State v. Boehler, et al
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IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION ONE STATE OF ARIZONA, Appellee, v. TIMOTHY J. BOEHLER, CLYDE P. DAVIS, FRANK A. SIMPSON, Appellants. DIVISION ONE FILED: 09/13/2011 RUTH A. WILLINGHAM, CLERK BY: DLL ) No. 1 CA-CR 10-0297 ) ) DEPARTMENT B ) ) ) O P I N I O N ) ) ) ) ) Appeal from the Superior Court in Maricopa County Cause No. LC2009 000690-001DT The Honorable Crane McClennen, Judge CONVICTIONS REVERSED Aarón J. Carreón-AÃnsa, Phoenix City Prosecutor By Gary L. Shupe, Assistant Phoenix City Prosecutor Attorneys for Appellee Laurie A. Herman Attorney for Appellants Phoenix Scottsdale J O H N S E N, Judge ¶1 In this case we invalidate on First Amendment grounds a section of a Phoenix ordinance that bans panhandlers and other solicitors from orally asking passersby for cash after dark. We hold the measure is unconstitutional because it is not narrowly tailored to serve legitimate government interests. Accordingly, we reverse the convictions of three men cited for violating the ordinance by asking passersby for money after an evening baseball game in downtown Phoenix. FACTS AND PROCEDURAL HISTORY ¶2 After receiving complaints about downtown panhandling, Phoenix police undertook an undercover program to enforce Phoenix City Code ( P.C.C. ) section 23-7(B)(4), which makes it unlawful to vocally solicit any money or other thing of value, or to solicit the sale of goods or services after dark in a public area. P.C.C. § 23-7(B)(4) (2003). Timothy Boehler was sitting on a downtown sidewalk as undercover officers walked by after an Arizona Diamondbacks game, and he asked the officers if they could spare some change. Not far away, Frank approached two undercover officers on the street. the officers, I m homeless, on the streets. change? Simpson He said to Can you spare some A short while later, officers walked past Clyde Davis, who was sitting on stairs leading to a public garage. asked one of the officers, Can you help me out? some change? None of the defendants followed, Davis Can you spare accosted or shouted at any passersby; there were no reports that any of them behaved aggressively or even impolitely. ¶3 The three defendants were convicted in municipal court of violating P.C.C. § 23-7(B)(4). superior ordinance. court, Their challenging cases were the They timely appealed to the constitutionality consolidated, 2 and the of the superior court affirmed the convictions. defendants Arizona appeal pursuant Constitution, and We have jurisdiction of the to Article Arizona 6, Revised Section Statutes 9, of the ( A.R.S. ) sections 12-120.21(A)(1) (2003) and 22-375(A) (2002). DISCUSSION A. An Ordinance That Infringes a Substantial Amount of Speech Protected by the First Amendment May Be Unconstitutionally Overbroad. ¶4 The defendants argue that on its face, the measure under which they were convicted is unconstitutionally overbroad, an issue we review de novo. See State v. Russo, 219 Ariz. 223, 225, ¶ 4, 196 P.3d 826, 828 (App. 2008). an ordinance is constitutional. invalid on the face, we presume it is State v. Seyrafi, 201 Ariz. 147, 149, ¶ 4, n.4, 32 P.3d 430, 432 (App. 2001). bears its In determining whether burden of A party challenging an ordinance establishing its invalidity. State v. Lycett, 133 Ariz. 185, 190, 650 P.2d 487, 492 (App. 1982). ¶5 In the usual situation, one who challenges the constitutionality of a law on its face must establish that no set of valid. circumstances exists under which the [law] would be United States v. Salerno, 481 U.S. 739, 745 (1987). The rule is different, however, when First Amendment interests are at stake. See Virginia v. Hicks, 539 U.S. 113, 118 (2003). In such a case, courts will invalidate a statute that reaches a substantial amount of constitutionally 3 protected conduct. Vill. of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 494 (1982); see State v. Weinstein, 182 Ariz. 564, 566, 898 P.2d statutes 513, that 515 1995). Under unlawful make (App. this a substantial doctrine, amount of constitutionally protected conduct may be held facially invalid even if they also have legitimate application. Houston, Tex. v. Hill, 482 U.S. 451, 459 (1987). City of As the Supreme Court has explained, We have provided this expansive remedy out of concern that the threat of enforcement of an overbroad law may deter or chill the constitutionally especially when sanctions. ¶6 The first statute speech imposes Hicks, 539 U.S. at 119. B. overbroad protected criminal The Ordinance s Application. step in determining impermissibly overbroad is to construe it. Williams, 553 U.S. 285, 293 (2008). 