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2025.03.13 Work Session Packet 4141 Douglas Drive North • Crystal, Minnesota 55422-1696 Tel: (763) 531-1000 • Fax: (763) 531-1188 • www.crystalmn.gov Posted: March 7, 2025 City Council Work Session Agenda Thursday, March 13, 2025 6:30 p.m. Upper Community Room/Zoom Pursuant to due call and notice given in the manner prescribed by Section 3.01 of the City Charter, the work session of the Crystal City Council was held on Thursday, March 13, 2025, at ______ p.m. in the upper community room at city hall, 4141 Douglas Dr. N., Crystal, MN and via Zoom. The public may attend the meeting via Zoom by connecting to it through one of the methods identified in the Notice of March 13, 2025, Work Session. I. Attendance Council members Staff ____ Onesirosan ____ Bell ____ Budziszewski ____ Tierney ____ Cummings ____ Therres ____ Deshler ____ Elholm ____ Eidbo ____ Larson ____ Kamish ____ Revering ____ Kiser ____ Hubbard ____ Struve ____ Sutter ____ Serres II. Agenda The purpose of the work session is to discuss the following agenda items: 1. Development concept for apartment building at 6000 56th Ave. N.* 2. Littering, panhandling and overnight parking. III. Adjournment The work session adjourned at ______ p.m. * Denotes no supporting information included in the packet. Auxiliary aids are available upon request to individuals with disabilities by calling the city clerk at (763) 531-1145 at least 96 hours in advance. TTY users may call Minnesota Relay at 711 or 1-800-627-3529. 4141 Douglas Drive North • Crystal, Minnesota 55422-1696 Tel: (763) 531-1000 • Fax: (763) 531-1188 • www.crystalmn.gov Posted: March 7, 2025 CRYSTAL CITY COUNCIL NOTICE OF MARCH 13, 2025 WORK SESSION NOTICE IS HEREBY GIVEN that the City Council of the City of Crystal will hold a work session on Thursday, March 13, 2025, at 6:30 p.m. in the Upper Community Room at City Hall, 4141 Douglas Dr. N., Crystal, MN and via Zoom. Topic: Crystal City Council Work Session Time: March 13, 2025, 6:30 p.m. Central Time (US and Canada) Join Zoom Meeting: https://us02web.zoom.us/j/83637448045?pwd=m328MeCqrSsl13A4t1sACDaPjkwnuT.1 Meeting ID: 836 3744 8045 | Passcode: 4141 Dial by your location: • +1 507 473 4847 US Find your local number: https://us02web.zoom.us/u/kuqVdXnfS Auxiliary aids are available upon request to individuals with disabilities by calling the City Clerk at (763) 531-1145 at least 96 hours in advance. TTY users may call Minnesota Relay at 711 or 1-800-627-3529. Memorandum DATE: March 7, 2025 TO: Mayor and City Council FROM: Adam R. Bell, City Manager SUBJECT: Constituent/Quality of Life Issues – Littering, Panhandling, and Overnight Parking BACKGROUND The Mayor and Council have requested a discussion of the issues of Littering, Panhandling, and Overnight Parking. These items are occasional constituent complaint issues and can impact the quality of life for residents and the appearance of the city. The three topics are outlined below. The Council is being asked to discuss these issues and determine if any changes are possible and/or desired. 1. Littering. With the interest to prevent or mitigate littering, one of the suggestions would be to increase the penalty. The city currently prohibits littering in the city code under Section 605.15. Under state law, littering is deemed a petty misdemeanor. The maximum fine by state law for a petty misdemeanor is $300. If this fine were to be increased more than $300, it would increase the criminal level to a misdemeanor with a maximum penalty of $1000. Increasing the penalty may not be a legal option. Littering from a vehicle is different and treated as a traffic offense. The number of Calls for Service related to littering since 2021. Please note that the vast majority of these calls are illegal dumping or property related and not random individuals littering in public. 2021 = 25 2022 = 36 2023 = 39 2024 = 31 Total 131 litter/dumping calls for service 2. Panhandling. Panhandling is generally protected by the First Amendment, allowing passive solicitation on public property, but aggressive or disruptive behavior is prohibited. A memo from the former City Attorney is attached with an overview of this aspect. In summary, Panhandling, as a form of speech, is protected by the First Amendment, meaning people can stand passively and display signs on public property. However, while generally protected, panhandlers cannot engage in aggressive or disorderly behavior, interfere with traffic, or trespass on private property. Aggressive panhandling, which includes physical contact, blocking paths, following people, using abusive language, or creating fear of harm, is illegal. Additionally, Panhandlers are not allowed to stand in roadways or in a way that endangers their own or others' safety. One thing that Crystal could do is amend our code to provide additional restrictions for specific locations, like some cities have attempted to do. As an example, certain locations may have specific restrictions on panhandling, such as within 10 feet of a crosswalk, in restrooms, on public transportation, or within 50 feet of park entrances. This of course can create additional challenges in enforcement and may still be subject to legal challenge. 3. Overnight Parking. Crystal currently prohibits overnight parking from 2:00 am to 5:00 am. Additionally, the city issues overnight parking permits from April 1-November 30. There have been requests for both stricter enforcement of the overnight parking prohibition and an expansion of the seasonal restriction for the parking permits. With either direction, street parking creates issues for snow removal during snow emergencies; however, that is an ongoing issue under the current regulations. The number of Calls for Service for parking citations since 2021: 2021 = 695 2022 = 812 2023 = 1249 2024 = 1318 Total 4074 citations issued. Seasonal Parking Permits Issued 2021 = 97 2022 = 115 2023 = 127 2024 = 136 RECOMMENDATION No formal staff recommendation. ATTACHMENTS • Applicable code and statute provisions • March 2020 Panhandling Memo from former City Attorney 1. Topic: Litter 605.15. Litter. Subd. 1. General rule. It is unlawful to throw, scatter or deposit litter on or in private or public property, bodies of water, vehicles or structures within the city. Property owners must maintain their premises free of refuse or other litter, except as otherwise expressly authorized by this section. The owner, lessee or occupant of private property, whether occupied or vacant, must maintain the property free of litter. Subd. 2. Nuisance; abatement. The accumulation of excess litter on private property is deemed a public nuisance and may be abated under Crystal city code, section 600. Subd. 3. Not exclusive. The authority granted by this subsection is in addition and independent of the authority granted and the procedure established by Crystal city code, section 1315 (Junk and Abandoned Vehicles). 