10 0 memo iot tro

MOLLY A. STEBBINS 8639 Corporation Counsel LAUREEN L. MARTIN 5927 Assistant Corporation Counsel County of Hawai‘i 101 Aupuni Street, Suite 325 Hilo, Hawai‘i 96720 Telephone No. (808) 961-8251 Fax No. (808) 961-8622 E-mail: [email protected] Attorney for Defendant COUNTY OF HAWAI‘I

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF HAWAI‘I JUSTIN GUY,

Plaintiff,

vs.

COUNTY OF HAWAII, a municipal corporation,

Defendant.

CIVIL NO. 14-00400 SOM-KSC DEFENDANT COUNTY OF HAWAI‘I’S MEMORANDUM IN OPPOSITION TO PLAINTIFF’S [2] MOTION FOR TEMPORARY RESTRAINING ORDER OR, IN THE ALTERNATIVE, FOR PRELIMINARY INJUNCTION FILED ON SEPTEMBER 8, 2014; DECLARATION OF LAUREEN L. MARTIN; EXHIBITS “A”-“F”; CERTIFICATE OF SERVICE Hearing Date: September 19, 2014 Time: 9:30 a.m. Judge: Honorable Susan Oki Mollway No Trial Date Set

Case 1:14-cv-00400-SOM-KSC Document 10 Filed 09/12/14 of 28 PageID #: 112

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TABLE OF CONTENTS I. INTRODUCTION ........................................................................................ 1 II. STATEMENT OF FACTS ........................................................................... 1 III. ARGUMENT ................................................................................................. 5 A. PLAINTIFF’S CHALLENGE OF HCC § 15-20 IS NOT RIPE ........ 5 B. BARRING ENFORCEMENT OF A CRIMINAL STATUTE IS AN

EXTREME REMEDY WHICH IS NOT WARRANTED .................. 7 C. PLAINTIFF WILL NOT SUFFER IRREPARABLE HARM AND

THE PUBLIC INTEREST WEIGHS IN FAVOR OF DENYING INJUNCTIVE RELIEF ........................................................................ 9

D. THE COUNTY IS LIKELY TO PREVAIL ON THE MERITS ...... 11

1. HCC § 14- 75 is Content-Neutral. ................................................ 11

2. The Ordinance is Narrowly Tailored to Serve a Significant Government Interest and There are Ample Alternative Channels of Communication ............................................................................. 15

IV. CONCLUSION ............................................................................................. 22


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TABLE OF AUTHORITIES

CASES ACLU of Nevada v. City of Las Vegas 466 F.3d 784, 794 (9th Cir. 2006) ................................................................. 14 Babbitt v. United Farm Workers Nat. Union 442 U.S. 289, 298 (1979) ................................................................................ 6 Chad v. City of Fort Lauderdale 861 F.Supp. 1057, 1061 (S.D. Fla. 1994) ....................................................4, 7 City of Los Angeles v. Lyons 461 U.S. 95, 101–102 (1983) ................................................................. 10, 11 City of Seattle v. Webster 115 Wash.2d 635, 802 P.2d 1333 (Wash., 1990) .......................................... 21 Clark v. Community for Creative Non-Violence 468 U.S. 288 (1984)......................................................................................... 7 Cox v. New Hampshire 312 U.S. 569, 574 (1941) .............................................................................. 16 Devenpeck v. Alford 543 U.S. 146, 153, (2004) ............................................................................... 5 F.T.C. v. Evans Products Co. 775 F.2d 1084, 1088 (9th Cir. 1985) ............................................................... 8 Grayned v. City of Rockford 408 U.S. 104,115 (1972) ............................................................................... 16 Gresham v. Peterson 225 F.3d 899, 901 (7th Cir. 2000) ................................................................. 21 Harnish v. Manatee County 783 F.2d 1535, 1539 (11th Cir.1986) .............................................................. 7


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Heffron v. International Soc. for Krishna Consciousness, Inc. 452 U.S. 640 (1981).............................................................. 11, 13, 16, 18, 19 Heideman v. South Salt Lake City 348 F.3d 1182, 1192 (10th Cir.,2003) ........................................................... 14 Hill v. Colorado 530 U.S. 703 (2000)....................................................................................... 15 International Soc. for Krishna Consciousness, Inc. v. Lee 505 U.S. 672, 683-684(1992) ..................................................... 15, 18, 19, 20 ISKCON Miami, Inc. v. Metropolitan Dade County 147 F.3d 1282, 1288 (11 Cir. 1998) .............................................................. 18 Los Angeles Alliance for Survival v. City of Los Angeles 157 F.3d 1162, 1164 (9th Cir.1998) .............................................................. 14 Madsen v. Women’s Health Ctr. 512 U.S. 753, 768 (1994) .............................................................................. 19 McFarlin v. District of Columbia 681 A.2d 440 (D.C. 1996) ............................................................................. 21 Members of City Council v. Taxpayers for Vincent 466 U.S. 789, 805 (1984) ................................................................................ 7 New Motor Vehicle Bd. of California v. Orrin W. Fox Co. 434 U.S. 1345, 1347 n. 2 (1977) ..................................................................... 8 Norton v. City of Springfield 2013 WL 5781663 (C.D. Ill., 2013) .............................................................. 20 People v. Barton, 8 N.Y.3d 70, 861 N.E.2d 75 (N.Y. 2006) ...................................................... 14 Perez v. Ledesma 401 U.S. 82, 124 (1971) .................................................................................. 8


