TELLURIDE – One month after the Telluride Marshal’s Office added another deputy to deal with growing complaints this summer related to transients, the Telluride Town Council on Tuesday directed Town Attorney Kevin Geiger to proceed with drafting an Aggressive Panhandling Ordinance to aid law enforcement.
The direction came at the end of a work session focused on addressing the specific language that could be used in such an ordinance, and the necessity of ensuring such language would pass constitutional muster. Language contemplated during the work session for an Aggressive Panhandling Ordinance would not prohibit panhandling and soliciting money under all circumstances, but would limit the legality of panhandling by restricting places, methods and times it can occur.
According to a memorandum prepared by Geiger, some of the proposed restrictions would include panhandling after dark, continuing to solicit money after a refusal, panhandling within 20 feet of a bank or an ATM, or soliciting a person under the age of 16.
The ordinance would also go on to define “aggressive” and “solicitation” and other relevant terms in a very specific manner to ensure consistency.
Geiger also emphasized in the memorandum that “as was stated in the earlier July 15, 2014 work session on this matter, the United States Supreme Court, in a variety of recent cases, has found that solicitation (or panhandling) is a constitutionally protected right under the 1st Amendment provided such activity occurs in … a setting which is viewed as a public forum for the free expression of ideas. While solicitation is not something that can be prohibited outright, local governments have the authority and can control or limit the “time, place and manner” of solicitation activities.”
With this in mind, he went on to suggest that possible language for an ordinance in Telluride be drawn from other statutes and ordinances around the country that passed constitutional scrutiny, citing New York City, Kalamazoo, Mich., and Longview, Wash., as places that had particularly strong and successful Aggressive Panhandling Ordinances.
Councilor Thom Carnevale expressed concern with using communities far bigger and far different than Telluride as examples on which to base an ordinance, and noted during the work session that “We saw the Marshal’s Department work really hard to deal with these problems since last meeting and we’ve seen a great difference. We have sufficient laws and guarantees in place to protect the community.”
Geiger explained that he chose the particular cities as examples because they had the strongest and most legally sound language in their ordinances, and also added that there were towns in Colorado that had Aggressive Panhandling Ordinances, such as Grand Junction and Colorado Springs, but the language in those towns’ ordinances was simply not as strong and, in the case of the latter, still not 100 percent constitutionally sound.
Carnevale also stated that he does not believe an ordinance is necessary at this point to combat the problem, and that it could have the effect of giving citizens the ability to use the law to stigmatize groups of people.
Carnevale then asked Chief Marshal Jim Kolar, “How set are you about having this ordinance in your toolbox, and is it still necessary for your office to deal with the transient problem?”
Kolar responded that although an ordinance is not a cure-all, it would offer the marshals another method of addressing the transient problem, and reminded council that the people who are the source of the problem this summer are a different group from previous years that law enforcement has not had contact with and who have lengthy criminal histories.
“Will an ordinance be used all the time?” Kolar asked. “No. A possible stumbling block is that this is a complaint-driven response mechanism. But it does help us address an issue that has been frightening for the community.”
Carnevale worried that although people want their complaints on record, many would be hesitant or even fearful of retaliation when it came time to file a complaint under the new ordinance and then see it through from start to finish, including testifying in court.
Councilor Kristen Permakoff responded to the concern by sharing that she has had no less than 12 people come to her for help after being aggressively approached, and that she believes the ordinance would represent a proactive and effective way to deal with the problem even if it does require some complainants to go to court. “If you have time to send me five emails,” she said adamantly, “you better be willing to go to court.”
Some councilors were still wary of tripping over constitutional issues relating particularly to freedom of speech and freedom of expression.
Geiger attempted to ease concerns by assuring council that prohibiting behavior was not at issue, and then clarifying that much of the language contemplated for the ordinance had already been found by other courts in different states and cities to be reasonable time, place and manner restrictions, and thus would not offend the constitution.
As an example, Geiger talked about a specific ban on “panhandling after dark,” explaining that “courts have found an ‘after dark’ prohibition to be reasonable because they have found people find this behavior more intimidating and threatening after dark.”
Geiger also responded to councilors’ questions about whether aggressive panhandling behavior could be dealt with under existing laws, such as harassment or assault, saying that most of the behavior associated with aggressive panhandling does not rise to the level of assault or harassment, thus it would be unlikely a prosecution would occur in response to a complaint about panhandling.
He summarized, “We would be making something that doesn’t amount to assault or harassment criminal behavior by defining it specifically as a crime in the ordinance.”
Permakoff spoke up, stressing the importance of the distinction between a prohibition of all panhandling or solicitation versus simply banning aggressive and threatening panhandling, which she is in favor of. “I would rather be proactive than reactive,” she added.
Mayor Stu Fraser supported being proactive as well, adding that in a recent conference bringing together mayors throughout Colorado, the single most pressing issue the majority of the mayors were attempting to deal with in their districts was panhandling.
“This exists in small towns, resort communities and non-resort communities across the state, so it’s not just in big cities or other states,” he said, “And the only towns I saw actually dealing with it were trying to do so through aggressive panhandling laws. If we act now and pass an ordinance we will be able to set an example for other towns, who will look to us for guidance and to see whether what we are doing is working.”