Mayor’s Panhandling Proposal Allows 180 Days in Jail, Even on First Offense (UPDATE 1)

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(APN) ATLANTA — Mayor Kasim Reed said that he was vetoing legislation that passed City Council concerning aggressive panhandling because it was cruel, harsh, and inhumane; however, Atlanta Progressive News has learned that the Mayor’s proposal in fact provides for the same maximum jail sentence–180 days in jail–for any offense of aggressive panhandling, and adds a minimum jail sentence for second and third offenses thereof.

Therefore, rather than being a kinder and gentler approach, it is in fact a harsher and even less humane approach, or to use Mayor Reed’s words shortly after his 2009 election, it is a “muscular” approach.

The vetoed legislation, which was introduced by Chairman Michael Julian Bond (Post 1-at-large) of the Public Safety/Legal Administration (PS/LA) Cmte, would have provided for up to 180 days in jail for aggressive panhandling violations only.

Bond’s legislation passed Full Council on September 17, 2012, in a 9 to 5 vote, with Natalyn Archibong (District 5), Felicia Moore (District 9), CT Martin (District 10), Keisha Lance Bottoms (District 11), and Lamar Willis (Post 3-at-large) voting nay; Aaron Watson (Post 2-at-large) not voting; and all other Council Members voting yea.

Lance Bottoms introduced an alternative proposal, and then, in working with Chairman Bond, Mayor Reed, Councilwoman Joyce Sheperd (District 12), the Department of Law, and others, presented a substitute on Tuesday, September 25, 2012.

The substitute was announced at a press conference at City Hall at 3pm, attended by APN, and copies were made available to the public for the first time at the PS/LA Cmte, which began at around 3:30pm.

During the press conference, the Mayor implied that consequences for a first offense of aggressive panhandling would be community service; 30 days imprisonment for a second offense; and 90 days imprisonment for a third offense.  

Mayor Reed referred to the vetoed legislation as cruel and a drain on City resources, citing the cost of 70 dollars per day to City of Atlanta taxpayers keep someone incarcerated.

Yet, Mayor Reed failed to notify the media or the public that the ordinance, 12-O-1324, in fact allows for “imprisonment not to exceed 180 days,” under Section 106-85 Monetary Solicitation, under (d) Penalties.  This for any offense of “Monetary solicitation in certain areas” or any offense of “Aggressive monetary solicitation.”

The ordinance provides for a minimum jail sentence of 30 days for a second offense of aggressive panhandling, with a maximum of 180 days; and a minimum jail sentence of 90 days for a third offense, with a maximum of 180 days.

Prohibitions on monetary solicitation in certain areas include within fifteen feet of the entrance to or exit from a public toilet facility or port-a-toilet; within fifteen feet of an ATM; within fifteen feet of a parking lot pay box; within fifteen feet of a pay telephone; in any public transportation vehicle; within fifteen feet of the entrance or exit of a building; within fifteen feet of or within a line for entry to any building; in a parking lot or garage owned or operated by the City; or within fifteen feet of a public or private vending site or valid vendor location.

One feature of the new ordinance is that it repeals the previous 2005 Commercial Solicitation Ordinance, Chapter 43, Section 43-1, in its entirety.

This means that restrictions on panhandling in the so-called Tourist Triangle or King Center Area would no longer be on the books.  As previously reported by APN, Prof. Gerry Weber of Emory University School of Law said that those provisions were clearly unconstitutional because they were denying citizens of their First Amendment rights in certain neighborhoods of the City.

It also means that the law would provide for arrest, instead of non-arrest citation, as had been previously provided under the 2005 ordinance.  The 2005 ordinance also outlined a number of steps where APD was required to call a Homeless Outreach Team to evaluate the panhandler and provide referrals to alleged services.  Any requirement to provide homeless outreach or evaluation services would be eliminated under the newly proposed ordinance.

During Tuesday’s PS/LA Cmte Meeting, APN’s News Editor–the present writer–raised concerns regarding the proposed penalties of up to 180 days in jail.