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Poe v. Ullman 367 U.S. 497 (1961)......................................................................................... 5 Reno v. Catholic Soc. Servs., Inc. 509 U.S. 43, 57 n. 18 (1993) ........................................................................... 5 Roulette v. City of Seattle 97 F.3d 300, 302 n 2 (9th Cir. 1996) ............................................................. 21 San Diego County Gun Rights Comm. v. Reno 98 F.3d 1121, 1126–27 (9th Cir.1996) ............................................................ 6 San Diego Minutemen v. Cal. Bus., Transp. & Hous. 570 F.Supp. 2d 1229, 1250 (S.D. Cal. 2008) .................................................. 4 Smith v. City of Fort Lauderdale, Fla. 177 F.3d 954, 955 (11th Cir.1999) .................................................................. 7 Tatum v. City & County of San Francisco 441 F.3d 1090, 1094 (9th Cir. 2006) ............................................................... 5 Thayer v. City of Worcester 755 F.3d 60 (1st Cir. 2014) ............................................................................ 21 Thomas v. Anchorage Equal Rights Com’n 220 F.3d 1134, 1138 (1999) ........................................................................5, 6 U.S. v. Belsky 799 F.2d 1485, 1489 (11th Cir.1986) ............................................................ 19 U.S. v. Gilbert 920 F.2d 878, 886 n. 8 (11th Cir.1991) ........................................................... 7 U.S. v. Kokinda 497 U.S. 720 (1990)................................................................ 4, 13, 14, 15, 18 U.S. v. O'Brien 391 U.S. 367, 377 (1968) .............................................................................. 14


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Village of Schaumburg v. Citizens for a Better Environment 444 U.S. 620, 636-638 (1980) ....................................................................... 18 Ward v. Rock Against Racism 491 U.S. 781, 791 (1989) .............................................................................. 12 Winter v. Natural Res. Def. Council, Inc. 555 U.S. 7, 9, 129 S.Ct. 365, 172 L.Ed.2d 249 (2008) ................................... 8 Wright v. Incline Village General Improvement Dist. 665 F.3d 1128, 1135 (9th Cir. 2011) ............................................................... 4 Young v. New York City Transit Authority 903 F.2d 146 (2nd Cir. 1990) ........................................................................ 20

STATUTES

Hawai‘i Revised Statutes Section 291C-23 ....................................................................................... 5, 10

OTHER

Hawai‘i County Code Section 14-74 .................................................................................................. 1 Section 14-74(a)(7) ....................................................................................... 12 Section 14-75 ................................................................................. 1, 4, 11, 14 Section 14-75(a)(1) ....................................................................................... 21 Section 14-75(a)(4) ....................................................................................... 20 Section 14-75(a)(5) ................................................................................ 15, 16 Section 14-75(a)(6) ................................................................................ 15, 16 Section 14-75(a)(11) ..................................................................................... 20 Section 15-20 .......................................................................................... 5, 6, 7


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DEFENDANT COUNTY OF HAWAI‘I’S MEMORANDUM IN OPPOSITION TO PLAINTIFF’S [2] MOTION FOR TEMPORARY

RESTRAINING ORDER OR, IN THE ALTERNATIVE, FOR PRELIMINARY INJUNCTION FILED ON SEPTEMBER 8, 2014

Defendant County of Hawai‘i (“County”), by and through its attorneys,

respectfully submits this Opposition to Plaintiff’s Motion for Temporary

Restraining Order or, in the alternative, for Preliminary Injunction filed on

September 8, 2014.

I. INTRODUCTION

Plaintiff seeks to invalidate §§ 14-74 and 14-75 (“Ordinance”) of the

Hawai‘i County Code (“HCC”). However, the Ordinance is constitutional and

merely places reasonable restrictions on the manner and location of solicitation in

order to prevent aggressive and dangerous solicitation practices.

Plaintiff argues any restriction on solicitation results in a violation of the

First Amendment. Therefore, Plaintiff argues every individual would be permitted

to solicit at any time and at any public location. Not surprisingly, the First

Amendment does not require such a drastic and reckless result. Therefore,

Plaintiff’s request for injunctive relief must be denied.

II. STATEMENT OF FACTS

In 1999, the County enacted the Ordinance. See Exhibit “A”. The

Ordinance was enacted because of concern for public safety after several

complaints were received regarding individuals soliciting money in a manner


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which intimidated the public. Exhibit “E” at ¶¶ 3-4.

For example, individuals would stand right in front of the entrance or exit of

restaurant waiting for patrons. Id. When a patron would leave, they would block

their way and ask for money. Sometimes they would follow the person and ask for

money. Id.

