Show-Me the Money: Outdated Solicitation Laws Expose Municipalities to Liability.

AuthorDavis, Jessica

    On any given night, roughly half a million people in the United States are homeless. (1) In Missouri alone, approximately 6,500 people are homeless on any given day. (2) Homeless populations create health, safety, and financial complications for municipalities. (3) A strategy used by many municipalities to control these complications is the passage of ordinances restricting the actions of homeless populations. (4) Commonly, these laws restrict solicitation, colloquially known as panhandling. (5) Some laws ban panhandling altogether. (6) While panhandling ordinances may have been a feasible solution in the past, a recent United States Supreme Court decision, Reed v. Town of Gilbert, has rendered many of these laws unconstitutional by limiting the circumstances under which municipalities may restrict speech. (7) Though the Supreme Court handed down Reed over seven years ago, local governments have been slow to update their laws to comply with the new standard. (8)

    Fernandez v. St. Louis County provides a timely example of the potential liability cities may face if they delay updating their panhandling statutes. (9) In Missouri, panhandling ordinances are still found on the books in cities across the state. (10) For municipalities to avoid liability, policymakers must update these ordinances. (11) This Note proposes two legal solutions for updating panhandling ordinances to comply with Reed. (12) Additionally, this Note presents a social solution that would reduce the necessity for panhandling ordinances by alleviating the underlying problem--homelessness. (13)

    Part II of this Note explains the facts of Fernandez. Next, Part III discusses the evolution of the standard of review for content-based regulations under the First Amendment and unconstitutional vagueness under the Due Process Clause of the Fourteenth Amendment. Part IV examines the Fernandez court's holding and reasoning. Finally, Part V analyzes current Missouri panhandling laws and offers solutions that municipalities may pursue to avoid liability. (14)


    Robert Fernandez described himself as "a poor, homeless, unemployed man who begs for money from motorists in St. Louis County to support himself and his companion." (15) As part of his solicitation activities, Fernandez has stood along medians or sidewalks in St. Louis County holding signs that read, "God Bless" and "Anything Helps." (16) As a result of his solicitation, St. Louis County gave Fernandez numerous warnings, cited him sixty-four times, and arrested him four times for violating the county's ordinances. (17) Ultimately, Fernandez brought a case challenging three of these ordinances: "(1) the solicitor licensing requirements of Chapter 804, the 'Peddlers and Solicitors Code'; (2) section 1209.090.1, which prohibits standing in the roadway for certain solicitation purposes; and (3) sections 716.080 and 716.090, which define and prohibit vagrancy." (18)

    1. Chapter 804: Requirement for Solicitor Licensing

      Fernandez first challenged Chapter 804, the Peddlers and Solicitors Code, which establishes the requirement to obtain a solicitor's license and defines the parameters of the license. (19) To receive a solicitor's license under Chapter 804, applicants must pay a $13 license fee, complete and notarize paperwork, attach a photo of themselves, and obtain a background check. (20) The application typically takes the county one to three weeks to process. (21) Applicants must repeat this process every six months when the license expires. (22) A solicitor's license in St. Louis County entitles the recipient to solicit at high-volume traffic intersections three days per year. (23) However, license holders must give the county prior notice of their intent to solicit. (24)

      Robert Fernandez was cited thirty-one times and arrested four times for Chapter 804 violations. (25) St. Louis County held him for a total of twenty-eight hours and twenty-six minutes for the arrests. (26) The county reported receiving two to three daily complaints about Robert Fernandez's solicitation activities. (27)

      In his challenge, Fernandez claimed that Chapter 804 fails under the United States Supreme Court's First Amendment strict scrutiny analysis--that is, he argued that Chapter 804 is a content-based restriction not narrowly tailored to further a compelling government interest. (28) Specifically, Fernandez challenged Chapter 804's license requirement and solicitation limitation at high-volume intersections. (29) In response, St. Louis County asserted that Chapter 804 serves the compelling government interest of public safety. (30) For support, the county cited accidents that resulted from solicitation at high-volume intersections and complaints from motorists about the solicitation. (31) The county contended that the solicitor's license requirement increased public safety by reducing accidents and complaints. (32)

