Northwest Arkansas Democrat-Gazette
Ruling for Rogers puts Hot Springs ordinance at risk
HOT SPRINGS — Federal traffic safety data Hot Springs cited in support of its ordinance regulating the interaction of pedestrians and mo- torists are the same statistics a court earlier this week said don’t support the need for a similar ordinance adopted in Rogers.
U.S. District Judge Timothy Brooks on Monday permanently enjoined Rogers from enforcing an ordinance it adopted in December that prohibits pedestrians from approaching an occupied vehicle in operation on a public street in a manner that can lead to injury, property damage or the obstruction of traffic.
Rogers officials said public safety motivated the adoption of the ordinance, but Brooks ruled that national highway statistical data cited in support of the safety rationale wasn’t specific to traffic conditions there and didn’t support the need for a regulation that indirectly affects panhandling.
Courts have ruled that begging is constitutionally protected speech. U.S. District Judge Billy Roy Wilson of Little Rock granted a preliminary injunction last year against the enforcement of the state’s loitering statute, ruling that it imposed a content-based restriction of constitutionally protected speech. The attorney general’s office has appealed the ruling to the 8th U.S. Circuit Court of Appeals.
“The city has made no meaningful effort to justify the passage of the ordinance based on a governmental interest or concern,” Brooks wrote in his ruling against Rogers’ ordinance. “At least some justification is needed when the ordinance has an incidental effect on certain types of protected speech.”
The ordinance Hot Springs adopted in December includes the same National Highway Traffic Safety Administration data on pedestrian fatalities that Rogers offered in support of its ordinance. Attorney Bettina Brownstein with the American Civil Liberties Union of Arkansas, who is challenging Hot Springs’ ordinance on behalf of Michael Andrew Rodgers, said the data don’t include statistics on fatalities linked to panhandling.
“The lack of data or information to support the need for such an ordinance, I think that aspect is very similar,” Brownstein, who is also one of the ACLU-sponsored attorneys in the lawsuit challenging Rogers’ ordinance, said about the two ordinances. “None of the municipalities have done the necessary studies to support the ordinances.” An ordinance banning panhandling on streets and medians that Hot Springs adopted in 2016 didn’t include or reference traffic safety data, causing the ACLU to question the city’s safety rationale.
The city ultimately repealed the ordinance and replaced it with one that prohibits pedestrians and occupants of a vehicle in operation on a public right of way from physically interacting, which the ordinance defines as “physical contact with a motor vehicle or other motorized vehicle, including but not limited to a motorcycle, or any object or occupant therein,” or “to make physical contact or attempt to make physical contact with a pedestrian or object in the possession of such pedestrian by an occupant of a motor vehicle or motorized vehicle.”
Brownstein said the Rogers and Hot Springs ordinances are overly broad and aimed at panhandlers.
“I think safety is a legitimate concern of theirs,” she said. “I don’t doubt that. I just don’t think they’ve drafted these ordinances in a way that is narrowly tailored to meet a legitimate safety concern.
“I also think municipalities don’t want panhandlers on their streets. They just don’t. They’re trying to find a constitutional way to ban them or severely restrict them.”
Rogers also adopted an earlier ordinance that banned panhandling on roadways. Brooks’ ruling said in light of that anti-solicitation language, the replacement ordinance adopted in December could be viewed as a veiled attempt at prohibiting similar activity.
“The court cannot turn a blind eye to the fact that the earliest version of the ordinance targeted solicitation speech in particular,” Brooks wrote in his ruling. “One could reasonably extrapolate that even though the current version of the ordinance removed the reference to solicitation speech, the city’s true intent in passing the ordinance remained the same: to target and eliminate solicitation speech from the public roadways.”
Rodgers, the plaintiff in the case challenging Hot Springs’ ordinance, claims the city is restricting his constitutionally protected right to beg. He’s also a co-plaintiff in the lawsuit against the state’s loitering statute, which was amended last year. Rodgers was arrested in October 2015 under the authority of the previous statute. Its enforcement was also permanently enjoined after a court ruled it was a restriction on free speech.
The ACLU appealed Rodgers’ January 2016 district court conviction to Garland County Circuit Court, where Circuit Judge John Homer Wright dismissed the misdemeanor conviction in June 2016.