County Takes a Shot at Panhandlers – and Misses

Update: The County Commission passed the ordinance at its meeting on June 23rd. Here’s the pdf of the agenda item:
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panhandler
The Palm Beach County Commission is getting closer to an ordinance that would ban panhandlers and others from standing in roadway medians. On the agenda for May 19th is a “preliminary reading” of the proposed ordinance. The full ordinance is at the bottom of this article.
We’ve taken a thorough look at the proposal. It’s a good try but falls short of what’s needed. There are two key sections that matter the most. First is the “Prohibitions” – what’s going to be made illegal:
prohibitions
In short it will be illegal for people to go on the “road” to display information, distribute materials or goods, or solicit business or charitable contributions.
The second key detail is in the definition of what’s a road:
definitions
The definition includes medians and traffic islands, which is where we mostly see panhandlers and others who might create traffic hazards.
This proposal has some things right but it also has some misses. For one thing it does nothing about people panhandling or otherwise disturbing traffic from sidewalks. While panhandlers will probably move from the medians, they’ll just go to the corners. That’s an improvement but it’s not a complete solution.
It also does nothing about someone who might stand in the median with no apparent purpose. This creates a problem for prosecutors who will have to prove that the defendant was engaged in one of the prohibited purposes. It may not be easy to prove that.
Back in October we wrote about how the City of Boca Raton deals with this, and at the bottom in an update we added a court decision that showed how Pembroke Pines does it. The Pembroke Pines approach included sidewalks and any other area within 200 feet of intersections.
The other thing Pembroke Pines did right, and this new proposal appears to get wrong, relates to a legal and constitutional concept called narrow tailoring. First, their ordinance focused on “right of way canvassers and solicitors”:

any person who sells or offers for sale any thing or service of any kind, or who seeks any donation of any kind, or who personally hands or seeks to transmit by hand or receive by hand any thing or service of any kind, whether or not payment in exchange is required or requested, to any person who operates or occupies a motor vehicle or any kind

It specifically exempted the mere display of information:

The term shall not apply to any person who merely holds or displays a sign lawfully permitted to be displayed by a person as long as there is no entry by such person or sign into any portion of the roadway or its median.

The Pembroke Pines ordinance was also limited to specific intersections which amounted to less than 10% of the city’s roadways. As the court put it in that case:

[T]he Ordinance is narrowly tailored …. It regulates only canvassing and soliciting, and it does so with regard to only six of the City’s roadways, or less than 10% of the City’s public roads. Significantly, only after “City staff analyzed each of the major roads within its jurisdiction” did the City identify the six streets “where canvassers could pose a particularly increased danger on traffic flow, driver safety and safety of the canvasser.”

doingitwrong
It would have required some work, but the county could have followed Pembroke Pines by identifying specific intersections where pedestrians are at greatest risk and limiting the ordinance to those intersections. No one is worried about this problem at Glades and Cain, or at 441 and Atlantic. But there have been numerous accidents with pedestrian fatalities at key intersections on 441 including Sandalfoot and SW 18th, and we have personally observed pedestrians creating traffic problems at Glades and 441.
Based on these weaknesses, it is likely that the ordinance will be challenged on constitutional grounds and the county will lose. As taxpayers we will waste a lot of money on lawyers, knowing that we’re going to lose. And as residents we will continue to face traffic safety issues caused by this problem. More pedestrians will die because our county commission is getting it wrong.
It’s frustrating because I tried to get our commissioners and the county attorney’s office to at least read the Pembroke Pines decision. See my two e-mails below:
e-mail-11-20
e-mail-feb-27
If all goes according to plan the hearing would be set for June 23, 2015. If it passes it will then take a month or two before deputies get the word out and really start enforcing it. And then within a year we should see constitutional challenges to the ordinances.
The full proposed ordinance is below.
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Panhandling: How the City of Boca Raton Does It

Update: At bottom we’ve posted a federal case that upheld Pembroke Pines’ ordinance against panhandling and similar behavior.
sexy-panhandler
In our recent article on panhandlers, a lot of readers have asked why we don’t see them in the city of Boca Raton. The city adopted specific ordinances to deal with the problem, and not just panhandlers.
First, there’s an ordinance about soliciting on streets:

Sec. 16-3. – Soliciting, collecting, etc., upon streets.
No person shall stand or walk on the paved portion of any right-of-way, except sidewalks and bike paths, or in any paved or unpaved median strip of any street, road or highway in the city for any of the following purposes:
(a) Soliciting donations of money or of property of any kind for charitable, religious, educational, benevolent or any other purposes from the occupant of any motor vehicle;
(b) Collecting donations of money or of property of any kind for charitable, religious, educational, benevolent or any other purposes from the occupant of any motor vehicle;
(c) Soliciting the purchase of property or of services of any nature whatsoever by the occupant of any motor vehicle;
(d)Selling property or services of any nature whatsoever to the occupant of any motor vehicle.
(Code 1966, § 21-82; Ord. No. 5132, § 2, 4-27-10)

Note that it allows sidewalks and bike paths. This is important from a constitutional perspective because it fits under “time, place and manner” restrictions. Also note that it does not discriminate based on the type of solicitation. That also helps make it constitutional in that it’s not based on the content of the person’s “speech” (solicitation being a form of speech).
Panhandler-wiki
Second, they created an exception to the rule for “special events,” requiring a permit:

Sec. 8-160. – Special event permit to solicit funds, donations, etc.—Required.
It shall be unlawful for any person to conduct a special event, solicit funds or donations of money or of property of any kind for charitable or benevolent purposes without first obtaining a special event permit from the city and payment of the fee specified in the Boca Raton Municipal Facilities and Services User Fee Schedule. A special event is defined as any meeting, activity, gathering, or group of persons, animals, or vehicles, or a combination thereof, having a common purpose, design or goal, upon any public facility, street, sidewalk, alley, park, or other place or building where the special event substantially inhibits the usual flow of pedestrian or vehicular traffic or which occupies any area or building generally open to the public and preempts use by the general public. A special event shall include but not be limited to a festival, carnival, concert, parade, walk, race, fund-raising sale and similar gatherings.
(Code 1966, § 16-24; Ord. No. 4533, § 3, 9-12-00)

The exception includes an application process in Section 8-161 and 8-162. It requires proof of various things such as that the person is genuinely employed by a genuine charitable organization.
Our county elected officials are hiding behind the false idea that they can’t stop panhandlers and others from creating traffic hazards because of constitutional limitations. Most of our readers figured out this was phony because they see that the problem is far less in cities like Boca Raton. The way Boca Raton does it shows how it can be done if our county commissioners want to do it.
For now at least it’s apparent that they don’t. We specifically asked Commissioners Berger and Abrams (who represent West Boca) and they have not responded, instead hiding behind the County Attorney. In light of the County Attorney’s response, we have again asked them and they have so far not responded.
Please note that Commissioner Abrams faces challenger Andy O’Brien in the election going on right now. We will ask Mr. O’Brien if he has a position on the issue.
Update: A reader sent us this case from the federal court that covers South Florida, regarding this issue in Pembroke Pines. The court ruled in favor of the city’s ordinance restricting panhandling and similar behavior.
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