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HomeMy WebLinkAboutCAP 2011-11-14 Item 2A - Ordinance - Panhandling Ban in Certain AreasCity of Tukwila Jim Haggerton, Mayor INFORMATIONAL MEMORANDUM TO: Mayor Haggerton Community Affairs and Parks Committee FROM: Shelley M. Kerslake, City Attorney DATE: November 1, 2011 SUBJECT: Anti Panhandling Ordinance ISSUE Whether the City should adopt an ordinance banning solicitation in certain areas of the City. BACKGROUND The City has received numerous complaints from citizens and businesses regarding serious public harm caused by panhandlers in the City. Many panhandlers within the City approach motor vehicles. As a result of this behavior, drivers may become distracted, may stop suddenly, or may linger at traffic control devices thereby posing a significant risk of physical injury to themselves, other motorists, and pedestrians. Moreover, because public places in the Urban Center and along Tukwila International Blvd. have become increasingly congested, solicitation in those public places contributes to the loss of access to and enjoyment of public places and to a sense of fear, intimidation and disorder. This fear can adversely and unreasonably affect businesses and can contribute to the loss of access to and enjoyment of public places. Another identified problem is panhandling near automated teller machines. Solicitation in these areas make those persons being solicited especially vulnerable to crime because of the isolated location, limited options to protect themselves by leaving the area, and exposure as persons who may be carrying cash. Similarly, solicitation at outdoor eating establishments can cause disruption and interfere with patrons' enjoyment of an eating establishment. Given these issues, the Mayor has asked the City Attorney's Office to draft an ordinance for Council's consideration to address these issues within the City. DISCUSSION The regulation of solicitation can impact an individual's right to free speech; thus, care should be taken when crafting such regulations. The First Amendment provides that "Congress shall make no law abridging the freedom of speech As a general matter, asking others to pay or contribute money is recognized as speech protected by the First Amendment.' Furthermore, a sidewalk, the place where much of panhandling activity occurs, is considered a public forum and is therefore associated with the permissible expressive activity. When dealing with traditional public forums, the First Amendment sharply curtails the government's ability to restrict expressive conduct. As a result, laws designed to prohibit all panhandling have been struck down as violating the First Amendment.' Roulette v. City of Seattle, 850 F.Supp. 1442, 1451 (WDWA, 1994). 2 Loper v. New York City Police Dept., 999 F.2d 699 (2" d Cir., 1993). INFORMATIONAL MEMO Page 2 With that being said, the First Amendment does not guarantee the right to communicate one's views at all times and places or in any manner desired. A state or city may impose reasonable time, place, and manner restrictions upon all expression, whether written, oral or symbolized by conduct. Such restrictions are valid if they (1) are content neutral, (2) are narrowly tailored to serve a significant government interest (under state law, the interest would have to be compelling ),3 and (3) leave open ample alternative channels of communication. As a result, laws have been found to be constitutional when they focus on the context and method of the begging, especially on the level of threat that is perceived and the intent of the panhandler. Ideally, any response to panhandling will be tailored to local circumstances and each response justified by reliable analysis. When regulating panhandling, it should be remembered that it is difficult to distinguish panhandling from solicitations for recognized legitimate charities, both legally and factually. With this framework in mind, the ordinance was drafted to leave parts of the City open for solicitation activity. In addition, an exemption was included to account for the annual charitable solicitations that occur at the intersection of Andover Park West and Strander Blvd. In order for this exemption to withstand scrutiny, it must apply equally to all forms of solicitation. RECOMMENDATION The Council is being asked to consider this item at the November 28, 2011 Committee of the Whole meeting and subsequent December 5, 2011 Regular Meeting. ATTACHMENTS Draft Ordinance Area Map 3 The First Amendment provides that "Congress shall make no law abridging the freedom of speech Article 1, section 5 of the Washington Constitution provides that "[e]very