County Opposes Injunction of Solicitation Ordinance

Case 1:14-cv-00400-SOM-KSC Document 10 Filed 09/12/14 Page 1 of 28 PageID #: 112
MOLLY A. STEBBINS 8639
Corporation Counsel
LAUREEN L. MARTIN 5927
Assistant Corporation Counsel
County of Hawai‘i
101 Aupuni Street, Suite 325
Hilo, Hawai‘i 96720
Telephone No. (808) 961-8251
Fax No. (808) 961-8622
E-mail: Laureen.Martin@hawaiicounty.gov
Attorney for Defendant COUNTY OF HAWAI‘I
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAI‘I
JUSTIN GUY,
Plaintiff,
vs.
COUNTY OF HAWAII, a municipal
corporation,
Defendant.
CIVIL NO. 14-00400 SOM-KSC
DEFENDANT COUNTY OF
HAWAI‘I’S MEMORANDUM IN
OPPOSITION TO PLAINTIFF’S [2]
MOTION FOR TEMPORARY
RESTRAINING ORDER OR, IN THE
ALTERNATIVE, FOR PRELIMINARY
INJUNCTION FILED ON SEPTEMBER
8, 2014; DECLARATION OF
LAUREEN L. MARTIN; EXHIBITS
“A”-“F”; CERTIFICATE OF SERVICE
Hearing
Date: September 19, 2014
Time: 9:30 a.m.
Judge: Honorable Susan Oki Mollway
No Trial Date Set

TABLE OF CONTENTS
I. INTRODUCTION ........................................................................................ 1
II. STATEMENT OF FACTS ........................................................................... 1
III. ARGUMENT ................................................................................................. 5
A. PLAINTIFF’S CHALLENGE OF HCC § 15-20 IS NOT RIPE ........ 5
B. BARRING ENFORCEMENT OF A CRIMINAL STATUTE IS AN
EXTREME REMEDY WHICH IS NOT WARRANTED .................. 7
C. PLAINTIFF WILL NOT SUFFER IRREPARABLE HARM AND
THE PUBLIC INTEREST WEIGHS IN FAVOR OF DENYING
INJUNCTIVE RELIEF ........................................................................ 9
D. THE COUNTY IS LIKELY TO PREVAIL ON THE MERITS ...... 11
1. HCC § 14- 75 is Content-Neutral. ................................................ 11
2. The Ordinance is Narrowly Tailored to Serve a Significant
Government Interest and There are Ample Alternative Channels of
Communication ............................................................................. 15
IV. CONCLUSION............................................................................................. 22
i

TABLE OF AUTHORITIES
CASES
ii
ACLU of Nevada v. City of Las Vegas
466 F.3d 784, 794 (9th Cir. 2006) ................................................................. 14
Babbitt v. United Farm Workers Nat. Union
442 U.S. 289, 298 (1979) ................................................................................ 6
Chad v. City of Fort Lauderdale
861 F.Supp. 1057, 1061 (S.D. Fla. 1994) ....................................................4, 7
City of Los Angeles v. Lyons
461 U.S. 95, 101–102 (1983) ................................................................. 10, 11
City of Seattle v. Webster
115 Wash.2d 635, 802 P.2d 1333 (Wash., 1990) .......................................... 21
Clark v. Community for Creative Non-Violence
468 U.S. 288 (1984)......................................................................................... 7
Cox v. New Hampshire
312 U.S. 569, 574 (1941) .............................................................................. 16
Devenpeck v. Alford
543 U.S. 146, 153, (2004) ............................................................................... 5
F.T.C. v. Evans Products Co.
775 F.2d 1084, 1088 (9th Cir. 1985) ............................................................... 8
Grayned v. City of Rockford
408 U.S. 104,115 (1972) ............................................................................... 16
Gresham v. Peterson
225 F.3d 899, 901 (7th Cir. 2000) ................................................................. 21
Harnish v. Manatee County
783 F.2d 1535, 1539 (11th Cir.1986) .............................................................. 7

Heffron v. International Soc. for Krishna Consciousness, Inc.
452 U.S. 640 (1981).............................................................. 11, 13, 16, 18, 19
iii
Heideman v. South Salt Lake City
348 F.3d 1182, 1192 (10th Cir.,2003) ........................................................... 14
Hill v. Colorado
530 U.S. 703 (2000)....................................................................................... 15
International Soc. for Krishna Consciousness, Inc. v. Lee
505 U.S. 672, 683-684(1992) ..................................................... 15, 18, 19, 20
ISKCON Miami, Inc. v. Metropolitan Dade County
147 F.3d 1282, 1288 (11 Cir. 1998) .............................................................. 18
Los Angeles Alliance for Survival v. City of Los Angeles
157 F.3d 1162, 1164 (9th Cir.1998) .............................................................. 14
Madsen v. Women’s Health Ctr.
512 U.S. 753, 768 (1994) .............................................................................. 19
McFarlin v. District of Columbia
681 A.2d 440 (D.C. 1996) ............................................................................. 21
Members of City Council v. Taxpayers for Vincent
466 U.S. 789, 805 (1984) ................................................................................ 7
New Motor Vehicle Bd. of California v. Orrin W. Fox Co.
434 U.S. 1345, 1347 n. 2 (1977) ..................................................................... 8
Norton v. City of Springfield
2013 WL 5781663 (C.D. Ill., 2013) .............................................................. 20
People v. Barton,
8 N.Y.3d 70, 861 N.E.2d 75 (N.Y. 2006)...................................................... 14
Perez v. Ledesma
401 U.S. 82, 124 (1971) .................................................................................. 8

