Sometimes it takes a law enforcement chief to remind politicians that not every issue needs to be addressed with new rules, a new ordinance or a new law, especially when there isn’t an issue. For the second time in four months, a chief did so before elected officials, slowing down a push for a new ordinance against panhandling in Flagler Beach.
Sheriff Rick Staly had done so before the Flagler County Public Safety Coordinating Council in March, reminding those around the table that deputies shouldn’t be turned into a homeless policing force, especially in the absence of a comprehensive solution to homelessness.
Thursday evening, it was Flagler Beach Police Chief Matt Doughney who, with unusual forcefulness before his city commission–his bosses–but also clear-eyed forthrightness, set back a proposal to enact an ordinance against “aggressive panhandling,” which he said does not exist in the city.
“I have never been contacted in my five and a half years of tenure as a police chief about aggressive panhandling,” Doughney told commissioners. “So my recommendation to the board is: let myself and the city attorney come up with verbiage that I’m comfortable with that will not place us in a liability situation, because that’s part of my job is to keep us from getting sued.”
Doughney was speaking about a proposed ordinance that City Attorney Drew Smith drafted at the urging of City Commissioner Eric Cooley, who also owns the 7-Eleven on Oceanshore Boulevard, where he says he occasionally sees aggressive panhandling on the boardwalk or in his store’s vicinity.
But even Cooley was uncomfortable with the proposed ordinance as drafted. He was especially concerned with a section of the ordinance that stated, alarmingly, that “an increase in aggressive panhandling and begging throughout the city has become extremely disturbing and disruptive to residents and businesses and has contributed not only to the loss of access to and enjoyment of public places but also to an enhanced sense of fear, intimidation, and disorder as well as actual danger to the health, safety and welfare of citizens and tourists alike.”
Doughney, too, flagged those lines. “If you were to read this, it would lead a reasonable person,” he said, “to believe that panhandling and begging throughout the city has become extremely disturbing and disruptive. That’s not a true statement.”
“I have never been contacted in my five and a half years of tenure as a police chief about aggressive panhandling.”
Cooley sees the proposed ordinance as a preventive, if not preemptive, measure against the possibility that panhandling would become a problem should poorer people begin to drift down from St. Augustine or up from Daytona Beach, or east from Bunnell, into Flagler Beach. All three of those cities have passed copycat and draconian ordinances in the past 18 months cracking down on homelessness and panhandling. The ordinances prohibit any panhandling after dark, aggressive or not, and any panhandling anywhere near businesses, schools, public taxi or bus stops, ATM machines and the like–again, whether it’s aggressive or not. The ordinances also prohibit “aggressive” panhandling. (Palm Coast rejected drafting a panhandling ordinance last year.)
Cooley didn’t want to be that draconian. The proposed Flagler Beach ordinance addresses only aggressive panhandling, which it defines as demanding money to the point of intimidation, with undue, stalking-like persistence. The proposal says nothing about prohibiting panhandling and it does not set up prohibitive buffer zones, or no-panhandling zones, as do those of the three nearby cities. Even so, commissioners raised issues with the wording even before Doughney did.
“The intent of this is to be a preemptive measure to get a ahead of a problem,” Cooley said. “We have areas around us that have very tough panhandling ordinances in place, we’re almost surrounded by that. This is not to say that, or make a statement that we have a very large problem right now, because we don’t.”
The ordinance’s more alarmist language could be softened and made more conditional, Smith and other commissioners agreed. But Doughney was uncomfortable with the approach. “Soliciting and panhandling have first amendment rights, and when it comes to people’s rights, I use the words ‘tread lightly,'” he told commissioners–twice. He said state laws already give law enforcement authority to address the issue, at least in part. A state law forbids anyone from impeding traffic, including panhandlers in roadways. They could be arrested for doing so. Aggression is also addressed: Touching or physical contact is battery, an arrestable offense, Doughney said, as is assault. “If somebody gets in somebody’s face and leads them to believe that a physical contact or the threat of violence is imminent,” the chief said, “that’s an assault and they can be arrested. So again the two words I would use would be tread lightly, and let myself and the city attorney come up with some verbiage because as I see it right now I don’t see panhandling as a problem in the city of Flagler Beach.”
Commissioner Kim Carney asked him about cities that have adopted panhandling ordinances. Doughney was aware, but also adamant: “I don’t think w e should adopt an ordinance if we don’t have a problem.”
“Not even for future use?” Carney asked.
“No,” Doughney said. “There are ordinances on the books and there are state statutes on the books,” the chief said, “but that’s also your decision. If you want to put one in there that we could utilize in the future, I would rather do it when it’s reworded or something that I was more comfortable with. Because ultimately the law enforcement officers, and I spoke about it with the counselor earlier, it’s a city ordinance so we can’t arrest somebody for it. So if you issue them a civil citation, they’re not leaving. You’re going to give them a piece of paper, which is unenforceable. They’re not going to leave. We can’t arrest them. And even if we did arrest them and put them in the Flagler County inmate facility, we’ll be subjected to pay for their food, their shelter and any medical attention that they would have to get while they’re at the jail. We would foot the bill. So that’s not an option either. So there’s going to be an ordinance on the books, but I just don’t see it as [having] any bite to it.”
In Flagler Beach–as in Bunnell–the first violation of the proposed ordinance is a verbal warning. But even to get to that point, a police officer would have to witness the infraction to be able to issue the warning, or the subsequent citation, which would carry a fine: panhandlers usually don’t have the money to pay fines. (At a mayors’ forum on Thursday, the audience laughed derisively when Bunnell mayor Catherine Robinson explained how panhandlers may be fined. Flagler Beach Mayor Linda Provencher was sitting next to her.)
“We’re going to waste all this time and all this money on something that can’t be enforced if a police officer does not see it,” Provencher said of Flagler Beach’s ordinance.
“An officer could easily view that,” Cooley said, “these are the folks that our citizens feel threatened by, they get pursued, these are the folks that basically have no regard. That’s where we would want some kind of intervention to protect these citizens from being stalked or harassed. That’s really the main purpose of it.” But after Doughney spoke, Cooley said he liked the idea of tabling the ordinance and letting the police chief work out the language with the city attorney.
By then Doughney was walking back, at least for half a step, his opposition to an ordinance. “I’m not saying that we shouldn’t have one,” he said.
The proposed ordinance in full is below.
Flagler Beach Aggressive Panhandling Ordinance, Proposed (2019):