Beg­ging law axed af­ter suit

New re­stric­tions still draw con­cern

Northwest Arkansas Democrat-Gazette - - NORTHWEST ARKANSAS - DAVE HUGHES

FORT SMITH — In an at­tempt to avoid le­gal bills from a law­suit in fed­eral court, city direc­tors have re­pealed and re­placed a pan­han­dling or­di­nance they passed ear­lier this year.

By a 6-1 vote, with City Di­rec­tor Tracy Pen­nartz vot­ing no, the city board on Tues­day re­pealed an or­di­nance passed in Fe­bru­ary al­low­ing pan­han­dling in Fort Smith but re­stricted where pan­han­dling could take place and lim­ited the ac­tiv­ity to day­time hours.

“Since a law­suit has been filed against the city re­gard­ing Or­di­nance 6-17, we want to con­tinue to ad­dress the safety con­cerns in or near city streets but we do not want to have the po­ten­tial of an ad­verse out­come along with the po­ten­tial le­gal bills that will ac­com­pany the de­fense of the cur­rent or­di­nance,” City Ad­min­is­tra­tor Carl Gef­fken wrote in a mem­o­ran­dum to the board.

The new or­di­nance re­pealed Or­di­nance 6-17, elim­i­nated the word “beg­ging” from an­other or­di­nance and ap­peared to pro­hibit pedes­trian use of streets.

A por­tion of the or­di­nance said, “no per­son not oc­cu­py­ing a mo­tor ve­hi­cle shall walk on, stand in, sit in, ex­tend any body part or de­vice into, or other­wise oc­cupy any por­tion of a road­way within any pub­lic street right of way.”

The clause drew con­cerns from some peo­ple about the abil­ity to use the streets. Melissa Woodall pointed out sev­eral ar­eas of town have no side­walks, so peo­ple have no al­ter­na­tive but to walk in the streets.

“And like the three blocks from my house to the bus stop ev­ery morn­ing, I 100 per­cent vi­o­late this law ev­ery sin­gle day,” she said.

The new or­di­nance al­lows for po­lice, fire­fight­ers, emer­gency per­son­nel and au­tho­rized gov­ern­men­tal main­te­nance work­ers to be in the road­ways in per­for­mance of their of­fi­cial du­ties.

The or­di­nance also pro­vides for spe­cial per­mits for pa­rades and for the Fire Depart­ment’s an­nual Fill the Boot fundrais­ing cam­paign in which fire­fight­ers cir­cu­late among the ve­hi­cles stopped at in­ter­sec­tions and ac­cept do­na­tions tossed into a boot.

The or­di­nance al­lows the po­lice chief to is­sue per­mits by non­profit or­ga­ni­za­tions, or­ga­ni­za­tions rep­re­sent­ing pub­lic ser­vice em­ploy­ees or any Fort Smith-based civic group or res­i­dent who qual­i­fies for a per­mit for a pa­rade or spe­cial event.

City At­tor­ney Jerry Can­field said the new or­di­nance isn’t about pan­han­dling but about keep­ing peo­ple out of roads who don’t have to be there. It doesn’t re­strict the right of pedes­tri­ans to walk in the streets, he said.

The new or­di­nance was of­fered af­ter the state chap­ter of the Amer­i­can Civil Lib­er­ties Union filed suit in fed­eral court last month against Fort Smith, Rogers and Hot Springs over their pan­han­dling or­di­nances.

The suits con­tend the cities’ or­di­nances are un­con­sti­tu­tional be­cause lim­it­ing or dis­al­low­ing pan­han­dling re­stricts First Amend­ment rights.

Hot Springs City Man­ager David Frasher said Wed­nes­day the Hot Springs City Coun­cil was sched­uled to con­sider amend­ing its pan­han­dling or­di­nance Tues­day but pulled the item from the agenda on the ad­vice of the city at­tor­ney.

Rogers spokesman Ben Hines said city at­tor­neys were re­view­ing the so­lic­i­ta­tion or­di­nance and were work­ing with the ACLU.

Bet­tina Brown­stein, a Lit­tle Rock at­tor­ney lit­i­gat­ing the law­suit for the ACLU, said she un­der­stands why mu­nic­i­pal­i­ties want to ban pan­han­dling but the First Amend­ment doesn’t al­low them to re­strict the prac­tice.

Can­field told city direc­tors Tues­day he for­warded a draft of the or­di­nance to the ACLU for its com­ments.

Brown­stein said Wed­nes­day she re­viewed the or­di­nance draft and con­cluded it wouldn’t pass con­sti­tu­tional scru­tiny and she would chal­lenge the new or­di­nance in court.

“The sub­sti­tute or­di­nance is marginally less ob­jec­tion­able than the last one,” she said.

She said she has granted time ex­ten­sions Hot Springs and Rogers to al­low their at­tor­neys to ne­go­ti­ate a set­tle­ment over the law­suit and work on or­di­nances that are con­sti­tu­tional.

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