iv
Poe v. Ullman
367 U.S. 497 (1961)......................................................................................... 5
Reno v. Catholic Soc. Servs., Inc.
509 U.S. 43, 57 n. 18 (1993) ........................................................................... 5
Roulette v. City of Seattle
97 F.3d 300, 302 n 2 (9th Cir. 1996) ............................................................. 21
San Diego County Gun Rights Comm. v. Reno
98 F.3d 1121, 1126–27 (9th Cir.1996) ............................................................ 6
San Diego Minutemen v. Cal. Bus., Transp. & Hous.
570 F.Supp. 2d 1229, 1250 (S.D. Cal. 2008) .................................................. 4
Smith v. City of Fort Lauderdale, Fla.
177 F.3d 954, 955 (11th Cir.1999) .................................................................. 7
Tatum v. City & County of San Francisco
441 F.3d 1090, 1094 (9th Cir. 2006) ............................................................... 5
Thayer v. City of Worcester
755 F.3d 60 (1st Cir. 2014) ............................................................................ 21
Thomas v. Anchorage Equal Rights Com’n
220 F.3d 1134, 1138 (1999) ........................................................................5, 6
U.S. v. Belsky
799 F.2d 1485, 1489 (11th Cir.1986) ............................................................ 19
U.S. v. Gilbert
920 F.2d 878, 886 n. 8 (11th Cir.1991) ........................................................... 7
U.S. v. Kokinda
497 U.S. 720 (1990)................................................................ 4, 13, 14, 15, 18
U.S. v. O'Brien
391 U.S. 367, 377 (1968) .............................................................................. 14

Village of Schaumburg v. Citizens for a Better Environment
444 U.S. 620, 636-638 (1980) ....................................................................... 18
v
Ward v. Rock Against Racism
491 U.S. 781, 791 (1989) .............................................................................. 12
Winter v. Natural Res. Def. Council, Inc.
555 U.S. 7, 9, 129 S.Ct. 365, 172 L.Ed.2d 249 (2008) ................................... 8
Wright v. Incline Village General Improvement Dist.
665 F.3d 1128, 1135 (9th Cir. 2011) ............................................................... 4
Young v. New York City Transit Authority
903 F.2d 146 (2nd Cir. 1990) ........................................................................ 20
STATUTES
Hawai‘i Revised Statutes
Section 291C-23 ....................................................................................... 5, 10
OTHER
Hawai‘i County Code
Section 14-74 .................................................................................................. 1
Section 14-74(a)(7) ....................................................................................... 12
Section 14-75 ................................................................................. 1, 4, 11, 14
Section 14-75(a)(1) ....................................................................................... 21
Section 14-75(a)(4) ....................................................................................... 20
Section 14-75(a)(5) ................................................................................ 15, 16
Section 14-75(a)(6) ................................................................................ 15, 16
Section 14-75(a)(11) ..................................................................................... 20
Section 15-20 .......................................................................................... 5, 6, 7

DEFENDANT COUNTY OF HAWAI‘I’S MEMORANDUM IN
OPPOSITION TO PLAINTIFF’S [2] MOTION FOR TEMPORARY
RESTRAINING ORDER OR, IN THE ALTERNATIVE, FOR PRELIMINARY
INJUNCTION FILED ON SEPTEMBER 8, 2014
Defendant County of Hawai‘i (“County”), by and through its attorneys,
respectfully submits this Opposition to Plaintiff’s Motion for Temporary
Restraining Order or, in the alternative, for Preliminary Injunction filed on
September 8, 2014.
I. INTRODUCTION
Plaintiff seeks to invalidate §§ 14-74 and 14-75 (“Ordinance”) of the
Hawai‘i County Code (“HCC”). However, the Ordinance is constitutional and
merely places reasonable restrictions on the manner and location of solicitation in
order to prevent aggressive and dangerous solicitation practices.
Plaintiff argues any restriction on solicitation results in a violation of the
First Amendment. Therefore, Plaintiff argues every individual would be permitted
to solicit at any time and at any public location. Not surprisingly, the First
Amendment does not require such a drastic and reckless result. Therefore,
Plaintiff’s request for injunctive relief must be denied.
II. STATEMENT OF FACTS
In 1999, the County enacted the Ordinance. See Exhibit “A”. The
Ordinance was enacted because of concern for public safety after several
complaints were received regarding individuals soliciting money in a manner
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which intimidated the public. Exhibit “E” at ¶¶ 3-4.
For example, individuals would stand right in front of the entrance or exit of
restaurant waiting for patrons. Id. When a patron would leave, they would block
their way and ask for money. Sometimes they would follow the person and ask for
money. Id.
One incident involved a County Council member. Exhibit “E” at ¶ 4. When
the Council member left a movie with her two young children, an individual asked
for money and then followed her to her car. Id. She feared for the safety of herself
and her children. Id. The public also felt intimidated and forced to give money to
these individuals. There were concerns for the public’s safety raised by
individuals, merchants and the police. Exhibit “E” at ¶ 3.
As a result of these serious concerns, the Ordinance was passed. The
Ordinance was not intended to regulate a particular message or what someone
could say or convey. Exhibit “E” at ¶ 5. The Ordinance was intended to regulate
the manner and location of solicitation in order to ensure public safety and prevent
the public from being victimized or taken advantage of when they were vulnerable.
Id.
The Council member who proposed the Ordinance was an attorney and was
fully aware of requirements of the First Amendment. Exhibit “E” at ¶¶ 5, 7. As a
result, the Ordinance was modeled after legislation which had already been upheld
2