person may freely speak, write and publish on all subjects, being responsible for the abuse of that right." As yet, the courts have not enunciated a separate and independent State doctrine for analyzing restrictions under Washington's constitution. The free speech clauses of the state and federal constitutions are different in wording and effect. Despite this, restrictions on speech can be imposed consistent with Article 1, section 5 upon showing a compelling state or city interest. In most cases, the court's analysis of a manner restriction under federal law will usually lead to the same conclusion under our state constitution, and for the same reasons. WA2011 Info Memos- CouncilTanhandling Info Memo.doc 2 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF TUKWILA, WASHINGTON, ESTABLISHING NEW REGULATIONS RELATED TO SOLICITING IN CERTAIN AREAS, TO BE CODIFIED IN TUKWILA MUNICIPAL CODE CHAPTER 8.29; PROVIDING FOR SEVERABILITY; AND ESTABLISHING AN EFFECTIVE DATE. WHEREAS, the City Council finds that soliciting in certain places and circumstances has a detrimental effect on the creation of a safe environment in the City; and WHEREAS, there is an increase in solicitation in the City, specifically along Tukwila International Boulevard, in the Tukwila Urban Center, along on- and off -ramps and other public right -of -way, and at automated teller machines and outdoor patios that interfere with or potentially jeopardize the safety of citizens and pedestrians or vehicular traffic; and WHEREAS, the current provisions of the Tukwila Municipal Code do not regulate solicitation activity that involves safety concerns for people and vehicular traffic; and WHEREAS, it is appropriate to regulate soliciting in certain areas and under certain circumstances to assist law enforcement officials in protecting the public health, welfare, and safety of citizens; and WHEREAS, the City Council believes it is important to protect citizens from the fear and intimidation accompanying certain kinds of solicitation, to promote tourism and business, and to preserve the quality of urban life, while providing safe and appropriate venues for this constitutionally protected activity NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF TUKWILA, WASHINGTON, HEREBY ORDAINS AS FOLLOWS: Section 1. Regulations Established. Tukwila Municipal Code (TMC) Chapter 8.29, "Soliciting in Certain Areas Prohibited," is hereby established to read as follows: W: Word Processing \Ordinances \Soliciting prohibited in certain areas 11 -3 -11 SK:bjs Page 1 of 4 3 CHAPTER 8.29 SOLICITING IN CERTAIN AREAS PROHIBITED Sections: 8.29.010 Purpose 8.29.020 Definitions 8.29.030 Soliciting prohibited 8.29.040 Exemption 8.29.050 Penalty for violation Section 2. TMC Section 8.29.010 is hereby established to read as follows: 8.29.010 Purpose. The purpose of this chapter is to provide for the free flow of pedestrian and vehicular traffic on streets and sidewalks in the City, to promote tourism and business, and to preserve the quality of urban life. Solicitation in proximity to automated teller machines and outdoor patios where food and beverage are served is inherently intimidating and should be restricted. By this legislation, the City Council intends to promote the health, safety, and welfare of the citizens of and visitors to the City of Tukwila. Section 3. TMC Section 8.29.020 is hereby established to read as follows: 8.29.020 Definitions. For the purposes of this chapter, the following words and phrases shall have the meaning ascribed to them in this section: 1. "Automated teller machine" means a device linked to a financial institution's account records that is able to carry out transactions including, but not limited to, account transfers, deposits, cash withdrawals, balance inquiries, and mortgage and loan payments. 2. "Automated teller machine facility' means the area comprised of one or more automated teller machines, and any adjacent space that is made available to banking customers after regular banking hours. 3. "Prohibited zones" means the following areas (see Figure 1): a. Tukwila International Boulevard: 1) Northern Boundary: S. 139 St. on the east side of Tukwila International Boulevard and S. 140 St. on the west side of Tukwila International Boulevard. 