Thursday, September 29, 2022

Kure Beach walks back portions of solicitation amendment after First Amendment questions raised

Kure Beach Ocean Front Park. Photo by Hannah Leyva.

KURE BEACH — Council members eased Kure Beach’s solicitation rules on Monday after members of the public and media raised concerns over a previous amendment’s scope. A neighboring municipality also brought up questions in its regard in its own meeting this week.

The ordinance on peddling, solicitation and begging was originally updated last month in a unanimous vote. Kure Beach town council removed the mandate requiring solicitors to obtain a permit from town staff, who called the process “discretionary,” while also providing specific guidelines on where and how solicitation can take place. 

READ MORE: Solicitation in Kure Beach: Town adds fine and defines banned areas, raises First Amendment concerns

The amendment specified solicitors could only beg from sunrise to sunset and not near town property, beaches, parking lots, on Wave Transit vehicles, or near people in line at a commercial establishment.

It flagged concerns over First Amendment protections, as panhandling is protected in public spaces, including roads and sidewalks, per 2015’s U.S. Court of Appeals Fourth Circuit case, Reynolds v. Middleton. Since it is considered free speech, municipalities would need to provide a “burden of proof” to enact restrictions, which are required to be “narrow and specific” in scope. 

The move essentially limited begging to unpaved right-of-ways. Private property owners could also ban soliciting via sign or verbal warning.

Along with location limitations, the revised ordinance prohibited soliciting in an “aggressive manner” and added a $50 civil citation to violations.

The changes drew attention from the City of Wilmington, which recently discussed ways to deter soliciting in its own borders. Yet, the city found it cannot ban panhandling outright, despite an ordinance disallowing it in city limits.

READ MORE: Contrary to ordinance, panhandling legal in city limits: Staff pushes for nonprofit support over handouts

During discussion at Monday’s agenda briefing, Wilmington City Council member Neil Anderson remarked on the press coverage regarding Kure Beach’s changes. 

“When that came out, I got questions: ‘Why can’t we do that?’” Anderson asked the city attorney. “So I’d appreciate it if you could get up to speed on that. So I can answer that question for our constituents.”

City attorney John Joye stated he had not talked with the attorney in Kure Beach and, therefore, did not know how its ordinance was constructed. 

“I’d like to have that discussion with him, I just have not had the opportunity to,” Joye said.

Port City Daily reached out to Kure Beach town attorney James Eldridge in the days following the town’s amendment passage on Aug. 15. PCD requested information on how the Pleasure Island town ordinance would be enforceable in light of rulings that found panhandling shall be allowed in public spaces. 

Eldridge responded Aug. 29, citing multiple court cases — Ward v. Rock Against Racism, Frisby v. Schultz, Smith v. City of Fort Lauderdale — that noted the amendment’s scope was justified per prior precedent. 

“Based on governmental interests in public safety and welfare, the economic importance of tourism, and the public’s right to privacy and tranquility, the Town finds that the new solicitation regulations are content neutral, narrowly drawn, and constitute reasonable time, place, and manner restrictions on soliciting while still providing ample opportunities where the right to solicit may be exercised,” Eldridge said. 

However, Eldridge presented more revisions to council Monday, explaining the “tweaks” were based on several scenarios mentioned during the council’s August discussion and brought up from media requests. 

The revisions passed in a unanimous vote Monday and include removing the sunrise-to-sunset time limit “out of an abundance of caution,” according to Eldridge. 

Eldridge also said he took away the restriction from people soliciting on Wave Transit vehicles because: “That’s not our turf.”

Still, the Kure Beach ordinance prohibits beggars from approaching people in cars, an action Wilmington City Council member Anderson questioned in its own jurisdiction. City attorney Joye affirmed knocking on someone’s window to solicit was legal unless it turned aggressive.

Municipalities can regulate panhandling that intimidates, threatens or causes physical harm to the public. Under North Carolina statute, law enforcement is within its rights to cite someone for aggressive behaviors while panhandling. 

Kure Beach kept its ban on hostile solicitation, which prohibits a panhandler from making physical contact, following someone, continuing to solicit after denial, blocking freedom of movement, abusive and obscene language and intimidation. 

Eldridge also struck the abusive or obscene language tenant from the new amendment.

“I was surprised there are actually court cases that protect obscenity and profane language in certain scenarios,” Eldridge said during the meeting. “But, more importantly, we have to have a content-neutral requirement.” 

At the August meeting, council questioned how an ice cream truck would be classified since it’s technically solicitation of business and another community member asked about whether busking would be included. Under new revisions both of those actions could now be considered advertising, not soliciting.

Kure Beach kept some of its clauses under the current amendment, including the restriction on begging within 50 feet of town property, as well as in parking lots or paved public right-of-ways. 

During Kure Beach’s Monday meeting, Eldridge said he felt “confident” in the new amendment based on his research.

PCD reached out to Eldridge for comment and did not hear back by press; this article will be updated with his response.

As far as enforcement is concerned, an additional line in the amendment states it will be “complaint-driven.” 

After the first updated amendment passed in August, Port City Daily reached out to the Kure Beach Police Department requesting information on how new rules on solicitation and begging would be enforced, as well as the amount of panhandling incidents the department responded to in recent months. PCD received no response.

Here is the current ordinance as passed on Monday by Kure Beach council:


Reach journalist Brenna Flanagan at brenna@localdailymedia.com 

Want to read more from PCD? Subscribe now and then sign up for our newsletter, Wilmington Wire, and get the headlines delivered to your inbox every morning.

Related Articles