City stops enforcing panhandling rule
An order filed earlier this week in a local man’s federal lawsuit against Hot Springs indicates the city won’t enforce the panhandling ordinance at the center of the controversy until the case is resolved.
The order U.S. District Judge Susan Hickey issued Wednesday dismissed Michael Rodgers’ request for a preliminary injunction on grounds the city has suspended enforcement of the ordinance.
“Defendant informs the court that the city of Hot Springs ‘will not enforce the existing ordinance at issue in this case pending a determination on the merits, or a resolution of this case by the parties,’” the order said. “… Because the defendant has elected not to enforce
the disputed ordinance until the litigation is resolved, no threat of irreparable harm to plaintiff exists.”
The city and American Civil Liberties Union of Arkansas are working to resolve the lawsuit ACLU-sponsored attorneys Bettina Brownstein, of Little Rock, and Monzer Mansour, of Fayetteville, filed on Rodgers’ behalf last month. It alleges the Hot Springs Police Department threatened to arrest him following the Hot Springs Board of Directors’ adoption of an ordinance in September that prohibits panhandlers from soliciting donations from motorists on public streets and roadways.
The lawsuit seeks to permanently prevent the city from enforcing the regulation.
The ACLU indicated earlier this month that Rodgers would be amenable to dropping the lawsuit if the ordinance were repealed. Brownstein said Friday that negotiations with the city are ongoing.
“Both sides are negotiating in good faith and trying to come to some resolution,” she said. “I don’t know if we’ll be able to, but we’re trying. We’re not that far apart.”
Rodgers, 53, was arrested for loitering in October and November of 2015, but Division I Circuit Judge John Homer Wright dismissed Rodgers’ district court conviction in June 2016. He ruled begging was a constitutionally protected form of speech, and that the state loitering statute Rodgers was alleged to have violated was unconstitutional.
U.S. District Judge Billy Roy Wilson said the statute restricts the right to free speech under the First Amendment and issued a permanent injunction against it in November.
Brownstein said the panhandling statute the city adopted in September interferes with Rodgers’ right to make a living by limiting where he can solicit donations. It bans 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.
“He’d like to be able to make a living, a subsistence living at least,” Brownstein said. “He has traffic safety considerations in mind, too, but he’d like to be able to panhandle where there’s people and traffic. If you can only panhandle where nobody is, that doesn’t make any sense.”
An ordinance repealing the panhandling ordinance and replacing it with one that prohibits pedestrians from being inside a vehicular right of way was proposed earlier this month but removed from the agenda of the city board’s July 11 special-called meeting.
The city has said the ordinance adopted in September serves the narrow interest of protecting pedestrians and motorists, but the ACLU argues it’s a pretext for targeting panhandlers.
“The city is not going to be able to eliminate panhandling all together,” Brownstein said. “No city has been able to do that.”
The ACLU said it plans to challenge the amended state loitering statute the Legislature passed earlier this year. It strikes language that prohibited loitering in public places, replacing it with “sidewalk, roadway, public right of way, public parking lot, public transportation vehicle or facility or private place.”
“We have to challenge that,” Brownstein said. “The Legislature didn’t waste any time after we invalidated the old statute in enacting one that’s virtually as bad.”
City Attorney Brian Albright and Arkansas Municipal League Attorney Michael Mosley, who’s representing the city, could not be reached for comment.