When City Council was considering restricting solicitation (asking for money) on streets in certain areas of Asheville last fall, some city leaders expressed last-minute alarm that a ban on panhandling would also apply to street performers and charitable fund raising. In the end, Council passed the ordinance anyway, instructing City Attorney Bob Oast to find some way around the constitutional problem of selective prosecution.
At Council’s May 6 work session, Oast proposed further amendments designed to do just that.
The new amendments, Oast explained, would allow “passive” solicitation, described as “nonverbal” panhandling. As examples, he cited an upturned hat, an open guitar case, or the Salvation Army’s trademark bell and kettle.
The catch, however, remains the same: In order for the ordinance to withstand legal challenges, it would have to recognize a panhandler’s right to hold a sign that says “Will Work For Food” as well as a street musician’s right to display a begging bowl.
The 2002 ordinance (which modified a 1992 law that already banned “aggressive begging”) was brought to Council by Police Chief Will Annarino last November. Since its passage, Council has heard concerns that the ordinance is too broad and that it targets street performers, seen by some as a desirable addition to the downtown scene. Critics of the fiercely scrutinized law have pointed out some unintended consequences: Oast noted, for example, that asking a friend for change for a parking meter could be interpreted as a violation of the law.
A review of cases around the state and country, reported Oast, sends a clear message as to what Council can and cannot do.
“[Constitutionally] this ordinance must be directed at conduct, not communication,” Oast told the Council. “We cannot designate between forms of solicitation.”
Attendance at the Council table was unusually sparse. Vice Mayor Terry Bellamy, at home with a new baby, followed the proceedings via speakerphone. And Council members Brian Peterson and Jim Ellis were both on vacation, Mayor Charles Worley explained.
Lt. Jon Kirkpatrick of the Asheville Police Department told Council that the amount of panhandling downtown has decreased since November. That drop, however, must be attributed to word-of-mouth, he said, since the APD has not been actively enforcing the new ordinance. Kirkpatrick didn’t speculate as to how much the intervening winter weather might have contributed to the decline in street begging.
Council members expressed some confusion about the difference between “passive” (displaying a sign, hat or other nonverbal request), “active” (approaching, speaking or touching a passerby) and “aggressive” (outright harassment and repeated requests) panhandling. Council member Joe Dunn even seemed unclear about what restrictions he had voted for last fall, asking whether the current ordinance bans the Salvation Army’s annual downtown fund-raising campaign (it does).
As things now stand, the panhandling ordinance bans any request for money made downtown or in Biltmore Village (defined as “high-traffic areas”). Additional restrictions apply to begging within the city limits but outside the downtown area: Solicitation is forbidden within 50 feet of a bank or ATM, near outdoor dining areas or lines on the sidewalk, after dark, or while intoxicated.
Oast also recommended that the “after dark” designation be dropped, since many street musicians play to an evening audience of diners and barhoppers.
Even as Oast was trying to refine the ban, however, some on Council seemed inclined to expand the area covered by the ordinance.
“I don’t know why we can’t make this a citywide ordinance,” Dunn observed. “There is a little bit of discrimination on people outside the high-traffic [downtown] area.”
Council member Carl Mumpower also asked about expanding the area of coverage. “If we differentiate between passive and active, is it possible for [the ordinance] to change from downtown to citywide?”
A citywide ordinance, noted Oast, would have to be complaint-driven in order to withstand legal challenges.
And Worley pointed out that if other areas of the city became a problem, they could be added to the ordinance later.
Council member Holly Jones supported the changes, saying business owners who complain about panhandlers need to consider the appeal of street performers for tourists and other downtown patrons.
“I’m sure somebody will be unhappy,” predicted Jones. “But the trade-off is the street musicians; this goes hand in hand.”
Speaking of hand in hand…
Street musicians stand to reap additional benefits if Council enacts changes suggested by City Development Director Sasha Vrtunski. She proposed amendments to the current sidewalk ordinance, some of them linked to passage of the new panhandling amendments.
The first change, she said, would be to stop requiring a $25 annual license for street performers, which would no longer be necessary under the proposed “passive solicitation” rules. The move, said Vrtunski, would have the added benefit of giving city staff more time to address other issues.
Street performers would still have to abide by the panhandling ban, however, and so could not actively ask for money.
Other amendments would prohibit the use of amplifiers and limit performers to one hour in a given spot (they would then have to move on). The rule, Vrtunski explained, reflects the competition among performers for high-traffic stages. After another hour, a performer could return to the original location.
Another amendment would allow pushcart vendors to operate starting at 7 a.m. (instead of the current 9 a.m.) to support the possibility of coffee-and-espresso carts.
Both sets of amendments will be up for a vote at Council’s May 13 formal session.
City Manager Jim Westbrook recommended that Council’s May 20 work session be canceled, noting that there’s nothing on the agenda for that week. The move would require a Council vote at the May 13 formal session.
Additionally, a joint city/county work session to discuss land-use issues has been tentatively scheduled for Thursday, May 29 at 12:15 p.m. Pending approval in formal session, the meeting will be held in the first-floor conference room in City Hall.
Board and commission openings
Applications are being taken for the Civic Center Commission, Civil Service Board and Regional Water Authority. The deadline for receiving applications is Friday, May 16 at 5 p.m. Call 259-5601 for more information.