One incident involved a County Council member. Exhibit “E” at ¶ 4. When

the Council member left a movie with her two young children, an individual asked

for money and then followed her to her car. Id. She feared for the safety of herself

and her children. Id. The public also felt intimidated and forced to give money to

these individuals. There were concerns for the public’s safety raised by

individuals, merchants and the police. Exhibit “E” at ¶ 3.

As a result of these serious concerns, the Ordinance was passed. The

Ordinance was not intended to regulate a particular message or what someone

could say or convey. Exhibit “E” at ¶ 5. The Ordinance was intended to regulate

the manner and location of solicitation in order to ensure public safety and prevent

the public from being victimized or taken advantage of when they were vulnerable.

Id.

The Council member who proposed the Ordinance was an attorney and was

fully aware of requirements of the First Amendment. Exhibit “E” at ¶¶ 5, 7. As a

result, the Ordinance was modeled after legislation which had already been upheld


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by the Courts in four other states. Exhibit “E” at ¶ 7.

The ACLU was well aware of the Ordinance when it was enacted and

although it objected to it, the ACLU failed to take any legal action until now,

fifteen years after it took effect. Exhibit “E” at ¶ 8. The ACLU now challenges

the Ordinance on behalf of Plaintiff Justin Guy (“Plaintiff”).1

Plaintiff wants to be professional musician. Plaintiff’s Declaration (“JG

Dec.”) at ¶ 3. In his quest for stardom, Plaintiff practices his music “all the time”.

Id. He chose not to have a job because it takes times away from his practicing. Id.

As a result, except for the times he stays with his girlfriend, he is homeless. Id.

On June 3, 2014, Plaintiff was near the intersection of Luhia and Kaiwi

Streets (“Intersection”) and holding a sign which read “Homeless Please Help.” Id

at ¶ 9. This Intersection is a four way stop and is a very busy intersection. Exhibit

“C” at ¶ 2. The Intersection does not have a history of being used for First

1Plaintiff’s attorney repeatedly asserts he made numerous attempts to resolve this issue. However, Plaintiff’s attorney has not made a good faith effort in resolving this issue prior to filing the lawsuit. As he is well aware, the current Corporation Counsel has only been in this position for a few months. Declaration of Laureen L. Martin (“LLM Dec.”). Corporation Counsel informed him that she hoped to reach a collaborative resolution to the matter. See Exhibit “F”. Although Corporation Counsel could not respond in the time frame demanded, Plaintiff’s counsel never made a courtesy phone call or communication which stated if a response was not given within a certain deadline a lawsuit would be filed. See Exhibit “F” and LLM Dec. It should also be noted that Plaintiff’s counsel raised numerous other issues which he wanted Corporation Counsel to also address. See Exhibit “1” to the Declaration of Daniel M. Gluck.


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Amendment purposes, such as protesting or sign holding and there is very little

pedestrian traffic.2 Exhibit “C” at ¶¶ 2, 7.

A police officer approached the Intersection and saw the Plaintiff approach

at least two vehicles. Exhibit “C” at ¶ 3. The Plaintiff’s actions caused the traffic

to stop and slow which created a traffic hazard. Id. Plaintiff’s own safety was also

at risk because he was approaching vehicles in the roadway. Id.

The Officer told the Plaintiff he was creating a traffic hazard and asked him

to leave. Exhibit “C” at ¶ 4. The Plaintiff refused to leave. Id. The Officer asked

him his name and the Plaintiff initially refused but then provided a Colorado state

identification. Id.

The Officer wrote a citation because the Plaintiff was creating a traffic

hazard and refused to leave. Exhibit “C” at ¶ 6. When the Officer left the area, the

Plaintiff was still there. Id.

Although initially cited for violating HCC § 14-75, the charges were

2The Ninth Circuit uses a three part test in determining whether an area is a traditional public forum: 1) actual use and purposes of the property, 2) physical characteristics and 3) traditional or historic use of the property. Wright v. Incline Village General Improvement Dist., 665 F.3d 1128, 1135 (9th Cir. 2011). Not all roadways or sidewalks are deemed public forums. U.S. v. Kokinda, 497 U.S. 720 (1990)(finding sidewalk in front of post office was not public forum); Chad v. City of Fort Lauderdale, 861 F.Supp. 1057, 1061 (S.D. Fla. 1994); San Diego Minutemen v. Cal. Bus., Transp. & Hous., 570 F.Supp. 2d 1229, 1250 (S.D. Cal. 2008)(finding location near freeway not compatible with expressive activity). Therefore, this intersection is likely not a public forum for purposes of the First Amendment.


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amended and Plaintiff was charged with violating Hawai‘i Revised Statutes

(“HRS”) § 291C-23, refusing to comply with an order or direction of an officer

with authority to direct, control or regulate traffic. Declaration of Daniel Gluck

(“DG Dec.”) at ¶ 7. The Prosecutor later filed a motion for Nolle Prosequi.3 DG

Dec. at ¶ 11.

