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Lawsuits target 3 Arkansas cities' panhandling curbs

Speech rights infringed, ACLU says by Doug Thompson | June 29, 2017 at 4:30 a.m.

The American Civil Liberties Union is suing Rogers, Fort Smith and Hot Springs because they enforce their anti-panhandling ordinances, a spokesman for the group said Wednesday.

The state ACLU chapter filed the suits Tuesday, court records confirm. A suit against Fort Smith and Rogers was filed in U.S. District Court in Fayetteville. The suit against Hot Springs was filed separately in U.S. District Court there.

The group also plans to challenge a state anti-loitering law set to take effect Aug. 1, said spokesman Holly Dickson of Little Rock. Each of the challenged ordinances and the state law violate the free speech rights in the First Amendment of the U.S. Constitution, she said.

Two Fort Smith ordinances are challenged in the suit that includes the city. The first is a Feb. 21, 2017, ordinance "which severely restricts panhandling within the city limits" by making it a crime to panhandle before sunrise or after sunset; in any public transportation vehicle or facility; at any bus stop; in proximity to a bank entrance, check-cashing business or automated teller; or within 150 feet of any street corner, intersection or highway interchange. The ordinance also bars people from claiming to be from out of town and stranded and from feigning a disability.

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Another Fort Smith ordinance bans panhandling in parks. That measure is also unconstitutional, the suit claims.

The Rogers ordinance challenged in the suit prohibits pedestrians from soliciting people in vehicles without a permit issued by the police chief.

Hot Springs city code makes it a crime to enter a roadway, median or other part of a public street or to otherwise approach a vehicle on a public street to solicit the vehicle's occupant.

The city of Rogers would have listened in good faith to any concerns the ACLU has about Rogers' ordinance regarding soliciting for donations, said city staff attorney Jennifer Waymack. The city was not notified of any objection before receiving word the suit was being filed, Waymack said.

"I can assure you if I had ignored a complaint of any problem with an ordinance, whether it was a legal problem or not, I'd be concerned if I had a job tomorrow," Waymack said. "That's the way this city administration and City Council is."

Rick Wade, an attorney in the firm that represents Fort Smith, said the city had received no notice of the lawsuit as of Wednesday afternoon and that a media inquiry was the first he had heard of the suit. The city attorney for Hot Springs was not available for comment, according to the Hot Springs Sentinel-Record.

The Rogers ordinance has been in force since 2007 and was the result of a settlement in a court case with a city resident who wanted to donate to a cause that often raised money on city streets.

"All these issues were discussed then, at length," Waymack said of the First Amendment concerns. Greg Hines, who is mayor now, at that time was the City Council member who drafted the city ordinance in response to those discussions.

The law on panhandling ordinances has changed, Dickson said. Dickson referred to a Nov. 22 ruling in U.S. District Court in Little Rock that overturned a state anti-begging law as an infringement of free speech. The U.S. Supreme Court made a similar ruling in February, striking down an anti-panhandling ordinance in Lexington, Ky. The court's decision in that case was unanimous.

Panhandling was not even a topic of the Rogers ordinance, Waymack said. The reason behind the city's action was safety concern about charities raising money along busy city streets and intersections, she said.

Many Arkansas cities have anti-panhandling ordinances on the books, but the three cities are the only ones facing lawsuits over the ordinances' enforcement, Dickson said.

The state law the ACLU hopes to overturn in a future suit is Act 847 of 2017, Dickson said. That act makes it illegal to linger or remain in a sidewalk, roadway, public right-of-way, public parking lot or public transportation vehicle or facility, or on private property, for the purpose of asking for a charity or a gift "in a harassing or threatening manner" or "in a way likely to cause alarm to the other person" or create a traffic hazard of impediment.

The types of undesirable behaviors named by the state law and used to justify the city ordinances are all covered by existing criminal law, Dickson said.

No one can threaten someone, "cause alarm" or impede traffic legally, regardless of what the solicitor is asking for, she said. "What needs to be done here is to enforce existing laws instead of making new ones targeting a group," she said.

The suit against both Rogers and Fort Smith was filed on behalf of Glynn Dilbeck, whose age and residency are not listed in the suit but who has sought donations in both cities, court records show. Dickson said her client was not available for comment on the case and that he is homeless.

The action names the police chiefs involved, Nathaniel Clark of Fort Smith and Hayes Minor of Rogers, but only in their official capacity and not as individuals. The suit seeks to overturn the ordinances and also asks for attorney's fees.

The suit against Hot Springs seeks the same and also names the police chief, Jason Stachey. The plaintiff in the Hot Springs case is Michael Andrew Rodgers, a disabled veteran who lives in Garland County and who was also the plaintiff in the case that got the state anti-begging law overturned in November.

Rodgers has been "arrested, jailed, prosecuted and convicted in Hot Springs for begging," his suit says.

Dilbeck does not face any criminal charges in the cities involved in his suit, nor has he been fined in the past on these ordinances, the suit says. He has been warned, "harassed" and discouraged from begging by city officials citing the ordinance, the suit says.

"Predictably, the threat of citation, arrest, detention, prosecution, conviction and penalties under the Fort Smith and Rogers' anti-solicitation ordinance has chilled plaintiff and others from exercising their constitutionally protected rights to peacefully ask others for money, food or other charity within the Fort Smith and Rogers city limits," the suit against those cities says. Similar language is in the Hot Springs suit.

Metro on 06/29/2017

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