Déjà Vu, Aggressive Solicitation Ordinance Part Deux

Written on 5/11/18

Greensboro’s recently adopted ordinance to prohibit specific acts of aggressive solicitation may be headed for the trash bin before the ink on the paper on which the ordinance was written has dried.  At its May 15, 2018 meeting, Greensboro City Council is poised to again spend considerable amounts of time publicly debating whether to at all prohibit aggressive solicitation, after repealing the City’s longstanding framework for dealing with both non-aggressive and aggressive panhandling.

Recent Council meetings suggest that any revote on the matter will be closer the next time around.  However, the newly adopted ordinance, which can be found here, is plainly appropriate and necessary based on the facts and public safety concerns for both solicitors and the solicited.  Further, the City’s legal counsel has advised that it believes the ordinance is legal, notwithstanding recent changes in the law.  Hopefully a majority of the members of the Council will (re)affirm their support for the new ordinance or a substantial equivalent thereto.

01.  Recent Council Meetings.

As summarized here, at the Council’s April 24, 2018 meeting, “City Council unanimously voted to repeal the City’s panhandling ordinance because of concerns about whether the ordinance was still lawful given a relatively recent Supreme Court case involving sign regulations.  In a 6-3 vote, Greensboro City Council adopted a much more narrowly tailored ordinance in its place.  Specifically, the Council voted to adopt a ‘aggressive solicitation’ ordinance.”

After the vote was complete and the matter was decided, however, a Councilperson who voted in favor of the ordinance called for a revote so she could change her vote.  The request was made as a result of the Councilperson linking her vote on another issue (a local preference policy the Council was in the process of adopting over her dissent) to the aggressive solicitation ordinance she voted in favor of just moments earlier.  A video of the meeting and the remarks on this point can be found here (at the 5:53:04 mark).  While I prefer to approach each item brought before the Council on its own individual merits, this practice is allowed under the relevant procedural rules.  Thus, the Council will reconsider the just adopted ordinance at its next meeting, likely with at least one less vote in favor.

02.   Bad Politics, But Good Policy.

Under the prior ordinance, panhandlers (and only panhandlers) were required to follow strict rules about where they could panhandle and how they could do so.  Further, under the prior ordinance, panhandlers (and only panhandlers) were required to obtain a license to panhandle, after successfully passing a criminal background check.

By contrast, the new ordinance merely prohibits certain aggressive acts during solicitation of all forms, including, but not limited to, panhandling.  Among other things, obtaining a license and passing a background check is no longer required.  Further, there are no restrictions on the public areas where solicitations may be made.  In other words, the new ordinance is much more narrow, contains no (and thus fewer) barriers to solicit persons for money, does not treat panhandling differently than other requests for money, focuses on harassing acts (rather than speech), and addresses actual issues that government should (and only government can) address.

At the Council’s two most recent meetings (the first a business meeting and the second ostensibly limited to public comment), certain of the Councilmembers who voted against the ordinance argued that the ordinance was duplicative of other laws and criminalized those experiencing homelessness.  Going even further, certain of the Councilmembers even asserted that the ordinance is “discriminat[ory]” and constitutes a “separate, but equal” law.

These assertions, which adopt the cloak of assumed virtue, have no merit.  You cannot equate the heroic struggles of the Civil Rights movement against “separate but equal” institutions with any supposed “right” to solicit money by means of aggressive behavior.  This rhetoric might play well politically, but it ignores the sole substantive issue before the Council: does the ordinance, as actually written, constitute good public policy?

The answer to that question, which should direct Council’s action on the subject, is “yes.”

Greensboro’s Police Chief indicated that the ordinance is necessary to address misconduct not covered by other laws and it’s undisputed that the type of aggressive behavior covered by the ordinance is unacceptable.  For example, the ordinance prohibits forcing ones-self upon the company of another by following that person after the person to whom the request is directed made a negative response.

Moreover, the ordinance does nothing that could even remotely be characterized as criminalizing homelessness.  Under the ordinance, solicitation (including panhandling) is still allowed.  Even solicitation (including panhandling) that may make solicited persons feel uncomfortable (or perhaps even threatened) is still allowed.  Merely certain aggressive (i.e., harassing) solicitation is prohibited.  To not run afoul of the ordinance, all a solicitor must do is not harass the person to whom he or she makes their request.

Furthermore, there is nothing discriminatory or “separate, but equal” about the ordinance.  Unlike the assertions against the ordinance, the ordinance is not based on an apparent theory that only persons experiencing homelessness engage in the harassing conduct the ordinance prohibits.  A reading of the actual language of the ordinance shows it plainly applies to all persons, prohibiting (certain, not even all) aggressive/harassing conduct by all persons.

Lastly, while there is great uncertainty regarding the state of the law on the topic and any such ordinance will likely be challenged in court, Greensboro’s City Attorney (in consultation with outside counsel) has advised that his office believes the ordinance is lawful.

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Greensboro City Council will take up the solicitation issue again at its May 15, 2018 meeting.  The meeting begins at 5:30 pm in the Council Chamber in the Melvin Municipal Office Building, 300 W. Washington St.  The meetings can be live-streamed at the appointed time here.