City council shows hand with temporary ‘aggressive solicitation’ ordinance

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Justin Outling questions lawyers about a proposed ordinance as Mayor Nancy Vaughan (right) and Marikay Abuzuaiter listen. (photo by Jordan Green)

Greensboro City Council narrowly approves a set of “public safety” ordinances meant to replace the city’s unconstitutional panhandling ordinance. But lacking a sufficient votes to enact the measures immediately, council imposes a more restrictive ordinance as a temporary placeholder. 

In a tortured piece of public-policymaking, a split Greensboro City Council showed its hand to potential litigants Tuesday night by enacting a temporary “aggressive solicitation” ordinance as a placeholder for a more nuanced set of ostensible public-safety measures crafted to survive First Amendment challenges in court.

“Aggressive solicitation” itself was conceived as a legal substitution for panhandling, after city council recognized that panhandling ordinances were a violation of the Constitutional prohibition against content-based speech regulations in the wake of the US Supreme Court’s 2015 Reed v. Town of Gilbert case.

The circuitous legislative course taken by city council over the past three months is likely confusing even to its authors: First, in April, council enacted an “aggressive solicitation” ordinance by a 6-3 vote. Then, Councilwoman Sharon Hightower, one of the members in the majority, made a motion to recall the decision. The ordinance passed 5-4, necessitating a second majority vote for enactment, according to the requirements of the city’s code of ordinances. But instead of taking a second vote, city council hired an outside law firm to craft a more nuanced set of regulations after facilitating public-input meetings and reviewing law enforcement data. In the meantime, the city had no ordinances on the books regulating panhandling or soliciting.

“What we’re putting in front of you is not a solicitation ordinance,” DeWitt McCarley, a lawyer with the Parker Poe law firm, told council. “That’s the key issue. If you call it solicitation, you’ve now made it content-based, and that’s the thing that triggers a level of review by the Supreme Court that it will never withstand.”

Councilman Justin Outling, one of the staunchest advocates for regulation, publicly acknowledged the issue that the drafted legal language dances around.

“Ordinances designed to confront the actual problem that we’re confronting now, which is aggressive solicitation, it sounds like you’re not aware of any [ordinances in other cities] that exist right now, but you think this is the best path forward,” Outling said, addressing Parker Poe lawyer Catherine Clodfelter. “That’s what led us to this venue. But for our attempting to deal with that problem, we wouldn’t be here.”

Ryan Tardiff, with the Homeless Union of Greensboro, asked council to delay the vote.

“It’s been clear in this conversation that ‘solicitation’ is a dirty word to say, according to the law firm,” Tardiff said. “But that’s what everything was surrounding in the first place. I think Councilperson Outling pointed out the fact that we have been talking about solicitation. And now we want to call it not about solicitation because that might mean you can’t pass a law. So at that point, what’s the point?”

The legislation drafted by Parker Poe repeals the city’s current ordinance prohibiting loitering and “loitering for the purpose of engaging in drug related activity.” In their place, it creates a new ordinance against “blocking or impeding street and sidewalk access” with specific language prohibiting conduct such as “weaving or darting through, around, and in between multiple occupied vehicles,” “placing or throwing a tangible thing on or inside an occupied vehicle that is on the street…” and “standing, sitting, or lying down on the portion of a traffic island that is less than 6 feet wide.”

Another ordinance prohibits “solicitation and distribution of items in public parking garages and public parking lots.” Clodfelter said an anti-soliciting ordinance narrowly restricted to parking garages and parking lots would pass muster because of a demonstrated concern about people getting hit by cars coming in and out of parking areas, and people feeling intimidated if they’re approached while getting in and out of cars; the ordinance does not restrict solicitation on sidewalks or landscaped areas that run through parking lots.)

A third ordinance meant to address harassment prohibits “following an individual in or about a public space  with the intent of threatening, intimidating, or causing fear for personal safety” or “crowding or cornering an individual with the intent of threatening, intimidating, or causing fear for personal safety.”

Sarah Sills told council she was concerned that the wording in the anti-harassment ordinance “is too vague and leaves too much room for interpretation.”

“I’m afraid a person could be accused of and arrested for crowding someone or cornering someone when they’re just standing and walking on a sidewalk,” she said. Highlighting the dubious concerns that have led people to call the police on homeless people under the previous now-repealed panhandling ordinance, Sills read from a spreadsheet itemizing citizen complaints to police in 2017: “Asking for money and eating a sandwich,” “sitting in a wheelchair [and] asking for money,” “sleeping on the corner,” “crying and telling people her grandmother has died,” “sitting down,” “wearing a hospital bracelet and panhandling,” and “making people feel uncomfortable.” (Asking people for assistance, commonly known as “panhandling,” is Constitutionally-protected speech.)

