4. Ordinance 1729 - Panhandling - 1st ReadingCity of Kalispell
Charles A. Harball Office of City Attorney
City Attorney 201 First Avenue East
P.O. Box 1997
Kalispell, MT 59903-1997
TO: Doug Russell, City Manager
FROM: Charles Harball, City Attorney
Tel 406.758.7709
Fax 406.758.7771
charball@kalispell.com
SUBJECT: Ordinance No. 1729 — Regulation of Panhandling
MEETING DATE: July 1, 2013 — Regular Council Meeting — First Reading
BACKGROUND: Kalispell Municipal Ordinances do not adequately regulate the act of
panhandling in the City of Kalispell. The existing city codes address vagrancy and
loitering in a fashion that the courts have found to be unconstitutional and have
therefore not been enforced by the City for many years. These codes should be repealed
and replaced with legislation that properly addresses the safety concerns caused by
certain panhandling activities.
Although the Kalispell City Council should recognize the rights of individuals to exercise
their free speech and to reasonably solicit financial assistance from others it should also
consider that certain panhandling behaviors may infringe on the rights of others not to
be unreasonably confronted or that some behaviors create hazardous conditions that
compromise the safety of the public. It is only these behaviors that are targeted in the
proposed Ordinance No. 1729.
RECOMMENDATION: It is recommended that Council pass Ordinance No. 1729 on
first reading to correct outdated municipal codes currently on the books that fail to meet
constitutional standards and to address the public safety concerns caused by certain
panhandling activities.
FISCAL EFFECTS: None
Respectfully submitted,
Charles a , ity At rney
ORDINANCE NO.1729
AN ORDINANCE AMENDING THE CITY OF KALISPELL MUNICIPAL CODE
REGARDING CERTAIN RESTRICTIONS ON THE ACT OF PANHANDLING TO BE
CODIFIED AT CHAPTER 19, DECLARING AN EFFECTIVE DATE, AND
AUTHORIZING THE CITY ATTORNEY TO CODIFY THE SAME.
WHEREAS, the Kalispell Municipal Ordinances do not currently regulate the act of
panhandling in the City of Kalispell; and
WHEREAS, the Kalispell City Council recognizes the rights of individuals to exercise their
free speech and to reasonably solicit financial assistance from others; and
WHEREAS, the Kalispell City Council finds that certain acts by individuals soliciting financial
assistance from others may infringe on the rights of others not to be unreasonably
confronted or may create hazardous conditions that compromise the safety of the
public; and
WHEREAS, it is therefore in the best interests of the public health and safety of the City and
its residents to amend the Municipal Code to regulate the act of panhandling in
the City.
NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF
KALISPELL AS FOLLOWS:
SECTION I. The City of Kalispell Municipal Code codified at Chapter 19 of the
Code is hereby amended as set forth in Exhibit "A", attached
hereto and incorporated fully herein by this reference.
SECTION H. The City Attorney is hereby authorized and directed to recodify
this Ordinance.
SECTION III. This Ordinance shall take effect thirty (30) days after its final
passage.
PASSED AND APPROVED BY THE CITY COUNCIL AND SIGNED BY THE MAYOR OF
THE CITY OF KALISPELL THIS DAY OF .2013.
Tammi Fisher
Mayor
ATTEST:
Theresa White
City Clerk
Exhibit "A"
MI
19-19 Certain Acts of Panhandling Prohibited
(A) Definitions: Panhandling
"Panhandling," for the purpose of this chanter, is anv solicitation made in person reauestina an
immediate donation of money or other thing of value. 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. So lop as s the
solicitor is not within fifty feet of a city street or highway, 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.
(B) Time of Panhandling_ Any person who panhandles after sunset or before sunrise is guilty of a
misdemeanor.
(C) Place of Panhandling. Any person who panhandles when the person solicited is in an off the
following places is guilty of a misdemeanor:
1) Within fifty feet of any bus stop;
2) In any public transportation vehicle;
3) In any vehicle on the street or highway,
4) Within fifty feet of any street or highway intersection;
5) Within fifty feet in any direction of an automated teller machine;
6) 4n private property, unless the solicitor has, in his or her possession, permission from the
owner or occupant.