by the Courts in four other states. Exhibit “E” at ¶ 7.
The ACLU was well aware of the Ordinance when it was enacted and
although it objected to it, the ACLU failed to take any legal action until now,
fifteen years after it took effect. Exhibit “E” at ¶ 8. The ACLU now challenges
the Ordinance on behalf of Plaintiff Justin Guy (“Plaintiff”).1
Plaintiff wants to be professional musician. Plaintiff’s Declaration (“JG
Dec.”) at ¶ 3. In his quest for stardom, Plaintiff practices his music “all the time”.
Id. He chose not to have a job because it takes times away from his practicing. Id.
As a result, except for the times he stays with his girlfriend, he is homeless. Id.
On June 3, 2014, Plaintiff was near the intersection of Luhia and Kaiwi
Streets (“Intersection”) and holding a sign which read “Homeless Please Help.” Id
at ¶ 9. This Intersection is a four way stop and is a very busy intersection. Exhibit
“C” at ¶ 2. The Intersection does not have a history of being used for First
1Plaintiff’s attorney repeatedly asserts he made numerous attempts to resolve this
issue. However, Plaintiff’s attorney has not made a good faith effort in resolving
this issue prior to filing the lawsuit. As he is well aware, the current Corporation
Counsel has only been in this position for a few months. Declaration of Laureen L.
Martin (“LLM Dec.”). Corporation Counsel informed him that she hoped to reach
a collaborative resolution to the matter. See Exhibit “F”. Although Corporation
Counsel could not respond in the time frame demanded, Plaintiff’s counsel never
made a courtesy phone call or communication which stated if a response was not
given within a certain deadline a lawsuit would be filed. See Exhibit “F” and LLM
Dec. It should also be noted that Plaintiff’s counsel raised numerous other issues
which he wanted Corporation Counsel to also address. See Exhibit “1” to the
Declaration of Daniel M. Gluck.
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Amendment purposes, such as protesting or sign holding and there is very little
pedestrian traffic.2 Exhibit “C” at ¶¶ 2, 7.
A police officer approached the Intersection and saw the Plaintiff approach
at least two vehicles. Exhibit “C” at ¶ 3. The Plaintiff’s actions caused the traffic
to stop and slow which created a traffic hazard. Id. Plaintiff’s own safety was also
at risk because he was approaching vehicles in the roadway. Id.
The Officer told the Plaintiff he was creating a traffic hazard and asked him
to leave. Exhibit “C” at ¶ 4. The Plaintiff refused to leave. Id. The Officer asked
him his name and the Plaintiff initially refused but then provided a Colorado state
identification. Id.
The Officer wrote a citation because the Plaintiff was creating a traffic
hazard and refused to leave. Exhibit “C” at ¶ 6. When the Officer left the area, the
Plaintiff was still there. Id.
Although initially cited for violating HCC § 14-75, the charges were
2The Ninth Circuit uses a three part test in determining whether an area is a
traditional public forum: 1) actual use and purposes of the property, 2) physical
characteristics and 3) traditional or historic use of the property. Wright v. Incline
Village General Improvement Dist., 665 F.3d 1128, 1135 (9th Cir. 2011). Not all
roadways or sidewalks are deemed public forums. U.S. v. Kokinda, 497 U.S. 720
(1990)(finding sidewalk in front of post office was not public forum); Chad v. City
of Fort Lauderdale, 861 F.Supp. 1057, 1061 (S.D. Fla. 1994); San Diego
Minutemen v. Cal. Bus., Transp. & Hous., 570 F.Supp. 2d 1229, 1250 (S.D. Cal.
2008)(finding location near freeway not compatible with expressive activity).
Therefore, this intersection is likely not a public forum for purposes of the First
Amendment.
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amended and Plaintiff was charged with violating Hawai‘i Revised Statutes
(“HRS”) § 291C-23, refusing to comply with an order or direction of an officer
with authority to direct, control or regulate traffic. Declaration of Daniel Gluck
(“DG Dec.”) at ¶ 7. The Prosecutor later filed a motion for Nolle Prosequi.3 DG
Dec. at ¶ 11.
III. ARGUMENT
A. PLAINTIFF’S CHALLENGE OF HCC § 15-20 IS NOT RIPE
Plaintiff’s constitutional challenge to HCC §15-20 is not ripe for review.
Ripeness is not a legal concept with a fixed content or susceptible of scientific
verification. Poe v. Ullman, 367 U.S. 497 (1961). The doctrine is drawn both
from Article III limitations on judicial power and from prudential reasons for
refusing to exercise jurisdiction. Reno v. Catholic Soc. Servs., Inc., 509 U.S. 43,
57 n. 18 (1993); Thomas v. Anchorage Equal Rights Com’n, 220 F.3d 1134, 1138
(1999).
The Constitution mandates courts exercise jurisdiction only where there
exists a case or controversy and the issues presented are definite and concrete, not
3It is of no consequence that Plaintiff initially received a citation for violating the
Ordinance and later was charged for failure to follow an order regarding traffic
control. “If the facts known to an arresting officer are sufficient to create probable
cause, the arrest is lawful, regardless of the officer’s subjective reasons for it.”
Tatum v. City & County of San Francisco, 441 F.3d 1090, 1094 (9th Cir. 2006),
See also, Devenpeck v. Alford, 543 U.S. 146, 153, (2004). The Plaintiff could have
