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County solicitation and vagrancy ordinances found unconstitutional

Updated: Jun 29, 2022

The United States District Court for the Eastern District of Missouri recently struck down several provisions in St. Louis County’s code relative to solicitation and vagrancy as unconstitutional. The plaintiff in Fernandez v. St. Louis County, Missouri, had been cited under numerous provisions of the County’s code regarding solicitation and vagrancy. One solicitation ordinance sought to prohibit “soliciting property or financial assistance of any kind” at certain intersections in the County without first obtaining a solicitor’s license. Another prohibited persons from standing in the roadway for various purposes, including for “soliciting a ride, employment, charitable contribution or business from the occupant of any vehicle.” The court found that both of these portions of the solicitation ordinances at issue violated the First Amendment because they contain impermissible content-based regulations; one has to consider the “topic discussed or the idea or message expressed” to determine whether the conduct is violative of the ordinance provisions. The County claimed these provisions were necessary for public safety reasons because persons near or in the roadway can more easily be struck by a car and can distract drivers. The court held that the County failed to sufficiently link the valid public safety concerns to the regulation and that the regulations were under inclusive because the regulations singled out solicitation and failed to regulate other types of people in the roadway, such as protesting or soliciting for signatures on a petition. Accordingly, the court severed these provisions from the County’s code for being unconstitutional. Plaintiff also challenged provisions of the County’s vagrancy ordinances which defined the term as “every person found tramping or wandering around from place to place without any visible means of support,” and “every able-bodied man who shall neglect or refuse to provide for the support of his family,” among other things. The court also struck these ordinance provisions for being unconstitutionally vague and arbitrary. Because plaintiff brought this lawsuit under 42 U.S.C. § 1983, the court awarded compensatory damages and attorneys’ fees to plaintiff under § 1988. In light of this decision, cities should review relevant solicitation and vagrancy regulations with their city attorney. It could be possible to maintain certain specific regulations in these areas or even to enact new ones, but in general, they must be exclusively motivated by safety and/or health concerns and supported by substantial evidence. Careful consideration must be given to the type of regulation desired and the evidence that will be presented to the governing body to support it.

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