Friday, September 25, 2015

The ice cream man, postal carriers, and paperboys can be fined under city's panhandling law

The No-Cone Zone

Posted by Chris Haire on Fri, Sep 25, 2015 at 3:15 PM

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If there's one thing we should have all learned by now, it's that hastily crafted laws and ordinances often have unintended, if not disconcerting, consequences. Last year's 11th-hour late-night bar ordinance would have eventually resulted in mandatory midnight closings for all bars in the city's entertainment districts for example.

Today, there's the city's recently passed anti-panhandling ordinance, which has only been in effect since last Friday.

While it's been known for some time that the ordinance effectively bans those annoying "firefighter boot drives" that plague the Holy City's roadways every couple of months or so, you know, the ones in which firefighters pass between cars on the road soliciting donations for charity, few people have discussed who else the ordinance may effect.

Before I get to that, here's the pertinent section of the ordinance in question:

1) Intent of Section: This Section is intended to provide for the free flow of motor vehicle traffic on roadways in the city. The City Council finds that persons who distribute any item to, receive any item from, or exchanged any item with the occupant of a motor vehicle upon a roadway present a threat to the free and safe flow of motor vehicle traffic. By this Section, the City Council intends to promote the health, safety, and welfare of the citizens traveling by vehicle or on foot in the city...

3) Prohibition on Roadways: It shall be unlawful to violate any of the prohibitions set forth below:

A) No person shall knowingly distribute any items to, receive any item from, or exchange any item with the occupant of any motor vehicle when the vehicle is located in a lane of travel on the roadway.

B) This section shall not apply to the distribution, receipt, or exchange of any item with the occupant of a motor vehicle on private property or in a permitted parking area.

C) This section shall not apply to any law enforcement officer acting in the scope of his/her official duty

D) This section shall not apply to the distribution, receipt, or exchange of any item with the occupant of a motor vehicle located in the roadway in order to assist the occupant after a motor vehicle accident, with a disabled motor vehicle, or where the occupant is experiencing a medical emergency.

I hope you read all that, because upon closer inspection of the law, it would seem that another group will be effectively banned from conducting business: ice cream truck drivers. 

See, the ordinance, as written, is extremely broad, banning the exchange of any item to or from the driver of a vehicle and/or a person outside the vehicle while that vehicle is in the road. As you know, that's exactly how and where ice cream truck drivers conduct their business, so if the city actually wants to enforce this law as it is written — and not just target those pesky panhandlers — they'll have to fine the city's ice cream truck drivers whenever they hand over an ice cold popsicle to a hungry child. 

Just as important, the law doesn't specify that an item must be exchanged by hand or within a certain time frame, simply that a individual cannot take or give an item from or to another individual while one of them is in a car in the road. So by that line of reasoning, mail carriers cannot place items in your mailbox — much less hand them to you — if that exchange happens while a vehicle is in the roadway. Heck, you could even argue that the ordinance also affects newspaper delivery drivers since the items in question leave the vehicle while it is in the road. 

Anyhow, that's how my legally naive mind understands it. And so I contacted the City of Charleston to get their lawyers to clear things up. They did. Assistant Corporation Counsel for the City of Charleston Janie Borden says, "The ... examples would not be violations because, the ice cream man generally pulls over to the side of the road to sell his ice cream, and the paper delivery person throws the paper out of the window as the vehicle is moving."

Hmm. That's interesting.

So by that logic, if a car pulled to the side of the road, they could exchange money with a panhandler. More importantly, they could simply throw money out the window while the vehicle is moving. It's also worth noting that the ordinance doesn't say anything about whether or not the vehicle is stopped ... or at least I don't see anywhere that it does. Borden's response: "The city will enforce this ordinance in line with its stated purpose and intent. Per the ordinance, it is intended to provide for the free flow of motor vehicle traffic on roadways in the city."

Looking for a little more clarity, I turned to noted Lowcountry defense attorney David Aylor to get his opinion. Aylor says, "From the way I read it, I agree it would include any public roadways such as a public street where an ice cream truck would stop in the road to sell products. It would seem that one would have to park legally (even if it was on the street) in order to make an exchange in the city and not be in violation of the ordinance. Obviously, what will be interesting to see is if the ordinance is strictly enforced outside major roadways and intersections."

As for the newspaper delivery driver and mail carrier, Aylor notes, "If the person delivering the paper hands it to a someone or throws it to the person, he or she would be in violation. It would seem the same would be true if you walked to the street and were handed your mail by the delivery person. For example, if your friend drove by and stopped in the road outside of your house and you ran out to grab your sunglasses per the ordinance, you both would again be in violation."

He adds, "I think it really boils down to whether or not this is something you will see an elevated level of policing outside of roadways that are heavily trafficked."

Anyhow, I've also reached out to the ACLU, but I have yet to receive word back. Then again, this was a hastily written blog post after all.

But as it stands now, I think it's pretty clear that the ice cream man, well, he's fucked.

Note: A big tip of the hat to City Paper commenter Ima Oldman for bringing up this point.

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