been arrested, but instead the Officer merely issued a citation.
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hypothetical or abstract. Id. at 1139. In determining whether a case or controversy
exists, the court must consider whether the plaintiffs face a realistic danger of
sustaining a direct injury as a result of the statute’s operation or enforcement or
whether the alleged injury is too “imaginary” or “speculative” to support
jurisdiction. Babbitt v. United Farm Workers Nat. Union, 442 U.S. 289, 298
(1979). Further, neither the mere existence of a proscriptive statute nor a
generalized threat of prosecution satisfies the case or controversy requirement.
See, San Diego County Gun Rights Comm. v. Reno, 98 F.3d 1121, 1126–27 (9th
Cir.1996). The courts look to whether a plaintiff has articulated a concrete plan to
violate the law in question, and whether the prosecuting authorities have
communicated a specific warning or threat to initiate proceedings, and the history
of past prosecution or enforcement under the challenged statute. Id. at 1126–27.
There must be a “genuine threat of imminent prosecution.” Id. at 1126.
In the present case, there is no case or controversy with respect to Plaintiff’s
challenge to HCC § 15-20 because any alleged injury is imaginary and speculative.
Plaintiff did not attempt to beg within a County park and admitted it was only his
“understanding” that Hawai‘i County law prohibits begging in County parks. See,
JG Dec. at ¶ 21. Plaintiff claims he would be “afraid to solicit in any public park
because of this law, given what happened to [him] before.” Id. However, there is
no indication that Plaintiff had been warned by HPD officers about begging in a
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County park, nor is there any indication he intended to beg within a County park.
In fact, there have been no complaints of begging in the County parks and HCC §
15-20 has not been enforced for at least the last five years. Exhibit “D” at ¶ 4.
Therefore, contrary to the requirements in Stoianoff, Plaintiff has not
established any concrete plan to violate HCC § 15-20, nor has he received any
communication or threat of prosecution relating to begging in a County park.
Since he has never attempted to beg in a County park, Plaintiff fails to establish
any prior history of arrest or enforcement of HCC § 15-20 against him. Given
these circumstances, Plaintiff fails to establish a justiciable case or controversy.4
B. BARRING ENFORCEMENT OF A
CRIMINAL STATUTE IS AN EXTREME
REMEDY WHICH IS NOT WARRANTED
Plaintiff seeks to bar enforcement of the Ordinance and thereby remove all
4Even if the Plaintiff could challenge the constitutionality of HCC § 15-20,
solicitation bans in parks have been upheld. In Clark v. Community for Creative
Non-Violence, 468 U.S. 288 (1984) the United States Supreme Court upheld a
National Park Service regulation prohibiting camping in certain parks. In addition,
the government may legitimately exercise its police powers to advance aesthetic
values. See U.S. v. Gilbert, 920 F.2d 878, 886 n. 8 (11th Cir.1991); Members of
City Council v. Taxpayers for Vincent, 466 U.S. 789, 805 (1984). Harnish v.
Manatee County, 783 F.2d 1535, 1539 (11th Cir.1986) (“Aesthetics is a substantial
governmental goal which is entitled to and should be accorded weighty respect”),
see also, Smith v. City of Fort Lauderdale, Fla., 177 F.3d 954, 955 (11th
Cir.1999)(upholding prohibition of begging beach and adjoining); Chad v. City of
Fort Lauderdale, Fla., 861 F.Supp. 1057, 1062 (S.D.Fla.,1994)(ban on solicitation
on beach and surrounding area upheld as government had legitimate interest in
maintaining tourist attraction).
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restrictions on solicitation. This is an extreme remedy which this Court should not
grant. As the United States Supreme Court has stated:
An injunction barring enforcement of a criminal statute against
particular conduct immunizes that conduct from prosecution
under the statute. A broad injunction against all
enforcement of a statute paralyzes the State’s enforcement
machinery: the statute is rendered a nullity (emphasis added).
Perez v. Ledesma, 401 U.S. 82, 124 (1971).
Without the Ordinance, the County would be unable to protect the public
from aggressive solicitation. For example, nothing would prevent an individual
from standing by an ATM and then repeatedly asking the patron for money. If the
patron refuses, the individual could follow him to the car.
Furthermore, a preliminary injunction is an “extraordinary remedy.” Winter
v. Natural Res. Def. Council, Inc., 555 U.S. 7, 9, 129 S.Ct. 365, 172 L.Ed.2d 249
(2008). Requests for temporary restraining orders which are not ex parte are
governed by the same general standards that govern the issuance
of preliminary injunction. See New Motor Vehicle Bd. of California v. Orrin W.
Fox Co., 434 U.S. 1345, 1347 n. 2 (1977). In determining whether to grant a
temporary restraining order or preliminary injunction, the Ninth Circuit applies a
four part test. The movant must show: 1) irreparable injury, 2) probable success on
the merits, 3) a balance of hardships that tips in the movant's favor, and 4) that a
preliminary injunction is in the public interest. F.T.C. v. Evans Products Co., 775
8