1 whether a law is United States v. In 1996, the Phoenix city council adopted Ordinance No. G-3954, amending P.C.C. § 23-7, to address what the council viewed as the increase in aggressive solicitations throughout the city, which it found had become 1 The State urges us to construe the [Phoenix ordinance] to limit its permissible reach and render it constitutional, but does not offer any construction by which the challenged portion of the ordinance could survive constitutional review. See Bd. of Airport Comm rs of L.A. v. Jews for Jesus, Inc., 482 U.S. 569, 575 (1987) (law invalidated when court could find no apparent saving construction ); State v. Weinstein, 182 Ariz. at 567-68, 898 P.2d at 516-17. 4 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. (Sept. 4, 1996). solicitation Phoenix, Ordinance No. G-3954 According to the city council, aggressive usually includes approaching or following pedestrians, repetitive soliciting despite refusals, the use of abusive unwanted or profane physical contact, pedestrian traffic. ¶7 language to or cause the fear intentional intimidation, obstruction of Ordinance No. G-3954. As enacted in 1996, the ordinance banned soliciting in an aggressive manner in a public area. (1996). and P.C.C. § 23-7(B)(1) It defined solicit as to request an immediate donation or exchange of money or other thing of value from another person, regardless of the solicitor s purpose or intended use of the money or other thing of value. The solicitation may be by spoken, written, or printed word, or by any other means of communication. Soliciting does not include requesting or accepting payment of the fare on a public transportation vehicle by the operator of the vehicle. P.C.C. § 23-7(A)(6) (1996). The ordinance defined aggressive manner to mean a. Intentionally, knowingly or recklessly making any physical contact with or touching another person in the course of the solicitation without the person s consent; or 5 b. Approaching or following the person being solicited in a manner that is intended or is likely to cause a reasonable person to fear imminent bodily harm to oneself or another, or damage to or loss of property, or is reasonably likely to intimidate the person being solicited into responding affirmatively to the solicitation; or c. Continuing to solicit the person from within ten (10) feet after the person has clearly communicated a request that the solicitation stop; or d. Intentionally, knowingly or recklessly obstructing the safe or free passage of the person being solicited or requiring the person to take evasive action to avoid physical contact with the person making the solicitation. Acts authorized as an exercise of one s constitutional right to picket or protest shall not constitute obstructing passage; or e. Intentionally, knowingly or recklessly using obscene or abusive language or gestures intended or likely to cause a reasonable person to fear imminent bodily harm or reasonably likely to intimidate the person being solicited into responding affirmatively to the solicitation. P.C.C. § 23-7(A)(1) (1996). 2 Finally, the ordinance defined public area to include alleys, bridges, buildings, driveways, parking lots, parks, playgrounds, plazas, sidewalks, and streets open to the general public. P.C.C. § 23-7(A)(5) (1996). 2 The ordinance also barred soliciting within 15 feet of the door to a bank or an automatic teller machine, in a public transportation vehicle or from persons waiting at a bus stop. P.C.C. § 23-7(B)(2), (3) (1996). 6 ¶8 2003. The city council added the provision at issue here in Extending the reach of the ordinance beyond aggressive soliciting, the 2003 amendment prohibits soliciting [i]n a vocal manner in a public area between sunset and sunrise. However, this prohibition shall not include the act of passively standing or sitting nor performing music, singing or other street performance with a sign or other indication that a donation is being sought, without any vocal request other than in response to an inquiry by another person. Phoenix, Ordinance No. G-4529 (July 2, 2003). The amended ordinance does not define vocal manner, but we construe the term to refer to any request made orally, as opposed request made in writing or in some unspoken manner. House Webster s Unabridged Dictionary 2129 to a See Random (2001) (defining vocal to mean of, pertaining to, or uttered with the voice ). 3 ¶9 Thus, as amended in 2003, the ordinance sweeps widely in several respects. It bans any vocal request in any public area after dark for an immediate donation, regardless of the solicitor s purpose or intended use of the money. 