Moving or staying?

A U.S. District Judge will soon decide whether a lawsuit brought by five homeless men against the City of Charlottesville over its soliciting ordinance can move forward. But for Jeffrey Fogel, the attorney representing the men, moving the case to the next stage could turn out to be an uphill battle. After hearing arguments from both sides, Judge Norman K. Moon seemed skeptical that the ordinance violates or restricts the rights of the plaintiffs. 

In the lawsuit against the city, five homeless men, including Michael Sloan (pictured), claim the city’s soliciting ordinance violates their consitutional rights. District Judge Norman Moon heard pretrial arguments and will decide whether to move the suit forward.

“Is it a real hardship on these people?” he asked Fogel, after the attorney made his case. 

“It’s a real hardship on the First Amendment, Your Honor,” said Fogel. 

The lawsuit, filed in June, claims that the soliciting ordinance approved by City Council in August 2010 violates both the First and Fourteenth Amendments. 

The city’s ordinance restricts soliciting, formerly known as panhandling, within 15′ of a bank or ATM machine during business hours; on private property, within 50’ in any direction of the two vehicular crossings on the Mall, at Second and Fourth streets; and “from or to” any individual seated at an outdoor café or doing business at a vendor table. 

The ordinance also restricts “aggressive” panhandling, which the lawsuit doesn’t challenge. In fact, Fogel told reporters that the difference between passive and aggressive panhandling is “the crux of this case.” 

“If I go up and I ask a friend of mine for a glass of water, it’s a crime in Charlottesville to do that from somebody seated at an outdoor café,” he said. “The police may not enforce the law that way, but that’s exactly what the law says.” 

Judge Moon reminded Fogel that soliciting was still possible on the Mall and said that the suit tended to “trivialize” the First Amendment. 

“I was a little disturbed by that because there are many things that one could say trivialize the First Amendment,” Fogel told reporters after the hearing. “Things may seem trivial to some people and may be important to others, but most importantly you must have a zone of protection around the First Amendment.” 

Richard Milnor, an attorney representing the city, argued that the restrictions in the ordinance do not regulate free speech, but rather, they are regulations that affect a place. He also said it applies to all types of soliciting—by the plaintiffs, Salvation Army kettle ringers or others. 

While the legal fight is in the hands of Judge Moon, Downtown Mall business owners continue to assess the effectiveness of the panhandling ordinance. Tony LaBua, owner of Chaps Ice Cream, said the restrictions have not worked and things have gotten worse. 

“Since the onset of the lawsuit, there appears to be more panhandling [on the Downtown Mall],” he said. “I don’t know why the city allows it.”  

During a recent family vacation, LaBua said he saw solicitors carrying a permit. “What a great idea,” he said. Because Charlottesville has become “homeless friendly,” he said—and homeless people “come from all over the country”—the city’s image can be damaged. 

But enforcing the ordinance has not been a challenge for city police, and Lt. Ronnie Roberts said he couldn’t “say to a degree there has been an increase” in panhandlers on the Downtown Mall. Even complaints didn’t rise.

“The biggest thing that you hear from some of the people is that they don’t want to be bothered by them,” said Roberts.  

Should Judge Moon find that the plaintiffs, who were not present in court, do not have standing, Fogel said he will “make a motion to amend the complaint to be more specific.” If the case moves forward as is, Fogel said he expects his clients to be present and to testify.