Albemarle County’s anti-solicitation ordinance, which recently was suspended as it undergoes legal review of its constitutionality, was fine as it was, but recent court cases do now put it in question, a University of Virginia law professor says.
The ordinance, which includes panhandling and the distribution of materials from county roadways and medians, was suspended Sept. 30 after Jeff Fogel, a local lawyer, sent a letter to County Attorney Larry Davis a few days earlier stating that the ordinance is too broad and violates rights of the First Amendment of the Constitution.
Davis responded by letter — dated Oct. 13 — informing Fogel that the Albemarle County Police Department was suspending its enforcement of the ordinance while it is under legal review in the county attorney’s office.
Leslie Kendrick, a law professor at UVa, said if it had not been for cases such as one in Massachusetts and one in Charlottesville, she wouldn’t see any reason why the county’s ordinance would need to be reviewed.
“To me, this is an ordinance that does the job of what it’s supposed to do,” she said. “It doesn’t target any particular type of communication. It’s geared toward activities that are going to slow down traffic. It’s got clear safety justifications that back it up, and I would think that any attempt to improve this is unnecessary on the basis of Supreme Court law, and possibly is going to wind up with something worse than what they have now, which is a pretty solid ordinance.”
Fogel, who was involved in the Charlottesville panhandling case earlier this year — in which a federal judge ruled that the city’s ordinance was unconstitutional — argued that Albemarle’s ordinance may violate First Amendment rights, especially as there have been several court cases in the past year that questioned the constitutionality of similar ordinances.
As it stands now, the county ordinance, which deals with “prohibited activities on public roadways and medians,” states that it is illegal for anyone to distribute literature, solicit contributions or attempt to sell anything to occupants of motor vehicles on any roadway or median in the county. Those violating the ordinance would be guilty of a traffic infraction.
Fogel said the issue isn’t just about panhandling or encouraging people to give money to panhandlers, but it’s “that everybody has the right to equal treatment under the First Amendment.”
“This ordinance can’t stand the way it is, that’s clear,” Fogel said.
Fogel referred to a few recent court cases that he said helped him make his argument to the county.
In February, U.S. District Judge Norman K. Moon ruled that Charlottesville had to stop enforcing an ordinance that prohibited panhandling on portions of the Downtown Mall.
Moon ruled that the city ordinance violated the First Amendment because it targeted certain types of speech.
Moon’s decision was influenced by a recent U.S. Supreme Court decision that ruled that buffer zones in a Massachusetts law banning unauthorized activity within 35 feet of abortion clinics were unconstitutional.
Charlottesville’s City Council adopted its buffer zone rule in 2010 at the urging of downtown business owners who were concerned about aggressive panhandling.
Another case involved Henrico County, whose anti-solicitation ordinance also was challenged. It was ultimately decided that Henrico’s ordinance, which is similar to Albemarle’s, was overly broad and limited speech.
Since 2012, Albemarle police have issued 46 summonses for violations related to panhandling, according to the police department.
Albemarle’s police chief, Col. Steve Sellers, said that when an officer responds to an individual who may be violating the ordinance — by panhandling or by other means — the officer will offer the person other forms of help as needed and give an oral warning. Most people relocate after being approached by an officer, he said, but in rare cases officers will have to take further action.
“We’ve got dual responsibilities as a police department,” Sellers said. “We have to preserve public safety of everybody, but we have to balance the need to protect constitutional rights of individuals, as well.”
Davis said the legal review is still underway and he hopes it can be completed by the beginning of December.
“It’s a pretty complicated issue, and as we’re looking around the country and consulting with other localities that are facing the same issue, we’re not sure we’ll be able to keep that same time frame, but that’s our target,” he said.
Once Davis has completed the legal review of the ordinance, the Board of Supervisors will have the chance to take action.
Fogel said Albemarle’s Board of Supervisors should consider conducting a study of all roadways and medians in the county to see if there are any safety problems associated with soliciting or distributing literature that aren’t already covered by state law.
“They should start off focusing in a common-sense way on the places where they think there are problems, and then do a study of those places and try and demonstrate that there is a public safety issue that goes beyond what the state already prohibits,” he said.