“You know what else is uncomfortable?” Sills continued. “Experiencing homelessness. And I’m afraid that our friends who are experiencing homelessness will be disproportionately affected by this ordinance.”

Public comments ran roughly 10-1 against enacting even the more nuanced ordinances drafted by Parker Poe.

“Panhandling — that’s not the issue, guys,’” Vaughn Ramsey said. “The issue is that people are sometimes getting out of control…. I can tell you, living downtown, it can be a problem when you live here with these people. I don’t know that we want to go to a crime. You have assault, you have battery. The police chief last time talked about having something that was less than that. I think something needs to be done about it, and I ask that you do something about it.”

Dawn Chaney, a residential property developer, argued that safety is necessary to maintain investment and the city’s tax base.

“How about the other people who live in our city and contribute to our city every day?” she asked. “Our workforce. Creating jobs. Creating businesses brings the tax base to our country and to our city. Think about that. How important is that for our city? And if we allow anybody to devalue us because of safety issues and businesses start to leave our city, and people won’t come to our city because they don’t feel it is safe. Safety is a major issue; all of you know that.

“I’m not saying that I personally feel negative against someone who is panhandling, but I have seen it, and I know people who come to our city have spoken to me about it, and have said to me: ‘I can’t come downtown, Dawn, because I don’t feel safe,’” she continued. “I also know I have businesses leaving downtown because their clients don’t feel safe.”

Mayor Nancy Vaughan and other council members on the prevailing side of the votes said they believe there is an urgent need to implement a new ordinance, adding that they have been lobbied by residents who are reluctant to speak publicly.

“I’m sorry, but this is about harassment and public safety,” Vaughan said. “I’m sure that all of us have been contacted by a multitude of people, not just from downtown, but from Lawndale [Drive] and Battleground [Avenue] and Gate City Boulevard and MLK, who have been harassed, who have people following them to their car, opening up car doors. They’ve said, ‘When are you going to act?’ They’ve said that ‘you have let us down’ because not only do panhandlers have human rights; everybody has human rights.

“You can see story after story where people have been chased down the street,” Vaughan continued. “Not catcalls; it’s worse than catcalls. People being touched inappropriately. We can’t have a city like that.”

During a break, five members hatched a plan to enact the “aggressive solicitation” ordinance as placeholder for the three ordinances drafted by Parker Poe, although Councilwoman Tammi Thurm assured the audience that they hadn’t violated public meetings law by meeting all at once.

“What I hope we can do between now and the second reading of the Parker Poe ordinance is do whatever fine-tuning —  if there is other information needed from the ACLU — if people want more time and they want more input, go ahead and put that in for a second reading,” Thurm said, “at which time I will be in favor of repealing the aggressive solicitation ordinance and voting a second time on the Parker Poe ordinance.”

Councilwoman Sharon Hightower denounced the maneuver.

“I think it’s very unfortunate that this was done under the dark of cover in about 10 minutes coming back not being full disclosure to the people that are listening, that are watching, that are in this audience, that have spoken, talked about how we feel about this,” she said. “This is what democracy doesn’t look like.”

Hightower warned that unwarranted fear of black people could lead to discriminatory enforcement.

“I think because it is being solicited by others who are African American, tall and large in stature, alcoholic looking — may not even be on any kind of alcohol — I think the perception is that it’s dangerous,” she said.

Councilwoman Michelle Kennedy concurred.

“Passing this ordinance is an intentional act of discrimination,” said Kennedy, who is the executive director of the Interactive Resource Center, a homeless day center. “Taxpayers, the 285,000 people we represent, people experiencing homelessness and people who aren’t, get out your checkbooks. Because if this passes, we are about to waste your money on legal action that we know we cannot win and which is in direct conflict with the United States Constitution.”

Outling rejected the charge of discrimination.

“It’s been said to me that ‘this is about protecting fragile Caucasians in downtown Greensboro; it’s about nothing else. They don’t want to see persons soliciting for money,’” Outling said. “I will tell: I’ve never believed that to be the case. It’s certainly not supported by the communications that I’ve received…. This is about prohibiting what everyone should agree is wrongful conduct.”

City Attorney Tom Carruthers informed council members that the Parker Poe ordinance would go into effect next month with a second majority vote with at least five members on the prevailing side. If the ordinance is revised to incorporate input from other interested parties like the ACLU and the National Law Center on Homelessness, the measure would need at least six votes to be enacted, he added.

City council also voted to amend the ordinance regulating street performers, or buskers, so they are no longer required to undergo a background check and obtain a license from the city. The city’s legal staff determined that the background check and licensing scheme was likely in violation of the Constitution. The replacement ordinance includes spacing requirements, and a time limit of four hours for each performance. The ordinance passed unanimously with no discussion.

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