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HomeMy WebLinkAboutAmend Chapter 13, addition of New Article 2 Entitled Panhandling and Solicitation RegulationsORDINANCE No. Passed by the Common Council of the Ciry of South Bend, Indiana November 26, 01 20 Attest: Attest: Presented by me to the Mayor of the Ciry of South Bend, Indiana NnvPmhPr ~7, 20 01 Ciry Clerk President of Common Council City Clerk Approved and signed by me November 27, 20 01 Mayor Ordinance No. _12 ~ 1 ~d AN ORDINANCE OF THE COMMON COUNCIL OF THE CITY OF SOUTH BEND, INDIANA, AMENDING CHAPTER 13 OF THE SOUTH BEND MUNICIPAL CODE BY THE ADDITION OF NEW ARTICLE 2 ENTITLED PANHANDLING AND SOLICITATION REGULATIONS STATEMENT OF PURPOSE AND INTENT The Common Council of the City of South Bend, Indiana, acknowledges that residents and visitors to certain areas in our city have been and are being confronted by persons or panhandlers soliciting money or other objects of value (collectively "Panhandlers"). Many Panhandlers go about their business in a passive manner; however, others act in an aggressive manner by such conduct as making loud and repeated demands or persistently following a pedestrian after a solicitation has been denied. The Council further acknowledges that some Panhandlers solicit in places that are especially intimidating such as on city sidewalks, in alleys, near automated teller machines, at traffic intersections; and make repeated demands for money. The solicitation of people in places where they area "captive audience" in which it is impossible or difficult for them to exercise their own right to decline to listen to, or to avoid solicitation from, others. Restricting solicitation in such places would provide a balance between the rights of Panhandlers and the rights of persons who wish to decline or avoid such solicitations. Furthermore, it would help avoid, or diminish the threat of, violence in such unwarranted and unavoidable confrontations. The aggressive conduct described above has detrimental effects on the economic and social functions of the sidewalks, intersections and other pubic places; and confrontation by such aggressive Panhandlers has placed members of the public at risk. Hence, the Council finds that aggressive panhandling has become significantly disturbing and disruptive to citizens and businesses. It has contributed not only to the loss of cit¢ens' access to and enjoyment of public places but also to the creation of a sense of fear, intimidation, and disorder. Numerous complaints about Panhandlers in the South Bend's Central Business and Entertainment Area have been made to the South Bend Police Department, the South Bend Downtown Partnership, Center City Associates, the Mayor, the Common Council, and other agencies and officials of the City of South Bend. Hence, the Council finds that solicitation and panhandling in the Central Business and Entertainment Area has become significantly disturbing and disruptive to citizens and businesses. It has contributed to a sense of fear, intimidation, and disorder that causes many residents and visitors to avoid the area and, thus, negatively affects the conduct of trade by businesses and the enjoyment of public places by citizens. The Common Council believes that the complaints raised about the ongoing confrontations between Panhandlers and citizens in our City raise legitimate concerns for the safety, protection, and sense of security of people using public forums. It is, therefore, the intent of the Council in enacting this ordinance to improve the quality of life and economic vitality of the City. It is the further intent of the Council in enacting this ordinance to protect the safety of the general public against certain intimidating or abusive conduct of Panhandlers by imposing reasonable time, place, and manner restrictions on solicitation while respecting the constitutional rights of free speech of all citizens. Provisions of this ordinance would also help provide a safe and orderly environment where social, business, recreational, and cultural opportunities can be maximized while eliminating the secondary effects of such nuisance activities that negatively affect such social and economic interaction in the Central Business and Entertainment Area. o»>za Panhandling Md Solicitation Regulations Ordinance Page 2 This ordinance is timely and appropriate because the current City ordinances are insufficient to address the aforementioned problems. The recommended restrictions are neither overbroad nor vague and are narrowly tailored to serve significant governmental interests. The Council believes that this ordinance would help protect residents and visitors to our community from the fear and intimidation that accompany a certain type of solicitation, which due to its aggressive manner has become unwelcome, overwhelming, coercing, intimidating, and harassing to those approached. Hence, the