126
F.2d 1084, 1088 (9th Cir. 1985). It quickly becomes apparent that none of the
factors favors injunctive relief.
C. PLAINTIFF WILL NOT SUFFER IRREPARABLE
HARM AND THE PUBLIC INTEREST WEIGHS
IN FAVOR OF DENYING INJUNCTIVE RELIEF
Permitting the County to continue to enforce the Ordinance does not
constitute irreparable harm to Plaintiff. In fact, Plaintiff will not suffer any harm.
The Ordinance does not ban all solicitation. Rather, it only bans solicitation which
seeks an immediate transfer of money or an object of value and only at certain
locations. Nothing prevents the Plaintiff from soliciting at a location not
enumerated in the Ordinance.5
Even accepting Plaintiff’s allegations as true, Plaintiff is accusing a single
officer of stating panhandling is illegal. However, Plaintiff has failed to put forth
sufficient facts to determine whether there was a violation of the Ordinance or not.
Since the Ordinance does not ban all solicitation, but Plaintiff alleges he has not
solicited in any form, any harm which may be caused to Plaintiff is merely self-inflicted.
5To the extent Plaintiff believes he cannot panhandle anywhere in Hawai‘i County,
this is an unreasonable belief which has nothing to do with the Ordinance. The
Ordinance clearly permits solicitation, but places reasonable restrictions upon it.
In addition, the County objects to ¶ 16 of JG Dec. which purports to summarize a
conversation between a police officer and another individual because it is
unsubstantiated double hearsay.
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Furthermore, there is no urgency which would justify a TRO or injunction.
According to Plaintiff, he was told “about a year and a half ago” that he couldn’t
have a sign asking for tips. JG Dec. at ¶ 17. Therefore, Plaintiff waited almost two
years to file this action and now seeks immediate relief before the merits of this
case can be heard.6 It is illogical to argue a TRO or injunction must immediately
be issued or Plaintiff will suffer irreparable harm when Plaintiff has already waited
several months to file this action. If Plaintiff truly believed he was suffering
irreparable harm, he would have immediately filed this action and sought relief.7
In City of Los Angeles v. Lyons, 461 U.S. 95, 101–102 (1983), the Plaintiff
alleged he was illegally choked while being arrested and sought an injunction
barring the police from using the choke hold in the future. The Supreme Court
explained that for Plaintiff to have faced this prospect of injury again in the future,
he would not only have to show that he would have another encounter with the
police but also make the incredible assertion that either all police officers in Los
6In April or May 2014, he was told what he was doing was illegal. Even assuming
these facts are true, it does not establish any wrongdoing by the police. Plaintiff
was clearly impeding traffic and then refused to follow the police officer’s
direction. This is clearly a violation of HRS § 291C-23.
7There is no legitimate reason for Plaintiff to seek a TRO, rather than a preliminary
injunction. As noted, Plaintiff waited months to seek any relief. The only
plausible reason for seeking a TRO, rather than a preliminary injunction, is in order
to gain a strategic advantage over the County. If Plaintiff sought a preliminary
injunction, the County would have significantly more time to prepare its
opposition. In seeking the TRO, the County had only four days to oppose the
pending motion.
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Angeles always choke any citizen with whom they happen to have an encounter or
that the City orders or authorizes police officers to act in such a manner. Id. at
105–106. As a result, the Court found injunctive relief to be improper. Id. at 113.
Similarly, Plaintiff alleges an officer told him he couldn’t panhandle.
However, there is no indication that all police officers always tell individuals
panhandling is illegal or that the County authorizes police officers to do so. As a
result, Plaintiff has not demonstrated it’s likely that he will be prevented from
panhandling in the future.
In any event, since Plaintiff is able to solicit within the parameters of the
Ordinance and invalidating the Ordinance would result in unrestrained and
potentially dangerous solicitation, the balance of harms clearly tips in favor of the
County and not the Plaintiff.
Nor is an injunction in the public interest. As noted, the Ordinance was
enacted for the safety of the public. It is difficult to imagine a stronger public
interest than safety. As a result, the public interest favors the denial of injunctive
relief.
D. THE COUNTY IS LIKELY TO PREVAIL ON THE MERITS
1. HCC § 14- 75 is Content-Neutral
The First Amendment does not guarantee the right to communicate one's
views at all times and places or in any manner that may be desired. Heffron v.
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129
International Soc. for Krishna Consciousness, Inc., 452 U.S. 640, 647 (1981). The
Supreme Court has explained:
The principal inquiry in determining content neutrality, in
speech cases generally and in time, place, or manner cases in
particular, is whether the government has adopted a
regulation of speech because of disagreement with the
message it conveys. The government's purpose is the
controlling consideration. A regulation that serves purposes
unrelated to the content of expression is deemed neutral, even if
it has an incidental effect on some speakers or messages but not
others. Government regulation of expressive activity is content
neutral so long as it is justified without reference to the content
of the regulated speech (emphasis added).
Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989).
In the present case, the Ordinance was not adopted because of disagreement
with a message. Exhibit “E” at ¶ 5. Rather, it was adopted in order to protect the
public from conduct which jeopardized public safety. Id.
The Ordinance is content-neutral because it places the same restrictions on
soliciting regardless of the message. See Exhibit “A”. These restrictions include,
soliciting within twenty feet of a financial institution, ATM or public toilet. See
Exhibit “A”. HCC § 14-74(a)(7) defines soliciting as follows:
“Soliciting” means asking for money or objects of value,
with the intention that the money or object be transferred at
that time, and at that place. Soliciting shall include using the
spoken, written, or printed word, bodily gestures, signs, or other
means with the purpose of obtaining an immediate donation of
money or other thing of value or soliciting the sale of goods or
services (emphasis added).
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130
See Exhibit “A”.
Therefore, the Ordinance applies to anyone who is asking for money or
objects of value with the intent that it be immediately transferred. It does not
matter why the person is asking for money or something of value. As result, this
ordinance is content-neutral because it restricts solicitation without regard to a
certain perspective. The United States Supreme Court has repeatedly found
restrictions on solicitation are content-neutral.
In Heffron, 452 U.S. at 643-644, the United States Supreme Court upheld a
rule which required solicitation at a state fair to be done from fixed locations on the
fairgrounds. The Court noted the restriction “applies evenhandedly to all who wish
to distribute and sell written materials or to solicit funds.” Id. at 648-649.
Similarly in Kokinda the Supreme Court upheld a regulation prohibiting the
soliciting of alms and contributions at a post office, including on the sidewalk
close to the post office’s entrance. Id. at 735-736. The Court observed it was not
unreasonable to prohibit solicitation on the ground that it is unquestionably a
particular form of speech that is disruptive of business. Id. at 733. The Court
noted the post office’s decision was based upon the “inherent nature of
solicitation itself, a content-neutral ground” (emphasis added). Id. at 736. Nor
did the ban discriminate on the basis of content or viewpoint because it did not
intend to advance one viewpoint, nor was it granting one side of a debatable public
13

