For the second time, the Fort Smith Board of Directors repealed an ordinance intended to restrict panhandling Tuesday amid a lawsuit claiming that it violated freedom of speech rights.
The ordinance that the city’s Board of Directors adopted 6-1 (At-large Director Tracy Pennartz opposed) in July 2017 prohibited anyone not in a vehicle from occupying any portion of a roadway within any public street right of way except at crosswalks and bus stops. The police chief was able to issue a $25 permit for the use of the outside lane of a laned roadway for a fundraising event conducted by a 501(c)(3) charitable organization, organization representing public service employees, or any Fort Smith-based civic group or any Fort Smith resident that otherwise complies with the city’s rules for special events and parades. This was the second attempt at implementing rules intended to prevent panhandling — the board repealed an ordinance that was approved in February 2017 after the Americans Civil Liberties Union filed a lawsuit.
Fort Smith recently joined Arkansas Municipal League’s legal defense program, for which it pays an annual fee to have access to the program’s lawyers. The defense program's lawyers had recommended that the city repeal the ordinance.
Attorney Michael Mosley pointed out during a special meeting Tuesday that stepping out into the road not in a crosswalk is already illegal.
"You can't simply regulate somebody requesting funds via a sign standing on the sidewalk. You can't do it. I don't think you can do it without certainly a lawsuit and without an extreme uphill battle," he said.
Mosley added that the ACLU asserts that the permitting process outlined in the ordinance, which does not allow everyone to get a permit, as distinguishing between speakers and making certain speech illegal based on its content.