The measure was defeated Wednesday night after over 3 hours of debate. It sought to restrict pedestrians from loitering on medians on Routes 1 and 13, including those panhandling.
The ordinance would add Sect. 106-139 to the "Traffic and Vehicles" portion of city rules and would give Dover Police Department the ability to fine those panhandling, and those who stopped to donate to them via a progressive scale.
Under the new rules a first violation would incur a written warning, then scaling to a $15 fee and eventual $50 fee for a third violation and beyond.
Council first began its consideration last November, where they returned it to committee for further revisions after its legality, including First Amendment concerns, was called into question.
Councilman David Anderson and other supporters maintain the measure would protect pedestrian and driver safety.
“This is something that we can do, and something we should do. And, we should do it because life is precious.” he said.
Council President Fred Neil also weighed in on the topic- he takes particular issue with the ordinance being labeled as explicitly anti-panhandling.
"This is nothing more than a safety issue," he said. "The issues that people bring up about homelessness are absolutely correct. This does not deal with homelessness"
The enforceability of the ordinance is still being called into question on First Amendment grounds, so much so that council deferred a decision on it during its last regular meeting to consult state officials on the matter.
Those against the ordinance - including Councilwoman Donyale Hall - argued the ordinance is likely redundant after hearing the state is considering similar legislation. And Hall says acting now may leave the city on shaky legal ground.
“I don’t feel that it is wise and in the best interest of the tax payer dollars to welcome more legal challenge that will ultimately put us in a deficit.” she said.
Neil, though, argued that the state's consideration of a similar law shouldn't influence their decision now,
"We have no guarantee that the state is going to be doing this" he said.
And that concern is not unfounded- added to the record during the meeting a statement from District 31 State Representative Sean Lynn, condemning the ordinance.
"The proposed ordinance violated preemption and is facially illegal under Delaware code..." wrote Lynn. "...municipalities, including the City of Dover, lack the statutory authority to abate nuisance along public roads"
City Solicitor Daniel Griffith define preemption later in the meeting as the state's authority to override city law- Lynn's statement claims that the authority to abate nuisances along roadways is held by the state, with a lone exception made for Wilmington.
Lynn concluded in his statement that, if passed, the ordinance would not hold up to judicial review and would open the city to costly legal battles.
Echoing that sentiment was Councilman Andre Boggerty.
“We have a lot of legal matters before us. We simply cannot afford another one. I’m also going to call for the legal matters before us and the costs associated with them during the budget hearings so we can see why we have to be very mindful of how much we spend in legal matters.” he said.
Boggerty has made comments that acknowledged the sentiment and value of the ordinance in the past but ultimately voted against the ordinance.
Council rejected the ordinance in a 6-3 vote- council members Anderson, Pillsbury, and Council President Fred Neil were its three supporters.