3 P.C.C. § 23- According to a document titled Request for Council Action, prepared for the council by city staff, the 2003 amendment was proposed [a]t the request of the Downtown Phoenix Partnership and at the recommendation of the Street Disorder Task Force to address personal safety concerns expressed by downtown employees, visitors and residents. Phoenix, Request for Council Action No. 42440 (July 2, 2003). In describing the amendment, the summary attached to the request said only that it will generally prohibit panhandling between sunset and sunrise . . . [and] will not include passive standing or sitting or the performance of music for donations. Id. 7 7(A)(6). Likewise prohibited is any vocal request made after dark for an exchange of money or other thing of value. C. ¶10 The Id. Applicable Legal Principles. ordinance s application in any public area undoubtedly implicates locations that are public forums, meaning places which by long tradition or by government fiat have been devoted to assembly and debate. Perry Educ. Ass n v. Perry Local Educators Ass n, 460 U.S. 37, 45 (1983). Colorado, 530 U.S. 703, 715 (2000) (sidewalks See Hill v. are among the quintessential public forums for free speech ); United States v. Grace, 461 U.S. 171, 177 (1983) ( streets, sidewalks, and parks, are considered, without more, to be public forums ). When government seeks to regulate speech in a public forum based on the content of the speech, it must show that its regulation is necessary to serve a compelling state interest and that it is narrowly drawn to achieve that end. Perry, 460 U.S. at 45. Even a content-neutral regulation of speech in a public forum may survive tailored to constitutional serve a scrutiny significant only if it government is narrowly interest, leave[s] open ample alternative channels of communication. D. ¶11 between a and Id. Subpart (B)(4) Is Unconstitutionally Overbroad. As amended vocal in 2003, solicitation the and ordinance other vocal distinguishes speech. For example, a person standing on a street corner at 8 p.m. asking 8 for cash contributions to a candidate s campaign could be cited for violating the ordinance, while one urging passersby to come to a rally citation. to hear the same candidate speak would avoid A person violates the ordinance by asking passersby after dark to donate change to a church fund for the poor; on the other hand, the ordinance does not apply to a sidewalk proselytizer as long as he refrains from orally requesting donations. But solicitation. the amended ordinance does not ban all It permits written requests for in-hand donations after dark under the ordinance, one may ask for spare change by silently holding a sign seeking donations. And, subject to other constraints, the ordinance allows oral requests for inhand donations during daylight and imposes no time-of-day restrictions on oral requests for donations by mail. ¶12 As noted, courts apply the most exacting scrutiny to regulations that discriminate based on the subject matter of speech. See, e.g., Burson v. Freeman, 504 U.S. 191, 197 (1992) ( [T]he First Amendment s hostility to content-based regulation extends not only to a restriction on a particular viewpoint, but also to a prohibition of public discussion of an entire topic. ); Simon & Schuster, Inc. v. Members of N.Y. State Crime Victims Bd., 502 U.S. 105, 117 (1991) (rejecting argument that strict scrutiny applies only when the legislature intends to suppress certain ideas ); Boos 9 v. Barry, 485 U.S. 312, 321 (1988); Consol. Edison Co. of N.Y. v. Pub. Serv. Comm n of N.Y., 447 U.S. 530, 536 (1980); Police Dep t of Chicago v. Mosley, 408 U.S. 92, 96 (1972) (government may not select which issues are worth discussing Accordingly, in or debating determining in whether public the facilities ). amended ordinance violates the First Amendment, logically we first would consider whether the distinctions drawn by based on the content of speech. the ordinance discriminate The authorities that guide that determination, however, are not altogether consistent. 4 ¶13 The challenge to Supreme an Court considered anti-solicitation a First ordinance in Amendment Heffron v. International Society for Krishna Consciousness, Inc., 452 U.S. 640, 649 (1981). At issue there was a rule that forbade solicitors from walking among visitors at a state fair; the rule 4 Although the challenged portion of the Phoenix ordinance applies to all manner of vocal solicitations made after dark, the defendants in this case were cited for asking passersby for spare change. The First Amendment protects begging or panhandling when it is conducted peacefully. See United States v. Kokinda, 497 U.S. 720, 725 (1990) (plurality opinion); Riley v. Nat l Fed n of the Blind of N.C., Inc., 487 U.S. 781, 796 (1988); Vill. of Schaumburg v. Citizens for a Better Env t, 444 U.S. 620, 632 (1980) ( charitable appeals for funds are protected speech); Smith v. City of Fort Lauderdale, Fla., 177 F.3d 954, 956 (11th Cir. 1999); Loper v. N.Y.C. Police Dep t, 999 F.2d 699, 704 (2d Cir. 1993) ( We see little difference between those who solicit for organized charities and those who solicit for themselves in regard to the message conveyed. The former are communicating the needs of others while the latter are communicating their personal needs. ); Benefit v. City of Cambridge, 679 N.E.2d 184, 187-88 (Mass. 1997). 