III. ARGUMENT

A. PLAINTIFF’S CHALLENGE OF HCC § 15-20 IS NOT RIPE

Plaintiff’s constitutional challenge to HCC §15-20 is not ripe for review.

Ripeness is not a legal concept with a fixed content or susceptible of scientific

verification. Poe v. Ullman, 367 U.S. 497 (1961). The doctrine is drawn both

from Article III limitations on judicial power and from prudential reasons for

refusing to exercise jurisdiction. Reno v. Catholic Soc. Servs., Inc., 509 U.S. 43,

57 n. 18 (1993); Thomas v. Anchorage Equal Rights Com’n, 220 F.3d 1134, 1138

(1999).

The Constitution mandates courts exercise jurisdiction only where there

exists a case or controversy and the issues presented are definite and concrete, not

3It is of no consequence that Plaintiff initially received a citation for violating the Ordinance and later was charged for failure to follow an order regarding traffic control. “If the facts known to an arresting officer are sufficient to create probable cause, the arrest is lawful, regardless of the officer’s subjective reasons for it.” Tatum v. City & County of San Francisco, 441 F.3d 1090, 1094 (9th Cir. 2006), See also, Devenpeck v. Alford, 543 U.S. 146, 153, (2004). The Plaintiff could have been arrested, but instead the Officer merely issued a citation.


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hypothetical or abstract. Id. at 1139. In determining whether a case or controversy

exists, the court must consider whether the plaintiffs face a realistic danger of

sustaining a direct injury as a result of the statute’s operation or enforcement or

whether the alleged injury is too “imaginary” or “speculative” to support

jurisdiction. Babbitt v. United Farm Workers Nat. Union, 442 U.S. 289, 298

(1979). Further, neither the mere existence of a proscriptive statute nor a

generalized threat of prosecution satisfies the case or controversy requirement.

See, San Diego County Gun Rights Comm. v. Reno, 98 F.3d 1121, 1126–27 (9th

Cir.1996). The courts look to whether a plaintiff has articulated a concrete plan to

violate the law in question, and whether the prosecuting authorities have

communicated a specific warning or threat to initiate proceedings, and the history

of past prosecution or enforcement under the challenged statute. Id. at 1126–27.

There must be a “genuine threat of imminent prosecution.” Id. at 1126.

In the present case, there is no case or controversy with respect to Plaintiff’s

challenge to HCC § 15-20 because any alleged injury is imaginary and speculative.

Plaintiff did not attempt to beg within a County park and admitted it was only his

“understanding” that Hawai‘i County law prohibits begging in County parks. See,

JG Dec. at ¶ 21. Plaintiff claims he would be “afraid to solicit in any public park

because of this law, given what happened to [him] before.” Id. However, there is

no indication that Plaintiff had been warned by HPD officers about begging in a


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County park, nor is there any indication he intended to beg within a County park.

In fact, there have been no complaints of begging in the County parks and HCC §

15-20 has not been enforced for at least the last five years. Exhibit “D” at ¶ 4.

Therefore, contrary to the requirements in Stoianoff, Plaintiff has not

established any concrete plan to violate HCC § 15-20, nor has he received any

communication or threat of prosecution relating to begging in a County park.

Since he has never attempted to beg in a County park, Plaintiff fails to establish

any prior history of arrest or enforcement of HCC § 15-20 against him. Given

these circumstances, Plaintiff fails to establish a justiciable case or controversy.4

B. BARRING ENFORCEMENT OF A CRIMINAL STATUTE IS AN EXTREME REMEDY WHICH IS NOT WARRANTED

Plaintiff seeks to bar enforcement of the Ordinance and thereby remove all

4Even if the Plaintiff could challenge the constitutionality of HCC § 15-20, solicitation bans in parks have been upheld. In Clark v. Community for Creative Non-Violence, 468 U.S. 288 (1984) the United States Supreme Court upheld a National Park Service regulation prohibiting camping in certain parks. In addition, the government may legitimately exercise its police powers to advance aesthetic values. See U.S. v. Gilbert, 920 F.2d 878, 886 n. 8 (11th Cir.1991); Members of City Council v. Taxpayers for Vincent, 466 U.S. 789, 805 (1984). Harnish v. Manatee County, 783 F.2d 1535, 1539 (11th Cir.1986) (“Aesthetics is a substantial governmental goal which is entitled to and should be accorded weighty respect”), see also, Smith v. City of Fort Lauderdale, Fla., 177 F.3d 954, 955 (11th Cir.1999)(upholding prohibition of begging beach and adjoining); Chad v. City of Fort Lauderdale, Fla., 861 F.Supp. 1057, 1062 (S.D.Fla.,1994)(ban on solicitation on beach and surrounding area upheld as government had legitimate interest in maintaining tourist attraction).


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restrictions on solicitation. This is an extreme remedy which this Court should not

grant. As the United States Supreme Court has stated:

An injunction barring enforcement of a criminal statute against particular conduct immunizes that conduct from prosecution under the statute. A broad injunction against all enforcement of a statute paralyzes the State’s enforcement machinery: the statute is rendered a nullity (emphasis added).

