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HomeMy WebLinkAboutG47-16 Ordinance No. G47-16 AN ORDINANCE AMENDING CHAPTER 10.34 ENTITLED "PANHANDLING" OF THE ELGIN MUNICIPAL CODE, 1976, AS AMENDED WHEREAS, Chapter 10.34 of the Elgin Municipal Code, entitled "Panhandling," defines the term panhandling and regulates the act of panhandling as defined therein by places of panhandling and manner of panhandling; and, WHEREAS, in 2015 the United States Supreme Court decided the case of Reed v. Town of Gilbert, 135 S.Ct.2218(2015),which held that provisions of a municipal sign code that imposed more stringent restrictions on temporary signs directing the public to meetings of non-profit groups than on signs conveying other messages were content-based restrictions on speech protected by the First Amendment, and that the regulations could not survive the "strict scrutiny" analysis that the Supreme Court applied to determine their constitutional validity; and WHEREAS, in Reed v. Town of Gilbert the Supreme Court specifically noted that the distinctions in the Town of Gilbert ordinance between political signs, ideological signs, and signs directing the public to meetings of non-profit groups were facially content-based because the distinctions made by the ordinance turned on the "communicative content of the sign," and the ordinance was therefore presumptively unconstitutional and could be legally justified only if the Town of Gilbert could demonstrate that the regulations were narrowly tailored to serve a compelling governmental interest; and, WHEREAS, after Reed v. Town of Gilbert a regulation of speech in an area considered to be a traditional public forum for purposes of First Amendment analysis that is targeted at a specific subject matter is likely to be found content-based even if the regulation does not discriminate among viewpoints within that subject matter; and WHEREAS, even in traditional public forums, including public parks, streets, and sidewalks,the right of an individual to engage in speech protected by the First Amendment is not superior to the rights of other individuals to walk away from such speech and to be free from persistent unwanted communication, unwanted following, touching, or other conduct that results in intimidation, harassment, or interference with their right to freely use and travel within those public areas; and WHEREAS, aggressive conduct by persons engaged in speech protected by the First Amendment, including following, persistent unwanted communications, touching, harassing, intimidating, or otherwise interfering with the right of another to enjoy and travel public parks, streets, and sidewalks is not protected by the First Amendment; and WHEREAS, in the absence of this ordinance, existing statutes and ordinances are insufficient to protect the rights of persons using or enjoying public parks, streets, and sidewalks to be free from unwanted following, touching,harassment, interference or intimidation by persons otherwise engaged in First Amendment speech; and WHEREAS, the Supreme Court has long recognized that the regulation of speech in an area considered to be a non-public forum for purposes of First Amendment analysis is subject to a lesser standard of scrutiny whereby the regulation of speech must be reasonable in light of its purpose and viewpoint neutral; (See Perry Ed. Assn. v. Perry Local Educators' Assn.,460 U.S. 37 (1983); Cornelius v.NAACP Legal Defense&Ed. Fund,Inc., 473 U.S. 788 (1985);United States v. Kokinda, 497 U.S. 720 (1990); Int'l Society of Krishna Consciousness, Inc. v. Lee, 505 U.S. 672 (1992); Walker v. Texas Div., Sons of Confederate Veterans, Inc., 135 S.Ct. 2239 (2015) (decided the same day as Reed v. Town of Gilbert, Arizona, 135 S.Ct. 2218 (2015)); and WHEREAS, the Supreme Court in Int'l Soc'y of Krishna Consciousness, Inc. v. Lee, 505 U.S. 672 (1992) upheld a solicitation ban in a non-public forum applying the reasonableness standard; and WHEREAS, the Supreme Court in Int'l Soc'y of Krishna Consciousness, Inc. v. Lee, 505 U.S. 672 (1992) further recognized that in-person solicitation for the immediate receipt of funds creates a risk of fraud and duress that is different in kind from other forms of expression and conduct, that such in-person solicitation has been associated with coercive or fraudulent conduct, and that such solicitation is an appropriate subject of regulation (see Int'l Soc'y of Krishna Consciousness, Inc. v. Lee, 505 U.S. at 684; Id. at 705 (Kennedy, J., concurring)); and WHEREAS, the foregoing authority, as well as the authority cited therein and widespread legal precedent, demonstrate that the regulation of in-person solicitation for the immediate receipt of funds and of the non-expressive conduct associated with such in-person solicitation are appropriate subjects of municipal regulation; and WHEREAS, in-person solicitation for the immediate receipt of funds on certain publicly owned properties that are non-public forums, and certain aggressive and unlawful conduct that may be utilized in connection with such solicitations, may interfere with public and private business, with the public safety and welfare of the residents of the City and its visitors, with the safe and efficient conduct of municipal functions,with vehicular traffic and with the ability of the City to provide public services to its residents, visitors, and businesses; and WHEREAS, the City has determined that it is advisable in light of the recent decision in Reed v. Town of Gilbert, to amend Chapter 10.34 and clarify its existing regulations on