131
question of a monopoly to express its views. Id. at 736-37.
Therefore, the United States Supreme Court has already recognized that
solicitation bans are content-neutral. The Ninth Circuit has acknowledged this
precedent.8 Los Angeles Alliance for Survival v. City of Los Angeles, 157 F.3d
1162, 1164 (9th Cir.1998), see also, People v. Barton, 8 N.Y.3d 70, 861 N.E.2d 75
(N.Y. 2006)(finding ban on solicitation from occupants of motor vehicles to be
content-neutral).
Furthermore, there can be little doubt that solicitation involves a substantial
amount of conduct, such as approaching the target, blocking a sidewalk is conduct,
and the actual receipt of money. Government has considerable latitude to regulate
conduct, even where the conduct has an expressive component. See, U.S. v.
O'Brien, 391 U.S. 367, 377 (1968)( noting when speech and nonspeech are
combined into the same course of conduct, important governmental interest in
regulating the nonspeech element can justify limitations on First Amendment), see
also, Heideman v. South Salt Lake City, 348 F.3d 1182, 1192 (10th
Cir.,2003)(noting government has broad latitude to regulate expressive conduct).
8But see, ACLU of Nevada v. City of Las Vegas, 466 F.3d 784, 794 (9th Cir. 2006)
which acknowledges a ban on the act of solicitation is content-neutral, but
concluding the words of solicitation are content based. Even if this decision is
applicable to the present case, HCC § 14-75 is still valid because it only prohibits
acts of solicitation which are “face-to-face” and results in the immediate transfer of
money. See Exhibit “A” defining solicitation as having the purpose of “obtaining
an immediate donation”.
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In the present case, the Ordinance places various restrictions on conduct.
These restrictions are not based upon what the message is, rather it is the act being
done in particular manner, i.e., aggressively or at a particular location where
individuals are particularly vulnerable or easily intimidated. See Exhibit “A”. For
example, the Ordinance prohibits solicitation within twenty feet of an ATM,
financial institution or public toilet. HCC §§ 14-75(a)(6), 14-75(a)(5). Since the
Ordinance focuses on the conduct, rather than the message, it is content-neutral.
Importantly, the ordinance only applies to solicitation which has the purpose
of obtaining an immediate donation of money or other thing of value. Exhibit “A”.
The United States Supreme Court has noted this type of prohibition is aimed at the
abusive practices associated with solicitation and does not discriminate based
upon content. See Lee, 505 U.S. at 706 (Kennedy, J., concurring); Kokinda, 497
U.S. at 736.
As a result, Plaintiff’s contention that the ordinance is a content based
restriction is clearly wrong. Since the ordinance is content-neutral, the County
may limit the time, place, and manner of expression if narrowly tailored to serve a
significant government interest, and ample alternative channels of communication
are left available. Hill v. Colorado, 530 U.S. 703 (2000).
2. The Ordinance is Narrowly Tailored to Serve
a Significant Government Interest and There
are Ample Alternative Channels of Communication
15

