To: Honorable Mayor and Members of Town Council
From: Heidi Hugdahl, Deputy Town Attorney
Thru: Robert J. Slentz, Town Attorney
Title
Ordinance Amending Chapter 5.04 of the Castle Rock Municipal Code Concerning Panhandling (Second Reading - Approved on First Reading on November 6, 2018 by a vote of 6-0)
Body
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The Ordinance was approved on first reading on November 6, 2018 by a vote of 6-0. Minor changes were made to the Ordinance for second reading related to the definitions of obscene and obstruct to mirror definitions found elsewhere in the Code.
Executive Summary
Currently, the Town does not have regulations to address problems associated with aggressive panhandling-generally defined as knowingly approaching, accosting, stopping, or making a request of another person in a public place to solicit that person for a gift of money or thing of value. It does not mean to passively stand or sit with a sign or other indication that one is seeking donations without addressing such solicitation to any specific person.
This ordinance is timely, not only given the recent complaint brought to Councilman Loban’s attention of an aggressive panhandler that caused worry and consternation to a resident, but also because of the pace of commercial and residential development, particularly in the historic Downtown area. This ordinance addresses the potential problems that might arise with aggressive panhandling, including the threat of fear and intimidation, and the concern that the commuting public, tourists and those citizens wishing to use public places may feel less safe which could negatively impact social harmony and economic viability of the Town and other commercial areas.
Discussion
In addition to incorporating a definition of panhandling, the proposed ordinance includes definitions for other terms (such as knowingly, obscene and obstruct) that serve to provide context and clarification for permitted and non-permitted conduct.
The suggested amendments to Chapter 5.04 of the Castle Rock Municipal Code will provide a useful law enforcement tool in situations where a person engaged in panhandling does so:
• in a manner that is intimidating, threatening, coercive or obscene and that causes the person solicited to reasonably fear for his or her safety; or
• in a manner directing fighting words or profane and abusive language that would cause a reasonable person to be fearful for his or her safety; or
• in a manner that involves the person panhandling knowingly touching, grabbing or causing physical contact without that person’s consent in the course of soliciting; or
• in a manner that blocks, obstructs or interferes with the safe or free passage of the person solicited, or that requires the person solicited, to take evasive action to avoid physical contact with the person panhandling or with any other person.
There have been relatively recent developments in the law, which have resulted in a number of municipalities (including Colorado Springs and Fort Collins), making significant changes to their respective panhandling ordinances so as to satisfy constitutional mandates. However, a number of municipalities have fashioned prohibitions against “aggressive panhandling.” The proposed ordinance incorporates concepts and definitions that have withstood legal challenges and strike a constitutionally recognized balance between the rights of panhandlers to engage in First Amendment protected activity and the rights of persons to be free from fear and intimidation that might accompany unwarranted or unavoidable confrontations.
Additionally, during the last Council meeting, a question arose with regard to the interplay between the proposed ordinance, and provisions currently in the Town’s criminal code. With respect to the proposed amendments to Chapter 5.04 (Canvassers, Solicitors and Distribution of Flyers), specifically Section 5.04.065, the proposed amendments serve a slightly different purpose and will provide extra tools for law enforcement then those currently afforded under Chapter 9.04 (Offenses Against Public Peace). Although distinct, to some degree, the proposed amendments to Chapter 5.04 are similar to Castle Rock Municipal Code Sections 9.04.110, 9.04.120, and 9.04.040 (Disorderly Conduct, Harassment, and Blocking Streets and Sidewalks, respectively).
Under the proposed amendments to Chapter 5.04, there is a lower threshold which captures conduct that might not rise to the level of disorderly, under Section 9.04.110-which requires “placing or attempting to place another person in fear of imminent serious bodily injury by any threat or physical action”; or “encouraging or permitting, by verbal or physical action, another person to engage in a fight or physical combat or by engaging in a fight or physical combat.” The proposed additions under Section 5.04.065, requires that the person panhandling knowingly engage in conduct that is intimidating, threatening, coercive, or obscene, that cause the person solicited to reasonably fear for his or her safety, or in a manner that would cause a reasonable person to be fearful for his or her safety.
Additionally, with the proposed amendments to Chapter 5.04, there is a lower threshold than found under Section 9.04.120, insofar as the harassment provision requires repeated “insults, taunts or challenges likely to provoke a violent or disorderly response.” The proposed amendments under Chapter 5.04, address situations where the person panhandling knowingly touches, grabs or causes physical contact without the consent of the person being solicited. And under Section 9.04.100, misdemeanor assault, “it is unlawful for any person or persons to knowingly or recklessly strike, fight or cause bodily injury to another person.” This again is a heightened standard then the lessor element of “touching” found within the proposed amendments.
Finally, the proposed amendments to Chapter 5.04, related to passage on the sidewalks, to some degree overlaps with Section 9.04.040, but the proposed amendments serve to meet a lower threshold than the criminal code and, therefore, provides additional avenues for law enforcement. Also, the proposed amendments address situations where the person being solicited must take evasive action to avoid physical contact.
Staff Recommendation
Staff recommends the adoption of the ordinance which will provide law enforcement additional tools, in instances where conduct may not rise to the level of disorderly, or harassing, but might in any event be a source of fear and intimidation to Castle Rock residents, or those passing through historic Downtown, or other commercial areas. The proposed ordinance achieves these goals while balancing the First Amendment rights of those engaged in lawful and non-aggressive panhandling activities.
Attachments
Attachment A: Ordinance - 2nd Reading
Proposed Motion
I move to approve the Ordinance as introduced by title on second and final reading.