People v. Barton

• Decision Date: 10 March 2006
• Docket Number: No. 05/0017,05/0017
• Citation: 816 N.Y.S.2d 853,12 Misc.3d 322,2006 NY Slip Op 26109
• Parties: THE PEOPLE OF THE STATE OF NEW YORK, Appellant, v. MICHAEL BARTON, Respondent.
• Court: New York District Court

12 Misc.3d 322

816 N.Y.S.2d 853

2006 NY Slip Op 26109

THE PEOPLE OF THE STATE OF NEW YORK, Appellant, v. MICHAEL BARTON, Respondent.

No. 05/0017

County Court, Monroe County.

March 10, 2006.

Donald M. Thompson for defendant.

Michael C. Green, District Attorney (Michael Nolan of counsel) and Thomas S. Richards, Corporation Counsel, Rochester (Jeffrey Eichner of counsel), for plaintiff.

OPINION OF THE COURT

ALEX R. RENZI, J.

Background

In May of 2004 the City of Rochester added a new section to its Municipal Code specifically prohibiting various forms of aggressive panhandling in the city. Section 44-4 of the Municipal Code of the City of Rochester (the ordinance) was adopted to meet community concerns over the conduct of panhandlers and the negative effects that conduct was having on the city. The specific subdivision at issue in this case, subdivision (H) of Municipal Code § 44-4, reads as follows: "H. No person on a sidewalk or alongside a roadway shall solicit from any occupant of a motor vehicle that is on a street or other public place."

Respondent/defendant Michael Barton was ticketed on August 4, 2004 by a member of the Rochester Police Department for violating section 44-4 (H) of the Municipal Code for allegedly walking into traffic on the inner loop exit ramp to Main Street and soliciting funds from passing motorists. Before trial, respondent moved to dismiss the accusatory instrument which charged him with aggressive panhandling on the ground that the subject ordinance was unconstitutional. Specifically, respondent argued that the statute was overbroad and not narrowly tailored and therefore did not pass constitutional muster.

The court below found that although the ordinance was content neutral, subdivision (H) was overbroad and not narrowly tailored sufficiently to pass constitutional muster. Accordingly, the charges pending against respondent were dismissed and this appeal followed.

For the following reasons this court disagrees with the court below and the matter is remanded for further proceedings.

Discussion

It is undisputed that the ordinance at issue here incidentally burdens a First Amendment freedom. The court below held that although section 44-4 (H) burdens protected expressive activity, it was content neutral and reasonably related to a specific governmental interest. The court below did find, however, that section 44-4 (H) was overbroad and not narrowly tailored sufficiently to pass constitutional muster. In its analysis the court below cited two examples of persons affected by section 44-4 (H): a person passively sitting on the sidewalk with a sign saying "food," and the individual standing on the side of the 490 west off-ramp with a sign begging for money. The court below indicated that it considered these examples, as well as the law it believed most pertinent to this issue, and held that the statute in question banned what it deemed to be both "aggressive" and "passive" solicitation and as such was not narrowly tailored sufficiently to pass constitutional muster.

In its analysis, the court below relied heavily on the Coalition for Humane Immigrant Rights of Los Angeles v Burke (2000 WL 1481467, 2000 US Dist LEXIS 16520 [CD Cal 2000] [CHIRLA]), a federal District Court case out of California. In sum and substance, CHIRLA dealt with a section of the Los Angeles City Code that prohibited any person, while standing in any portion of a public right-of-way (streets, highways, sidewalks, driveways), to solicit or attempt to solicit employment, business or contributions of money or property from any person traveling in a vehicle along a public right-of-way. The CHIRLA court found that the ordinance was overly broad in that it prohibited certain acts of solicitation that had little to do with the ordinance's stated purpose: promoting the safety of motorists and pedestrians using public right-of-ways. Likewise, the court below reasoned that certain acts of solicitation, specifically acts that the court categorized as "passive" forms of solicitation (much like the two examples referenced by the court below), did little to further the specified purpose of the statute and therefore the statute was not sufficiently narrowly tailored.

Legal Analysis

1. Is the Ordinance Sufficiently Narrowly Tailored?

Panhandling implicates at least some expressive or communicative activity protected by the First Amendment. (Schaumburg v Citizens for a Better Environment, 444 US 620 [1980].) Public streets and sidewalks traditionally constitute public fora for the exercise of constitutional rights. However, "[e]ven protected speech is not equally permissible in all places and at all times." (Cornelius v NAACP Legal Defense & Ed. Fund, Inc., 473 US 788, 799 [1985].)