Perez v. Ledesma, 401 U.S. 82, 124 (1971).

Without the Ordinance, the County would be unable to protect the public

from aggressive solicitation. For example, nothing would prevent an individual

from standing by an ATM and then repeatedly asking the patron for money. If the

patron refuses, the individual could follow him to the car.

Furthermore, a preliminary injunction is an “extraordinary remedy.” Winter

v. Natural Res. Def. Council, Inc., 555 U.S. 7, 9, 129 S.Ct. 365, 172 L.Ed.2d 249

(2008). Requests for temporary restraining orders which are not ex parte are

governed by the same general standards that govern the issuance

of preliminary injunction. See New Motor Vehicle Bd. of California v. Orrin W.

Fox Co., 434 U.S. 1345, 1347 n. 2 (1977). In determining whether to grant a

temporary restraining order or preliminary injunction, the Ninth Circuit applies a

four part test. The movant must show: 1) irreparable injury, 2) probable success on

the merits, 3) a balance of hardships that tips in the movant's favor, and 4) that a

preliminary injunction is in the public interest. F.T.C. v. Evans Products Co., 775


9

F.2d 1084, 1088 (9th Cir. 1985). It quickly becomes apparent that none of the

factors favors injunctive relief.

C. PLAINTIFF WILL NOT SUFFER IRREPARABLE HARM AND THE PUBLIC INTEREST WEIGHS IN FAVOR OF DENYING INJUNCTIVE RELIEF Permitting the County to continue to enforce the Ordinance does not

constitute irreparable harm to Plaintiff. In fact, Plaintiff will not suffer any harm.

The Ordinance does not ban all solicitation. Rather, it only bans solicitation which

seeks an immediate transfer of money or an object of value and only at certain

locations. Nothing prevents the Plaintiff from soliciting at a location not

enumerated in the Ordinance.5

Even accepting Plaintiff’s allegations as true, Plaintiff is accusing a single

officer of stating panhandling is illegal. However, Plaintiff has failed to put forth

sufficient facts to determine whether there was a violation of the Ordinance or not.

Since the Ordinance does not ban all solicitation, but Plaintiff alleges he has not

solicited in any form, any harm which may be caused to Plaintiff is merely self-

inflicted.

5To the extent Plaintiff believes he cannot panhandle anywhere in Hawai‘i County, this is an unreasonable belief which has nothing to do with the Ordinance. The Ordinance clearly permits solicitation, but places reasonable restrictions upon it. In addition, the County objects to ¶ 16 of JG Dec. which purports to summarize a conversation between a police officer and another individual because it is unsubstantiated double hearsay.


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Furthermore, there is no urgency which would justify a TRO or injunction.

According to Plaintiff, he was told “about a year and a half ago” that he couldn’t

have a sign asking for tips. JG Dec. at ¶ 17. Therefore, Plaintiff waited almost two

years to file this action and now seeks immediate relief before the merits of this

case can be heard.6 It is illogical to argue a TRO or injunction must immediately

be issued or Plaintiff will suffer irreparable harm when Plaintiff has already waited

several months to file this action. If Plaintiff truly believed he was suffering

irreparable harm, he would have immediately filed this action and sought relief.7

In City of Los Angeles v. Lyons, 461 U.S. 95, 101–102 (1983), the Plaintiff

alleged he was illegally choked while being arrested and sought an injunction

barring the police from using the choke hold in the future. The Supreme Court

explained that for Plaintiff to have faced this prospect of injury again in the future,

he would not only have to show that he would have another encounter with the

police but also make the incredible assertion that either all police officers in Los

6In April or May 2014, he was told what he was doing was illegal. Even assuming these facts are true, it does not establish any wrongdoing by the police. Plaintiff was clearly impeding traffic and then refused to follow the police officer’s direction. This is clearly a violation of HRS § 291C-23. 7There is no legitimate reason for Plaintiff to seek a TRO, rather than a preliminary injunction. As noted, Plaintiff waited months to seek any relief. The only plausible reason for seeking a TRO, rather than a preliminary injunction, is in order to gain a strategic advantage over the County. If Plaintiff sought a preliminary injunction, the County would have significantly more time to prepare its opposition. In seeking the TRO, the County had only four days to oppose the pending motion.


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Angeles always choke any citizen with whom they happen to have an encounter or

that the City orders or authorizes police officers to act in such a manner. Id. at

105–106. As a result, the Court found injunctive relief to be improper. Id. at 113.

Similarly, Plaintiff alleges an officer told him he couldn’t panhandle.

However, there is no indication that all police officers always tell individuals

panhandling is illegal or that the County authorizes police officers to do so. As a

result, Plaintiff has not demonstrated it’s likely that he will be prevented from

panhandling in the future.

In any event, since Plaintiff is able to solicit within the parameters of the

Ordinance and invalidating the Ordinance would result in unrestrained and

potentially dangerous solicitation, the balance of harms clearly tips in favor of the

County and not the Plaintiff.

