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City prepared for legal challenges against panhandling ordinance

As Rochester considers a potential ordinance that could ban aggressive panhandling, the city has been looking to other cities that have made similar ordinances for insight into what works and what doesn’t – and what can keep the city safe from...

As Rochester considers an ordinance that would ban aggressive panhandling, the city has been looking to other cities that have made similar ordinances for insight into what works and what doesn't — and what can keep the city safe from legal challenges.

"A lot of cities have been an inspiration but not altogether positive," City Attorney Terry Adkins said. "I'm trying to learn from the mistakes … where they have regulated panhandling, found themselves in court and lost."

The city has two potential ordinances up for discussion: One would ban aggressive panhandling, including touching people, blocking them and panhandling within 15 feet of an ATM, public restroom or sidewalk cafe. The other ordinance would ban anyone, not just panhandlers, from being in the public right-of-way except to cross the street.

The proposed ordinances are on the agenda of the council's committee of the whole meeting on Monday and are expected to go before the council for a vote on July 21.

Activity in medians a hazard?


Rochester City Council member Mark Hickey said he thinks taking a content-neutral approach to banning activity in medians is appropriate.

"I've personally witnessed near accidents," Hickey said. "It just causes a public hazard at that intersection."

An ordinance in Worcester, Mass., provided a way for the city to draft an ordinance for banning median action that would be defensible in court, Adkins said. Until he came across that case, he didn't think there would be a way for Rochester to do that.

"A number of cities have attempted to ban panhandling in traffic medians and traffic islands, and those have been unsuccessful," Adkins said. The Worcester ordinance takes a content-neutral approach and bans all activities, including politicians campaigning, kids selling cookies and panhandling, in those areas.

And courts have upheld the ordinance. The American Civil Liberties Union filed a lawsuit against the city of Worcester, saying the law was unconstitutional. A federal appeals court decided in late June to deny a preliminary injunction while the lawsuit is being pursued, meaning the city could continue to enforce the ordinance.

"Girl Scout cookie sellers and Salvation Army bell-ringers are as much subject to the aggressive panhandling ordinance as the homeless panhandler," former Supreme Court justice David Souter wrote in the appeals court's opinion. "While it will unquestionably limit political campaigning, it draws no line by party or position or cause, and it covers solicitation for money as well as for votes."

Adkins said he thinks the Worcester option is the best example of an ordinance that's been through the legal ringer and won, and that's why he's building an ordinance based on a similar content-neutral approach.

"I would not be surprised if we were challenged," Adkins said. "But I like our chances in court."


Sarah Wunsch, a staff attorney at ACLU Massachusetts who is working on the case against Worcester's ordinances, said cities considering similar ordinances need to tread lightly.

"Any place that's considering these laws is really going to have to consider them much harder," Wunsch said.

ACLU to file appeal

She said the ACLU plans to file another appeal in light of a recent Supreme Court case, McCullen v. Coakley, that ruled buffer zones unconstitutional in relation to abortion clinics in Massachusetts. She thinks the aggressive panhandling ordinances essentially create thousands of buffer zones around the city near ATMs and sidewalk cafes.

"If a city or town is talking about creating buffer zones where panhandling cannot take place … I think they're asking for big legal trouble," Wunsch said.

Adkins said he's prepared for some legal challenges.

"I'm not concerned because I anticipate that probably will happen," Adkins said. "Any constitutional lawyer will have a high comfort level when they present an ordinance that's already been challenged in court and been upheld."

Rochester Mayor Ardell Brede vetoed a panhandling ordinance four years ago that would have required a permit for panhandlers because he didn't think it was the right approach to the problem. This time around, he said he likely would be OK with the ordinances as discussed.


"If that's where we're ending up, no, I don't think I would be vetoing that," Brede said.

But Brede did say he was concerned about the potential legal battles ahead for the city if it approves the bans on aggressive panhandling and restrictions to public medians.

"I'm not too keen on having us have to spend money to defend things in court on this particular matter," he said.

Public safety a concern

Hickey said he thinks the city needs to be cautious as it moves forward with an ordinance, but work to protect public safety as well.

"We have to be very careful about how we go about this," Hickey said. "But I think the citizens of Rochester expect their elected officials to show some courage."

Council President Randy Staver said the council and city staff have done a ton of research and are prepared to have some discussion on the topic.

"The legal aspect is not something that would necessarily dissuade us from pursuing an ordinance, but we need to be responsible in our roles and not put the city of Rochester in an unfavorable position," Staver said.

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