Tuesday, May 31, 2016

No Soliciting in the Park

In a few weeks, I will be setting up a stall for the community yard sale at Fairgrounds Park in Hagerstown. I've got a lot of stuff to get rid of before moving to Baltimore. Part of reserving a stall included signing a paper stating that I had read the Park Rules.

Rule #12 caught my eye. It reads: "Soliciting or loitering is prohibited." Doesn't one go to a park to loiter? Isn't that the main purpose of a park? Why bother having a park if people can't go there just to hang out? After scoffing at the loitering rule, my brain got working on the "soliciting" part.

No soliciting in the park. That can't be right. What do they mean by "soliciting?" I'm always passing by people handing out religious pamphlets at the entrance to City Park. That's solicitation, isn't it? And these are city-owned parks. Public spaces. Doesn't restricting solicitation in a public place violate the First Amendment? I mean, solicitation isn't like a political demonstration (what if it's handing out political fliers, though?), but it's still speech.

Of course, the list of "Park Rules" doesn't provide definitions. It's just a list, followed by a generic penalty:
"Any person who violates any of the foregoing rules shall be deemed guilty of a misdemeanor and shall be liable to a fine of not more than $500.00 or imprisonment or both, in accordance with Section 2-9 of the Code of the City of Hagerstown."

Imprisonment for how long? It doesn't say. Alright, well, let's skip on over to Section 2-9 of the Hagerstown City Code and see what that says.

Except there is no "Section 2-9 of the Code of the City of Hagerstown." It doesn't exist. After spending a long time looking through the City Code, what I believe they're referring to is Chapter 10, Part 2, Article IX (§10-41 through §10-45), which concerns the operation of the Board of Parks and Recreation, §10-45 of which clearly states that the Board is solely advisory. It can't make rules for the park. I don't know if that truly is the section of the Code they wanted to (and failed to) point to, but if so it does not justify any of the rules or the penalties. In fact, it seems to undermine the very existence of these rules and penalties.

"Well," I thought to myself, "whoever wrote this has no idea how to cite things properly, but this list has to come from somewhere. Perhaps it's just a summary of various city ordinances that would apply to the parks." And indeed, that's what it is.

I found two sections of the City Code concerning solicitation. The first is §173-20 Public solicitation of patrons, which is written carefully (though not well) to refer only to soliciting to motorists for certain types of businesses. It reads:
"It shall be unlawful for any person upon the streets, highways or alleys of the City to solicit or suggest to a person orally or by handbills in, upon or about any automobile or motor vehicle or any vehicle, while such automobile, motor vehicle or vehicle is upon the streets, highways or alleys of the City, to stop at, store in or patronize in any way any garage, automobile storeroom or building, or place or building used for such purposes, or to patronize in any way any automobile or motor accessory equipment or supply shop or store or to patronize in any way hotels, motels, tourist homes or any other place of accommodation."

This has some minor constitutionality problems. It's restricting the content of speech. Why is it OK to say to someone driving a car, "you should go to Wonder Book," but not "you should go to Holiday Inn?" It also makes illegal at least two situations which are perfectly normal. 1: If Persons A and B are driving in the same car in Hagerstown, neither A nor B may suggest to the other that they stop at any hotel, motel, garage, auto parts store, etc. (so, if you and someone else are in a car in Hagerstown, don't discuss vacation plans lest you suggest a particular hotel to stay at) 2: Persons A and B are standing on the sidewalk next to B's car , which is parked along the road ("about any automobile...upon the streets of the City"). B is complaining about his car stalling out at intersections. A suggests that he take the car to Rick's on Burhans. BOOM. Illegal. No specific penalty is mentioned in this Section, so it falls under the General Penalty, which is a fine of not more than $1,000.00 and/or imprisonment for up to 6 months. So much for that $500.00 limit mentioned in the Park Rules.

Sure, it's unlikely that any cop would arrest someone for that, or that any prosecutor would actually charge anyone for that. But likelihood of use is irrelevant. It's over-broad and unconstitutional regardless. 

The second ordinance having to do with solicitation actually provides a definition (gasp!). §173-26(a) defines "Soliciting" as: 
"(1) Any act by which one person requests an immediate donation of money or other thing of value from another or others in person, regardless of the solicitor's purpose or intended use of the money or other thing of value. The solicitation may be oral, written, or by other means of communication
(2) For the purposes of Subsection C(3) herein, soliciting shall also mean any act by which one person distributes or attempts to distribute any material or item to another or others in person."

So, were that list of Park Rules actual rules using this definition, it would mean that one couldn't ask for money to get a soda at a vending machine in the park. Fortunately, the "Park Rules" aren't rules at all.

The real ordinance (I'm skipping the parts regarding "aggressive soliciting," as most of what's covered under that is harassment or battery) limits its restrictions on solicitation:
"C. Soliciting in certain ways and places prohibited. It is unlawful for any person to engage in soliciting:
    (1) Within 10 feet of the entrance to a bank, financial institution or automatic teller machine (ATM);
    (2) In any public transportation vehicle or at any bus stop; or
    (3) From any operator or occupant of a motor vehicle that is in traffic on a public street, whether in exchange for a service or otherwise.
D. Other soliciting permitted. Soliciting as defined in Subsection A of this section is lawful except as otherwise prohibited herein.
E. Penalties. Any person who violates a provision of this section is guilty of a misdemeanor and, upon conviction thereof, shall be fined not more than $100 or imprisoned for not more than 30 days, or both."
I still have a problem with (c)(3). One cannot give or attempt to give any item to any person inside a vehicle in traffic. A passenger in the back a car in Hagerstown cannot pass a bottle of water forward to the passenger in the front of the car without breaking the law. However, that is a vast improvement over the Park Rules' "Soliciting ... is prohibited." Frankly, there are so many more exceptions to that rule than there are applications that it would be best to remove that rule from the list altogether. 

This post is likely to be the first in a series on unconstitutional ordinances in the Code of the City of Hagerstown. 

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