Greater Cincinnati Coalition for the Homeless v. City of Cincinnati, 93-3938

Decision Date07 June 1995
Docket NumberNo. 93-3938,93-3938
Citation56 F.3d 710
PartiesGREATER CINCINNATI COALITION FOR THE HOMELESS and Charles Gooden, Plaintiffs-Appellants, v. CITY OF CINCINNATI, Defendant-Appellee.
CourtU.S. Court of Appeals — Sixth Circuit

Robert B. Newman (argued and briefed), Kircher, Robinson, Cook, Newman & Welch, Cincinnati, OH, for plaintiff-appellant.

Karl P. Kadon, III, and Mark S. Yurick (argued and briefed), City Solicitor's Office for the City of Cincinnati, Cincinnati, OH, for defendant-appellee.

Before: KEITH and DAUGHTREY, Circuit Judges; JOINER, District Judge. *

DAUGHTREY, Circuit Judge.

The Greater Cincinnati Coalition for the Homeless and Charles Gooden filed a complaint against the City of Cincinnati seeking injunctive, declaratory, and monetary relief for alleged damages suffered after enactment of what the plaintiffs term a municipal "anti-begging ordinance." The plaintiffs maintain that the provisions of the ordinance unconstitutionally infringe upon their rights of free speech guaranteed under the First and Fourteenth Amendments to the United States Constitution. The district court determined, however, that neither the Coalition nor Gooden has standing to contest the legality of the challenged ordinance. We now affirm that conclusion and the district court's dismissal of the plaintiffs' complaint.

I. Factual and Procedural History

In its order addressing the City's motion to dismiss the complaint for lack of standing, the district court admirably summarized the pertinent facts involved in this challenge. That ruling stated:

In the spring of 1992 a number of downtown Cincinnati retailers complained to members of City Council that "beggars" distracted and discouraged their customers and adversely affected their businesses. In response, the City enacted an emergency ordinance, effective May 20, 1992:

No person shall recklessly interfere with pedestrian or vehicular traffic in a public place.

'Interfere with pedestrian or vehicular traffic' as used in this section means to do any of the following:

(a) Walk, stand, sit, lie, or grab, touch or approach another person, in a public place, so as to block, interfere with, or impede the passage of any person or any vehicle, or to cause any person or any driver of any vehicle to alter his or her intended direction of travel; or

(b) Make a request, solicitation or demand for money or other thing of value, in a manner which would alarm, intimidate, threaten, menace, harass, or coerce a reasonable person; or

(c) Force oneself upon the company of another by continuing to communicate a request, solicitation or demand for money or other thing of value, to another person after the person gives notice or demonstrates by word or action that such communication is offensive, unwelcome or should cease.

'Public place' as used in this section includes streets, sidewalks, parks, plazas, parking lots, driveways, public or private buildings open to the public and doorways and entrances to buildings or dwellings.

Whoever violates this section is guilty of a misdemeanor of the fourth degree.

Cincinnati Municipal Code Sec. 910-13 (the Ordinance). Plaintiffs contend that the Ordinance violates their rights under the First and Fourteenth Amendments.

Plaintiff Gooden is a sixty-one-year-old man who has lived in the Cincinnati area since the 1950's. At the time the complaint was filed Gooden was homeless. He presently resides in an apartment within the City of Cincinnati.

Gooden receives Supplemental Security Income each month and has, at times, supplemented his income by politely asking strangers to give him money. His typical method is to approach people walking on the sidewalks of Cincinnati and to ask something like, "Sir, can you help me out, get me something to eat?" Sometimes people give him money, sometimes they do not. If the person refuses, Gooden does not grab or block the person's way. He tries to be polite, saying, "Thank you, sir" or "Thank you, ma'am", no matter what response he receives.

There are, according to Gooden, many individuals who become angry when a stranger rejects their request for money or assistance. Gooden, however, believes that one should not become angry when people refuse to give money or give only a small amount of money. He believes he acts reasonably when asking others for money or help.

Gooden receives an average of $25.00 in two to three hours when he engages in this activity. He uses the money to buy food or alcohol. To his credit, Gooden refused alcohol for the three months prior to the evidentiary hearing.