panhandling by reenacting the City's reasonable restrictions on certain in-person solicitations for the immediate receipt of funds in areas that the City has determined to be non-public forums, and on certain aggressive and unlawful conduct in seeking such solicitations, consistent with the decision in Reed v. Town of Gilbert and the other authorities referenced herein. NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF ELGIN, ILLINOIS: Section 1. That existing Chapter 10.34 of the Elgin Municipal Code, 1976, as amended, entitled "Panhandling," be and is hereby deleted in its entirety, and that the following amended Chapter 10.34, entitled "Panhandling,"be and is hereby created to read as follows: - 2 - "Chapter 10.34 PANHANDLING 10.34.010: INTENT; FINDINGS; 10.34.020 DEFINITIONS: 10.34.030: RESTRICTIONS ON PANHANDLING; VIOLATIONS: 10.34.040: PENALTY: 10.34.050: SEVERABILITY 10.34.010: INTENT; FINDINGS: A. Intent. This Chapter 10.34 is intended to regulate the conduct of persons engaged in aggressive panhandling for the immediate receipt of funds in or on public parks, streets, or sidewalks within the city, and to regulate the conduct of persons otherwise engaged in panhandling in certain non-public forums. The regulations and prohibitions contained in this chapter are intended to provide for the safety and welfare of those persons being solicited while protecting the legitimate First Amendment rights of those persons engaging in the personal solicitation of others. This chapter is not intended to regulate or restrict the content of any personal solicitation other than to prohibit threatening, abusive, or false or misleading speech that is not protected under the First Amendment of the U. S. Constitution, and to restrict the immediate receipt of funds in certain non-public forums. This chapter shall not be construed, applied, interpreted, or enforced in a way that is based upon the content of or the views expressed in any personal solicitation. B. The city hereby finds as follows: 1. Conduct associated with aggressive panhandling may invade or infringe upon the rights of others to be free from harassment, threats, and direct or indirect intimidation. 2. Conduct associated with aggressive panhandling may interfere with the right and the ability of others to enjoy the public and privately owned amenities of the city; can deter participation in various social and economic activities occurring in the city; and can therefore result in adverse economic and social impacts upon the city, its residents,and its businesses. 3. Conduct associated with aggressive panhandling may hinder or obstruct the free and safe use of the city's public parks, streets, and sidewalks. 4. Some persons engaged in panhandling protected by the First Amendment of the U. S. Constitution in or on public parks, streets, or sidewalks of the city may also engage in aggressive conduct that is not protected by the First Amendment or the Illinois Constitution, including unwanted touching, following, persistent unwanted - 3 - communication, and obstruction of others. Such aggressive conduct has result in the harassment, intimidation, and obstruction of other persons in violation of their rights. The rights of persons using public parks, streets, and sidewalks to be free from harassment, intimidation, and obstruction, cannot be adequately protected without the regulations set forth in this chapter. 5. Panhandling for the immediate receipt of funds on certain publicly owned property that are non-public forums for the purpose of analysis under the First Amendment to the U. S. Constitution, including bus and train stops, transportation facilities and vehicles, vehicular traffic lanes, public parking lots and garages, and duly-licensed sidewalk cafés, restaurants and outdoor seating areas, may interfere with the safe and efficient conduct of municipal functions, with vehicular traffic, and with the ability of the city to provide public services to its residents, businesses, and visitors. 6. Panhandling for the immediate receipt of funds creates a risk of fraud and duress that is different in kind from other forms of expression and conduct and has been associated with coercive or fraudulent conduct, and is therefore an appropriate subject of regulation. 10.34.020: DEFINITIONS: The following terms as used in this chapter shall have the meanings as set forth below: PANHANDLING: Any solicitation made in-person upon any street,public place,park,premises, or residence in the city, in which a person requests the immediate receipt of funds from other persons in a continuous and repetitive manner. Panhandling includes, but is not limited to, where the person being solicited is offered an item or service for an amount far exceeding its value in exchange for an immediate donation of money or like funds, under circumstances where a reasonable person would understand that the purchase is in substance a donation. Except as specifically provided in this section, panhandling does not include passively standing or sitting with a sign or other indication that one is seeking donations, without addressing any solicitation to any specific person other than in response to an inquiry by that person. PUBLIC PLACE: Any area to which the public is invited or permitted, and including without limitation the public right-of-way. ROADWAY: That portion of a public right-of-way improved, designed, or ordinarily used for vehicular travel, exclusive of the sidewalks, intersections, crosswalks, or other areas adjacent thereto that constitute traditional public forums. 