    2. Section 1209.090.1: Prohibition on Standing in Roadway

      Fernandez next challenged St. Louis County Code section 1209.090.1, which states, "[n]o person shall stand in a roadway for the purpose of soliciting a ride, employment, charitable contribution or business from the occupant of any vehicle." (33) Fernandez was cited fourteen times under this section. (34) While both parties agreed that Fernandez stood along sidewalks or medians near roads to solicit, (35) Fernandez claimed he only ever briefly entered the roadway, always along the shoulder or curbside, and only when a motorist had signaled an intent to give him something. (36) However, county police officers reported seeing Fernandez enter roadways, including the second lane of a highly trafficked interstate. (37)

      Like his Chapter 804 claim, Fernandez challenged section 1209.090.1 as a content-based restriction not narrowly tailored to further a compelling government interest. (38) In response, St. Louis County argued that section 1209.090.1 is not content-based because solicitation differs from other forms of speech as it is more distracting and inherently intrusive. (39) In addition, the county again contended that traffic safety is a compelling government interest. (40)

    3. Sections 716.080 and 716.090: Vagrancy Prohibition

      Finally, Fernandez challenged sections 716.080 and 716.090 of the St. Louis County Code. (41) Section 716.080 states, "[a] person shall not be a vagrant." (42) Section 716.090 defines the following individuals as vagrants within the meaning of section 716:

      (1) Every person without any visible means of support who may be found loitering around houses of ill-fame, gambling houses or places where liquor is sold or drunk.

      (2) Every person who shall attend or operate any gambling device or apparatus.

      (3) Every person who shall be engaged in practicing any trick or device to procure money or other thing of value.

      (4) Every person who shall be engaged in any unlawful calling.

      (5) Every able-bodied man who shall neglect or refuse to provide for the support of his family.

      (6) Every person found tramping or wandering around from place to place without any visible means of support. (43)

      Fernandez was cited eight times for vagrancy under Chapter 716. (44)

      Fernandez argued that sections 716.080 and 716.090 are facially unconstitutional under the Due Process Clause because they do not give fair notice of a prohibition and they lead to arbitrary enforcement. (45) St. Louis County did not deny that the sections were unconstitutional and agreed to repeal or replace both sections. (46)

      Ultimately, the court held that all three sections of the St. Louis County code were unconstitutional. (47) While the court declared sections 716.080 and 716.090 facially unconstitutional, (48) it held that Chapter 804 and section 1209.090.1 were not narrowly tailored under the United States Supreme Court ruling in Reed v. Town of Gilbert. (49)


    The First Amendment prohibits states and municipalities from "abridging the freedom of speech." (50) As a result of this prohibition, the government cannot "restrict expression because of its message, its ideas, its subject matter, or its content." (51) Content-based laws are "those that target speech based on its communicative content." (52) In Reed v. Town of Gilbert, the United States Supreme Court clarified the standard of review for content-based regulations: such laws must be narrowly tailored to serve a compelling government interest. (53) This new standard has opened the door to more challenges to panhandling laws, including those in St. Louis County, which previously survived First Amendment challenges. (54)

    Panhandling laws are also occasionally challenged under the Fourteenth Amendment, which prohibits states and municipalities from depriving any "person of life, liberty, or property without due process of law." (55) Under the Fourteenth Amendment, laws must "give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden" and not lend themselves to "arbitrary and erratic arrests and convictions." (56) In Fernandez, two of the St. Louis County ordinances were challenged under the Fourteenth Amendment for due process vagueness. (57) Advocacy groups have often used procedural due process grounds to challenge homelessness laws. (58)

    This Section discusses the level of scrutiny faced by content-based restrictions before and after Reed, what constitutes a narrowly tailored compelling government interest, First Amendment challenges to panhandling statutes post-Reed, and due process challenges to homelessness statutes.

    1. Content-Based Restriction Pre-Reed: Intermediate Scrutiny

      Section 1209.090.1 of the St. Louis County Code, which prohibits standing in the roadway for solicitation, withstood a previous First Amendment challenge in Association of Community Organizations for Reform Now v. St. Louis County ("ACORN"). (59) In ACORN, a community group challenged section 1209.090.1 after the county informed it that the organization's...

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