2024 Minnesota Statutes 609.68 UNLAWFUL DEPOSIT OF GARBAGE, LITTER, OR LIKE. Whoever unlawfully deposits garbage, rubbish, cigarette filters, debris from fireworks, offal, or the body of a dead animal, or other litter in or upon any public highway, public waters or the ice thereon, shoreland areas adjacent to rivers or streams as defined by section 103F.205, public lands, or, without the consent of the owner, private lands or water or ice thereon, is guilty of a petty misdemeanor. 169.42 LITTERING; DROPPING OBJECT ON VEHICLE; MISDEMEANOR. Subdivision 1.Objects on highway. No person shall throw, deposit, place, or dump, or cause to be thrown, deposited, placed, or dumped upon any street or highway or upon any public or privately owned land adjacent thereto without the owner's consent any snow, ice, glass bottle, glass, nails, tacks, wire, cans, garbage, swill, papers, ashes, cigarette filters, debris from fireworks, refuse, carcass of any dead animal, offal, trash or rubbish or any other form of offensive matter, or any other substance likely to injure any person, animal, or vehicle upon any such street or highway. Subd. 2. MS 1969 [Repealed, Ex1971 c 27 s 49] Subd. 2.Dropping dangerous object on highway. Any person who drops, or permits to be dropped or thrown, upon any highway any of the material specified in subdivision 1, shall immediately remove the same or cause it to be removed. §Subd. 3.Removing object; responsibility. Any person removing a wrecked or damaged vehicle from a highway shall remove any glass or other injurious substance dropped upon the highway from such vehicle. Subd. 4.Dropping object on vehicle. No person shall drop or hurl any destructive or injurious material or object at or upon any motor vehicle upon any highway or the occupants thereof. Subd. 5.Misdemeanor. Any person who violates the provisions of this section is guilty of a misdemeanor. The record of any conviction of or plea of guilty under this section of a person operating a motor vehicle shall be immediately forwarded to the Department of Public Safety for inclusion upon that offender's driving record. Any second or subsequent offense under this section shall require a minimum fine in the amount of $400. Any judge may, for any violation of this section, order the offender to pick up litter along any public highway or road for four to eight hours under the direction of the Department of Transportation, with the option of a jail sentence being imposed. 2. Topic: Panhandling CHAPTER XX MISDEMEANORS Section 2000 - General provisions; prohibited conduct 2000.01. Conduct prohibited. It is unlawful to engage in an act or in the behavior prohibited by this chapter. Violation of a provision of this chapter is a misdemeanor and may be punished as provided in Crystal city code, section 115. 2000.03. Disorderly conduct. The following acts are disorderly conduct: (a) Lurking, lying in wait, or concealment in a building, yard or street in the city with intent to commit a crime therein; (b) Willfully disturbing a meeting not unlawful in its character, or the peace and quiet of a family or neighborhood; (c) Willfully and lewdly exposing one’s person or one’s private parts, or procuring another to so expose oneself, open and gross lewdness or lascivious behavior, or an act of public indecency; (d) Using profane, vulgar or indecent language in or about a public building, store, place of public entertainment, or place of business, public parks, or on streets, alleys or sidewalks of the city so as to be audible and offensive; (e) Appearing upon a public street or other public place in an intoxicated condition or drinking intoxicating liquor on a street, except when closed for a special event, or a vehicle on a public street; (f) Unlawfully striking or in an unlawful manner offering to or doing bodily harm to another person or unlawfully making an attempt to apply any degree of force or violence to the person of another, or in a violent, rude, angry or insolent manner touch or lay hands upon the person of another; or (g) Willfully making a false report to a police officer in the performance of the officer’s duties. 2000.05. Resisting a public officer. It is unlawful to willfully resist, delay, or obstruct a public officer in discharging or attempting to discharge the officer’s duty. 2000.07. False statements. It is unlawful to make a false statement in an application for a permit or license from the city. 2000.09. Swimming in Twin Lakes. It is unlawful to swim or bathe in Twin Lakes or in a creek or pond within the limits of the city between the hours of 10:00 p.m. and 6:00 a.m. 2000.11. Loitering. Subd. 1. Prohibited. It is unlawful to loiter, loaf, wander, stand or remain idle either alone or in consort with others in a public place in such manner as to: (a) Obstruct any public street, public highway, public sidewalk or any other public place or any building generally open to public patronage, by hindering or impeding or tending to hinder or impede the free and uninterrupted passage of vehicles, traffic or pedestrians; or (b) Commit in or upon any public street, public highway, public sidewalk or any other public place or any building generally open to public patronage, any act or thing which is an obstruction or interference to the free and uninterrupted use of property or with any business lawfully conducted by any one in or upon or facing or fronting on any such public street, public sidewalk or any other public place or building, all of which prevents the free and uninterrupted ingress, egress, and regress therein, thereon and thereto. Subd. 2. Police order. If a person causes or commits a condition enumerated in subdivision 1 of this subsection, a police officer or any law enforcement officer may order that person to stop causing or committing such conditions and to move on or disperse. A person who fails or refuses to obey such orders is guilty of a violation of this subsection. 2000.13. Fire alarm system and false alarms. It is unlawful to tamper with or in any way interfere with any element of any fire alarm system within the city. It is unlawful to give, or cause to be given, any alarm of fire or other emergency condition when no fire or emergency condition exists. 2000.15. Obstruction of fire hydrants. It is unlawful to park a vehicle in such a way as to obstruct a fire hydrant. The stopping or parking of a vehicle within ten feet of a fire hydrant is an obstruction of the hydrant and a violation of this subsection. 