Panhandling ordinance could face court battle

  • A man who calls himself Homer panhandles outside Market Basket on Storrs Street in Concord in 2012. Monitor file

Sunday, April 17, 2016

If a lawsuit challenging recent arrests for panhandling in Manchester succeeds, Concord could be the next city defending its practices in court. 

The American Civil Liberties Union of New Hampshire claims Manchester is wrongfully applying the state’s disorderly conduct law to arrest panhandlers; the lawsuit also takes aim at a newly adopted ordinance meant to curb panhandling in the Queen City.

Three other New Hampshire communities – Concord, Somersworth and Rochester – have adopted ordinances similar to the one under fire in Manchester. 

“What happens in this case could impact the ordinances in those three other citie,” said Gilles Bissonnette, legal director for the ACLU.

The ACLU filed its latest complaint last week in federal court. The plaintiff is a 54-year-old female veteran named Theresa Petrello, who was arrested while panhandling and charged with disorderly conduct. According to the complaint, Petrello was on Maple Street in Manchester with her sign – “Veteran. Have Proof. Anything Will Help Please.” – when a driver reached out and gave her a donation.

In 2015, Manchester passed an ordinance prohibiting the exchange of items between a motorist and a person who has stepped into the road. Petrello did not step into the road to accept the donation, but the complaint states a Manchester police officer charged her with disorderly conduct for slowing down the passing traffic. 

While Petrello is the only plaintiff listed on the lawsuit, Bissonnette said the ACLU can track  “at least four other instances” like this one. 

“It’s our contention that Manchester is inaccurately interpreting the disorderly conduct statute and applying it to panhandlers, when they’re not actually causing an obstruction at all, because they’re not stepping into the roadway. . . . What’s happening here is essentially a peaceful form of expression in a public place is being criminalized,” Bissonnette said.

The complaint also calls Manchester’s existing anti-panhandling ordinance “unconstitutional.” The ordinance doesn’t actually mention panhandling or solicitation at all, but it bars anyone from exchanging items with people that are in cars on the roadway. The violation’s punishment is a fine up to $500. 

Bissonnette noted two primary concerns. First, the ordinance punishes only the panhandler, not the motorist. Second, proponents of the ordinance say it benefits public safety, but it applies to the entire city, rather than any particular area that has evidence of a problem. Bissonnette cited a recent court case in Maine, when a judge struck down Portland’s citywide ban for people on medians. 

“The city failed to show that it contemplated and rejected as ineffective an ordinance limited to the few medians in Portland where the city has identified safety hazards in the past,” Bissonnette said of the Portland case. “And we believe that the Manchester ordinance has the same problems.”

A more tailored approach could restrict the ordinance to a particular geographic area, he suggested; the city could also post signs informing motorists not to pass items to bystanders. Essentially, he said, the ordinance should actually address public safety, not just target panhanders. 

The ongoing lawsuit focuses only on Manchester, and Bissonnette was not prepared to say whether the ACLU would pursue similar litigation in other cities. However, he said Concord and Manchester’s ordinances are “substantially similar.”  

“Just like an affluent person, a poor person has the right to ask his or her fellow man for assistance in a public place,” Bissonnette said. “Just like a politician has the ability in a public place to ask for a signature to get on a ballot or ask someone for a vote, no different than a church group soliciting a donation. Panhandling speech is no different than any of those other protected forms of expression that exist in public places. It is our job to protect all those forms of political speech, and that is what our Manchester lawsuit is about.”

Nashua’s aldermen passed a similar ordinance last year, but Mayor Donnalee Lozeau vetoed it. 

In Concord, the city wrote the ordinance due to increased complaints about aggressive panhandling downtown, police Chief Brad Osgood said.

“It was created because of a safety issue,” Osgood said. “I think that our officers have done a tremendous job with enforcing that ordinance.”

The first draft of the policy expressly banned solicitation of money and panhandling, but the ACLU objected. The current toned-down version passed in 2013. A sunset clause brought the ordinance back to the table in March 2015, and the Concord City Council decided to keep it on the books. 

In calendar year 2014, the Concord Police Department received 160 calls for roadside panhandling. Of those calls, officers issued 30 violations to 18 people, many of them homeless. In 2015, Osgood said the police received 93 calls for panhandling; the department issued 17 citations to six people. 

“It’s a small group of individuals that have been warned numerous times and now are being cited numerous times,” he said.

His officers typically issue warnings before citations, he said. On one occasion, Osgood recalled a team of officers who witnessed a driver give an item to a panhandler; one officer spoke with the panhandler, and the other followed the motorist to warn that person about the city’s ordinance. 

“They’re extremely fair with all people involved,” Osgood said. “The best approach that we could have is to warn people and educate them.”

Osgood said officials in other cities from as far away as Oklahoma have contacted him for advice about Concord’s panhandling  ordinance.

Concord’s attorney, Jim Kennedy, did not return requests for comment.

More outdoor seating for Cheers

The Cheers patio is under renovation, but the Depot Street restaurant is still open for business.

General manager Bonnie Osgood said the ongoing construction project will expand the patio, nearly doubling outdoor seating and adding a firepit for cooler evenings. The indoor restaurant and bar are open normal hours during the construction project.

“We have entertainment out there in the summer, and we want to be able to have more seating,” she said. “We are always turning people away in the summer.”

Because that outside area is technically city property, Cheers owner Doug Milbury needed to seek approval for the renovations from the Concord City Council last month. A report to the council noted Milbury planned to spend $85,000 on the patio improvements; that work was easily approved.

Osgood said the construction should be done at the end of April; a grand opening celebration will coincide with the restaurant’s 30th anniversary in May. 

The patio sat 38, she estimated; the goal is to accommodate 86 in the new area. Osgood is hiring more staff to handle the added capacity; interested applicants can contact Cheers at 228-0180 or stop in at 17 Depot St. 

Utilities go down, signs go up

Also at last week’s meeting, the city council agreed to spend $2 million to bury utilities on South Main Street. That brings the total budget for the Main Street project over $13 million for design, construction and marketing. 

Officials have promised the last-minute addition will not push the November deadline for the project’s completion. Southbound traffic will still be able to flow through the work zone, though some parking spots on the west side of the street might be compromised during that utility work. 

For the second week in a row, crews worked over the weekend. According to an email update from the PR firm Louis Karno & Co., the construction team planned to fine grade the newly reclaimed street on Saturday. Today, the crews will prep the street to receive a first layer of pavement on Tuesday. That work will take place from Pleasant Street to the crosswalk at Constantly Pizza. 

For the rest of the week, crews will install light pole bases, and working on gas and water lines.

Also ongoing is the installation of way-finding signs up and down Main Street. Those have been erected so far at North Main Street crosswalks. Later this year, informational kiosks and larger banner signs will be added to the downtown. 

“Any community really likes to highlight what it offers in terms of points of interest,” Carlos Baia, deputy city manager for development, said.

For more information on the downtown project or to sign up for regular email updates, visit concordmainstreetproject.com. 

(Megan Doyle can be reached at 369-3321, mdoyle@cmonitor.com or on Twitter @megan_e_doyle.)