FORT SMITH -- In an attempt to avoid legal bills from a lawsuit in federal court, city directors have repealed and replaced a panhandling ordinance they passed earlier this year.
By a 6-1 vote, with City Director Tracy Pennartz voting no, the city board on Tuesday repealed an ordinance passed in February that allowed panhandling in Fort Smith but restricted where panhandling could take place and limited the activity to daytime hours.
"Since a lawsuit has been filed against the city regarding Ordinance 6-17, we want to continue to address the safety concerns in or near city streets but we do not want to have the potential of an adverse outcome along with the potential legal bills that will accompany the defense of the current ordinance," City Administrator Carl Geffken wrote in a memorandum to the board.
The new ordinance repealed Ordinance 6-17, eliminated the word "begging" from another ordinance and appeared to prohibit pedestrian use of streets.
A portion of the ordinance said, "no person not occupying a motor vehicle shall walk on, stand in, sit in, extend any body part or device into, or otherwise occupy any portion of a roadway within any public street right of way."
The clause drew concerns from some people about the ability to use the streets. Melissa Woodall pointed out several areas of town have no sidewalks, so people have no alternative but to walk in the streets.
"And like the three blocks from my house to the bus stop every morning, I 100 percent violate this law every single day," she said.
The new ordinance allows for police, firefighters, emergency personnel and authorized governmental maintenance workers to be in the roadways in performance of their official duties.
The ordinance also provides for special permits for parades and for the Fire Department's annual Fill the Boot fundraising campaign in which firefighters circulate among the vehicles stopped at intersections and accept donations tossed into a boot.
The ordinance allows the police chief to issue permits by nonprofit organizations, organizations representing public service employees or any Fort Smith-based civic group or resident who qualifies for a permit for a parade or special event.
City Attorney Jerry Canfield said the new ordinance is not about panhandling but about keeping people out of the roadways who don't have to be there. It doesn't restrict the right of pedestrians to walk in the streets, he said.
The new ordinance was offered after the state chapter of the American Civil Liberties Union filed suit in federal court last month against Fort Smith, Rogers and Hot Springs over their panhandling ordinances.
The suits contend the cities' ordinances are unconstitutional because limiting or disallowing panhandling restricts First Amendment rights.
Hot Springs City Manager David Frasher said Wednesday that the Hot Springs City Council was scheduled to consider amending its panhandling ordinance Tuesday but pulled the item from the agenda on the advice of the city attorney.
Rogers spokesman Ben Hines said city attorneys were reviewing the solicitation ordinance and were working with the ACLU.
Bettina Brownstein, a Little Rock attorney litigating the lawsuit for the ACLU, said she understands why municipalities want to ban panhandling but the First Amendment does not allow them to restrict the practice.
Canfield told city directors Tuesday that he forwarded a draft of the ordinance to the ACLU for its comments.
Brownstein said Wednesday that she reviewed the ordinance draft and concluded it would not pass constitutional scrutiny and she would challenge the new ordinance in court.
"The substitute ordinance is marginally less objectionable than the last one," she said.
She said she has granted time extensions to Hot Springs and Rogers to allow their attorneys to negotiate a settlement over the lawsuit and work on ordinances that are constitutional.
Metro on 07/13/2017