2000.17. Liquor and beer in parks. It is unlawful to bring into, possess, barter, give away, or consume any intoxicating liquor or non-intoxicating malt beverages in any public park or any vehicle parking area immediately adjoining such park, except to the extent expressly allowed by this Crystal city code. 2000.19. Liquor and beer in public places. It is unlawful to consume, barter, or give intoxicating beverages or malt beverages in or upon a public street, avenue, boulevard, alley, public way or parking lot open to the public, whether in a vehicle or not, in the city, except during a special event authorized by the city and then only in compliance with the permit issued for the special event and the applicable provisions of this Crystal city code. 2000.21. Trespass; notice. Subd. 1. Remaining on property. On premises privately owned but open to the use of the general public, it is unlawful to remain on the premises after having been requested to leave by the owner of the premises, an authorized representative of the owner, or any other person or entity entitled to possession of the premises. Subd. 2. Two year rule. On any property privately owned but open to the use of the general public, it is unlawful to return to the property after receipt of a written notice of trespass from the owner, an authorized representative of the owner, or any person or entity entitled to possession of the property, or law enforcement official, which notice prohibits the person from returning to the property. This prohibition is effective for two years from the date the written notice was served. Subd. 3. Notice. The written notice under subdivision 2 of this subsection must be personally served upon the party prohibited from entering the property. An affidavit of service must be executed at the time of service. A prosecution may not be maintained under subdivision 2 of this subsection unless the property owner or other complaining party can produce a copy of the notice of trespass and a signed affidavit of its service. 2000.23. Interference with inspection. It is unlawful to intentionally prevent, delay or interfere with any city inspector while said inspector is engaged in the performance of any duties imposed by this Crystal city code. Section 2005 - Nuisances 2005.01. Nuisances. Subd. 1. Acts constituting. The following acts are declared a public nuisance and are unlawful: (a) Engaging in a business or activity that is dangerous, hurtful, unwholesome, offensive or unhealthy to the neighborhood, or that constitutes an annoyance to the persons in the neighborhood, or is detrimental to the property in the neighborhood; (b) Permitting, suffering or maintaining, or failing to remove offensive, nauseous, hurtful, dangerous, unhealthy conditions resulting from a failure to properly dispose of garbage, sewage, waste, debris or any other unwholesome or offensive substance, liquid or thing, upon one’s premises, or to drop, discharge, pass, deposit or otherwise deliver the same upon the premises of another or public property; (c) Constructing, maintaining, permitting or allowing upon one’s property any billboard, sign, poster, or advertisement, or to post, publish, promulgate, broadcast, display, issue or circulate insulting, profane or abusive emblem, sign, device, or blasphemous written or printed statement, calculated or such as is likely to cause a breach of the peace; or (d) Displaying, circulating, issuing or publishing slanderous or obscene, immoral, or lewd pictures, posters, literature, writings, drawings or oral statements. Nothing in this subsection is intended to prohibit speech or expressions protected by the United States Constitution or the Constitution of the State of Minnesota. 3. Topic: Parking Section 1310 - Parking regulations 1310. 01. General rules. Subd. 1. Parallel to curb. Vehicles must be parked or stopped parallel with the edge of the roadway, headed in the direction of traffic, with the curb-side wheels of the vehicle within 12 inches of the edge of the roadway, and not closer than four feet to another vehicle parked at the curb. Subd. 2. Where no curb. On streets and highways not having a curb, a vehicle stopped or parked must be stopped or parked parallel with and to the right of the paved or improved or main travelled part of the street or highway. Subd. 3. One-way roadway. On a one-way roadway, a vehicle must be parked with the front of the vehicle facing in the same direction on the one-way street as the traffic thereof is permitted to pass. Subd. 4. Angle parking. On those streets that have been marked or signed for angle parking, vehicles must be parked at the angle to the curb indicated by the marks or signs. Angle parking is prohibited in any area of the city where such markings are not present. 1310.03. Parking prohibited. The parking and related prohibitions contained in Minnesota Statutes, section 169.34 are adopted by reference and are incorporated herein. 1310.05. Other parking restrictions. Subd. 1. Cars for sale. It is unlawful to park a vehicle on or abutting a street or highway for the purpose of displaying the vehicle for sale or exchange. A vehicle is deemed to be in violation of this section when it is found parked upon or abutting a street or highway and bearing a sign indicating that it is for sale or exchange. Subd. 2. Disabled vehicles. The provisions of this section relating to stopping, standing and parking do not apply to the driver of a vehicle that is disabled for a reasonable time, not exceeding 24 hours, while on the paved or improved or main traveled portion of a street or highway in such manner and to such extent that it is impossible to avoid stopping and temporarily leaving the disabled vehicle in such position. Subd. 3. City parks. It is unlawful to park a vehicle in a city park other than in a designated parking area. Subd. 4. Parking restrictions; snow events. After a snow event producing at least 1- 1/2 inches of snow on any city street, parking is automatically prohibited on all public streets and alleys until the snow has stopped accumulating and the street or alley has been plowed with the snow removed to curb to curb. Subd. 5. City parking lot. It is unlawful to park a truck-tractor or semitrailer in a city parking lot. Vehicles, including those with trailers, shall be parked within the designated parking lines and shall not be parked in a way that blocks parking by other vehicles. 