[HISTORY: Adopted by the Mayor and Council of the City of Española as indicated in article histories. Amendments noted where applicable.]
[Adopted 10-26-2010 by Ord. No. 2010-09]
This article shall be known and may be cited as the "Safety in Public Places Ordinance."
The City Council finds and states its intent as follows:
It is the intent of the Council in enacting this article to improve the quality of life and economic vitality of the City and to protect the safety of the general public against certain abusive conduct of persons engaged in panhandling by imposing reasonable time, place and manner restrictions on panhandling while respecting the constitutional rights of all citizens.
An increase in aggressive panhandling throughout the City has become extremely disturbing and disruptive to residents and businesses, and has contributed not only to the loss of access to and enjoyment of public places, but also to an enhanced sense of fear, intimidation and disorder among the general population.
Aggressive panhandling usually includes approaching or following pedestrians, the use of abusive language, unwanted physical contact and/or the intentional blocking of pedestrian and vehicular traffic and such other conduct as identified and regulated in this article. Aggressive panhandling has directly led to extreme violence and harm to citizens in Española.
The presence of panhandlers soliciting money from persons at or near banks or automated teller machines is especially threatening and dangerous. Motorists also find themselves confronted by persons who, without permission, wash their automobile windows at traffic intersections despite explicit indications by drivers not to do so. Such activity often carries with it an implicit threat of harm to motorists, passengers and their property. People driving or parking on City streets frequently find themselves faced with panhandlers seeking money by offering to perform "services" such as opening car doors or locating or holding parking spaces. Such face-to-face solicitation presents risks of duress and is a particularly intrusive and disruptive form of communication and is therefore appropriately regulated by this article. The restrictions on panhandling in this article are for times and at places where citizens are more likely to be vulnerable to harassment and intimidation.
Many panhandlers are in fact not homeless, but instead are confidence operators, who prey on the elderly, tourists and others who are uncertain about the genuine needs of the panhandler.
The solicitation of people in places where they are a "captive audience" in which it is impossible or difficult for them to exercise their own right to decline to listen or to avoid solicitation from panhandlers is abusive and dangerous. Such places include public transportation vehicles, public transportation termination points and points of entry to and exit from public transportation, indoor and outdoor dining areas, parking lots and structures, and those places where people are standing in line to enter a commercial or public facility. Restricting panhandling in such places will provide a balance between the rights of panhandlers and the rights of persons who wish to decline or avoid the panhandling and will help avoid or diminish the threat of violence in such unwarranted and unavoidable confrontations and provide for the safety and security of the commuting public, tourists, and those citizens wishing to use public places and commercial facilities.
The panhandling prohibited by this article constitutes a nuisance that deprives the citizens of the City of an acceptable environment in which they may live.
The City does not seek to discourage street performances to the extent that they do not interfere with the reasonable expectation of residents and businesses to the enjoyment of peace and quiet in their homes and businesses or pose a safety risk to the public and passersby. This article seeks to balance the interests of the street performers with those of the other residents and the businesses within the City.
This article is timely and appropriate because current laws and City ordinances are insufficient to address the aforementioned problems. The restrictions contained herein are neither overbroad nor vague and are narrowly tailored to serve a substantial government interest. In enacting this article, the Council recognizes the availability of community service and other sentencing alternatives that may be appropriate remedies for violations of this article. The goal of this article is to protect citizens from the fear, harassment and intimidation accompanying certain kinds of panhandling that have become an unwelcome, overwhelming and dangerous presence in the City.
