against panhandlers. It would include other individuals or groups who may be performing charitable fundraising and obstruct traffic (St. Jude can shakers, MDA fill the boot campaigns, little league tag days, etc.).
2. Licensing. Memphis, TN requires all solicitors to obtain a $10.00 permit before doing any solicitation on public streets (note that the City already has a license for a solicitor who goes door-to-door selling items). Again, this would apply to all individuals and entities who are conducting any type of solicitation on a public right-of-way (fundraising, petition signatures, red kettle campaigns, etc.).
3. Regulate Non-Protected Speech. The City could attempt to draft a panhandling/solicitation ordinance that only speaks to intimidating conduct or threatening speech. Threatening speech is not recognized communication under the free speech guarantees of the First Amendment. Note that there are other laws/ordinances that may apply such as disorderly conduct that could be enforced with the same effect.
NEIGHBORHOOD CONCERNS: The safety of individuals traveling on City right-of-way, both in a vehicle and pedestrian traffic is a neighborhood concern.
IMPACT IF APPROVED: Various ordinances could be adopted.
IMPACT IF DENIED: Continue to use existing laws/ordinances to regulate threatening conduct.
ALTERNATIVES: N/A
EEO CERTIFICATION NUMBER: N/A
WHICH OF THE GOALS IDENTIFIED IN THE COUNCIL’S 2017 - 2032 STRATEGIC PLAN DOES THIS RECOMMENDATION ADVANCE?
1. Safe Peoria
WHICH CRITICAL SUCCESS FACTOR(S) FROM THE COMPREHENSIVE PLAN DOES THIS RECOMMENDATION IMPLEMENT?
1. Reinvest in neighborhoods.
DEPARTMENT: Legal