City ordinance should hold up

Kalispell City Attorney Charlie Harball says the city’s panhandling ordinance can withstand any scrutiny that results from a recent federal court decision that banned the city of Boise, Idaho, from implementing most of its panhandling law.

The ruling also could apply to an ordinance in Missoula that is similar to Boise’s. Missoula  officials are exploring ways to change their ordinance so that it is not challenged by the American Civil Liberties Union.

“Our ordinance is substantially different than Missoula’s,” Harball said Tuesday. “We took significant pieces out of the model ordinance, the items that the ACLU was concerned with.”

U.S. District Judge Edward Lodge issued a ruling last week stating that people have a right to ask others for donations in public places and the First Amendment right can’t be ignored just because panhandling makes some people uncomfortable, according to The Associated Press.

“Freedom of speech may be the most important right to protect in order to maintain our republic,” Lodge wrote. “In public places, all citizens must tolerate speech they don’t agree with, find to be a nuisance, insulting or outrageous.”

The difference in Kalispell’s ordinance, Harball said, is that its provisions are justified by public safety rather than simply banning panhandling.

“We could be criticized for having an ordinance with not a lot of teeth in it, but on the other hand, it can survive constitutional muster,” he said.

The Kalispell ordinance primarily restricts people from panhandling within 20 feet of intersections for the purpose of discouraging traffic obstruction or conflicts between vehicles and pedestrians, Harball said.

The city’s definition of panhandling “does not include passively standing or sitting with a sign,” he added.

The ordinance also prohibits panhandling on private property unless a solicitor has the permission of the property owner or lessee — which conforms with trespassing laws — or within 20 feet of a bus stop or inside a public transportation vehicle.

There also is a provision on “aggressive panhandling” that prohibits solicitors from being “intimidating or threatening,” acts that could fall under the purview of other laws, Harball said.

Missoula, by contrast, amended its ordinance last month to prohibit sitting, sleeping or lying in some places. And that’s one area where it runs into trouble, Harball said, because “it becomes a violation to be homeless.”

Harball said no one has been arrested or cited under Kalispell ordinance.

However, there have been citations issued under a state code related to panhandling on a state highway. Those cases involved panhandling along U.S. 93 at the north end of Kalispell.

Harball noted that the state code has never been challenged because it is premised on public safety.

That’s the case, too, with the Kalispell ordinance, he said.

“The police, what they are trying to do is not be heavy-handed,” Harball said. “They are greeting [solicitors] and saying, ‘Are you aware of this ordinance?’ It basically gives the police officers a tool to say this is what you can and can’t do.”

As Kalispell’s ordinance was being drafted, and since it has been enacted, the city has not heard anything from the ACLU about it, Harball said.

Reporter Jim Mann may be reached at 758-4407 or by email at jmann@dailyinterlake.com.