(D) Manner of Panhandling. Any person who panhandles in any of the following manners is
guilty of a misdemeanor:
1) B cog within three feet of the person solicited, until that person has indicated that he
does wish to make a donation;
2) By blocking the path of the person solicited along a sidewalk or street;
3) By following a person who walks away from the ,panhandler;
4) By using profane or abusive language, either during the solicitation or following a refusal-,
5) By panhandling in a group of two or more persons; or
6) By any statement, gesture, or other communication which a reasonable person in the situation
19-19 Certain Acts of Panhandling Prohibited
(A) Definitions: Panhandling
"Panhandling," for the purpose of this chanter, is anv solicitation made in person reauestina an
immediate donation of money or other thing of value. 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. So lop as s the
solicitor is not within fifty feet of a city street or highway, 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.
(B) Time of Panhandling_ Any person who panhandles after sunset or before sunrise is guilty of a
misdemeanor.
(C) Place of Panhandling. Any person who panhandles when the person solicited is in an off the
following places is guilty of a misdemeanor:
1) Within fifty feet of any bus stop;
2) In any public transportation vehicle;
3) In any vehicle on the street or highway,
4) Within fifty feet of any street or highway intersection;
5) Within fifty feet in any direction of an automated teller machine;
6) 4n private property, unless the solicitor has, in his or her possession, permission from the
owner or occupant.
(D) Manner of Panhandling. Any person who panhandles in any of the following manners is
guilty of a misdemeanor:
1) B cog within three feet of the person solicited, until that person has indicated that he
does wish to make a donation;
2) By blocking the path of the person solicited along a sidewalk or street;
3) By following a person who walks away from the ,panhandler;
4) By using profane or abusive language, either during the solicitation or following a refusal-,
5) By panhandling in a group of two or more persons; or
6) By any statement, gesture, or other communication which a reasonable person in the situation
of the person solicited would Perceive to be a threat.
E) False or Misleading Solicitation.
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) Misrepresenting that the solicitor is an active or former member of the military service;
5) Use of any makeup or device to simulate any deformity; or
6) Stating that the solicitor is homeless, when he is not.
(F) Penalty. Any person convicted of the violation of any of the provisions of this section shall
be punished as provided in Section 1-9 of this Code.
19 33 V.,n.,ant
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Permit requirements that may be added to ordinance if the Council so desires.
(F) Permit Required.
1) No person shall panhandle on three 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.
2) 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.
3) 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 (D) or (E) 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_
4) 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 rem
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.
5) Any person who makes any false or misleading representation while applying for a permit
under this section is uilty of a misdemeanor. Upon conviction of violation of this
subdivision, the police department shall revoke any permit issued to the defendant under this
section.
6) 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.
Theresa White
UNION
From: Kim Vierra [kim — vierra@yahoo.com]
Sent: Monday, May 27, 2013 5:23 PM
To: Theresa White
Subject: Panhandling problem
Dear City of Kalispell,
I am appalled at the number of pan handlers all over the city of Kalispell.They seem to be on EVERY corner, in
front of every large box store, and everywhere in between.1 HAVE SEEN MORE THAN ONE LEAVE, IN A
NICER, NEWER VEHICLE THAN I DRIVE.They block sidewalks, and intimidate people. What kind of a first
impression does this give to tourists, not to mention an eyesore for us residents.1 have called the police voicing
my concern, and they basically tell me that their hands are tied, and they cannot do anything.
I am hoping you will develop a pan handling ordinance, to take care of this problem.
Thank yo.ti
Sincerely,
Kim Vierra
Kalispell Montana
L
*rt KALUSP-E
1 � •/ 11111 MIIIiW1YYi.rlia�r/iYiiYYifY�Ybib
HEALTHCARE 310
su nyview Lane, Katispett, MT 59901 1 752-5111 f www.NWHC.orgI
Kalispell Police Chief Roger Nasset
PO Box 1997
Kalispell, MT 59903
June 3, 2013
Chief Nasset,
I am writing in support of the new ordinance under consideration by the City of Kalispell that would improve
safety related to panhandling in our community.
