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Nov 29

Solicitation in Public Right of Way

According to KHOU, The City of Houston has started to pursuit a change in city ordinances that prevents any minor under the age of 16 from being able to solicit on public right of way.  Councilmember Michael Berry also solicited input from my friends over at BlogHouston to find a way to look at the bigger problem; homeless asking for handouts on every corner.

I wanted to really start an in-depth look at the issues, and why, in my post on BlogHouston, I came to a four-point process for addressing the problem and why each of these points should be considered valid.

  • Enforce no camping laws already on books.  I have seen them sleeping many times underneath the Montrose bridge that crosses Buffalo Bayou and Memorial Drive.  Same with in the park areas nearby, yet there is clearly signs that say “no camping”.  By doing the same under freeway overpasses, and enforcing it, this will encourage them to move on.

Reason:  It’s a law already on the books locally for city parks:

32-28: Camping – It shall be unlawful for any person to establish a campsite upon or use any area of the parks as a campsite.

There are signs posted on most freeway bridges (at least on the Katy Freeway) that indicate camping is forbidden there by state law.  At the time of writing, I was unable to find reference to it. Many of these homeless are camping out there at night.  By making those areas inhospitable (by night-shift police waking them up to cite them for camping) the people will move on.

  • Create an all out ban on sales of merchandise and services from the public right of way. This includes window washers, flower sellers, newspaper vendors and the like. If the street-side seller is working for a commercial enterprise, then a fine needs to be put on the commercial enterprise (Chronicle?) for violating the ordinance. And exemption could be written to allow sign holders for one-time events to stand on the public sidewalk (still part of the public right of way, which is why the exemption needs to be spelled out) and advertise their one time event that is being held on private property. This will allow carwash fundraisers and the like.

Reason: Most of these businesses do not collect sales tax, do not pay income tax, and if they’re homeless, they are unlikely to pay property tax. As an honest taxpayer, should these people be allowed to use the taxpayer paid for right of way to make money? Legitimate enterprise doing the same should be banned for safety purposes – see my next bullet.

If a business holder grants a not-for-profit group permission to have a car wash, adopt a pet or other event on their property, then the group should have the right to stand on the sidewalk and advertise their event, not in the median.

State statute already exists to deal with people walking in the street to do their selling:

§ 42.03. OBSTRUCTING HIGHWAY OR OTHER PASSAGEWAY.

  • (a) A person commits an offense if, without legal privilege or authority, he intentionally, knowingly, or recklessly:
    1. obstructs a highway, street, sidewalk, railway, waterway, elevator, aisle, hallway, entrance, or exit to which the public or a substantial group of the public has access, or any other place used for the passage of persons, vehicles, or conveyances, regardless of the means of creating the obstruction and whether the obstruction arises from his acts alone or from his acts and the acts of others; or
    2. disobeys a reasonable request or order to move issued by a person the actor knows to be or is informed is a peace officer, a fireman, or a person with authority to control the use of the premises:
      • (A) to prevent obstruction of a highway or any of those areas mentioned in Subdivision (1);  or
      • (B) to maintain public safety by dispersing those gathered in dangerous proximity to a fire, riot, or other hazard.
  • (b) For purposes of this section, “obstruct” means to render impassable or to render passage unreasonably inconvenient or hazardous.
  • (c) An offense under this section is a Class B misdemeanor.

If I read this correctly, that says that anyone who can be considered to make passage in a public right of way hazardous – and these street soliciters are every time they walk into the traffic – can be charged with a misdemeanor. I think this hits a good portion of the discussion.

The part it doesn’t cover are the ones who are constantly sitting on the median or curb only collecting from those in the left most lane. I would guess that there is probably existing laws that could deal with those for unlawful use of city property.

  • Require that anyone soliciting donations cannot occupy a curb-protected space that is less than 24 inches (or better yet, 36 inches) between traffic lanes. This would address the biggest part of the safety issue, while also getting them out of the moving lane of traffic. To allow for special events like the MDA firefighter boot-blocks, create and exemption that allows uniformed public safety officials or other charity groups to perform one-time events as long as non-uniformed participants are wearing orange safety vests. One consideration should be if the charity carries a specified amount of insurance protecting the participants.

Reason: This is safety pure and simple. If I’m standing an a median that is 12 inches wide, I’m going to be exposed unless I’m standing sideways. If a vehicle loses control, or, heaven forbid, is involved in a red-light running accident, that person in the narrow median is not going to fare too well if hit. Even a car hugging the inside of the lane could easily hit the person with a side mirror. Legitimate organizations have been trained in safety procedures (like firefighters) and can safely do so should be allowed to. If not in an official uniform, they can wear a safety vest. Mr. Homeless Hungry and Ms. News Seller are just out there for the money, and have probably never been told about safely working around or in traffic.

You think it’s not possible. I have seen a number of videos where innocent bystanders have been hit by vehicles – a six inch high curb will not stop them.

  • Ban all street solicitations from sunset to sunrise. Again, this is a safety issue.

Reason: If it’s dark outside, and I’m wearing a dark colored outfit, I am not easily visible. Again, if someone in a dark outfit is standing on a street corner and darts out to collect money or clean a windshield, they quickly become a target of vehicles approaching in the intermediate lanes. Also, at night is when more people are tired, or under the influence and do not have the attention/reaction times they do during the daylight hours, making the risks of an accident even greater. The exceptions in the above rules are only exceptions sunrise to sunset. Again, at night, all soliciation stops.

In summary, the changes are needed, and I believe they are enforceable (I’m not a lawyer, so don’t constitute this author’s opinion as a legal one). As I was researching this piece, I found the above state law reference. I have forwarded it to Councilmember Berry, and it is being reviewed, and may be discussed at a future council meeting.

UPDATE November 30: City council has postponed it’s vote on the current proposal, at the request of Councilmember Michael Berry. Watch this space for more details.

UPDATE 2: The city council did pass an ordinance prohibiting solicitation by charities in the roadways. It does not specifically address the homeless or The Chronicle merchants. The ordinance should take effect in the coming weeks. We will continue to monitor the situation to see if things improve.

About the author

Michael Jones

Michael Jones is the founder of On The Spot Communications and On The Spot Blog.

A native of Ottawa, Kansas (approximately 60 miles South-West of Kansas City), he was born in the early 70's and lived most of his early life without traveling far from home.

He has since lived in Lenexa, Kansas (suburb of Kansas City), Houston, Texas, and now resides in Frisco, Texas (north of Dallas, Texas). He has had the experience of traveling to Tokyo, Japan and Tel Aviv, Israel, as well as numerous places around the USA.

A self-professed computer geek, when Michael's not working in his telecommunications job, he enjoys Model Railroading and Paintball.

Michael Jones is the founder of On The Spot Communications and On The Spot Blog.
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