Discuss and provide direction to staff on the development of an ordinance prohibiting aggressive solicitation.

Last fall, a local attorney and the ACLU filed lawsuit against the Flagstaff City Attorney and Police Chief alleging the state statute prohibiting loitering to beg was unconstitutional. After legal review, it was determined in fact the statute found under ARS 13-2905.A.3 was believed to be a violation of free speech. Following recommendations by the City Attorney and Police Chief, the Flagstaff City Council approved a settlement whereby the Flagstaff Police Department would refrain immediately from taking enforcement action for loitering to beg. On October 11, 2013, the Arizona Criminal Justice Commission advised all law enforcement agencies in the state that the United States District Court had declared ARS13-2905A3 to be unconstitutional and void under the first and fourteenth amendments of the Constitution. The statute was declared unenforceable statewide.

Each year, the Flagstaff Police Department receives numerous calls from concerned citizens who have been approached by individuals begging for assistance. In one recent 13 month period, the police department recorded 642 calls for service where the event code was classified as loitering. The event code for loitering and “vagrancy” is the same, so not all 642 calls received were specifically for loitering to beg, however during that same 13 month period, the Flagstaff Police Department made 141 arrests for panhandling under ARS 13-2905, prior to the legal challenge of this statute. These statistics indicate a large number of citizens contact the police annually with concerns regarding this behavior.  A number of the arrests involved activity described by the victim as “aggressive” at the time the panhandling occurred. A case review indicates it is apparent many subjects who panhandle tend to target females or the elderly resulting in many of these victims describing the contact as “fearful”. In two separate cases, children under the age of ten were solicited.

In 2008, the Flagstaff Police Department issued a Special Order titled Operation 40. This directive was authorized short term, following complaints from residents and business owners on the Southside regarding criminal activity involving serial inebriants. In that Special Order, officers were encouraged to proactively address five separate crimes:  trespassing, disorderly conduct, littering, loitering, and consuming alcohol from an open container . In the same 13 month period when 141 loitering to beg arrests were made, officers made 210 arrests for open container, 627 trespassing arrests, and 2007 disorderly conduct arrests. Officers on the Flagstaff Police Department continue informally to refer to directed patrol efforts addressing these offenses as “Operation 40”, however, there has not been a formal directive since 2008. It is commonplace for officers, supervisors and command personnel to develop strategies and objectives during monthly Compstat meetings to address increases in criminal activity. Many of these strategies involve increased proactive patrols and enforcement, and “OP 40” details or activities are no different. Our monthly Compstat meetings and weekly review of crime trends consistently reveal that much of our property crime (shoplifting) and violent crime (strong armed robbery and assaults) involve the serial inebriant population in Flagstaff. Additionally, many of the individuals arrested in the past for panhandling are intoxicated. To address the issue, officers of the Flagstaff Police Department occasionally conduct undercover operations, making arrests when violations of open container, disorderly conduct, urinating in public, pan handling and other crimes are observed by the officers. Arrests for these lower level misdemeanor crimes has resulted in a decline in more serious criminal activity including shoplifting, aggravated assaults and strong arm robbery.

The Flagstaff Police Department believes that citizen concerns regarding loitering to beg on private property can be addressed through a partnership with business owners. Officers can be granted authority to ”trespass” subjects on private property at the business owner or managers direction. If a business owner believes loitering to beg is bad for business, this authority may be granted allowing officers to trespass individuals involved in this conduct. Notice shall be given upon first contact, warning the individual this conduct is not allowed and the officer will trespass the individual from that property. Recent changes in the state statute on trespassing now allow the officers to “trespass” individuals at the direction of the business owner. Notice of trespass will be documented in our records system, accessible to officers in the field. Future or subsequent contacts with the same individual at that location could result in an arrest for trespass.With trespassing tools in place on private property, the challenge will be in addressing certain behaviors involving aggressive solicitation on public property.

During legal review, it was determined that several municipalities in the state of Arizona have enacted local ordinances to address aggressive solicitation. These ordinances have successfully addressed citizen’s concerns by prohibiting behavior or conduct, as opposed to the content of speech.

The proposed ordinance on aggressive solicitation is attached. It contains many of the same elements of several of the ordinances reviewed from other municipalities. Several options are open for Council discussion, most notably the distances listed prohibiting certain behaviors in proximity to commercial institutions.
 
Key Considerations

A draft bill on Aggressive Solicitation is being proposed in the House of Representatives. A copy of that bill is attached. Much of the same prohibitions appear in this draft legislation, but it is of course unknown at this time whether this bill will gain support this legislative season. The issue of panhandling in Flagstaff is most definitely seasonal, with significant increases in calls for service and response to panhandling complaints seen with warmer weather, starting in mid to late April through October.