It -'has been my observation over the past few years that there has been a significant increase in the number of
people standing in or adjacent to streets in our community requesting money from passersby. Some of those
individuals have endangered themselves and have interrupted the safe flow of traffic by aggressively soliciting
drivers at or near intersections near our facility.
It is my opinion that this ordinance will improve safety by providing a buffer from intersections and better
clarifying where those activities can occur. We appreciate the City's consideration of this ordinance and its
ability to improve safety outcomes related to this activity.
Thanks as always for the great service you provide
Regards,
Frank Garner
Chief of Security
Kalispell Regional Healthcare
310 Sunnyview Lane
Kalispell, MT 59901
Theresa it
From: Ms Onery [msonre@hotmaii.com]
Sent: Friday, June 21, 2013 8:36 AM
To: Theresa White
Subject: Begging in city limits
Dear City Council:
Why are we considering rules and permits for begging in city limits? Why can't we just say. NO BEGGING. No
one I know likes to be approached for money. I certainly do not like it.
Samaritan House and Ray of Hope do a great job of helping the down on your luck people. But, there is always
that breed I call Hobo. That will never work a job or seek a "normal" life. We want these people to move out
of this area and soon.
Sincerely,
Angela Fisher
Angela's Pizza
Jim Cossltt
jim.cossitt@yahoo.com
(406) 260-6969
I
MEMORANDUM
To: Kalispell Mayor and City Council
From; James H Cossitt
Re s Panhandle Ordinance * 1729
Date: July 1, 2013
1231 6th Street W
Kalispell MT 59901
www.cossittlaw.com
I appear this evening to voice concerns about the proposed panhandling
ordinance,
IS THE ORDINANCE REALLY ADDRESSED TO A PUBLIC CONCERN OR IS THE
CITY LEGISLATIVE PROCESS BEING CO-OPTED TO DO ENFORCE THE WHIMS OF
SOME PRIVATE ENTITY ? WHAT ARE THE LOCAL POLITICAL CONNECTIONS
AND ETHICAL IMPLICATIONS ? The Sunday June 9, 2013 Interlake reported:
Former Kalispell Police Chief Frank Garner, who now works as chief of security for Kalispell Regional
Healthcare, wrote to current Police Chief Roger Nasset about his concerns.
"It has been my observation over the past few years that there has been a significant increase in the number
of people standing in or adjacent to streets in our community requesting money from passersby," Garner
wrote. "Some of those individuals have endangered themselves and have interrupted the safe flow of traffic
by aggressively soliciting drivers at or near intersections near our [medical] facility. It is my opinion that this
ordinance will improve safety by providing a buffer from intersections and better clarifying where those
activities can occur."
So what is really going on here ? Some executive at KRMC did not like to see the
homeless when they drive their car in and out of the KRMC complex ? The KRMC
executive gets Frank, the former chief, to write the current chief, and now we have a
public safety problem that warrants a new law ? The mayor apparently does work for
KRMC and, in accordance with the appearance of impropriety standard in the recently
adopted ethics policy, she should advise the public and other members of the council as
to what contact she has had with anyone at KRMC with respect to passage of this
Board Certified, Business & Consumer Bankruptcy Law
z Bankruptcy & Workouts; Business & Commercial Litigation
`'' Real Estate, Landlord/Tenant & Construction Law
0
To.
Kalispell Mayor and City Council
From®
James H Cossitt
Re
Panhandle Ordinance # 1729
Date.
July 1, 2013
Page 2
ordinance, including the date, time, place, method of contact and the contact of all such
contacts, if any. Other council members should do the same.
Frankly, this thing looks like some executive at a well-connected major local employer
bought some access to the City (Frank, the former Chief and perhaps Tammy, the
current mayor) and has or is now adopting a strategy of letting the city do it's bidding.
1 0
Rather than the normal remedy of a private litigant, go to court and 'incur the cost and
risk to obtain an 'injunction, just hire the current and former wheels of government to
accomplish your goals and transfer the cost to the tax payers.
