First Amendment Rights Debated In City Panhandling Limits
Written by Risa Polansky on May 22, 2008
By Risa Polansky
A new version of Miami’s proposed anti-begging law defines "panhandling," something earlier drafts didn’t do.
But a representative of the American Civil Liberties Union says the definition violates first-amendment rights.
An attorney on Miami’s Downtown Development Authority board, which created the ordinance, says it’s constitutional.
"We believe that the activity as they define it in this ordinance is constitutionally protected speech," said Carlene Sawyer, chair of the Greater Miami Chapter of the ACLU of Florida.
The new version defines panhandling as "any solicitation made in person in which a request is made for an immediate donation of money or other gratuity from another person."
Commissioners are to take a final vote on the ordinance today (5/22).
"You have the right under the Constitution to ask someone for help, and the way this is defined now in this area, you do not," Ms. Sawyer said.
Jay Solowsky, an attorney on the development authority board, said an Atlanta, GA, ordinance has about the same definition "and that has withstood attack and been held to be constitutional."
The definition would also preclude other types of solicitations, he said, including, for example, Salvation Army Santa Clauses, who ring a bell for donations.
An earlier version of the law, OK’d last month, drew criticism from supporters of the homeless.
It did not provide for warnings for first-time offenders and called for steep fines and imprisonment.
Commissioners directed staff to work with homeless advocates to tweak the language before presenting the ordinance for a final vote.
Panhandlers under the new version would receive a first-time warning, but repeat offenses still mean both fines and jail time
The ordinance calls for a fine up to $100 and 30 days imprisonment for second-time violators.
Third and subsequent offenses mean fines up to $200 and 60 days in prison.
"We think it’s enough to have 30 days in jail or a fine, not 30 days in jail and a fine," said Ben Burton, executive director of Miami Coalition for the Homeless. "I think that’s pretty extreme for asking somebody for a quarter."
There has been talk of altering the penalties section to provide for fines and/or jail, or possibly fines or jail, said Veronica Xiques, the assistant city attorney who worked with development authority to draft the law.
Commissioners are to have the final say.
Mr. Burton said he plans to ask for the change at today’s meeting.
"Most people are out there asking for money because they don’t have any," he said, adding that "we don’t think there should be an ordinance at all."
He did acknowledge, though, that the development authority "has shown some good faith" in working with advocates for the homeless to improve the proposed legislation.
"If there’s going to be an ordinance," he said, "I think this one is much better than the one that was proposed at the beginning."