10 allowed organizations to solicit and sell materials at the fair only from an assigned booth. Id. at 643-44. Without addressing the distinction the rule drew between solicitation and other speech, the Court held the rule was content-neutral, explaining that it applie[d] evenhandedly to all who wish to distribute and sell written materials or to solicit funds. Id. at 649. See Int l Soc y for Krishna Consciousness, Inc. v. Lee, 505 U.S. 672, 704 (1992) solicitation in (Kennedy, airport J., was concurring) (ordinance content-neutral because banning it was directed only at the physical exchange of money, which is an element of conduct solicitation ); interwoven United States v. with otherwise Kokinda, 497 U.S. expressive 720, 736 (1990) (ordinance prohibiting solicitation on sidewalk outside post office was content-neutral because it was based on the disruptive nature of solicitation itself ) (plurality opinion). ¶14 Lower courts ordinances have neutral. On addressing disagreed one hand, about courts other whether anti-solicitation they considering are content- ordinances that prohibit solicitors from entering the street to ask drivers for donations have upheld the ordinances, concluding they are not content-based. See, e.g., Comite de Jornaleros de Redondo Beach v. City of Redondo Beach, 607 F.3d 1178, 1186 (9th Cir. 2010) ( general rule [is] that an ordinance regulating solicitation is content neutral if it is aimed at acts of solicitation and not 11 at any particular message, idea, or form of speech (quoting Lee, 505 U.S. at 706 (Kennedy, J., concurring))); Ass n of Cmty. Orgs. for Reform Now v. St. Louis County, 930 F.2d 591, 594 (8th Cir. 1991); Int l Soc y for Krishna Consciousness of New Orleans, Inc. v. City of Baton Rouge, 876 F.2d 494, 497 (5th Cir. 1989) (ordinance was content-neutral because it applie[d] even-handedly to every organization or individual, regardless of viewpoint, which attempts to solicit ); ACORN v. City of Phoenix, 798 F.2d 1260, 1267 (9th Cir. 1986); People v. Barton, 861 N.E.2d 75, 80-81 (N.Y. 2006). ¶15 On the other hand, some courts have concluded that ordinances restricting soliciting in other public places are not content-neutral. 2009), the In Berger v. Seattle, 569 F.3d 1029 (9th Cir. court invalidated an ordinance that prohibited performers from actively solicit[ing] donations in a downtown area. Id. at 1050. As in this case, the ordinance allowed performers to passively solicit donations by use of a written sign. Id. The Ninth Circuit held the ordinance impermissibly distinguished Id. at 1051. 5 between categories of speech based on content. In American Civil Liberties Union of Nevada v. 5 Quoting Justice Kennedy s concurrence in Lee, however, the court observed that [a] ban on the actual hand-to-hand exchange of money . . . [would not be] a content-based regulation of speech because it [would be] directed only at the physical exchange of money. 569 F.3d at 1051 (quoting 505 U.S. at 705). 12 City of Las Vegas, 466 F.3d 784 (9th Cir. 2006), the court likewise held an ordinance that banned any solicitation of money or business in a downtown area was content-based: The record is crystal clear that handbills containing certain language may be distributed . . . while those containing other language may not. . . . Handbills with certain content pass muster; those requesting financial or other assistance do not. Even if this distinction is innocuous or eminently reasonable, it is still a content-based distinction because it singles out certain speech for differential treatment based on the idea expressed. Id. at 794 (citations omitted). See S.O.C., Inc. v. County of Clark, 152 F.3d 1136, 1145 (9th Cir. 1998) (ordinance banning commercial leafleting was content-based); Loper v. N.Y.C. Police Dep t, 999 F.2d 699, 705 (2d Cir. 1993) (ordinance prohibiting begging in public places was content-based); Benefit v. City of Cambridge, 679 N.E.2d 184, 189 (Mass. 1997) (statute that banned begging but permitted requests for money for other purposes was not content-neutral). But see L.A. Alliance