THE HARBALL MEMO: Right to not be unreasonably confronted .9 Where does that
one come from ?. We live 'in a democracy with a Bill of Rights - not a police state or a
nanny state. I don't care to be confronted by the anti -abortion crowd on north Meridian
'f safety is the ' - 1 issues, shouldn't they be 50 feet from a street or highway
6
19-19-AG Definition: So 'is the purchase of Rotary Club tickets fromq,_
private party within 50 feet of a street panhandling
If a person is more than 50 feet from a street or highway, they are likely on private
0
[�,roperty. This thing is an outright ban masquerading as a regulation.
19-19(B): What is the public safety issue with sundown or after dark .9
19-19(C)I-b 1) Why 50 feet from a bus stop ? The safety 'issue is 9
4)
5) You know, in Huaraz Peru, there are uniformed military near the
ATM's car 'rying, automatic weapons.
19-19(1)): OK, if they come to my office for a donation, and are within 3 feet of me,
they are criminals .9
19-19(E)a- Is the worst. Not tied into public safety or confrontation in any manne
Simply regulations of content of speech. I
1) How are we going to determine this? We are going to litigate "specific
need" and "sufficient funds" .9
2) Ditto this one — litigate "need that does not exist" .9
To:
Kalispell Mayor and City Council
From:
James H Cossitt
Re:
Panhandle Ordinance # IL729
Date-,
July 1, 2013
Page 3
Howis this stuff going to be enforced out 'in the field ?, How will an oAicer make a
probable cause determination of the matters in 19-19(E) ?
This thing is blatant economic discrimination by the middle and upper middle class
against the less fortunate. It is an attack on the rights to move freely in public places,
assemble and speak.
Thank you for your assistance.
C:\Users\jhc\Documents\JHC\City\Panhandle\2013-07-01 - Memo KCC panhandle.doex
Revised 7/1/13 JHC
Homeless Are V.tghting Back in Court Against Panhandling Bans - NYTimes.com
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Homeless Are Fighting Back Against Panhandling Bans
Matthew Staver for The New York Times
Dimples, left, and Turtle Dean panhandled on Thursday in downtown Colorado Springs.
By DAN FROSCH
Published: October 5, 2012
COLORADO SPRINGS — Panhandlers, with their crumpled signs,
coffee cups and pleas, are as customary a sight in many American
towns and cities as Starbucks or McDonald's. But for one Utah
homeless man, the right to ask people for money has become a
personal legal crusade.
Steve Ray Evans, who uses a sign to
Connect With ask drivers for money, has been
Us on Twitter
Follow successfully suing Utah cities that
@NYTNational for have cited him for panhandling,
breaking news and
headlines. arguing that his right to free speech is
Twitter List: Reporters and Editors being violated by a state statute that
Ct�, Enlarge This Image bans soliciting near roadways.
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"This is my only source of income," said Mr. Evans, 54,
whose sign reads "Starving Please Help!" "I do it for
survival purposes. I feel as though a lot of other
individuals depend on it, too."
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Mr. Evans said he had received more than 50 panhandling 6. ROSS DOUTHAT
Mike Terry for The New York Times citations, and cases like his have become increasingly Democrats Get a Gift From the Roberts
Steve Ray Evans, in Salt Lake City Court
http://www.nytimes.com/20l 2/10/O6/uslhomeless-are-fighting-back-in-court-against-panhandling-bans.html?_r=0 [7/1 /2013 18:10:44]
Homeless Are Fighting Back in Court Against Panhandling Bans - NYTimes.com
has successfully sued Utah cities over common of late. With the downturn in the economy, cities
panhandling citations, arguing that his across the country have been cracking down on an
right to free speech is being violated.
apparent rise in aggressive panhandling, while advocates
for the homeless and civil liberties groups contend that
sweeping bans on begging go too far.
T, P Center Homelessness �� �s a According to � b the National _aw Ce to on o ele��ne� and Poverty that
examined 188 cities, there was a 7 percent increase in prohibitions on begging or
panhandling between 20o9 and 2011.
