The Legislature inched closer to criminalizing job hunting on sidewalks and street corners, a move that has split lawmakers along partisan lines and has spurred discussions about freedom of speech and public safety.
Supporters of the bill pointed out that businesses have been affected by day laborers hanging around near establishments and described these jobseekers as a nuisance and an impediment to traffic.
Some businesses are moving out as a result, one supporter of the bill testified in committee.
But opponents said it is a constitutional issue, one that may potentially infringe on the right to free speech.
On April 17, senators gave the bill, H2589, preliminary approval on the floor, sending it to the full Senate for third reading.
That day, Sen. Chuck Gray, R-19, and Sen. Albert Hale, D-2, discussed the issue at length, with Hale quizzing and Gray explaining the measure.
The bill, sponsored by Rep. John Kavanagh, R-8, prohibits a person from soliciting employment while standing or remaining unlawfully on public and private property, making the act a criminal trespass in the first degree. A criminal trespass in the first degree ranges from a Class 1 misdemeanor to a Class 6 felony. The bill penalizes only those at least 18 years old.
Hale’s line of questioning centered on the phrase “standing or remaining unlawfully” on a specified area.
He said the bill, because of the way it was written, could be subjected to “strict scrutiny” by the courts.
Gray countered that it is a public safety issue and that the state has a “compelling interest” to make streets safe.
Hale later expounded on his objection to the bill after the session. He began by pointing out that in court one has to prove each element of a crime.
That means each time the prosecution has to prove that a person is remaining unlawfully, disrupting traffic, soliciting work, among other elements of the legislation.
“How can one remain unlawfully on a public street or highway?” said Hale, a lawyer.
Later he, told the Arizona Capitol Times: “How do you prove that somebody is standing unlawfully? It doesn’t make sense to me”
“If just staying (on a sidewalk) is now going to be unlawful, we’re really infringing on people’s right to be in public places,” he added.
Another point he raised was that if it is a public safety issue, why make a distinction between adults and minors?
By making this distinction, the state is now saying it is a public safety issue as far as those 18 and above, but not as far those below 18, in effect undermining the argument, according to Hale.
Senate rules attorney Joni Hoffman said this is the “weakest part” of the bill.
She said she had told senators in committee that the bill “implicated the First Amendment” and added that she was citing case law.
“When you talk about solicitation, that involves the First Amendment, freedom of speech issues,” she said.
Under the bill, a person knowingly standing or remaining unlawfully on a public highway or street or adjacent public property and disrupting vehicle or pedestrian traffic to solicit work is guilty of criminal trespassing in the first degree. It also bars the solicitation of labor on these areas.
In the case of private property, the jobseeker is liable if he or she remains in the area after a “reasonable request to leave by the owner.”
The bill defines soliciting as “verbal or nonverbal communication by a gesture or nod that would indicate to a reasonable person that (the) person is willing to be employed.”
In the House, critics and supporters of the bill cited court cases to back their arguments, according to minutes of the Judiciary Committee hearing on Feb. 1.
In that hearing, a representative of the National Day Labor Organizing Network, which has successfully sued a California city over a similar ordinance, urged lawmakers to study case law, saying such a measure had been struck down in other states.
Rep. Kyrsten Sinema, D-15, raised concern that the bill might not be as narrowly crafted to meet constitutional requirements, noting that some cities had junked these kinds of proposals as a result, the minutes said.
California community’s ordinance struck down
Sinema cited the case of Redondo Beach, California, which had an ordinance that apparently used language similar to the proposed legislation. A federal judge struck it down a few years back because it was drafted too broadly and that complaints about day laborers were “insufficient to justify preventing all laborers or other solicitors from engaging in speech.”
The ordinance had been in place since the 1980s. It barred people from standing on streets to try to solicit work or contributions from someone in a motor vehicle. It was challenged in 2004 after the Redondo Beach police ran a sting that resulted in the arrest of dozens of day laborers.
Sinema said the California case provides a glimpse of what awaits the bill, assuming it passes and results in litigation.
Tim Lasota of the Maricopa County Attorney’s Office, on the other hand, pointed to a Phoenix city ordinance that made the solicitation of charitable contributions on streets illegal. A group took the city to court but the 9th Circuit Court sustained the constitutionality and upheld the ordinance.
It is the opinion of the County Attorney’s Office that the pending legislation tracks very similarly to the Phoenix ordinance, Lasota said.
The legislation was crafted based on the language of that case, he said.
Sponsor: Bill would help police
In defending the bill, Kavanagh said the growing problem of day laborers congregating on an area creates unsafe traffic conditions, harms businesses because their parking areas or entryways are obstructed, and intimidates customers.
He described the bill as a tool that could help police departments address this problem.
Melody Jafari, who spoke on behalf of a coalition of businesses at 36th Street and Thomas Road, testified that establishments are affected by day laborers who gather on sidewalks. Some are moving out because of lost clients, she said.