Last week, in a lawsuit filed against Charlottesville, five homeless men claimed that City Council’s soliciting ordinance unlawfully restricts panhandling on the city’s Downtown Mall. With the support of the ACLU of Virginia and local legal representation, the plaintiffs claim that the ordinance violates their First and Fourteenth Amendment rights—free speech and equal protection.
Local attorney Jeffrey Fogel spoke about the suit during a press conference before the Thomas Jefferson Center’s community chalkboard, a free speech monument and a setting that Fogel called “ironic.”
“Do we want to live in a society where it is a crime for a poor person to stand without interfering with anybody and ask for help?” asked Fogel. “My answer is no. The Constitution’s answer is no, as well.”
Last August, City Council approved an ordinance that restricted “soliciting” (formerly “panhandling”) within 50′ of vehicular crossings on Second and Fourth streets, as well as within 15′ of bank ATMs and entrances, during business hours. The ordinance also restricts soliciting “from or to” any person seated at the Mall’s various outdoor cafés and vendors—but too vaguely, claims the suit.
“I understand what soliciting from somebody means, but soliciting to somebody?” asks Fogel. “Does it mean that if I go to somebody at an outdoor café and hand a $20 bill, am I a criminal?”
The suit alleges that the ordinance criminalizes “the solicitation of money or things of value” but not other forms of solicitations.
“It’s O.K. for a musician to set up close to a building to play their music, but when we sit up against a building and fly a sign, we get harassed,” said plaintiff Earl McCraw at the press conference. McCraw has received one citation for violating the ordinance, and tells C-VILLE, “We are not harassing people who are sitting there eating. We are just sitting there holding a sign.”
Plaintiff Michael Sloan, who usually sits in front of the Jefferson Theater with his dog, Jeda, agrees. “They are doing essentially the same thing we are,” he tells C-VILLE. “They are panhandling, they just don’t fly a sign. But if I take the sign down and sit here with my dog, it’s still panhandling.”
Since August, Charlottesville Police have issued three panhandling citations on the Mall. According to Lt. Ronnie Roberts, city police took a “proactive approach” and educated those who were panhandling on the restrictions of the ordinance, then issued warnings for first infractions.
City Attorney Craig Brown said he won’t comment on a pending litigation, but tells C-VILLE that the city has up to 21 days to file an answer to the suit. Mayor Dave Norris says the changes made to the ordinance were “very modest.”
“Most of the Mall…is still open for solicitations, and the changes that we made had to do with protecting pedestrian safety in the vehicular crossings,” he says in an interview.
He would have preferred to go a step further. In addition to limiting soliciting to 15′ from banks and ATM machines, “there was a proposal to extend that to 15′ of anywhere there is cash exchanging hands, including outdoor cafés,” says Norris. “Our city attorney thought that went too far in restricting people’s freedom of expression.”
Neither Downtown Business Association chair Bob Stroh nor Main Street Arena owner Mark Brown—previously involved in a failed campaign to direct panhandling cash to the Thomas Jefferson Area Coalition for the Homeless—feel the ordinance is unconstitutional.
“The lawsuit is not a genuine lawsuit brought on by the plaintiffs,” says Brown. “The lawyer has been working on this for a year.”
Fogel tells C-VILLE that he has appeared in front of City Council to oppose amendments to the panhandling ordinance and presented its members with an alternate ordinance from the City of Indianapolis, where “passive forms of solicitation” are permitted.
“If somebody doesn’t verbalize anything, if they simply hold up a sign, holding a cup, have an open guitar case, those things are excluded from any prohibitions,” explains Fogel.
McCraw and Sloan, who have each been homeless for multiple years, say they do not enjoy asking for money, but their disabilities make finding work close to impossible.
“I don’t like what I do,” says Sloan. “I hate it, but I have to do it.”