Part III

The first five sections of the suggested ordinance prohibit aggressive panhandling and fraudulent solicitation, without an outright ban on panhandling. A cautious strategy would be to stop at that point. A more aggressive strategy would be to adopt a permit system. Section six suggests language for cities willing to devote the necessary resources for this approach.
 

§ 1. Definitions. "Panhandling," for the purpose of this chapter, is any solicitation made in person requesting an immediate donation of money. Purchase of an item for an amount far exceeding its value, under circumstances where a reasonable person would understand that the purchase is in substance a donation, is a donation for the purpose of this chapter. Panhandling does not include passively standing or sitting with a sign or other indication that one is seeking donations, without addressing any solicitation to any specific person other than in response to an inquiry by that person.  

• COMMENT: This section defines panhandling but does not prohibit it. For the reasons stated earlier,⁽⁷¹⁾ the constitutionality of an outright ban is questionable. The definition treats individual beggars and organized charities alike. The Salvation Army and similar solicitations are excluded from the definition by the particularly nonthreatening manner in which they solicit and not by their status as charities.

§ 2. Time of Panhandling. Any person who panhandles after sunset or before sunrise is guilty of a misdemeanor. 

• COMMENT: Nighttime is inherently more dangerous and more frightening. Panhandling at night is therefore inherently more coercive.

§ 3. Place of Panhandling. Any person who panhandles when the person solicited is in any of the following places is guilty of a misdemeanor:

a) At any bus stop or train stop;

b) In any public transportation vehicle or facility;

c) In any vehicle on the street; or

d) On private property, unless the panhandler has permission from the owner or occupant.

• COMMENT: It is often said in defense of panhandling that the person solicited can simply say "no" and walk away.⁽⁷²⁾ There are many instances where he cannot. Users of public transportation are particularly vulnerable. Vehicles stuck in traffic or stopped at lights are also captive audiences. In New York's Central Park, drivers must pay extortion money to aggressive panhandlers who remember which cabs do not give and attack them.

§ 4. Manner of Panhandling. Any person who panhandles in any of the following manners is guilty of a misdemeanor:

a) By coming within three feet of the person solicited, until that person has indicated that he does wish to make a donation;

b) By blocking the path of the person solicited along a sidewalk or street;

c) By following a person who walks away from the panhandler;

d) By using profane or abusive language, either during the solicitation or following a refusal;

e) By panhandling in a group of two or more persons; or

f) By any statement, gesture, or other communication which a reasonable person in the situation of the person solicited would perceive to be a threat.
 

• COMMENT: Aggressive panhandling is by far the worst kind. Any person who gives out of fear of the panhandler rather than a genuine desire to donate has, in reality, been robbed. Professor Kelling found that two-thirds of all riders of the New York subway have been intimidated into giving.⁽⁷⁴⁾ This is a staggering toll of victimization. It explains the great wave of public support for Bernhardt Goetz, the "subway vigilante."

§ 5. False or Misleading Solicitation.

a) Any person who knowingly makes any false or misleading representation in the course of soliciting a donation is guilty of a misdemeanor. False or misleading representations include, but are not limited to, the following:

1) Stating that the donation is needed to meet a specific need, when the solicitor already has sufficient funds to meet that need and does not disclose that fact;

2) Stating that the donation is needed to meet a need which does not exist;

3) Stating that the solicitor is from out of town and stranded, when that is not true;

4) Wearing a military uniform or other indication of military service, when the solicitor is neither a present nor former member of the service indicated;

5) Wearing or displaying an indication of physical disability, when the solicitor does not suffer the disability indicated;

6) Use of any makeup or device to simulate any deformity; or

7) Stating that the solicitor is homeless, when he is not. 

COMMENT: A person who solicits money by misleading representations is attempting the crime of theft by false pretenses. Such conduct is indisputably within the power of the state to prohibit. An ordinance specifically tailored to fraudulent solicitation and listing some of the more common ruses can simplify the task of police and prosecutors.

b) Any person who solicits a donation stating that the funds are needed for a specific purpose and then spends the funds received for a different purpose is guilty of a misdemeanor.

