City Beat: Council repeals ‘aggressive’ panhandling law

Ken McClure: City Council is obligated to support the U.S. Constitution.

Scoreboard: The American Civil Liberties Union, 2; city of Springfield, 0.

On Feb. 22, Springfield City Council repealed its 2-year-old “aggressive” panhandling ordinance following a Dec. 16 injunction issued in federal court. Council also heard a first reading bill to re-establish its former indecent-exposure ordinance following a separate injunction on Jan. 22 in the U.S. District Court for the Western District of Missouri.

Both actions were the result of lawsuits brought by American Civil Liberties Union of Missouri against the Queen City late last year.

At the council meeting, proponents of the repeal, including Springfield City Attorney Dan Wichmer, said ACLU’s panhandling lawsuit, as well as recent case law that has struck down similar ordinances, necessitated council’s consideration.

According to information in the bill, the recent decision of Reed v. Town of Gilbert by the U.S Supreme Court regarding the First Amendment right to free speech prompted several federal court decisions striking down municipal panhandling and aggressive solicitation ordinances similar to Springfield law adopted in January 2014.

The panhandling ordinance was developed by the Park Central Square Task Force, a collection of business owners and civic leaders who recommended the changes in November 2013 to council’s Plans and Policies Committee to address safety concerns. It prohibited panhandling within 20 feet of business entrances or exits and sidewalk cafes and within five feet of a street or sidewalk. A couple of council members seated at the time voted against the measure, citing concerns about violating freedom of speech.

Council voted 8-1 on Feb. 22 to repeal the ordinance.

Councilwoman Kristi Fulnecky cast the lone vote against the repeal, saying she felt the ordinance was worth fighting for because it protects residents.

“If you are going to spend money on anything … why don’t we spend money fighting for something that actually means something to our citizens?” Fulnecky said. “We have municipal law for peace and decency, and I think the end goal of the ACLU is to get rid of all municipal law.”

But several councilmembers spoke in favor of the repeal.

“A lot of these people are not always aggressive,” said Councilman Justin Burnett, who shared a story from a Zone 2 resident paid back by a panhandler who frequented a nearby alleyway after receiving the diabetic supplies he needed.

Councilman Ken McClure said repealing the ordinance was the correct course of action.

“We took an oath to support the Constitution, and that means support it when we agree with it and when we disagree with it,” McClure said, adding he felt recent case law was clear. “Council, in my opinion, would be derelict in its duty if it did not adhere to and follow the dictates of the court.”

Tony Rothert, legal director of the ACLU of Missouri, said city officials largely have been cooperative regarding the panhandling ordinance.  

“I have to say the city has been quite proactive and quickly recognized some changes that have come into law since the ordinance was originally enacted,” Rothert said. “We were able to quickly get a preliminary injunction in that case, and now, the city has repealed it. Cities across the country are recognizing that those aggressive panhandling ordinances are no longer constitutional.”

In the area, the ACLU settled a lawsuit in November against the city of Bolivar over its former panhandling ordinance by paying legal fees of $3,570.

A similar settlement appears to be on the horizon for the Queen City.

“I expect that case will be wrapping up soon,” Rothert said.

Wichmer expects the city to pay ACLU’s attorney’s fees in the coming weeks.

“We think that’s going to be under $10,000,” Wichmer said. “All we are waiting for is for them to send us their bill of costs, basically.”

The path forward for the indecent-exposure case is less clear, Rothert said.

“We suggested some language for a new indecent-exposure ordinance,” he said. “Our recommendation was that the ordinance be gender neutral, so that if the exposure of nipples was going to be prohibited, it be prohibited for everyone, or it not be prohibited.”

That’s not what the city proposed at its Feb. 22 council meeting.

“There still seems to be a fixation on female nipples,” Rothert said. “Certainly, they are addressing some of our concerns about due process and free speech, but it is still problematic that women are being treated differently than men.”

However, Wichmer said he believes it also could be settled soon if council votes on March 7 to approve the new indecent-exposure bill.

“We agreed to a 60-day temporary injunction. That’s why we went back to council to reinstate our old ordinance, and then we are going to deal with what’s left of their lawsuit,” he said.