Constitutional concerns raised about Augusta’s proposed aggressive solicitation ban

A vehicle heads north recently in front of the Olde Federal Building at 295 Water St. in downtown Augusta. Joe Phelan/Kennebec Journal

AUGUSTA — Concerns about the constitutionality and enforceability of a proposed ordinance banning aggressive solicitation in Augusta have multiple councilors speaking out and preparing to reject it this week.

The ordinance, which would ban unreasonable or aggressive solicitation, was proposed by councilors in response to complaints about harassing, intimidating behavior by some people in the city.

Most of the complaints have come from downtown business owners, who said a small number of aggressive transient people are scaring families and other customers out of the downtown area due to behavior that includes banging on car windows or doors, following people while demanding money and entering restaurants and demanding free food.

The ordinance, which carries a $100 fine, would make it illegal to engage in unreasonable solicitation. The Bangor ordinance on which Augusta’s proposed ordinance is based describes unreasonable solicitation as blocking or impeding the path of the person being asked for money or other donations, or following, threatening with physical harm or touching those being solicited.

At an informational meeting last Thursday, several councilors expressed concern that the ordinance could infringe upon people’s constitutional rights, and is duplicative of and harder to enforce than existing laws aimed at harassment, assault, criminal trespassing and disorderly conduct.

At-Large Councilor William Savage said he was concerned the ordinance could violate rights to free speech.

Savage said the ordinance would ban touching another person without consent, and make a violation for threatening without including requirements in state law that a charge of threatening consider the state of mind of the alleged perpetrator. The ordinance would also ban someone from walking near a person after having asked him or her for money.

“This ordinance would ban walking in front of, next to or behind someone. There is no criminal law that touches that,” Savage said. “Walking next to someone, after having exercised free speech, does seem a bit far for me. It’s so steeped in content and sending a message, versus addressing the safety issue, that I think we’re just too far off.”

Proponents of the ordinance said the city has to take action to address the concerns its downtown area is not safe. They said it is important to send a message to those who feel unsafe in the city that they can call police and get help. They also said it is important to send a message to those behaving inappropriately that they will face consequences.

The ordinance is scheduled to go to the City Council for a second reading and vote at its meeting scheduled for Thursday.

“What I’m hoping for is that citizens feel there is something on the books,” Ward 4 Councilor Eric Lind, who brought the Bangor ordinance to the City Council for consideration, said. “We heard, repeatedly, that people don’t call police because they think nothing is going to happen.

“This ordinance is a message to people there is something there. That was my goal, to say we have something, that if people downtown feel threatened, call the police and try to get involved.”

At-Large Councilor Abigail St. Valle reminded councilors that what many business owners requested in the recent discussion was a greater police presence in downtown Augusta, not necessarily a new ordinance.

Newly appointed Police Chief Kevin Lully said he would love to be able to have more officers patrolling the downtown area, but he does not have the staffing. Lully said despite the city’s advertising constantly for new officers over the past three years, the department still has six vacancies it cannot fill. He said additional downtown shifts can only be filled if officers volunteer to work overtime.

Lully said he spoke to the police chief in Bangor, where the ordinance banning unreasonable solicitation has been on the books since 2013. Lully said he learned Bangor police do not often enforce the ordinance, relying instead on state laws, such as disorderly conduct, assault or harassment to address such behavior.

Lully said enforcing state laws, instead of a local, civil ordinances, engages the suspect in the state criminal justice system, where state prosecutors can offer alternative sentencing options. A local ordinance would be prosecuted by Augusta police, with the officer handling the court case responsible for witnesses and victims. If a person charged under local ordinance is found guilty but does not pay the $100 fine, the city would be on its own to try to collect.

Councilors appeared divided on the ordinance at their March 28 meeting, with Lind and Councilors Michael Michaud and Kevin Judkins expressing support, and Savage, St. Valle and At-Large Councilor Stephanie Sienkiewicz expressing opposition. At-Large Councilor Courtney Gary-Allen said she was undecided.

“It’ll be on the agenda, whether we act on it in a second reading is up to you folks,” Mayor Mark O’Brien said of Thursday’s City Council meeting. “There has been a suggestion that it be delayed, or I also hear some anxiousness to move forward. So it’ll be on the agenda, and we’ll see what happens.”