At one point during the summer of 1992 a Cincinnati Police Officer (known on the streets as "Kojack") wrote Gooden a ticket for what Gooden characterizes as "panhandling." The record does not contain a copy of the ticket, and Gooden does not recall the particular ordinance or statute he was charged with violating. Gooden testified that when he appeared in Municipal Court, Judge Painter, "threw the whole case out." On another occasion in late 1992 a Cincinnati Police Officer told plaintiff to "move along" without giving him a ticket.

Gooden does not want to be arrested under the Ordinance for asking others for money or help. He, consequently, has either curtailed or altogether ceased this activity. If this Court enjoins enforcement of the Ordinance, Gooden intends to supplement his income in the future, when necessary, by asking others for money in a polite manner.

Plaintiff Greater Cincinnati Coalition for the Homeless (the Coalition) is an unincorporated association founded in 1984 consisting of forty to forty-five member agencies as well as church groups and individuals. Members of the Coalition work to provide emergency resources for the homeless including shelter and food. The Coalition coordinates the policies pursued by its members and lobbies at the state and municipal level on behalf of homeless people living in Cincinnati. Its lobbying efforts have included "petitioning the City of Cincinnati not to demolish the Milner Hotel, and to stop arresting panhandlers ..." The Coalition has urged the Ohio General Assembly to restore benefits available to homeless individuals under the General Assistance program. The Coalition has not instructed its members or homeless individuals about the meaning of the Ordinance.

Michael Fontana, Director of the Coalition, has witnessed and experienced panhandling in Cincinnati between twenty-five to fifty times during the past year. Typically, a man will approach him and politely ask, "Can you spare some change?" Fontana testified that people who have approached him have acted reasonably and never recklessly. Fontana testified that there is a general impression on the streets of Cincinnati that police officers will use the Ordinance in an effort to stop all persons from soliciting funds from strangers. Fontana, however, was unable to identify a specific police officer who used the Ordinance in an effort to stop all soliciting in Cincinnati. Based upon his own observations as well as information gained from downtown business owners, Fontana asserts that some decrease in the amount of soliciting occurred in Cincinnati after the Ordinance took effect. The City disputes this assertion.

In his affidavit Fontana states the following:

The effect of the passage of the anti-begging ordinance on the Coalition and the Coalition members is to further tax their resources inasmuch as the minimal amounts of money and work that beggars could beg are now amounts that Coalition members must seek elsewhere.

* * * * * *

Shortly after the passage of the new panhandling ordinance there were 50 panhandlers arrested in the first week. Following the initial enforcement activity panhandling dropped dramatically. Panhandlers did not want to get arrested.

I know of people who had ceased their begging activities for fear of harassment from the police. This harassment did not necessarily always constitute arrest or citation, but sometimes simply was an order for the person to move out of the Central Business District. Every arrest I am aware of has taken place in the Central Business District. But I am aware of panhandling activity in areas as diverse as Over-the-Rhine, Walnut Hills, Corryville, and Clifton.

As a result of the enforcement activity following the readoption of the begging ordinance the Social Service Agencies that make up the Homeless Coalition have assumed an even greater burden because homeless people are coming to them in a state of complete destitution.

Patrick Clifford is the administrative coordinator at the Drop Inn Center, a member agency of the Coalition. The Drop Inn Center provides transitional housing for approximately 250 people per day as well as drug and alcohol treatment programs, food, showers, and personal hygiene items. The Drop Inn Center does not have the financial resources to provide free coffee, laundry services, or soft drinks. People may purchase coffee for $.25 and soft drinks for $.50 from machines at the Drop Inn Center. After the Ordinance took effect, some of the homeless people coming to the Drop Inn Center could not afford to purchase soft drinks or coffee. Clifford did not allege or quantify any economic loss to the Drop Inn Center due to the enactment of the Ordinance.

Clifford states in his affidavit:

Some people I know at the Drop Inn Center regularly get cited for panhandling, get 4 or 5 citations with fines in excess of $100.00, get processed by the system, and then get released back to the Drop Inn Center.

Clifford testified that there was a "noticeable crackdown on begging" when the Ordinance took effect. During the summer of 1992 he observed police asking people soliciting money or help to move along, but he does not know whether the Ordinance was enforced.

The parties have stipulated the following: "As a result of enforcement activity following the readoption of [the Ordinance], Coalition members have...

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