Council believes that the enactment of this ordinance would be in the best interests of the City. NOW, THEREFORE, BE IT ORDAINED by the Common Council of the City of South Bend, Indiana, as follows: Section I. Chapter 13 of the South Bend Municipal Code is hereby amended by the addition of new Article 2 entitled "Panhandling and Solicitation Regulations" which shall read in its entirety as follows: Article 2. Panhandling and Solicitation Regulations. Sec. 13-24 Legislative Findings. (a) The South Bend Common Council finds that there is a need to impose reasonable panhandling and solicitation regulations. Such regulations will improve the quality of life and economic vitality of the city, protect the safety of the general public against certain intimidating and abusive conduct of Panhandlers, while respecting the constitutional rights of free speech for all citizens. (b) The Council further finds that the City should provide a safe and orderly environment where social, business, recreational and cultural opportunities can be maximized while eliminating the secondary effects of nuisance activities that negatively affect such types of interactions in the Central Business and Entertainment Area of the city. (c) The Common Council finds that an increase in aggressive solicitation has become increasingly disturbing and disruptive to residents and visitors to the city, and has directly contributed to the loss of access to and enjoyment of certain public places and has engendered a sense of fear, intimidation, and disorder. (d) The Common Council therefore declares that the following panhandling and solicitation regulations are promulgated pursuant to the "Home Rule" powers vested in the City pursuant to Indiana Code § 36-1-3-1, et seq. which grants among other powers, all powers which are needed for the effective operation of govemment as to local affairs and authorizes the enactment or ordinances which protect the health, safety and welfare of its residents and which would preserve the peace, order and safety of its community; Indiana Code § 36-1~L-11 and Indiana Code § 36-46-12, et seq. which permit cities to pass and enforce ordinances; and Indiana Code § 36-1-4-6 which authorizes cities to use, improve and protect its interests in property. (e) The South Bend Common Council finds that the panhandling and solicitation regulations provided in this ordinance are intended to be content-neutral, narrowly tailored to serve significant govemment interests, and would permit ample alternative channels of communication. ~ The South Bend Common Counal believes that all regulations set forth in this ordinance are consistent with the constitutional criteria established by the United States Supreme Court in Peny Edugfion Assodation v. Perry Local Educators' Assoaation, 460 U.S. 37, 45103 S.Ct. 948, 74 L Ed. 2d 794 (1993). o~~~sa Panhandling And Solicitation Regulations Ordinance Page 3 Sec. 13-25 Definitions. For purposes of this Article, unless the context otherwise requires, a term that begins with an upper case letter has the meaning assigned in the sentence in which it appears within quotation marks; and the following words and phrases shall have the meanings set forth below. The singular includes the plural and vice versa as indicated by the context. "Including", "such as", and similar terms, when used as part of a phrase containing one or more specific items, are to be interpreted as being used by way of example and not of limitation. (a) "Aggressive Manner" means: (1) Approaching or speaking to a person, or following a person before, during or after soliciting if that conduct is intended or is likely to cause a reasonable person to fear bodily harm to oneself or to another, or damage to or loss of property, or otherwise be intimidated into giving money or other object of value; (2) Continuing to solicit from a person after the person has given a negative response to such soliciting; (3) Intentionally touching or causing physical contact with another person or an occupied vehicle without that person's consent in the course of soliciting; (4) Intentionally blocking or interfering with the safe or free passage of a pedestrian or vehicle by any means, including unreasonably causing a pedestrian or vehicle operator to take evasive action to avoid physical contact in the course of soliciting; (5) Using violent or threatening gestures toward a person solicited either before, during or after soliciting; (6) Persisting in following or approaching the person being solicited with the intent of asking that person for money or other object of value after the person solicited has informed the solicitor by words or conduct that such person does not want to be solicited or does not want to give money or any other thing of value to the solicitor; (7) Using profane, offensive or abusive language, or speaking in a volume unreasonably loud which is