2) Eastern Boundary: 42 Ave. S. from S. 139 St. to Southcenter Blvd., continuing to the west along Southcenter Blvd. to the eastern property line of the Tukwila Link Light Rail Station property, and continuing to the south along the east property line of the Tukwila Link Light Rail Station property to the SR 518 right -of -way. 3) Southern Boundary: SR 518 along the length corresponding/ parallel to the Tukwila Link Light Rail Station. W: Word Processing \Ordinances \Soliciting prohibited in certain areas 11 -3 -11 SK:bjs Page 2 of 4 El 4) Western Boundary: The western boundary of the Tukwila Link Light Rail Station property continuing to the north along International Blvd. to S. 152 St., continuing to the west along S. 152 St. to Military Rd. S., continuing to the north along Military Rd. S. to 34 Ave. S., continuing to the north along 34 Ave. S. to S. 144 St., continuing to the east along S. 144 St. to 37 Ave. S., continuing to the north along 37 Ave. S. to S. 140 St., continuing to the east along S. 140 St. to Tukwila International Boulevard, and continuing to the north along Tukwila International Boulevard to S. 139 St. b. Tukwila Urban Center: The area bounded by Southcenter Blvd. on the north, West Valley Highway on the east, S. 180 St. and S. 178 St. on the south, and 1 -5 and Klickitat Dr. /51 Ave. S. on the west (including all on -ramps and off -ramps to 1 -5, 1 -405, and SR 518). 4. "Public right-of-way' means, without limitation, public streets, state routes and interstate highways (including, but not limited to on- and off ramps), sidewalks, alleys, and driveways. 5. "Solicit', "soliciting" and "solicitation" mean, without limitation, use of the spoken, written, or printed word, or to perform such other acts or bodily gestures, to further the purpose of immediately obtaining money or any other thing of value. Section 4. TMC Section 8.29.030 is hereby established to read as follows: 8.29.030 Soliciting prohibited. It shall be unlawful for any person to solicit: 1. From any occupant of a motor vehicle that is on a public right -of -way; 2. Within the prohibited zones, 3. Within 20 feet of an outdoor patio where food and /or drinks are served; or 4. Within 20 feet of an automated teller machine or an entrance or exit to an automated teller machine facility during the time the automated teller machine is available for customer use. Section 5. TMC Section 8.29.040 is hereby established to read as follows: 8.29.040 Exemption. It shall not be unlawful to engage in solicitation from any occupant of a motor vehicle that is on a public right -of -way at the intersection of Strander Blvd. and Andover Park West on the 3 rd Saturday in August and the 4 th Saturday in September. W: Word Process ing \Ordinances \Soliciting prohibited in certain areas 11 -3 -11 SK:bjs Page 3 of 4 5 Section 6. TMC Section 8.29.050 is hereby established to read as follows: 8.29.050 Penalty for violation. Violation of any terms of this chapter shall constitute a misdemeanor, and any person convicted of such offense shall be punished by a fine of up to $1,000 and /or imprisonment for a term not to exceed 180 days. Section 7. Corrections by City Clerk or Code Reviser. Upon approval of the City Attorney, the City Clerk and the code reviser are authorized to make necessary corrections to this ordinance, including the correction of clerical errors; references to other local, state or federal laws, codes, rules, or regulations; or ordinance numbering and section /subsection numbering. Section 8. Severability. If any section, subsection, paragraph, sentence, clause or phrase of this ordinance or its application to any person or situation should be held to be invalid or unconstitutional for any reason by a court of competent jurisdiction, such invalidity or unconstitutionality shall not affect the validity or constitutionality of the remaining portions of this ordinance or its application to any other person or situation. Section 9. Effective Date. This ordinance or a summary thereof shall be published in the official newspaper of the City, and shall take effect and be in full force five days after passage and publication as provided by law. PASSED BY THE CITY COUNCIL OF THE CITY OF TUKWILA, WASHINGTON, at a Regular Meeting thereof this day of 2011. ATTEST /AUTHENTICATED: Christy O'Flaherty, CMC, City Clerk Jim Haggerton, Mayor APPROVED AS TO FORM BY: Filed with the City Clerk: Passed by the City Council: Published: Effective Date: Shelley M. Kerslake, City Attorney Ordinance Number: Attachment: Figure 1, "No Panhandling" Areas W: Word Processing \Ordinances \Soliciting prohibited in certain areas 11 -3 -11 SK:bjs Page 4 of 4 X S 137th St F S 139th St 9140th S y t 5 14 0 t hS _1141 it Y 1 t- a' S =142nd St 1�� S 143rd COO S 144th St u, St Cl) St i a 46th St j f �Y Cn Cq —S 148th St a S 149th St ,�I CL ;zg x S 150th St S 1513t St :L dy ♦i Southce+tter,8ly d j S 5 2nd P1 S 156th St a 518 3 e�x t `•''i r i t .ice 2 S 158th �r •i ­-7- on L fj z .sP 4 3 S 160th St 159th St j. 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