for Survival v. City of Los Angeles, 993 P.2d 334, 346 (Cal. 2000) ( Restriction on solicitation for immediate donation or exchange of funds may be found to be content neutral for purposes of the First Amendment even if the measure regulates such solicitation while leaving other types of speech untouched. ); State v. Dean, 866 N.E.2d 1134, 1139 (Ohio Ct. App. 2007) (ordinance forbidding certain vocal solicitations was not content-based because it did 13 not reflect Peterson, a 225 disagreement F.3d 899, with 906 message); (7th Cir. cf. 2000) Gresham (parties v. agreed ordinance that barred vocal panhandling in public areas after dark was content-neutral); Smith v. City of Fort Lauderdale, Fla., 177 F.3d 954, 956 (11th Cir. 1999) (plaintiffs did not dispute that ban on begging on the beach was content-neutral). ¶16 We need not try to reconcile these precedents, however, because even if we assume the prohibition added to the Phoenix ordinance in 2003 is content-neutral, it cannot survive constitutional scrutiny. Under the First Amendment, the government may impose a content-neutral restriction on protected speech in a public forum only if the regulation is narrowly tailored to serve leave[s] open a ample significant alternative Perry, 460 U.S. at 45. government channels interest, of and communication. We conclude the provision under which the defendants were cited fails that test because it is not narrowly tailored to serve a significant government interest. ¶17 An ordinance is narrowly tailored if it promotes a substantial government effectively absent substantially government s Racism, 491 Albertini, more the speech legitimate U.S. 472 781, U.S. interest that would regulation than is 675, (1989) 689 Ward (quoting (1985)). 14 achieved without necessary interests. 799 be to v. less burdening further Rock the Against United States Government may v. not regulate expression in such a manner that a substantial portion of the burden on speech does not serve to advance its goals. Id. ¶18 The State contends the 2003 amendment to the ordinance is designed to shield citizens from the fear, intimidation, abusive language, solicitation. or crime that sometimes accompany It further argues that dangers associated with solicitation are heightened at night, when darkness provides a cover for harassing materials appended or to criminal the conduct. Request for According Council to Action, in adopting the 2003 amendment, the city council acted to address personal safety concerns expressed by downtown employees, visitors and residents. ¶19 The City of Phoenix of course has a significant interest in promoting safety in its public areas after dark. See Madsen (1994). v. The Women s 2003 Health amendment Ctr. to Inc., the 512 U.S. solicitation 753, 768 ordinance, however, is not narrowly drawn to achieve that purpose. ¶20 Before the amendment, the ordinance already prohibited aggressive include solicitation, intentionally [a]pproaching or or following which the recklessly the person ordinance touching being defined to another, solicited in a manner that is intended or is likely to cause reasonable fear of bodily harm or intimidation, [c]ontinuing to solicit the 15 person from within ten feet after the person has clearly communicated a request that the solicitation stop, obstructing the safe using or free obscene passage or of abusive the person language or being solicited or intended or gestures likely to cause reasonable fear of bodily harm or intimidation. P.C.C. § 23-7(A)(1) (1996). The 2003 amendment, by contrast, bars any cash solicitation spoken after dark in any public area without regard to whether it is made in an abusive, aggressive or intimidating manner. It would prohibit both a cheery shout by a Salvation Army volunteer asking for holiday change and a quiet offer of a box of Girl Scout cookies by a shy pre-teen if either were uttered on a street corner after dark. See P.C.C. § 23-7(B)(4). ¶21 For this reason, the 2003 amendment is not narrowly tailored to advance the City s interest in sparing citizens from abusive, threatening or harassing acts by panhandlers or other solicitors at night. The pre-2003 ordinance already prohibited all manner of solicitation conducted in an offensive, aggressive or abusive manner; the 2003 amendment broadens the existing prohibition to apply regardless of whether solicitation is abusive, threatening or harassing. a vocal See Berger, 569 F.3d at 1052-53 (ban on active solicitation was broader than necessary aggressive to address solicitation ); government Weinberg 16 v. interest City of in curbing Chicago, 310 F.3d 1029, 1040 (7th Cir. 2002) (content-neutral ban on peddling held unconstitutional because