G47-16 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:
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"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
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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
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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
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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.
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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.
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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
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Kimberly Dewis, ity Clerk
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