“That’s an error, Mr. Cardinale, we’ll correct that, cause it should be 90 days, cause that’s what we agreed upon.  It should be just 90 days,” Bond replied.  “We just need to clean that up.”

“We agreed on 90 days I thought, so we’ll correct that,” Bond said, looking at City Attorneys Robin Shahar, Eric Richardson, and Amber Robinson.

Shahar then clarified that the proposal is in fact up to 180 days in jail for any offense, with a minimum of 30 or 90 days for second and third offenses of aggressive panhandling, respectively.

“Thank you.  I appreciate the opportunity to clarify this.  There’s a section of the code, 1-8, that lays out what penalties can be for any violation of the City law.  And under 1-8, the language that you’re seeing here in [d] 1, 2, 3, and 4, the judge has discretion and he or she can look at community service, imprisonment, or a fine,” Shahar said.

However, APN has reviewed Section 1-8, and it does not lay out penalties for all violations of City law.  It applies only provides a General Penalty “Except as otherwise provided.”  Therefore, the Council has the ability to provide other penalty ranges for any violations of City law that the governing body feels should not fall under the General Penalty of 1-8.

Indeed, the penalties provided under 106-85(d) do not completely mirror 1-8, meaning that the Law Department apparently already recognizes that all penalty provisions under City codes do not have to adopt 1-8.  For example, 1-8 provides for “work on the public streets or on public works of the city for not more than six months, [or] supervised home confinement for a term not to exceed six months;” and neither of these are included in 106-85(d).

“Clearly the Mayor has expressed administratively that he would like that to be community service,” Shahar said.  “For repeat offenses, you still have that discretion, but there is a level of discretion that is now removed.  The judge cannot, for a third offense, give less than 90 days imprisonment.  He or she could give more than that, he or she could give community service or some combination, but at a minimum there must be 90 days…”

Despite this and other problems, the Committee passed the legislation in a 5 to 1 vote, with only Councilman Martin voting nay.  Bond, Ivory Young (District 3), Cleta Winslow (District 4), Alex Wan (District 6), and Sheperd voted yea.

Community activist Sharon Collins took issue.  “With the questions that were raised there was no mention of it in the motions that were made or approved,” Collins said.

“I’ve taken notes on the issues that were raised by Mr. Cardinale… We’re going to incorporate the issues over the next few days that Mr. Cardinale has raised and some of the others and we’ll address those on Monday,” at Full Council, Bond said, adding that he was preparing to offer an amendment on Monday.

APN also raised concerns about how the proposed ordinance and its broad, vague, and general definition of “monetary solicitation” might attempt to infringe upon the rights of newspapers such as the Atlanta Journal-Constitution and the Final Call to vend newspapers in public spaces in Atlanta.

In an email exchange with Shahar, she noted that newspapers vending would not be covered under the listed exceptions to the definition of monetary solicitation, meaning that newspaper vending would be subject to the monetary solicitation ordinance, even though other exceptions are made for other types of interactions, including requests for signatures on a petition or other documents, and others.

APN has brought the information to the attention of Shawn McIntosh, Public Editor of the AJC.  She said that their attorneys are reviewing the information and may attend the Full Council Meeting on Monday.

Joe Beasley, Southern Regional Director of the Rainbow/PUSH Coalition, criticized Reed and Bond.

“They’ve both turned over to a reprobative mind – they have lost their humanity.  The one they call savior [Jesus Christ] was a homeless beggar.  We’ve been warned to be wary of how we treat the least of these – I think the same scripture suggested we could be turned over to a reprobative mind, which means you don’t give a damn about nothing – your conscience is gone – that’s where we are with both the Mayor and Michael – therefore they have no direction, they have no moral compass, you’re capable of anything and you’re a dangerous moral servant.  There are no remedies for the devil,” Beasley said.

As previously reported by APN, the 2005 ordinance, which was unconstitutional due to the Tourist Triangle and King Center Area provisions, has never been enforced since its enactment seven years ago, and all panhandling-related arrests during that have been made under the City’s disorderly conduct code section.

(END/2012)

CORRECTION: This article previously stated that the ordinance provides for 180 days in prison; rather, it is 180 days in jail.

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