"Our sense is that cities are responding to the increasing number of chronically or visibly
homeless people due to the economic crisis," said Heather Maria Johnson, a civil rights
lawyer for the group. "Rather than addressing the issue of homelessness, they are
adapting measures that move homeless people out of downtowns, tourist areas or even
out of a city."
Case law on the issue has varied over the years, and local panhandling laws differ widely.
But several recent legal decisions have favored the homeless.
Last January, after Mr. Evans's initial lawsuit, Salt Lake City agreed to stop enforcing
the state statute.
But Utah fought the suit, arguing that panhandling near roads was dangerous. A federal
judge sided with Mr. Evans in March, ruling that the statute was unconstitutional. In
June, the City of Draper agreed to stop enforcing the ordinance after Mr. Evans filed suit
there as well.
After a lawsuit filed by a homeless man and a disabled veteran who were arrested on
panhandling charges in Grand Rapids, Mich., a federal judge ruled in August that the
state's blanket ban on public begging also violated the First Amendment. Michigan's
attorney general, Bill Schuette, has appealed, arguing that begging is not protected
speech.
In many cases, the dispute over panhandling centers on whether a city's efforts to
criminalize aggressive begging to protect pedestrians and businesses ends up
overreaching.
After the Northern California city of Arcata passed an ordinance banning panhandling in
201o, a local resident, Richard Salzman, sued in State Superior Court in Humboldt
County.
Mr. Salzman, 53, an agent for commercial illustrators, said he had no problem with
Arcata's efforts to curb aggressive panhandling. But he objected to the city — long known
for its liberal leanings — also mohibitimZ nanhandlinz that was not necessarily
threatening on its face, like merely asking for money within 20 feet of the entrance to a
store or restaurant.
"I don't know how much more passive you can be than standing there silently holding a
sign," he said. "This is a slippery slope we don't want to go down."
Last month, Judge Dale A. Reinholtsen ruled that Arcata's law was indeed too broad and
struck down most provisions that prohibited all panhandling in specific locations.
In Colorado Springs, city officials are weighing a panhandling ban for a commercial
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http://www.nytimes. com/2012/10/O6/uslhomeless-are-fighting-back-in-court-against-panhandling-ban s.html?_r=0 [7/1 /2013 18:10:441
Homeless Are 'glyting Back in Court Against Panhandling Bans - NYTimes.com
y,
section of downtown, after merchants complained that begging was interfering with
business..
"What they have told us is that the persistent sort of solicitation by people who just camp
out in front of stores every day downtown has really discouraged tourists, shoppers and
families from corning downtown," said City Attorney Chris Melcher.
Mr. Melcher acknowledged that there could well be a legal challenge if the ordinance is
approved. But he said the city, which already bans aggressive panhandling, was
committed to drafting a law that would avoid prohibiting lawful speech.
On a blustery Thursday morning in Colorado Springs, Turtle Dean, a 36-year-old
homeless man, said that he did not think the proposed ban was fair.
"I only ask for money for stuff that I need to survive. Clothes and food," said Mr. Dean,
who panhandles downtown and vowed to continue begging, ban or not.
The most recent suit by Mr. Evans, who is being represented by a lawyer with the Utah
Civil Rights and Liberties Foundation, was filed last month against the City of American
Fork, where he was recently cited for panhandling.
While city officials consider whether to fight the suit, American Fork has agreed not to
pursue the charges against him for now and to temporarily stop enforcing the statute.
Mayor Jaynes H. Hadfield said Mr. Evans had been cited because he was panhandling in
a construction zone and people had complained.
"I have nothing against Mr. Evans or people who do these types of activities and use
common sense," he said. "we react to people's complaints. we are not on a witch hunt."
A version of this article appeared in print on October 6, 2012, on page Al2 of the ti�low York edition with the headline-.
t-iorneloss Are Fighting Back Against Panhandling Bans,
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http://www.nytimes.com/20l 2/10/O6/uslhomeless-are-fighting-back-in-court-against-panhandling-bans.html?_r=0 [7/1 /2013 18:10:44]