inherently likely to provoke an immediate violent reaction, either before, during or after soliciting; or (8) Soliciting money from anyone who is waiting in line for entry to a building or for another purpose. (b) "Automated Teller Machine (ATM)" means any electronic information-processing device that accepts or dispenses cash in connection with a credit, deposit, or convenience account. (c) "Central Business and Entertainment Area (CBEA)" means the area located within the City of South Bend as designated on the map in Exhibit A-1 and as set forth by legal description in Exhibit A-2 which are attached hereto and included herein by reference, and are on file in the Office of the City Clerk and are available for public inspection during regular business hours. (d) "Panhandler" means a person conducting Solicitation (as defined below) for money or other objects of value. However, for the avoidance of doubt, it is hereby expressly provided that "Panhandler" does not mean a person who is a "Licensee" conducting o~tt2a Panhandling And Solicitation Regulations Ordinance Page 4 permissible Solicitation as set forth in Section 13-26(a)(2) and Section 13-26(a)(3) below. (e) "Public place" means an area to which the public or a substantial group of persons has access, including any street, highway, alley, sidewalk, parking lot, plaza, transportation facility, library, school, place of entertainment, park, playground, bridge, and any doorway, entrance, lobby to such buildings enclosing them. (f) "Soliciting" and "Solicitation" mean using the spoken, written, or printed word, or bodily gestures, signs or other means with the purpose of obtaining immediate donation of money or other thing of value or soliciting the sale of goods or services. Solicitation includes "begging", "panhandling", and any derivations of these terms.2 Sec. 13-26 Prohibited Acts. (a) In light of the City's duty to provide residents and visitors to the downtown of the city with a safe environment where social, business, cultural, and recreational opportunities can be maximized while eliminating nuisance activities which negatively affect such interactions, the following regulation shall be in full force and effect: (1) Except as otherwise provided in Section 13-26(a)(2) and Section 13-26(a)(3) below, Solicitation is prohibited in the Central Business and Entertainment Area (CBEA). (2) Solicitation of immediate donation of money or other thing of value or the sale of goods or services that (i) is performed by a person who is a "Licensee" (as defined in Section 4-2(c) of this Code) under Section 455, Charitable Solicitations, and (ii) consists of actions permissible under the regulations set forth in Section 4-55, Charitable Solicitations, and (iii) is fully compliant with the provisions of Section 13- 26(b), shall be excluded from the prohibition .set forth in Section 13-26(a)(1) above. (3) Solicitation of the sale of goods or services that (i) is performed by a person who is a "Licensee" (as defined in Section 4-2(c) of this Code) under one or more of the Sections of this Code listed below, and (ii) consists of actions permissible under the regulations set forth therein, and (iii) is fully compliant with the provisions of Section 13-26(b), shall be excluded from the prohibition set forth in Section 13-26(a)(1) above: a. Section 4-25: Food Vending Vehicles, b. Section 4-43: Peddlers and Canvassers, c. Section 4-60: Transient Merchants. (b) Because solicitation in an aggressive manner creates a reckless interference with pedestrians and vehicular traffic in public places, the following regulations shall be in full force and effect:3 (1) Solicitation in an Aggressive Manner is prohibited in any Public Place. ~ It is the intent of the South Bend Common Counal that the terms "soliatation, begging and panhandling" be considered interchangeable terms with "soliatation" encompassing all three terms and any derivations thereof, similar to the interpretation given to such terms in Smith v. City of Fort Lauderdale, Florida (11th Cir. 1999) No. 98-4973 decided June 2,1999. 3 !t is the intent of the South Bend Common Counal that only soliating in an aggressive manner which constitutes a reckless interference with pedestrian and vehicular traffic be prohibited by this provision, consistent with the findings in Greater Cincinnati Coalition for the Homeless and Charles Gooden v. City, of Cincnnati (6th Cir.) 1995 FED App. 0173P. Deaded June 7, 1995 o~»2a Panhandling And Solicitation Regulations Ordinance Page 5 (2) Solicitation in an Aggressive Manner is prohibited within twenty (20) feet of any Automated Teller Machine (ATM). (3) Solicitation in an Aggressive Manner is prohibited within twenty (20) feet of any pay telephone. (4) Solicitation in an Aggressive Manner from an operator or occupant of a motor vehicle located in any Public Place is prohibited. See. 13-27 Penalties. (a) An officer