Ordinance No. C2018-4; An Ordinance Repealing the City's Solicitation Ordinance
Summary: Gallup City Code §5-1-36 prohibits soliciting (asking for money or some other thing of value) in an aggressive manner. It also prohibits soliciting on public transportation, or at a bus stop; within 15’ of an ATM, from the occupant of a motor vehicle that is in traffic, or coming within 5’ of the person solicited unless the person solicited indicates that he or she wishes to make a donation.
In 2015, the United States Supreme Court in Reed v. City of Gilbert, struck down a sign ordinance on the grounds that it was not “content neutral” because it had different rules for different types of signs, depending on the purpose of the sign. Since then, lower courts have uniformly struck down solicitation ordinances similar to Gallup’s ordinance on the grounds that they are not "content neutral" because they focus on only one type of speech: asking for donations. The Supreme Court said that regulations that are not content neutral are “presumptively unconstitutional” and will be upheld only if the government can prove the regulation serves a “compelling government interest” and is narrowly tailored to achieve that interest.”
The lower courts have said that public safety can be a compelling interest, but find the aggressive panhandling statutes to not be “narrowly tailored” as they generally cover behavior that might not be a threat to public safety. For example, provisions such as Gallup’s which prohibit soliciting within 15’ of an ATM, coming closer than 5’ to the person solicited, or soliciting from people in their cars are uniformly struck down. But even bans on aggressive soliciting have been struck down as the courts have said that the government must present “actual evidence” that the regulation is necessary and that it actually tried other methods, such as existing laws, to address the problem before adopting the ordinance. So ordinances similar to Gallup’s ban on aggressive soliciting have also been struck down. Based on the fate of ordinances almost identical to Gallup’s, it is unlikely that the existing ordinance would survive a court challenge.
Laws which are not tied to speech are generally upheld as long as they are evenly enforced and not used to suppress speech. So laws prohibiting standing in roadways or medians have been upheld, but laws that prohibit soliciting from a roadway or median are struck down. The courts are saying that the best way to deal with public safety is by way of laws that are not tied to any particular category of speech.
- Fiscal Impact:
- Adopt the ordinance repealing Section 5-1-36 of the Gallup City Code.
- Speaker's Name
- Curtis Hayes, City Attorney