Opinion: Asheville has much bigger fish to fry, but panhandling changes are better than doing nothing

Sure, the city of Asheville probably needs to take another crack at controlling panhandling, as it seems to be in one of its periodic upticks.

But man, I’d take a look at that “visitor leakage” first. I half-jest.

I’m referring to a recent email from Buncombe County Tourism Development Authority President & CEO Victoria “Vic” Isley and Board Chair Brenda Durden in which they noted July lodging occupancy was down six points from the last pre-pandemic year. The last calendar year was generally pretty gonzo for tourism here – the email noted visitors spent a record $2.88 billion in Buncombe County in 2022.

But…

“While we celebrate the success of the last calendar year, we’ve also been hearing from businesses that sales have been down during the first half of 2023,” Isley and Durden said. “Many local businesses rely on strong visitor spending in July and October to power businesses through shoulder seasons, to keep their establishments open, and their staff employed.”

Visitation has slowed from last year’s peak, they further noted, and national and local trends come into play.

“Building off of the economic concerns and luxury trends shared in June, geolocation data shows visitor leakage to neighboring counties as a result of real and perceived safety issues in our community,” Isley and Durden said. “Explore Asheville’s marketing team is adjusting our process and messaging to inspire domestic travel to Buncombe County this fall.”

Honestly, who among us has not had some “visitor leakage” from time to time?

OK, terrible joke. This is a serious issue for Asheville, especially this “real and perceived safety issues” bit, which plays into the aforementioned panhandling issue.

Asheville is struggling with an image problem these days as a place that’s beautiful and quirky but also overrun with homeless people, panhandlers, and those exhibiting sometimes bizarre behavior, as we reported in our Down Town series.

In this milieu, Asheville City Council is — drum roll, please — adjusting its panhandling ordinance.

Sure, that’s unfair to make it sound like that’s all Asheville is doing. City staff and the elected City Council are well aware of the public safety problems downtown, and they’ve taken actions this spring and summer to get more public safety personnel on the streets and address issues ranging from cleanliness to more help for people going through a medical or psychological crisis.

But the tweaks to the city’s panhandling ordinance have taken center stage of late, and that will continue as council considers the measures at upcoming meetings.

With this in mind, the Asheville Coalition for Public Safety, which formed last October to support local law enforcement, invited Asheville City Attorney Brad Branham, Asheville Police Deputy Chief Michael Lamb, and Buncombe District Attorney Todd Williams to speak at its Aug. 29 meeting.

Panhandling is a problem in Asheville, as it is in many cities, and has been for decades. I remember writing columns about it when Asheville changed its laws two decades ago, and people on both sides made the same arguments then as now: Panhandling makes visitors and locals feel unsafe, endangers the panhandlers themselves, and can lead to ugly confrontations; and on the flip side it’s a right protected under the constitutional guarantee to free speech, and some people simply need the money to get by.

In short, it makes a lot of people feel unsafe, but it’s not illegal to ask for help. Also, don’t be heartless.

Asheville City Council voted 6-1 in late August to approve changes to the law, but it will require a second reading.

The changes include technical tweaks. Instead of banning panhandling “in close proximity” to a person, the changes specify that distance as eight feet. Another change would be the addition of a ban on panhandlers using “fighting words” when asking for money and changing “profane or abusive” language to “obscene or threatening.”

As Asheville Watchdog previously reported, the more dramatic changes, likely to come before council in October, could make it illegal for motorists to give money from their vehicles, and the city may add the River Arts District and Haywood Road in West Asheville as designated “high traffic zones,” joining Biltmore Village and much of downtown, which already have that designation.

“In high traffic zones, panhandlers may hold signs but may not verbally ask for money,” my colleague John Reinan reported. “They must stay on sidewalks and can’t solicit money after dark.”

At last week’s coalition meeting, Branham told the 60 people gathered that the city needs to update the 20-year-old ordinance in part to comply with recent court rulings. Branham also stressed that the city regulates panhandling but doesn’t ban it, as that would be unconstitutional and a violation of free speech.

“But it was very clear to us that this was a set of ordinances that had not been updated by the city in, depending on which section you looked at, in more than 20 years,” Branham said. “That’s a very, very dusty ordinance in our world.”

So, the first reason was to remain in compliance with decisions from higher courts.

“Now, the second reason that we started to look at that was we realized that we’re getting more and more complaints, and there’s a growing interest around panhandling within the city,” Branham said, adding that the city has to have ordinances that are “clear, concise, and directed at the issue.”

The ordinances also have to be legally defensible and enforceable.

“We don’t want to give our police department a weak foundation to work from,” Branham said, adding that the second council hearing on the tweaks will take place Sept. 12.

The realities of enforcement

As you can imagine, in a city whose police force is down from full staffing by 39 percent — Lamb noted that was a 1-point improvement from earlier this year — panhandling is not going to be job one.

“Panhandling is definitely something that we get a lot of complaints on,” Lamb told the Asheville Coalition for Public Safety. “We have to triage those complaints because, especially with limited staff, we have to make sure that we’re first and foremost addressing violent crime, and being able to show presence in areas where violent crime, especially gun crime, and shootings occur.”

“However, panhandling is something that we still have to address, because of the safety issue surrounding it. Typically, when we get panhandling complaints, or we get a call to dispatch, if there’s officers available, they will dispatch an officer to that area to address it.”

