Panhandling Ordinance Now in Effect

Española police on Saturday began enforcing a new city ordinance prohibiting panhandling and street vending in certain areas—a law some residents say violates their civil rights.

As of this morning, Wednesday, November 23, as the Rio Grande Sun went to press no arrests have been made, according to police.

The ordinance, passed unanimously by the Española City Council Nov. 8, sets legal limits on where pedestrians—including the city’s homeless and street vendors—can legally stand and sit.

The law bars people from standing or selling anything on most stretches of public and private roads, medians, and parking lots. Anyone standing on a median of less than 36 inches wide and soliciting can be arrested under the ordinance.

Among those impacted by the law:  panhandlers, some who are homeless, who seek spare change from passing drivers. Street vendors, independent contractors, selling copies of the Rio Grande SUN, may also be targeted for arrest.

Some media experts believe targeting street vendors, hawking single copy sales of the Sun, is a breach of the First Amendment of the U.S. Constitution which protects freedom of speech.

According to ACLU New Mexico, this ordinance is unconstitutional and vulnerable to a lawsuit.

“This ordinance violates the First Amendment by restricting distribution of news and information,” said Sammy Lopez, Executive Director of the New Mexico Press Association.

Some previous court rulings have found that laws banning panhandling also violate the constitutional rights of homeless Americans.

Currently, even though groups are discussing possible legal action against the city there have been no lawsuits filed.

 Automobile drivers and their passengers are also subject to criminal citation under the law.  

For example, someone who hands money or anything else to a panhandler or vendor can be cited under the new ordinance, with narrow exceptions.

Under the new law, a pedestrian is legally prohibited from coming closer than three feet to a person being solicited, “unless and until the person solicited indicates that he or she wishes to make a donation or purchase or otherwise communicate.”

The law does not specify what constitutes an “indication.”

The ordinance makes an exception for “solicitation occurring between the period from one-half hour after sunset to one- half hour before sunrise,” so long as the activity does not block traffic or violate the law’s other provisions.

For decades, independent contractors have sold the SUN along the busiest city roads lately for 75 cents a copy, mostly on Wednesdays when the new edition goes to press. 

The city council did not carve out an exception for those vendors, or the thousands of readers who buy SUN copies while in their vehicles.

At a press conference Friday, Mayor John Ramon Vigil and Police Chief Mizel Garcia said people found violating the ordinance can be arrested on the spot and jailed.

“Happy Thanksgiving from the city to hard-working entrepreneurs trying to earn a living or supplement one by selling papers,” said Richard L. Connor, editor and publisher of the Sun. “These folks in charge of Espanola ask why the city gets such bad publicity? This is why,” he said.

“Add to this the callousness and pure meanness and insensitivity of kicking out of their apartments two days before Thanksgiving the people of the Santa Clara Apartment Complex you get a view of what kind of people are in charge,” said Connor. “They are either not thinking or do not care about the unfortunate among us or public opinion. It’s called arrogance.”

Some previous court rulings have found that laws banning panhandling also violate the constitutional rights of homeless Americans.

Here is how the First Amendment reads:

“Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”

Homeless Españolan’s said they are already being targeted by police under the new ordinance.

Amanda Herrera, a homeless city resident for the past seven years, said she had been issued a warning.

“You don’t want us to steal, but now you’re making it even harder for us to make money,” said Herrera, who is uncertain she will make enough money to eat under the new law.

“We use this money to eat, to get things that we need. They’re making it impossible.”

Española is currently grappling with a homelessness crisis.

Cristian Madrid-Estrada, Chief Executive Officer of Española Pathways Shelter, said the facility expects to serve 750 individuals annually by the end of 2022.

Between 250 and 350 homeless people are permanent residents of Espanola or the broader Rio Grande Valley, Madrid-Estrada estimates. 

Others served by the shelter are hitchhikers trekking across the state. 

Garcia insisted the ordinance is not meant to target the homeless.

“My department is not here to criminalize (the) homeless,” said Garcia. “That’s the last thing we’re going to do…We are not going to criminalize [the] homeless. We are always not going to circumvent anybody’s civil rights, anybody's First Amendment rights.”

Española has tried for years to legally restrict street solicitation.

A previous city ordinance targeting panhandlers was repealed by the city in 2018 after the ACLU called it unconstitutional. Another effort by the city to legally restrict panhandling the following year also failed.

“The Rio Grande SUN has been in business over 65 years and for most of that time a hallmark of this business has been our street vendors, independent contractors, hawking newspapers,” said Connor. “There are adults, many of them, who fondly recall selling this paper on the street as children. It is part of the history of the Sun and the city.”

Connor called it unfortunate that the city would potentially disrupt the newspaper’s business and affect a valuable revenue stream for citizens selling newspapers.

If the ordinance is challenged in court, a lawsuit could reach the federal level and incur major legal bills for the city.

A longtime newspaper contractor says he was harassed by the police chief himself.

Leonel Andrade, who has sold the Sun as an independent contractor for 15 years, said he has been harassed for several weeks while selling the newspaper in the same spot he’s used for years: the median at Riverside Drive and Fairview Lane.

According to Andrade, Garcia told him he was driving to Walmart, and that if Andrade was still selling when the chief drove past again, he would be arrested.

Andrade, a retiree who sells as many as 300 to 500 copies of the SUN each Wednesday, said the money from those sales is his only source of income.

He said he is unsure he can continue selling papers due to the ordinance. 

Garcia, who disputed Andrade’s account, said he spoke to the vendor last week using “respectful language and called Andrade’s version of their encounter “a little comical.”

The chief said he saw Andrade nearly fall from the median while selling papers. 

Garcia said he turned on his emergency lights, pulled up to Andrade and “educated him” about the new law.

Connor said he finds nothing “comical” about what happened to Andrade.

“This is a serious issue for Española,” the SUN publisher said. “The ordinance and its enforcement are likely to gain at least statewide attention. There is certain to be criticism and questions why the city appears to be focusing on this issue at this time when almost weekly murders are still being committed here.”

At a time when Española residents are expressing concern about homicides, drug trafficking, and other serious crimes in the city, Mizel defended the government’s focus on panhandling.

“A violent crime is something that we are going to address immediately,” said Garcia. “There’s no priority system initially set up. We are going to address crime.”

Vigil said his administration “remains committed to public safety and … creating effective ordinances to enforce that and create a safe environment for our community.”

Connor pointed out that in nearby Santa Fe, vendors for the New Mexican newspaper sometimes stand in the middle of busy streets selling newspapers.

“I doubt we have heard the last of the controversy this may start,” the publisher said.

Española modeled this ordinance from one from Sandy City, Utah, which was passed in 2016.  In 2020, a man named Steve Ray Evans attempted to file for an injunction which would prohibit Sandy City from enforcing the ordinance. The United States Court of Appeals for the Tenth Circuit deemed that the ordinance met First Amendment requirements. 

         The City of Albuquerque passed an anti-panhandling ordinance on Monday evening, November 21. The newspaper in the city does not have street hawkers.