1310.07. Parking times. Subd. 1. General rule. No vehicle may be parked upon a public street, alley, or within a city-owned parking lot between the hours of 2:00 a.m. and 5:00 a.m. on any day. This prohibition shall not apply to government-owned vehicles. Subd. 2. Truck parking. No truck may be parked upon any public street, alley, or other public way for a continuous period of more than two hours unless such vehicle is actively engaged in loading or unloading activities carried out in the normal course of business. For purposes of this subdivision, a “truck” shall be any vehicle having a capacity of 1½ tons or more, or any tractor-trailer combination. Subd. 3. Parking; temporary permits. During the period from April 1 to November 30, and on legal holidays and the days preceding and following legal holidays, the police chief is authorized to issue temporary permits for the parking of a vehicle on a street between the hours of 2:00 a.m. to 5:00 a.m. when in the police chief’s judgment special circumstances exist justifying the issuance of the temporary permit and the purposes of this subsection will not be impaired thereby. The permit is to be issued for a specific motor vehicle at a specific residential dwelling unit and must be prominently displayed in the interior of the vehicle. A temporary permit issued under this subsection is not transferable to another vehicle. One temporary permit may be issued under this subsection without a fee. The fee for the issuance of additional temporary permits under this subsection is set by Crystal city code, appendix IV. For purposes of this subdivision, the term “legal holiday” means: New Year’s Day; Martin Luther King Day; Presidents’ Day; Memorial Day; Independence Day; Columbus Day; Veterans’ Day; Thanksgiving Day; and Christmas Day. Subd. 4. City parking lots; temporary permits. The police chief is authorized to issue temporary permits for the parking of a vehicle in a city-owned or operated parking lot between the hours of 2:00 a.m. to 5:00 a.m. when in the police chief’s judgment special circumstances exist justifying the issuance of the temporary permit and the purposes of this section will not be impaired thereby. The permit is to be issued for a specific motor vehicle and must be prominently displayed from the interior of the vehicle. A temporary permit issued under this subsection is not transferable to another vehicle. One temporary permit may be issued under this subsection without a fee. The fee for the issuance of additional temporary permits under this subsection is set by Crystal city code, appendix IV. 1310.09. Towing authorized. A vehicle parked in violation of this section may be ordered removed from a public street, alley, or a city-owned or operated parking lot by a police officer pursuant to Minnesota Statutes, section 169B.035. Before towing any vehicle, the city shall make reasonable efforts to notify the owner and require that they remove the vehicle. The owner must pay all costs for the towing and storage of any vehicle towed hereunder. Except in an emergency, the removal of a vehicle by or under the direction of the police officer does not prevent the prosecution of a violation of this section. 1310.11. Disability parking areas. Parking in any space or area designated for disability parking is hereby prohibited and all violations shall be enforced pursuant to Minnesota Statutes, section 169.346. 1310.13. Shared mobility devices. Subd. 1. Definition. For the purposes of this subsection, a “shared mobility device” means a bicycle, electric-assisted bicycle, motorized bicycle, electric personal assistive mobility device, or a motorized foot scooter, as those terms are defined in Minnesota Statutes, section 169.011, or similar device that is made available to the public for short- term rental through a mobile application for trips with or without the device being located on a rack or docking system. Subd. 2. Parking. It is a violation of this Crystal city code to park, leave, or abandon a shared mobility device in any of the following ways or locations within in a public right-of- way or on public property: (a) On the travelled surface or parking lane of a street; (b) On a sidewalk or trail; (c) Within ten feet of the entry to a business or residence; or (d) In a location or in a manner that poses a threat to public safety, constitutes a tripping hazard, or that interferes with the city’s maintenance operations. Subd. 3. Impoundment. A police officer or authorized city employee may remove and impound a shared mobility device that is parked, left, or abandoned in violation of this section. The city shall provide the owner of the shared mobility device, if known, notice of the impoundment within three business days. The notice may be sent by electronic mail to any email address readily accessible on the owner’s website or, if none, the city may provide notice by phone. The notice shall include a description of the process to reclaim the shared mobility device. The city council may establish a reclamation fee in Crystal city code, appendix IV that is sufficient to offset the city’s enforcement and storage costs the owner must pay in order to reclaim an impounded shared mobility device. If the owner fails to reclaim the shared mobility device within 30 days of impoundment, the city may sell or otherwise dispose of the shared mobility device. 1315.01 Section 1315 – Abandoned, junk, and unauthorized vehicles 1315.01. Laws adopted by reference. Minnesota Statutes, chapter 168B is hereby adopted by reference and is incorporated into this Crystal city code as if fully set forth herein. A violation of the statutes adopted herein by reference is a violation of this Crystal city code. 1315.03. Definitions. For purposes of this section, the terms defined in this subsection have the meaning given them. If a term used in this section is not defined in this subsection, it shall have the meaning given it in Minnesota Statutes, section 168B.011. Subd. 1. Abandoned vehicle. “Abandoned vehicle” includes a vehicle defined in Minnesota Statutes, section 168B.011, subdivision 2; Subd. 2. Junk vehicle. “Junk vehicle” includes a vehicle defined in Minnesota Statutes, section 168B.011, subdivision 3. Subd. 3. Unauthorized vehicle. “Unauthorized vehicle” includes a vehicle defined in Minnesota Statutes, section 168B.011, subdivision 4. The term includes any vehicle parked in violation of the provisions of this Crystal city code. 1315.05. Towing and impoundment. The city may tow and impound any vehicle that constitutes an abandoned vehicle, junk vehicle, or unauthorized vehicle as provided in Minnesota Statutes, sections 168B.035, 168B.04, and such other law as may apply. Kennedy Troy J. Gilchrist 470 US Bank Plaza 200 South Sixth Street Minneapolis MN 55402 (612) 337-9214 telephone (612) 337-9310 fax tgilchrist@kennedy-graven.com http://www.kennedy-graven.com & Graven C H A R T E R E D Also: St. Cloud Office 501 W. Germain Street, Suite 304 