The safety issue, as some in attendance noted, is that panhandlers can become agitated, loud, and abusive, which is frightening for workers, diners, tourists, and locals. And sometimes such behavior escalates to a physical confrontation.

Lamb noted that officers typically do not arrest panhandlers, unless the situation has become violent or the person has outstanding warrants for other crimes.

“Most of the time when officers respond, they will issue a citation to that person,” Lamb said.

The reason for that comes back to manpower. If an officer does make an arrest in these cases, “that typically takes that officer off the road for one to two to three hours,” Lamb said, adding that the wait at the jail factors in, as well as whether the person’s property has to be secured or if property has to go into the evidence room. “So that’s why oftentimes a citation is issued and that person is released.”

Lamb acknowledged that a lot of panhandlers are right back at it after the warning.

“What we see is a lot of people will go down the road, and then they’ll come right back to that same spot,” Lamb said. “Same thing if a warning is given as well.”

One trend police noticed in 2021 was that a lot of panhandlers “would oftentimes have warrants for their arrest for other charges, so that an arrest would take place there.”

“But typically, if it’s just panhandling, again, a citation will be issued, because we don’t want that officer to get tied up, which increases our response time for other higher priority calls for service,” Lamb said. “But yes, it’s definitely a challenge being able to consistently enforce that issue.”

The coalition asked District Attorney Williams about his perspective on sentencing guidelines and what the realities are when it comes to panhandling and enforcement.

“Per North Carolina General statutes, any criminal ordinance that is passed by the city is a Class 3 misdemeanor,” Williams said. “So that means you’re stuck with basically 20 days in custody, maximum, for one offense, or for 20 offenses.”

And, as The Watchdog previously reported, offenders often find the justice system for these minor offenses is a revolving door. Another reality is that magistrates are unlikely to set a high bond or even any bond on a panhandler.

“I mean, we’ve had folks released on bond that have been violent criminals,” Williams said. “So, if we’re getting very low bond set on matters that involve bloodletting, we’re not going to get bond set on panhandling, right?”

But Williams did point to what he called a “light at the end of the tunnel” — House Bill 813, “The Pretrial Integrity Act,” which passed through the General Assembly this year and goes into effect Oct. 1.

The legislation most importantly addresses a slate of felonies that will require bond to be set by a District Court judge, not a magistrate, Williams noted. First-degree murder already falls in this category, but crimes that will be added to this list include second-degree murder, rape, robbery, and human trafficking, Williams noted.

Magistrates, who often set bond for criminal defendants, are appointed, while judges are elected.

Williams acknowledged that panhandling, obviously, is not a violent crime. But HB 813 has more to it.

“There’s a second provision of House Bill 813 that provides that if an individual has been released on conditions of release and then reoffends while they’re out on release, they’re subject to the same procedure — the magistrate cannot set the bond,” Williams said. “So if they’re arrested, at 12 noon today, they’re going to be put on the calendar tomorrow.”

In other words, the District Court judge will be able to look at what they’ve been arrested for, and if it’s for panhandling 15 times, that could factor into a higher bond and a hold in jail instead of a visit to the revolving door.

In short, HB 813 is “designed to put a stop to and impose conditions of release that will provide some accountability,” Williams said. 

This will provide some help, but it’s not a panacea.

“(City) ordinances are always going to be Class 3 misdemeanors until the legislature down in Raleigh tells us (differently),” Williams said.

‘A more robust’ law, and legal ‘gamesmanship’

Branham said what the city is shooting for is a “kind of specificity which didn’t previously exist” in the panhandling code.

“So we have a much more robust, what I would call regulation, around aggressive panhandling,” he said.

Williams offered another interesting twist on this — the First Amendment and legal gamesmanship over what actually is panhandling versus what is freedom of expression. For example, someone may say something like, “I need dinner,” and a person interprets that as aggressive panhandling.

Is there a violation of the law? Under First Amendment protections, the accused panhandling may say they were just making a statement of fact. 

“This is what comes up in our court cases,” Williams said. “It’s gamesmanship played by lawyers in courts in front of judges. So these cases can get in the weeds and get very tricky, unnecessarily.”

Belligerence from panhandlers, which the city’s tweaked code will address, could be a gray area, too, because it allows for interpretation.

The upshot of all of this is panhandling regulations are labor-intensive to enforce and sometimes tough to prosecute, and the city cannot trample constitutional rights. Even with the new city ordinance, and the state law Williams touted, don’t expect panhandling to go away.

So, is it worth it for the city to spend so much time on it?

I’d say yes, because it is a real problem that has worsened during and after the pandemic, and it contributes to the perception of Asheville being unsafe. Business owners, locals, and tourists have all complained about aggressive, ubiquitous panhandling, and the city shouldn’t just say, “Welp, nothing we can do about it.”

It’s better to try something than do nothing and watch the city continue to slide into “the place that killed the golden goose,” as several business owners have told me.

Sure, the city has much bigger fish to fry. This list is almost comically long — the critical need for more mental health services and beds, a dearth of affordable housing, and that huge gap of officers at the APD immediately come to mind.

But this is a start, and I applaud the six members of council who showed support for the changes for being brave enough to make the effort.

---

Asheville Watchdog is a nonprofit news team producing stories that matter to Asheville and Buncombe County. John Boyle has been covering Asheville and surrounding communities since the 20th century. You can reach him at (828) 337-0941, or via email at jboyle@avlwatchdog.org. To show your support for this vital public service go to avlwatchdog.org/donate.