City Council Meeting

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Meeting Date: 04/01/2014  
Co-Submitter: Marianne Sullivan, Assistant City Attorney - Prosecution
From: Kevin Treadway, Police Chief

Consideration of Ordinance No. 2014-09: An ordinance prohibiting aggressive solicitation.
At the meeting of April 1, 2014
1) Read Ordinance No. 2014-09  by title only for the first time
2) City Clerk reads Ordinance No. 2014-09 by title only (if approved above)
At the meeting of April 15, 2014
3) Read Ordinance No. 2014-09 by title only for the final time
4) City Clerk reads Ordinance No. 2014-09 by title only (if approved above)
5) Adopt Ordinance No. 2014-09
Policy Decision or Reason for Action:
The Flagstaff Police Department with assistance from the Flagstaff City Attorney's Office is requesting the approval of Ordinance 2014-09, which would prohibit aggressive solicitation in Flagstaff.
Financial Impact:

There is no financial impact to the City of Flagstaff by adopting this ordinance.

Connection to Council Goal:
Effective governance by addressing public safety and constituent concerns.

Has There Been Previous Council Decision on This:
Council has not made a prior decision on this issue. The prospect of developing an ordinance prohibiting aggressive solicitation was presented during Council work session on February 11, 2014. Council provided support in bringing a draft ordinance forward.
Options and Alternatives:

1) Adopt Ordinance 2014-09, making it unlawful to aggressively solicit in Flagstaff.
2) Amend Ordinance 2014-09
3) Do not adopt Ordinance 2014-09

In August 2013, a local attorney and the ACLU filed a lawsuit against the Flagstaff City Attorney and the Police Chief alleging the state statute prohibiting loitering to beg was unconstitutional. After legal review, it was determined in fact the statute found under ARS 13-2905 (A)(3) was believed to be a violation of free speech. Following recommendations by the City Attorney and Police Chief, the Flagstaff City Council approved a settlement whereby the Flagstaff Police Department would refrain immediately from taking enforcement action for loitering to beg. On October 11, 2013, the Arizona Criminal Justice Commission advised all law enforcement agencies in the state that the United States District Court had declared ARS 13-2905(A)(3) to be unconstitutional and void under the first and fourteenth amendments of the Constitution. The statute was declared unenforceable statewide.

Each year, the Flagstaff Police Department receives numerous calls from concerned citizens who have been approached by individuals begging for assistance. In one recent 13 month period, the police department recorded 642 calls for service where the event code was classified as loitering. The event code for loitering and "vagrancy" is the same, so not all 642 calls received were specifically for loitering to beg, however during that same 13 month period, the Flagstaff Police Department made 141 arrests for panhandling under 13-2905A3 prior to the legal challenge of this statute. Statistics indicate a large number of citizens contact the police annually with concerns regarding this behavior. A number of these arrests involved activity described by the victim as "aggressive" at the time the panhandling occurred. A case review indicates it is apparent many subjects who panhandle tend to target females or the elderly resulting in many of these victims describing the contact as causing fear. In two separate case, children under the age of ten were solicited.

The Flagstaff Police Department believes that citizen concerns regarding loitering to beg on private property can be addressed through a partnership with business owners. Officers can be granted authority to "trespass" subjects on private property at the business owner or managers direction. If a business owner believes loitering to beg is bad for business, authority may be granted allowing officers to trespass individuals involved in this conduct. Notice shall be given upon first contact, warning the individual this conduct is not allowed and the officer will trespass the individual from that property. Recent changes in state statue on trespassing now allows the officers to "trespass"at the direction of the business owner. Notice of trespass will be documented in our records system, accessible to officers in the field. Future or subsequent contacts with the same individual at that location could result in an arrest for trespass.

Incidents occurring on school grounds can be enforced under the existing provision remaining in the State loitering statute. Private schools and churches are also private property, and as such, solicitation can be effectively addressed with the trespassing statute. 

With trespassing tools in place on private property, the challenge will be in addressing certain behaviors involving aggressive solicitation on public property.

During legal review, it has been  determined that several municipalities in the state of Arizona have enacted local ordinances to address aggressive solicitation. These ordinances have successfully addressed citizens concerns by prohibiting behavior or conduct, as opposed to the content of speech.

The proposed ordinance on aggressive solicitation is attached. It contains many of the same elements of several of the ordinances reviewed from other municipalities. Several options are open for Council discussion, most notably distances listed prohibiting certain behavior in proximity to commercial institutions.

Key Considerations:
A draft bill on Aggressive Solicitation is being proposed in the State House of Representatives. A copy of that bill is attached. Much of the same prohibitions appear in this draft legislation, but it is of course unknown at this time whether this bill will gain the support this legislative session. The issue of panhandling in Flagstaff is most definitely seasonal, with significant increases in calls for service and response to panhandling complaints experienced during spring and summer months. We expect calls for service regarding loitering incidents will begin to dramatically increase in late April.

There are also concerns with the legality of prohibiting solicitation on medians. Currently there is an existing state law under A.R.S. Section 13-2906 "Obstructing a Highway or Other Public Thoroughfare", that applies if a person recklessly interferes with the passage of any highway by creating an unreasonable inconvenience or hazard. The 9th Circuit Court of Appeals has found that attempts to set prohibitions on day laborers who were soliciting work and obstructing traffic while doing so unconstitutional. Recently the U.S. District Court in Maine struck down a Portland, Maine City Ordinance prohibiting soliciting on medians. The Court first found that a median is a public forum for the purposes of the First Amendment free speech analysis. The Court then went on to state that because the City Council and Chief of Police in Portland interpreted the ordinance to allow persons to go on the median to place campaign signs, that the ordinance was unconstitutional as it was not reasonably related to the State's interest of safety concern. Therefore, if a local ordinance is considered prohibiting solicitation on medians, that ordinance would have to prohibit all activity on medians including the placement of signs in order to possibly be found constitutional. However given the 9th Circuit ruling previously mentioned, the possibility exists the courts may find any prohibition of solicitation on medians unconstitutional due to the existence of the more applicable A.R.S. section 13-2906, "Obstructing a Public Thoroughfare".
Community Benefits and Considerations:
Adoption of this ordinance will provide a tool for law enforcement when concerns are received by citizens regarding aggressive solicitation, or from business owners who have concerns about loitering in proximity of commercial institutions.
Community Involvement:
Inform: There have been several articles in the AZ Daily Sun in the past several months detailing the court decision regarding the repeal of ARS 2905(A)(3) and the impacts on enforcement of loitering to beg here locally. Specifically an article appeared in the Daily Sun on October 5, 2013, as well as an editorial by the Daily Sun on September 19, 2013. On January 11, 2013, the Daily Sun carried a headline story describing in detail the proposed state law banning aggressive solicitation.

Consult: The Daily Sun also carried a small story prior to the work session on 2-11-2013 where City staff provided City Council with a power point presentation seeking direction on a proposed ordinance banning aggressive solicitation. Citizens had the opportunity at this work session o speak on this issue during public forum. One citizen showed at the work session and filled out a comment card in support of the proposed ordinance. No citizens spoke on this issue at that work session.

House Bill on aggressive loitering
Power Point
Ord. 2014-09

Form Review
Inbox Reviewed By Date
City Clerk lburke 03/12/2014 03:02 PM
Legal Assistant Vicki Baker 03/12/2014 04:38 PM
Form Started By: ktreadway Started On: 02/20/2014 09:28 AM
Final Approval Date: 03/20/2014


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