Nor is an injunction in the public interest. As noted, the Ordinance was

enacted for the safety of the public. It is difficult to imagine a stronger public

interest than safety. As a result, the public interest favors the denial of injunctive

relief.

D. THE COUNTY IS LIKELY TO PREVAIL ON THE MERITS 1. HCC § 14- 75 is Content-Neutral

The First Amendment does not guarantee the right to communicate one's

views at all times and places or in any manner that may be desired. Heffron v.


12

International Soc. for Krishna Consciousness, Inc., 452 U.S. 640, 647 (1981). The

Supreme Court has explained:

The principal inquiry in determining content neutrality, in speech cases generally and in time, place, or manner cases in particular, is whether the government has adopted a regulation of speech because of disagreement with the message it conveys. The government's purpose is the controlling consideration. A regulation that serves purposes unrelated to the content of expression is deemed neutral, even if it has an incidental effect on some speakers or messages but not others. Government regulation of expressive activity is content neutral so long as it is justified without reference to the content of the regulated speech (emphasis added).

Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989).

In the present case, the Ordinance was not adopted because of disagreement

with a message. Exhibit “E” at ¶ 5. Rather, it was adopted in order to protect the

public from conduct which jeopardized public safety. Id.

The Ordinance is content-neutral because it places the same restrictions on

soliciting regardless of the message. See Exhibit “A”. These restrictions include,

soliciting within twenty feet of a financial institution, ATM or public toilet. See

Exhibit “A”. HCC § 14-74(a)(7) defines soliciting as follows:

“Soliciting” means asking for money or objects of value, with the intention that the money or object be transferred at that time, and at that place. Soliciting shall include using the spoken, written, or printed word, bodily gestures, signs, or other means with the purpose of obtaining an immediate donation of money or other thing of value or soliciting the sale of goods or services (emphasis added).


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See Exhibit “A”.

Therefore, the Ordinance applies to anyone who is asking for money or

objects of value with the intent that it be immediately transferred. It does not

matter why the person is asking for money or something of value. As result, this

ordinance is content-neutral because it restricts solicitation without regard to a

certain perspective. The United States Supreme Court has repeatedly found

restrictions on solicitation are content-neutral.

In Heffron, 452 U.S. at 643-644, the United States Supreme Court upheld a

rule which required solicitation at a state fair to be done from fixed locations on the

fairgrounds. The Court noted the restriction “applies evenhandedly to all who wish

to distribute and sell written materials or to solicit funds.” Id. at 648-649.

Similarly in Kokinda the Supreme Court upheld a regulation prohibiting the

soliciting of alms and contributions at a post office, including on the sidewalk

close to the post office’s entrance. Id. at 735-736. The Court observed it was not

unreasonable to prohibit solicitation on the ground that it is unquestionably a

particular form of speech that is disruptive of business. Id. at 733. The Court

noted the post office’s decision was based upon the “inherent nature of

solicitation itself, a content-neutral ground” (emphasis added). Id. at 736. Nor

did the ban discriminate on the basis of content or viewpoint because it did not

intend to advance one viewpoint, nor was it granting one side of a debatable public


14

question of a monopoly to express its views. Id. at 736-37.

Therefore, the United States Supreme Court has already recognized that

solicitation bans are content-neutral. The Ninth Circuit has acknowledged this

precedent.8 Los Angeles Alliance for Survival v. City of Los Angeles, 157 F.3d

1162, 1164 (9th Cir.1998), see also, People v. Barton, 8 N.Y.3d 70, 861 N.E.2d 75

(N.Y. 2006)(finding ban on solicitation from occupants of motor vehicles to be

content-neutral).

Furthermore, there can be little doubt that solicitation involves a substantial

amount of conduct, such as approaching the target, blocking a sidewalk is conduct,

and the actual receipt of money. Government has considerable latitude to regulate

conduct, even where the conduct has an expressive component. See, U.S. v.

O'Brien, 391 U.S. 367, 377 (1968)( noting when speech and nonspeech are

combined into the same course of conduct, important governmental interest in

regulating the nonspeech element can justify limitations on First Amendment), see

also, Heideman v. South Salt Lake City, 348 F.3d 1182, 1192 (10th

Cir.,2003)(noting government has broad latitude to regulate expressive conduct).

8But see, ACLU of Nevada v. City of Las Vegas, 466 F.3d 784, 794 (9th Cir. 2006) which acknowledges a ban on the act of solicitation is content-neutral, but concluding the words of solicitation are content based. Even if this decision is applicable to the present case, HCC § 14-75 is still valid because it only prohibits acts of solicitation which are “face-to-face” and results in the immediate transfer of money. See Exhibit “A” defining solicitation as having the purpose of “obtaining an immediate donation”.


15

In the present case, the Ordinance places various restrictions on conduct.

These restrictions are not based upon what the message is, rather it is the act being

done in particular manner, i.e., aggressively or at a particular location where

individuals are particularly vulnerable or easily intimidated. See Exhibit “A”. For

example, the Ordinance prohibits solicitation within twenty feet of an ATM,

financial institution or public toilet. HCC §§ 14-75(a)(6), 14-75(a)(5). Since the

Ordinance focuses on the conduct, rather than the message, it is content-neutral.