COMMENT: This is probably the single most common fraud. This subdivision simplifies prosecution by eliminating the requirement that the panhandler intends to spend the money on something else at the time he receives it.

c) This section establishes a single offense. Evidence which establishes beyond a reasonable doubt that the defendant violated the section is sufficient for conviction and need not establish which subdivision was violated.

COMMENT: A panhandler who solicits money for food and promptly buys drugs instead has violated either subdivision (a)(1), if he had the drug money before soliciting, or (more likely) subdivision (b), if he spent the food money on drugs. This problem is very similar to the annoying old question of whether a thief committed larceny, embezzlement, or theft by false pretenses.⁽⁷⁵⁾ A unified statute is the answer. As long as the defendant is clearly guilty of one, the distinctions between them are immaterial.⁽⁷⁶⁾

§ 6. Permit Requirement.

a) No person shall panhandle on five or more days in a single calendar year without a permit issued by the police department. A person who has been issued a permit shall keep it on his person at all times while panhandling and show it to any peace officer upon request. No person whose permit has been revoked shall panhandle for a period of two years following the revocation. Any person who violates this subdivision is guilty of a misdemeanor.

b) The police department shall issue the permit, without fee, to any eligible person who presents himself at the central police station, states his true name, presents a photo identification or signs a declaration under penalty of perjury that he has no such identification, and permits himself to be photographed and fingerprinted.

c) A person is ineligible for a permit if and only if within the past five years he (1) has been convicted of two or more violations of this chapter, (2) has had a permit revoked pursuant to subdivisions (e) or (f) of this section, or (3) has been convicted of two or more offenses under the law of any jurisdiction which involve aggressive or intimidating behavior while panhandling or false or misleading representations while panhandling.

d) If the police department is unable to determine eligibility within 24 hours of the application, the department shall issue a permit good for 30 days and determine eligibility for a regular permit before the temporary permit expires. The regular permit shall expire three years from the date of issuance. Along with the permit, the police department shall give the applicant a copy of this chapter.

e) Any person who makes any false or misleading representation while applying for a permit under this section is guilty of a misdemeanor. Upon conviction of violation of this subdivision, the police department shall revoke any permit issued to the defendant under this section.

f) If a permit is issued to a person under this section and that person subsequently commits and is convicted of a violation of any provision of this chapter, the police department shall revoke the permit.
 
• COMMENT: A large portion of the panhandling in many areas is done by a small number of "regulars" who panhandle as an occupation. Cities routinely require permits to engage in occupations, and the Supreme Court has stated quite expressly that once a speaker "undertakes the collection of funds . . . he enters a realm where a reasonable registration or identification requirement may be imposed."⁽⁷⁷⁾

Charging a fee for the permit would raise serious constitutional questions.⁽⁷⁸⁾ We recommend that no fee be charged.

Without a permit requirement, enforcement of the law against aggressive and fraudulent panhandling would be difficult, if not impossible. After convicting a panhandler of a violation, he would be back on the street after a light sentence, doing it again. With a permit system, a conviction of aggressive or fraudulent panhandling leads to ineligibility or revocation of the permit. From that point, the police can arrest that person for panhandling alone. Thus, the difficulty of proof to establish the substantive violation need only be surmounted once or twice per panhandler.

The sample ordinance requires two violations to be ineligible for a permit. While the old axiom holds that ignorance of the law is no excuse, it would be unduly harsh to apply that principle here. The first violation provides fair warning. Once a permit is issued, however, the panhandler is given a copy of the law and has actual notice. (A city should make some provision for illiterates and non-English speakers.) From that point, one violation warrants a revocation.

The permitting process consists mainly of identification and a records check. Provisions must be made for people who have no identification.⁽⁷⁹⁾ A false statement of identity or of not having identification is a violation and a ground for revocation.

The main problem in implementing the permit system is resources. Where a city has already adopted community-based policing and where it has an active and aroused downtown merchant community, identifying the "regulars" should present little problem. There will still, however, be the administrative burden of issuing the permits and prosecuting the violations. If the city is really committed to restoring the people's right to use the streets and transportation facilities without fear of aggressive panhandlers, the permit system offers the best chance of achieving that goal.