A Sweeter Tune

Responding to CFJ and public feedback, Spokane City Council makes several changes to ordinances regulating panhandling and street musicians.

The Spokane City Council approved significant changes to four proposed ordinances Monday (11/24) as it sought to avoid possible Constitutional challenges to new measures primarily intended to crack down on aggressive panhandling in the city’s central business district. A fifth proposed ordinance was dropped altogether.

Bonne Beavers, the Center for Justice attorney who led CFJ’s discussions with the council and its staff, said that while she still has some concerns about how the new ordinances will now be enforced, “overall, it’s a big improvement.” Beavers’s 11/19 letter to the city can be read here.

Assistant City Attorney Mike Piccolo, who serves as the council’s primary legal adviser, said the changes to the proposed ordinances were crafted after hearing public testimony at last Monday’s council meeting and after reviewing a subsequent round of “input” from Beavers, city prosecutor Jim Bledsoe, and Gonzaga University law professor George Critchlow last Friday.

“I think we got some pretty good input back and forth,” Piccolo said, “so I feel pretty comfortable that these amendments do resolve many of the problems that were presented last week.”

Monday’s final hearing was messy in that public comment was re-opened only as to the new proposed changes. The ungainly process invited confusion and led to a number of tense exchanges as Council President Joe Shogan worked to corral testimony to the specific wording changes of each of the four adopted ordinance. Nevertheless, the public comment directed at the changes themselves was mostly positive, and much of it came from street musicians and others who would be affected by the new laws.

“I’m a street musician and I want to thank the city for stepping up to the culture of Spokane and actually coming into the Twenty-first century as I would call it,” said Rick Bocook, a.k.a. “Harpman Hatter,” a harmonica player who frequently performs on downtown sidewalks.

Bocook managed to engage the council on several issues, one of which was his efforts to get clarification from city lawyers on what constitutes a public sidewalk (from the curb to the nearest structure) and how certain downtown merchants don’t understand the law and respect the rights of street musicians.

“This means that, as a street performer, I should be able to go to the line of the building without being harassed by a business owner,” Bocook explained. “This is something that I just think should be out here, in the open. We should know this stuff because it’s difficult to get answers about these things because people don’t always know the answer.”

Bocook mentioned two downtown businesses on Main Avenue which, he said, mistakenly assert that they own or control the sidewalk outside their stores.

“I don’t want to get harassed when I’m playing music,” he said.

Shogan invited Bocook to contact the City Attorney’s office if he or others were accosted by over-aggressive business owners trying to remove them from city sidewalks.

“Okay,” Bocook replied, “I can accept that, but I just wanted to make sure I brought these issues up.”

On the specifics of the draft ordinances, here are the highlights of what the council changed and enacted.

*With the “Pedestrian Interference” ordinance (C34337) the council made it a misdemeanor to “aggressively solicit,” “intimidate,” or “intentionally” interfere with pedestrians or motorists. CFJ and others objected to the previous language which would have made it a crime to “knowingly” interfere. The concern was that the statute could then be used to prosecute people who were merely causing people to walk around themselves or their equipment, without intending to cause interference.

*With the “Sitting or Lying on a Sidewalk in a Retail Zone” ordinance (C34338), the council made it a misdemeanor to “sit or lie down” or sit upon a chair or other object in the downtown retail area. The revised language broadens exceptions for people enduring physical or mental distress.

*With the “Street Performers” ordinance (C34339), the council made it a misdemeanor for a broad category of street level sales people (including peddlers and musicians) to “actively” solicit money without a business license. CFJ’s criticism of the draft ordinance was that it appeared to violate First Amendment free speech protections by discriminating on the basis of speech content. The final ordinance included a new paragraph:

“A person who engages in constitutionally protected expressive activities in the public right-of-way shall not be required to obtain a business license unless the person engages in business activities. Constitutionally protected expressive activities conducted in the public-right-of-way shall include, but is not limited to, street performers. For the purposes of this section, a street performer means an individual, including street musicians, who performs any form of artistic expression. The voluntary contribution of money by members of the public to the individual in association with the expressive activity shall not result in the requirement of obtaining a business license. A person who engages in constitutionally protected expressive activities in the public right-of-way must still comply with all other regulations regarding conduct in the public right-of-way.”

*With the “Regulation of Solicitation” ordinance (C34340) the council made it a misdemeanor to solicit on public roadways, or in proximity to a number of publicly used facilities, including ATM machines, building entrances, and gas pumps. In response to CFJ’s and others’ feedback, the ordinance was changed to drop a prohibition on “coercion,” (which, the City now agrees, is duplicative and unnecessary given other parts of the enacted package). The language of the ordinance also bars solicitation, without a license, in a roadway or in a manner that obstructs traffic.

*Finally, the Council simply withdrew a draft ordinance (C34341) that would have made it a misdemeanor to solicit money from people in vehicles. CFJ had criticized the language of the draft ordinance as targeting people requesting help while allowing signs holding other messages, such as political endorsements or advertising. CFJ also pointed out that the desired effect could be accomplished in the new solicitation ordinance (above) with its requirements for permits to solicit in roadways.

The votes to approve the four amended ordinances and drop the fifth ordinance were all unanimous.

Still, council member Richard Rush, brought a sobering context to the discussion of the ordinances–a discussion that took place at the end of a long and unusually contentious meeting that began with stark presentations on how local food banks and other social services were being stressed by the downturn in the nation’s economy.

“Just want to remark that it’s a pretty sad day when a legislative body like this one has to legislate civility,” he said. “And I would like to just to remind everybody that we are part of the same community. The fact that we are having to pass this and having to tip-toe up to the edge of Constitutionally protected behavior, that we are tip-toeing up to inconveniencing our homeless in this city, does not serve any of us well. But this is something we need to do. I would just appeal to the community to do so voluntarily.”

While relieved and encouraged by the changes from the earlier language, Beavers is now mostly concerned about how the language in the new ordinance aimed at street musicians will be interpreted. While the new ordinance attempts to draw a line between “passive” requests for money (i.e. a hat or guitar case on a sidewalk) and active soliciting, Beavers’s worry is with the reference to “business activities” in the ordinance. Because that term has such broad application in the Spokane Municipal Code, she thinks it may open the door for more zealous enforcement of open hat street musicians than the city council actually intends.

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