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1. Complete ban.
"It shall be unlawful and a class C offense for anyone to beg or solicit alms in the streets or public places of the city or exhibit oneself for the purpose of begging or obtaining alms."This ordinance was held unconstitutional in C.C.B. v. State.(61)
Jacksonville Municipal Ordinance § 330.105.
"A person is guilty of loitering when he:"(1) Loiters, remains or wanders about in a public place for the purpose of begging."
New York Penal Law § 240.35(1).
Although phrased in terms of loitering, this statute seems to be a complete ban on panhandling. It is difficult to see how one could panhandle without either remaining or "wander[ing] about." This statute was declared unconstitutional by a federal district court in Loper v. New York City Police Dept.(62) It is likely that the city will appeal.
2. Accosting while soliciting."Every person who commits any of the following acts is guilty of a misdemeanor: . . . (c) who accosts other persons in any public place or in any place open to the public for the purpose of begging or soliciting alms."
California Penal Code § 647(c).
This statute was upheld by a state appellate court in Ulmer v. Municipal Court.(63) However, it was declared unconstitutional by a federal district court in Blair v. Shanahan.(64) The Blair case is presently on appeal. We believe that the Ulmer decision is correct and that Blair was wrongly decided. This statute is permissible "manner" regulation. It only prohibits accosting people for solicitation. Standing in one place and soliciting passers-by is legal under this statute.
3. Obstructing traffic.
"B. A person is guilty of pedestrian interference if . . . [that person] intentionally:
"1. Obstructs pedestrian or vehicular traffic . . . ."
Seattle Municipal Code 12A.12.015(B)(1).This ordinance was upheld against a panhandler's claim that it was unconstitutional on its face in Seattle v. Webster.(65) The fact that the obstruction must be intentional was a key factor in the decision.
4. Particular places.
a) Airports.
"1. The following conduct is prohibited within interior areas of buildings or structures at an air terminal if conducted by a person to or with passers-by in a continuous or repetitive manner.
"(c) The solicitation and receipt of funds."
Airport Rules and Regulations, the Port Authority of New York and New Jersey, Chapter III (applicable to JFK, La Guardia, and Newark airports).This regulation was upheld in International Society for Krishna Consciousness, Inc. v. Lee.(66) The majority held that the airports were not public forum. Justice Kennedy held that this was a permissible manner regulation, because only solicitation for immediate payment is prohibited. Handing out envelopes for mail-in donation, for example, is allowed.
b) Post Offices.
"Soliciting alms and contributions, campaigning for election to any public office, collecting private debts, commercial soliciting and vending and displaying or distributing commercial advertising on postal premises are prohibited."
39 Code of Federal Regulations § 232.1(h)(1) (1989).This regulation was upheld by the Supreme Court in United States v. Kokinda.(67) The plurality held that the post office and its grounds are not a public forum, and that the regulation was reasonable. Justice Kennedy concurred on the basis that, even though he believed the sidewalk leading into the post office was a public forum, the regulation's prohibition of solicitation for immediate payment of money was a permissible regulation of the manner of speech.
c) State Fairs.
"Sale or distribution of any merchandise, including printed or written material except under license issued [by] the [Minnesota Agricultural] Society and/or from a duly licensed location shall be a misdemeanor."
Minnesota State Fair Rule 6.05, authorized by Minn. Stat. § 37.16 (1980).The licensed locations were fair booths, which were "rented to all comers in a nondiscriminatory fashion on a first-come, first-served basis." As so applied, the Supreme Court upheld the regulation in Heffron v. International Society for Krishna Consciousness, Inc.(68) The fact that the rule applied evenhandedly to all would-be solicitors was important to the decision.(69)
d) Subways.
"(b) No person, unless duly authorized by the Authority, shall engage in any commercial activity upon any facility or conveyance. Commercial activities include (1) the advertising, display, sale, lease, offer for sale or lease, or distribution of food, goods, services or entertainment (including the free distribution of promotional goods or materials), and (2) the solicitation of money or payment for food, goods, services or entertainment. No person shall panhandle or beg upon any facility or conveyance.
"(c) Except as expressly authorized and permitted in this subdivision, no person shall engage in any non-transit uses upon any facility or conveyance. Non-transit uses are noncommercial activities that are not directly related to the use of a facility or conveyance for transportation. The following non-transit uses are authorized and permitted by the Authority, provided they do not impede transit activities and they are conducted in accordance with the rules governing the conduct and safety of the public in the use of the facilities of New York City Transit Authority Manhattan and Bronx Surface Transit Operating Authority; public speaking; distribution of written noncommercial materials; artistic performances, including the acceptance of donations; solicitation for religious or political causes; solicitation for charities that (1) have been licensed for any public solicitation within the preceding twelve months by the Commissioner of Social Services of the City of New York under § 21-111 of the Administrative Code of the City of New York or any successor provision; or (2) are duly registered as charitable organizations with the Secretary of State of the State of New York under § 172 of the New York Executive Law or any successor provision; or (3) are exempt from federal income tax under § 501(c)(3) of the United States Internal Revenue Code or any successor provision. Solicitors for such charities shall provide, upon request, evidence that such charity meets one of the preceding qualifications."
New York Compiled Codes, Rule & Regulations, tit. 21 § 1050.6(b)-(c) (1989).This regulation was declared unconstitutional by a federal district court but upheld by a 2-1 decision of the Court of Appeals.(70) The dissenting judge felt that the exemption for political, religious, and charitable causes transformed the subway into a public forum and hence opened it to panhandling. Compare Kokinda and Krishna, above, where flat bans on all in-person solicitation for immediate payment were upheld.
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61. 458 So. 2d 47, 50 (Fla. App. 1984). [GO BACK] 62. 802 F. Supp. 1029 (S.D.N.Y. 1992). [GO BACK] 63. 55 Cal. App. 3d 263, 127 Cal. Rptr. 445 (1976). 64. 775 F. Supp. 1315 (N.D. Cal. 1991).
65. 115 Wash. 2d 635, 802 P. 2d 1333 (1990). [GO BACK] 66. 120 L. Ed. 2d 541, 112 S. Ct. 2701 (1992). [GO BACK] 67. 111 L. Ed. 2d 571, 110 S. Ct. 3115 (1990). [GO BACK] 69. See id., at 649.
70. Young v. New York City Transit Authority, 903 F. 2d 146 (CA2 1990). [GO BACK] |