Asheville City Council

“If this problem comes back to us … I think it’ll be time for the city to crack the whip.”

— Council member Joe Dunn on panhandling

Break out your coin cups, Asheville: Panhandling is back. But if you’re down and out and looking to score some spare change (for food, shelter, medicine or other niceties), you’re going to have to bone up on some new rules.

In the latest chapter of the city’s continuing attempts to get a handle on panhandling, the Asheville City Council revamped a controversial solicitation ordinance passed last November. At their May 13 formal meeting, Council voted unanimously to substantially alter the law they’d so heartily supported seven months ago. Back in November, City Council voted 6-1 (Council member Brian Peterson cast the lone opposing vote) to prohibit all forms of solicitation downtown and in Biltmore Village. In addition, the ordinance prohibited begging near banks or ATMs throughout the city. But in a classic case of throwing out the baby with the bath water, the November law also effectively banned street musicians and charitable organizations from soliciting funds in the newly created panhandling-free zones.

That collateral damage to musicians and charities (such as the Salvation Army) — as well as the potential for a costly legal challenge by civil libertarians defending free speech — wasn’t lost on Council members during their November deliberations. In fact, City Attorney Bob Oast advised them that selective enforcement — cracking down on one segment of the population while turning a blind eye to comparable behavior by another — would be an Achilles heel for any such law. Nonetheless, Council chose to adopt the ordinance, instructing Oast to research and draft a revised version that would allow the city to control panhandling, preserve charitable solicitations and donations to street musicians, and stand up to any legal challenge.

Fast-forward to May 13: Oast returns to the chamber with a newly retooled panhandling ordinance for Council’s consideration. In an interview with Xpress after the meeting, Oast explained: “While I felt the November ordinance was defensible, this is an effort to strike a balance between some of the concerns raised by citizens over panhandling and those of the civil-liberties groups. The new ordinance recognizes the rights of people who, by whatever circumstances, are in a situation where they might need to solicit funds; but it also allows us to address panhandling in certain areas of town. We still need to make Asheville a place people want to visit — tourism is our economy — and we can take reasonable steps to protect that.”

The new ordinance maintains the citywide ban on “aggressive panhandling,” but it now also distinguishes between “active” and “passive” solicitation. Active solicitation, Oast explained, is a direct, one-on-one request for money. Passive solicitation, on the other hand, is a “nonspoken, nondirect type of solicitation.” The ordinance prohibits active solicitation in the portion of downtown and Biltmore Village where the blanket ban was already in effect, while permitting what Oast characterized as “alternative forms of communication: signs, open guitar cases, an upturned hat — things that are collectively defined as passive solicitation.” Thus, signs asking for handouts will now be allowed alongside the Salvation Army kettles and buskers’ baskets.

How all this will play out in practice, however, remains to be seen. And as Oast observed, “This establishes certain zones where we have a lower threshold for aggressive begging.”

The ban on soliciting near banks, ATMs and outdoor restaurants will be retained, noted Oast.

But Council members Joe Dunn and Carl Mumpower remained troubled by the fact that the ordinance’s stricter provisions apply only to portions of downtown and Biltmore Village. To make his point, Dunn likened panhandling to traffic accidents: “We might have one part of town where we have more accidents, but our traffic laws apply citywide. I’m still not convinced this [solicitation ordinance] shouldn’t be citywide.”

Oast reminded Dunn that the ordinance is dealing with constitutionally protected freedom of speech, a wholly separate and more fundamental issue than traffic laws. And in response to Dunn’s desire to ban panhandling citywide, Oast observed, “I’m sure that there are a lot of people who might agree with you, but some of the courts might not.”

Mumpower, meanwhile, asked Oast whether any municipality has successfully prohibited panhandling citywide.

“None,” the city attorney replied.

Despite the flurry of citizen protest (and some support) in the wake of the November ordinance, there was little public comment at the meeting. After a brief discussion, Council voted 7-0 to pass the new law. Both Dunn and Mumpower, however, made it clear that if they hear complaints about panhandling from parts of town not covered by the ordinance’s stricter provisions, they will push for an expansion of the active-solicitation ban.

Dunn didn’t mince his words, declaring: “If this problem comes back to us, I think we should go back to where we were. I think it’ll be time for the city to crack the whip.”

Mumpower echoed those sentiments.While conceding that City Council is doing what it can under current case law, he predicted that stricter prohibitions might be possible in the future “as the laws of the land change and new opportunities present themselves.”

The pushcart conundrum

In yet another regulatory move, City Council tightened the rules governing vendors’ carts. Downtown Development Director Sasha Vrtunski presented a plan that called for limiting the size of the carts, which are licensed by the city. Controlling the size and appearance of the carts (which she described as “private uses on public spaces”) should be done before their numbers increase, Vrtunski told Council. Although Asheville now has only 11 licensed street vendors (and only one — hot-dog purveyor Anderson Davis — who consistently operates his stand year-round), interest in the licenses is growing, noted Vrtunski. A 24-square-foot limit, she explained, would allow the city to license more street vendors without jeopardizing the free flow of pedestrian traffic.

But further regulating the smallest of the city’s small businesses didn’t sit well with Mumpower, Dunn and Vice Mayor Terry Bellamy, who objected to language in the proposed ordinance prohibiting carts big enough for vendors to stand in. Mumpower, in particular, wasted no time in voicing his objections.

It’s unreasonable, argued Mumpower, to force the vendors to stand outside in foul weather. He immediately followed with a motion to increase the size limit to 30 square feet — about the size of Davis’ hot-dog cart.

Discussion of the proposed change at Council’s MAY 6 work session had triggered a public outcry. Conservative talk-radio host Bill Fishburne made it the topic of several of his shows and was on hand at Council’s formal meeting to criticize the decision. The city, however, had already agreed to grandfather Davis’ cart into the new ordinance by including language in the legislation that would allow his cart to continue to operate as long as it met Health Department standards and was able to be moved in the event of an emergency.

But grandfathering Davis’ hot-dog cart didn’t seem to satisfy Mumpower, who noted that if a new vendor were forced to work with a smaller cart, they would simply plop a folding chair down next to it and thus would still be occupying more than 24 square feet. Thirty square feet, said Mumpower, would give the cart’s operator shelter from the elements while still allowing ample room for pedestrians.

Council member Jim Ellis, meanwhile, observed that the carts pay no taxes while competing with restaurants that do; limiting their size, he maintained, is not unreasonable. During the public hearing, however, those comments were challenged by Haw Creek resident Fred English, who shouted out: “You say he don’t pay any taxes? What about the $125 he pays for a license for each corner he operates on. He has a permit for two corners; what’s that if not a tax?”

Bellamy and Dunn supported Mumpower’s motion to increase the size limit, but it failed to secure the requisite fourth vote. Soon after, Brian Peterson made a motion to adopt the ordinance with the 24-square-foot limit.

Seeking to address the concern about cart operators’ comfort, however, Mayor Charles Worley suggested that Peterson modify his motion by striking the language prohibiting enclosed carts. That done, the motion passed on a 4-3 vote with Worley, Council member Holly Jones and Ellis joining Peterson in support.