At tonight’s city council meeting, the council will once again be asked to give input to city staff regarding potential ways to address what some consider to be problems associated with panhandling in town.
According to city staff, “Panhandling, particularly in the downtown core but also prevalent in and around neighborhood shopping centers, has reached a critical mass that is having adverse effects on the community’s overall economic and social well-being.”
Panhandling itself is not illegal, indeed, it is considered, according to staff, a protected form of speech and therefore it cannot be banned. In general, “a person has a right to ask for, or show.” Instead, what the city has the ability to do is “to regulate the conduct related to panhandling, including the time, manner, and place of panhandling or solicitations in order to ensure the health, safety and well-being of the public.”
Staff believes that, over the past year, “there has been a visible uptick in individuals panhandling and/or ‘setting up shop’ in the downtown, in locations such as Central Park, G Street Plaza, E Street Plaza, and several spots in front of commercial properties.
“Panhandling has become particularly problematic with the departure of several downtown businesses, leaving vacant storefronts in the core, specifically the southeast portion of the downtown. Vacancies provide locations for individuals to sit and panhandle in unused doorways where they can also store personal belongings for long periods of time, often in the public right of way,” the report continues.
This has led to “sidewalk obstructions” that “can be dangerous to the passing public.” They also note problems with the public use of “alcohol, drugs, and concerns about sanitation and safety concerns because of potentially aggressive dogs.”
Staff writes, “These behaviors and concerns in turn cause other residents or visitors to avoid certain areas of the downtown or to avoid downtown altogether, causing economic hardship for local businesses.”
The Davis Chamber and Davis Downtown, along with individual businesses and residents, have expressed frustration with the situation to the city and have requested the council review options for potential solutions.
In a recent survey about downtown issues, which had approximately 1500 responses, panhandling and its effects on downtown were cited as the most pressing concern.
Currently there are a number of solutions that the city has at its disposal. Current state law prohibits “accosting” people in public places, and while “accosting” is a legal term, it includes behavior such as approaching or following pedestrians, using abusive language, unwanted physical contact, or the intentional blocking of pedestrian and vehicular traffic.
The city can pass a local ordinance to deal with this, but it remains tricky as “truly aggressive panhandling can be difficult to spot and to prosecute unless objective or observable behaviors are included in the ordinance.”
The city can also prohibit panhandling within 50 feet of an ATM. By doing this, it protects the privacy and safety of people making financial transactions.
There are also service cards and social services available for those in need.
There are also miscellaneous enforcement options available. Staff describes, “While not directly related to panhandling, the City has several other ordinances to address inappropriate behavior, sometimes exhibited by individuals who are also panhandling. Possessing open containers of alcohol, public intoxication, littering, engaging in disorderly conduct, and lodging illegally are all currently against the law in Davis.”
Implicit in this discussion is the notion that current remedies are insufficient. The staff has therefore asked the city attorney to examine the legality of three other potential areas: a no sit/lie ordinance, expansion of aggressive panhandling ordinances, and prohibition of or regulation of unattended and abandoned property.
San Francisco, for example, has a “sit-lie” ordinance, called the Civil Sidewalk Ordinance, which prohibits sitting or lying upon a public sidewalk between 7am and 11pm, with exceptions for things like medical emergencies or persons using wheelchairs and walkers.
It is effective citywide, only on public sidewalks, and requires a warning before a citation may be issued. It was passed by the voters as Proposition L in 2010. It does not appear to have faced legal challenges and is still in good standing.
However, “other cities have faced legal challenge over similar ordinances.” Moreover, as staff notes, there are reasons to question the legality of this ordinance, as the Federal Department of Justice filed a statement of interest last year in an Idaho matter that argues “it is a violation of the 8th Amendment (cruel and unusual punishment) to make it a crime for people who are homeless to sleep in public places, when there is insufficient shelter space in the City to provide an alternative.”
Staff notes, “Despite the DOJ position and the Jones case, California case law has generally upheld anti-camping ordinances (which are largely similar to sit-lie ordinances), even in the face of 8th Amendment or vagueness challenges.” Staff adds, “Taken together, it is fair to say that California case law appears to allow and uphold anti-camping and sit-lie ordinances, but there is a garden variety of legal challenges that could creep up if the ordinance is not narrowly tailored.”
The attorney recommends, if the council goes this route, that they make a Davis ordinance specific in location and time. In addition, “the City Attorney’s office recommends carving out exceptions for otherwise permitted activities, such as protests, parades, street fairs, etc., to prevent unintentional infringement on first amendment rights or other activities that may be allowed by the Davis Municipal Code.”
The staff report briefly discusses solicitation ordinances. Staff notes that the 2015 case of Reed v. Town of Gilbert, Arizona has provided case law that “limits a government’s legal ability to restrict too widely. The Reed case appears to overrule any attempt to regulate or prohibit solicitation as a content-based restriction violating First Amendment principles, and other courts in the US have interpreted it as such.”
“The takeaway from Reed is that any expansion of a solicitation ordinance should be very narrowly tailored and framed in the context of physical conduct and location as opposed to solicitation,” staff writes.
There is also the issue of confiscation of personal items. Staff writes that “removing the property requires its own process. The City may lawfully seize and detain personal property left in public areas, but immediate destruction of such property is a violation of the 4th and 14th Amendments, and notice is required to protect due process.
“The City must then hold the property for a ‘reasonable’ amount of time and follow its written policy and procedure for handling the property. The City currently holds property for 90 days, which is consistent with state code for selling property at an auction. An ordinance regulating unattended property could allow for initial tagging or citations of the property (providing notice that the property will be removed if not claimed within a certain amount of time), and then subsequently authorizing the seizure and holding of the property for an amount of time before destroying or selling it. This is the procedure the City already uses to address other property.”
—David M. Greenwald reporting
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