St. Cloud, MN 56301 (320) 240-8200 telephone MEMORANDUM To: Crystal City Council From: Troy Gilchrist, City Attorney Date: March 5, 2020 (March 12, 2020 Work Session) Re: Panhandling Issue This memorandum provides a high-level overview related to the regulation of panhandling. This topic has become one of the more complex regulatory issues that cities face. The information contained in this memorandum in intended to provide an overview of the various legal issues that arise when a city is considering such regulation. This memorandum also seeks to answer some general questions related to such regulations, the steps involved in considering regulation, and to provide some examples for what approach other cities have employed in this area. I. General Overview The term “panhandling” encompasses a broad array of various activities.1 Most traditionally, panhandling was simply the act of requesting money or other things of value from passersby in a public place. The United States Supreme Court has been addressing panhandling, and ordinances regulating panhandling, since as early as 1938. As the Supreme Court has continued to consider cases which address the scope of permissible local regulation of panhandling and related activities, the rules surrounding what tools are available to local governments continues to grow more and more complex. Below is a discussion of some of the major legal issues which should be considered when a city is contemplating regulations which would limit panhandling. While cities clearly have an interest in regulating the time, place, and manner of certain activities through their police powers, those regulations must be certain to not run afoul of other Constitutional protections. As discussed below, panhandling regulations are commonly 1 For the purposes of this memorandum, the term “panhandling” shall be used to refer to all related solicitation activities. 2 challenged on the grounds that they interfere with the First Amendment rights of the person engaged in the Constitutionally-protected activity. II. Common Legal Concerns Up until 2015, the law was somewhat unclear on what legal test applied to the regulation of panhandling. Courts in different parts of the Country were applying different legal tests when reviewing local ordinances which regulated panhandling. However, the major point of agreement between these courts was that (1) panhandling, as an activity, was generally protected by the First Amendment because it implicated Free Speech, and (2) that any regulation limiting panhandling should be content-neutral.2 In 2015, the United States Supreme Court also decided a case related to local regulation of signs known as Reed. While that case did not address panhandling or any other activity, the legal rule that came from it has been found to apply to local regulations, including those related to panhandling. Under the Reed standard, the Supreme Court essentially developed a rule whereby the courts are to look first at whether the law itself is content-neutral, meaning whether it by its own terms regulate a certain type of content.3 If the law is content-based, it is subjected to a heightened level of scrutiny and is likely unconstitutional. However, if the law is deemed content-neutral, meaning that it applies to activities regardless of what the content of that activity is, then the courts are to look at the government’s goal in enacting the regulation. If the goal of the regulation is to regulate some protected activity, such as speech, then the law is similarly subjected to heightened scrutiny and presumed unconstitutional. Many panhandling ordinances, at their heart, seek to regulate content because they are directly related to the underlying message being relayed or communicated. For instance, an individual standing on a sidewalk who asks for money would likely be regulated by a local panhandling ordinance. However, a person standing on a sidewalk asking what the weather will be tomorrow will not be regulated by such ordinance. Because the only difference in those two scenarios is what is being said, under the Supreme Court’s reasoning the regulation is aimed at regulating speech and it must pass the heightened test. Based on the current state of the law, local ordinances related to panhandling should be carefully crafted to be as limited as possible to avoid implicating the heightened review standards under Reed, as applied to panhandling. III. Possible Approaches to Regulation In response to these changes in the law, many cities have taken steps aimed at further limiting the scope of their regulations related to panhandling. It is important to note that to date, the courts 2 While content-based regulation is not on its face invalid, any content-based regulation will be judged in light of a very difficult legal standard, and local regulation very rarely survives. 3 Typically, the content referred to relates to a certain type of speech. While this is another very complex area of law, it is sufficient for purposes of this memorandum to understand that speech takes many forms, including various non- verbal acts that are intended to relay a message. 3 have not provided definitive guidance related to whether these approaches are susceptible to the same challenges as the pre-Reed ordinances had been. Cities have begun regulating “aggressive panhandling” as opposed to simple panhandling.4 In defining what types of activities are prohibited, these laws focus on certain activities which involve some element of physical confrontation, coupled with it being done in a specific place. For instance, a request for money which is made within 80 feet of an ATM may be seen as “aggressive panhandling” because of the inherent intimidation associated with such requests. Additionally, things like physical contact, blocking a person’s path until they comply with a request, or using obscenities may also be included in definitions of “aggressive panhandling.”5 While these ordinances may help regulate the issue of concern to some degree, it is worth noting that they are not without difficulties of their own. As an example, prosecution under these ordinances may be difficult and costly. Additionally, these ordinances may come under Constitutional attack as being “overbroad” if they sweep too many possible actions or activities under their regulatory scheme. It is also critical to note that there is still some question regarding these types of ordinances and their ultimate fate. However, based upon recent action by the Courts, cities have become significantly more limited in what they can do in order to regulate panhandling, and adoption of more limited panhandling ordinances appears to have become one of the