peddlers did not create[] the problems the City asserts they cause ); Perry v. L.A. Police Dep t, 121 F.3d 1365, 1371 (9th Cir. 1997) (content-neutral ban on solicitations on boardwalk by those not affiliated with nonprofit organizations was not narrowly tailored); Iskcon of Potomac, Inc. v. Kennedy, 61 F.3d 949, 956 (D.C. Cir. 1995) (ban on solicitations within designated area on Capitol Mall was not narrowly tailored; visitors who wish to escape [solicitations] may simply steer clear ); Hays County Guardian v. Supple, 969 F.2d 111, 119 (5th Cir. 1992) (rule limiting distribution of commercial tailored newspapers to serve on college government campus interests in was not narrowly preventing crime, fraud and litter); Ayres v. City of Chicago, 966 F. Supp. 701, 713-14 (N.D. Ill. 1997) (ban on peddling in designated district not narrowly tailored). ¶22 The State argues the prohibition added by the 2003 amendment is justified because vocal solicitations made in the dark of night are more likely to cause passersby to be fearful and intimidated. The 2003 amendment, however, does not distinguish between solicitations that occur in dark alleyways and solicitations that take place in lighted buildings or welllit street corners. See P.C.C. § 23-7(A)(5), (B)(4). 17 ¶23 Moreover, the concerns about effect the ban cannot that be even justified peaceful, by general non-aggressive requests for donations may have on passersby at night. Our constitution does not permit government to restrict speech in a public forum merely uncomfortable. Playtime Supreme because the speech may make listeners This is not a case such as City of Renton v. Theatres, Court Inc., upheld 475 an U.S. 41 (1986), adult-theater in the because ordinance which it concluded the law targeted not the films shown in the theaters but instead secondary effects of such theaters. See Ward, expressive 491 U.S. activity at is 791-92 content ( Government neutral so Id. at 47-48. regulation long as it of is justified without reference to the content of the regulated speech. ) (citations omitted). Boos, [l]isteners reactions As Justice O Connor observed in to speech are secondary effects we referred to in Renton. not the type of 485 U.S. at 321. 6 See id. at 334 ( Whatever secondary effects means, I agree that it cannot include (Brennan, J., concurring). listeners reactions to speech. ) See also R.A.V. v. City of St. Paul, Minn., 505 U.S. 377, 394 (1992) ( As we said in Boos v. Barry, Listeners reactions to speech are not the type of secondary effects we referred to in Renton. ) 6 (citation omitted); Justices Stevens, Scalia, Brennan and Marshall Justice O Connor s reasoning. 485 U.S. at 313, 334. 18 joined Forsyth County, Ga. v. Nationalist Movement, 505 U.S. 123, 134 (1992) ( Listeners reaction to speech is not a content-neutral basis for regulation. ). ¶24 The State urges us to follow the Seventh Circuit s decision in Gresham, in which that court upheld a ban on vocal panhandling after dark because the prohibition applied in places where [soliciting] is considered especially unwanted or bothersome or where people most likely would feel a heightened sense of fear or alarm, or might wish especially to be left alone. (total 225 F.3d at 906; see also Smith, 177 F.3d at 956-57 ban on panhandling on beach was permissible means of serving government interest in safe, pleasant environment and eliminating nuisance activity on the beach ). other portions of the Phoenix ordinance We conclude that adequately address fearsome or alarming solicitations; as for the 2003 amendment, the First Amendment does not allow the City to restrict speech in a public forum merely because listeners might prefer not to hear a message that may annoy them or make them uneasy. Erznoznik (First v. City Amendment of Jacksonville, strictly 422 limits U.S. 205, 209 government s See (1975) power selectively to shield the public from some kinds of speech on the ground that they are more offensive than others ). ¶25 In sum, the burden that P.C.C. § 23-7(B)(4) imposes on protected speech is not narrowly tailored to further the City s 19 legitimate convicted purpose. in Because violation of the the defendants First Amendment therefore to the were United States Constitution, their convictions cannot stand. CONCLUSION ¶26 For the reasons stated, we hold subsection (B)(4) of P.C.C. § 23-7, which prohibits certain vocal solicitations in any public area unconstitutionally between sunset overbroad. We and therefore sunrise, is reverse the defendants convictions. /s/ DIANE M. JOHNSEN, Presiding Judge CONCURRING: /s/ MICHAEL J. BROWN, Judge /s/ JOHN C. GEMMILL, Judge 20
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