Panhandling rules, called flawed, OK’d in Fort Smith

FORT SMITH — City directors on Tuesday approved an ordinance, despite complaints it’s flawed and inadequate, to allow panhandling in the city with some restrictions until they can come up with a better ordinance.

All the directors voted for the ordinance except for Tracy Pennartz, who sought to table consideration to tinker with the ordinance.

City Director Keith Lau said directors needed to get a panhandling ordinance on the books even if it wasn’t perfect.

City Administrator Carl Geffken told board members the ordinance was drafted to allow panhandling, but in a way that would avoid legal challenges on the grounds banning it would discriminate against a person’s right to ask for help.

“This is not content-based, so we are not looking to say no to panhandling if they are just standing there, because that has been judged unconstitutional,” Geffken said.

He referred to the Kentucky Supreme Court ruling last week a 2007 Fayette County, Ky., ordinance prohibiting begging and soliciting on public streets or intersections was unconstitutional because it singled out a certain type of speech — pleading for help — for criminal prosecution.

Geffken said the ordinance before directors Tuesday differed in that it didn’t ban panhandling but rather regulated it and any other type of soliciting.

U.S. District Judge Billy Roy Wilson in November enjoined Arkansas from enforcing the state’s begging law, ruling it infringed on the First Amendment right to freedom of speech.

In the context of the First Amendment, Wilson wrote, “a plaintiff has standing to attack overly-broad statutes when the statute’s very existence may chill constitutionally-protected speech. Begging is constitutionally-protected speech.”

Geffken wrote in a memorandum to directors there has been an increase in the frequency of people being solicited for money on city streets or in their cars. Pennartz said she was contacted by an older woman who said she had been approached by a man asking for money at night in a parking lot and she had been afraid.

Police Chief Nathaniel Clark said Tuesday he knew of no complaints made to the department about injuries resulting from panhandlers, but police would enforce all ordinances as manpower allowed.

Lau, who said he sees the same panhandlers in the same place every day, wanted to ban soliciting, saying panhandlers were taking advantage of the city’s desire for political correctness.

“Panhandling in Fort Smith is a blight on our community,” he said. “It makes us look bad. These are serial panhandlers who take our money because we have good-hearted people.”

Firefighter Darrell Clark asked directors not to approve the ordinance because it would hurt the department’s annual effort to raise money for the Muscular Dystrophy Association and the Make-AWish Foundation.

He said firefighters raise $15,000 to $19,000 a year when they go out into traffic at intersections and ask people to “fill the boot” with donations.

One year, he said, firefighters failed to get a permit from the city and were restricted to seeking donations on private property such as large store parking lots. Firefighters raised only about $700 that year, he said.

City Director Don Hutchings asked if some exception could be made for the firefighters’ fundraising effort.

“If you allow firefighters one Saturday to go into traffic with boots and next Saturday you don’t allow someone to stop traffic to ask someone for money, it’s really difficult to make that distinction,” City Attorney Jerry Canfield said.

While it doesn’t outlaw someone from asking for money in Fort Smith, the ordinance passed by city directors Tuesday included a long list of restrictions.

Among the restrictions are: no soliciting after dark; a person has to stay 150 feet from any street corner, street intersection or highway interchange; and no soliciting at bus stops, on any public transportation or on private property without the owner’s permission.

The ordinance states panhandlers may not go within 3 feet of a person until that person indicates he wants to make a donation. It also says panhandlers cannot block someone’s path, follow someone who walks away, use profane or abusive language, panhandle in a group of two or more, or say or do anything that a person would take as a threat.

The ordinance bans false or misleading solicitation, such as when panhandlers say they need money when they already have money, falsely say they need money because they are from out of town and stranded, ask for money for a need that doesn’t exist, wear a military uniform to falsely insinuate military service, or fake a physical disability.

Hot Springs adopted a panhandling ordinance in September, citing public safety concerns. City officials said at the time an increase in people asking motorists for money created safety issues at some of the city’s busiest intersections.

The Hot Springs ordinance prohibits sitting, standing, walking or entering a “roadway, median or portion of a public street” for the purpose of soliciting any item, including money, from the occupant of a vehicle. It also forbids pedestrians from distributing items to vehicle occupants on a public street.

The ordinance doesn’t ban asking for money in public, nor does it regulate solicitation or distribution by any person on a sidewalk to another person on a sidewalk.