10.34.030 RESTRICTIONS ON PANHANDLING; VIOLATIONS: A. It shall be unlawful for any person to engage in an act of panhandling when either the panhandler or the person being solicited is located in any of the following places within the city limits of Elgin, Illinois, said places having been determined to be non-public forums for the purposes of analysis under the First Amendment to the United States -4 - Constitution: 1. Within any bus or train stop or shelter that is enclosed on at least three (3) sides; 2. In any public transportation vehicle or facility; 3. On private property,unless the panhandler has permission from the owner or occupant; 4. In a parking lot or garage owned or operated by the City of Elgin, including entryways or exits and pay stations connected therewith; 5. In a sidewalk café, restaurant, or outdoor seating area that has been issued a license to operate within the public right-of-way by the City; 6. In a roadway, as defined in this chapter, where the person engaged in the act of panhandling enters into a roadway panhandling for the immediate receipt of funds from the occupant of a vehicle. B. It shall be unlawful for any person to engage in an act of aggressive panhandling, which includes any of the following actions when undertaken in a manner that a reasonable person would find intimidating: 1. Intentionally touching or causing physical contact the person solicited without the solicited person's consent before, during, or immediately after making such solicitation; 2. Intentionally blocking the passage of the person solicited, or blocking the entrance to any building or vehicle, before, during, or immediately after making such solicitation; 3. Using profane, abusive, or personally threatening language, either before, during, or immediately after making an in-person solicitation; 4. Making any statement, gesture, or other communication that would cause a reasonable person in the situation of the person solicited to be fearful that they would be subjected to an unwanted physical touching or harm to their person or their personal property; 5. If in a group of two (2) or more persons, panhandling while any other person in the group engages in any of the acts described in subsections 10.34.B.1 to 10.34.B.4 above. C. It shall be unlawful for any person to knowingly make any false or misleading representation in the course of soliciting a donation for the immediate receipt of funds with the intent that the listener believe and rely on the representation in determining whether to make a donation. False or misleading representations include, but are not limited to, the following: 1. Stating that the donation is needed to meet a specific need, when the solicitor already - 5 - has sufficient funds to meet that need and does not disclose that fact; 2. Stating that the donation is needed to meet a need which does not exist; 3. Stating that the solicitor is from out of town and stranded, when such is not true; 4. Wearing a military uniform or other indication of military service, when the solicitor is neither a present nor former member of the service indicated; 5. Wearing or displaying an indication of physical disability, when the solicitor does not suffer the disability indicated; 6. Use of any makeup or device to simulate any deformity; or 7. Stating that the solicitor is homeless, when he or she is not. 8. Stating that the funds are needed for a specific purpose and then spending the funds received for a different purpose. 10.34.040: PENALTY: A. First Offense. Any person found guilty of violating any provision of this chapter shall be fined not less than one hundred dollars ($100.00) for the first offense. B. Second Offense. Any person found guilty of violating any provision of this chapter for the second time within any one-year period shall be fined not less than two hundred fifty dollars ($250.00). C. Third and Subsequent Offense. Any person found guilty of violating any provision of this chapter for the third time, or any subsequent time thereafter, within any one-year period shall be fined not less than five hundred dollars ($500.00). 10.34.050: SEVERABILITY: If any provision,clause,sentence,paragraph,section or part of this ordinance or application thereof to any person or circumstance, shall for any reason be judged by a court of competent jurisdiction to be unconstitutional or invalid, such judgment shall not affect, impair or invalidate the remainder of this ordinance and the application of such provision to other persons or circumstances,but shall be confined in its operation to the provision, clause, sentence, paragraph, section or part thereof directly involved in the controversy in which such judgment shall have been rendered and to the person or circumstances involved. It is hereby declared to be legislative intent of the City Council that this ordinance would have been adopted had such unconstitutional or invalid provision,clause, sentence,paragraph, section or part thereof had not been included." Section 2. That all ordinances or parts of ordinances in conflict with the provisions of this ordinance be and are hereby repealed to the extent of any such conflict. - 6 - Section 3. That this ordinance shall be in full force and effect ten days after its passage and publication in the manner provided by law. ifA ,/,..,„0,...4.,-. .,.... . I avid J. K. stain, ayor Presented: December 21, 2016 Passed December 21, 2016 Omnibus Vote: Yeas: 9 Nays: 0 - + Et ` w Recorded: December 21, 2016 .,, ,ws � Published: December 21, 2016 ' 1'� f 0 `, A es0> 1 ita Kimberly Dewis, ity Clerk - 7 -