of the South Bend Police Department may issue a City Of South Bend Ordinance Violation Citation ("Citation") to a person who violates this Article. (b) The first such Citation issued to an individual under the provisions of this ordinance shall impose a fine of fifty dollars ($50.00). (c) Each subsequent Citation issued to an individual under the provisions of this ordinance shall impose a fine of not less than one hundred dollars ($100.00) and not more than two thousand five hundred dollars ($2,500.00). (d) Each violation of this Article shall be deemed a separate offense. Section I1. If any part, section, subsection, sentence, clause, or phrase of this ordinance is for any reason declared to be unconstitutional or otherwise invalid, such decision shall not affect the validity of the remaining portions of the ordinance. Section Ill. This ordinance shall be in fu11 force and effect from and after its passage by the Common Council, approval by the Mayor and legal publication. Q Charlotte Pfeifer Member of the Common Counal 1 st READING ~ ~'" ~~ ~ _Q \ PUBLIC HEARING L ~ 3 rd READING ~ l ~ Llo `01 NOT APPROYE~ ~s S u~~ ~itea in C6er~t'~ ~~~ec~ ~~ U1~ 2 ~ X001 LofiE7T:1 J. t34Jla'~ CITlCLERi~, EC. F3E:WEi, fTl. REFERRED ,Lb `~~ OlS S (,~.~Sa-<-~,'~JL,~ PASSED ~ l TO THE COMMON COUNCIL OF THE CITY OF SOUTH BEND: Your Committee of the Whole, to whom was referred: BILL NO. 108-01 AN ORDINANCE OF THE COMMON COUNCIL OF THE CITY OF SOUTH BEND, INDIANA, AMENDING CHAPTER 13 OF THE SOUTH BEND MUNICIPAL CODE BY THE ADDITIONS OF NEW ARTICLE 2 ENTITLED PANHANDLING AND SOLICITATION REGULATIONS Respectfully report that they have examined the matter and that in their opinion, this bill is being recommended to the full Council with a favorable recommendation as substituted as follows: 1. -Wording refinements made in response to advice from our Council Attorney and the City Attorney. 2. -Replacement of all occurrences of the term "Central Business District" with "Central Business and Entertainment Area" in order to avoid confusion with the definition of "Central business District" elsewhere in the Code which refers to a different area. 3. -Replacement of the map in Exhibit A-1 and the legal description in Exhibit A-2 with a new map and legal description that more precisely depict what the ordinance now refers to as the "Central Business and Entertainment Area". Andrew Udjak Chairperson, Committee of the Whole Panhandling Md Solicitation Regulations Ordinance Page 7 EXHIBIT A - 2 CENTRAL BUSINESS AND ENTERTAINMENT AREA BOUNDARY Beginning at the intersection of the east right-of-way line of Michigan Street and the south right-of-way line of South Street; thence west along the south right-of-way line of South Street to its intersection with the west right-of-way line of Taylor Street; thence north along the west right-of-way line of Taylor Street to its intersection with the north right-of-way line of Western Avenue; thence east along the north right-of-way line of Westem Avenue to its intersection with the west right-of-way line of Main Street; thence north along the west right-of-way line of Main Street to its intersection with the south right-of-way line of Jefferson Boulevard; thence west along the south right-of-way line of Jefferson Boulevard to its intersection with the west right-of-way line of Lafayette Boulevard; thence north along the west right-0f--way line of Lafayette Boulevard to its intersection with the north right-of-way line of LaSalle Avenue; thence east along the north right-of-way line of LaSalle Avenue to its intersection with the east right-of-way line of Niles Avenue; thence south along the east right-of-way line of Niles Avenue to its intersection with north right-of-way line of Jefferson Boulevard; thence east along the north right-of-way line of Jefferson Boulevard to its intersection with the east right-of-way line of St. Louis Boulevard; thence south along the east right-of-way line of St. Louis Boulevard to its intersection with the south right-of-way line of Northside Boulevard; thence south along the projected east right-of--way line of St. Louis Boulevard to its intersection with the east right-of-way line of Edgewater Drive; thence west and southwest along the east and southeast right-of-way line of Edgewater Drive to its intersection with the south and southeast right-of-way line of Lincolnway East; thence north and northwest along the south and southeast right-of-way line of Lincolnway East to its intersection with the south right-of-way line of Monroe Street; thence west along the south right-of-way line of Monroe Street to its intersection with the east right-of-way line of Michigan Street; thence south along the east right-of-way fine of Michigan Street to the point of beginning. ~~~124 ..~--- ~9~P,Ck ~t'is ~~B~o~sS ~~fiC6 ~Cl!' ~ ~ ?0~1~ ~~/LO~ ~!°opi{TlA J/.{~ ~1sliPa"1 C11 ~ V ~i:F11'l~ v ~J. ~-'~-'Y'1Ji IY u'+