main ways cities continue to regulate this unwanted behavior. IV. Process to Consider Regulation Many of the decisions striking down local regulations have been critical of the lack of factual support for the concerns being expressed and the failure to exercise existing law or to explore non-regulatory means of addressing such concerns. In an attempt to learn from those identified shortcomings of local regulations, if the Council would like to move forward with examining its options to address the concerns being expressed, I recommend it proceed as follows: (1) Identify the specific concerning conduct. (2) Determine if the conduct is adequately regulated by existing state law. (3) Determine if the Council is interested in developing an ordinance to address any unregulated conduct of concern. (4) Identify the government interest being served by the proposed ordinance (what is the Council attempting to achieve?). (5) Collect data to further identify the basis for the concern and where it occurs in the City. (6) Identify a narrowly-tailored, content-neutral method of regulating the conduct that is supported by the collected data and that can be enforced uniformly. The following provides some additional information on each of these recommended steps. 4 The major reason for this further refinement relies on legal nuances and an effort to craft Constitutionally-permissible ordinances. 5 The Cities of Minneapolis, St. Paul, and Rochester, and St. Louis Park have adopted an “aggressive panhandling” ordinances that lists several restricted places and restricted activities as being aggressive panhandling. 4 1. IDENTIFY THE SPECIFIC CONCERNING CONDUCT This step involves taking the information received from the public, law enforcement, and the Council’s own observations and experiences regarding the types of conduct that are of concern. It is critical that this analysis focus on conduct and not what is being communicated. For example, is the concern threatening conduct, interference with traffic, negative impacts to local businesses, safety of those on medians, etc. 2. DETERMINE IF THE CONDUCT IS ADEQUATELY REGULATED BY EXISTING STATE LAW OR CAN BE ADDRESSED IN SOME OTHER WAY SHORT OF NEW REGULATIONS. As mentioned, when reviewing ordinances the courts have often pointed out that the ordinance is not the least restrictive way of addressing the conduct because there are various state laws that already exist to address the concerns being pointed at to support the reasons for the ordinance. While this is not an exhaustive review, a list of statutes that may apply to at least some of the concerns being expressed is attached as Exhibit A. Also, failure to consider non-regulatory methods for addressing the conduct has served to undermine the regulatory approach as not being the least restrictive. If a particular type of conduct is already prohibited by state law that the police department and the City’s prosecutor determines can be effectively enforced to address the conduct, then there is no need to regulate it by ordinance. Furthermore, at least attempting to address the concerns short of imposing new regulations that may have an impact on protected First Amendment activities will help support the Council’s decision to adopt regulations if those non-regulatory attempts are not successful. 3. DETERMINE IF THE COUNCIL IS INTERESTED IN DEVELOPING AN ORDINANCE TO ADDRESS ANY UNREGULATED CONDUCT OF CONCERN. This step involves evaluating what concerning conduct is not regulated by state law or can be effectively addressed through non-regulatory means, and whether it makes sense for the City to attempt to develop an ordinance to address that conduct given the constitutional limits imposed on such regulations. This discussion will necessarily involve whether an ordinance can effectively address the issue in a way that will likely withstand a legal challenge if one is brought. 4. IDENTIFY THE GOVERNMENT INTEREST BEING SERVED BY THE PROPOSED ORDINANCE. This step involves specifically identifying the lawful purposes of the ordinance, such as protecting public safety. Courts have criticized local governments for appearing to engage in after-the-fact justifications for regulations so it is important to identify those reasons before enacting the ordinance. Even if a city does identify specific purposes for the regulations, courts have focused on the lack of evidence to support the claim the regulation furthers the identified purposes. There is no question that protecting public safety is a legitimate government interest, but merely stating that purpose without facts to 5 support the claim that the regulated activity actually threatens public safety, and that the regulations enacted narrowly and effectively achieve that purpose, is not sufficient. 5. COLLECT DATA TO FURTHER IDENTIFY THE BASIS FOR THE CONCERN AND WHERE IT OCCURS IN THE CITY. This is a critical step as many ordinances attempting to address the types of concerns that have been expressed have been struck down as being overbroad or not supported by actual data. This step will help bring the concerns into focus, demonstrate that they actually exist, and set out a basis for how the proposed regulations will actually achieve the identified governmental interests. For example, courts have struck down ordinances prohibiting standing in all medians as being overbroad since the concerns being expressed really only applied to a few busy intersections in the city. Courts have also been critical of attempts to regulate certain activities based on distances from things like ATM machines because the cities were not able to produce data to demonstrate that asking for money 20 feet from an ATM poses a public safety risk, or at least one that is different than if the person were to ask while standing 25 feet from the machine. The guide on panhandling produced by the Community Oriented Policing Services from the U.S. Department of Justice the Council has previously seen provides helpful guidance in collecting such data. The point of this step is to move beyond perceptions to develop actual data on the existence of the concerning conduct and where it is occurring in the City. 6. IDENTIFY A NARROWLY-TAILORED, CONTENT-NEUTRAL METHOD OF REGULATING THE CONDUCT THAT IS SUPPORTED BY THE COLLECTED DATA AND THAT CAN BE ENFORCED UNIFORMLY. This, of course, is ultimately the challenge in developing an ordinance to address these issues. As the cases summarized in the attached Exhibit B demonstrate, various attempts to regulate the types of conduct being complained about have been struck down by the courts. Reviewing the summarized cases will help to further demonstrate the difficulties of imposing lawful or