The following words, terms and phrases when used in this article shall have the meanings ascribed to them in this section except where the context clearly indicates a different meaning:
- AGGRESSIVE PANHANDLING
- Aggressive panhandling occurs only when the panhandler:
- A. Comes closer than three feet to the person solicited unless and until the person solicited indicates that he or she wishes to make a donation;
- B. Touches the solicited person without the consent of the solicited person;
- C. Panhandles a person while such person is standing in a line of no less than five people who are waiting to be admitted to a commercial establishment or public facility;
- D. Blocks the path of a person being solicited as that person attempts to walk away from the panhandler;
- E. Blocks the entrance to any building or vehicle while panhandling;
- F. Continues to solicit while following behind, ahead or alongside of a person who walks away from the panhandler after being solicited and declining;
- G. Causes a person to take evasive action to avoid physical contact with the panhandler who is panhandling;
- H. Threatens the person solicited with physical harm by word or gesture;
- I. Directs profane or abusive language toward the solicited person either during the solicitation or following a refusal to make a donation;
- J. Makes any statement, gesture, or other communication which would cause a reasonable person to be fearful or feel compelled to donate;
- K. Immediately continues to solicit from a person after receiving a negative response;
- L. Panhandles in a group in which two or more persons panhandle the same person at the same time; or
- M. Returns to the same location to continue panhandling after being asked to leave by an authorized representative of the owner or occupier of said location.[Added 11-19-2013 by Ord. No. 2013-02]
- BUSKING; BUSKER
- To play music or perform entertainment, usually in a public
place while soliciting money.[Added 11-19-2013 by Ord. No. 2013-02]
- Any person who engages in an act of panhandling.
- A. Panhandling occurs when the panhandler performs any solicitation, soliciting of alms, begging or any other form of asking for donations, made in person upon any public place or on private property in the City, in which a person requests an immediate donation of money, other gratuity or thing of value from another person or solicits the sale of goods or services.
- B. Panhandling includes but is not limited to seeking donations by vocal appeal.
- C. Panhandling shall not include street performances, buskers or licensed door-to-door solicitations. Panhandling violations pursuant to this article shall not include the act of passively standing or sitting with a sign or other nonauditory indications that a donation is being sought. The prohibition of vocal requests for donations shall not include any responses by the panhandler to any inquiry by another person. Panhandling shall not include solicitations of charitable contributions by persons having a valid permit issued by the City to do so. Panhandling shall also not include sales of newspapers, provided such sales are done in a manner as to not endanger the vendor or motoring public.
[Amended 11-19-2013 by Ord. No. 2013-02]
- PUBLIC PLACE
- A place to which the public or members of the public with lawful have access, and includes, but is not limited to, any street, highway, sidewalk, parking lot, plaza, transportation facility, school, place of amusement, park, playground, and any doorway, entrance, hallway, lobby and other portion of any business establishment, an apartment house or hotel not constituting a room or apartment designated for actual residence.
- STREET PERFORMANCE
- The act of reciting or singing, acting, dancing, miming, pantomiming, playing a musical instrument or performing a theatrical or literary work.
[Amended 2-24-2015 by Ord. No. 2015-02]
Time. It shall be unlawful to engage in an act of panhandling in a public place on any day from after sunset until sunrise.
Specific places. It shall be unlawful to engage in an act of panhandling at any time when either the panhandler or the person being solicited is located at any of the following locations:
In any public transportation vehicle or public transportation facility.
Within 20 feet of any public transportation stop that is identified by signage.
Within 20 feet of a public transportation facility.
In public parking lots or public parking structures.
Within 15 feet of any sidewalk café.
Within 50 feet in any direction from an automatic teller machine or an entrance to a bank.
Within 40 feet of people standing in a line of no fewer than two people who are waiting to be admitted to a commercial establishment or public facility.
On private property or residential property, without permission from the owner or occupant.
On school property or off school property and within 150 feet of the property line of a school.
Vehicles and vehicular traffic. It shall be unlawful to engage in an act of panhandling at any time of any day:
Involving any operator or occupant of a motor vehicle that is in traffic on or entering any street, street intersection, alley or other public passageway;
In any manner that interferes with the visibility of motorists and the sight distance of any motorist operating any vehicle on or entering any street, street intersection, alley or other public passageway;
Involving any operator or occupant of a motor vehicle on a public street in exchange for blocking, occupying, or reserving a public parking space, or directing the operator or occupant to a public parking space;
In exchange for cleaning motor vehicle windows while the vehicle is in traffic on or entering any street, a street intersection, alley or other public passageway; and/or
In exchange for protecting, watching, washing, cleaning, repairing, or painting a motor vehicle or bicycle while it is parked on a public street.
Aggressive panhandling. It shall be unlawful to engage in an act of aggressive panhandling at any time in any place within the City.
Each act of panhandling declared unlawful by this article shall constitute a public nuisance and a separate violation of this article. Each violation shall be punishable by a fine of not less than $50 nor more than $500 and up to 90 days in jail.