City: Safety ordinance also applies to campaign workers

A city official says Hot Springs will include campaign workers when enforcing its ordinance to promote public safety on roadways — legislation that the American Civil Liberties Union of Arkansas claims targets panhandlers — if there is a “safety concern.”

ACLU-sponsored attorney Bettina Brownstein said Wednesday that an agreement she reached with Arkansas Municipal League attorneys representing the city held enforcement of the ordinance in abeyance until a federal lawsuit challenging its constitutionality is resolved, explaining that the agreement was the basis for her not pursuing a preliminary injunction.

“As far as the court’s concerned, the city is not enforcing the ordinance,” Brownstein said. “That’s the agreement. They cannot issue a citation under that ordinance. Our agreement is that they’re not to enforce the ordinance.”

City Attorney Brian Albright said Wednesday that the moratorium isn’t absolute.

“I’ve not seen a citation issued, but I think if an officer sees an obvious violation of the ordinance, I wouldn’t be surprised if they acted to enforce it,” he said. “If it’s a clear violation that creates a safety concern, it would be at the officer’s discretion to issue a citation. We don’t want folks walking out into the streets.”

Brownstein represents Michael Rodgers, a Hot Springs man suing to

invalidate the ordinance based on his belief that it interferes with his right to panhandle. The Hot Springs Board of Directors adopted an earlier version of the ordinance in 2016, a response to the increased presence of panhandlers at busy intersections following the dismissal of Rodgers’ 2015 loitering conviction in Garland County District Court.

The board repealed the ordinance in August after the ACLU filed suit on Rodgers’ behalf. The advocacy group has since filed an amended complaint against the Ordinance to Promote Public Safety Within the Roadways and Public Streets the board adopted in December.

The new regulation doesn’t allow pedestrians and motorists to “interact physically,” which is defined 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 earlier ordinance banned pedestrians from soliciting items, including money, from motorists on public rights of way.

The ACLU has argued that public safety is being invoked to criminalize panhandling, but Albright told the board of directors Tuesday night the ordinance also applies to those campaigning for next month’s preferential primaries and nonpartisan general election.

“If you or any of your volunteers or other candidates out there are interested in campaigning in the public forum, sidewalks are legitimate areas to express that free speech, but you can’t have physical interaction with the occupant of a vehicle that’s being operated in a public right of way,” Albright said.

“Tell your folks and other candidates out there for this upcoming election, if that’s where they intend to campaign, it’s perfectly legal. Just don’t have the physical interaction with vehicles.”

A jury trial is scheduled in August, but Brownstein said she plans to petition for summary judgment after Rodgers’ April 12 deposition. The ACLU has stipulated in court pleadings that there are no issues of fact for a jury to decide.

Co-plaintiff Todd Reid withdrew from the lawsuit last month. He became a party to the action in January, arguing that the ordinance violated his right to support panhandlers from his vehicle.

“He had issues that precluded him from doing a deposition and other necessary things you have to do as a plaintiff,” Brownstein said.

Albright told the board the ordinance applies to pedestrians and motorists alike.

“This ordinance is evenhanded with respect to pedestrians and motorists,” he said. “It prohibits motorists from engaging in this activity as well, because it does impede the flow of traffic, create traffic hazards and endanger pedestrians.

“Ultimately, we’ll have all of that decided in federal court.”