permissible regulations and also help explain reasons behind this recommended process for considering an ordinance. Part of the challenge, as previously discussed with the Council, is to make sure the regulations can reasonably be enforced and that they are applied uniformly. For example, a regulation that prohibits remaining on narrow medians of certain busy intersections must apply to firefighters passing the boot for charity the same as it does the person standing on the median with a sign requesting assistance. I realize some residents may be pushing to move directly to this ordinance adoption step in the process; however, working through the prior steps will dramatically increase the odds of any resulting ordinance being upheld if challenged. While I can offer no guarantees given the uncertainties created by Reed, following a systematic process for developing regulations given the legal complexities involved is the best way of ensuring the regulations effectively address the identified concerns and help avoid the potential financial consequences if the regulations are found to be unconstitutional. In short, it does little good, and can actually result in significant consequences, to adopt an 6 ordinance that may impact a constitutional right without taking all reasonable steps to ensure the ordinance will withstand a challenge. V. Conclusion The regulation of panhandling invokes a significantly complex and quickly evolving area of law. Further complicating the issue is the fact that panhandling ordinances often impact a number of various rights, oftentimes not even explicitly. Because of this, cities must take care to ensure that their regulations are carefully crafted to avoid some of the common pitfalls. Regardless, for cities considering putting in place regulations related to panhandlers, they should do so only upon full knowledge that any ordinance stands a heightened chance of legal challenge, as many similar ordinances have ended up in court in recent years, and there is no indication that trend is likely to slow. 7 EXHIBIT A Existing State Regulations Concerning Conduct Statutory Provisions Standing in median Public Nuisance (below) Stepping into traffic Public Nuisance, Minn. Stat. § 609.74 – any person who interferes with, obstructs, or renders dangerous for passage, any public highway or right-of-way, or waters used by the public, is guilty of a misdemeanor. Blocking traffic by standing in road Public Nuisance (above) Stopping a vehicle in traffic Public Nuisance (above) Reckless Driving, Minn. Stat. § 169.13, subd. 1 – a person who drives a motor vehicle while aware of and consciously disregarding a substantial and unjustifiable risk that the driving may result in harm to another or another’s property is guilty of reckless driving. Careless Driving, Minn. Stat. § 169.13, subd. 2 – Any person who operates or halts any vehicle upon any street or highway carelessly or heedlessly in disregard of the rights or others, or in a manner that endangers or is likely to endanger any property or any person is guilty of a misdemeanor. Stopping, Standing, and Parking, Minn. Stat. § 169.32 – No person shall stop, park, or leave standing any vehicle upon the paved or improved or main-traveled part of the highway when it is practical to stop, park, or so leave such vehicle off such part of said highway, but in every case a clear and unobstructed width of at least 20 feet of such part of the highway shall be left open. Prohibition on Stopping or Parking; Minn. Stat. § 609.34 – includes a number of defined areas where parking or stopping is prohibited. Aggressive/intimidating behavior 5th Degree Assault, Minn. Stat. § 609.224 – any person who “commits an act with intent to cause fear in another of immediate bodily harm or death” is guilty of a misdemeanor Threats of Violence, Minn. Stat. § 609.713 – any person who threatens, directly or indirectly, to commit any crime of violence with purpose to terrorize another is guilty of a crime. Jaywalking Pedestrian rights, Minn. Stat. § 169.21 – provides rules related to crossing roadways depending on whether a crosswalk is or is not present. Blocking travel upon public sidewalks Public Nuisance (Above) 8 EXHIBIT B Case Review Case name: PETRELLO V. CITY OF MANCHESTER, 2017 WL 3972477, U.S. Dist. Court, D. New Hampshire Law challenged: Two laws challenged. A. A state statute criminalizing disorderly conduct which included a person who “obstructs vehicular or pedestrian traffic on any public street or sidewalk or at the entrance to any public building.” B. A city ordinance which stated “no person shall knowingly distribute any item to, or receive any item from, or exchange any item with the occupant of a motor vehicle when the vehicle is located in the roadway.” Result: The Court invalidated both rules, finding that each was unconstitutional. A. Statute. The Court reasoned that, to be permitted, the statute must “not burden substantially more speech than is necessary to further the government’s interest.” In this case, the government’s interests were to promote public safety and ensure the free flow of traffic. The Court invalidated the statute because it found that the statute prohibited “substantially more speech than necessary to further those legitimate interests.” B. Ordinance. The Court also reasoned that the ordinance was intended to promote public safety and the free flow of traffic, both of which are legitimate interests. However, the Court also found that the ordinance burdened substantially more speech than necessary to further those legitimate interests. The Court provided four examples for why the ordinance was overly restrictive: i. The ordinance banned roadside exchanges that do not obstruct traffic or pose safety risks; ii. The ordinance is too broad geographically and unsupported by any data showing why the government needs to impose such restrictions city-wide; iii. The ordinance is under inclusive because, by its terms, it only penalizes pedestrians, not the vehicle drivers who stop in the roadway; and iv. The city has less restrictive means available to address its concerns (i.e., public safety and free flow of traffic). Helpful Hints: The Court provided a few “helpful hints” which may have helped either the statute or ordinance survive. Statute: The City could have done the following: A. limited enforcement of the statute to panhandlers who step into the road and obstruct traffic; or 9 B. enforce the statute against motorists who stop in the road at a green light, thereby causing a traffic obstruction. Ordinance: The City could have done the following: A. Provide data related to the specific public safety threats raised by the banned activity, as well as