133
As noted, the Ordinance is content-neutral. Therefore, the County may limit
the time, place and manner of expression. Heffron, 452 U.S.at 647, see also, Cox
v. New Hampshire, 312 U.S. 569, 574 (1941)(upholding restrictions in the use of
highways designed for public convenience).
In the present case, the Ordinance places various restrictions on solicitation
which seeks an immediate donation. Exhibit “A”. For example, a person cannot
solicit within twenty feet of an ATM, financial institution or public toilet. HCC
§14-75(a)(6); HCC § 14-75(a)(5).
The government interest in implementing the Ordinance is public safety.
Exhibit “E” at ¶¶ 3-4. People asking for money or something of value can be
intimidating, particularly when a person may be alone, such as using a toilet or
phone booth. Aggressive tactics can border on robbery. The government’s
interest in protecting the safety and convenience of persons using public places is a
valid governmental objective. See Grayned v. City of Rockford, 408 U.S. 104, 115
(1972); Cox, 312 U.S. at 574.
Prior to the adoption of the Ordinance, several complaints were received
regarding individuals soliciting money in a manner which intimidated the public.
Exhibit “E” at ¶ 3. For example, individuals would stand right in front of the
entrance or exit of a restaurant waiting for patrons. Id. When a patron would
16

134
leave, they would block their way and ask for money. Sometimes they would
follow the person and ask for money. Id.
One incident involved a County Council member. Exhibit “E” at ¶ 4. When
the Council member left a movie with her two young children, an individual asked
for money and then followed them to the car. Id. Not surprisingly, she feared for
the safety of herself and her children. Id. The public also felt intimidated and
forced to give money to these individuals. There were concerns for the public’s
safety raised by individuals, merchants and the police. Exhibit “E” at ¶ 3.
It is as a direct result of these serious concerns that the Ordinance was
adopted. The Ordinance was not intended to regulate a particular message or what
someone could say or convey. Exhibit “E” at ¶ 5. The Ordinance was intended to
regulate the manner and location of solicitation in order to ensure public safety and
prevent the public from being victimized or taken advantage of when they were
vulnerable. Id.
The restrictions in the Ordinance are narrowly tailored to achieve the
important government interest of public safety. It permits all solicitation if it does
not require an immediate exchange of money or something of value (“face-to-face
solicitation”). It also permits solicitation near certain facilities, but requires a short
distance from them, such as ten or twenty feet. Therefore, a person passing by
would easily see a sign or hear a request for money. If they chose to give, they
17

135
could do so. If they did not wish to, they could leave the area without intimidation
or bullying.
The United States Supreme Court has stated the following regarding the
18
risks of face-to-face solicitation:
Face-to-face solicitation presents risks of duress that are an
appropriate target of regulation. The skillful, and
unprincipled, solicitor can target the most vulnerable,
including those accompanying children or those suffering
physical impairment and who cannot easily avoid the
solicitation…The unsavory solicitor can also commit fraud
through concealment of his affiliation or through deliberate
efforts to shortchange those who agree to purchase. (Emphasis
added, citations deleted).
Lee, 505 U.S. at 684.
Therefore, the Supreme Court has acknowledged the appropriateness of
regulating face-to-face solicitation because of dangers associated with it. The
Supreme Court reached a similar result in Kokinda when it upheld a ban of “in-person
solicitation” on postal property.
The Supreme Court has repeatedly recognized that face-to-face or “in-person”
solicitation has been associated with coercive or fraudulent conduct.
Heffron, 452 U.S. at 657(Brennan, J., concurring in part and dissenting in
part); Village of Schaumburg v. Citizens for a Better Environment, 444 U.S. 620,
636-638 (1980); ISKCON Miami, Inc. v. Metropolitan Dade County, 147 F.3d
1282, 1288 (11 Cir. 1998)(noting ban on solicitation for immediate receipt of funds

