Concord to review panhandling ordinance after Manchester ruling

Monitor staff
Monday, September 11, 2017

Aside from some slight word changes, Concord and Manchester’s so-called panhandling ordinances are practically identical.

That could pose a problem for the Capital City soon, as the United States District Court in Concord ruled Thursday that Manchester’s ordinance governing the passage of items to or from the occupant of a motor vehicle on a roadway is unconstitutional.

Elliot Berry, Housing Justice project director for the New Hampshire Legal Assistance, who brought the lawsuit in conjunction with the American Civil Liberties Union of New Hampshire, said any municipalities that have ordinances similar to Manchester’s should reconsider them sooner than later. 

“I would certainly advise any city officials to take a hard look at their ordinance and consider repealing,” Berry said.

The decision stems from a lawsuit that challenged Manchester’s ordinance, which was enacted in October 2015. Berry said the suit was brought on the behalf of Theresa Petrello, an Army and Navy veteran who was cited for disorderly conduct after panhandling without stepping into the roadway in June 2015, according to a NHLA press release.

Although the Manchester ordinance was not enacted until after Petrello was cited, Berry said she was determined to be a suitable plaintiff for the suit because the ordinance “curtailed dramatically her right to solicit funds from motorists,” to the point where Petrello has since traveled to Derry and Hooksett, where there are no panhandling ordinances, to do so. Petrello has panhandled at times to make ends meet, Berry said.

“No one wants to see a veteran of our armed forces panhandling for help on a street corner. But criminalizing this act of desperation, detaining and prosecuting people when they seek help, does nothing to solve the problems of poverty and homelessness in our state, and may in many cases make it harder for people to get back on their feet by saddling them with a criminal record, fines and fees they have no ability to pay,” Berry said.

A federal court judge determined the ordinance violated the First Amendment because it “burdens substantially more speech than is necessary to further the City’s legitimate safety interests,” according to court documents.

The decision could cause legal troubles for municipalities such as Somersworth, Rochester and Concord, which have similar ordinances, Berry said.

Concord’s version of the panhandling ordinances predates Manchester’s by about two years. The Concord City Council passed the initial law in 2013, and a sunset clause brought the ordinance back to the table in 2015, when the Council decided to make it permanent. A violation can carry a fine of up to $500.

Berry said the initial ordinance targeted “aggressive panhandling” and specified areas, such as banks, ATMs, parking structures where soliciting funds would not be allowed. The council dialed back the ordinance to its current regulations after several groups, including the NHLA and the ACLU-NH, objected to its terms.

“It was way too sweeping,” Berry said. “I’ve read Concord’s current ordinance in its entirety, and it’s clearly unconstitutional.”

It’s unknown whether Concord will be taking another look at their own version of the panhandling ordinance. A phone call to city manager Tom Aspell was not returned Friday.

Concord police Chief Bradley Osgood said he could not comment on the ruling because he had not had a chance to read it. But he was able to provide a better picture of what panhandling looks like in the city since the ordinance became permanent.

In 2015, police received 93 complaints for panhandling, 129 complaints in 2016 and 107 complaints as of Aug. 31 this year. But those complaints, which are overwhelmingly resident-generated, certainly do not match the amount of citations police have given out for panhandling.

Police cited 17 people in violation of the ordinance in 2015, a few of which were repeat offenders, Osgood said. In 2016, that number dropped to 5 citations, and as of Aug. 31, no citations have been given out for panhandling in 2017.

Osgood attributes the decrease in citations to his department’s educational approach to the ordinance. “Our patrol has done a fantastic job of spreading the message about the ordinance and not going from the sidewalk into the road and the danger it presents,” he said. “The behavior seems to have curtailed itself.”

He later added: “And as you can see from the lack of citations, we have quite a catch and release approach.”

Earlier this year, Osgood said panhandling was increasing in the city during a Public Safety Advisory Board meeting, according to April 24 minutes. Osgood said that increase was probably due to the city leaving the cold weather shelter season, when homeless individuals become more visible. 

Osgood said he hopes to speak to the city’s attorney about the ordinance by Monday.