The Sentinel-Record

Lawsuit claims ordinance aimed at panhandler­s

- DAVID SHOWERS

An amended complaint filed in the federal lawsuit challengin­g the city’s attempt to regulate the interplay of motorists and pedestrian­s alleges the enabling ordinance targets panhandlin­g in the name of safety.

Promoting safety on public rights of way is the stated intent of the ordinance the Hot Springs Board of Directors adopted Dec. 5, but the complaint filed last week said the city is regulating activity “intrinsic” to panhandlin­g. The ordinance was adopted without an emergency clause, making it unenforcea­ble until 30 days after adoption.

The complaint is seeking to permanentl­y enjoin the city from enforcing it.

“(The ordinance) is unconstitu­tional because it was motivated by animus on the part of the city toward beggars and leafletter­s, and the city had a discrimina­tory motive in enacting it,” the Dec. 13 filing said.

Filed on behalf of Michael Rodgers by the Amer-

ican Civil Liberties Union of Arkansas, the complaint resumes the lawsuit the ACLU initiated in June to stop the enforcemen­t of an earlier ordinance the board adopted in response to an increase in panhandlin­g at busy intersecti­ons.

The litigation was on hold while the ACLU waited to see how the board would proceed after its August repeal of the September 2016 ordinance that prohibited the solicitati­on of donations from motorists on public rights of way, which the ACLU said was a content-based restrictio­n specifical­ly aimed at panhandlin­g.

The ordinance adopted earlier this month doesn’t allow vehicles and motorists to “interact physically,” a restrictio­n the ACLU said continues to criminaliz­e panhandlin­g and other constituti­onally protected forms of expression.

“The ordinance is content based in that it is designed to prohibit individual panhandler­s and leafletter­s from exercising their right to free speech while allowing other types of speech to proceed unimpeded and includes a ban on soliciting in traditiona­l public forums,” the complaint said.

City Attorney Brian Albright said Monday that the new ordinance doesn’t differenti­ate the type of activity that leads to the physical interactio­n, explaining that it’s prohibited irrespecti­ve of the precipitat­ing act.

“I understand their angle,” he said. “They think this is still targeting panhandlin­g. It’s not just panhandlin­g. It’s an effort to try and keep any pedestrian out of the streets and rights of way. Whether it’s a charitable organizati­on, a politician or even the fire department doing a pass the boot fundraiser, it’s a bad situation. Pedestrian­s and cars don’t mix.”

The ordinance describes physical interactio­n on a public right of way as an “attempt to make physical contact with a motor vehicle 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.”

The complaint said the ordinance is intentiona­lly vague, making it unclear exactly what type of activity is prohibited, but Albright reiterated the exception for free speech and expression stipulated in the ordinance.

“We’re trying to regulate anything that puts a pedestrian in close proximity to physical contact with a vehicle,” he said. “There’s nothing in this ordinance that restricts someone from walking up and down the sidewalk and holding a sign. They’re just not allowed to have physical contact with a vehicle.”

Rodgers’ 2015 conviction in Hot Springs District Court for violating the state’s loitering statute was dismissed in Garland County Circuit Court the following June, leading to the increased presence of panhandler­s in high-traffic areas.

He later became a co-plaintiff in the ACLU’s successful challenge of the statute, which a federal judge invalidate­d last December. The advocacy group in September won a preliminar­y injunction on Rodgers’ behalf against the amended loitering statute the Legislatur­e adopted earlier this year. The attorney general’s office has appealed the ruling to the 8th U.S. Circuit of Appeals.

Rodgers’ lawsuit against the city is one of several the ACLU has brought against similar ordinances adopted by other cities.

 ?? The Sentinel-Record/Richard Rasmussen ?? ACLU V CITY: A man panhandles at the median near the intersecti­on of Grand and Malvern avenues Monday. An ordinance taking effect next year will prohibit the physical interactio­n of vehicles and pedestrian­s in public rights of way.
The Sentinel-Record/Richard Rasmussen ACLU V CITY: A man panhandles at the median near the intersecti­on of Grand and Malvern avenues Monday. An ordinance taking effect next year will prohibit the physical interactio­n of vehicles and pedestrian­s in public rights of way.

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