136
was reasonable response to address repeated instances of abusive conduct).
In addition, face-to-face solicitation is disruptive to business and traffic:
We have on many prior occasions noted the disruptive effect
that solicitation may have on business. Solicitation requires
action by those who would respond: The individual solicited
must decide whether or not to contribute (which itself might
involve reading the solicitor's literature or hearing his pitch),
and then, having decided to do so, reach for a wallet, search it
for money, write a check, or produce a credit card…Passengers
who wish to avoid the solicitor may have to alter their
paths, slowing both themselves and those around them. The
result is that the normal flow of traffic is impeded. (Emphasis
added, citations deleted)
Lee, 505 U.S. at 683-684.
Therefore, solicitation for immediate donations is much more than merely
relaying a message. It involves conduct which has a disruptive effective and
impedes traffic flow. The government “…has a strong interest in ensuring the
public safety and order, in promoting the free flow of traffic on public streets and
sidewalks.” Madsen v. Women’s Health Ctr., 512 U.S. 753, 768 (1994).
Soliciting funds is an inherently more intrusive and complicated
activity than is distributing literature. A passerby can take a
pamphlet and keep walking. Soliciting funds, on the other hand, can
require an extended encounter. It might be necessary to make correct
change, provide a receipt, or engage in a prolonged explanation of the
organization and its activities. In sum, solicitation is more time
consuming and is likely to cause greater confusion and disruption.
U.S. v. Belsky, 799 F.2d 1485, 1489 (11th Cir.1986); see also
Heffron, 452 U.S. at 665.
19

137
Since solicitation for funds is inherently more disruptive and intrusive, and
prone to greater abuse, it is reasonable for the government to place restrictions
upon it. There is nothing unconstitutional about doing so.
Furthermore, it is clear there are ample alternatives for someone to solicit.
First, the ordinance does not restrict the solicitation unless it requires the
immediate transfer of money or something of value. Therefore, a person could
leave envelopes or leaflets requesting a donation at a different location or time.
Secondly, a person could simply move to a location which solicitation is not
prohibited, which is a mere ten or twenty feet away.
Importantly, Plaintiff concedes at least a portion of the Ordinance is valid,
HCC §14-75(a)(4). Although Plaintiff contends the remaining portions of the
Ordinance are invalid, case law does not support this conclusion.
For example, HCC § 14-75(a)(11) prohibits solicitation in a public
transportation vehicle. Exhibit “A”. The United States Supreme Court upheld a
ban on solicitation in airports in Lee, 505 U.S. at 683-684.
Similarly, the Court in Young v. New York City Transit Authority, 903 F.2d
146 (2nd Cir. 1990) upheld a prohibition of begging and panhandling in subway
system. Likewise, in Norton v. City of Springfield, 2013 WL 5781663 (C.D. Ill.,
2013), the Court denied a request for a preliminary injunction finding a ban on
solicitation at bus stops, as well as other areas, was narrowly tailored to its
20

138
purpose. Therefore, bans on solicitation involving public transportation have been
upheld. Plaintiff has failed to cite a single case to the contrary.
HCC § 14-75(a)(1) bans solicitation which is done in an “aggressive
manner” which is defined in HCC § 14-74(a)(1).9 Numerous courts have upheld
such bans.10 See, Gresham v. Peterson, 225 F.3d 899 (7th Cir. 2000)(upholding
restrictions on solicitation including when done in an “aggressive manner”);
Thayer v. City of Worcester, 755 F.3d 60 (1st Cir. 2014)(finding aggressive
panhandling ordinance constitutional); City of Seattle v. Webster, 115 Wash.2d
635, 802 P.2d 1333 (Wash., 1990)(pedestrian interference ordinance which
prohibited aggressively begging was constitutional); McFarlin v. District of
Columbia, 681 A.2d 440 (D.C. 1996)(upholding conviction for aggressive
panhandling); Roulette v. City of Seattle, 97 F.3d 300, 302 n 2 (9th Cir.
1996)(noting ordinance which prohibited aggressive begging was upheld and
parties did not appeal issue).
The Ordinance is narrowly tailored to serve a significant governmental
interest and there are ample alternative channels of communication. Numerous
9The Ordinance’s restrictions on location, such as prohibiting solicitation within
twenty feet of an ATM are constitutional and common in aggressive solicitation
legislation and are valid. See, Gresham v. Peterson, 225 F.3d 899, 901 (7th Cir.
2000).
10The ACLU is well aware aggressive solicitation ordinances have been repeatedly
upheld by the Courts. See Exhibit “B”.
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139
other Courts have upheld similar restrictions on solicitation. Therefore, this Court
should not hesitate in denying injunctive relief.
IV. CONCLUSION
The County enacted the Ordinance in order to protect the public from the
dangers of aggressive solicitation. The Ordinance is narrowly tailored in order to
protect the public, while permitting individuals to continue to solicit. Similar laws
have been found constitutional.
Granting injunctive relief would cause a great harm to the public and permit
individuals to solicit at any location and in any manner. In contrast, denying
injunctive relief would cause no harm to the Plaintiff since the Ordinance clearly
permits solicitation. Therefore, this Court should not hesitate in denying
Plaintiff’s request for injunctive relief.
DATED: Hilo, Hawai‘i, September 12, 2012.
COUNTY OF HAWAI‘I, Defendant
By /s/ Laureen L. Martin
LAUREEN L. MARTIN
Assistant Corporation Counsel
Its Attorney
22

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