Importantly, the ordinance only applies to solicitation which has the purpose

of obtaining an immediate donation of money or other thing of value. Exhibit “A”.

The United States Supreme Court has noted this type of prohibition is aimed at the

abusive practices associated with solicitation and does not discriminate based

upon content. See Lee, 505 U.S. at 706 (Kennedy, J., concurring); Kokinda, 497

U.S. at 736.

As a result, Plaintiff’s contention that the ordinance is a content based

restriction is clearly wrong. Since the ordinance is content-neutral, the County

may limit the time, place, and manner of expression if narrowly tailored to serve a

significant government interest, and ample alternative channels of communication

are left available. Hill v. Colorado, 530 U.S. 703 (2000).

2. The Ordinance is Narrowly Tailored to Serve a Significant Government Interest and There are Ample Alternative Channels of Communication


16

As noted, the Ordinance is content-neutral. Therefore, the County may limit

the time, place and manner of expression. Heffron, 452 U.S.at 647, see also, Cox

v. New Hampshire, 312 U.S. 569, 574 (1941)(upholding restrictions in the use of

highways designed for public convenience).

In the present case, the Ordinance places various restrictions on solicitation

which seeks an immediate donation. Exhibit “A”. For example, a person cannot

solicit within twenty feet of an ATM, financial institution or public toilet. HCC

§14-75(a)(6); HCC § 14-75(a)(5).

The government interest in implementing the Ordinance is public safety.

Exhibit “E” at ¶¶ 3-4. People asking for money or something of value can be

intimidating, particularly when a person may be alone, such as using a toilet or

phone booth. Aggressive tactics can border on robbery. The government’s

interest in protecting the safety and convenience of persons using public places is a

valid governmental objective. See Grayned v. City of Rockford, 408 U.S. 104, 115

(1972); Cox, 312 U.S. at 574.

Prior to the adoption of the Ordinance, several complaints were received

regarding individuals soliciting money in a manner which intimidated the public.

Exhibit “E” at ¶ 3. For example, individuals would stand right in front of the

entrance or exit of a restaurant waiting for patrons. Id. When a patron would


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leave, they would block their way and ask for money. Sometimes they would

follow the person and ask for money. Id.

One incident involved a County Council member. Exhibit “E” at ¶ 4. When

the Council member left a movie with her two young children, an individual asked

for money and then followed them to the car. Id. Not surprisingly, she feared for

the safety of herself and her children. Id. The public also felt intimidated and

forced to give money to these individuals. There were concerns for the public’s

safety raised by individuals, merchants and the police. Exhibit “E” at ¶ 3.

It is as a direct result of these serious concerns that the Ordinance was

adopted. The Ordinance was not intended to regulate a particular message or what

someone could say or convey. Exhibit “E” at ¶ 5. The Ordinance was intended to

regulate the manner and location of solicitation in order to ensure public safety and

prevent the public from being victimized or taken advantage of when they were

vulnerable. Id.

The restrictions in the Ordinance are narrowly tailored to achieve the

important government interest of public safety. It permits all solicitation if it does

not require an immediate exchange of money or something of value (“face-to-face

solicitation”). It also permits solicitation near certain facilities, but requires a short

distance from them, such as ten or twenty feet. Therefore, a person passing by

would easily see a sign or hear a request for money. If they chose to give, they


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could do so. If they did not wish to, they could leave the area without intimidation

or bullying.

The United States Supreme Court has stated the following regarding the

risks of face-to-face solicitation:

Face-to-face solicitation presents risks of duress that are an appropriate target of regulation. The skillful, and unprincipled, solicitor can target the most vulnerable, including those accompanying children or those suffering physical impairment and who cannot easily avoid the solicitation…The unsavory solicitor can also commit fraud through concealment of his affiliation or through deliberate efforts to shortchange those who agree to purchase. (Emphasis added, citations deleted).

Lee, 505 U.S. at 684. Therefore, the Supreme Court has acknowledged the appropriateness of

regulating face-to-face solicitation because of dangers associated with it. The

Supreme Court reached a similar result in Kokinda when it upheld a ban of “in-

person solicitation” on postal property.

The Supreme Court has repeatedly recognized that face-to-face or “in-

person” solicitation has been associated with coercive or fraudulent conduct.

Heffron, 452 U.S. at 657(Brennan, J., concurring in part and dissenting in

part); Village of Schaumburg v. Citizens for a Better Environment, 444 U.S. 620,

636-638 (1980); ISKCON Miami, Inc. v. Metropolitan Dade County, 147 F.3d

1282, 1288 (11 Cir. 1998)(noting ban on solicitation for immediate receipt of funds


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was reasonable response to address repeated instances of abusive conduct).