Governmental regulations which incidentally burden First Amendment freedoms must pass a litany of tests to pass constitutional muster. Such regulations will be justified if they are "within the constitutional power of Government; if [they] further[] an important or substantial governmental interest; if the governmental interest is unrelated to the suppression of free expression; and if the incidental restriction of alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest." (United States v O'Brien, 391 US 367, 377 [1968].) The United States Supreme Court has further ruled that in traditional public fora such as streets and parks, as in the instant case, the test to be applied to governmental limitations upon expressive activity is as follows "In these quintessential public forums, the government may not prohibit all communicative activity. For the State to enforce a content-based exclusion it must show that its regulation is necessary to serve a compelling state interest and that it is narrowly drawn to achieve that end . . . The State may also enforce regulations of the time, place, and manner of expression which are content-neutral, are narrowly tailored to serve a significant government interest, and leave open ample alternative channels of communication." (Perry Ed. Assn. v Perry Local Educators' Assn., 460 US 37, 45 [1983].)

Once a regulation is found to be content neutral, it must also be narrowly tailored to serve a significant governmental interest and must leave open ample alternative channels for communication in order to meet the time, place and manner standard set forth above in Perry. An ordinance is considered to be narrowly tailored "so long as the . . . regulation promotes a substantial government interest that would be achieved less effectively absent the regulation." (Gresham v Peterson, 225 F3d 899, 906 [7th Cir 2000].)

A review of the legislative history of the statute reveals section 44-4 (H)'s primary purpose is to limit the interference that solicitation and panhandling pose on the free flow of pedestrian and vehicular traffic on streets and sidewalks in the City of Rochester. "The city has a legitimate interest in promoting the safety and convenience of its citizens on public streets." (Gresham v Peterson, 225 F3d at 906.)

This court's analysis begins with a brief review of similar cases around the nation. A similar question was decided in Gresham v Peterson (225 F3d 899 [7th Cir 2000]). In Gresham, the 7th Circuit Court of Appeals upheld an Indianapolis ordinance that limited street begging in public places and entirely prohibited "aggressive panhandling." The statute in Gresham banned panhandling between sunset and sunrise, from stopped or parked cars, from specified areas such as bus stops, near sidewalk cafes, ATMs and bank entrances, and banned any panhandling in an "aggressive manner" (defined similar to section 44-4 [H]). The justification for the statute in Gresham was much the same as that given to justify section 44-4 (H). The Gresham court applied the time, place and manner standard set forth in Perry (supra), and held that the Indianapolis ordinance was content neutral, was sufficiently narrowly tailored, and left open ample alternative means of communication.

The 11th Circuit Court of Appeals also tackled the issue of begging on a five-mile section of Fort Lauderdale beachfront and related areas in Smith v City of Fort Lauderdale, Fla. (177 F3d 954 [11th Cir 1999]). The City of Fort Lauderdale enacted rules regulating its city parks and beaches for the purpose of providing its citizens with a safe environment in which to pursue recreational activity. One of those regulations prohibited begging and/or panhandling on a five-mile strip of beach, its connecting sidewalk, and a nearby section of commercial sidewalk. The 11th Circuit Court of Appeals held that the Fort Lauderdale ordinance was sufficiently narrowly tailored to serve the significant government interest at stake and therefore did not violate free speech guarantees.

The 9th Circuit Court of Appeals held that a Phoenix statute prohibiting persons from standing on a street or highway soliciting contributions from occupants of any motor vehicle was narrowly tailored to meet its stated purpose. (Acorn v City of Phoenix, 798 F2d 1260 [9th Cir 1986].) Likewise, the 5th and 8th Circuit Courts have also addressed similar statutes and found them sufficiently narrowly tailored to serve the interests at stake. (Association of Community Orgs. for Reform Now v St. Louis County, 930 F2d 591 [8th Cir 1991]; International Socy. for Krishna Consciousness of New Orleans, Inc. v City of Baton Rouge, 876 F2d 494 [5th Cir 1989].)

This court finds that the governmental interest at issue with regard to section 44-4 (H) of the Rochester ordinance, prohibiting interference with the free flow of vehicular traffic and promoting traffic safety, is a compelling interest and directly promoted by the regulation. While there exists some incidental burden on First Amendment freedoms here, the governmental interest at issue—prohibiting interference with the free flow of vehicular traffic and promoting traffic safety—is...