Legal Review Committee Agenda and Packet 2020 09 30

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SUBJECT: SOLICITATION IN STREET MEDIANS DATE: SEPTEMBER 30, 2020 PAGE 4 OF 5 prohibited people from stepping into the street, which could advance its interest in pedestrian safety on medians. The City of Louisville does not have an ordinance generally prohibiting pedestrians in medians, but LMC Section 12.20.100 prohibits solicitation on or near a street or highway. The United States Supreme Court has found solicitation to be speech protected by the First Amendment. So the City's ordinance would be required to satisfy strict scrutiny, meaning: • Necessary to serve a compelling state interest; and • Narrowly drawn to achieve that end. The Oklahoma City case underscores the importance of having a good factual record to support ordinances that impact constitutional rights, and how a court will likely look behind the findings set forth in the ordinance for evidence of pretext. Based on the factual records in each case, the Court came to different conclusions regarding the constitutionality of the ordinances enacted in Sandy City and Oklahoma City. The Court in the Evans case was not persuaded by the plaintiff's allegation that Sandy City's safety claims was a "fagade" for the City's improper motive of suppressing panhandlers' speech. But the Court was highly suspect of the real reason for the Oklahoma City ordinance. Last year we discussed the Evans case did not authorize a ban on standing or sitting in medians narrower than 36 inches; rather, that prohibition was upheld only under the facts of that particular case and the record developed before the City Council for Sandy City. The Court's decision in the Oklahoma City case shows that, without a strong factual record, such a prohibition is subject to challenge. We recommend the Legal Review Committee consider whether LMC § 12.20.100 should be repealed or amended to be content -neutral and tailored to specific, real concerns at identified locations within the City as demonstrated by a solid factual record. Additional pedestrian safety regulations could also be considered, including an ordinance that requires pedestrians to cross at crosswalks, such as Boulder Municipal Code ("BMC") 7-5-17, or prohibiting pedestrian interference with roadways like BMC § 5-6-15. Both of these Boulder ordinances appear content -neutral, as does its median ordinance, BMC § 5-6-16. From the dissenting opinion in Evans, some other options to consider include: • Limiting activity at night, when the dark would make it more difficult for drivers to see; • Examining pedestrian and vehicle patterns, and limit restrictions to certain times of day when traffic is busiest or certain areas where speed limit is greatest; CITY COUNCIL COMMUNICATION