In addition, face-to-face solicitation is disruptive to business and traffic:

We have on many prior occasions noted the disruptive effect that solicitation may have on business. Solicitation requires action by those who would respond: The individual solicited must decide whether or not to contribute (which itself might involve reading the solicitor's literature or hearing his pitch), and then, having decided to do so, reach for a wallet, search it for money, write a check, or produce a credit card…Passengers who wish to avoid the solicitor may have to alter their paths, slowing both themselves and those around them. The result is that the normal flow of traffic is impeded. (Emphasis added, citations deleted)

Lee, 505 U.S. at 683-684.

Therefore, solicitation for immediate donations is much more than merely

relaying a message. It involves conduct which has a disruptive effective and

impedes traffic flow. The government “…has a strong interest in ensuring the

public safety and order, in promoting the free flow of traffic on public streets and

sidewalks.” Madsen v. Women’s Health Ctr., 512 U.S. 753, 768 (1994).

Soliciting funds is an inherently more intrusive and complicated activity than is distributing literature. A passerby can take a pamphlet and keep walking. Soliciting funds, on the other hand, can require an extended encounter. It might be necessary to make correct change, provide a receipt, or engage in a prolonged explanation of the organization and its activities. In sum, solicitation is more time consuming and is likely to cause greater confusion and disruption. U.S. v. Belsky, 799 F.2d 1485, 1489 (11th Cir.1986); see also Heffron, 452 U.S. at 665.


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Since solicitation for funds is inherently more disruptive and intrusive, and

prone to greater abuse, it is reasonable for the government to place restrictions

upon it. There is nothing unconstitutional about doing so.

Furthermore, it is clear there are ample alternatives for someone to solicit.

First, the ordinance does not restrict the solicitation unless it requires the

immediate transfer of money or something of value. Therefore, a person could

leave envelopes or leaflets requesting a donation at a different location or time.

Secondly, a person could simply move to a location which solicitation is not

prohibited, which is a mere ten or twenty feet away.

Importantly, Plaintiff concedes at least a portion of the Ordinance is valid,

HCC §14-75(a)(4). Although Plaintiff contends the remaining portions of the

Ordinance are invalid, case law does not support this conclusion.

For example, HCC § 14-75(a)(11) prohibits solicitation in a public

transportation vehicle. Exhibit “A”. The United States Supreme Court upheld a

ban on solicitation in airports in Lee, 505 U.S. at 683-684.

Similarly, the Court in Young v. New York City Transit Authority, 903 F.2d

146 (2nd Cir. 1990) upheld a prohibition of begging and panhandling in subway

system. Likewise, in Norton v. City of Springfield, 2013 WL 5781663 (C.D. Ill.,

2013), the Court denied a request for a preliminary injunction finding a ban on

solicitation at bus stops, as well as other areas, was narrowly tailored to its


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purpose. Therefore, bans on solicitation involving public transportation have been

upheld. Plaintiff has failed to cite a single case to the contrary.

HCC § 14-75(a)(1) bans solicitation which is done in an “aggressive

manner” which is defined in HCC § 14-74(a)(1).9 Numerous courts have upheld

such bans.10 See, Gresham v. Peterson, 225 F.3d 899 (7th Cir. 2000)(upholding

restrictions on solicitation including when done in an “aggressive manner”);

Thayer v. City of Worcester, 755 F.3d 60 (1st Cir. 2014)(finding aggressive

panhandling ordinance constitutional); City of Seattle v. Webster, 115 Wash.2d

635, 802 P.2d 1333 (Wash., 1990)(pedestrian interference ordinance which

prohibited aggressively begging was constitutional); McFarlin v. District of

Columbia, 681 A.2d 440 (D.C. 1996)(upholding conviction for aggressive

panhandling); Roulette v. City of Seattle, 97 F.3d 300, 302 n 2 (9th Cir.

1996)(noting ordinance which prohibited aggressive begging was upheld and

parties did not appeal issue).

The Ordinance is narrowly tailored to serve a significant governmental

interest and there are ample alternative channels of communication. Numerous

9The Ordinance’s restrictions on location, such as prohibiting solicitation within twenty feet of an ATM are constitutional and common in aggressive solicitation legislation and are valid. See, Gresham v. Peterson, 225 F.3d 899, 901 (7th Cir. 2000). 10The ACLU is well aware aggressive solicitation ordinances have been repeatedly upheld by the Courts. See Exhibit “B”.


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other Courts have upheld similar restrictions on solicitation. Therefore, this Court

should not hesitate in denying injunctive relief.

IV. CONCLUSION

The County enacted the Ordinance in order to protect the public from the

dangers of aggressive solicitation. The Ordinance is narrowly tailored in order to

protect the public, while permitting individuals to continue to solicit. Similar laws

have been found constitutional.

Granting injunctive relief would cause a great harm to the public and permit

individuals to solicit at any location and in any manner. In contrast, denying

injunctive relief would cause no harm to the Plaintiff since the Ordinance clearly

permits solicitation. Therefore, this Court should not hesitate in denying

Plaintiff’s request for injunctive relief.

DATED: Hilo, Hawai‘i, September 12, 2012.

COUNTY OF HAWAI‘I, Defendant By /s/ Laureen L. Martin

LAUREEN L. MARTIN Assistant Corporation Counsel Its Attorney


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