Written by John Reinan, Asheville Watchdog.
The people you see on Asheville sidewalks and street corners, with sad eyes and cardboard signs, have every right to ask you for money. The First Amendment says so.
But they’ll have fewer opportunities to receive assistance, if the Asheville City Council moves ahead with proposed revisions to the city’s solicitation ordinance, often referred to as the panhandling law.
At its Aug. 22 meeting, the council is expected to discuss a revised ordinance that would restrict panhandling in the River Arts District and along Haywood Road in West Asheville.
Most dramatically, perhaps, the proposed ordinance would make it illegal for motorists to give money from their vehicles.
It’s already illegal to panhandle on roadsides and medians, although city officials acknowledge that the law is difficult to enforce and isn’t a priority for police. But the proposed changes would bar motorists from passing a buck through the window.
Under the latest proposal, the River Arts District and Haywood Road in West Asheville would be designated “high traffic zones,” joining Biltmore Village and much of downtown, which already have that designation.
In high traffic zones, panhandlers may hold signs but may not verbally ask for money. They must stay on sidewalks and can’t solicit money after dark.
Earlier this month, the town of Mars Hill adopted a similar ordinance banning intimidating panhandling and restricting the times and places panhandling can be conducted.
The Asheville council is likely to consider final passage of the revisions in two parts, according to City Attorney Brad Branham. Some technical revisions clarifying language are likely to be discussed at the council’s Sept. 12 meeting, while the ban on motorist giving and the expansion of high-traffic zones likely will wait until October.
Balancing public safety and First Amendment
In revising the panhandling law, the council’s challenge is to balance public safety with the First Amendment right to free speech because at its core, panhandling is simply one person asking another for help. That’s protected speech, according to a long series of judicial rulings.
The goal, Branham said, is to make the panhandling ordinance more precise in its language and more consistent with state law and court rulings on the topic.
The proposed revision, he said, “is targeted almost entirely at cleaning up ambiguity. These are technical or wording amendments in that they don’t change what’s on the books. It is not uncommon for us to go through from time to time and refresh things.”
One such refreshment is a prohibition against soliciting from roadway median strips. The existing law already prohibits soliciting from medians. But with panhandlers visibly at work on the medians of many heavily traveled highways in the area, the proposed revision adds language listing the prohibited activities in greater detail.
“This is something that city staff perceives as a safety hazard,” Branham said. “You really should not be in the roadway trying to interact with cars, or the median or the shoulder. We do see it as something that is a growing concern to the people engaged in this, as well as to the general public.”
City staff did not propose the ban on motorist giving. That restriction, along with the expanded high traffic zones, was added by council members in a July 25 meeting of the Environment and Safety Committee, consisting of Maggie Ullman, Sandra Kilgore and Sheneika Smith. The vote was 3-0.
Branham acknowledged that the law is unlikely to be aggressively enforced, especially given the city’s current shortage of police officers.
“The reality is, even if we had a fully staffed police department, we can’t have an officer on every corner,” he said. He said officers sometimes will flash their lights at a panhandler to encourage them to move on, but they’ll often return after the officer leaves.
Soliciting vehicles from a sidewalk would remain legal, so panhandlers at highway exit ramps presumably could continue to solicit, as long as they’re on a sidewalk and not on the roadway or median.
The revised ordinance also would clarify aggressive panhandling. Current law prohibits actions such as following people, blocking their way or touching them. The final proposal, Branham said, is likely to specify that panhandlers must remain eight feet from their intended benefactors.
The proposed revisions also crack down on panhandling at outdoor dining or merchandising areas. Current law prohibits panhandling at outdoor dining areas, but the revised ordinance makes clear that this includes not only panhandling within the areas, but also directing pleas to people inside of them.
In other words, even if a panhandler remains outside a dining area, he or she can’t solicit the people who are dining inside it. The same would hold true for outdoor markets.
“An indictment of our society”
Panhandling laws serve to mask the underlying problems that lead people to panhandle in the first place, said William Knight, litigation director of the National Homelessness Law Center in Washington, D.C.
“The whole point of these laws is to target … people we don’t want to see,” he said. “Asking for charity is no different coming from an individual than it is coming from the Salvation Army.
“We craft these [solicitation] laws for people who are socially acceptable: churches, the Salvation Army, others. There’s a long history of the poor asking for charity, and not just in the United States. And that’s a protected activity.”
Knight’s organization, along with others, won a case in U.S. District Court earlier this year challenging the constitutionality of a panhandling ordinance in Montgomery, Ala. A federal judge barred enforcement of the state’s panhandling laws, ruling that the activity is protected speech.
Public-safety arguments in favor of panhandling laws could be a more difficult challenge, Knight said, but any such laws – such as the ban on motorist giving – would have to pass “strict scrutiny.”
“We’d have to see real data on the way it impacts drivers,” he said.
Another option: No panhandling laws?
In a research paper published last year in “Cities,” an academic journal, economists Peter Leeson and R. August Hardy argued that panhandling has not been studied enough to offer a foundation for anti-panhandling laws.
“American panhandling regulation is uninformed about that which it regulates,” the authors wrote. “Our analysis suggests that existing panhandling regulations in U.S. cities may not reduce public nuisance associated with panhandlers and may even increase it.”
Some demographic data does exist. Panhandlers are most likely to be male, under age 50, and homeless. Roughly two-thirds are likely to have substance or mental health issues, according to research cited by Leeson and Hardy. But there is relatively little research on why people panhandle; without knowing more about motivation, the authors argued, regulations are shooting at an unknown target.
In fact, they wrote, restrictions in the name of public safety may drive poor people away from panhandling and into other subsistence activities such as theft and scavenging, which would impose public-safety burdens of their own.
Banning panhandling in one area also could prompt panhandlers to concentrate in other areas, leading to more aggressive solicitation in those areas as panhandlers compete for a smaller pool of targets.
More research is needed, they wrote, on “what currently is not well understood about panhandlers but must be understood for panhandling regulation to be well informed: the determinants of panhandling activities.”
Asheville Watchdog is a nonprofit news team producing stories that matter to Asheville and Buncombe County. John Reinan was a reporter for seven newspapers from Alaska to Florida. He was part of a team awarded the Pulitzer Prize for breaking news coverage at the Minneapolis Star Tribune. Email [email protected].