data which shows how the City’s regulation is aimed at curbing those threats. The Court pointed out that the City simply “modeled the Ordinance after a nearly identical ordinance passed by” another city, which was insufficient to show that the regulation furthered the legitimate goals. __________ Case name: BLITCH V. CITY OF SLIDELL, 2017 WL 28400009, U.S. Dist. Court, E.D. Louisiana Law challenged: The City of Slidell passed a law requiring panhandlers to obtain a panhandling license from the police department. To obtain a license, each panhandler was required to visit the police department, between 9:00 a.m. and 5:00 p.m. on a weekday. The license was then required to be worn while panhandling. Result: The Court held that the ordinance was unconstitutional. Because the aim of the law was to regulate a specific type of speech (i.e., panhandling or asking for charity), the Court applied the strictest standard of review available (strict scrutiny). The Court accepted the City’s legitimate governmental interest – public safety – but rejected the City’s contention that the ordinance was narrowly tailored to achieve that interest. In reaching its conclusion, the Court pointed out that the City’s ordinance prohibited a large amount of speech which was not directly harmful to public safety (i.e., it censored panhandlers who were not a threat to public safety, beyond their existence as panhandlers itself). The Court also pointed out that the City’s basis for adopting the ordinance – that it received 70 complaints related to panhandlers over a two-year period in a city of over 25,000 – did “not substantive an epidemic of panhandling” and did “not provide a strong justification for burdening speech.” Helpful Hints: The Court outlined a number of alternatives that the City could have utilized to curb panhandling which the Court felt were less restrictive than the ordinance. 1. Allocate additional police resources to enforce the rules against aggressive panhandling and soliciting on public highways. 2. Increase penalties for violations of those codes. 3. Install cameras or other technological devices at locations frequented by panhandlers to aid in the identification of aggressive panhandlers. 4. Requiring only those persons who were violators of the aggressive panhandling ordinance to wear nametags (as opposed to all panhandlers). 10 5. The Court also stated that the city-wide ban was too broad, and suggested that the City may have been able to achieve some regulation if it identified specific “problem areas.” However, this item refers simply to the breadth of the law, and this fix would not, in and of itself, correct the constitutional issues with the ordinance as not being narrowly tailored to achieve the government’s compelling interest of public safety. __________ Case name: HOMELESS HELPING HOMELESS, INC. V. CITY OF TAMPA FLORIDA, 2016 WL 4162882, U.S. District Court, M.D. Florida Law challenged: City ordinance which provided that it was illegal to solicit donations, or to exhibit oneself for such purposes. The ordinance also prohibited the use of threatening statements or actions, making repeated verbal demands, and acting to impede passage in order to secure solicitation. The ordinance was geographically limited in that it only applied in a specific zone, or around specific places (e.g., bus stop, sidewalk café, within 15 feet of an ATM). Finally, the ordinance excluded solicitation that only involved holding a sign from the prohibited acts. Result: This was a decision on a temporary injunction, so the Court was required to analyze the likelihood of success on the merits. The Court granted the injunction in favor of the plaintiff, barring application of the City’s ordinance. The Court found that the City’s ordinance was content-based, even with the specific limitations included. The City also conceded in the process that it did not have a compelling interest, nor was the ordinance the least restrictive means available for achieving that interest, presumably acknowledging the unlikelihood that it would prevail under such analysis. Helpful Hints: The Court provided an apt explanation of the difficulty of regulating panhandling in light of Reed. The Court stated that, without the decision in Reed, it would “uphold the City’s ordinance, which results from a constructive and demonstrably benign legislative attempt to manage fairly and humanely a tangible and persistent problem in a manner narrowly and artfully tailored to fit the compelling facts in the affected community.” However, as stated above, because the Court was required to apply the standards set forth by the United States Supreme Court in Reed, it ultimately held the City’s ordinance was unconstitutional. _________ Case name: BROWNE V. CITY OF GRAND JUNCTION, 136 F. Supp.3d 1276, U.S. Dist. Court, D. Colorado Law challenged: City ordinance which prohibited, among other things, panhandling one-half hour after sunset to one-half hour before sunrise. The ordinance also prohibited what is traditionally known as “aggressive panhandling” behaviors (e.g., using express or implied threats to coerce donations, continuing to request donations following a refusal by that individual, panhandling on a bus or within 100 feet of an ATM, etc.). 11 Result: The Court held the ordinance unconstitutional as a violation of the First Amendment. The Court accepts, as others have, that public safety is a compelling governmental interest. Regardless, the Court invalidated the ordinance on the basis that the ordinance was not narrowly tailored to achieve that specific governmental purpose. However, the Court pointed out that the City’s ordinance is overbroad because it prohibits various types of speech which bear no relation to the stated public safety goals of the City. As the Court stated, “the problem in this case is that [the City] has taken a sledgehammer to a problem that can and should be solved with a scalpel.’ Further, the Court stated that “[i]n attempting to combat what it sees as threatening behavior that endangers public safety, [the City] has passed an ordinance that sweeps into its purview non- threatening conduct that is constitutionally protected.” Helpful Hints: The Court provides a useful explanation of the difference between “viewpoint discrimination” and “content discrimination” in municipal regulations, both of which are subject to the highest level of constitutional scrutiny and is almost always fatal. “Viewpoint discrimination” is a “more blatant and egregious” form of “content discrimination.” Where an ordinance prohibiting speech related to war would be “content discrimination”, an ordinance prohibiting only anti-war speech would be “viewpoint discrimination.”